"A municipal process for creating a local
historic district and providing a regulatory method to protect a
community's historic character is one of the strongest mechanisms
to ensure that preservation occurs."
|Constance E. Beaumont, from A
Citizen's Guide to Protecting Historic Places: Local Preservation
Ordinances, 1992. National Trust for Historic Preservation.
Typical Provisions of the Ordinance
It is important to remember that a typical preservation ordinance "package"
does all of these things: states a public purpose; creates
a local preservation commission; designates historic districts
and landmarks; sets out design criteria that govern commission
design review; establishes a process for enforcing design review;
and also establishes an appeal process for owners who are denied a "certificate
of appropriateness." These components have been summarized below.
Note that there are special rules for a Certified Local Government's ordinance.
Public Purposes. The ordinance lists
the public purposes served by the adoption of the preservation ordinance,
including the promotion of aesthetic and architectural values, civic-mindedness
or cultural education; the safeguarding of historical and cultural heritage;
the improvement or stabilizing of property values; the enhancement of
tourism or other types of business; the strengthening of the local economy;
the encouragement of cultural diversity, or the provision of recreational
amenities. The purposes section is important because it provides general
direction for the implementation of the law. When an unforeseen situation
arises and specific requirements do not exist or do not seem applicable,
look to the purpose section for general guidance.
Creation of the Local Preservation Commission.
The ordinance creates a local preservation commission (often described
as a landmarks commission, historic district commission, or board of architectural
review) to administer the preservation ordinance. Commission members may
be required to provide expertise within the diversity of professions bearing
upon preservation concerns, such as law, architecture, history, archaeology,
real estate, and engineering. Some ordinances have district residency
requirements, and many specify an odd number of members to avoid the risk
of a tie in voting. The ordinance outlines the scope of the commission's
powers, including its power to adopt procedural rules (e.g., open meetings,
conflicts of interest, etc.), its authority to hire staff, and possibly
its opportunity to receive funding from non-government sources. Ordinances
often require the commission to record minutes of its meetings and provide
annual reports. Ordinances also usually describe the process for appointing
commission members and the duration of the term of appointment.
Designation of Historic Districts and Landmarks.
The ordinance requires the commission to conduct a "study and survey"
of local historic (and sometimes prehistoric) resources and to maintain
an inventory of the survey results. The ordinance also requires the maintenance
of a list of those surveyed properties that the local government has chosen
to designate with all of the associated benefits and restrictions. It
also specifies the designation procedures for historic districts and landmarks,
as well as boundary descriptions relating to that selection, and lists
significance criteria a property or district must meet in order to be
designated. The ordinance then describes the mechanics of designation,
including application procedure, provision for notification of owners
or other interested persons, public hearings prior to the designation
decision, and notification of the ultimate decision. Because a careful
evaluation of significance takes time, the ordinance may also impose a
moratorium on applications for alteration or demolition while the application
for designation is pending. Establishing common criteria for historic
resource evaluation is a central objective. Local officials are therefore
encouraged to ensure that preservation ordinances incorporate these criteria
and standards. Many local ordinances contain criteria of significance
that are based on those used for the National Register of Historic Places.
In some instances, official local designation involves an amendment to
the local ordinance specifically mentioning the historic district. Other
kinds of ordinances just describe the mechanism for local designation.
Certificates of Appropriateness. The
ordinance requires that prior to material changes or major alterations
to a designated historic resource, the commission or other local entity
(such as a planning commission or city council) must approve a certificate
of appropriateness. Maintenance, such as painting, caulking, and other
minor repairs and targeted replacement in kind, usually does not require
such a certificate). To make the ordinance understandable to property
owners, it should carefully define the term or terms that trigger the
need for the certificate, e.g., building/landscape alterations, new construction,
etc.; the criteria for design review employed for the issuance of a certificate;
the opportunity for a public hearing; and notification to the owner of
the reviewing body's decision. To defuse potential takings and due process
problems, ordinances should provide owners with an opportunity to claim
economic hardship, and to require the reviewing body to prepare detailed
findings supporting its decision on a certificate of appropriateness.
Demolition Applications. Preservation
ordinances vary in their descriptions of a commission's ability to participate
in the process for reviewing an application to demolish a locally designated
historic resource. The strongest ordinances provide the authority for
outright denial of demolition applications. Many others authorize the
commission to impose a delay of proposed demolitions to facilitate additional
study and public review, while a weaker type of ordinance simply authorizes
a commission to make comments prior to demolition. Even where the ordinance
only authorizes delay rather than denial of a demolition permit, that
commission "discretion" is likely to be sufficient to provide
enough time to consider economically feasible alternatives to demolition.
Open and informed decisionmaking is what is being sought here, as well
as for every instance of design review.
Some ordinances require consideration of post-demolition plans for the
same site before the granting of a demolition permit. Some of the same
considerations discussed in connection with certificates of appropriateness
also apply to review of demolition applications, including the need for
careful specification of review criteria, economic hardship provisions,
and detailed findings.
Government-Owned Property. Some ordinances
also require commissions to develop and maintain registers of significant
government-owned properties, including those that are designated landmarks
or within historic districts. These ordinances may require the agency
owning the property to seek the advice of the commission before approving
significant alteration, demolition of the property, or any other action
that might have an impact on the historic district.
Maintenance of Historic Properties.
The preservation ordinance often includes some requirement of minimum
maintenance for designated historic resources, designed to control deterioration
that leads to "demolition by neglect." Minimum maintenance provisions
need to clearly specify what is required of property owners. In addition,
ordinary maintenance of historic properties is often exempted from the
requirement for a certificate of appropriateness. This and other consequences
of local designation should become a part of the property's title information,
so that new owners have adequate notice of their responsibility.
Enforcement. Enforcement provisions
are needed to ensure that a commission's authority (whatever it is) under
a preservation ordinance is binding. In other words, the ordinance should
describe the consequences of failure to follow the law or legal decisions
made pursuant to the law. The ordinance may establish specific penalties
for violation or provide for civil remedies. Although these provisions
may appear within the preservation ordinance, the ordinance is sometimes
part of a larger zoning code that contains enforcement provisions. Local
governments and landowners should be aware that in extreme cases the courts
have validated a sanction requiring unauthorized demolitions to be rebuilt.
Appeal. In many cases, the ordinance
allows a property owner to appeal to another local decision-making body
a decision denying a certificate of appropriateness or a demolition application,
with the final determination generally provided by the elected city council
or county board of supervisors. The ordinance should specify the procedures
and timing governing the appeal, and whether the entity deciding the appeal
should be allowed to consider new evidence. The ordinance should clearly
indicate what constitutes a final decision, so that interested parties
will know when a decision is appropriate for judicial review.
Moratoria and Emergency Measures. Because
time is often required before a local preservation commission or appeal
body can carefully complete its review of a designation decision or a
demolition application, a problem arises if the owner seeks to destroy
or materially alter the property at issue while that determination is
still pending. Moratoria are imposed to provide a period in which the
consideration of designation or demolition application can occur free
of concern about potential damage to the property.
In addition, local jurisdictions sometimes specify a defined time period
in which the commission is authorized to delay demolition and therefore
permit further study. In general, preservation moratoria are likely to
be upheld where they are of definite sduration. By contrast, moratoria
that fail to provide reasonable time limits are likely to be invalidated
as violating due process requirements
Severability Clause. Many ordinances have a severability clause,
which allows the ordinance as a whole to remain in effect even if a court
has problems with a specific provision.
Excerpted from a summary by Antonio Rossman of Stephen Dennis'
Appendix A: Recommended Model Provisions for a Preservation Ordinance,
With Annotations, pp. Ai-A127, in C. Duerksen, ed., A Handbook on Historic
Preservation Law (1983, National Trust for Historic Preservation). Adapted
for this learning web site by Susan Henry Renaud and John Renaud, Heritage
Preservation Services, National Park Service.
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