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MAKING DEFENSIBLE DECISIONS
Page Separator Making Defensible Decisions Box # 43 Folder # 6 Delray SO 8373 Making Defensible Decisions A Manual for Florida's Certified Local Governments and Historic Preservation Commissions ATA- S _ee DWE FLORIDA DEPARTMENT OF STATE Division of Historical Resources Bureau of Historic Preservation • January 1999 Contents Commission Responsibilities and Preservation Planning • "The Certified Local Government Program,"Historic Preservation in Florida,Florida Department of State, 1996. • "Requirements for the CLGs," Historic Preservation in Florida,Florida Department of State,1998. • "A Citizen's Guide to Protecting Historic Places: Local Preservation Ordinances," Constance E. Beaumont, National Trust for Historic Preservation,Center for Preservation Policy Studies, 1992. • "Historic Preservation Today:The Role of Commissions," Frank Gilbert and Charles Freund, Preserving Historic Districts,A Training Manual for Historic Preservation Commissions, National Trust for Historic Preservation,1987. • "The Benefits of a Historic Preservation Ordinance," Historic Preservation in Florida,Florida Department of State, 1997. • "What Historic Preservation Commissions Do," Preservation Information,State Historical Society of Iowa, 1992. • "Public Relations," Nore V. Winter, Boulder,Colorado, 1986. • "Public Relations for Historic Preservation Commissions: Guidelines for Public Talks," Georgia Alliance of Preservation Commissions. • "How to Conduct a Preservation Meeting,"James K. Reap, The Alliance Review, Spring 1994. • "Commission Procedures and Guidelines," Historic Preservation in Florida,Florida Department of State, 1997. • "Do's and Don'ts for Commission Members,"Historic Preservation in Florida,Florida Department of State, 1997. • "Why Have By-Laws?,"Preservation Information, State Historical Society of Iowa,1992. • "Local Politics and National and State Standards," Ellen Beasley, Local Preservation Workshop, New Orleans,LA,July 1987. • "Working With Local Government,"Historic Preservation in Florida,Florida Department of State,1997. • "Working With Other City Government Officials," Preserving Historic Districts, National Trust for Historic Preservation, 1986. • "What is a Local Preservation Plan?," Robert E. Stripe, The Alliance Review,Fall 1989. • "Historic Preservation Element: Goals,Objectives and Policies," St. Petersburg Comprehensive Plan Historic Preservation Element, 1993. • "Zoning and Historic Preservation,"Stephen A. Morris,Local Preservation, National Park Service,1989. ' • "Questions and Answers About Historic Properties Survey," Patricia L. Parker, Local Preservation, National Park Service,1987. • "What are the National Register Criteria?," Patricia L. Parker, Local Preservation, National Park Service, 1987. • "National Register Historic Districts/Local Historic Districts: There is a Difference," Preservation Helpline, Georgia Department of Natural Resources,1987. • "Certified Local Governments and National Register Nominations," Historic Preservation in Florida,Florida Department of State, 1996. • "Maintaining Community Character: How to Establish a Local District."Pratt Cassity, Preservation Information,National Trust for Historic Preservation,1992. • "Keeping Historic Preservation in the Public's'Eye."Georgia Department of Natural Resources, 1997. • "Working with the News Media,"Historic Preservation in Florida,Florida Department of State,1996. But is it Legal? • "Sources and Restrictions on Historic Preservation Laws,"National Trust for Historic Preservation,1995. • "Building a Preservation Commission's Credibility Through Adequate Procedures," C. Terry Pfoutz, Office of New Jersey Heritage,1987. • "Play Fair in Public Hearings,"R. Marlin Smith,Chicago, 1981. • "Stand up Confidently to the Property Rights Assault," Catherine Gilliam, The Alliance Review, Fall 1992. • "Common Pitfalls in the Life and Work of Local Historic Preservation Commissions," Katherine Raub Ridley, Landmark Commission News, reprinted in The Alliance Review, Fall 1992. • "Myths About Homeownership Need to be Dispelled," Kenneth R. Harney, The Washington Post, reprinted in The Alliance Review, Fall 1992. • "Building a Defensible Record," Stephen N. Dennis, National Center for Preservation Law, March 1991. • "Working With a City Attorney," Preservation Law Update, National Center for Preservation Law, March 1990. • "Notes on Revising a Preservation Ordinance," Preservation Law Update, National Center for Preservation Law,May 1990. • "Metropolitan Dade County vs. P.J. Birds, Inc." 654 Southern Reporter,2nd Series. • "Florida Appeals Court Rejects Facial Challenge to Designation of Historic District in Miami,"13 PLR 1179, November 1994. • "Summary of Florida Private Property Rights Protection Act," Robert A. Ginsburg. • "Property Rights/Property Values," Donovan D. Rypkema, Historic Preservation Forum,July/August,1993. • "Historic Preservation and the Constitution: Dispelling the thirteen myths,"Historic Preservation Forum, July/August, 1993. • "When Preservation Commissions Go to Court: A Summary of Favorable Treatment of Challenges to Ordinances and Commissions Decisions,"Stephen N. Dennis Local Preservation, National Park Service, 1987. • "Counteracting Demolition by Neglect: Effective Regulations for District Ordinances." Oliver A. Pollard, III, The Alliance Review, Winter 1990. • "A Layperson's Guide to Historic Preservation Law: A Survey of Federal,State,and Local Laws Governing Historic Resource Protection."Julia Miller, Preservation Information, National Trust for Historic Preservation,1997. • "Procedural Due Process in Plain English: A Guide for Guide for Preservation Commissions," Bradford J. White and Paul W. Edmonson,National Park Service, National Trust for Historic Preservation,1994. • "Takings Law in Plain English—Highlights," Christopher J. Duerkenson and Richard Roddewig, American Resources Information Network, 1994. • "Making Judgments in the Review Process: A Guide for the Design Review Committee," Nore V. Winter, 1986. • "Procedures for Preservation Commissions," Complied from various sources by James K. Reap for the Georgia Alliance of Preservation Commissions. Finding the Money: Incentives for Historic Preservation • "A Guide to Tax-Advantaged Rehabilitation," Preservation Information, The National Trust for Historic Preservation,1986. • "Tax Aspects of Historic Preservation,"Tom Gavin and Mark C.Primoli,Internal Revenue Service. • "Establishing an Easement Program to Protect Historic, Scenic,and Natural Resources,"Preservation Information, National Trust for Historic Preservation, 1991. • "Summary of Mar-a-Lago Preservation Easement Provisions," National Trust for Historic Preservation. • "Historical Resources Grants," Division of Historical Resources, Florida Department of State. • "Local Incentives for Historic Preservation," Constance E. Beaumont, National Trust for Historic Preservation, Center for Preservation Policy Studies, 1991. • "Tax Exemptions for Rehabilitation of Historic Landmarks and Properties in Historic Preservation Overlay Districts," City of Orlando Municipal Code, Sections 65.900-65.929. • "City of Tallahassee Historic Property Grant and Revolving Loan Program," Downtown Development Office, City of Tallahassee, 1996. • "Private Sector Funding: Common Questions and Fundraising Tips," Preservation Information,State Historical Society of Iowa, 1992. • "The Economics of Rehabilitation." Preservation Information,The National Trust for Historic Preservation, 1997. Design Issues • "Safety,Building Codes and Historic Buildings." Marilyn E. Kaplan, Preservation Information, National Trust for Historic Preservation, 1992. • "Reviewing New Construction Projects in Historic Areas."Ellen Beasley, Preservation Information, National Trust for Historic Preservation,1992. • "A Primer for Writing Design Guidelines." Ed Zotti, Planning Practice, 1991. • "Design Guidelines for Historic Districts Within the Context of Community Planning," Nore V. Winter, The Alliance Review, 1990. • "Design Review for South Carolina Historic District Commissions,". Nore V.Winter,Prepared for the South Carolina Department of Archives and History,September 1988. • "Subdivision Regulation and Historic Preservation,"Stephen A. Morris,National Park Service, August 1992. • "Impact of the Americans with Disabilities Act on Historic Structures," Preservation Information, National Trust for Historic Preservation,1991. • "Keeping Historic Preservation in the Public's Eye,"Helpline, Georgia Department of Natural Resources,Historic Preservation Division. Historic Preservation Legislation • "The National Historic Preservation Act as Amended Through 1997." • "36 CFR Part 61—Procedures for Approved State and Local Government Historic Preservation Programs." National Park Service, U.S. Department of the Interior. • "CFR 59.1:Definitions applicable to the National Flood Insurance Program." 1990 • "Chapter 267—Florida Historical Resources Act."Florida Statutes, 1997. • "Ad Valorem Tax Exemption for Historic Properties," Florida Statutes, Sections 196.1997-1998. • "Historic Property Tax Exemption and Assessment," Constitutional Amendment, Article VII,Sections 3 and 4; Article XII,Section 22, 1998. Compiled by Allison Herrington and Michael Zimny Florida Certified Local Government Commission Responsibilities and Preservation Planning A Manual For Florida's Certified Local Governments and Historic Preservation Commissions Historic Preservation in Florida The Certified Local Government Program Bureau of Historic Preservation (850) 487-2333 R. A. Gray Building 1-800-847-7278 500 South Bronough Street FAX (850) 922-0496 Tallahassee,Florida 32399-0250 http//dhr.dos.state.fl.us/ The Certified Local Government(CLG) program was enacted as part of the National Historic Preservation Act Amendments of 1980.The program links three levels of government—federal,state and local—into a preservation partnership for the identification,evaluation and protection of historic properties. Designation as a certified local government,either as a municipality or a county,makes historic preservation a public policy through passage of a historic preservation ordinance.The ordinance establishes a historic preservation board to develop and oversee the functions of its historic preservation program. Since its inception in 1986,Florida's Certified Local Government program has assisted in the survey, designation and preservation of thousands of historic and cultural resources and helped to increase public awareness of historic preservation.Participation in the program is also an important consideration in the local planning process,as governments in Florida are required to address historic preservation in comprehensive planning decisions. By identifying historic resources in a local government's comprehensive plan,proposed development projects will be reviewed for consistency with preservation goals and strategies. Florida's Certified Local Governments are eligible to apply for special matching grants from the Bureau of Historic Preservation to assist their preservation programs. Funding is available for projects such as: • Surveys to identify and evaluate significant historic properties; • Nominations to the National Register of Historic Places; • Preservation education materials such as booklets,brochures,slide or video programs;and • Local historic preservation plans. Florida's CLGs also can receive technical assistance and training to direct their staff and the members of their historic preservation boards. For additional information,including a program application,contact Michael Zimny at the Bureau of Historic Preservation. Florida Department of State Historic Preservation in Florida Certified Local Government Requirements Bureau of Historic Preservation (850)487-2333 R.A. Gray Building 1-800-847-7278 500 South Bronough Street FAX(850) 922-0496 Tallahassee,Florida 32399-0250 http://dhr.dos.state.fl.us/ • Provide the State Historic Preservation Officer with thirty days prior notice of all meetings. • Submit minutes of each meeting to the State Historic Preservation Officer within thirty days. • Submit records of attendance of the Review Commission to the State Historic Preservation officer within thirty days after each meeting. • Submit public attendance figures for each meeting to the State Historic Preservation Officer within thirty days of action. • Notify the State Historic Preservation Officer immediately of all new historic designations or alterations to existing designations. • Notify the State Historic Preservation Officer of changes in Review Commission membership within thirty days. • Submit amendments to local ordinance to the State Historic Preservation Officer for review and comment at least thirty days prior to adoption. • Submit an annual report by November 1 covering previous October 1 through September 30. Information to be included in the annual report(at a minimum): (1) Any changes to Rules of Procedure. (2) Number of proposals reviewed. (3) New designations (listings). (4) Changes to Review Commission. (5) Revised resumes of Commission members as appropriate. (6) Changes to local historic preservation ordinance. (7) Review of survey and inventory activities with a description of the system used. (8) Program report on each grant-assisted activity. Florida Department of State 1-2- . The real issue is not whether we will have change, but how great it will be, how quickly it will happen, and how shattering its impact will be. —Robert E. Stipe in North Carolina Central Law Io naL Vol.H,, No. 1, 1980. A CITIZEN'S GUIDE TO PROTECTING HISTORIC PLACES: LOCAL PRESERVATION ORDINANCES by Constance E. Beaumont Among the first lessons the preservationist learns is that the legal power to protect historic places lies chiefly with local government. This is a lesson often learned the hard way, for many people assume that the federal government, being the "highest" level of government, is the strongest guardian of historic sites. They assume that if a property is listed on the National Register of Historic Places, it must be protected automatically. This, unfortunately, is not the case. When it comes to historic preservation, the strongest protection is typically found in preservation ordinances enacted by local governments. Preservation ordinances in the United States date to 1931, when Charleston, S.C., became the first American city to establish a local historic district. Today there are over 1,700 communities with preservation ordinances in place. Big cities and small towns alike have found these laws to be an effective tool in protecting historic places from such undesirable fates as demolition for surface parking lots or deterioration through neglect. Preservation ordinances are local laws through which owners of historic properties are usually prohibited from altering' or demolishing their property without local government approval. Such restrictions are comparable to the many zoning and housing 1 Most ordinance restrictions are limited to changes affecting the exterior of a structure, leaving property owners free to modify interiors as they wish. However, some cities have enacted ordinances that regulate changes to historic building interiors. subdivision regulations in place across the country. These restrictions are imposed to protect homes and businesses against the devaluing effects of unsightly or inappropriate development on nearby properties. An ordinance can protect individual landmarks only, entire historic districts, or both landmarks and districts. To ensure that new buildings fit in harmoniously with their older neighbors, historic district ordinances typically regulate the design of new construction as well as changes to existing structures. The authority to regulate private property through historic preservation and land- use laws is derived from the states' police powers. The states have generally delegated these powers to cities and towns, and every state except Wyoming has empowered local governments to regulate development affecting historic sites. Local preservation ordinances vary widely, but they must all comply with four cardinal rules of land-use law: 1. An ordinance must promote a valid public purpose. That is, it must in some way advance the public health, safety, morals or general welfare; 2. An ordinance must not be so restrictive as to deprive a property owner of all reasonable economic use of his property; 3. An ordinance must honor a citizen's constitutional right to "due process." In other words, fair hearings must be provided and rational procedures must be followed in an ordinance's administration;'- and 4. An ordinance must comply with relevant state laws. 2 As Robert E. Stipe explains in The American Mosaic. Preserving A Nation's Heritage, '(Land use) laws must be specific and understandable by ordinary citizens; they must apply with equal force to everyone; and they must have a believable relationship to the objective of promoting public health, safety, morals or general welfare. Most importantly, they must not go so far in their application as to deprive the owner of too much beneficial use of the property.' 2 If an ordinance violates any one of these rules, it stands the risk of being invalidated by a court. If it violates the second rule, a court may order the local government to pay a property owner "just compensation" for taking private property in violation of the Fifth Amendment. The basic constitutionality of historic preservation ordinances was upheld in 1978 by the U.S. Supreme Court. In Penn Central Transportation Co, v. City of New York (438 U.S. 104 (1978)), the court settled two important questions.3 First, it found historic preservation to be a valid public purpose: Because this Court has recognized, in a number of settings, that States and cities may enact land use restrictions or controls to enhance the quality of life by preserving the character and desirable aesthetic features of a city . . . appellants do not contest that New York City's objective of preserving structures and areas with special historic, architectural, or cultural significance is an entirely permissible government goal... The restrictions imposed (by New York's landmark ordinance) are substantially related to the promotion of the general welfare... Secondly, the court held that New York's ordinance — and by inference, similar ordinances enacted by other cities — had not taken private property in violation of the U.S. Constitution because the ordinance's restrictions left the Penn Central company 3 The U.S. Supreme Court has issued several major land-use rulings since 1978. While these do not focus on historic preservation, it is important to know about them because they may affect preservation. In Keystone Bituminous Coal Assn. v. DeBenedictis (480 U.S.470 (1987)), the Supreme Court rejected a takings claim against Pennsylvania's land subsidence law. Among other things, the court observed: "Under our system of government, one of the state's primary ways of preserving the public weal is restricting the uses individuals can make of their property. While each of us is burdened somewhat by such restrictions,we, in turn, benefit greatly from the restrictions that are placed on others." In First English Evangelical Lutheran Church v. County of Los Angeles (482 U.S.304 (1987),the court held that the remedy for a temporary regulatory taking is not merely the invalidation of a land use ordinance but just compensation to the property owner for the period during which the taking occurred. And in Nollan v. California Coastal Commission (483 U.S. 825 (1987)), the court said there must be a nexus between the purpose of a land-use regulation and the specific regulation used to achieve that purpose. In other words, the means should further the ends. Significantly, the court did not back away from its Penn Central ruling in any of these decisions. The court has yet to explain how compensation should be determined in a temporary regulatory taking case. See also Agins v. Tiburon, 447 U.S.255 (1980),$an Diego Gas & Electric Co. v. City of San Diego,450 U.S.621 (1981), Williamson County Regional Planning Commission v. Hamilton Bank,473 U.S. (1985), and MacDonald. Sommer & Frates v. County of Yolo (Calif.\,477 U.S.340 (1986). 3 with a "reasonable beneficial use" of its landmark property. The court punctured the oft- heard argument that property owners are entitled to make the most possible money (the "highest and best use") from their land: ...the submission that (property owners) may establish a "taking" simply by showing that they have been denied the ability to exploit a property interest that they heretofore had believed was available is quite simply untenable. But local ordinances must do more than pass muster under the federal Constitution; they must also comply with state laws and constitutions. As noted above, every state except Wyoming has empowered local governments to enact historic preservation regulations. Many states have enacted enabling laws for local historic district or landmark statutes. Other states have given localities broad "home rule" powers, permitting them to exercise all powers not expressly prohibited. Still others have conferred the power to protect historic sites on localities through statewide zoning enabling laws. Basic elements of a preservation ordinance With the legal authority for local preservation ordinances now well established, the question arises: what should an ordinance look like? Some state preservation offices and nonprofit organizations have prepared model local ordinances that a community may find useful as a starting point. However, if models are used, they should be adapted to address local needs and not be adopted unthinkingly. Ordinance drafters should also consult state case law, for important court decisions affecting local ordinances may have been rendered. Basic elements that should form pal n of any ordinance are set forth below. a. Statement of Purpose. An ordinance should clearly state its public purpose. Although historic preservation can be justified for its own sake, many jurisdictions have found it legally and politically prudent to link historic preservation to other community goals as well. (Some lower courts have ruled that "aesthetic regulation" is not a valid public purpose, but have sanctioned such activities as economic development, heritage 4 education and neighborhood revitalization.) Cape May, New Jersey's ordinance includes among its purposes "to preserve and enhance the environmental quality of neighborhoods, to strengthen the Township's economic base by the stimulation of the tourist industry, to establish and improve property values; to foster economic development; to manage growth..." b. Definitions. Technical terms — e.g., "alterations," "demolition by neglect" and "environmental settings" — need explanation. They should be clearly defined somewhere in the ordinance. c. Preservation Commission. Some entity within local government must be charged with administering the ordinance. Usually this is a preservation or design review commission comprised of local citizens. Many ordinances require preservation commissioners to have special expertise in certain disciplines, such as architectural history, architecture, law or real estate, to guard against claims of arbitrary and capricious decisionmaking. Some ordinances call for representation by the city planning board on the commission to ensure that local planning goals are related to historic preservation. The qualifications of commission members as well as their terms of office need to be spelled out. d. Commission Powers and Duties. Most commissions are charged with the duty to conduct historic surveys, maintain inventories, and keep adequate records of their actions. Their authority over the designation and regulation of historic properties varies, however. Some commissions may only make recommendations to other governmental bodies -- e.g., a planning board or city council — whereas others have the final word on whether and how historic properties may be altered. Although a property owner must submit development or rehabilitation plans to a commission with merely advisory powers, he or she need not follow the commission's recommendations. Obviously the more authority vested in the commission, the stronger the protection for historic sites. 5 Many commissions may deny proposals to demolish historic buildings; others may only delay such actions.' Despite claims to the contrary, demolition denials do not constitute a "taking" in violation of the U.S. Constitution so long as a property owner has not been denied all reasonable use of his property. Reductions in property values due to regulations are not "takings." e. Criteria for Designating Historic Properties. Objective, relevant criteria should be established for evaluating the historic or architectural worth of a structure. Appropriate criteria include such things as a building's role in national; state or local history, its association with prominent historical figures, its architectural or engineering excellence, its cultural significance, etc.6 Examples of cities that authorize the denial of demolition permits include: Alexandria (VA), Annapolis (MD),Atlanta and Augusta (GA),Austin (TX), Boston (MA), Charleston (SC), Chicago (II.,), Denver (CO), District of Columbia, Indianapolis (IN), Natchez (MS), New York (NY), Portland (ME), San Antonio (TX), San Francisco (CA) (through the Downtown Plan) and Seattle (WA). Examples of cities that merely delay such permits arc: Portland (OR), Sacramento (CA) and Baltimore (MD). S See Landmark Yellow Pages (Preservation Press., 1992) for citations of court cases on decisions upholding local ordinances in states throughout the U.S. `Although some ordinances require an owners consent before, a property may be officially landmarked, this is not recommended. The wishes of an individual property owner are not an objective;relevant criterion. Private individuals are not allowed to veto zoning regulations or other public laws; they should not be allowed to veto historic property designations. Owner consent provisions also raise legal questions in that they arguably represent a standardless and thus unconstitutional delegation of police powers to private individuals. To quote from the U. S. Supreme Court's Mugler v. Kansas ruling (1?' U.S. 623 (1857)): (The power to regulate land) must exist somewhere; else society will be at the mercy of the few who, regarding only their own appetites or passions, may be willing to imperil the peace and security of the many, provided only they are permitted to do as they please. Under our system that power is lodged with the legislative branch of the government. It belongs to that department to exert what art known as the police powers of the state, and to determine primarily what measures are appropriate or needful for the protection of the public morals, the public health, or the public safety. For an excellent discussion of the 'owner consent' issue, see 'Owner Consent Provisions in Historic Preservation Ordinances: Are They Legal?' by Julia Hatch Miller. Preservation Law Reporter. February 1991. Volume 10, Number 2. 6 f. Procedures for Designating Historic Landmarks and Districts. Ordinances must comply with basic "due process" requirements. Property owners must be given adequate notice and an opportunity to be heard before their property rights are curtailed. Otherwise, an ordinance could be invalidated by a court. The ordinance needs to explain who can nominate properties for historic designation; how and when affected property owners are notified; how many public hearings there are; who must approve designations; and what the timetable for these actions is. g. Reviewable Actions and Procedures and Standards for Reviewing Them. The ordinance should explain what types of changes — e.g., demolitions, building/landscape alterations, new construction in historic districts — are subject to review. (Many ordinances exempt minor repair and maintenance from review.) It is also important that alteration or demolition requests be acted upon fairly and in a timely fashion. It is critical for commissions to review such requests according to reasonable standards clearly set forth in the ordinance. The goal is to let property owners know what the rules are. A system perceived to be rational and equitable will go a long way toward avoiding problems. Some cities have incorporated the Secretary of the Interior's Standards for Rehabilitation into their ordinances. Although these standards are a useful set of guiding principles for the federal programs for which they were intended, if used by local preservation commissions, they should be adapted to meet local needs and phrased in appropriate regulatory language.' h. Economic Hardship. All historic preservation ordinances should include a process and standard for evaluating economic hardship claims. Such provisions can act as a safety valve if the ordinance is challenged in court; conversely, their absence can make an ordinance vulnerable to attack. The ordinance should explain the process for See "The Secretary's Standards Can Be Harmful to Your Historic District,"by Katherine Raub Ridley. Preservation Forum. Spring 1990. • 7 obtaining a hardship finding and spell out what information the commission needs to evaluate hardship claims. The timing for reviewing hardship claims is also important. Such claims should be considered only after an application for approval to alter or demolish a structure has been denied, not while properties are still being considered for historic designation or before applications for alterations are acted upon. In effect, economic hardship review is comparable to the variance process under zoning laws. i. Penalties. Ordinances must be enforced if they are to be effective. Penalties for violating the ordinance provisions may include fines (usually levied for each day a violation continues), requirements to restore or pay for willfully damaged landmarks, denial of permission to rebuild on sites where landmarks were illegally demolished, and even jail. The stiffness of the penalty varies with each community depending on the likelihood of non-compliance. j. Appeals. Even if an ordinance is silent on appeals, a citizen still has the right to challenge a commission's ruling in court. However, it is wise to clarify the appeals process. While some ordinances make commission decisions appealable only to the courts, others find it easier and less expensive to have boards of zoning appeals or some other administrative body to handle these cases. If the latter course is chosen, it's important to give such bodies clear criteria for considering appeals. Otherwise, they may use political criteria or assume unproven economic hardship on the part of the property owner. Appeal board reviews should be limited to the facts presented to the preservation commission in considering whether a decision was made arbitrarily or capriciously! The pros and cons of different appeals procedures are discussed in two Planning Advisory Service reports available from the American Planning Association: Preparing A Historic Preservation Ordinance and Responding to the Takings Challenge (Chapter Four). See references at end of this guide. • 8 Administering An Ordinance. The operating style of a preservation commission and its staff is important. Tact, sensitivity, and basic good manners in dealing with property owners can help keep a commission out of court. A commission should also avoid spending hours on trivial matters while overlooking major issues. This can cause the public to lose respect for a commission. Local innovations While most local preservation ordinances include the basic elements listed above, many go even further to address common problems in innovative ways. Some examples: • Automobile dominance: Nothing destroys a historic area faster than subservience to the automobile. Seattle's Pioneer Square Historic District Ordinance promotes a pedestrian- friendly environment by banning gas stations, drive-in businesses and surface parking lots. It also limits curbs cuts and subjects the few parking garages that are allowed to special design review. • Environmental settings: The value of a historic structure is greatly diminished if it is surrounded by ugly, incompatible development. The structure's setting should be protected from such development if at all possible. Miami, Florida's ordinance calls for drawing historic district boundaries so as to "include properties which individually do not contribute to the historic character of the district, but which require regulation in order to control potentially adverse influences on the character and integrity of the district." 9 ♦ Interim protection: Often the mere discussion of historic property designations will prompt property owners fearful of new regulations to seek demolition permits. It is important to provide interim protection for buildings nominated, but not yet officially designated as, local historic landmarks. This allows the local governing body to weigh the merits of specific nominations without witnessing asash of demolitions. An interim control ordinance should be for a set time period and should state the public purpose — e.g., comprehensive planning reasons — for the controls. Atlanta's ordinance provides interim protection of up to 11 months. ♦ Design Guidelines: Portland, Maine's ordinance contains unusually well-organized and clear guidelines for reviewing new construction in historic districts. Not only does the ordinance provide guidelines for new buildings as individual structures, but it also discusses the relationships between buildings and streets. Leesburg, Va., has created an overlay district to regulate the design of new construction alongside highways leading into the town's historic district. • Demolition by Neglect. Occasionally a landowner will deliberately neglect a historic structure in the hope of obtaining a demolition permit on the ground that the building jeopardizes public safety. Many ordinances include "affirmative maintenance provisions to prevent this. The Charlottesville, Va., ordinance states that a property owner shall not permit a structure to deteriorate so badly that it produces a "detrimental effect" on a historic district or landmark. The ordinance also calls for the maintenance of 10 the "surrounding environment, e.g.,fences, gates, sidewalks, steps, signs, accessory structures and landscaping." • Surface Parking Lots: Lest historic structures be demolished to make way for surface parking lots, Atlanta's ordinance now requires property owners to provide detailed architectural plans and evidence of financing for new building projects.9 Salt Lake City's ordinance requires demolition permit applications to be accompanied by landscaping plans. The city planning department may obtain performance bonds to ensure that landscaping is actually done. • Uses of Historic Structures: Although preservation ordinances typically stay out of land use questions, as national chains and franchises relentlessly homogenize American communities, many preservationists are searching for ways to preserve the small, locally-owned businesses that give each city its unique flavor while providing ideal users for small historic structures. The guidelines of the Pike Place Market Historical District Ordinance in Seattle state that all businesses using the Market are to be operated "with the owner involved in the daily management. Businesses serving local residents are preferred over those which are primarily tourism-oriented." The guidelines encourage local farmers to use the market and discourage fast-food outlets from doing so. v Albany, New York%law,which also conditions the issuance of demolition permits on the approval of new construction, was challenged but upheld in Lemme v. Dolan. 558 N.Y.S.Appellate 2d 991 (AD.3 Dept. 1990) The question of land uses raised by Pike Place Market's guidelines presents a larger issue: How do the policies embodied in a local comprehensive plan and zoning ordinance affect historic properties? Either before, while or soon after the process of drafting a local orriinance occurs, someone should examine the local planning and zoning policies for their impact on preservation_ Does the plan call for a road widening in the middle of the historic district? Does the zoning permit high-rise buildings where small historic structures now stand, thus putting economic presssures on property owners (or tempting them) to tear down and build new? Capital improvement plans and zoning policies are notorious for setting the stage for a lancimarl's future demolition. It is important to evaluate these plans and policies and seek appropriate changes lest they undercut the local preservation ordinance. Benefits of local preservation ordinances Because preservation ordinances restrict what private owners may do with their property, preservation advocates must be prepared to articulate the broad community benefits that can flow from an ordinance. Below are some points preservation advocates might consider as they seek to build public and political support for local ordinances. Environmental Benefits. The world is too small and our resources are too limited for us to waste anything. It makes no more sense to squander buildings or cities and land than it does to despoil natural resources. Indeed, doing the former necessitates the latter. Urban disinvestment and its partner, sprawl, harm the environment and waste resources in several ways. Buildings, streets and infrastructures for which natural resources have already been extracted go underused. Compact urban centers in which people can get around by environmentally benign transportation modes — e.g. walling, biking or transit — are abandoned for inefficiently arranged "carburbs" in which everyone must rely totally on the automobile. This automobile-oriented sprawl unnecessarily , 2 depletes natural resources,' consumes farmland and destroys trees. It also requires vast quantities of gas and oil and contributes to air and water pollution. The demolition of existing buildings adds to waste disposal problems. According to some recycling experts, the debris from building construction and demolition can account for more than 20 percent of a municipality's solid waste stream.11 Because such debris is bulky and difficult to compact or burn, many landfi11s refuse to accept it.12 The last two of the new "3 R's" — "reduce, re-use and recycle" — being taught to children today are as relevant to buildings and land as they are to bottles and paper.13 Economic Benefits. A frequently heard argument is that preservation regulations will reduce property values and stifle local economic development. The experience of many property owners and communities shows the exact opposite. A 1990 economic analysis14 of business activity in Denver's Lower Downtown Historic District reported that the district actually fared better economically than other parts of the city. Within two years of the district's designation, 114 new businesses creating 450 new jobs located in the district. While most of Denver suffered from a 10 It takes the energy equivalent of one gallon of gasoline to make, deliver and install just eight bricks. (Source: Assessing the Energy Conservation Benefits of Historic Preservation: Methods and Examples. Washington, D.C.:Advisory Council on Historic Preservation,January 1979, p. 7.) 11 "Construction and Demolition Wastes: The Neglected Challenge of the 90%," by Edward D.Fowler.A paper presented to the Legislative Commission on Solid Waste Management,New York City. January 21, 1991. 12 Augusta, Georgia's preservation ordinance includes among its purposes the"promot(ion of) the reuse and recycling of existing building stock in the City...and (t)he...conserv(ation of) increasingly scarce landfill space and valuable natural resources. is The importance of practicing the new"3"R's" for the sake of passing on a livable environment to future generations was underscored on a CBS special,"What About Me? I'm Only Three," aired on television in April 1992. 14 "Lower Downtown: Economic Impact of Historic District Designation,"by Hammer Siler George Associates. July 1990. severe recession, the Lower Downtown district experienced substantial new business activity, according to the study. • In Fredericksburg, Va., properties in the historic district appreciated more in value between 1971 and 1990 than properties located elsewhere in the city. Commercial property values in the historic district rose by an average of 480% during this period while those elsewhere rose by only 281%. The comparable figures for residential properties were 674% and 410%, respectively.1 Historic preservation can also offer economic development opportunities to local communities. One notable example is heritage tourism, an area of growing importance to many small towns in economically depressed regions. The ability of local communities to attract outside visitors — and the revenues and jobs they bring with them — often depends on historic preservation. According to Arthur Frommer, author of the travel guide series that began with Europe On SS A Day: Every study of travel motivations has shown that an interest in the achievements of the past is among the three major reasons why people travel...Among cities with no particular recreational appeal, those that have substantially preserved their past continue to enjoy tourism. Those that haven't receive no tourism at all. It is as simple as that.l6 Examples of strictly regulated historic areas that boost municipal coffers by attracting tourists include Seattle's historic Pike Place Market and Pioneer Square; San Antonio's River Walk; Beaufort, South Carolina's Main Street; San Francisco's downtown; Philadelphia's Society Hill; Galveston, Texas' Historic Strand District; and Annapolis, Maryland's historic center. Finally, there are fiscal benefits to malting full use of traditional urban centers, where the nation's historic resources are concentrated, and rninimi7ing sprawl. Taxpayers cannot afford to pay continually for new roads, sewers, utilities, water lines, u The Economic Benefits of Preserving Community Charamer Pres:nation: A Case Stud: Fredericksburg, Virginia. Government Finance Research Center. 1991. (Available from the National Trust for Historic Preservation in Washington, D.C.) 16 'Historic Preservation and Tourism,' Preservation Forum. Fall 1983. 14 libraries, schools and post offices17 strewn inefficiently across the landscape while existing infrastructures and public buildings go underused. This is a waste of taxpayer investments already made and a practice that few state or local governments can afford to sustain.18 Educational Benefits. Historic sites give meaning to and animate the lessons of history. Places like Martin Luther King's birthplace, the Alamo and Ellis Island help us to understand important events in our nation's past. The preservation of San Francisco's cable cars, New York's Brooklyn Bridge and the Midwest's Illinois and Michigan Heritage Canal helps us to appreciate the engineering and technological advances we have made as a society. Architectural masterpieces like Frank Lloyd Wright's "Fallingwater" in Pennsylvania, Hood and Howells' Tribune Tower in Chicago and Thomas Jefferson's Monticello in Charlottesville, Va., provide inspirational models of excellence for today's youth. Social and Psychological Benefits. Social benefits of preservation stem from the way many historic areas are laid out. Mixed land uses, narrow and pleasant streets, compact development and other characteristics typical of historic districts foster a pedestrian-friendly environment. This 11walkability," in turn, facilitates important social and business contacts and brings people together. This urban quality is important to everyone, but especially so for people who cannot drive, such as the elderly with poor eyesight, children and young teenagers. "Andres Duany, a leading"neotraditionalist,"has pointed out that the U.S.Postal Service is going broke trying to deliver mail in the sprawling suburbs. 13 According to a December 7, 1991 article in the penwr Post, "growth limits prevented (the city of) Boulder's construction industry from overheating, a malady that created tons of empty homes and offices in other cities." The Post observed that the Resolution Trust Corporation now owns 38,000 acres of failed S&L , developments in Colorado Springs but only 20 acres in Boulder. Colorado Springs has six failed banks, for which taxpayers have paid $693 million for bailouts,while Boulder has only one. The Post notes: "Growth limitation laws may be aimed at saving the urban environment,but the S&L shakeout shows they also may have saved us some tax dollars." A growing number of communities are establishing"urban growth boundaries" for fiscal as well as environmental reasons. 15 In a world of rapid and often troubling change, the presence of familiar, beautiful landmarks gives people a land of emotional anchor as well as a sense of orientation to what is around them. People spend billions of dollars annually on home improvements and landscaping because they intuitively understand the relationship between pleasant • surroundings and their mental health. People fill their attics with old letters, furniture and childhood toys because they value the memories these things evoke. Historic preservation recognizes the importance of these things and simply deals with physical surroundings and community memories that are in the public realm As Robert E. Stipe, the mentor of a generation of historic preservation advocates, has observed: I have come to believe that the urge to preserve is less rooted in high-style cultural soil than in a more fundamental, even biological, need all of us have to try to reduce or moderate the pace and scale of change itself. What we are really trying to preserve, I think, is memory It is an attempt to keep a mental grip on familiar and accustomed environments that make us feel comfortable and secure whether or not they are aesthetically pleasing or historically credentialed. The real issue is not whether we will have change, but how great it will be, how quickly it will happen, and how shattering its impact will be. Of course we value our National Landmark buildings, but we may equally value a single tree or even an undistinguished building in a }mown, comfortable environment.29 Summing Tip. In summary local preservation ordinances undergird our collective efforts to enhance the environmental, economic, educational and social quality of community life. They give us a way of malting sure that future generations will have a chance to understand how and why our society evolved as it did. They safeguard irreplaceable architectural treasures that inspire us and lift our spirits. And they lend beauty and a sense of civility to a world that badly needs both.' _ is North Carolina Central Law Journal, VoL II, No. 1, 1980. 2' The author gratefully acknowledges the assistance of Julia Miller, Katherine Ridley, Paul Edmondson, Bridget Hartman, Pratt C'ccity and Stephen Dennis in preparing this guide. � 6 POSTSCRIPT: UNDERSTANDING THE LIMITS OF FEDERAL PRESERVATION LAWS Misconceptions about the ability of federal laws to protect historic places are so widespread that a word on these laws is in order. The most widely misunderstood law is the National Historic Preservation Act of 1966, which authorizes the National Register of Historic Places and the so-called "Section 106 review" process. Many people think that if their property is listed in the National Register, they may not demolish or alter the property in any way. This is not the case. National Register listing imposes no restrictions whatsoever on private property owners. They remain free to do whatever they please with their property. They can sell it. They can paint it. They can alter it. And they can tear it down. On the other hand, National Register listing does provide access to federal rehabilitation tax credits, often a substantial benefit to property owners 21 The only restrictions that accompany National Register listing fall on the federal government, not on property owners. Section 106 of the National Historic Preservation Act' requires federal agencies to consider the effect of federally-assisted projects on properties listed in or eligible for the National Register. If a project threatens to harm such properties, the federal Advisory Council on Historic Preservation must be allowed to suggest ways of avoiding or minimizing such harm. After agencies have gone through the "review and mitigation" process invoked by Section 106, they may carry out a project as they see fit — even if their actions mean the destruction of historic sites. However, by preventing federal agencies from acting rashly, and by requiring them to consider alternatives to the destruction of historic resources, Section 106 can "buy time" and u The consequences of historic designation by states vary. In many cases such state designation triggers reviews of state agency actions, but it rarely limits the actions of private property owners. 16 U.S.C. Section 470f 17 provide a forum in which preservation advocates can sometimes negotiate compromises 2 Section 106 is rather like a stop sign. In effect, it says: "Slow down and consider the options before you. Once you've done that, proceed in any direction you wish. Just don't run the stop sign." Section 106 grew out of the 1960s, after thousands of private property owners had watched helplessly as their homes and neighborhoods were destroyed by Federal urban renewal. Another important federal preservation law is Section 4(f) of The Department of Transportation Act.2A Section 4(f) is stronger than Section 106, but it only applies to transportation projects — highways, mass transit lines and the like. Under Section 4(f), federally-aided transportation projects that could damage historic sites may not go forward unless there is no prudent or feasible alternative to using the land proposed for the project. If there is no such such alternative, all possible planning to minimize harm to the historic site must still be done. Unlike Section 106, Section 4(f) applies to local and state designated historic properties, not merely to National Register properties. Neither Section 106 nor Section 4(f) protects historic resources from purely private development, the type of development that most often threatens such resources. For that type of protection, one must look to local ordinances.s • If these compromises are formali7-d in a 'Memorandum of Agreement' signed by the Advisory Council on Historic Preservation, the state preservation officer and the federal agency involved, they may be legally enforceable. • Section 4(f): 49 U.S.C. Section 303. See also U.S.C. Section 138 (highways); and 49 U.S.C. Section 2208 (b) (5) (airports). • Some state growth management laws offer protection akin to that offered by Section 106 or Section 4(f) and this protection may apply to private as well as state agency actions. For a discussion of this issue, see Preservation Planning and Growth Management in Four State,. National Trust for Historic Preservation. �8 A third.federal law, the Public Buildings Cooperative Use Act,26 requires federal agencies to consider leasing space in historic properties when it is economically feasible to do so. Although this statute does not actually protect historic buildings, it helps to preserve them by encouraging federal agencies to use such buildings. This is important, for if buildings are not used, they may be lost. Little attention has been paid by preservationists to this law's enforcement, however. Given the many historic landmarks lost through disuse, preservationists might take a new look at the Cooperative Use Act.27 26 40 U.S.C. Sections 490, 601a, 606, 611 and 612a. Several states, including Texas and Florida, have laws that resemble the Public Buildings Cooperative Use Act, except that they apply to state rather than federal agencies. 19 BIBLIOGRAPHY Beaumont, Constance E. and A. Bruce Dotson. Preservation Planning and Growth Management in Four States. Washington, D.C.: National Trust for Historic Preservation. Revised 1992. Cassity, Pratt. Maintaining Community Character: How to Establish a Local Historic District. An Information Sheet. Washington, D. C.: National Trust for Historic Preservation. 1992. Collins, Richard C., Waters, Elizabeth B., and Dotson, A. Bruce. America's Downtowns: Growth. Politics and Preservation. Washington, D. C.: The Preservation Press. 1991. Duerksen, Christopher J. Aesthetics and Land Use Controls: Beyond Ecology and Economics. Chicago: American Planning Association. 1986. (Planning Advisory Service Report No. 399.) Duerksen, Christopher J., et al. A Handbook on Historic Preservation Law. Washington, D.C.: The Conservation Foundation. 1983. (See especially Chapter 2, Part 2, "Drafting and Administering the Ordinance.") Preservation Law Reporter, a monthly publication covering Federal, state and local developments in preservation law. Washington, D. C.: National Trust for Historic Preservation. $90 for an annual subscription. ($50 for National Trust Forum members.) "Preservation Law Updates," twice-monthly newsletters on matters of preservation law. Washington, D. C.: National Center for Preservation Law. Ridley, Katherine Raub. 'The Secretary's Standards Can Be Harmful To Your Historic District." Preservation Forum. Spring 1990. National Trust for Historic Preservation. Roddewig, Richard J. Preparing A Historic Preservation Ordinance. Chicago: American Planning Association, 1983. (Planning Advisory Service Report No. 374) Roddewig, Richard J., and Duerksen, Christopher J. Responding to the Takings Challenge. Chicago: American Planning Association. 1989. (Planning Advisory Service Report No. 416. See especially Chapter Four.) Stipe, Robert E., and Lee, Antoinette J. The American Mosaic: Preserving A Nation's Heritage. Washington, D.C.:US/ICOMOS. 1987. 21 1-13 HISTORIC PRESERVATION TODAY: THE ROLE OF COMMISSIONS Preservation in the United States today is a part of the daily operation of communities, large and small , throughout the country. A typical mayor will have some knowledge about preservation, but city officails may have some doubts about its effect on their programs. Historic preservation has brought its impact to bear on such community concerns as the nature of urban progress itself. Implementing such concepts once meant the wholesale destruction of neighborhoods and business districts. There was no discussion • about these areas other than an identification of the buildings that had deteriorated. 'Progress," in the minds of many citizens, often translated directly into demolition of a given area, such as Washington, D.C. 's southwest district and Los Angeles' Bunker Hill., and their replacement with from-the-ground-up redevelopment. • It is useful to remember that preservation got much of its original support because of mistakes in urban renewal and highway programs. However, commissioners today face the challance to de- velop a preservation program that makes a positive contribution to their city. Interest in preservation encompasses more than an intensified sensitivity to architectural , historical and aesthetic values, though these will continue to play a role in the preservation movement. Many commissioners become active in preservation because of these issues. These values are now joined, however, by ap- preciation of the dollar-and-cents merits of retaining a community's historic heritage, its human scale districts and its buildings deem- ed beautiful by residents and visitors alike. The challange is to develop a workable program to retain these buildings. One need only look to the success of Boston's Faneuil Hall and San Francisco's Ghirardelli Square for example of older structures put to new, attractive and revenue-generating uses, projects looked to as models by cities throughout the country. Because of the tax incentives, it seems as though every city today has one or more rehabilitation projects. Preservation efforts in communities as different as New Orleans and Santa Fe, N.M. , have resulted in maintainina the indigenous character of those locations, and have done much to keep them attractive to those who live and do business there, as well as to draw visitors. • Today members of commissions learn about economics and planning as well as law and real estate. To be sucessful commissioner; a person must find time. to learn about the daily operations of- the city: 1-z4 The phenomenon of historic preservation has grown to encompass the ongoing planning of cities as their older sections come up for conservation or renewal . There are excellent, practicle reasons for protecting older commercial structures because they will generate a variety of daytime and evening activities, lend vitality to the area and draw visitors to the city. In addition, neighborhood organizations often seek a historic district designation to protect their homes and to encourage. appropriate improvements in the area. The record shows that • neighborhood conservation is the most important part of the work done by historic preservation commissions. Because you are a member of your community's historic preservation commission, the judicious application of these concerns about the past is in your hands. By your actions, you can develop or maintain a workable preservation program in your city. It is your job--your responsibility-- to determine what struc- tures, sites and neighborhoods in your community have merit as a result of their historical or cultural associations, arch- itectural features or archeological qualities. Once this is determined, you will work with property owners and other branches of your government in exercising your regulatory powers for the benefit of the community at large. Altouugh you will be administering the provisions of a municipal law, you will devote a great deal of time to persuading people that preservation is a realistic approach to solving problems. Historic preservation commissions often bring into government service persons who previously have not been involved in public service. The recruitment of new faces can be a strength discus- sed with the mayor making the appointments. At the same time, preservationists ought to find and suggest for commission service at least one person who has government experience, is sympathetic to their program and can guide the commission through some of the complexities of working with other municipal departments or employees. This commission might be the retired head of a munic- ipal department. In larger cities your commission works closely with an experienced city staff member, and you have the benefit of other commissioners ' experience to draw on. In smaller communities, you must find some- one who can help with the paperwork related preservation law. There is a danger that these requirements may be overlooked. You may anticipate being aided by interested menbers of the press and of the general public, who may bring historic preservation concerns -of-:their own to your. attention. While there may be_ a shortage of experts in your city, there is no shortage of opinions on historic preservation. You will be able to draw on the expertise of specialists and preservation professionals in your state and across the country, as well as the very considerable literature on historic preservation--including local surveys, preservation plans, legal guides, design guides, historical accounts and a broad variety of books on many aspects of preservation. State historic preservation offices are increasing the help they provide to local governments. Their office is a good place to start when you need material for your commission. A commissioner brings to his job a lifetime of experience, and this knowledge should help him in his work. But he must be able to decide each question on the facts of that matter, such as the evidence on whether an area qualifies as a historic district, or whether a property owner is entitled to relief under the terms of the local ordinance. While evidence is still being submitted to a commission, its members ought to reserve judgment and limit their public and private remarks. As a commissioner you will be involved in a survey of the city's historic buildings and areas. Major survey work may already have been done, but each year the members of the commission should examine the information about their community's historic resources to keep it up to date. The commission will need to go beyond inventories that were completed several years ago and identify additional historic buildings. At an early point commissioners are expected to prepare a plan for the preservation of the city's historic buildings. When you become a member of the commission, a preservation plan may exist. It will be important to discuss the ideas contained in the preservation plan and to relate them to the city's comprehensive plan. You may be able to make suggestions that will strengthen the city's role in preserving historic buildings. Many persons think of preservation commissions in terms of the work they do recommending the designation of historic districts and landmarks. Commissioners also are involved in carrying out the procedures contained in local ordinances. While doing this work, remember the reason for this responsibility. Each city should identify the buildings and areas worth preserving. It is an argument you may want to use. Once the city council has designated a property or area, its owner will need permission to alter the exterior of that property, or move or demolish it. Under the local law the identification process leads to the procedures for protection. • The certificate of appropriateness comes from your commission and an owner of a historically designated property must have it before going to other arms of the local government for construc- tion or other permits. The owner will work with a preservation commission and listen to the ideas of the members of the board because of this requirement. Through the certificate of appropriateness mechanism, preservation commissions have in - effective way of reviewing changes that are proposed for historic properties. 1-zto Consideration of granting a certificate of appropriateness will involve design review. Through the use of standards, guidelines and historical photographs, commissioners are able to handle this responsibility. Before there was a local preservation law, many owners did not consider the historical features of their buildings when making changes. The final appearance was often the result of last-minute solutions to problems that were not discussed until construction started. This casual approach was especially true when new store fronts were installed. Not all the commissioners should be experts; indeed a commission composed solely of experts may be criticized as not representa- tive of the community and presenting a narrow viewpoint. However, the decisions of the commission are entitled to respect (and deference from a court) as the work of a board making knowledge- able judgments in a specialized field. The commission needs to include some expert members, when they are available. As a local preservation program develops, all the commissioners will increase their skills in this specialized field. Of course, property owners will sometimes have the objective of • demolishing their buildings. As a commissioner, you will feel the pressure to save a designated building when the permission to demolish is requested. In many cities, the certificate of appropriateness that authorizes demolition cannot be denied outright. However, under local laws some commissions may delay the demolition for periods up to 180 days, or for an even longer period. This allows time to explore solutions other than demolition. Even though the time is limited, this type of provision is a major improvement over past practices when owners were given demolition permits with no questions being asked. What has been said about impartiality does notmean that a commission cannot search for ways to save a building threatened with demolition. A commissioner at the same time must listen without prejudice to an owner who follows the provisions of the ordinance and presents a case for the demolition of a building. In your role as a historic preservation commissioner, you have a constituency that is one of the more demanding of any public servant in the country. Once a local preservation ordinance is passed, the public will expect results. In one sense, your work addresses the past generations of your community, because the value of their achievements is what you must constantly judge. In another sense, you yourself will be judged by posterity as well ; a decision may well result in the destruction of irreplaceable properties and sites. There may be no alternative- - after the application has been studied. The historic continuity of a community cannot be reassembled once it is gone, nor adequately substituted for with a brass plaque. -2'7 • On the other hand, you cannot choke the growth of your city. The developers and commercial interests of your community have made significant investments in the city, as have the owners of private homes. Their rights and plans must be carefully weighed throughout the decision-making process. You are hardly alone in bearing such a responsibility. You share it with the members of approximately 1,000 other commissions. Most of these commissions average five to seven members, which means that more than 5,000 historic preservation commissioners nationwide wrestle with these often-difficult issues. • Reprinted from: Preserving Historic Districts: A Training Manual for Historic Preservation Commissions; by Charles Freund and Frank Gilbert, National Trust for Historic Preservation, 1986. • I--2,� 1-13 Historic Preservation in Florida The Benefits of a Historic Preservation Ordinance Bureau of Historic Preservation R. A.Gray Building (904) 487-2333 500 South Bronough Street FAX (904) 922-0496 Tallahassee,Florida 32399-0250 http://www.dos.state.fl.us/heritage.html • Foster civic pride in the architectural and historical character of the community. • Stabilize and improve property values and tax revenues. • Encourage investment and revitalization in downtowns and residential neighborhoods. • Attract and stimulate businesses and industries,creating new jobs. • Enhance attractions for visitors and tourists. • Strengthen the local economy. • • Protect the community's cultural heritage. • Provide protection for historic resources through design guidelines and review. • Provide financial assistance for eligible projects. • Maintain and improve the quality of life. Florida Department of State,Sandra B. Mortham,Secretary of State COMPONENTS OF A LOCAL PRESERVATION PROGRAM 1-19 OR WHAT HISTORIC PRESERVATION COMMISSIONS DO 1. START WITH A SURVEY (Identification, Recordation) 2. DEVELOP AN INVENTORY (Documentation, Curation) 3. PROTECT AND MANAGE THE CULTURAL RESOURCE BASE (Evaluation, Protection, Management) 4. CONTINUE TO PROTECT AND MANAGE THE CULTURAL RESOURCE BASE (Rehabilitation, Restoration, Stabilization, Maintenance, Reconstruction) 5. INVOLVE THE PUBLIC (Education, Technical Assistance, Public Relations) 6 WHAT HISTORIC PRESERVATION COMMISSIONS DO 2. DEVELOP AN INVENTORY (Documentation, Curatlon) WHAT KINDS OF SURVEY RECORDS SHOULD BE KEPT? Developing an inventory means to process and merge the survey resutts. The inventory is made up of results from the surveys that have been done in the community or county. tt is very important to maintain records about what kind or survey you did, and about any variations there may have been in the methods used in different parts of the area surveyed. If such records are not kept, future users of the survey results may assume that a given area was, for example, subjected to an intensive survey when in fact it there was only a reconnaissance survey done, or that it was subjected to architectural survey when only archeological sites were sought. If the survey resutts are misinterpreted (in connection with planning a construction or land-use project), historic properties can be unnecessarily destroyed. On the other hand, if good records are not kept, future users may not be able to figure out which areas have and have not been surveyed, and may spend unnecessary time and money on further survey. READINGS: Historic Preservation in Iowa: A Handbook for Communities Chapters 1 & 2 Local Preservation: Questions and Answers about Historic Properties Survey Local Preservation: Is there Archeology in Your Community? SAMPLES: maces snra Site Inventory Form Iowa Site Record 8 WHAT HISTORIC PRESERVATION COMMISSIONS DO (Establish a Record Keeping System) lElach Certified Local Government's Historic Preservation Commission should maintain a record of its work. These records should be kept in a location where they are protected but still accessible to the public, for example, in city hall or the county courthouse. Below is an example of the filing -system a commission could use to organize its records and the kinds of documents the commission should save. 1. -Certification: a. Application materials such as the letter applying for CLG status, resolution or ordinance, historic property inventory, preservation plan, list of original commissioners, vitae or biographical sketches of commissioners, disclaimer letter If there are no preservation profession& on the first commission. b. Certification Agreement between local government and the State. c. Letter from the National Park Service confirming CLG status. 2. Commissioners: a Documentation of commissioner recruitment process b. Commissioners' vitae and biographical sketches 3. Administrative Records: a. Correspondence b. Reports c. Commission meeting such as notification/announcements, agendas, minutes d. Reviews for National Register nominations and HRDP grant applications i. Annual Reports: 5. Grants a. Applications b. Project file for each grant awarded 6. Inventory: a. Survey and evaluation—field notes and related material, final reports b. Historic Properties—completed forms for each property; Iowa Site inventory for buildings, structures, objects; Office of State Archeology Site form for all archeology sites c. National Register—nomination forms, correspondence from SHSI on properties determined eligible to be listed d. Completed local historic landmark and local historic district nomination forms e. Section 106 Review& Compliance—reports and other materials resulting from impact review of federal undertakings on historic properties. 7. Local Designation and Design Review: a. Applications for Certificate of Appropriateness b. Minutes IADINGS: -storic Preservation in Iowa: A Handbook for Communities Chapter 4 9 WHAT HISTORIC PRESERVATION COMMISSIONS DO 3.PROTECT AND MANAGE THE CULTURAL RESOURCE BASE (Evaluation, Protection, Management) VALUATION—Determining What Is Significant Existing examples of a property type must be evaluated to determine their historical significance. Not all surveyed sites are of the same importance. In many instances-a choice must be made between the preservation of one property and the preservation of another. tt is therefore necessary to rate the sites identified in the survey. The task of evaluating should be carried out by those familiar with the results of the survey in combination with professionals in history and architectural history. Recognized, published criteria—such as National Register criteria—should be used. It is advisable to evaluate historic districts, not only for possible inclusion on the National Register but because a local government must have sufficient information on the contributory value of each standing structure. The CLG must be able to understand the relationship of structures to one another, to estimate the impact of proposed projects, to make long-range plans, and to administer the area. Because every structure within a area is part of the visual, historical picture, every structure must be evaluated. • Once the historic properties have been identified, considered and ranked, the next step is nomination of the properties to the National Register of Historic Places. National Register listing gives status and recognition to properties in the community. National Register listing also qualifies properties for financial incentives offered at both the Federal and State level. In addition, a National Register listing offers a measure of protection to properties, since their importance has been officially recognized. I ROTECTION MEASURES: • FEDERAL MEASURES: National Register Listing: Section 106 Review & Compliance: LOCAL MEASURES: Local Districts and Landmarks: Advisory and Regulatory Functions: Design Review: READINGS: Local Preservation: What are National Register Criteria? Preservation: What is Section 106 Review? Citizen's Guide to Protecting Historic Places: Local Preservation Ordinances -istonc Preservation in Iowa: A Handbook for Communities Introduction, Chapter 1 & 5 10 WHAT HISTORIC PRESERVATION COMMISSIONS DO 4. PROTECT AND MANAGE THE CULTURAL RESOURCE BASE CONTINUED (Rehabilitation, Restoration, Stabilization, Maintenance, Reconstruction) Once the important historic properties in the community have been identified and evaluated, then the CLG must ensure that those properties receive proper care and maintenance. That involves working with individuals within the community and officials at the State Historical Society to make technical assistance and preservation information available. Without following the proper techniques for caring for a property irreparable damage can be done to that property. Proper preservation is just a matter of taking the time to learn how to preserve properly and applying a few principles. The Secretary of the Interior has established standards for historic preservation projects. The Standards and Guidelines provide direction in what to avoid and what practices to adopt in order to do the most effective protection of the resources. LOCAL INCENTIVES TO ENCOURAGE PRESERVATION: Regulatory Relief (parking exemptions, building codes requirements): Zoning Incentives (transfer of development rights, zoning variances): Tax Incentives (property, sales) STATE INCENTIVES TO ENCOURAGE PRESERVATION: Technical Assistance (information & training): Financial Assistance (HRDP, PTE, LIFT) READINGS: sconsin Preservation Information: Benefits of Local Historic Preservation Ordinances -ISI Financial Incentives for Historic Preservation Historic Preservation In Iowa: A Handbook for Communities Chapters 3 & 6 11 WHAT HISTORIC PRESERVATION COMMISSIONS DO 4. INVOLVE THE PUBLIC (Education & Public Relations) WHO? WHY? WHEN? Do it before a crisis occurs and you need public support to protect an important resource HOW? Meetings: Workshops: Media Relations: Classroom Teachers: Volunteer Assistance: Technical Assistance: Other: 12 WHAT HISTORIC PRESERVATION COMMISSIONS DO 1. START WITH A SURVEY (Identification, Recordation) THAT IS A SURVEY? A historic properties survey is a study designed to identify and evaluate properties in an area such as a community, a neighborhood, a rural area and so on. The purpose of the survey is to determine whether properties may be of historic, architectural, archeological, engineering, or cultural significance. WHY DO A SURVEY? Perhaps the foremost reason for doing a survey is to know where historic properties are so that their protection and improvement can be considered in planning new projects and use of the land. A second reason is to increase public understanding of, and interest in, an area's history and historic properties, through publication or other use of the information in the survey itself. A third reason for doing a survey is to identify properties whose owners may be eligible for various kinds of Federal, State, and Local Assistance if they want to restore, preserve, or rehabilitate them. A fourth reason is to provide a data base for research in history or prehistory. HOW IS A SURVEY DONE? WHO DOES THE SURVEY? wvels of Intensity Commission Members: Intensive: Public (volunteers): Reconnaissance: Consultants: Combination: Federally-Assisted: Kinds or Scale Combinations: Predictive: WHEN SHOULD A SURVEY BE DONE? Windshield: Planning for Preservation Thematic: (reconnaissance): Oral History: Targeted Areas or Thematic (intensive): Intensive Architectural: On-Going Intensive Archeological: (individual property and surveyor): Combinations: 7 LOCAL PRESERVATION 1-26 PUBLIC RELATIONS A positive image is an important factor in the commission's achieving the confidence and support of the municipal government and the community at large. Commission members should always keep this in mind and strive for professionalism by being well informed on local issues, including planning and development, and by operating in a fair and consistent manner. It is also essential to continuously illustrate the value of the commission's work through media coverage.and educational projects. In view of the need for frequent contact with local officials, as well as the general public and the press, the commission chairman should be someone who relates well to a variety of people. The establishment of good will can not only make the commission's job easier, but it will create a broad base of support which will be invaluable when controversial issues arise. Relationship with City Government: Once appointed to a commission, it should be a commissioner's objective to familiarize himself with the operation of the municipal government. Commissioners work directly with the planning board and the building code official, and they also interact with the mayor, council. zoning board of adjustment, and the members of other boards • and departments. , Unlike commission members, many of these officials are not commited to preservation goals, and some may actually be opposed to preservation, or at least to a regulatory ordinance. Therefore, the commission will have to educate these officials by making them aware of their operating procedure and the benefits of historic preservation. One commission task may be the preparation of a preservation element for the municipal master plan. As it is prepared, it will be necessary to review other plan elements. Of course, one reason for the review is to avoid conflict, whether by modifying the proposed preservation element, or by recommending amendments to existing elements. However, another reason for the review should be to familiarize the commission with other community priorities. Master plans are just a guide and, as such, are subject to change. Therefore, it is advisable to meet regularly with local officials to discuss preservation goals relative to other community goals. These periodic conferences will help establish a good working relationship with fellow public servants, one that will facilitate the smooth operation of 5-5? the commission. In addition to the officials mentioned above, it is also desirable to meet with the fire chief, community development staff, the housing authority and health department staff. The larger the municipality, the more agencies there are that will be involved with or affected by the work of the commission. As soon as they are available, copies of the preservation plan element, the ordinance, the commission meeting schedule and rules of procedure, and any brochures prepared by the commission should be given to all officials. In all conferences and meetings with officials, the commission should be open about possible problems which may affect the governing body and other boards and have suggestions about how they might be resolved. There is nothing worse for a politician than to be taken by surprise by a situation. Officials must be kept abreast of commission decisions and potential problems. Commission members should be aware of areas of possible conflict between various municipal ordinances and should should work with officials in order to resolve them. One problem might arise when elements of an existing zoning ordinance are adverse to preservation. An example might be an ordinance which allows buildings that are larger than the average historic property, thus contributing to inconsistency or an incentive to demolish and rebuild. Another might be an incompatible setback requirement for new construction, one that allows parking in the front of a building. Apart from official meetings and conferences, it is beneficial to establish a friendly relationship with public officials. This can be accomplished by as small an act as taking the building inspector or a planning board member out for a cup of coffee when there is absolutely nothing you want from him. A good relationship is also engendered by being genuinely interested in his department or sphere of influence, problems, function, etc. , and by giving him support whenever podsible. This kind of outreach is worth the effort and it will contribute to making the commission and its operation an integral part of the local government. Part of the initial thrust of establishing good relations should be to show public officials examples of how preservation efforts and controls have contributed to the revitalization and stability of other similar communities. This can be accomplished through the use o newspaper 5—Lip clippings, reports, testimonial letters from municipal officials, and field trips (Seeing is believing!) . Finally, it is always good politics to involve local officials in the "glory" of preservation, even if they have made little or no contribution to the success. For example, if a property or district has been designated, invite the district council representative and the mayor to participate in a plaque placing ceremony and make sure that their pictures get into the newspaper. It is a fact of life that . if the work of the commission brings good publicity to a politician, he is likely to give the commission his support. State Government The municipal' historic commission receives its authority from the local governing body. Therefore, it does not interact directly with the State Legislature. However, it is important to keep in mind that the municipality receives its authority to govern from the State and that indirectly the State Legislature can be of assistance to the local historic preservation commission. For example, if the Municipal Land Use Law amendments regarding historic preservation do not adequately address the preservation goals of communities, municipal government will look to the Legislature for new enactments. Also, there are limits to municipal spending; however, the state has extensive financial resources. Therefore, municipalities may look to state legislators for special bills which will fund preservation projects. State legislators,. who maintain offices in local districts, can be a source of help for preservationists. In order to make a case for preservation, one should be able to succinctly inform his legislator of the value of historic/ architectural resources to the community and• to other • communities throughout the district. Of couse, the protection of cultural values is important, but preservation can also enhance economic development, increase the local tax base, and provide jobs. It is always in a commission's best interest to keep the legislator informed of both progress and problems in the area of preservation and to establish a relationship which includes concern regarding the legislator's own areas of interest as well. THE MEDIA The newspaper is an important medium of communication that should not be overlooked. It can provide coverage of 0 commission successes, progress in designation and administration that will contribute to the credibility of the commission. It can also be used to educate the public and alert them to possible threats to specific properties or to the historic character of the community as a whole. It can also be used to provide notice and results of hearings and meetings and to publicize special events such as workshops and tours. Because of the service a newspaper can provide, a historic preservation commission should cultivate a good relationship with the press. If a commission can supply, a reporter with accurate, timely material, they will be helping him as well as gaining valuable publicity. Reporters are• usually receptive to stories about preservation since they are always looking for fresh material that deals with a subject of interest to a large segment of the population. The combination of real estate, government regulation, and historic landmarks makes headlines and, generally, reporters like preservation- related stories. Encouraging Press Coverage: The responsibility to arrange for press attendance at commission meetings belongs to the chairman, who is also the commission spokesman. However, one commission member can be appointed liaison to the press for all but major matters. This person should be someone who is articulate, writes well, and can be counted on to think before he speaks. In general, the commission should make sure that reporters have easy access to commission records and that the chairman and liaison to the press are available to answer the questions of reporters, who usually want information quickly. Press inquiries come suddenly, and a commission spokesman often does not have much time to consider his answer. It is usually possible to ask the reporter if his call can be returned in fifteen minutes. The brief delay will allow time to think about a reply. When a reply is made, only factual information should be given and at no time should • S-42_ • District Property Owners and the General Public Good public relations rests primarily on such things as public participation, education, fairness, and a genuine concern for the individual. Public participation should begin with the survey of historic sites. If the commission solicits survey volunteers from a variety of professional. occupational, ethnic, and civic groups, the support base for preservation will be broadened and strengthened. Public participation should continue throughout the process of enacting the ordinance and designating local districts and landmarks. At all times it should be remembered that there are many who do not value preservation goals. Members of lower income groups have often been forced to live in older housing that is substandard and in need of repair and modernization. They, and many others, equate "new" and "better". Therefore, the commission will have to prove that they can benefit from historic preservation and that it is no more expensive to repair and replace the original fabric of a building than it is to apply a synthetic material. In working with those who do have limited financial resources, it is essential to be understanding and sympathetic without being condescending. Commi,ssions must avoid the image of being servants to upper middle class goals and values, since they have been pharged with the responsibility of protecting the historic resources for the enhancement and benefit of the entire community. Education and the personal touch are valuable tools for making friends of the members of varied interest groups. Letters and brochures explaining the ordinance and design standards should be mailed to all property owners as a matter of course. However, other educational programs.such as talks and workshops on historic architecture, maintenance and repair techniques, and appropriate paint colors can generate compliance and support. Most valuable is the availability of a staff person or a commission member for one-on-one contact with the public on a daily basis. The staff person, in addition to giving advice and helping to solve problems, can keep in touch with neighborhood and community concerns. Some suggestions for educating the public and promoting preservation follow: 5-�13 Educational Tools: Notification letter: A letter mailed to owners of property in designated or potential districts which gives information on the ordinance, the commission, and its operation, and the district; letter may also outline the benefits of preservation to the municipality and property • owners. Summary sheet: A sheet, available at the public library and other public buildings, which summarizes the ordinance, the commission's function, and the benefits of preservation. Design and Rehabilitation A free brochure, mailed to Brochure: owners of property within districts and available to the general public, which outlines and illustrates the design and rehabilitation guidelines for historic districts and the permit application procedure. Historic signs and markers: Signs and plaques which identify districts and buildings and generate recognition and pride; sometimes sold by local historical society or civic group. Preservation workshops: Workshops sponsored by the commission, historical society, or neighborhood association that address topics such as: 1. the local ordinance, the commission, and the review procedure. 2. architectural styles. 3. rehabilitation techniques. 5-44 1-32 PUBLIC RELATIONS FOR HISTORIC PRESERVATION COMMISSIONS GUIDELINES FOR PUBLIC TALKS • 1. Contact local Chamber of Commerce or a similar group to get a list of civic groups and organizations in your area. 2. Make a slide show using pictures of local historic districts and sites (a local survey is a good source for this material). 3. Discuss architectural styles and areas of the community worthy of preservation. 4. Always make the talk positive in spirit-never negative. 5. Leave out preservation jargon if possible,but if you use it define the terms. 6. Talks should aim to educate and not simply be a guided historic tour of the community. 7. Show details of local buildings. Teach your audience to"look up." 8. Have a strong single message aimed especially to your audience. For example, "Economic Benefits of Historic Districts for Real Estate Professionals." 9. Use BEFORE and AF1 hR photographs. Show the positive projects that the commission and property owners have,successfully completed in the community. 10. Take the opportunity to let them know more about the commission,who you are and what you do. Also let them know how to reach you. 11. Distribute commission brochures that explain more about how you work in the community and what the process is. 12. Remember always that you represent the commission and do not get involved in discussions about policy decisions and personalities. Be professional. GEORGIA ALLIANCE OF PRESERVATION COMMISSIONS School of Environmental Design • 609 Caldwell Hall • Athens, Georgia 30602 1-33 The ALLIANCE REVIEW: NEWS from the NATIONAL ALLIANCE of PRESERVATION COMMISSIONS SPRING 1994 How To CONDUCT A PRESERVATION COMMISSION MEETING by James K.Reap THE DRAMA'S LAWS THE DRAMA'S PATRONS GIVE. FOR WE THAT LIVE TO PLEASE MUST PLEASE TO LIVE. Samuel Johnson f all meetings are theater,as George David Kieffer insists in his book The Strategy of : , Meetings, then preservation commission �'- members and their staffs must learn to be effective producers,directors,script writers,and +: actors to ensure their production is successful and ` . .. ;- -• ,� • I •••\ their objectives are met. It is largely through the ►`- < `'' conduct of public meetings and hearings that a `�` '--`' I '" community's perception of thepreservation corn- f 0�y ; ( 1 P P �� �� J :,r �.� . mission is formed,and their public image will help - Ij ,: , + , determine their ultimate success or failure. It is (}`/. f also at these meetingsthat commissions may be '4• mibl . .y. , most vulnerable to procedural missteps which .. ,• �, �1�� i� may render their decisions, regardless of their '` I, merits,null and void when challenged in court. �-- / Imo , 1 Communication is essential in meetings,and the"theater"can either enhance or undermine the verbal message. Everything we do communicates something—where we meet,how the room is arranged, what we wear,our tone of voice,body language,punctuality,and attitude,what we give most attention to, and how we treat others. Since we can't eliminate these messages, we should turn them to our advantage. Think about the image you want to project and the impressions,such as disorganization and arbitrariness, you want to avoid. With proper preparation,active participation,and attention to detail we can be effective communicators and accomplish our purposes within the requirements of the law. . In preparing for your role,you need to be familiar with the laws,rules and procedures under which you operate.Know the relevant provisions of the state constitution and statutes,the local ordinance, and the commission's bylaws,rules of procedure and design guidelines.We can learn from others by taking advantage of conferences and workshops on historic preservation law and commission operation. Observe and critique meetings of other boards such as planning and zoning commissions as well as other preservation commissions. You can even evaluate your performance by viewing a video tape of one of your own meetings and by surveying your audiences. Every production needs a script, and yours is the agenda. A good agenda helps members come prepared and stay focused during the meeting.Some common elements include:the name of the group, Continued on page 3,column 2 SPRING 1994 on their state offices for assistance.While the state office Continued from page I should be the first point of contact for a local commission, title of the meeting, date, place, starting and ending it should not be the only recourse.In a case where a state times, the chair,items to be considered and those re- lacks enthusiasm about the CLG program,or lacks the sponsible,and references to background materials.It's skills to effectively manage it,the program can founder. helpful to identify those items which require action and The same is true for CLG coordinators in the state offices. those which are for discussion only. Action items are These personnel need continuing training and technical generally listed first,followed by other issues in order assistance,with a national perspective,to enable them to of their urgency. Distributing the agenda and back- do their jobs and serve their local customers more effec- ground materials ahead of time helps participants learn tively.Local governments and their motivated state coor- their parts.Whenever possible,members should pre- dinators therefore need a single point to call for help and pare by going"on location" to get a firsthand view of that point should be in Washington. the properties which will be discussed in the meeting. At the Performance Review,we discussed the need for It's crucial to develop rules of procedure and supple- local governments and their state CLG coordinators to ment them with standardized parliamentary proce- create avenues of communication where they may learn dures such as Robert's Rules of Order.Like the agenda, about the successes of local government programs in the rules help the group remain in control of its own other states and regions.If ParkServicestafftimeassisting 'processes and eliminate contusion.Operating a meet- the CLG program is removed,no logical point of informs- ing without them would be like playing baseball with- tion will remain.CLGs need one phone number they can out rules. There is a danger, however, that misused call for help for issues that go beyond the resources of the parliamentary procedure can block creative thought state. and interchange of ideas.The chair must make the right decision on the degree of formality required at any Why is the CLG program important?First,10%of each given time. state's allocation is given in grants to local governments, primarily for planning and survey work. This money Set the stage properly. The room you choose can en- leverages even more local dollars and in many cases is Nance communication or be a barrier.The space should money that more directly leads to preservation of cultural be neither too big nor too small for the group, and resources than any other. everyone should be able to see and hear what's going on.Pay attention to proper lighting and sound and,if We need a local government advocate in Washington possible, arrange for equipment to tape record the who can work with the state's CLG coordinators to solve proceedings to ensure an adequate permanent record. problems,stream-line accounting and help local govern- While not the only suitable solution, a semicircular ments do what they do best—preserve cultural resources. arrangement for commission members facing others in We need more staff time in Washington dedicated to the attendance is conventional and promotes interaction. CLG program,not less.And we need your help in assur- ing that this support will be there when the new,more The lead role in meetings belongs to the chair.He is the efficient NPS operating structure emerges. production's moderator,whose main job is to facilitate communication. To do this, the chair must know the The preservation program,including the local govern- rules and remain impartial. He should seek contribu- ment component,is one that can be run efficiently with a tions from all participants,make certain minority views smallstaffinWashington.Iurgeyoutoconsidertheneeds are expressed, clarify and summarize issues, help of local governmentsand to structure a national preserva- separate facts from opinions,and keep on the lookout tion program that really works efficiently,not that simply for and diffuse emotional buildups. He should never looks good Ma report about down-sizingand re-structur- permit personal attacks or derogatory comments. ing. When the curtain goes up,make sure you have a strong Sincerely, opening.Begin on time.This is the commission's first test of control and sends a message the meeting will be conducted ina businesslike manner.Start with the right Nore V.Winter attitude and project a sense of confidence.Your audi- Chairman ence will be quick to pick up on nervousness or uncer- National Alliance of Preservation Commissions tainty. Make sure you can be heard and understood. "Speak clearly and avoid using jargon and acronyms which require translation. 3 Historic Preservation in Florida Commission Procedures and Guidelines Bureau of Historic Preservation (850) 487-2333 R. A. Gray Building 1-800-847-7278 500 South Bronough Street FAX (850) 922-0496 Tallahassee,Florida 32399-0250 http//dhr.dos.state.fl.us/ • Always have a printed agenda posted in a public place prior to the beginning of the commission meeting. • Keep accurate minutes and records of all commission activities specifically outlining each case and the reason the application was approved or denied. • Commission members should never speak on behalf of the commission. Advise applicants on"the likelihood of approval" of applications outside of the public hearing. • Require an accurate representation of the applicant's request,sufficient enough to make an informed decision about the case. • Always keep your elected officials and other boards and commissions informed of the role and responsibilities of the preservation commission. • The commission chair should maintain order at all meetings and always allow relevant public comment. • As a commission member,avoid any appearance of a conflict of interest due to personal,social or financial gain in any case. • All commission decisions for designation or certificates of appropriateness must be based only on the review criteria in the ordinance. • All commission decisions must be based on a finding of fact that should be stated as part of the motion to approve or deny the application. • Refer to your preservation ordinance often if your are a commission member;it should be the basis for all actions. Florida Department of State Historic Preservation in Florida 411 Do's and Don'ts for Commission Members Bureau of Historic Preservation (850) 487-2333 R. A. Gray Building 1-800-847-7278 500 South Bronough Street FAX (850) 922-0496 Tallahassee,Florida 32399-0250 http//dhr.dos.state.fl.us/ Do: • Read your community's historic preservation ordinance and refer to it often. Make special note of the purposes of the ordinance. • Be friendly with all applicants and leave them with a good impression of the local government process. • Use the specific criteria outlined in the ordinance for designating districts and/or landmarks when making designations. • Use the design guidelines in the ordinance when making a decision on the appropriateness of a building alteration. • Review each application for as a separate case and apply the ordinance's criteria each time. Do Not: • Apply your idea of what is"pretty" or"in good taste" to decide if a proposed alteration is appropriate. • Require the design of all new buildings,alterations or additions to follow a particular theme or architectural style. • Embarrass the applicant by criticizing his/her application openly in the meeting or in the media. • Turn down an application without giving the applicant specific guidance as to how the application could be improved to meet the criteria of the ordinance. • Be afraid to ask the applicant for more information if the application is incomplete or if there is not enough information to make a decision. Florida Department of State 1-37 STATE HISTORICAL SOCIETY HISTORIC PRESERVATION BUREAU CERTIFIED LOCAL GOVERNMENTS COORDINATOR 515-281-6826 ABOUT COMMISSION BY-LAWS OCTOBER 2, 1992 WHY HAVE BY-LAWS? A commission needs to formalize the way it operates and does business. While the historic preservation ordinance or resolution which established the commission outlines some of its operating procedures, many are not covered. Operating procedures help newly formed commissions or new rosters of commissioners understand what their duties are and how to go about fulfilling the commission's mission. In short, by-laws are a form of insurance that a commission will exist and be operative beyond the tenure of particular commissioners. A CHECK-LIST FOR DEVELOPING BY-LAWS I have outlined some of the procedures and activities that can be covered in by-laws. Use the list as an aid in developing by-laws for your commission. 1. Meetings a. Establish a regular meeting date, time, and place--this will facilitate public access to the commission and lessen confusion among commissioners as to when the next meeting will be. b. Establish a meeting procedure. Determine how commission meetings will be governed, for example, will you follow Robert's Rules. Set up a meeting format, spell out how the commission will deal with old and new business. Clarify who sets the agenda and when minutes will be distributed. c. Establish a procedure for notifying the public about commission meetings. 1 • 2. Commissioners a. Recruitment/vacancies. Check your ordinance/resolution to see if it contains a clause providing for filling vacancies. If it does not, establish a procedure for identifying new commission members. Structure it so that candidates are solicited from groups with an interest and commitment to historic preservation. Make provision for public notice of openings and solicitation of applicants from the public. Develop a commission application form. Have the present Commission review applicants and submit candidates to your city council or board of supervisors for approval. Remember as a CLG, you are committed to trying to obtain preservation professionals (historian, archaeologist, art historian, architect) for the commission. If preservation professionals are not available, then try to get commission members who have the time for commission activities, are willing to work, and have an interest in historic preservation. b. Removal. Check your ordinance to see what provision has been made for removing commissioners from office. If there is none, establish criteria/grounds for recommending removal of a commissioner to your city council/board of supervisors. This section of your by-laws will empower the commission to take action when a commissioner is not working in the best interest of the commission and its mission. For example, you will want to have an attendance regulation and specify the acceptable procedure for getting excused from attending meetings and the number of permissible absences. c. State when and how commission officers are selected. d. Spell out orientation procedures for new commissioners. e. Training. Ideally, you want all commissioners to undergo some form of training in historic preservation during their tenure on the commission. To maintain CLG status, at least one commission representative has to receive historic preservation training during the year. Develop a system whereby your commission will fulfill the training requirement. If only one commissioner is trained during the year, be sure to develop a procedure whereby that individual will share that training with the rest of the commission. f. Responsibilities. For the commission to operate smoothly, individual commissioners will have to assume the following duties: 1) Commission Contact--serves as liaison with the historic preservation bureau's local governments coordinator. Receives mailings from the bureau and distributes this information to the rest of the commission. 2 2) Commission Chair. or President--leads commission meetings, reports to Mayor-City Council or Chairman-Board of Supervisors. 3) Commission Secretary--oversees public notification/announcement of commission meetings, posts agenda, records and files meeting minutes. 4) Other responsibilities—a commissioner or an employee of local government will have to oversee the various records and files accumulated by the • commission. These will include the certification file, announcements of meetings, minutes, grant applications, correspondence, etc. 3. Responsibilities of the Commission. The following responsibilities can be met by assigning each to an individual commissioner or by establishing standing committees: a. Liaison with local government--working with other branches of local government, identifying areas of mutual concern in which the commission can assist the other branches. For example, the commission can use information contained in its inventory to assist in planning the design of capital improvements (streets, sewers, utilities, building construction). Early notification that a project will effect a significant historic property often can result in redesigning the project and saving the property. b. Survey--responsible for survey activity, such as identifying areas or specific properties to examine; organizing and doing the survey. c. Inventory--responsible for maintaining the inventory files which contain site forms, reports, maps, National Register forms etc. d. Public education--inform city or county residents about commission's local historic preservation program, planned activities, National Register program, solicit public input in planning. Responsible for developing public education projects. Could also be responsible for publicizing commission work to general public and the media. e. Planning--Identify at least one meeting a year to be used for planning. At this meeting, the commission will set out its goals for the year. Probably this meeting should be in August or September so that you can include your goals on the annual report. If you do this on an annual basis and at a set time, you can be prepared to take advantage of the CLG, HRDP, Humanities, Arts, and Cultural Affairs grant cycles. 3 f. Optional responsibilities- 1) Public relations--liaison between the commission and various local history groups, reporting commission activities to those groups and soliciting their ideas and support. 2) REAP—designate one commissioner as the Resource Enhancement And Protection (REAP) representative. This is the state program that funds the Historic Resource Development Program (HRDP) grants. Each year in February and March, there are 19 REAP assemblies throughout the state. The assemblies are forums for the public to provide comment on the REAP program and identify problems, concerns, and priorities. Each assembly selects representatives from that region who attend the REAP congress in the summer. The Congress develops recommendations for the legislature regarding REAP. In addition, each county has a REAP committee. These are policy makers for the county. The Department of Natural Resources REAP coordinator, Kevin Szcodronski at (515) 281-8674 would be happy to provide you with more information on the REAP policy making organizations and how the your commission can get involved. 4. Designation and Design Review If your commission is empowered to do designation and design review by your ordinance, then you have to follow the specifications in the ordinance. Municipal commissions that are not empowered to do local designation and design review, should consider establishing a design review committee. The committee would function in reviewing any LIFT applications and would provide the commission with basic training and education in the process. If you are a Main Street community, design review is an area where Main Street and the commission can join forces. The committee could include members of the Main Street Design Committee. 5. Advisory Board. Some commissions have established advisory boards of volunteer workers or of representatives from various historic organizations. These boards assist the commission in projects and provide the commission with feedback from their respective groups. If you wish to establish commission subcommittees (see item 3 above), advisory board members could serve on these. 6. Conflict of interest. Federal regulations require that public employees do not abuse the public trust inherent in their employment. Conflict of interest arises when you, a member of your family, your employer or someone associated with you in your business may have a 4 • financial interest in a matter under discussion by the commission. Generally, to avoid conflict of interest, you must disclose your potential conflict to the commission and refrain from any participation in the matter including discussion and voting. 7. Principal Office. State where commission records are to be kept. Commission records include your certification file (materials submitted in application for CLG status and the letter from the National Park Service notifying you of certification), your ordinance/resolution, reviews of National Register Nominations, annual reports, grant applications, commission applications, project reports, records of special activities, minutes, inventory, etc. Since the commission is part of local government, your records should not be kept in someone's home. They should be in a location that is safe; accessible to the commission, public, and other branches of local government; but controlled so that there is no loss of records. 8. Budget and Finance. Check with your government's chief fiscal officer to determine if the commission can have its own account. If the commission does fund raising, you may want to establish your own account. What you need to determine is whether this account should be handled by the government's fiscal office or whether the commission can handle it. For grants and contracts, e.g. CLG grants, the local government's fiscal office should do all of the book-keeping and accounting so that the records meet state and federal standards. This also safeguards commissioners from liability in regard to the handling of funds. The commission should keep track of any "out-of-pocket" expenses incurred. At the end of the local government's fiscal year, tally-up these expenses and prepare a budget request to submit to your local government. You might want to establish a date or month during which the budget will be prepared. 5 • SAMPLE BY-LAW FORMAT AND CONTENT BY-LAWS HISTORIC PRESERVATION COMMISSION NAME OF CITY OR COUNTY ARTICLE I OFFICE Section 1.01. Principal Office. This should be the county courthouse or city hall. The local government's official mailing address should be yours. Finally, this is where your records should be kept. ARTICLE II HISTORIC PRESERVATION COMMISSION Section 2.01. Appointment of Commission. Check your ordinance/resolution. Section 3 generally deals with commission appointments. You cannot deviate from the ordinance/resolution; but you can amplify, the commission's role in recruitment and presenting the Board of Supervisors/Mayor-City Council with a list of candidates. Section 2.02. Number, Tenure, and Qualifications. Generally, the basics are generally spelled out in Section 3 of your ordinance/resolution, e.g. number of commissioners, length of terms. If qualifications are not spelled out, then spell them out in your by-laws. This will give you an opportunity to include the CLG requirements and also to i identify segments of your community that you feel should be represented on the commission, or its advisory board. Section 2.03. General Powers. Section 4 of your ordinance/resolution specifies your general powers, in the by-laws you can flesh these out in terms of areas in which the commission should work. The required areas--survey, evaluation, nomination, public education, local designation, pre-development as well as enforcing your resolution/ordinance to insure preservation and protection of properties. Section 2.04. Compensation. Commissioners shall not receive any compensation (salary) for their service as commissioners. You might want to clarify this so that your commission can be reimbursed for expenses related to conducting commission business, e.g. travel to training workshops, CLG conference. 7 Section 2.05. Removal from Office. Read your ordinance/resolution to see if it deals with removal from the commission. If not, this is your opportunity to spell out the process to be followed if a commissioner is to be removed. Section 2.06. Commission Training. Remember to maintain your CLG status, each year at least one commissioner must participate in state sponsored or approved historic preservation training. This is a minimal requirement. Ideally, all commissioners, at some point during their tenure, should be trained. Section 2.07. Commission Orientation. Some commissions possess the three volume set, Historic Preservation In Iowa. All certified historic preservation commissions in Iowa should have enough copies of the smaller, commissioner notebook (also called Historic Preservation Iowa). A suggestion for new commissioner orientation, have the new commissioner read your resolution/ordination; by-laws; and the commissioner notebook. ARTICLE III OFFICERS Section 3.01. Officers. In most ordinances/resolutions, Section 3 specifies the names and number of officers. Include these in this section and additional ones, if needed. Section 3.02. Election and Term of Office. Specify when commission officers will be selected, how they will be selected, and the length of their terms of office. Section 3.03. Removal Specify process for removing officers. Section 3.04. Vacancies. Specify process for filling a vacancy in a commission office. Section 3.05 Chair/President. Specify duties of this office. For example, supervise and control all business and affairs of commission, preside over meetings, reports to Board of Supervisors/Mayor-City Council. Section 3.06 Secretary. • Specify duties of this office. For example, keeps minutes, prepares annual CLG report, maintains commission files. Spell out the duties and responsibilities of all of the officers. Others might be Vice Chair/President, Treasurer. In spelling out the duties, this is where you would include responsibilities such as liaison with other parts of local government; handling of files and inventory, grant preparation and fund solicitation. 8 ARTICLE IV COMMITTEES Section 4.01 Committees. Name the standing committees of the commission, e.g. public education, survey, planning, design review (if this is done on a formal basis the entire commission should be involved), inventory, fund raising, etc. Section 4.02 Duties of Each Committee. • Spell out the responsibilities of each committee. If this seems to cumbersome, then identify these as roles for commission members who are not officers. Your main objective is to see that the commission understands the scope of their responsibilities and how each responsibility is to be handled by the commission. Section 4.03. Committee Chairman. Ideally, these would be commission members. Specify process for selecting commission chairman, term of office. Section 4.04. Committee Meetings. Lay some ground rules for committee meetings, who is responsible for calling them, where they will meet, frequency of meetings. Section 4.05. Committee Members. If you wish to have public help and involvement, you can spell out a process for getting the public to serve on various commission committees. How are they to be appointed, term of office, what is expected of them. Formalizing responsibilities like this will help in recruiting volunteers because you can indicate what is needed and the time involved. ARTICLE V COMMISSION MEETINGS Section 5.01. Notice. Specify the procedures the commission will use to notify the public of its meetings. Section 5.02. Meetings. Day, time, and location of regular commission meetings. For example, third monday of each month, at 7 pm, in the city council chambers. Section 5.03. Agenda. Identify who will establish the agenda and where it will be posted. Section 5.04. Quorum. Generally Section 3 of the ordinance/resolution specifies the quorum needed to conduct official business. If it does not, specify what a quorum will be. Section 5.04. Order of Business. Specify your meeting format for regular and special meetings. • Section 5.05. Parliamentary Procedure. Rules that you will be using to govern commission meetings. If ever, you have to handle "hot" issues, these rules will be essential. If your resolution or ordinance does not state this, indicate how commission decisions will be made, e.g. by a simple majority. ARTICLE VI REPEAL OR AMENDMENT OF BY-LAWS Section 6.01 Repeal or Amendment of By-Laws. Spell out when and how the by-laws can be changed. For example, the by- laws can be repealed or amended by a majority vote of the commissioners at any regular meeting of the commission or at any special meeting called for such purpose at which a quorum is present. ARTICLE VII CONFLICT OF INTEREST Section 7.01 Conflict of Interest The following is adapted from wording in CLG contracts, I recommend adopting it: No officer, employee or advisor of the local government, including a member of the Historic Preservation Commission, shall participate in any decisions relating to a contract which affect his/her personal interest or the interest of any corporation, partnership or association in which he/she is directly or indirectly interested or have any interest, direct or indirect. A person has a conflict of interest with respect to a subgrant, contract, subcontract, or any agreement supported with Historic Preservation Bureau/State Historical Society assistance if the person or any of the following has a financial interest in that application. This would include: 1. The person, the person's spouse, minor child, or partner; 2. Any organization in which the person is serving as an officer, director, trustee, partner or employee or; 3. Any person or organization with whom the person is negotiating or has any arrangements concerning prospective employment. Benefit of remuneration other than a fee in accordance with applicable statewide procedures includes, without exception, royalty, commission, contingent fee, professional services contract, brokerage fee, other payment accruing to the person or any member of his/her immediate family. This is not an inclusive list of Articles. You might want Articles specifying your fiscal year, covering financial matters, design review, local designation, etc. 10 • 1-42 Local Preservation Workshop National Park Service Southeast Region New. Orleans , Louisiana July 14-15, 1987 LOCAL POLITICS and NATIONAL and STATE STANDARDS Ellen Beasley Preservation Planning Consultant Preservation commissions are the most difficult appointed local boards on which to serve. With the exception of the elected bodies, i .e. , City Councils , the commissions are usually t•he least understood , the most controversial , and the most visible of local boards , and their decisions solicit the strongest emotional reactions . Regardless of how many plans , guidelines , and policies are written or how clear-cut the decision-making process becomes, the design review process remains difficult, misunderstood , controversial , visible, and emotional . It is inherent to the process because it is a process that deals with aesthetics, taste, and personal property rights. Inherently, the process is also a reactionary one. Commissions react to plans , designs, and proposals that are brought before them. The commissions can help with conducting surveys, and preparing guidelines and other documents but they cannot design the projects: that is the responsibility of the property owners and the designers. Historic districts and the administration of historic districts represent many layers of people, events, economics , and buildings. I am reminded of this when I look at historic districts (designated both locally and nationally) that have huge vacant areas that resulted from demolitions in the late 1960' s and the 1970' s . But, when casting a critical , disapproving judgment , I must remember that these historic districts, like all historic districts, have a history in themselves . They reflect preservation and planning philosophy (including social planning) as well as methodology at that time. For example , architectural/historical survey methodology gave far greater value to larger, more elaborate buildings associated with prominent families and architects than to smaller vernacular structures that filled out the neighborhoods. The latter , in fact, frequently were considered expendable and even more so if they were late nineteenth century buildings in districts that had a sizable collection of earlier structures . Were these districts to have the benefit of hindsight and what preservation has learned--beginning on the national level--just in the last ten years , these districts would look very different :and the -local preservation - • •• • commissions would be reviewing very different, kinds of applications . • 1-4 . LOCAL POLITICS Ellen Beasley Page 2 When dealing with historic districts on the local level, it is important to learn how preservation generally and the commission specifically have reached their present point in the community . I cannot think of a single instance where there - were not enormous obstacles and opposition to overcome over a long period of time, and in many communities , preservation remains a delicate, vulnerable force even though it may appear to be quite the opposite. Such is the case in my own town of Galveston, Texas , where just a few months ago, preservation activities seemed relatively secure including the functioning of the Historical District Board which has been in existence since 1971 . Suddenly , the April election for City Council has changed that and the next few years appear very rocky indeed. The Certified Local Government program adds another layer to the history, the administration, and yes, the politics of local preservation commissions . Hopefully , representatives of the CLG program who are working with the local communities will remember that the commissions and the districts have a history that precedes CLG involvement. The CLG program can make a positive contribution to local preservation commissions if the SHPOs make and maintain the distinction between serving as supporters not directors of local programs. For example, many communities and commissions know that they do not have an ideal ordinance or one that is as strong as it should be but then, many communities are lucky to have any preservation ordinance at all. Opponents of a local preservation program will jump with glee if a SHPO/CL.G representative publicly attacks an existing ordinance--and I have seen that happen. However , the SHPO/CLG can help by providing resources and contacts, and making public statements when requested but it is the local commission and its local support network that are the best judges of when the timing is right and when and how the political climate will be receptive to a proposed ordinance revision. Many preservation commissions have survived because they have been flexible--which is how many politicians survive. The SHPO/CLG program also needs to maintain a flexibility if it is going to be beneficial . On occasion, the goals of the SHPO/CLG will differ from those on the local level or if the goals do not differ , the political realities of the local scene will require a solution that is other than the preservation ideal . Such was the case when we wrote the design guidelines for the historic districts in Galveston. Neither the board members nor I are very fond of synthetic siding but to disallow it completely was not realistic politically as the board had • learned over -the- -years•. • •what -was -realistic -was to discourage •• • • - the use of synthetic siding but to allow enough flexibility that it could be considered in certain cases and if certain specifications were met. Historic Preservation in Florida Working with Local Government Bureau of Historic Preservation (850) 487-2333 R. A.Gray Building 1-800-847-7278 500 South Bronough Street FAX (850) 922-0496 Tallahassee,Florida 32399-0250 http//dhr.dos.state.fl.us/ • Meet with your Mayor and Council at least once a year and update them on your activities,concerns and problems. • Request that a member of the council be appointed to serve as a liaison with the Preservation Commission. • Get to know the other commissions and boards that serve the community as part of local government,such as the planning commission,zoning appeals, etc. • Print an annual report of the activities of the commission emphasizing success stories and new programs. • Learn how the commission can work with the housing administrator or block grant administrator in your community to integrate preservation with projects serving low- income or elderly individuals. • Meet with your fire inspector to discuss the commission's concerns regarding the protection of historic properties. • Ensure that zoning ordinances,sign ordinances,etc., do not conflict with the design guidelines for landmarks and historic districts. • Meet with the Director of Public Works to ensure that all public improvements in historic districts are reviewed by the commission. • Meet with your city attorney before your commission runs into problems. Ask him/her to attend a meeting and critique it for proper procedural methods. Florida Department of State 1-45 VIII. Working with Other City Government Officials Passing an ordinance that provides for the preservation of designated landmarks and historic districts may be a preservationist ' s dream come true. The public will be relieved once the city has a preservation law. But the ordinance does not, by itself, mean that the preservation effort is complete. The ordinance provides an opportunity for the municipal government to carry out an official preservation program, but some cities have waited for months before appointing the first members of the commission. The wise commissioner will consider the ordinance a first step only; the rest of the city government apparatus must be taken into account . That apparatus should be examined to see not only how well it can be made to work with and for your 87 commission, but also to take care that it is not working against your ordinance. Commissioners need to learn more about the operations of the government and the details of the city government. In San Antonio the historic preservation officer follows city and private construction plans closely. Historic preservation commissions must coordinate their work with the goals being set by other city agencies, such as those responsible for municipal buildings, housing, development, building inspection, fire protection, planning and zoning. Coordination begins by setting up appointments to discuss preservation with the senior city officials. The larger the community , the more important such coordination becomes. More than one preservationist has made the discovery that, having labored to establish control over a given area, the zoning affecting the district is actually an incentive to demolishing it. The right kind of zoning will encourage owners to maintain or rehabilitate their buildings because they are not given zoning that permits larger buildings or commercial uses . Preservationists in Memphis worked to get appropriate zoning to preserve an area of older homes. The state historic preservation offices are increasing their assistance to local commissions, and these boards are receiving technical advice on - handling preservation issues- including rehabilitation methods. Because of the . certified local government program, the state historic preservation offices are encouraging training programs for local preservation commissions. This type of advice and training will help to prepare 88 commissioners for their work inside city government. They will have a better idea of what to look for and what to ask for. It is imperative for commissions to report their plans and schedules to the mayor ' s office and the city council. These officials can provide the foundations for coordination of city policy among many agencies: zoning, housing, building and planning. Conversely, if city officials are pursuing policies at odds with preservation goals, then the commission must be aware of this and must try to improve the situation through conferences . There is no sense in a commission recommending the creation of a historic district if the groundwork for the designation has not been laid with the mayor and the city council . The council will be asked to pass an ordinance creating the district. If it does not act , not only may the buildings be lost , but also the credibility of the commission. Good relations with the mayor and the city council mean that they will be aware of the commission ' s plans to schedule a public hearing on a possible historic district or landmark. The mayor does not want to learn about the hearing from the newspaper, a television station or an angry owner. At an earlier point the mayor and the council should be told that the commission is studying certain buildings and areas that may eventually be recommended for designation. • Preliminary discussions will be held with the planning commission, although these conversations should not mean that the planning commission can veto the preservation commission ' s proposals. 89 Access to the mayor, including regular conversations with the mayor and his staff, will keep the chairman of the commission informed at an early point of development plans that may affect historic buildings. A private developer is likely to be in touch with the mayor even though no government aid is being requested. The more frequent situation is a development project that needs special approvals from the city or a city application for federal money. Early in the process the city government may make decisions or agreements that may be harmful to the preservation of certain historic buildings. At a later point the Advisory Council on Historic Preservation may review the project if federal dollars or help are involved, and if the buildings are listed in or eligible for the National Register. The commission will probably save more buildings if it has influenced the project at the start. Louisville is an example of a city where the preservation program has grown because of the active encouragement of the mayor. The commission has assisted in the rehabilitation of many houses, thus helping to achieve the goals of the city. The mayor has responded by becoming involved in the expansion of the commission' s work. Though many communities have pursued preservation programs without coordinating their preservation designations and zoning - ordinances , the "downzoning" of areas that are designated as historically significant is important. The commission will need allies within the government and in the community. It may not be easy to accomplish, but it is worth the time and effort given to this issue . Other matters may have to be postponed. 90 When a commission takes the initiative on a zoning matter, it is demonstrating that it has become an active part of the city government. The chairman may point out to the planning commission that his board does not want to face applications involving larger buildings on historic sites. The preservation commission will work for recognition of historic preservation in the city 's comprehensive plan. This recognition may be important when choices are made on proposed major projects. The city should take note of the contribution that preservationists make to housing rehabilitation. The zoning ordinance may be used to authorize new uses for historic properties such as professional offices or apartments. Many historic buildings are huge old homes zoned for single— family, residential use. The likelihood of these buildings remaining single family homes is low, although the neighbors may feel there is a possibility. To avoid demolition of such buildings , special use permits in the zoning ordinance should be considered , although this solution must be carefully limited. A program was developed in Denver that permitted professional uses in historic homes . After several years some persons felt that too many conversions had been permitted. The typical neighborhood will be worried about a change in its character because of offices or apartments. There will be increased traffic , cars looking for parking and parking spaces created next to the houses . If a change of use provision is added to the zoning , it would provide that each case would be considered separately . One safeguard might be a requirement for a 91 finding that the historic building will be demolished or cannot be properly maintained unless a new use is permitted. In giving a special permit, the city may place conditions on it in order to protect its neighborhood. The commissioners will pay attention to the older and historic buildings owned or. used by the city or by government agencies. The board of education may be considering the construction of a new school, and the commission will try to influence the future use of the old school and its site, if the building is historic. In these situations the members of the commission must be prepared for the officials to be thinking mostly of their new building. The mayor may be helpful in finding city offices that could be located in the historic building. Or the issue may be what will become of the site. Will it be sold to a private developer who will find a new use, such as apartments, for the building? The commission also works with city departments to encourage the maintenance and rehabilitation of historic buildings they are using. In summary, it is important for the city to set a good example with the historic buildings it owns and uses . The commission must be persuasive in making that point within city government. Commissions need to establish effective coordination with • the buildings department . Commissions with limited staffs or no staff rely on good relations with the building department to learn of unapproved alterations to landmarks and to get authorized work inspected . This hel-p will be needed even when 92 volunteers are reporting to the commission on the status of its designated buildings. The building department will forward to the commission applications for building permits that require commission review because the structures are designated historic. Building codes designed for modern buildings have, over the years, presented difficulties for some preservation efforts. Owners may be helped by the commission's involvement in their code problems. It will be important to determine whether the buildings department has some flexibility in reviewing rehabilitation plans. There may be useful language in the state building code relating to historic buildings. In its comments and in the position it takes, the commission will always be careful to put safety considerations first. In all its activities, the commission should consider carefully the consequences of the steps it is about to take. This means coordination with the city attorney. A good relationship with this arm of city government is essential to the effective working of a preservation commission, because the city attorney's office will be representing the interests of the commission in court. The city attorney can provide advice that will reduce the number of times the commission is taken to court and improve the commission ' s chances in court. The commission may do its share by being a good client and educating the city attorney on the details of its operations. 93 1-49 The ALLIANCE REVIEW giqrs 111111. NEWS from NATIONAL ALLIANCE of PRESERVATION COMMISSIONS Fall 1989 WHAT IS A LOCAL'PRESERVATION PLAN? Robert E.Stipe Emeritus Professor of Design School of Design North Carolina State University Preservation planning is becoming a part of many local comprehensive plans as it becomes a new focus on reviving and maintaining small towns,downtowns,and inner cities.The political arena is also addressing issues like neighborhood quality and livability.However,what it takes to make a pres- ervation plan effective is its strong integration with a community's overall growth plan. Establishing a preservation plan is not complicated.Historic buildings and other cultural resources are located,mapped,photographed,and otherwise documented.Thereafter,they are evaluated against specified national,state,or local criteria,and"listed"or"registered"as landmarks.All of these meas- ures are intended to protect them against destruction or inappropriate change through private or public action.Briefly stated,a preservation plan may be implemented through the following nine steps: First:The preservation plan is officially adopted as a component of the official city plan by resolution or ordinance of the local governing board.It is thus given the same official policy status as the land-use, transportation,housing,and other elements of the comprehensive plan.The adoption resolution should specify that in the event of conflict with other elements of the comprehensive plan,the historic preser- vation plan will take precedence. Second:Adoption of the plan should be followed by an Executive Order of the mayor and/or manager, explicitly requiring each city department to give special attention to the needs of any historic resource under its jurisdiction,as in Section 110 of the National Historic Preservation Act or the old E011593. Third:The adoption resolution should specify that all public projects undertaken or permitted by the city as well as those of the state or federal government,regardless of type,that might have an adverse effect on any listed historic resource will be subject to special review and comment by the local planning agency or governing board. Fourth:All private projects coming in for planning agency review, k) whether through a voluntary or a regulatoryprocess,would receive ► '` r.. I the same scrutiny,with permits denied where permitted or appro- priate binding conditions attached.This process can be quite effec- tive if properly handled. - - '\'t\ II/JT N % Fifth:The preservation plan would identify capital needs,providing _` `. for the local equivalent of the former federal Acquisition and Devel- w�' opment grants to preservation groups or individuals,below market rate loans,or local revolving fund contributions.These are"front door"forms of preservation assistance.Local appropriations for general neighborhood improvement grants would also be appropri- Continued on page 2 - - The ALLIANCE REVIEW EXECUTIVE DIRECTORS MESSAGE operating budget,would help improve the quality of life in historic neighborhoods or districts,even if Welcome to Philadelphia!This is a special conference they do not go directly to the fabric of old buildings. issue of the Alliance Review.We asked our good friend Bob Stipe to pen the lead article for this issue, Seventh:The two previous examples speak to capital concentrating on local preservation planning.Many and operating costs that favor the needs of residents exciting developments continue to occur in terms of in historic neighborhoods.However,there will planning for historic resources and Bob continues to always be a few buildings that would be better be a leading contributor to the discussion. preserved if owned and maintained by the local government.A proper preservation plan would One very encouraging proposition has come from specifically identify these. the National Trust through their Senior Policy Analyst,Constance Beaumont.She will be directing Eighth:The preservation plan must identify appro- a task force for the Trust's Model Local Protection priate areas where uncompensated regulation is the Project.The task force is chaired by Bob Stipe.Bernie best approach.These fall into two broad categories. Callan(NAPC chairman),Karen Gordon(NAPC The first of these addresses the problems of building board member),and I will serve on the project's additions,infill,demolition,and new construction in advisory committee.The purpose of the project is to historic neighborhoods—the sorts of regulation we provide guidance to local government officials now accept as the normal design review process for (planning commissioners,historic district commis- historic areas or structures.A second and equally sioners,design review boards,city and county important set of regulatory activities would deal attorneys,city councils and mayors)on how to with area zoning(intensity,use,off-street parking, protect and enhance historic resources.Expect to etc.);health and sanitation;building construction hear more on this innovative and timely project.We and housing maintenance;the maintenance of vacant will continue to update you in future issues of this lots;the care and maintenance of trees;undesirable newsletter. land uses;earth moving and disturbance;and other activities directly affecting the quality of life in every One final reminder—if your commission or organi- neighborhood. zation joined the NAPC during our recent member- ship drive,thank you.We truly appreciate the very Ninth:The plan would identify special conservation generous support we have seen.Send us information areas or districts in which special planning and on your commission for our files and let us know design efforts are needed to help them continue how we can assist your efforts.If you are still functioning.Many fine neighborhoods have been waiting to join or if you have a question about lost prematurely because their needs were not met at membership,let us know that too! that critical point when they could have gone either way.I think of these types of areas as pre-natal Keep up the good work! historic districts but which may have a much broader base of associative values.A point worth Pratt Cassity noting about these areas is that while they would not Acting Executive Director come in for any special regulations not already available in non-historic districts or areas,they would get extra attention in planning and city Local Preservation Planning continued from page 1 services. ate.In this way,preservation projects become part of Such a preservation plan can stand as an independ- the long-term capital budget.Various tax deferral ent local effort or activity.Its greatest potential, and abatement schemes or"back-door"assistance however,is the strength it both borrows from and would also have a place here. contributes to the urban general plan.For further information concerning implementation of a preser- Sixth:The plan should identify annual maintenance vation plan contact:National Alliance of Preserva- costs for things like streets,protective services,social tion Commissions,Hall of States,Suite 332,444 No. services,historic building and site maintenance, Capitol Street,Washington D.C.20001. schools,environmental improvements,recreation, tree care and management,day care and the like. Robert E.Stipe is a former NAPC board member and a former These programs met through the city's annual chairman of the Chapel Hill,North Carolina Historic District Commission. 2 1-51 APPENDIX B: HISTORIC PRESERVATION ELEMENT GOALS, OBJECTIVES AND POLICIES GOAL - HISTORIC PRESERVATION (HP1 : THE HISTORIC PRESERVATION PLAN SHALL DIRECT AND MANAGE THE PROGRAMS AND POLICIES RELATED TO THE PRESERVATION OF THE CITY'S HISTORIC AND ARCHAEOLOGICAL RESOURCES. ISSUE: Survey and Data Management of Historic Resources In order to properly protect the historic resources of the community, proper identification and documentation of historic and archaeological sites are necessary. The documentation of these sites will be of no benefit, however, if there are no established programs and policies to protect these sites once they are identified. The continual development of these policies and programs will provide the tools necessary to preserve the historical integrity and character of the City. OBJECTIVE HP1 : To continue to promote the preservation of resources through the commitment to conduct historic resource surveys and the continued development of ordinances, guidelines and/or databases. Policies : HP1.1 The City will continue to pursue grant funding to survey the neighborhood planning areas for the Florida Site File in conjunction with the development of the neighborhood plans. HP1.2 The City will update the 1981 St. Petersburg's Architectural and Historic. Resources Document by the creation of a computer database of all Florida Site File forms. This will be updated on a continuing basis. HP1.3 A design guideline document for historic districts and properties will be developed to be.used in the City's Certificate of Appropriateness process and provide information to property owners, architects and contractors by December 1994. HP1.4 The City will pursue grant funding to create a computer database for the Florida Site File forms. This will enhance the speed and efficiency in checking the File for the public and others in need of information concerning the historical status of surveyed properties. fHP1.5 The City shall produce a map which identifies areas of concentration of historic resources which appear to qualify as historic districts. This will be updated according to available data. 1 ISSUE : Administration of Historic Preservation Since the first survey was conducted by the City in 1977, the City of St. Petersburg has been dedicated to documenting and preserving its historic resources. This has been achieved through a variety of policies and programs established to provide incentives for the community to preserve the historic structures and to develop a system of checks to ensure that historic properties are not adversely altered or demolished without sufficient review. The administration of the historic preservation program is an evolutionary process which must be amended and updated regularly. OBJECTIVE HP2: To continue to develop programs and policies to protect and preserve the City's historic f resources. Policies: HP2.1 Code enforcement staff will be trained to identify and cite historic properties that suffer from decline due to neglect, vacancy and deferred maintenance by December 1994. HP2.2 To facilitate the Certificate of Appropriateness (COA) review on properties in a historic district, the City will require contributory/non-contributory structures to be identified by individual structure instead of by parcel by the applicant by December 1993 on all historic district and landmark applications. HP2.3 To streamline the COA review process for non-contributory structures of a historic district, the City will enact an ordinance amendment to allow in-house review for non-contributory structures by December 1993. HP2.4 The City shall initiate and process a minimum of 3 applications each year for properties identified on the historic and archaeological resource inventories to determine their eligibility for designation as a local landmark. HP2.5 The City will develop selection criteria for City initiated landmark designations as guidelines for staff recommendations to the Historic Preservation Commission and City Council by December 1993. HP2.6 Property cards shall be marked to indicate all designated properties and all surveyed properties categorized by the Planning Department as eligible for designation as an individual local landmark or eligible for individual listing on the National Register of Historic Places. HP2.7 The City shall delay, by a period of twenty business days, the granting of permits for the demolition or significant alteration to the exterior of a building or site whose building card has been marked in accordance with policy HP2.6. I I HP2.8 By December 1994, the City will notify by letter mailed first class mail the Historic Preservation Commission and any resident or community group who annually files their name with the Planning Department by December 1994 of any applications for demolition or significant alteration to the exterior of a building or site whose building card has been marked in accordance with policy HP2.6. HP2.9 The City will notify owners of properties with marked property cards of the permit delay process established in HP2.7 and of the various programs and benefits of participation in the historic preservation program by December 1994. HP2.10 The Citywill eliminate the fee for the Certificate of Appropriateness on all applications for alterations and/or additions under$10,000 by October 1993 until such time as the magnitude of the applications requires additional staffing. HP2.11 The City will request the Pinellas County School Board to designate eligible school buildings under the local ordinance or the National Register. The City shall assist the school board in identifying the buildings appearing to qualify as historic landmarks. HP2.12 By December 1993 City Council will initiate an amendment to the membership of the Historic Preservation Commission by requiring the placement of an archaeologist, historian, preservation specialist or member of the general public with special knowledge of historic preservation on the Historic Preservation Commission. HP2.13 By December 1993, the Planning Department will propose an amendment to the ( present Environmental Development Commission site review criteria to ensure { sensitivity to adjacent historic resources related to scale and mass. HP2.14 The City shall review land use and zoning incentives for historically or archaeologically significant properties, such as transfer of development rights and floor area ratio (FAR) bonus points, for inclusion in the land development Iregulations. HP2.15 The City shall provide technical assistance to applicants for designation of historic structures and districts. HP2.16 The Planning Department shall provide technical assistance and staff liaison to the Historic Preservation Commission and City Council regarding efforts to provide public information, education and technical assistance relating to historic preservation programs. HP2.17 Decisions regarding the designation of historic resources shall be based on the criteria and policies outlined in the Historic Preservation Ordinance and the Comprehensive Plan. t HP2.18 By December 1994, the City shall evaluate a process for a coordinated local review procedure for those persons desiring to concurrently apply for designation to the National'Register of Historic Places and to the City for historic landmark designation. I HP2.19 By December 1994, the City shall evaluate a process to provide areas designated as a National Register of Historic Places district and not designated as a landmark I district to be brought before the Historic Preservation Commission and City Council for nomination as a landmark district provided that the applicant secures approval from the owners of two thirds of the properties in the proposed district I as required by the Historic Preservation Ordinance. HP2.20 By December 1993, the City will implement a procedure to track hexagon block I sidewalk removal. Thereafter, on an annual basis, the Historic Preservation Commission will be provided a report setting forth the blocks in which hexagon block sidewalks have been removed during the previous year. Based on such information, the Commission will advise City Council if changes are needed in the City's hexagon block sidewalk policy. ISSUE: City Support of Historic Preservation There are a variety of preservation programs funded by the local, state and national government I entities and independent organizations. Due to budgetary constraints, it is important that local and state organizations support these programs through various means to ensure their survival. i OBJECTIVE HP3: To support the programs and incentives provided by local, state and national preservation I organizations. Policies: I HP3.1 The City will consider the adoption of an ordinance implementing the recent legislation concerning ad valorem tax exemption for historic properties in the City and request that the County consider similar legislation by December 1993. HP3.2 The City will investigate and when appropriate pursue grant and/or other funds that will assist in funding rehabilitation or restoration of historic properties on an on-going basis. I HP3.3 The City will continue to monitor and when appropriate support state and national incentive programs related to historic preservation. I HP3.4 If the proposed State Historic Building Code is adopted, the City will review and analyze the appropriateness of applying this code to structures in the City. I • I I HP3.5 All City departments that provide or can create programs and/or incentives to assist in the rehabilitation and preservation of historic properties will provide assistance on an on-going and case-by-case basis. HP3.6 By December 1994, the City will review its land use, zoning and land development regulations and consider initiating amendments to such regulations to remove unnecessary disincentives to the reuse and redevelopment of historic landmarks. The City will solicit input from appropriate local and state organizations and interest groups. HP3.7 The City will waive the fee for Pre-Application Development meetings for all properties with marked building cards pursuant to policy HP2.6, properties with Florida Site File forms in a redevelopment area and/or within a neighborhood planning area. ISSUE: Public Awareness and Support A successful preservation program relies on the commitment of both the preservation community and the City working together to protect the area's historic resources. OBJECTIVE HP4: To promote the benefit and awareness of preservation activities in the City of St. Petersburg. Policies: HP4.1 The preservation community and the City will work together to promote the City's heritage and commitment to preservation by making programs concerning the historic resources of the City and the preservation program available to the general public. HP4.2 The City will provide assistance to individuals and/or groups applying for grant funding for historic programs and related projects when approved by City Council. HP4.3 To heighten the community's awareness and increase the prestige of ownership, the preservation community and the City will solicit a sponsor to provide plaques which recognize locally designated buildings and historic sites as significant resources of the community by December 1994. HP4.4 Preservation publications such as technical assistance materials, funding information, information on the City's preservation program and regulations, will be maintained and made available to the public on an on-going basis. HP4.5 The City shall assist preservation interest groups in identifying existing and potential local historic preservation problems and in addressing solutions to those problems. E HP4.6 The City, in conjunction with the community preservation groups, will develop a brochure to promote the benefits of preservation in the community by December 1994. HP4.7 The City will join with the preservation interest groups to promote the City's preservation program and to promote greater awareness of the City's heritage through participation in Preservation Week activities. HP4.8 The Historic Preservation Commission and City Council shall conduct on an annual basis, a joint workshop which will include input from the Historic Preservation Commission, the preservation community and the development community. At that time, staff will present a report concerning the activities of the Commission during the past year, including the identification of known historic and archaeological resources lost during the past year and recommendations for improvements to the City's preservation program. HP4.9 Recognizing that there are conflicts between downtown development goals and objectives and the goals and objectives of the City's preservation program, the City and preservation community, in conjunction with the downtown property owners and business community will conduct a workshop by June 1994 to identify ways to minimize conflicts between historic preservation and downtown redevelopment. ISSUE: Protect Archaeological Resources in the City There are many archaeological resources located within the City. These resources have been inventoried and are identified in the Comprehensive Plan. The City recognizes the need to protect these resources from adverse impact. OBJECTIVE HP5: Utilize the historic preservation ordinance and other available programs to preserve significant archaeological resources located in the City. Policies: HP5.1 The Department of Leisure Services shall be responsible for insuring that any proposed parkland development will not adversely impact a significant archaeological site. HP5.2 The Archaeological Resources Management Plan will guide the Department of Leisure Services and the Planning Department in determining which city parkland sites are significant and will be protected from encroachment, development and theft. I I I ( HP5.3 The Department of Leisure Services will be responsible for insuring that individuals and groups do nothing that might damage the integrity of significant archaeological sites located on City parkland. HP5.4 The City will continue to investigate and survey the location of archaeological sites in the City. HP5.5 The City will amend the Zoning Ordinance to include criteria that may require all site plans and land development activities on landmark eligible or potentially landmark eligible archaeological sites to be investigated by professional archaeologists prior to permitting land development activities. HP5.6 The City shall pursue grant funding to accomplish the following tasks: • Marking the 100 scale plat sheets to delineate the legal boundaries of properties containing archaeological sites and areas of site potential. The boundaries of these sites should be surveyed to determine the exact boundary of the archaeological site. • Annotation of the property cards to indicate the presence of archaeological sites or areas of site potential and notify the property owners. • Development of guidelines for levels of allowed ground disturbance depth as part of future survey work. la ill ...,t' =s milieu "'‘ en"'Ti ail Fp nt -.ilk n ill in .-- - ent .__,.,-,-,---,_,,,_,a - II --a.:„. in rri ii- - : i_0_,---ri __, , .4 but c in ul Ili -- jta 31.1 Di jut Lai 1 r 1„,,m-.4 Vail ii 'PM" r ... pi. i ii i .18 0 rir fit 7,74 7 H..". .., n) ..„ ut°in iZillI=N mliir#t iiiIL-..: _ ,:-_-__ : T --. -- . _ - `''r`e""""' - - - — --- - ----- -- _._sue: � -- ti A service of the t E c r ` . E L. i National Park �Serv�•�e - DISTRIBUTED BY _INTERA�G-E-:NCY RESOU •RCES DIVISIDN WASH_If GT.ON, D .C.,.=- ZONING AND HISTORIC PRESERVATION i Stephen A. Morris _ Preservation Planner , National Park Service August 1989 Zoning is one of many ordinances affecting the use of land in a - local community; among the others are building and fire codes, environmental regulations, subdivision ordinances, and the land use policies expressed in a comprehensive plan. Of all these, however, zoning is the most far reaching and , perhaps, the best established . Historic properties occupy land area and , like other land uses, are subject to zoning regulations. When properly applied , zoning can be a powerful tool in protecting historic properties. It is important, therefore , that preservationists become knowledgeable about the zoning in their communities in order to determine how it affects historic resources and how it might better protect historic properties. What is zoning? Under state enabling legislation, a local government is authorized to divide the land area in its jurisdiction into districts , or zones, each with a set of regulations governing the development of private land . The districts are marked on a zoning map which is an official government document. Generally, the text of the ordinance specifies the categories of uses allowed in each district (residential, commercial, industrial, etc.) , the maximum size of the buildings, the size of the lot, the required spaces around the buildings, the number of off- street parking spaces, and other requirements for development. Zoning districts are designated by classifications, such as "RS1" • which might stand for Residential Single Family Low-Density, or "C2, " which could be Commercial Medium-Density (generally letters refer .to uses while the numbers indicate density) . • PACIFIC OCCww Or r - - --- G a,rcacw ,uww - �-7 G2 `•r - �+ b� leee AC2IL 111 - 0.1111V101 . - � - - -miaiv �i�� �iei- x,uc \rt,-crn N T C • iH - - -H T__ EXISTING ZONING Map 10 (SCHBIATIC BOUNDARY Olin C-1 C-2 C-M CO MERCIAL DISTRICTS --------- NC RS RC-1 RC-2 RC-3 RC-4 RESIDENTIAL-COMMERaAL COMBINED DISTRICTS Commercial Zones in a Section of San Francisco. Source: Neighborhood Commercial Rezoning Study, San Francisco Department of City Planning, May 1984 What kinds of local governments can adopt zoning? State zoning enabling legislation generally specifies which local jurisdictions are authorized to adopt a zoning ordinance. In some States both municipalities (cities and towns) and counties can adopt zoning laws; in others, zoning is a function reserved for municipalities. The State of Texas, for example, restricts zoning to cities and towns of a certain size and requires counties to get special permission from the state legislature in order to adopt a zoning ordinance. How long has zoning been in practice? The nation' s first comprehensive zoning ordinance was adopted in 1916 by New York City. The Standard State Zoning Enabling Act was drafted by the Department of Commerce in 1922 and had much to do with the widespread adoption of State enabling legislation and the acceptance of zoning by many of the larger cities and suburban communities around the country. The right of local governments to zone was affirmed by the Supreme Court' s landmark decision in village of Euclid v. Ambler Realty Co. in 1926, which upheld that, in principle, zoning was a valid expression of the 3 police power ( i .e. , the power of the government to regulate activity by private persons for the health, safety, morals , and general welfare of the public) . What about pre-existing uses or buildings? Buildings or uses in existence prior to the establishment or amendment of the zoning ordinance which are inconsistent with the new or amended zoning requirements are called non-conformities. A lot which does not meet minimum size requirements can also be non-conforming . Non-conformities are sometimes given a set period within which they must be brought into conformity; in some cases they are allowed to remain in existence indefinitely under the condition that they will not be expanded or improved. How is a zoning ordinance adopted and administered? Zoning ordinances are adopted by the local governing body, such as the city or county council or town board , based on the recommendations of the planning commission, or a specially appointed zoning commission. The zoning commission makes its recommendations after studying existing patterns of development and particular land use issues in a community. After the ordinance is finalized and adopted , an appointed zoning board of appeals or board of adjustment is established to decide when exceptions to the ordinance can be granted to particular property owners. A zoning administrator or officer administers the zoning r ordinance on a day-to-day basis , granting zoning permits for proposed developments that comply with the terms of the ordinance. How are changes made to a zoning ordinance? Changes to the text of a zoning ordinance or a zoning map can be in the form of zoning amendments or revisions. A revision is r considered to be more comprehensive than an amendment and usually results in a completely new ordinance. Both require following the legal process established by the state enabling legislation and must be approved by the local governing body. Often the planning commission reviews proposed amendments and makes recommendations to the town council . The term rezoning applies to both amendments and revisions and does not distinguish between changes that apply to a small area or to the entire community. i 4 What is a variance and under whose authority is it granted? Given the unique characteristics of each parcel of land , zoning authorities recognized early on that although every property owner within a district would be bound to the same requirements, in certain cases exceptions would have to be made. One common type of exception is a variance, in which a property owner is exempted from all or a number of the provisions of the zoning ordinance. Variances require the property owner to prove to the zoning appeals board that, due to the particular physical surroundings, shape, or topographical condition of the property, compliance with the zoning regulations would result in undue hardship. Variances may cover any aspect of the zoning requirements (such as use, number of parking spaces , size of building , or setbacks--the required distance between buildings and lot lines) . What about special exceptions? Special exceptions, also known as conditional uses, apply to nonconforming uses thought to be desirable in a particular district under certain circumstances, such as a school in a residential district . Unlike variances, special exceptions are listed in the text of the zoning ordinance along with those uses permitted as a matter of right. The conditions required for the zoning board to grant a special exception are also set forth in the ordinance, although sometimes the_ board negotiates particular conditions to be placed on a proposed development with a property owner. What is historic zoning or historic district overlay zoning? Where historic district design review is established through the zoning ordinance , it is often referred to as historic zoning or historic district overlay zoning. An overlay zone is an additional layer of regulations for a particular area which is laid atop the underlying or base zoning regulations. There are many different kinds of overlay zones including those that establish additional controls on development in areas subject to airport noise, or those that promote downtown retail development. The base zoning provisions, which relate to use and density, continue to be administered by the zoning authorities. The regulations contained in the historic overlay zone are administered by a design review board or historic preservation commission. 5 Should historic zoning or design review regulations and base zoning be coordinated? r Regardless of whether or not design review in historic districts is called historic zoning or it is implemented through an independent process , it is essential that preservation regulations , such as historic district design review, and zoning be coordinated . Where there is no coordination the preservation regulations which seek to preserve and protect the integrity of historic neighborhoods may be working at cross-purposes with the zoning ordinance, the goal of which could well be to attract high density new development. How can preservation regulations and zoning be coordinated? Coordination can take place in a variety of ways. One way is to arrange for regular meetings between members of the zoning board and the preservation commission or to have a member of the zoning board also serve on the preservation commission. Interaction between the staff of both groups is also important. A number of zoning ordinances provide a degree of coordination by allowing the historic district commission or design review board to review • and make recommendations on all use permits, variances, rezoning requests , and zoning text amendment applications within the historic district. Where preservation and zoning are separate, an ideal solution is to include a clause in each ordinance stating that where there r are conflicts, the preservation ordinance takes precedence. Alternatively, the zoning ordinance might have a provision stating that there is a presumption against developments, rezonings , and variances that harm individual landmarks or historic districts. In addition, successful preservation commissions build in the opportunity to comment on any zoning issues that may affect historic properties and have the authority to recommend a suspension of certain zoning requirements that hamper preservation (see page 9) . r What are the typical problems that result from a lack of coordination between preservation regulations and zoning rules? Zoning Incompatible with Current Use. The most typical problems arise because the current and historical uses in an area do not match the current zoning designation. Often a historic residential neighborhood may be zoned for retail, office, or industrial uses . The pressure to convert to one of these uses can result in the demolition or inappropriate remodeling of historic residences. 6 Density. A related conflict between zoning and preservation is density. In many cases, the current and traditional uses in a r historic district may be of the same type as that contained in the zoning , but the historic uses may be at a much lower density. This is frequently the case in older commercial districts where historic commercial buildings are an average of two or three stories in height but the zoning allows much taller buildings. The greater economic return generated by larger buildings creates pressure to demolish or to build incompatible and disproportionately large additions to smaller historic buildings. Residential areas zoned for densities much higher than those represented by the existing buildings frequently suffer from disinvestment, since owners of the existing houses are reluctant to maintain them without any assurance that a large apartment building will not be built on a neighboring property. Lot Sizes. Minimum lot sizes can also be. a source of problems. For example, the 1950s zoning in a Virginia town encouraged redevelopment of older, so-called "obsolete," residential neighborhoods close to the downtown. The zoning enlarged the minimum lot size beyond the traditional size (small urban lots) in order to redevelop the district in a manner similar to a large lot suburban neighborhood . Redevelopment did not take place as planned, and years later the area became desirable as a historic residential neighborhood . Property owners, however , were prevented from building compatible infill houses on traditionally-sized vacant lots by the 1950s zoning which required large lots. The inability to develop the vacant lots hampered the revitalization of the neighborhood . The converse situation can also work against preservation. In historic areas where houses were traditionally built on large lots, current zoning or subdivision regulations may allow new dwellings to be wedged between historic houses on newly subdivided lots much smaller than those of the surrounding houses. Off-Street Parking. Finally, preservation regulations and zoning rules often appear to be working at cross purposes in regard to off-street parking requirements. Typically, modern zoning requires a greater number of off-street spaces than can be easily accommodated on a small historic lot. As a result, the property owner rehabilitating a historic building or constructing a compatible infill building in a historic district often faces the dilemma of either demolishing an adjacent historic building to provide enough space for the required parking or abandoning the project altogether. Neither of these results is a favorable . preservation outcome. 7 Each of the problems discussed above can be resolved by changing the existing zoning . However , prior to considering solutions to individual problems it is advisable to take a comprehensive look at zoning and preservation conflicts throughout a community. What steps should a community take to study the effect of zoning on the protection of historic properties in the area? A logical place to begin studying the relationship between zoning and preservation in a community is to compile a single map showing both the boundaries of historic districts (or potential historic districts) and individual landmarks and the boundaries of the various zoning districts that affect the same area. This type of map clearly illustrates what zoning designations apply in areas of historic interest. At this point the text of the zoning ordinance should be analyzed to determine the requirements for each zoning district and whether or not they support or conflict with the preservation and revitalization of the historic properties or areas . The following questions provide a starting point for an analysis of this sort: - Are historic residential neighborhoods with single-family houses zoned for single-family residential or other compatible uses? - Do lot sizes and the building setback requirements from the r front lot line match historic patterns? - Do separate zoning districts with widely divergent regulations (one for high-density commercial use, one for single-family residential use , for example) divide a single historic neighborhood? - Does the zoning for areas immediately surrounding a historic district provide an adequate buffer against development that would have a negative impact on the historic area? - Do commercial zones allow much taller and larger buildings than currently exist in the historic district? - Do commercial zones permit automobile-oriented commercial uses, such as drive-through facilities or those with large parking lots, that conflict with the traditional street-front and pedestrian orientation of historic commercial buildings? - Does the zoning require so many off-street parking spaces that it hampers the rehabilitation of historic buildings or the construction of new infill buildings? If an analysis of zoning designations in historic districts reveals situations of the kind mentioned above, the next step is to examine the zoning ordinance to determine what, if any, 8 existing zoning classifications might be more appropriate, or if it is necessary to amend the zoning in other ways. r What kinds of amendments should be considered to make the zoning in historic districts more responsive to preservation concerns? Amendments might involve shifting the boundaries between adjacent zones or substituting one classification for another , such as changing from an inappropriate low-density residential designation to a more appropriate medium-density residential one. The existing zoning ordinance, however , may not include classifications that are entirely appropriate for historic districts. In such cases, a particular requirement may have to be changed. If, for instance, the required minimum lot size in a particular single-family residential zone is too large and discourages infill- constructionand rehabilitation, changing this regulation to allow smaller lot sizes may be required. Or, if parking requirements are such that it is difficult to rehabilitate buildings in historic areas, then the number of required parking spaces should be reduced. Another option would be to draft an entirely new zoning classification with requirements tailored to the specific needs of a historic district. Zoning classifications that apply only to particular areas of a community are known as special purpose districts or special use districts. Cities have enacted these not only for historic districts but also for other areas of the city with specialized uses or needs such as ethnic neighborhoods or areas with large institutions (hospitals, universities, etc.) . Seattle has two districts of this kind; the Pioneer Square Preservation District which was established to protect the historical and architectural character of that commercial historic district; and , the International Special Review District which aims to maintain the International District core as an Asian cultural, retail, and residential center by encouraging , for example, uses such as small scale food processing and craft work with an Asian emphasis . What is downzoning? If the current zoning permits development at densities far higher than existing buildings, rezoning might involve what is known as downzoning, or reducing the permitted height and bulk of buildings. Downzoning can be controversial since affected property owners may perceive it as diminishing the value of their property. Nonetheless, in historic commercial areas, and particularly downtown business districts, downzoning may be the single most effective protection measure that can be achieved 9 through zoning because it substantially removes the pressure for high density development from the district. What other measures are available to make zoning compatible with historic preservation? A number of cities have amended their zoning ordinances to include special exceptions that allow historic properties to be used in ways not permitted as a matter of right in a particular zone. For example, in Denver, offices or art galleries are permitted by special exception in residential zones if they are housed in historic buildings. This measure has made the large mansions in the city' s Capitol Hill district more economically competitive with new residential buildings. Similarly, the District of Columbia created a special exception to allow nonprofit organizations to use residential landmark buildings for certain nonresidential use under specified circumstances (the building must contain a gross floor area of 10,000 square feet or greater, for example) . Some cities, such as Richmond , Virginia provide for the waiver of certain zoning requirements , such as height and area regulations and off-street parking and loading requirements, for buildings in historic districts when it can be demonstrated that the waiver is necessary in order to achieve the purposes outlined in the city' s preservation ordinance. Transfer of development rights or TDR is another zoning technique that has been used to promote preservation in a few large cities. Following this approach the development rights to the r portion of a property that remains undeveloped, such as the air space above a historic building , are sold or traded and put into use at another location. The cost and expertise required to administer a full-scale TDR program have presented difficulties, especially for smaller communities which lack full-time planning staff. Bonus or incentive zoning has also been used to encourage the historic preservation in cities around the country. The bonus refers to the additional density (beyond what would otherwise be • permitted) granted to developers in exchange for providing specified public amenities. Philadelphia' s new plan for Center City proposes that density bonuses be granted for the preservation of locally designated historic structures and that the city' s zoning code be revised to include standards to define the requirements. **** 10 Some Practical Suggestions Preservationists should demonstrate a sincere, constructive, and continuing interest in local zoning issues by attending scheduled meetings and public hearings of the zoning commission or board of zoning adjustment (whether or not a "preservation case" is on the agenda) . It is not necessary (and sometimes counterproductive) to give formal testimony on every topic; but thoughtful queries by the public at a hearing will often raise questions that board members themselves would not have considered, and ideas from the public can help the board develop the conditions and requirements to be included in its decisions. Preservationists can also frame their questions and observations to make clear connections between historic preservation and zoning issues--connections board members might not otherwise see. Secondly, having demonstrated their commitment, credibility, and interest in local zoning , preservationists should take the next step and offer historic preservation training or presentations for local zoning (and other land use) boards. The training has to be attractive, appealing , and user-friendly and should be promoted as a way to enhance the board members' ability to do their work more effectively and efficiently, not as a "favor" or lobbying . from a special-interest group. Arranging for cosponsorship of the sessions by the state or regional planning agency, the State Historic Preservation Office, local non-profit or service clubs, and business organizations demonstrates that preservation concerns are varied and widely shared public policy issues and not special-interest concerns. 11 Reference List For those interested in learning more about zoning and pursuing the connections between zoning and historic preservation the following publications may be useful . Unless otherwise noted these works should be available in a good-sized public library. The Citizen' s Guide to Zoning . Herbert H. Smith. Chicago: American Planning Association, Planners Press, 1983, 242 pages. This is an excellent introduction to zoning for the layperson. It includes a comprehensive glossary on zoning terminology. Available from: Planners Bookstore, 1313 East 60th Street, Chicago, IL 60637-2891, (312) 955-9100; $16.95 plus $3 .00 for postage and handling . A Handbook on Historic Preservation Law. Christopher J. Duerksen, editor. Washington, DC: The Conservation Foundation and the National Center for Preservation Law, 1983, 523 pages plus appendices. Chapter 2, "Local Preservation Law," is particularly useful and features an indepth discussion of the components of a comprehensive local preservation program and the integration of such a program with local planning and zoning processes. Available from: Conservation Foundation, P.O. Box 4866, Baltimore, MD 21211, (301) 338-6951; $30 (paperback) plus. $2 for postage and handling. Dealing with Change in the Connecticut River Valley: A Design Manual for Conservation and Development. Robert D. Yaro et al. Cambridge, MA: Lincoln Institute of Land Policy and the Environmental Law Foundation, September 1988, 182 pages. This well-illustrated manual on rural landscape and small town preservation juxtaposes alternative development scenarios for particular sites--conventional development v. creative development. It also includes model ordinances for site plan review, signage, and farmland/open space preservation. Available from: Lincoln Institute of Land Policy, Publications Office, 1033 Massachusetts Avenue, Cambridge, MA 02138, (617) 661-3016; $25.00 plus $2.50 for postage and • handling . Preservation and Zoning : A Study Paver on the Effects of the Zoning Code on Staunton' s Historic Resources. Staunton, VA: Historic Staunton Foundation, September 1986 , 21 pages plus appendices. A basic yet thorough analysis of the impact of current zoning on Staunton' s five National Register historic districts, carried out by a committee of community leaders. The paper identifies the problems and makes recommendations to correct them. The format and approach of the study are widely 12 applicable to many communities across the country. Available from: Historic Staunton Foundation, 120 South Augusta Street , Staunton, VA 24401 , (703) 885-7676; $5 .00 for postage and handling . Saving America' s Countryside : A Guide to Rural Conservation. Samuel N. Stokes , et al. Washington, DC: National Trust for Historic Preservation, 1989 , 306 pages. Presents a comprehensive approach, with numerous case studies, for initiating and carrying out a rural conservation program at the local level. Chapter 4 , "Land-Protection Techniques That Local, Governments Can Use," explains how comprehensive planning , zoning , and other regulatory techniques can be adapted to serve rural conservation goals. Available from: National Trust for Historic Preservation, Mail Order , 1600 H Street, NW, Washington, DC 20006 , (800) 537-5487; $16.95 (paperback) plus $3 .00 for postage and handling . Roanoke Vision: Zoning : A Process for Balancing Preservation and Change , 1986. Roanoke City Planning Commission and Roanoke Office of Community Planning . 32 pages. This magazine style publication describes the process undertaken to revise the zoning ordinance in Roanoke, Virginia. Roanoke' s zoning dated from the 1950s and 1960s and did not recognize the increasing value placed on preserving the city' s past. Included are excerpts from the new proposed zoning ordinance addressing preservation concerns. Available from: City of Roanoke, Office of Community Planning , Room 355 , Municipal - Building , 215 Church Avenue, S.W. Roanoke , VA 24011, (703) 981-2344. Zoning for Downtown Urban Design: How Cities Control Development. Robert S. Cook, Jr . Lexington, MA: D.C. Heath and Company, 1980 , 178 pages. Historic preservation issues are often treated within the framework of urban design. This book provides an overview of urban design controls ( including those relating to preservation) and presents case studies of nine different-sized cities across the country that have used zoning to promote good urban design. Includes an extensive bibliography on zoning. Zoning and Historic Preservation: A Survey of Current Zoning Techniques in U.S. Cities To Encourage Historic Preservation. Chicago: Landmarks Preservation Council of Illinois , 1983 , 32 pages. This paper provides an overview of a variety of zoning measures in use around the country to encourage preservation. Appendices focus on transfer of development rights (TDR) schemes. Available from: Landmarks Preservation Council of Illinois , 53 W. Jackson Blvd. , Suite 752 , Chicago, IL 60604 , (312) 922-1742; $6.50. .. ram. i,- t ri. /:.. ,r I!!i I l 1 ,:-i� • =--met_ . `- E. NI •■ g— �■ _a; f ,ter.1 �Yit�tli..,;j iI- pi4s/ltio,17.slit, 4, !----- -�re n u h —ti.f..11.111.,i I--I,-- ' •1 1W,,-.-. • +he' r- - ' J O __F,_1,I.1QL A.i,.i), 2 . .rl al li 0 1 • 1I�e 11 id Pi q,1 1 • --1.,..••1,11 r .-__. -1. If.. 14-7:',..7,,_ 1@lf W i7,41 iI I iiIIN1.UHJktJl i :ram s- - �'• t. • _- •.-'. -_ • :._ ___ .. . _,... � . -.—_tee.=: �€po_� -'"`ae= - _ pf'klBip' ...,.., A.service the t r i ,� d t f,..rc t i c f- i ' . ,-- a �� National Park ':Service - D I S TR I B U'T E'D :B 'Y ;ITERAGENCYN RESOURCES DI V 1S 1 O N W...A, S. H t N G 7 O N D c. .: .. . .-. ....:'. x t'... : :,-.-:•.. . ... - _. '.. ... z- ,..._<. ... Y�r... .- .:e.. ay,...s. QUESTIONS AND ANSWERS ABOUT HISTORIC PROPERTIES SURVEY 1. What is a historic properties survey? A historic properties survey is a study designed to identify and evaluate properties in an area — a community, a neighborhood, a rural area, the area of a proposed land-use project — to determine whether they may be of historic, architectural, archeological, engineering or cultural significance. 2. What do you mean by "historic properties?" The national historic preservation program deals with the full range of properties significant in American history, prehistory, architecture, engineering, archeology, and culture, including properties significant to the whole nation, those significant to a particular State or region, and those significant at the local level. "Historic property" is the shorthand term for all these kinds of properties. 3. Why do a survey? Perhaps the foremost reason — as will be discussed below — is to know where historic properties are so that their protection and improvement can be considered in planning new projects and use of the land. A second reason is to increase public understanding of, and interest in, an area's history and historic properties, through publication or other use of the information in the survey itself. A third reason is to identify properties whose owners may be eligible for various kinds of Federal, State, and local assistance if they want to restore, preserve, or rehabilitate them. A fourth reason is to provide a data base for research in history or prehistory. 4. What information does a survey produce? The survey will produce written reports, files or photographs, perhaps videotapes or audio tapes, maps showing areas surveyed at different levels of intensity, drawings, plans, and bibliographic information on background data. Based on these data, and an evaluation of the properties recorded, an organized inventory can be produced listing properties that have been evaluated and found to be historic, together with a list of properties found not to be historic. 5. What do you mean by "different levels of intensity?" Two general levels of survey coverage are usually recognized. An intensive survey is one in which the entire study area is inspected so closely that, within a reasonable margin of error, it can be assumed that all historic properties of all kinds have been found. A reconnaissance survey is a "once over lightly" inspection that provides a general idea of the kinds of historic properties that may be present, and perhaps documents a few in detail, but does not necessarily identify them all. For example, a reconnaissance survey might reveal that there are historic commercial buildings within the survey area and provide a few examples. An intensive survey of the same area would reveal exactly how many historic commercial buildings there.are in the survey area. There are also "different levels of intensity" in the amount of information gathered about each property identified in the survey. "National Register Level of Documentation" means there is sufficient information to nominate the property to the National Register of Historic Places. "A Minimum Level of Documentation" means that there is enough information about a property to make an initial evaluation of its significance, but not enough information to put together a National Register nomination. 6. Are there also different kinds of surveys? Yes. The kind of survey you do depends on the kinds of properties you have to deal with, and the puposes you're trying to serve. Some examples are: * "Predictive" survey, usually applied to large areas (a whole community, a large rural area), in which predictions are made about where historic properties of different kinds will be found, based on background research, and then these predictions are tested through the inspection of sample blocks or tracts of land. * "Windshield" survey, which means literally driving the streets or roads looking for buildings, structures, or groups of buildings and structures that may be historic. * Intensive architectural survey, which means a very detailed survey, but one that concentrates only on standing buildings and structures. * Thematic survey, which means a detailed survey concentrating on specific property types (e.g. apartment buildings, school houses). * Intensive archeological survey, which concentrates on identifying archeological sites and may involve detailed inspection of land surfaces coupled with small-scale excavations to find buried sites. * Oral historical survey, which involves the extensive use of interviews with people who are knowledgeable about local history or about the cultural patterns (e.g. the traditions of an ethnic neighborhood) that may give significance to an area. There are other kinds of surveys as well, and all of the above can be combined in different ways, depending on the purpose of the survey and what background research tells you about the kinds of historic properties that are likely to be present. 7. What do you mean by "background research?" It is a very bad idea to start looking for historical properties without first developing a good understanding of the area's history, prehistory, traditional and contemporary land use patterns and social groups, and so on. Lacking such understanding, you may miss significant properties, or evaluate properties incorrectly, or literally not know what you're looking at. Every good survey begins with a background study of written sources on the area — not only published local histories, but sources of primary data such as tax maps, unpublished journals and historical, archeological, or ethnographic data held by universities, colleges, museums, historical or -archeological societies, and other institutions. It is usually appropriate to continue such research as the field survey itself gets underway, because the field survey is likely to raise questions that can be answered only through further background research. 8. How does the purpose of the survey affect how it is done? If you are undertaking a survey in advance of a project that will result in demolition of buildings and disturbance of the land, you will probably want to try to identify all the historic properties that may be affected, so that they can be considered in planning and, if possible, preserved. If the project involves only the rehabilitation of existing buildings, however, you may not need to identify archeological sites, and may need a less intensive survey of buildings and structures than would be necessary if demolition were likely. If your survey is carried out as part of a long-term program of community planning or land- use planning, you may find it best to begin with background research and a predictive survey, providing a basis for more detailed reconnaissance and intensive surveys later on, as planning proceeds. If your purpose is research, you may want to focus on a particular kind of historic property, representing a particular period, style of construction, or type of land-use. 9. What sorts of records should be kept regarding the methods used in the survey? It is very important to maintain records about what kind of survey you did, and about any variations there may have been in the methods used in different parts of the area surveyed. If such records are not kept, future users of the survey results may assume that a given area was, for example, subjected to an intensive survey when in fact it was given only a reconnaissance, or that it was subjected to architectural survey when only archeological sites were. sought. If the survey results are misinterpreted in this way in connection with planning a construction or land-use project, historic properties can be unnecessarily destroy-ed. On the other hand, if good records are not kept, future users may not be able to figure out which areas have and have not been surveyed, and may spend unnecessary time and money on further survey. 10. How can the public participate in surveys? Surveys should be designed and overseen by experienced people, generally with professional training in history, archeology, architectural history and other pertinent fields, or at least in consultation with such people. Actual background research and field • survey, however, can be carried out by volunteers, students, community groups, and other members of the public interested in participating. Organization of survey data, or of systems and standards for the maintenance of such data, should be supervised by professionals. 11. How are surveys funded? Funds may be available from your State Historic Preservation Officer (SHPO). The National Park Service provides grants-in-aid for surveys from the Historic Preservation • Fund, which can be subgranted by SHPO's to local governments and others to carry our' survey projects. Some States have other funding for survey work that they can make available. Some States and local governments require land developers to pay for surveys in advance of their development projects, and payment for such surveys is routinely required when a development project is conducted, assisted, or licensed by a Federal agency. Of course, local funding, private funding, and funds from agencies and groups that provide grants for research projects in history, architecture, archeology, and other fields can be used. 12. How are the results of survey used in local planning? One of the most important ways to use information from a survey is in local land-use and development planning. The following are a few of the ways that survey information can be integrated into such planning. Comprehensive planning: Many States require that local governments develop comprehensive plans to guide their growth and development, and assist them in developing such plans. Some local governments have developed or are developing general plans without State direction. Among the basic functions of a general plan is to identify opportunities for and constraints on development. Historic properties may-present-both opportunities and constraints — opportunities for rehabilitation, for enhancing the quality of life, for public participation, and constraints on development that would destroy them or be insensitive to their important qualities. Based on survey data, areas within a . community known or thought to contain historic properties can be identified in comprehensive plans, and the kinds of opportunities and constraints associated with each property or type of property can be identified. This information can then be factored into future decisions about specific development and land use projects. Zoning: It is vital to try to minimize conflict between a community's historic preservation system and its zoning system. Otherwise zoning within historic districts or in areas where historic properties exist may permit uses that will destroy or diminish their historical, architectural, or archeological values. Where permitted by local and State law, survey data can be used to define a historic preservation zoning classification If this is not possible, a historic preservation overlay can be created on the basis of survey data. When superimposed on zoning maps, the overlay identifies areas in which architectural design or modification of existing structures or land must be subjected to historic preservation review. Ordinances: By demonstrating the fact that historic properties exist within a community, the results of a survey can be used to convince local lawmakers of the need for various kinds of protective ordinances. Moreover, survey data can be used to "fine- tune" local ordinances to ensure that they are effective and reasonable. For example, if the survey shows that one part of the community contains historic buildings but no archeological sites, while another contains archeological sites but no historic structures, an ordinance or ordinances might require review of the design of new buildings and additions in the first area and archeological survey and data recovery in advance of land disturbance in the other, but would not need to require both activities in both areas. • Influence on Federal Undertakings: Section 106 of the National Historic Preservation Act requires that Federal agencies take into account the effects of their undertakings on historic properties (See "What is Section 106 Review?"). Section 106 requires review of a wide range of activities, including activities carried out by local govenments using Community Development Block Grant (CDBG) funds. Local survey data can be used to ensure that a Federal agency (or a local government using CDBG funds) that plans to undertake, assist, or permit a project is aware that historic properties are (or are not) in the vicinity of its project area, so that they can be taken into account. This saves the Federal agency the trouble of identifying and evaluating properties itself, so it may help the project move forward. On the other hand, it puts the agency on early notice that it must carry out its responsibilities under Section 106, so it increases the chance that the historic properties involved will be taken into consideration. 13. What if the survey isn't complete? A survey does not need to be complete to be useful.• A survey that has covered only part of a community will be useful to planning in those areas that have been covered, even if it is not helpful elsewhere. A survey that has addressed only standing structures and districts will be useful in deciding where design review of-additions or demolitions should be required, even though it cannot be used to determine where archeological surveys and data recovery should or should not be"required. Ideally, a survey is conducted in stages of greater and greater detail and intensity. That is, initial work may involve only background research and small-scale field reconnaissance, such as a "windshield" survey (driving through a neighborhood or area, briefly recording apparently significant buildings), or a "spot-check" of areas thought to be archeologically important. Subsequent stages may involve more intensive survey of sample neighborhoods, streets, or pieces of land. Ultimately, very detailed intensive surveys may be conducted of areas where previous work indicates that particular kinds of properties are likely to exist, with fieldwork keyed to the kinds of properties expected (for example, archeological sites as opposed to standing structures). At each stage in such a phased survey, the information created can be useful to planning. Early background research and reconnaissance can at least identify broad areas in which historic properties of different kinds are likely to occur, alerting local officials that developers should be required to conduct more detailed surveys of areas they propose to modify, so that they can consider historic properties in development planning. As more detailed information becomes available, of course, more detailed input can be provided to planning decisions. Officials will need to require fewer surveys by developers, and will be able to provide developers with more information, earlier, to guide them in their planning. 14. Are there standard forms and methods to use in survey? Yes, all States have standard recording forms, and many have guidelines for completing survey work. These can be obtained from your `State Historic Preservation Officer (SHPO), who can also provide valuable advice about methods to use, sources of background data, and professionals in various preservation-related fields who might be consulted. If you do not know who your SHPO is, you can find out, or obtain a current listing or all SHPO's, by contacting: National Conference of State Historic Preservation Officers 444 North Capitol Street NW, Suite 332 Washington, DC 20001 (202) 624-5465 15. Are there national guidelines for survey work? Yes. These are necessarily less detailed and specific than those that may be available from SHPO's, but are particularly important to consult if you are conducting survey work as part of your participation in the national historic preservation program (for example, in preparing nominations of properties to the National Register of Historic Places), or in conjunction with a project that uses Federal funds or needs a Federal permit or license. Some basic guidelines are listed below. * The Secretary of the Interior's "Standards and Guidelines for Identification." (Federal Register, September 29, 1983, Vol. 48, No. 190, page 44720) * The Secretary of the Interior's "Standards and Guidelines for Evaluation." (Federal Register, September 29, 1983, Vol. 48, No. 190, page 44723) * Guidelines for Local Surveys: A Basis for Preservation Planning, National Register Bulletin 24; National Park Service, 1986. Single copies available free of charge from The National Register ci Historic Places, National Park Service, P.O. Box 37127, Washington, DC 20013-7127. Prepared by Patricia L. Parker, National Park Service, May, 1987 Y L / '®.-. .� ,.., � .. ..„..,a, i j I j- } i �.�,fit=, '�`,- _ i �'t4 • ,�,0 ti EN Di : I .i1t.i... ii.... _ t R.. .�. �� -\G_I E F IN . . I iI inns ■• i I - ii ,...iiii , - _ if , 1 , 7; ri r 7 I - Il 13 p iiii-101E T ........ Q,.,... • _ . 1 _, _ -..,,,, RI . r ; BB r - j:1A z..,.'' WM ...,:i 1 IjJUUUIUE._'^-$If1G11�1U1WIIIi . - ..w�.--ram a .. 1 IIIL I ![Hirf�Y _ - _- --- -A A service Of the — - ,;. -Nationalr:ar e e vi ce D.-I:S T R I B 11 _T.E D .;:<B.Y INTERAGENCY `.R•F S_O-'U :R-C-E S; D,I V 1 S:1:01s1,.. ,:W A'S H:;1.N;:G'T.:O:N, D. C. WHAT ARE THE NATIONAL REGISTER CRITERIA? The National Register of Historic Places is the nation's roster of properties important in the history, architectural history, archeology, engineering, and culture of the United States, its States and regions, and its communities. The National Register is maintained by the National Park Service, and expanded through nominations by individuals, organizations, State and local governments, and Federal agencies. The National Register criteria identify the range of resources and kinds of significance that will qualify properties for listing in the National Register. They are applied to each nomination in order to determine whether the nominated property qualifies. The criteria are also applied by Federal agencies, State Historic Preservation Officers (SHPO's) and the National Register staff to unevaluated properties that may be affected by Federal agency actions, to determine whether they are eligible for consideration during agency planning (See "What is Section 106 Review?"). Local historic preservation commissions and chief elected officials in Certified Local Governments use them in commenting on nominations to the Register, and many local governments have used them as the basis for their own evaluation systems. Some Introductory Questions What kinds of properties can be included in the Register? The National Register includes buildings and structures such as houses, commercial buildings, and bridges. It also includes sites such as battlefields, parks, and archeological sites. It includes districts — groups of buildings, structures, or sites that make up a coherent whole, such as a neighborhood or an industrial complex. Finally, it includes objects — not portable museum objects, but large movable properties such as fountains and monuments. What kinds of significance must properties have in order to be registered? Properties important in history, prehistory, architectural history, engineering history, archeology, or culture may be entered in the National Register. In other words, a property associated with the history of a community may be listed, and so can a prehistoric archeological site, an example of a type of architecture, landscape architecture, or an engineering process, or a place of continuing but traditional cultural importance to a community (e.g., a place associated with an American Indian tradition or a well-preserved rural landscape). What level of significance must a property have in order to be registered? The Register includes properties determined to have significance at the national, State, and local levels. In other words although the Register is "National," it is designed to include properties of importance to the people of the nation where they live, in their communities, not just great national landmarks. A general store, your community's park, its mainstreet, or its Indian mound, may be just as eligible for inclusion in the National Register as • Independence Hall or Gettysburg Battlefield. The National Register criteria are designed to guide the Keeper of the National Register, State Historic Preservation Officers, Federal agencies, local governments, preservation organizations, and members of the general public in evaluating properties for entry in the National Register. Decisions concerning the significance and integrity of historic properties can be made only when the criteria are applied within related historical contexts. The Criteria Criterion A: A property may be registered if it is associated with events that have made a significant contribution to the broad patterns of our history. This means that a property can be registered if it is associated with a particular event — for example, the founding of a community, a battle, or an invention — significant in history at the national, State, or local level It also means that a property can be registered if it is associated with a series of events or processes that have been significant parts of "broad patterns" of national, State, or local history. Examples of the latter might be the economic growth or decline of a community during a particular period, the development of a transportation or communication system, a pattern of agricultural land use, or a period of prehistoric environmental or cultural change. Criterion B: A property may be registered if it is associated with the lives of persons significant in our past. This criterion means that a property can be registered if it is associated with an individual important in history at the national, State, or local level Examples include the founder of a community, an important writer or inventor, a political figure, or a community leader. Criterion C: This is a complex criterion with several subparts. The first subpart provides that a property may be registered if it embodies the distinctive characteristics of a type, period, or method of construction. This means that a property may be registered if it is a good example of a particular kind of architectural style, a kind of engineering, a kind of landscape architecture, or the informal("vernacular") forms of construction used in a region during a particular period. The second subpart provides that a property may be registered if it represents the work of a master. This allows the registration of properties designed or built by master architects, engineers, landscape architects, or builders. The individual responsible for the property does not necessarily have to be known by name; sometimes the work of a master builder or artisan can be recognized in the vernacular architecture of a region, or even in the prehistoric archeological record, when the name of the individual has long been lost. The third subpart provides that a property may be registered if it possesses high artistic values. Such a property might be a building that includes fine murals or stonework, or finely designed landscape, or a site containing particularly impressive prehistoric rock art. The final subpart provides that a property may be registered if it represents a significant and distinguishable entity whose components may lack individual distinction. This criteria exception recognizes districts. A district may be significant as a whole even though it may be composed of elements — sites, buildings, structures and objects — that would not qualify individually. The identity of districts results from the grouping of their features and from their interrelationships. For example, a group of warehouses, which do not individually look very significant, may be important as a group because of their collective representation of an architectural style, their collective use of space, or their collective association with a community's industrial development. Criterion D: A property may be registered if it has yielded, or may be likely to yield, information important in prehistory or history. This criterion is usually applied to archeological sites and districts, representing either historic or prehistoric time periods. It could also be applied to a building, structure, district, or object that could yield important information in architectural history, engineering history, or another field. Information may be important if it can bear on a particularly significant research question about the past, or if it is likely to be useful in addressing research questions that may be developed by archeologists or others in the future. The Criteria Considerations The Criteria Considerations are partial exceptions to, or limitations on, the eligibility of properties for the Register. Criteria Consideration A provides that a religious property is not eligible for the National Register unless it derives primary significance from architectural or artistic distinction or historical importance. Thus a church may not be registered unless it has architectural or artistic value, or is associated with historically important events or processes. The site of a religious rite cannot be registered unless the site, the rite, or both are associated with broader cultural patterns of historical significance. Criteria Consideration B provides that a building or structure removed from its original location is not eligible for the National Register unless it is significant primarily for its architectural value or it is the surviving structure most importantly associated with a historic person or event. This consideration recognizes that the original locations of most historic properties contribute to their significance, so that their relocation may effectively sever them from their significant associations. A structure significant for its architecture without reference to its surroundings may be eligible for the National Register even if it has been moved, however, and- if there is no other building to represent a particular important event or person, a relocated building may be registered. Criteria Consideration C provides that a birthplace or grave is not eligible for the National Register, unless it is that of a historical figure of outstanding importance and there is no other appropriate site or building directly associated with his or her productive life. Thus the birthplace or grave of a community's founder is ordinarily not eligible, but if there is no other place where the founder can be remembered, the birthplace or grave may be registered. Criteria Consideration D provides that cemeteries are not eligible for the National Register, unless they derive their primary significance from persons of transcendent importance, from age, from distinctive design features, or from association with historic events. This consideration excludes may ordinary cemeteries, but many cemeteries are included in the Register. A cemetery containing the remains of many historically important people may be registered, as may one whose tombstones or mortuary architecture are particularly distinctive, or one where particular historical events have occurred. Prehistoric and early historic cemeteries are usually eligible because of their age and their association with events reflective of important historical processes. Criteria Consideration E provides that a reconstructed building is not eligible for the Register, except under certain exceptional circumstances. A reconstructed building can be registered if the reconstruction is historically accurate, if the building is presented in a dignified manner as part of a restoration master plan, and if no other, original building or structure survives that has the same association. In other words, "stage set" reconstructions of historic places, such as "ghost towns" created out of whole cloth where no historic town ever existed, cannot be placed in the National Register, but buildings or structures can be registered if they are the only properties representing a particular event, person, period, or type of construction. Criteria Consideration F provides that properties that are primarily commemorative in intent cannot be registered, unless design, age, tradition, or symbolic value invest such properties with their own historical significance. Thus the statue of a town's founder cannot be placed on the Register, unless it is an extremely good example of an artistic or architectural tradition, or associated with traditions or events that give it its own significance, apart from that of the founder. Criteria Consideration G forbids the registration of properties achieving significance within the past 50 years unless such properties are of exceptional importance. Fifty years is a general estimate of the period of time necessary for the development of the historical perspective necessary to evaluate significance. Properties associated with the Depression are now becoming eligible for the National Register, for example, and more and more attention is being given to properties associated with World War II. Properties associated with space exploration are now being listed in the Register even though they are less than 50 years old, because of the exceptional importance of the events with which they are associated. Integrity Besides meeting one or more of the National Register Criteria, a property must also have integrity of location, design, setting, materials, workmanship, feeling and association in order to be eligible for the National Register. This means, in effect, that if a property has been seriously compromised by unsympathetic alterations, it may not be eligible for the Register. Integrity must be judged with reference to the particular Criterion or Criteria under which a property is thought to be eligible. For example, if a property may be eligible for the information it contains (Criterion D), its "feeling" and "association" may be irrelevant, and it may not need to retain integrity in these areas. It must also be recognized that alterations to a property may themselves have historical or architectural significance, reflecting changing perceptions of style, changing construction techniques, or changing social and cultural processes. For Further Information For a copy of "How to Apply the National Register Criteria" and other information on the National Register, contact: The National Register of Historic Places Interagency Resources Division National Park Service P.O. Box 37127 Washington, DC 20013-7127 Prepared by Patricia L. Parker, National Park Service, May 1987 • - PRESERVATION HELPLINE 1-70 Historic Preservation Section; Georgia Department of Natural Resources Floyd Tower East, Suite 1462; 205 Butler St., S.E.; Atlanta, Georgia 30334; (404) 656-2840 NATIONAL REGISTER HISTORIC DISTRICT/LOCAL HISTORIC DISTRICT THERE IS A DIFFERENCE "A National Register District Identifies; A Local District Protects" NATIONAL REGISTER DISTRICT LOCAL HISTORIC DISTRICT A National Register historic district A local historic district is a district is a historic district that is listed designated by local ordinance and falls in the National Register of Historic under the jurisdiction of a local Places. The National Register is our preservation review commission. A local country's official list of historic historic district is generally "overlaid" places worthy of preservation. It on existing zoning classifications in includes individual buildings, a community; therefore, a local district structures, sites, and objects as well commission deals only with the appearance as historic districts that are of the district, not with the uses to historically, architecturally, or which properties in the district are archaeologically significant. put. National Register listing recognizes According to the 1980 Georgia Historic the significance of properties and Preservaiton Act which makes such local • =ricts. By doing so, it identifies designations possible, a local historic *iificant historic resources in a district is a "geographically definable community. Boundaries of National area, urban or rural, which contains Register districts are tightly drawn structures, sites, and/or works of art to encompass only concentrated areas which have special historical or aesthetic of historic buildings. Information interest or value; represent one or more compiled to nominate a historic district periods or styles of architecture typical can be used in a variety of planning of one or more eras in the history of and development activities. National the municipality, county, state, or region; Register listing also makes available and cause that area to constitute a visibly specific preservation incentives and perceptible section of the community." provides a limited degree of protection from the effects of federally funded, The designation of a local district licensed, or permitted activities. protects the significant properties and historic character of the -district: The National Register is maintained It provides communities with the means by the U.S. Department of the Interior. to make sure that growth, development, In Georgia, the National Register program and change take place in ways that respect is administered by the Historic important architectural, historical, Preservation Section of the Department and environmental characteristics. Local of Natural Resources. Districts and designation encourages sensitive other properties are listed in the development in the district and discourages National Register through a 17-step unsympathetic changes from occurring. process that involves identification, This happens through a process called documentation, and evaluation. National design review, whereby the preservation faffister historic districts most commonly commission approves major changes iliompass central business districts, are planned for the district and issues residential neighborhoods, industrial Certificates of Appropriateness which areas, rural areas, and occasionally, allow:- the proposed changes to take place. entire communities. NATIONAL REGISTER DISTRICT LOCAL HISTORIC DISTRICT Identifies significant .properties and Protects a community's significant historic districts for general planning purposes properties and areas through a design review process Analyzes and assesses the historic Protects the historic character and quality character and quality of the district of the district with specific design controls Designates historic areas based on Designates historic areas on the basis uniform national criteria and procedures of local criteria and local procedures Sets district boundaries tightly, based Sets district boundaries based on the on the actual distribution pattern distribution pattern of historic resources of intact historic properties in the plus other preservation and community area planning considerations Makes available specific federal tax Provides no tax incentives for preservation incentives for preservation purposes purposes unless such are provided by local tax law Provides a limited degree of protection Provides no additional protection from . •r the effects of federally assisted the effects of federally assisted 1 III rtakings undertakings. Qualifies property owners for federal Does not qualify property owners for and state grants for preservation federal or state grants for preservation purposes, when. funds are available purposes Does not restrict the use or disposition Does not restrict the use to which property of property or obligate private property is put in the district or require property owners in any way owners to make improvements to their property Does not require conformance to design Requires local commission review and guidelines or preservation standards approval, based on conformance to local when property is rehabilitated unless design guidelines, before a building specific preservation incentives (tax permit is issued for any "material changes" credits, grants) are involved in appearance to the district Does not 'affect state and local Does not affect federal, state or local government activities government activities Does not prevent the demolition of Provides for review of proposed demolitions historic buildings and structures within within designated areas; may prevent designated areas or delay proposed demolitions for specific time periods to allow for preservation alternatives Historic Preservation in Florida Certified Local Governments and National Register Nominations Bureau of Historic Preservation (850) 487-2333 R. A. Gray Building 1-800-847-7278 500 South Bronough Street FAX (850) 922-0496 Tallahassee,Florida 32399-0250 http://dhr.dos.statell.us/ As part of the partnership between state and local governments,federal regulations require that nomination proposals be reviewed by Certified Local Government(CLG) historic preservation boards before they can be presented to the Florida National Register Review Board. In order to facilitate the review of nominations for properties that lie within the jurisdiction of a CLG,and to conform with federal regulations concerning the required notifications and review,the following procedures will be followed: • The Bureau of Historic Preservation will advise the CLG when someone inquires about proposing the nomination of a property which lies within the CLG's jurisdiction. • When a nomination proposal is not initially submitted by the CLG,the Bureau will send a copy of the proposal to the CLG for its review.The CLG's historic preservation board and the chief local official will have 60 days to comment. If both the CLG board and chief local official do not consider the property to be eligible for listing in the National Register,the proposal will not be submitted to the Florida National Register Review Board.If only one,either the preservation board or the local official, does not consider the property to be eligible,the proposal may be submitted to the Florida National Register Review Board. If comments are not received by the end of the 60 day review period,the Bureau may schedule the proposal for review by the Review Board. Florida Department of State PRESERVATION rmation • • One in a series of Historic Prese!z'ation Information Booklets Maintaining '' _r Community Character - 3 u ,_` , How To Establish A ,tzf _- �.. 'r Local Historic District . .. - by Pratt Cassiti -�.. ill ^s' `` �t� S u.. UI . S^ji t "tit > I he spring 1956 issue of Old-lime il 1 ,. _ _ t:" .\iw England, the bulletin of the1. 1i r ,,... Society for the Preservation of New �1 'fit.. f1 )t England Antiquities(SI'�E.�),con _ � sk; tt L. ,-', .` lirrained an anonymous article entitled ; ems _ ,�' ." ... "Area Preservation and the Beacon '" • I lill Bill, which explained how '-„t, ,.f t �. } Boston's Beacon Hill Historic District - �� ,, `. 1, t .r .' `-4f rn_.`?,--•-• ' was created. Chihuahuita residents of southwest El "In[Charleston,New Orleans,Alexandria Paso, Texas have used historic district Winston Salem,Georgetown.and designation to protect the community Annapolis] it has been recognized that against industrial development and road the preservation of historic monuments widening projects. involves wider responsibilities than vital, functioning part of the commu- In 1992, almost 36 years after the saving the single surviving old build nit}-... .This is not a negative approach SPNEA article, Historic Boston, ing, forlornly hemmed in on all sides in the long run. Actually,it is an eaten- Incorporated (HBI) produced a case by later structures and completely sion of the various forms of zoning for statement, "Save Our City: A Case for shorn of any meaningful context. . . . business, industry and residence which Boston," to ensure that the Boston It is significant also that 'area preser- ration' has been started along a course have been fullyaccepted in most cities Landmarks Commission and local dis- and towns for a good many years. It is trict commissions, including the of development which avoids the con ceps of a 'restored community.' The by such regulations that property inter- Beacon Hill Historic District, have emphasis instead has been placed ests are safeguarded,and it has been a appropriate staff and leadership with matter of crucial importance where preservation vision. The "Save Our upon 'historic and architectural zoning for contemporary use' with the feeling 'historic zoning' is under considera- City" project provides a suitable mea- that architects, planners, students, non that the whole community recog- nize the sound potential advantages tourists, and the seeker-of-charm can This publication was made possible derive as much if not greater satisfac- to be gained from the stabilization of by the generous support of tion from an area which is protected an existing pattern and consequent The Andy il'arho/Foundation from distortion and yet remains a appreciation in real estate values. . ."' for the Visual Aets. National Trust for Historic Preservation Boston's Beacon Hill Historic District -S0- nc established in 19». • �. rts_. ` s?,. .s . tw 4t7 L- Ww i x,; q ue.,` . .-�1 p.- ' rr ' �;,d t ate'•at^7 1- ►0.,. `a.___L ' I l I i`�y_,AU re-r ti trkati_ a - a;Qylls .,�� y���t � 4'c may_ ' r i 1.r.w..+e -�• � '`jam l �- � �,µ��Ng1 f.. i��'�,�i • "•r+�+- •1�` _ L i 1 �, -MI6' L 1't RP �l ,y_1 - s -, r sure of the influence that Boston's local 4. Preservation is no longer an isolated City Hall must lead and direct the historic district and landmark protection activity. but a practical problem- effort to save Boston by empowering program has had on the city. The key solving tool.' the Landmarks Commission to carry points presented as findings in the study out its statutory duties with energy closely parallel the SPNEA predictions The HBI study demonstrates why a and imagination."' in 1956. HBI found local preservation local historic preservation program that to be effective for these reasons: features municipally based protection 1. Preservation means jobs. and promotion of historic resources is The Evolution of Historic District. 2. Preservation means money for so vital for Boston. "City residents, by Boston. overwhelming margins,want City Hall The Boston experience proves that 3. Preservation means strengthening to protect Boston's unique, historic local preservation programs are effec- our neighborhoods. character. Poll results confirm this. tive. In fact, one of the first lessons learned in preservation is that the legal power to protect historic places lies Certified Local-, chiefly with local government. Historic Government Program, resources are first significant to a local population, and it seems reasonable As part of the 1980 amendments to historic preservation office (SHPO) that local people should play the lead- the National Historic Preservation and the National Park Service to ing role in protecting them. Act of 1966, each state was directed identify. evaluate and protect his- to establish a Certified Local tonic resources within the CLG's Many Americans wrongly assume that Government(CLG) program as a political jurisdiction. This makes the federal government protects his- mechanism to formally involve local the local government eligible for an tonic resources and that listing in the governments in the national historic array of benefits reserved only for National Register of Historic Places is preservation program. Most states CLGs. These benefits include the sufficient to prevent demolition. The developed procedures that extend ability to compete for 10 percent of fallacy of this assumption is often dis- CLG status to communities that the annual federal allocation made covered the hard way when a building adopt a preservation ordinance and to each state from the Historic is demolished, a fence is erected, or establish a preservation commission. Preservation Fund, direct participa- plans for a new building are unveiled. tion in the process for nominating The strongest laws for historic preser- There is some variety among state properties from their jurisdiction to Ovation are local laws, not federal. A CLG procedures, particularly the National Register of Historic municipal process creating a local his- among different regions of the Places, and opportunities for train- tonic district and providing a regulatory country. As a general rule. CLGs ing and technical assistance from method to protect a community's his— are those local governments that their SHPO, the National Park tonic character is one of the strongest work as partners with their state Service and other federal agencies. mechanisms to ensure that preserva- tion occurs.' The historic preservation movement CASE STUDY: as a whole has evolved from the time when the single landmark was pre- Protecting Neighborhoods in El Paso, Texas served and promoted as a showpiece. li!day, preservationists have become Chihuahuita or "little Chihuahua" is roughly a six-block neighborhood in south- more concerned with total enyiron west El Paso, Texas. Bounded by the Rio Grande River, railroad tracks, and a menu, developmental history, com_ water treatment plant. Chihuahuita is often overlooked because of its isolation munity planning,and politics. Local and poverty. historic districts are a part of that evo- lution and reflect today's broadened The neighborhood began in the 18-0s as a collection of wooden shacks and preservation perspective that encom- adobe houses mostly for immigrants from Ciudad Chihuahua. Chihuahua, s community history, culture, Mexico. These immigrants began arriving in refuge from the threatening passes assc, and values. Apaches prior to the Civil War. They built canals or "acequias" for irrigation. introduced viticulture, and established a small community along the banks of the Local historic districts are generally Rio Grande. The community continued to grow, stimulated by its proximity to Mexico, the arrival of the railroad in 1881, and the construction of the Franklin created to protect entire areas or groups of historic structures. Such Canal in 1889. The vast majority of the immigrants, however, settled during the districts are often economic assets to Mexican Revolution, which began in 1910. The wartime refugees were housed communities and a source of civic in hastily built tenements. pride. Local districts always serve a • public purpose, which may be as sim- During the 1920s. Chihuahuita took the name "La'Mancha Roja" because of its pie as giving recognition to historic role as a bootlegging center. The isolation from mainstream El Paso continued, resources or as complex as establish- with the 1940s being dominated by "Pacheco'" gangs,who terrorized tourists and ing a financial incentive program to residents. Although social relations improved after the 1950s, Chihuahuita spur revitalization efforts. Downtown •remained an impoverished neighborhood of one-and two-story adobe and wood commercial areas and main streets, frame houses and tenements. waterfront districts with associated warehouses and maritime resources, The area began to receive attention from local preservationists in the 1970s, but or residential districts ranging from did not become a local historic district until 1991. Residents banded together to the colonial cobblestoned neighbor- request designation as a means of galvanizing the neighborhood against two hoods of the eastern United States to imminent threats of encroachment. First, the City of El Paso's zoning ordinance the early 20th-century bungalows of called for M-1 or heavy industrial and warehouse uses. Any new development in California are the most familiar local the neighborhood would likely reduce housing opportunities and increase the historic districts. already growing warehouse uses. Second, a proposed expansion of the Border Highway along the Rio Grande called for an extension directly through the Most often, the reason for creating a neighborhood. local district is to prevent unregulated and insensitive change. This protec- In an impassioned public hearing, local residents sought designation to give their Lion is accomplished through the neighborhood a future and confirm its place in local history. The designation was adoption of a preservation ordinance, approved with some modifications by the Landmark Commission and the City which is a local statute establishing a Commission. Today, the area is experiencing renewed interest with the rehabili- design review hoard and creating a ration of tenements, some using the historic rehabilitation tax credits, and con- design review process. The design struction of new housing units. Soldiers from nearby Fort Bliss volunteered to review board is often called a preser- paint more than a dozen houses. These acts indicate a greater acceptance of the ration or historic district commission. neighborhood in El Paso. Residents are serving as spokespersons for local his- toric districts, stating that the history of the poor needs to he recognized and The first local historic district was respected, and that local districts can be beneficial in planning the future of established in Charleston, South neighborhoods. Carolina, in 1931. Charlestonians rec- ognized the special character of their This arse study was prepared Dwayne Jones, local government cooldinatot; community and felt it deserved pro- Texas Historical Commission,Austin, Texas. tection. Today, more than 1,800 com- munities across the country have fol- lowed Charleston's example. America has seen a ground swell in the num- ber of local preservation ordinances adopted by local governments and, consequently,an equally large U A increase in the number of historic dis- it7ir a Local District? studies point to a clear connection tricts and properties designated at the between district recognition, local level. The reasons for considering a local improved community awareness pro- district vary from community to corn- grams, instituting municipal rehabili- In spite of the increased use of local munitv. Usually, the arca under con- tation programs, and promoting ieder— "districting" as a means to preserve sideration is faced with development al preservation incentives, and community character, countless pressures that will alter its historic improved resident and investor confi- neighborhoods, commercial cores, character. Perhaps the district will he deuce. thereby having a direct or indi- industrial districts, and rural areas targeted for special planning efforts or rect positive effect on property values.' remain unprotected. These resources community development programs are at the mercy of adverse market such as a facade/home improvement The benefits of creating a local his- forces, neglect, and poor planning. program. a streetscape plan. specific tonic district must be clearly articulat- improvements, a crime-watch patrol. ed to government officials. More This booklet is designed to help in or a tree planting project. importantly, property owners must establishing a local historic district. fully understand what designation will The techniques described are meant Whatever the goals, a local historic mean to them, since the use of their to serve as a road map to determine district is but one component of a property will in some ways be restrict- whether a local district is the best pro- community's comprehensive program ed. Controversy between supporters tective strategy for your community. for maintaining a thriving, viable, and of a local district and opponents can Homeowners in historic neighbor- lively collection of historic and con- often be avoided by explaining the hoods, local government officials. temporary resources. It is not the benefits that other communities have downtown merchants, and property only solution for making preservation realized from their local historic dis- owners will either endorse,amend, or work at the local level. The local dis- tricts. These benefits include: reject proposals to create a district. trict is simply one tool to protect com- depending on how well they under- • munity character and should he used 1. Local districts protect the invest- stand the issues involved. The in combination with other planning ments of owners and residents of advantages may he crystal clear to the and revitalization strategies. Although historic properties. Suburbanites preservation community, but not the district is quite often the center- have available a sophisticated array • everyone will find the establishment piece of a comprehensive local preser- of property value protection tools of a local district as appealing as the cation program, it is rarely a solo act. ranging from covenants and ease- district proponents. ments to subdivision regulations. The associative value of historic Urban property owners rarely have There are no easy solutions when it resources is one of the long-standing the same security and often feel comes to shaping local sentiment or reasons for preservation. Keeping the pinch when insensitive devel- opinions. Whether a decision is about buildings, sites,and objects around for opment undermines their property where to locate a toxic waste site, a future generations to appreciate is the value by turning their neighbor- zoning reclassification,a tax increase, most often repeated justification for hood or commercial area into a or the passage of a preservation ordi- historic preservation. Another corn- hodgepodge of poorly planned nance and establishment of local dis- pelling reason for communities to developments. The resulting lack tricts, increasing community aware- consider a local historic district is the of cohesiveness makes the area less ness and the fine art of influence economic advantage of well-preserved attractive to investors and home become critical when moved from the and revitalized historic districts. A buyers. Historic district designa- individual to the community level. locally regulated historic district can tion encourages the purchase and he a tool in fighting many of the nega- rehabilitation of properties because tive economic trends that occur in the the investment is better protected older sections of a communit•. over a long period of time. Buyers will know that the aspects that According to Dennis Gale, a professor make a particular area attractive of public policy and management at will be maintained. Real estate the University of Southern Maine, agents in many American cities use "the designation of historic districts in historic district status as a market- residential neighborhoods has grown ing tool to sell properties. in popularity. . . there is modest evi- dence that historic districts are more 2. Local districts encourage better resistant than essentially identical but quality design. Ellen Beasley, his- undesignated neighborhoods to price tonic preservation consultant, noted volatility associated with 'boom and in a study of nine historic districts bust'cycles in real estate trends." His that better design, i.e., a greater 4 sense of relatedness, more innova- 6. The protection of local historic dis- in attractive surroundings, the Live use of materials and greater tricts can enhance business recruit- emotional stability gained by public appeal, occurred more often ment potential. Vibrant commer- maintaining a recognizable and within the districts than in areas cial cores and attractive neighbor- walkable neighborhood, and the without historic designations. " hoods attract new business and galvanizing effect of community- quality industry. Companies con- based group action are all direct 3. Local districts help the environ- tinually relocate to communities results of most local historic district ment. As our world gets smaller that offer their workers a higher ventures. The district designation and our resources more limited, it quality of life which is greatly process also allows citizens to take is as irresponsible to waste the enhanced by successful local part in deciding the future of their built environment as it is to waste preservation programs and stable communities. A sense of empow- natural areas. Building demolition historic districts. erment and confidence develops that encourages suburban sprawl when community decisions are and decentralization of cities 7. Local districts provide social and made through a structured partici- wastes tax dollars through con- psychological benefits. The corn- patory process rather than behind struction of duplicative roads, sew- fort found in human-scale environ- closed doors or without public ers, and utilities: adds to landfill ments, the desire to live and work comment. problems: and makes us more auto-dependent which contributes CASE STUDY: to pollution and congestion. This situation contributes to the decay Economics Benefits in Mobile, Alabama of inner cities and the unwise use of infrastructure, land, and other A recent analysis performed by the Junior League of Mobile,Alabama,shows non-renewable resources. Historic that property values in the Church Street East Historic District increased by 582 district revitalization should be a percent in the 15-year period between 1974 and 1989. By contrast,general prop- part of a comprehensive communi- erty values in Mobile increased by only 100 percent during the same period. ry recycling effort and environmen- The Church Street East Historic District is an area where intensive restoration tal policy. and rehabilitation have taken place. It is protected by a preservation ordinance that requires that changes to buildings in the district be approved by an architec- t. The educational benefits of creat- rural review board prior to obtaining a building permit. ing local districts are the same as those derived from any historic junior League volunteers followed a methodology developed by the Washington- preservation effort. Historic dis- based Government Finance Research Center for the National Trust for Historic tricts give a tangible link to the Preservation'. Volunteers researched more than 170 historic buildings to generate past, a way to bring meaning to his- the figures. Property values for 1975 in a 21-block area were taken from property tory and to people's lives. Districts tax assessment sheets. Comparable values for calendar year 1989 were then gen- help explain the development of a erated by computer. The individual property tax values were totaled for each place, the source of inspiration and year. The astounding results were: 1975 property values for this neighborhood technological advances. They are a totaled$1,679,083. The same parcels in 1989 totaled $9,770,745. The increase record of ourselves and our corn- in values over this 15-year period was 582 percent. munities. The rise in property values reflects not only the neighborhood becoming a more 5. A local district can result in a posi- desirable place to live, but also the investment of capital into this area. The eco- tive economic impact from tourism. nomic benefits of this neighborhood's revitalization can be measured in terms of A historic district that is aestheti- return of property taxes to local government,sales tax collected on the purchase of cally cohesive and well promoted construction materials,construction jobs created by the rehabilitation activity,and can be a community's most impor- creation of an attraction for Mobile's expanding tourist economy. This survey rant attraction. Studies by the C.S. conclusively illustrates that a well-developed historic preservation program and Travel Data Center in Washington, the creation of a local historic district is not only good for the cultural and social D.C. indicate that tourism will be values of a city, it also increases property values and benefits the local economy. the world's leading industry by the year 2000 and that tourists' major Prepared by the Junior League of Mobile, Inc.,and Mark McDonald, ditectot; goal is to experience history and Mobile Historic Development Commission,Mobile,Alabama. culture. The retention of historic areas as a way to attract tourist dol- lars makes good economic sense. Gocrruonent Finamr RI:er/rh Crum:The Economic Benefits of Preserving Community Character. lliishington.U.C.: .Gttioua/Tnist for Hivorie Pn'sei t•ation,Septewhei:1992. How to Increase Your creativity is the only limit in activities of district supporters. The Community Support developing educational tools. role played by the nonprofit as the Communities have had success in predominant district advocate is a An easy way to launch a public aware- using any combination of the following: tremendously important one. The ness campaign for creating a historic ■ Town meetings. workshops, and nonprofit serves as the patient educa— district and establishing a local design work sessions tor before the ordinance comes up for review process is to form a broad- ■ Fact sheets and flyers consideration by elected officials. It is based task force or study committee. ■ Press releases the chief organizer to lobby for the composed of individuals from every ■ Contests passage of preservation legislation walk of life. It is imperative that ■ Festivals, tours, and special events which includes arranging for informed property owners from the proposed ■ Booths and exhibits and supportive testimony at public district be involved from the begin- ■ Banners and posters meetings and hearings. The duties of ning. Task force members should be ■ School curricula the local nonprofit do not stop with hard workers, civic-minded. support- ■ Slide and video presentations ordinance adoption. Its proactive ive, and willing to learn. This task ■ Lecture series involvement should be ongoing and force should be officially recognized ■ Neighborhood coffee klatches might include: conducting straw polls. by a resolution passed by the local • How-to seminars completing historic resource surveys, governing body to give it credibility, developing district awareness cam- It may be helpful for an existing orga- Many communities have found a paigns, and sponsoring planning stud- nization, such as a historical society, combination of educational tech- ies before, during, and after district downtown development organization. niques to be most successful. Clear, designation occurs. Many nonprofits or neighborhood association, to concise, and easy-to-understand mate- extend their role as the primary advo- approach local leaders with the idea. rials are important to the success of care for the commission and suggest The task force will then become the any effort. This approach to commu- names to fill vacancies as terms expire primary group to push for the creation nity education can be repeated when on the commission. they sometimes of local districts and some members a specific proposal is before the goy- provide staff assistance, often serve as may eventually he candidates for erning body. The proponents for mediator in disputes, and participate appointment to the preservation con- adopting an ordinance, designating a in commission training and goal set- mission. district, or implementing any preser- ting exercises. ration strategy MUST be prepared to Begin early to build public and politi- testify in large numbers to support Although essential to successful local cal support. Education should target a their cause. Always assume that those preservation efforts, collaboration is variety of groups throughout the con- who oppose the idea will also be there not always the easiest thing to sustain. munity. From political leaders to in force. District proponents are Fierce turf battles can develop schoolchildren, a wide range of citi- more likely to reach their goals and between groups that share similar zens will be both affected by and community consensus when they are goals. Shortsighted commission mem- interested in the process of creating well versed in the benefits of local hers and local planners, as well as historic districts. Some groups to tar- districts and prepared to counter pos- unproductive nonprofit staff or hoard get in this educational campaign sible opposition. members,can get caught up in mis- would include: communication and needless dis- ■ Elected officials Community education is a collabora- agreements. This always hurts the I Municipal department heads Live effort. just as preservation plan- credibility of local preservationists and • Media ning cannot occur in the isolation of can lead to the ultimate demise of the ■ Business community one program or under the auspices of entire local preservation process. • Developers one agency, department, or organiza- ■ Legal community tion, neither can a community's efforts The need for property owner and res- • Homeowners and neighborhood to educate residents and political ident awareness does not end once organizations leaders about a local preservation ordi- the historic designation occurs. The • Downtown and commercial nance. The collaboration between most effective community education property owners like-minded individuals, civic groups. programs are continuous. In fact, it is ■ Religious leaders merchant and neighborhood associa- especially important to make sure that • Realtors and real estate brokers tions, and professional organizations purchasers of property in a historic • Architects, landscape architects. makes the task of community-wide district after it is designated know and designers public relations an easier one. that their property is subject to • Civic clubs restrictions. Recognizing this, the • Educational leaders and school- Often a local nonprofit preservation Baltimore City Commission for children organization or historical society is the Historical and Architectural ■ Preservation community most logical group to coordinate the Preservation (CHAP)conducted a 6 nationwide survey of selective corn- ■ working with real estate agents to panies, real estate agencies, and munities with preservation commis- inform and educate the real estate relevant public agencies to advise lions in 1992 to determine what community about historic proper- of all designated addresses; methods are being used by other local ties and what historic district status preservation commissions to enhance means: ■ mailing notice of historic district property owner awareness of the designation and commission infor- meaning of historic designation. ■ including historic district status in mation with annual tax bill, water Survey responses indicated numerous real estate multiple listings; bill or new water account bill: methods including: ■ sending annual notices (list of ■ mailing annual commission addresses and maps) to title corn- newsletter to all historic neighbor- hood associations notifying/re- minding owners of record (and tenants if possible) of historic DO YOU THINK THAT BRUNSWICK district designation, guidelines, NEEDS A HISTORIC PRESERVATION and use of data (through ORDINANCE? ■ forming neighborhood association w,..... . -_•�= -_ "welcome committees" to distrib- iTo .E. — ute commission guidelines to new � r homeowners; and ( "IT I implementing city award program r ::J : for owners who have done signifi — �- cant work on their property. I--i k .1t • i L.N r '.1jjilyrrJj iimez Understanding Historic Districts Learn about and express your views on the Much confusion, misinformation, and proposed preservation ordinance at the public suspicion surrounds the issue of creat- ing local historic districts and desig- meetings conducted by Mayor A.C. Knight. Hating local landmarks. Even the ter- minology is misleading and ambigu- AUGUST 1 -- Glynn County Middle ous at times. The apprehension of School, 7:30 p.m. typical property owners is under- standable. Their questions and con- AUGUST 21 -- Risley Center Middle cerns stem from having only a vague School, 7:30 p.m. awareness of community enhance- ment programs and historic presera- SEPTEMBER 5 -- Burroughs-Mollette tion. ?Most Americans do not under- stand the specifics of municipally School, 7:30 p.m. based design review and historic 2 ® resource protection strategies and may have difficulty distinguishing local preservation endeavors from , state or national programs. The average citizen might wonder Copies of the proposed ordinance are available why a particular area should become alocal historic district in addition to at City Hall and also at the meetings. being listed in the National Register REMEMBER Your opinion counts ! Town meetings can help educate local residents about the designation process. U of Historic Places or in a state register CASE STUDY: of historic places. A historic district can be a local district, a National -"ew 3otk Preservationists Support Landmarks Commission Register district, a state-designated Preservationists can he more than a vocal constituency. The shrewd landmarks district, or all three. Each type of des commission realizes that preservationists may be its strongest and only organized ignation is a useful preservation tool and,while they are different, they supporters. Preservation in NewYork is often a hard sell, especially against the share some common characteristics. big guns of the developers. Working with preservation groups—either organized Since every state does not have a state nonprofits or grass-roots community organizations—is often the only way to register and since there is great sari_ counter these powerful antagonists. ety among those that do. this booklet Nyill address the differences between For some time, a powerful group of religious nonprofits tried to get exempted local and National Register districts from New York City's Landmarks Law. Stating economic hardship. the religious only. groups hired lobbyists and lawyers to argue their case and brought dozens of priests, ministers and rabbis (almost all, ironically, representing non-landmarked A National Register district is any area buildings) to testify. The issue was pitched on a politically attractive emotional level. The city administration was under considerable pressure to accept legisla- of a community that has been deter- mined to be of historic significance Lion that would effectively exempt nonprofits from the law. based on criteria established by the C.S. Department of the Interior(see The preservation community rallied to the support of the landmarks commission. Appendix A). The National Register Preservationists brought their own ministers, priests and rabbis to testify(all from is a federal designation signifying that landmarked buildings). They got preservation-minded constituents and neigh- a building or site has historic or arche- borhood groups to visit city council members, reminding the politicians that their ological significance to the nation. position on this issue would matter on election day. They debated their side of Such designation does not trigger any the argument on radio shows and in the letters column of the press. None of this restrictions on private property own- could have been done by a city agency. The preservation community and the ers. It may, however, call upon feder- landmarks commission won. The legislation that was passed met the require- al agencies to consider the impact of ments of the charter change without eviscerating the landmarks law. their activities on historic sites before proceeding with federally funded or Sometimes preservation battles are lost. The Dvorak House,where Antonin licensed projects. Preservation incen- Dvorak lived and wrote the New World Symphony was destroyed following a rives, such as historic rehabilitation hard preservation battle. Despite a well-funded campaign by a major New York tax credits, are also available to quali- hospital and the fact that this was an emotional issue over constructing an AIDS fying buildings in National Register facility on the site, more than a third of the city council voted to confirm the districts. The major function of a landmark status of the building. Without the activities of preservation groups, National Register district. however, is Czech associations,and music societies, including two orchestras, the vote would simply to recognize the historic signif- not even have been close. icance of the resources within it and to use this information as a planning The trick is for both sides—the commission and the preservation group—to real- tool. ize they will occasionally disagree. The commission cannot ask the preservation- ists to abandon their prodding of the commission. The preservationists must A local district is similar to a National remember, on the other hand, that a landmarks commission has to function with- Register district in many ways. The in an administrative bureaucracy and tight budgets and is not always the master two can be used independently or of its own fate. But, if communications are kept open in the areas of mutual cooperatively to protect a communi- agreement, the preservationists, like any other interest group in today's politics, ty's resources. Like the National can bring considerable pressure to bear on the political process. Register district, the local district identifies historically and architec- Prepared by Eric Allison.president of the Historic Districts Council in.feu' York. turall• significant buildings. but this recognition can be based on locally developed, rather than national, crite- ria and policies. Local significance. attitudes, and contemporary events will affect what a community views as important. Because properties less than 50 years old are generally not eli- gible for National Register listing, the National Register may not serve as a 8 good measure for identifying and required, property owner consent, what size, and how many historic dis- evaluating more recent character- SHPO and National Park Service con- trier designations should be made. defining development in a communi- currence, and costs will all play a role An ongoing process, the survey is the ty. It is, therefore, possible to include in determining what types of designa- basis for community education and in a local district resources such as tion are appropriate. public awareness campaigns about cemeteries, religious institutions, local historic resources. moved buildings, and properties less Hoy"air District Boundary Lines than 50 years old, which ordinarily are Established.? Russell Wright's.-1 Guide to De/ineating not considered National Register-eli- IE:d c;of Historic Districts stresses the gihle. Preservationists. planners, design importance of preliminary work,such professionals, elected officials, and as a comprehensive historic resources 'l'he primary strength of local desig- neighborhood advocates are faced survey, to identify and document cur- nation is that it is tailored to specific with the challenge of setting bound- rent conditions. It offers a series of community needs and provides aries for a wide range of historic dis- six "edge factors" to consider when greater protection for local resources. tricts. Hundreds of questions arise establishing boundaries: The preservation commission or when districts are proposed. Which other local government body, through buildings should be included? Should 1. Historical Factors the design review process, has the vacant lots he excluded? What about • Boundaries of an original means to assure that proposed major contemporary intrusions: Should a settlement or early planned changes are sympathetic to the char- buffer zone surround the district: community acter of the district. Because Should National Register boundaries • Concentration of early buildings National Register listing does not and local zoning or planning hound- and sites provide for a design review process, aries differ? What will happen to the 2. Visual Factors properties listed only in the National properties in a district after designation? ■ Determinations or influences of Register can be readily and easily • an architectural survey altered or demolished by anyone not The problems are obvious. Solving • Changes in the visual character using federal funds. them'can become a community night- of an area mare, but this does not have to be the • 'Ibpographical considerations National Register and local designa- case. There is a logical process for ■ Gateways, entrances, and vistas Lions can work together. For exam- determining the edges of historic dis- to and from a district ple, an existing National Register dis- tricts. 3. Physical Factors trict can serve as the basis for desig- • Railroads, expressways, and nating a local district, perhaps with The visual and environmental charac- major highways boundary lines altered as research. ter of any area, especially historic dis- ■ Major urban spaces community needs, and local politics triers, comes from the relationship ■ Rivers, marshlands, and other dictate. The National Register pro- between natural and man-made fea- natural features gram is also a credible way to identify tures. Thar relationship is vital to ■ Major changes in land use a community's historic resources understanding why one area is differ- • Walls, embankments,fence lines while local district designation can ent, perhaps even better, than anoth- ■ Limits of a settled area further protect and enhance them. er. The individualized design of 4. Surveyed lines and lines of Thus, what the National Register buildings and landscapes, the settle- convenience helps to identify, the local district ment patterns of communities, the ■ Legally established boundary helps to protect. comfort of human-scale neighbor- lines hoods with tree-lined streets, and the ■ Streets and other local Because the listing process is often physical connection to the past all rights-of-way less involved, less bureaucratic, and contribute to a vibrant, harmonious ■ Property lines less time consuming for a publicly relationship in most historic districts. ■ Uniform setback lines supported local district than for a ■ Other lines of convenience National Register district, local desig- A historic resources survey—the 5. Political considerations nation may precede National process of identifying and gathering • Opinions of government officials, Register activity. An existing local data on a community's historic institutions, private citizens, district can provide the basis for a resources—must be conducted prior and property owners subsequent National Register nomi- to successful district designation. 6. Socioeconomic factors nation. The order in which a corn- The historic resources survey will ■ Ability of residents to pay for munity pursues designation and define the community's historic char- improvements whether dual designation is useful acter and will produce a working ■ Desire to conform to district varies according to local circum- inventory of sites and structures used regulations stances. Differences in research to make judgments about where, ■ Affordability of remaining in area after designation Somefolllrl!!/A!t/l i holdpublic meeti/i,c b�� I - f .;� 1 -.• 4 ,.,` and pre-designation workshops to discuss 1 ( ., i 0r I ;1- „ !I - bounda proposals with/ora/residents 1 ra' ;_ tt - -E _ and property owners. As __ lit' ' 14\ iirmmh.:.:1' IF . 121.-- r ' r--- '''''t: LI,. . ilik • .'. - ,-O _- F: This list is a sample of the many fac- Due to variations among state 1. An ordinance must promote a valid tors that influence decisions regarding enabling legislation that affects local public purpose. That is, it must district boundaries. \Ian•cities hold regulatory statutes and 60 years of somehow advance public health, public meetings and pre-designation evolution of state and federal legisla- safer, or general welfare. workshops to discuss boundary pro- rive and judicial action regarding his- posals with residents, property own- tonic designations and aesthetic con- 2. An ordinance must honor a citi- ers, and preservationists. Some corn- troll,great variety exists among local zen's constitutional right to "due munities utilize planning staff, consul- preservation programs. Designation process" under the law. In other tants. or commission members to con- criteria and ordinance provisions arc words, fair hearings and notice to duct these workshops. After gather- often borrowed from community to property owners must be provided ing community sentiment, reviewing community, and they evolve and, and rational procedures must be designation criteria, analyzing all the hopefully, improve as they move from followed in the administration of "edge factors." and considering other town to town. "Therefore. provisions an ordinance. community development and plan- differ and are sometimes hard to con- ning goals. an informed recommenda- prehend and even harder to compare. 3. An ordinance must not be so tion regarding district boundaries can restrictive as to deprive a property be made. Each preservation ordinance should owner of all reasonable economic be unique. Each one should be writ- use of his or her property. ten to meet the specific needs of a ii 7tnt are the Components of a particular community. There are, 4. An ordinance must comply with all Landmark Ordinance? however,some basic components that relevant state laws." almost all preservation ordinances "i'he preservation ordinance and have in common.' If a local ordinance violates any of review commission are key elements these rules, it could be challenged in of municipal preservation programs. The local preservation ordinance is a court. In the case of Carmel. New They are the foundations of local goy- type of land-use law. The power of 'ork, a trial court invalidated the ernment preservation policy and rep- local government to regulate private town's historic preservation ordinance. resent the willingness of a community property through land-use laws is In 1988, the trial court held that the to recognize. invest in. and protect its referred to as "police power'. and is town's failure to provide adequate historic resources. '1•hc preservation reserved to the states by the [-sited notice of a public hearing prior to the ordinance is nothing more than local States Constitution. Since preserva- adoption of the ordinance created a legislation enacted to protect build- Lion ordinances are an expression of jurisdictional defect and, therefore, ings and neighborhoods from destruc- the police power governing land use, the ordinance was invalid. The"l'own tion or insensitive rehabilitation. they should strive to comply with the Law governing the enactment of ordi- four cardinal rules of land-use law: nances requires that a ten-day notice of public hearing be provided. The notice for the public hearing on the 10 preservation ordinance was given only CASE STUDY: seven days before the ordinance was adopted. citizen In;.•olz'emew in Athe11S, GeOrgill When an ordinance to designate dis In.Athens, Georgia. the preservation commission was established by ordinance in triers and/or individual landmarks is 19h6. .Athens' designation process is governed by the provisions of the Georgia passed, it signifies that affected prop- Historic Preservation Act. the state enabling legislation for creating local districts. err owners are subject to one addi As a matter of local policy.city planners and the preservation commission give tional layer of regulation, over and considerable weight to owner and occupant support for local district nominations. above the existing zoning and land-use The Boulevard District. a mixed-income, turn-of-the-century residential district, ordinances governing that property. These ordinances are often called is a good example of how Athens balanced citizen input concerning district "overlay zoning" because they arc boundaries with historic significance and architectural merit. The neighborhood association, in cooperation with local planning staff, the state historic preservation laid atop the underlying or "base zon_ office, and members of the preservation in, ' regulations. They generally require property owners to obtain a commission, sponsored community permit,called a "certificate of appri meetings at a public school in the district priateness." before a building is to explain the nature of historic designa- demolished, moved, or its exterior Lions and to begin the process of influ- altered in ways that would affect its encing public sentiment. The historic character and the character of the dis- and architectural significance of the area © Boulevard [riot, and before new construction may was explained. maps of proposed hound- Historic cries presented, and the benefits and occur. The commission or review 1;I; hoard issues the permit, which is the responsibilities of designation discussed. •li 1m0i" l go-ahead for other municipal boards The meeting confirmed that there was — �� p• II strong support Liu the district and, as �; Im and agencies to begin their permit District I;r, required by ordinance, the historic approval process. An appeals proce- f', •j dure is available to propertyowners or Preservation commission scheduled and mailed notices of apublic hearing to other citizens who are dissatisfied dill ilia with the commission's decision. both owners and occupants of property in the area. .A questionnaire was includ- Preseryation ordinances provide a ed with these notices to further assess constitutional way for local govern- "' the sentiment of those who might have Ilia:. menu to protect special aspects of ings.been unable to attend the public hear- their communities. The basic consti_ The findings of the questionnaire rationality of preservation ordinances were not binding on the preservation was upheld in the 1978 Supreme commission or elected officials. Court decision affecting Grand As a result of the public participation and community education components of Central terminal in New fork City. In its ruling on Penn Central the local designation process, the preservation commission decided to redraw the Transportation Company V. City of boundaries of its first district proposal. Some property owners wanted to be New ful: (438 U.S. lU 1), the court excluded from the Boulevard District. They felt that their part of the neighbor- indicated that historic preservation is hood should he designated separately and at a later date due to a visual and geo- a valid public purpose and that the graphic separation from the main body of the proposed district. Additionally, the area requesting exclusion included a larger percentage of renters on fixed incomes. New fork landmarks preservation The commission agreed somewhat reluctantly and made its final proposal to city ordinance had not "taken" private property in violation of the council excluding the portion under dispute. The district was designated as rec- Constitution because the ordinances ommended. restrictions left Penn Central with a "reasonable beneficial use" of its The commission's responsiveness to local sentiment and encouragement of own- ers and residents to be part of the process resulted in a sense of ownership and landmark property. responsibility among the district residents. The residents have emerged as dis- trict watchdogs so that the sole responsibility for monitoring the district does not Because of the legal nature of local lie with the commission members or city staff. preservation ordinances, it is impera- tive that community groups consult with legal staff when drafting an ordi- nance. Przylurrd by Julie.11rrl�nu,prose/�wtion planner with Atherrs/C./ai e Counnv. The city staff attorney and local attorneys interested in preserva- tion, as xyell as national organizations 1i _ restrictive ordinances are more palat- providing preservation legal assis- (� ,z��� able if they "sweeten the pie" by ranee, are good sources of assistance. r-E linking strong incentives to a regula- EsIGIc tory process. Among the incentive programs offered by local govern- How Does the Design Review Ill G 14 i ments arc tax incentives. direct finan- Process ii'or? _ _ cial assistance. zoning incentives, reg- - ulatory relief from building codes or While local districts and the reasons " a.mr parking requirements. and a variety 'i . { for creating them cony, districts arc of technical assistance programs. generally based on the adoption of an J �: c ordinance and the creation of a design j :a ,_, The preservation commission's dcci- review board called a preservation y sions and activities must be backed 10�t� governingcommission. Commissions have a II� up by the local gcrning body and range of power or authority. ji_ municipal staff to he effective. Enforcement of commission decisions A compulsory or mandatory design r r.,o,,: and penalties or fines for non-compli- lv,..' r habi(aarion r thee to centralbv.,inn,r di,Mrr.n and review program is the most common 1 ; ,,,� for once with the provisions of the ordi- method used to regulate local historic ;` , iiisconsin nance make the commission's voice districts. Property owners are carry the full weight of local law. required to follow established design This kind of municipal support is a review procedures,just as they are •1/!rill Street programs sometimes offer critical part of the commission's pub- required to conform to building and ;/feria/ineentizc:c for fiirrir/e ilnproi•enent lie mandate and must be carefully fire codes and other regulations. proietc that.follow ecta//is-keti design nurtured and maintained. guidelines. A commission's authority can he only advisory in nature, whereby decisions Many communities have a combined Local Innovations simply serve as guidance to property approach and have added a number of owners, planning commissions, town incentives to the more typical corn- More than 60 years have passed since councils, or county commissioners. pulsory or mandatory design review to the enactment of the 1931 Charleston strengthen their municipal preserva- statute. Communities are imple- Some local preservation review and tion programs. Community planners menting revisions and innovations to protection strategies are incentive- have discovered that regulations and the traditional preservation ordinance. related. 'These programs operate in a "carrot and stick" fashion and are often a precursor to implementing a Takings Clause . • • mandatory review program. Generally, a property owner is afforded a special Legal challenges to ordinances mit the economically viable use of service,such as free technical advice often invoke the "takings" clause land. If a taking is determined to or design assistance, in return for of the Constitution's Fifth have occurred, the local govern- adherence to certain standards. guide- Amendment,which provides that ment risks having to compensate lines,and/or restrictions. Most often, . "private property [shall not] be the property owners for loss of use incentive-related design review is taken for public use, without just during the period the regulation associated with downtown revitalize- compensation." The Supreme was in place. Such a result is Lion programs. Many local Main Court long ago ruled that the tak- extremely rare, however, particular- Street programs. for example, offer ings clause does not prohibit local ly in the case of historic preserva- low-interest loans or matching grants- governments from imposing rea- tion ordinances. According to Paul in-aid to downtown businesses to help sonable controls on the use of land W. Edmondson, National Trust finance building facade improve- without providing compensation. attorney, "It is important to recog- ments. The property owner is Landowners may still argue that a nize that existing court precedent required to follow established design taking has occurred if a regulation makes it difficult in the first place guidelines and submit plans and either fails to substantially advance to prove that land use regulations of drawings to a design review commit- a legitimate state interest(general- this type amount to a taking."' tee and/or loan approval board before ly not an issue for preservation, work begins. since the U.S. Supreme Court has ',Va mere/,S7ukns,Elizabeth Watson.Grnrz•ir e explicitly recognized the validity of Keller Timothy Kaki;Saving America's Countryside: A Guide to Rural this type of regulation), or its effect Conservation.Bnbirrrorr and London: is so extreme that it does not per- The Johns Napkins ferns, 19,t9. local historic district, and design CASE STUDY: review board. "These changes are inevitable and should be welcomed InCe11tlz 'Programs by preservationists. In 1989, Roanoke.Virginia.created a Historic Buildings Rehabilitation Loan Conservation Districts Program. Local banks provide rehabilitation loans of up to$100.000 per project. The interest rate is set at two percent below prime and the loan term at seven One of the most talked about eaten Fears. The program is limited to historic buildings in Roanoke's downtown his- sions of the traditional local historic toric district or buildings in the district that arc determined to contribute to its character. In addition, the City of Roanoke offers facade improvement matching district program is the conservation district. Cities such as Raleigh. North grants of up to$5,000 and provides free architectural design assistance to property Carolina: Omaha, Nebraska: Portland, owners in local historic districts. 'lip qualify for these grants. a person must reha- Oregon; Cambridge and Boston, bilitate a deteriorated building and provide job opportunities for low-and nuider- \lassachusetts; Dallas. Texas and ate-income persons. This program is funded through Community Development Nashville,"lennessee, have all supple- Block Grant funds available from the U.S. Department of Housing and Urban mented their preservation programs Development. with conservation districts. While in Lansing, Michigan. the following language in the preservation ordinance great variety exists among these pro- serves as an incentive for compatible infill development in local historic districts: grams and they can be applied to commercial, residential, industrial, or ''Due to particular conditions of design and construction in historic neighbor- rural districts, most conservation dis hoods where structures are often built close to lot lines, and since it is in the triers share some similar goals: public interest to retain a neighborhood's historic appearance by making vari- ances to normal yard requirements where it is deemed that such variances will 1. to maintain the buildings and char- not adversely affect neighborhood properties. the Historic District Commission aeter of an area that may not fully may recommend to the Board of Zoning Appeals that a variance to standard yard meet the criteria for a local historic requirements be made." district: In \liami, Florida.zoning, parking.and building code requirements are extreme- 2. to provide guidance for mainte- ly flexible when applied to historic structures. Under the Miami historic overlay nance and alterations that allows zone ordinance, the city may approve conditional uses, i.e., professional offices, more design flexibility than a local tourist and guest homes, museums, private clubs and lodges, in order to make historic district: the preservation of historic structures more economically feasible. 'Miami also permits waivers of minimum lot size, floor area, open space, height. building 3. to reduce the number of applica- spacing,and footprint requirements to encourage historic preservation. Where tions that come before a commis- the size or configuration of a historic district is such that compliance with off- lion by delegating some approval street parking requirements would destroy the area's historic character, the city authority to staff(this is especially may authorize a reduction of up to one-third of the number of parking spaces important in districts that contain a that would otherwise be required. large number resources that have similar characteristics, such as bun- In Seattle,Washington, the preservation ordinance authorizes an entire package galow neighborhoods or row hous- of incentives containing "tax relief,conditional use permits, rezoning, street es): and vacation [or closings], planned unit development, transfer of development rights. facade easements, named gifts, preferential leasing policies, private or public 4. to retain a source of affordable grants-in-aid, beneficial placement of public improvements, or amenities, or the housing in low- to moderate- like."' income areas. 'Conctanr'e E.Beaumont, "Low/lurrntir,es for Historic Pirce,ttuion.•' Il ashinptou,D.C..:Center for Prrcerrution Po/try Studies.National Trust for Historic 1'rrcerrutiou• 199/and Richard C.Collins. Specific architectural and urban Elizabeth 11. Maio,:c•and A.13,nre Dotson.America's Downtowns:Growth,Politics and Preservation. design standards and guidelines are a 1 ashi,,'ton:The Preservation Pn:cs, 1991. very important part of most conserva- tion district programs. Some commu- nities also choose to extend local preservation incentives to both his- toric and conservation districts."' Environmental and :. : as for resources already designated. Landscape Protection ;ae ;,'� �F ic 7- u - a- The PHPC recognizes that many of ...,.r,t_ - �� %7.5:z`: - the city•s historic resources have not Many local governments have enacted _� 6 been surveyed or designated, and this laws to protect the landscape of their 1.-;: i- . ' -. �4 way is able to protect potentially salu- historic districts. Very stringent -'.f;-,;H {.' '1" ' -,_a . able properties without placing an streetscape provisions arc added to �`?`",."t �..',, undue burden on itself or its staff.'' design guidelines and preservation t • '• ordinances or may be a separate and �.�yK z,.- *?�'. Again, it is important that communi- specific ordinance governing historic ties using interim controls take care to plant material retention, tree replace- ' - ,», •, . comply with all relevant state ment, and landscape improvements. i ``'r`:_` enabling laws, follow proper adminis- `: °'' trativc procedures, and adhere to pub- In Aiken, South Carolina, for exam- Aiken,South Manual lie notice and hearing requirements. ple. historic district design guidelines Although these requirements vary, were written to emphasize landscape depending on local circumstances, it design, streetscape considerations, the ,,,,,,,,,,,,,,,, is important to remember that a L .S. parkway system, plant materials, and citizen's right to "due process" under town form. A community whose the law must not be taken away. "Winter Colony" began attracting Design,guidelines in Aiken. South America's wealthy horse enthusiasts in Carolina emphasize the/ondsrrrpe. Sign Controls the 1870s, Aiken has a unique pastoral quality created by wide parkways, \Ian•historic districts are especially boulevards, and dense tree plantings. provide reasonable limitations to curb vulnerable to insensitive signage and Unpaved roads persisted throughout speculative demolitions and prevent can become cluttered with signs of all the 20th century as a benefit to the hasty actions made by uneasy proper- types,sizes, and functions. As a horses. A provision in the Aiken CV owners. result, communities are strengthening preservation ordinance requires existing sign controls to reflect the municipal and county departments, as Phoenix.Arizona, for example, has goals of their historic districts. While well as utility companies, to comply passed an ordinance that provides signage within historic districts may with the design guidelines and to interim protection. Following the be successfully regulated, the obtain preservation commission demolition of two historic buildings, a entrances and approaches to the dis- approval of work proposed in historic c. 1910 bungalow and a Nloderne style trict often remained unprotected. A districts. This provision is extremely commercial building(the commercial comprehensive study of signage and important since most of the significant building was listed in the National sign controls is often precipitated by landscape features in Aiken are in Register. but neither building was the creation of a local district. public rights-of-way." locally designated) the city approved a Innovations in this area include the temporary ordinance prohibiting the recognition and protection of historic Interim Protection demolition of any building 40 years signage• such as neon and wall murals. old or older without permit review by Historic signage will often fail to con- In some communities, property own- the Phoenix Historic Preservation form to local regulations. A "grandfa- ers, fearful that proposed regulations Commission (PHPC). Seemingly a ther clause" added to existing sign will restrict their ability to fully redc- strong preservation tool, the ordinance controls protects the historic signs velop their property i.e.,demolish a soon proved to be an overwhelming while allowing the regulation of con- historic structure and replace it with a burden. In a three-month period, the temporary signage. much larger building or make signifi- PHPC reviewed 102 demolition appli- cant additions. seek demolition per- cations. Minimum Maintenance mits at the mere mention of a pro- posed district. This is especially true Rather than continue to review even- in many cities the problems associat- in communities where the develop- demolition permit requested for ed with historic structures involve ment climate is speculative and prop- buildings of 40 years or older, the poor maintenance especially by env values vary widely between new PHPC proposed stronger protection absentee landlords. Structures are left buildings and old ones. In these of historic resources that have nor yet in such a state of disrepair or aban- cases, interim controls and moratoria been designated, but for which appli- donment that public safety comes on permits have been instituted for cation for historic designation has into question. In a few cases, there is areas nominated. but not yet officially been "initiated." The revised ordi- no option but to demolish a building designated, as historic. All controls nance provides the same demolition that has reached the point of no are imposed for a specified time to review protection for these properties return. Often referred to as •"demoli- Lion by neglect," this condition can allowing deterioration. Some of the nent damage to a structure—a be counteracted by including provi- prohibitions include: deterioration of requirement that alloys considerable sions in a local preservation ordinance exterior walls, roofs and chimneys; damage to occur before repairs can be that require all property to be main- ineffective waterproofing; peeling mandated.' mined to minimum standards. paint, rotting and other forms of Generally this means that water, decay. This ordinance is effective in Land Use Provisions vagrants, and vermin should not pen- preventing demolition by neglect errate the building, thereby requiring since it requires repairs at an early Most preservation commissions deal property owners to keep historic stage in the deterioration process. primarily with design changes in dis- buildings stable. These provisions tricts. They are charged with making are referred to as the affirmative or The anti-neglect provision in the sure that proposed alterations are minimum maintenance clause of an Petersburg, Virginia, code is cast in compatible with the character of the ordinance. Such provisions have terms of the repairs that can be district. Because it is the underlying proved very effective in communities ordered, rather than the conditions use of the land, e.g., commercial, where neglected properties are a prohibited: "The owner of any build- multi-family, single-family,or light problem. ing or structure, which is located industrial, that can ultimately deter- within the historic area, shall keep mine how a given parcel will be Charlottesville,Virginia, has an affir- such structure properly maintained developed, the commission can be nrative maintenance provision that and repaired. . . ." This ordinance placed in the uncomfortable role of prohibits the owner or person in requires prevention of only serious trying to make a square peg fit-into a charge of regulated property from structural defects threatening perma- round hole. The district's character may have been formed by the kind of activity that historically occurred there. For example, a commercial CASE STUDY: area made up of locally-owned, small businesses might be forever changed Pocatello, Idaho when larger national chains or fran- chises replace them. For these rea- Pocatello is unique, not only in the name it shares with no other cities, but also sons, more and more ordinances spell because of its downtown historic district which is one of the most diverse and out a clear relationship between the well-preserved in the region. The district was first placed on the National design decisions and land-use deci- Register in 1982. The Downtown Historic District(DHD)was created three sions made in a historic district. years later when, after the demolition of a historic building, concerned citizens established what is now the Historic Preservation Commission (HPC). today Reviewing Local the DHD encompasses all or part of 18 city blocks and is composed primarily of Government Activities one and two-story commercial buildings. Many local governments exempt In 1987, the Pocatello city council adopted a sign ordinance requiring that signs their own undertakings from the ordi- proposed for placement in the DHD be reviewed and approved by the commis- nances adopted to protect historic Sion before issuing a sign permit. The commission, in addition to ensuring con- areas,even though one of the largest formic-with other standards set forth in the ordinance,evaluates the general owners of historic buildings in a corn- appearance of the sign and ensures its compatibility of size,color, style and mate- munit•is often the local government. rial with the building on which it is mounted, as well as with neighboring build- For this reason, many local preserva- ings. Signs within the district must be constructed of wood or metal with internal don statutes now address how gov- illumination prohibited. Neon signs, however, are permitted due to their historic ernmental action will be reviewed by significance. the commission. The majority of these provisions state that the preset- The commission recently completed a sign survey for the DHD in order to pre- vation commission will have the sent a structural, cosmetic, and cost analysis for possible rehabilitation of the 20 opportunity to review and comment historically significant downtown signs. Information obtained from the survey on governmental activity that will has already helped preserve a Greyhound Bus neon sign featuring a running affect historic properties. Its com- greyhound. The objective of the study was achieved—a historic sign was saved ments usually are not binding on the rather than being removed. The 1-IPC has had a proactive role in the preserva- local government entity. tion of downtown signs rather than waiting to react to applications for sign replacement. Some local governments feel that since they are imposing historic dis- Pizpan'd by Matthew G. Lewis.principal plannei: Pori/kilo, Idaho. trict regulations on the private citizen, they should also be compelled,as a matter of policy or law, to follow the (DRPB)and staff were concerned and delegation of additional responsi- same regulations. It should also be about reuse alterations that might be bilities to downtown business coun- noted that state and federal actions harmful to the landmark's significant cils, neighborhood associations, non- are often not hound by local ordi- interior. Citing the intent of the ordi- profit preservation organizations, or nances. Many state governments are mince as protection of historic historical societies can help the enacting environmental review laws resources for the "benefit of the pub- preservation commission develop similar to the federal environmental lie," the DRPB amended the preser- long-term comprehensive programs. review process to overcome this lack ration ordinance requiring DRPB of protection. "1'he programs require a design review of alterations of interi- special report and recommendations ors considered as "public spaces" in Historic Districts and for mitigation methods when federal designated properties. Hotel lobbies. Local Phoning Issues or state actions or funding threaten a public bank interiors. and similar designated historic resource. spaces are afforded an added level of The community planning process can protection through this provision." be compared to a jigsaw puzzle. with Review of Historic Interiors historic preservation as one of the sib Additional Duties nificant pieces. Of course, the plan- Many local preservationists have ning process is able to operate without interpreted their local ordinances in \lane commissions are authorized to preservation as a component. as it has such a way as to permit the regulation conduct a wide variety of research and for decades in many communities, of the entire building. while others community service activities. They sometimes resulting in wholesale feel that a separate designation sometimes seek funding, administer destruction of historic resources and process is needed to recognize and grants, receive and manage property, the creation of nameless and faceless protect historic interior spaces. Some conduct planning studies, maintain planned failures. When historic local laws are written in such a way local registers or inventories of historic preservation is part of a comprehen- that only those interiors to which the . properties.conduct educational pro- sive planning strategy that includes public has ordinary access can be des- grams. maintain resource centers and ALL of a community's resources, the ignated and regulated. Other com- libraries, and provide technical assis- results can be impressive. The iden- missions feel that they are specifically tance to the public. These additional tification and protection process of prohibited by state enabling laws duties can be limitless and should be local historic districts, often coupled from designating and reviewing interi- considered carefully. A comprehen- with a landmark protection program, ors. Indianapolis. Seattle. Boston. sive local preservation program goes works with other elements of a com- New York and Asheville. North well beyond design review in historic prehensive plan to complete the corn- Carolina all have interior designation districts. Doing more than designat- munity development picture. programs." ing and protecting historic districts, however, may he beyond the capahili- Zoning. for example, is one of the When a locally designated historic ties of newer commissions or commis- chief components of the community commercial property went up for sale sions with small budgets and little or planning process. Zoning defines in 1990, the Sacramento Design no staff assistance. Cooperation areas or districts and specifies how Review-and Preservation Board between local government agencies land in them can be used. Generally In Pocatello, Idaho, rcz'ica procedures in the downtown n historic!district extend to _� historic signs. �.�r 1, ' OCb' �� ` • \ .��5���� ..ti\• `AC Cam, Inc- I .... •• . . VI p,'t'APPR .':j / 111 Yr 16 CASE STUDY: 6. Do commercial zones permit auto- mobile-oriented commercial uses, Loral Innovations iii Bozeman, Montana such as drive-through facilities with large parking lots, that con- The historic preservation board in Bozeman. Nlontana, devised an innovative flict with the traditional street- program. the "Contributed Services Bank." to help property owners comply with front and pedestrian orientation of historic district guidelines. The concept was quite simple: ask preservation- historic commercial buildings' minded architects, historians and other professionals who had demonstrated sen- sitivity toward historic properties to contribute 20 hours of professional time over 7. Does zoning require so many off- a year's period. The time would be "banked and subsequently "granted" to street parking spaces that it ham- property owners considering improvements. pees the rehabilitation of historic buildings or the construction of "I'he time granted to property owners was limited to two hours from each profes- compatible new infill buildings?"' signal. As the professionals toured the property with the owners, they made sug- gestions,answered questions and sketched ideas. 'i'he owners were free to Similar analysis should occur for accept or reject the suggestions. Although some ideas were rejected, in most every municipal planning activity. instances they were enthusiastically received and implemented. In some cases, including transportation, housing, those same professionals were retained by the owners to detail designs, research social services, infrastructure and capi- property histories or assist with restoration. tal improvements, parks and recre- ation,and economic or industrial Bozeman's newly-created design review board has now assumed much of the role development. of the Service Bank. The Bank, however, played a critical role in helping citizens protect the city's historic resources. One property owner stated, "I had no idea how The American Planning Association to implement my rather vague aspirations for my newly acquired property. The (APA) has endorsed the concept of l Preservation Board] advisors helped me sort out my thoughts and recommended identifying and protecting historic the kinds of improvements that would enhance the character of my house." resources through local survey and designation programs by adopting a Prepared by Keith G. Swenson,. ICP,planning c•araae/tenet, Bozeman,.11ontin a. sweeping policy regarding local preservation: 1. Are historic residential nei=hbor "The he APA supports efforts by local tuning regulations specify the maxi- g governments to integrate preservation mum size of buildings, lot sizes, the hoods with single-family houses } zoned for single-family residential into the land-use planning process, required open space around buildings, including incorporating preservation the number of parking spaces or other compatible uses: goals into the community master plan . required, and any number of other and reconciling and coordinating development criteria. 2. Do lot sizes and the building set- ,-,P back requirements from the front preservation policies with local devel- lot line match historicpatterns? opment policies. The reasons for this Zoning must be closely coordinated support are that a sound preservation with the goals of the local district and program must be based on a survey,a landmark designation program. When 3. Do separate zoning districts with gregulationswidely divergent regulations (one historic preservation ordinance and zgnin�, and preservationg plan, and economic and technical goals work at cross purposes, both suf.- for high-density commercial use, fer. Coordination can take place in a one for single-family residential, assistance in coordination with other for example)divide a single his community policies and ordinances. variety of ways. Simple strategies P single Local governments should work with involving increased communication tonic district: citizens and local interest groups to between municipal agencies and make preservation a part of the over- review board members are important. 4. Does zoning for areas immediately all effort to foster and promote the Zoning and preservation ordinances surrounding a historic district pro- „1; �= wide an adequate buffer against general welfare of the community. should include provisions spelling,out l . their interrelatedness and ways to development that would have a remedy potential conflicts between negative impact on the historic the regulations. area: The following questions are a starting S. Do commercial zones allow much point for identifying conflicts between taller and larger buildings than cur- zoning and preservation: rently exist in the historic district? 1111 Is Your community Ready to should expect that new administrative to propel communities toward a corn- Establish n Local'Historic activities and costs will accompany mon goal. but if a discrepancy exists District? the creation of any new regulatory between community development process. Although this might be seen policies and the goals for setting up a loci might be wondering, is my town as burdensome to existing staff and local district, that district will be polit= ready for a district? 1-low do we do it? dwindling budgets. most commissions icallv difficult to establish and even Where do we turn for help? "There arc willing to seek special grants and harder to administer. arc seven essential questions to con- staffing arrangements to facilitate sider before establishing a local dis- operations. The additional work asso- 5. How will the commission make trict. elated with a new commission and decisions? Will there be training district protection program is rarely so opportunities? 1. What is the method for locally great as to prohibit its creation. One of the questions property owners designating and protecting historic Duties usually include processing most frequently ask is. "I-low will this resources in my state? forms, keeping minutes, advertising, hoard decide what appropriate Each state has a different set of notification and posting requirements. means?" This is a valid query and is enabling statutes to guide local gov- and providing open meeting space. at the heart of successful commission crnments in establishing preservation This work is not overly cumbersome decisions. Often, relevant profession- commissions. Most states have enact- for most local governments. al disciplines, such as history. architec- ed very specific laws that establish Generally existing personnel within a tore. or law, arc not represented in a parameters for commission composi- planning office, shared staff with a community or available professionals tion, provisions to ensure due process, local nonprofit organization, or a arc not able to serve. \lany local definitions covering what constitutes regional planning agency can handle review commissions have no option a local district or landmark, as well as most of the day-to-day activities. As but to appoint non-professional or lax- exemptions, economic hardship deter- the benefits of a local protection pro- members. While it may be argued mination, and penalty provisions. gram accrue, local governments often that it is important to have a few lay Check with your state historic preser- appropriate municipal funding to members to balance the commission. vation office(SHPO), statewide assist in the commission's work. As the need for professional expertise on preservation organization. statewide more districts are designated in a the commission cannot be over- planning association. \ational Trust community. many governmental units emphasized. for Historic Preservation regional find it beneficial to hire a full-time office, or municipal league to find out preservation planner or preservation One very important mechanism for how your state has enabled the cre- officer. ensuring consistency and uniformity anon of local districts. is design guidelines. Design guide- 4.Will this mesh with the current lines are generally district-specific and 2. Is there local support for a planning policies in my community? spell out appropriate changes for a preservation ordinance, review con- Almost every American community variety of historic resource types. as mission,and local districts? has some sort of planning process in well as setting standards for new con- Local support. especially the support place. It may he very organized and struction. The design guidelines help of property owners in the proposed sophisticated or might appear random the commission to determine appro- districts, is probably the most critical and haphazard. It is important to real- priateness and compatibility. They element for local historic district ize that preservation decisions made provide guidance to the developer establishment. Even before prelimi- as part of a local regulatory process and the property owner as well and nary planning can take place, a posi- will reflect the way other planning strengthen the commission's decision tive climate regarding preservation decisions are made. If land-use.zoning, if an appeal is filed. Some communi- must be created. A historic resource and planning judgments are poorly tics consider guidelines so important protection program cannot be imple- made and are not regularly enforced, that they require them in conjunction mented until a comprehensive com- it is highly probable that preservation with designation. munity education program is well decisions will suffer a similar fate. underway, and the program cannot be 'The architects of the plan to establish Many commissions base decisions on maintained without ongoing comma- a local district must carefully analyze The Secretary of the Interior's nits education. how a new aspect of'local planning Stanch/rib.for Rehabilitation and will relate to the existing decision- Gnir/r/inec for Rehabilitating Historic 3. Can the administrative aspects of making process. How will the local Th,i/r/in o•. 'l'he Secretary's Standards historic district regulation be ban- historic district relate to signage and were developed for all national preser- died effectively? billboard control, beautification pro- vation programs and for advising fed- This question is often the first one grams, downtown revitalization strate- oral agencies on the preservation of asked by elected officials and is usual- gies. transportation policies, neighbor- properties listed or eligible for listing lv phrased as, "I-low much is this hood associations, and tourism efforts? in the National Register of Historic going to cost us?" :\community All of these local programs are designed Places. They provide a good basis for 18 district-specific guidelines but, alone. 7.What is the next step? 1. Perceived Invasion of Private they rarely provide enough guidance The next phase is determined by the Property Rights for non-professional commissioners conditions in each particular commu- Commissions and local preservation- and property owners who have not nits. For some towns the stage has ists encounter the private property been exposed to basic preservation already been set with preliminary his- rights argument: "'phis is my house and design principles. Therefore. tonic resource survey work. In other and I don't want someone telling me many commissions augment the cases, an active nonprofit preservation what 1 can and can't do with my prop- .Se,irtmirrs Standards ds with guidelines organization may sponsor educational crt\ Current laws for regulating developed internally or by a design, programs. a community may already property use, which include zoning. planning, or preservation consultant. have a district or districts listed in the height restrictions, and other regula- National Register. or there may be a Lions, as well as preservation laws. I low will the commission learn to use vocal \lain Street program or neigh- have been found constitutional by guidelines, or for that matter even borhood association that has spear- state courts and the United States know that guidelines should be devel- headed economic awareness of his- Supreme Court. aped' Training is the answer. Since tonic preservation. Many communi- the Penn Central decision in the ties are in the process of implement- Numerous publications, some listed 1970s and the more recent creation of ing or updating comprehensive plans in the resource section of this booklet, the CLG program, many consultants, and include preservation and the cre- will help you explore the legality of national preservation and planning ation of historic districts as one of the preservation controls related to aes- organizations, and especially SHPOs areas to investigate. thetic and economic purposes. have developed preservation commis- Lawyers, especially local government sion training materials and workshops. Whatever your situation, the next step attorneys,and organizations devoted It is possible to attend a training ses- is a broad-based community educa- to preservation-related legal issues sion for commission members on Lion campaign. No effort, especially a will be of invaluable assistance in pur- architectural history, the intricacies of - historic preservation initiative, is suing local historic designations. design review, or the legal nature of launched properly until constituent ordinances in any of the 50 states. attitudes are assessed and the public 2.Fear of Additional Expenditures The SHPO, the National Trust for has had the opportunity to learn about Many property owners think that a Historic Preservation, the National the issue. Advocacy, the heart of local ordinance will require costly Alliance of Preservation Commissions, establishing a strong preservation improvements. They fear that appro- and statewide nonprofit preservation ethic, is the secret to making preser- priate preservation treatments will be organizations (and especially vation work at the local level. more expensive than those they statewide associations of commis- might plan otherwise. This is not lions)are sources of information about often true. In most cases, design the available training opportunities. Obstacles review and the technical assistance provided by commission staff result in 6. How will the commission's deci- This booklet would be remiss if the substantial savings for property own- sions be enforced? obstacles one might encounter when ers and ensure that improvement A commission's effectiveness is deter- attempting to establish a local district expenditures will be a better long- mined by how well its decisions are were not discussed. The benefits of term investment. enforced and how well it can with- local designation are fairly obvious by stand legal challenge. Are building looking at the well-known, locally reg- There is also concern that an ordi- inspectors and code officials fully ulated districts such as the Old and nance and commission will result in aware of'the commission's authority? Historic District in Charleston. South increased expenses to local govern- Is the city attorney confident that the Carolina; Beacon Hill in Boston; meats, thereby increasing the burden commission's decisions will stand up Pioneer Square in Seattle; the Vieux on taxpayers. There is a small in court? Do elected officials see the Carre in New Orleans;and the amount of truth to this in the short commission as an asset in the commu- Germantowns in Columbus, Ohio, run, but long-term benefits derived nity? Are they willing to affirm the Memphis, and Philadelphia. The from local district regulation, such as actions of the board and levy fines arguments against a district might not the stabilization of property values. and penalties for noncompliance: be as obvious as the benefits. increased community pride and its The design review authority of the Dissension is very real and should be associated benefits,and economic commission must become a legitimate anticipated. 'l'he following list revitalization, far outweigh any initial component of a community's regula- includes some possible arguments public expenditures. tong framework. Municipal staff and from those contesting local districts: elected officials must be ready to enforce all provisions of the preserva- tion ordinance, even when enfrce- ment might be an unpopular notion. 3.Fear of Displacement and CASE STUDY: Gentrification Another concern—the result of real The Designation Process in Aci2port, Kentucky estate trends, not necessarily district designation—is that accelerated prop- In Newport, a northern Kentucky city located directly across the Ohio River from erty values in historic districts will cause Cincinnati. the designation of the East Row Historic District resulted in a step- tax assessments to rise. Disabled or by-step process which is used as a model for other cities pursuing local historic retired property owners and renters district designations in Kentucky. on fixed incomes, for example. fear that increased tax liabilities will result 1. Do your homework,proceed carefully,and produce only results of the in involuntary displacement and highest possible quality. excessive economic burdens. While The Newport Historic Preservation Commission (NHPC). created by the City of displacement does occur in older areas Newport in 1989, targeted the East Row area of Newport as having strong poten- of communities, it is not linked to dis- tial for designation as a local historic district. Two years before the district was trict designation. as such. but is more designated. the NHPC obtained a matching grant-in-aid from the Kentucky the result of popular tastes. housing Heritage Council through the Certified Local Government program to conduct a availability,and other economic forces, historic resources survey and produce design guidelines. The NHPC hired a consultant with a good track record for producing high quality design guidelines The displacement argument persists. to conduct the survey, which established proposed district boundaries and con- however,and it presents a serious rained a description of each building and an overview and history of the district. challenge to preservation advocates. This information is the basis for walking tours, publications, and brochures. Proponents of the designation often find that they are battling both sides NHPC produced a 70-page design guidelines booklet which was important to the of the same argument. One group of success of the local district for a number of reasons: the guidelines were specific property owners will claim that their to Newport's architecture; drawings of building types and graphic examples of property is being devalued as a result do's and don'ts were used; and each guideline has a reference number of which of the designation, while another mention is made when the NHPC makes a decision. group,generally low-and moderate- income persons and businesses,claim Several issues arose during the designation process, such as charging a fee for the that the property value will rise and Certificate of Appropriateness,creating a buffer zone around the historic district, the inevitable rent increase and tax and the enforcement process for commission decisions. In each case,city staff hike will force them out of the area. researched the issue for the NHPC. drawing on resources such as the National Alliance of Preservation Commissions, the SHPO, the National Trust for Historic This is a delicate situation and antici- Preservation, the National Center for Preservation Law and individual commis- pating it can avoid a very uncomfort- sions in Kentucky and across the country. able public dispute. Careful analysis of the socio-economic status of resi- Several public meetings to discuss the proposed district were planned. At the dents of a proposed district will reveal largest of these public meetings,speakers included the consultant who produced any potential for the displacement the survey and guidelines,who gave a presentation on the unique aspects of charge. Renters' organizations and Newport's architecture; the state CLG program coordinator, who gave his anti-displacement housing programs. endorsement and a statewide perspective on local districts: and the mayor from a such as "circuit-breaker" tax relief nearby town, who spoke on the effectiveness of local districts in his city. and rent relief,can be called into play Roughly a third of the 250 attendees had questions or concerns about the district prior to district designation. which were answered by speakers or NHPC members. Circuit breaker programs, for example. 2. Counter opposition with organized support. exist in more than 35 states. Their In May 1990, the city commission held a public hearing to make a decision on provisions vary, but most provide the boundaries of the district. About 50 people showed up with "WE SAY NO" homeowners with incomes below pre- protest signs to picket the meeting. Local residents in favor of the district wore scribed limits a rebate of a portion of buttons saying "I LOVE I-IISTORIC PRESER\ATION ANI) I VOTE." Local their annual property tax payments. residents went door-to-door distributing flyers that explained the designation Renters may be eligible too. A per- process. The local television station gave unbiased coverage on the evening news. centage of their rental payment is considered part of their landlord's property tax liability and is refunded annually. In Washington, D.C., elder- ly, low-income owners and renters are eligible. 3. Obtain a wide cross section of district support. For two years the NHPC educated neighborhood organiza- tions. friends,and civic associations about the benefits of a aJ 1 URIC 1 v- --,---P0R local district. The NHPC provided information to local politicians and city staff to make sure that they understood the ramifications of local designation. -00.1 f. The city commission, however, decided to exclude an areaa �.•. yy � from the edge of the district where a large number of prop- o �� 'f` � ��w crty owners opposed to the district. The "I he original district t , os`•�. � � proposal contained 1,150 buildings, and the final designa- _ :.1Aa, lei• c:_ :- _ tion covered 1,100 buildings. This was not viewed as a set \• ,.� may; back as much as it was seen as a response to local political considerations. ia. l 4.Always educate. A�`_ s• � �I ,t e� �� tPf lIIIII. Pre-designation education efforts included two information ) �� ti al handouts distributed door-to-door, a certified letter explaining the district designation, newspaper articles. Lind a * 1111111 Er' '1 ;; . series of public information meetings. _ -'-, `' The NHPC planned a dedication ceremony for the newly created East Row Local Historic District, with a well known . 4� AD ! 111 la.t Cincinnati news commentator/art patron and the Kentucky -:"- I ; .21 i state historic preservation officer as guest speakers. They f 9 _ brought out the police department's color guard, had a ® ;. :':' ;.���� walking tour of the district, and served a special cake deco- rated to look like some of the East Row's distinctive row houses. Through the aggressive volunteer efforts of a public relations consultant .\cu po t;c turied arrlritectuor is rill/wed in who was a resident of the district. The Cin innati Enquirer, four radio stations, and this po.ctrv•promoting the historicdistrirt. three television stations covered the event. l'he NHPC continues to stress education as a key element in the success of the district. An easy-to-read brochure explaining the design review process was mailed to every property owner in the district, every licensed contractor in the city receives a letter on the design review process twice a year,and articles are regularly published in the local.\iLLport.Ve'as and neighborhood newsletters reminding residents of the review process. The NHPC has worked to promote the district in a variety of ways: printing a poster highlighting buildings in the his- toric district, holding a Christmas carriage tour and spring walking tours, printing a walking tour brochure, printing a history workbook for schoolchildren, and installing cast-iron signs marking the East Row Historic District. City staff has worked to create a low-interest loan program for rehabilitation, promote enter- prise zone incentives, and encourage the use of federal rehabilitation tax credits. Newport's efforts have not gone unnoticed. The Miami Purchase Association for Historic Preservation,a nonprofit Cincinnati organization, recently awarded both the City of Newport and the NHPC a bronze plaque for "careful education and promotion of the concept of historic preservation and for working together to cre- ate the largest local historic district in Northern Kentucky.- Prepared by 7hersa Bmum,director o%historic pieserz:ation, City of Nr o t. Kentucky. 4.Fear of the Unknown ership skills. This program serves In many communities,especially where In many communities, there is a basic both to identify and train local leaders development pressure is intense and mistrust of change. In smaller com- who possess some degree of interest extreme increases in lot density are munities with less sophisticated plan- in preservation and to train preserva- common. "transfer of development ning programs. a preservation ordi- tionists in the skills they need to rights" (TDR)can be one of the tools nance and commission may be the become leaders. Developing a better to counter the loss of market value most advanced type of appointed understanding of the role of preserva- argument. TDR is a means by which board that the community establishes. tion in the community and the roles a developer is permitted to build Residents and community leaders and relationships of public and private more density on one site by building may believe that such planning is too partners increases the ability of com- less (or nothing at all)on another. complicated and beyond their intel- mission members and others to act as The unused development rights of lectual and administrative capability. a positive force for reaching both one parcel are thus transferred (often Although district regulation has been preservation and community goals. in exchange for money) to the other, around since the 1930s, real growth in although the underlying restrictions of ordinances and commissions did not 6. Development Pressure/Loss of the zoning code are still in force.'" occur until the 1970s and 1980s, and Market Value most ordinances were adopted by big As a result of private market forces. 7.Dislike for"Bloated Bureaucracies" cities. As more and more municipali- especially in real estate development. Many citizens believe that govern- ties embrace the concept. it will any regulation that might limit the ment already imposes too many layers become a less frightening option for full developmental opportunities of regulation. They see the creation other communities. derived from a piece of property is of the review commission and the frequently viewed as a threat to a designation of local districts and the One of the best ways to combat this developer's ability to make a profit. accompanying regulations as an addi- fear,and others that arise, is to invite Unfortunately, in many markets, tional burden. Some citizens think to your town representatives from "highest and best use' is seen as a that efforts should be made to restrict nearby towns that have had positive divine right. This principle can be government rather than expand experiences with local districts. extremely destructive when applied municipal functions. While this might Hearing it "straight from the horse's to historic districts. seem a good idea in theory, the reality mouth" can help to assuage any of cutbacks in federal domestic pro- uneasiness that your community Because of the perceived loss of mar- grams, the accelerating pace of devel- might feel. ket value, a vocal portion of the opment. a more transient and mobile development community, as well as population.global communications, 5.Apathy commercial property owners and gov- and rapidly disappearing historic Many American communities suffer ernment officials desiring the jobs and resources all demand that governments from political lethargy. Voters feel revenue brought in by development, manage their resources more wisely powerless. and elected officials lack might oppose a local ordinance and now than ever. This reinforces the vision. As a result, innovative com- the establishment of local historic dis- need for better planning with special- munit-improvement plans are rarely tricts. The purpose of the ordinance, ized elements designed to protect implemented, and the local planning however, is to manage growth and specific resources. process becomes stagnant. Local avoid rapid, insensitive and ruthless preservation programs have a difficult exploitation of significant, vulnerable, 8.Lack of Awareness of the time thriving,or in some cases surviv- and unprotected areas, not to stunt Significance of Historic Resources ing. in this kind of environment. development. Many citizens question whether certain Community leadership development resources are worthy of preservation. programs can help move citizens out Proponents of the ordinance should For example, many people do not rec- of this inertia. In some cases, preser- counter the arguments of the devel- ognize the historic value of early 20th- vation awareness has been the catalyst opment community by pointing out century resources or vernacular build- for filling a local leadership void. that regulation does not freeze a dis- ing techniques. As the preservation State municipal associations, universi- trict in time. but allows it to grow, movement itself has learned to embrace tv-based governmental training pro- change,and improve. It is wise to more contemporary and less recog- grams, departments of community garner the support of developers who nized resources, the general public affairs or similar state agencies, and are sensitive to preservation concerns. should also be encouraged to under- national organizations can assist in Real estate professionals. bankers, stand their significance and impor- cultivating a strong leadership base. and architects who have been posi- tance. Realizing that there might be a tively involved in historic preserva- bias against certain classes of historic Programs such as the National "Trust's tion, especially those that have bene- resources, it might be more prudent Preservation Leadership Training fitted from the historic rehabilitation to initially create local historic districts combine specialized preservation skill tax credit projects.are good candi- comprising resources that are easily training with broad community lead- dates for lending their support. recognized by the public as historic. A community's first local district make it possible for countless people Richard J. Roddewig.Preparing a might be a high-style Victorian-era to enjoy,appreciate, and learn from Historic Preservation Ordinance, neighborhood that is fairly homoge- our past. They have helped parts of Planning Advisory Service Report No. ncous. Subsequent designations of America become destination spots 374,Chicago: American Planning less obvious, more obscure historic rather than places to bypass. Association, 1983. areas might require an intensified community awareness program before "- Beaumont,Landmark Yellow Pages, the designation process is initiated. Arknou'./edgments 1992. This Information booklet was prepared "' Deborah Kelly and Jennifer Summary by Pratt Cassity, executive director of Goodman, "Conservation District the National Alliance of Preservation Project Report," Preservation Although New York City garnered the Commissions. Originally printed in Coalition of Greater Philadelphia, spotlight because its landmark case 1992, this booklet was revised and June 1991. reached the L.S. Supreme Court and reprinted in 1996. Charleston boasts the first historic dis- ,Yaeger/Pvburn, Inc. Drsi;'n Manual: trict and architectural review hoard. .li(•rir.South, <.'arolina,Aiken Historic the use of local historic districts as a Encino/es Preservation Commission and the means to manage growth and change City of Aiken Department of is not reserved for big cities, nor ' Stephen N. Dennis, "Policy Planning and Community should it be perceived as a planning Arguments for the Creation of Beacon Development,August 1990. tool used only by old east coast cities. Hill Historic District," Preser:.ation Local historic districts are for ALL Law Update, 1192-10, March 23. 1992. Courtney Damkroger. "Western communities. District designation Regional Office Preservation Planning can help accomplish community goals - = Historic Boston, Incorporated. "Save Study," San Francisco: National Trust in any size village, town, city, town- Our City: A Case for Boston," com- for Historic Preservation,August 1990. ship, county, or parish, from the small- piled by Carter Wilkie and William est to the largest, from colonial Farrell,March 1992. ''-Oliver A. Pollard. I11, "Counteracting Virginia to suburban Phoenix. Demolition By Neglect: Effective Ibid, p. 6. Regulations for Historic District The evaluation of historic resources at Ordinances," The.-1//inner Review, the local level and development of '•Constance E. Beaumont, "Local National Alliance of Preservation protection strategies results in better Preservation Ordinances,"Landman( Commissions, Winter 1990. communities. Pressures from a Yellow Pages,Washington: Preservation changing economy, rapid develop- Press, 1992. 'a Stephen N. Dennis, "Legal ment,and declining populations can Strategies for Protecting Significant all contribute to the demise or success '- Dennis E. Gale, "The Impacts of Interiors," Pirseivation Law Update, of a particular place. Community Historic District Designation Planning 1988-I0, October 27, 1988. leaders and government officials must and Policy Implications,"Jouiwa/ofthe plan for a successful future. There American Planning Association,Vol. 57, "- Damkroger, 1990. are tough decisions to be made and No. 3 (Summer 1991). not everyone will agree all the time. "` Stephen A. Morris, "Zoning and Solutions can be found through care- " Ellen Beasley; "The Impact of the Historic Preservation." Local ful consideration of the many plan- Public Review Process on New Preservation,Washington, D.C.: ning tools available to a community. Design in Historic Districts in the National Park Service, 1989. United States," ICOMOS 8th General A local historic district is but one of Assembly and International " American Planning Association, those tools and it has proven to be a Symposium, "Old Cultures in New "Policy Implementation Principles on very powerful one. Regulating Worlds" Vol. 1, 1987. Historic Preservation," adopted by change within historic areas improves the Chapter Delegate Assembly, April the quality of life for citizens. Information contributing to the sec- 28, 1987 and ratified by the Board of Creating local historic districts will not tion relating to the benefits of local Directors, September, 19. 1987. automatically produce clean. beauti- districts was obtained from:Review ful, and vital places, but such regula- Board News,The Preservation Alliance Gale, 1991. tion may help avoid an unplanned of Virginia,No. 13,August/September, atrocity. Used in conjunction with 1991 and Constance E. Beaumont, '"-Peggy Robin,Saving the.Wig/rho hood: other tools and balanced with other "Local Ordinances: The Major Tool }ill/Can Fight Developers and Win!, community development options, his- for Protecting Historic Places," Rockville, Md.: Woodbine House, tonic districts protect investments and Landmark Yellow Pages, Preservation 1990. spur revitalization. They continue to Press, 1992. TT-here to Find Help Many states have statewide nonprofit The American Association for State preservation organizations that can and Local History(AASLH) has a Local Resources provide additional preservation assis- very extensive publications list. ranee. Some statewide nonprofits Many of the titles that are available You can obtain information regarding sponsor training programs, publica- relate directly to the work of local the planning process within your corn- tions. special events, and conferences preservationists. For more informa- munity, local preservation activity, on preservation topics. The National tion contact: American Association for programs and agencies that can pro- Trust publishes a directory of State and Local History, 530 Church ride assistance to citizens interested statewide organizations; the cost is$6. Street. Suite 600. Nashville, Tenn. in community issues, and basic corn- 'lo order a copy write to Information, 37219(615) 255-2971. munity history and reference material National Trust for Historic Preservation. by contacting the following: 1785 Massachusetts Avenue. N.W., The National Alliance of Preservation Washington. D.C. 20036. Commissions(NAPC) is the single • The local planning.community purpose. nonprofit membership orga- development, or city managers There are state and regional (and in nization that provides information and office. some cases local)chapters of national assistance to local communities and professional organizations that can individuals regarding preservation • A downtown development agency, provide assistance in planning. preser- commissions and local districts and Main Street project manager, mer- ration and design. Usually, the landmark protection programs. The chant or neighborhood organization. American Institute of Architects NAPC produces a quarterly neWslet- (AIA),American Planning ter and sponsors national, statewide • The local nonprofit preservation Association (APA). and American and local meetings for commissions. organization or historical society. Society of Landscape Architects The organization was formed specifi- (ASLA) provide the most helpful calk-to influence the creation and • A public library or university information. The national offices of perpetuation of local preservation pro- collection. these organizations produce very grams. For more information contact: helpful publications,journals, maga- National Alliance of Preservation State Resources tines, and newsletters. For more Commissions. Hall of the States, information contact:American Suite 342,444 North Capitol Street, There are numerous statewide enti- Institute of Architects. 1735 New York N.\\., Washington, D.C. 20001. ties that can provide preservation Avenue, N.W:Washington,D.C.20006. assistance: (202)626-7300. American Planning Staff assistance is provided through Association, 1313 East 60th Street, the Office of Preservation Services The state historic preservation office Chicago, Ill., 60637. (312)955-9100. at the University of Georgia (SHPO), especially the Certified American Society of Landscape (706)542-4731. Local Government(CLG) program Architects,4401 Connecticut Avenue, coordinator can prove to be a "one N.W., Fifth Floor,Washington, D.C. The National Center for Preservation stop shop" for complete preservation 20008. (202)686-2752. Law(NCPL) is a Washington based assistance. Each SHPO is charged organization providing assistance on with a federal mandate to carry out Many states have a variety of agencies the legal aspects of preservation. The the national historic preservation pro- within state government that may be NCPL distributes periodic Preservation gram and provide technical assistance helpful in answering planning or Law Updates that summarize impor- to citizens, communities, and organi- preservation questions. The state tant preservation legal issues. The zations. SHPOs are part of a national community or economic development NCPL also provides legal consulting network based in Washington called department,a league of cities or services to local governments and the National Conference of State municipal association,and even uni- organizations. For more information Historic Preservation Officers versity programs and institutes of contact: National Center for (NCSHPO). The federal agency that government offer wide ranging assis- Preservation Law, 1333 Connecticut is responsible for administering the tance to local preservationists. Avenue, N.W. Suite 300,Washington. national historic preservation program D.C. 20036. (202)338-0392 through the SHPOs is the National Resources Department of the Interior's National The National Trust for Historic Park Service. For more information There arc many organizations at the Preservation(NTHP)is a nonprofit contact: National Conference of State national level to assist in historic organization chartered by Congress to Historic Preservation Officers. Suite preservation. They can be very help- encourage public participation in the 342, Hall of States,444 North Capitol ful in providing broader, and in some preservation of sites, buildings and Street, N.\\'.,Washington. D.C. 20001 cases, more comprehensive informa- objects significant in American history (202)624-5465. Lion to support local preservation and culture. The National Trust acts efforts. as clearinghouse for information on Frederick:A Historic Preservation ation all aspects of preservation, assists in Commission at llork. (Videotape) coordinating efforts of preservation Washington, D.C.: National Park groups, provides professional advice Service, 1987. on preservation,conducts conferences and seminars, maintains historic prop- Good Neighbors Building Next to History. crties and administers grant and loan Colorado Historical Society. Denver, programs. The National Trust oper- 1980. atcs six regional offices and one field office to provide services to state and A Guide to Delineating ledges of Historic local organizations and individuals. Districts. Russell Wright. Washington, For more information contact the D.C.: The Preservation Press, 1976. regional office nearest you. The addresses are listed on the back cover .4 Handbook on Historic PncerCation of this Information booklet. Lath. Christopher J. Duerksen, editor. Washington, D.C.: The Conservation Useful Publications Foundation and the National Center for Preservation Law, 1983. 7%e American Mosaic:Passer v ing A Nation's Heritage. Robert E. Stipe and How To Save Your Own Street Raquel Antoinette J. Lee,editors. Washington, Ramati. Garden City, New York: D.C.: US/ICONIOS, 1987. Doubleday and Company, Incorporated, 1981. America's Downtowns:Growth,Politics and Preservation. Richard C. Collins, Mastering the Politics of Planning. Guy Elizabeth B. Waters,A. Bruce Dotson, Benveniste. San Francisco:Jossev- edited by Constance E. Beaumont. Bass, Incorporated, 1989. Washington, D.C.: The Preservation Press, 1991. ,Vationa/Register Bulletin 24. "Guidelines for Local Surveys: A The Citcens Guide to Zoning. Herbert H. Basis for Preseration Planning," Smith. Chicago:American Planning Anne Derry, H. \\'ard Jandl,Carol D. Association, Planners Press, 1983. Schull,Jan Thorman, revised 1985, by Patricia L. Parker. Washington, D.C.: C./rating Successful Communities:A National Park Service, U.S. Guidebook to Growth Management Department of the Interior, 1985. .Strategies. Michael A. Nlantell, Stephen F. Harper, Luther Propst. Preparing a Historic Preservation Washington, D.C.: Island Press, 1990. Ordinance. Richard J. Roddewig. Planning Advisory Service Report, Dealing with Change in the Connecticut No. 374. Chicago:American Planning River Wiry: A Design Manual for Association, 1983. Conservation and Development. Robert D. Yore et al. Cambridge, Mass.: Reviewing New Construction Projects in Lincoln Institute of Land Policy and Historic Areas:Procedures for Local the Environmental Law Foundation, Preser nation Commissions. Ellen September 1988. Beasley. Washington, D.C.: National Trust for Historic Preservation, 1992. Design Review'in Historic Districts: .1 Handbook for Virginia Re;iew Boards. Design Review in Historic Districts. Alice 1\leriwether Bowsher. Washington, Rachel Cox. Washington, D.C.: D.C.: Preservation Press, 1985. National Trust for Historic Preservation, 1994. Developing Downtown Design Guidelines. California Main Street Program, Saving the.\eighborhood•You Can Fight Sacramento, 1988. Developers and ilin! Peggy Robin. Kensington, \Id.: Woodbine House, 1990. • APPENDIX A 7.Association APPENDIX C Areas that are related—on national, Historic District Criteria state or local levels—to the lives of Basic Elements of a individuals or events or have visual Preservation Ordinance Historic district significance can be aesthetic qualities that convey a feel- ascribed to a collection of buildings. ing of time and place. 1.Statement of Purpose. An ordi- structures, sites, objects. and spaces mince should clearly state its public that possess integrity of location. Source:William J. \lurtagh, Historir purpose. Although historic preserva- design, setting, materials, workman- Districts:Identification.Soria/Aspects tion is a legitimate goal, many juris- ship. feeling, and association: and Prrcer'•ation, 1975. dictions have found it politically and legally necessary to link historic 1.Location preservation to broader community Areas with linkages of buildings,struc- APPENDIX B objectives. tures.sites.objects.and spaces,a major- ity of which continue to exist where Assistance Provided by State 2.Definitions. Technical terms need they were first created in traditionally Historic Preservation Offices to explanation to avoid confusion over accepted relationships. Communities Undertaking Historic concepts not generally understood. Resource Surveys: 2.Design 3. Creation of Preservation Areas that convey a sense of cohesive- 1. Providing guidelines, standards. Commission. The commission's posi- ness through the similarity or dissimi- forms, and approaches to survey Lion within government, the number larity of their detail relatedness (archi- used in conducting historic of members, member qualifications, rectum' or otherwise). Based on the resource surveys on a statewide their terms of office,and the number abstracts of aesthetic quality, these basis. of members required for a quorum include scale, height, proportion. mate- should be spelled out. rials,colors, textures, rhythm. silhou- 2. Advising about alternative ette. and siting. approaches to surveys that are used 4.Commission Powers and Duties. elsewhere. Everything that the commission will 3.Setting have the authority to do must be Areas that are readily definable by 3. Providing documentation about the spelled out in this section of the ordi— natural or created boundaries or con- historic resources already identified nance. The compulsory or advisory tain at least one major focal point. by the state. nature of the commission's decisions is outlined here. 4.Materials 4. Advising in the development of Areas that convey a sense of cohesive- high-quality local surveys. 5.Criteria for Designating Historic ness through similarity or dissimilarity Properties(districts and landmarks). of their material relatedness, based on 5. Helping coordinate local surveys Objective and relevant criteria must traditional material use that con- with federal and state sponsored be established for designating districts tributes to a sense of locality.• surveys. and landmarks. In many cases, local governments have used similar crite- 5.Workmanship 6. Helping establish systems for stor- via to those used for listing in the Areas that convey a sense of homo- age and retrieval of survey data to National Register. Although a few geneity through the high quality of meet community needs. ordinances require owner consent as a aesthetic effort of the periods repre- provision for local designation this sented by the majority of the units 7. Nominating properties to the practice is generally not advised. composing the district. National Register. Owner consent provisions are tanta- mount to allowing individual citizens 6.Feeling S. Providing funds, if available,or pick and choose among the laws they Areas that create a sense of time and providing information about alter- wish to follow. It should also be place. native funding sources for conduct- "noted that private individuals are not ing the survey. allowed to veto zoning regulations and that historic district ordinances Source: "Guidelines For Local are part and parcel of zoning. Surveys:A Basis For Preservation Planning," National Register Bulletin 4. National Park Service. U.S. Department of Interior, Washington, (Revised 1985). 26 6.Procedures for Designating APPENDIX D Geographic Importance Historic Landmarks and Districts. (8) by being part of or related to a The ordinance needs to explain who Criteria forSelectiou of Historic square, park or other distinctive can nominate properties for designa- Districts and Structures in Seattle area, should be developed or pre- tion; how and when affected property served according to a plan based owners are notified; how many public Standards for Designation of on an historic, cultural, or archi- hearings there are;who must approve Structures and Districts for tectural motif; or designations; and what the timetable Preservation. (9) owing to its unique location or for these actions is. singular physical characteristic, A structure, group of structures. site, represents an established and 7.Procedures and Standards for or district may be designated for familiar visual feature of the neigh- Reviewing Alterations and preservation as a landmark or land- borhood, community or city; or Demolitions.The ordinance should mark district if it: explain what types of changes are Archeological Importance subject to review by the commission. Historical,Cultural Importance (10)has yielded, or may be likely to The standards, guidelines, and (1) has significant character, interest yield, information important in process of review must also be fully or value, as parr of the develop- prehistory or history. explained or referenced. ment and heritage; or (2) is the site of an historic event Source:Seattle, 11ashingtoa Landmarks 8.Economic Hardship. ThisportionO,(liaanre.\o. 102229.Sertioin O. • with a significant effect upon of the ordinance is its "safety valve" society; or and sets forth the process and criteria (3) exemplifies the cultural, political, to be used in determining whether an economic, social or historic her- ordinance imposes an economic hard- itage of the community; or ship on an owner. Architectural,Engineering 9.Penalties. Ordinances must be Importance enforced to be effective. Penalties (4) portrays the environment in an can range from fines to incarceration. era of history characterized by a distinctive architectural style; or 10.Appeals. \lost ordinances spell (5) embodies those distinguishing out a process for appealing decisions characteristics of an architectural rendered by the commission or gov- type or engineering specimen; or erning body. An appeals provision (6) is the work of a designer whose helps to ensure that a citizen's right to individual work has significantly "due process" is not abridged. influenced the development of Seattle;or Soutre:Constance E. Beaumont, (7) contains elements of design, "Loral Preservation Ordinances," detail, materials or craftsmanship Landmark Yellow Pages, Washington: that represent a significant inno- 7Yie Pteser vation Press, 1992. ration;or Information Booklets Information booklets are published by the National Trust for Historic Preservation. Answer our PreservationFor a complete list of titles in the series call or write: Information Series, National "bust for Historic Preservation. 1785 Massachusetts Avenue, N.WI.Washington. Questions D.C. 20036. (202) 673-4189 or(202)673-4286. FAX (202)67-4223. Copvright©1992, 1996 National Trust for Historic Preservation. Richard Moe. P/zsit/cnt, National Trust for Historic Preservation Peter Brink. line Prsiderrt. Programs, Services and Information Katherine Adams. Director. Preservation Services Elizabeth Byrd Wood. Editor Andrea Goldwyn. business Coordinator Join Historic Preservation Historic Preservation Forum is a membership program for professionals and orga- Forum: The Information nizations. The benefits and privileges of membership include subscriptions to Historic P/cce/uation magazine, and Historic Preservation Fortran journal. Forum Clearinghouse for the .\cws, participation in financial/insurance assistance programs. technical advice, Organized Preservation substantial discounts on professional conferences and educational publications, and access to Preserve Link. thecomputer-based communications system Movement designed for the preservation community. New Information booklets arc available free upon request to Forum members. To join. send $90 annual dues to: Preservation Forum. National Trust for Historic Preservation. 1785 Massachusetts Avenue. NAV. Washington. D.C. 20036. (202)673-4296. The mission of the National T,-r,.st for Historic Prrcer ation is to foster all appreciation of the di;.•er:ce character and meaning of our.-I n/rrirnn cultural heritage and to presere and rrz•italize the litabi/in'of our communities hr/eadin,the nation in saz imr.-1 rareroars historic enz-iron///r'rN•f. Suppor7 for the National Trust is pro:;ided in part by matching grantsfrom the('.S. Depwiment of the Interior:.National Par;(S•er z ice. under pr•o.".'rsions of the.Natrona/Historic Precer;•ation act of 1966. The opinions expressed in this publication are not necessarily those of the US.Department of the Interior: Office,; of the National Trost for Historic Preseruation National Headquarters Midwest Office Mountains/Plains Office 1785\lassachusctts Avenue, N.W. 53 West Jackson Blvd..Suite 1135 910 16th Street.Suite 1100 Washington. D.C. 20036 Chicago.Ill. 60604-2103 Denver.Colo. 80202-2910 (202)673-4296 (312)939-5347 (303)623-1504 (Illinois.Indiana,Iowa.Michigan..I/innemta. (Colorado, Kansas.Montana,.Nebraska, Mid-Atlantic Office Missouri,Ohio. Wisconsin) .Worth Dakota,South Dakota, Il romin;l One Penn Center at Suburban Station Suite 1320 Northeast Office Southwest Field Office 1617 John F. Kennedy Boulevard Seven Faneuil Hall\larketplace.5th Floor 500\lain Street.Suite 606 Philadelphia. Pa. 19103-181 i Boston.\lass. 02109-1649 Fort Worth.'Ics. 76102-3943 (215)568-8162 (617)523-0885 (817)332-4398 (Delau•air•. District of Lolumbia..I/arcland• (Connecticut,Maine,Massachusetts.New (,Vez Meuco. 7i'.tas. Oklahoma) New..Ier;rt'. Penn.gl;.•rmirr. Puerto Rico. Hampshim Nra7 Iink. Rhode Islam/re/wont) I7r,'inia. I ir,'in is/m dc, Ilist I it iniu) Western Office Southern Office One Sutter Street.Suite 707 William Aiken House San Francisco,Calif. 94104-4916 456 King Street (415)956-0610 Charleston.S.C. 29403-6247 (a/aska.:lrizona,California,Hnivaii, (803) 722-8552 Idaho.Nevada. Oregon, Utah. 11 ochington, (Alabama.Arkansas. Florida, Georgia. Pacific island territo/iec) h'entuckr.I ouicirn/a..Ili.cciscippi,.Worth Carolina.South Carolina. 7ennecseei Ti" PRESERVATION HELPLINE Historic Preservation Section; Georgia Department of Natural Resources Floyd Tower East, Suite 1462; 205 Butler St., S.E.; Atlanta, Georgia 30334; (404) 656.2840 KEEPING HISTORIC PRESERVATION IN THE PUBLIC'S EYE - Does the work of a few but dedicated preservationists in your town go seemingly unnoticed by most of the community? Chances are, however; that you can increase the public 's awareness of historic preservation, even on a shoestring budget . To be truly sucessful, preservation must be a communitywide activity. But , you not only want the public to know about historic preservation, you want to create a positive image for it. While the tools needed to accomplish this are not unique to the preservation field, there are specific ways that individuals and preservation organizations can best use them. Following are a few ideas. I . NEWS MEDIA Probably the most effective method of reaching both the general public and a target audience is through the news media. Establishing a good and constant relationship with your local media, therefore , should be a priority . Here are some things you can do: * Prepare press releases on general preservation news in your community • • * Compile a press kit for special events or activities , such as Georgia Historic Preservation Month * Develop monthly or bimonthly preservation story ideas that the media can write about , such as adaptive use projects, the rehabililation tax credits, or even special events or activities that you wish to promote * Develop and write a newspaper series on a • preservation topic or theme to run over several weeks or months. • Arrange for television and radio public service announcements (getting a celebrity to do the PSA for you always helps , too) * Participate in radio and television talk shows II . PUBLICATIONS + Distributing your own printed material' is also an effective way to reach a wide audience. Graphics are important here, especially the consistent use of a, logo on all official correspondence, advertising and other printed materials. If you don 't have a logo, sponsor a contest in the community schools or newspapers, and pick the best. Here are some publication ideas: * Publish a monthly or "quarterly newsletter for your organization • * Distribute brochures and fact sheets explaining your particular program and the services you can provide • * Publish surveys of the historic aechitecture in a single neighborhood or town, or even an entire county * Distribute promotional flyers, posters, and brochures of special events or on-going events • * Print your official logo on caps , t-shirts, belts, tote bags etc. to sell or distribute. * Compile a special preservation supplement to be included in a newspaper or magazine III . SPECIAL EVENTS ACTIVITIES Special events are held primarily to attract the public ' s attention to the activities of preservation groups and organizations. They may be educational or aimed at raising money, but they should be considered fun, social events. Let the calendar help give you ideas; tie-in with special days , months and holidays, like King Week , Georgia Week, Black History Month, Historic Preservation Month, Halloween , Thanksgiving, or Christmas. Or, get your local government to designate its -.own special day, week or month based on local heroes and landmarks. It 's important to use the media; place ads and/or announcements. Also involve the community 's churches, schools and businesses. Plans for special events should be coordinated with likeminded groups and agencies for maximum impact and minimum duplication of -efforts. The following suggestions for special events have proven sucessful in numerous communities: • Festivals, Fairs, Pageants and Other Celebrations * Sesquincentennial, semiquincentennial, bicentennial celebrations * Folklife festivals • * Outdoor pageants which reenact some event in your town 's or county 's history * Tours of historic homes and neighborhoods * Period costume balls/square dances * National Register listing celebration patry/tea open house * Mid 1800s country fair or agricultural fair (a perfect showcase for the community because it highlights the characteristics that make it special) - Contests * Publish a preservation crossword puzzle in the • local newspaper * - Competition for best essay , research paper, ' poster, poem, photograph or artwork focusing on preservation * Old-fashioned contests ( fiddling, clogging, • catching a greased pig, etc . ) * Architreasures hunt (finding the unique architectural details on buildings • within a designated .area) ' Exhibits * Traveling and/or stationary exhibits of historic photographs, such as the Georgia Archives ' "Vanishing Georgia" and the Atlanta Historical Society 's "Atlanta Resurgens" * Historic tools, funiture, clothes, books, etc . * Antique automobiles * Arts and crafts exhibits and demonstrations of a particular period • Miscellaneous * Period costume parades * Victorian (or other period) Fourth of July (or other holiday) picnics in the historic town park or central square featuring local high school band, choral and drama groups, etc. * Box suppers, cake walks (make lunchboxes in shape of a historic building) * Hard hat parties in historic structures being rehabilitated • * Fun run through a historic neighborhood or along a historic road, trolley or train route. * Open haunted house or a Ghost Walk of several historic sites in a neighborhood during Halloween IV. HERITAGE EDUCATION • Ideally, public awareness of historic preservation should start with our children, who will grow up to appreciate their historic and cultural heritage. Other organizations and communities throughout the country have done the .following: * Coloring books of local historic sites, landmarks, and personages * Exercise and activity books using archives , historic materials and old maps * A study of local history-makers and the - architectural styles of the homes they lived • in * Slide presentations ' and videos on historic architecture or history * A study of the development of toys and games in your community and how they have changed over the years * Let students write their own history of their community or one particular street or. area in their community * Let local students get involved or even initiate the revitalization of your historic downtown as a school project * Have students condust oral history interviews of significant people in their community. • • V. WORKSHOPS, PRESENTATIONS, CONFERENCES Public presentations are important for visibility , imparting information, and getting the message across. You should target organizations such as historical societies, women's clubs, preservation commissions and organizations, local governments, schools, rotary clubs, neighborhood organizations, museums, senior citizen groups or others. To reach a business crowd, schedule a lunchtime presentation in a downtown location. Provide something . to drink to go along with a brown-bag lunch. A short talk or demonstration of restoration crafts or a slideshow can be an entertaining and educational way to spend a lunch hour. Weekend and evening programs could involve panel discussions, films, videotapes or lectures by outside speakers. VI . SLIDESHOSYS, FILMS AND VIDEOTAPES These are useful for presentations and workshops. Topics for compiling slide shows could include architecture, archaeology, rural preservation issues, or rehabilitation techniques. The Historic Preservation Section has a selection of slideshows and videotapes available for loan, free of charge. Call us for an updated list . The National Park Service and the National Trust for Historic' Preservation also have audiovisual materials available for rent at a small . fee . Historic Preservation in Florida Working with the News Media Bureau of Historic Preservation (850) 487-2333 R. A. Gray Building 1-800-847-7278 500 South Bronough Street FAX (850) 922-0496 Tallahassee,Florida 32399-0250 http//dhr.dos.state.fl.us/ • Prepare press releases on historic preservation news in your community. • Compile a press kit for special events and activities. • Develop monthly or bimonthly preservation story ideas that the media can write about,such as successful preservation projects,activities or events you wish to promote. • Develop a newspaper series on a preservation topic or theme to run over several weeks or months. • Arrange for television and radio public service announcements. Florida Department of State But is it Legal? A Manual For Florida's Certified Local Governments and Historic Preservation Commissions JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ.! 2-1- National Trust for Historic Preservation Sources and Restrictions on Historic Preservation Laws Laws within the United States are enacted under a three-tiered system of government: local,state,and federal. Historic preservation laws mirror this system. The primary protection for historic resources is at the local level through the enactment and enforcement of historic preservation ordinances. These laws typically regulate specific actions directly affecting historic resources including proposed alterations,demolitions,new construction, and removals. State and federal governments,nonetheless, can have a strong influence over preservation programs. The federal government has assumed a primary responsibility for the identification of historic resources through the creation and maintenance of the National Register of Historic Places. While listing on the National Register is primarily honorific,it often spurs regulatory protection at the state and local level. The federal government also serves as a primary source for technical and financial support to state and local governments involved in resource protection. Under the authority of the National Historic Preservation Act,' the National Park Service implements a matching grants- in-aid program designed to stimulate state and local involvement in historic preservation and to ensure that federal programs are applied uniformly within individual states. Among other things, the grants program encourages states to survey and inventory historic resources and provide assistance to local governments in carrying out their preservation responsibilities: To qualify for federal grant money, states are required to (1)create a preservation office; (2)designate a State Historic Preservation Office; (3)hire a staff of professional historians, architectural historians; and archaeologists; and(4)participate in federal programs. A key component of the federal preservation program is the establishment of national policy favoring the protection of historic resources. The National Historic Preservation Act, among other things,directs federal agencies to protect historic resources within their control,' and to consider the effect of their actions on privately-owned historic resources.3 By requiring consideration of preservation objectives in implementing programs potentially harmful to historic resources, efforts can be made to mitigate or avoid the effects of potentially harmful programs on historic resources. State laws governing historic resources to a large extent are similar in scope to those enacted at the federal level, establishing state registers of historic places,tax incentive programs, fmancial assistance to local governments, and in some cases,protection against state actions 116 U.S.C. § 470a et. seq. 2Id. at 470h. 3Id. at 470f. 1785 Massachusetts Avenue, N.W. _ Washington, D.C. 20036 (202) 673-4000 /FAX (202) 673-4038 potentially harmful to historic resources. States are also taking an active role in preservation by empowering local jurisdictions,through state enabling laws, to enact as well as strengthen historic preservation ordinances,thereby increasing protection for historic properties. In reviewing preservation laws,it is important to recognize that federal, state,and local laws are generally fleshed out through implementing regulations'and guidelines. While guidelines are typically advisory in form,regulations have the full force of law and must be enacted within the substantive limits of the law being interpreted and in accordance with the procedural provisions of the governing law, applicable administrative procedure acts,and federal and state constitutions. Procedures governing the review of alterations,the demolition of historic resources, and applications for economic hardship are generally adopted in regulatory form,while design criteria are more typically established as guidelines. Limitations on Preservation Laws 1. Court Decisions Historic preservation laws whether enacted at the federal, state, or local level are subject to judicial review. Most court decisions in this area focus on individual cases and controversies pertaining to the application of a given statute. However,these decisions can have a more general application to the extent that they interpret specific laws,constitutional provisions,or • common law. Many preservation cases,particularly those arising from local ordinances,are resolved at the trial court level and are never officially reported. While these cases often provide persuasive authority, especially in the area of historic preservation where case law interpreting such laws is more limited,they do not create"judicial precedent." In other words,these decisions are not legally binding on other courts within the same judicial system. On the other hand, decisions made by appellate courts are published and thus become an important element of preservation laws. As with statutes governing historic resource protection,court decisions are made at both the federal and state level. Federal court decisions focus on disputes involving federal laws such as the National Historic Preservation Act,or federal constitutional issues,while state court decisions generally involve controversies over the application of state or federal laws. Federal Court Decisions. Most federal court cases are tried in federal district courts and appealed to a U.S. Court of Appeals(Circuit Court). There are thirteen federal judicial circuits within the United States.' The United States Supreme Court is the ultimate arbiter of federal cases. Review is discretionary in most cases and thus far the U.S. Supreme Court has decided "For example,the Advisory Council on Historic Preservation has promulgated regulations implementing the Section 106 review process. See 36 C.F.R. Part 800. 528 U.S.C. § 41. The United States is comprised of 11 individual circuits plus the D.C. Circuit and Federal Circuit. 2 only one preservation case,Penn Central Transportation Co. v.New York City,438 U.S. 104 (1978).6 Federal appeals court decisions are reported in Federal Reports and U.S. Supreme Court decisions are reported in U.S. Reports, Supreme Court Reporter,and Lawyers Edition. State Court Decisions. Most states have a trial court,appeals court,and a high court generally referred to,but not always, as the"supreme court." The names of these courts will vary from jurisdiction to jurisdiction and thus it is important to become familiar with the judicial system within your particular state. State appellate and supreme court decisions are generally reported in regional reporters published by West Publishing Co.,and, in some cases,by official state reporters as well. The Role of Precedent. Lower courts are required to abide by decisions of higher courts within their own system. Thus,for example,an appellate court decision interpreting a specific law or ordinance is binding on trial courts within that circuit. However,state courts are not bound by federal court decisions interpreting state law unless such decisions are issued by the U.S. Supreme Court. The U.S. Supreme Court can determine the constitutionality of a local preservation ordinance under the U.S. Constitution. State courts are not bound by the decisions of courts of other states, even when based on laws similar to those at issue. However, such decisions can have great weight,particularly in an area such as historic preservation where the body of law is relatively small. Courts often look to other jurisdictions for guidance on particular issues. Similarly,federal courts are not bound by federal court decisions from other circuits. Thus,it is possible to have conflicting interpretations of a federal statutory provisions among the circuits. The U.S. Supreme Court,again, is the ultimate arbiter of conflicts among the circuits. While judicial consistency is strongly favored, courts may abandon prior law; however,in most cases,reversals in policy occur at the legislative rather than judicial level of government. 2. Legislative Authority The issue of legislative authority arises most frequently in connection with local preservation laws subject to state enabling authority. If an ordinance is not enacted in accordance with state enabling law,the entire ordinance may be invalidated. Questions generally arising focus on whether a commission has jurisdiction over changes to property not visible from a public way or authority to control the design of new buildings constructed within a historic district or replacing a demolished resource. Even if an ordinance has been duly enacted,questions may arise concerning whether a commission has acted within the scope of authority conferred on it by the ordinance or followed 6In Penn Central,the U.S. Supreme Court upheld the application of New York City's historic preservation ordinance against a takings claim. The court found that the owner of the Grand Central Terminal had not been denied-all reasonable beneficial use of its property by the City's denial of permission to construct on office tower on top of the landmarked structure. Although the Supreme Court based its decision on New York City's preservation law,the High Court's ruling placed historic preservation regulation generally on firm legal ground. 3 appropriate procedures in taking a particular action as required under local law. Did the commission follow a community's open meeting or sunshine laws or follow requisite notice and hearing requirements. 3. Constitutional Restrictions Historic preservation laws affect the rights of property owners and other groups and thus constitutional issues commonly arise. Such challenges frequently involve takings claims. However, cases also arise under the free exercise and free speech clauses of the First Amendment and due process clauses of the Fifth and Fourteenth Amendments to the U.S. Constitution. Police Power. As a preliminary matter,preservation laws must be enacted in accordance with the"police power." The police power is the inherent authority residing in each state to regulate,protect,and promote the public health, safety,morals, or the general welfare. This authority is enjoyed by the states,rather than local jurisdictions,and thus cities and towns can enact preservation laws only if the state has conferred on them specific authority to do so. As noted above, such authority is generally conferred on local jurisdictions either through specific enabling legislation or home rule power. Historic preservation is generally construed to be a legitimate use of the police power. The U.S. Supreme Court in its 1978 decision in Penn Central Transportation Company v. City of New York,438 U.S. 104(1978), laid to rest the argument that regulation of property for aesthetic purposes was not a valid use of government's police power under the federal constitution. However, the question of whether aesthetic regulation is a valid use of the police power under state constitutions remains unresolved.' In debating this issue,however, it is important to recognize that historic preservation is not aesthetic regulation in its purest sense. In addition to preserving resources for historical purposes, preservation laws promote traditional community benefits including economic stability and tourism. As a practical matter,historic preservation laws should be grounded on economic as well as aesthetic justifications. Federal Constitution. Most constitutional challenges are made under the United States Constitution. While preservation laws are routinely upheld against constitutional claims,it is important to have a basic understanding of the concerns at stake. Constitutional issues generally arise in the application of local preservation ordinances. Issues frequently addressed include whether the denial of permission to alter or demolish one's property results in an unlawful taking of property by denying the owner all reasonable and beneficial use of its property;the impact of historic preservation laws on religious organizations that own historic property and on the exercise of the right to free speech;and what procedural protections must be afforded to property owners in the designation of historic property and review of requests to make changes to such property. The primary source for authority on the regulation of historic property under the federal 'See Goss, Sarah L, Propriety of Using the Police Power for Aesthetic Regulation: A Comprehensive State-by-State Analysis, (National Park Service and National Center for Preservation Law 1992). 4 constitution is Penn Central Transportation Co. v. City of New York.' In that decision,the U.S. Supreme Court placed historic preservation ordinances on firm legal ground,recognizing historic preservation as a valid use of the police power and the regulation of changes to historic properties through historic preservation laws as an appropriate method to accomplish preservation objectives. Through Penn Central,the Supreme Court also provided assurance that historic preservation restrictions would not be vulnerable to "takings"claims in most instances. Mere diminutions in value do not give rise to an unconstitutional taking. Rather,to establish a taking,a property owner must demonstrate that he or she has been denied all reasonable and beneficial use of the property. While the Penn Central decision places historic preservation ordinances on firm legal ground, it is important to understand that the case does not mean that all preservation ordinances, and all actions pursuant to preservation ordinances, are automatically constitutional. Each preservation case will be assessed on its own merits in accordance with the particular ordinance and the particular circumstances at issue. State Constitutions. Historic preservation laws must also comply with state constitutions. While the federal and state constitutions are generally similar, some state constitutions may afford property owners more protection than that provided by the federal constitution. The takings clauses of the federal and state constitutions are substantially similar and thus state courts have essentially relied on Penn Central in interpreting state constitutions as well.' However,in at least two cases state courts have interpreted their own constitutions more restrictively in addressing free exercise violations. In First Covenant Church v. City of Seattle, 120 Wash.2d 203, 840 P.2d 174(1992),the Washington Supreme Court,on remand from the U.S. Supreme Court,ruled that designation of a Seattle church violated the church's right to the free exercise of religion as guaranteed under the Washington Constitution. Similarly,in Society of Jesus v. Landmarks Preservation Commission, 564 N.E.2d 571 (1990),the Massachusetts Supreme Judicial Court held that landmark designation of the interior of a church violated the church's free exercise rights under the state's constitution,which has free exercise language that is very different from the federal provision. 8438 U.S. 104 (1978). 9See United Artists Theater Circuit.Inc. v. City of Philadelphia, 595 A.2d 6 (Pa. 1991), reversed on rehearing, 635 A.2d 612 (Pa. 1993), in which the Pennsylvania Supreme Court, on rehearing, determined that the takings clauses of the Pennsylvania and federal constitutions were essentially the same. 5 LOCAL PRESERVATION 2-6 "Building A Preservation Commission's Credibility Through Adequate Procedures". By C. Terry Pfouts, Supervising Historic Preservation Specialist, . Office of New Jersey Heritage A talk presented at the National Park Service's Local Preservation Workshop, Mid-Atlantic Region, Pittsburgh, Pa. , June 15, 1987. I 'd like to talk today about how a preservation commission can build its credibility by maintaining proper procedures and standards. I will focus on how a commission reaches its • decisions, as opposed to what it actually decides. I believe that "how a commission does business" is the foundation of its public image within a community and its political arena. A good tight ordinance will mean nothing, nice brochures or behind-the-scene "politicking" will mean nothing if a commission "doesn't have its act together." Any by "having its act together", I mean: Making informed, reasoned, and consistent decisions in a fair and open way. Before discussing how commissions work, or should work, I 'd like to identify some relevant differences between State Historic Preservation Offices and local commissions. First, simply put, a State Historic Preservation Office is its own staff; we are paid, professional state employees.--A local preservation commission is a separate entity. from its staff, (if it has any at all) ; it 's an appointed, political, municipal board, usually consisting of unpaid, volunteer members, only a few of whom might be "professionals". To easily understand that difference, imagine that you worked for your State Review Board, which not only reviewed National Register nominations, but also approved or disapproved all Tax Act Certifications and Section 106 applications. Second, SHPO offices, even the smallest, have a high number of staff people, compared to most commissions. This inevitably results in a staff of specialists, people who manage or work on their own individual programs - each of which makes up a small part of the broad picture of preservation activities. In contrast, a preservation commission must do it all: survey, nomination and evaluation, designation i .e. registration) , and then, most importantly, protection of designated sites by review of proposed demolition, rehabilitation, or new construction. Third, perhaps because of the aforementioned specialization, a SHPO office tends to operate with a fundamentally different mindset than a commission, in that somewhat equal weight is given 3-2 to each of the general preservation activities of identification, evaluation, registration, and protection. On the other hand, a commission's primary concern, - it 's "mission" in fact, - is lrotection, or to put it in the vernacular: "saving buildings" and sometimes-sites) . Finally, to note an essential difference, a commission's power to regulate registered sites is at once stronger, but more fragile than that of an SHPO. A commission can definitively say yes or no to proposed demolition or negative alterations to designated sites. But, if its decisions lose the support of the community and its politicians, then the commissioners are off the commission, or worse, the ordinance is off the books. It is, in fact, the political nature of a commission's work, which underscores the importance of a commission's attention to adequate procedures. I wish to offer six general recommendations for establishing and maintaining proper commission procedures. (Before I do that, I 'd like to emphasize that these are -not dictums from one State Historic Preservation Office, but are rather suggestions that result from my years as the City Planner for the St. Paul Heritage Preservation Commission, and more than a few mistakes - or at least close calls - along the way.) ONE: Whether a commission has staff or not, it should create active subcommittees to work on all aspects of commission business. I recommend at least the following: A. Survey/Nomination Subcommittee 1) organizes, participates in, reviews, or updates the survey. 2) writes, reviews, or most importantly, evaluates nominations to the local register of historic sites. B) Public Education/Public Relations Subcommittee 1) prepares public education brochures, annual reports, press releases, letters to the editor. 2) organizes workshops for the public. C) Design Review Subcommittee 1) In many ways, the most important and hardworked subcommittee. Should include the commission's architect or design professional, those most familiar with design issues, the chair, and one • �-3 "lay" member. 2) drafts design guidelines. 3) does detailed reviews and site inspections of applications for rehabilitation and new • construction. 4) should be prepared to meet monthly, in advance of each full commission meeting. Annual rotation is recommended as necessary, for an even work load amongst commissioners. D) Executive/Administration Subcommittee 1) should include officers and/or committee chairs. 2) sets agendas, guides major policy and political decisions, maintains commission bylaws and written administrative procedures. TWO: A commission must define and write down its administrative procedures and then distribute them widely to the public. Towards this end: A) A commission must know its ordinance! Determine the extent and limit of the commission's powers. Figure out the ordinance's strengths and weaknesses. See what .procedures are specified by law: The commission should then take the ordinance and bylaws: look at what is there and what is not, and then systematically define any additional procedures needed for a commission's two primary activities: 1. designation and 2. design review of rehabilitation, new construction and demolition. It should formally adopt those procedures by commission resolution, incorporate then into bylaws as appropriate, so that whatever the commission does (and whatever the commission requires of an applicant) is standardized and a matter of policy on public record. B) Then, a commission should write down in plain English all of its procedures, but particularly design review procedures. Very importantly, those procedures should be spelled out step-by-step. A commission's written description of its procedures should include at • least the following ten items: 1. Regular meeting date, time and place. 3 -4- 2. What the applicant does for each step - where she/he must go. • 3. What the commission does, including staff review, committee review, and site inspections. • 4. Role of other governmental bodies or employees, such as the planning board, town or city council, or zoning administrator. 5. Provision for notice to applicants of their hearing and publication of meeting notice. • 6. Description of the commission's meeting format. 7. A precise explanation of what happened with each option of final commission action: approval, approval with conditions, disapproval, or no action. 8. Appeal procedure. 9. Preliminary design review process, with strong encouragement for its use early in an applicant 's planning stages. 10. Submission requirements for design review. a) It is important to remember that a commission will be basing its decisions entirely on what is presented graphically and in writing by the applicant. Therefore, a commission must require enough information, up front, so that it can make fair decisions. (Beasley, Reviewing New Construction Projects in Historic Areas, Boston, 1986, 12) b) Submission requirements should be organized by category of project and tailored to the scope of project size. Generally, applications for rehabilitation and new construction projects should include the following materials: • 1. Precise written statement describing • 3 - 5 proposed changes or design (on the commission's application form) . 2. Final working drawings, with a. elevations of facades • b. site plan c. floor plans d. indication of materials 3. Written specifications, with measurements 4. Photographs of building or lot 5. Rehabilitation or restoration • applications should include historic photographs, and statement of physical or documentary evidence for propose changes and a description of existing materials and their condition, particularly if replacement is proposed. 6. New construction applications, should include a streetscape elevation or photographic mock-up showing the new design in the context of neighboring buildings. A commission may wish to require or suggest material samples or color samples for either rehabilitation or new construction. c) a commission should also establish more minimal but still specific submission requirements for signs, reroofing, fences, parking lots, and landscaping. Finally, a commission must detail its submission requirements for demolition, addressing the issues of condition, structural integrity, economics, and any planned new construction. C) Once a commission has all that written out, its crucial that the commission then package those procedures and 3- !o distribute them widely to the public: sending them to all property owners, Planning Board members, Council members., the Mayor, and the municipality's construction and zoning officials. The document itself doesn't have to be anything fancy -- a xerox with some nice photos and a heavy paper cover will do. Many CLG commissions have published general brochures under CLG grants. Such brochures should always include complete commission procedures along with the usual descriptions of the community's historic architecture, etc. A commission's written administrative procedures should routinely be included in design guideline publications and in annual reports. (SHPO's should encourage CLGs to use a portion of their grants to print and distribute each year's annual report, combining a report on the year 's business with publication of procedures and an up-to-date list and map of designated sites.) THREE: My third general recommendation applies before a commission ever gets into design review. A commission should apply its designation criteria very strictly and should clearly justify a site's significance. The same rules of strictness and justification apply when determining which buildings in a historic district are "contributing: " or "non-contributing" to the character of that district. A) There are two reasons for this: 1. ) Establishes a commission's reputation for strict adherence to criteria, in the more positive, less controversial context of nomination and designation rather than the more negative, controversial realm of design review. - - 2.) Doing so avoidsthe quandary later on, of a controversial design review decision on a building that has borderline or unsubstantiated significance. B) A commission should ensure that a designated building or district is accompanied by a nomination form that clearly describes the historic character - defining features of the site and summarily justifies its significance.- Again, this applies to a district on a building by building basis - hence the importance of an inventory type survey. Put simply, a commission must know what it 's protecting before it regulates. C) I 'd like to add a note on nomination and designation, with particular regard to new commissions.. Commissions should be encouraged to build their programs slowly, 3 -1 • defining long range objectives, but trying to achieve them through small, achievable goals, which hopefully will yield a few small victories. 1. For example, a commission can start (or regroup for that matter) by designating the most obvious, well known individual sites: a) Thoroughly researching and justifying significance b) Getting owners ' support, meeting with them face to face as often as necessary c) Taking the nomination to the Planning Board or Council with everything in place d) Emphasizing criteria and reasons for significance FOUR: My fourth point: A commission must establish standards and guidelines for its design review decisions. • A) Design guidelines provide a rational framework for design review decisions, that could otherwise justifiably be called arbitrary, subjective, or simply a "matter of taste". Design guidelines are the written standards against which applicants should measure planned projects and against which preservation commissions should review them. (Beasley, 12) B) Ideally, a commission's Design Guidelines should include: 1. General Standards for Rehabilitation or Restoration. These general principles, ie. standards, should be identical to or substantially similar to those found in the Secretary of, Interior 's Standards for Historic Preservation Projects. These standards can apply to all individual sites and districts. 2. Specific Guidelines for Rehabilitation or Restoration. • Guidelines can best be organized by treatment of building elements such as roofs, siding, windows, interiors, etc. Again, the Secretary of the Interior ' Guidelines are a good model, but a 3-8 • commission should. additionally look at its own town's or districts' unique characteristics to determine which building elements merit special *treatment. 3. Factors to Consider when Applying Rehabilitation Standards and Guidelines. Factors to include: a. Significance of the building or building element b. Integrity of original design c. Condition d. Public View e. Economic Hardship f. Reasonable Use 4. Guidelines for New Construction a. General Goals • b. Guidelines for new construction should be tied to the specific architectural/visual characteristics of a district. The purpose of such design guidelines is to encourage new, design that's compatible or harmonious with a' district 's general design. characteristics such as height, setback, street rhythm, proportion of openings, directional emphasis, texture, etc. c. Remember--the point of new construction guidelines is to encourage compatible new design, whether the design style is contemporary, post-modern, or historicizing; whether the design quality is good or bad. (Design guidelines can not guarantee "quality" architecture) . C) For developing and adopting design guidelines I recommend that a commission utilize a participatory, step-by-step, consensus-building approach. 1) Start with small meetings - with a combined • 3- 4 commission/neighborhood committee to discuss guidelines (and district significance and boundaries, if the district is not yet registered) 2) Small public meetings on drafts 3) Large public meeting on final draft 4) Final Public Hearing: pro forma D) Finally, design guidelines are visually based so a commission's design guidelines should be illustrated, published, and distributed to property owners. I show, for example, the design guideline booklet that I prepared for St. Paul's Historic Hill District. FIVE: My fifth recommendation regarding procedures is that a commission should establish a standard format for its meetings and consistently follow that format, especially for • design review. Specific recommendations for design review follow. a) Determine if the application is complete. 1. Determine if the application is complete. 2. Meet with the applicant a week or ten days in advance, especially if there's a problem, at staff level or in a design review committee meeting. 3. Make a formal site visit, if necessary. 4. Send out an agenda, with copies of the written application and nomination or survey forms, to all members. 5. Draft written recommendations for full commission action, including reasons for that action related directly to standards and guidelines. b) At the meeting: 1. The chair should clearly explain the format and order of events of .the meeting. The agenda should be followed. 2. The chair or secretary should introduce the application with a summary of the proposal. 3- 10 3. Staff or the design review committee chair should: a.) present the plans, photographs, and slides if appropriate, .to fully describe the application, and b.) make recommendations to the full commission. 4. The applicant should be allowed to make a presentation, respond to concerns of the review committee or staff, and then answer questions from the commission.. (Steps 3 and 4 are reversed by some commissions) 5. Public comment should follow, whether or not the meeting is a formal public hearing. (name, address, of each speaker should be recorded) 6. Then there should be a formal discussion period for the commission only. Discussion should focus on how the proposal does or does not meet applicable design guidelines. Use of a one page checklist of the guidelines can be very helpful as guide discussion. 7. The commission should make a formal motion for approval, approval with conditions, or disapproval. The motion should include or reference the reasons for the commission 's decision. • 8. The chair should then summarize the commission 's decision for the applicant, note that he/she will receive written notice of the decision, and should inform the applicant of the appeal process if the application has been turned down. c) Some thoughts on protocol and tone: 1. A commission should establish written policy for length of speaking time applicants and the public. Commissioners should keep their own comments as concise as possible. 2. All commissioners should be business-like, but friendly, and never self-righteous. On the other hand, they shouldn't shy away from directness for fear of conflict. • • 3- I I • 3. Commissioners (including architects) should refer to standards and guidelines when discussing design and never call a design "ugly". (The concern is not with beautiful or ugly design, but rather with design which "fits in" with the significant *historic characteristics of a district) • SIX: My sixth and final recommendation is to keep a thorough written record of commission meetings and decisions. A) Meetings should be taped. Minutes should be complete and note the rationale behind decisions. • B) Commission action on each application should be documented in a letter or a formal commission resolution sent to the applicant. I recommend using a resolution because its format is more official and can be easily standardized. A commission's resolution or letter should include: 1 . Authority for action 2. Essential administrative facts; a) applicant b) name of site c) address d) date application received e) hearing date 3. Description of the site 4. Findings of Fact: reasons justifying the commission's decision. The Findings of Fact should address: a) Significance of the building and significance of the building elements affected by the proposed change b) Relevant background c) Other relevant factors, such as reasonable use or economic concerns d) Analysis of the proposed project 's conformance or nonconformance with design guidelines 3- 12 5. Final Resolve; of approval, approval with conditions, or disapproval. a) reference to specific dated plans and specifications; b) note on the need for approval of any changes to approved plans. 6. Record of motion, second, and vote. 7. Notice of appeal procedure. C) The application and each sheet and page of all plans and specifications should be stamped approved (with conditions noted) or disapproved, and dated. In summary; my experience in St. Paul and with local commissions in New Jersey has led me to the firm belief that if a commission sticks to its standards and procedures and rationally justifies its decisions, that commission .will gain political respect and creditability, whether it wins or loses the individual cases. • 3-13 • Give adequate and timely notice.State enabling acts and municipal zoning ordinances invariably contain requirements for notice of • proposed legislative and administrative actions on zoning matters and the hearings at which they will be considered.Due process goes Play Fair in further,requiring that the notice must be adequate(informative and easily comprehensible)and timely(allowing sufficient preparation • Public Hearings time for a hearing). R. Marlin Smith Partner,Ross&Hardies. Chicago • Let everyone be heard.Central to the concept -.I procedural due process is the requirement that all those interested in a decision must have a chance to offer their views and give testimony, provide evidence,or make a statement.By failing to conduct an adequate public hearing,a commission or board runs the risk that the regula- • Consider the following excerpt from the proceedings of the planning lion it adopts or recommends will ultimately be held to be invalid. board of the mythical city of San Cibola(as heard at a mock commis- • Allow cross-examination.If a hearing is regarded by state law as sion hearing at an APA conference): quasi judicial rather than legislative,then all parties must have the Litigate:"Mr.Chairman,I would like to ask Mr.Hysteric a few ques- opportunity to question their opponents'witnesses.(A good rule tions about his testimony." of thumb for deciding whether a process is quasi judicial is that it • ( Wawfull:"Sorry,but we don't allow that." is if it's the final decision of an appointed board or commission.At t Litigate:"I think I have a right to cross-examine to show that there is least six state supreme courts have said that rezoning decisions are absolutely no basis for his inflammatory statements." quasi judicial.) Wawfull:"We don't allow cross-examination." • The courts have been reluctant to require cross-examination in pure- Litigate:"Then you don't allow due process either." "More legalese,"grumbles the typical plan commissioner or zoning ly legislative hearings,probably because,in theory at least,such hear- jogs are meant to be informative,not adversarial.Recently,however, board member."What is'due process'?What's due and when?And why does it matter anyway?" an Illinois court did require a zoning board of appeals to give an oppor- It matters because decisions about land-use regulation affect the rights tunity for cross-examination in a rezoning hearing. of those who own and occupy property,and those rights enjoy the pro- • Disclose all.All interested parties must have an opportunity to hear tection of the federal and state constitutions—including the Fifth Amend- or see all of the evidence considered by the decision-making body. ment to the U.S.Constitution,which states that no one may be"deprived Private communications with the decision makers deprive other of life,liberty,or property without due process of law." parties of an opportunity to respond. Worse, they destroy the The due process requirement has two aspects:procedural and substan- credibility of the hearing process as a fair opportunity for everyone five.Procedurally,the process by which a decision is reached must be to be heard.(Recent decisions in the state of Washington have said fair to everyone concerned.Substantively,a law,rule,or decision must that a public hearing must not only be fair,it must appear to be fair, not be arbitrary;that is.there must be a rational relationship between and, if it is not,then any action based on it is void.) the exercise of legislative authority and the achievement of some legitimate public purpose. A common breach of the disclosure requirement is the practice of con- Nine points sum up the requirement for procedural fairness. sidering,at the hearing,staff reports that have not been made available to the public in advance. N I--' ciW • Make findings of fact.The specific facts that justify the decision(the of the witnesses they propose to call and a brief summary of the findings)must be spelled out.They are an essential aspect of due testimony anticipated. Reports or studies prepared by witnesses process in administrative hearings and without them the decision may be null.Findings of fact are ordinarily not required where the should be filed in advance,as should staff reports. decision is characterized as legislative—as it is in most actions that involve text or rezonings.The exception,a result of The objective of procedural due process,in short,is to guarantee that the well. ublici:e amendments case in the decision-making body has before it all pertinent information— P Oregon,is a decision about rezon- ensurin , as far aspossible, that the decision-making ing a particular parcel of land.But,even when not required,specific g process will be findings of fact,and recommendations based on them,are desirable. open,fair,and thorough. • Avoid conflicts of interest.The courts will not permit a decision to This material is based on an article In Land Use Law:issues for the Eighties(Chicago: stand if it involves a local official with a financial or other personal American Planning Association Planners Press,tvgt),pp.171-87. interest in the outcome. The appearance-of-fairness doctrine developed by the Washington courts,mentioned above,has fre- quently been used in that state to invalidate decisions in which even the indirect interest of one of the decision makers deprived the deci- sion of the appearance of fairness. • Decide quickly.Even adequate notice,a fair public hearing,and ab- solute impartiality do not guarantee due process if a decision is not made promptly.All parties have a right to expect prompt decisions, and failure to provide them is itself a failure to provide fair procedures. • Keep records.All proceedings must be recorded completely and ac- curately.That means a stenographic record of all testimony heard and all statements made, not simply skeletal minutes of the pro- ceedings.(Tape recordings are a poor second choice of doubtful reliability.)Anything less deprives the courts of the opportunity to engage in a meaningful review if and when the dispute reaches the judicial system.No hearing can be considered fair if the matters taken into account by the decision-making body cannot be • reconstructed when its decision is reviewed by others. • • Set ground rules.Participants cannot prepare themselves for a hear- ing if they do not know the ground rules that will govern the pro- cess.Thus,a copy of the rules must be available to anyone who ap- pears before the body.And at the start of every hearing,a member of the board or commission should briefly recite the rules that will be followed during the proceedings.It is good practice to require that those who expect to present evidence supply in advance a list FALL 1992 2-2C "Value means'to mean;'to signify.' It is the building Stand up Confidently to the without meaning that is the valueless building,nor our property Rights Assault a.. historic structures... "Historic preservation does have a measurable eco- by Catharine Gilliam nomic effect on a community. This impact is not only as an economic activityin general,but in comparison to Members and staff of local preservation commissions new construction in particular. Suppose a community should be aware of the existence and tactics of the is choosing between spending$1,000,000 in new con- current "property rights" movement, and should be struction and spending $1,000,000 on rehabilitation. prepared and informed to enforce preservation ordi- What would the differences be? nances without being intimidated by the vigorous arguments put forth. Part of the strategy of these land •$120,000moredollarswillinitiallystayin thecommu- rights advocates is to appear to be locally based,indi- nity with rehabilitation than with new construction. vidual citizens, when in reality they are being sup- •5 to 9 more construction jobs will be created with ported and cultivated as part of a well orchestrated and rehabilitation than with new construction. well funded national campaign. Their arguments are 64.7 more new jobs will be created elsewhere in the particularly weak in the context of historic preserva- community with rehabilitation than with new con- tion regulation. Nevertheless, historic preservation- struction. ists have suffered some serious losses already,because *Household incomes in the community will increase of lack of preparation to respond to the arguments $107,000 more with rehabilitation than with new con- made and tactics used. struction. •Retailsales in the community will increase$142,000 as The land rights advocates are actively pursuing strat- a result of that$1,000,000 of rehabilitation expenditure egies of litigation,legislation and-perhaps most effec- - $34,000 more than with $1,000,000 worth of new tively - public relations. The recent U.S. Supreme construction. Court decision in Lucas v. South Carolina Coastal •Real estate companies,lending institutions,personal Council resulted in a flurry of publicity and claims that service vendors, and eating and drinking establish- the case would severely restrict land use regulation. ments will all receive more monetary benefit from Planners,preserva tionists and environmentalists were $1,000,000inrehabilitationthanfrom$1,000,000innew equally quick to point out that the decision covers a construction... very narrow set of circumstances, and should not change most land use regulation. The Supreme Court "Historic preservation makes sense in large measure in Lucas was bound to the finding that the regulation because historic preservation makes dollars and cents, they were reviewing (prohibition of construction on but it also saves dollars and cents. Historic preserva- oceanfront lots)denied the owner all economic use of tion is a rational and effective economic response to the property. Experienced land use lawyers agree that overconsumption. To make a new brick today to build historic preservation review would rarely,if ever,re- a building on a site where there is already a brick suit in such a finding. building steals from two generations. It steals from the generation that built the brick originally by throwing Members of preservation commissions should know: away their asset before its work is done,and it steals 1) Be alert and expect a well planned attack on your from a future generation by using increasingly scarce historic preservation law - and be glad if it doesn't natural resources today when they should have been happen in your community this year. saved for tomorrow. I would suggest that we have 2) Continue to enforce your ordinance as you have already consumed enough of somebody else's assets- been-fairly and consistently. Do not be intimidated it's time for us to make better use of our own. Historic by property owners,their lawyers or lobbyists who tell preservation is the way for us to do that." you that the Supreme Court has limited your ability to protect your community's historic resources. It's not The above was reprinted from the Wisconsin Preservation's true. July/August 1992 issue. Donald Rypkema's"The Econom- ics of Rehabilitation,"Information Series No. 53, 1991,is County and city attorneys will need to be familiar with published by the National Trust for Historic Preservation, the Supreme Court's decision in Lucas and to watch 1785 Massachusetts Ave.,N.W., Washington,D.C.20036. how lower courts interpret the case. For some time <-- The cost is.$5.00 for single copies. Continued on next page 3 The ALLIANCE REVIEW 2-23 46, ere may very well be litigation by zealous developers ports the property rights of the greater number of allenging any type of land use regulation. If a case citizens by protecting the character and value of the ..J you have decided ends up in court,your careful devel- community as a whole. We may have to fight them opment of a strong record is very important. As town by town,but we can! always,make it clear in the record how standards are being applied and the full basis for your decision. Catharine Gilliam is Executive Director of the Historic Where economic hardship provisions might arguably `Fredericksburg Foundation. On October 5,she will become apply,don't cut corners in the documentation of your coordinator of the Project on Property Rights and the Public decision. But having emphasized what should have Interest at the National Trust for Historic Preservation. always been your procedures,do not change the way in which you operate. Do not be influenced by this Common Pitfalls in The Life campaign,the primary objectives of which is intimida- and Work of Local Historic tion and misinformation. Preservation Commissions The property rights movement,part of the larger'wise use'movement is fueled and funded by development, by Katherine Raub Ridley timber,and other interests who have vowed to undo all environmental regulation in this country. As outra- When groups of concerned citizens set about drafting geous as the arguments and tactics seem,they have met a local preservation law, they have access to expert with some significant success. As quoted in a recent advice from a variety of sources. National organiza- article in National Wildlife,Jay D.Hair of the National tions can share experience from other states.Statewide Wildlife Federation said: "This is a classic example of groups can often provide legal advice. Neighboring a lie galloping across the range while the truth is still municipalities with similar laws are happy to pass on pulling its boots on." In the preservation context,these copies of their ordinance. advocates appeared at the Virginia legislature in char- tered busses full of citizens who had been coached and Once the law has been drafted and passed,however, 4o irectedbyhighlypaidandskilledpublicrelationsand some of those concerned citizens find themselves ap- 4 bbying firms,and secured a damaging amendment pointed to the commission they helped create. Sud .01 - the state preservation law. denly they find themselves making complex decisions without the benefit of expert advice.The"model laws" In the Land Rights Letter, a network to encourage and other generic advice that got them started in the challenges to land use laws, the editor writes: "It is business have little application to specific cases. important that all of you network and help each other, but maintain your independence as grassroots groups When expert advice is available,it's apt to be architec- and individuals. They will have to fight you one by tural in nature. Very few commissions are blessed one,town by town,and state by state. And,they won't with expert legal help in negotiating the complex and be able to do that!" Material published and testimony often confusing administrative procedures they face by the property rights advocates confidently distorts on a daily basis. Help from the corporate counsel's the truth. A favorite tactic of this movement is to office is generally limited to litigation or to repairing monitor conferences,newsletters,hearings,etc.and to disasters after they've happened. 'Preventive legal gather information and quotes that can be twisted to advice"is sorely needed by most commissions. Legal support their arguments. Information such as the review of routine decisions is rarely given or sought, recent Economic Impact Study published by the Na- however,partly because lay commissioners may not tional Trust has not been utilized effectively enough to recognize a legal pitfall until they've stumbled into it. rebut the rhetoric of the other side. Commissions common!),get into trouble in three ar- The National Trust has created the Project on Property eas: designation of historic resources; decisions on Rights and the Public Interest to coordinate informa- appropriate change;and hardship. Since these areas tion and a response to the property rights movement encompass nearly all the work a commission does,the with environmental,planning and preservation orga- importance of good legal advice becomes apparent. nizations. Whether you confront a bus load of angry, rehearsed protesters or only the increased confidence Designation Problems =f developers who refer to "my property rights," re- ..J =ember that your role as a commission member sup- Having worked hard and long to achieve passage of a 4 FALL 1992 local preservation law,concerned citizens are under- Deciding Appropriate Change standably impatient about bringing buildings under the law's protection. It may seem a dangerous waste of Commissions run afoul of good administrative practice time to take any course other than instant designation, when deciding on certificates of appropriateness(C of simultaneously with passage of law. City council may A)as well. Routine review of commission decision by support this course of action, since it is behind the legal counsel before they are issued is rare in most policy of law. And it may slip past legal counsel municipalities. Consequently,the decisions reflect the because of its similarity to the way in which zoning commission's primary interest in substance.Rarely are decisions are made:in the law itself. The wisdom of they drafted as soundly as their quasi-judicial nature leaving designations to a later time,with the law itself would warrant. Findings of fact are usually missing. merely providing the criteria and process for designs- When conditions are imposed,they are often vaguely tion, is often not obvious to citizens who can all too written so as to allow enormous amounts of latitude. easily imagine the threat of a poised wrecker's ball. Later,when the property owner's interpretation of the condition turns out to diverge sharply from what the Ideally,however,designations should be left to a later commissioners had in mind,everyone is upset. time. "Instant historic districts"designated in the law itself usually have no administrative record to support New York State courts have ruled on administrative them. The kind of careful architectural survey that flaws in two decisions in recent years,coincidentally should precede designation is missing. No evidence from the same commission. A look at the court's has been gathered establishing the building or district's treatment of each case is instructive. architectural,historic or cultural significance. And no official body has measured the resources against the In 1988, the Rome historic and Scenic Preservation designated criteria contained in the law. commission denied a property owner's request to cre- ate a circular driveway and 18 parking spaces along Indeed,in those"instant designation"laws,there often both sides of his historic building, a former private are no designation criteria. Consequently, there is no residence turned church and now up for sale as office way to establish to the satisfaction of a reviewing court space. The zoning for the area required off-street that the buildings truly are worthy of designation. The parking. "everybody knows they're historic"standard is a de- cidedly weak defense if the designation is ever chal- The owner had tried unsuccessfully to obtain a waiver lenged in court. of this requirement from the zoning board. The com- mission denied his first application for 18 parking A different kind of local designation problem lies with spaces. It also denied a subsequent application for 9 the practice of automatically designating any district spaces,suggesting instead that he purchase the lot to listed on the National or State Register of Historic the rear of his property,demolish the garage and four- Places. Although these districts come with an abun- family house situated on it,and create a parking lot on dance of research and supportive evidence about their the cleared site. significance under National Register criteria,they have not been measured by the criteria in the local law,which There were three basic problems with the commission's may be different. decision: there were no findings of fact, it was not signed by the chair of the commission,and also it was Even where the criteria are the same as the National based on criteria other than those in the Rome preserva- Register's,owners will not have been notified nor have tion law. had an opportunity for a public hearing concerning local designation. Owner notification and due process Every commission decision should begin by reciting requirements as specified in the local law are essential the facts on which it is based.No law exists in a vacuum. parts of any local designation process. National Regis- Lawsbecome meaningful only when applied to specific ter notice requirements will not suffice,since the conse- factual situations. As the facts change,so does applica- quences of local designation are so different. Because Lion of the law. Therefore,it is important to know the local laws have very real effects on private property facts on which the commission based its interpretation rights,commissions need to be careful about providing of the law. adequate due process safeguards. Continued on next page • • The ALLIANCE REVIEW 2-23 The decision was signed by staff to the commission yond its authority in attempting to regulate lot size, rather than the commission chair. Since only the corn- which was allegedly a planning board concern. mission has the authority to interpret the law, the � commission chair,as representative of the entire corn- This time the court upheld the commission. It cited the mission,is the appropriate signatory rather than a staff about the fate of a historic building, it is hard to be person who may implement,but not make,decisions. mindful of the need for procedurally sound practices. Their goal is to make a sound substantive decision.The The commission denied the application because it was difficulty arises when those procedurally casual deci- incompatible with the Secretary of the Interior'sGuide- sions come under the glare of a reviewing court's lines.These Guidel ines were not,however,a part of the spotlight. Rome preservation law. Decisions must be based on the criteria in the law that's being applied. No matter Subjected to that kind of scrutiny,a commission may be how respected the Secretary's Guidelines may be, if dismayed to find decisions which reach good end they are not a part of the local law,they are irrelevant results substantively,overturned for procedural flaws. to decisions made under that law. If commissions'practices regularly embody the hand- ful of basic administrative principles enumerated in On appeal,City Council upheld the commission's de- this article,the resulting decisions should be sounder cision. The property owner then turned to the courts. on both administrative and substantive fronts. The Supreme Court overturned the commission's deci- sion, finding it arbitrary and capricious. Sanzone v. The above article was reprinted from the Landmark Commis- City of Rome(No.88-1880,Sup.Ct.Oneida Co.). The dons News,a publication of the Preservation League of New court cited the complete absence of findings of fact,as York State. Katherine Raub Ridley is the Counsel/Associate well as the unauthorized staff signature on the deci- Director of the Preservation League of New York State. sion.(The Rome commissionis now working tocorrect these problems.) Myths About Homeownership The court was clearly influenced by plaintiff's compre- Need to Be Dispelled hensive plan to restore the buildings and by the fact that the controversial circular driveway in front of the By Kenneth R.Harney house had, in fact, existed historically. Calling the house "the centerpiece of the jewel of the piece of property," it found that "as is the case with the rare Real estate owners may be encouraged by recent fed- jewel we think it sometimes has to be reset." The court eral court decisions that appear to strengthen their ordered the commission to issue a permit for 18 park- legal rights against government regulations. But top legal experts say there is still widespread misunder- ing spaces. standing on the part of Americans-from individual An equally instructive case is Gualtieri v.City of Rome homeowners to large investors-about precisely what (No. 87-3838, Sup. Ct. Oneida Co.). This time the "ownership"of real estate really means. commission's decision was even thinner,again lacked When you"own"your house,or you"own"a cottage findings of fact,and again was signed by staff to the at the beach or a piece of rental property,how far do commission.ThedecisionalsorestedontheSecretary's your legal rights extend? Not necessarily as far as you Guidelines. This time,however,the court upheld the think decision,procedural flaws and all. Petitioner Gualtieri sought to subdivide a corner lot in One of the country's most prominent legal authorities a historic district to build small,single family homes on on private property rights, Jerold S. Kayden of the each. The commission denied his plan,believing that Lincoln Institute of Land Policy in Cambridge,Mass., the smaller,new homes would be out of character with says there are"five great popular myths"about own- the nature of the district,which was characterized by ership that need to be dispelled. substantial, single family homes on large lots in a •Myth No.1:"A man's home is his castle."Itis the best "park-like"setting. known and most simplistic of the five. Most City Council upheld the commission's decision. In homeowners have heard it. Many believe it. court,Gualtieri alleged the commission had acted be- But Kayden says that even in merry old England, 6 FALL 1992 where the concept developed hundreds of years ago, economically viable use of their property without corn- ( common law never allowed homeowners—or castle pensation,in order to achieve a larger public good. owners,for that matter—to do whatever they wanted with their real estate. Under common law and numer- Penn Central still had the original economic use of its ous decisions by the U.S. Supreme Court, property terminal,said the court. But the Constitution didn't owners'rights are constrained by the concept of"nui- guarantee the firm the millions it would reap by stack- sance." ' ing a skyscraper on top of it. If your use of the home or land creates pain or harm to *Myth No3: Any time government reduces the mar- your neighbors,in other words,your castle is a nui- ket value of real estate through regulation,a"taking" lance, you're likely to have the offending use taken has occurred and some compensation is owed the away—even if you originally bought the property with aggrieved owner. that specific use in mind,and no one complained at the time. Quite to the contrary. Federal courts have held consis-' tently since 1926 thatgovernment actions for the public's The"home-as-castle"issue is being fought in virtually good—like local zoning ordinances—require no com- every state this year,according to Kayden,wherever pensation, even if they cut a property's value from suburban housing development intersects with tradi- $10,000 an acre to$2,500 an acre. The U.S. Supreme tional,rural,agrarian land uses. Typically,he says,the Court's landmark decision in late June,Lucas v.South fight is between longtime residents whose homes hap- Carolina Coastal Council, went in the private property pen to be located on horse farms, piggeries or even owner's favor because his real estate's value had been quarries,and new residents who've bought homes in wiped out by a state regulatory agency. the area relatively recently.The new residents eventu- ally complain about the long-standing"nuisance" in David Lucas, a developer, had bought two barrier the neighborhood—noxious smells,noise,unhealthy island lots for$975,000,but then had been prohibited conditions. from building virtually anything on them. His"dimi- • nution" was total,opening the way to possible coat- i Who tends to win? Despite the fact that the owners of pensation for his loss. the alleged nuisance were there first, says Kayden, their property rights virtually always have to give way 'Myth No.4: All value in private property is privately to the common law rights of the majority. The neigh- created. bors either win in court,or they vote in new lawmakers who change the rules to exclude the uses they deem That may have been true,says Kayden,when Ameri- obnoxious. can frontiersmen turned forests into productive farm- land with virtually no governmental presence or assis- •Myth No.2 Property owners are constitutionally tance. But in the 20th century,government is a major entitled to the most profitable or"highest and best"use bestower of value on private property — via roads, of their property. water and power systems,subways,schools and other services. No way,says Kayden: The Supreme Court has ruled repeatedly that owners are entitled only to an "eco- 'Myth No.5: Government regulation always reduces nomically viable use of their property,but not a kill- the value of real estate. Baloney,says Kayden. ing." For example,anyone who owns property in carefully The issue was dealt with definitively by the high court regulated historic districts such as Boston's Beacon in 1978, when it ruled that the Penn Central Railroad Hill,Washington's Georgetown and large sections of Co.had no inherent,constitutional right to build a 55- San Francisco knows the potential market values of story skyscraper over its Grand Central Terminal build- sound historic preservation ordinances. That regula- ing in midtown Manhattan. The New York landmarks tion of often translates into hard cash in owners'bank commission had designated the ornate terminal as one accounts when they decide to sell. of historic significance. The above article was reprinted with permission from the What the Constitution guarantees private owners,said Washington Post. Please see The Alliance Review's article the court, is that governments not strip them of all on the Lucas decision in the Summer issue. 7 • NATIONAL Q;•ENT]EIIR FOR PRESERVATION LAW • BOARD AND STAFF , • Executive Committee J.Myrick Howard,Executive Director Paul F.McDonough,Jr.,Esq.,President Historic Preservation Foundation of N.C. • BUILDING Goodwin,Procter&Hoar Raleigh,North Carolina Boston,Massachusetts • Professor E.L.Roy Hunt A DEFENSIBLE RECORD John J.Kerr,Esq.,Vice President Holland Law Center,University of Florida Simpson Thacher&Bartlett Gainesville,Florida New York,New York B Y Philip M.Isaacson,Esq. Stephen Neal Dennis Thomas A.Coughlin,Esq.,Secretary Isaacson&Raymond Boasherg&Norton Lewiston,Maine Washington,D.C. George M.Notter,Jr.,FAIA Each September, the National Center for Preservation Law Eugenie C.Cowan,Director Notter Finegold&Alexander,Inc. Exploring the Metropolis,Inc. Washington,D.C. sends a short questionnaire to its mailing list of nearly 800 local New York,New York historic preservation commissions across the country. James F.Rogers,Esq. Matthew J.Kiefer,Esq.,Treasurer Latham& Watkins Commissions are asked to indicate if they have been in court Peabody&Brown ••:. Washington,D.C. during the past year or eighteen months, and the brief responses • Boston,Massachusetts helpthe Center pinpoint cases which should be monitored and to Professor Larry B.Wenger,Law Librarian • p p Board of Directors University of Virginia Law School locate court decisions which need to be analyzed. i Leopold Adler iI Charlottesville,Virginia Every year since 1987, the Center's questionnaire has .Yl Savannah Landmarks Foundation DO Savannah,Georgia Ex Officio Board Members confirmed our growing conviction that there are a large number of G.Bernard Callan,Chairman court cases at the trial court level involving local historic Paul S.Byard,Esq.,AIA National Alliance of Preservation preservation commissions. issi Unfortunately, indications are that far New York,New York Commissions y Frederick,Maryland too many of these commissions have gotten to court without Peter H.Brink,Esq. thinking through the implications of being there or constructing Vice President for Preservation Services David Doheny,Esq.Vice President and National Trust for Historic Preservation General Counsel with adequate malice aforethought a useful (and defensible) Washington,D.C. National Trust for Historic Preservation record. And all too often, no one has a chance to help these Washington,D.C. commissions before it is too late and theyhave lost in court. Joseph Z.Fleming,P.C. Fleming and Klink Nellie Longsworth,President I Let's explore together briefly this afternoon some of the Miami,Florida Preservation Action factors which should go into the development of an adequate Washington,D.C. John M.Fowler,Esq.,General Counsel record of a local preservation commission's decision. I will not Advisory Council on Historic H.Bryan Mitchell.Deputy SHPO ' focus on Virginia law, because I believe the points I will be Preservation Department of Historic Resources Washington,D.C. Richmond,Virginia making are applicable to commissions regardless of the individual , jurisdictions in which they find themselves. ,;, Lars Hanslin,Attorney-Advisor Executive Director of Office of the Solicitor Stephen Neal Dennis,Esq. Department of Interior National Center for Preservation Law *This talk was given at the 1991 Annual Preservation Workshop sponsored by the Washington,D.C. Washington,D.C. Arlington County Historical Affairs and Landmark Review Board. O N E should be included in the file for the application and the record of A preservation commission's decision should be the commission's action. clear and comprehensible. THREE It can be tempting for the chairman or secretary of a • Know at least as much about your commission's existing commission, or for staff to a commission, to cut corners and "abbreviate" the description of the issue which the commission precedents as the other side does. decided, and to omit the reasons for the commission's decision. I remember attending nearly ten years ago a meeting of the Minutes of a commission meeting, as well as a decision letter to an • Alexandria City Council at which the future of the Alfred Street applicant, should ideally both contain findings of fact and a Baptist Church was to be argued. Several preliminary appeals to certain, quite specific, decision. the Council from the Alexandria Board of Architectual Review Leaving out crucial details may make a decision hopelessly (BAR) were heard first, and two of these involved the issue of opaque to an individual not intimately familiar with the situation artificial siding. It was quickly apparent that individual members which was before the commission. Assume that this will be the of the Council and members of the public were more familiar with posture of any city council member or judge before whom the previous BAR decisions involving artificial siding than was the commission's decision may need to be defended in the future. individual attempting to justify the BAR decisions to the City Above all, do not leave•your applicant and his attorney wondering Council. what happened. • Assume that "the other side" will make every effort to use your commission's previous decisions against you if this style of T;v tt attack can become a persuasive argument. There may be unique •A preservation commission's decision should indicate the reasons why a change you have previously approved for another significance of the structure or district involved. applicant is totally inappropriate in the situation now before you. You may be a brilliant architectural historian and possess a Explain these factors, and use them to justify your decision. detailed and comprehensive knowledge of the defining FOUR characteristics of the building involved in an application to your Hope to have one member of the commission with a good commission, but unless you can convince a reviewing authority of working knowledge of parliamentary procedures. the importance of the building, it will be more difficult than it should be to argue the propriety of your commission's decision. • , Occasionally I have suspected that a preservation organization has Your commissions meetings should not become lost a case that might have been won simply because it could not cumbersome with elaborate strategic thrusts and counterarguments, but having one member who can propose a generate any sympathy for the building involved from the good resolution will save a lot of time over the years. If this presiding judge, often not a local historian. member can in addition summarize the arguments presented prior There is no need here for elaborate and obfuscating detail, to a resolution and then explain why he wishes to propose a but the building should be put into a context which can be easily resolution for formal adoption, this approach should clarify issues and convincingly explained, and appropriate visual materials for other commission members as well as the applicant and any members of the general public present. commission. This is particularly important when an applicant may The passage of a resolution containing your commission's intend to glide smoothly over an issue which will not bear close decision is always a splendid opportunity to refer tellingly to examination by the commission, such. as claimed economic criteria, standards or guidelines contained in your preservation hardship. ordinance. It is especially crucial to leave members of the press with If you think the "hardship" issue will be argued, the the sense that the commission is operating so methodically that its commission's attorney should review carefully the court cases in public hearings do not constitute news, though the fate of individual your state dealing with "takings" in land use regulation contexts. applications may be of some interest to a newspapers' readers. n alt mol a legLearnitimatei hardshipadvance what claim n, andapp be preparedican ust forpr theve possibilitytoestab that FIVE your applicant cannot meet the tests. If there is an interested neighborhood group or local preservation organization, hope that it will SEVEN be able to supplement the commission's careful Don't decide all of the issues homework on individual applications. • • before your commission in one sentence. In Kensington, Maryland, a well-organized neighborhood If an applicant says, in effect, "This is what I want to do, effort has now beaten back twice a developer's attempt to insert and if you don't let me life won't be fair and besides I stand to lose overscaled new houses into small original lots which functioned a lot of money," realize that you could be dealing with three for many years simply as side yards for a lot with an original important and quite separate issues: 2� Victorian residence. Without this encouraging support from the public, the Montgomery County Historic Preservation A. A challenge to the commission's developed expertise to 0 Commission might have been somewhat cowed by a determined make an"aesthetic"decision; developer and his highly-compensated architects, attorneys and preservation consultants. Without such a watchdog group, the B. A challenge to the adequacy of the commission's county attorney's office might not have been willing to make procedures and the willingness of the commission to defending a challenged commission's actions a priority. follow these established requirements; s t x C.An economic hardship challenge to the commission's If you smell trouble, try to get your commission's attorney to regulatory authority. review with you ahead of time issues that you anticipate needing to decide and arguments that you believe will be presented to the commission. This is not the time for your commission so respond, "Gosh!" A careful commission chairman will try to see that these A good attorney can often suggest to a commission issues become separate for discussion and argument, and that an • chairman questions that the commission should seek to have applicant is not allowed to confuse the issues as he presents his answered as an applicant is making his or her case before the case. But this may mean that a chairman will need to "play 1 through" an application in his mind before a meeting in order to NINE decide how to ask that debate be structured. Remember that an applicant's experts have been hired to produce a desired result and analyze or challenge their EIGHT assertions accordingly. Establish and maintain adequate working files . for your commission. Too often, commission members listen politely to testimony from individuals appearing in support of an application This is the downfall of many commissions. Over a period the commission should probably deny. If the commission of time, the commission is moved from one temporary location to subsequently ignores this testimony, it could be difficult to explain another, and files have a way of becoming misplaced. In a recent I on appeal why the testimony carried no weight with the case in New York City involving the designation of a group of commission. But if commission members question an "expert" Broadway theatres, the trial court judge became concerned that the vigorously and challenge assumptions or conclusions, the commission could not produce a stenographic transcript of the , commission will set the stage for a decision which indicates that hearings held by the commission on the package of designations. the commission did not find the testimony credible or found it Eventually, the missing stenographic tapes were located and could outweighed by countervailing arguments presented by other be transcribed. But because the New York commission had moved witnesses. A "muscular" decision may be one achieved after some briefly into one temporary location and then relocated into new exercise by the commission. permanent quarters, some materials which were infrequently used had gone into storage. If the commission had not finally located T E N the missing stenographic tapes, arguments that the commission 1 Avoid any appearance of having been i had not followed basic due process procedures would have been I arbitrary or capricious. P much more compelling. I have known of commissions which cannot locate basic A reviewing court will want to be convinced that the documents such as "official" maps of local historic districts and i commission was not arbitrary or capricious, and that the copies of publication notices or required letters to owners. If an commission's decision is supported by substantial evidence. This owner decides to challenge the city's authority to regulate a need not usually mean a preponderance of the evidence, rather building, you certainly don't want to be responsible for helping the that there is some evidence in the record supporting the outcome owner prove that the structure isn't even properly designated. This favored by the commission. If an application is too awful to be is particularly likely to be a problem in a city with an older historic taken seriously, it should always be treated seriously. Don't let an preservation program which has seen designations develop over applicant win on appeal because of your procedural errors. several separate stages and which has had two or more different Some commissions still lose in court, and some of these historic preservation ordinances. commissions probably deserve to lose. If an applicant comes before a commission with a strong economic hardship argument and the commission focuses entirely on the contribution of a building to a local historic district, this is a certain recipe. for trouble. If a commission uses "guidelines" which are in no sense NATIONAL CENTER lt'OIR PRESERVATION LAW official, sooner or later someone may wake up to this fact and challenge the alleged guidelines. Over time, most local historic preservation commissions PUBLICATIONS develop a secure sense of their own powers. If the occasional commission betrays timidity and fears exercising the full range of A. Union List of Historic Preservation Litigation Materials.A 58- its stated powers, one can hope that eventually this commission page listing of court papers pertaining to key historic will gain new members with a surer understanding of the preservation court cases.The Center shares these papers commission's potential as a regulatory agency. In Virginia, where ,with the University of Virginia Law School Library for the municipalities are subject to the often-criticized Dillon Rule which Historic Preservation Collection. $ 10.00. requires that local governments exercise only those powers expressly delegated to them, it is going to be necessary to amend B. Union List of Historic Preservation Ordinances. A detailed the state enabling legislation for commissions to clarify the role listing of municipal historic preservation ordinances which that local historic preservation commissions can play. But this will have been collected by the Center and the University of take time, and meanwhile you need to be certain that your Virginia Law School Library for the Historic Preservation commissions have a fighting chance if they are challenged on Collection. $10.00. appeal. C. An Examination Into Legislative and Judicial Authorization for Historic Preservation Programs in Missouri. A 22- page analysis of current historic preservation court precedents and state statutes in Missouri. $ 8.00. D. Preservation Law Updates.This basic Center publication consists of an ongoing series of individual newsletters. Back sets of"Updates" for 1987, 1988, 1989 and 1990 are available at a cost of$55.00 per year. E. Cumulative "Updates" Index.This Center publication indexes all 193 "Updates" published from 1987 thru 1990 by topic and state. $5.00. F. "Do's and Don'ts In Drafting a Preservation Ordinance. "A brief analysis of the political and legal factors which must be considered by the drafter of a local historic preservation ordinance. $2.00. The ALLIANCE REVIEW tion News, an article entitled "Our Biggest Executive Director's Message Challenge" outlines some of the victories of our property rights networking friends in Vir- J Welcome to Miami! This is our National Preservation ginia, Arizona, Oregon and Illinois, among Conference issue and we have dedicated it to property others. In response to your efforts,the Trust rights,one hot topic! I hope many of you were able to has organized a three-year program"that will read our pre-conference summer issue concerning multi- . address property rights challenges through cultural issues in the world of preservation commis- public education,research,grass-roots orga- sions. I hope you enjoy the conference and will be able nization, and advocacy." The June issue of to attend our commission breakfast on Saturday. Historic Preservation News states that their goal is to defend"the public interest in the use Recently I had the great pleasure of speaking at a of private land." conference sponsored by the Commonwealth of In May preservationist attorney Tersh Kentucky's state historic preservation office,the Ameri- Boasberg spoke to the Piedmont Environmen- can Battlefield Protection Program of the National Park tal Council, a Virginia preservation group. Service,the National Conference of State Historic Pres- After admitting to the audience that he was ervation Officers,and the Perryville Battlefield Preser- appointed to the D.C.Zoning Commission by vation Association. The conference, titled "Civil War the former Mayor Marion Barry(who recently Battlefields:Forging Effective Partnerships,"addressed served time on drug charges), he told the land protection issues, tourism,building community audience that "a lot about property rights is consensus,interpretation and fundraising. Nearly 250 hogwash." He then proceeded to talk about people attended this conference which was held in the issue for most of the evening. He said, conjunction with a meeting of the Civil War Battlefield "there is a group of dangerous, vicious, pit Advisory Commission appointed by Secretary of the Interior Manual Lujan and President George Bush Continued on page 9 Also attending the conference were several persons Continued from page 1 presenting a new phenomenon in our country, the j m-ivate property rights advocates.The following ed i to- "Does every building that is 50 or 70 or 100 years old rial taken from the July 1992(Vol II,Number&)issue of deserve to continue to stand simply because it is old? Land Rights Newsletter: "For Americans dedicated to I don't know. I don't think so. But maybe it should preserving our heritage of private property rights" continue to stand,not because it is old,but because it shows the negative attitude and vigor with which they is valuable. The English philosopher Stuart Hamp- oppose our land and resource protection issues...not to shire Man essay entitled The Future of Knowledge wrote, mention their opposition to my comments and those of 'Every time a street or building that incorporates a Tersh Boasberg: considerable history is destroyed in some improve- ment or modernization,some future happiness is de- From the editor's desk... stroyed with it. The effect is subtle and indirect,but "This Property Rights Thing" strong:the whole difference between walking down a Everywhere you turn these days they are street with visible history in the buildings and in the talking about us. In June several thousand shapes that form it,and a barely functional street.' landowners and I attended a Civil War Battle- field preservation meeting in Lexington,Ken- 'Progress and change,while not inherently synonyms, tucky(sponsored by the National Park Service are, in my opinion, both desirable outcomes... But and your tax dollars). One of the many speak- change, without the context of history, cannot be ers to mention property rights wasPrattCassity. progress. He remarked that he recently attended a meet- ing at the National Trust for Historic Preserva- "We are being asked to throw away out grandmother's tion where they discussed"this property rights 1/2 carat diamond,perhaps rather ordinary,perhaps thine."(His emphasis was on the word"thing.") flawed engagement ring,and have it replaced with a Indeed theNational Trust(partially funded 3 carat cubic zirconium. It is bigger,flashier,newer, with your tax dollars) has been one of the and perhaps even more stylish. But is it more valu- leading preservation groups to sound the alarm able? I think not. about us.In the may issue of Historic Preserva- 2 2-39 ATIONAL CENTER FOR PRESERVATION LAW 1333 CONNECTICUT AVENUE, N.W. •SUITE 300 • WASHINGTON, D.C. 20036 • (202) 338-0392 PRESIDENT EXECUTIVE DDIECTOR PAUL F.MODONOUGH,JR.,ESQ• STEPHEN NEAL DENNIS,ESP. PRESERVATION LAW UPDATE 1990-9 March 15, 1990 Working With a City Attorney A sympathetic city attorney can do much to back up the work of a local historic preservation commission. An unsympathetic city attorney can undermine the commission's effectiveness in many ways. What can a preservation commission to do turn an unresponsive city attorney into a positive advocate for the commission's role in city government? The commission's chairman should try to schedule annually a meeting with the appropriate person in the city attorney's office (which commission staff might also attend). This meeting could be with the city attorney himself, or it may involve a more junior member of the city's legal staff. Initially, it will probably be difficult in a large city to attract the attention of an attorney with significant experience and tenure. The important thing is to establish contact with someone on the city's legal staff, and hope that a good relationship between that office and the preservation commission can mature over time. The commission's chairman should, where possible, thank the city attorney or his representative in writing (and prior to any meeting) for help given during the previous year. Make it clear that the city attorney's help is occasionally needed, that the commission hopes not to abuse its relationship with the city attorney, and that the commission knows how to say "thank you." (Depending on the local political situation, it may be appropriate to see that other members of city government know how helpful the city attorney has been to the commission.) What a commission should strive for is a close working relationship with an identified individual on the city's legal staff who will be willing to review with commission members (or staff) any application which promises to be difficult. Problem applications are often obvious because of the importance of a building, the threat to the building, the litigious nature of an applicant or for other reasons. When a problem can be identified in advance, a little basic legal advice from the city attorney may be a simple precautionary measure which will let members of the commission sleep more easily at night. THE 'PRESERVATION LAW UPDATE" SERIES IS MADE POSSIBLE IN PART BY A GRANT PROM THE J.M.HA-PLAN FUND. • In an initial meeting with the city attorney or a member of his staff, the commission chairman should describe briefly the work of the commission and ask the city attorney if he sees problem areas in the ordinance which defines the powers (and perhaps the procedures) of the commission. (If this approach is part of a definite agenda for the meeting, the city attorney will be encouraged to read the ordinance in advance of the meeting.) The chairman can be helpful by pointing out resources in the commission's office that could help the city attorney in the future. Information about other preservation ordinances or reporting services from the National Park Service, the National Trust for Historic Preservation, the National Alliance of Preservation Commissions or the National Center for Preservation Law with information about recent court decisions involving the powers of preservation commissions should be mentioned. Ideally, an arrangement for sharing information between the preservation commission and the city attorney's office will keep both entities in city government better informed. Other city officials may have more confidence in the commission if they know that the commission and the city attorney share information on a routine basis. When city officials have confidence in a commission's ability to make responsible decisions, they are less likely to make political "end- runs" around the commission. If a specific category of application causes problems for the commission, it is time to ask for the city attorney's advice. (But remember that most city attorneys are unfamiliar with the routine work of a local preservation commission: don't put the city attorney on the spot by asking a direct question without providing needed background information.) If property owners are filing an increasing number of artificial siding applications, guidelines may be needed in order for the commission to exercise its full powers responsibly. A commission chairman should seek a commitment from the city attorney to review guidelines drafted by the commission before their adoption by the commission. (It may not be wise to ask the city attorney to draft the guidelines, though, because this would effectively ask the city attorney to do research in an area where the commission is expected to be the expert.) Keep the city attorney's role as simple as possible. Try to get the city attorney to agree to an annual discussion with the commission about developing trends in court decisions involving local preservation commissions. Local laws may require that such a session be open to the public, but this need not prevent a candid discussion about the commission's powers and responsibilities. When a major challenge to a commission's authority is filed, an informed city attorney will be a necessary asset for the commission. When quoting, please credit the Center. 2-31 NATIONAL CENTER FOR PRESERVATION LAW I U33 CONNECTICUT AVENUE, N.W. •SUITE 300 • WASHINGTON, D.C. 20036 • (202) 838-0392 PRESIDENT EXECUTIVE DIRECTOR PAUL F.MCDoxouoH.JR..Eso. STEPHEN NEST.DENNIS.Eso. PRESERVATION LAW UPDATE 1990-16 May 2, 1990 Notes on Revising a Preservation Ordinance Fifteen years ago, far too many cities and towns simply copied an existing local preservation ordinance with little attention to the special nature of local cultural resources (and all too often with only a glance at applicable state enabling legislation). Bicentennial Fever led many communities to believe that enacting a preservation ordinance (however brief or weak) would adequately ensure the evaluation and protection of significant local buildings and neighborhoods. Today, experience and hindsight suggest that these sometimes naive efforts have led to serious problems. Local preservation programs have grown and strengthened in key cities, but have also become alarmingly weak in others (see "Update" 1989-47). Already a number of cities have taken steps to revise existing ordinances in the light of important court precedents which did not exist when these ordinances were first enacted. The District of Columbia enacted a strong new local preservation ordinance in 1978, and for a time may have led the country. In 1984, Philadelphia amended a 1955 ordinance which had permitted the designation of landmarks but not the designation of local historic districts. In 1987, San Antonio updated an ordinance dating originally to 1939. Chicago enacted in 1987 a new ordinance to replace its 1968 version. Other cities are contemplating similar actions, and a large number of ordinances could stand a little gentle tightening and restructuring rather than radical surgery. What are the preliminary steps a community should take before beginning to draft amendments to an existing preservation ordinance? Build a constituency for the ordinance. If there is not a widespread shared belief that a preservation ordinance is good for the community, any effort to improve an existing ordinance may be doomed to a short life and an unhappy ending. Local preservation leaders may not always agree on the specifics of how an existing ordinance might be amended, but they and neighborhood groups and political leaders should share basic assumptions. THE "PRESERVATION LAW UPDATE" SERIES IS MADE POSSIBLE IN PART BY A GRANT PROM THE J.M.RI T.LAI FUND. Proceed cautiously. Determine where the flaws in the current process appear to be, and look carefully to see if these are flaws in the ordinance itself, or instead may be flaws in the political implementation of the ordinance. Study the successful programs in other cities to see how they are different and whether state law would permit the adoption of similar provisions for another community. Do not move more quickly than a broad political momentum can be generated and sustained. Build support for clearly stated concepts. Support for change in an existing preservation ordinance can often be generated after a great failure which leaves tempers frayed and objectives unsatisfied. If property owners believe a process is unfair and preservation leaders fear a procedure is ineffective, there may be room for a surprising amount of change. Listen to all constituencies. Bring together groups which may not communicate easily or frequently for discussions about whether the time has come for ordinance revisions, and make certain each group has an opportunity to articulate fully its special concerns. Assume that all participants have the best interests of a community at heart, though there will be strong disagreements about how this objective is to be accomplished. Avoid embarrassing local power brokers. There is often a time for confrontational politics in historic preservation, but such an approach will be fatal when discussions about whether and how to revise an existing preservation ordinance are underway. Seek technical advice. Inevitably, there will be a number of questions on which fairly technical information will be needed. A city attorney may need to advise a group on whether a proposed change would violate state law, can be justified under existing court precedents in other states or may require companion revisions elsewhere in an ordinance. If a community has not completed a satisfactory survey of its cultural resources, it can be easy to overlook a category of resources which should be considered if a community is to protect its true character in a satisfactory manner. Move decisively. Once agreement has been reached, the ordinance revisions should be put into final form and explained informally to all participants in the local political process. These may only need to be city council members, but in a large city there are likely to be a number of other players who will want to feel that they have "blessed" the proposed changes and can raise delaying questions unless they are given a chance to provide input. If the process outlined above has been followed, unexpected snags can be reduced, though some opposition from obvious special interest groups may yet surface. When quoting, please credit the Center. iii .—. —al-_,, 1t . alc. _ _ ti lisk :_„,...,„.... ,1 :.. Q... 1 Lam - _ — - .- i i 5 is imi E2L1' ! itri ;4=- U1!1 ? JhtHr �n -- — . ,E 0 c' 41 ' 1111 agi I GO I g id 00l . . _ E 5 --,-.--=. ___, v_ _ _ --� ="--- m m a ��. _ _______ _____ A service of the • • National Park Service DISTRIBUTED BY INTERAGENCY RESOURCES DIVISION, WASHINGTON, D. C. When Preservation Commissions Go To Court A Summary of Favorable Treatment of Challenges to Ordinances and Commission Decisions Stephen N. Dennis Executive Director, National Center for Preservation Law July 1988 A recent study by the National Center for Preservation Law suggests that local preservation commissions are becoming involved in litigation much more frequently than had been previously thought. Seventeen percent (39 commissions) of the 222 preservation commissions responding to a National Center questionnaire stated that they had been involved in a court case within the previous two years. This indicates that it is important for commissions and their staffs to know how commissions and local preservation ordinances have fared in court over the years. This issue of Local Preservation briefly summarizes and analyzes preservation commissions' participation in litigation. Historical Overview of Preservation Commission Litigation When one looks back over the evolution of American law relating to local preservation commissions, several distinct periods can now be seen. The first of these, a period of early development, lasted from the enactment of the nation's first historic preservation ordinance in Charleston in 1931 until about 1955, when the Massachusetts legislature enacted two special bills creating and protecting historic districts on Beacon Hill in Boston and on the Island of Nantucket. These two legislative bills set the stage for statewide enabling legislation for local preservation commissions in a growing number of states. The second of the periods showed a growth to maturity for local preservation commissions. This period lasted from 1955 until the U.S. Supreme Court decision in the Penn Central case in 1978. During this period, many cases involving local preservation ordinances were decided, almost invariably in favor of a challenged ordinance or a disputed commission decision. 2 The third period, which may still be underway, has been an aftermath to the Penn Central decision and lasted from 1978 until at least the early 1980s. During this period several important local preservation ordinances were strengthened, most notably those for the District of Columbia, Philadelphia, San Antonio, and Chicago. A strong decision on hardship under the District of Columbia ordinance helped make it clear that a loss in value because of landmarking will seldom be compensable. The current period is also one of perfecting commission procedures and challenging the regulation of properties owned by charitable (particularly religious) institutions. Cases involving these issues are characterized by: (1) careful attention to the demands of particular preservation ordinances (the search for procedural irregularity); and (2) a persistent questioning of whether non-profit organizations owning historic properties should be subject to rules different from those applicable to owners of residential or commercial properties. Cases in the second category grow out of arguments by churches that religious properties should not be subject to landmark designation and consequent regulation. No designation of property owned by a religious institution has yet been invalidated except on procedural grounds. The great majority of court decisions have upheld the basic power of communities to use the police power to designate and regulate both historic districts and individual landmarks. When commissions have lost in court, it has usually been because of a procedural flaw in a designation or a decision, not because of a court's determination that the commission could not have achieved its goal had it acted properly under a valid local preservation ordinance. Questions Addressed by the Courts Since 1941, nearly 100 court decisions involving local preservation commissions have been reported as published decisions that can be researched in a large law library. In a summary such as this, it is impossible to include every such case. Those discussed have been selected to illustrate principles and directions in legal thinking with which commissions should be acquainted. Does designation of private property as "historic" and subsequent governmental regulation affecting the property constitute a "taking" of that property for which the governmental unit must pay? Some courts have suggested that in exceptional situations the impact of the designation of property as historic could be so economically severe as to amount to a "taking." (The term "taking" derives from a provision in the Fifth Amendment to the U.S. Constitution which states that private property shall not "be taken for public use, without just compensation.") Courts have yet to identify such situations, or to provide firm guidance to preservation commissions on such potential "hardship" situations. Under the Supreme Court's Penn Central decision and a District of Columbia decision discussed below, however, the judicial test for "hardship" would be quite difficult for most property owners to meet. Several state courts have defined "hardship" narrowly, holding, for instance, that an owner who is not willing to offer property for sale at its fair market value cannot establish a "hardship." The United States Supreme Court upheld in Penn Central Transportation v. New York City, 438 U.S. 104 (1978), the designation of Grand Central Terminal in New York City and the subsequent denial to the terminal's railroad owner of a permit sought for the demolition of portions of the structure for erection of a high-rise office building on the site. The Supreme Court stated: 3 On this record, we conclude that the application of New York City's Landmarks Law has not effected a "taking" of appellants' property. The restrictions imposed are substantially related to the promotion of the general welfare and not only permit reasonable beneficial use of the landmark site but also afford appellants opportunities further to enhance not only the Terminal site proper but also other properties. This decision is cited frequently in historic preservation situations for the principle that an owner who can obtain a "reasonable return" or a "reasonable beneficial use" from his property does not have a valid "taking" argument. The Supreme Court included in the Penn Central decision useful language recognizing the permissible goals that American cities seek to implement through the enactment of local preservation ordinances: Over the past 50 years, all 50 States and over 500 municipalities have enacted laws to encourage or require the preservation of buildings and areas with historic or aesthetic importance. These nationwide legislative efforts have been precipitated by two concerns. The first is recognition that, in recent years, large numbers of historic structures, landmarks, and areas have been destroyed without adequate consideration of either the values represented therein or •the possibility of preserving the destroyed properties for use in economically productive ways. The second is a widely shared belief that structures with special historic, cultural, or architectural significance enhance the quality of life for all. Not only do these buildings and their workmanship represent the lessons of the past and embody precious features of our heritage, they serve as examples of quality for today. (H)istoric conservation is but one aspect of the much larger problem, basically an environmental one, of enhancing—or perhaps developing for the first time— the quality of life for people." More recent U.S. Supreme Court opinions involving the "taking" question have focused on the procedural issues of: (1) when an owner may make a "taking" argument ("ripeness" and "exhaustion of administrative remedies" cases); and (2) whether a property owner who can demonstrate a "temporary taking" is constitutionally entitled to seek money damages as a remedy for the taking. These cases have not changed the substantive standard for when there is a "taking," though, and thus pose no legal threat to local historic preservation programs. A highly publicized Supreme Court opinion of June 1987 on the "temporary taking" issue did not hold that there had in fact been a "taking" in the fact situation before the court. First English Evangelical Lutheran Church v. County of Los Angeles, 107 S.Ct. 2378 (1987). First English did not change the Penn Central standard for when a "taking" has occurred but does stand for the principle that money damages as compensation would be constitutionally required in the unlikely event that a temporary regulatory "taking" were found. Unfortunately, the implications of the case have been widely overstated by attorneys representing development interests. The case has been remanded to the California courts for a determination of whether any "taking" had in fact occurred. Another 1987 Supreme Court decision, Keystone Bituminous Coal Association v. DeBenedictis, 107 S.Ct. 1232 (1987), is important because it reiterated the Penn Central principle that when an owner makes a "taking" claim, a reviewing court must look at the owner's total interest in the property involved and should ignore the impact of a challenged regulation on individual components of the property: 4 Many zoning ordinances place limits on the property owner's right to make profitable use of some segments of his property When the coal that must remain beneath the ground is viewed in the context of any reasonable unit of petitioner's coal mining operations and financial-backed expectations, it is plain that the petitioners have not come close to satisfying their burden of proving that they have been denied the economically viable use of that property. It is important to bear in mind that in a few states it might be possible for an action which would not be a "taking" under the federal constitutional standard of Penn Central to be a "taking" under the tougher standard of a particular state constitution. This possibility points up the importance to preservation commissions of keeping an eye on land use decisions in their own states. Is it constitutional to use the police power to regulate private property for an "aesthetic" purpose such as historic preservation? The most important decision on this issue is certainly that of the U.S. Supreme Court in Penn Central Transportation Company v. New York City, 438 U.S. 104 (1978), in which the court noted that: (T)his Court has recognized, in a number of settings, that States and cities may enact land-use restrictions or controls to enhance the quality of life by preserving the character and desirable aesthetic features of a city . . . . See also A-S-P Associates v. City of Raleigh, 258 S.E. 2d 444 (N.C. 1979): (We) find no difficulty in holding that the police power encompasses the right to control the exterior appearance of private property when the object of such control is the preservation of the State's legacy of historically significant structures. A Connecticut court stated in Figarsky v. Historic District Commission, 368 A. 2d 163 (Conn. 1976): In a number of recent cases, it has been held that the preservation of a historical area or landmark as it was in the past falls within the meaning of general welfare and, consequently, the police power. . . . We cannot deny that the preservation of an area or cluster of buildings with exceptional historical and architectural significance may serve the public welfare. May a local preservation commission regulate both historic and non-historic structures within a local historic district? In City of New Orleans v. Pergament, 5 So. 2d 129 (La. 1941), the Louisiana Supreme Court recognized that the Vieux Carre ordinance had a permissible purpose: • The purpose of the ordinance is not only to preserve the old buildings themselves, but to preserve the antiquity of the whole French and Spanish quarter, the tout ensemble, so to speak, by defending this relic against iconoclasm or vandalism. Preventing or prohibiting eyesores in such a locality is within the police power and within the scope of this municipal ordinance. 5 Pergament has been cited often by courts in other jurisdictions. In Faulkner v. Town of Chestertown, 428 A.2d 879 (Md. 1981) the Maryland Court of Appeals stated that: (T)he whole concept of historic zoning "would be about as futile as shoveling smoke" if . . . because a building being demolished had no architectural or historical significance a historic district commission was powerless to prevent its demolition and the construction in its stead of a modernistic drive-in restaurant immediately adjacent to the State House in Annapolis. May a community deny altogether demolition permission when an owner wishes to demolish a building? Courts in several states have now upheld total denials of demolition permission for designated properties. In Maher v. City of New Orleans, 516 F.2d 1051 (5th Cir. 1975), the United States Court of Appeals for the Fifth Circuit stated: An ordinance forbidding the demolition of certain structures if it serves a permissible goal in an otherwise reasonable fashion, does not seem on its face constitutionally distinguishable from ordinances regulating other aspects of land ownership, such as building height, set back or limitations on use. We conclude that the provision requiring a permit before demolition and the fact that in some cases permits may not be obtained does not alone make out a case of taking. For similar results, see also Mayor and Aldermen of City of Annapolis v. Anne Arundel County, 316 A.2d 807 (Md. 1974); Figarsky v. Norwich Historic District Commission, 368 A.2d 163 (Conn. 1976); First Presbyterian Church v. City Council'of City of York, 360 A.2d 257 (Penn. 1976); Lafayette Park Baptist Church v. Board of Adjustment of City of St. Louis (No. 782-3445, St. Louis City Cir. Ct., May 3, 1979). In the Figarsky case from Connecticut, the court stated: Whether the denial of the plaintiffs' application for a certificate of appropriateness to demolish their building has rendered the . Norwich ordinance, as applied to them, confiscatory, must be determined in the light of their particular circumstances as they have been shown to exist. . . . In regulating the use of land under the police power, the maximum possible enrichment of a particular landowner is not a controlling purpose. May a preservation commission review all exterior alterations to a structure or must it confine its jurisdiction to those exterior facades visible from public streets? Commissions do not all have the same power on this issue. An early New Orleans decision, City of New Orleans v. Impastato, 3 So. 2d 559 (La. 1941), established the principle that in New Orleans the Vieux Carre Commission may regulate all changes to the exterior facades of buildings within its jurisdiction: 6 The word "exterior" as used in the Constitution cannot be limited to include only the front portion of the building as contended for by defendant's counseL Such a strained interpretation of the language employed in the constitutional amendment would merely serve to defeat the obvious intention of the people . . . by rendering it impossible for the Commission to preserve the architectural design of the sides, rear and roof of any building in the Vieux Carre section." Unless a commission is precluded by local ordinance or state enabling legislation from reviewing all changes to the exterior of a structure, the commission may assume that its jurisdiction is total rather than partial. Are religious properties immune from designation and regulation? Religious institutions often argue that the constitutionally-mandated separation between church and state precludes the designation and regulation of properties owned by such institutions. However, these arguments have not been successful in the courts. See, in particular, Society for Ethical Culture in the City of New York v. Spatt, 415 N.E.2d 922 (N.Y. 1980): The Society also contends that the existence of the designation interferes with the free excercise of its religious activities; however, rather than argue its desire to modify the structure to accomodate these religious activities, the Society has suggested that it is improper to restrict its ability to develop the property to permit rental to non-religious tenants....Although the Society is concededly entitled to First Amendment protection as a religious organization, this does not entitle it to immunity from reasonable government regulation when it acts in purely secular matters.... In a recent interim ruling in Rectors, Wardens and Members of Vestry of St. Bartholomew's Church v. City of New York , (No. 86 Civ. 2848 (JES), U.S. District Court for Southern District of New York, transcript of July 10, 1987 conference with District Judge John E. Sprizzo), a federal judge stated: Under no stretch of the imagination is it clear to the Court that St. Bart's is entitled to the relief which they are seeking here, which is the right to demolish the building and construct a skyscraper, even assuming arguendo that this is a taking— and I have found that it is not a taking as a matter of law. It doesn't follow that you would have the right to demolish the building and construct a skyscraper, because I think at that point, if it were a taking, the state would be entitled to condemn it for its own purposes if the state thought that the preservation of the landmark was significant enough a state interest to warrant that action. They would then have to pay you for the property. But it wouldn't follow that you would have the right, which I think seems to be at least the assumption in your papers, to demolish the building and develop it into a skyscraper. I think the city would then have the choice of paying you what it is worth or designating it, in effect. Are minimum maintenence provisions which require owners to take steps to prevent gradual deterioration of their buildings permissible in local preservation ordinances? In Maher v. City of New Orleans, 516 F.2d 1051 (5th Cir. 1975), the United States Court of Appeals for the Fifth Circuit stated that: 7 (0)nce it has been determined that the purpose of the Vieux Carre legislation is a proper one, upkeep of the buildings appears reasonably necessary to the accomplishment of the goals of the ordinance. . . The fact that an owner may incidentally be required to make out-of-pocket expenditures in order to remain in compliance with an ordinance does not per se render that ordinance a taking. In the interest of safety, it would seem that an ordinance might reasonably require buildings to have fire sprinklers or to provide emergency facilities for exits and light. In pursuit of health, provisions for plumbing or sewage disposal might be demanded. Compliance could well require owners to spend money. Yet, if the purpose be legitimate and the means reasonable consistent with the objective, the ordinance can withstand a frontal attack of invalidity. Does a local preservation commission have the authority to regulate property owned by a county or state? In Mayor and Aldermen of City of Annapolis v. Anne Arundel County, 316 A.2d 807 (Md. 1974), a Maryland court held that a local historic preservation commission had jurisdiction over a county-owned structure and could refuse to issue a demolition permit: (T)o accomplish the primary purposes of historic area zoning, it is necessary that the exterior of the building having historic or architectural value be preserved against destruction or substantial impairment by every one, whether a private citizen or a governmental body. The power of a local preservation commission to regulate county-owned property may vary from state to state. A still more difficult question is whether a local historic preservation commission may regulate state-owned property. The answer to this question is far less certain, though courts in both Washington and New Mexico have suggested that it is not an impossible power for a local commission to have. State of Washington v. City of Seattle, 615 P.2d 461 (Wash. 1980); City of . Santa Fe v. Armijo, 634 P.2d 685 (N.M. 1981). May a vacant lot be included within a local historic district? See A-S-P Associates v. City of Raleigh, 258 S.E.2d 444 (N.C. 1979), for a case upholding inclusion of a vacant lot on the edge of a historic district. How can a commission respond to an owner who makes a"hardship" argument? A District of Columbia court stated in 900 G Street Associates v. Department of Housing and Community Development, 430 A.2d 1387 (1981): 8 The basic question presented in this case is: at what juncture does the diminishment in value allegedly resulting from the governmental restriction on the use of property constitute an "unreasonable economic hardship" to the owner, which is here synonymous with an unconstitutional "taking"? . . . (I)f there is a reasonable alternative economic use for the property after the imposition of the restriction on that property, there is no taking, and hence no unreasonable economic hardship to the owners, no matter how diminished the property may be in cash value and no matter if "higher" or "more beneficial" uses of the property have been proscribed. What about the owner who ignores or is unaware of the preservation commission? Not infrequently, an owner will attempt to argue that he was unaware that his property was located in a historic district or will simply ignore the terms of a certificate of appropriateness. Cases in both Maryland and Massachusetts indicate that courts will take an extremely unsympathetic attitude toward such violations of a local historic preservation program. In Faulkner v. Town of Chestertown, 428 A.2d 879 (Md. 1981), a property owner applied for a permit to install vinyl siding and obtained a permit which specified "no trim to be covered." The owner proceeded to cover four second-story windows on the front of his building. The court upheld a lower court order that the siding should be removed from the windows: In plain language what the ordinance and the Act are saying is that if one proposes to do anything to a building within a historic district which will involve changes to the exterior appearance of the structure visible from a street or alley in the district, then one must obtain a permit. That is so plain we see no reason why people of ordinary intelligence would be unable to comprehend the meaning of the Act and the ordinance. In a more recent Massachusetts trial court opinion, Chase F. Parker, Trustee v. Beacon Hill Architectural Commission (No. 80370, Suffolk County Superior Court, decided June 21, 1988), a court found that: (T)he facade of 31 Brimmer Street stands in violation of the Beacon Hill Act, with respect to included features which are not specified in the approved plans, and with respect to features specified in the approved plans which have been omitted from the facade. The court ordered an owner who had added an extra floor to his building after permission to do so had been repeatedly denied by the Beacon Hill preservation commission to correct all outstanding violations . . . and further orders that all construction involving the facade of 31 Brim mer Street be done in accordance with the Commission's decision.... Will a Decision From Another State Convince a Court in Our State? It is important to remember that historic preservation litigation has not occurred in all states, and that in some states the preservation cases which have been decided have not involved local preservation ordinances. For this reason, a commission in a state with no court decisions in cases involving commissions should not assume that decisions from other states are automatically applicable. 9 Despite this caveat, the strong body of established precedents makes it unlikely that any court would find local historic preservation ordinances entirely impermissible in a particular state, though an ordinance not in conformity with state enabling legislation would be subject to challenge. Some Practical Suggestions Because the number of court decisions involving local preservation commissions is continuing to grow, a preservation commission should work with staff in the city attorney's office to create a local file of court decisions involving the powers of preservation commissions. Such a file can be helpful to commission members and may save city legal staff valuable time should a challenge to the commission's power ever be made in court. The chairman of a local preservation commission should try to become generally familiar with the principles argued and decided in these cases, and may want to bring this information to the attention of the local municipal attorney who works with the preservation commission. Some commissions distribute to commission members notebooks with pertinent materials such as copies of the local preservation ordinance, the state enabling legislation under which it was adopted and even copies of court decisions in the state involving local preservation commissions. This information can do much to reassure preservation commission members that their goals are valid so long as their actions are correct. New commission members, in particular, need to develop quickly a basic understanding of the broad issues which have been argued and decided in these cases. Some Responsible Preservation Commissions Never Go to Court It is important to note that most of the law involving local preservation commissions has been made in a handful of major cities such as New York, New Orleans and Boston. Curiously, and perhaps significantly, Charleston's Board of Architectural Review (BAR), the county's oldest preservation commission, has never made a decision that was appealed into court and resulted in a "reported" appellate court decision. Occasionally a decision has been appealed from this commission into a local trial court, but there is still no appellate court opinion in South Carolina involving a local preservation commission. This situation may be a tribute to the ability of the Charleston BAR to resolve controversial issues in a responsible manner or simply a recognition by local property owners that even when they remain personally unsatisfied by a decision of the BAR, community support for the BAR is strong. 10 Where to Look for Help If Your Commission Is Challenged In Court A number of national preservation organizations are actively monitoring court cases involving historic preservation issues. The Office of General Counsel at the National Trust for Historic Preservation maintains extensive litigation files of cases which have involved local preservation commissions. The Trust's regional and field offices are often able to put commission representatives in touch with other commissions which have dealt successfully with a particular problem. The Trust's Preservation Law Reporter (1982-present) contains a variety of case summaries, articles, and new development reports that are useful for local commissions seeking guidance in the legal area. For further information, contact: National Trust for Historic Preservation 1785 Massachusetts Avenue, N.W. Washington, D.C. 20036 (202) 673-4000 . The National Center for Preservation Law issues a series of frequent newsletters called the "Preservation Law Update" which summarize court decisions involving local preservation commissions and announce significant new publications in the area of preservation law. The National Center is working with the University of Virginia Law School Library on the creation of a comprehensive national Preservation Law Collection which will include copies of hundreds of local preservation ordinances and court papers which have been filed in cases involving local preservation commissions. National Center for Preservation Law 1233 Twentieth Street, N.W. Suite #501 Washington, D.C. 20036 (202) 828-9611 The National Alliance of Preservation Commissions distributes information on the work of preservation commissions. The Alliance Review newsletter is available by subscription. For further information, contact: The National Alliance of Preservation Commissions School of Environmental Design 609 Caldwell Hall University of Georgia Athens, Georgia 30602 11 For Further Information: * Historic Preservation Law and Taxation, Boasberg, Coughlin, & Miller, Matthew Bender, 1986. * A Handbook on Historic Preservation Law, The Conservation Foundation and National Center for Preservation Law, 1983. * Federal Historic Preservation Case Law: A Special Report. Advisory Council on Historic Preservation, 1985. Available from the Advisory Council at the above address. , �. • 170 Fla. 654 SOUTHERN REPORTER, 2d SERIES ' • ' diction of the Florida Supreme Court is in- yoked, according to rule 9.120(b), upon the METROPOLITAN DADE filing of a notice with the clerk of the district COUNTY, Petitioner, court within thirty days of rendition of the a. order to be reviewed, in this case, within pd. BIRDS, INC., Respondent. _ _ thirty days of the March 8, 1995 orderrant- g ing the appellant's motion for clarification. No. 93-1578. • ; See also rule 9.120, Fla.R.App.Pro., Commit- District Court of Appeal of Florida, tee Notes (1993). Third District - The State argues that our jurisdiction was • cut off nine days from rendition of the opin- April 12, 1995. - ion, on January 25, 1995,when the State filed As Amended May 5, 1995. its notice to invoke discretionary jurisdiction, r_ six days prior to the appellant's timely filing • of its motion for clarification pursuant to rule Owner of tourist attraction sought re- 9.330. Such an interpretation of the rules of view of decision of county commission up- procedure would entirely preclude a party holding designation of attraction as historic from filing a timely motion for rehearing or site. The Circuit Court, Dade County, Mar- 4. clarification pursuant to rule 9.330 if the tin D.Kahn, Robbie M. Barr,and Michael H. o sin merelyfiles a notice of dis- Salmon, JJ., overturned designation of por- eti g party tion of attraction as historic site, and county of an ary review immediately after rendition petitioned for certiorari. The District Court of an order or opinion? of Appeal, Cope, J., held that: (1) historic The state's notice to invoke the Supreme preservation board reasonably interpreted Court's discretionary jurisdiction was prema- "Over-fifty"rule of historic preservation ordi- ture. Moreover, it affirmatively appears nance to be applicable where site achieved • from the files and records pending in this significance over 50 years earlier, even if court that the Supreme Court of Florida has additional structures were added within past _ • not yet accepted jurisdiction of the state's 50 years, so long as more recent structures • original petition.1. were consistent with, and contributed to, For the foregoing reasons, the state's mo- overall historic character of historic site; (2) tion filed March 19, 1995 i is denied. there was no violation of unlawful delegation doctrine in historic preservation board's des- SCHWARTZ, CJ., and NESBITT, J., ignation of tourist attraction as historical site concur. under rule applicable to sites under 50 years old,which required that site be of"exception- • BASKIN, J., concurs in the denial of the al importance," even though that term was - _ motion to reinstate original opinion• not defined in historic preservation ordi- • nance; (3) any unlawful delegation problem •- _ _- -- _..- . ._ . : _ * in failure of ordinance to define term "excep- • o s Ely Piti"51?MIX tional importance" was cured when county • commission, which was legislative body that enacted ordinance, passed resolution ratify- ing board's interpretation of that term; (4) due process guaranties of State and Federal _ TIME EXPIRES TO FILE REHEARING MO- cluttering the Supreme Court with needless plain TION AND. IF FILED. DISPOSED.OF." conflict. - 2. Nevertheless.even if we arc powerless to act as 3. This motion may be deemed to constitute an • the state contends.its position is no worse than it abandonment of the state's petition for or discre- was prior to our original opinion. If the rule is tionary review in the Florida Supreme Court. It merely one of policy. it would seem desirable for is analogous to filing a notice of appeal and then __ a district court to continue to act to clarify and seeking rehearing u. the lower tribunal. Of rectify errors in an original opinion rather than course, this is not our prerogative to decide. kx.::- r-- .' - ., - ' METROPOLITAN DADE COUNTY v. PJ. BIRDS Fla. 171 -=S Cite as 634 So.2d 170 1Fla.App.3 Dist. 1995) Constitution did not require board to adopt historical site under rule applicable to sites rule defining standard of"exceptional impor- under 50 years old, which required that site OPOLITAN DADE tance" but, rather, board had latitude to pro- be of "exceptional importance," even though NTY, Petitioner, ceed in case-by-case adjudication of historic that term was not defined in historic preser- `, site designations; and (5) tourist attraction vation ordinance; there were professional owner's due process rights were not violated standards which were generally accepted is, INC., Respondent in connection with designation of attraction within field of historic preservation and No. 93-1578. as historic site. which were applied on case-by-case basis. rt of Appeal of Florida, Quashed and remanded with directions. West's F.S.A Const Art.2. § 3; Dade Coun- District- Barkdull, J., filed dissenting opinion. ty, Florida, Historic Preservation Ordinance § 16A-10(I, II). .pril 12, 1995. • 6. Constitutional Law 0=62(10) ended May 5, 1995. 1. Health and Environment 0=25.5(8) Health and Environment c=25.5(2) Historic preservation board reasonably Any unlawful delegation problem in fail- ourist attraction sought re- interpreted "Over-fifty" rule of historic pres- ure of historic preservation ordinance to de- of county commission up- ervation ordinance to be applicable where fine term"exceptional importance"was cured :ion of attraction as historic site achieved significance over 50 years earli- when county commission, which was legisla- :t Court, Dade County, Mar- er, even if additional structures were added five body that enacted ordinance,passed res- •bie M. Barr,and Michael H. within past 50 years, so long as more recent olution ratifying historic preservation board's rturned designation of por- strictures were consistent with, and cont rib-. thterpretation of that terra; county comnus- uted to, overall historic character of historic i a�histOric site, and county Sion approved designation of tourist attrac- •rtibrari. The District Court site. Dade County, Florida, Historic Preser- tion as historic site, and in ita resolution J., held that: (1) historic• vation Ordinance § 16A-10(I, II). reiterated.board's definition. West's F.SA ::d reasonably interpreted 2. Health and Environment c=25.5(8) Const. Art. 2, § 3; Dade County, Florida, t•historic preservation ordi- Under historic preservation ordinance, Historic Preservation Ordinance § 16A-10(I, II). able where:.site achieved 0 years earlier, even if site less than 50 years old must satisfy both sires were added within past general criteria for designation and criterion 7. Constitutional Law 0.278.1 e as more recent structures that it be of "exceptional importance"; "ex- Health and Environment c .25.5(2) ceptional importance standard is not substi- Due process guaranties of State and with, and contributed to, tute for general criteria. Dade County, Flor- :haracter of historic site; (2) Federal Constitution did not require historic ida, Historic Preservation Ordinance § 16A- ,lation of unlawful delegation preservation board to adopt rule defining ric preservation board's des- 10(I, II)- standard of "exceptional importance" but, =t attraction as historical site 3. Constitutional Law c=62(2) rather,board had latitude to proceed in case- :able to sites under 50 years Where statute or ordinance delegates by-case adjudication of historic site designa- •ed that site be of"exception- powers to administrative body,there must be tions. U.S.C.A. Const.Amend. 14; West's even though that term was sufficient standards to guide agency in ad- F.S.A. Const. Art. 1, § 9; Dade. County. historic preservation ordi- ministration of law, though rule must be Florida, Historic Preservation Ordinance unlawful delegation problem flexibly applied. West's F.S.A. Const.Art.2, § 16A-10(I, II). . ranee to define term"excep- § 3• 8. Constitutional Law a278,1 :e" was cured when county _h was legislative body that 4. Constitutional Law d60 Health and Environment a25.5(2) ;e, passed resolution ratify- At state level, unlawful delegation doe- Tourist attraction owner's due process :•pretation of that term; (4) trine derives from provision of State Consti- rights were not violated in connection with anties of State and Federal tution prescribing separation of powers. designation of attraction as historic site: West's F.S.A. Const. Art. 2, § 3. owner was represented by counsel at all preme Court with needless plain stages, had two plenary hearings before his- 5. Constitutional Law 0,.62(10) toric preservation board, and staff report :3 be deemed to constitute an Health and Environment c=25.5(2) thoroughly delineated different factors which the states petition for or discre- There was no violation of unlawful dele- supported designation of property as historic -he Florida Supreme Court- It g a notice of appeal and then gation doctrine in historic preservation site, all of which were set forth in writing in the lower tribunal. Of board's designation of tourist attraction as well in advance of both hearings, and provid- our prerogative to decide. its,..-ate "� --- +-- s>K+' - • ..- - S I 172 Fla. 654 SOUTHERN REPORTER, 2d SERIES • ' ed to owner. U.S.C.A Const.Amend. 14; though the owner had requested the second West's F.S.A.Const.Art. 1,§ 9; Dade Coun- hearing, the owner did not present any evi- ty, Florida, Historic Preservation Ordinance dence and the principals of the owner corpo- § 16A-10(I, II). ration declined to answer any questions put by the Board. The owner's input was con- ; fined solely to having the owner's counsel Robert A. Ginsburg, County Atty., and cross-examine the witnesses who testified, Thomas W. Logue, Asst. County Atty., for and in making legal argument. petitioner. The Historic Preservation Board again Eckert, Seamans, Cherin & Mellott and voted, without dissent, in favor of the desig- Eileen Ball Mehta and Stanley B. Price, for nation as a historic site. The owner again • s respondent appealed to the County Commission, which • conducted a hearing. The County Commis- Before BARKDULL, JORGENSON and sion upheld the historic designation. COPE, JJ. • The owner then sought review in the air- - COPE, Judge. cult court. The circuit court panel concluded _ that the owner's procedural due process Metropolitan Dade County petitions for a rights had been violated because the Historic writ of certiorari to quash an order of the Preservation Board had applied a standard of appellate division of the circuit court. The "exceptional importance"when such standard circuit court overturned the designation of a was not explicitly defined in the ordinance or portion of the Parrot Jungle tourist attrac- by Historic Preservation Board rule. The tion as a Dade County historic site. We County has petitioned for certiorari. conclude that the circuit court departed from the essential requirements of law and grant II certiorari. Under the Dade County Historic Preserva- . tion Ordinance,1 there are two distinct sets of I historic designation criteria. There is a set Late in 1990, the Dade County Historic of general criteria which applies to sites --- -- - Preservation Board ("the Board") decided to which attained significance fifty or more - consider Parrot Jungle for designation as a years ago (the "General Criteria"). The historic site. The Board's staff prepared a General Criteria are set forth in the Historic detailed report recommending a twelve acre Preservation Ordinance as follows: portion of the Parrot Jungle property for Sec. 16A-10. Designation process and such designation. After a public hearing,the procedure Board voted in favor of the designation. (I) [Criteria.] The Board shall have the The owner, PJ. Birds, Inc., appealed to authority to designate areas, places, build- ,.. the Board of County Commissioners, arguing ings, structures, landscape features, ar- that it had not been given a full and fair cheological sites and other improvements _ _ ___. __ opportunity to present its case in opposition or physical features, as individual sites, - - to the designation. At the owner's request, districts or archeological zones that are . the County Commission returned the matter significant in Dade County's history, archi- to the Historic Preservation Board for a new tecture, archeology or culture and possess • hearing, an integrity of location, design, setting, At the new hearing, the staff report and materials, workmanship or association, or: recommendations were again submitted to (a) Are associated with distinctive ele- It ! the Board. There was extensive testimony merits of the cultural, social, political, eco-from the Board's Executive Director and the nomic, scientific, religious, prehistoric and public. A number of written submissions architectural history that have contributed were also accepted into the record. Al- to the pattern of history in the community, 1. Ch. 16A, Metropolitan Dade County Code. . .f . '} -. s: '' • r--.\ METROPOLITAN DADE COUNTY v. PI: BIRDS Fla. 173 Cite as 654 Sold 170 (Fla-App.3 Dist 1995) I hid requested the second Dade County, south Florida, the State or Criteria: Site must meet General Critt- er did not present any evi- the nation; or ria (§ 16A-10(I)) incipals of the owner corpo- (b) Are associated with the lives of per- AND answer any questions put sons significant in our past; or Site must be of exceptional importance. the owner's input was con- (c) Embody the distinctive characteris- The fact that there are two different sets of laving the owner's counsel tics of a type, period, style or method of criteria is the point overlooked by the circuit .e witnesses who testified, construction or work of a master; or that court panel below. •gal argument. possess high artistic value; or that repre- Preservation Board again sent a distinguishable entity whose compo- III • ;sent, in favor of the desig- nents may lack individual distinction; or The question considered by the Historic ric site. The owner again (d) Have yielded, or are likely to yield Preservation Board in this case was how to County Commission, which information in history or prehistory; or apply the designation standards where the ing. The County Commis- tourist attraction came into existence over tistorie designation. (e) Are listed in the National Register of fifty years ago, but where additional struc- Historic Places. - a sought review in the cir- . tures have been added within the past fifty rcuit court panel concluded Ch. 16A, Metropolitan Dade County Code. years. ; procedural due process There is an additional criterion for sites The Historic Preservation Board's Staff olated because the Historic attaining significance within the past fifty Summary 2 states in part: d had applied a standard of years. Pertinent here is the following: Parrot Jungle and Gardens which lies a :-tance"when such standard EII) (Properties not generally consid- few miles south of Miami is one of Flori- defined 1 the ordirance or ered; exceptions.) ... [PJraperties that da's most unique tourist attiactions. arvation Board rum The have achieved significance within the last When it opened on December go, 1936 it oned for certiorari, fifty (50) years, will not normally be con- was billed as the "Only One in the World." sidered for designation. However, such For fifty-four years visitors have enjoyed properties will qualify if they are integral the subtropical and tropical landscaping, .0 1 ty Historic Preserva- parts of districts that do meet the criteria, man-made paths, and limestone structures two distinct sets of - or if they fall within the following catego- that make up the jungle where hundreds of n criteria. There is a set ries: exotic birds are allowed to fly free. :a which applies to sites • . . • * • The Staff Summary explains that the Parrot gnificance fifty orb more Jungle tourist attraction became commercial- 'General Criteria"). The (f) A property or district achieving sig- ly successful immediately and has operated re set forth in the Historic nificance within the past fifty (50) years if continuously since its opening. The suun- aanee as follows: it is of exceptional importance. mary outlines the areas of Parrot Jungle Designation process and I Id. § 16A-10 (II) (emphasis added). A less- which constituted the original tourist attrac- a than-fifty-year-old property must not only lion and the structures built prior to World The Board shall have the meet the General Criteria,but in addition the War II. The Staff Summary then goes on to grate areas, places, build- site must be of "exceptional importance." explain that a duck pond and flamingo lake . landscape features, ar- Thus, the ordinance creates what may be were added in the 1940's, a new entrance in and other improvements • described as an "Over-fifty Rule," and an 1954, and an amphitheater in 1974. The ures, as individual sites, "Under-fifty Rule." These may be stemma- original and newer features are all integral to .eological zones that are rized as follows: the tourist attraction. le County's history, archi- I. Over-fifty Rule: The Staff Report recommended that or culture and possess twelve acres be designated as a historic site, location, Applies to: Site which achieved design, signifi- setting, out of Parrot Jungle's total of 31 acres. At canoe fifty or more years ago. .ar.ship or association, or: the public hearing, the Board's Executive .tied with distinctive ele- Criteria Site must meet General Crite- Director, Margot Ammidown, testified that -ura1, social, political, eco- ria (§ 16A-10(I)). from a historic preservation point of view, religious, prehistoric and II. Under-fifty Rule: the property had attained significance over ory that have contributed Applies to: Site which achieved signifi- fifty years ago, and the"Over-fifty"standard '.ory in the community, canoe less than fifty years ago. applied. The original buildings are over fifty 2. The historical summary is set forth in the ap- pend s to this opinion. _ear:-". - ' ,r. • 17.E Fla. 654 SOUTHERN REPORTER, 2d SERIES years old. The Parrot Jungle and Gardens mercial property, this is a rule of practical became commercially successful over fifty necessity. • years ago and have been operating continu- When the Board began its deliberations, ously for over half a century. Indeed, Parrot the County Attorney served as the Board's _ i Jungle's own present-day promotional bro- counsel. The County Attorney made very chure prominently states"Parrot Jungle and clear that the Board had two alternatives - Gardens ... Over 50 Years of Beauty and before it—what has been referred to in this "' Tradition." opinion as the "Over-fifty rule" and the"Un- Ms • . Ammidown then pointed out that in der-fifty rule." The County Attorney stated, addition to the over fifty-year-old buildings, "mou will have to consider whether the sig- • the site also includes some buildings and nificance of this property dates over 50 years and whether the younger elements on the •- landscape features which were added within property are contributing or whether the the last fifty years. Ms. Amnudown ad- property is of exceptional importance. Ei- . dressed the interpretation of the Historic lher finding would support a designation:" - Preservation Ordinance in such a case: (Emphasis added). In terms of some specific issues I think The Board decided to make the designs • - ; might come up,I would like to address one lion under both alternatives. It enacted a • in particular since this is a very complicit- resolution stating, in part, that the property ed site. We are not talking about an "is over 50 years old and is a property of individual building. We are talking about exceptional importance...." (Emphasis a site that contains numerous buildings on added). On appal, the County Commission a number of acres. I would Iikc to point blewise voted in favor of the designation on out that even though buildings were added both grounds. The County Commission Res- mostly throughout the 1940's that does not olution states, in part, that "the Parrot Jun- disqualify them from the designation.... gle, which opened in 1936, is over fifty (50) --,• You can designate since the Board consid- stgrtate years old, and is of exceptional unpor- • ers an area in terms of all the contribut- tanee...." ing factors to the overall historic character -.... _ __--- ----.- - of the property. We think certainly that IV the areas of the Parrot Jungle that were When this matter arrived in the circuit- added in the 1940's represent areas that court, that court simply overlooked the fact contributed to the overall historic charac- that the Parrot Jungle designation is based • ter of the park Also the alterations that on both the "Over-fifty" and the "Under- _ were done—they also were done in a fash- fifty' rules. This is facially clear from the • ion that greatly contributed to the historic circuit court opinion. The circuit court said - aspect of the park. that the "controlling [issue] is whether Ap- . (Emphasis added). pellant's [the owner's] procedural due pro- cess rights were violated by the board's un- _ Simply put., if a property has attained sig- defined and'ad hoc standard of `exceptional nificance dating back over fifty years, it does importance'." Circuit court opinion at 3. ii - importance"not lose that significance simply because The "exceptional standard is there has been additional construction or solely part of the "Under-fifty" rule. It has modification within the past fifty years, so nothing at all to do with the "Over-fifty" - long as the additional construction or modifi- rule.3 By failing to apply the "Over-fifty" cation has contributed to the overall historic standard, the circuit court applied the incor- • character. Particularly for a working corn- rect law! 3. In other words. assuming arguendo that the question of whether the historic designation is • circuit court was correct in imalidadng the "ex- proper pursuant to the "over-fifty" rule. . ceptional importance" standard, the circuit courts ruling would only remove the "Under- 4. See Education Development Center v. City of • i - fifty"rule as a basis for the Parrot Jungle historic 14'est Palm Beach Zoning Board of Appeals. 541 designation. Completely- independent is the Sold 166 (Fla.1989); Maturo v. City of Coral _- . a 6. ' ' • !ill IES METROPOLITAN DADE COUNTY v. PJ. BIRDS Fla• 175 i cue.654 Sold 170 1Fla.App.3 Disc. tl9S) arty, this is a rule of practical 7 [1] "[A] reviewing court must defer to an the "Over-fifty" rule to Parrot Jungle, the ' agency's interpretation of an operable statute Historic Preservation Board aid County Board began its deliberations, as long as that interpretation is consistent Commission analyzed the site under both .ttorney served as the Board's with legislative intent and is supported by standards and found that the site qualified • County Attorney made sery substantial, competent evidence." Public under both. ' e Board had two alternalltves Employees Relations Comm'n v. Dade Coun- st has been referred to in this ty Police Benevolent Ass'n, 467 So2d 987, [2] In order for a site to qualify for the ' "Over-fifty rule"and the "Un- 988 (F1a.1985). Here, the Board interpreted "Under-fifty" rule, the site must satisfy two • The County Attorney stated, the "Over-fifty" portion of the ordinance to testa. First, an "Under-fifty" property must •e to consider whether the sig. • be applicable where the site achieved signifi- meet the General Criteria spelled out in sub- s property dates over 50 yea -`:t cance over fifty years ago, so long as more section 16A-10(I) of the Dade County Code. the younger elements on the ..•-' recent structures are consistent with, and The owner has made no complaint about the contributing or whether the ; contribute to the overall historic character of, specificity of the General Criteria.s Second, exceptional importance. £i- •:-' the historic site. - the property must also be "of exceptional •ottld support a designation" The circuit court was obliged to defer to importance." Id § 16A-10(II). ed). the agency's interpretation of the ordinance The circuit court panel found fault with the 'ecided to make the designa- on this point. The Board's interpretation of fact that the Historic Preservation Board had -i alternatives, It enacted a the "Over-fifty' standard in this case repre- not heretofore adopted a rule to define "ex- ng, apart, that the Property sented a reasonable construction of the His- ceptional importance," and that explicit crite- ria old and is a property of tone•Preservation Ordinance. See id.; lee defining "exceptional importance" had iportance•---" (Emphasis also Florida Cable Television Ass'n v. Dea- been announced by the Historic Preservation ▪ the County Co mission I son, 635 So2d 14, 15(Fla.1994); Department Board in the course of its adaiihistrative • favor of the designation on of Insurance v. Southeast Volusia Hospital hearing on the Parrot Jungle designation. 1 County Commission Res- Dist, 438 Sold 815, 820 (Fla.1983), appeal Circuit court opinion at 3-4. We conclude mot, that 'the Parrot Jun- dismissed 466 U.S. 901, 104 S.Ct. 1673, 80 that here, too, the circuit court panel applied ed in 1936, is over fifty (50) L.Ed2d 149 (1984). That is especially so the incorrect law. is of exceptional irnpor- where,as here,the County Commission—the legislative body which enacted the ordi- _ nance—has specifically reviewed and ap- A IV proved the Board's interpretation. The his- [3,4] Where a statute or ordinance dele- utter arrived in the circuit toric designation should have been sustained gates powers to an administrative body, simply overlooked the fact on the basis of the "Over-fifty" rule. there must-be sufficient standards to guide Jungle designation is based the agency in the administration of the law. •er-fifty" and "Under- V • See City of Miami Beach v. Forte Towers, is facially cleom the The Historic Preservation•Board and the Inc, 305 So2d 764, 765 (Fla.1974) (local goy- -, ion. The circuit court said County Commission also found that the Par- eminent); North Bay Village u Blackwell, ing [issue] is whether Ap- rot Jungle site qualified for designation pur- :: So2d 524, 526 (Fla.1956); see also Askew ier'sj procedural due pro- suant to the "Under-fifty" rule. Since the v. Cross Key Waterways, 372 So.2d 913, 924 iolated by the board's un- owner vigorously disputed the applicability of (Fla.1978) (state government).4 uc standard of 'exceptional 'cult court opinion at 3. Gables,619 Sold 455(Fla.3d DCA 1993); Herr- mentioning the General Criteria. it appears that era v. City of Miami, 600 So.2d 561 (Fla. 3d the circuit court may have misunderstood the importance" standard is DCA), review denied, 613 Sold 2 (Fla.1992). limited role played by the "exceptional impor- "Under-fifty" rule. It has tance" term, and erred on this point of law. do with the "Oyer-fifty" 5. The owner appears to argue. however, that an Certainly we would have a different case if the to apply the "Over.. Jty" "Under-fifty" property does not have to satisfy sole standard for selection was the phrase "ex- it court applied the incur- the General Criteria and that the sole criterion is c Wilimportance"ccriterion reality. must be read"exceptional importance." Such an argument to- clearly misreads the ordinance. gether with the General Criteria when an "Un- der•fifty" property is involved. r the historic designation is The standard of "exceptional importance" is the "Over_" rule• used for purposes of selecting among "Under- 6. At the state level the unlawful delegation doc- fifty"properties that satisfy the General Criteria. trine derives from Article II, section 3 of the =pment Center v City of The "exceptional importance" standard is not Florida Constitution. prescribing the separation g Board of Appeals, 541 used as a substitute for the General Criteria. of powers. See Askew v. Cross Key Waterways. I: •atar° v. City of Coral Because the circuit court discussed the "excep- 372 So.2d at 924; see aLso B.H. v. State, 645 tional importance"standard in isolation,without So.2d 987. 991 (Fla.1994); Chiles v. Children A. • • • • 176 Fla. 654 SOUTHERN REPORTER, 2d SERIES [5] This rule must be flexibly applied. tional Historic Preservation Act. See The Florida Supreme Court has said: §§ 267.021(5),267.061(2)(c), (3)(c). (3)(h), Fla. The specificity with which the legislature Stat. (Supp.1994). All fifty states have must set out statutory standards and adopted historic preservation laws, and nu- - guidelines may depend upon the subject merous local preservation ordinances exist as matter dealt with and the degree of diffi- well. See Estate of Tippet v. City of Miami, culty involved in articulating finite stan- 645 So2d 533, 535 (Fla. 3d DCA 1994) (Ger- i dards. The same conditions that may op- sten, J., concurring). erate to make direct legislative control im- practical or ineffective may also, for the The Dade County Historic Preservation same reasons, make the drafting of de- Ordinance ispatterned on the federal historic tailed or specific legislation for the guid- preservation regulations. The Dade County ance of administrative agencies impractical exceptional importance standard for Un- • or undesirable. State; Department of Cit• der-fifty" properties is drawn directly from rue v. Griffin, 239 So2d 577 (Fla.1970); 36 C.F.A. section 60.4. The National Park Burgess v. Florida Department of Com- Service has issued a publication delineating . merce, 436 So2d 356 (Fla. 1st DCA 1983), the professional standards that apply to the review denied, 447 So2d 885 (Fla.1984). "exceptional importance"term as used within In re Advisory Opinion to the Governor, 509 the Federal Historic Preservation Regula- So2d 292, 311 (Fla.1987); accord Clark v. h°na—the source from which the Dade Ordi- State, 395 So2d 525, 527-28 (Fla.1981). The nance drew that term See National Park circuit court noted that the ordinance itself Service, U S. Department of the Interior, does not define"exceptional importance"and Gurdel:nes for Nominating and Evaluating 1\opr,ties that have Achieved Significance the Historic Preservation Board had not Within the Last Fifty Years (National Regis- adopted rules to define it. •The court con- ter Bulletin No. 22). eluded, in part, that the term itself did not give the Board sufficient guidance. At the hearing before the Historic Preser- In so ruling the circuit court overlooked vation Board, Ms. Ammidown testified re- the administrative law races which allow ref- garding the "exceptional importance" stan- erence to generally recognized professional dard in the Dade Historic Preservation Ordi- standards in interpreting the meaning of a nance: statutory term. See Florida State Board of Q Now the reference to that Section of Architecture v. Wasserman, 377 So2d 653, the Code that refers to"exceptional impor- 656 (Fla.1979) (referring to standards recog- tance": Is exceptional importance defined nized in professional field of architecture); in the Code? Jones v. Department of Revenue, 523 Sold 1211, 1213 (Fla. 1st DCA 1988) (referring to A It's not specifically defined. _. professional standards for-tsp4sment levels); Q Would you, therefore, agree that its see also D'Alentberte v. Anderson, 349 Sold definition is somewhat subjective? 164, 168 (Fla 1917); Conner v. Joe Hatton, A Because there is such a wide array Inc, 216 Sold 209, 211-13 (Fla.1968). of historical and archeological sites, yes. The field of historic preservation has been under development' for many years now. Q It would be a subjective definition? Federal legislation in this area includes the A Well, I think certain professional 1906 enactment of the Antiquities Act, the standards and evaluations uvauld apply. 1935 enactment of the Historic Sites Act, and • • the 1966 adoption of the National Historic Preservation Act. 1 Edward H. Ziegler, Jr., [Owner's Counsel): I am asking her to Rathkopfs The Law of Zoning & Planning tell me where I would have to go to find ' § 15.06[1) (1994). As a matter of state poli- out if something was of exceptional impor- cy, Florida follows the objectives of the Na- tance. B, C, D, E, and F, 589 So.2d 260, 263-64 (Fla. 1991). • ..__ •. w• • _ - - x • METROPOLITAN DADE COUNTY v. P.I. BIRDS Fla. 177 Cite as 654 So.24 170 (Flaapp.3 Drat. 199S) Preservation Act. See Ms. Ammidown: It's not in the Regula- rot Jungle and Gardens ... is a property of )61(2)(c), (3)(c), (3)(h), Fla. lions, but I could cite other case histo- exceptional importance because: it is one of All fifty states have ries.... a kind; directly related to major themes in reservation laws, and nu- this community's history; and significant in -nation ordinances exist as [County Attorney]: Can I ask a question multiple areas, including architecture, histo- • r Fla. 3f v. City of ) (Ger- to clarify this area. Ms. Ammidown you ry, and landscape design[.]" The County (Fla 3d D�ic199t) (Gen- are a professional in this area of profes- Commission adopted the Historic Preserva- g)- sional designation. What is your under- tion Board's position on this point. ity Historic Preservation standing of the term "exceptional impor- •ned on the federal historic ice"? B ations. The Dade County Ms. Ammidown: Well, I would apply a [6] arguendo ,ance" standard for "Un- couple of questions to such a site. One is: that[ there Alternatively,was an unlawfulassumingggation p do !s is drawn directly from Is it one of a kind, is it a unique historic teat that problem was cured when the Crob- 60.4. The National Park site. We may have numerous Art Deco Commission—the legislative body which ' a publication delineating buildings. Is it something that is one of a tY andartis that apply to theAnother question uestion is: Is it a site that enacted the Ordinance—passed its resolution ? ra the Historic Preservation Board's :ante"term as used within is significant in multiple areas. The Ong •ric Preservation Regula- Board has the obligation of designating interpretation of the term "exceptional im- • .rom which the Dade Ordi- sites for either historical significance, ar-. portance." Such a ratification procedure is .errs. See National.Park chitectural significance, landscape design specifically authorized by Askew v. Cross Key ,a rtinent of the Interier, significance, archeological significance. Is Waterways, 372 Sold 913, 925. In that casethe Florida Supreme Court addressed the minting and Evaluating it a site that is significant in more than one and also is it particularly significant remedies available to the legislature where ire Achieved Significancearea there has been an tuilawful delegation of ill Years (National Regis- to the cultural history of an area? For Id The court stated: example, in this case, tourism has been a legislative authority. principal industry of Dade County and you [T]he legislature need only exercise its )efore the Historic Preset- know in that respect that the property constitutional prerogative and duty to Anunidott n testified re- takes] on added significance because it identify and designate those resources and iis ptsonal importance" stan- reflects something unique about our area. facilities [which are areas of critical state toric Preservation Ordi- [County Attorney]: Among historic concern]. It may be done in advance as Preservation professionals, is that the gen- with [the statutory designation of] the Big eference to that Section of erally accepted standard? Cypress area of critical state concern,Sec- fers to"exceptional impor- Ms. Ammidown: Those are the types of tion 380.055, Florida Statutes (1975), or ,tional importance defined things that are considered exceptional—its through ratification of administratively contribution to an area of growth and de- developed recommendations.... )ecifically defined. velopment. Id. at 925 (emphasis added)s • I. therefore, agree that its (Emphasis added). iewhat subjective? In sum, there are professional standards Here, the Historic Preservation Board which are generally accepted within the field adopted a definition of "exceptional rmpor- -ere is such a wide array of historic preservation and which are ap- tance" and included it in the Board's resolu- i archeological sites, yes. plied or. a case-by-case basis.7 Applying tion designating Parrot Jungle as a historic le a subjective definition? those standards, the Historic Preservation site. The County Commission approved that pink certain professional Board's resolution states, in part, that "Par- designation, and in its resolution reiterated evaluations would apply. 7. The Historic Preservation Board's transmittal 8. By opinion on rehearing, the court stated that • • • • memorandum to the County Commission states, the two enumerated alternatives, legislation in in part: advance and legislative ratification of adminis- isel): I am askingto "Professional standards used to determine excep- tratively developed recommendations. "present her tional merit include consideration of whether the obvious remedies for the deficiencies found in would have to go to find site is: a)one of a kind: b)directly related to a section 380.05: however. it tta.s not our purpose was of'exceptional impor- major theme in the region's development; c) to indicate that the alternatives stated are eaclu- significant in multiple areas which can include sine." Id. at 926. history, architecture, landscape design, and ar- chaeology." IP 4' - - • • • i 178 Fla. 65-1 SOUTHERN REPORTER, 2d SERIES. • the Board's definition.' This constitutes rati- its judgment for that of the agency on an fication within the latitude allowed by Askew issue of discretion." Citizens of Florida t•. v. Cross Key Waterways. Mayo, 357 So2d 131, 733 (Fla.1978). The Florida Supreme Court has thus explicitly C recognized that an administrative agency .- [7] The circuit court held that the "ad may proceed with case-by-case adjudication, hoc determination of rules and criteria by the and that incipient policy may be allowed to Board during the designation hearing was an develop before the agency adopts rules. - abuse of the rule-making process which vio- The historic preservation literature makes i lated Appellant's[owner's]due process rights clear that the "exceptional importance"stan- guaranteed under the Florida and U.S. Con- dard is one best suited for development stitutions." Circuit court opinion at 4. The through case-by-case adjudication. Discuss- • court faulted the Historic Preservation Board ing the counterpart federal historic preserva- for not having previously adopted•a rule to lion criteria, the National Park Service has define the "exceptional importance" stan- said: dard. The National Register Criteria for Eval- - We respectfully disagree with the circuit uation encourage nomination of recently • - court's position on this legal issue. Writing significant properties if they are of excep- in the context of the Florida Administrative tional importance to a community,a State, Procedure Act, the Florida Supreme Court a region, or the Nation. The criteria do has said,"There are quantitative limits to the not describe exceptional, nor should they. • detail of policy that can effectively be pro- Exceptional, by its own definition, cannot �' mulgated as rules, or assimilated; and even be fully catalogued or anticipated. It may f reflect the extraordinaryimpact of a politi- sharpen the agency that knows its policy may wisely p p° - sharpen its purposes through adjudication cal or social event. It may apply to an before casting rules." Gulf Coast Elec. entire category of resources so fragile that _ _. . _. _ _ . Coop., Ina v. Florida Public Sera comm'n. survivors of any age are unusuaL It may • • 462 So2d 1092, 1094 (Fla.1985) (citation be the function of the relative age of a omitted; emphasis, in original); see also community and its perceptions of old and Southpointe Pharmacy v. Department of new. It may be represented by a building Health & Rehabilitative Servs., 596 So2d or structure whose developmental or de- 106, 111 (Fla- 1st DCA 1992); .Florida sign value is quickly recognized as histori- League of Cities, Inc. v. Administration cally significant by the architectural or en- gineering 586 So2d 397, 406 (Fla. 1st DCA profession. It may be reflected 1991). in a range of resources for which a commu- nity has an unusually strong associative "Administrative agencies are not required attachment. ' to institute rulemaking procedures each time a complete list of exceptionally sig- - a new policy is developed,although that form of proceeding is preferable where established nificant resources cannot be prepared or . - industry-wide policy is being altered." Flor- precise indicators of exceptional value pre- ida Cities Water Co. v. Florida Public Sem. scribed' Comm'n. 384 So2d 1280, 1281 (Fla.1980) (ci- National Park Service, U.S. Department of • Cations omitted); see also City of Tallahassee the Interior, Guidelines for Evaluating and v. Florida Public Sem. Comm'n, 433 So2d Nominating Properties that have Achieved • 505, 508 (Fla.1983). "The agency rule mak- Significance within the last 50 years, at 3. • ing function involves the exercise of agency Therefore, under Florida Supreme Court discretion and this Court will not substitute authority, the Historic Preservation Board =? ,c 9. The wording of the County Commission resolu- importance because it is: a) one of a kind; b) • Lion approving the historic designation is sub- directly related to a major theme in the region's . stantia!ty identical to that of the Board on this development: c) significant in multiple areas . point. The County Commission resolution states, _ which can include history, architecture, land- • in part, that Parrot Jungle "is of exceptional scape design, and archaeolop'(.)" - >> a . - s . - - .. • - - - 4 . • ^WS METROPOLITAN DADE COUNTY v. PJ. BIRDS Fla. 179 !or that of the agency on an Cite as 654 Sold 170 (FIa.App.3 Dist 1993) lion." Citizens of Florida r. was not required to adopt a rule to define the promotional brochures." There is, in other .2d i'31, 733 (Fla.1978). The standard of"exceptional importance." It had words, no way that the owner could have me Court has thus explicitly the latitude to proceed in case-by-case adju- been surprised by the staffs contention that it an administrative agency dication. The circuit court order on this Parrot Jungle was unique; that proposition •.•ith case-by-case adjudication, point did not apply the correct law- was specifically set forth in advance in the Ent policy may be allowed to Staff Report. the agency adopts rules. D preservation literature makes [8] The next question is whether, apart The second consideration outlined by Ms. 'exceptional importance" star-:.:_ from the failure to adopt rules,it can be said 'down was, Is it a site that is signifi- eest suited for development that there was any violation of the owner's cant in multiple areas.s On this issue, too, ....-case adjudication. Discuss- due process rights under the Florida or fed- there could have been no surprise. The form Reportrequires federal historic preserva- _ eral Constitutions. That question must be for the Staff Re po the staff to answered in the negative. identify the specific areas in which the pro- e National Park Service has The Historic Preservation Board staff in p°�site has"significance"as defined in the al Register Criteria for Eval - this case prepared a detailed analysis of the ordinance. The staff study of Parrot Jungle specifically delineated architecture, corn- rage nomination of recently Parrot Jungle site. The principal position of merce, and landscape architecture as being lPerties if they are of excep- - the Staff Report was that the Parrot Jungle site qualified for designationthethe areas of major significance. In addition, m es on under ace to a com munity, a State, the staff narrative covered the fact that the .he Natio criteria do "Over-fifty" standard. In the Report and in ro containedrtive aportiont of the ha • e :xception��should they. the testimony, there was a thorough evalua- propertygin al tion of the Parrot Jungle property under the stream bed of Snapper Creek, which is the y its own definition, cannot onlypreserved example of the original geed or anticipated. It may General Criteria which are spelled out at P raordinary impact of a politi- length in the Dade Historic Preservation Or- stream bed, the remainder having been al- - * dinance. At no time has the owner suggest- tered by channelization and conversion into a It may apply to an canal. All of these variables were identified II I i' ' .urces so fragile that ed that there is any infirmity in the General advancein of the hearing by the Staff Re- l1 -_e are unusual It may Criteria. • port. The fact that these multiple areas of •n of the relative age of a The owner was given notice and an oppor- 1 its perceptions of old and tunity to be heard on the issue of historic significance would be under consideration at •e represented by a building designation. The owner was represented by the meeting of the Historic Preservation hose developmental or de- very able counsel at all stages. The owner Board was well known to the owner, since sickly recognized as histori- =- had not one,but two.plenary hearings before these factors were all outlined in the Staff by the architectural or en- the Historic Preservation Board. Report. • •scion- It may be reflected In the course of the second hearing before The final consideration discussed by Ms. aourres for which a�u- m the Historic Preservation Board, the Board3 Amidown was whether the property was :usually strong acYEt alive considered both the "Over-fifty"rule and the directly related to major themes in the com- "Under-fifty" rule. In that context, the Ex- munity's history. Again, this is a consider- ate list of exceptions ly sig- ecutive Director testified regarding the pro- ation which was set forth specifically in the es cannot be prepared . fessional standards applicable to a determi- Staff Report, which states in part, "Parrot of exceptional value pre-- nation of"exceptional importance." It is im- Jungle is significant historically because it is portant to note that each of the professional a fine example of a type of early 20th Centu- -.ice, US. Department of considerations mentioned by Ms. Ammidown ry Florida tourist attraction that reflects the lines for Etalucting and had already been addressed within the Staff individual personality of its founder." The rties that have Achieved Report. connection of Parrot Jungle with tourism in 'z the last 50 years, at 3. The first consideration advanced by the Florida and in Dade County was specifically r Florida Supreme Court Executive Director was, "Is it one of a kind, set forth in the Staff Report. Again, there toric Preservation Board , is it a unique historic site[']" On this issue, can be no surprise that this matter would be it is: a) one of a kind: b) the Staff Report quoted Parrot Jungle's own discussed,for the staff had specifically identi- . major theme in the regions 10. The Staff Report stated, "When it opened on tied, "Parrot Jungle and Gardens.•• stating in ^uficant in multiple areas December 20. 1936[Parrot Jungle) was billed as part. "Over 50 years of beauty and tradition." It°ry, architeeture, land- the 'Only One in the World.'•• Appended to the The brochure goes on to describe Parrot Jungle Jlaeol°g){_]' Staff Report was,among other things, a contem- as"Miami's unique bird sanctuary,[with)botani` porary Parrot Jungle promotional brochure enti- cal gardens." ) 180 Fla- • 654 SOUTHERN REPORTER, 2d SERIES '- Bed this consideration as a factor which sup- APPENDIX—Continued ported historic designation. During the 19208 and 30s many unusual In sum, the Staff Report in this case had family run attractions were opened along thoroughly delineated the different factors roadsides throughout the State of Florida ' which supported the designation of this prop- Once I-95 was completed, rerouting traffic, erty as a historic site. These were all set many of these eccentric attractions died. forth in writing well in advance of both hear- Parrot Jungle survived because it was unique ings, and provided to the owner and the and located near an expanding metropolis. Board. All of these factors were pertinent to Parrot Jungle is significant historically be- the General Criteria set forth in section 16A- cause it is a fine example of a type of early 10(I). 20th Century Florida tourist attraction that reflects the individual personality of its An agency is entitled to engage in adminis- founder. The Parrot Jungle is still a suc- trative adjudication. The interpretation of cessful attraction in a time when tourists are the term "exceptional importance" was well drawn to larger,more anonymous and corpo- .• • within the competence of the Historic Pres- rate run attractions such as Disney World ervation Board to decide. This matter was and Busch Gardens. heard on proper notice twice by the Historic The man who made this whimsical fantasy Preservation Board, and twice by the County into reality was Franz Scherr. Born in Aus- Commission. There is simply no viable claim tria, Scherr immigrated to the United States that the owner's due process rights were in 1911. After his arrival, Franz worked his violated. - way west earning a living as a carpenter. He eventually settled in Chicago where he ' VI married his wife Louise and had a successful The Parrot Jungle site qualified for desig- career in construction Louise and Franz nation under both the "Over-fifty" and "Un- had five children: Eugene, Francis, Con- der-fifty" rules. Either rule alone would be stance, and twins Jerome and Eileen Dur- sufficient to support the designation. The mg South Florida's real estate boom of the circuit court order is quashed and the matter mid 1920s moved his family to Home- remanded with directions to reinstate the stea Florida. Once in Homestead Franz historic designation and Louise opened a feed and supply store where they displayed a few parakeets and • lovebirds. JORGENSON, J., concurs. It was his friend Joe Dimond, owner of - APPENDIX Monkey Jungle, who inadvertently gave Franz the idea to create a Jungle where the birds could fly free. In 1936 Franz took his METROPOLITAN DADE COUNTY HIS- TORIC PRESERVATION BOARD last twenty-five dollars and leased about twenty acres of Hammock land on Red Road. DESIGNATION REPORT—INDIVIDUAL Franz moved to his new land to begin work SITE while his family stayed in Homestead. • $ Among the first things Franz did was blaze a trail through the hammock taking care to Parrot Jungle and Gardens which lies a leave the natural vegetation. He began an few miles south of Miami is one of Florida's intense study of sub-tropical flora, learning most unique tourist attractions. When it everything he could about the subject. In opened on December 20, 1936 it was billed as addition, he built a pine log structure with the "Only One in the World." For fifty-four Palmetto thatched roof as an entrance build- - years visitors have enjoyed the subtropical ing and gift shop. He then began to stock and tropical landscaping, man-made paths, the jungle with the birds he had displayed in and limestone structures that make up the the feed store. He also purchased some t; jungle where hundreds of exotic birds are pheasants and peacocks and ordered twenty- %- allowed to fly free. eight parrots. L - , i �- - —ES METROPOLITAN DADE COUNTY v. PJ. BIRDS Fla. 181 Cite as 654 Sold 170 tF1a.App.3 Diu. 19951 'ENDIX—Continued A.PPEVD1X—Continued APPENDIX—Continued 1920s and 30s many unusual On Sunday, December 20, 1936 Parrot Scherr sold the Parrot Jungle to business- tractions were opened along Jungle opened its gates to one hundred visi- men and aviculturists Richard Schubot and .ughout the State of Florida. tors who paid twenty-five cents admission. Bern Levine. DVM. completed, rerouting traffic, Franz guided the visitors through the jungle The original stream bed of Snapper Creek e eccentric attractionAilied. explaining the natural vegetation. The at- is the only preserved example of Snapper survived because it was unique traction was so successful that the whole Creek the rest[of)which has been altered by -'ar an expanding metropolis. Scherr family was able to move to Parrot [having been] channelized and converted into is significant historically be- Jungle just six months after it opened. They a canal Snapper Creek was a major Indian ie example of a type of early lived in the loft of the entranceway until 1939 canoe route connecting the Everglades with 'lorida tourist attraction that when they built a home on Red Road. Biscayne Bay. Several prehistoric Tequesta ndividual personality of its sites are known within the vicinity of Parrot Parrot Jungle is still a suc- In 1939 the Scherrs were able to purchase Jungle,and it is probable that some evidence n in a time when tourists are their hammock land for $5,000. Later, of Tequesta activities occur near the stream • more anonymous and co Franz added more trails, more buds, and rPo- rustic oolitic limestone structures that blend bed in Parrot Jungle and Gardens. Lions such as Disney World dens• with the natural feeling evoked by the jungle. •••• n made In the 1940s the original entrance on Red Staff recommends the designation of Parrot made this whimsical fantasy Scharr. Born i Road was faced with limestone and a the roof Jungle as an individual historic site. Franugrated to the United States= replaced the thatch. As business grew the (Footnotes omitted). us arrival, Franz worked his family expanded Parrot Jungle. In 1946 the BARKDULL, Judge, dissenting. ag a living as a Duck Pond was added, a small man-made pond full of cranes, spoon bills, swans, and The order of the appellate division of the ettled in Chicago where he circuitcourt reads as follows: Louise and had a successful ducks. Flamingo Lake, also man-made,was llaa P.J. BIRDS, INC. (Parrot Louise and Franzadded in 1948. Seventy-five flamingoes cre- Appe ugene, Francis, Con. ate a tranquiland beautiful visual effect. Jungle),seeks review of Dade County Res- p...n. Mr.Scherr worked with architect Tony Sher- olution No. R-171-92 which affirms the oma and Eileen Dur- Dade CountyHistoric Preservation a's real estate boom of the man to plan the new entrance which was Board's designation isof Parrot Jungle a an moved his farn #o Home- completed in 1954. Like the original en- historic site. The Parrot Jungle contends Once in Homestead Franz . trance, the new blends with the surrounding that the manner in which the subject prop- xd a feed and supply store natural environment The Parrot Bowl am- erh' was designated as an historic site aged a few parakeets and phitheater was completed in 1974. All of the violated its due process rights under the additions were conceived and planned by Florida and U.S. Constitutions. WE RE- Franz Scherr. In ... 1985, Jerome Scherr, nd Joe Dimond, owner of VERSE. who inadve who took over Parrot Jungle's management try gave The Dade County Historic Preservation create a Jung�wlnere the : after father's death, designed the brickOrdinance was adopted by Dade County in e. In 1936 Franz took his pathways which if viewed from the air create 1981. The Ordinance created an Historic dollars and leased about a vine. The entire Parrot Jungle complex Preservation Board (The Board) and au- ammock land on Red Road reflects the unique interests and tastes of the thorizes it to prepare rules and regulations Is new land to begin work • Scherr family. to enforce the purposes espoused by the stayed in Homestead. Since its opening in 1936 over twelve aril- Ordinance. Section 16A-9(2), Code of '.ngs Franz did was blp7e a lion people have passed through the gates. Metropolitan Dade County, Florida. Be- hammock taking care to Many celebrities have visited Parrot Jungle, fore designating a site as historic, the Or- egetation. He began an the most publicized was Winston Churchill, dinance requires a designation report to be lb-tropical flora, learning who made two visits in 1946. Today Parrot fled with the Board followed by a public d about the subject. In Jungle and Gardens is home to over one hearing. Such hearing is a quasi judicial i pine log stricture with thousand exotic birds and features more than process. Section 16A-10(IVXE), Code. roof as an entrance build- one thousand varieties of tropical plants. On November 15, 1990, the Board noti- He then began to stock The gardens contain the largest and oldest fled Appellant that Parrot Jungle was be- birds he had displayed in native cypress hammock in Florida south of Mg considered for designation as an histor- also Purchased some Lake Okeechobee and remnants of the origi- is site and that a subsequent public hear- and ordered twenty- nal bed of Snapper Creek as well as many ing on the issue of designation was sched- rare plant specimens. In 1988 Jerome tiled. , .. .4 . i 182 Fla 654 SOUTHERN REPORTER, 2d SERIES - On December 19, 1990, the Board con- as to what constitutes "exceptional impor- - ducted its public hearing on the designa- tance". Despite this lack of guidance, the tion of Parrot Jungle during which appel- Board, for the first time during the desig- lant opposed such designation. At this nation hearing defined the term "excep- meeting, Appellant requested a deferral tional importance" and specified the crite • - .. due to a pending zoning matter but was ria used in determining whether a poten- denied the request. Thereafter,the Board tial site is of"exceptional importance" for a proceeded to adopt a resolution designat- designation purposes. ing the property as an historic site. Fur- Dueprocess suant to Section 16A-15, Code, Appellant requires compliance with appealed the Board's resolution to the the basic principles of "fundamental fair- • County Commission and a second hearing n " and guarantees the right to a full t on the issue of designation was granted for and fair hearing. Pelle v. Diners Club, November 20, 1991. • Inc, 287 So-2d 737(Fla. 3 DCA 1974). In During the November 20th hearing, tee- Smith v. Portante, 212 Sold 298,299 (Fla. i timony was heard regarding the "excep- 1968), The Florida Supreme Court stated • tional importance" standard as set forth in that no matter how laudable a piece of the Ordinance. It was admitted through legislation may be, objective guidelines and this testimony that such standard is nei- ther defined in the Ordinance nor con- Act or be within the realm of reasonable tallied in the regulations. This testimony, inference from the language of the Act. In which was given by a Board member, con- the instance case, such standards used to tinued further to define the term "excep- determine "exceptional importance": for tional importance" and specified criteria historical designation purposes were never `� considered in a designation determination. specified in either the Ordinance or the _.,./ That criteria was used by the Board in its rules and regulations. Additionally, it was designation decision. The Board, despite admitted during the course of the designa- Appellants argument in opposition to the tion hearing by a Board member that the • designation, voted to reaffirm its previous term "exceptional importance" was indeed _ •- . designation of the site. subjective and had to be applied on a case- Appellant again appealed to the County by-case basis. Such ad hoc determination Commission for a reversal of the designa- of rules and criteria by the Board during tion on the ground that the Board's deci- the designation hearing was an abuse of sion denied Appellant its due process the rule-making process which violated Ap- rights under the Constitution. pellant's due process rights guaranteed un- • An appeal was heard by the County der the Florida and U.S. Constitutions. Commission on February 18, 1992, in We have reviewed the other issues • which the Commission voted to uphold the raised on appal and found them to be 1 historic designation. This appeal ensued. without merit The issue on appeal which we believe is Accordingly, we reverse the County controlling is whether Appellant's proce- Commission's decision and remand the aural due process rights were violated by cause for further proceedings consistent the board's undefined and ad hoc standard with this Opinion. REVERSED AND - of "exceptional importance". The histori- REMANDED. cal designation of the property was depen- dent upon proof that the site is of"excep- By this certiorari proceeding we are re- tional importance". Section 16A-10(IIXf), quired to determine if the circuit court, in its Code. However, the term is neither de- appellate capacity, afforded procedural due fined in the Historic Preservation Ordi- process and applied the correct law. City of nance nor is there any guidance in the Deerfield Beach v. Vaillant, 419 Sold 624 • existing rules and regulations of the Board (F1a1982).1 We are not permitted to quash i r 1. Wherein on page 626 the following is found: As a case moves up the appellate ladder, each le .,t. - - • DES METROPOLITAN DADE COUNTY v. PJ. BIRDS Fla, 183 Cute as 654 So34 170 (Fla-App.3 Dtet. 1995) constitutes "exceptional irnpor- a decision because we may differ if we had objective test was used to instigate the his- - spite this lack of guidance, the been deciding the matter in the first in. toricai process designation 3 and further, the first time during the desig- stance. Education Dev. Ctr., Inc v. City of Florida has not adopted the liberal view of a ring defined the term "excep- West Palm Beach, 541 So.2d 106 (Fla.1989); minority of jurisdictions as to a relaxation of rtartce" and specified the trite- - State v. Pettis, 520 So2d 250 (Fla.1988); the requirement of legislative standards in determining whether a poten- Combs v. State, 436 So2d 93(Fla.1983); City connection with any delegation of legislative at "exceptional importance" for of Deerfield v. VaiUant, supra; Herrera V. power. See Askew v. Cross Key Waterways. purposes. City of Miami 600 So2d 561 (Fla. 3d DCA 372 Sold 913 (F)a.1978)4 1992); St. Johns County v. Oeings, 554 ess requires compliance with So2d 535 (Fla. 5th DCA 1989).2 I would deny the Petition for Certiorari rinciples of "fundamental fair- ;uarantees the right to a fat In view of our limited jurisdiction to re- aring. . Pelle v. Diners Club,' view the action of the circuit,court, I am i p eetaurensxttw 2d 737 (Fla 3 DCA 1974). In unable to say that it denied procedural due f rtante, 212 Sold 298,299 (Fla. process or applied incorrect law, and there- 'lorida Supreme-Court stated fore the petition for certiorari should be de- -ter how laudable a piece of Hied. This is particularly true when it is ay be, objective guidelines and apparent from the record before us that no ould appear expressly in the level of review does not become broader. As City of Deerfield Beach v.Valliant,419 So.2d 624 ;thin the realm of reasonable Chief Judge Letts. speaking for the court, said: (Fla.1982). As the court in Education Develop- rn the language of the Act. In _ (C)otrunon sense dictates that no one enjoys meat Center noted, a district court of appeal may - three full repetitive reviews to, not quash a circuit court's decision because it case, such standards used to 1. a civil service board disagrees with the circuit court's evaluation of the exceptional importance" foil 2. a circuit court evidence. 554 So.2d at 537 (emphasis added).' ignation purposes were never 3. a district court of appeal.... the Ordinance or the City of Deerfield Beach v. Valliant, 399 So.2d 3'hearin The d bu Main ottion report was presented Dutctor. 11 n8. Additionally, it was 1045, 1047 (Fla. 4th DCA 1981). g y tyg g 1of Dade Court 's Historic Preservation Division. e course of the designa- We hold that where full review of administra• Ammidown described the calls and letters which her division received from the neighbors ty- a Board member that the. live action is given in the circuit court as a requesting the historic designation of Parrot Jun- ''nal importance" was indeed matter of right, one appealing the circuit court's le. She testified that Parrot Jungle was the judgment is not entitled to a second full review in i had to be applied on a case--1, the district court. Where 98th property to be designated as a Dade County a party is entitled as a historic site and that Parrot Jungle had not been Such ad hoc determination matter of right to seek review in the circuit court historic for designation prior to the calls from ricer is by the Board during from administrative action, the circuit court the neighborhood. Ms. Ammidownior texplained must determine whether procedural due process n hearing was an abuse of is accorded, whether the essential requirements that the designation would affect approximately g process which violated Ap- of the law have been observed, and whether the 12 acres of the Parrot Jungle property. She rocess rights guaranteed un- administrative findings and judgment are sup- testified that the designation would not be limit- ed to individual buildings but would encompass ia and U.S. Constitutions. ported within that acreage, including build- district court, upon review of the circuit court's• ings and additions which were less than 50 years eviewed the other issues - judgrntent, then determines etermes whether the circuit old. Ms. Ammidown testified that even siruc- cal and found them to be court afforded procedural due process and applied ;;tees such as maintenance sheds, which she de- the correct law. Id. . (Emphasis added) scribed as "non-contributing" and not"aestheti- • cally important." were included in the design- we reverse the County 2. Wherein at page 537 the following is found: tion. She testified that the property owner could decision and remand the Indeed, the Fifth District Court of Appeal has not demolish such "non-contributing"structures ter Proceedings consistent stated in St.Johns County v. Owings, 554 So.2d without first obtaining approval from the Board. 535 (Fla. 5th DCA 1989), rev. denied, 564 So.2d The designation also included all improvements lion. REVERSED A.*ID 488 (F1a.1990): and landscaping, the vast majority of which are 'As recently emphasized by the Florida Su- less than 50 years old. When asked to explain preme Court in Education Development Center, how the 12-acre site satisfied the "exceptional ark Proceeding we are re- Inc. v. City of West Palm Beach Zoning Board of importance"standard set forth in the Ordinance. to if the circuit court, in its Appeals, 541 So.2d 106 (FIa.1989), a district Ms. Ammidown acknowledged that the term is afforded procedural due court of appeal plays a very limited role in re- not defined in the Ordinance, that it is not con- viewing a circuit court's action in a zoning dis. mined in the regulations. that it is a subjective d the correct law. City of pute such as this. Only the circuit court can standard and that it is subject to a case-by-case Vaillant, 419 So.2d 624 review whether the judgment of the zoning au- determination. not permitted to quash thority is supported by competent substantial evi- 4. Wherein the followin isfound: dence. The district court of appeal merely deter- g _he appellate ladder, each mines whether the circuit court afforded due "Although the Davis view is an entirely reason- process and applied the correct law. See also able one as demonstrated by its adoption in the 2-40 Wani'Y•v'•T:Cinv}:{.iY!TTT'x,.T%.��T%w:v:+.TTK•+.'N..Nr:+..'ls:n:;•T•.TTY:ti(i'YY•sn}.q}•.v%i:::%IMS TYlSQ(+i}'l/S:;S'J(/[( >1'�t 41..22:C%SfS}.�'Tt}>,'%`'q�>\\trj:• .SY{ +vd..•• /.� �.{'{: ..Ciii;�c�t'ti<Kt;:??n'22CiL^ i}ti �s.��'vx..}....' n:l': .. v::::::::n••: w: ::•:..'l..y}:t'::,:v::::,.::':x:...n.} .. a ,+.:..+....+fw...w:«">':::a:5ii»,.S::a:aTisxs:TTan..+..•«.,.ai.::waS..•sr: v.•'+,.,.••' ia:........:..:..... .�:•:. Florida Appeals Court Rejects Facial Challenge to Designation of Historic District in Miami A year ago we reported peal's decision in this case. Of that the Appellate Division of special interest is Judge David the Florida Circuit Court in M. Gersten's concurring opin- Dade County had affirmed the ion,which not only elaborates constitutional validity of the on the basis for denying each designation of the Bayside of the Estate's claims, but also Historic District pursuant to constitutes a clear statement the.Miami Historic Preserva- on the constitutional validity don Ordinance. In rejecting a of historic preservation ordi- broad-based constitutional nances in the United States. challenge to the City's action, Relying heavily on an amicus the court, among other things, curiae brief submitted by the ruled that the designation National Trust for Historic criteria in the ordinance were Preservation (joined by the sufficiently specific, and that Florida Trust for Historic Pres- a takings claim by the Estate ervation and the Dade Heri- of Tippett (the "Estate") was tage Rust), Judge Gersten "premature." See Estate of details an extensive body of Tippett v. City of Miami, No. case law supporting the regu- 92-086 AP (Fla. Cir. Ct. Nov. lation of historic property. 5, 1993) [12 PLR 1172]. Judge Gersten also reiterated The Florida District Court the observation made by the of Appeal for the Third Dis- Pennsylvania Supreme Court trict has now denied the in United Artists' Theater Estate's petition for certiorari, Circuit, Inc. v. City of Phila- ruling that the lower court delphia, 635 A.2d 612, 619[11 properly concluded that the PLR 1165](Pa. 1993), that "no lawsuit was premature be other state has rejected the cause no permits under the notion that no taking occurs ordinance had been sought when a state designates a and the City had not been building as historic." • asked to make a final decision The full decision of the on the ordinance's application. court, including Judge Ger- Reprinted below in its sten's concurring opinion, entirety is the Court of Ap- follows: November1994 Preservation Law Reporter 13 PLR 1179 Estate of Tlppett v. City of Miami firmed the Commission's Resolu- No.94-126 Lion. (Fla.Dist. Ct.App.Nov 9, 1994). Petitioners present a facial chal- ` lenge to the declaration of the Dis- Before BASKIN, JORGENSON, and trict and to the ordinance under GERSTEN, JJ. which it was created. However, PER CURIAM, petitioners have not sought to ob- tain any permits under the ordi- e deny landowners' peti- nance and the government entity tion for a writ of certiorari charged with implementing the to quash the opinion of ordinance has not reached a final the Circuit Court, Appellate Divi- decision regarding the ordinance's sion, affirming the City of Miami application. Hence, landowners' City Commission's Resolution attack on the District,as an uncon- denying the landowners' appeal stitutional taking, is not ripe for from the creation of a Bayside His- consideration. See Williamson toric District ['District']; the Dis- County Regional PlanningConun'n ` trict encompasses petitioners'prop- v. Hamilton Bank of Johnson City, erty. The Appellate Division cor- 473 U.S. 172, 105 S.Ct.3108,87 L. rectly concluded that the petition- Ed.2d 126(1985);Hodel v. Virginia ers'claim was premature. Surface Mining a Reclamation, Petitioners own the Prescott Ass'n,Inc.,452 U.S.264, 101 S.Ct. House located on NE 71st Street in 2352,69 L.Ed.2d 1.(1981); Glisson northeast Miami.In 1991,the City v. Alachua County, 558 So. 2d of Miami Historic and Environmen- 1030(Fla.1st DCA),review denied, tal Preservation Board voted to 570 So.2d 1304(Fla. 1990). designate an area of northeast Mi- Certiorari denied. ami encompassing the House at the Bayside Historic District. [The BASKIN and JORGENSON, JJ., Board was created by the City of concur. Miami Historic Preservation Ordi- nance. The Ordinance delineates Concurring Opinion the Board's composition,the proce- GERSTEN, Judge dures for appealing Board determi- nations,and procedures for obtain- I concur.While I agree with the ing demolition permits for historic majority that petitioners' takings structures.]Petitioners appealed the claim is not ripe,I write separately designation to the City Commis- because the field of historic preser- sion. The Commission denied the vation is a developing area of the ._ appeal and affirmed the designs- law with significant ramifications tion.[City of Miami City Commis- for the public welfare. sion Resolution No.92-149, adopt- The petitioners in this case ed February 18, 1992.1 Petitioners have challenged the designation of then appealed the Resolution to the the Bayside Historic District by the Circuit Court,-Appellate Division, City of Miami's Historic and Envi- arguing that the designation of the ronmental Preservation Board. In property as historical amounted to designating the district,the Preser- an unlawful taking. The court af- vation Board acted pursuant to its 13 PLR 1180 Preservation Law Reporter November1994 authority under Miami's :iistoric Code.In any event,when an owner Preservation Ordinance,which was applies for a permit to demolish, amended in 1991.§§23.1 to 23.1-6, the Board cannot deny the issuance Miami Code. The Historic Preser- of a demolition permit,but can de- vation Ordinance defines a historic lay issuance for up to six months. district as '[a] geographically de- §23.1-5(C)(2),Miami Code. fined area possessing a significant As a further safeguard,the ordi- concentration, linkage,or continu- nance establishes a procedure to ity of sites or structures united grant exemptions based on econom- historically or aesthetically by plan ic hardship. Upon application and or physical development' §23.1-2, proof, a property owner is entitled Miami Code. to an exemption from any aspect of Miami's amended ordinance the permitting process that causes now conforms to the minimum 'unreasonable or undue economic standards for preservation estab- hardship.' §23.1-5(B)(4)(b), Miami lished by Dade County in chapter Code.The decision to deny such an 16A of the Dade County Code,and exemption is also subject to an follows a two-stage regulatory pro- appeal to the City Commission and cess. The first stage involves the then the Circuit Court. § 23.1-5(B)- evaluation,nomination, and desig- (4)(e),Miami Code. nation of historic sites The Bayside His- and districts by the "Petitioners torical District was Preservation Board, in pose an array of platted and built from accordance with specif- constitutional 1909 to 1941. Most of ic criteria and prose- Challenges, none the homes date from dures,including notice that era and represent and public hearings. of which have many of the main ar- § 23.1-4, Miami Code. merit.~ chitectural themes in The members of the Miami.Early buildings Board must possess special exper- in the district are constructed in tise, knowledge and interest in the the frame vernacular style; homes fields of architecture and historic from the 1920's are built in Medi- preservation. § 62-71(1), Miami terranean revival; houses from the Code. 1930's and 1940's are built in Art The second stage of the regula- Deco, the Americanized term for tory process is triggered only if an Artes Decoratif. In addition, a sig- owner wishes to alter or demolish nificant number of homes were a designated property or to under- built in the Mission and Streamline take new construction within a his- Modeme styles. Buildings in the toric district.In that case,the own- district utilize various indigenous er applies to the Preservation Board materials, such as keystone and for a permit which must be issued oolitic limestone. Many wrought in accordance with specific criteria iron screen doors and precast con- in the ordinance. §23.1-5(C), Mi- crete vents exhibit South Florida ami Code: Any permit denial is motifs such as flamingos, palm subject to an appeal to the City trees,wave designs,sunbursts,and Commission, and then to the Cir- egrets. cuit Court. § 23.1-5(B)(4)(e), Miami Petitioners pose an array of November1994 Preservation Law Reporter 13PLR1181 constitutional rh al lenges, none of workmanship represent the lessons of which have merit, in my opinion. the past and embody precious fea- First, the designation of a historic tures of our heritage, they serve as district without the owner's con- examples of quality for today. His- toric conservation is but one aspect sent does not constitute a taking. of the much larger problem,basically The landmark opinion, Penn Cen- an environmental one, of enhancing tral Transp. Co. v. New York City, —the quality of life for people. 438 U.S. 104, 98 S. Ct. 2646, 57 L. Ed.2d 631 (1978), is dispositive on Id. at 108. (Citations and quot- this issue.Penn Central upheld the ations omitted.) constitutionality of New York At the time the Court issued City's historic preservation ordi- Penn Central, all 50 states and nance, even though the law pre- more than 500 municipalities had vented the property owner from enacted preservation laws. Id. at constructing a 55-story office build- 107. In 1992, local historic preser- ing over the historic Grand Central vation ordinances numbered more terminal.Id.at 131-39. than 1700.Christopher The Court held that J. Duerksen, Historic the denial of the re- "The designa- preservation Law,in 1 quest to develop the tion of a historic Ziegler, Rathkopf's air rights above the district without The Law of Zoning terminal did not con- the owner's con- and Plnnning § 15.01, stitute a taking, that at 15-4 (4th ed. 1994). the ordinance did not sent does not Further, 'in fifteen interfere with the own- constitute a tall years since Penn Cen- er's investment-backed ing. The land- tral,no other state has expectations, and that mark opinion in rejected the notion a takings claim may be Pe Central is that no taking occurs stated only when the when a state desig- owner demonstrates dispositive on nates a building as that property has been this issue. historic.' United left with no reasonable Artists' Theater Cir- use.Id.at 123-39. cuit, Inc. v. City of Philadelphia, The Court opined that historic 635 A.2d 612, 619 (Pa. 1993). See preservation legislative efforts were Bohannon v. City of San Diego, driven by two concerns: 106 Cal. Rptr.333 (Ct.App. 1973); Figarsky v. Historic Dist. Conim'n, The first is recog nition that,in recent 368 A.2d 163 (Conn. 1976); Reb- years,large numbers of historic struc- tures,landmarks,and areas have been man v. City of Springfield, 250 destroyed without adequate consider- N.E.2d 282 (Ill. App. Ct. 1969); . ation of either the values represented Department of Natural Resources therein or the possibility of preserv- v. Indiana Coal Council, Inc., 542 lug the destroyed properties for use in N.E.2d 1000 (Ind. 1989), cert. de- economically productive ways. The nied, 493 U.S. 1078 (1990); Allen second is,a widely shared belief that structures with special historic cul- Realty, Inc. v. City of Lawrence, tural, or architectural aigr,ificaace 790 P.2d 948 (Kan. Ct. App. 1990); enhance the quality of life for all. Mayor and Aldermen of the City of . Not only do these buildings and their Annapolis v. Anne Arundel Coun- 13 PLR 1182 Preservation Law Reporter November1994 ty,316 Aid 807(Md. 1974);Sleep- Second,Miami's City Commis- er v. Old King's Highway Regional sion did not unlawfully delegate its Historic Dist. Comm'n,417 N.E.2d power to the Preservation Board. 987 (Mass.App. Ct. 1981); Thomp- The task of determining the bound- son v. City of Red Wing, 455 aries of historic districts is not a N.W.2d 512 (Minn. Ct.App. 1990); fundamental legislative task, but a Lafayette Park Baptist Church v. fact-finding function. Contrary to Board of Adjustment, 599 S.W.2d petitioners' argument, Florida 61 (Mo. Ct. App. 1980); Shubert courts have long recognized that Org., Inc. v. Landmarks Preserve- the fact-finding function involved tion Comm'n, 570 N.Y.S.2d 504 in designating districts can be dele- (App. Div.); appeal dismissed, 580 gated to quasi-judicial bodies.State N.E.2d 1059 (N.Y.),review denied, ex rel. Ball v. Robinson, 146 Fla. 587 N.E.2d 289 (N.Y. 1991), and 615, 1 So.2d 621 (1941); Burnett v. cert.denied, 112 S.Ct.2289(1992); Greene, 105 Fla. 35, 144 So. 205 Buttnick v. City of Seattle, 719 (1931);McMullen v.Newmar Corp., P.2d 93 (Wash. 1986) 100 Fla. 566, 129 So. (en bane). "The Supreme 870 (1930); Brewster Moreover, the Su- Court has re- Phosphates v. State preme Court has re- peatedly reaf- Dep't of Envtl. Regula- peatedly reaffirmed the tion, 444 So. 2d 483 principle that a regain- famed the (Fla. 1st DCA, review tion results in a taking principle that a denied, 450 So.2d 485 only when it denies an regulation re- (Fla. 1984). owner viable us l economically is land. suits in a taking doctrine Florida's requires delegation that Lucas v. South Car- only when it the legislature make cline Coastal Council, denies an owner 'fundamental and pri- 112 S. Ct.2886, 120 L. all economically mary policy decisions' Ed.2d 798 (1992);Key- viable use of its and issue 'some mini- stone Bituminous Coal land."' mal standards or guide- Ass'n v. DeBenedictis, lines' to guide the 480 U.S. 470, 107 S. administration of legis- Ct. 1232, 94 L. Ed. 2d 472 (1987); lative programs. Brown v. Apala- Williamson County Regional Plan- chee Regional Planning Council, ning Comm'n v. Hamilton Bank, 560 So.2d 782,784(Fla. 1990).The 473 U.S.172, 105 S.Ct.3108,87 L. 'test in determining the sufficiency Ed. 2d 126 (1985). Florida courts of guidelines is whether they are have also recognized that only a adequate to enable the agency and deprivation of all economically the courts_to determine whether viable use of property will be held the agency is carrying out the legis- to constitute a taking. Lee County lature's intent.'Id.at 784(citations v. Morales, 557 So. 2d 652 (Fla. 2d and quotations omitted.) DCA, review denied, 564 So. 2d Here, the policy of historic . . 1086 (Fla. 1990); Glisson v. Ala- preservation was established by the ' chua County,558 So.2d 1030(Ha. legislative body, the Miami City 1st DCA),review denied 570 So.2d Commission, not by the Historic 1304 (Fla. 1990). Preservation Board. See Chapter November1994 Preservation Law Reporter 13 PLR 1183 23.1,Miami Code.Because the City tail, materials, or craftsmanship or itself identified this district as his- outstanding quality or which repre- toric in its 1989 Comprehensive sent a significant innovation or adap- Neighborhood Plan, and the desig- tation to the South Florida enviran- nated district conforms to that meat;or identified area, it is clear that the (8)Have ryml tio, important may likelyin - yield, information in pre- Preservation Board 'is carrying out history or history. the legislature's intent.'Apalachee Regional Planning Council,560 So. §23.1-4(A),Miami Code. 2d at 784. Therefore, I would find Numerous courts have rejected that the designation of this historic challenges to similar historic pres- district does not involve an unlaw- ervation ordinances.Penn Central, ful delegation of legislative power. 438 U.S. at 132.33; Mayes v. City Third, the standards in the of Dallas, 747 F.2d 323 (5th Cu .r preservation ordinance are not 1984); Maher v. City of New Or- vague at all and are sufficiently leans, 516 F.2d 1051 (5th Cir. specific to provide adequate guid- 1975), cert. denied, 426 U.S. 905 ance to the administrative body. (1976); Second Baptist Church v. The designation criteria provide as Little Rock Historic Dist. Comm'n, follows: 732 S.W.2d 483 (Ark. 1987); Bo- hannan v. City of San Diego, 106 (A)Criteria for designation.Properties Cal.Rptr.333 (Ct.App. 1973);Fig- may be designated as historic sites, arsky v. Historic Dist. Comm'n, historic districts, or archaeological 368 A.2d 163 (Conn. 1976); Citi- zones only if they have significance in zens Committee to Save Historic the historical, cultural,archaeological, Tavern v. of District Co- aesthetic, or architectural heritage of the city,state,or nation;possess integ- lumbia Dep't of Hous. a Commu- rity of design,setting materials,work- nity Dev., 432 A.2d 710 (D.C. Ct. manship, feeling and association; and App.), cert. denied, 454 US. 1054 meet one (1) or more of the following (1981); City of New Orleans v. criteria' Levy, 64 So. 2d 798 (La. 1953); (1) Are associated in a significant Opinion of the Justices to the Sea- way with the life of a person impor- tant ate, 128 N.E.2d 557 (Mass. 1955) in the past;or ; (2) Are the site of a historic event U-Haul Co. of Eastern Missouri, with significant effect upon the corn- Inc.v. City of St.Louis,855 S.W.2d munity,city,state,or nation;or 424 (Mo. Ct.App. 1993);Lafayette (3) Exemplify the historical, col- Park Baptist Church v. Board of tural, political, economic, or social Adjustment, 599 S.W.2d 61 (Mo. trends of the community;or (4) Portray the environment in an Ct.App.1980);Town of Deering ex - --- ---era of history characterized by one(1) rd. Bittenbender v. Tibbets, 202 -. - or more distinctive architectural .A.2d 232(N.H.1964);City of Santa styles;or Fe v. Gamble-Skogmo, Inc., 389 (5) Embody those distinguishing P.2d 13 (N.M. 1964); Salvatore v. • characteristics of an architectural City of Schenectady, 530 N.Y.S.2d Style, or period, or method of con- 863(App.Div. 1988);A-S-P Assocs. struction;or (6) Are an outstanding work of a v. City of Raleigh, 258 S.E.2d 444 prominent designer or builder;or (N.C. 1979); Village of Hudson v. (7)Contain elements of design, de- Albrecht, Inc., 458 N.E.2d 852 13 PLR 1184 Preservation Law Reporter November1994 (Ohio), appeal dismissed, 467 U.S. Snyder v. Board of County 1237 (1984); Bellevue Shopping Comm'rs of Brevard County, 595 Center Assocs. v. Chase, 574 A.2d So. 2d 65, 73 (Fla. 5th DCA 1991), 760 (R.I. 1990); State ex rel. Save- aff'd in part,reversed in part, 627 land Park Holding Corp. v. Wie- So. 2d 469(Fla. 1993).For this rea- land, 69 N.W.2d 217 (Wis.), cert. son,delegation to a Board of histor- denied,350 U.S. 841 (1955). ic preservation experts has been Moreover, there are several held to be a protection against arbi- procedural safeguards in the ordi- trary political infringement. See, nonce which reinforce the legisla- e.g.,Maher v.City of New Orleans, tive control of the Board's exercise 516 F.2d at 1062. In addition, the of its discretion. These procedural right to appeal to the legislative safeguards include: 1) a board of body is also frequently relied upon experts consisting of an architect, as a basis for holding that standards landscape architect, historian, ar- and criteria are adequate.See id.at chitectural historian, real estate 1062-63, Bohannan v. City of San broker, business person, and three Diego, 106 Cal. Rptr. at 339;A-S-P other citizens with knowledge of Assocs. v. City of Raleigh, 258 the City's historical S.E.2d at 455. and architectural heri- "Delegating his- Finally, I see no tag; section 62-71, basis for an equal pro- Miami Code;2)specif- toric preserva- tection challenge, ic definitions of terms tion fact-finding where, as here, the used, section 23.1-2, to a body of ex- Historic Preservation Miami Code; 3) rigor- perts removes Board has procedures ous notice require- thedecisionand standards distinct meats including in di- from the board, proce- vidual mailings to all from the politi- dures and standards affected property own- cal process." governing general zon- em,section23.1-4(B)(3), ing decisions.Whereas Miami Code; 4) a quasi-judicial historic preservation is concerned public hearing, id.; 5) a permitting with protecting historic structures process for development, section and significant existing architec- 23.1-5, Miami Code; 6) a variance tore, zoning concerns the use of from any aspect of the permitting land,as well as the density and the process that constitutes an undue location of buildings on the land. economic hardship, section 23.1- Mayor and Aldermen of the City of 5(B)(4)(b), Miami Code; and 7) an Annapolis v.Anne Arundel Coun- appeal process to the City Commis- ty, 316 A.2d at 821. Therefore, a slog and then to Circuit Court, rational basis exists to separate —_ section 23.1-5(B)(4)(e),Miami Code. historic preservation from zoning In fact,delegating historic pres- decisions,because historic preserva- ervation fact-finding to a body of tion decisions involve a special experts removes the decision from expertise and require considerations the political process, which often of criteria and purpose that differ centers on'who the owner is,who from those of zoning. the objectors are. . .and whose ox In Penn Central, the Court is begin(sic]fattened or gored. . . ." found that the'objective of preserv- November1994 Preservation Law Reporter 13 PLR 1183 ing structures and areas with spe- of massive urban renewal and high- cial historic, architectural, or cul- way projects that destroyed historic tural significance'is a constitution- structures by the score.Christopher ally permissible goal and that the J. Duerksen, Historic Preservation ordinance method of designating Law, in 1 Ziegler, Rathkopf's The specific dis- Law of Zoning t r i c t s and "The Supreme Court has and Planning, landmarks was § 15.02, at 15- an appropriate found that the objective of g (4th ed. means t o preserving structures and 1994).Historic achieve this areas with special historic, preservation is objective. architectural, or cultural Part and parcel Penn Central, s1 canoe is a constitution- an expanded 438 U.S, at concept of 129. Where a ally permissible goal and public welfare classification , that the ordinance method of seeking to of property is designating specific districts bring melliflu- related to a and landmarks was an ap- ous harmony legitimate to our com- governmental propriate means to achieve munities—to interest,it will this objective.. value and con- be upheld. See serve t h e Sullivan v. Stroop, 496 U.S. 478, unique heritage of our past in order 110 S. Ct. 2499, 110 L. Ed. 2d 438 to enrich the quality of life for our (1990). Because a rational basis present and future generations. See exists for treating zoning different § 267.061(1)(a), Fla. Stat. (1993). from historic preservation,the His- toric Preservation Ordinance does not violate equal protection. In conclusion,historic preserva- [Baker & McKenzie, Anthony J. tion is not a new phenomenon. It O'Donnell, Jr. and John William began in the mid 1800's with a Watson, III represented the Estate private effort to save Mt. Vernon. of Tipped. A. Quinn Jones, III and Donald G. Hagman &Julian Con- Kathryn S. Pecko represented the rad Juergensmeyer,Urban Planning City of Miami.Robert A.Ginsburg, and Land Development Control County Attorney, Thomas W. Law, § 14.6 at 461 (1986).In 1931, Logue,Assistant County Attorney, Charleston,South Carolina,became Samuel E.Poole,III,Christopher N. the first city to zone a historic dis- Bellows, Holland & Knight, and trict. Carol M. Rose, Preservation David A.Doheny,Elizabeth Merritt and Community; New Directions and Alexandra Acosta for the Na- in the Law of Historic Preservation, tional Trust for Historic Preserva- 33 Stan. L. Rev. 473, 505 (1981). tion, the Florida Trust for Historic Historic preservation efforts expan- Preservation, and Dade Heritage ded in the 1960's in the wake Trust,participated as amid curiae.) • 13PLR1186 Preservation Law Reporter November1994 2-44 To: Honorable Chairman and Members, Board of County Commissioners ‘IP614 ' Brief Synopsis: FROM: Robert A. Ginsburg Private Property County Attorney Rights Law As you know, the Legislature has passed and the Governor has just signed a new law relating to real property rights, a copy of which is attached together with a Senate Summary of the law. The law is divided into two parts which operate independently. The first section creates a new cause of action for compensation to a private property owner when governmental action unduly burdens the owner's real property. The second section provides that disputes between a property owner and a governmental entity over a development order or an enforcement action can be presented to a special master who could recommend relief for the property owner. Section One: The Bert J. Harris, Jr. Private Property Rights Protection Act. The Legislative intent for this Section of the law is to create a "separate and distinct cause of action from the law of takings" in order to provide "relief, or payment of compensation, when a new law, rule, regulation or ordinance. . . as applied, unfairly affects real property." The law provides: When a specific action of a governmental entity has inordinately burdened an existing use of real property or a vested right to a specific use of real property, the property owner of that real property is entitled to relief, which may include compensation for the actual loss to the fair market value of the real property caused by the action of government. . . . To initiate the process, a property owner presents a claim, together with an appraisal, to each governmental entity involved. The government notifies all parties to the action that gave rise to the claim and to the contiguous property owners.. The government must make a written settlement offer to the property owner which the property owner may accept or reject. If the property owner does not accept the settlement offer, the government issues a "ripeness decision identifying the allowable uses to which the subject property may be put. " If the owner does not accept the settlement offer and ripeness decision, the property owner may file a suit for compensation. Honorable Chairman, and Members Board of County Commissioners Page No. 2 A circuit court judge determines whether the property is inordinately burdened. If that finding is made, a jury will be impanelled to determine compensation. The property owner is entitled to recover reasonable attorney's fees and costs if the judge determines the settlement offer together with the ripeness decision was not a bona fide offer that reasonably would have resolved the claim. The government could recover its attorney's fees and costs if it prevails and if the court makes a determination that the settlement offer together with the ripeness decision was reasonable. This law is prospective and does not apply to actions relating to "the operation, maintenance or expansion of transportation facilities. " Section Two: Florida Land Use and Environmental Dispute Resolution. The Act provides for mediation by a special master as a means of resolving disputes between governmental entities and private property owners arising from development orders or enforcement actions after October 1, 1995, which unfairly or unreasonably burden the use of real property. The act allows a property owner to apply to a special master for relief within 30 days after notice of the enforcement action or development order by filing a request with the government entity. The government must forward the request to a special master and notify contiguous landowners and persons who have submitted testimony regarding the order or enforcement action. If the special master concludes the development order or enforcement action is not unreasonable or unfairly burdensome, the proceeding ends and the owner may pursue any other available remedy. If the special master concludes the order or action is unreasonable or unfairly burdensome, the special master may recommend alternatives that protect the public interest but less severely restrict the use, e.g. , modifying or increasing density, transfers of development rights, land swaps, mitigation, and the like. The government must accept, reject or modify the special master's recommendations within 45 days. In turn, the property owner may reject the government's acceptance or modification of the special master's recommendations. If the parties do not agree, the government issues a report stating the allowable uses of the property, at which time the property owner may pursue litigation. The special master procedure does not apply to actions on comprehensive plan amendments. RAG/mim Attachments Q, est loans for proper restoration/rehabilitation deny all productive use of the property to the owner if,as Of historic structures. Coke himself stated.'the regulation extends to the public i.a' benefit...for this is for the public,and every one bath Sixth,proceed slowly in your efforts to benefit nyit:"Id.,a180-A1. PROPERTY establish strong protection for designated '272 U.S.365(1926). . historic resources.Build political support 5605F.2d 1117(9th Cir.1979). before you try"state-of-the-art"preserva- 660L.W.4842(CaseNo.9t-453)(June30,1992). RIGHTS/PROPERTY tion techniques.Although the preservation '60 L W.at 4846. commission may see through the bluster of "�L.w.at aga6. • a bullying barrister,the city council may not "As we have said.this rarely will occur. VALUES 'a In fact,some court cases stale that the local government . unless the benefits of preservation have has a choice—it can either issue the permit or keep the been clearly demonstrated to the local gov- property and pay the owner for its fall market value. The economic misunderstandings of the property-rights movement ernment leaders. I'764 F.2d 502(1985). The mere fact that an article like this has 17 More and more communities arc including an economic D O N O V A N D. RYPKEMA hardship provision in their ordinances that creates a process to be written indicates how far astray the (or the preservation commission,and often the citycounca, preservation movement hasgone.Oursuc- toconsidertheeconomichardshipissue.lfacnntmunityhas such a process,the final denial of the permit would not take ' cesses have created a complacency—a corn- placeuntilafterthepreservationcommissionandcitycoun- cil had completed the hardship review process. 4E y almost any definition,community implies placency that the benefits of historic preser- Y; vation are obvious and that the o onents 13 Fora discussion of some of the issues involved in select- r the existence of a place—a physical place PP ingtherightrateofretum,seeRoddewig&Duerksen,Re- of strong protection for historic resources sponding to the Takings Challenge,supra.at pp.16-17 and s, " made up of land,buildings,and public were defeated in the 1970s.In reality,his- P'22' . ' spaces.In most American communities the For a more detailed analysis of the possible meaning of P tone preservation has to be reinvented ev- each of these standards,see Richard J.Roddewig and vast majority of the place is in the ownership of indi- ery decade—perhaps even every day.This Christopheri.Duerksen,RespondingtorheTakingsChal. Ienge,Planning Advisory Service Report No.416,1989 • viduals—and thus constitutes private property. requires permanent vigilance and constant (Chicago:American Planning Association),pp.19-22. effort to educate America concerning the 16896 F.2d 1347(1990). Since virtually the beginnings of the rights of private benefits preservation carries with it. to See.for example,Front Royal and Warren county In- ownership of land there has been some restriction on dustrial Park v,Town of Front Royal,749 F.Supp.1439 Richard J.Roddewigis an attorneyspecial- (W'D.Va.1990). the use of that property.Historically,restrictions have P Corn v.Cityof Lauderdale Luker,771 F.Supp 1557(S.D. been enacted in order to protect the interests of the izing in real estate,planning,and preserva- Flu.1990. lion issues.He is the president of Clarion As- '"595A.2d6(1991). community from the potential adverse impacts that a sociates,Inc.,which is based in Chicago. '°595 A.2d at 13.14. private property might generate.But a fundamental 71914 F.2d 348(2d Cif:.1990)cert.denied.Ill S.Cp.1103 challenge to the concept ofpublic restrictions on ri- (1991). g P P 1438 U.S.104(1978). 21914 F.2d at 355. vate land is being issued. 2 This case did not involve historic preservation.but rather 22 787 P.2d 1352(1990). an interim Los Angeles County ordinance preventing re. The burgeoning private property-rights movement construction of a church.affiliated summer camp that had 13 840 P.2d 174(1992). been located in a flood zone and had been previously de- 21564 N.E.2d 571(Mass.1990). is launching a three-pronged attack on land-use regu- stroyed by a tragic flood. 23 See,for example,Society for Ethical Culture v.Spats,416 lation throughout the United States.The first assault is s For example.in 1297 the Crown ordered that everyone N.Y.S.2d 246(1979),aff'd.415 N.E.2d 922(1980);and • was to keep the front of his own house clean,and in the Lafayette Park Baptist Church v.Board of Adjustment of , being waged by lawyers and developers who are con- middle of the fourteenth century building regulations were City of St.Louis,5995.W.2d61(Mo.1980). tending that the regulation of private property has be- adopted requiring roofs to be constructed of stone,tile,or 26438 U.S.at 139.140. , lead rather than thatch.And in 1580,to solve the problem come a"taking"entitling the owner to"just compen- 22 Some preservation ordinances,of course•create a pro- of too much growth in London.Queen Elizabeth"by cess for reviewing the impact of new construction adjacent proclamation forbade the construction of any newhousing to designated historic districts on the district itself,but this sation"for loss of property value.This prong of the within three miles of the City,a rule which would prevent concept is still rarely applied in practice. attack is wending its way through the courts—both many owners of vacant land from developing it."Fred 36ItislikelythatJusticeRehnqu t in writing his dissent in Bosselman,David Callies,and John Banta,The Taking Is- Penn Cen•tral,and the justices of the Pennsylvania state and federal—and no doubt will continue to do so sue,Council on Environmental Quality(Washington,D.C.: Supreme Court in the questions they asked during the re- 1973),p.64.And despite the expansion of private property hearing of the United Artists case,simply did not have a for years to come. tights at the expense of the Crown that resulted from the broad enough understanding of historic preservation to The second wave of the attack is being fought on the ' English civil war of the seventeenth century,the American know that there are noncontributing structures and intru• colonists"inherited,however,a concept of property which skins in historic districts that do not experience the bur- permitted extensive regulation of the use of that property doh of historic district designation in the dame wily as Ihr .� for the public benefit—regulation that could go so far as to contributing atructures. ® Jl ISTORIC P R E S f.R a'A 7',O A' FORUM ---_____________ -------..- —_ J lt I.1 (:/A I� It x'1' 1 9 9 J . l' 0 a o: controls are enacted and implemented at and particularly of historic districts—the land-use legislation,particularly that per- versely affect the values of a multitude of the local level. It is not Washington bu- composite value of the affected properties taining to historic preservation districts,has owners.it is about the fairness of one own- reaucrats but citizens from the town or the was protected at worst and significantly en- at its heart the identification and mainte- er's windfall against a group of owners' county who pass zoning laws,subdivision hanced at best.It is the difference between nance of the differences between that com- maintenance of value.It is about the fair- ordinances,and historic-district provisions. individual value maximization for a few munity and any other.It is that product dif- ness of a single individual destroying the Even the National Register of Historic property owners and value optimization for ferentiation that has created an economic differentiations within a community—dif- all of the owners. premium—from which both the public and ferentiations built up over generations—in -I///l/i/(ill(//fS('/({I.'/(///ill, But even if land use were private sector benefit—from Charleston, order to create a copy of somewhere else.It viewed as the rights of the public South Carolina,to Guthrie Oklahoma, is about the fairness of the owner of real es- p(/l'//l'///(///1'//1(1//)l'//(///////,•/(0///S/n/7/' versus the rights of the private I from Seattle,Washington,to Fredericks- tate demanding compensation if his/her as- property owner,that public is I burg,Virginia. set declines in value because of a public- /)I%'se/'y%///ii(/IS//'Ii/, . //t/.�f1///•i heart entitled to a return on the value ! It is easy rhetoric to proclaim that this policy decision when the holder of the that public expenditures largely country was built on the unencumbered Lockheed bond,the Ford dealer,and the the/(it'll///li;lilt//Nl//inifillownre created.It is the streets,sewers, rights of private landowners,that it is un- owner of utility-company stock have no water lines,sidewalks,curbs, American to limit what an individual may such protection. of the(/l//l'l7 Nll;"/ii/r'Te/I!//// streetlights,and parking lots that or may not do with the land he or she owns, In fact,land-use controls are mecha- were,in the main,paid for with and that we need to return to the frontier nisms by which to optimize the property (0/11//l1//1//1'(/l1(/(1i11'(.)///t'l: tax dollars that have created days of the homesteaders who developed values of the majority of real estate owners; much of the value of any given their land without the interference of Big they are not instruments devised to deprive Places places no restriction whatsoever on property.The contribution of public ex- Brother in their decisions. individuals of some imaginary property what a property owner may do with his/her penditures to the value of private property In fact,certainly the most severe and lim- rights. property.The owner,in fact,is free to de- was well recognized by the father of laissez- iting land-use restrictions ever enacted by Adam Smith perceptively observed that molish the historic structure. faire economics,Adam Smith,who wrote: the federal government were those placed "as soon as the land of any country has all But this property-owners-versus-the- on the homesteaders of the western fron- become private property,the landlords, government argument is a blatant misrep- Good roads,canals,and navigable tier.To be able to lay claim to their 160 like all other men,love to reap where they resentation of the issue in another sense.It rivers,by diminishing the expense of acres,the men and women of the western never sowed."That doesn't mean we are is not for the sake of local government that carriage,put the remote parts of the expansion had to clear,cultivate,and live depriving them of rights when we tell them land-use restrictions are put into place but country more nearly upon a level with on their land for five years.No current no. rather,to protect the value of the invest- those in the neighbourhood of the land-use control is that demanding. It ment of one property owner from the ad- town.They are upon that account the wasn't for financial gain that the Home- Donovan D. Rypkema is a real estate and verse economic impact of the actions of an- greatest of all improvements.2 stead Act legislated those restrictions.The economic-development consultant located other.Well-drawn land-use controls may federal government paid less than three in Washington,D.C.He is a principal in The very well reduce the maximum potential Yet today roads,canals,and their con- cents an acre for each of those 160-acre Real Estate Service Groups.This article was value of a single parcel,but the composite temporary infrastructure counterparts re- parcels—an amount most homesteaders originally published in The Responsive value of the sum of the affected properties main the greatest of all improvements for could have afforded to pay.A homestead- Community,Summer 1993. will be enhanced.Property-rights advo- which the regulation of land use is an ap- er was not permitted the option of paying cates often call land use restrictions a"fair- propriate recompense. $4.50 instead of abiding by the land-use 'The Appraisal of Real Estate,The American Institute of ness"issue.In that they are certainly right. There is another fact of economic life in 1 controls.The actions were required be- 2 Real Estate APpratsers.7tn edition,Chicago,197g. Adam Smith,The Wealth of Nations,Penguin,Har- But it is not the fairness of local govern- which the economic interests of the Intl- cause of the recognition of the interrela- mondsworth,1970. ment potentially reducing the uppermost vidual and the economic interests of the 1 tionship of properties and the desire to value of a single parcel;it is the fairness of public at large coincide.In economics it is meet the social,political,and economic allowing a single property owner to receive the differentiated product that commands a needs of the sum of the landowners(and a windfall at the expense•of his/her neigh- monetary premium.Any good advertising the nation as a whole)even if it meant re- bors.Local government is unaffected by agency,manufacturer,retailer,or service stricting the freedom of the individual land- how far I swing my fist;but my neighbor is vendor will tell you the economic value of holder. not. their product is enhanced by identifying The property-rights debate is about fair- In virtually every objective evaluation of and capitalizing on the differences between ness,about equity.It is about the fairness of the economic impact of land•use controls— their product and the competitors'.Much allowing a single property owner to ad- ...-- C3 illtr011if 1'NA.1 AN'arlo.v Foxily )ut.r/A UU,is , 199.1 - x' political front.If the first part of the argu- in place,finite in quantity,will last longer Although it is conveniently forgotten by the their natural state,incapable of supporting ment could be rephrased as"the govern- than any of its possessors,and is necessary proponents of the economic prong of the human habitation.Do they have the same ment does not have the right to pass such for virtually every human activity.Contrast private property-rights argument,the miti- economic value?Obviously not.But the regulations,"the second rephrasing might these traits with those of other types of in- gation of adverse economic impacts caused differences between the two lie entirely be"even if the government has the author- vestments—stocks,bonds,gold,insurance by proximate land use is also at the core of outside of the boundaries of the property. ity to enact such regulations,it should not policies,commodities futures,oil,fine art, land-use limitations.There is an old princi- Everyone has heard the old adage that the exercise that right."This political issue will treasury bills,certificates of deposit.None ple of private rights that holds that my right three most important characteristics of re- ultimately be decided by state legislatures of these possesses all of real estate's at- to swing my fist ends where your nose be- al estate are location,location,location. and city councils. tributes;most possess none at all. gins.Certainly the same principle applies The truth of that maxim is well-illustrated The third prong of the property-rights In part because of its peculiar attributes, to the regulation of land use. by the two desert parcels. advocates'attack is the economic argu- real estate has always been treated differ- The sheer complexity of trying to estab- It is not the land but the activity sur- ment.In simplified terms the argument is ently from any other asset in law,taxation, lish individual agreements with every prop- rounding the land that gives considerable as follows:This land-use regulation dimin- lending,political perspective,and philoso- erty owner whose decisions might affect the value to one parcel and next to none to the phy.But real estate has been treat- value of one's real estate asset quickly other.In other words,the millions of dol- .he/(;,(f//)/o!! /(/file pi rl/)('//1'-I :fh/., ed differently for two fundamental reaches the point of mathematical absurdi- tars the Las Vegas site is worth stems not 1 economic reasons as well:the im- ty.The common-sense approach to real es- from the investment of the deed holder of (//t 1111N'll/i-'!I�/be(i/'('/(I('(—(!1/(////('1.J pact of land use on surrounding tate investment protection,therefore,has the site but almost entirely from the invest- property values,and the primary been land-use regulations instituted by the ment of others—the City of Las Vegas,em- /)/Yl/1(!M'I i d//fit/I'(/---/!1 /II'• source of value of real estate being public to protect the composite economic ployers,owners of other properties,resi- /� largely external to the property value of private land and to mitigate the dents of Las Vegas.The creation of value in (Yl//!/171IN11. '/-'(/)()l///(i/./�Il'%i1' il'!: boundaries. risk of substantial value decline caused by real estate is to a large extent external to the / ( Imagine two next-door neigh- actions on nearby properties. property itself. be(�('(/(�(��(/I the ballot(%(l.\. boys each owning a series of assets. Those who loudly proclaim,"It's my The scenario may be altered somewhat ishes the economic value of my asset.I am One owns IBM stock,government bonds, land and you can't tell me what to do with by constructing a forty-story hotel on each entitled to use(develop)my asset to its gold coins,and antique watches;the other it,"are quick to appear before the city site.Certainly,the Las Vegas property is highest and best use.It is wrong for the owns GM stock,corporate bonds,gold in- council when a homeless shelter is moving now worth millions more than the bare government to deprive me of that opportu- gots,and baseball cards.The investment in next door or a hazardous-waste disposal land prior to the construction of the hotel. nity. decisions of one have absolutely no mea- site is proposed next to their summer cot- But what is the value of the land and hotel The legal prong of the property-rights ar- surable effect on the value of the assets of tage.And their argument won't be,"I'm in the middle of the Sahara?Next to noth- gument will be decided—and then proba- the other.One neighbor probably neither against the homeless"or"Hazardous waste ing—irrespective of the cost of construc- bly redecided—in the courtroom.The po- knows nor cares about the investment port- shouldn't be disposed of,"but rather,"That tion.The economic value of the property litical prong will be decided at the ballot folio of the other.There is no need for one action will have an adverse effect on my was created not from within the property box. But the economic prong is being neighbor to urge the enactment of public property value and you,city council mem- lines but from without. used—and abused—with increasing fre- restrictions on the use to which gold ingots bers,need to prevent that." Restrictions on the use of land represent quency by the property-rights proponents, can be put since the neighbor's decisions Land-use regulations protect property an appropriate dividend on the investment and it is this prong to which advocates of will not affect his/her own asset value. values.But where does real estate value others have made that has generated the land-use regulations have inadequately re- Now suppose that in addition to the as- • originate?Some landowners would have economic value of an individual parcel. sponded. sets above,each neighbor owns a parcel of you believe that the value of their assets Students of real estate economics have It is stating the obvious to say that land- real estate abutting the parcel of the other. somehow emerges from within the bound- identified the forces of value that push the use regulations apply to land.But an ac- Every decision one owner makes has an im- arres of their sites,and that since that value economic value of a single parcel up or knowledgement of that fact is critical to an mediate impact on the economic value of was created within their lot lines,they are down.These forces are social,economic, understanding of the source,justification, the asset of the other.To the extent possi- entitled to the highest returns available. physical,and political.Land-use regula- and economic impact of these regulations. ble,one owner will try to limit the poten- Nothing,in fact,could be further from the tions reflect the political and,to a lesser ex- Land is an asset like no other.(The terms tial adverse effect the neighbor's land-use truth.Consider two five-acre parcels of tent,the social forces of value.Does the en- "land,""real estate,"and"property"are decisions might have on his/her own prop- desert land—one in the middle of the Sa- actment of a land-use regulation affect used interchangeably throughout this arti- erty value. hara and the other in the middle of Las Ve- value?Absolutely.In both directions.The cle.)Among the singular attributes of real Historically,the initial purpose of land- gas.Within the lot lines both have the same rezoning of a parcel of land from general estate are that every parcel is unique,fixed use regulation was public health and safety. physical characteristics:flat,dry,and,in agricultural to light industrial will change alHISTORIC PR ESER I'A TIOA' FOR I'A, J II I.Y/A IIG LIST 1993 the economic value of the property;in all the value of the local Ford dealer's Fran- some divine right to use their property to its highest and best use as a public likelihood the value will increase.That chise when the city decides to buy Chevro- its highest and best use.Based on their ora- park;or the amenities of living in a land-use decision increased the value of the lets? It goes down.What happens to the Lions,one could quickly reach the conclu- private dwelling may represent to its site. Note that the land itself did not value of the utility-company stock when the sion that highest and best use means the owner satisfaction that outweighs a change.The permitted use changed and, state utilities commission refuses to grant a greatest return imaginable.That simply is monetary net rental yield available therefore,the economic value of the prop- rate increase?It goes down.In every in- not so.Highest and best use is a real estate from rental to a typical tenant.In this erty changed.When was the last time you stance,a political decision by a public body appraisal term that has a very specific time of increasing concern over the heard a property owner say,"Because of acting in what it deemed the public interest definition:Highest and best use is the use environmental effects of land use,en- rezoning,my land went from being worth exerted an effect on someone's assets.Re- that,at the time of the appraisal,is the most vironmental acceptability is becoming $10,000 to being worth$100,000,but since al estate owners have no inherent right not profitable likely use to which the property an addition to the highest and best use it was the action of the planning commis- to be adversely affected by political deci- may be placed.The word"likely"is key concept.' sion and not some investment I made that sions. here.The first constraint on likelihood is increased the value,I'm writing a check to To return to the forces of value,the so- what is legally permitted-i.e.,what is al- But the concept of highest and best use is the city for$90,000"? • cial,political,and economic contexts with- lowed under land-use limitations.It would but one of the principles of value misrepre- The political force of value is one of the in which a property exists give it value.Of be a fundamental violation of appraisal sented by the property-rights advocates. risks inherent in the ownership of real es- the four forces only the physical is con- practice to estimate the value of the prop- There doesn't seem to have been much at- tate and it has upside as well as downside tained primarily within the property lines. erty assuming a use not presently permit- tempt to understand either the theory or potential.To suggest that a decline in value To claim that the adverse impact of public ted unless it were probable that the land- the practice of real estate valuation.There resulting from the enactment of a public decisions(the political force of value)is use restriction would be changed.Just the are,for example,two principles of real es- land-use limitation entitles a property own- somehow unwarranted,unfair,or undemo- possibility of current regulation being tate appraisal that are particularly germane er to just compensation is to ask for a floor cratic is to fail to understand(by accident or changed is not sufficient;the appraiser to this discussion:the principle of balance under the risk of real estate ownership. by design)the fundamental nature of real would have to demonstrate the probability and the principle of conformity.The prin- Where,then,is the offsetting ceiling limit- estate economics.The potential adverse of change.In other words,for the owner of ciple of balance establishes that land value ing the enhanced value generated from the impact of political decisions is simply one an undeveloped forty acres currently zoned is created and maintained when there is an same source?No property-rights pamphlet of the risks inherent in the ownership of re- general agricultural to argue that the high- appropriate balance among types and uses has advocated that equitable exchange. al estate. est and best use of his/her property is as a of land in the affected area.Comprehen- Does the enactment of a historic preser- This does not mean that a land-use deci- suburban office park when that use is nei- sive plans and zoning laws are important el- vation statute,a wetlands protection law, sion that is fundamentally unfair is impos- ther permitted by current restrictions—nor ements in sustaining that balance. sible.Of course that can hap- is it probable that those restrictions will be The principle of conformity affirms that /it''•`t •'r'•'i'• - ''` ;'", .' pen, and when it does it is changed—is very simply misusing and mis- areawide values are greatest when there is incumbent upon the property representing the vocabulary of real estate. a reasonable degree of land-use compati- /%/"''t i/1't'.. • / . %. Ill. '..'(ii i/;;• owner to demonstrate to the Highest and best use is not the maximum bility and architectural homogeneity.Con- decision-making body that value imaginable;it is the most profitable formity in use establishes and sustains the t//' /'"'//'�'" - • • •• . what he/she loses as a result of use for which there is market demand and composite value of the neighborhood and those restrictions is much legal authority.If the maximum imaginable the individual affected parcels within. /)/0t/t/////•c/i/!it ;y''',:7/.•' !','".; '//// i.'.'''ill( 'I' greater than what the public value were the standard,we would have Property-rights advocates usually frame (for whom the public body is I adult bookstores,hazardous-waste dispos- the debate in terms of property owners ver- /1/'u//t'//I'//t//.• ///,'/;t.c/,/'/(///t:c///.ct'. acting) has to gain. No one al sites,steel mills,and sewage-disposal sus the government.Defining the dispute should dispute an individual plants in every residential neighborhood in in that context conjures up visions of face- or a downzoning ordinance ever reduce the landowner's right to testify against his/her America. less bureaucrats in Washington dictating value of an individual parcel of real estate? property being subject to a particular land- Furthermore,highest and best use often how far a garage has to be set back from Certainly.But every day hundreds of gov- use constraint.But to object solely because includes noneconomic factors. Elm Street and deciding what color one's ernment decisions affect individual invest- of a claim of potential loss of value demon- house can be painted.An eighty-year-old ments of all kinds,and often adversely. strates a basic misunderstanding of the na- The most profitable likely use can- homeowner can be forgiven for having that What happens to the value of Lockheed ture of real estate. not always be interpreted strictly in misunderstanding when that's what he/she Corporation bonds when McDonnell Dou- Those seeking to rezone their property terms of money.Return sometimes has been told.But the leaders of the prop- glas is chosen instead to build a new (or oppose historic districting,environ- takes the form of amenities.A wood- erty-rights movement know full well that is bomber?It goes down.What happens to mental restrictions,etc.)often proclaim ed urban site,for example,may have a bogus argument.Virtually all land-use HISTORIC PR r.Jf.R I',1 f/nN FORUM JI11,Y/A 11 fi(I ti'I' IY4J --_—_-- ® • 1+ 4 a' HISTORIC PRESERVATION AND THE CONSTITUTION Dispelling the thirteen myths RICHARD J . RODDEWIG 0 ne of the biggest problems facing historic preservation at the local level today is the blustering lawyer who claims that recent United States Supreme Court—and state court—decisions have fundamentally changed the rules of the"preservation game."The typical land- mark commission,when confronted by an attorney who incants a litany of case names,usually does not know how to respond.While many preservation ordi- nances require that at least one member of a preser- vation commission be an attorney,he or she may not have the experience necessary to face up to the frontal attack and call the bully's bluff. And most of the time,it is just that—a bluff.The le- gal rules of the preservation game are the same today as they were ten years ago,despite such often-cited cases as First English Evangelical Church v. City and County of Los Angeles, Nollan v. California Coastal Commission,or,most recently,Lucas v.South Caroli- na Coastal Commission.That's not to say that there is. nothing to worry about in some of the recent U.S. Supreme Court and state Supreme Court decisions of late.There is much to watch and consider,and historic preservation is more on the defensive today than at any time in the past three decades. x. 1 ,,; % ST. BARTHOLOMEW'S IN NEW YORK CITY GAVE '; , power and necessary for the Lry ITS NAME TO A COURT CASE INVOLVING TWO OF t' (., �• • '� I �.. , •! protection thegeneral wen- i+� THE MOST CRUCIAL RIGHTS GRANTED TO .1!'.. • t /(� t . 4; •�'', .,' • ;;I , AMERICANS DV THE CONSTITUTION: • �.;1• .F 'I. `• It. •W• + '�, `` �i fare. ci4r,•'+ THE RIGHT TO RELIGIOUS FREEDOM •IL •f ,. `01•••'• ,' NI Although only four mem- •v " a••• AND THE RIGHT TO JUST „�(,y ,�.;:. !.'•t•, ��% r%,k > ., ,.;rrZi'^.�; a :r• bersofthePennCentralcourt 5: COMPENSATION FOR THE ,�; .•f r; t,tr, • {� I. . k 1 I' remain on the Supreme 1 . TAKING OF PROPERTY. / ,✓' • .,, y ' / rrY ''., t tom• Ii• e. • . s'N'"j, I. Court,the basic holdingin the t '``°4 ,t y 'n .'�'/ , r t case has been reaffirmed in f ;!tom,^' a ♦"r Ly „.. , _" ;,;d,r,�' 4�}' even some of the most recent » - t cC � ,1 <It t fir - - , 11 ,1 I ` ,'' % In ,! 04..�N+ •, r i", i. pronouncements by the more �' '� ;s. ," ! ��` ` # z + 1, 61; (, :i' g,r conservative Reagan/Bush 7'i ' •si• , o 1,•+ -r I ', ' j yry� '• • •.• 1 . ..ems•"—. 5,1$7' court. /tee••. •JII.'I " t^"�. �u,�� J'(F �..xi ' YA ' .:r" t } h '� 1 !, a n , "` " _. 4 • 1 . Myth 2: Maybe Historic 1445' ` / +• • ` " ''.w141.1,S� �- 1 ' • Preservation once was con- ... •7' �� sr si s+ J 7 r`. stitutional but it is now un- 7 1'':ri s' -; ' 7 4 I i 1 a d s; N, • -- to r+ , constitutional after First En- F I -1 i• : g i":r1'• 1 %1� .`t , . i. .,1 r•r ti.. :; ,/ ,.I ..a;s OW:,Nollan,and Lucas. ', ttz� ', # t i F. .r. A r ` i t: (, ,:: z = :, 1 '' This,too,is a myth.First En- :, ;' ` ,r`j,' ^�. �' �`<7 • ', g/isk and Lucas deal with the ��, w ,,r4,;.: v ,GI• l2.2 �'L jj ', • -=„-•' ,t Fifth Amendment taking � ?.I s " I "� �y! Iw p. `'4 t � - '-• -- .--t: t , t k•,L 4 Yr- ;��., .., f- clause of the Constitution.In , •r.i7 1 '-,,<• ; , " I` ;N l l' _ i'."-- .'-,,r,,,-r,• ,P• g ''! ,,,�,. the former,a 1987 case,the I � ' : r.! • tt /,, ,, 1„8?,... _ `I'.%j 'l ;,'_..s k, - 0�,ii ;+{� ,tv i Supreme Court for the first • .�`L'`. s •'fS�e t' • tbi .•'- `Y: / ". Ke Y ' ��� � r`s ft" Ir f • time ruled that monetary „. r` - i�s'3� ..4 N.A. .. I -. „i r�r t,�•1, r !',elf?. f, 3; /- Y lc- 4.., }., , !- r'r r. 3-� ,•. damages could be required s _.�F; . i f I •'I 111.1 .1"lc. I . .; "`">.'V ..?"4' ,l 1eI - !. '' i x�t',7`� ",,t}11� i; to be paid if a law or regula- a� •x''f�% ~•� /F' •. , a1, a� » 1 •',;s.,: '' ,4 ''.` lion denies the property ' +' .�i.7. - - ;/ :: 1 `, .. -•it*,5a?!1 ...� .•.. . :: ..11 �' �'. •:a'�,.a,=`.h• owner all reasatable use or ✓'.irWe , - -__7.-1 - '_.,.�. , _M J41 4<.' 'l�t•.::� ,.+ :.- ,cc$' ` •I•`:_.1t. return from his or her prop- n e,,.I:I v;.ni'I I n ,r,1 a•,i ,� ; ;,, _ + „•-i�_._ erty. That threshold for :: .� �, =`"- ` proving that a taking has oc- • �1 'a, -rr.•``�. - ,--;;.,rs=:� r �•,.,.,e-.;,..;,•;,R,� curved is the same high threshold put forth by Jus- But despite the new attacks from the prop- real estate attorney more comfortable re- 3 historic preservation ordinance,is perfectly tice Brennan in Penn Central.In fact,the erty-rights movement,historic preservation viewing title reports than the Fourteenth 5 constitutional.The basic legal support is most important result of First English is is on the same strong constitutional footing Amendment,or,at best,a zoning and land- contained in Penn Central Transportation that it confirms Penn Central's central • today as it was ten or twenty years ago.Let use attorney who knows much about due Company v.New York City,'the seminal principle-that there is no unconstitution- me summarize the arguments most fre- process and equal protection but little about 1978 decision of the U.S.Supreme Court al taking unless all reasonable use or re- quently heard from attorneys for the prop- the First Amendment or the history of the that for the first time clearly upheld historic turn has been denied a property owner. erty-rights movement.I call them"constitu- takings clause in the Fifth Amendment, preservation as a valid component of the The principal difference between Penn tional myths,"and for each there is a simple "police power,"the term that encompasses Central and First English is that in the lat- response that can call the bluff of the bars- THERE ARE AT LEAST THIRTEEN that trilogy of local government obligations: ter case the Court has now recognized the ter bully and shatter the myth.Remember MYTHS LIKELY TO BE ENCOUNTERED. the protection of the health,safety,and point that in the rare situation in which all one very important thing:The typical attor- Myth 1:Historic Preservation is unconsti- general welfare of the community.Historic reasonable use has been denied,monetary ney who posits these myths is probably no tutional. preservation has been recognized by court damages may have to be paid.But in First constitutional scholar,he or she is more like- Nothing could be further from the truth. after court at both the state and federal lev- English itself,neither the U.S.Supreme ly to be a general practitioner,or perhaps a Historic preservation,and the well-drafted els as a legitimate exercise of the police Court nor the lower courts on remand re- ® HISTORIC PRESERVATION FORUM t U L Y/A U G UST 1 993 El quired that any monetary damages be ty rights are inextricably intertwined with ment.First,mere designation of a property Supreme Court case to uphold local zoning paid,despite the fact that the property at private property rights,and government as historic is not enough to create even the laws,City of Euclid v.Ambler Realty,4 the issue was limited severely in use by the creates a good portion of value by such possibility of some entitlement to damages. owner's property Was decreased in value by Los Angeles regulation.2 things as land-use planning laws,zoning There must be something more,and usually seventy-five percent,from$10,000 per acre It's not enough that some use has been and building codes, and even historic the courts hold that the something more is to only$2,500 per acre.In other cases,too, taken.For monetary damages to be paid, preservation ordinances. outright denial of an application for a per- serious effects on value have been upheld. all reasonable use or return must be denied. mit to"do something"with the property, For example,in Haas v.City of San Fran- The Lucas decision involves that rare case Myth 4:The founding fathers never intend- and,even further,when historic preserva- cisco,5 property was decreased in value from in which all use or return has,indeed,been ed us to regulate property this intensively. tion is involved,a final denial of an applica- $2 million to only$100,000,but a federal denied the property owner.Mr.Lucas was Variations on this myth may include such tion for an alteration or demolition permit. court of appeals ruled it was not a taking. denied the right to build single-family statements as the following:"A strict con- The word "final" is very important. So the property owner must demonstrate dwellings on two beachfront lots.Only very struction of the Constitution means historic Courts don't want to get involved in these a high impact on value in order to cross the limited construction of such nonhabitable preservation laws are unconstitutional:"or messy land-use disputes unless they have to. constitutional threshold and have a legiti- improvements as wooden walkways or small "The intent of the framers of the Constitu- If there is any type of administrative relief mate claim for damages. wooden decks was permitted.The purpose tion was to make protection of private prop- that has not been tried,courts won't even Even the most recent U.S.Supreme of the regulation was to prevent storm de- erty a preeminent right."This never was consider the constitutionality of an attack Court pronouncement on the taking issue, struction of the barrier dune system. true and those who advocate that point of on a historic preservation law.The legal Lucas v.South Carolina Coastal Commis- This was a case in which it was admitted view just do not know their constitutional term for this principle is"ripeness"—courts sion,6 reiterates that the threshold is indeed that all use had been denied.Mr.Lucas had and political history. won't get involved in land-use disputes un- high.The Court recognizes that it is review- paid$975,000 for the lots,and evidence sub- Certainly,private property rights are im- til they are"ripe"for judicial consideration, ing a remarkably unusual factual situation mitted at trial indicated that the regulation portant in our constitutional scheme.But and such controversies are not ripe until all in which virtually all value has been taken rendered the lots essentially valueless.At the whole history of common law prior to of the possible administrative avenues for from the property owner.It calls this case best,therefore,it is a red herring for historic the enactment of our Constitution recog- relief(e.g.,variances,economic-hardship "the extraordinary circumstance when no preservation.In 99.9 percent of all preser- nizes that private property rights derive exceptions,appeals to the city council,etc.) productive or economically beneficial use of vation disputes,substantial uses remain for from the Crown—in other words from gov- have been exhausted. land is permitted."7 The footnotes to the the property owner,a reasonable return can emment.Remember,the land that formed Second,courts simply do not like these case are as important as the majority deci- be gained from the property,and"reason- the thirteen English colonies was claimed preemptive attacks on historic designation, sion,and in footnote eight the Court states able investment-backed expectations"(an- by the early explorers on behalf of the so-called "facial attacks" on historic that"it is true that in at least some cases the other Supreme Court takings touchstone) Crown.And it was the Crown that gave preservation laws,or indeed,on any other landowner with ninety-five-percent loss will have not been thwarted. land grants,in fee or in lesser title,to the kind of land-use law.Designation of prop- get nothing,while the landowner with total various mercantile and religious groups that erties as historic,assuming the designation loss will recover in full."8 Myth 3:Private property rights are sacro- settled the English colonies in the New complies with a good set of designation cri- How much of an impact on value must be sanct in our form of govemement. World.Private property rights were deriva- teria,is a legislative act,and courts give leg- shown before the courts will find a taking? Yes,private property rights are given sig- tive of government ownership of the land,at islative acts a strong"presumption of va- The answer is still not clear,even after the nificant protection by the Constitution.But least in the New World. lidity."Courts prefer to step in only when Lucas decision. In Lucas the Supreme are they sacrosanct?Not quite.And any- Additionally,our Founding Fathers op- a property owner has actually applied for Court reiterated that this is a case-by-case one who carefully considers the nature of erated in a legal tradition that recognized the some permit and been denied. process.A couple of things seem to be clear, private property rights in America eventu- overreaching authority of the Crown to reg- however,from the way in which courts ally finds an unmistakable truth:A sub- ulate private property rights for the public Myth 6:If you decrease my property value through the years have handled these taking stantial component of the value of private good in a variety of forms.The best summa- even a little bit,that's a taking and you must claims.Decreases in value of less than fifty property is created by government action. ry of this English Common Law of land use pay me damges. percent will be held by the courts not to cre- What would the value of a piece of private is found in the book The Taking Issue,pub- Untrue.The constitutional"threshold"for ate a taking in virtually every case.Decreas- property be without the public investment lished in 1974 by the President's Council on having a valid claim for damages is quite es exceeding ninety percent are likely to be in utilities,roads,parks,schools,fire de- Environmental Quality? high.There are many cases in which state held to constitute a taking most of the time. partments,or police?Or without such reg- and federal courts have upheld land-use And courts will be inconsistent when the al- ulations as building codes,zoning ordi- Myth 5:If you designate my property as his- laws that have decreased property values by leged impact on value is between fifty per- nances,environmental regulations,or toric,you must pay me its full market value. as much as eighty percent to ninety percent cent and ninety percent—some courts will traffic laws?The fact is that public proper- There are two things wrong with this state- or more.For example,in the first U.S. find a taking while others will not. ICIIISTORIf PR TSF.R I'A TIO 1 FAIR t'.4 J 11 l.1'/A 11(;11 ti'I' 194JMI Myth 7:If the property owner wins on a steps to the calculus:(1)Determine the mar- constitutional takings claim,the community ket value of the property"before and after" j• '.,- '\ will have to paya huge damage award. the denial of the permit; 2 determine the el'`'n:"';`•::• ',, This myth fundamentally misunderstands date of the taking—usually the date of �.: ','�r't'''_�.I •`�:' • • the calculus that the courts must apply in a "final"denial of the permit application;(3) ... , \I�J3Ll,., I n, takings case.Let's imagine a situation in select an appropriate annual"rate of return" .... 1 • `� ``' -� which a property owner has proven more on value;(4)apply that rate of return to the1�` ��•w�\�'�', ,: , than a ninety-percent decrease in value of difference between the value of the proper- .,� - r 7•• -- ` { • .. his property as a result of denial of a de- ty"before and after"denial of the permit ap- --. i y/'ail fll • �� ' molition permit in a historic district,and plication to derive the annual loss to the ; ;, ' .-4 ill /Qf•-w c r.?1, r vti1:+ ` �, .+fit the court decides this is a taking of all rea- owner of the property;(5)multiply the an- Iry t w ,t ,,,,'t !• sonable use.9 The court will then have to nual loss by the number of years,or partial - , ?, �I,; • .. /• ( !,V calculate the amount of damages that must years,between the final denial of the permit I j ' - , t: - be paid.The property owner gets neither application and the decision of the court. 'I I; ;; 1.1 ' I� 'f �i ii': i? '� 'the full value of the property nor even Let's apply those five steps to a hypothet- ` .;:-.i.• :- r 1, , ? ninety percent of the value of the property. ical case.A preservation commission denies �" M---, I,m 1 i{ t' Instead,the owner gets much less. a demolition permit,there is an appeal to the : " A court,when it finds that the damages city council,and the city council upholds the -I'm, 'n ice.,yam""" threshold has been crossed,overturns the denial.12 Assume that the value of the prop- + qq .r.; ...�• c 1 Qs r1¢l Tp,!• ' t:''.y sn , offendingregulation or action. If it is a erty wouldbe$200,000iftheownercouldde- I ` '' !Y : srr"-�` ,i I ti�'•r t -I.- ••r ' ' S Y .I. ,,. -1 . fa t� , • .3 .,y..• preservation-board denial of a demolition molish the historic structure on it.If the court �a� ,�--„+r—r�" - r permit application that has been reversed found a ninety-percent decrease in value,the " •^^ O""" `Y - ► • by the court,the judge will order the board value with the historic property in place - '.' - .`` •.x _ to issue the permit.The property owner would be$20,000.And let's further assume +�'�� now gets the demolition permit and can un- that the appropriate annual rate of return is - dertake the development project that was ten percent.13If it took one year between the IN ITS 1978 PENN CENTRAL RULING THE U.S.SUPREME COURT UPHELD HISTORIC temporarily delayed while the legal wran- time that the demolition permit application PRESERVATION AS VALID COMPONENT OF THE"POLICE POWER." gling on the taking question was in process. was finally denied and the date that the court So there has been no"permanent"taking entered its judgment that a taking had oc- In reviewing demolition permit denials, The courts seem to say that if your original of the property,as there is when a local gov- curred,then the total damages payable the possibility arises for scrutinizing more purchase of the property was to use it ernment takes property for a road or utility would be only$18,000—not$200,000 or even than just the impact of denial on property (rather than demolish it),you have had a line.Instead there has been a"temporary" $180,000. value.Justice Brennan in his classic formu- reasonable use of the property for many taking.And courts realize it would be fun- lation of the taking test in Penn Central years(i.e.,you have recovered a fair return damentally unfair to pay the property own- Myth 8:Maybe it is constitutional to reiew posited that there were three economic on your original investment),and now you er the full value of the property and also let applications for alteration work,but review standards that might apply:Was the prop- have an opportunity to sell the property for him keep the property.1" of applications for demolition is unconstitu- erty owner denied all reasonable use?Or demolition at a much higher price than its So the rules of the taking game state that tional. was the property owner denied all reason- current market value for its current use, the owner must be properly compensated Another myth.The same constitutional able return?Or did the regulation interfere your reasonable investment-backed expec- for the actual loss incurred during the time standards apply whether alteration or de- with distinct investment-backed expecta- tations are not dashed if you are denied a that the regulation was in place.The prece- molition is being reviewed.The takings test lions?The courts have really not given us demolition permit. dent for the formula was established during is the same.Of course,there may be a some- too much explanation of what each of these World War II when the United States actu- what greater chance that a property owner standards means.14 Myth 9:If you deny me the right to demol- ally took over and operated some business- can prove a serious impact on property val- But remember,in Penn Central the U.S. ish my historic building and construct a new es and factories.The best statement of this ue when a demolition permit application is Supreme Court emphasized that even if the building,you must pay for the lost profits I old rule as it applies in contemporary land- denied than when an alteration permit is de- railroad could not construct a new office would have made on the new construction use taking cases is in Nemmers v.City of nied.But the high constitutional threshold building above the existing station,it still project. Dubuque"in which the Eighth Circuit of denial of all reasonable use or return is could continue to use the station just as it This,too,is untrue.The general rule is that Court of Appeals set out the essential five still the standard. had for many decades,as a railroad station. future profits are"too speculative"and /ll s rORic PR E SE R I'A TIO.V POR I/.V J II I.Y/A II O II7T I 993 m a. x: therefore not a proper basis for compensa- Myth 10:The preservation commission has that some activities given constitutional pro- apply to religious properties.With the ex- lion.That makes sense.Consider all of the the burden to prove that the historic desig- tection under the U.S.Constitution are not ception of only two cases,however,all of possible things that can go wrong in a de- nation or permit denial is not a taking. protected in the same way under state con- these efforts have failed.And there are oth- velopment project between inception,coo- The burden in the takings game is quite the stitutions goes back even further. er recent cases that stress the traditional rule. pletion of construction,and even full occu- opposite.The property owner must prove by In the United Artists decision,the Penn- The most significant is Rector, Warden pancy or total sellout.Sources of financing "clear and convincing"evidence and by the sylvania Supreme Court overturned the and Members of the Vestry of St. may dry up,interest rates may increase,car- "preponderance of the evidence"that the designation of the Boyd Theater by the Bartholomew's Church of New York v.City penters could go on strike,the country denial of the permit application results in the Philadelphia Historical Commission and of New York,20 commonly known as the St. could enter into a recession,overbuilding owner's loss of all reasonable use or return. found that historic designations"without Bart's case,in which the Second Circuit might create an imbalance between de- Again,the reason for imposing the burden the consent of the owner,are unfair,unjust, Court of Appeals upheld the New York mand and supply,etc.All of these things did on the property owner is simple—respect for and amount to an unconstitutional taking City landmarks ordinance from an attack go wrong in the early 1990s making fools of the legislative process.Courts give great without just compensation in violation of that claimed landmark designation and some of the most sophisticated developers, weight to the deliberations of federal,state, Article 1,Section 10 of the Pennsylvania protection was an interference with the lenders,and real estate analysts of the 1980s and local governments—as they should in a Constitution."" "free exercise"of religion guaranteed by who predicted that the boom of the 1980s democracy.There is a strong presumption of But note one very significant thing about the First Amendment.On the contrary,the would continue indefinitely. validity given every piece of legislation. that case:Its initial decision in the case cre- court held,landmark designation is"facial- Exclusion of possible profits from the About the only time that courts might ated such an outcry that the highest court in ly neutral"and applies to historic religious damages calculus is a well-established rule shift the burden to the government is when. Pennsylvania agreed to rehear the case.It buildings in the same way it applies to oth- in eminent domain(condemnation)law. for some unusual reason,the government did so in October of 1991.To this day the er types of historic structures. However,there is one worrisome decision appears to have"dirty hands."Perhaps court still has not issued any final decision in The court also held that denial of the ap- of a federal court,Wheeler v.City of Pleasant there is strong evidence of discrimination the case.And even if this becomes the rule plication to demolish the St.Bart's commu- Grove,15that does allow for consideration of against this particular developer for reasons of law in Pennsylvania,it may not become nity house did not confiscate the church's lost profits as part of the damages calculus. of race,religion,or gender,or maybe the city law elsewhere.State supreme court deci- property in violation of the Fifth Amend- This method has been followed in a couple is eyeing this piece of property for some pub- sions are only precedent in the state in ment prohibition against"takings." of more recent casestb—in one case reluc- lic use and denies a demolition permit in or- which they are issued.For the rule of law to The central question in these religious tantly and only after the lower-court judge der to keep the value(and therefore the po- apply elsewhere,another state supreme cases,according to the Second Circuit,"is expressed his disagreement with the princi- tential purchase price)of the property low. court will have to also adopt this rule.No whether the claimant has been denied the ple of compensation for speculative lost Otherwise,the developer has the burden other state supreme court has done so,and ability to practice his religion or coerced in profits.t" to prove that he or she cannot make a rea- in fact,in most states,judicial support for the nature of those practices."2a For the It's my hunch(and a prediction),howev- sonable return through continued owner- historic preservation under state constitu- church to prove that there has been inter- er,that as courts become more experienced ship of the historic structure.And remem- tional principles is quite strong. ference with its First Amendment rights, in measuring the damages in Fifth Amend- ber,under the typical historic preservation there must be evidence of discrimination, ment takings cases,they will increasingly ordinance,that evidence must be presented Myth 12:Maybe historic presrvation is con- coercion in religious practice,or interference look to the established body of doctrine in before the preservation commission itself. stitutional as it applies to privately owned that creates interference with the church's condemnation law for guidance.When they And typically,decisions of preservation property,but the rules are much different religious mission.The mere fact that denial do,they will discover the sound policy rea- commissions are reviewed by the courts un- . in the designation and protection of reli- of a demolition permit means that the sons for ignoring speculative future profits. der state"administrative review acts."Usu- , gins properties. church will have less money to apply to parts But if some courts do decide to throw ally that means no new trial is held and the Once again,myth not reality.The tradition- of its mission is not enough,by itself,to cre- consideration of the future profits into the trial court is limited to a review of the record al rule is that land-use and zoning laws,like ate either a First Amendment violation or a takings recipe,isn't it fair also to consider made before the preservation commission other health and safety laws,apply to reli- takings claim under the Fifth Amendment. whether denial of the permit saved the de- to see if the owner of the property satisfied gious groups and religious organizations in The St.Bart's decision is especially help- veloper from making a real estate mistake— its burden of proof. the same manner as to all Americans.Only ful to the cause of historic preservation be- in other words,if potential future profits can Myth 11:Even if historic preservation is if the land-use and zoning restriction actu- cause the U.S.Supreme Court refused to be added as damages,so should potential fu- valid under the U.S.Consititution,it is un- ally interferes with the exercise of the reli- grant a review of the case.That indicates ture losses avoided be an offset to damages. constitutional under state constitutions. gion will it be overturned. support on the Supreme Court for the rea- If there is one thing the 1990s have taught us The source of this myth is the recent Penn- Religious groups have been zealous in re- soning of the Second Circuit. so far about the real estate business,it is that sylvania Supreme Court decision in the cent years in attempting to carve out excep- There are two troublesome cases involv- losses occur as frequently as gains. United Artists case.ts Actually,the doctrine tions from land-use and zoning laws as they ing churches.Not once,but twice,the mHISTORIC PRESERVATION FORUM I U L Y/A U C UST 1993 132 • • • Supreme Court of the state of Washington alteration and demolition applications are re- neighborhood receive the benefit of seeing sylvania Supreme Court in its United Artists has invalidated the Seattle landmarks ordi- viewed(the burden).The key quote from the historic building preserved,and reap the decision.During the rehearing of the Unit- nance as it applies to churches.In the first Justice Rehnquist is as follows: benefit of the positive impact of the land- ed Artists case,many questions were asked case,First Covenant Church v.City of Seat- mark protection on the character(and of the National Trust's legal counsel con- t1e,22 the U.S.Supreme Court reviewed the The owner of a building might ini- property values)of the neighborhood. cerning this issue.More courts will be ask- case,vacated it—in effect reversing the Bally be pleased that his property has However,they do not have to share in the ing the same question in the future.A clear Washington Supreme Court—and re- been chosen by a distinguished com- burden that results from the process for pro- presentation of the benefits of landmark manded it back to the Washington court for mittee of architects,historians,and city tection of the neighborhood landmark. designation should be high on the agenda further action.But the state Supreme Court planners for such a singular distinc- There are a lot of problems with the of the preservation community.In fact,it in- again invalidated the Seattle landmarks or- Lion.But he may well discover...that Rehnquist distinction.For example,the dicates that we need to"get back to the ba- dinance,this time citing the Washington the landmark designation imposes up- whole theory breaks down when you ana- sics"in preservation.That is,we need to state constitution as support 23 on him a substantial cost,with little or lyze what happens at the edge of a desig- define the benefits of historic preservation The second case is Society of Jesus of no offsetting benefit except forthe hon- nated historic district.Property owners for a new generation of Americans,and for New England v.Boston Landmarks Com- or of the designation. The question in across the street participate in the benefits a new cadre of judges who may have little or mission24 in which the Massachusetts this case is whether the cost associated but aren't affected by any of the burdens.27 no experience with the concept.How the Supreme Court overturned Boston's desig- with the City of New York's desire to And it ignores what most preservationists preservation community responds may be nation of the interior of a church as an in- preserve a limited number of land- intuitively know,but seldom articulate well one of the most significant challenges facing terference with religious worship. marks within its borders must be borne to the uncommitted—there are significant preservation in the 1990s. Despite these two cases to the contrary, by all of its taxpayers or whether it can benefits even to owners of individually des- What should the preservation communi- the majority of cases that have examined instead be imposed entirely on the ignated landmarks.For example,it is gen- ty be doing in the wake of this renewed in- designation of churches as landmarks or as owners of the individual properties. erally understood—although not very well terest in property rights and the Constitu- parts of historic districts have upheld the his- Only in the mostsupetficial sense of documented-that the value of historic sin- tion?There are at least six lessons to be tome preservation law.25 The Washington the word can this case be said to in- gle-family landmarks increases following learned:First,don't be bullied by the blus- Supreme Court decision in First Covenant volve zoning. Typical zoning restric- designation;there is a panache that attach- tering barrister:Despite—in fact,because appears to be an aberration not repeated lions may, it is true, so limit the es to official designation that has some of—such recent cases as First English and elsewhere in preservation law.The Society prospective uses of a piece of property market value,as almost any real estate bro- Lucas the law is on our side. of Jesus case raises a significant red flag for as to diminish the value of that prop- ker will attest.People simply want to live in Second,get sound legal advice.City and preservationists:be very wary of designating erty in the abstract because it ma)'not landmarks.And in many states there are village attorneys sometimes don't have the interiors of religious structures. be used for the forbidden purposes. special incentives available to the owners enough experience with preservation(or But any such abstract decrease in val- of designated landmarks not available to even land-use)legal issues to be of much Myth 13:Maybe zoning and other types of tie will more than likely be at least par- the owners of nonhistoric property next help.Call the office of the general counsel land-use laws are constitutional,but land- tially offset by an increase in value door.And,of course,if the designated of the National Trust or your state historic mark designation creates no benefits to off- [that)flows from similar restrictions us landmark is income-producing,it qualifies preservation office for advice.They can at set the burdens of the regulatory scheme to use on neighboring properties.All for the opportunity to utilize the invest- least set the record straight and often can and therefore is illegal. property owners in a designated area ment tax credit for rehabilitation of his- give you good ammunition for a sound legal The source of this myth is Justice Rehnquist's are placed under the same restrictions. tonic structures provided by the federal tax response to the blustering barrister. dissent in the Penn Central case.Justice not only for the benefit of the numici- laws. Third,make sure your preservation or- Rehnquist distinguished between designa- pality as a whole but also for the com- More importantly,each individual land- dinance has sound administrative process- tion of historic districts and the designation of mon benefit of one another.16 mark owner benefits from the designation es.Make sure property owners are treated individual landmarks.In the former situation of other landmarks in the same communi- fairly. Justice Rehnquist could clearly see a mutu- Mr.Justice Rehnquist does not see the same ty.In essence,communities that designate Fourth,consider adding a process for ality of benefits and burdens—every owner mutuality when he scrutinizes designation individual landmarks rather than historic considering economic hardship and grant- of property in a historic district is assured that of individual landmarks.Although he does districts simply are treating the entire com- ing certificates of economic hardship. every other owner of property in the district not articulate the distinction particularly munity as one historic district,and the Fifth,create a package of local incentives . will take care of his or her property in a way well,he probably has in mind the situation properties not designated are simply non- for relieving the potential hardship that can that assures the historic character of the in which a historic building in a neighbor- contributing structures orintrusions.28 sometimes result from denial of alteration or neighborhood will be preserved(the benefit) hood is designated as a landmark.All the Justice Rehnquist's"benefits vs.bur- demolition permits.This can be as simple as but also equally share in the process by which other property owners on the block or in the dens"analysis was picked up by the Penn- creating a small revolving fund for low-inter- INHl.t rORIC PRESERVATION FORUM J I:I.Y/A tl G I'ST 1993 ' EU P t- r n n I . 2-3 .11 ftIII — '"""'" v E -') --9-=-?-_ ';---n -=-• (7`-! rit... 14w---' 1!111=- f '1 - Or 0 i all 0 - - - - - rr---VIT4 f--1 "-...._,: I p 2.----'-:'-'.1-1 1 Vill d j I as in-ril-n4 , g u i1 -- Idi 0 --r u rill -1 r 01 1 Pir ig a 0' .ai- — J. En � r-rip, Ze+4 .-- ,_ ...„ .a' , , O15,r ill , - 7 ao A service of the National Park Service DISTRIBUTED BY INTERAGENCY RESOURCES DIVISION, WASHINGTON, D. C. When Preservation Commissions Go To Court A Summary of Favorable Treatment of Challenges to Ordinances and Commission Decisions Stephen N. Dennis Executive Director, National Center for Preservation Law July 1988 A recent study by the National Center for Preservation Law suggests that local preservation commissions are becoming involved in litigation much more frequently than had been previously thought. Seventeen percent (39 commissions) of the 222 preservation commissions responding to a National Center questionnaire stated that they had been involved in a court case within the previous two years. This indicates that it is important for commissions and their staffs to know how commissions and local preservation ordinances have fared in court over the years. This issue of Local Preservation briefly summarizes and analyzes preservation commissions' participation in litigation. Historical Overview of Preservation Commission Litigation When one looks back over the evolution of American law relating to local preservation commissions, several distinct periods can now be seen. The first of these, a period of early development, lasted from the enactment of the nation's first historic preservation ordinance in Charleston in 1931 until about 1955, when the Massachusetts legislature enacted two special bills creating and protecting historic districts on Beacon Hill in Boston and on the Island of Nantucket. These two legislative bills set the stage for statewide enabling legislation for local preservation commissions in a growing number of states. The second of the periods showed a growth to maturity for local preservation commissions. This period lasted from 1955 until the U.S. Supreme Court decision in the Penn Central case in 1978. During this period, many cases involving local preservation ordinances were decided, almost invariably in favor of a challenged ordinance or a disputed commission decision. f 2 The third period, which may still be underway, has been an aftermath to the Penn Centrt14- decision and lasted from 1978 until at least the early 1980s. During this period several important local preservation ordinances were strengthened, most notably those for the District of Columbia, Philadelphia, San Antonio, and Chicago. A strong decision on hardship under the District of Columbia ordinance helped make it clear that a loss in value because of landmarking will seldom be compensable. The current period is also one of perfecting commission procedures and challenging the regulation of properties owned by charitable (particularly religious) institutions. Cases involving these issues are characterized by: (1) careful attention to the demands of particular preservation ordinances (the search for procedural irregularity); and (2) a persistent questioning of whether non-profit organizations owning historic properties should be subject to rules different from those applicable to owners of residential or commercial properties. Cases in the second category grow out of arguments by churches that religious properties should not be subject to landmark designation and consequent regulation. No designation of property owned by a religious institution has yet been invalidated except on procedural grounds. The great majority of court decisions have upheld the basic power of communities to use the police power to designate and regulate both historic districts and individual landmarks. When commissions have lost in court, it has usually been because of a procedural flaw in a designation or a decision, not because of a court's determination that the commission could not have achieved its goal had it acted properly under a valid local preservation ordinance. Questions Addressed by the Courts Since 1941, nearly 100 court decisions involving local preservation commissions have been reported as published decisions that can be researched in a large law library. In a summary such as this, it is impossible to include every such case. Those discussed have been selected to illustrate principles and directions in legal thinking with which commissions should be acquainted. Does designation of private property as "historic" and subsequent governmental regulation affecting the property constitute a "taking" of that property for which the governmental unit must pay? Some courts have suggested that in exceptional situations the impact of the designation of property as historic could be so economically severe as to amount to a "taking." (The term "taking" derives from a provision in the Fifth Amendment to the U.S. Constitution which states that private property shall not "be taken for public use, without just compensation.") Courts have yet to identify such situations, or to provide firm guidance to preservation commissions on such potential "hardship" situations. Under the Supreme Court's Penn Central decision and a District of Columbia decision discussed below, however, the judicial test for "hardship" would be quite difficult for most property owners to meet. Several state courts have defined "hardship" narrowly, holding, for instance, that an owner who is not willing to offer property for sale at its fair market value cannot establish a "hardship." The United States Supreme Court upheld in Penn Central Transportation v. New York City, 438 U.S. 104 (1978), the designation of Grand Central Terminal in New York City and the subsequent denial to the terminal's railroad owner of a permit sought for the demolition of portions of th— structure for erection of a high-rise office building on the site. The Supreme Court stated: 3 On this record, we conclude that the application of New York City's Landmarks Law has not effected a "taking" of appellants' property. The restrictions imposed are substantially related to the promotion of the general welfare and not only permit reasonable beneficial use of the landmark site but also afford appellants opportunities further to enhance not only the Terminal site proper but also other properties. This decision is cited frequently in historic preservation situations for the principle that an owner who can obtain a "reasonable return" or a "reasonable beneficial use" from his property does not have a valid "taking" argument. The Supreme Court included in the Penn Central decision useful language recognizing the permissible goals that American cities seek to implement through the enactment of local preservation ordinances: Over the past 50 years, all 50 States and over 500 municipalities have enacted laws to encourage or require the preservation of buildings and areas with historic or aesthetic importance. These nationwide legislative efforts have been precipitated by two concerns. The first is recognition that, in recent years, large numbers of historic structures, landmarks, and areas have been destroyed without adequate consideration of either the values represented therein or the possibility of preserving the destroyed properties for use in economically productive ways. The second is a widely shared belief that structures with special historic, cultural, or architectural significance enhance the quality of life for all. Not only do these buildings and their workmanship represent the lessons of the past and embody precious features of our heritage, they serve as examples of quality for today. (H)istoric conservation is but one aspect of the much larger problem, basically an environmental one, of enhancing—or perhaps developing for the first time— the quality of life for people." More recent U.S. Supreme Court opinions involving the "taking" question have focused on the procedural issues of: (1) when an owner may make a "taking" argument ("ripeness" and "exhaustion of administrative remedies" cases); and (2) whether a property owner who can demonstrate a "temporary taking" is constitutionally entitled to seek money damages as a remedy for the taking. These cases have not changed the substantive standard for when there is a "taking," though, and thus pose no legal threat to local historic preservation programs. A highly publicized Supreme Court opinion of June 1987 on the "temporary taking" issue did not hold that there had in fact been a "taking" in the fact situation before the court. First English Evangelical Lutheran Church v. County of Los Angeles, 107 S.Ct. 2378 (1987). First English did not change the Penn Central standard for when a "taking" has occurred but does stand for the principle that money damages as compensation would be constitutionally required in the unlikely event that a temporary regulatory "taking" were found. Unfortunately, the implications of the case have been widely overstated by attorneys representing development interests. The case has been remanded to the California courts for a determination of whether any "taking" had in fact occurred. Another 1987 Supreme Court decision, Keystone Bituminous Coal Association v. DeBenedictis, 107 S.Ct. 1232 (1987), is important because it reiterated the Penn Central principle that when an owner makes a "taking" claim, a reviewing court must look at the owner's total interest in the property involved and should ignore the impact of a challenged regulation on individual components of the property: 4 Many zoning ordinances place limits on the property owner's right to make profitable us— of some segments of his property When the coal that must remain beneath the ground is viewed in the context of any reasonable unit of petitioner's coal mining operations and financial-backed expectations, it is plain that the petitioners have not come close to satisfying their burden of proving that they have been denied the economically viable use of that property. It is important to bear in mind that in a few states it might be possible for an action which would not be a "taking" under the federal constitutional standard of Penn Central to be a "taking" under the tougher standard of a particular state constitution. This possibility points up the importance to preservation commissions of keeping an eye on land use decisions in their own states. Is it constitutional to use the police power to regulate private property for an "aesthetic" purpose such as historic preservation? The most important decision on this issue is certainly that of the U.S. Supreme Court in Penn Central Transportation Company v. New York City, 438 U.S. 104 (1978), in which the court noted that: (T)his Court has recognized, in a number of settings, that States and cities may enact land-use restrictions or controls to enhance the quality of life by preserving the character and desirable aesthetic features of a city . . . . See also A-S-P Associates v. City of Raleigh, 258 S.E. 2d 444 (N.C. 1979): (We) find no difficulty in holding that the police power encompasses the right to control the exterior appearance of private property when the object of such control is the preservation of the State's legacy of historically significant structures. A Connecticut court stated in Figarsky v. Historic District Commission, 368 A. 2d 163 (Conn. 1976): In a number of recent cases, it has been held that the preservation of a historical area or landmark as it was in the past falls within the meaning of general welfare and, consequently, the police power. . . . We cannot deny that the preservation of an area or cluster of buildings with exceptional historical and architectural significance may serve the public welfare. May a local preservation commission regulate both historic and non-historic structures within a local historic district? In City of New Orleans v. Pergament, 5 So. 2d 129 (La. 1941), the Louisiana Supreme Court recognized that the Vieux Carre ordinance had a permissible purpose: The purpose of the ordinance is not only to preserve the old buildings themselves, but to preserve the antiquity of the whole French and Spanish quarter, the tout ensemble, so to speak, by defending this relic against iconoclasm or vandalism. Preventing or prohibiting eyesores in such a locality is within the police power and within the scope of thiN municipal ordinance. i I 5 Pergament has been cited often by courts in other jurisdictions. In Faulkner v. Town of Chestertown, 428 A.2d 879 (Md. 1981) the Maryland Court of Appeals stated that: (T)he whole concept of historic zoning "would be about as futile as shoveling smoke" if . . . because a building being demolished had no architectural or historical significance a historic district commission was powerless to prevent its demolition and the construction in its stead of a modernistic drive-in restaurant immediately adjacent to the State House in Annapolis. May a community deny altogether demolition permission when an owner wishes to demolish a building? Courts in several states have now upheld total denials of demolition permission for designated properties. In Maher v. City of New Orleans, 516 F.2d 1051 (5th Cir. 1975), the United States Court of Appeals for the Fifth Circuit stated: An ordinance forbidding the demolition of certain structures if it serves a permissible goal in an otherwise reasonable fashion, does not seem on its face constitutionally distinguishable from ordinances regulating other aspects of land ownership, such as building height, set back or limitations on use. We conclude that the provision requiring a permit before demolition and the fact that in some cases permits may not be obtained does not alone make out a case of taking. For similar results, see also Mayor and Aldermen of City of Annapolis v. Anne Arundel County, 316 A.2d 807 (Md. 1974); Figarsky v. Norwich Historic District Commission, 368 A.2d 163 (Conn. 1976); First Presbyterian Church v. City Council of City of York, 360 A.2d 257 (Penn. 1976); Lafayette Park Baptist Church v. Board of Adjustment of City of St. Louis (No. 782-3445, St. Louis City Cir. Ct., May 3, 1979). In the Figarsky case from Connecticut, the court stated: Whether the denial of the plaintiffs' application for a certificate of appropriateness to demolish their building has rendered the Norwich ordinance, as applied to them, confiscatory, must be determined in the light of their particular circumstances as they have been shown to exist. . . . In regulating the use of land under the police power, the maximum possible enrichment of a particular landowner is not a controlling purpose. May a preservation commission review all exterior alterations to a structure or must it confine its jurisdiction to those exterior facades visible from public streets? Commissions do not all have the same power on this issue. An early New Orleans decision, City of New Orleans v. Impastato, 3 So. 2d 559 (La. 1941), established the principle that in New Orleans the Vieux Carre Commission may regulate all changes to the exterior facades of buildings within its jurisdiction: 6 The word "exterior" as used in the Constitution cannot be limited to include only the front portion of the building as contended for by defendant's counsel. Such a straine interpretation of the language employed in the constitutional amendment would merely serve to defeat the obvious intention of the people . . . by rendering it impossible for the Commission to preserve the architectural design of the sides, rear and roof of any building in the Vieux Carre section." Unless a commission is precluded by local ordinance or state enabling legislation from reviewing all changes to the exterior of a structure, the commission may assume that its jurisdiction is total rather than partial. Are religious properties immune from designation and regulation? Religious institutions often argue that the constitutionally-mandated separation between church and state precludes the designation and regulation of properties owned by such institutions. However, these arguments have not been successful in the courts. See, in particular, Society for Ethical Culture in the City of New York v. Spatt, 415 N.E.2d 922 (N.Y. 1980): The Society also contends that the existence of the designation interferes with the free excercise of its religious activities; however, rather than argue its desire to modify the structure to accomodate these religious activities, the Society has suggested that it is improper to restrict its ability to develop the property to permit rental to non-religious tenants....Although the Society is concededly entitled to First Amendment protection as a religious organization, this does not entitle it to immunity from reasonable government regulation when it acts in purely secular matters.... In a recent interim ruling in Rectors, Wardens and Members of Vestry of St. Bartholomew's Church v. City of New York , (No. 86 Civ. 2848 (JES), U.S. District Court for Southern District of New York, transcript of July 10, 1987 conference with District Judge John E. Sprizzo), a federal judge stated: Under no stretch of the imagination is it clear to the Court that St. Bart's is entitled to the relief which they are seeking here, which is the right to demolish the building and construct a skyscraper, even assuming arguendo that this is a taking— and I have found that it is not a taking as a matter of law. It doesn't follow that you would have the right to demolish the building and construct a skyscraper, because I think at that point, if it were a taking, the state would be entitled to condemn it for its own purposes if the state thought that the preservation of the landmark was significant enough a state interest to warrant that action. They would then have to pay you for the property. But it wouldn't follow that you would have the right, which I think seems to be at least the assumption in your papers, to demolish the building and develop it into a skyscraper. I think the city would then have the choice of paying you what it is worth or designating it, in effect. Are minimum maintenence provisions which require owners to take steps to prevent gradual deterioration of their buildings permissible in local preservation ordinances? In Maher v. City of New Orleans, 516 F.2d 1051 (5th Cir. 1975), the United States Court of Appeals for the Fifth Circuit stated that: 7 (0)nce it has been determined that the purpose of the Vieux Carre legislation is a proper one, upkeep of the buildings appears reasonably necessary to the accomplishment of the goals of the ordinance. . . The fact that an owner may incidentally be required to make out-of-pocket expenditures in order to remain in compliance with an ordinance does not per se render that ordinance a taking. In the interest of safety, it would seem that an ordinance might reasonably require buildings to have fire sprinklers or to provide emergency facilities for exits and light. In pursuit of health, provisions for plumbing or sewage disposal might be demanded. Compliance could well require owners to spend money. Yet, if the purpose be legitimate and the means reasonable consistent with the objective, the ordinance can withstand a frontal attack of invalidity. Does a local preservation commission have the authority to regulate property owned by a county or state? In Mayor and Aldermen of City of Annapolis v. Anne Arundel County, 316 A.2d 807 (Md. 1974), a Maryland court held that a local historic preservation commission had jurisdiction over a county-owned structure and could refuse to issue a demolition permit: (T)o accomplish the primary purposes of historic area zoning, it is necessary that the exterior of the building having historic or architectural value be preserved against destruction or substantial impairment by every one, whether a private citizen or a governmental body. The power of a local preservation commission to regulate county-owned property may vary from state to state. A still more difficult question is whether a local historic preservation commission may regulate state-owned property. The answer to this question is far less certain, though courts in both Washington and New Mexico have suggested that it is not an impossible power for a local commission to have. State of Washington v. City of Seattle, 615 P.2d 461 (Wash. 1980); City of Santa Fe v. Armijo, 634 P.2d 685 (N.M. 1981). May a vacant lot be included within a local historic district? See A-S-P Associates v. City of Raleigh, 258 S.E.2d 444 (N.C. 1979), for a case upholding inclusion of a vacant lot on the edge of a historic district. How can a commission respond to an owner who makes a "hardship" argument? A District of Columbia court stated in 900 G Street Associates v. Department of Housing and Community Development, 430 A.2d 1387 (1981): 8 The basic question presented in this case is: at what juncture does the diminishment in value allegedly resulting from the governmental restriction on the use of property constitute an "unreasonable economic hardship" to the owner, which is here synonymous with an unconstitutional "taking"? . . . (I)f there is a reasonable alternative economic use for the property after the imposition of the restriction on that property, there is no taking, and hence no unreasonable economic hardship to the owners, no matter how diminished the property may be in cash value and no matter if "higher" or "more beneficial" uses of the property have been proscribed. What about the owner who ignores or is unaware of the preservation commission? Not infrequently, an owner will attempt to argue that he was unaware that his property was located in a historic district or will simply ignore the terms of a certificate of appropriateness. Cases in both Maryland and Massachusetts indicate that courts will take an extremely unsympathetic attitude toward such violations of a local historic preservation program. In Faulkner v. Town of Chestertown, 428 A.2d 879 (Md. 1981), a property owner applied for a permit to install vinyl siding and obtained a permit which specified "no trim to be covered." The owner proceeded to cover four second-story windows on the front of his building. The court upheld a lower court order that the siding should be removed from the windows: In plain language what the ordinance and the Act are saying is that if one proposes to do anything to a building within a historic district which will involve changes to the exterior appearance of the structure visible from a street or alley in the district, then one must- obtain a permit. That is so plain we see no reason why people of ordinary intelligences would be unable to comprehend the meaning of the Act and the ordinance. In a more recent Massachusetts trial court opinion, Chase F. Parker, Trustee v. Beacon Hill Architectural Commission (No. 80370, Suffolk County Superior Court, decided June 21, 1988), a court found that: (T)he facade of 31 Brimmer Street stands in violation of the Beacon Hill Act, with respect to included features which are not specified in the approved plans, and with respect to features specified in the approved plans which have been omitted from the facade. The court ordered an owner who had added an extra floor to his building after permission to do so had been repeatedly denied by the Beacon Hill preservation commission to correct all outstanding violations . . . and further orders that all construction involving the facade of 31 Brim mer Street be done in accordance with the Commission's decision.... Will a Decision From Another State Convince a Court in Our State? It is important to remember that historic preservation litigation has not occurred in all states, and that in some states the preservation cases which have been decided have not involved local preservation ordinances. For this reason, a commission in a state with no court decisions in cases involving commissions should not assume that decisions from other states are automatically applicable. 9 Despite this caveat, the strong body of established precedents makes it unlikely that any court would find local historic preservation ordinances entirely impermissible in a particular state, though an ordinance not in conformity with state enabling legislation would be subject to challenge. Some Practical Suggestions Because the number of court decisions involving local preservation commissions is continuing to grow, a preservation commission should work with staff in the city attorney's office to create a local file of court decisions involving the powers of preservation commissions. Such a file can be helpful to commission members and may save city legal staff valuable time should a challenge to the commission's power ever be made in court. The chairman of a local preservation commission should try to become generally familiar with the principles argued and decided in these cases, and may want to bring this information to the attention of the local municipal attorney who works with the preservation commission. Some commissions distribute to commission members notebooks with pertinent materials such as copies of the local preservation ordinance, the state enabling legislation under which it was adopted and even copies of court decisions in the state involving local preservation commissions. This information can do much to reassure preservation commission members that their goals are valid so long as their actions are correct. New commission members, in particular, need to develop quickly a basic understanding of the broad issues which have been argued and decided in these cases. Some Responsible Preservation Commissions Never Go to Court It is important to note that most of the law involving local preservation commissions has been made in a handful of major cities such as New York, New Orleans and Boston. Curiously, and perhaps significantly, Charleston's Board of Architectural Review (BAR), the county's oldest preservation commission, has never made a decision that was appealed into court and resulted in a "reported" appellate court decision. Occasionally a decision has been appealed from this commission into a local trial court, but there is still no appellate court opinion in South Carolina involving a local preservation commission. This situation may be a tribute to the ability of the Charleston BAR to resolve controversial issues in a responsible manner or simply a recognition by local property owners that even when they remain personally unsatisfied by a decision of the BAR, community support for the BAR is strong. 10 Where to Look for Help If Your Commission Is Challenged In Court A number of national preservation organizations are actively monitoring court cases involving historic preservation issues. The Office of General Counsel at the National Trust for Historic Preservation maintains extensive litigation files of cases which have involved local preservation commissions. The Trust's regional and field offices are often able to put commission representatives in touch with other commissions which have dealt successfully with a particular problem. The Trust's Preservation Law Reporter (1982-present) contains a variety of case summaries, articles, and new development reports that are useful for local commissions seeking guidance in the legal area. For further information, contact: National Trust for Historic Preservation 1785 Massachusetts Avenue, N.W. Washington, D.C. 20036 (202) 673-4000 The National Center for Preservation Law issues a series of frequent newsletters called the "Preservation Law Update" which summarize court decisions involving local preservation commissions and announce significant new publications in the area of preservation law. The National Center is working with the University of Virginia Law School Library on the creation of a comprehensive national Preservation Law Collection which will include copies of hundreds of local preservation ordinances and court papers which have been filed in cases involving local preservation commissions. National Center for Preservation Law 1233 Twentieth Street, N.W. Suite #501 Washington, D.C. 20036 (202) 828-9611 The National Alliance of Preservation Commissions distributes information on the work of preservation commissions. The Alliance Review newsletter is available by subscription. For further information, contact: The National Alliance of Preservation Commissions School of Environmental Design 609 Caldwell Hall University of Georgia Athens, Georgia 30602 11 For Further Information: * Historic Preservation Law and Taxation, Boasberg, Coughlin, & Miller, Matthew Bender, 1986. * A Handbook on Historic Preservation Law, The Conservation Foundation and National Center for Preservation Law, 1983. * Federal Historic Preservation Case Law: A Special Report. Advisory Council on Historic Preservation, 1985. Available from the Advisory Council at the above address. die ALLIANCE . REVIEW41) Olgt NEWS from the NATIONAL ALLIANCE of PRESERVATION COMMISSIONS WINTER 1990 Counteracting Demolition by Neglect: Effective Regulations for Historic District Ordinances Oliver A.Pollard,III Property owners who either have been denied a demolition permit or do not wish to bother with the permit application process have avoided restrictions on the demolition of historic buildings imposed by preserva- tion ordinances by refusing to maintain regulated buildings.As a consequence of this refusal,these buildings are, in effect,demolished by neglect if they become a health or safety hazard which must be condemned by local health or building officials. Efforts to circumvent preservation ordinances through "demolition by neglect" pose a serious threat to the effectiveness of these ordinances and are a common problem for many historic district commissions. However, demolition by neglect can be prevented. I. Maintenance Requirements The principal mechanism for combatting demolition by neglect is an ordinance requiring the maintenance of historic buildings. A growing number of localities have adopted such a"minimum maintenance,""anti-neglect" or "affirmative maintenance" provision' Some of these provisions simply require maintenance or prohibit deterioration of historic buildings. This type of provision,however,may not effectively counteract demolition by neglect if it does not adequately define proper maintenance and repair. Other anti-neglect provisions require historic buildings to be maintained in accordance with local building or housing codes. These provisions may not be sufficient to combat demolition by neglect,either because historic resources could be lost before a building reaches a point of decrepitude at which the building code mandates repair or the building code requirements might not be consonant with the character of historic properties? However,a maintenance provision tied to a local building code can be effective if the local code parallels or incorporates certain provisions of the National Existing Structures Code(NESC).Among other things,the NESC requires exterior walls,roofs, stairs, porches and window and •) )1,09411( door frames to be maintained in a weatherproof condition. The NESC -� even requires maintenance of cornices,entablatures, wall facings and similar decorative features. * fla Other ordinances go considerably further than statinga general require- ment of maintenance and,like the NESC,specify conditions of deterio- ,^• W I ration which are not permitted or defects which must be repaired(see • T\,`,r rf„? ' following article page 3). Some of these ordinances also contain a catch- I►P all provision forbidding deterioration which adversely affects the over- all character of either the building or the district in which the building is located. 1-10. Tie ALLIANCE REVIEW Executive Directors Message Continued from page 1 II. Enforcement of Maintenance Requirements This issue is devoted to a menace that most commis- Anti-neglect ordinances must provide for enforcement sions,design review boards and local planning/com- of the mandates they contain. A strongly-worded munity development professionals find very difficult ordinance may fail to counteract demolition by neglect to deal with effectively:demolition by neglect.The area if its enforcement provisions are insufficient. The of"regulated"preventative maintenance and"demo- ordinance should specify procedures for notice to a lition by neglect"are tough nuts to crack.We hope that property owner of a violation of its requirements,the we have begun to shed some light on the issue and time period given the owner to remedy a violation,and encourage you to let us know about your successes and the consequences of failure to remedy a violation. failures so that we can profile them in future issues of The AIliance Review. Art anti-neglect ordinance is likely to be ignored if the fines for violating its provisions are too low since the There have been some very important, recent "land- fines may be viewed as a small part of a project's cost. mark decisions"involving St.Bartholomew's Church On the other hand,criminal sanctions are often equally in New York and the Margaret Mitchell House in ineffective since judges are reluctant to impose such Atlanta.In both cases,preservation,especially a local sanctions for failure to maintain a building. Increasing government's duty to protect landmarks,was upheld. fines for violations and assessing a separate fine for An expert summary of the New York case appears in each day of violation are two ways of addressing this Preservation Law Update,number 45 from the National problem. However,state law may severely limit locali- Center for Preservation Law. The Atlanta case was ties'civil penalty authority. covered by the National Trust's Preservation law Re- porter,'TLR Advance",(January 1990).I urge all of our Court orders compelling property owners to make members to read more about these decisions. necessary repairs are another important enforcement tool. Property owners are more likely to maintain a The Alliance is happy to welcome three new members building if a court has ordered them to do so. Also,if to our hardworking Board of Directors:Mary Turkel, the landowner does not comply with a court order,the Director of the Providence (Rhode Island) Historic court may be persuaded to take more serious measures District Commission;Ron Emrich,Senior Planner for such as establishing a receivership overseen by a third the Dallas(Texas)Landmark Commission;Nore Win- party authorized to rent the property to pay for the ter,Urban Design and Historic Preservation Consult- necessary repairs. ant in Boulder,Colorado.We look forward to working with these new directors and encourage you to contact Another alternative is fora locality to acquire a historic them if they can provide assistance to your commis- building which remains in a substantially deteriorated sion. or deteriorating condition. Although limited by the availability of funds,the possibility of acquisition can Finally, it is with great appreciation that we say "so be a useful tool in combatting demolition by neglect. long" to our editor, Lisa Raflo. Lisa has given The Alliance Review a new look,style and zest.We will miss A final,and perhaps the most effective,enforcement her talents and wish her the best of luck in her new mechanism is for a locality to make the necessary work with the Georgia SHPO.We have replaced Lisa's repairs and then either recover the cost in a private editorial talents with Bill Nicholson who is already action or attach a lien on the property in the amount of assembling our Spring issue. the repairs. If permitted by state law,a maintenance ordinance should authorize use of this mechanism See you in the spring, since it either prompts compliance or prevents demo- lition by neglect in the event of noncompliance. Pratt Cassity, Acting Executive Director III. Challenges to the Legality of Maintenance Re- quirements Courts consistently recognize historic preservation as a legitimate governmental purpose and minimum maintenance provisions as a valid means rationally related to achieving this purpose. The most significant issue regarding the legality of these provisions is whether their requirements violate constitutional pro- 1-11. WINTER 1990 hibitions of taking private property for a public pur- DEMOLITION BY NEGLECT— pose without payment of just compensation. TWO SOLUTIONS Courts have consistently held that the mere fact that an Two cities in Virginia have regulation codes as follows: ordinance requires a landowner to make certain expen- ditures does not render it a taking.However,a mini- mum maintenance provision will be found to be a Charlottesville (Va Code,Art.XVI,Section 31-141) provi- takingif it is"undulyoppressive."3 Most courts reject Charlottesville has an affirmative maintenance PP "3 sion which prohibits the owner or the person in charge takings challenges to preservation ordinances as long as renovation expenses and other financial considera- of regulated property from allowing deterioration tions,including the financial capacity of the owner,do including but not limited to: not preclude adapting the property for some reason- able economic use• a. The deterioration of exterior walls or other vertical supports; A court is most likely to find a taking in the application b. The deterioration of roofs or other horizontal of a maintenance requirement if the owner of the members; property lacks adequate financial resources to pay for c The deterioration of external chimneys; the necessary maintenance or if the cost of maintenance d. tersorThe eriorationorcrumblingofexteriorplas- exceeds the market value of the property. Asa result, or mortar; P tywaterproofing vewate e. The ineffective of exterior walls, a minimum maintenance ordinance should contain some provision for hardship cases. A preservation roofs,and foundations,including broken win- commission should be aware,among other things,of dows or doors; the financial resources and nature (individual, busi- f The peeling of paint,rotting,holes,and other ness or a nonprofit organiza tion)of the property owner, forms of decay; the cost of repairs,the current value of the property and g The lack of maintenance of surrounding envi- the potential uses of the property if it is called upon to ronment,e.g.,fences, ga tes,sidewalks,steps, review a hardship case.If a hardship claim appears to signs,accessory structures,and landscaping; be well-founded,the locality should either acquire the h The deterioration of any feature so as to create property,provide some form of financial assistance to or permit the creation or any hazardous or un- the owner to ensure that the necessary repairs can be safe condition or conditions. made,or exempt the owner from the regulation. This ordinance is more effective in preventing demoli- TV. Conclusion tion by neglect since it may require repairs at an earlier Demolition by neglect isa serious threat both to historic stage in the deterioration process. resources and to the integrity and effectiveness of local preservation efforts. To counter this threat,localities Petersburg (Va.Code,Art.35,Section 16) The anti-neglect provision in the code of Petersburg is should adopt minimum maintenanceordinances.These cast in terms of the repairs which can be ordered rather ordinances can be an effective and legally defensible response to the problem of demolition by neglect if than the conditions prohibited: they specify prohibited conditions of deterioration, provide adequate enforcement procedures,and con- "The owner ofanybuildingor structure,which tain some mechanism for addressing cases of extreme is located within a historic area, shall keep hardship. such structure properly maintained and re- paired..." 1. State enabling legislation should be examined to determine This ordinance requires prevention of only serious whether a locality has express or implied authority to regulate the structural defects threatening permanent damage to a maintenance of buildings in a historic district. structure; a requirement that allows considerable 2. A state building code may prevent a locality from adopting more damage to occur before repairs can be mandated. stringent maintenance regulations than it contains. 3. Maher a.City of New Orleans,516 F.2d 1051,1067(Sth Cir.1975). While the Petersburg maintenance requirement is for- mulated in terms of the structure itself, the Charlot- 4. Sae,e.g.,Buttniek v.City of Seattle,105 Wash.2d 857,719 P.2d 93 tesville ordinance goes further, forbidding deteriora- (1980. tion which has a"detrimental effect upon the character of the district as a whole or the life and character of the landmark." This language prohibits harm not only to 1-12. The ALLIANCE REVIEW the structure itself but to the character of the structure. Moreover,prohibiting harm not only to the structure . itself but to the character of the district is more in i • e -a . • keeping with a "tout ensemble" rationale of historic districts which recognizes the importance of the inter- ''. ' :'' relation between structures in the area.(See,City of New �.. .11 , Y _. . Orleans v.Pergament,198 La.852,5 So.2d 129(1941). Oliver A.Pollard,III is Assistant City Attorney for the City L ,`i_. ` (� '` '• "� •-I :, of Alexandria, Virginia. . ' 14 i '• 1- -- ' i t• • r$. - i.4 •• Z' i j • The Vieux Carre'DBN Clause r Protecting the French Quarter ti HilarySomerville Irvin J . ' = a • Although the push for the legal protection of New „ i- • - K Orleans Vieux Carre' (French Quarter) began in the - c�~* r "`'"- ' ~_" 1920s,resulting in the creation of a short-lived,purely " X advisory commission,the existing Vieux Carre'Corn- �- _ mission dates from 1936 when an amendment to the Louisiana Constitution enabled the creation of a body 636-40 Royal Street to oversee "the preservation of such buildings in the Vieux Carre Section of the Cityof New Orleans,as...shall The process by which a building is officially cited for be deemed to have architectural and historical value." DBN involves several stages. First,upon the determi- Then in 1937, the New Orleans Commission Council nation of neglect by a Staff Building Inspector, the passed ordinances creating and empowering the Vieux Carre'Commission sends a violation letter to the Commission,and soon afterward the first Vieux Carre' property owner and/or the lessee(business owner)in Commission convened. which the building's defects are outlined. If the notice has not been complied with before thirty days (i.e., Over the past fifty years,the Commission has remained contacting the Staff and applying for the necessary an evolving institution—an ongoing experiment in permits),the Staff is authorized to have the case prose- municipal preservation—and its enforcement respon- cuted in Municipal Court,which can only fine viola- sibili ties,as stated in Chapter 65 of the Municipal Code, tors. Although the great majority of the DBN cases have been substantially broadened. For example,in never go to trial,there are instances in which owners 1958 an addition was made to address the serious refuse to comply. Such extensive DBN cases may be problem of owners who wilfully allow the gradual referred to the Vieux Carre'Commission Attorney for deterioration of their properties. Today this"demoli- prosecution in the Civil District Court,which can order tion by neglect"(DBN)clause has become an effective corrective work. The Vieux Carre'Commission Staff preservation tool in the hands of the Vieux Carre' then through the Court's order directs the owner in Commission. correcting the violations. The Vieux Carre' DBN clause names a number of Two recent long-standing demolition by neglect cases specific criteria to be used in assessing demolition by best illustrate the process.Constructed soon after1794, neglect. These criteria include structural deficiencies 636-40 Royal Street is one of the most important land- such as deteriorated or inadequate foundations and marks from New Orleans' Spanish Colonial period. flooring,deteriorated or defective ceilings and roofs; Located in a prime commercial area of the Quarter,this lack of routine maintenance such as painting or loose building received no routine maintenance for at least plaster;and any other conditions such as broken win- thirty years until 1988 when the Commission took the dows and doors that render the building structurally case to the Civil District Court.This Court ordered that unsafe or not properly watertight. the structural defects be addressed,and to date most of these have been corrected. 1-13. WINTER 1990 Beginning int the 1920s, a circa Creole style NEWS YOU CAN U S E townhouse at 525 St.t. Louis Street wasas used for many years as a wholesale fish processing plant. It was later inherited by a series of owners and abandoned. In NOMINATIONS SOUGHT FOR 1990 1989,this case finally reached the Civil District Court. PRESERVATION HONOR AWARDS Subsequently new owners, who will restore it as a private dwelling, purchased the property—a happy Preservation Commissions interested in honoring outcome for a very neglected building. achievements in their community are encouraged to nominate them for the National Trust for Historic Hilary Somerville Irvin is Senior Architectural Historian for Preservation's 1990 Preservation Honor Awards.The the Vieux Carre'Commission. awards are the nation's highest recognition of indi- viduals and organizations active in the preservation, rehabilitation,restorationorinterpretationofAmerica's COMMISSION FOCUS architectural and maritime heritage.Nominations also are sought to honor outstanding service by public Newport,Kentucky is in the final stages of designating officials and public agencies. Up to 15 Preservation a local historic district of over 1,000 buildings. Teresa Honor Awards may be given each year. To receive a Brum, Historic Preservation Officer for the city con- nomination brochure contact Katherine Adams, the tacted Pratt Cassity,NAPC Executive Director with the Honor Awards Program Coordinator at (202) 673- following question: 4165. Nominations must be postmarked by May 1, 1990. The Preservation Honor Awards will be pre- (Brum) In the Certificate of Appropriateness (COA) rented at the Trust's annual National Preservation process,the building owner in the historic district goes Conference.The 1990 meeting will be held October 17- through an application procedure similar to the proce- 21 in Charleston,S.C. dure to obtain a building permit. Given that a fee is charged for a building permit, should a fee also be charged for a COA? FIRE SAFETY CONCERNS IN HISTORIC BUILDINGS (Cassity) Nationally less than half of all commissions The Advisory Council on Historic Preservation and the charge a fee. Although comprehensive statistics are General Services Administration have jointly issued a not available,it is believed that the larger,well-estab- new publication, Fire Safety Retrofitting in Historic lished commissions do charge a fee. Fees can range Buildings. This publication recommends specific ex- from $2,$3,or$5 to$10. Often commissions do not amples of methods for retrofitting fire safety systems charge a fee because so many are new,and establishing into historic buildings. For more information contact: good public relations is important. Charging a fee Catherine Corder(202)786-0503. could have an even greater negative impact than very controversial commission decisions. If the revenue PROTECTING AMERICA'S HISTORIC COUNTRY- genera ted by a COA fee is essential for a city,consider SIDE one of the following: This National Trust publication documents historic • disguising the fee by raising the building preservation'sactual and potential contribution to rural permit fee. America. It outlines the importance of our rural heri- • implementing a phased fee plan (waiting tage and provides information on public policies and until the commission has been in operation for rural preservation activities. A comprehensive re- a year or two before charging a fee). source directory of preservation and conservation • setting the fee so low that it just covers proc- organizations is included. Send$2.50(includes post- essing. age and handling) to the National Trust for Historic Preservation, 1785 Massachusetts Ave.,N.W.,Wash- ington,D.C.20036,Attn:Rural Program. The Alliance Review wants to hear from you. In 350 words or less,send us an article on what your commis- ZONING AND HISTORIC PRESERVATION sion has done or is doing that would be helpful for others. Send to: Managing Editor,Alliance Review, The National Park Service has developed a new issue of c/o G.S.U.History Dept.,University Plaza,Atlanta,Ga Local Preservation entitled,"Zoning and Historic Pres- 30303. ervation." This issue explains zoning in laymen's 1-14. PRESERVATION • • information One in a series of Historic Preservation Information Booklets A Lavperson's ,�_ Guide to Historic , ir . Preservation Law: A SURVEY OF FEDERAL,STATE, ,_____- AND LOCAL LAWS GOVERNING - -- - --- -. • HISTORIC RESOURCE PROTECTIONby Julia H.Miller ( _ J-• 4,- -- • - Pr W i t �• .v '... - -'. i . k idjam- we -..... `h. Htoric preservation and the laws t .. _ _-= —have been surprising but comfortable Y.�� i•- k ', Y. �� `i<:. edfellows for well over a century. •- - •_ n,• Tema, --i hen the words "historic preserva- �� -: Lion'. are pronounced,however, =-" .-.m x ' i I _• - — - visions of stately houses or monumen- tal buildings rather than preservation - Y' , E "r " " ordinances or easement agreements .ta i= '.4` 1^.1111* - I fir. g ,:• - _: ;ti:. " -' ?6� , readily come to mind. Most people �1 • . L :t• =e + i •. �—R. are unaware of the complex array of • :=„,, ,�, ' 4, 1 .`'��' `- ( W. legal tools that generally lie behind _ �., Z: € - E i �` '-,-��""' a particular site's rehabilitation or =� � i� 1 z _, ' �_�L-` S preservation. ` ': _ �`ti�:-.z.tc`:�`',�'S• Important laws exist at the federal, ,� `t� t stare, and local level that require • - ��i • . ,.:_/. ,t ' 17. -- � preservation in some cases and - - ��'. ., ti ' _ ":-• =- encourage preservation in others. . Behind these laws rest public policy A. considerations that attempt to balance ' ' ' ' ` the need to preserve important • Lh eisions about local historic resources %', ell take place at an hail In addition to 4, � :'-`*=tea: r[l(/r7:ita//ding local law,preservationists - , _ - . _ ~ ' is ulI/(/be aware of federal and stale/a `' • i. e� —;:at help preserve historic resources. -, - y,•.: t Via; •. • National Trust for Historic Preservation resources with other governmental Defining the list of historic resources at the objectives such as economic develop- national level. The National Register ment and that also address the rights Historic Resource: includes districts, sites,buildings, of individual property owners who Property Identification structures, and other objects that arc may be affected. Some laws limit or significant in American history, arch restrict changes to historic property and Listing tecture,archeology. engineering. an while others seek to place preserva- culture. It includes not just nationally tion on equal footing with alternative The first step in understanding significant resources, but also those courses or action,such as demolition preservation laws is to determine having state or local significance. and new construction. what properties are subject to protec- tion. Historic resources include a Initially designed as a planning tool Historic preservation laws are impor- wide range of properties ranging from for federal agencies, the National tant tools that can shape, modify. buildings and other structures to Register's primary purpose is to iden- strengthen,or otherwise improve archeological or culturally significant tifv the historical and cultural preservation programs. A basic under- sites. In most cases, resources are resources of our nation. While listing standing of the laws affecting historic identified through a formal process in the National Register is primarily preservation will help you identify the that lists buildings.structures. dis- honorific, the National Register plays full range of options available to pro- tricts,objects. and sites in a historic a central role in the federal regulatory tect a historic building or archeologi- register or inventory based on specific protection scheme, enables property cal site. It will help you evaluate the criteria. owners to qualify for federal tax bene- strengths and weaknesses of existing fits,and in some cases may be used as laws in your community and to under- Historic resources(sometimes called the basis for listing at the state and stand the limits of those laws when "heritage" or "cultural" resources) local level. fully implemented. Familiarity with may be listed in any of three types of preservation law will also help you registers: The National Register of The National Register of Historic respond to individual threats as they Historic Places,a state register of his- Places is maintained by,the Secretary arise and to develop strategies on how toric places,or a local listing of his- of the Interior through the National best to avoid or reduce the likelihood tonic landmarks and districts. To be Park Service. The Park Service's for such threats in the future. eligible for listing, properties must Keeper of the National Register is meet certain statutory criteria gener- responsible for listing and determin— This booklet explains the laws and ally based on historical,architectural, ing eligibility for listing in the legal principles that protect historic archeological,or cultural significance. National Register, although the desig- resources. It provides a basic nation process usually begins with the overview of the laws governing his- NATIONAL REGISTER OF state historic preservation office. A tonic resources at the federal, state, HISTORIC PLACES property owner may prevent the and local level,along with a number inclusion of his or her property in the of other laws that can either enhance Established under the Historic Sites National Register by formally object- or restrict historic resource protection Act of 1935, 16 U.S.C. §§461 et.seq., ing to the listing. This will not pre- efforts. It also lists resources on and expanded by the National vent the application of laws affecting preservation law and related issues Historic Preservation Act of 1966,as historic properties that are eligible for designed to help you find additional amended, 16 U.S.C. §§470a et.seq., information and advice. the National Register is the official National Register Criteria .:` -. . (a)that are associated with events that have made a signifi- cant contribution to the broad patterns of our history;or The National Park Service applies specific criteria to evaluate property nominated for inclusion in the National (b)that are associated with the lives of persons significant Register of Historic Places. These criteria,codified at 36 in our past; C.F.R. § 60.4, often serve as the basis for listing in state and local registers as well. (c)that embody the distinctive characteristics of a type, period, or method of construction,or that represent the National Register Criteria for evaluation. The quality of work of a master,or that possess high artistic values, or that significance in American history,architecture,archeology, represent a significant and distinguishable entity whose engineering,and culture is present in districts,sites, build- components may lack individual distinction;or ings,structures.and objects that possess integrity of loca- tion, design.setting, materials.workmanship. feeling,and (d)that have yielded,or may be likely to yield, informatio association and important in prehistory or history. © .-1 La person:c Guide to Historic Preservation Law inclusion in the National Register, Regulatory Approaches office. Statewide and/or local non- such as the Section 106 review profit, historic preservation organiza- srocess, discussed later. to Historic Resource tions are often equipped to provide Protection detailed assistance. National Trust I•he National Register includes a spe- regional offices, listed on the back cial category of properties, known as Historic resources may be protected cover of this booklet,can also provide National Historic Landmarks from both governmental and private these contacts. i NHLs). These properties are gener- actions at the federal,state,and local ally of exceptional value to the nation level. The nature of the restrictions THE REGULATION OF as a whole. As with other properties and degree of regulation vary depend GOVERNMENTAL ACTIONS listed in the National Register, NHL AFFECTING HISTORIC RESOURCES ing upon the players and, in some designation is primarily honorific. cases, the type of property being reb National Historic Landmarks, how- ulated. In general, historic resource Protection of historic resources from ever. may receive a higher degree of harmful governmental actions is gen- laws governing governmental actions protection from federal actions. do not require preservation every erall•accomplished through what are time. Rather,they provide a process often generically called environmental The criteria for designation, estab- for balancing presery ation concerns protection laws. These laws do not fished by the Department of the with other governmental objectives. require that federal, state,or local gov- Interior,are set forth at 36 C.F.R.Part In contrast,historic preservation laws ernments preserve historic resources 60. Regulations governing National governing private actions generally where other competing governmental Historic Landmarks are codified at 36 seek CO protect the historic resource interests may be at stake. Rather they C.P.R.Part 65. The National Park require governmental agencies to by regulating alterations, demolitions, Service publishes an annual cumula- or other changes that could destroy or comply with specific procedures to rive listing of National Register prop- impair significant features of the ensure that the effects of their actions erties in the Federal Register each year. are fully considered before embarking resource. These laws, typically enacted as local historic preservation on otherwise harmful activity. STATE REGISTERS ordinances, do not prohibit change Governmental agencies are generally altogether, but rather establish a directed to identify historic resources \lany states maintain their own regis- mechanism to ensure that the and weigh and assess competing fac- ter of historic places,which may be tors, including resource protection integrity of the resource is not com- more or less inclusive than the along with other environmental and promised. National Register of Historic Places. socio-economic concerns, in deciding As with the National Register, listing Finally,a few laws,generally enacted how and whether a project or activity in a state register tends to be hon- should proceed. at the federal level,do not fit neatly orific. In some cases, however, it may into either category of resource pro- [rigger regulatory protection or govern tection laws. These laws are While most laws falling within this whether a property owner may qua!- category are purely procedural in designed to address specific types of ifv for favorable tax treatment. nature,(meaning that governmental actions governing specific types of resources. Archeological protection bodies must follow a specific process LOCALLY DESIGNATED LANDMARKS laws,Native American cultural to fulfill their statutory obligation), AND HISTORIC DISTRICTS resource laws,and laws protecting his- there are a few laws, enacted at both toric shipwrecks fall into this category. the federal and state level, that afford Properties may also be designated as historic resources substantive protec- individual landmarks or as contributing Specific information about a particular tion(meaning that governmental bod- structures within a historic district law generally can be obtained from ies must take affirmative steps to pursuant to a local historic preserva- the federal,state,or local agency protect the resource). These laws don ordinance. Unlike listing in the require agencies CO avoid harming his- directly responsible for the law's National Register, designation under implementation. Besides the National tone resources unless there is no alter- local ordinances often affects a prop- Park Service and the Advisory Council native,and then,only if the harm is erry owner's ability to change his or on Historic Preservation, it may be minimized. her property in ways that would harm useful to contact your state historic its historic or architectural character. Public participation is essential to the preservation office—the state agency Sometimes properties designated responsible for historic preservation enforcement of laws protecting historic under local ordinances may be eligi- resources from governmental actions. matters—or your local preservation or ble for significant tax benefits, such planning commission. Telephone Many statutes give individuals and as reductions in local property taxes. numbers can usually be obtained by organizations the right to sue and the contacting your governor's or mayor's ability to recover attorneys'fees. Regulatory Approaches to Historic Resource Protection II Federal Preservation Laws The NHPA can be broken down into ing is available) is responsible for three major components. identifying and nominating properties Three major laws protect historic for listing in the National Register of resources from federal government (1) It authorizes the expansion and Historic Places and working with f actions: the National Historic maintenance of the National eral agencies in implementing the Preservation Act, 16 U.S.C. §§470 et. Register of Historic Places, the Section 106 review process. State his- seq.;the National Environmental official federal listing of"districts, toric preservation offices are also Policy Act,42 U.S.C. §§4321-4347: sites, buildings,structures, and responsible for administering a fed- and Section 4(f)of the Department of objects significant in American eral assistance program for historic Transportation Act,49 U.S.C. §303. history,architecture.archeology, preservation projects and certifying Other statutes, more narrow in scope, engineering, and culture." local governments who wish to include the Antiquities Act of 1906, assume specific responsibilities under 16 U.S.C. §§431-433, the Historic (2) It establishes a protective review the NHPA. For example,a certified Sites Act of 1935, 16 U.S.C. §§461- process to ensure that federal local government may nominate prop- 467,and the Surface Mining Control agencies consider the effects of erty for listing in the National and Reclamation Act,30 U.S.C. § federally licensed,assisted, regu- Register. To be certified, local gov- 1272(e). In addition, a number of lated.or funded activities on his- ernments must meet certain criteria federal statutes relate only to specific toric properties listed or eligible such as establishing a preservation resources. for listing in the National commission and operating a preserva- Register. tion program that designates and pro- The National Historic Preservation Act tects historic properties. (3) It requires federal agencies to The National Historic Preservation locate, inventory,and nominate The NHPA establishes a Historic Act of 1966, 16 U.S.C. §§470a to properties to the National Preservation Fund in the U.S. 470w-6,(NHPA),amended in 1980, Register,assume responsibility Treasury. Money from this fund is and again in 1992,is the key federal for preserving historic properties, made available to the states through law that establishes a federal policy and use historic buildings to "the annual appropriations by Congress. for the preservation of cultural and maximum extent possible." Up to 10 percent of a state's allocation historic resources in the United may be transferred to certified local States. The law establishes a national The NHPA creates a specific role for governments to fund local historic preservation program and a system of state and local governments,Native preservation projects. procedural protections,which encour- American tribes,and Native Hawaiian age both the identification and pro- organizations in carrying out the Act's The Section 106 review process is tection of historic resources at the specific directives. A state electing to the regulatory heart of the NHPA. federal level,and indirectly,at the establish a state historic preservation Codified at 16 U.S.C. §470f,Section state and local level. program(for which federal grant fund- 106 requires that federal agencies Principal Federal Historic Preservation Laws at a Glance Section 106 of the National Section 4(f)of the Department Notional Environmental Historic Preservation Act of Transportation Act Policy Act Citations 16 USC§470f 49 USC§303 42 USC§4332 36 CFR Part 800 23 CFR§771.135 40 CFR Part 1500 Properties Protected Nat'l Register listed or eligible National,state,or local historic sites; All environmental resources, parks;wildlife refuges;recreation areas including cultural&historic Triggering Federal Action "Undertaking" "Approval"of transportation project "Major federal action" Effect Any"effect" "Use"or"substantially impair;" "Significantly affecting the quality constructive use of the human environment" Standard for Consideration "Take into account" Avoid unless not feasible&prudent Disclose&consider impacts Procedure v.Substance Combination Substantive Procedural (procedure plus MOA) Mechanism for Compliance Negotiation/consultation;MOA 4(f)determination or ES chapter EIS or EA;public hearings Involvement of ACHP/SHPO at the table with DOT has sole authority; EPA review; Other Agencies veto over some decisions Interior comments CEQ referral 10 .1 Lmperson:c Guide to Historic Preservation Law consider the effects of their actions in the National Register will be a plaque in their stead. If other his- on historic resources before funding, adversely affected by proposed toric resources, besides those being licensing,or otherwise proceeding "undertakings," and if so, provides demolished,will be adversely --ith projects that may affect historic the Advisory Council on Historic affected, the agency may agree to =sources listed in,or eligible for list- Preservation,an independent federal redesign the project so that it is more ing in the National Register of agency,with an opportunity to com- in keeping with the scale and style of Historic Places. ment. The Section 106 review the remaining resources. process may encompass the identifi- The kinds of actions requiring cation of protected resources, deter- Regulations implementing Section Section 106 review are broad and minations as to adverse effects,and 106 have been promulgated by the inclusive and may affect historic consultation with the appropriate Advisory Council on Historic resources either directly or indirectly. state historic preservation officer and Preservation. These regulations set For example,a federal agency may be the Advisory Council about ways to forth the specific procedures that fed- required to perform a Section 106 avoid or reduce those effects. In the eral agencies must follow to satisfy review before approving funds to vast majority of cases,a legally bind- the requirements of Section 106. The build a new convention center in or ing Memorandum of Agreement, is regulations are published at 36 C.F.R. near a historic district or before issu- executed by the consulting parties, Part 800. ing a permit to fill in a wetlands area setting forth specific protective mea- that would allow the construction of sures that must be taken. National Environmental Policy Act new houses that could harm the his- toric character of a nearby village. While Section 106 is an effective tool Although the National Environmental While a federal agency may delegate in focusing attention on federal Policy Act 42 U.S.C. §§4321-4347, certain Section 106 responsibilities to agency actions affecting historic (NEPA), is primarily viewed as an a state or local government,the fed- resources,it does not prevent federal environmental law,it governs federal eral agency is ultimately responsible agencies from taking actions that ulti- agency actions affecting not only nat- and may be held legally accountable mateh'harm historic resources. Section ural resources, but also cultural for Section 106 compliance. 106 only requires that federal agen- resources, including properties listed cies comply with certain procedural in the National Register of Historic The statutory provision establishing requirements before issuing a permit Places. NEPA states,in relevant part: he Section 106 review process is rela- or funding a project affecting historic lively succinct. It states: resources. [I]t is the continuing responsibility of the Federal Government to use The head of any Federal agency In other words,Section 106 will not all practical means,consistent with having direct or indirect jurisdiction prevent a federal agency from fund- other essential considerations of over a proposed Federal or federally ing a housing project that entails national policy, to. .. (2)assure for assisted undertaking in any State demolishing a complex of historic all Americans safe,healthful,pro- and the head of any Federal depart- buildings. It does, however, require ductive,and esthetically and cultur- ment or independent agency having the agency to identify historic ally pleasing surroundings, . . . [and] authority to license any undertaking resources and explore alternative (4)preserve important historic,cultural, shall, prior to the approval of the measures,in consultation with the and natural aspects of our national expenditure of any Federal funds state historic preservation officer, that heritage,and maintain,wherever on the undertaking or prior to the may mitigate or avoid whatever harm possible,an environment which issuance of any license,as the case the project would have on the build- supports diversity and variety of may be, take into account the effect ings. The agency, for example, may individual choice. of the undertaking on any district, be required to address alternatives site, building,structure,or object such as moving the entire housing To ensure that environmental con- that is included in or eligible for project to a different site or shifting cerns are disclosed and considered CO inclusion in the National Register. the location of the project on the pro- the fullest extent possible,NEPA The head of such Federal agency posed site so that an archeological directs federal agencies to "include in shall afford the Advisory Council of resource or historic structure can be every recommendation or report on Historic Preservation established preserved. proposals for legislation and other under§§470i-470v of this title a major federal actions significantly reasonable opportunity to comment In cases where alternatives to demoli- affecting the quality of the human with regard to such undertaking. tion are not options,the agency may environment,a detailed statement by agree to adopt certain measures that the responsible official on the environ- t'his provision, in effect, directs fed- would mitigate the harm identified. mental impact of the proposed oral agencies CO determine whether For example,an agency may docu- action," including any "adverse envi- any properties listed or eligible for listing ment the historic buildings and erect ronmental effects that cannot be Regulatory Approaches to Historic Resource Protection avoided" and any "alternatives to the Nonetheless,because of slight differ- of a proposed highway on the eco- proposed action." Federal agencies ences in the scope of protection nomic vitality of a nearby historic dis- must consult with other relevant agen- afforded, in certain situations only one trict that would isolate the district cies regarding the proposed action and of these laws may be invoked. While from nearby commercial activity make copies of their environmental NEPA applies to all historic and cul- would probably require assessment statements available to the President, tural properties. it regulates only under Section 4(f). (The provision has the Council on Environmental Quality "major federal actions," such as the been called "Section 4(f)" since its (CEQ),and the public. adoption of federal policies and pro- initial adoption in 1966 as Section 4(f) grams or the approval of.federally of the Department of Transportation Depending upon the magnitude of funded, licensed, or permitted pro- Act. Pub. L. No. 89-670, 80 Stat.931, the impact,agency responsibilities jects. In contrast, the NHPA only 933 (1966).) under NEPA may be achieved governs properties listed or eligible through the preparation of an for listing in the National Register of Section 4(f)applies to all transporta- Environmental Assessment,or a Historic Places. The NHPA, how- tion agencies within the U.S. more-detailed Environmental Impact ever,applies to a broader range of fed- Department of Transportation, • Statement,where adverse effects eral agency actions and impacts. including the Federal Highway have been identified. Regulations Administration (FHWA),which funds implementing NEPA,codified at 40 Section 4(f)of the Department of highway and bridge projects;the C.F.R.Part 1500,set forth the process Transportation Act Federal Transit Administration(FTA); • for conducting an environmental the Federal Aviation Administration review,the specific documents that Section 4(f)is considered the strongest (FAA);and the Coast Guard,which must be prepared,as well as public preservation law at the federal level. owns or operates many historic light- notice requirements and timing for Codified at 49 U.S.C. §303,it pro- houses and often has regulatory public review and comment. vides substantive protection for his- authority affecting bridges. toric properties by prohibiting federal In many cases,the statutory protec- approval or funding of transportation Although statutory protections under tions under NEPA and the NHPA projects that require the "use" of any the NHPA,NEPA and Section 4(f) overlap. As with Section 106 of the historic site,public park.recreation overlap, there are important distinc- NHPA, NEPA governs federal agency area,or wildlife refuge,unless(1)there tions. Unlike Section 106 and NEPA, actions. Moreover, like Section 106, is "no feasible and prudent alternative Section 4(f)applies only to the NEPA is essentially a compliance to the project," and (2)the project "approval" of transportation project statute, providing only procedural pro- includes "all possible planning to min- While Section 106 and NEPA require tection against potentially harmful imize harm to the project." agencies to "take into account" his- federal agency actions. Coordination toric properties,Section 4(f)directs of Section 106 and NEPA responsibil- The term "use" includes not only the the Secretary of the Department of ities is encouraged under the Advisory direct physical taking of property,but Transportation to avoid harming such Council's regulations implementing also indirect effects that would "sub- resources unless no feasible or pru- the Section 106 review process. stantially impair" the value of pro- dent alternative exists. tected sites. For example,the effect After a lengthy legal battle against the hh , `ib Department of Transportation,an over- head section of I-30 in Fort Worth. Teas. 1-:I ' 1 1 j was dismantled rather than expanded. i1. i Ttr------ ', The court derision resolving this case. I- 3 , .a 1, .: ""- CARE v. Dole.established that indirect effects of highway projects such as noise, 11111 - air pollution.physical access.and visual • and aesthetic damage.triggers Section 41 f) protection if such effects "substantially impair-the significance.enjoyment. or j t" value of historic sites. I I l f f i 1 1lii 'l f 1 i � 1+ i it .-. pi. ., ...,,ti q 11 il I . ria. I i II I, ]_. ..11_' ......1 w - LL t- .:._.- - LiA Lmperson's Guide to Historic Preservation Law In.lurora,N.Y. local residents relied on ...r .\e Yorks State Environmental Quality P i ,, .1'7 to fight the construction of a retail - ' r; iiiii ,. , , •, ,np,vvore on the edge of town that would ,i`� ` threatened the economic vitality if Mc ;.Y,; - Y di�•ntoLLn historic district. .a ';:". �/ _� r • (/ f q Q . ,...-: ' -i:i• : 11:1 /1.V t kS '41/ G1I ; • -. litil illWAIIMM In -•""c• The Department of Transportation's National Register of Historic Sites federal government actions. These regulations implementing Section 4(f) unless approved jointly by the regula- are often called "Little 106 laws" or for the FHA and FTA are set forth at tory authority and the Federal,State, "State Environmental Policy Acts." 23 C.F.R. § 771.135. The regulations or local agency with jurisdiction over seek CO clarify when Section 4(f) the. . .historic site. Administration of Federal Programs applies and to coordinate Section 4(f) requirements with environmental The OSA1 is also required to comply State involvement in historic preser- review procedures under the NHPA with Section 106 of the NHPA in vation activities historically has and/or NEPA. regulating surface coal mining. focused on the administration of fed- Amendments CO the NHPA,adopted eral government programs. Pursuant Surface Mining Control and in 1992,clarify that the term "under- to the NHPA,each state has estab- Reclamation Act taking" includes state and local per- lished a state historic preservation mitting programs operating under office(SHPO)to administer federal The Surface Mining Control and delegated federal authority,such as the preservation programs, such as nomi- Reclamation Act(SMCRA),30 U.S.C. state regulatory programs set up nating properties to the National § 1201 et.seq., governs the regulation under SMCRA. Register of Historic Places, participat- of surface mining activities in the ing in the Section 106 review process, United States. The Office of Surface State Preservation Laws and reviewing projects seeking certifi- N lining and Enforcement(OSN1) is cation for federal tax benefits. charged with its implementation. Governmental actions affecting his- OSNI is responsible for issuing per- toric resources'are generally taken into The NHPA relies heavily on the mits for the surface mining of coal and account at the state level in two ways. SHPO to help federal agencies meet monitoring state regulatory programs First,state agencies,through their their Section 106 responsibilities by operating pursuant to delegated state historic preservation officers, play identifying historic resources, deter- authorir: a formal role in the Section 106 review mining the extent to which those process by helping federal agencies resources will be affected,and consid- Among other things, the act provides identify historic resources,assess ering alternatives to avoid or reduce protection for historic resources that potential impacts to those resources, those effects. would be adversely affected by min- and develop alternatives that would ing operations. Section 522(e)of avoid or mitigate adverse effects. Historic Resource Protection SNICRA, 30 U.S.C. § 1272(e)(3), Second, many states have enacted provides that: laws that protect historic resources The regulation of state agency actions from state government action in a affecting historic properties varies f.VJo surface mining operations. . . manner comparable to the way in considerably. Some states regulate .shall be permitted which will adversely which the NHPA,NEPA,and Section governmental actions affecting his- affect any. . .places included in the 4(f)protect historic resources from toric property through state environ- Regulatory Approaches to Historic Resource Protection mental protection laws. For example, Law. § 8-0101 et.seq., (SEQRA), provide a much stronger level of pro- the California Environmental Quality applies to local and state government tection for historic resources than the Act(CEQA),Cal. Pub. Res. Code § actions, thus affecting a wide range of procedural protections that apply to 21000 et.seq., requires state agencies municipal actions, including zoning governmental actions. to consider the impact of their actions changes. that could potentially affect on the environment, including historic historic resources. Because of the Federal Preservation Laws resources. The Alaska Coastal direct effect land use actions have on Management Program. (ACNIP), historic resources, these laws can be As discussed above, the preservation Alaska Stat. §46.40-210, sets forth an important component of a local of historic resources is generally specific requirements agencies must preservation program. accomplished under federal preserva- follow to protect environmental and tion statutes through procedural laws. cultural resources in Alaska's coastal As with state governments, local gov- These laws do not require that his- zone. These laws are an important ernments may also assume certain toric resources be preserved but rather source of protection since they take federal agency responsibilities under insist that a federal agency consider into account a broad range of factors Section 106 of the NHPA. While fed- historic resources before proceeding that may adversely affect historic eral agencies remain legally responsi- with a particular course of action. For resources,such as increased traffic or ble for Section 106 compliance,some the most part, the emphasis is gener- pollution. federal agency responsibilities may be ally on process rather than substance. delegated to local officials. Section This means that the agency must only Many states have adopted what are 106 responsibilities are often carried comply with certain procedures. commonly referred to as "state 106" out by city agencies receiving federal Preservation is not required. or "state 4(f)" laws. Patterned after funding from HUD, for example. their federal counterpart. these laws Local governments may also partici- A few laws, however, contain enforce- generally provide procedural and/or pate as a "party" in the Section 106 ment provisions,authorizing the impo- substantive protection for historic consultation process. sition of civil and/or criminal penalties resources by requiring consideration for violations of specific provisions. of the impact of state agency actions Historic resources are most often pro- The best known laws falling within affecting such resources. The tected at the local level through his- this category include the Minnesota Environmental Rights Act, tonic preservation ordinances. These Archaeological Resources Protection Minn.Stat. § 116B, for example,pro- laws focus on the regulation of private, Act, 16 U.S.C. §§470aa-470mm vides that state agencies may not as opposed to governmental,actions. (ARPA),and the Native American demolish a historic resource unless Some ordinances, however,protect all Graves and Repatriation Act,25 there is "no prudent and feasible resources,whether publicly or pri- U.S.C. §§3001-3013, (NAGPRA). alternative site." The New Mexico vately owned. In some instances, it ARPA establishes a permitting process Prehistoric and Historic Sites may be necessary to exempt state or and imposes both civil and criminal Preservation Act,New. Mex.Stat. federal government property to avoid penalties for violations of its terms. Annot. § 18-8-1-19-8-8, directs state "governmental conflicts" or other NAGPRA establishes a process for, agencies to undergo "all possible jurisdictional problems. among other things,the repatriation planning to preserve and protect" and of Native American human remains to "minimize harm" to historic THE REGULATION OF PRIVATE and cultural objects held by museums resources. ACTIONS AFFECTING HISTORIC or federal agencies,and imposes RESOURCES penalties for individual violations. As with their federal counterparts, Both statutes are discussed in more these laws provide for public partici- Historic resources may be protected detail later. pation and, in most cases,rein upon the to a limited extent from private citizenry for enforcement, actions through federal and state laws. Although rarely invoked, penalty Many historic resources, however, are provisions are also contained in the Local Preservation Laws protected through local laws that gov- Antiquities Act of 1906, 16 U.S.C. § ern changes to private property. 431-433,and the Historic Sites Act of Local environmental protection laws Under historic preservation ordi- 1935, 16 U.S.C. §461-467. While the governing local government actions nances, historic property owners are Antiquities Act does not establish a generally do not exist. In a few states, required to obtain a permit from a permitting process per se, it authorizes however,state environmental or preservation commission, or other the imposition of a$500 fine and/or preservation laws have been extended authority, before altering or otherwise imprisonment up to 90 days against to include local government actions. affecting the property being regu- any person who "appropriate[s], excE For example.New York's State lated. Failure to obtain a permit may vate[s], injure[s], or destroys] any hm Environmental Quality Review Act, result in the imposition of fines and tonic or prehistoric ruin or monument, N.Y. Environmental Conservation other penalties. These laws typically or any object of antiquity,situated on 0 .1 Laypersons Guide to Historic Preservation Larc lands owned or controlled by the enumerates specific powers and as the construction of an overpower- Government of the United States, authorities. A local law must comply ing addition or the removal of a key without the permission of the with the specific grant of authority architectural feature. Today,more Department of Government having from the state. In other words, the than 2,000 historic preservation ordi- jurisdiction over the lands on which level of protection afforded to historic nances have been enacted across the said antiquities are situated." The resources under a local preservation country. Historic Sites Act,correspondingly, ordinance must correspond with the allows the imposition of a$500 fine regulatory scope of applicable state Historic preservation may also be against any person found violating the enabling laws. accomplished through comprehensive act or implementing regulations. planning and coordination with other While state enabling laws vary widely land use laws. Preservation ordi- State Preservation Laws in form, they generally authorize local nances alone are often insufficient to governments to regulate private protect historic resources when other States address private actions affect- actions affecting historic properties governmental programs and policies ing historic resources primarily through a special permitting process. such as land use, transportation,and through enabling laws, which act as a Local governments are typically housing favor new development over grant of police power authority from the granted authority to designate historic rehabilitation alternatives. state to local government. Only in properties and districts and to prevent extremely limited instances have incompatible alterations,demolition, The Local Preservation Ordinance states elected to regulate private or new construction. Sometimes, actions through a separate permitting enabling laws may also establish a Preservation ordinances vary widely process. The State of Kansas,for specific process for consideration of from place to place depending upon example,regulates actions that would economic hardship claims,special several factors. Variations may arise, destroy or alter historic resources or merit exceptions,demolition by for example, because of specific limi- the "environs" of those resources. neglect,and even appeals. tations on permissible regulatory action imposed at the state level or Every state has enacted some form of Local Preservation Laws because of differing levels of political enabling law granting specific powers support for preservation in a given and authority to local governments to Laws governing private actions affect- community. No single approach pass ordinances for the protection and ing historic resources are primarily works in every situation and thus his- preservation of historic structures. enacted at the local level pursuant to tonic preservation ordinances are gen- Some local governments may operate state enabling authority. Through his- erally tailored to meet the individual under a broad grant of authority, tonic preservation ordinances,local needs of the community and the which is commonly referred to as jurisdictions regulate changes to his- resources being protected. "home rule authority." Most govern- tonic resources that would irreparably ments, however,operate under a spe- change or destroy their character such cific grant of authority that Preser,•atron ordinances call be used to • ���,• 04 !4 IV . • ' protect commercial buildings such as the f _ -�� r t 1 - I.!!Brothers Building in downtown , ,,11- 0. Philadelphia. 1-7 ,''' '. j j• r.' I '! 1 . .� it • r p'• i t; It e -- pi. � M it 0 l'i I rp 21 I.'1411f :}: l;` 1 � . t, ,i gip.1411! _ -_ lii i i-..t, s.II. ' , i" .'' . - ✓ .7 La =- t `- _ ;;I . , • r �' Z. t Y• --I _ * : y it , . _ ~ �� . fl 111 Regulatory Approaches to Historic Resource Protection El As noted earlier, every state has other land use actions affecting his- protection only to the exteriors of such enacted, in some form,an enabling law toric resources,such as a request for a properties,and in some cases,only to that authorizes local jurisdictions to variance or the subdivision of land. those facades visible from a public adopt historic preservation ordinances. The historic preservation commission. way. Several communities protect (In a few states, this authority may be however, is the governmental agency both the interior and exterior of his- implied through zoning enabling laws.) that grants or denies a permit to toric properties. Interior protections, These laws,varying widely in form change historic property. where they exist,generally are limited and content,provide the legal basis to interior spaces open to the public. for regulating historic property. They While variations exist from ordinance should be consulted, along with inter- to ordinance, most include at least Properties are generally labeled as preting case law, before adopting a five major parts. Besides establishing contributing or noncontributing in historic preservation ordinance. a preservation commission, historic districts. This label, in turn, dictates preservation ordinances generally set the level of review that will be Historic preservation has been upheld forth procedures and criteria for the applied. Contributing properties may as a public purpose under the U.S. designation of historic properties, enjoy full protection while changes to Constitution. In 1978, the U.S. along with procedures and criteria for non-contributing property(including Supreme Court in its landmark deci- reviewing requests to alter, move,or vacant land)are generally approved if sion,Penn Central Transportation Co.v. demolish such properties. "compatible" with the character of the Neu' York City,438 U.S. 104(1978)rec- Preservation ordinances also allow for historic district. A few jurisdictions ognized that preserving historic consideration of hardship and other also recognize distinctions among indi- resources is "an entirely permissible issues of special concern and establish vidual landmarks,providing the high- governmental goal" and that New a process for appeal and enforcement est level of protection for properties of York City's historic preservation ordi- of its terms. "exceptional importance." nance was an "appropriate means" to securing that goal. Some states have Individual properties are most often The preservation ordinance sets forth also explicitly recognized historic designated as historic resources by a the criteria for designation and the preservation as a legitimate govern- city council or equivalent legislative process for considering applications for mental function in their state consti- body upon nomination by a preser- designation. More detailed informa- tutions. vation commission. Sometimes,how- tion may also be contained in imple- ever, the preservation commission or menting regulations. While variation Local preservation commissions or another administrative body may be exist from jurisdiction to jurisdiction, design review boards administer most empowered to designate individual applications are generally initiated by local ordinances. Preservation corn- properties and/or districts. the property owner or the commission missions are administrative bodies of after conducting a survey of historic local governments and are typically Most jurisdictions designate historic properties within the community. established under the historic preser- districts or both historic districts and vation ordinance. While the number individual landmarks. While designa- Historic preservation ordinances of commission members and terms tions may include the entire historic generally empower preservation corn- varies, depending upon the size and structure,some communities extend missions to review and act upon appli- needs of a community, individual members are generally required to Key Components of a have some expertise in certain areas, Preservation Ordinance such as architecture, history, real estate,and so forth, to ensure that 1. Statement of"Purpose" and 6. Criteria and procedure for informed decisions are made. "Powers and Authorities" in review of such actions. enacting preservation ordinance. 7. Standards and procedures for the The scope of authority conferred on 2. Definitions. review of"economic hardship preservation commissions will vary considerably depending upon state 3. Establishment and authority of claims." enabling authority,the relationship historic preservation commission 8. "Affirmative maintenance" between the commission and other or other administrative board. requirements and procedures administrative agencies,and the sup- 4. Criteria and procedures for desig- governing situations of"demoli- port for historic resource protection. nation of historic landmarks tion-by-neglect." Historic preservation commissions and/or districts. 9. Procedures for appeal from final will have either binding or advisors' 3 Statement of actions reviewable preservation commission decision— review authority over changes to his- by commission and the legal 10. Fines and penalties for violation tonic properties, and in some cases, effect of such review. of ordinance provisions. they must be consulted regarding ® A Lmperson's Guide to Historic Preservation Law Historic district laws protect historic . i • ` -,�`� buildings as well as character. .1 �'e ‘ 'instruction truction generally must be compatible I O -_ size and design. `'• t1►\ SOUT}i STREET . �; HISTORIC DISTRICT .. ~: s 1 This bor tree'IincAneigh. y_Y;t �� between Ih,, t V ' -•i. ♦J - 1 Asslricl a- business �` � ` %ICI'es. recall1"if, i 1 ~�i /,• ' '/ .. 1 •� Of lama2ooen t the turn . •�` � theU • , sheet waz .. lik. ' 1 1 - 1891. PI ItcOT in , Its beautifully I _Pree bustrved houses• yhw r 4' I. were built between then - spe 1um idles the ` . - -F.Tt""_- --` �f 1 ( spectrum of fashionahlc I \. - domestic archYlecture - .-� •, A rt II the perio0 ItA the s __ _ %--' - --_ Italinn Revival style - ---� ,•* -,P mos. prevalent., �- --- �M mmat. .=i • =` - ' � _a;., „�, .' ---' "'-c_ _ _ s ILL ., = : a, ill � — r r ,� cations for certificates of appropriateness. financing are sufficiently finalized) would otherwise be denied all reason- \Iost often, owners of property sub- and that the building will be compati- able or beneficial use of his or her ject to a preservation ordinance must ble with other historic resources in property. Special merit provisions submit an application to a preserva- the area. enable individual buildings to be tion commission for permission to demolished or substantially altered alter, demolish, move,or construct Routine maintenance work such as when an overriding community objec- additions and new buildings. repairing a broken fence or replacing tive,such as the need CO construct a Requests for change are evaluated at a individual tiles on a slate roof is gen- conference center,exists. (For a public hearing based upon standards erally excluded from commission detailed discussion on economic hard- for review set forth in the ordinance. review. Many ordinances, however, ship see "Providing for Economic The commission will generally issue a require that designated property be Hardship Relief in the Regulation of formal decision, making specific find- kept structurally sound and may Historic Properties, " 15 Preservation ings of fact and conclusions of law empower a commission to make Law Reporter 1129(1996).) Permission is typically granted in the repairs and seek reimbursement in form of a permit or certificate of appro- instances where a property is essen- Historic preservation ordinances priateness. Bally being demolished by neglect. either provide for appeal to another administrative body or specify that The extent of control over requests to An increasing number of communi- appeal is to be made directly to court. demolish historic structures varies ties have also established an informal In establishing an appeal process, it is from community to community. process to encourage property owners important to ensure that the appellate \lany localities allow for the demoli- to consult with commission staff body must uphold the commission's don of historic properties only in cases and/or members before embarking decision if it is supported by "sub- where a property owner establishes on a major project. Although not stantial evidence" or a "rational basis" economic hardship or the property poses required, this process generally helps exists for its decision. If the appeal a safety threat after a fire or other a property owner and/or architect to body engages in "de trovo"review type of natural disaster. Some corn- understand the factors that a commis- (i.e., it engages in its own fact-finding munities, however, permit property sion will consider in acting upon a rather than limiting its review to the owners to demolish historic properties specific application. information contained in the record after a specific waiting period, during and is not required to defer to the which time a city or town,along with Many ordinances also provide for the conclusions reached by the commis- private preservation groups,can consideration of economic hardship sion),that body must use the same explore alternative actions to save the claims,and to a lesser extent, projects criteria as the preservation commis- building. Some communities also of special merit. Economic hardship sion in making its decision. condition the issuance of a demolition provisions typically provide a variance permit upon a showing that a new from individual restrictions under the Preservation ordinances usually building will actually be constructed ordinance in situations where the empower local jurisdictions to impose (i.e., by showing that plans and owner demonstrates that he or she fines and other penalties for individ- Regulatory Approaches to Historic Resource Protection m Incompatible infill structures can seriously = .' compromise the integrity of a historic ,t, streetscape. 1 :i\ % E ffttft 1 _- -- - - i. e i ...„. : .7.,_..L_____..._ ft „.4.,.._, ._.... :......,, . . '11.,!-,11 IT w 4\ Ili 2:11 - I'W- , F.7.7:.-- fr - i I ual violations. Fines generally range Comprehensive or master plans are Despite its legal status, the compre- from$100 to$5000 per day depend- formal documents,typically adopted hensive plan should identify historic ing upon the type of property being at the local level, that set forth a preservation as a specific goal or key regulated, residential or commercial, guideline or road map for community element. Strong policy statements in and the likelihood for violations. development over time. They gener- favor of preservation can help a deci- Penalties for unlawful alterations or ally identify important community sion maker act favorably toward demolitions may include the denial of goals such as economic growth and preservation in instances where his- a building permit for a number of stability;environmental protection, toric resources might otherwise be years or mandatory reconstruction. and public safety in the context of harmed, such as in conducting a site (Stiffer penalties are used to discour- specific planning elements such as plan review or in acting upon a rezon age midnight demolitions of historic land use, housing,and transportation. ing request. Decisions based on coal structures,where a fine might be Historic preservation is often identi- prehensive plans are also more likely viewed as a business cost rather than fled as an important community goal to be upheld,even when the plan is a deterrent.) In cases of demolition- and may be included as an element of merely advisor);since they help prove by-neglect,a commission may be a comprehensive plan. that a government acted fairly and empowered to repair a building and • reasonably rather than arbitrarily or then recoup its expenses by imposing The legal status of the comprehen- capriciously. a lien on the property. sive plan varies considerably from state to state. In some states,consis- Ideally,comprehensive plans should Other Land Use Laws tency between comprehensive plans also state how conflicts between his- and local laws is mandatory. In other toric preservation and other commu- The strength of a preservation pro- words,all zoning and other land use nits goals, such as economic gram can also be measured by the laws must be consistent with the development or transportation,are to degree of correlation between historic comprehensive plan. In other juris- be resolved in a manner consistent preservation and other land use pro- dictions,a plan may be viewed as with a community's local preservation grams,such as comprehensive plan- advisory, serving as a guideline or road ordinance. For example,while a plan ning,zoning, and the subdivision of map for future development. may strongly endorse economic land. Pressure to demolish historic growth, it may state that historic buildings will obviously be much While planning generally occurs at resources should be protected in all greater in communities where zoning the local level, it is accomplished instances or allow for demolition of laws in commercial districts allow for increasingly on a statewide or regional historic resources only when no other high-rise development. Similarly, the basis as well. Several states including prudent or feasible alternative exists. historic setting of certain resources Vermont, Maine, Rhode Island, A plan may also stress the importance may be irreparably altered in commu- Washington, Georgia, Florida, and of historic preservation as a means to nities where existing lots can be sub- Delaware have enacted growth man- promote economic development by divided without regard to historic agement laws that provide additional providing neighborhood stability an preservation concerns. protection for historic resources. tourism opportunities. ® A L avperson c Guide to Historic Preservation Law Besides the comprehensive plan,zon- 14 Preservation Law Reporter 1012 SPECIFIC LAWS ADDRESSING ing, subdivision controls,and other (1995) and "Coordination of SPECIFIC RESOURCES forms of land use protection can Historic Preservation and Land Use impact historic resources. Zoning Controls: New Directions in Historic A few laws seek to protect specific laws govern the use and intensity of Preservation Regulation,5 Preservation types of resources from governmental both new and existing development Law Reporter 2041 (1987).) and/or private actions. The protective while subdivision laws govern the mechanisms employed by these laws platting and conversion of undevel- In some situations,special permitting are generally tailored to meet the aped land into buildable lots. processes may be invoked CO allow for peculiar concerns of the resource at consideration of preservation issues as issue. The relationship between zoning laws appropriate. For example,owners of and historic properties is readily historic residential property may be Archeological Resource Protection understood. Zoning laws allowing fast allowed CO conduct a limited range of food restaurants as a matter of right in commercial uses on their property Laws protecting archeological historic districts,for example,create such as a bed and breakfast or small resources have been enacted at the potentially unresolvable compatibility office. These uses can help offset federal and state level,and to a much concerns. Pressure to demolish low- rehabilitation and/or maintenance lesser extent at the local level. These rise,historic commercial buildings will expenditures incurred in larger his- laws typically regulate archeological he greater in communities with zon- toric properties. Exceptions from activity on land owned by the federal ing laws that permit the construction onerous parking requirements may government through a special permit- of 20-story buildings. Zoning laws also be established. ting process supported by the ability can also be used to curtail the practice to impose criminal and/or civil penal- of building overpowering infill houses In a few jurisdictions, preservation ties for individual violations. In more or "pop ups" in historic residential commissions may have either binding recent years,archeological protection areas through the imposition of large or advisory authority over requests to laws have been extended to private set back and side lot requirements. subdivide historic property. lands, largely in response to increasing Commissions with binding authority threats combined with a growing Subdivision laws can also affect his- may approve, deny,or modify an awareness that damage CO archeologi- tonic properties in profound,although application to subdivide property pro- cal sites is irreversible. less direct,ways. Land is subdivided tected by a preservation ordinance. to permit new development. If that Commissions with advisory authority Federal Laws development is located next to or near may only recommend to a planning a historic resource, the character of board or other administrative agency The Archeological Resources that resource is likely CO change dra- with ultimate authority that a specific Protection Act, 16 U.S.C. §§470aa- matically. application be approved, denied,or 470mm,(ARPA), is the primary statute modified to address historic preserva- governing archeological resource pro- The way tracts of land are broken into tion concerns. tection at the federal level. This law lots and blocks and streets are laid out protects archeological resources on can also be important. The design of Preservation commissions may also be federal and Native American lands a street system, for example,could consulted in situations involving the through a permitting process accompa- create certain traffic patterns,which, development of land around an exist- nied by enforcement provisions. in turn,could lead to inappropriate ing resource to ensure that any new Under ARPA,it is unlawful CO remove, street widenings in a neighboring his- construction is compatible. For excavate,or alter any archeological tonic district. example,a site plan review process resource from federal or Indian lands may call for consultation with a corn- without a permit issued by the There are several ways to ensure mission on issues regarding the siting . Department of the Interior. Permits compatibility between preservation or massing of particular buildings or are approved only for research pur- and other land use laws. Property, the types of materials or colors used. poses and all artifacts must remain for example, may be rezoned or new In some cases, the actual density or property of the United States. height restrictions imposed so that size of a project may be limited where pressure for new development is incompatible with historic preserva- In addition,ARPA prohibits the sell- effectively removed. Buffer zones tion objectives. ing, purchasing,exchanging,transport- may also be established to prevent ing,and trafficking of archeological encroachment on lower density, resources that were removed in viola- commercial,or residential historic tion of law. Significantly;this prohibi- areas. (For further discussion see Lion extends not only to artifacts found "Protecting Historic Structures on public and Indian lands, but also to Against Incompatible Development," artifacts taken from private land in vio- lation of state law. Regulatory Approaches to Historic Resource Protection ARPA's penalty provisions are 79. The Secretary of the Interior has assisted or licensed projects that critical to its effectiveness as a tool also issued advisory guidelines enti- threaten historical and archeological for resource protection. The statute tied "Archeology and Historic data with destruction. The responsi- authorizes the imposition of civil Preservation: Secretary of the ble federal agency may elect to and criminal penalties, including Interior's Standards and Guidelines." undertake salvage or other protective both imprisonment and fines up to These are published at 48 Fed. Reg. measures or allocate up to 1 percent $100.000 for repeat offenders. All 44716(Sept. 29. 1983.) of its project funds for use by the archeological resources,along with any Secretary of the Interior for such vehicles or equipment used to carr A few federal laws protect archeologi- efforts. out the violation can be forfeited. cal resources in particular instances. The act also explicitly authorizes the The Reservoir Salvage Act of 1960. As noted above, the Antiquities Act federal government to pay rewards for 16 U.S.C. §§469-469a. requires fed- establishes a permitting system for information leading to the finding of a eral agencies to notify the Secretary the excavation and gathering of civil violation or criminal conviction. of the Interior upon the discovery of "objects of antiquity" on federal lands any significant archeological resources designated as "National Monuments." Primary regulations governing the threatened with destruction due to Limited in scope, permits may be protection of archeological resources dam construction or terrain alterations. issued only for the benefit of"rep- are set forth at 43 CFR Part 7. The law authorizes the Secretary to utable museums, universities.col- Regulations pertaining to the preser- undertake salvage operations as leges. or other recognized scientific or vation of American antiquities are deemed necessary. The Archaeo- educational institutions." The law codified at 43 CFR Part 3 and regula- logical & Historical Preservation Act imposes nominal penalties(violators tions concerning the care of federally- of 1974, 16 U.S.C. §§469-469c-1, may be fined$500 or jailed for up to owned and administered archeology extends the scope of the 1960 Act to 90 days)for the unlawful excavation, collections are located at 36 CFR Part include all federal and federally- injury,or destruction of"any historic Primary Laws Governing Archeological Resources Department of Transportation Act of 1966,49 U.S.C. § 303. Prohibits federal approval or funding of transportation Archeological Resources Protection Act of 1979, 16 U.S.C. projects that require the "use" of any historic site,includ- §§470aa-mm. Principal federal law protecting archeologi- ing archeological sites,unless there is "no feasible and pru- cal resources on all federal and Indian lands. It establishes dent alternative to the project," and the project includes a permit application process for the excavation and "all possible planning to minimize harm to the project." removal of archeological resources located on these lands. Provides for the imposition of civil and criminal penalties Abandoned Shipwreck Act of 1987,43 U.S.C. 2101 et. seq. for specific violations. Asserts title to abandoned shipwrecks within U.S.territor- ial waters and then transfers ownership to the state in Archeological Resources Protection Act(uniform regula- whose submerged lands the shipwreck is located to facili- dons),43 C.F.R. Part 7. Implementing ARPA,these regu- tate the protection of historic shipwrecks. lations have been adopted by the Departments of the Native American Graves Protection and Repatriation Act Interior,Agriculture,and Defense and the Tennessee Valley Authority. of 1990,25 U.S.C. §§3001-3013. Provides for repatriation of Native American human skeletal material and related Antiquities Act of 1906, 16 U.S.C. § §431-433. Imposes sacred items and objects of cultural patrimony. Also allows criminal sanctions for the destruction of historic or prehis- for the imposition of criminal penalties for the illegal traf- toric sites on federally owned or controlled land without a Picking in human remains and burial items. permit. State archeological protection laws. Regulate private National Historic Preservation Act of 1966,as amended, and/or public actions affecting archeological resources on 16 U.S.C. §470 et. seq. Prohibits federal undertakings state(and in some cases on private lands). (such as the funding, licensing or permitting of activities) affecting properties eligible for listing in the National State preservation and environmental laws. Require state Register, including archeological sites,without first con- agencies to consider impact of proposed governmental suiting with the state historic preservation officer and, in actions on archeological resources. some cases, the Advisory Council on Historic Preservation. Historic preservation ordinances,comprehensive plans, site plan review and subdivision laws.Some local laws National Environmental Policy Act,42 U.S.C. §§4321- protect archeological resources in addition to historic and 4347. Requires environmental impact statement for all major federal actions significantly affecting the quality of other cultural properties. the human environment, including archeological resources. ® A Latperson:c Guide to Historic Preservation Law or prehistoric ruin or monument, or Local Laws state level governing the disposition any object of antiquity on federal of Native American artifacts and lands without the permission of the While a number of jurisdictions human remains. These laws seek to federal land manager." extend protection for archeological or place control or ownership of these cultural sites in local historic preserva- items in the appropriate Indian tribe Archeological resource protection may tion ordinances,only a handful of or Native Hawaiian organization. also be accomplished under Section communities have developed detailed 106 of the National Historic protection measures. Several jurisdic- Native American Graves Protection and Preservation Act, 16 U.S.C. §§470- tions,for example, include archeologi- Repatriation Act(NAGPRA) 470w-6, the National Environmental cal resources among other items Policy Act,42 U.S.C. §§4321-4347, qualifying for designation, but pro- This law,codified at 25 U.S.C. §§ and Section 4(f)of the Department of vide little guidance about how these 3001-3013, establishes a process for Transportation Act,49 U.S.C. §303. sites are to be protected in individual protecting and distributing Native These laws protect archeological circumstances. Usually, archeological American cultural items found on fed- resources from potentially adverse resources are treated the same as any eral or tribal lands either through federal agency actions by,requiring other resource. A few communities, "intentional excavation" or "inadver- agencies to identify archeological however, have included specific pro- tent discovery." Among other things, resources and by urging either in cedures governing archeological the law specifically seeks to place place preservation or removal, as resources in their preservation ordi- ownership or control of such items in appropriate. nances. San Antonio,for example, the appropriate Indian tribe or Native requires owners to prepare a "deter- Hawaiian organization and establishes State Laws mination of effect" and explore alter- a process to resolve competing claims. native ways to reduce or avoid any Consistent with this objective,the Laws governing archeological adverse effects. law also imposes specific require- resource protection vary widely at the ments on museums and federal agen- state level. Some states have enacted Archeological resource protection also cies(excluding the Smithsonian separate archeological resource protec- may be accomplished at the local Institution)CO assist Indian tribes and tion laws,while others include an level through other types of land use Native Hawaiians in the identification archeological component in more gen- laws likely CO entail "land disturbing" and eventual repatriation of burial oral historic preservation laws. Many activity. Archeological protection,for remains and related items within their states have adopted laws patterned example, may be provided through collections. NAGPRA further directs after the federal Archeological conditional or incentive zoning that the Secretary of the Interior to estab- Resources Protection Act, making it allows for the preservation of archeo- lish a review committee to monitor unlawful to disturb or remove archeo- logical resources in exchange for more and review the implementation of the logical resources on state-owned land intensive development. Resources specific documentation and repatria- without a permit. A few states also may be protected through subdivision tion requirements and provides for restrict certain archeological activity laws and/or site plan review by requir- enforcement of its terms through the on privately-owned land and/or ing that an archeological assessment assessment of civil penalties. extend specific protection for burial be performed as a condition to Regulations implementing NAGPRA sites. Penalties are generally imposed approval and by requiring applicants are set forth at 43 C.F.R. Part 10. for individual violations. to avoid or mitigate the destruction of such resources in delineating the size State Burial Laws As with other types of resources, and location of buildings,and location states also play a primary role in pro- and design of streets and individual A number of states(particularly in the testing archeological resources in lots. Alexandria,Virginia,for exam- West)have enacted specific laws CO exercising their responsibilities under ple,requires the preparation of a pre- protect against the removal or both federal and state programs. The liminary archeological assessment destruction of human remains of National Historic Preservation Act, and, sometimes,the development of Native Americans or the possession, state preservation laws,federal and a resource management plan,as part selling or displaying of such remains state environmental protection laws, of its site plan review process. as well as associated artifacts, in addi- transportation laws,and others require tion to more general laws governing state involvement in identifying and Laws Protecting Native American cemeteries as a whole. Inadvertent developing plans to avoid or mitigate Cultural Resources disturbances must generally be potentially adverse governmental reported to the state,which in turn actions. In addition to the more general laws must consult with the appropriate governing historic resource and/or tribe governing the disposition of the archeological protection,specific laws site. Violations are generally punish- have been enacted at the federal and Regulatory Approaches to Historic Resource Protection ill able through fines and/or imprison- - _ .-n--tr ;} • Public Buildings ment proportionate to the specific Otli.P .. .t .ttit offense. • - �"-"_'-, '`' i A number of laws, particularly at the federal level, have been enacted in Some states have also enacted laws to _ (-1) recognition of the link between pub— protect historic cemeteries. These i' 1 lie policy regarding the location of laws frequently address issues such as ,it •,' / ` <<'i: governmental facilities and efforts to t' ' preserve historic properties. Public theft,vandalism,and trespass and ti .t. P P may prohibit the alteration or reloca- _. _ — — — buildings such as court houses and tion of historic cemeteries in particu j I city halls provide an important visual lar instances. .-'1 landmark for urban communities and often serve as an important catalyst Shipwreck Laws { ti` for further economic investment. , l! i'I . Locating federal facilities in down- ''` �.�-,- I town areas can spur economic devel- wrecksSpecific laws apply to historic ship- f , :.. �� .�,�, �� found in submerged lands, « ' "--1 -7.o-: �: i.:::,;; � opment,while relocating federal depending. in art• u on where the Jt .i 11= ` i 4:.o facilities outside downtown areas can P P �w�:'1Z` -� �>-era, .;�; ;; wreck is located. Shipwrecks found r;;4-`l�''�' �- F, significantly contribute to urban outside a state's territorial waters are 'r1d ,. • •I;- • ..rk •'�ti..0 decay and suburban sprawl. governed by admiralty law Some states have enacted laws to protect Shipwrecks found within a state's ter- historic cemeteries. Public Buildings Cooperative Use Act ritorial waters may be governed by (PBCUA) appropriate state law pertaining to his- toric shipwreck protection. State con- to abandoned shipwrecks that are This law governs the construction, embedded in the submerged lands of trol over shipwrecks located within a g acquisition,and management of space state's territorial limits is conferred by the states, embedded in coralline for- by the General Services Administra- the federal Abandoned Shipwreck Act. mations on the submerged lands of tion(GSA)for use by federal agen- the states,or listed in or determined cies. Codified at 40 U.S.C. §601-616, Admiralty Law: eligible for inclusion in the National the PBCUA outlines the authority Register of Historic Places. A "ship- vested in the Administrator of The disposition of shipwrecks outside wreck" may include not only the yes- General Services and his or her a state's territorial seas is generally sel or wreck, but also its cargo and responsibilities in exercising that other contents. An "abandoned" governed by admiralty law. In the authority. absence of a statutory claim, title may shipwreck includes those shipwrecks "which have been deserted and to be conferred under the "law of finds" To encourage the use of historic or the "law of salvage." The law of Which the owner has relinquished buildings by federal agencies,the law finds essentially confers title to the ownership rights with no retention." directs the Administrator to "acquire finder of an abandoned shipwreck. A shipwreck is embedded if it is and utilize space in suitable buildings Under the law of salvage,a court may "firmly affixed in the submerged of historic,architectural, or cultural order the owner of a vessel to pay a lands or in coralline formations." significance, unless use of the space salvor an award for his or her efforts in would not prove feasible and prudent recovering the vessel. A number of A majority of states have enacted compared with available alternatives." courts have included the preservation statutes to protect archeological This requirement extends to, but is of archeological resources as a factor resources located in their territorial not limited to,all buildings that are waters. Many of these statutes in determining whether to give title to pro- listed or eligible for listing in the a finder or to give a salvage award. tect historic shipwrecks through a spe National Register of Historic Places. cial permitting process,generally The Abandoned Shipwreck Act requiring private salvers to operate Regulations implementing the Public pursuant to a contract or license. The Buildings Cooperative Use Act are set This law was enacted in 1987 to end U.S. Department of the Interior has forth at 41 C.F.R. §§ 19.000 et.seq., confusion over the ownership of cer- also adopted advisor guidelines to and §§ 105-51.001 et.seq. rain abandoned shipwrecks and to assist states in implementing the ASA. provide for their protection by state These guidelines are published at 55 Section 110 of the National authorities. The Abandoned Fed Reg. 50120(1990). Historic Preservation Act Shipwreck Act.43 U.S.C. §§ 2102- 2106,(ASA), modifies admiralty law Section 110(a)of the National I by vesting title to abandoned ship- Historic Preservation Act, 16 U.S.C. wrecks in the states. The law applies 470h-2(a), imposes additional respon- ® A Latiperson's Guide to Historic Preservation Law. sibilities on federal agencies that own erties CO the National Register and be "architecturally compatible with or control historic properties or sites professionally document any listed the character of the surrounding his- such as historic office buildings, mili- property that may be substantially tonic district or properties." can-installations,or battlefields and altered or affected and place such cemeteries. Among other things, fed- records in the Library of Congress as Executive Order 13007, published at eral agencies are required to locate, part of the Historic American Buildings 61 Fed. Reg. 26,711 (1996),seeks to inventory,and nominate properties to Survey or Historic American Engineering protect Native American religious the National Register,assume respon- Record. In addition, federal agencies practices. It directs federal land-man- sibility for preserving historic proper- are required to take necessary mea- aging agencies to accommodate the ties, and use historic buildings to the sures CO provide for the maintenance use of sacred sites by Native "maximum extent possible." and planning of federally-owned Americans for religious purposes. In property listed in the National addition,such agencies must avoid In addition,agencies responsible for Register, including the preservation, adversely affecting the physical the impairment or demolition of a his- rehabilitation and restoration of such integrity of sacred sites and provide tonic building or site must document sites. Most of the requirements of reasonable notice when an agency's the property in accordance with pro- this order have been enacted into law action may restrict the ceremonial use fessional standards. When National as part of the 1980 Amendments of of a sacred site or otherwise adversely Historic Landmarks are involved, the NHPA. affect its physical integrity. Because Section 110 also requires that federal some Native American sites may qual- agencies undertake, to the maximum Expanding on the NHPA and ify for listing in the National Register extent possible, "such planning and PBCUA, Executive Order No. 12072 of Historic Places,this order,may in actions as may be necessary to mini- (1978),entitled "Federal Space some instances overlap with Section mize harm to such landmark" and Management," underscores the poli- 106 and Section 110 of the NHPA. request comments from the Advisory cies set forth under the PCBUA and Recognition of the right to exercise Council on Historic Preservation. directs federal agencies "to give first traditional religions under the First consideration CO centralized commu- Amendment is also set forth under the Guidelines issued by the Secretary of nity business area[sj" when meeting American Indian Religious Freedom the Interior regarding federal agency federal space needs in urban areas in Act of 1978,42 U.S.C. § 1996. responsibilities under Section 110 are order"to strengthen the Nation's published at 52 Fed.Reg.4727 (Feb. cities and to make them attractive Restrictions on the 17, 1988). Special rules allowing for places to live and work." On March 7, the waiver of Section 110 require- 1996,the General Services Regulation of Historic ments in the event of natural disasters Administration issued interim regula- Property: Protecting or emergencies are set forth at 36 tions,61 Fed.Reg. 9110(Mar. 7, C.F.R. Part 78. 1996)(to be codified at 41 C.F.R.Part the Individual from 101-17),reaffirming the order's poli- the State Executive Orders cies and goals and setting in motion a process for adopting revised regula- In reviewing preservation laws, it is as A number of executive orders rele- tions consistent with that order. important to understand the limita- vant to preservation have been tions on these laws as it is to under- enacted over the years. These orders Executive Order 13006,issued in stand the laws themselves. These impose additional responsibilities on 1996,directs federal agencies not only limitations are usually imposed by federal agencies with respect to his- to locate their operations in estab- courts interpreting constitutional tonic property. lished downtowns but to give first con- requirements that protect the individ- sideracion to locating in historic ual from overly-burdensome govern- Executive Order 11593,enacted in properties within historic districts. mental actions. The following section 1971,requires federal agencies to (See 61 Fed.Reg. 26,071 (1996).) The explains do the court system works operate their policies, plans and pro- order requires the federal government and the types of constitutional issues grams so that federally owned or con- CO "utilize and maintain,wherever that are generally raised. trolled sites,structures, and objects of operationally appropriate and econom- historical,architectural, or archeologi- ically prudent,historic properties and JUDICIAL REVIEW cal significance are "preserved, districts,especially those located in restored,and maintained." (See central business areas." It also directs Historic preservation laws,whether Exec. Order No. 11,593,36 Fed.Reg. federal agencies to give "first consider- 8921 (1971), reprinted at 16 U.S.C. § ation" to historic buildings when enacted at the federal,state, or local level,are subject to review by courts, 470 note.) Among other things, the "operationally appropriate and eco- generally called "judicial review." order directs federal agencies to nomically prudent" and requires that locate, inventory,and nominate prop- any rehabilitation or new construction Restrictions on the Regulation of Historic Property m The decisions resulting from this Lower courts are required to abide by preservation laws subject to state review become law until vacated or the decisions of higher courts within enabling authority. If an ordinance is reversed by a higher court. their own system. For example, an not enacted in accordance with state appellate court decision interpreting a enabling law,the entire ordinance The importance or particular rele- specific law or ordinance is binding on may be invalidated. Cases have been vance of an individual court case can trial courts within the same circuit. In litigated, for example.on the ability vary from place to place depending general, state courts are not bound by of a commission to deny permission on a variety of factors, such as which federal court decisions interpreting to demolish a building or to control court issued the decision and what state law unless such decisions are the design of new buildings con- kind of laws and issues were issued by the L .S. Supreme Court. structed within a historic district. addressed. For example, a state Federal courts, however,can deter- supreme court decision addressing mine the validity of state and local Even if an ordinance has been duly constitutional issues may have broad laws under the U.S. Constitution. enacted,questions may arise concern- significance,creating either binding or ing whether a commission has acted persuasive authority. Whereas,a trial State courts are not bound by the within the scope of authority con- court decision focusing on the appli- decisions of courts of other states, ferred on it by the ordinance or cation of a notice provision may have even when based on laws similar to whether it has followed appropriate little relevance outside the context of those at issue. Such decisions, how- procedures in taking a particular the particular controversy at issue. ever,can have great weight, particu- action as required under local law. Therefore it is necessary to have a larly in an area such as historic For example, did the commission fol- basic understanding of how the judi- preservation where the body of law low a community's open meeting laws cial system works and the general sig- is relatively small, and thus are often (often referred to as "sunshine laws") nificance of the issue being decided viewed as persuasive authority. Courts or follow requisite notice and hearing in order to assess the importance of a often look to other jurisdictions for requirements? particular decision. guidance on particular issues. Similarly,federal courts are not bound Finally,claims may arise concerning Separate court systems are main- by federal court decisions from other the appropriateness of a commission's tamed at the federal and state level. circuits. It is possible to have con- decision. In other words, does the Federal court decisions focus on dis- flitting interpretations of federal evidence in the record support the putes involving federal laws such as statutory provisions or constitutional commission's findings and did the the National Historic Preservation issues among the circuits. The U.S. commission assign appropriate weight Act,or federal constitutional issues. Supreme Court.again,is the ultimate to the evidence presented. Most State court decisions generally arbiter of conflicts among the federal courts will defer to the expertise of involve controversies over the appli- circuits. While judicial consistency is the commission and uphold decisions cation of state or local laws,which strongly favored,courts may abandon to designate property for historic may involve both statutory and/or prior law In most cases, however, resource protection or to affirm or constitutional issues. reversals in policy occur at the legisla- deny applications for certificates of tive rather than judicial level of gov- appropriateness if there is a reason- Federal court cases are generally tried ernment. able basis in the record or if the deci- in federal district courts and appealed sion is supported by substantial to a U.S. Court of Appeals. There. STATUTORY CLAIMS evidence. arel3 federal judicial circuits within the United States. The United States Historic preservation litigation gener- In reviewing preservation laws, it is Supreme Court is the ultimate arbiter ally involves both statutory and consti- important to recognize that federal, of federal cases and federal constitu- tutional claims. Statutory claims may state,and local laws are generally tional cases. Supreme Court review, address issues such as whether a local interpreted through implementing reg- in most cases, is discretionary. preservation commission exceeded its ulations and guidelines. Guidelines are authority under a preservation law or typically advisory in form and are gen- Most states have a trial court,an whether "substantial evidence" or a erally used to illustrate what kinds of appeals court,and a high court gener- "rational basis" exists to support the activities may or may not be permissi- ally referred to, but not always,as the commission's decision. Commission ble under a preservation ordinance. "supreme court." The names of these decisions are generally reviewed Design criteria,for example,are often courts will vary from jurisdiction to under standards set forth in state adopted in the form of guidelines. jurisdiction and thus it is important to administrative procedure acts. become familiar with the judicial sys- Regulations, in comparison, have th tem within your particular state. As discussed earlier,the issue of full force of law and must be enacted legislative authority arises most within the confines of the law being frequently in connection with local interpreted.They must be consistent ® A Laypersons Guide to Preservation Larc with the requirements of the law and the argument that restrictions on use without just compensation." the procedural provisions of the gov- property for the purpose of preserving Under the Supreme Court's interpre- crning law,applicable administrative structures and areas with special his- tation,the takings clause extends to procedure acts,and federal and state tonic. architectural.or cultural signifi- governmental regulations as well as constitutions. Procedures governing cance were nor a valid use of physical takings of property and the review of alterations, the demoli- governmental authority. Many state accordingly. if a regulation is so bur- don of historic resources, and applica- courts have explicitly found historic densome as to amount to a "taking," dons for economic hardship are preservation to be a legitimate use of then compensation must be paid. generally adopted in regulatory form. the police power. Frequently, landowners maintain that CONSTITUTIONAL RESTRICTIONS Regulatory Takings their property has been unlawfully taken because the range of uses or I-listoric preservation laws must be Property owners challenging historic value of their property has been lim- within the limitations of state and preservation laws sometimes argue ited or reduced by the application of federal constitutional provisions that that such laws,either generally or in laws and regulations.such as historic protect the rights of individuals and their application in a specific case, preservation laws. These claims, organizations,and thus constitutional amount to a taking of private property. however, are generally unfounded, claims are frequently raised. The term "taking" comes from the because the threshold for establishing Constitutional challenges to historic Fifth Amendment to the U.S. a taking is exceedingly high. A regu- preservation laws may arise under the Constitution,which states "... nor shall lation does not effect a taking if it "Iakings,the Due Process and the private property be taken for public "substantially advance[s] legitimate Equal Protection Clauses of the Fifth and Fourteenth Amendments,or the Free Exercise and Free Speech The Penn Central Decision ' so long as the owner is not denied Clauses of the First Amendment to a reasonable return on his or her the U.S. Constitution. Penn Central Transportation Co.v. investment. (The Court observed Citly of New}York,438 U.S. 104(1978), that nothing in New York City's 'l'he following discussion focuses on the landmark decision upholding the preservation law prevented the federal constitutional requirements. application of New York City's preser- owner from using the terminal as Additional protection may be afforded vation law to Grand Central Terminal, it had for the past 65 years.) under state constitutions as well. a Beaux Art railroad station in mid- town Manhattan, is important CO •Property owners are not entitled Police Power Authority preservation for several reasons: to the highest and best use of their property. As stated by the Supreme All preservation laws must be enacted •The Supreme Court laid to rest Court, "the submission that [prop- i n accordance with the police power concerns over the appropriateness erty owners] may establish a`tak- '1'he police power is the inherent of governmental restriction on his- ing'simply by showing that they authority residing in each state to reg- tonic property by recognizing his- have been denied the ability to ulate,protect,and promote public tone preservation as a legitimate exploit a property interest that health,safety, morals,or general wel- governmental objective. they heretofore had believed was fare. The police power is enjoyed by available for development is quite the states, rather than local jurisdic- ■The Court strengthened preserva- simply untenable." tions,and cities and towns can enact tion programs around the country by preservation laws only if the state has ruling that New York City's historic While the Supreme Court focused given them specific authority to do preservation laws,which restricted its review on the constitutionality of so. As noted earlier,this authority is changes to property designated as New York City's denial of permission typically bestowed on local jurisdic- landmarks and historic districts,was CO construct a 55-story office tower tions either through specific enabling an appropriate means for accom- on top of Grand Central Station, legislation or more general home rule plishing historic preservation. courts throughout the country have power. relied upon the decision in upholding •The Court ruled that a property local preservation laws. The Court's 'l'he basic constitutional question is owner must be denied all use of decision helped to spur considerable whether historic preservation is a his or her property to establish a growth in the adoption of preserva- legitimate function of the govern- regulatory taking. The focus of a tion ordinances by cities and towns ment. The U.S.Supreme Court in takings inquiry is the entire prop- throughout the United States(num- its 1978 decision in Penn Central erty interest(not just the property bered at 500 in 1978 when the Court T nnsponation Company v. City of New interest directly affected)and issued its decision and more than York,438 U.S. 104(1978), laid to rest restrictions on property are valid 2000 today). Restrictions on the Regulation of Historic Property LE state interests" and does not "deny an controlling U.S. Supreme Court deci- While a takings inquiry generally owner economically viable use of his sion on the issue of regulatory takings focuses on the impact of the regula- land." (See,e.g.Agius v. City of in a historic preservation context,the tory action on the property rather than Tiburon,447 U.S. 255. 260(1980): U.S.Supreme Court recognized that the property owner, the Supreme Lucas v.South.Carolina coastal Council. preserving historic structures is "an Court has said that an owner's "distint- 112 S.Ct. 2886(1992).) entirely permissible governmental investment-backed expectations"are rele- goal" and that the imposition of vant in the consideration of takings "Legitimate State Interests" restrictions on historic property claims. Although the exact meaning through historic preservation ordi- of this terminology is still being The first prong of the takings test nances is an "appropriate means of debated, the general consensus is that focuses on the relationship between securing" that purpose. the individual circumstances sur- the governmental action and the pur- rounding the property in question, pose for that action. There must be "Economically i table Use" such as the owner's investment an "essential nexus between the bur- motives or his or her primary expecta- dens placed on the property owners The vast majority of preservation tion concerning the use of the prop- and a legitimate state interest affected cases involving takings claims focus erty are relevant considerations. by the proposed development." In on the question of economic impact. Factors such as whether the property other words,there should be a reason- Under the Supreme Court's analysis in question had been designated or able correlation between the condi- in Penn Central, the economic impact was likely to be designated as a land- tions or restrictions placed on the must be substantial. A taking will not mark at the time of purchase and property owner and the public interest generally result unless the property whether the owner created his or her being served. A nexus,for example, owner can establish that he or she has own hardship by, for example,over- might not be found if a preservation been denied all reasonable beneficial paying for the property,or allowing it commission required historic property use or return on his or her investment. to fall into disrepair, may be taken owners to build a sidewalk in front of into account. their house as a condition to the Takings claims involving the mere issuance of certificate of appropriate- designation of properties as historic Relevant to any determination of rea- ness to build an addition on the back resources pursuant to historic preser- sonable use and return is the property of their home. (See,Nollan v. vation ordinances under both federal interest at stake. In Penn Central, the California Coastal Commission, 107 S. and state constitutions have uniformly Supreme Court determined that it is Ct.3141 (1987)Nexus between a lat- been rejected. As the Pennsylvania appropriate to look at the "parcel as a eral beach access condition and the Supreme Court observed in United whole" in evaluating a takings claims. Coastal Commission's stated goals Artists'Theater Circuit,Inc.v. City of Thus,a severe adverse impact on one ruled insufficient.) Philadelphia,635 A.2d 612,619(Pa. portion of an owner's property interest 1993), "in fifteen years since Penn will not result in a taking so long as In addition, the Supreme Court has Central," no state has ruled that a the property as a whole can continue ruled that some degree of"rough pro- "taking occurs when a state desig- to be used in a profitable manner. portionality" must be shown to exist nates a building as historic." For further discussion on the takings between the specific governmental issue see J. Kayden, "Historic action at issue and the impact of a Takings claims involving the denial of Preservation and the New Takings proposed development. This rule permission to alter or demolish historic Cases: Landmarks Preserved," 6 precludes placing onerous require- structures are also routinely dismissed. Fordham Environmental Law Journal 3 ments on property owners seeking Both federal and state courts have (1995), reprinted 14 Preservation Law governmental approval. In Dolan v. ruled that governmental actions under Reporter 1235 (1995). City of Tigard, 114 S.Ct. 2309(1994), historic preservation laws that prevent for example, the Supreme Court landowners from realizing the highest Statutory Responses found that a taking had resulted since and best use of their property are not 'Tigard had failed to establish that the unconstitutional. A taking will not In some situations,statutory provisions development exaction of a greenway result when the owner can realize a may protect individuals from potential and bicycle path would mitigate the reasonable rate of return on his or her regulatory takings. Many jurisdictions, flooding and traffic impacts caused by investment or can continue to use the for example, include provisions in a proposed store expansion in a property in its current condition or their preservation ordinances that roughly proportionate manner. upon rehabilitation. Several courts establish a separate administrative have also ruled that a property owner process for considering cases of undue Historic preservation laws are rarely must establish that he or she cannot hardship that may lead to potential challenged on this basis. In Penn recoup his or her investment in the takings claims. Commonly referred to— Central Transportation Company v.New historic property through sale of the as economic hardship provisions, they York City,438 U.S. 104, 129(1978), the property "as is"or upon rehabilitation. enable local governments to address ® A Laypersons Guide to Preservation Law 1n 1978 the( :S.Supreme Court upheld ..• via-. l orf•City s denial of permission to ,. ._._.._._. _ '• - ",ii ctn uct a 55-story office tower on Grand - - " .i•rrt7al Terminal in the landmark deci- •• "•-••••-•••\ ,P. Penn Central I Cansportatlon Co. "' .4\ �.„•..• + . - -'„•i..m..;q,, City of New York. e �.• ��• - srW •+r- __ _ _ -.tom _ —_—..= -1. \ = -\`\ '� t ► p 4/ '�;; i it ;��� I_ - it MN. . - •• - t_ .G hardship claims in individual cases and cases, a portion of that property)has constitutional requirement is help prevent invalidation of commis- been diminished by a certain percent- designed to protect individuals from lion decisions on constitutional age(sometimes as low as 10 percent.) arbitrary governmental action by grounds. Economic hardship provi- ensuring that the process of making, sions are typically invoked once an While highly controversial, the impact applying,and enforcing laws is fair. owner has been denied permission to of takings laws on historic preserva- The amount of protection afforded demolish or substantially alter his or tion has not been documented. usually depends upon the type of her property. An applicant may be Nonetheless, because historic preser- action being taken, the interest of the required to submit detailed informa- vation laws may affect private prop- individual involved,the extent to don to show that retention or sale of erry, these laws are likely to have which the governmental action affects the property is economically infeasible. some impact on efforts to regulate his- the interest at stake,and to a lesser tonic property and should be con- extent, the government's need to The standard for measuring economic suited where applicable. work efficiently and expeditiously. hardship may vary from one jurisdic- rion to the next. Most jurisdictions, Due Process and Equal Protection The most fundamental requirement however, use the same standard as of procedural due process is the that for a regulatory taking, finding Two basic constitutional concepts opportunity to be heard. The U.S. economic hardship when an owner underlie all regulatory laws in the Supreme Court has made clear that a has been denied all economically United States,including any effort to trial-type hearing is not required in viable use of his or her property_. protect historic property—fairness and every case. A hearing will be deemed equal treatment. Known in legal ter- sufficient if it provides all interested :1 number of states have enacted so- minology as "due process" and "equal persons sufficient opportunity to pre- called "takings" laws mandating a protection," they require that restric- sent their cases fairly in a meeting governmental assessment of the tions imposed on individual rights be open to the public. impact of a proposed action on indi- free from arbitrary or discriminatory idual property owners to avoid situa- treatment and that the individual In preservation cases,a hearing is [ions that may ultimately result in a receives sufficient notice and an generally held before property is des- compensable taking. A proposed reg- opportunity CO be heard. ignated for protection under a local illation or governmental action may preservation ordinance and in consid- t:til to be enacted based upon its pro- Procedural Due Process ering an application to alter or demol- jected impact on constitutionally-pro- ish property once designated. Such tected property rights. In a very The Fifth and Fourteenth hearings are usually " informal," limited number of states,compensa- Amendments to the U.S.Constitution meaning that witnesses are not sworn non may he required upon a showing require that no person be deprived of in and cross examination is not by a private owner that the value of "life, libert;or happiness" without required. Many jurisdictions, how- his or her property (and, in some due process of law. Generally referred ever,follow specific statutory proce- to as "procedural due process," this dures relating to the timing and Restrictions on the Regulation of Historic Property Ell Constitutional Issues at a Glance speech. These constitutional protec- the remedy for constitutional viola- tions are made applicable to the tions is "invalidation." However, The United States Constitution states through the Fourteenth damages may be obtained through § contains several provisions that pro- Amendment. In addition,the 1983 of the Civil Rights Act of 1871 tect the individual from the state. Fourteenth Amendment guarantees (42 U.S.C. § 1983),which provides Included in the Bill of Rights are "equal protection" under the law relief for individuals against state important restrictions on governmen- actions and public officials who tal actions that are relevant to historic Except for the Fifth Amendment, violate federally protected rights. preservation such as a prohibition on which provides for compensation if the "taking" of property without just a taking of property through overly compensation and restrictions on free burdensome regulatory action occurs, Regulatory Taking Establishment Clause Source: Fifth and Fourteenth Amendments. Source: First Amendment. Purpose: Protect against overly burdensome Purpose: Ensure that laws are neutral toward religion. or confiscatory governmental actions affect- Requirement: Laws must have a secular purpose and may ing private property. not advance or inhibit religion or foster an Requirement: Governmental action must "substantially "excessive entanglement" with religion. advance legitimate state interest" and not deny owner"economically viable use of his Remedy: Invalidation. land." Look at(1)economic impact on owner; (2)effect on "distinct-investment- Free Exercise Clause backed expectations;" and (3) "character of governmental action." Must be "nexus" Source: First Amendment. between governmental action and objective Purpose: Protect against laws or governmental actions being served and conditions on develop- that inhibit the free exercise of religion or ment imposed by government must be coerce individuals into violating their religion. "roughly proportional." Remedy: Compensation and/or invalidation. Requirement: Except for"neutral laws of general applica- bility," a government may not "substantially burden" the free exercise of religion unless Procedural Due Process the government can establish that the burden is the "least restrictive means"of furthering a Source: Fifth and Fourteenth Amendment. "compelling governmental interest." Purpose: Protect the individual from arbitrary and Remedy: Invalidation. capricious governmental action. Requirement: Government must provide individual notice Free Speech and opportunity to be heard before affecting protected property right. Source: First Amendment. Remedy: Invalidation. Purpose: Protect individual against governmental restrictions on speech based on content. Equal Protection Requirement: Government may not abridge speech, including signs and other media used to Source: Fourteenth Amendment. convey ideas. However, it can impose "reasonable time, place, and manner" Propose: Protect against discriminatory restrictions on speech, if those restrictions governmental actions. are "content-neutral" and "narrowly tailored" Requirement: Laws must be fairly and uniformly applied. to meet legitimate governmental objectives. Remedy: Invalidation. Remedy: Invalidation. ® A Laypersons Guide to Preservation Lai process for conducting hearings which property directly affected by a pro- vague, i.e.,they are too vague to give address such issues as the presenta- posed designation of property or by fair notice of the laws being imposed. don of the staff report, the presenta- decisions relating to an application for Courts,however, have uniformly tion of the applicant and expert a certificate of appropriateness are rejected these challenges. Historic witnesses,and consideration of testi- generally entitled to individual notice preservation ordinances have been mony of other interested persons or by mail. Although not necessarily a upheld, both "facially" and "as organizations. constitutional requirement,many applied," so long as procedural safe- communities also mail individual guards have been enacted to control a Embraced within the hearing require- notices to nearby property owners. preservation commission's discretion ment are a number of other individual Notice requirements,however, may and so long as the meaning of general rights. In a preservation context, for vary depending on the law of a partic- criteria and standards is discernible example,a property owner generally ular state. from the facts and circumstances. For has the right to fair notice of a pro- example, a requirement that any new posed action, such as the designation The right CO be heard also includes construction in a historic district be of his or her property as a historic the right to an impartial proceeding. consistent in scale and design with resource,and the factors under con- Commission members must be un- existing historic structures should be sideration. The owner should be biased. They must avoid prejudging able to withstand constitutional attack given an opportunity to present rea- a case or exhibiting personal animos- since that requirement will not be sons in favor of or opposed to the pro- itv against any particular individual. considered in a vacuum but rather in posed action as well as witnesses and When a conflict of interest exists,the the context of nearby properties and relevant evidence. Finally,a record of commission member should remove the character of the district as a whole. the proceedings should be made and himself or herself from the decision- a formal decision based on the factors making process. Commission mem- It is important to recognize that fed- prescribed should be issued. bers must also avoid ex parte contacts, eral and state constitutions set forth including any oral or written commu- only the minimum requirements that Notice must be both timely and suffi- nications that are not part of the pub- must be met in adopting and imple- ciently clear so that affected individu- lic record and which other interested menting historic preservation laws. als will be able to appear and contest parties have not been given reason- State and local laws governing proce- issues in a meaningful way. The type able notice. dural requirements as well as any of notice given generally depends on court decisions interpreting specific the interest at stake. Notice is gener- While allegations have been made constitutional or statutory require- ally provided in one of three forms: that historic preservation commis- ments may provide greater protection individual mailed notice;published lions,as a whole,are institutionally to the individual. Laws that generally notice (usually through a local news- biased in favor of preservation,this impose procedural requirements in paper);and posted notice(usually a argument has generally failed in addition to those required under the sign on the property at issue). recognition that the specialized back- constitution include state enabling grounds of many individual commis- laws,state sunshine laws,federal or In preservation cases, notice is gener- sion members actually help to ensure state administrative procedure acts, ally provided in advance of hearings fair and informed decision making. local land use laws including preserva- regarding the designation of historic tion ordinances,and implementing property or consideration of an appli- A number of preservation laws have regulations including any rules of pro- cation to alter or demolish such prop- been challenged under the due cedures,or others. erty. Property owners or occupants of process clause as unconstitutionally Public hearingc p,o ide an oppolyrrnitt •t+._r.am..�.. ----- `.r.�......, lor applicants to resent their plans to - --'•...................... passer cation commissions. - --'•'"- _.. 44 - -- i 4IP . . ,, kl. •- '-.- liv.... Restrictions on the Regulation of Historic Property sa Equal Protection pie,a law that provides special funding that the burden is the "least restric- for religious schools or exempts reli- Live means" of furthering a "corn- The Fourteenth Amendment to the gious property from building code pelling governmental interest." The U.S. Constitution.among other requirements may be found to violate Supreme Court. however,carved out r things, protects against any state the Establishment Clause. major exception to that rule. The action that would "deny to any person Smith Court stated that "neutral laws within its jurisdiction the equal pro- The Free Exercise Clause, on the other of general applicability" need not be tection of the laws." This means that hand, prohibits governmental entities justified by a "compelling state inter- similarly situated property should be from substantially burdening the free est" even if they substantially burden treated similarly under the law exercise of religion, unless the gov- the exercise of religion. Different treatment, however,of simi- ernment can establish that the burden lar property will be upheld if reason- is "the least restrictive means" of fur- Four distinct issues should be able grounds exist for the disparity. thering a "compelling governmental addressed in considering the constitu- interest" such as public health or tionality of the regulation of historic Equal protection claims rarely suc- safety. However. "neutral laws of religious properties in view of Smith. ceed in historic preservation cases. general applicability" need not be jus- First,what is the religious basis for In Penn Central, the Supreme Court titled by a "compelling governmental asserting a free exercise violation? ruled that a landmarks ordinance that interest," even if"the law has the Second, is the law a "neutral law of singled out selected properties for incidental effect of burdening a par- general applicability?" If the law is landmark designation was not dis- titular religious practice." A law found not to be neutral, then it must criminatory since the ordinance designed to promote secular objec- be determined whether, third, the "embodie[d] a comprehensive plan to tives, for example,such as protecting law or action "substantially burdens" preserve structures of historic or aes- historic buildings from demolition, the free exercise of religion. Finally, thetic interest wherever they might would not burden the free exercise of one must consider whether the action he found in the city." The Supreme religion even though a congregation was taken in "furtherance of a com- Court found it significant that more may be required to spend additional pelling state interest," and, if so, than 400 other landmarks and 31 his- money to rehabilitate rather than whether the action is "the least tonic districts had been designated demolish and rebuild a historic house restrictive means" of furthering that under the city's overall plan. of worship. interest. Because historic preserva- tion is generally not viewed as a corn- Nonetheless,the uniform application Although relatively few preservation- pelling state interest, free exercise of written criteria and standards is related cases have been brought cases in this area are generally unsuc- critical to the integrity of governmen- under the First Amendment,claims cessful once a court has determined tal actions. While courts have consis- may arise in response to the designa- that the free exercise of religion has tently ruled that criteria governing the tion and regulation of historic reli- been substantially burdened. designation and review of proposed gious property. Free speech claims actions affecting historic resources generally occur in the context of sign Religious Basis for Objection. The need not be precise to pass constitu- regulations. Supreme Court has made clear that tional muster, it is clear that they the individual or institution seeking must be fairly and uniformly applied. Free Exercise of Religion exemption from governmental laws Note that many jurisdictions base under the First Amendment must first their standards on the Secretary of the While strong arguments exist support- show that the conduct in question is Interior's Standards for Rehabilitation. ing the regulation of historic religious grounded in religious belief. In other property,the law in this area is still words,the question of whether a reli- The First Amendment evolving. While not always consistent, gious property owner has a viable free the few court decisions addressing this exercise claim depends on the reli- The First Amendment to the U.S. question in the context of preservation gious nature of the objection. Not Constitution provides that "Congress laws provide some guiding principles. every change that a religious property shall make no law respecting an estab- owner desires to make to its property lishment of religion,or prohibiting The controlling U.S.Supreme Court implicates the Free Exercise Clause. the free exercise thereof;or abridging decision on the free exercise issue is Alterations to historic religious prop- the freedom of speech. . . ." The Employment Division v.Smith,494 U.S. err based on practical considerations Establishment Clause generally requires 872 (1990). In that decision, the rather than theological choice warrant government neutrality toward religion. Supreme Court reaffirmed prior case no more protection than changes to It prohibits laws that advance religion law which held that a government secular property. or express favoritism toward religion or may not "substantially burden" an that foster "an excessive entangle- individual's free exercise of religion ment"with religion. Thus, for exam- unless the government can establish 12 A Lorpercr.on:c Guide to P,rservation Low ' r;' In Near York City,the (See,e.g,. Rector, Warden&Members of •` iffl -_:r.PI Second Circuit ruled the Vestry of St. Bartholomew's Church v. t --illi _ that the denial of an New York Citr,914 F.2d 348(2d. Cir. i application by Sr. 1990),cert.denied,499 U.S. 905 (1991). - r r r 2 ti. Bardro%news Church Application of landmark law to r r . :-4 R` 'ill to demolish a comma- church-owned structure does not i ,1e • uiry house adjacent to impose unconstitutional burden on ' ; _ r '•, - the historic church build- free exercise of religion under the ` �iiiE . - - C', ing to consmrct a 47 First Amendment.) _ ' ~ ` V story once tower did ,G: ii t• , . ' - •` -c '? t not unconstitutionally Although preservation laws may have zAtzt- _ 'i ,�..- '' 1 burden the church s flee a financial impact on religious prop- • •1y, v�Net-� `�i ., '• y �.`i. - exercise of religion. erty owners,this impact generally t, �, ,, raises "takings" concerns rather than -ff-¢ >e -. 1 :4- free exercise concerns. According CO ��� ' - t the U.S. Supreme Court,a govern- ,6 ?, � 4-rr al ... :•i a- r� mental action must in fact "coerce" ` { "T ; ;mo ,-f\_ , an individual into violating his or her - -•*L4`++.# _ ", —= - beliefs,or "penalize" or "punish" reli- _ : = '••4` ::;-•; ,{t:" '_ gious individuals before a free exer- cise ti _ claim will be upheld.h r.. + • • { j j.+ Compelling State Interest. In the • • 1 r !ii E,i, ,. event that a preservation law is - - — _ALA _ .= deemed "non-neutral" or not of"gen- eral applicability," and the regulation " �•:� - a;.---s:r-ram :_ . --:- _ _ -: _• .r - " -' _ of historic religious property would .� .__-. result in a "substantial burden" on the free exercise of religion,any restric- Although distinguishing between cerns of religious property owners. tions under the law must be justified religious and non-religious changes Most legal scholars, however,agree by the virtually insurmountable "com- to historic religious property may be that historic preservation laws easily pelling state interest" test,which only difficult, determinations are generally pass this requirement since the applies to government interests such based on whether a proposed change restrictions apply to all historic prop- as public safety. No court thus far has stems from a "sincerely held belief," erty,whether secular or religious,and ruled that historic preservation meets such as the need to replace a cruci- without regard to the religious orien- that test. form-shaped window with the Star tation of the historic property owner. of David. If a religious property Statutory Protections. Efforts have owner establishes that the belief is "Substantial Burden on Religion." been taken at both the federal and "sincerely held" and the change is Court decisions addressing this issue state levels to enact laws to protect "religious in character," then the gov- are both modest in number and con- against infringements on the free ernment must accept those assertions flicting in result. On the one hand, exercise of religion. In 1993 as true even if it considers them to be the Washington Supreme Court has Congress enacted the Religious illogical or incomprehensible. consistently struck down the applica- Freedom Restoration Act,42 U.S.C. tion of historic preservation laws to §§ 2000bb,etseg., (RFRA). This law "Neutral Law of General historic properties owned by religious essentially nullifies Smith by restoring Applicability." The principal federal institutions,ruling that under the the "compelling state interest" stan- court precedent in this area has found state's constitution even the nomina- dard of judicial review in all cases historic preservation laws to be "neu- tion of property owned by a religious where the free exercise of religion is tral laws of general applicability." organization for designation as a his- substantially burdened. The U.S. There is some court precedent to the toric landmark unconstitutionally bur- Supreme Court, however,declared contrary, particularly from the state of dens a church's free exercise rights. RFRA unconstitutional in the context Washington. The Washington Court, On the other hand,other courts and of a dispute over a city's denial of ironically, found a preservation ordi- legal experts in the field strongly permission CO substantially demolish nance to be non-neutral since it pro- maintain that compliance with historic a historic church to accommodate a vided a liturgical exception from the preservation laws should not be inter- larger congregation, in Boerne v. regulation of historic property in an preted as imposing a "substantial bur- Flores, No. 95-2074(June 25, 1997). effort to address the free exercise con- den" on the free exercise of religion. Restrictions on the Regulation of Historic Property El A limited number of state and local ties in historic districts. As with free Discovery Network, Inc.. 113 S.Ct. 1505 governments have responded to con- exercise of religion claims,few court (1993), struck down an ordinance ban- cerns raised by religious property decisions exist on this particular issue Wing all commercial newsracks while owners over the landmarking of their in a preservation context. However,a permitting non-commercial newsrack property with the adoption of historic substantial body of state and federal on the basis that the city's action religious property exemptions from case law exists on the question of the lacked a close relationship to its stated historic preservation laws. Again, constitutionality of sign regulations, in purpose of addressing aesthetic and while little case law on this subject particular,and free speech.overall. safety concerns. While distinctions exists, strong arguments exist that this between on-premises(business iden- practice violates the Establishment In general. the First Amendment to tification)signs and off-premises(bill- Clause of the First Amendment, the U.S.Constitution bars the regula- boards and other types of advertising) which requires neutrality towards reli- tion of speech, including signs, on the signs is generally permissible.any gion. In fact,a California trial court basis of content. Thus, a community- exceptions within those categories has struck down a religious property wide ban on all political signs would must be carefully justified. exemption in a historic preservation he unconstitutional. law as unconstitutional in East Bay Generally speaking.a government can Asian Local Development Corp.v. State In considering the neutrality of sign impose reasonable time, place, and of California, No. 95AS02560(Cal. regulations, it is important to recog- manner restrictions on speech if those Super. Ct. May 15, 1996). This case nize that "non-commercial" signs and restrictions are "content-neutral." was pending before the California other forms of"pure" speech involv- Laws that have "an incidental effect" Court of Appeal as of the writing of ing political or religious messages will on some speakers or messages and not this publication. be afforded greater protection than others will be upheld as content-neu- commercial speech. However, this tral so long as they serve some pur- Free Speech does not mean, in turn, that regula- pose unrelated to the content of the tions favoring non-commercial speech regulated speech. Historic preserva- First Amendment claims have also over commercial speech will necessar- tion and aesthetic considerations are surfaced in the context of alleged vio- ily be upheld. For example, the U.S. judicially recognized police power lations of free speech resulting from Supreme Court in City of Cincinnati v. objectives. efforts to regulate signs or other activi- Restrictions on speech must also be N i4,.-- (• Sign controls are often "narrowly tailored" to meet govern- ' , • +- Jiili tU used in commercial dig- mental objectives. A law need not • c_ k,. ., triers to help maintain a employ_ the least restrictive means to s • k , '� r ''hs..': 't.i•',v sense of history. satisfy the governmental objective at =R 4 `.. +' a ate.- .7, •s r'. -‘...,t '%. i.. yy. /� `- issue. Nonetheless,restrictions on N tik ; 't e- - ,;'li.:::-..rst', speech should not be "substantially i\t': '•; _:'A ..�F, broader than necessary. \ t '`n ~t£, The vast majority of free speech `f?. l' \1 , �` --Y: y1c� r questions arise in the context of sign j� { .t ,�•.,a_ .:1-4e,y t; `,, regulations in historic distracts, how- • ,' rCh*,? r�: ever, free speech questions have sur- .. - iT'• k- ? � ,.�:; ��..� ,�, faced in other contexts as well Free it . _.::.-,�-;'. T nct'e�,p 0 at ir_ _- t speech claims have been raised, - '•� 5f It .'1' ti •-'. • although unsuccessfully, in reserya- - ', - tion cases involving a total ban on • k}i '+14- newspaper vending machines in a his- t.. tonic district,the distribution of adver- ' r , • :! ';� , '�; tising leaflets in a historic district,and 1. t, ii: I — - the denial of permission to paint a I 4 'N' , _." mural on the wall of a commercial 4 ? 4-'='�,,'i Id _/" .4. i j building in a historic district. � � s ® A La'petson's Guide to Preservation Law Voluntary Approaches museums are generally open to the funds,provide loan guarantees or par- public, they often play a key role in ticipate in the lending of money with to Historic Resource attracting tourism to specific areas. other financial institutions. Protection Historic museums may be owned and Historic,archeological, environmental, variety of programs encourage the operated by public and/or private and other resources may also be pro- A preservation of privately-owned his organizations. The level of protection tected through land trusts. By acquir- toric resources through voluntary often depends upon the resources ing parcels of land and/or partial action ranging from preservation ease- available to restore the property or interests in property; nonprofit organi- make necessary repairs. In some zations with limited funds can provide ments to tax incentives. These pro instances, property may be donated to long-term stewardship of important grams often play a critical role in preservation organizations,along with resources. Land trusts often work historic preservation by encouraging protection for significant resources special endowments to ensure its directly with private landowners, maintenance over time,through chari- soliciting donations of land,develop- xv here regulatory protection measures table giving or estate planning tech- ment rights,and conservation ease- do not exist or by augmenting exist- ing regulatory programs by providing niques. ments. When critical parcels of land a higher degree and/or more lasting cannot be obtained, donations may be protection. In considering how best to protect a sought to purchase the land. historic resource, such as a house, it is DIRECT ACQUISITION important to address the viability of Easement Programs the resource over time. In some For many years historic resources instances, property may be better pro- Historic properties are frequently pro- within the United States have been tected if used as a house or office tected by preservation or conservation rather than preserved as a house easements. Conservation easement are protected through voluntary efforts accomplished primarily by acquisition. museum with limited resources. partial restrictions on land for conser- Often limited CO places associated vation purposes which may include Revolving Funds and Land Trusts historic preservation,scenic preserva- «ith important people or significant historic events, these resources are tion,archeology,and so forth. While revolving funds may be estab- Conservation easements, for example, often purchased by government enti lished by either private or govern- may be used to protect important ties or nonprofit organizations and generally operated as house museums. mental entities, they are generally archeological resources located on pri- operated at the private level by his- vately-owned property. While this approach to preservation is tonic preservation and other charitable still used today, alternative methods organizations(who can accept tax- The term preservation easement refers have been developed to preserve his- deductible donations). Revolving to easements on historic property. tonic resources without converting funds are typically established This type of easement may be used them to museum use,which requires through donations,grants,or loans of to preserve the facade of the building a significant financial investment. money that generate income suffi- (facade easements)and/or the entire Historic resources may be purchased cient to finance the acquisition of structure and surrounding land. through revolving funds and then threatened properties. Upon acquisi- resold after restrictions have been tion, the property is either rehabili- Under Section 170(h)of the Internal tated and sold or sold with protective Revenue Code, historic property own- imposed. Historic properties may also he protected by acquiring easements covenants or preservation easements. ers may receive a charitable tax deduc- The proceeds from the resale are then tion for the donation of a conservation or partial interests in property,which iye preservation organizations or used to replenish the fund. easement. To be deductible,however, publicg entities the right to approve the easement must meet a number of Revolving fund money may be used certain conditions. In particular,prop- changes to properties for a period of COpurchase historic property directly erties must be donated to a qualified years or in perpetuity. or to finance the purchase or rehabili- charitable organization. House Museums tation by another entity or individual. Organizations with revolving funds The easement donation is usually \lany of our nation's most important may serve as a lender when other documented in the form of an ease- sources of money are unavailable or ment agreement. The agreement spells historic properties are preserved as House museums. This form of protec- the terms for other loans are too out the rights of the "holding organi- restrictive or expensive. In addition zation" or donee,ands recorded on tion generally involves restoration of the interior and exterior of the build- to providing direct loans,organizations the deed of record. While easements ing and preservation of the surround may also,through their revolving may be of lesser duration,an ease- ing landscape. Because house ment must be "perpetual" to qualify \ioltintary Approaches to Historic Resource Protection Ffi for federal tax benefits. Regulations public land use policies that tend to issue. "Certified historic structures" governing "qualified conservation favor demolition and new construc- (residential investment and commer- contributions" are set forth at 26 don;and they encourage the rehabili- cial property)are eligible for a 20 per- U.S.C.Parts 1,20 and 25. tation of historic structures. While no cent credit while noncertified, one incentive program accomplishes nonresidential property placed in ser- Historic preservation organizations all three objectives, meaningful tax vice before 1936 is eligible for a 10 often serve as recipients of preserva- incentives have been adopted at the percent credit. I.R.C. §46(b);48(g). tion easements. As a recipient, the federal,state, and increasingly,the organization is responsible for moni- local level. Several specific conditions must be toring and enforcing the restrictions satisfied to qualify for the credit. In spelled out in the easement agree- Federal Tax Incentives addition to being historic, the build- ment. If the property owner subject ing must be income producing, not an to the easement violates the terms of The federal government encourages owner-occupied residence,and the agreement, then the organization the preservation and rehabilitation of "placed in service" before the begin- has the legal right to require the historic structures and other resources ning of the rehabilitation, meaning owner to correct the violation and, if through tax incentives. By rehabili- the property must have been available necessary, restore the property to its rating eligible buildings or investing for its intended use before being reha- prior condition. in such projects, taxpayers can recoup bilitated. Most importantly, the dollar for dollar expenditures in the building must be "substantially reha- Organizations operating easement form of a credit from tax owed if cer- bilitated" and the rehabilitation must programs generally establish an appli- taro criteria and standards are met. be a "qualified rehabilitation." In cation process,written criteria for Taxpayers may also deduct from their other words, rehabilitation costs must accepting easements,and a standard taxable income, in the form of a exceed the adjusted basis of the easement agreement which can be "charitable tax deduction," the value building or$5,000.and the work per- modified based on the particular of donated,full or partial interests in formed must meet preservation stan- resource at issue. Fees are often historic property. dards. See I.R.C. §48(g)and Treas. imposed to cover costs associated with Reg. §§ 1.46 et.seq. Credits from monitoring the easement(i.e., in the Federal Historic Rehabilitation "passive activities" (those in which form of an endowment). Tax Credit the taxpayer is not involved on a regu- lar,continuous,and substantial basis) TAX INCENTIVES Perhaps the best known incentive to may not be used to offset income and preserve historic property is the his- taxes owed from "non-passive activi- Tax incentive programs generally toric rehabilitation tax credit. This ties." For example, limited partner address three important objectives: incentive gives property owners either investors in rehabilitation projects they provide monetary support for a 10 or 20 percent tax credit on reha- owners of property subject to preser- bilitation expenses, depending upon vation laws; they counter private and the classification of the building at Easements can be used to protect both the interior and exterior of historic buildings such as Mar--a-Logo in 11 ist Palm Beach. .r. " t.IL t Florida. lir , Z .04, ....... ..__,',-'''.4 ..,,,,,,- ir:,.- v _ w .e - --7----,:::::........ -" _ • . -_,.....,,,,,..,.....,:. _., _. ..:. ,.., ,,, _ .... .. . i . , . vi:,.. 1..,-vt, ,, 1... I .:t.'d 7-r-1-1 I i•_!'• •'• ' .41V--- •• •— A --.. • �V.-'.. ® A Laypersons Guide to Preservation Law Federal tax incentives have Historic resources are generally 1 been used to rehabilitate both donated as part of lifetime and estate residential and commercial, planning objectives, including the �ci :-,,hrY, f _ income producing property deferral and reduction of the overall •- � .."---- iimmip�-�+ ;�:�r• throughout the country. tax burden of the property owner and a ...„,-,,2„.,,, -_:.fit : ,. , his or her survivors as well as the con- _ _ - - tinned preservation of the property ,, f . Sm`_-; into the future. The fundamentals of . .-- -- ; lifetime and estate planning are ��. beyond the scope of this publication. - I _ \ Generally speaking. however, a his- _..„,I toric property owner can ensure the preservation of a historic resource by donating the structure to a presen•a- _ tion or other charitable organization. I A historic house, for example, may be • given CO a preservation organization v_ jjI ii for use as a museum or for future sale - with restrictions that protect the building in perpetuity Alternatively, !„r. __ historic property may be donated to a „LI non preser anon organization with i rf 1'_zk place. In some cases a "charitable remainder" gift of historic property 4, may be made to an organization, - �— s.,- . allowing for the retention of a "life Tir. it J wry. -. �,_,,,-• - \\ - rt. estate" to allow the immediate family to reside in the house until the death of the donor. would not be able to apply the reha- tied to a deduction from taxable hilitation credit against wages and income or taxable estates and gifts, Historic resources may also he pre- portfolio income such as stocks divi- the amount of money or the fair mar- served through the donation of partial dends and interest on bank accounts. ket value of property donated to a interests in property,commonly A credit, however, may be carried charitable organization. With respect referred to as preservation or conser- over to future tax years to offset taxes CO charitable contribution deductions vation easements. As discussed ear- from passive activities. from income,the value of the deduc- tier,owners of historic properties who tion may depend upon the taxpayer's donate easements,or partial interests A rehabilitation tax credit may not be adjusted gross income and the type of in their property, to qualified preser- taken until the Secretary of the property donated. Deductions for vation or conservation organizations Department of the Interior has aril- estate and gift tax purposes,however, may be eligible for a charitable contri- fed that the building at issue is his- are generally unlimited. bution deduction under Section 170 tonic and the rehabilitation has met of the Internal Revenue Code. I.R.C. specific standards. Certifications of For historic preservation purposes, §170(h); I.R.C. §§ 2055(f)and 2522; historic significance and certifications charitable organizations include gov- and Treas. Reg. § 1.170A et.seq. of rehabilitation work are obtained ernmental entities, if the contribution Among other requirements, the donor from the National Park Service, upon is made exclusively for public pur- must agree, in the form of a record- review by the appropriate state his- poses,and a variety of educational able deed, to relinquish his or her tonic preservation officer. Regulations and nonprofit organizations. (See rights to demolish,alter, or develop governing the certification process are I.R.C. § 170(c)(1)&(2).) To qualify the property, in perpetuity,to a quali- set forth at 36 C.F.R. Part 67. as a charitable organization, nonprofit fled organization. Upon donation, the organizations must obtain a determi- donor and all subsequent property Charitable Giving Rules nation letter from the Internal owners will not be able to change the Revenue Service attesting to their sta- property without the express permis- •i'he federal government encourages tus as a tax-exempt organization sion of the recipient organization. the donation of historic property under Section 501(c)(3)of the through its charitable giving rules. Internal Revenue Code. Generally speaking. a taxpayer is end- Voluntary Approaches to Historic Resource Protection si The value of the easement is the dif- for a period of time. Finally; under a Other Related ference between the property's fair property tax exemption, historic prop- market value before donation of the ertv may be completely or partially Laws and ISSlleS easement and its fair market value exempt from taxation,sometimes afterward. In order to obtain the char- based on the difference between the A number of miscellaneous laws cones itable deduction, the donor must property's assessed value before and into play in any resource protection retain a professional appraiser to value after rehabilitation. program. While many of these laws the donated easement, unless the address concerns unrelated to historic donation is worth less than $5.000. Most states link their incentive pro- resource protection,they often grams to historic rehabilitations. gen- include provisions that may either State and Local Tax Incentives erall•requiring that historic property enhance or curtail preservation efforts. be at least partially renovated. A lim- Several jurisdictions provide special ited number of states, however, pro- ACCESS LAWS incentives to encourage the mainte- vide relief based solely upon nance and rehabilitation of historic designation as a historic landmark. Increasingly,state and federal govern- properties,typically in the form of ments are enacting laws that prohibit property and/or income tax relief. As With a few exceptions. property tax discrimination against persons with with federal income tax incentives. incentives are generally not used disabilities. While historic property relief is generally available only to statewide. Many states limit tax relief owners, in general, must meet each owners of qualified historic properties to jurisdictions that have opted to par- law's specific requirements,alternative making qualified rehabilitations. The ticipate in the program. In at least measures of compliance may be size of the incentive is directly pro- one state, however,jurisdictions are applied if the historic resource would portional to the size of the rehabilita- automatically included in the pro- otherwise be threatened or destroyed. tion. State and local tax incentives gram, unless they have opted out. The most comprehensive example of may be available on rehabilitations for this type of legislation,to date, is the either or both, income producing and Income Tax Relief Americans with Disabilities Act,42 non-income producing property. U.S.C. §§ 12101-12213,(ADA). This A few states provide relief in the form law prohibits discrimination to individ- Tax incentive programs are typically of a credit from state income tax for uals with disabilities in a wide range of administered at the state level by the preservation projects. Similar in many circumstances including private sector— state historic preservation office. respects to the federal rehabilitation employment,public services,trans- Although infrequent, local incentives tax credit, relief is provided to owners portation,telecommunications,and may be provided in the form of prop- of historic property who substantially most significantly for historic resources, erty tax relief or as a credit from local rehabilitate their property according places of public accommodation. taxes. Most state and local govern- to preservation standards. The incen- ments use the Secretary of the tive may be tied directly to the fed- The level of compliance under the Interior's Standards for Rehabilitation eral income tax credit or provided ADA generally depends on the classi- in certifying historic rehabilitations. independently; based on state- fication of the facility. The ADA enacted procedures. requires, for example, that govern- Properiy Tax Relief ment buildings, "places of public Again,the size of the credit and the accommodation" such as hotels and Property tax relief is generally pro- minimum amount of money that must restaurants, and "commercial facili- vided in one of three ways:a property be spent varies from state to state. ties," including office buildings and assessment freeze, a property tax Some jurisdictions also impose a warehouses, be "readily accessible" to abatement, or a property tax exemp- "cap" or ceiling on the total amount the disabled. The law establishes Lion. Under a property assessment of the credit or the amount that can specific accessibility requirements for freeze, the assessed value of rehabili- be taken each year. new construction and alterations to tared property is frozen at the pre- existing structures and requires the rehabilitation assessed value for a set removal of existing architectural or number of years. Under a property communication barriers when their tax abatement, the tax owed on his- removal is "readily achievable." toric property is "abated" or reduced Finally, all public entities must make any service, program, or activity read- ily accessible and usable by disabled persons. ® .1 Lmperson's Guide to Pmcerr•ation Law In general,owners, lessees,or opera- ENVIRONMENTAL HAZARD LAWS ment of standards for laboratory tors of historic buildings, structures, testing.technical assistance,and or sites must comply with the ADA. Special environmental liability laws, public education.and the perfor- Alterations to "qualified" historic enacted at the federal and state level. mance of lead paint exposure buildings and facilities, including the apply to individuals who own, or have studies). construction of new additions or reno- a financial interest in property with ration of existing spaces, for example, environmental hazards. Historic Liability for hazardous wastes may be should be made readily accessible to preservation organizations directly found under the following federal and the maximum extent feasible. involved in real estate activities as state laws: Alternative measures of compliance owners, developers, or holders of may be used if the historic resource preservation easements may be ■ the Resource Conservation and would be threatened or destroyed. directly liable for environmental prob- Recovery Act,42 U.S.C. §6901 et. In most cases,the entity making the lems associated with such property. seq. (which regulates the treatment, alteration must consult with the state Historic preservation organizations storage,and disposal of hazardous historic preservation officer regarding lending money secured by real prop- wastes); accessibility requirements. (See ern-may also be liable under certain • the Asbestos Hazard Emergency ADA Accessible Guidelines 56 circumstances. Response Act of 1986, 15 U.S.C. § Federal Register 35619-20(July 26, 2641 (which addresses the removal 1991).) Qualified properties include The most sweeping law governing ha and containment of asbestos);and historic buildings and facilities that bility for hazardous substances is the are listed,or eligible for listing, in the Comprehensive Environmental • the Occupational Health and National Register of Historic Places, Response,Compensation and Safety Act,29 U.S.C.A. §§ 651-678 or designated as historic under state Liability Act(CERCLA or (29 C.F.R. §§ 1910.1001 and or local law "Superfund" act),42 U.S.C. §§9601- 1929.58)(which establishes 9675,which authorizes the federal asbestos standards applicable CO Architectural barriers such as steps or government to clean up hazardous employers before, during,and narrow doors and communication bar- substance releases and recover dam- after a rehabilitation project). riers such as high mounted tele- ages and associated costs from those phones,must be removed from who own or "control" the property. Finally, liability may be imposed historic resources that are used as under the Toxic Substances Control "public accommodations," if"readily In addition to other environmental Act, 15 U.S.C. § 2601 et.seq., men- achievable." If the barrier removal hazards, the following federal laws tioned earlier,which applies to aban- would destroy the historical signifi- address lead-based paint hazards: doned or improperly used or disposed cance of the building,however,alter- sources of toxic substances,and the native methods of compliance may be ■ the Residential Lead-Based Paint Clean Water Act,33 U.S.C. § 1251 et. provided. Public entities are also not Hazard Reduction Act of 1992,42 seq.,which governs the unlawful dis- required to take any action that would U.S.C. §§4851-4856(which charges to surface or ground water. threaten or destroy a property's his- imposes specific abatement and Several states have enacted some tonic significance. disclosure requirements governing form of"superfund" legislation, lead-based paint in residential imposing liability on property owners The ADA is primarily enforced property); for cleanup costs associated with haz- through suits brought by individuals ardous waste,and specialized laws ■ the Lead Paint Poisoning addressing lead paint contamination who believe that they have been dis- b criminated against. In addition,the Prevention Act of 1971,42 U.S.C. asbestos. U.S.Attorney General may initiate §48_1 et.seq. (which sets forth specific inspection and lead-based An increasingnumber of states are compliance review and sue for injunc- paint abatement requirements on tive relief and monetary damages. passing"brownfield" laws to make State and local access codes may dif- federally-owned and assisted reclamation of historic urban sites eas- ier from the ADA and may be housing); and ier. These laws limit an individual's enforced in other ways. ■ the Toxic Substances Control Act, or organization's exposure to legal lia- 15 U.S.C. § 2601 et.seq. (which bility from contamination when they directs federal agencies to enact volunteer to clean-up contaminated regulations governing lead-based sites in certain areas. In some cases, paint training programs and certifi- technical or financial assistance may cation procedures for contractors also be available. involved in lead-based paint removal,and requires the develop- Other Related Laws and Issues 111 BUILDING CODE REQUIREMENTS Conference of Building Officials tive transportation methods,allows (ICBO). known as the Uniform transportation monies to be spent on The rehabilitation of historic build- Building(ode,and the code of the bus and rail lines, bike paths,and ings is often hindered by the applica- Southern Building Code Congress sidewalks, in addition to highways tion of building codes and standards, International (SBCCI)or Standard and streets. Up to this point, the fed which specify how buildings must be Building Code. eral government, through the Federal constructed and used in order to pro- Aid Highway Act,strongly favored tect the public's health, safety, and All of these codes have incorporated interstate highways over public trans- general welfare. Because building special provisions for rehabilitation, portation. codes set forth standards for new con- which require for the most part that struction, particular problems arise additions and alterations meet new Besides giving states more freedom when those standards are applied to code requirements. but that existing to chose how they spend their trans- historic resources. Code require- parts of the buildings can avoid code portation dollars, ISTEA establishes ments, for example, may mandate the requirements, provided that the three other important principles that removal or alteration of historic mate- building is not made less safe. can be favorable to historic preserva- . rials and spaces to meet fire and other Several states now exempt historic tion: safety requirements. buildings from onerous code require- ments if specific conditions are met. • intermodalism—which focuses on Building codes are generally adopted the quality of connections at the state level and enforced at the ISTEA between various transportation local level. Most state code programs modes such as transit and bus; follow model codes, incorporating The Intermodal Surface • modifications as necessary to respond Transportation Act, enacted in 1991, local governmental participation in to individual needs and circum- and subject to renewal in 1997,sets state transportation decisions;and stances. The three most commonly forth the financial and legal frame- ■ transportation planning which, used model codes include the code of work that states must follow to qualify among other things, requires states the Building Officials and Code for federal matching funds for all to prepare long-range comprehen- Administrators(BOCA),generally transportation projects. This law; sive plans and look at the impact referred to as the National Building strongly supported by those favoring transportation projects have on Code, the code of the International mass transportation and other alterna- other governmental goals such as r1�,, I / �•�� clean air and reduced traffic con- `�i � The open stairwells of gestion. 1 lq 1, , ? mans'older and historic ti buildings often make it ISTEA also authorized a$2.6 billion �4 _ - ".-•. difficult to comply with "enhancements" program which has safety�4' fire and life saf proven to be a major source of fund- . , requirements. ing for historic preservation projects. ' States are required to set aside 10 per- . o cent of their "Surface Transportation :r•__ �' _ Funds" funds for enhancement pro- jects such as historic preservation, I ill landscaping,and scenic beautification. In general,an enhancement project . ._ must be related—by function, prox- • r, __ imity.or impact—to a transportation ' ' IV. . i facility or intermodal system linking various modes of transportation. ` ' Road Design Standards i Standards governing road design can i • -:.4 -.,. — -- threaten historic resources and i! _ — adversely affect local community char- _ .� . y acter in unexpected ways. These 'i s• 1... '� ,\_ _ standards, for example, may require i ' that certain roads in a historic district o, x he widened, that trees he taken r.a = ¢ down, or curb-site parking in down- town`! • o .� " ' . �. areas be removed. ® .1 La person's Guide to Preservation Law Roads included in the National elements in local comprehensive Acknowledgments Highway System (NHS)must comply plans—which state agencies, includ- with guidelines adopted by the L.S. ing departments of transportation, A Layperson's Guide to Historic 1)epartment of Transportation in con- must honor. The laws of Washington. Preservation Lars was written by Julia sulration with the American Maine, and Rhode Island list historic H. Miller. Ms. Miller is the editor of Association of State Highway and preservation among the state's top the Preservation Lain Reporter: pub- Transportation Officials (AASHTO). planning goals. Oregon and lished by the National Trust for Roads that are not part of the NHS Washington mandate "urban growth Historic Preservation. She has written are subject to state design standards. boundaries," that prevent sprawl-type extensively on historic preservation development from spreading into law issues and co-authored Historic While AASHTO standards and other rural areas. Maryland's "Smart Preservation Lou•&Taxation, a three- design standards are advisory in form, Growth" law eliminates state subsi- volume treatise on historic preserva- they are generally treated as legal dies for sprawl. Georgia provides pro- tion law. requirements and rigidly applied. tection for regionally important This practice has been the target of cultural resources. The inspiration for writing this book considerable criticism,since the came from Paul Edmondson,general AASHTO standards recognize impor- LAWS AFFECTING THE counsel for the National Trust for rant concerns such as environmental ORGANIZATION AND OPERATION Historic Preservation,who saw the protection and historic preservation. OF HISTORIC PRESERVATION need for a basic summary on historic For example,the minimum width ORGANIZATIONS preservation law that would be useful requirements for roads and bridges, to the preservation community and based on projections for high speed Historic preservation organizations helpful in the teaching of preservation driving, are often unnecessarily large generally qualify for tax exempt status law With the support of Katherine and out-of-scale with many historic under Section 501(c)(3)of the Adams,director of preservation ser- areas and rural communities. Internal Revenue Code. Under that vices and Byrd Wood, program associ- provision,corporations "organized and ate, this book became possible. NHS road segments located in desig- operated" exclusively for charitable nated scenic or historic areas, may be and educational purposes may qualify Thompson Mayes,associate general exempted from AASHTO standards for federal income tax exemption. As counsel for the National Trust, played by obtaining a waiver from the U.S. a nonprofit,charitable organization, a major role in the organization and Department of Transportation. funds can be raised more easily writing of this publication. His clear 1STEA specifically encourages states because any contributions made to vision and constructive suggestions to obtain such waivers unless a panic- such organizations are tax deductible. proved invaluable as A Latperson's ular road is part of the interstate sys- Organizations enjoying tax-exempt Guide to Historic Preservation Lary began tern. An alternative set of standards is status under federal laws are generally to take place. The individual contribu- being drafted by the Institute of eligible for tax exemption under state tions of Constance Beaumont,Megan Transportation Engineers and at least and local laws as well. Bellue,Jennifer Dooley,and Edith one state,Maine, has modified its Shine are also greatly appreciated. design standards to allow narrower Historic preservation organizations roads and shoulders in certain areas. enjoying tax-exempt status must be careful not to jeopardize that status by State Growth Management Laws engaging in activities contrary to their charitable purpose. Among other At least 11 states have enacted corn- things,an organization must be oper- prehensive, state-wide growth man- ated "exclusively" or "primarily" for agement laws. Most of these laws one or more tax exempt purpose and contain provisions that can help his- an organization's net earnings may not tonic preservation advocates limit inure to the benefit of any private sprawl which, directly or indirectly, individual such as an officer or direc- harms historic resources. For exam- tor. Finally,an organization's activi- ple, these laws tend to encourage the ties must be for the public benefit as revitalization of older urban areas and a whole. Lobbying activities,while discourage new development that not prohibited,are subject to specific drains the economic vitaliry out of his- limitations under the tax code. tonic downtowns and neighborhoods. The growth management laws of Delaware and Rhode Island mandate the inclusion of historic preservation Other Related Laws and Issues ea Resources on Historic Bender, 1986&Supp. 1989),although of pertinent laws and regulations. It no longer in print,contain detailed may be purchased from Wiley 2i:Sons Preservation Law information on a wide variety of for$155 by calling(800)879-4539. preservation law issues. Historic preservation law is a rela- Smart States,Better Communities. tively new field, first gaining recogni- Preservation Law Reporter. Published Written by Constance E. Beaumont don as a distinct body of law in 1957 since 1982 by the Law Department of and published by the National Trust with the publication of Jacob H. the National Trust for Historic for Historic Preservation in 1996, this Morrison's book,Historic Preservation Preservation, the Preservation Law hook provides an excellent overview Law. Since then, historic preserva- Reporter covers recent court decisions of laws and programs used by states in tion, as a specialized area of law, has and legislative developments relevant preserving historic resources. The grown rapidly;spurring the publica- to historic preservation. The Law book covers a range of topics such as tion of more recent books including Reporter also provides in-depth articles sources of money for historic preserva- Morrison's substantially revised on a wide range of issues,such as lob- tion, incentive programs, rural preser- Historic Preservation Law in 1965,A being by historic preservation organi- vation, transportation,sprawl,and Handbook on Preservation Law, pub- zations,addressing the takings property rights. The book,394 pages, lished jointly by the National Center challenge, recent developments in may be purchased from the National for Preservation Law and the federal preservation law,and interpret- Trust for Historic Preservation for$35 Conservation Foundation in 1983,and ing the Americans with Disabilities by calling(202)588-6286. most recently, the Preservation Law Act. The Law Reporter also publishes Reporter by the National Trust for under separate cover a reference vol- The American Mosaic:Preserving a Historic Preservation,a quarterly ume that provides a comprehensive Nation's Heritage. Published by publication on legal developments. summary of statutory materials,tax U.S./Icomos in 1987 and edited by credit information,sample easements, Robert E.Stipe and Antoinette J. These resources and others provide and model ordinance provisions. The Lee,this publication provides an important information on historic annual subscription rate for the overview of historic preservation laws preservation law issues,which often Preservation Law Reporter is$95 ($55 in the United States,along with dis- involve a complex array of constitu- for members of the Preservation cussion on what types of resources are tional and statutory issues at the Forum program,the National Main preserved and why. This book is out federal,state,and local level. None- Street Network,or staff or members of of print, but available from many theless,there remains a continuing a local preservation commission.) The libraries. need for detailed and in-depth infor- reference volume is available for an mation on preservation law matters on additional$50. For further informa- Handbook on Historic Preservation a systematic and ongoing basis. tion write Preservation Law Reporter, Law. Published jointly by the National Trust for Historic Conservation Foundation and the PRIMARY RESOURCES Preservation, 1785 Massachusetts National Center for Preservation Law Avenue,N.W.Washington.D.C. in 1983, this book provides detailed Publications within this category cover 20036. (202)588-6035. information on preservation laws at a wide range of historic preservation FAX(202)588-6038. the federal,state,and local level, an issues on an ongoing basis. The overview of constitutional issues as Preservation Law Reporter, published Rehabilitating Older and Historic they apply to preservation programs, by the National Trust for Historic Buildings. Written by Stephen L. background discussion on administra- Preservation, is the only publication Kass,Judith M. LaBelle,and David tive and judicial litigation, and a sum- that falls entirely within this category; A. Hansell, this publication focuses on mary of tax incentive programs to However,other publications including tax incentives and other strategies rel- encourage the rehabilitation of his- Smart States,Better Communities evant to the rehabilitation of historic toric structures. The book,523 pages (National Trust for Historic properties. Originally printed in 1985 plus appendices, is no longer in print. Preservation, 1996)and Rehabilitating and revised in 1993,Rehabilitating Copies may be available for review at Older and Historic Buildings(John Older and Historic Buildings covers a preservation agencies and organiza- Wiley&Sons. 1993)provide useful wide range of issues potentially rele- tions or university libraries. overviews of preservation laws. The want to the rehabilitation of historic Handbook on Preservation Law structures,such as key tax provisions, Historic Preservation Law& Taxation. (Conservation Foundation and related housing assistance programs, This three-volume treatise by Tersh National Center for Preservation Law; hazardous waste concerns, federal, Boasberg,Thomas A. Coughlin, III, 1983),Preservation Law ('pdates state.and local preservation laws,and and Julia H. Miller, provides detailed (National Center for Preservation a brief discussion of a sample of actual discussion on federal,state,and local Law; 1985-1994).and Historic historic rehabilitation programs. The preservation laws, preservation ease- Preservation Law&Taxation(i\latthew book. 587 pages.also includes reprints ments, the federal rehabilitation tax ® A Lmperson's Guide to Preservation Law credit,and related issues. Originally A catalog listing most of the National Miscellaneous. The National Trust published by Matthew Bender, Inc. in Trust's publications is available by also publishes a number of booklets 1986 and updated annually through writing and reports that address preservation 989. the treatise is no longer in print. to the National Trust for Historic law and related issues. In 1994 the :opies may be found in law libraries Preservation. 1785 Massachusetts, National Trust published two "reader nationwide. Ave., N.W.Washington, D.C. 20036, friendly" booklets on preservation law attn: Information,or calling issues: Takings Law in Plain English by Preservation Law Updates. Written by (202)588-6286 or 6189. Requests by Christopher J. Duerksen and Richard Stephen N. Dennis, former executive FAX may be sent to (202)588-6223. J. Roddewig and Procedural Due director of the National Center for A list of National Main Street publica- Process in Plain English by Bradford J. Preservation Law,in a newsletter for- Lions can be obtained by contacting White and Paul W. Edmondson. mar.this publication focused primarily the National Main Street Center at on issues helpful to preservation corn- the National Trust for Historic The Preservation Press collection, missions and others directly involved Preservation directly at(202)588-6219. now produced by John Wiley&Sons, in preservation-related activities at the also includes resources that may be local level. This publication is no Information Series. The National helpful to preservation lawyers. A longer in print. A complete set of the Trust for Historic Preservation offers a catalog may be ordered by calling Updates(published from 1988-1994)is number of booklets on a wide range of Wiley at(800)879-4539. housed in the Preservation Law preservation and organizational devel- Collection at the University of Virginia opment issues such as the Economics of National Park Service School of Law in Charlottesville. For Rehabilitation,Safety,Building Codes and further information,contact the law Historic Preservation,and Preservation The National Park Service offers a librarian at(804)924-3384. Revolving Funds. Call the Information variety of publications on issues relat- Series Department of the National ing to historic preservation law and SECONDARY RESOURCES Trust at(202)588-6286 for more archeology through its Cultural information. Resources Program. These include Although preservation law is not the books on topics such as Federal primary focus of publications within Critical Issues Fund(CIF). Several Historic Preservation Laws, monthly this category,these resources generally reports, funded by the Critical Issues periodicals,and a variety of technical include preservation law-related issues Fund of the Department of Law and summaries on issues such as How to among other matters addressed. Public Policy of the National Trust for Establish National Register Boundaries Examples of resources falling within Historic Preservation address preser- for National Register Properties. The this category are a number of National vation law and related issues.Some- Park Service publishes a "Catalog of Trust for Historic Preservation, times published in cooperation with Historic Preservation Publications" National Park Service,and American the American Planning Association's which is available from Heritage Planning Association publications. PAS Reports, these reports address Preservation Services, Department of Information on specific issues may also topics ranging from the economic the Interior, National Park Service, be found on an ongoing basis in law benefits of historic preservation to P.O. Box 37127,Washington, D.C. reviews and legal encyclopedias such preservation planning. Contact the 20013-7127, or address e-mail as American Jurisprudence(published by Public Policy Deparment at the to Larry_Hunter@nps.goy. the Lawyers Cooperative Publishing) National Trust at(202)588-6255 for and West's Federal Practice Digest(pub- more information. CRM.This periodical, published by lished by West Publishing Co). the Cultural Resources Division of the The National Main Street Center of National Park Service, features articles National Trust for the National Trust publishes a series and news items on a variety of cultural Historic Preservation of reports on issues relating to historic resource management and historic preservation and development in preservation issues. Call the National In addition to the Preservation Law downtown areas. Topics discussed Park Service at(202)343-3395. Reporter, the National Trust for include,among others, "Business Historic Preservation publishes a Development for Main Street," Preservation Briefs Series. Published number of booklets and reports on "Community Initiated Development," by the Preservation Assistance specific issues relevant to historic and "Local Government and Historic Division of the National Park preservation law. For example,Smart Preservation." Contact the National Service, this series addresses techni- States,Better Communities, by Main Street Center of the National cal issues relating to the preservation Constance E. Beaumont, discusses Trust at(202)588-6219 for more and rehabilitation of historic struc- preservation laws that can be used by information. tures. Examples include "Making state governments to help local gov- Historic Properties Accessible" and ernments preserve their communities. "The Preservation and Repair of Resources on Historic Preservation Law 11111 Stained and Leaded Glass." the National Trust. Examples RESOURCES ON SPECIFIC ISSUES Contact the National Park Service include: Aesthetics and Land Use at(202)512-1800 to order the Controls:Beyond Ecology and Economics, This subsection identifies publica- Preservation Briefs Series. Innovative Tools for Historic tions that focus on specific topics of Preservation.Preparing a Historic law such as environmental law, tak- National Register Bulletins. The Preservation Ordinance.Preparing a ings law, archeology and the rehabili- Interagency Resource Division of the Historic Preservation Plan. and Takings: tation tax credit and other tax National Park Service publishes a Responding to the Takings Challenge. incentive programs. This list has series of pamphlets on issues relating been compiled to suggest the range of to the National Register of Historic Zoning and Planning Law Report. publications available and is in no way Places ranging from historic ship- This publication reports on major exhaustive. Also note that a number wreck designations to certification issues and decisions on land use law, of articles on specific topics have also of state and local governments. including historic preservation. A been published in the Preservation Call the National Park Service at yearly subscription costs$250. Law Reporter. (202)343-8012 to order National Register Bulletins. American Bar Association Federal Historic Preservation Laws Technical Brief Series. The The Committee on Land Use, Federal Historic Preservation Case Law, Archeology and Ethnography Planning and Zoning Law of the 1966-1996. A. Kanefield,Advisory Program/Departmental Consulting Section of State and Local Council on Historic Preservation, 1966. Archeologist(formerly Archeological Government of the American Bar Assistance Program) provides techni- Association, publishes an annual Federal Historic Preservation Laws. cal information on cultural resource summary of developments in historic Cultural Resources Program, U.S. management and related issues preservation law in the fall issue of Department of the Interior, National through its "Technical Brief' series. the Urban Lawyer. Articles addressing Park Service, 1993. The program also publishes a periodi- specific preservation issues are also cal,Common Ground:Archeology and published periodically. The law Guidelines for Completing National Ethnography in the Public Interest journal, issued quarterly,focuses on Register of Historic Places Forms. U.S. (replacing FederalArcheology),which local government law and urban legal Department of the Interior, National addresses archeological enforcement affairs and is distributed to all mem- Park Service. Interagency Resources, issues and other activities,along with hers of the Section. Back issues may 1991. a number of other publications. For be obtained from Order Fulfillment, specific information on this publica- American Bar Association, 750 North National Register of Historic Places, tion contact the Archeology and Lake Shore Drive,Chicago, Ill. 1966-1994. National Park Service, Ethnography Program of the National 60611, (312)988-5522 or FAX 1995. John Wiley&Sons, 1995. Park Service at 800 N. Capitol Street, (312)988-5568. NW.Suite 210.Washington. D.C. State Preservation Laws 20002. (202)343-4110. Miscellaneous Reporters Smart States,Better Communities. American Planning Association A number of specialized reporters Constance Beaumont, National Trust such as Zoning and Planning Law for Historic Preservation, 1996. The American Planning Association Report(Clark Boardman,New York publishes a wide range of books and City), the Environmental Law Reporter State Enabling Legislation for booklets on issues often related to his- (Environmental Law Institute, Preservation Commissions. P. Thurber toric preservation. A catalog of its Washington D.C),and the Housing and R. Mover, National Trust for publications may be obtained through and Urban Development Reporter(BNA, Historic Preservation, 1984. the Subscription Department, 122 S. Washington. D.C.)address historic Michigan Avenue. Suite 1600, preservation-related issues on an ad Local Preservation Ordinances Chicago. Ill. 60603. (312)431-9100. hoc basis. The Back Forty covers developments in real estate, land use, A Citizen s Guide to Protecting Historic PAS Reports. The American Planning taxation,and exempt organization law P/aces:Local Preservation Ordinances. Associations publishes a series of as they relate to conservation and •National Trust for Historic reports for professional planners. preservation endeavors. Published Preservation. 1992. which,on occasion, address preserva- bimonthly,subscriptions($110/year) tion issues. Many of these reports to the newsletter are available through Local Preservation Ordinances and were published jointly by the Hastings College of Law, 200 Cultural Resources Protection in the Mid- National Trust for Historic McAllister Street.San Francisco, South. P. Cassidy and T. Crimmons, Preservation and are available through Calif. 94102, (415)565-4857. FAX National Trust for Historic (415)565-4818. Preservation, 1988. ® .4 LaYpeison:s Guide to Preservation Lust Preparing a Preservation Ordinance. Take Back Your Streets:How to Protect A Survey of State Statutes Protecting R. Roddewig,American Planning Communities From Asphalt and Traffic. Archeological Resources. C. Carnett, Association PAS Report No.374, 1983. Boston:Conservation Law Esq.,National Trust for Historic Foundation, 1995. Preservation. 1995. Preparing A Preservation Plan. B. White and R. Roddewig,American Transferrable Development Rights Protecting Archeological Site on Private Planning Association PAS Report No. Programs:TDRs and the Real Estate Land. S. Henry. Interagency 450, 1994. .Marketplace. C. Ingrahm,American Resources Division, National Park Planning Association PAS Report No. Service. 1993. Land Use Laws and Preservation 401, 1987. Constitutional Issues Aesthetics and Land Use Controls. Americans With Disabilities Act C. Duerksen,American Planning (ADA) "Avoiding Takings Challenges While Association,Planning Advisory Series Protecting Historic Properties from (PAS)Report No.399, 1986. Accessibility and Historic Entrances to the Demolition,' T. Logue, 19 Stetson Past,VIDEO, National Park Service, Lain Review 3 (Summer 1990). America's Downtowns:Growth,Politics 1993 (Available through Historic and Preservation. R.Collins, E.Waters Windsor, Inc. (802)674-6752.) Procedural Due Process in Plain English. and B. Dotson,The Preservation B.White and P. Edmondson. National Press,National Trust for Historic Americans With Disabilities Act:Its Trust for Historic Preservation/ Preservation, 1991. (Available through Impact on Historic Buildings and National Park Service, 1994. John Wiley&Sons.) Structures, D. Battaglia,reprinted from Preservation Law Reporter, National Takings Law in Plain English. Coordination of Historic Preservation Trust for Historic Preservation, 1991. C. Duerksen and R. Roddewig, and Land-Use Controls:New Directions American Resources Information in Historic Preservation Regulation, The Impact of The Americans with Network, 1994. reprinted from Preservation Law Disabilities Act on Historic Structures. Reporter,J. Miller, National Trust for National Trust for Historic Takings:Responding to the Takings Historic Preservation, 1986-87. Preservation Information Series, 1991. Challenge. R. Roddewig and C. Duerksen,American Planning •Creating Successful Communities. Transportation Association Pas Report No.416, 1989. NI. Nlantrell,S. Harper,and L. Probst, Island Press, 1989. At Roads End: Transportation and Zoning for Historic Preservation, E. Land Use Choices for Communities. Netter and D. Barry, 13 Zoning and How Superstore Sprawl Can Harm D.Carlsen,L.Wormser and C.Ulberg. Planning Law Report 2 (Feb. 1990). Communities(And What Citizens Can Covelo,Calif.: Island Press, 1995. Do About It). Constance Beaumont, Tax Incentive Programs National Trust for Historic Building on the Past;Traveling to the Preservation, 1994, reprinted 1996. Future. I Mei Chan,National Trust Affordable Housing Through Historic for Historic Preservation/Federal Preservation.W. Delvac, S. Escherich, Innovative Tools for Historic Highway Administration, 1995. and B. Hartman,National Trust for Preservation. Marva Morris,American Historic Preservation/National Park Planning Association Pas Report No. "Transportation Enhancements Service, 1995. 438, 1992. Under ISTEA:A Once-In-A-Lifetime Chance for Planners," A. Dawson. The Economic Benefits of Preserving .Ilauaging Growth's Impact on the Mid- Zoning&Planning Law Report,Vol. 19, Community Character: A Practical ,South's Historic and Cultural Resources. No. 1,Jan. 1996. Methodology. Government Finance R. Hunt,National Trust for Historic Research Center of the Government Preservation, 1988. Archeology Finance Officers Assn.,National Trust for Historic Preservation, 1991. .vie Our Land,Save Our Towns. Archeological Resource Protection. Thomas Hylton. Harrisburg,Pa.: S. Hutt, E.Jones and NI. McAllister, The Economics of Rehabilitation. Richly Beautiful Books, 1995. The Preservation Press, National D. Rypkema,National Trust for Trust for Historic Preservation, 1992. Historic Preservation,Information Saving America's Countryside. Samuel (Available through John Wiley&Sons) Series, 1991. N. Stokes,A. Elizabeth Watson,and others. Baltimore:Johns Hopkins University Press, 1989. Resources on Historic Preservation Law Is Local Incentives for Historic Establishing an Easement Program to "hypertext" versions of federal and Preservation. Constance Beaumont, Protect Historic,Scenic and Natural state preservation laws,major court National Trust for Historic Resources. Information Series, National cases,and models for preservation Preservation, 1991. Trust for Historic Preservation, rev: ordinances. The National Trust for ed. 1992. Historic Preservation provides specifies Protecting and Preserving Communities: information on Trust activities and Preservation Revolving Funds. Office of The Federal Tax Law of Conservation publications including the Preservation Financial Services,National Trust for Easements. S.Small. The Land Trust Law Reporter, up-to-date information Historic Preservation, 1993. Exchange, 1986.Supplement 1989. on pending preservation laws, and the National Trust's library at the Smart States,Better Communities. LIBRARIES AND ONLINE RESOURCES University of NIarvland on its home Constance Beaumont, National Trust page, http://www:nthp.org. The for Historic Preservation, 1996. Universities with specialized programs National Park Service provides links in historic preservation generally have to other databases such as the Tax Incentives for Rehabilitating Historic a preservation law component within National Register of Historic Places Buildings,Preservation Assistance their library collection of historic and the Historic American Buildings Division, U.S. Department of the preservation materials. The National Survey(http://www:cr.nps.gov.) The Interior, National Park Service, Trust for Historic Preservation's library National Center for Preservation published annually. is located in the Architecture Building Technology and Training maintains a of the University of Maryland. The separate menu to access a range of Preservation and Conservation collection includes books,journals, international architectural and archeo- Easements newsletters, photographs,and other logical websites. items relating to historic preservation. Appraising Easements:Guidelines for For information,call(301)405-6320. OTHER SOURCES FOR INFORMATION Valuation of Historic Preservation and Land Conservation Easements. National The University of Virginia Law A number of public agencies and non- Trust for Historic Preservation/The School houses the Preservation Law profit organizations may be helpful in Land Trust Alliance,2 ed. 1990. Collection,which includes a number addressing specific legal problems. of books,journals, federal and state The National Trust's Legal Defense The Back Forty. W. Hutton, Hastings documents, litigation files from major Fund, for example, routinely defends, College of Law(ongoing). cases, local ordinances from more than enforces,and monitors developments 700 municipalities,newsletters,and on preservation law(202)588-6035. The Conservation Easement Handbook: other information relating to historic Listed below are a few key national Managing Land Conservation and preservation law. Categories of mate- organizations that may be helpful. Historic Preservation Easement rials in the collection are listed in the The Preservation Yellow Pages Programs. J. Diehl and T. Barrett. University of Virginia Law Library's (National Trust for Historic Land Trust Exchange and Trust for online catalog. For additional informa- Preservation, 1997)contains specific Public Land, 1988. tion contact: Law Librarian, information on programs and issues, University of Virginia Law Library, publications,and lists of federal and The Conservation Easement Stewardship 580 Massie Road,Charlottesville, state agencies and organizations Guide:Designing,Monitoring,and Virginia 22903-1789. (804)924-3384, directly involved in preservation Enforcing Easements. B. Lind. Land FAX(804)982-2232,e-mail address: issues. The publication is available Trust Alliance and Trust for New law@virginia.edu. from John Wiley&Sons. For further Hampshire Lands, 1991. information call 1-800-879-4539. An increasing number of resources Directories of statewide organizations relating to historic preservation may and staffed local preservation organi- be found on the Internet. The zations are also available through the University of Cornell maintains National Trust. Preserve/Net Law, http://www.preser- venet.cornell.edu., which includes ® A Latiperson's Guide to Preservation Law NATIONAL ORGANIZATIONS National Conference of State Historic Preservation Officers American Planning Association 444 North Capitol Street, N.W. =7 76 Massachusetts Ave., NW Suite 342 \\.ashington, DC 20036 Washington, DC 20001-1512 (202) 872-0611 (headquarters) (202)624-5465 Website: http://www.planning.org Website: http://www.achp.gov 122 S. Michigan Ave.,Suite 1600 National Trust for Historic Chicago, IL 60603 Preservation (312)431-9100(publications) Department of Law and Public Policy Legal Defense Fund Archeological Conservancy 1785 Massachusetts Avenue, N.W. 5301 Central Avenue,N.E. Washington, DC 20036 Albuquerque,NM 87108 (202)588-6035 (505)266-1540 Website: http://www.nthp.org National Alliance of Preservation Preservation Action Commissions 1350 Connecticut Avenue, N.W. c/o School of Environmental Design Suite 401 609 Caldwell Hall Washington, DC 20036 University of Georgia (202)659-0915 Athens, GA 30603 Website: http://www.preservenet. (706)542-4731 cornell.edu/presaction/home.htm E-mail: pcassity@sed.uga.edu E-mail: preservationaction@world- net.att.net Society for American Archeology 900 2nd Street N.E. Washington, DC 20002-3557 Website: http://wwwsaa.org • Resources on Historic Preservation Law im Glossary of Terms Advisory Council on Historic Preservation. Independent federal agency responsible for implementing the Section 106 review process. Affirmative maintenance. Requirement in historic preservation ordinances that a building's structural components are maintained. Americans with Disabilities Act(ADA). Law prohibiting discrimination to persons with disabilities, by requiring, among other things, that places generally open to the public, such as restaurants and hotels, be made accessible. Special rules apply to historic buildings and facilities. Appellate review. Review of lower court or agency decision generally based on evidence in the record. Archeological Resources Protection Act. Primary federal statute governing archeological resources. "As applied"claim. Term used to describe argument that a law has been unconstitutionally applied. Abandoned Shipwreck Act. Federal law vesting title to abandoned shipwrecks found in state territorial waters in the states, thereby enabling the preservation of historic shipwrecks. Building code. Law setting forth minimum standards for the construction and use of buildings to protect the public health and safety. Certificate of appropriateness. Certificate issued by a preservation commission to indicate its approval of an application to alter, demolish, move or add on to a protected resource. Certified local government. A city or town that has met specific standards enabling participation in certain National Historic Preservation Act programs. Charitable contribution. A donation to a charitable organization whose value may be deducted from gross income for purposes of determining how much tax is owed. Comprehensive plan. Official plan adopted by local governments that guides decision making over proposed public and private actions affecting community development. Contributing structure. Building or structure in historic district that generally has historic,architectural, cultural or archeological significance. Demolition by neglect. Process of allowing a building to deteriorate to the point where demolition is necessary to protect public health and safety. De novo review. Review of matter for the first time or in the same manner as originally heard. Designation. Act of identifying historic structures and districts subject to regulation in historic preservation ordinances or other preservation laws. Due process. Protection of constitutionally protected rights from arbitrary or dis- criminatory governmental action. Requires notice and opportunity to be heard. ® .A La petson's Guide to Preservation Law Easement(preservation or conservation). Partial interest in property that can be transferred to a nonprofit organization or governmental entity by gift or sale to ensure the protection of a historic resource and/or land area in perpetuity. economic hardship. Extreme economic impact on individual property owner resulting from the application of a historic preservation law. Eligible property. Property that meets the criteria for inclusion in the National Register of Historic Property but is not formally listed. Eminent domain. The right of government to take private property for a public purpose upon payment of"just compensation." Enabling law. Law enacted by a state setting forth the legal parameters by which local governments may operate. Source of authority for enacting local preservation ordinances. Environmental Assessment or Impact Statement. Document prepared by federal agency to establish compliance with obligations under federal or state environ- mental protection laws to consider impact of proposed actions on the environment, including historic resources. Executive Order.Official proclamation issued by the President that may set forth policy or direction or establish specific duties in connection with the execution of federal laws and programs. Facial claim. Term used to describe argument that law is unconstitutional in all situations. minding. Factual or legal determination made by an administrative body or court upon deliberation. Guidelines. Interpretative standards or criteria which are generally advisory in form. Historic district. An area that generally includes within its boundaries a significant concentration of properties linked by architectural style, historical development, or a past event. Keeper of the National Register. Individual in the National Park Service responsible for the listing in and determination of eligibility of properties for inclusion in the National Register of Historic Places. Land trust. A nonprofit organization engaged in the voluntary protection of land for the purpose of providing long-term stewardship of important resources, whether historical,archeological,or environmental,through the acquisition of full or partial interests in property. Land use. General term used to describe how land is or may be utilized or developed,whether for industrial,commercial,residential or agricultural purposes, or as open space. Landmark. A site or structure designated pursuant to a local preservation ordinance or other law that is worthy of preservation because of its particular historic,architectural,archeological or cultural significance. Lien. A claim or charge on property for payment of debt,obligation,or duty. • Glossary of Terms 181 Memorandum of Agreement. Document executed by consulting parties pur- suant to the Section 106 review process that sets forth terms for mitigating or eliminating adverse effects on historic properties resulting from agency action. National Environmental Policy Act. Primary federal law requiring consideration of potential impacts of major federal actions on the environment, including historic and cultural resources. National Historic Landmark. Property included in the National Register of Historic Places that has been judged by the Secretary of the Interior to have "national significance in American history, archeology;architecture,engineering and culture." National Historic Preservation Act. The federal law that encourages the preservation of cultural and historic resources in the United States. National Register of Historic Places. Official inventory of"districts, sites, buildings, structures, and objects significant in American history, architecture, archeology, engineering and culture." Native American Graves and Protection and Repatriation Act. Federal law providing for the repatriation of Native American human skeletal material and related sacred items and objects of cultural patrimony. Passive activity rules. Prohibits the use of deductions and credits from "passive" activities(those in which the taxpayer is not involved on a regular,continuous and substantial basis)to offset income and taxes owned from "non-passive" activities. Public Buildings Cooperative Use Act. Federal law governing the construction, acquisition and management of space by the General Services Administration for use by federal agencies. Police power. The inherent authority residing in each state to regulate,protect, and promote the public health.safety, morals,and general welfare. Precedent. A prior case or decision similar or identical in fact or legal principle to the matter at hand that provides authority for resolution in a similar or identi- cal way. Procedural laws. Those laws that prescribe the method in which rights and responsibilities may be exercised or enforced. Rational basis. Standard of review applied by appellate courts that affords high deference to the wisdom or expertise of an administrative body. Regulations. Rules promulgated by an administrative agency that interpret and implement statutory requirements. Revolving fund. Fund established by a public or nonprofit organization to purchase land or buildings or make grants or loans to facilitate the preservation of historic resources. Section 106. Provision in National Historic Preservation Act that requires federal agencies to consider effects of proposed undertakings on properties listed or eligible for listing in the National Register of Historic Places. Section 4(f). Provision in Department of Transportation Act that prohibits federal approval or funding of transportation projects that require "use" of any historic site unless(1) there is "no feasible and prudent alternative to the project," and (2)the project includes "all possible planning to minimize harm." ® A Latpetson c Guide to Preservation Law Site plan. Proposed plan for development submitted by the property owner for review by a planning board or other governmental entity that addresses issues ,inch as the siting of structures, landscaping, pedestrian and vehicular access, ghting,signage,and other features. Special permit. Device allowing individual review and approval of a proposed development. State historic preservation officer. Official appointed or designated, pursuant to the National Historic Preservation Act, to administer a states historic preserva- tion program. Subdivision. Act of converting land into buildable lots. Ordinances generally set forth standards for layout of streets, utility systems,storm-water management, and so forth. Substantial evidence. Standard of review applied by courts in reviewing govern- mental decisions. A decision will be upheld if supported by such evidence that a reasonable mind would accept as adequate to support a certain conclusion. Substantive laws. Those laws that create,define,and regulate specific rights as opposed to those which set forth the process or means for the enforcement of such rights or obtaining redress. Sunshine law. General term applied to laws that require meetings of governmental agencies and other authorities be open. "Taking"of property. Act of confiscating private property for governmental use through "eminent domain" or by regulatory action. Wax abatement. A reduction, decrease,or diminution of taxes owed,often for fixed period of time. Tax assessment. Formal determination of property value subject to tax. Tax credit. A "dollar for dollar" reduction on taxes owed. Tax deduction. A subtraction from income(rather than taxes)that lowers the amount upon which taxes must be paid. Tax exemption. Immunity from an obligation to pay taxes, in whole or in part. Tax freeze. A "freezing" of the assessed value of property for a period of time. Transferable development right. Technique allowing landowners to transfer right to develop a specific parcel of land to another parcel. Undertaking. Federal agency actions requiring review under Section 106 of the National Historic Preservation Act. Zoning. Act of regulating the use of land and structures according to district. Laws generally specify allowable use for land,such as residential or commercial, and restrictions on development such as minimum lot sizes,set back require- ments, maximum height and bulk,and so forth. Glossary of Terms ai Information Booklets Information booklets are published by the National Trust for Historic Preservation. Answer Your Preservation For a complete list of titles in the series call or write: Information Series,National Trust for Historic Preservation, 1785 Massachusetts Avenue,N. W.,Washington, Questions D.C. 20036, (202)588-6189 or(202)588-6286. FAX(202)588-6223. Copyright© 1997 National Trust for Historic Preservation. ISBN 0-89133-389-4 Richard Moe.President, National Trust for Historic Preservation Peter Brink. Vice President, Programs,Services and Information Katherine Adams,Director, Preservation Services Elizabeth Byrd Wood, Editor Donna Gentry,Business Coordinator Join Historic Preservation Historic Preservation Forum is a membership program for professionals and Forum: The Information organizations. The benefits and privileges of membership include subscriptions to Preservation magazine, and Historic Preservation Forum journal,Forum News, Clearinghouse for the participation in financial/insurance assistance programs, technical advice,substan- Organized Preservation tial discounts on professional conferences and educational publications, and Movementaccess to Preserve Link,the computer-based communications system designed for the preservation community. New Information booklets are available free upon request to Forum members. To join,send$90 annual dues to:Preservation Forum, National Trust for Historic Preservation, 1785 Massachusetts Avenue, N.W,Washington, D.C. 20036. (202)588-6296. The National Trust for Historic Preservation provides leadership,education,and advocacy to save America's diverse historic places and revitalize our communities. Support for the National Trust is provided in part by matching grants from the U.S. Department of the Interior,National Park Service,under provisions of the National Historic Preservation Act of 1966. The opinions expressed in this publication are not necessarily those of the ES.Department of the Interior. Offices of the National Trust for Historic Preservation National Headquarters Midwest Office Mountains/Plains Office 1785 Massachusetts Avenue,N.W. 53 West Jackson Blvd.,Suite 1135 910 16th Street.Suite 1100 Washington.D.C. 20036 Chicago,III. 60604-2103 Denver,Colo. 80202-2910 (202)588-6296 (312)939-5547 (303)623-1504 (Illinois.Indiana,Iowa,Michigan,Minnesota, (Colorado,Kansas,Montana,Nebraska, Mid-Atlantic Office Missouri,Ohio. Wisconsin) North Dakota,South Dakota, Wyoming) One Penn Center at Suburban Station Suite 1520 Northeast Office Southwest Field Office 1617 John F. Kennedy Boulevard Seven Faneuil Hall Marketplace.4th Floor 500 Main Street.Suite 1030 Philadelphia.Pa. 19103-1815 Boston,Mass. 02109-1649 Fort Worth,Tex. 76102-3943 (215)568-8162 (617)523-0885 (817)332-4398 (Delaware.District of Columbia.Maryland (Connecticut.Maine.Massachusetts,New (New Mexico. Texas.Oklahoma) New Jersey.Pennsylvania.Puerto Rico. Hampshire,New Pork,Rhode Island. Vermont) Virginia, Virgin Is/ands. Il est Virginia) Western Office Southern Office One Sutter Street,Suite 707 William Aiken House San Francisco,Calif. 94104-4916 456 King Street (415)956-0610 Charleston.S.C. 29403-6247 (Alaska,Arizona,California,Hawaii, (803)722-8552 Idaho,Nevada, Oregon. Utah, Washington, (Alabama.Arkansas,Florida.Georgia, Pacific island territories) Kentucky.Louisiana,.Mississippi,North Carolina.South Carolina. Tennessee) PROCEDURAL DUE PROCESS in Plain English A GUIDE FOR PRESERVATION COMMISSIONS N BRADFORD J. WHITE PAUL W. EDMONDSON NATIONAL TRUST FOR HISTORIC PRESERVATION This publication was produced as a result of the Procedural Due Process Project,a cooperative project of the following organizations: CONTENTS National Trust for historic Preservation -- •- im--_,National Park Service,U.S.Department of the Interior w "',' • FOREWORD vi National Alliance of Preservation Commissions _ National Center for Preservation Law laI. PROCEDURAL DUE PROCESS: AN OVERVIEW I University of Virginia School of Law II. THE LEGAL FRAMEWORK 5 Funding for this project was provided by a grant from the National Park Service,U.S.Department of A. The Constitution and the Courts 7 the Interior,and administered through the National Trust's Critical Issues Fund.The views expressed B. A Practical Approach for Looking at Procedural Due Process . . 10 herein do not necessarily represent those of the National Park Service. il. WHAT PROCESS IS DUE? 13 A. Notice 13 Bradford J.White is Vice President of Clarion Associates.Inc.,a real estate consulting firm with General principles 13 offices in Chicago and Denver.Paul W.Edmondson is Deputy General Counsel to the National Trust (or Historic Preservation,in Washington.Both Mr.White and Mr.Edmondson have written and Special considerations 16 lectured extensively on preservation law issues,and each provides advice and assistance on B. The Public Hearing 18 preservation law matters to government agencies,nonprofit preservation organizations,and others. Timing of hearing 19 Kate Itemtann Stacy,Deputy City Attorney for the City of San Francisco,and Robert L Zoeckler, Role of commissioners and staff 20 Assistant City Attorney for the City of Atlanta,are both extensively involved in preservation law Issues Role of preservation organizations 21 at the local level. Swearing in of witnesses 21 The authors and the National Trust wish to express their appreciation to the following individuals Cross-examination and rebuttal 21 N who contributed significantly to this project: Voting 22 NExtensive research for this project was conducted by the following law students,each of whom "Sunshine acts" 22 prepared papers on different issue areas within the broader topic of procedural due process: Maintenance of a record 23 Willcox Dunn,University of Virginia School of Law;Joseph H.Jones,Jr.,Marshall-Wythe School of Role of the expert �3 Law,College of William and Mary;Melissa A.MacGill,Washington College of Law,The American Role of counsel University;David Alan Meyer,Boston University School of Law. 24 Timing of witnesses 24 Additional advisors to this project included:Stephen N.Dennis,National Center for Preservation Law, Relevancy of admitted information 24 Julia Hatch Miller,Editor,Preservation Law Reporter,National Trust for Historic Preservation; Access to information prior to hearing 25 Dorothy Miner,Counsel,New York Landmarks Preservation Commission;Stephen Morris,Preservation Planner,Interagency Resources Div,National Park Service;Katherine Raub Ridley,General Counsel C. Record-Based Decisiontnaking 25 and Associate Director,Preservation League of New York State;Gail Rothrock,National Alliance of Preparation of the record • 26 Preservation Commissions;tarry Wenger,Law Librarian,University of Virginia School of Law. Consistency in decisionmaking 26 The authors particularly wish to express their appreciation to Bridget D.Hartman,Director,Critical Minutes, recordings, and transcripts 27 Issues Fund,National Trust for Ilistoric Preservation,who coordinated all work for the project,and D. Bias, Conflicts, and Other Complications 27 to Robert E.Stipe,Professor of Design,North Carolina State University,whose longstanding call for Bias 27 better public information on this issue served as the inspiration for the project. Conflicts of interest 29 Personal conduct 31 Photos:iv(1),vii,5,35:NTIIP audiovisual collections; 1, 13,courtesy New York Landmarks Ex parte contacts 31 Preservation Commission;iv(2)courtesy Maryland-Nat'l Capital Park&Planning Commission. Advisory commissions 32 Copyright 0 1994,National Trust for Ilistoric Preservation in the United States III. TEN TIPS FROM TIIE CITY ATTORNEY 35 1785 Massachusetts Avenue,N.W.,Washington,D.C.20036 'a • FOREWORD But there is a difficult problem that arises from the increasingly widespread '!a use of these tools. In the ordinary situation, the enforcement of most regulations relies ;, . l''••`, ONE OF THE MOST basic concepts underlying the American heavily on lawyers and judges familiar with legal processes and the special language of the •i_.. experiment in democratic government has always been a Gti114.,N4A law. On the other hand, local preservation ordinances are i • •;��� special sense of"fairness"—the idea that all citizens are �., s • I. increasingly administered by lay persons who, though ice. Frog to be treated equally before the law. This sense of fairness �?tv-. 'j]lr typically untutored in the law, are nonetheless held to its �. � !�• 'and equality are what the Fourteenth Amendment and equivalent provisions in most state • j.. very high standards of performance and accountability. •, ! constitutions are all about. Without these words, the American Constitution—indeed, the grand adventure itself—would be meaningless. The courts have made it clear In case after case that the basic standards of fairness to be observed in administering our preservation regulations are no less The concept of fairness or "due process" embodied in the Fourteenth applicable to lay persons than to lawyers and judges. But these laws are often highly Amendment embraces two central ideas.One is that the process of making laws will be open technical,sometimes almost to the point of unintelligibility, and the many lay members of li' to everyone. The other is that in administering and enforcing the law, the procedures co our historic district and landmarks commissions must often-times act like lawyers and employed will not only be open, but essentially neutral as well. In other words, laws will judges, like it or not, qualified or not. not be passed without the knowledge of citizens subject to them, and the procedures by which they are enforced will be impartial —applicable equally to all. This publication has been crafted in the hope of bringing some of the complex rules arising from the concept of"procedural due process" down to earth for the Nowhere are these concepts more important than in the passage, lay commission. It is essential that they take this essay seriously and conduct themselves administration, and enforcement of historic district, according to the precepts set forth. The preservation of the American heritage as well as its landmark, and other preservation regulations of local underlying democratic traditions require no less. and state governments.These are the principal tools by -' 'Ai •+,�,F _ 4 which the owners of private property are specially .,�., ;•,il 1 . •} ,.."A ► ROSBRT B. STIPti burdened with the task of preserving the heritage of the TRUSTEE EMERITUS larger society. - NATIONAL TRUST FOR HISTORIC PRESERVATION PROFESSOR OF DESIGN, N.C. STATE UNIVERSITY 1'i vi! I. PROCEDURAL DUE PROCESS: AN OVERVIEW THE TERM "PROCEDURAL DUE PROCESS" • is short-hand for a set of legal and •1: ^+' practical principles,derived from the I'.;`a ,ill! I . Constitution,court decisions,and state and 'y ` '� �!��,, . local statutory provisions, intended to en ; �-, �.� �,. rle sure that government agencies at all levels- ' ? I e.•�' —federal, state, and local—act fairly in • . . ic_'' .• . making decisions affecting the interests of ' ' a tti'' individual citizens. In the chapters that follow, this publication sets out the basic legal framework that the courts use in approaching procedural due process questions,as well as specific guidance on topics that commonly arise in the context of local ordinances granting regulatory powers to historic preserva- tion commissions or review boards. te • As the information in this publication is considered,it may be useful to keep the following overview in mind: I. "Procedural due process" refers to procedures designed to safeguard individuals from arbitrary governmental action. These procedures help to ensure that the substance of a decision by a government agency or official is reasonable, publicly accepted, and not susceptible to legal challenge. In the preservation context, procedural due process includes the need for notice of a commission action,the need for and type of hearing required, and the procedures necessary for fair and informed decisionmaking. 2. The baseline to look for procedural requirements are those procedures imposed by statute—state enabling legislation, preservation ordinances, state sunshine laws, administrative procedure acts, and others. Because due process requirements vary from state to state, these statutory sources—as well as relevant case law from the state—must be consulted in determining what procedures apply in any given case. PROCEDURAL DUE PROCESS IN PLAIN ENGLISN 3. It is the responsibility of each preservation commission to lion are generally not required. Hearings should be open to establish and follow its own rules of procedure that meet the public, consistent with state "sunshine acts," and the requirements of this statutory baseline,and that go beyond managed in a way that permits a meaningful opportunity for those requirements as necessary to provide additional detail to interested parties to present their views and relevant informa- satisfy constitutional and fairness requirements. tion. Commissions may use reasonable time limits and 4. Property owners, neighbors, and interested members of the other means to manage the conduct of the hearing,so long as general public must be provided a reasonable opportunity to be these requirements are applied even-handedly to all parties. heard on any matter considered by a preservation commission Above all, every participant in a public hearing has the right that affects their interests.There can be no opportunity to be to be treated fairly, and with respect. heard, however, without appropriate notice of an upcoming 7. A preservation commission's decision should adequately explain action by a preservation commission. Therefore, preservation the basis of the decision, with specific reference to infor- commissions must provide reasonable notice of any upcoming mation in the record and the relevant standards and action to affected property owners, neighbors,other interested criteria included in the preservation ordinance. parties, and the general public. Notice may include (1) 8. The commission should carefully record Its actions through individually mailed notice,(2)published notice(usuallywritten minutes.It is also advisable to maintain an audio through local newspapers),and(3) posted notice.General- ly, the closer the distance a person is from a property under or video recording of commission meetings and hearings, consideration by a commission, the more appropriate it is to which can be transcribed as necessary (or as may be required use individually mailed notice. Notice should be sufficiently as a standard procedure by local practice). • detailed so that theperson receivingthe notice understands the 9. The tenets of procedural due process require decisionmaking nature of the action the commission is considering, the date, by a fair and unbiased tribunal. Consequently, preservation time, and place for any public hearing, and the opportunity commission members should avoid even the perception of bias for public participation. or prejudgment in their conduct, particularly by avoiding 5. A public hearing should be held prior to a commission extraneous commentary during—or outside of—commission action on a specific application or proposal. One exception is meetings.Commission members should also be careful to avoid the case of Interim controls,including preliminary designa- conflicts of interest,or even the appearance of a conflict, Lions of historic properties, in which case temporary restric- due to a personal, financial, or professional interest in the tions on the use of property may be put into place pending subject matter of a proceeding (or with an interested party). final action by the commission on a nominated property, in Where a potential conflict exists,advice should be sought from order to prevent demolition or significant alteration of a competent outside source, such as a city or municipal properties under consideration for protection. attorney. If a conflict is found to exist, a commissioner may not participate in the decisionmaking process. 6. Public hearings by preservation.commissions must be carried out in a business-like manner, but need not have the 10. A commission's decisions should be made on the basis of formality of trial-like hearings. Consequently, except where a information contained in the public record and available to all particular jurisdiction may require it (consult your local interested parties. Ex parte contacts (private communi- attorney),swearing-in of witnesses and formal cross-examina- cations between an interested party and a commissioner on an issue before the commission) should be prohibited. PROCEDURAL DUE PROCESS IN PLAIN ENGLISH PROCEDURAL DUE PROCESS IN PLAIN ENGLISII I I. Commission members should work closely with their city or municipal attorney to establish workable procedures, and particularly to ensure that any local or state-level variations In procedural requirements are addressed and incorporated into H. THE LEGAL FRAMEWORK a commission's own rules of procedure. " . . nor shall any State deprive any person of life, liberty, or property without due process of law." —U.S. Const.Amend. XIV THE DUE PROCESS CLAUSE of the FOUr- teenth Amendment, and the Due Process Clause of the Fifth Amend- ;;. ` `1' ment (which applies to the federalgovern- t '.'..-) .;'- ' 4;;•: ment) together enshrine one of the most o- ; fundamental concepts of American democra- `.•• k, cy: that government agencies and officials r 1' . at all levels must act fairly in making .••'?,:•`7..I,, ,� decisions that affect the rights of the indi- r•.i'i '.f' ■ • I? vidual. The term "due process," as it has come to be interpreted rnover the years, effectively stands as shorthand for a set of legal principles designed to safeguard individuals from arbitrary govern- mental action. The various federal and state courts have recognized two categories of protections as coming within the broad framework of "due process." The first, "procedural due process," refers to the manner in which government decisionmaking is carried out. The second,"substantive due process,"addresses the rationality or rea- sonableness of the substance of the decision.Thus,the Constitution requires that both the process and the result of governmental decisionmaking meet basic constitutional standards of fairness and rationality. From a practical standpoint, however,careful attention to the procedural aspects of decisionmaking—in the preservation context, as in any other—can help to ensure that the substance of the decision is reasonable, accepted by the public, and likely to be upheld if challenged in court. What is "procedural due process"?The procedural protections PROCEDURAL DUE PROCESS IN PLAIN ENGLISH PROCEDURAL DUE PROCESS IN PLAIN ENGLISH • emanating from the Due Process Clause generally are considered to A. THE CONSTITUTION AND THE COURTS cover three related subjects: From a legal standpoint, procedural due process, like many (I) the need for, and type of, notice required of other constitutional doctrines, may be described as a set of general governmental actions; principles, the application of which depends on a balancing of (2) the need for,and type of,hearing required;and several different factors. There are four basic factors considered by the courts in (3) the need for fair and informed decision- determining which procedural standards apply to specific govern- making. mental actions affecting the interests of private individuals. They What the Constitution may require for different types of governmen- are: (1) the nature of the governmental action; (2) the nature of tat actions, however, depends on the particular circumstances • the interest of the person in question; (3) the nature of the involved.As remarked by Supreme Court Justice Thurgood Marshall, interference by the proposed governmental action; and (4) the From a legal "[w]e have often noted that procedural due process means many nature of the government's interest in carrying out the action. standpoint, different things in the numerous contexts in which it applies." 1. What is the nature of the governmental action In the context of local historic preservation commissions and in question? Courts addressing procedural due process issues procedural "Procedural review boards, the issue of procedural due process may be framed often make a distinction between two types of governmental actions: due process due process as the following question: those that are"legislative"in nature,and those that are considered may be means many "adjudicative." described as a different What rights do the various parties who may be interested "Legislative" actions—those that involve the adoption of set of general in either(1) the designation of a historic property or(2) general public policies—usually are not considered to require things in the the issuance of a permit relating to a designated property extensive procedural protections for individual members of the principles,the numerous con- have in the decisionmaking process of the government public. The reason for this is that the public process involved in application of texts in which agency responsible for those actions? making legislative decisions itself addresses many fairness concerns, which depends it applies." From a constitutional standpoint, the answer to this question may because of the large number of persons affected,the openness of the on a balancing be found through application of an analytical framework that process, and the degree to which elected officials are directly of several to considers four separate factors (as described below). It is essential accountable to the public through the electoral process.Consequent- different V to note, however, that many procedural requirements are also ly, legislative actions are not generally subject to detailed hearing, expressly set out in state or local laws, independent of the require- notice, or public participation requirements. factors. ments of the Constitution.Those statutory procedures may be more "Adjudicative"actions,on the other hand, usually involve the or less stringent than those required by the Constitution,but in any application of previously-adopted policies to individual cases and case must be followed.Another complicating factor is that there are specific factual circumstances,and are more likely to pose questions often state-by-state differences In the way different courts interpret of fairness and impartiality. Consequently, such actions generally the law in this area;these jurisdictional differences should also be require more extensive procedural protections for the individual. noted in determining how much "process" should be afforded in Where do the actions of local preservation commissions and any particular case. review boards fit into this conceptual framework? The answer, unfortunately, is not totally predictable—because of the different ways in which preservation ordinances work, and because of jurisdictional differences in case law from one state to another. PROCEDURAL DUF.PROCESS IN PLAIN ENGLISH PROCEDURAL DUE PROCESS IN PLAIN ENGLISH • In the context of local preservation ordinances, there are In the case of historic preservation ordinances, the owner or generally two different types of governmental actions. First is the occupant of a particular property under consideration for designa- action of designating a property, or a district of properties, as Lion, or that is the subject of a permit proceeding, clearly has a historic. Second is a local preservation commission or review strong interest that may be affected by the government action—an board's action in considering a specific permit application relating interest in the legitimate use of land.Adjacent landowners,who are to a particular property, once that property has been designated. likely to be directly affected by changes to a historic property, also These actions are carried out in different ways by different commu- have a strong interest. in the case of a historic district, other nities. in some communities, for example, designation Is made by property owners within that district may have a lesser,but nonethe- the local legislative body (often after recommendation or nomina- less distinct, interest in any action that may affect the integrity of Lion by a historic preservation commission); in other cases,historic the historic district. Even members of the general public have an It is advisable preservation commissions are solely responsible for designation. interest in the action, although generally their interests are less Designations, particularly those made by a local legislative tangible to check with body through the adoption of an ordinance, are more likelyto be glble than those so directly affected. local counsel Each of these interested parties may be entitled to some considered to be legislative in character (meaning that the courts procedural protection, through notice or an opportunity to partici- The less the to find out may expect less stringent procedural requirements). Unless this Is pate in a public hearing. Nonetheless, the degree of protection how courts in clear under state law, however, it is advisable to check with local afforded may vary, depending on the interest. For example, a degree of any given counsel to determine whether designations (or the action of landowner who has applied for a permit to alter his or her property regulation,the jurisdiction are formally recommending properties for designation) should follow has such a strong interest in the outcome of the preservation less the degree like) to the stricter notice and hearing requirements that may apply to commission proceeding that he or she should be entitled to receive of procedural y "adjudicative"proceedings. in any event, commissions involved In individual written notice of an upcoming hearing on that applica- protection will characterize making or recommending designations should establish basic proce- lion. However, a landowner three blocks awayhas a lesser interest the various dures for notice and public participation to ensure that their actions be required In the proceeding, and may have to rely on some lesser degree of actions that are publicly accepted as fair and reasonable. notice—such as a notice published in a local newspaper,or a sign from a may be taken Commission actions on permit applications or certificates of posted in front of the property in question.Thus, the answer to the constitutional by I. appropriateness,as a general rule, are more likely to be considered question "What amount of process am i due?" may depend to a standpoint. adjudicative, and subject to a higher level of procedural require- certain degree on the person asking the question. preservation ments. (This, as discussed below, does not usually mean trial-like 3.To what degree does the proposed governmental commission. procedures.)Again,because of state-by-state variations,it is advis- action actually interfere in a protected interest? able to check with local counsel to find out how courts In any given Procedural due process applies to any governmental action that jurisdiction are likely to characterize such permit actions,and what affects a "life, liberty, or property" interest recognized by the te requirements may flow from that characterization in that state. Constitution. Different types of governmental actions have different 2. What is the interest of the person entitled to impacts on each of those interests. The constitutional analysis of procedural protection?Governmental actions affecting the use procedural due process used by the courts requires an examination of land affect different parties in different ways.The general rule is of the nature of the interference, in order to adjust the procedures that the interest of any individual varies in accordance with his or accordingly. her proximity to the property that Is the subject of the governmental Historic preservation regulations affect private property or action—in other words, the greater the distance a person Is from economic interests, rather than interests relating to life or liberty. that property, the less procedural protections may be required. Within this area of interests, however, the degree of actual regula- PROCEDURAL DUE PROCESS IN PLAIN ENGLISH PROCEDURAL DUE PROCESS IN PLAIN ENGLISH tion may vary considerably,depending on the legal authority given preservation commissions that recognize the need to establish a to the local historic preservation commission or review board. For workable set of procedures to govern the various actions that may example,a preservation ordinance that merely imposes a demolition be taken by a local historic preservation commission or review delay has far less of an impact on the property and economic board. interests of the owner of a property than does a regulation authoriz- 1. Look first at statutory sources. The term "proce- ing a demolition denial. The less the degree of regulation, the less dural due process" generally refers to the constitutional require- the degree of procedural protection will be required from a • ments emanating from the Due Process Clause. From a practical constitutional standpoint. (In certain situations, a commission's point of view, however, procedural requirements may be imposed actions may be considered merely ministerial, and not require both by the Constitution, and by independent statutory sources. extensive procedures.) Conversely,the stricter the degree of controls These sources, in the preservation context, may include state included in a local preservation regulation, the greater the degree enabling laws for preservation regulations at the local level (or The basic of procedural protections that may be due individuals affected. home rule laws for those ordinances based on home rule powers), procedural 4. What is the nature of the government's interest? the terms of the local preservation ordinance itself, requirements laws—state public In any regulatory proceeding,the public has an interest in ensuringor other or local—specificeally designed to set out procedural imposed b interest in a that the government conducts Its activities in a manner that is requirements for administrative decisionmaking (often called p y workable efficient both from a standpoint of time and economy of effort.This statute should administrative procedure acts). decision- public interest in a workable decisionmaking process always serves In many cases, these laws include some minimal reference to be considered as a legitimate limit on procedural steps. Notice requirements, for making notice and hearing requirements;in a few,procedural requirements to be the example,must be reasonably tailored to balance the interests of the are much more detailed. In any case, the basic requirements baseline for process individual with the broader interests of the community. Thus, the Imposed by statute should be considered to be the baseline for procedural serves as a high cost and time-consuming nature of mailed notice may justify procedural requirements for any local preservation commission,and legitimate resorting to newspaper announcements or posted notices for must be followed carefully. Those baseline statutory require- requirements limit on individuals other than those directly affected by a commission ments—where sketchy—should be supplemented with more detailed for any local procedural proceeding. Similarly, public hearings—when required—must be procedural guidelines to ensure that constitutional due process preservation reasonably limited in time and in scope. Otherwise, endless requirements are fully met. commission, steps. . „process" could prevent governmental action altogether. 2. Understand state case law variations. It is and must be N Important that local preservation commissions be aware of any followed '0 specialprocedural rules that have been recognized bythe courts of B. A PRACTICAL APPROACH FOR LOOKING AT P g carefully. PROCEDURAL DUB PROCESS their particular state. In some cases, the general constitutional requirements of procedural due process have been addressed by state The constitutional framework described above should be courts in contexts that may be of direct relevance to local preserva- understood as general guidance that can help local governments lion commissions—particularly in the context of zoning and other understand the way that the courts approach the issue of procedural land use controls. These decisions may give special attention to due process.From a practical standpoint,however,this constitution- issues such as cross-examination,whether hearings must be taken al framework gives little specific direction for determining what under oath, and whether transcripts may be required. procedures should be used in any particular context. Nonetheless, It is advisable for local preservation commissions to seek the several basic principles can serve as a practical approach for local guidance of a local attorney—either a municipal attorney or lawyer in private practice—with a working knowledge of the particular PROCEDURAL DUE PROCESS IN PLAIN ENGLISH PROCEDURAL DUE PROCESS IN PLAIN ENGLISII court decisions in their state that may be relevant in determining the procedures that should be followed by the commission in exercising its authority. 3. Establish basic procedures that are fair to individual citizens, but that are also workable for the III. WHAT PROCESS IS DUE? government.And stick to them. Once the minimal statutory requirements and state variations are understood, the basic constitutional framework described above should be used by local "The fundamental requisite of due process of law is preservation commissions to establish an expanded set of procedural the opportunity to be heard."—Grannis v.Ordean,234 requirements addressing the various decisions or actions taken by U.S. 385 (1914) the commission in carrying out its responsibilities. The proce- dures—which may be adopted by the commission In the form of HAT Tree OF notice requirements •guidelines or regulations—should be as fair as possible to individu- ` I al property owners, and to members of the public generally. Theyapply historicto thepdreservafferenttion actions takenmk • I IS ':. �� [Ig Y by preservation commis- .1 should not, however, be so detailed or onerous that they are sions? When is a hearing required? WhatYfunworkable for the commission.Procedures that are too detailed are --� —_not likely to be followed to the letter, and maylater be used to tYPe of proceedings must be followed at a „' ti hearing?Must transcripts be taken?Is cross- ! ��' challenge the substantive decisions of the local preservation examination required? What factors are re, e commission. Both flexibility In approach, and consistency in necessary for fair decisionmaking? When ---- application, are key to effective—and defensible—procedures. should a commissioner consider recusing I IIIIIII':Ilm, t'� . ," - himself or herself because of a potential conflict of interest?What " form should a final decision follow? ')o While there are few unequivocal answers to any of these z. questions, application of the various principles described in the previous section of this publication can help to establish a work- able,and legally defensible,set of procedural guidelines for carrying out the work of a local preservation commission. A. NOTICE General principles.The need for notice stems from the re- quirement that people have a right to be heard before a government agency or official takes an action affecting a protected interest. Interested parties cannot properly exercise their"right to be heard" unless the local government or administrative agency informs them In advance of the action that may be taken. In other words, a hear- ing is not meaningful—and may be legally challenged—if inter- ested parties are not given a reasonable opportunity to participate. PROCEDURAL DUE PROCESS IN PLAIN ENGLISH PROCEDURAL DUE PROCESS IN PLAIN ENGLISH What does the procedural due process requirement for notice purpose, preservation commissions should provide notice of up- mean for local preservation commissions? It means that some coming actions to the general public, as well as to interested type of notice should be provided to all interested parties before a parties,(Some communities,in addition to providing general public commission takes an action affecting any specific property. Notice notice of pending actions in the newspaper, provide individual should be given,for example,prior to a Commission designating a mailed notice as a courtesy to interested organizations and landmark or historic district(or formally recommending a building individuals.) or district for designation),or before approving or denying a permit What type of notice is required?The most common types of relating to the alteration or demolition of a historic property, or notice are: (1) individual mailed notice; (2) published notice before acting on a claim of economic hardship. (usually through local newspapers);and(3)posted notice(general- Who should get notice,and what form should it take?The first ly on a sign on the property that is the subject of the action).These In addition to place to look for notice requirements is in the historic preservation three types of notice vary in degree in both cost and effectiveness. notifying ordinance.To the extent that notice requirements are spelled out In The use of individual mailed notice is generally only required individuals the ordinance,commissions should follow them closely.If no notice for those persons who will be directly affected by a local commis- directly requirements are included in the ordinance—or other laws,Includ- sion's actions—particularly the owner whose property is under The most corn- affected,it is ing state enabling acts—other local land use regulations may consideration for designation, or the person who has applied for a mon types of provide a useful framework for developing notice requirements. permit to alter or demolish a designated property. A number of notice are: advisable(and Beyond this, the following guidelines should be followed: communities, as standardpractice, alsoprovide individual mailed (1)individual in many cases Who should receive notice?The individual whose property is notice to adjacent property owners within a set distance from the mailed notice; required by under consideration for historic designation should be given notice property—three hundred feet, for example. For these individuals, statute)that a of any upcoming hearing by a preservation commission on the pro- mailing notice to the "owner of record" listed on the property tax (2) published posed designation.Also,the individual who has applied for a permit rolls is generally considered sufficient.Due process does not require notice(usually commission g pp to alter or demolish a designated property should be given notice of that a title search be undertaken to establish ownership (although through local give some the commission's planned consideration of that application. a few state statutes and local ordinances require that ownership be newspapers); type of public Are neighbors and other nearby property owners entitled to established from deed information). In most cases, consistent use and(3)posted notice notice?While their legal entitlement to notice may be less obvious, of an established database, such as property tax records or water concerning its as a matter of fairness—and to ensure broad public acceptance of department records, is sufficient for purposes of identifying owners notice. upcoming commission decisions—some provision for notice to nearby property for this type of notice. owners should be established. (The different ways that notice may For others in the area,who may be interested in the proceed- actions. be accomplished are described below.) ings but who are not required under local procedures to receive J. What about the general public?Although the interests of the individual mailed notice, the posting of a sign on the subject 1-4 public at large may not be as obvious as those directly affected by property is generally considered sufficient to meet procedural due the actions of a preservation commission, it is advisable (and in • process requirements. many cases required by statute) that a commission give some type For the general public, public advertised notice is generally of public notice concerning its upcoming actions.After all, preser- both effective and cost-efficient.While not always considered neces- vation commissions are designed to promote the educational, cul- sary as a matter of constitutional law, notice through publication tural, economic, and general welfare of the public through the in a newspaper of general circulation in the community is generally preservation and protection of historic and architectural resources, considered an appropriate method to provide notice to the general and to provide a sense of community identity. Consistent with this public of impending actions that a commission is considering. PROCEDURAL DUE PROCESS IN PLAIN ENGLISH PROCEDURAL DUE PROCESS IN PLAIN ENGLISH What about content?Regardless of the type of notice used,the possible, to record local historic designations in local land records. content of the notice should be sufficiently detailed to permit the Some communities include historic designation as an item on a person receiving the notice to understand the nature of the action seller's disclosure form. in addition, some communities make it a that the commission is considering, the date, time, and place for practice to mail information to new purchasers notifying them of any public hearing,and the opportunity for public participation in the property's prior designation and explaining the procedures any proceeding.A good measure of determining whether the notice under the historic preservation ordinance.With the proliferation of meets requirements of fairness and due process is whether a Geographic Information System (GIS) technology allowing local reasonable person would be able to understand the nature and governments to record a wealth of information about each parcel consequences of the action being considered by the commission. located in a community in a data base, information regarding Special considerations in the notice area. Beyond historic designation should be simple to archive and obtain, and these general principles, there are a number of issues that arise should satisfy any notice concerns relating to subsequent purchasers from time to time in the notice area that are worth noting in of designated buildings. particular. They include the following: Failure to give notice. Failure to give notice to an interested While not a Designation by reference to another source may provide no party may not invalidate an administrative proceeding, such as a constitutional notice. Some preservation ordinances provide for local designation public hearing, if the party in question learns of the proceeding If a hearing requirement, of properties on the basis of eligibility or listing in the National some other way and ends up participating. (This is referred to as a addresses new it is a good Register of Historic Places.The National Register was not,however, party having received "actual notice.") in some states, however, matters that idea,where Intended to be used as a local regulatory tool, and does not have failure to comply with statutory notice requirements, even If such the same impact on private property interests as local designation requirements are more stringent than those constitutionally required were not in- possible,to does. (See discussion above on pages 9-10.) Consequently, the cluded in the by due process, may invalidate the preservation commission's record local federal government (which administers the Register) may not have actions. Therefore, when drafting a preservation ordinance or original notice, historic desig- applied the same notice requirements for a National Register listing preparing rules and regulations regarding notice,local communities new notice nations in that would ordinarily apply to a local regulatory program. (Notice should be careful not to over-complicate notice requirements, may be re- local land requirements for National Register nominations are specified in because of the potential for technical failure. In any case, a quired. hN federal regulations, and differ from those described here.) Conse- commission should carefully follow the notice requirements in the records. quently,anylocalpreservation ordinance andpreservation commis-Y ordinance or statute. sion that provides for local designation on the basis of eligibility or . New notice requirements. If a hearing has been called after listing in the National Register should provide separate notice to the proper notice,but new matters are addressed that were not included property owner before locally designating the property because of the in the original notice, new notice may be required. The need for potential effect of local designation on private property interests. new notice and further proceedings depends on simple issues of fair- Notice to new purchasers of properly. Most courts recognize ness—i.e.,whether a member of the public might reasonably have that new purchasers have a responsibility to investigate the legal anticipated that the new matter would arise at the hearing. Most status of the property,particularly as to matters that are part of the courts will take a practical approach in dealing with this issue—for public record,such as zoning classifications or historic designation. instance, if a new subject Is brought up at a hearing,the preserva- Therefore, most new purchasers cannot claim that they were not Lion commission may be able to leave the record open for a set given notice of a property's local historic designation status, since period of time for additional written public comment. The best they were legally"on notice" at the time of purchase.Nonetheless, solution to this problem is to ensure that the initial notice is while not a constitutional requirement, it Is a good idea, where sufficiently detailed to permit a member of the public to understand PROCEDURAL DUE.PROCESS IN PLAIN ENGLISH PROCEDURAL DUE PROCESS IN PLAIN ENGLISH what will be addressed at the hearing, but not so limited in scope understand the basis for the decision once It is made. that it can be read to exclude consideration of related matters. Interim or preliminary controls. In some cases, it may be necessary for local communities to adopt interim or preliminary The basic elements of a fair hearing include: protections for properties prior to formal designation, in order to preserve the status quo while a detailed preservation program is • an unbiased tribunal; established.Generally,courts have permitted interim restrictions on • fair notice of the proposed action and the grounds asserted the use of property, particularly in emergency situations, without for it; prior notice. Affected individuals should be given notice of the • an opportunity to present reasons why the proposed action Those affected restriction within a reasonable amount of time after it goes into should or should not be taken; effect.However,whenever possible—and when it does not thwart the • the opportunity to present witnesses and relevant evidence; by commission • a meetingopen to the public; and decisions must purpose of the interim regulation—prior notice should be provided. P • the making of a record and statement of reasons. have a fair How do these elements work in the context of a local reserva- The general opportunity to B. THE PUBLIC HEARING P lion commission? The following guidelines should provide some rule in be informed of There are three basic purposes of a public hearing. First, the specific direction: procedural factors to be hearing provides the property owner an opportunity to have input Timing of bearing. The general rule in procedural due due process is with regard to decisions about his or her property. Second, the process is that a hearingshould be held prior to a governmental that a hearing considered,to present hearing provides the decision makers with information on public action affecting a protected property interest. In a few limited opinion on public policy matters. Third, the hearing provides a instances, however, the hearing may be held within a reasonable should be held information forum for the presentation of specific facts concerning a property. time after the government takes action. prior to a gov- relevant to the Courts have not rigidly applied standards for public hearings In the case of local historic preservation commissions, the ernmental ac- decision,and to meet these purposes. Instead, the courts generally weigh private action of designating a property,or acting on a permit application tion affecting a to understand interests relating to an individual's"right to be heard" against the —following the general rule—should be preceded by a public public interest of fair but efficient hearings,so that decisionmaking hearing. One limited exception, however, is the use of interim protected pro- the basis for e interest. N can take place at the local level on a regular basis. Therefore, controls pending a commission's final decision on whether to p wthe decision unless there is statutory or other legal guidance in a particular designate a nominated property as historic. In such a case,interim once it is state or local community that suggests otherwise (which should be restrictions may be necessary to prevent significant alteration or made. carefully determined by the preservation commission with the demolition pending completion of the designation process.(in other assistance of a knowledgeable attorney), public hearings can be words,the restrictions may be necessary to limit a property owner's fairly informal.How informal?"Informal"in the sense of not being ability to circumvent the nomination process by altering or "trial-like"—in other words, no swearing in of witnesses, no cross demolishing a historic property before the government can act.) If examination as long as opposing interests have a reasonable a commission action involves this type of interim control (some- opportunity to present their views, and representation by counsel, times called a "preliminary designation"), the required public while generally permitted, is not mandatory. Basically, what is hearing may take place after imposition of the restriction, in light required is that those affected by commission decisions have a fair of the danger of demolition and the temporary nature of the regula- opportunity to be informed of factors that will be considered by the lion.The necessary hearing should be held as soon as possible after commission,to present information relevant to the decision, and to the temporary restriction is set into place. PROCEDURAL DUE PROCESS IN PLAIN ENGLISH PROCEDURAL DUE PROCESS IN PLAIN ENGLISH Role of preservation commission members and facts in a particular case. (This is often presented as a formal staff staff The preservation commission is usually comprised of report, with recommendations, which becomes part of the public members that have some expertise in architectural history,architec- record.) in working with the commission, however, staff members ture, law, real estate, rehabilitation, or others who are simply should be careful not to present facts that are not made part of the interested in the preservation and protection of historic resources. public record. More and more frequently, historic preservation ordinances are Role of preservation organizations. in all cases, and requiring that some commission members Include residents living especially in communities that do not provide staff to the preserva- in individual landmarks or within historic districts to ensure that tion commission,local preservation organizations or other interested the commission is representative of those members of the public individuals may play a critical role in providing testimony at the Most that are subject to the commission's regulatory powers. hearing. Commissions should ensure that all sides of a particular jurisdictions do Commission Questions frequently arise as to the role that the commission issue are presented for the record; where only the applicant's side members are and its staff must playin the hearingnot require process. One of the responsi- is presented—regardless of how meritorious—the commission may that local allowed,and bilities of the commission is to hear evidence and make recommen- find it difficult to point to any fact in the record that would justify should be dations or decisions regarding designation and issuance of permits. denying the application. commissions encouraged,to In this role, the commission must listen to the testimony of wit- Swearing in of witnesses. Most jurisdictions do not swear in ask questions nesses and consider other evidence presented to them, and make a require that local commissions swear in witnesses at public witnesses at decision based on information in the record.Commission members hearings, so long as testimony is taken in such a manner that all public of witnesses to should not make decisions based on their personal knowledge of those involved understand the importance of the testimony. Some hearings,so determine if facts specific to a particular case if those facts are not part of the courts, however, have ruled (and some state statutes require) that their testimony record or not publicly known.This is not to say that a commission witnesses before any local administrative agency acting in a"quasi- long as is credible. member's personal experience does not come Into play in the deci- judicial"capacity give testimony while under oath to ensure a fair testimony is Commission slonmaking process—after all, commission members are often hearing.This is one of those issues that should be checked carefully taken in such chosen to serve because of their specific knowledge and expertise in with the assistance of local counsel, in order to determine whether a manner that members, preservation or a related field. However, personal knowledge and the actions of local preservation commissions are considered to all those however, must expertise should be used simply to evaluate the reliability of come within such a requirement. be careful not evidence presented in a specific case. Cross-examination and rebuttal. The ability of an involved to"testify"at Commission members are allowed—and should be encour- Interested party to question or dispute the testimony of adverse understand the hearing. aged—to ask questions of witnesses to determine if their testimony witnesses is an Important element of due process. in the context of the importance !, is credible. Commission members, however, must be careful not to an administrative proceeding, however, few courts have found that of the A "testify" at the hearing nor base their decision on information not the ability to challenge the testimony of witnesses must be carried testimony. made part of the public record. out through formal cross-examination. The courts have generally Commission staff members,however,have a different role.Staff recognized that hearings in this type of context may be relatively members play an important—and often active—role in putting informal in nature and do not have to be conducted as if before a together the record on which the commission's decision is based, court. (Indeed, the use of court-like procedures may actually deter but should not play an active role in making the decision itself. In public participation.) Therefore, a commission's refusal to permit a number of jurisdictions, staff members may actually present a formal cross examination would usually not be considered to Information regarding the matter at issue at the hearing, and may deprive the parties of a fair and impartial hearing. For example, a report on information gathered from their own investigations of the designation hearing may seldom involve issues of fact that cross- PROCEDURAL DUE PROCESS IN PLAIN ENGLISII PROCEDURAL DUE PROCESS IN PLAIN ENGLISH j examination will help resolve, because opinions regarding the application of the sunshine act most often arise in meetings that significance of buildings to architecture,history and culture are not take place outside of the normal course of events—for example, particularly well-suited to explanation through cross-examination. when some or all commission members go to a property at the same Instead, the ability to present opposing views and information will time to assess its significance for designation, or to better under- generally satisfy the interests that would otherwise be served by stand a property owner's request for a building permit. in these formal cross-examination. Testimony by all sides of a preservation instances,particularly when a specific date and time have been set issue effectively places all controversies squarely before the commis- for the property visit, the "meeting" should be given public notice sion and becomes part of the record upon which commission in accordance with the notice requirements stated in the particular members base their decision. state's sunshine act,or the appropriate local ordinances. it is easy Voting. Commission members should not be allowed to vote to run afoul of state sunshine acts, and commissions should make by proxy. If a member is unable to attend a meeting where a every effort to comply with them to ensure due process. Commission decision is to be made, that commission member should not be Maintenance of a record. Commissions are responsible members and permitted to vote.No commission member should be able to vote on for compiling and preparing records and making them available to a commission a particular designation,permit application,or economic hardship interested parties. The commission should be able to charge p g Commissions staff must request unless he or she has "heard" the testimony, either by modest fee to cover the costs of making copies of transcripts of having been present at the subject hearing or by having reviewed testimony and minutes,or otherwise providing copies of the record are know and the record,audio or video recordings,or transcripts.in addition,as of proceedings to interested parties.However,the commission should responsible for understand discussed in further detail below,commission members must abstain also make the record available for public inspection at an appropri- compiling and the "sunshine from voting when they have a conflict of Interest. ate location, such as the commission's own offices or the city preparing act"of their "Sunshine Acts." Many states (and some localities) have clerk's office. Failure to maintain a record may be grounds for records and state,which adopted so-called "sunshine acts"—statutes that define what reversal or remand of a decision that has been appealed to the making them constitutes a meeting and require that every portion of an adminis- courts. (The issue of record-based decisionmaking, including what available to requires trative agency and legislative meeting be open to public observation constitutes a record, is discussed further below.) meetings to be except in specific situations.Typical sunshine acts define a meeting Role of the expert. The expert witness has become a interested held openly as taking place whenever a certain number of commission members standard component of the hearing process.Technical information, parties. N after public gather to discuss commission business. Sometimes the number is accompanied by opinion evidence from experts and laypeople,help 3' notice. quantified in the statute or sometimes it is tied to the local to explain the importance of a proposed action and relate the action •"' ordinance's definition of a quorum. To ensure that such meetings to the standards and criteria included in the ordinance. In situa- are open to the public, the commission must provide public notice lions where a commission relies on lay testimony rather than expert of the meeting (usually under terms defined in the sunshine act or testimony, the commission may find that its decision is challenged other local ordinances governing public meetings). Specific cases as"against the weight of the evidence."A commission can reject an that would provide exceptions to the sunshine act may include expert's opinion in weighing and balancing the evidence even where discussions relating to discipline of an employee or litigation there is no other expert testimony. However, in such a case the strategy. In these cases, the information to be discussed could be commission must clearly establish why the testimony of the expert damaging to an individual or could jeopardize the attorney/client is not being accepted, for example by showing that the testimony relationship and the agency is allowed to meet in executive session. was not credible because of inconsistencies, or because of bias, Commission members and commission staff must know and conflicting evidence,or conflict of interest. (If expert testimony is understand the sunshine act of their state. Questions about the one-sided, some commissions are authorized to call on their own PROCEDURAL DUE PROCESS IN PLAIN ENGLISH PROCEDURAL DUE PROCESS IN PLAIN ENGLISH initiative other experts to testify, to give a more balanced picture.) Role of counsel. Due process does not require that Applicant's and public's right of access to infor- mation be present at preservation commission proceedings. mation prior to bearing, including staff recommenda- Nonetheless, the participation of (or representation by) counsel lions or case reports. Just as applicants and the public have should not be prohibited.At the same time,a preservation commis- the right to review transcripts and minutes of meetings, they also sion should not permit the presence of lawyers to turn an informal should be given reasonable access to relevant information prior to a commission hearing. Due process does not require that the hearing process into a trial-like setting. proponents or opponents of a designation or permit application Timing of witnesses. The commission should have estab- fished rules that are applied even-handedly and fairly to all witness- enter into a formal "discovery" process with the commission (such Where es, and that provide the public with a fair opportunity to present asa might belbe requiredivin a trial-like opportunity too)r however,any interested that testimony by testimony.All witnesses, not just those supporting the applicant or party should be given the opportunity review information that proponent, should be granted a reasonable time for testimony. relates to the matter of an upcoming proceeding. Generally, this A preservation many However, a commission should not be forced to hear redundant should include staff recommendations or case reports on the matter individual testimony. It is appropriate for the commission to ask that a (unless this information is deemed confidential, which is the case commission% members of spokesperson be appointed to address a particular point of view. in some jurisdictions; it is advisable to check this with local decision the public is Another option for the commission is to leave the record open for counsel). if the matter involves a single property owner, informs- should likely to be an established period of time to obtain written comment. Hon should be provided to the property owner at the same time it adequately A variety of techniques may be used to provide interested is provided to commission members prior to the subject hearing. if redundant,it many property owners are involved, it is advisable to include in any explain the is a ro mate Parties with a reasonable time to be heard.One way to do this Is to basis of the pp p provide proponents and opponents with a set amount of time—for public notice instructions as to where and how information on the for the example 15 minutes each—for direct presentation, with a brief matter may be reviewed prior to the hearing, decision,with commission to opportunity for rebuttal, as well as an opportunity for interested specific ask that a members of the public to make a brief statement, and an open C. RECORD-BASED DECiSIONMAKING reference to spokesperson record for submission of written comments for a period of time after The right to be heard also includes the right to a responsive information in be appointed the hearing. Whatever technique is used, the commission should decision. This simply means that a preservation commission's the record and to address a apply it consistently to all interestedparties, and provide some decision should adequately explain the basis of the decision, with to applicable flexibility depending on the complexity of the matter at Issue. specific reference to information in the record and to applicable ordinance particular Relevancy of admitted information. Commissions, ordinance criteria. Some state statutes and many preservation point of view unlike courts, are not required to follow strict rules of evidence. ordinances require express findings of fact (or a detailed statement criteria. Courts have recognized that rules of evidence in administrative of reasons) and a written decision. These may not be necessary to tv proceedings, such as commission hearings, should be given more meet constitutional due process standards (for example, a hearing flexibility in favor of admission of evidence. Even where irrelevant transcript or written minutes, if sufficiently detailed, may suffice evidence has been "admitted" during the hearing process, the instead of a formal written decision). However, it is strongly commission,in weighing and balancing that evidence,may properly advisable that commissions articulate—preferably in writing—a give it little or no weight. Still, the commission should avoid summary of findings of fact, the basis for the decision with accepting obviously irrelevant evidence into the record, as it will references to the appropriate ordinance criteria and record, and the only serve to prolong hearings and add confusion to the decision- decision. making process. To ensure that a responsive decision is made by the commis- PROCEDURAL DUE PROCESS IN PLAIN ENGLISH PROCEDURAL DUE PROCESS IN PLAIN ENGLISH sion: (1) a record of the commission hearings and decisionmaking For example, at least one court has upheld a commission's denial process must be prepared;(2) the commission must issue a decision of a permit to apply vinyl siding on a house even where the that lays out the rationale for the action taken by the commission; commission had previously routinely approved such requests. The (3) the decision must be consistent with ordinance criteria and court concluded that the findings of fact supported such a decision. supported by facts in the record; (4) the decision should be Thus,commissions should make every effort to follow precedent but consistent with previous decisions dealing with similar circumstanc- at the same time not be hamstrung by it.As a practical matter,few es; (5) minutes of the meeting at which the decision was made cases are clearly identical.Good recordkeeping,however,is essential The record is a should be prepared, maintained, and approved at the following in order to note different facts that may justify different decisions. meeting; and (6) a verbatim record in the form of an audio or compilation of . Caution must also be taken in those cases that deal with issues video recording or transcript should be maintained. never before considered bya commission.Before makinga decision, testimony Preparation of the record. Preservation commissions the comm from the should make determinations regarding landmark designation and to how the decisionson should may dy apply carefullyexamine the facts and consider future applicants. hearings, certificates of appropriateness and certificates of economic hardship Minutes, Recordings, and Transcripts. Minutes of written that set forth clear findings of fact from the record.These findings, meetings are essential in preparing and maintaining a record for information together with a discussion of how the facts relate to specific the commission to review in making its decisions or maintaining a ordinance criteria,serve as the basis for the decision. history of the commission and its prior decisions for future Minutes of provided by What constitutes the record? The record is a compilation of witnesses commissioners. Minutes help give the commission an institutional meetings are testimony from the hearings, written information provided by memory and consistency, not only from meeting to meeting, but staff reports witnesses, staff reports and recommendations, and any other essential in and recom= information that is placed into the record and used to form the alsore overpla long Minutespert shouldof time ase commission members v dnby the and basis for the decision. Testimony may be recorded in the form of are replaced. be in writing and approved by the preparing mendations, written minutes or audio or video recordings. Audio and video commission at its next meeting.Minutes should also be reasonably maintaining a and any other available for review by the public. record for the recordings are more reliable, particularly when professional court While minutes serve as the detailed summary of the commis- commission information reporters are not available to prepare a formal transcript. that is placed Written information provided by witnesses and other interested sion's meeting, a verbatim record should also be maintained by into the record parties must be maintained as part of the record. It is important to (unlessunlo or video recording.bylolThe recording need not yb transcribedsource), ut maintain the record as a historyof the decisionmaking process, in required by local ordinance or other statutory but and used to g is available if questions arise later about evidence presented, or if form the basis case the decision is later challenged, or in case a similar matter an absent commission member needs to review the proceedings in should arise in the future. for the Consistency in decisionmaking. Due process requires i thedetam tt order to participate in the commission's consideration of • decision. that all applications and applicants coming before the commission matter. be treated consistently. In addition, the commission should make every effort to make decisions that are consistent with one another. D. BIAS, CONFLICTS, AND OTHER COMPLICATIONS However, the overriding principle in the decisionmaking process is A wide variety of other issues relating to the conduct of that decisions be supported by information in the record. In some commissioners, including conflict of interest, ex pane contacts, cases,courts have upheld commission decisions that are seemingly bias, and the role of advisory commissions, must be understood as inconsistent with previous decisions,so long as they are supported part of the overall subject of procedural due process. by information in the record and are consistent with the ordinance. Bias. Whether a historic preservation commission decision PROCEDURAL DUE PROCESS IN PLAIN ENGLISH PROCEDURAL DUE PROCESS IN PLAIN ENGLISH meets procedural due process requirements often depends on that a particular commission member has personal animus, or is commission members remaining unbiased and free from actual or engaged in a personal vendetta,against a particular applicant.Still, apparent conflicts of interest. As many legal commentators and commission members must be extremely cautious to prevent courts have recognized,"an impartial decisionmaker is essential in personal feelings about an applicant from entering into the meeting due process requirements." decisionmaking process. Some extreme cases may require that the Biased commission members create two problems for historic commission member remove himself or herself from the decision- preservation commissions. First, commission decisions may be making process. challenged as violating due process requirements on the grounds of Conflicts of Interest.Allegations of conflict of interest are bias or conflict of interest. Second, any appearance that the more successful in court than any other type of bias claim. members of the commission are biased or have conflicts of interest Commission members should be careful to ensure that they do not will diminish the public perception of the preservation commission have any type of personal, financial, or professional stake in any Commission and call into question the fairness of their decisionmaking process. proceeding before them. When a conflict of interest exists, the Three types of bias,institutional policy bias,prejudgment of a case, commission member should formally remove himself or herself from When a members and personal animus, are discussed below. the decisionmaking process.This includes leaving the room during conflict of should always Institutional policy bias. Allegations are occasionally made any hearing or discussion of the matter, and making no further interest exists, refrain from that the very mission of the historic preservation commission creates statement or comment about the matter. Most local governments the commis- making an institutional policy bias, since most preservation commission have separate conflict of interest ordinances or guidelines; in some sion member statements members have some expertise or interest relating to historic cases these are spelled out in the preservation ordinance or the preservation. Courts have recognized, however that the s ecialized commission's rules and regulations.Although these provisions mayshould g regarding a backgrounds of many individual commission members generally vary, they all direct commission members with real or potential formally particular help to ensure fair and informed decisionmaking, because of the conflicts to refrain from participating in the review of the matter at remove matter outside complexity of issues involved.Courts also recognize that commission issue. Some commissions recognize only financial conflicts, himself or of the members inevitably will have personal opinions regarding a although most also recognize that conflicts may arise that are per- herself from commission preferred course of development or solution to the issue before sonal in nature. them. Due process does not require that commissioners have no As a general rule,being open about potential conflicts early in the detision- meeting opinion about the matter before them, but rather, that commis- the decisionmaking process will help to avoid later allegations of making m setting. stoners consider the evidence with an open mind and give full and due process violations. process. fair consideration to all points of view presented with respect to the Also, if any individual commission member finds that his or facts of a particular case. her personal, professional, or business interests result in recurring Prejudgment of a case. Another form of bias is prejudgment conflicts of interest, it may be advisable for that member to step of the facts of a case. Prejudgment may be alleged where members down from the commission, rather than risk impairment of the of a commission have made public statements regarding the impor- commission's functions. tance of saving a particular structure prior to closing of the record Personal conflicts. These are generally easy to identify and for designation or permit review. To avoid allegations of prejudg- usually revolve around the relationship between a commission ment, commission members should always refrain from making member and an applicant that would create a conflict between self statements regarding a particular matter outside of the commission interest and civic obligations. Direct relationships, such as brother meeting setting and prior to completing the decisionmaking process. or father are easy to identify. indirect relationships, such as Personal animus. Extremely difficult to prove are allegations neighbors or close personal friends, may pose more difficult PROCEDURAL DUE PROCESS IN PLAIN ENGLISH PROCEDURAL DUE PROCESS IN PLAIN ENGLISH .z . questions. Commission members should understand that a conflict commissioner would be well-advised to note—both publicly and may exist even if a relationship creates only an appearance of early in the process—his or her relationship with the organization. impropriety. It may also be advisable in such circumstances to ask the city Financial conflicts. if a commission member's financial attorney or outside counsel to give an opinion for the record about interests will be directly or indirectly affected by a decision of the any potential conflict. commission, he or she should be disqualified from the decision- Personal Conduct.Generally,commission members can be making process. in general,financial interests are easily identified. expected to act in a professional manner, without any general For example, if a commission member owns the structure at issue directive from procedural rules or guidelines.Occasionally,however, or is a limited partner in an entity that owns the structure at issue, a commission member will take some action, such as attending a a financial conflict exists. In addition, if the value of the property commission meeting while under the influence of alcohol,that will owned by a commissioner will be directly enhanced by the decision be particularly embarrassing to a commission. Clearly, these of the commission, the commissioner should be disqualified. This instances should be avoided. However, commissions should have will likely occur where the commissioner owns property adjacent to rules and regulations addressingpp Being open a derelict landmark or potential landmark. in this type of case the problems personal conduct so that when Applicants and problems do occur they can be handled promptly and appropriately. others coming about poten- commissioner may also have a personal conflict because of the tial conflicts relationship with his or her neighbor. More difficult conflict issues Applicants and their representatives, witnesses, and others before the coming before the commission must be treated courteously and early in the arise when the conflict is less direct—for example,when a commis- professionally even under contentious circumstances. commission decision- stoner owns property in the vicinity of the property at issue.in such Another personal conduct matter is failure to attend meetings must be making pro- a case, it may be advisable to seek advice from an attorney who is on a regular basis. Most preservation ordinances or rules and treated familiar with such issues in order to obtain a prior ruling on any regulations address regular meeting attendance. Missing a pre- courteously cess will help potential conflict. in any case, early disclosure and resolution of pro- to ovoid later any fact or relationship that may reasonably be construed to be a determinednumber of consecutive meetings may be automatic and grooundsundsfor dismissal as a commissioner. allegations of potential conflict may help to ward off a later claim of impropriety. Ex Parte Contacts.Another potential problem for preserva- fessionally due process Professional conflicts. These types of conflicts may be raised tion commissions is how to avoid the charge that a commissioner's even under when a commissioner's professional interests conflict with his or her decision is tainted because of ex parte contacts or communications. contentious violations. ability to make an impartial decision. Since many preservation An ex parte contact or communication is an oral or written circumstances. commissioners have some professional interest in historic preserva- communication that is not on the public record,and of which other tion, these types of conflicts can frequently arise. Clearly, in the interested parties are not given reasonable prior notice. There are instance where a commissioner is the architect for the applicant,he a whole range of ex parte contacts that may arise in the course of or she cannot participate in the decisionmaking process. (In such a commission proceeding. For example, a commissioner may want a case, the potential conflict is both professional and financial.) to visit a property before a hearing to better understand the More difficult are issues arising from past employers or professional significance of the property for designation or the possible impacts relationships,or involve commissioners who are directors or policy- of issuing a permit. While site visits are appropriate and useful, makers for a local advocacy group that is taking a public position they should be conducted carefully and openly (preferably, after on a particular designation or permit application. While mere public notice) to prevent being turned into a private briefing for association or past professional relationship with a particular commissioners by the property owner or applicant. in another advocacy group or organization is usually insufficient to constitute example, the commissioner may happen to speak to the appli- a conflict of interest,to avoid accusations of conflict of interest the cant—or to a local preservation advocate—in a social setting PROCEDURAL DUE PROCESS IN PLAIN ENGLISH PROCEDURAL DUE PROCESS IN PLAIN ENGLISH unrelated to the commission proceeding. governments have established advisory commissions for each locally- To preserve fairness,it Is important to prevent any information designated historic district to provide input on preservation matters. from one side of an issue to be given to the decisionmaker without It is strongly recommended that these advisory commissions all Interested parties having an opportunity to know, and if establish and follow basic procedural due process guidelines, by necessary counter,that information.This type of one-sided Informa- providing proper notice of meetings, holding public meetings, lion may taint the decision of a commissioner who receives it, and conducting proceedings in a manner that provides interested parties may result in a subsequent legal challenge. a parse contacts are a reasonable opportunity to participate, and making a decision contrary to the ideals of fairness encompassed within the concept of within a reasonable time. procedural due process, because interested parties cannot rebut or challenge the information. It is good practice to prohibit all ex Ex parte parte communications, and to adhere to this rule. Commission contacts are members should politely inform callers or others that they are not contrary to the permitted to discuss a pending matter outside of the hearing room. ideals of A few jurisdictions recognize ex parte contacts as being fairness acceptable when a commission is acting in a quasi-legislative manner, such as a designation of a historic district. However, this encompassed type of distinction is difficult to apply with any consistency, and in within the any event may open the commission's actions up to challenge on concept of the basis of other types of bias. procedural To avoid due process challenges based on ex parse contacts due process, preservation commissions should adopt rules and regulations that because clearly prohibit such contacts. Commissions should also prohibit commissioners from providing advice or opinion to applicants or interested potential applicants prior to a hearing. parties cannot Ex parse communications, however, may not be fatal to a rebut or proceeding, particularly if disclosed at an early date. When an ex challenge the parte contact or communication has been made, the commissioner information. should disclose for the record the nature and character of the contact.Such disclosure will give the interested parties an opportu- nity to rebut or challenge the information. Advisory Commissions. Due process requirements, as a legal matter, may not apply to the actions of administrative agencies which have only advisory functions. Nonetheless, where such agencies make recommendations that are relied upon by a decisionmaking body,it is prudent that they also follow the general principles of procedural due process in carrying out their advisory powers. in the preservation context, while not common, some local PROCEDURAL DUE PROCESS IN PLAIN ENGLISH PROCEDURAL DUE PROCESS IN PLAIN ENGI.ISII decision on the record—such inconsistencies are difficult to defend in court. If you are not prepared to follow advice, do not ask the question. 9. Explain your decisions.The public should know why you . voted the way you did, and often,your jurisdiction's laws will require some form of factual findings and conclusions: • Try to make sure every decision has an explained ratio- nale,either written or expressed at the public hearing. • Be consistent in your decision making. Explain the basis for apparent inconsistencies on the record. 10. Follow your criteria. Though not always framed in procedural terms, this point is critical. Read and understand the criteria in your ordinance. Listen to the evidence. Deter- mine the facts. Then apply those facts to the applicable criteria. By tying your decision to the criteria with a very tight knot, you are treating all parties fairly while providing a sound foundation in case of an appeal. . IJ U7 PROCEDURAL DUE PROCESS IN PLAIN ENGLISH TAKINGS LAW IN PLAIN ENGLISH Christopher J. Duerksen Richard J. Roddewig • • HIGHLIGHTS As discussed in further detail in this publication, the courts have laid out a number of general principles that should be kept in mind by those wishing to understand the law,of - . takings: - • •No orie has an absolute right to use his land in a way that may harm the'public health or welfare, or that damages the quality of life of neighboring landowners, or of the commu- nity as a whole. ■Historical precedent and recent case law make clear that reasonable land use and envi- ronmental regulations will have little trouble withstanding constitutional scrutiny in the vast majority of cases. Only in rare instances will such regulations be deemed so onerous as to effect a "taking" under the Fifth Amendment to the U.S. Constitution, which holds that private property hall not be taken for public use without just compensation •Courts have outlined several broad factors to be considered on a case-by-case basis in _ determining if a taking has occurred, including: the economic impact of the regulation on the property owner; the public purpose for which the regulation was adopted; and the character of the government action. Generally, a regulation will be upheld if it (1) furthers a valid public purpose; and (2) leaves a property owner with some viable eco- nomic use of the property. i • Property owners have a right to a reasonable return or use of their land, but the U.S. Constitution does not guarantee the most profitable use. • • • 2-54. ■ Courts have upheld a wide variety of purposes as valid reasons for enacting environmen- tal and land use regulations—including pollution prevention. resource protection, historic preservation, design controls, and scenic view protection. ■Communities can legitimately insist that development pay its own way. land dedications or mandatory exactions are valid, assuming that they are adopted to respond to the demands created by the project. - ■ Before a landowner or developer can bring a lawsuit to claim a taking, a development plan must be submitted for review and all administrative avenues of relief must be exhausted. ■The focus of the takings inquiry continues to be on the entire property interest. A severe adverse impact of a regulation on one portion of the property or ownership interest will _ not amount to a taking if the property as a whole continues to have a reasonable • economic use. ■ On the rare occasion that a taking is found to have occurred, the community does not have to buy the entire property..Damages are payable only for a temporary taking for the period in which the regulations were in effect. Generally, the measure of damages will take into account the difference in value of the property without the offending regula- tions in place and with them,an appropriate interest rate to be applied for the temporary . loss,of value, and the length of time the regulations were in effect. ■As part of legislation,lawmakers should include an administrative process that allows those who administer the law to consider the specific effect of the law on an individual land- owner, and—consistent with the interest of the public.being protected—afford an administrative relief process for undue economic hardship. • • • • • 2-55. LOCAL PRESERVATION MAKING JUDGMENTS IN THE REVIEW PROCESS A GUIDE FOR THE DESIGN REVIEW COMMITTEE By Nore' V. Winter • "How do you decide if a proposed design is appropriate?" That is the ultimate question that must be answered in the review process. This guide will help design committee members decide which proposals merit support of the improvement loan program. You must recognize that the results of design review are influenced by the review process Itself. Although the focus of review Is design, the personalities Involved, and their style of operation, will strongly affect the outcome. Three factors influence the Quality 12.E fhg design revtei process: Ihg clarity Qf. the design guidelines. 2. The operating Stvle of the review committee. 3. Consistent review procedures. DESIGN GUIDELINES should be easily understood by laymen, and they should provide useful ideas for design solutions that will be appropriate for the district. These guidelines should be based on local characteristics, and also reflect local goals. The guidelines should be organized in a logical sequence that follows the typical design process. The guidelines must be specific enough to provide clear guidance. All too often, they are vague. Instead, they should be specific, about what is appropriate and inappropriate, but they should do so without restricting creativity that is in keeping with the character of the district. Design guidelines that respect the existing character of the street, and that encourage a pedestrian-oriented continuity of basic elements from block-to- block can accomplish these objectives. Local residents should participate In developing the guidelines. to assure their sensitivity to the local conditions, and to be certain that those who will be using them also understand their intent. Having endorsement of a wide range of local residents also means that the guidelines represent community values, that they are not merely the personal taste of a few people Involved. This means that committee members can apply them with the confidence that the community supports them. 2-56. • The OPERATING STYLE of the review committee should be positive. The committee's purpose is to encourage development that will revitalize downtown, while respecting its heritage. The sense of purpose held by the review board members will Influence the style of operation during review meetings. Committee members should remember that many applicant do not understned the process, and these people will therfore need a clear definition of the steps that the committee will go through in reviewing a design, as well as the overall purpose of the design review. The purpose of the review meeting is to make II decision! Keep this objective paramount. Not only that, the decision should be made in a timely manner, and It should be stated clearly. The committee should enter the review meeting with a willingness to negotiate, half always withing context i2.j the guidelines. Never compromise the basic intent of the guidelines. It is important to focus on the lug issues, and not on personal biases, or petty details. This means that reviewers must distinguish between a design concept that they may dislike personally, but which meets the guidelines, and a design that Is objectively inappropriate because it clearly violates the adopted guidelines. Remember that the guidelines represent a consensus of residents, professionals, end political leaders, end that the committee's role is to administer them, not to draft new guidelines for each meeting. A good REVIEW PROCEDURE contains more than an agenda of applicants: It should be an orderly sequence of Information exchange. RECOMMENDED AGENDA FOR A REVIEW MEETING 1. Explain the purpose of the review. a. To see that the design is compatible with the objectives of the downtown redevelopment authority. b. To see that the design merits support through the loan program. c. To assist owners in developing a design that will strengthen the marketablity of their properties, and of downtown as a whole. 2. Listen to the presentation by the owner and his representatives. This provides them with an opportunity to describe their objectives, and to show the intended design. 3. Ask for clarity of presentation content. Withold design criticisms. 2-57. 6. Coordinate with other governmental systems. 7. Prepare and distribute a flow chart. 8. Require the submission of adequate information. 9. Develop clear, concise forms and accompanying instructions. 10. Use a docket book. 11. Use checklists. 12. Adopt a regular agenda or order of business. 13. Adopt procedures for giving informal advice. 14. Avoid private discussions of a proposal with an applicant or other interested persons. 15. Adopt procedures which permit approval of applications without review for projects meeting specified standards. 16. Conduct site inspections prior to considering an application. 17. Provide for open discussion and an opportunity to work out acceptable modifications with applicants before taking a vote. 18. Hold special meetings at the site, if necessary. 19. Provide members with opportunities for training, continuing education, and discussion with members of other commissions. Compiled from various sources by James K.Reap for the Georgia Alliance of Preservation Commissions 2-61. PROCEDURES FOR PRESERVATION COMMISSIONS SIX CARDINAL PRINCIPLES 1. Give your procedures careful consideration. 2. Make certain your procedures are understandable, provide property owners with fair notice and give them an opportunity to be heard. 3. Adopt procedures formally. 4. Follow the procedures you adopt. 5. Change your procedures, if necessary. 6. Keep an adequate record of all official actions. TIPS ON PROCEDURES AND RELATED MATTERS 1. Provide for internal organization of the commission. 2. List responsibilities of commission members and staff in writing. 3. Consider rotating responsibilities. 4. Adopt a code of conduct for members. 5. Establish dates that make sense. 2-64) Finding the Money: Incentives for Historic Preservation A Manual For Florida's Certified Local Governments and Historic Preservation Commissions PRESERVATION 3-4- • • ii r,t-:, i n f o r m a t 1 o n One in a series of Historic Preservation Information Booklets A Guide to Tax- The Rookery,au 19th- centur:r office bilding, - ..-.',-- - . . . . ! ...• ;1: : :•;;.:.c.a k Osh.,N- •-.•:....;:7Z , '7-7-7.':Z5, , -4.,4.31 - . . - • Advantaged reopened in 1992 following a three-year . .-.:,:,..1?- N i -et- --,----,.. .-';'•-t• %,..--M- : ::.,• •i. .; i• 'N.i'4•-•:-Id.f: ; 1.d 4. :01 Fi4' -• .JjJII1 . • ;14.-4 :;...! Rehabilitation restoration. ‘ • building is located in the '--:11.1.1.0• ,. . .• ., ,1--..z.t.! - ". - JV _ :.,-, , • by Jayne F Boyle, Stuart Ginsberg center of Chicago's ,. _. . and Sally G. Oldham financial district. ;-. -b.-'-...*:' ''. ' -' • - . . - ., • . .. . • -It;..-:.•, . ... t .-- revised& . • . . : •• ...- ,..: i . • :,... :.: - - ..5 ..... Donovan D. Rypkerna I . •Lt . . - . _ I- • :. .: I *,'• • ... eB . . . , . I . . . • :.i „..f : r ,. .-4 :..- ---- -.... : . - ., etween 1981 and 1986 more . ' . 1:- -,I..!,•;: ...?: ! I . 1::y•:., private money was invested in ._ ;.-..;• . .l -.1 ..i - . i.:;••....----„:. • .' f 1- - . ' fr-1 .1.-' . .. . m• the rehabilitation of historic buildings i-:.- :;..1-:- ,--. : than had been spent for the same il - . -, purpose during all of the rest of I . .: 111,1-,- -- . , ---1, --r r-' ; -, ....g..,. -. --- - ----...„, • :- American history combined. This - _ .1----' , : :i• -7:- -4 • *11-d`• . .--: 'investment was stimulated by federal - •• ., *, ind tax incentives first adopted in 1976 and .3 --'7:- r---- --. ---t: F-- F _ . . expanded in 1978 and 1981. ,_. . - - f i t 1= -' . ' - ' - '• • — r , 4 --.7.,..• .. -.2 -• -. =. • -." •-.. • I-....- .".-‘ = -. . .-'--t.I.T7'..**X.:*-i:_., 7.2 '7::- ;:-.--Alral----•‘- ,; - • ' Those incentives saved thousands of .. -..4-.'-.,...-.---‘, ,:---; tl-,--'-! ---X'— -----:144 • - - important historic buildings. What has .f. "•• ;'f Aii-,.-- .: --.=:::---- t---:-••• • • ,.;--:: - • - been realized retrospectively, however, - .;••?z,,,,.. ..., -: _.--:: -..1.7- :5 i ..--:----- ----e,--.:. - --- --"1• I k. -:-.-----..r • . ' is that the federal historic rehabilita- _ ..„ ., .._ f Milik,,,"•;- - ---r--.... --- •_...r--- •1-. 1 don tax credit program was one of the most potent urban revitalization tools ever created and certainly the most of the incentives that had been added program. however, including reducing cost effective. ' the amount of the credit, precluding to the tax code over the years. Reha- bilitation credits were retained, high-income taxpayers from utilizing When A Guide to Tax-Adz:antaged however, because Congress recognized the credit,and adding a "passive loss- Rehab/lila/ion was first written. Con- their important impact on communi- provision that severely limited the gress had just passed the Tax Reform ties of all sizes. Substantial changes amount of the credit available to a Act of 1986. That act eliminated most were made to the earlier incentive taxpayer in any given year. . , National Trust for Historic Preservation Vir El Optimists. including the U.S. Treasury What Is the others, rehabilitation may involve a _ Department, thought the effect of complete reconstruction of a building's those changes would be minimal— Rehabilitation Tax interior spaces. r- . 1 ehabilitation activity. 'Preservation- I predicted the amount of invest- Elasuy estimated an 18 percent drop C redit? In the case of historic buildings, the goal of the rehabilitation credit is not .. .._ Federal tax law offers a unique merit could fall by as much as half.Unfortunately for both historic build- to preserve a building as a museum, incentive to taxpayers who contribute but to put it back to use to meet to the preservation of this nation's old ings and the urban revitalization that their rehabilitation spurred, even that current housing, retail, commercial, and historic buildings. By rehabilitat- and industrial needs. These needs, projection was too rosy. In the eight ing directly or investing in the rehabili- however. must be met through con- certified of eligible buildings, taxpayers years since tax reform was adopted, struction that is appropriate to a can take advantage of a two-tier tax certified rehabilitation projects have building's historic character. credit. fallen 82 percent and investment in • those projects is off 80 percent. From 1982 through 1993, the historic The federal income tax credit is equal rehabilitation credit stimulated an Recently,however, there have been CO 20 percent of the cost of rehabilitat- estimated investment of$14.8 billion ing historic buildings or 10 percent of indications of renewed interest in the in nearly 20,500 historic buildings. rehabilitation of historic buildings the cost of rehabilitating nonhistoric While large-scale projects are often the buildings constructed before 1936. using the tax credits. This interest These credits provide a dollar-for- most visible, in fact the rehabilitation sparked the reissuing of A Guide to Tax- credits have most often been used on dollar reduction of income tax owed. Advantaged Rehabilitation as an Informa- smaller projects. Since the inception tion booklet. The changes in this While the 20 percent credit is available of the first rehabilitation credits,more for rental residential buildings, neither update are nominal and deal primarily than 70 percent of historic projects with amendments to the tax law since credit is available for homes or apart-ments occupied by their owners. incurred expenditures of less than 1986. $500,000,and nearly a third have been projects of less than$100,000. Rehabilitation investment gives old The goal of this revised publication is to remind preservationistsand historic buildings a place in the and inves- This range in size and type of projects, contemporary real estate market, that, while diminished from earlier and the similar diversity of nonhistoric thereby guaranteeing their continued rs, the federal historic rehabilitation rehabilitations, such as the renovation . use and contribution to an area's - tax credit remains a valuable tool for of corner stores, brownstones, restau- rehabilitation involves relatively small economic vitality. In some cases saving historic buildings and revitaliz- rants and schools, demonstrates the ing towns and cities throughout expenditures to renew a building's breadth of opportunity that still exists America. structural or mechanical systems. for participation in this program. In .. In 1986, owners used the investment tax- . • . .--:.,-,..:v;t14..,,=-:.-,;=:74t,-- -......•:--.17- . - --. .- -!- - • -‘••• .--:L:- - --_,..• ..;-----f- , credit to help finance the restoration of . Poor Richard's Gift and confectionery • ',.,.. . . . , •,.' • .:..:.. --..0:: -,, •..,„ --..,„... _ . - ..,-,-- -•••••!-'•_-_----;:e4 - -..p-.,.-..:,:••- - ...1 ---;-- located in Rogers,An .z.-. .....-;:-..,:-• ,i.-4.,..-,L• . • --. - •••-,. ..11,-4,..- ...4:,_ V: i- .- - : -- - II 1 ..- - .-,.• f.•:..,:-, :',.. - -,-- . ,,:i 1_,,,.-• • oh -'-%'1111%. .z.-1.-..-:::-1 - - '' - , --:--- . -1 A .. F. alt ip. .. ......1• .'4':J , i . :. • .! ......." i. ..11.? 'VW • •---.1%.‘• :'i. ' .... kl'ir--- 1 - .-: ..• . 1:• ',Li:. • a•I ' ''•- 1 oar .."-‘-•--- -. .N..-, .---• 'It' --, .."- 1':1114 C. - •- lir: T_ITN.:-- •(T1-.L'''''''' • :1". ; --*:-!,7-,V,?, ..‘• 4%* ' '..•h.V.': '.:! •. •':.. --:•'''...:71i•-f.. •••••.. .._1_:‘ --,.., -; try:i--..? in_ _,...•. . - ..:•••-,. , _1_2_ • '" -At/ ,.•‘ -----?-1, _ ..._. .• h,...el,,,.. ...1, , •.•.,L . •.:' .rt•-••ziffitY7:70-:A-', ' • -•=•.-• ruk-- •,,,,, —44 I,\.-*''.\ • . '''.' / . • "' • 44.-/:?-1p..--.1/.. .--.•_ -1::.-.'"X. . ._ ';',_ /_ •k...1:,...,/,''"7!•I'It''-eqk A,,,_. , . . •-;., . „ . .,,,v,,Ivii.---,-.:14k: 4-g.-. -, "• . . - :. -. • :'- ---,==-7•.--Y.-1-.. .a-:16, 1 s.:--1,,. „--___-----t-4.-a.11.. . ...gr--.-;----- ------:::— - 07:41Z-11F;;;". • --""r S.--.----.7.7..... • '• /-F-7,51:7-7,—'''----------..._.---- --•--: ' •:::: :""-=-74-7•2•71-.- - El Manna Inc.. in conjunction with Belton- .. _ McGhee Associates, restored the 1919 ;,..".---....-2...... ._-_-_...'..---- --'---........... IVhitelaw Hotel in Washington,D.C., ....----...vi - --------:. - _rri:ginally built for and by African- .: , —linericans,to provide housing for/ow- .-. Thcome families. ...' ._'•'.:',1. - ' :,:-::71 .-' ..-- .•''.."*" :::::1-- e '''11.7 --Ck"''''''•' --___. ...--''' .1 .401,4 . . 1 . , .. - 1 il N....,,I —• --":7.11".., --,...,.... :„. , ........•..... I. _ __.....-:2:7- .:....,_.,.....,_,_ FL i ...2. .. v f: -....- .1- ;4-..1.-- ,.-t•-..,, • S''_.•1*P., II fl 1 _ I . 1 )1/4„,4,'•••,- • . ,-- i ._-‘__2::•-:- ;111 • • .1 .,,:44,:.:•••••••, , 1....• 7;• 0 •=ie.::.. •. , - -••i. :vif . Li, •••;:„.....:::: , ,laca-r- -•r• !• ,14 .1o4,.. 1•,...A1 ..—•_.-._ --- • - —. "'a..pc,,.•-! •lid 41141.1....1-!..5-7.:',..-r'l .-- ,-'... ----'....---. lakt .11 III---- --' ' F •3 c P.i:t-:. j-,;.-''!...:.gt2'1"‘I.- ;r;"-41.%-Z-. : - : - -.--1.-. ---- .--7.—:' '.. . ...... . . 1 i 4.-13'''''' .1,:::'.1.:Lt_-:-.1.„-'._ •!,--:_-.. • -• • '..,.- '_ - I C..- 111-V.' i-- : ,. ,,,. , • .... ..., _ ..., .,: The National Park Service, which •• listed individually in the National To nominate an individual property or administers the tax credit certification Register of Historic Places; or historic district for listing,a nomina- program, has observed that housing has non form is submitted for review to • located in a "registered historic the state historic preservation officer been the single most important use for district" and certified by the -. rehabilitated historic buildings. Nlore (SHPO)appointed by the governor of Secretary of the Interior as being of than 125,000 housing units have been each state. After review and approval historical significance to the district. rehabilitated since the program began at the state level, the nomination is and nearly 63,000 units neNylv created. forwarded to the National Park Service A registered historic district is any A substantial number of these units in the Department of the Interior for district that is: have been for use by low-and moder- ate-income households. • listed in the National Register of A building within a listed historic Historic Places; or district is accorded certified historic ? • designated under a state or local structure designation through the What Buildings Qualify, statute certified by the Secretary of submission of"Part 1" of the Historic the Interior as containing criteria Preservation Certification Application. The rehabilitation credit is available that will substantially achieve the This form is available from SHPOs for historic and nonhistoric buildings, purpose of preserving and rehabili- and the National Park Service. After but only if they are used in a trade or tating buildings of significance to review by the SHP° the application is business or held for the production of the district and that is certified as forwarded to the National Park Service income. Buildings eligible for the 20 substantially meeting all of the for final approval. percent rehabilitation credit include requirements for the listing of those used for rental residential as well districts in the National Register. If a property is individually listed in as nonresidential purposes,while build- the National Register, it is already a ings eligible for the 10 percent rehabili- The National Register of Historic certified historic structure and it is not Eation credit must be nonresidential, Places is maintained by the U.S. Dep- necessary to complete Part 1 of the commercial, or industrial buildings. artment of the Interior. It includes Historic Preservation Certification individual buildings and sites as well Application. as historic districts. It is estimated that Certified Historic Structures the National Register contains some If the certification request is fora 63,000 listings which encompass in building not yet listed in the National ilo qualify for the 20 percent rehabili- excess of 700,000 buildings. Proper- Register or for a building in a potential ration credit,a building must be a ties qualifying for National Register . . historic district, the Part 1 form will be "certified historic structure." A certi- listing must meet one or more of four reviewed to make a preliminary fled historic structure is one that is: broad criteria(see box, page 91. OM Constructed in 1892,the Gil/more Hotel in .. - Deadwood,N.D.,was restored in 1992 to . 4- provide low-income housing units. .i;:... . r„„ .F f .r, - z...; , -_------ .- ----_,i-- -., 7" ---.-. 7;'::-'';.".••.::.7 -,:''-..— ) . . . ...! I . -:•••:';,l!... ; '.:.'=:.:;'..;''''..:';:.-:. .._ :'..' ,.,..- . . ':-...... .... ! -",: ::.,„ ::::.,:.:L;::,:- '":-"s- .! 7•44'f - .-..1 /.:.1:.::: ii. •,.. .;;,100.7,f..F. -::: ,;,...:....,-,.:."-f";':-: '1.: ,f.: '-;:.............'..':!' :...-.74"-;'','-'.--;/-''''"- -- 7.. V ----- l'''''''''''''''''....-- —---..-7 -- ,:.. , ., , .1.------:ra_n4.--nit--_-- FE--,-- Ell 7-':-. t_... . . ' • :...—'''''',.:•'...if.. .;.;7-:: ''...• • •! ' .7.- :. .,_ • — 1:-IL.:::• •:•.--..--• V....L.:,. . .k it ,.;....„...._ ._ , -,-_-,: . . .4.....-.-.-_-.;;...0..i•-•-•:?---1 4 -7-- .." 110 ,'I --- - . . intsrlist.4.; :. =, 7"---:: -0 • a . — E =..---: • • : ;i -:-- li ii• - ! .......% r..-. ..:, ..... . 1 II I . .: t I I .- NW- :a' .4 • F. 1 • ' • It .:'" . .. , ...... ,,i, 1 - !,', I ,i..i..:4 : ;. I .. ...;mu- m--.. 1,:„_..,..:4-.. '..."', _ . . _ . ,. . -- determination as to whether the significance also is made through Parr does not include that pan of the cost of building may qualify for certified 1 of the Historic Preservation Certifi- the property allocable to the land value. historic status when and if the property cation Application. Review of such a 0i• sted in the National Register. Such request follows the general procedures Thus,for example, if a taxpayer's basis erminations are not binding and outlined above, in a building is$100.000. the taxpayer t" s... become final as of the date of listing in generally would have to incur more - the National Register. - than$100,000 of rehabilitation expen- What Rehabilitations ditures during a 24-month period to The SHPO's recommendation for have a substantially rehabilitated approval or denial of certified historic Oualify? building.structure status is given significant weight; however. the National Park To receive a rehabilitation credit. a A phased rehabilitation is a rehabilita- Service makes the final determination taxpayer must substantially rehabilitate tion consisting of two or more distinct and notifies the owner of the decision. a qualifying historic or old building, stages of development. These stages must be set forth in written architec- Substantial Rehabilitations rural plans and specifications that are Old Nonhistoric Buildings completed before the physical work on A substantial rehabilitation means a the rehabilitation begins. A 10 percent rehabilitation credit is taxpayer's expenditures must exceed available for nonresidential, the greater of the "adjusted basis- of certified Historic Rehabilitations nonhistoric buildings built before the building, or$5.000, during any 24- 1936. No certification is required for month period (or 60-month period in For a rehabilitation to qualify for a 20 these buildings. the case of"phased rehabilitations.- percent credit. the Department of the defined below)selected by the Interior must certify that the rehabili- The 10 percent rehabilitation credit is taxpayer. The period must end with or [anon is consistent with the historic not available for certified historic within the taxable year in which the character of the buildinat-,and. where structures. A building located within a credit is claimed. applicable, with the district in which registered historic district is not the building is located. Application for r - ible for the 10 percent credit unless The adjusted basis in a building is its this determination is made through !i4 certified by the Department of the purchase price plus the amount of any "Part 2- of the Historic Preservation 1 erior as not contributing to the previous capital improvements. This Certification Application. Following historical significance of the district. A sum is reduced by depreciation review by the SHPO. the application is request for certification of non- deductions already taken. The basis forwarded to the National Park Service la For a decision. This application may he rehabilitation work. stare and federal If an applicant has requested review,of submitted to the SHP° and the officials review all aspects of the work, a proposed project. the National Park National Park Service at any time including any new construction. While Service will deduct the$250 fee from luring the course of rehabilitation. • the rehabilitation process may involve the fee owed for review of completed he National Park Service, however. some repair or alteration of a historic work. strongly urges taxpayers to file applica- building,to provide for an efficient dons before commencement of work so contemporary use. it 'mist not destroy Certification decisions may be ap- that modifications may be made more or damage the material and features, pealed to the.Washington. D.C., office . easily, if necessary. both interior and exterior, that are of the National Park Service. important in defining the building's Notice of approval of proposed work or historic character. Xonhistoric Rehabilitations certification of completed work is sent to the taxpayer by the National Park The National Park Service charges a No certification of rehabilitation work Service. If modifications are proposed processing fee to review projects is necessary to obtain the 10 percent during the course of construction. the involvin,,, more than $20.000 of credit for nonhistoric rehabilitation. National Park Service requests that it rehabilitation expenditures. Payment However, certain existing building have the opportunity to review and is made when requested by the elements must be retained CO qualify approve changes that might affect the National Park Service, not when the for this credit. Specifically. 50 percent historic qualities of the structure. application is submitted to the SHPO. or more of the existing external walls The fee to review proposed or ongoing must be retained in place as external However, a rehabilitation receives final rehabilitation projects ot'more than walls: 75 percent or more of the certification only after all work has $20,000 is$250. Fees to review existing external walls must be been completed. A taxpayer whose completed rehabilitation work are as retained in place as internal or external proposed work has been approved follows: walls: and 75 percent or more of the must submit a Request for Certification • existing internal structural framework of Completed \N'ork with photographs must be retained in place. documenting the completed project in Fee Rehabilitation order to receive final certification. $300 20,000 to$99,999 No similar requirements apply to eAll elements of a rehabilitation project $800 $100.000 to$499,999 certified historic structures. must meet the Secretary of the S1.500 $500,000 to$999,999 Interior's Standards for Rehabilitation $2,500 $1 million or more (see page 11). In evaluating - ..:.':. .''.;:-; ....•-•:.7 ''s.:':. '. -,.....-;Z-:.>,±...-"i.'''...- -.."`..11211Vadwi -".:''''''',. \ .': ':.7- --'-: , .•:: 4111% ..-- f., ..-.;.- ..'--,-../ . vr-----. lk. ...t: •-.•• ,::-.;.:-;:y!.:.• .. , , .,. i ,:. "graols"—dai.-ft,- i . - •:-.:.7!-!.:•-•-, in •- ••••—'.`42,;;'.''' '.•,:11. :.... ...=it s',./..a.; :-,. iz. :-'_!.:::'-;4 ..---:Zt- • • *- -"..?,-.1.'S1 ‘ .... ... ' ' .. .. 2.... ..te ..4 .VA' , I' . . . WY ' r ' ," \-. i ' ' -. :iii:-.1't-i. tilk-N - • •ial,-.&.. -..f:-.1 - :•••:. a z. ,-...411 ,1 1:::.1 ,.......„/7jr. ' • .„..--millh, ..r (, .-. :-..: . —....." II. : •. . I . • i II . Jr ni I ...•- • 1 •• , .. - '.. & . 7 1 1 - . _ . igo .- ,•=."., 4- :•4. • 1 ,tyzit:__L-• • ".' to•--,-'7,- -.......--- -•__.,.............4 . Bild/in /9// in Nea:pot7. R.I.. this -."'.... ...,_. -- - . ..! -..•- -- . --•.-:-: r'. i-i''•7 )..1/C.I 'roar.thartions --a'mix/alive .. - •• . -----..-.7.....-. - - • -. -r. -- •ti-:;-, ..--,--.7. .,-,...-`' ........"."••. • ' . • —,-ontin unity build/n:7 and houses II S i I/.f.;le- . •=- ? _--- ..".- ro o m w p-ooa n ly hotel. lo a z-z.- nd moderate- .,.. ---..:--: - .:'- -:"----- ----. 7- - p.a..— • ---- --Tr.'. - ,T % income housing, olfirr units.and livinz .. •— .. . , - - . . spares for disabled percons. .. - --- - I. . .. . - . Kt 7,1' ., - _ -•i....--.,---4.1A5..f.0.;-•,. -7.74.;`,.....J .,,,,..,. ,-,- By rombining the historic Who Can Take the . 1. I • ,..74.- m.0:4- - .7,...-..im....-1-:".,..; --.4 4, • it . ,.......„ :7: '414/6 .4.,, ...Afadt...-.7..r.17 4i1,,,y,-,qp..• rehabilitation credit and I .. r:_:, t,.'.. . .;-f>gicit.' '' - .. : 41.?"t••••••r;• &d..."' the loa--inrome housing Credit- ; *Ik e; ZS -*$• .--- - • .. ..,-;,,i, M,., - f. Ar' . '''6`; :.'•• ''.,.7rk.:,g,,..,,.; rt-edit, Denver • ;• :... ••, q 41 I. ft,7%v,...-7... . .—• ... .;:.•ii,. r.i!;-,::".:.;..•,:.: .Veigh bo 1 h o od Dtve/op- The credit is available to the owners , '-4_-,7:ia; rii.--:,:-t. ,:,' .. kt.:7.,ft-' ..$ .--.7-1.4r ''... - ment Cot)oration wac and. in certain situations. renters of a f i ''' . f .14'° ,. ug.. ;,ct..-.....----,41? • ••4-",:_df. .,-..t. ' 7 ' • ' 7-. :t 1-'i i 1 '' 7`1,• :il."4N144, i*A;'•:..,_.,•4..t.;::— able to rehabilitate the qualified rehabilitated building. 1- .:t: --,,,,ittelt -,..: - :..:F.!.--...'•,.i. , .,, , , -I:, ,, ,.:: -_,---„,117.--.A..•... .,:‘,44. 7....0', .: ;Cm/0ex-it-leaver/a block Renters may obtain the credit for _ -- i ii- 3 !•7 • 7y.k.,:p- •••., •.,--.-..-!-.0.:7,44 -;--- - :: - --I 4 4 j ,•et.'4 ::•,. -,f-: ,... to provide housing.for rehabilitation expenditures that they ----4: •: ; : .- • .3.4i.- :If.. -.1*..,-..*.. many oft/it artw's have incurred provided that the lease . - . .. minority residents, term remaining on the date the . ..._... rehabilitation is completed is at least as i . .. '' --':'"'- ... :- :.•:- long as the depreciable life of the • :1 • ,t.: . :, i - .: ' .,;;Ad—,:.* Z--: ' ,..•i. building. Under current tax law that 07- - 0 --: 7' i 7 7-,: - :4 would mean a lease in excess of 39 - --. • ' . ,.' t 1- ' l'' - 5 :_ . . i. .z •. . ._ .. • 1 1"11 years for a commercial tenant. Pur- ••"- , 1 • lig chasers of a rehabilitated building the completion of its rehabilita- ruospowvi••- tion are eligible to receive the credit. , .1 j..... - ..7 . : ----,---.--,i .--. i - - • --:----- , .., . . . •- - - _.. -- _ - :-.-1---..- .,-,,,,a, ------7.-,----- .. - ----..-- 1. Aiem.... -......-- ---- - How Is Depreciation -- Computed? ..... _ . ,- , •-• A taxpayer may deduct annually a . , ..... . . portion of the adjusted basis of a- r..,7'. - uction •:‘-..7"7:-:- -,-. : . - ...iirr - .----...- er hhabilitated buildin. T e ded e-• _ . generally is computed using the 4111\ straight-line method over a period of IIP - 39 years for commercial properties and 27.5 years for residential rental prop- erty. The depreciable basis of a What Expenditures Rehabilitation expenditures allocable rehabilitated buildinut-,must be reduced to that portion of a building that is, or Qualify:' is reasonably expected to be. -tax- by the amount of rehabilitation credit claimed. exempt use property- also do not Rehabilitation expenditures must he qualify(see page 8). capital in nature and depreciable as What Other real property to qualify for a credit. This includes new plumbing. me- When Can the Credit be Restrictions Applv? chanical. and electrical systems. sprinklers. "life safety systems.- Claimed? Many factors other than the benefits elevators, brick and facade cleaning. described above must be taken into an •d any other work including cosmetic Generally. the credit is claimed for the ,-. account before considering undertak- changes to the structural components taxable year in which the rehabilitation ing or investing in a rehabilitation of the buildings. Architect's fees, is completed. project. The rehabilitation incentives consulting fees, developer fees, and operate within the context of a construction period interest and taxes For historic rehabilitations, an ap- building's local real estate market, its are also allowable as part of the proved Request for Certification of economic profile. and project investors' qualified rehabilitation expenditures. Completed Work must be submitted individual tax situations. to the Internal Revenue Service within Acquisition. site work such as land- 30 months of claiming a credit. The The following sections discuss some of scaping. parking lots, sidewalks, and credit may be claimed before comple- the federal tax provisions that may building enlargement costs do not tion if construction is planned for two affect the ability of investors to make HY. Furniture. appliances. and or more years and a taxpayer elects to full use of the tax benefits. Taxpayers r personal property items do not claim the credit on the basis of-quail- should seek the advice of a profes- . qualify. lied progress expenditures.- sional advisor before initiating or investing in a rehabilitation project. 6 PRESERVATION - • • 4 n f o r m a t 1 o n One in a series of Historic Preservation Information Booklets Can I Use the Historic 2. The project must constitute a tion ($25,000 x 36%). Additionally the "substantial rehabilitation." credit can be used to offset any tax Rehabilitation Tax Substantial rehabilitation is the liability generated from passive Credit? greater of$5,000 or the basis in the investments (i.e. real estate). building. For individuals with an adjusted gross Rehabilitation of a historic structure 3. The building must be a depreciable income greater than$950,000, this can provide the investor with a sizable property held for use in trade or exception to passive loss rules does not tax credit. A tax credit is a dollar-for- business or as an investment apply. For those with incomes be- dollar reduction of income tax liability property. One's own personal tween$200,000 and$250,000 the Qualifying investors in historic reha- residence does not qualify. exception amount is phased out. imbilitation projects are eligible for a tax -- . wrcdit equal ICI 20 percent of the 4. The project must be certified by Corporate taxpayers ordinarily are not rehabilitation expenditures. the National Park Service as having subject to passive activity loss limita- tions. been rehabilitated according CO the For a project CO qualify for the historic Secretary of the Interior's Standards tax credit, certain tests must be met: for Rehabilitation. Any tax credits not used in the first year can be carried forward until the 1. The building must be a "certified The passive activity loss limitations entire benefit has been received. historic structure." A certified restrict the amount of the tax credit an historic structure is one that is: a) individual taxpayer can use in any The historic rehabilitation tax credit individually listed in the National given year. If adjusted gross income is program is administered by the Register of Historic Places; or b) is less than$900,000, the taxpayer may National Park Service in the Depart- a contributing building in a historic use the tax credit to offset taxes due ment of the Interior. For more infor- district listed in the National on active income(wages,salaries, mation or to obtain the necessary Register of Historic Places; or c) is business income). The amount that certification forms,contact your state a contributing building in a may be used is calculated by multiply- historic preservation office. To find designated local historic district ing the taxpaver's marginal tax rate by the office that serves your state, that has been certified as substan- $25,000. Thus an individual in the 36 contact the National Conference of tially meeting the criteria for listing . percent tax bracket could use$9,000 of State Historic Preservation Officers at in the National Register. the credit each year under this excep- (202)624-5465. National Trust for Historic Preservation W Can I Use the 20 Percent Credit? i. I am a corporation. Yes No "ves,"passive activity loss limitations probably do not apply. Go to Question Sand etb. =iit Question 19. Other tax provisions may apply,however,so consult your tax or accounting advisor 2. I am an individual taxpayer with an adjusted gross income greater than $250,000. Yes No If"yes,"your use of the tax credit will be severely limited. 3. I am an individual taxpayer with an adjusted gross income between$200,000 and$250,000. Yes No If"yes,"you may be eligible for part of the credit.See your tax or accounting advisor Go to Question 5. 4. I am an individual taxpayer with an adjusted gross income less than$200,000. Yes No If"yes,"you probably can use the credit. Continue to next question. 5. Is the building listed in the National Register of Historic Places? Yes No If"yes,"the building should qualify for the credit. Go to Question 8. I don't know If no, go to Question 6. If"I don't know,"contact the state historic preservation office. 6. Is the building a contributing structure in a National Register historic district or a qualifying local historic district? Yes No If"yes,"the building should qualify for the credit. Go to Question 8. ' If"no,"go to Question 7. I don t know AW"I don't know,"contact the state historic preservation office. ; • /. If not yet a certified historic structure, is the property eligible CO be so designated? Yes No If"yes,"the building may qualit for the credit. Go to the next question. ' If"no,"the building wil/not qualify for the credit. _I don t know If"I don't know,"contact the state historic preservation office. 8. What is the adjusted basis of the building? Purchase Price Less: Amount attributable to Land Plus: Capital Improvements Less: Depreciation Taken Adjusted Basis of the Building .4 quick look at your most recent tax return or a call to your accountant may provide this.information as well. • 9. What is the proposed budget for the project, including construction,architect, developer, and consultant fees: but excluding acquisition. landscaping, and site improvements? 10. Does the amount in Question 9 exceed the adjusted basis of the building (Question 8)? Yes No If"yes."the substantial rehabilitation test has been met. If"no."the substantial rehabilitation/PSI has not berg met and the project must be revised in order to qualify.for the credit. III I 1_ti LAC: property your personal residence? Yes No tf"yes."the property is not eligible.for the credit. If"no,"go to the next question. 12. Is the property going to be used in your trade or business or held for investment? Yes No If-yes.-the property should be eligible for the credit. If"no,"the property probably is not eligible. See your accountant or tax advisor. 4k. How much tax credit vill I receive? Rehabilitation budget(Question 9) x 20 percent x .70 Amount of tax credit 14. How much of the tax credit can I take each year? Marginal tax rate (See your accountant) x$25,000 $ 25,000 Amount usable under passive loss exception Plus: Amount of tax liability on "passive income" (See accountant) Total credit available each year 13. What will be the depreciable basis of the rehabilitated property? Pre-rehabilitation basis of the building Plus: rehabilitation expenditure Less: tax credit allowed Depreciable basis of the building 16. What will my depreciation be? Depreciable basis (Question 15) Depreciable life(39 years or 27.3 years) Annual depreciation •. iS Sample Project • - Acquisition PKice $100,000 - Land Portion $20,000 Building Portion $80,000 Rehabilitation Expenditures $200,000 (Greater than$80,000,therefore meets the substantial rehabilitation test) . Amount of Tax Credit $40,000 ($200,000.x 20%) Investor's Marginal Tax Rate _ . • -- Annual Credit Allowable $ 9,090($25,000 x 36%) - •- (Under passive loss exception) _ Depreciable Basis Calculation - - . • Acquisition cost-Building • $80,000 Plus:Rehabilitation $200,000- - Less:Tax Credit $40,000 - - Depreciable Basis . . - .$240,000 Depreciable Life- • '39-- _ (39 years under current law)" -,- • . Annual Depreciation- - 6;154:: Loan Amount . -$200,000-(8%,25 years) - Annual Payments • •- $18,524 - = - FIVE-YEAR OPERATING STATEMENT YEAR 1 2 3 4 5 =.t Operating' Income $27,500 $28.325 529.175 $30.049 $30,951 7 Depreciation $ 6.154 $ 6.154 $ 6,154 $ 6.154 $6,154 Interest $15.906 $15.686 $15.452 $ 15,198 514.916 Taxable Income= $ 5,440 S 6,485 $ 7,569 $ 8.697 $ 9.881 Tax Rate 36% 36% 36% 36% 36% Taxes' $ 1.958 $ 2.335 S 2.725 $ 3.131 $ 3.557 Usable Credit' S 9.000 $ 9.000 $ 9.000 $ 5.982 $ 0 Usable Credit' $ 1.958 $ 2.335 $ 2.775 $ 0 $ 0 Accumulative Credit Used $10.958 $22.293 $34,018 $40.000 $40.000 FIVE YEAR CASH FLOW STATEMENT • 9 3 4 5 1NrEetAoRperatina Income $27,500 528.325 529.175 $30.049 $30,951 Debt Service $18,524 $18,524 $18.524 $18.524 $18.524 Before-Tax Cash Flow; S 8,976 $ 9.801 $10,651 $11.525 $12,427 Taxes S 1.958 S 2.335 $ 2.725 $ 3.131 $ 3.557 After-Tax Cash Flows $ 7,018 $7,466 $ 7.926 $ 8,394 $ 8.870 Usable Tax Credit' £10,958 $11.335 $11,725 $ 5.982 $ 0 .After Credit Cash Flow $17,976 $18.80] $19,651 $14,376 $ 8.870 ' Income increasing at 3% per year = Net operating income less depreciation and interest Taxable income x tax rate This is the amount of credit the owner is entitled to under the passive loss exception provision ' This is the amount of the credit usable to offset passive gains Principal and interest payment Net operating income less debt service 7" Before tax cash flow less taxes " After-tax cash flow plus useable tax credit This explanation of the historic rehabilitation tax credit was reproduced from A Guide to Tax-Adz:an/aged Rehabilitation published in 1986 and revised in 1994 by the National Trust for Historic Preservation. This self-help text was prepared by Donovan D. Rypkema. "lb order the complete A Guide.to lax-Adz:antaged Rehabili- -on contact: Information Series. National Trust for Historic Preservation, 1785 ssachusetts Avenue. N.W.,Washington, D.C. 20036. (202)673-4286. The cost per booklet is$5 with a 50 percent discount for orders of any 10 or more booklets. , Recapture()).the Credit In addition. certain borrowed amounts WaL;CS and portfolio income such as secured 1-) the real estate used in the stock dividends, stock capital gains. Generally, if a taxpayer disposes of a. aCCIVity for which the taxpayer is not and interest on bank accounts. )iiildin!, for w hich a rehabilitation personally liable may be treated as at- _Ledit has been claimed within five risk. This allow s investors in rehabili- l.nder these limitations. deductions years or completing a rehabilitation, ration projects to "leverage" their cash generated by all of a taxpaer s passive parr or all of the credit claimed most be investment by receiving tax benefits investments ma‘ only he deducted repaid. This "recaptured" amount on their investment and a pro-rata from income from these passive ranges from 100 percent of the credit share of a projects borrowed funds. investments. Similarly, credits genet- claimed for property sold within one aced from passive activities, such as year of the completion date to 20 Passizy Artir:ity Rides the rehabilitation credit, may only be percent of the credit claimed for used to offset tax liability on income property sold in the fifth year. Similar In the Tax Reform Act of 198n. from passive activities. rules apply if all or part of a rehabili- Congress for the first time restricted d d Credits and that cannot be , tared building becomes "tax-exempt the ability of real estate developers . use property" (see page 8)within five and investors to use deductions and used because of the passive activity years of the placed-in-service date. credits to "shelter" income other than rules may be used in future years to Recapture of the credit could also that directly related to the deductions offset income or taxes from passive occur if the Secretary of the Interior or credits. Corporations by and large activities. They may not be used to revokes certification after the rehabili- are not covered by these rules. offset such income or taxes from tation is completed. previous years. Generally, these rules prohibit the use At Risk Rides of deductions and credits from "pas- 'I'here is an exception to these rules that assists rehabilitation projects. sive activities" to offset income and Taxpayers generally may deduct taxes owed from "non-passive activi- Investors who are eligible for the losses from an activity, including he ties." Passive activities are those in rehabilitation or for the low-income holding of real estate, up to the amount which the taxpayer is not involved on a housing credits may use these credits .the taxpayer has "at-risk" in the regular,continuous, and substantial to Offset the taxes owed on a maximum of 525.000 activity. The amount at-risk generally basis. Limited partner investors in of non-passive activity lipincludes the taxpayer's contribution of rehabilitation projects are presumed to income. cash or property to the activity and be involved in a passive activity. In This exception applies to rehabilica- amounts borrowed for use in the addition, rental activities. including don and low-income housing credit activity for which the taxpayer is the rental of rehabilitated buildings, projects regardless of the investors' personally liable, are considered passive activities. relation to the project. Limited Non-passive activity income includes partner investors need not be actively • .1/any older Je.Inn buildings have been f .4.-r:',7!-,.;;T---...-- ,."-• '- rehabilitated asiug-,the investment tax credit Ruh as Round Bale Storage barn in K no.vvii& l'enn. . . -It.,‘=,.;,.•.:-• - ,ii...,,,,,- .- • . \ i .. . . .. _.-_...,..-7-_47‘.;,a---', -:.,...-. -_,,:,,,-,-------__,.,...,„--e-.:„..:.--• : -... . : .. „..,..„,,.. - - ---,;,,, . i. -,:- ------- -;..--5....;:_,f,:=„: . '...:-L_ Ira: 4,„,... ..i.,.. -,11.---_,•.....,---,--..---,,---.•-7------_- -.7..7;7 .:-.-_-- -:.1 • i •."--..-,-'..,....L.1,,,?_,. .-- —--- 7 , . i --- - - • ,.----,---7 i , Li ' -jj LI:- _ -- 1- •- f.,:,•-7-'.•--:.'4.7--,-,...7.-:. -•-•- .. . -• .74A-- • .4," -,- ...- 1311RIAP. -4'r'll. 4. '.7-:-.---'7.-=•;*.- k: .,....-.'• '-' :.•.;47:•,.i'i _______":41;j; . . -,-• *, .7.Z.2..i.w." '‘..-.:'. - 1 • •-•• '-'-'' :-.— I;':'''•-2. r• ;..41...., .1.1u.T:ma ';••^-_-."4" .---7!ii 1.7' '..:-_77.L.T-..:777 '-‘-',:.--; 7';',:'.- ' - A - • .. , . . .....- 4-',,i.4:;..::::.4:,-Y,'":-.':r .-..... . . . :._-_L..-",„:,..t.•„:.:i::_„2,.:;:.7-. ....,,...,'„-,-_,:,.-..,.:' 4,_ :, . ,.,• .. El involved in management or decision more than the$9.000 per year of the tax-exempt obligation, and the tax- .. making to qualify. Linder this excep- rehabilitation credit may be available exempt entity (or a related entity) tion, rehabilitation and low-income to taxpayers in the real estate business, participated in the financing. 1 =ing credits, but not deductions Individuals who believe they may _ these projects, may be used to qualify for this exemption from passive However, even if one or more of these offset the taxes owed on up to$25,000 loss provisions should consult their tax tests were met, the tax credit could still of non-passive activity income. Thus, counsel. be taken if the total percentage of space for a taxpayer in the 36 percent leased by tax-exempt entities under a marginal tax bracket,$9,000 of the Rehabilitations involving Tax- disqualified lease is less than 35 percent combined total of low-income and Exempt Entitles of the "net rentable floor space" of the rehabilitation credits may be used in a property. The net rentable floor space single year under the passive loss When all or portions of the rehabilitated of a building does not include the exception provision. This benefit property are used by governments or common areas. Furthermore, even if a phases out for taxpayers with adjusted nonprofit organizations there may be a disqualified lease exists and more than • gross incomes (determined without limitation on the use of the tax credit. 35 percent of the space is occupied by regard to deauctions from passive tax-exempt entities, the tax credit is activities) between$200,000 and In general the tax credit may not be still available to the expenditure attrib- $250.000. Taxpayers with adjusted taken on that portion of the expenditure utable to the balance of the space. gross incomes greater than$250,000 attributable to space occupied under a are not eligible for this exception. "disqualified lease." A disqualified Alternatively, even if more than 35 lease would be one with a governmen- percent of the net rentable floor space Exemption from Passive Activity tal or non profit organization if any of were occupied by a tax-exempt entity Rules for Full-Time Real Estate following tests were met: but none of the disqualified lease rests Practitioners applied,the tax credit would be fully • the lease term exceeded 20 years; available. In the 1993 changes in the federal tax • the lease occurred after the sale of code, those involved full time in real the property or the property was Since considerable confusion exists by. estate activities became exempt from leased from, the tax-exempt entity over these distinctions, it bears repeat- the passive activity loss limitations. (sale-leaseback situation); ing that having a "disqualified lease" v full-time real estate developers, covering more than 35 percent of the option to an o l i leasehencu p 1.- 11111-ers, property managers, and other • tbuilding only precludes the credit on at a fixed purchase or sell the property real estate professionals may offset the expenses allocated to that space. or bl determinae price: their earnings from salary or commis- orThe costs attributable to the balance of sions with losses generated by invest- • part or all of the property was the building are still eligible for the merit real estate. This also means that financed, directly or indirectly, by a credit. - - 05534.4 , -.011 iii • , . - ;`• i . , ' . . . .. •..- ., . .._ ,. .::: - --,..--,.-4. --,.....,-„,:.r.,:-•,..---_:.•-, r - z....::-.....- -c.....-L:,:-• -47.r....-----T:„::,,. ..- 'ir -1 ,-, ' wr',:-+Zr.,.4..!..47. 4.-z---•-• t. •,14,0 c •:'4,-•41'. .- • L--; 7.=4,-,..--,,..i ,." -,..kt•-;,.- .. . 4. -k - ...e,..-.4:,.... - w• " •— - • i:if•=61.'.0k iii:.'7.'7": I 0111 '4 ------...— • . . PS a; , . I ill!,in 1925.the:110171501/Knudsen .. --- --——.7_7:--.--....._ 2 _ . ...-- -- - - • .-. Depot in Boise.Idaho. was restored using - . • • - - . ., - - - the investment tax credit. , . . 12 What Other Tax Benefits Are Available? National Register Criteria for Evaluation =ther tax provisions may contribute to The quality of significance in American history, architecture. archeology, the preservation and rehabilitation of engineering, and culture is present in districts,sites, buildings,structures, and historic buildings. They include the objects that possess integrity of location, design, setting, materials, workman- deduction for donating a historic ship. feeling and association, and preservation easement, the low-income (a) that are associated with events that have made a significant contribution housing credit, and other state and CO the broad patterns of our history; or local incentives. (b) that are associated with the lives of persons significant in our past:or Historic Preservation Easements (c) that embody the distinctive characteristics of a type, period, or method of construction,or that represent the work of a master, or that possess high A charitable contribution deduction is artistic values,or that represent a significant and distinguishable entity whose components may lack individual distinction; or allowed for the donation of a historic (d) that have yielded,or may be likely CO yield, information important in preservation easement to a preserva- prehistory or history. Lion organization. This deduction applies to both commercial property and owner-occupied housing. An easement is an agreement by owners of are issued by the state. The credits percent or less of area median property to relinquish their right to alter or demolish property and to abide are claimed annually for a period of 10 income; or by other preservation conditions that years. • at least 40 percent of the housing are enforced by the donee preservation organization or governmental body. There are MO low-income housing units in the project are occupied by These restrictions must be permanent credit percentages-70 percent and 30 individuals with incomes of 60 to qualify for a federal charitable percent. (Those percentages are percent or less of area median Ahdeduction and must apply to all future increased to 91 percent and 39 percent income. gpo u rchasers of the property. A typical in certain census tracts that have been j agreement protects the facades of a designated by HUD as being particu- The rent charged to tenants in units building but may also restrict the lark/in need of encouraged invest- with respect to which the credit is development of adjoining lands and ment.) The 30 percent credit applies allowable may not exceed 30 percent interior features or require mainte- to acquisition if the building will be of the qualifying income. Eligible nance of property elements. In substantially rehabilitated and to projects must continuously comply addition, the public must have some projects receiving a federally subsi- with these requirements for a 15-year visual access to the donated property. dized rehabilitation expenditure. The period, or the credits will be recaptured. 70 percent credit applies to the The value of the contribution of a rehabilitation costs if no federally This credit may be used in conjunc- historic easement is the difference subsidized expenditures were received. tion with the rehabilitation credit. between the fair market value of the The basis with respect to which the property before the granting of the Unlike the historic rehabilitation credit credits are allowed must be reduced by restriction and the fair market value of that is taken in the year received the amount of any rehabilitation credit the property after the granting of the (unless passive loss provisions require for which the property is eligible. restriction. The basis of the structure it to be taken over time)the low- Sine:. the tax revisions in 1986, a large must be reduced by the value of the income housing credit is taken over a number of historic rehabilitation projects easement. This basis reduction must 10 year period. The amount for any have been undertaken combining both be allocated between the building given year is based on a"present worth" the rehabilitation and the low-income itself and the underlying land. calculation and will vary somewhat from housing credits. year to year. The net effect, however, Low-Income Rental Housing Credit will be to give the investor the full State and Local Incentives value of the credit over the 10 years. Owners of residential rental property Since the reduction of federal rehabili- oviding low-income housing may ir nstruction and rehabilitation of low- Residential rental property is eligible cation tax credits in 1986,a number of aim separate tax credits for new for the credits if either: states have enacted additional incen- tives to help make historic preservation c.a., income housing and for certain costs of • at least 20 percent of the housing more economically feasible. Some acquisition of existing housing to serve units in the project are occupied by states have provided a 5 percent tax low-income individuals, if such credits individuals with incomes of 50 credit against state income taxes to 12 compensate for the reduction in the Tax Treatment Extension Act of rehabilitating historic buildings that are, credit from 25 percent to 20 percent at 1980(EL. 96-541) consistent with their historic character. the federal level. Even more states Topics address roofing for historic I provided an extended property • deduction for the contribution of a buildings, repainting mortar joints, ,.---- , batement or property assessment historic easement window treatments, exterior paint. freeze to owners who appropriately rehabilitation of storefronts, plaster rehabilitate historic structures. Addi- Economic Recover), Tax Act of 1981 repair, cast iron buildings and much tionally, many state governments, and (EL. 97-34) more. For a catalog write: Preservation statewide or local preservation organi- Assistance Division, P.O. Box 37127, zations have developed grants. low- • three-tier credit for the rehabilita- Washington, D.C. 20013-7127. interest loan programs,design assis- tion of certified historic structures tance, and a variety of other incentive and buildings at least 40 and 30 The Secretary of the Interior's Stan- tools to help encourage historic years old dards for Rehabilitation are available preservation. In many places these ' from the National Park Service in an incentives have begun CO counterbal- Tax Reform Act of 1986 illustrated and unillustrated format. ance the diminished effectiveness of (PL. 99-514) The Standards are used primarily to the federal rehabilitation credits. determine whether the historic II 10 percent credit available for non- character of a building is preserved in the process of rehabilitation. All historic buildings built before 1936 History of Federal Tax projects that owners wish to be certi- Incentives for the • 20 percent credit available for the fled for purposes of federal tax incen- rehabilitation of certified historic tives are reviewed and evaluated in Preservation of Old and structures accordance with the 10 Standards for Rehabilitation. The accompanying Historic Structures • Taxpayers with incomes in excess of guidelines, intended to assist in $250,000 not eligible for credits applying the Standards, recommend Since 1976 Congress has provided responsible methods and approaches Passive activity loss limitations federal tax incentives for the preserva- •— • and also list those treatments that tion of old and historic structures. should be avoided. To order a copy of Alft Resources The Secretary of the Interior's Stan- ‘rx Reform Act of 1976 dards for Rehabilitation with Illustrated ... (EL. 94-455) Guidelines for Rehabilitating Historic The state historic preservation office is Buildings write Superintendent of the best point of contact within your • 60-month amortization of certain Documents, Government Printing state for information on the historic expenditures incurred in the Office,Washington, D.C. 20402-9325. rehabilitation tax credit. To locate the rehabilitation of certified historic GPO Stock Number 024-005-01091-2. state historic preservation office that structures The cost is$8 per copy. To order a serves your state,contact the National copy of the unillustrated version use • accelerated depreciation on substan- Conference of State Historic Preserva- GP6 Stock Number 024-005-01061-1. tially rehabilitated historic property tion Officers,444 N. Capitol Street, The cost is$2 per copy. To reach the Suite 332.Washington, D.C. 20001. II denial of deduction for costs of (202)624-5465. Order and Information desk at the t, Government Printing Office call (202) demolishing a certified historic 783-3238. FAX (202)512-2250. structure The Preservation Assistance Division of the National Park Service has • straight-line depreciation on The Preservation Law Reporter is available numerous publications of property constructed on site°CCU- published monthly by the National interest to individuals or organizations pied by a certified historic structure Trust for Historic Preservation. This seeking the historic rehabilitation tax that was demolished or substantially loose-leaf service contains articles on credit. altered tax issues, updates on legislative and regulatory activities, litigation summa- The Preservation Briefs assist owners Revenue Act of 1978(13.L. 95-600) and developers of historic buildings to ries and a comprehensive reference volume. A one-year subscription costs recognize and resolve common preser- • 10 percent credit for qualified vation and repair problems prior to 590. To order write: Preservation Law expenditures incurred in connection work. The briefs are especially useful Reporter, National Trust for Historic it the rehabilitation of a building i ii Preservation. 1785 Massachusetts to preservaton taxncent ve program [IC least 20 Years old applicants because they recommend Avenue. N.W..Washington, D.C.. 20036 or call (202) 673-4035. those methods and approaches for , 10 State Tax Incentives for Historic Preserva- 'The Secretary of the .8 Significant archeological resources lion:A State by State Summary lists state affected by a project shall be protected programs designed to encourage the Interior's Standards for and preserved. If such resources must —raintenance or rehabilitation of Rehabilitation be disturbed, mitigation measures —iistoric properties. To order a copy shall he undertaken. contact: National Trust for Historic Preservation, Center for Preservation I. A property shall he used for its 9. New additions, exterior alterations, Policy Studies, 1785 Massachusetts historic purpose or be placed in a new or related new construction shall not Avenue. N.W., Washington. D.C. 90036 use that requires minimal change to destroy historic materials that charac- (202) 673-4253. The cost of the the defining characteristics of the terize the property. The new work booklet is$4 including postage and building and its site and environment, shall he differentiated from the old handling, and shall be compatible with the massing, size,scale, and architectural 2.The historic character of a property Innovative Tools for Historic Preservation shall be retained and preserved. The features to protect the historic integ- presents the results of a survey of more removal of historic materials or alteration rity of the property and its environment. than 300 planning directors and of features and spaces that characterize 10. New additions and adjacent or preservationists CO identify techniques a pro • he avoided.put) shall: related new construction shall be under- that offer protection CO historic re- sources. It examines tax and financial taken in such a manner that if removed incentives, conservation districts and 3. Each property shall be recognized as in the future, the essential form and a physical record of its time, place,and integrity of the historic property and its do‘vnzoning. To order a copy write: National Trust for Historic Preserva- use. Changes that create a false sense environment would be unimpaired. don, Information Series, 1785 Nlassa- of historical development, such as chuserts Avenue, N.W.,Washington, adding conjectural features or architec- D.C. 90036. (902)673-4286. The cost rural elements from other buildings, is$12. shall not be undertaken. Affordable Housing Through Historic 4. MOSE properties change over time; Preservation:A Guide to Combining the those changes that have acquired AkTax Credits published by the National historic significance in their own right WI-rust for Historic Preservation and the shall be retained and preserved. • National Park Service provides an overview of ways to finance historic 5. Distinctive features, finishes, and buildings to create affordable housing. It includes a detailed analysis on construction techniques or examples of combining the low-income and historic craftsmanship that characterize a rehabilitation tax credit. Available property shall be preserved. from Superintendent of Documents, Government Printing Office, 6. Deteriorated historic features shall Washington, D.C. 20402-9325, be repaired rather than replaced. Where the severity of deterioration requires replacement of a distinctive feature, Acknowledgements the new feature shall match the old in design, color, texture,and other visual qualities and,where possible, materi- This Information booklet was prepared by Sally G. Oldham,Jayne F. Boyle, als. Replacement of missing features and Stuart Ginsberg and edited by Ian shall be substantiated by documentary, D. Spatz. The National Trust for physical,or pictorial evidence. Historic Preservation gratefully acknowledges the assistance of Dewey, 7. Chemical or physical treatments, Ballantine, Bushby, Palmer and Wood such as sandblasting,that cause damage in the preparation of the 1986 version. to historic materials shall not be used. Donovan D. Rypkema updated and The surface cleaning of structures, if revised the 1986 booklet to reflect appropriate, shall be undertaken using rhanges in the tax law, the gentlest means possible. El' • The mission of the National Trust for Historic Preservation is to foster an appreciation of the diverse character and meaning of our American cultural heritage and to preserve and revitalize the livability of our communities - by leading the nation in saving America's historic environments. port for the National Trust is provided in part by matching grants from the U.S. Department of the Interior, .:=ional Park Service, under provisions of the National Historic Preservation Act of 1966. The opinions ex- pressed in this publication are not necessarily those of the U.S. Department of the Interior. JOIN THE HISTORIC PRESERVATION NETWORK The Preservation Forum of the National Trust is a membership program for professionals and organizations. The benefits and privileges of membership include subscriptions to Historic Preservation Forum, Historic Presetmation magazine. Historic Preservation News. participation in financial/insurance assistance programs, technical advice,and substantial discounts on professional conferences and educational publications. New Information booklets are available free upon request. To join, send 875 annual dues to: Preservation Forum National Trust for Historic Preservation 1785 Massachusetts Avenue, N.W. Washington, D.C. 20036 (202) 673-4296 Offices of the National Trust for • Historic Preservation National Headquarters Northeast Office Texas/New Mexico Field Office 1785 Massachusetts Avenue,N.W. Seven Faneuil Hall Marketplace,5th Floor 500 Main Street,Suite 606 Washington,D.C. 20036 Boston,Mass. 02109 Fort Worth,Tex. 76102 )673-4296 (617)523-0885 (817)332-4398 (Connecticut.Maine,Massachusetts.New (New Mexico.Texas) Mid-Atlantic Office Hampshire.New York.Rhode Island, Vermont) One Penn Center at Suburban Station Western Office Suite 1520 Southern Office One Sutter Street,Suite 707 1617 John F.Kennedy Boulevard William Aiken House San Francisco,Calif. 94104 Philadelphia,Pa. 19103-1815 456 King Street (415)956-0610 (215)568-8162 Charleston,S.C. 29403 (Alaska.Arizona.California.Guam. (Delaware.District of Columbia.Maryland. (803)722-8552 Hawaii,Idaho,Micronesia.Nevada,Oregon. New jersey.Pennsylvania.Puerto Rico. (Alabama.Arkansas.Florida.Georgia.Ken- Utah. Washington) Virginia. Virgin Islands. West Virginia) tucky.Louisiana.Mississippi,North Carolina. South Carolina.Tennessee) Midwest Office 53 West Jackson Blvd.,Suite 1135 Mountains/Plains Office Copyright 1994 Chicago,Ill. 60604 910 16th Street,Suite 1100 National Trust for Historic Preservation (312)939-5547 Denver,Colo. 80202 (Illinois.Indiana.Iowa.Michigan,Minnesota, (303)623-1504 Missouri,Ohio. Wisconsin) (Colorado.Kansas.Montana.Nebraska,North Dakota,Oklahoma.South Dakota, Wyoming) • • 3-20 Tax Aspects of Historic Preservation Tom Gavin Mark C. Primoli Internal Revenue Service The following questions and answers are provided in order to better illustrate the eligibility requirements for claiming the Rehabilitation Tax Credit. When can a taxpayer claim the rehabilitation tax credit? The property must be substantially rehabilitated. During a 24-month period selected by the taxpayer, rehabilitation expenditures must exceed the greater of $5,000 or the adjusted basis of the building and its structural components. The basis of land is not taken into consideration. It is important to note that any expenditure incurred by the taxpayer before the start of the 24-month period will increase the original basis. See Treasury Regulation 1.48-12(b)(2). • If the rehabilitation is completed in phases, the same rules apply, except that instead of a 24-month period, a 60-month period is substituted. This phase rule is available only if the taxpayer meets two conditions: 1. there is a written set of architectural plans and specifications for all phases of the rehabilitation; and 2. it can be reasonably expected that all phases of the rehabilitation will be completed. The property must be placed in service. See Treasury Regulation 1.46-3(d). The rehabilitation credit is generally allowed in the taxable year the rehabilitated property is placed in service, provided that the building has met the "qualified rehabilitated building" requirements for that taxable year. See Treasury Regulation 1.48-12(f)(2). If the taxpayer fails to complete the physical work of the rehabilitation prior to the date that is 30 months after the date the taxpayer filed a tax return on which the credit is claimed, the taxpayer must submit a written statement to the District Director such fact and shall be requested to sign an extension to the statute of limitations. See Treasury Regulation 1.48-12(f)(2). 1 What relationship exists between the "substantially rehabilitated" requirement and the "placed in service" requirement? Generally speaking, the 24-month measuring period ends sometime during the year in which the property is placed in service. When comparing the taxpayer's qualified rehabilitation expenses to its basis the expenses accrued over a 24-month period must end with or within the tax year the credit is being claimed. Exceptions to this rule exist if the building is never taken out of service during the rehabilitation. Then only the substantial rehabilitation test must be met. See Treasury Regulation 1.48-12(f)(2). How do you compute adjusted basis? For the substantial rehabilitation test, the date to determine adjusted basis of the building is determined as of the first day of the 24-month measuring period or the first day of the 'taxpayers holding period of the building, whichever is later. Generally holding period is deemed to begin the day after acquisition. Adjusted basis of a building is the cost of the property (excluding land) plus or minus adjustments. The County Assessor's office would be able to provide a building to land value ration. Increases to basis includes capital improvements, IIP legal fees incurred in perfecting title, zoning costs, etc. Decreases to basis include deductions previously allowed or allowable for depreciation. See Treasury Regulation 1.48-12(b)(2)(iii). What is the depreciable basis? There exists a basis reduction for rehabilitated buildings. Generally, after 1985, the basis of rehabilitated buildings, including certified historic structures, must be reduced by 100% of the rehabilitation credit earned, regardless of whether the credit is used or carried forward. The reduction amount is added back if the credit is recaptured. See Treasury Regulation 1.48-12(e). 2 What method of depreciation is required when rehabilitation tax credit? The rehabilitation credit is available only if the taxpayer uses the straight-line MACRS depreciation method of the straight-line MACRS alternative depreciation system. Current recovery period is 27.5 years for residential rental property and 39 years for non-residential real property. The mid-month convention rule applies. See Treasury Regulation 1.48-12(c)(8). What is included in qualified rehabilitation expenditures? Any expenditure incurred in connection with the rehabilitation of a qualified building that are properly chargeable to a capital account. These expenditures do not include: A) Costs of acquiring the building or any interest therein. See Treasury Regulation 1.48-12(c)(9). B) Enlargement costs which expand the total volume of the existing building. Interior modeling which increases floor space is not considered Alk enlargement. • 11, See Treasury Regulation 1.48-12(c)(10). C) Expenditures attributable to work done to facilities related to a building, such as parking lots, sidewalks and landscaping. See Treasury Regulation 1.48-12(c)(5). D) New building construction costs. See Treasury Regulation 1.48-12(b)(2)(B)(iv). How do the recapture rules apply? The rehabilitation credits are subject to recapture. No recapture is required after five years. The amount of such recapture is reduced by 20% for each full year that elapses after the property is placed in service. Thus there is a 100% recapture if the property is disposed of less than one year after the property is first placed in service; and 80% recapture after one year; 60% after two years, 40% after three years, 20% after four years. See Code Section 47(a)(5). 3 How is the rehabilitation tax credit computed when a portion of the property is not used for business? An allocation must be made between the business and non-business portions of the qualified rehabilitation expenditures. The allocation is generally based on square footage. The percentage of expenditures representing the non-business portion is subtracted from the qualified rehabilitation expenditures eligible for the tax credit. The "substantial rehabilitation" test and "placed in service" test applies to the business portion. How are the rehabilitation tax credit carrybacks and carryforwards applied? If all the credit cannot be used, the excess can be carried back three years and then forward fifteen years. Form 3468 is used to figure the rehabilitation tax credit in the current year and Form 3800 is used to reflect the carrybacldcarryforward amount. See Internal Revenue Code Section 39(a). Can a seller of a certified rehabilitated property, who has not claimed the rehabilitation credit, pass the credit to a buyer? •• The seller can pass the credit to a buyer, provided that no one has claimed a rehabilitation credit for the rehabilitation costs and the building acquired was not used after the seller incurred the expenditures and before the date of acquisition. See Treasury Regulation 1.48-12(c)(3). The amount of expenditures that are treated as incurred by the buyer is the lesser of: (A) the amount of expenses actually incurred before acquisition or (6) an allocable portion of the cost of the property if it is bought for an amount less then the rehabilitation expenses actually incurred. See Treasury Regulation 1.48(c)(3)(11)(6). 4 Can a taxpayer incur and claim additional rehabilitation costs in a taxable year subsequent to the year in which the rehabilitation credit was originally claimed? The rehabilitation tax credit is 20% of the qualified rehabilitating costs incurred before and during, but not after, a taxable year for which the credit is claimed, that is, the year in which the property is placed in service. Costs incurred thereafter do not qualify for the credit. It is important to distinguish between qualified rehabilitation costs incurred during a 24-month measuring period and the costs incurred from the start of the project and up through the end of the taxable year of the credit. Once it is determined that a taxpayer qualifies (the 24-month test), the credit applies to all costs incurred until the end of the taxable year in which the credit is claimed. It is possible that an additional rehabilitation credit would be allowable on a new project within the same property as long as that project involves a portion of the building that was not placed in service. Do investment credit at-risk rules apply? The investment credit at-risk rules apply after 1986 to the rehabilitation tax credit since those rules apply to property used in a real estate activity. See Internal Revenue Code Section 46(C)(8)(B) and Code Section 465(C)(3)(D). Are passive activity limitations in effect? The passive activity loss limitations of Code Section 469 are effective generally for tax years beginning after 1986 and limit credit derived from passive activities. In the case of credits derived from rental real estate activities, a taxpayer may use the credit up to a deduction equivalent amount of $25,000 per year. The deduction equivalent of the credit is defined as the amount which, if allowed as a deduction, would reduce the regular tax liability of the taxpayer by an amount equal to such credits. Thus, assuming a 28% tax rate, the $25,000 deduction equivalent would be 28% of 25,000, or $7,000 in credits. The availability of the credit attributable to rental real estate activities is phased out by reducing the $25,000 deduction equivalent by 50% of the amount by which the taxpayers adjusted gross income (AGI) exceeds $200,000. Thus taxpayers whose AGI is over $250,000 would not be able to use the rehabilitation tax credit. 5 Can a taxpayer claim a 10% credit on any rehabilitated building? A taxpayer cannot claim a 10% rehabilitation credit on a building which is in a Registered Historic District or on the National Register of Historic Places. For these properties only the 20% credit is allowable. Property not qualifying as a certified historic structure is ineligible for the rehabilitation credit if it is used as a lodging facility (other than hotels or motels for transients) after the rehabilitation is complete. Consequently, a rehabilitated property used as an apartment is ineligible for the 10% credit. See Treasury Regulation 1.48-1(h)(1)(i) and (2)(ii). A building that has been physically moved is ineligible for the 10% rehabilitation credit. It is allowed only for a certified historic structure. The retention of internal and external walls applies as follows: A) 50% or more of the existing external walls of such building are retained in place as external walls. B) 75% or more of the existing external walls of such building are retained in place as internal or external walls, and C) 75% or more of the existing internal structural framework of such building is retained in place. What are the procedural rules for claiming the credit? The credit is claimed on Form 3468. Attached to the Form 3468 (or by way of a marginal notation), the following information must be given [See Treasury Regulation 1.48-12(b)(2)(viii)]: A) The beginning and ending dates of the measuring period slected by the taxpayer. • B) The adjusted basis of the building as of the beginning of the measuring period. C) The amount of rehabilitation expenditures incurred or treated as incurred during the measuring period. D) Copy of the final certification of completed work by the Secretary of the Interior. 6 E) If the adjusted basis is determined in whole or in part by reference to the adjusted basis of a person other than the taxpayer, the taxpayer must attach a statement by such third party as to the first day of the holding period, measuring period and adjusted basis calculation. Can a lessee of a building or a portion of a building claim rehabilitation tax credit? If the lease term is greater than the recovery period determined under Internal Revenue Code Section 168(c),i.e. 39.5 years for nonresidential real property, the lessee can claim the rehabilitation tax credit on qualified rehabilitation expenditures. Also see Samuel G. and Hazel P. Eubanks, et al v. Commissioner, 59 TCM 529. Can a taxpayer claim a rehabilitation tax credit if it leases its space to a tax exempt entity, i.e. a governmental agency or non-profit organization? Tax exempt use property is defined in Internal Revenue Code Section 168(h)(1) as that portion of the property leased to a tax exempt entity in a disqualified lease. A disqualified lease occurs when - 1) part of all the property was financed directly or indirectly by and obligation in which the interest is tax exempt under Internal Revenue Code Section 103(a) and such entity (or related entity) participated in such financing, 2) under the lease there is a fixed or determinable purchase price or an option to by, 3) the lease term is in excess of 20 years, or 4) the lease occurs after a sale or lease of the property and See Internal Revenue Code Section 168(h)(1)(B)(ii). If a building was rehabilitated and placed in service, can a taxpayer apply for certification and claim the rehabilitation tax credit"after the fact"? The taxpayer must request on or before the date the property was placed in service a determination from the Department of Interior that such building is an historic structure and the Department of Interior later determines that the building is a certified historic structure. See Treasury Regulation 1.48-12(d)(1). Accordingly, if Part I of the application was not submitted prior to when the property was placed in service, the taxpayer would not be eligible for the tax credit. UPDATED 12-10-1995 ST PAUL OAS • 7 • 3-27 - --,. Ae...-1, ....;. "i"-T:,r•V`•-:.. :-.1;-__ye:-.1;--71f.,:-,:•e_;;;.:. -j.,.......,„--;,..-.= %..-...,":- •:...-:':!-L-:: ,,-:.::::.1z117- . s _ 3 -,. "s&Kr., • .. ---.%r f':-7111 'tec 4-...-A -,-. .-c.•,,,..:--...s . '.-C.111\1.1. . 111. - . . ._ ::,.. ,.: ..._..,.- ,, ' ,,,X, ' .3... '.•:.. 'eV-4, •--•-"s 't2,-•-••••-: 7.:T-:?-:-;-"1;....:.:-!',-•,t1--,-.7.-4;I -•,...,..•!-- 'iz..'s-':'-'•--7.: ":..- :=7 '.--;:',--.' .....! -r.P .:.: 'x.-.,4-' '--.:-,'3",, '4.7.,`9-,13'!. ,-_-;.-i,"1,, _,.. .i. ...4.,:-..„z..., Information Series No.25,1991 ESTABLISHING AN EASEMENT PROGRAM TO PROTECT HISTORIC, SCENIC, AND NATURAL RESOURCES The purpose of this Informa- protect marshes, unique geologi- agencies as well as charitable tion booklet is to assist cal formations,special wildlife nonprofit organizations. organizations in creating ease- and plant habitats,and other ment programs. The legal con- sensitive environmental re- An easement program is a middle cepts related to easements are sources. approach for the protection of pro. introduced,and considerations in perties and areas, falling between establishing and maintaining an An easement program enables a full ownership and governmental easement program are discussed. tax-exempt, charitable organiza- land-use controls such as zoning. It is assumed that the organiza- tion or public agency to protect An easement program can rein- tion already exists and that its buildings or land against potential force local land-use plans, historic purposes encompass an easement adverse development or changes district ordinances,and other program. Readers contemplating by acquiring partial interests in public environmental controls. forming an organization are such properties. An easement By supplementing or providing for advised to consult Information assures a measure of protection review of proposed land-use or booklet#14, Legal Consider- for a property without burdening design changes, easements help ations in Establishing a Historic an organization with the greater maintain and improve the quality Preservation Organization. costs and responsibilities of full of urban and rural environments. ownership. The property remains Placing easements on undevel- Purpose of in private hands and on the local oped properties can reduce pres- tax rolls. The owner enjoys the sures to develop them. Properties Easements use of the property,subject to the already developed can be pro- restrictions delineated in the tected against more intensive A preservation and conservation easement document,and shares development. In urban areas, easement program helps to in the protection of a property strategically placed easements protect historically and architec- valued by others,thus furthering can discourage land assembly that rurally significant buildings and a sense of private responsibility would enable the construction of their settings, and scenic and for preservation. Even if there is large,incompatible develop- natural resources. The costs of no provision for public access to ments, such as high-rise such a program may be signifi- the protected properties—and construction in low-density candy lower than buying proper- property owners may prefer not to neighborhoods. In addition, ties outright to protect these allow public access—an easement unlike zoning, easements— valuable resources, particularly program benefits the public by individual,private agreements when easements can be acquired preserving the nation's cultural between organizations and by donation. Programs have been and natural heritage and open property owners—may be de- established to protect the build- space and scenic resources. Many signed to protect the particular ings and settings of rural villages, state legislatures have recognized features of individual properties. historic urban buildings, sensitive the public benefits of acquiring Furthermore,easements are environmental areas,and farm- easements for preservation and guarded by organizations commit- land. Environmental organiza- conservation purposes,by provid- ted to maintaining easements, tions also have used easements to ing for their acquisition by public National Trust for Historic Preservation - whereas zoning can be subject to the Internal Revenue Service 1. Scenic or open space ease- political pressures for variances recognized a charitable contribu- ments,which protect open and exceptions. • tion tax deduction for the value of spaces,historic and scenic views ‘ the gift of an easement,a major the surroundings of culturally 1 In addition to providing substan- factor ever since in encouraging significant structures,archeologi- tial public benefits, easements conservation and preservation cal sites, and ecologically signifi- benefit the property owner. Most organizations to establish ease- cant land. The rights restricted property owners are unaware that ment programs. Congress autho- by these and other easements are they can protect their land or rized the deduction of easement sometimes called"development buildings from changes once they donations from income, estate, rights"because property owners have sold or bequeathed the pro- and gift tax liability in Section are generally prohibited from perry. An easement legally 170(h)of the Internal Revenue building on the open space. establishes the owner's wishes Code, for which the Internal with regard to future treatment Revenue Service issued regula- 2.Exterior or facade easements, of the property and can be indi- tions in 1986 in Section 1.170A- which protect the outside appear- vidually designed to match the 14 of the Treasury Regulations. ance of a building. These ease- owner's needs and the character- ments usually control exterior istics of the property. Further- An easement is a legal agreement alterations and may require more, an easement donation may between a property owner(the proper maintenance of the pro- qualify the donor for various tax grantor)and the holder of the perry. They also usually include savings. easement (the grantee),which aspects of the scenic easement, to governs the current and future control the development rights of How Easements owners'treatment of the property. the lot on which the building It is an interest or right in a stands and the air rights,which Work property that falls short of out- are development rights for con- right ownership. Essentially, structing additional stories above . The real estate,tax,and financial when a person holds property,he the building. aspects of easements are complex, or she possesses a"bundle" of and their application varies from rights. The bundle is called a"fee 3.Interior easements, which --) one state to another.Any organi- simple estate,"and its owner is protect part or all of the interior zation contemplating an ease- said to own the property "in fee of a building. Such easements are ment program should consult a simple." Each of the rights is not often used because of the knowledgeable attorney. It may sometimes referred to as a"less- difficulties in reviewing interior be helpful to contact organiza- than-fee interest." A property uses and spaces in residences or tions that have established ease- owner is freely allowed to give other buildings in private use. ment programs,particularly away, lease or sell any of those others in the same state(see rights,subject only to legal agree- For the purposes of this Inforrna- Appendix C). ments that previous owners may tion booklet,the term easement have made,to state laws,and to encompasses all forms of negoti- Easements have been used for local government regulations ated less-than-fee interests (e.g., centuries. They originated in such as zoning. Also,a govern- covenants, equitable servitudes, common law; that is, the law as it ment agency empowered with the easements),in addition to those has evolved through court deci- right of eminent domain may just described, used for protection sions regarding real property and condemn such rights. The most of the built and natural environ- contracts. The easement concept, common examples of easements ment. however,has only recently are rights of way. Easements also evolved into a useful tool for may be drafted to allow public In an easement,the grantor may preservation and conservation, access for recreational uses such agree to allow certain activities to Scenic easements that limit as hunting,fishing,hiking, or take place on the property,to development and types of uses on skiing, meet certain obligations or to property along certain highways refrain from activities that affect were purchased by the National Preservation and conservation the integrity of the property. The Park Service and a few state organizations may make use of grantee accepts responsibility for agencies as early as the 1930s. It three general types of easements: enforcing the agreement. Every ) was not until 1964,however, that easement should require the Ii • .. tor to allow the grantee .. !h.4-•:•:..7.-:-•.,,k.:d'i, . --,n4ALIQ.‘-.:13,r. ,,:*" . • -:...-,-,..r s• ' :. Mess for periodic inspections to r-.. ' h, . •'.:7.-:.:-;:ii"'• ';-`* 4-:-.• - :14Yr4°:" see that the easement provisions . - ...._- • Is' 7.iiiv "et r.: :..:,-. if ktf2: ., 4:7,....v.,...e • s:r:i!A•T '-f.:—::. A.,,4 -1. 4!:, IP are being observed. The rights •:Ifif • "-Ai!m .1 _ 9.;•,-*:;:m:L...r..- r....11 ::: ---' IIN* -"f• °11 • 40311‘1:i the owner relinquishes in the 4 . .)4A/,. i.•••'''• • 411 4*C--•:tr.'''. ' . , .• - -v.., 4...• easement,as well as any obliga- 1,1... .,..-.! •,..- 2,,;•.,• ...--,. ..,1 .t... - ...•... . , „a- ., . - tions,will affect the monetary ' .. - - '• •-•-•:‘ %s' - ---: -z; -• ."•..,.. ••-• 'W*1.0.--/.-4:•rs - _. . .L 7.,.. :.:•.• „TA.. , - .-:::‘ t... ..,.iv. _..... value of the easement for tax . .....a.t.„--44-c...1.,".„-r •,. -•-1 tr"•?*:-:,••• ....Pl. ., ••• ,.... - -. purposes. .•.-0 ,...--„, .,...., - - ....‘ •••,,ae-, 1.... ..:.4- - -117. - .... k . ,- .- },.- ...-- ,..-. ,- 3-4.,.-• ,... -.. r-..,.. • • - --, _ •-.-7-•,e•41-_--- sk -- , :•',--4, .- In addition to general provisions, ,0.- -4 . 7t - ,_ . - • . -......„,... - = 7 .- --- . 4.. .. •:... -.. ., some permitted or prohibited uses . , _ --...-„. 7.7,4,;-_ ...7,.....-. .. .,.„ '\..: .-:- -_,•!::• • _-_ ii,............. „.....: can be enumerated. An easement 4 - • might allow only residential use • - -‘4"-• . : - .fift&H .-: E I IC: .1 - — s - : : • ' s': • _ 1 u - - - I. _.'--'.:'' •-I- -- —r - for certain buildings,prohibiting . __ --•--- - — --- commercial or industrial uses. - - ..._.-7._- - . -...;For undeveloped land,permitted .....-- -._... .... uses might include farming, tim- -_‘•-•%--7t-;-7',-f.• -: - -•-,-- ... .•..Int.,w. -- bering, and other nonintensive ..qp.t... -- ----.;-'-'-- --- - --!c-,- ,-- _--,--•*- -. ..;--- 7-- --..-51' --- . ..• .-‘ftk-4•4.- -7-"" uses. The organization and the ..-. ...--' .. •-.-, - • ..i:.-2mt: , . ..-1.;.:----;•:.:.:_-_. .7-.----:..f7`?•.•%. - -- ----,••.-1- ------„,----- --...•....,....:-.--.. .. -....,.., - e'-'20-----...rft•-" - -1. --g-... • .,-. ,,c. -:•;.:44,,::,.:-, owner might agree to exempt ft.-L..-• -.- - certain specified buildings from the easement requirements in The National Trust for Historic Preservation holds an easement on Mount order to allow the owner more Harmon in Earleville,Md.,which protects the building's outside appearance. freedom in operating a business or farm. The easement can prohibit mrabdivision or development of i•id or merely set limits and may property owner's decision to . legislation (see Appendix A). specify the areas to be subdivided donate an easement. Easement Generic 1egisla0on generally and the number of buildings provisions can be tailored to fit recognizes the public benefits of allowed,together with controlling property characteristics and the easements. These statutes may their design and siting. Other needs of the property owner also require that the easements' activities that may be restricted within the guidelines the organi- existence be considered by local or prohibited by an easement zation sets for accepting ease- tax assessors,provide for notice include road building or other ments. and recording procedures, and construction activities, such as specify the types of organizations grading and excavation; dumping Legal Considerations authorized to accept easements. unsightly wastes; cutting trees and clearing the land; damming In states without such generic streams OT filling in wetlands; or Because the law regarding ease- legislation where only specified erecting most types of signs. ments varies from state to state, public agencies are authorized to certain characteristics of ease- acquire easements, organizations The property owner might further ments may be permissible in and their legal counsel must rely agree to allow limited public some states but not in others. All on common law. Because of an access or tours of a building a states have passed some form of absence of reported cases inter- certain number of times per year. easement legislation. Forty-six preting such easements and A landowner might make avail- states,and the District of Colum- because of the variety of state able a narrow strip of land along a bia,have passed generic legisla- legislation, the Uniform Conser- stream for fishing access. tion authorizing state agencies vation Easement Act(UCEA)has and certain qualified nonprofits to been recommended by the Na- The flexibility of the easement is accept easements. Four states tional Conference of Commis- a major reason for its importance and Puerto Rico have authorized sioners on Uniform State laws. ms a preservation and conserva- easement acquisitions by sped- Seventeen states have enacted the _ion technique. This flexibility fied state agencies only. The U.S. UCEA or a variation of it:Alaska, can be an important factor in a Virgin Islands has no easement . 9 , Arizona, Arkansas,District of • land areas for outdoor recre- within a registered historic Columbia, Idaho, Indiana, Ken- ation or for the education of district, except buildings ti tucky, Louisiana, Maine, Minne- the general public; cannot reasonably be consi _d sota, Mississippi, Nevada, Or- • natural environmental sys- as contributing to the significanc egon,South Dakota, Texas, tems, such as fish,wildlife, or of the district.Treas. Reg. Virginia,and Wisconsin. plant habitat; § 1.170A-14(d)(5)(ii)(B). • open spaces(including farm Tax Considerations land and forest land)where To qualify under the Internal such preservation will yield a Revenue Code and its regulationE significant public benefit either the preservation purposes must There are three levels of taxation in the form of scenic enjoy- also be protected in perpetuity. a prospective donor will consider ment for the public or where This means,among other things, in evaluating an easement: federal such preservation effort is that states must have passed taxes; state taxes,which often pursuant to a clearly delineated appropriate easement legislation reflect deductions available at the government conservation to offset the common law limita- federal level;and local property policy; Or tions highlighted above. Also th( taxes. Easement program admin- • historically important land rights of mortgagees must be istrators should be prepared to areas or certified historic carefully set out in the easement discuss in a general way with the structures. to avoid extinguishment of the owner, the owner's family and easement deed in the event of the owner's advisers the various The qualifying donation of ease- foreclosure. A sample easement tax benefits associated with ments is further clarified by deed and associated commentary easements. Owners should be Treas. Reg. § 1.170A-14. In the are included in the Conservation encouraged to investigate these case of donations that are made Easement Handbook,available benefits further with their legal for the preservation of certified from the National Trust. and tax advisers, historic structures,the easement must protect a structure or land How does the charitable contribu Federal Tax Provisions area listed in the National Regis- tion deduction work? Gen 'y, ter of Historic Places or located in in the case of appreciated rt_ The donor is allowed to take a a National Register district and property, the deduction may not charitable contribution deduction certified by the Secretary of the exceed 30 percent of the donor's for federal income, estate and gift Interior as being of historic signi- adjusted gross income in the year tax purposes for the value of an ficance to the district, of the gift. Any excess may be easement that is donated to a tax- deducted over five additional exempt charitable organization or Donation of an easement over a years or until the value of the public agency for defined"conser- "historically important land area" donation is used up,whichever vation purposes." Section 6 of includes land that is either. comes first. As an alternative, P.L. 96-541,the Tax Treatment • independently significant (e.g., the donor is allowed to donate uF Extension Act of 1980, codified at Civil War battlefield)and to 50 percent of adjusted gross Internal Revenue Code §§ 170(h), substantially meets National income,as long as the donation 2055 (f)and 2522(d),revised and Register criteria(36 CFR 60.4); deduction is limited to the made permanent authority for or donor's basis (roughly purchase federal charitable contribution • adjacent to a property listed cost)in the property. deductions for gifts of preserva- individually in the National tion easements as "a qualified Register of Historic Places An easement may also reduce th( conservation contribution." where the physical or environ- value of a property owner's estatc mental features of the land area for federal estate tax purposes. If The donor is entitled to a chari- contribute to the historic or the easement is donated while table contribution deduction in cultural integrity of the Na- the owner is alive, the value of the amount of the fair market tional Register property.Treas. the easement and any consequen value of the donated interest. A Reg § 1.170A-14(d)(5). appreciation allocated to the charitable contribution will be easement is removed from the deemed made for a conservation The definition of"historically property owner's estate. If it is or preservation purpose if one of important land area"also in- given to the organization b 1, the following is protected by the eludes structures or land areas the value of the easement is donation: 1 . allowed as a charitable contribu- The tax benefits associated with the donation or sale of a facade tion deduction for federal estate the qualified rehabilitation of easement after rehabilitation is tax purposes.I.R.C. §2055 (f). historic buildings,which were completed and the property is increased under the Economic placed in service.Rev. Rul. 89-90, The estate tax benefit may reduce Recovery Tax Act of 1981,as 1989-30 I.R.B.4 (July 24, 1989). the value of an estate to the point amended by the Tax Reform Act that the beneficiaries can pay the of 1986, have given rise to in- The continued availability of taxes due without selling part or creased interest in the tax bene- easement donation deductions all of the property in order to do fits associated with the donation and rehabilitation tax credits may so. This tax benefit may be of easements on rehabilitation lead to an organization's being especially helpful for donors with projects. The donation of ease- urged to accept easements that do relatively low taxable incomes ments on older commercial not meet its criteria,regardless of who possess large amounts of buildings in active business the standing of the affected land. districts may yield substantial tax buildings in the National Regis- benefits to developers when the ter. In general,however, the In addition,the federal gift tax or easements are donated prior to continuing interest in the tax capital gains tax payable on rehabilitation. The Internal advantages of easements presents property given or sold after it is Revenue Service has ruled, an attractive opportunity for an placed under easement may be however,that the investment tax organization to advance its reduced because of the property's credit for the qualified rehabilita- easement program—and to obtain reduced valuation. tion of a historic structure is significant leverage in the reha- subject to partial recapture due to bilitation that follows the dona- 7. . An easement protects one of the few t 1 . remaining examples of a , combination house and barn in 71:1, •," Hermann,Mo. The Pelster House- . Barn was built in 1860 by German ., immigrants. . 4,-;"•:,..,, .:.,;•:---". Z --;,- __ tr'':•• . ... • • . ..-ir„....______:2 .; : ..1, -... -..n .-i-; . . 1‘. .i, • -"" -. - - 1 :,,i , ;..* 4 7.5 :..,,,.. •-',...ili.,)—:. - ... i 4iimeTh—a - _ •-- .. , :,-. ..:: - p if tr- t '7. : :V:. t4 tr: • .'d Hai, elk -4..... t;4; :1----:-.;7:: .*--- --1-: 1 . .i: ;;F:. 1,-` .-.1 . .1•'i•,"'*i I ,...,•-.. •-' r -;.1-:. it i g • .11-11. ::-.7:11 7 .. ....br. t k• • -4.1k ...k 1 - i .---•- i..,, 1111 I "tr4;-..:.. -.- 7.- .11.• :• V % I..J.t•kc't .",-i-:- : II t • ..._______ I. i . .. 4 -......1P.ab.:.• . 111.0. =MS-...:, Vai :8,64NIASA:.1r5e: V *rtk ... - .710 :-.---t_•-!--,-,z.,......,..-..i.;%.ryt. 7,6:-4.:,-.4. ," --,-'7.;C-: •shoolposiz.#.4,„;,1•50.10....•..j...........,:, *•7 : 4,,t,,t...• .7 -.4-44... _,..? , .44:72Y4. . .. 414-2-Fr‘ 41413*. 'v '*.it- .• idowve ....., ..Zr.k. .....:a..—"c••,.,..• " .."4:4-i_Is...c.... :—.1E:. '5!.... . -. '••-',.er./74`•' -t.-4.4a-'1,:-- -.49thi*,......' ...'4, 7. • • "tsik: ..• 1 . , _ kr'•':--vi., ' ;‘..7:_•aamita la .. .., tion of easements on buildings In the absence of legislation or the property after the easement is developers own. court rulings that require the imposed is subtracted from the assessor to consider an easement fair market value of the property , Easement documents must be in figuring a property's assess- before the easement was donatea. carefully prepared to conform ment,the assessor may or may The difference is the value of the with applicable federal income, not recognize the effect of the easement. Donors and their estate,and gift tax requirements. easement on the property's value, appraisers should be especially If an easement merely complies In cases where a property has careful in arriving at a valuation with state and local real estate greatly increased in value since because donors may be penalized law,it may be valid and enforce- its last assessment,asking the for overvaluing their gifts. able, but it may not qualify as a assessor to consider the effect of charitable contribution deduction an easement may cause the Alternatives to for federal tax purposes if it does property to be reassessed in its not meet requirements set out at entirety. This may in fact raise Donated Easements Treasury Regulation Section the property's assessment even 1.170A-14 and I.R.C.Section after the easement is taken into Most organizations establish 170(h). indeed, failure to qualify consideration. Once an easement easement programs in which The easement as a charitable has been considered,however, property owners voluntarily contribution may subject the any future increases in assessed donate easements to the organiza- donor to federal gift tax liability, value should be caused only by tion. It is also possible for the inflation or a rise in demand for organization to purchase ease- State and Local Tax Provisions similarly limited property and not ments. High estimates for the by comparison to nearby build- cost of easements have contrib- Income and estate taxes(some- ings or land not under easement. uted to the reluctance of many times called death taxes or It might be helpful to tax asses- organizations and public agencies inheritance taxes)at the state sors if the effect of easements on to engage in easement purchase level often parallel the deductions property value were informally programs even though it is available at the federal level,par- discussed or explained in work- possible to acquire some ease- ticularly when the donor's in- shops sponsored by the organiza- ments at a very reasonable cost. come and estate value are calcu- tion, or if the assessors are pro- Even if the cost of an easement is lated from federal tax returns,as vided a copy of Appraising Ease- high in relation to the cost of is the practice in many states. ments,which is available from buying the property outright,it the National Trust or the Land may be desirable to purchase only An easement may also affect an Trust Alliance. the easement as the expense of owner's local property taxes. The maintaining property owned in existence of an easement may Valuation of fee simple may,over time,prove cause an immediate decrease, in to be a burden. proportion to the easement's Easements value,in a property's tax assess- Programs in urban areas have had ment. An easement's effect on The specific terms of the ease- success in purchasing exterior local property taxes varies with ment, the location of the pro- easements at low cost, often the state and locality. Alaska, perty,and the applicable zoning stipulating that the property California,Florida, Georgia, Iowa, are all factors in determining the owner use the easement purchase Kansas,Montana, Nebraska, value of the easement for tax funds for exterior restoration. Nevada, North Carolina,Ohio, purposes. Valuations of ease- Historic Annapolis Foundation in Oregon,Tennessee,Virginia,and ments have ranged from 1 percent Annapolis, Md.,has worked out a Wisconsin have enacted legisla- • of the fair market value of the barter system, exchanging various tion requiring tax assessors to land in fee simple,to 91 percent services such as grounds mainte- give full recognition to the for an easement on undeveloped nance, historical research or reduced marketability of property land in the middle of a high- architectural drawings in ex- encumbered by easements (2 density residential area. change for exterior easements. Back Forty,Land Trust Exchange, no.3, p.9,August 1991). In practice,the easement value is There are three alternatives to the established by the before and after outright purchase of an easemer principle:the fair market value of — - • 1.Purchase and resale of the variety of activities:the organiza- • woodlands and timberlands property. The organization can tion must negotiate easement • prime agricultural soils or purchase a property in fee simple acquisitions,review owners' productive farms and sell it subject to an easement, proposed actions, enforce the • habitats for rare and endan- the terms of which can be negoti- easements'provisions,and be gered species ated with the purchaser if desired. prepared to withstand legal chal- • natural areas with distinctive Preservation organizations in lenges to its easements. It is also physical features(e.g., bluffs, urban areas have been successful important for the organization to outcroppings, or barrens)or of in using this technique. This promote public understanding of particular scenic beauty technique,however, can tie up the easement concept and the • other open spaces especially large sums of money until the program goals. Most easements valued by the community property is sold, and some organi- permanently impose these re- • areas adjacent to these pro- zations may find it difficult to sponsibilities on the organization tected resources, to act as raise the money needed. because easements must be i buffers . perpetual in order to quAlify for 2.Installment plan. The organi- the federal tax deductions. After the types of resources to be zation may contract with the protected are determined,the property owner to buy the ease- Establish Acceptance Criteria organization should identify their ment in an installment sale specific locations, using available transaction, enabling the organi- Because an easement program data or by conducting any neces- zation to spread its outlay of requires a continuing commit- sary studies. The organization funds over several years, and the ment from the organization,it is should check with appropriate owner to spread out the capital important at the outset to exa- local, state, or federal agencies gains from the sale. mine the organization's charitable and other institutions to see if it or public purposes. The proposed can use any existing studies. For 3.Bargain sale. Because the accomplishments of an easement example, the local planning money earned from the easement program should be integrated department may have conducted sale may be taxed, some owners with the organization's policies or may know of studies on a of appreciated property may be and resources. Acceptance number of these resources. The willing to sell an easement at less criteria for easements should be state historic preservation officer than its full value—a technique established to insure that ease- is also an important reference called a bargain sale. The owner ments are accepted only on with respect to historic resources. may be eligible for a charitable properties that are important in This process helps the organiza- contribution deduction for the terms of the organization's overall tion to identify the area or areas difference between the sale price purposes. in which to establish its ease- and the appraised value of the ment program. The organization easement, perhaps offsetting a Easement programs can seek to should analyze the following: portion of the capital gains tax, protect one or more of the follow- and the organization obtains the ing resources: Natural and constructed boun- . easement at a lower cost. • structures or areas of historical daries or barriers. A variety of and architectural significance historic, visual,physical, politi- Although installment and bargain • structures or areas of visual cal,and other factors may be sales have been widely used in fee importance used. In rural areas, these factors simple acquisitions,they have • the surroundings of structures might include contour lines, tree been used very little in easement or open spaces within historic lines, streams, and transportation purchases. Knowledgeable areas routes.In urban areas, they could counsel should be consulted in • historic views from structures, include historic district boun- such transactions. districts,and transportation daries,property lines, or the edges routes of major open spaces. Organizing an • archeological sites • scenic views The significance of the area. This Easement Program • floodplains,wetlands, and should be analyzed in terms of its shore lands historic,architectural,visual,or An easement program involves an • steep slopes(to control soil natural qualities. organization or agency in a erosion and water runoff) - — . ...4_ ...: ' "..."4-7::-..1.'.• - I ' • n-.: , .., :-- "7 - ‘. 1.11.t, _AI, -.. /.... ,...'. *.... . 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'--. .....•• -----=•.'•-•••.,...,'=".. .-.-z;.:-...-....----,..-7-.----...:..,•••*:,..:. .. ...-..-4.4-- _:...' _ . , • -. Easements can protect the open spaces and buildings surrounding historically significant buildings as in the case of Mount Harmon in Earle vile,Md. (Photo:Jack Boucher,NABS) Ownership patterns. Where are area. In addition, it can also pation of other interested organi- the large landholdings? What assist the organization in reinfor- zations will build a broader properties are government owned? cing local land-use planning or, if support base for an easement Which are owned by charities or necessary, initiating community program. Potential recipients can businesses? How many are held consideration of planning needs be sought from among public by absentee owners? These or providing alternatives to the agencies and nonprofit organiza- questions can be answered by community's official plans. All tions sharing common goals with using data and maps in the local of these considerations should be the sponsoring organization at all tax assessor's office. Each type of incorporated into the organi- levels: local, regional, state, or owner will require a different zation's statement of purpose for national. There are several approach. its easement program.That reasons for encouraging other statement can serve as a model organizations to participate in an Current and future threats to the for the individual statement of easement program: area. This analysis will help in purpose contained in each ease- deciding what other organiza- ment. • The organization overseeing :ions, if any, should be asked to the program might be able to participate as easement recipi- Program Alternatives rely on greater legal resources ents. in the event that an easement's The organization must also validity is challenged in court. Once these surveys and analyses consider its role in the acquisition Because a successful challenge have been completed,the organi- process. Will it hold the ease- could create a precedent zation should be able to identify ments indefinitely? Will it pass endangering other easements the boundaries of the area or areas them on to a government agency held in the area or elsewhere, in which to concentrate its or another organization? Will it other participating organiza- attention. This process also serve only as a matchmaker for tions might be willing to pool should enable the organization to other easement-holding org,aniza- their resources to defend an establish acceptance criteria that tions? A combination of these easement. will determine the eligibility of approaches can strengthen the any property within the target program.Encouraging the partici- !!! . • In the event of a threat to the program. Each easement the For easement donors and for area, such as a road-widening organization acquires may subsequent owners of property project or a change in a local provide that in the event of under easement, the easement historic district ordinance, that organization's demise, document will provide the neces- participating organizations, another organization with sary instructions for adhering to because they have property purposes similar to the the agreement. However, it may rights in the area,would have grantee's then becomes respon- be helpful to establish a good legal standing to fight the sible for enforcing the ease- working relationship with new threat in court. ment as successor grantee. It owners of a property already also can be desirable for an under easement, perhaps by • The involvement of govern- organization to reserve the writing to remind them of the ment agencies may provide right to assign its easements to easement and enclosing a publica- protection against public other organizations. The New tion explaining the easement takings through eminent Jersey Conservation Founda- program. domain or condemnation • tion,for example,accepts and proceedings. Although private enforces easements with Individual meetings and negotia- organizations cannot stop reserved assignment rights tions with property owners and public takings, federal property because it may be desirable to their families and advisers form interests cannot be condemned assign some easements to local the heart of the public education by a state, and state property organizations able to assume and public relations activities the interests usually cannot be enforcement responsibilities at organization must conduct. The condemned by a local govern- a later date. easement program staff,aided by ment. In some states, such as publications and maps, must be Virginia,an easement held by a • Finally,the organization might able to explain clearly the many state agency may prevent the act as a matchmaker for options that can be incorporated condemnation of the protected potential easement donors and into the easement. property by another state more suitable recipients. The agency. Maine Coast Heritage Trust The organization should lose no and the Waterford Foundation opportunity to acquaint all • The organization overseeing in Waterford, Va.,both have citizens in its region with the the easement program might done this successfully, advantages an easement program have a greater variety of exper- offers because community resi- tise on which to rely.Although Educate the Public dents usually are unfamiliar with each organization would be the easement concept. In particu- responsible for reviewing and It may be useful for the organza- lar, the organization might wish enforcing only those easements tion to prepare a formal report to address these questions: whY it holds,it would be possible to setting forth the purposes and should individual property owners cooperate on questions in such goals of the program and describ- be willing to limit their options areas as land-use management, ing the process used to identify for using and changing their pro- natural areas supervision, or them. Such a report can serve as perty? Why not rely on local architectural review. Some a continuing reference for the zoning and subdivision regula- organizations have carried this organization in conducting its tions to control future use of and idea even further, by acting as program and,if published, can be changes to the property? Should joint grantees. The Maryland part of a public education and property owners dictate the uses Historical Trust and the public relations effort. of their property to future genera- Maryland Environmental tions? How does the community Trust,for example, have A brochure for potential donors benefit from easements on private cooperated in a few instances also can be useful. It might properties not open to the public? by accepting joint easements include information in an abbre- over large estates with historic viated form from the report just The organization should endeavor buildings. described, outlining the easement to generate favorable publicity for concept and the procedures its program with press releases • Other organizations can act as followed by the organization in and media coverage. For example, backstops for the organization seeking and accepting them. it might recognize a donor with a overseeing the easement ceremony or hold a small recep- a - -- tion from time to time for several Generally, three considerations several easements on separate donors. Another way of acknow- influence a property owner's portions of a large estate over ledging donors and of obtaining decision to give an easement: several years to allow the owner recognition for the program might to deduct the easement's full be to post a map in a public Altruism. Owners concerned for value. The organization may location noting the properties their property's and community's wish to ask the owner to attach a under easement. Such a map, future welcome an opportunity to codicil to his or her will stating however,should not create the provide for its permanent protec- that if the donation is not corn- impression that there is public tion. pleted during the owner's life. access to properties under ease- time, the executor of the estate ment when there is not,and some Community support.Broad • must complete it. As an altema- donors may value their privacy community support for the tive, the owner may simply prefer more than this type of recogni- program may work even when the to donate an easement on the tion. To indicate the buildings or owners are not in a financial entire estate by will, thus taking land protected by an easement position to take advantage of the advantage of estate tax savings and to obtain further recognition tax benefits. Color-coded maps but not the potential income and for the program, the organization showing properties already pro- property tax savings. may obtain the right to attach a tected and those being considered small marker to buildings or erect for an easement help to assure The owner may wish to reserve a small sign on the property. interested property owners that the right to build on the land or to they are not alone and may per- sell off a portion of the property Approaching Potential Donors suade them to join their neigh- for development. This is espe- bors. In some cases, it may help cially true in cases where the The organization might approach to have a number of landowners owner—often a farmer—possesses potential donors with a widely sign agreements that say, in a large amount of land but has publicized meeting, or hold small effect, "If John and Mike and little cash income. Such owners or individual meetings with Doris (or x number of property may regard their land as a source potential donors. If the organiza- owners)say they will donate, so of retirement income. Foregoing tion chooses a large public meet- will I." their right to build may cause a ing, it is a good idea to approach hardship for them or their heirs ih the most likely donors individu- Tax savings.Possible tax benefits later years. ally beforehand. They may agree are a bonus for donors with to participate and to announce charitable intentions and,for Some organizations believe that their intentions at the first others, might be great enough to allowing construction adds to the meeting, thus providing an overcome their hesitation. easement's flexibility with little example for others to follow, practical risk and encourages a Donation Options property owner to donate an Property owners who should be easement. If allowing construc- considered for initial contacts are Large landowners often ask three tion is acceptable to the organiza- community leaders; owners of questions: how may I best take tion, there are several ways to important landmarks; owners of advantage of the tax savings? accommodate it. Some portions key visual features, such as a How may I best provide for my of the property might be corn- corner building or a knoll trea- own and my children's continued pletely withheld from the ease- sured by area residents; owners of use of the land? How will an ment so that building on that key properties,such as those easement affect my property's land would be subject only to bordering a stream or urban park; marketability? These concerns local zoning and subdivision and owners of large tracts of rural can be addressed by discussing at regulations, or an easement might land or a group of buildings in an the outset the easement's flexibil- state that a specific number of urban area. ity as there are a number of structures may be built on the possible variations in the ease- land,without specifying the The presentation for the meetings ment itself and ways to donate an actual construction site for each. with property owners should be easement. As a safeguard against incompat- based on a clear understanding of ible construction, the organiza- the possible motivations of the Concerning tax benefits, it may tion might require that its ap- owners in donating easements. be necessary to phase donation of proval be given to siting and to .. - design. Some organizations delineate building sites or zones within the easement deed. An- other option is to draft two ease- -ts- -- ments, one for the part of the ---- • .,- property where no construction is -_ _- allowed,and the other for the part . . , _ , _ . where controlled construction -. - -. ;.•,-:. .-c. may take place. ". -le 1.-Z• e'ft. '[...:...: g . -1‘ ot ...;--• .= & - I Negotiating the Easement ...--. .- . . , • - --...--.---- : .i.1:1 It. t al Once a potential donor has • fe In--. ''4 :.- ''''r• P:v.' .,. expressed interest,the easement - - r------ program staff should evaluate the _ _ -.-"..-....,.... , :re, • • . - • -„---fs-..--;.. .;' _,.. -- _.- ..:1 - ...: . , .„ . „- property characteristics This ::',...," •....- •'• •.;.i.:-- • •'1-i--.I..... .-.• ----.. 1 ...: will help determine whether a •-;, • -., , _ property meets the organization's .., — . 5 .----- - -;.-: acceptance criteria and identifies - . - Pi -- •-•,• ''- _ - • - . i -) •. J,15 . ,. t the portions of the property to be - ' - ---, . -• . .. -.. protected if the donor or organiza- ,....'',._._-:::----•- - - ---•-•••.-.: -----'---- -ft-1- - I L..- . - . 4 :-: tion decides not to give or accept :!-°3- . _ an easement over the entire rl ? w .. ... I III I 1 - - . property. A tour of the building ,- , -- or land with the property owner will help the staff discover how ••' :1-,--.:4-:.:-- -.:.-;-::- s.-:.----.._,._ -..., s. . .---?:::.% .„---. - a-- .- - the donor feels about the prop- ''.0 ,-i:-.---r ._. 71-. -----:----: . '` - ' • : - . . -. en ,what the donor's concerns • ,- ••.' =-,-. .:• -4 4. •-i- •. --;‘-• . ... . .. . . .. are about the easement and how . ' • • • - . ' '•::'i --' U•t-.- -_''.: .1' -._.:.i- -.-` -- knowledgeable the donor is about , r,,, '- F :=,-.1 .: .: .;z'.•!-. ...:... . . - .......:::. -,f•-•-• ., - _ the property's history, signifi- -E '. .••• ',It: -: _ --- --- • • - -' - ---,. --.-. til+-:--1-- - -- - . _ ..____ . cance,and resources.This helps liararni -;E: ....... . Inti i - • ...:':• :•,r Art op Ti .. COBB S mots .: - ..--..z.... - ... ._.....g. ;- to establish a basis for negotiating .. - .-• _ .A . .z....- the easement provisions. At this .7.-%•'4"..-..4. I -.--,:i ---. - --1_. -- ...- point,it is also helpful to have an ,-.4 j'- •&It 11 informal estimate made of the __-_, -, n - -I - --, -_,.r...;.-..- ..„ . - . . . . -- property's value and to have the -- .-' - - - • - - -_.....360-W--.17—:-&-- l'o--.4'4.•11L;- s'-''':".''' - property owner consult legal and —--_ _ ..... _ ,-: - -• -7 __....-e..---:--4.--_:-,-- financial advisers. The organization may draft the Easements can protect urban structures as well. The National Trust holds a easement with the assistance of a facade easement on the National Union Building in Washington,D.C. lawyer,but a lawyer representing the owner's interests should review and approve the document as well. The owner is responsible for obtaining legal representation, ' financial advice,and a formal appraisal. The organization might keep a reference file of tax - and property lawyers,accoun- tants,appraisers,and other specialists familiar with ease- ments to assist the owner in obtaining competent guidance. • le & •• .ar . 4•011Mir _. To provide helpful information condition,paying attention to specific requirements in state for potential donors,the organiza- details, such as structural defects legislation for notifying govern- tion might also retain some of that might not be visible in ment agencies, such as the local ' these professionals for informal photographs,will be useful in planning commission of an , assistance during preliminary future property reviews. A easement transaction,but if there negotiations. Property owners property description written by an are not, the organization may who have gone through the architectural historian might also wish to do so as a courtesy. donation process might act as be helpful. Many organizations, for example, references or give assistance to notify the local government by potential easement donors. Photographs are essential and letter that they have accepted an should be taken from numerous easement within the govern. If the easement donor wishes to angles,including all facades, and ment's jurisdiction, enclose a secure a tax deduction for the should show significant details map locating it, briefly describe donation,it is essential that the and features. For buildings,4 x 5 its provisions,and offer to send a donor establish clearly and black and white or color negatives staff member to answer any accurately the value of the ease- are preferred to show all architec- questions the government admin- ment for tax deduction purposes, tural details clearly although istrators may have. with thorough documentation by some organizations may prefer to a qualified appraiser. use 35mm black and white Any reasonable expenses related negatives to reduce costs. It may to the donation of the easement The organization also may be be necessary to specify materials borne by the donor may be tax- interested in obtaining an accu- and procedures to be used in any deductible as miscellaneous,not rate,well-documented appraisal if repairs and to include color charitable, expenses, in addition it intends to use the value of a samples if the organization to the value of the easement donated easement to match a chooses to supervise paint colors. itself. Such miscellaneous grant from government funding expenses would include legal and - programs such as the federal Land For land,the organization might accounting assistance,survey and Water Conservation Fund, include aerial photographs, costs,and recording and appraise. Historic Preservation Fund or particularly if its inspections will fees. Many organizations now from state programs. Such be made from an airplane. It may require the property owner to easements must be held by public be necessary to map the area assist in its easement acquisition agencies,and they generally have under easement if it does not and future monitoring and en- involved some type of physical correspond to property lines or forcement costs as well, including public access,e.g., hiking or natural features. Although a the cost of staff time, travel,and skiing trails although it may be formal land survey,which can be indirect expenses. possible to use the easement expensive, often is not required,it value as a match when the may be desirable in order to Organizations should be aware easement protects a public view, obtain a precise map. that the costs of monitoring that is, one that provides scenic easements and administering access. Once the easement document or easement programs are not deed of easement is satisfactory to insubstantial. Staff time, travel Federal easement regulations and all concerned,it is recorded in the expense, cost of producing base. sound program management office of the local recorder of line and property documentation, require that the organization deeds and any other repositories and potential enforcement costs carefully document the property, that may be required by state must be calculated. Most ease- using the legal description,a statutes. The National Trust ment programs require that an location or boundary survey,and holds a number of easements and easement donor contribute to an the organization's inventory of requires that both the organiza- "easement endowment" or the property's resources to be tion and the owner retain copies administration fund. The contri- protected. This may be needed of the deed and countersigned bution may be based on one of someday to help enforce the copies of the photographs,written several calculations: easement. If the easement is descriptions,and other documen- • fee based on projected costs; applied to a building, a written tation,with the owner expected • flat fee, based on the average description of the property's to transfer everything to subse- costs for administering each quent owners. There may be easement; or TA - , - :-.--! of easement agreements have • ..------•....t •--.- occurred when the property ‘, • . cc' ,- . . --..... * -.Ps owners did not understand the • op_.ms... -- . . -4164. ' limitations imposed by the ease- merits. Thus, it is important to educate both initial and subse- quent property owners about the _.--1-__ -741101---.001%.. ' .... - ,-00,...it• --___---____ - consequences and responsibilities -- -1. IThi:im-- -;-_---Va....:.i. 's I. - ... of an easement. , __ 11-11% . - ,‘,..-, -. ., -- -,4-,-s..40ret.„ . =. •••-- --i....- g, II i 1 ll 14- 4 ! • • 1 --"r-7-P-'.' Inspections serve the additional .4 • .": ' 1 - -: '. • if: I IP Ilv /1.14. . : 1- ,00! I. 1 4 _ • . -I. _1 --. and equally important function of m..i.k.,7.6 , ...oz. - -.ii-- . 1-#1- t ' •I 1. ; I • . . . ' 1 r. _______-••-•- ••••- milim,limr:4"1111".-• reminding the property owner of . — - ,, the responsibilities imposed by • --:._-,.. glcii,-4;25," .--.;_. the easement. They are also a •-- lie. ..-.• . a • .,I ::.- . .. jr,)1. 14 ......1: a: :toil, . „- . ,,,, ; . . , ...,,_ _ formal. way of maintaining the.. s 4 0 it j . -il. 2J . 1.' relationship between the organ' 11. JI - IA ,,,.--.—--••• P.M-....15 7. - 7 "i===g1=h4LALIL,r zation and the property owner and may help to clear up misunder- -l•-•:-...c,. ..;:.--f: ...:„-_ :-,- • .. , ..-. .. . .., ;...... . . - standings that could be harmful -- - to the property. Black and white photographs showing facades and details are needed to document easement properties.Inselruhe,in Put in Bay,Ohio is protected by a The organization should monitor exterior easement held by the National Trust. changes in ownership of the property. The new owner should learn of the easement from the previous owner or through a title • fee based on complexity of Generally,this one-year period search. The overseeing organiza- restrictions and nature and size has been determined by staff lion should also meet the new of property or building pro- limitations (inspections are time- owner at the first opportunity to tected. consuming)and by the fact that explain its easement program and few properties under easement the responsibilities of the owner Review and Enforcement have experienced violations or and the organization under the threats of violations. The possi- easement. The organization's continuing bility of court challenges in the responsibility—to the donor, the years to come,particularly in In order to track possible transfers public, the protected resources, areas experiencing development in ownership before they occur, and other donors in the area—is pressures,warrants a careful some organizations rely on to maintain a review program to inspection and enforcement informal means and their inspec- assure that easement provisions program, complete with written tions while others state in their are observed. In addition to major records. easement deeds that it is a re- violations, properties under ease- sponsibility of the present owner ment can be subject to subtle Maintaining Owner-Organization to notify the organization when- degradation through minor Relationships ever a transfer of ownership is alterations that can add up to pending. A third alternative is to substantial change. A review Well-written conservation or include a right of first refusal in program is carried out in part by preservation easements,samples the easement. This allows the periodic on-site or aerial inspec- of which are included in the organization to preempt an offer rion. This is a right of the organi- Conservation Easement Hand- I made by another buyer by match- zation provided in the easement. book available from the National ing or exceeding it. This is not a Most organizations perform in- Trust and the Land Trust Alli- right that need be exercised; it spections once a year or more ance,will spell out the responsi- acts as a formal way of assuring frequently if it is determined that bilities of both grantor and that the organization will be there is a possibility of violations, grantee,leaving little room for notified of any pending transac- future disagreements. Violations lion. If the right of first refusal is El _ .. used,it should be carefully shingles. The entire roof needs to to pursue redress in the courts if formulated so as not to burden be replaced; the owner likes the its provisions are violated. The the property owner. Generally, idea of using wooden shingles, easement authorizes the organiz? 1 the organization should be al- which are historically correct for tion to compel the owner by coui lowed a limited time to respond— the original section, but not for action to make repairs or to perhaps as little as 72 hours. the addition. How should the restore the property to its prior owner be advised to proceed? All condition and may authorize the Reviewing Proposed Changes wooden shingles,all modem organization to make repairs to asphalt or a combination? correct the violation at the If the easement requires approval owner's expense. Depending on by the organization before the As this example demonstrates, . the circumstances, the organiza- property owner may proceed with choices in many situations defy tion may also seek an injunction certain actions,such as making easy solution and cannot be to stop an owner's proposed substantial alterations to a anticipated in drafting an ease- action or may seek monetary building or cutting timber, the ment. Decisions on their accept- damages in compensation for organization must be prepared to ability must be made subsequent irreversible actions. review the owner's plans. This to the agreement on a case-by- requires sufficient knowledge on case basis. The purpose of the As soon as the organization learns the part of the staff to conduct the easement is to assure mainte- of a threatened or actual viola- review and to respond within a nance of the elements that give a tion, it should obtain legal coun- reasonable period of time. Instead property significance. In review- sel to assist in evaluating its of staff review,an organization ing proposals for alterations the rights and possible remedial might appoint a volunteer review organization should consider the actions. The organization and its committee. Such a committee following questions: does the legal advisers should consider the would be similar in function to a proposed alteration contribute to nature of the violation, especially historic district review committee the integrity of the property? Is whether it was willful or uninten- created by local ordinance. To the change really necessary to tional and if it is reversible. It minimize requests for review in make the property function for should also consider two key cases where the proposed action contemporary use? Is the change questions: if it can be fixed,wher would be acceptable and to learn reversible? The organization may should it be fixed? This might in advance what plans the pro- need to consider denial or modifi- apply to such a change as paint peny owner has for future cation of the proposed change to color. If it cannot be fixed, what changes,a useful technique is the assure consistency with the then? The organization must development of a property man- purpose of the easement. consider its responsibilities agement plan. Although more toward the property and other work at the outset,this allows It is advisable to include precise owners in the area. It might also the organization and the owner to standards for review of alterations consider the effect of any reme- agree on acceptable alterations. and changes. A well-drafted dial action on the public's under- easement document references standing of the easement The organization must also have The Secretary of Interior's Stan- program's effectiveness and good a clear conservation and preserva- dards for Rehabilitation and intentions. The course to pursue tion philosophy in order to deal Guidelines for Rehabilitating is not always clear. Even when with complex problems of build- Historic Buildings. The federal the violation is of a type where ing and land alteration. As an easement regulations require use remedial action is not necessary example,consider the hypotheti- of the Secretary's Standards when or is voluntarily corrected by the cal question faced by the organi- restrictions to preserve a building owner, the organization should zation that holds an exterior or land within a registered document the violation and may easement on a building that has historic district permit future wish to obtain a statement from experienced changes over the development on the site.Treas. the owner agreeing to refrain from years prior to the easement. The Reg. § 1.170A-14(d)(5)(i). future violations. • roof of the building's original portion had wooden shingles,but Violations The possibility that permanent now the roof of both that section damage could be done without and an early 20th-century wing An easement is a legal document the organization's knowledge is a ) has been covered with asphalt drafted to allow the organization troublesome one. For example, . . ra - - what good is the easement when property owners. Lawyers and tion as simple as possible for the the owner decides to destroy the appraisers should assist with property owners. stand of 200-year-old trees or the easement negotiations. original parts of an old building It may be years before an ease- that the easement was designed Volunteers and consultants with ment program's value is fully to protect? Collecting monetary knowledge in the following areas appreciated—not only in protect- damages might give other owners may prove helpful: land-use ing land and buildings directly pause before destroying protected planning,real estate,accounting, but in creating a preservation and features,but retribution will not architecture,architectural his- conservation ethic in the commu- bring back the irreplaceable. This tory,archeology,history,photog- nity. Establishing an easement problem suggests that state, raphy, geography, ecology, geol- . program demonstrates that the regional,and national organiza- ogy, botany,wildlife manage- organization is concerned enough tions may need local assistance in ment,and forestry. Special about the community's valuable supervising their easement . services the organization might resources that it is committed to properties, either through a require are mapping,aerial safeguarding them forever. It cooperating local organization, a photography, cultural resources creates an additional factor that friendly support system within surveys (including an archeologi- the local government must con- the community, or preferably cal component), soil surveys, sider in its actions,and even if both. water quality studies, wildlife and property owners decide not to plant identification,and building donate easements, it teaches As any building inspector or inspections. It may be possible to them about the intangible value architectural review commission obtain assistance for some of of their properties. is well aware,violations will . these services from a university happen. The best chance for or a county extension agent, the Acknowledgements saving the situation is to catch a district conservationist of the Soil violation early. The use of small Conservation Service(U.S. signs or markers can help pro- Department of Agriculture), or a This Information booklet was mote a community's awareness of county or regional planning prepared in 1980 by A. Elizabeth the program and identify the agency. Watson,Rural Project, Office of properties that should be closely Preservation Services, National observed. Conclusion Trust for Historic Preservation, - Washington, D.C. It was revised Staffing the Program in 1991 by Stefan Nagel,assistant An easement program offers one general counsel, National Trust provide substantial p t way o , An easement program can be run for Historic Preservation. by volunteers, a paid staff or both. flexible protection for an area's resources. Easements alone, grams have at least one paid Many successful easement pro- however,probably will not staff achieve complete protection for person to manage the day-to-day these resources as many property details and to follow up on owners may decide not to partici- negotiations. Dedicated volun- pate in the program. Other teers also can handle these preservation and conservation responsibilities,given sufficient techniques should be investigated understanding of the easement for their possible use in comple- concept and administrative menting or increasing the effec- training. They can aid the pro- tiveness of the easement program. gram through their personal acquaintance with the designated area and local property owners. Acquiring a number of easements Consultants can supply expertise can take years of negotiations as required for both volunteer and with many property owners and paid staff and might be especially often requires considerable ingenuity,flexibility, persistence, helpful in setting up the program, providing fresh insight and a patience,and dedication. This process can be assisted by provid- ing view of the area and services that make the dona- _ Ha - Appendix A-State Kansas:Kan.Stat.Ann. §§58-3803 to North Dakota:N.D. Cent. Code§55- 58-3809(1989).(To"governmental 10-08 (1983). Easement Legislation entities"only). Ohio: Ohio Rev.Code Ann. §§ Kentucky:Ky.Rev.Stat.Ann. §§ 5301.67 to 5301.70(Page 1990). I. Generic Easement Legislation 382.800 to 382.860(Michie/Bobbs (Authorizing Conveyance of Per- Merrill 1990).UCEA. Oregon:Or.Rev.Stat.Ann. §§ petual Conservation and Preservation 271.715 to 271.795 (1990).UCEA. Easements in Gross to Qualified Louisiana:La.Rev. Stat.Ann. §§ 9- Agencies and Organizations). 1271 to 9-1276(West 1991).UCEA. Pennsylvania:(Conservation and Note:"UCLA"denotes Uniform preservation easements in gross Conservation Easement Act or a Maine:Me.Rev.Stat.Ann.tit.33, authorized under common law). variation thereof. §§476 to 479-B(1989).UCEA. Rhode Island: R.I. Gen.Laws §§34- Alaska:Alaska Stat. §§34.17.010 to Maryland: Md.Real Prop. Code Ann. 39-1 to 34-39-5(1984). 34.17.060(1990).UCEA. §2-118 (1988). South Carolina: S.C.Code Ann. §§ Arizona:Ariz.Rev.Stat.Ann.§§33- Massachusetts: Mass.Gen.Laws 27-9-10 to 27-9-30(Law. Co-op.1991). 271 to 33-276(1977).UCEA. Ann.ch. 132A, §§ 11A to 11D;ch. 184, §§31 to 33 (West 1990). South Dakota: S.D. Codified Laws Arkansas:Ark.Stat.Ann. §§ 15-20- Ann. § § 1-19B-56 to 1-19B-60(1985). 401 to 15-20-410(1987).UCEA. Michigan: Mich.Comp.Laws.Ann. UCEA. §§399.251 to 399.257(West 1988). California:Cal. Civil Code§§815 to Tennessee: Tenn. Code Ann.§§66- 816(West 1990). Minnesota: Minn.Stat.Ann.§§ 9-301 to 66-9-309(1982). 84C.01 to 84C.05(West 1990). Colorado:Colo.Rev.Stat. §§38-30.5- UCEA. Texas: Tex. Nat. Res. Code Ann.§§ 101 to 38-30.5-111 (1990). 183.001 to 183.005(1978).UCEA. Mississippi: Miss. Code Ann. §§89- Connecticut:Conn. Gen.Stat Ann. 19-1 to 89-19-15 (1972).UCEA. Utah:Utah Code Ann. §§57-18-1 to §§47-42a to 47-42c(West 1989). 57-18-7(1990). - Missouri: Mo.Ann.Stat.§§ 67.870 Delaware:Del. Code Ann.tit.7, §§ to 67.910(Vernon 1989). Vermont: Vt.Stat.Ann. tit. 10, §s 6901 to 690511990). 6301 to 6308 (1984). Montana: Mont.Code Ann. §§ 76-6- District of Columbia:D.C. Code 101 to 76-6-211 (1989). (for open land Virginia: Va.Code.Ann. §§ 10.1- Ann. §§45-2601 to 45-2605(1981). conservation only). 1009 to 10.1-1016(1978).UCEA. UCLA. Nebraska: Neb. Rev.Stat. §§ 76- Washington: Wash.Rev. Code Ann. Florida:Fla. Stat.Ann. §704.06 2, 111 to 76-2,118 (1990). §§84.34.200 to 84.34.250 (1991). (West 1989). Nevada: Nev.Rev.Stat.§§ 111.390 Wisconsin: Wis.Stat.Ann. § 700.40 Georgia:Ga.Code Ann. §§44-10-1 to to 111.446(1989).UCEA. (West 1980).UCEA. 44-10-5 11982). New Hampshire:N.H.Rev.Stat. U. States without Generic Easement Hawaii:Haw.Rev.Stat.§§6E-15 and Ann. §§79-A:1;79-A:15 to 79- Legislation that Authorize Convey- 198-1 to 198-6(1985). A:21;477:45 to 477:47(1983). ances of Preservation and Conserva- tion Easements in Gross to, or Idaho:Idaho Code§§ 55-2101 to 55- New Jersey: N.J.Stat.Ann.§§ 13:8B- Acquisitions by, One or More State 210911989).UCEA. 1 to 13:8B-9(West 1979). Agencies as Part of Agencies'Autho- rizing Legislation: Illinois:Ill.Ann.Stat.ch.5,para. New Mexico: N.M.Stat.Ann. §§47- 2401-1 to 2402-5;ch.24,para. 11- 12-1 to 47-12-6(1978).(for open land Alabama West Virginia 48.2-1 to 1148.2-7(Smith-Hurd conservation only). Oklahoma Wyoming 1979). Pinto Rico New York: N.Y.Envtl.Conserv.Law Indiana:Ind.Code Ann. §§32-5-2.6-1 § §49-0301 to 49-0311 (McKinney III.No Easement Legislation or to 32-5-2.6-7(West 1989).UCEA. 1991). Express Authorization: Iowa:Iowa Code Ann.§§ 111D.1 to North Carolina: N.C.Gen.Stat.§§ U.S.Virgin Islands 111D.8 (West 1984). (For land 121-34 to 121-42(1990). conservation only). D2 - Appendix B — The National Conference of The Trust for Public Land (TPL) Commissioners on Uniform State works closely with urban and National Easement Laws is an organization of state- rural groups and public agencies appointed commissioners who to acquire and preserve open Information Sources provide their expertise for the space, share knowledge of non- drafting and adoption of uniform profit land acquisition processes The Archaeological Conservancy and model state laws. For more and to establish new methods of was formed to identify,acquire, information contact:The Na- land conservation and environ- and preserve significant archaeo- tional Conference of Commis- mentally sound land use. For logical sites in the United States sioners on Uniform State laws, more information contact:The for future research and to preserve Uniform State Law on Easements, Trust for Public Land, 116 New the cultural heritage. The organi- 676 North St. Clair Street, Suite Montgomery Street,4th floor, San zation provides educational 1700, Chicago,Ill.60611 (312) Francisco, Calif.94105 (415)495- services to the general public on 915-0195. 4014. preservation methods. For more information contact:The Ar- The National Trust for Historic The National Park Service publi- chaeological Conservancy,415 Preservation accepts a limited cation,Federal Historic Preserva- Orchard Drive, Santa Fe,N.M. number of easements on nation- tion Laws brings together the 87501 (505)982-3278. ally significant property according major federal historic preservation to criteria established by the laws that govern national pro- The Land Trust Alliance was National Trust's Board of Trust- grams to coordinate and support founded by local, regional,and ees. For information about the public and private efforts to state land trusts to provide National Trust's easement identify,evaluate,and protect services to help land trusts program,write:Administrator, historic and archeological re- protect land through its array of Easement Program, National sources. Of particular note is programs, information dissemina- Trust for Historic Preservation, Section 170(h)of the Internal non,public policy and land trust 1785 Massachusetts Avenue, Revenue Code of 1986 which awareness. Its programs include a N.W., Washington,D.C.20036. describes the qualifications of a quarterly journal, national confer- (202)673-4035. conservation easement. For more ences, books and materials among information contact: U.S. Depart- others. For more information The Nature Conservancy,an ment of the Interior, National contact the Land Trust Alliance, international environmental Park Service, Preservation Assis- 900 17th Street, N.W., Suite 410, organization,works to protect the tance Division,P.O.Box 37127, Washington, D.C.20006 (202) habitat of rare plants and animals. Washington,D.C.20013. (202) 785-1410. The conservancy operates state, 783-3238. regional,and field offices and maintains over 1,100 nature preserves.The conservancy provides information on preserva- tion strategies and techniques, including the use of easements for conservation. For more infor- mation contact: The Nature Conservancy, 1815 North Lynn Street,Arlington,Va. 22209 (703) 841-5300. 02 - Appendix C— Maine Coast Heritage Trust New York Landmarks 167 Park Row Conservancy Selected Easement Brunswick, ME 04011 141 Fifth Avenue,3rd floor (207)729-7366 New York, NY 10010 • I-Iolders (212)995-5260 Historic Annapolis Foundation Peninsula Open Space Trust 194 Prince George Street Brandywine Conservancy 3000 Sand Hill Road,Bldg. 4#135 Annapolis, MD 21401 P.O.Box 141 Menlo Park, CA 94025 (301)267-7619 Chadds Ford, PA 19317 (415)854-7696 (215)388-7601 Maryland Historical Trust The Foundation for San 100 Community Place,3rd floor Historic Charleston Foundation Francisco's Architectural Heritage Crownsville, MD 21032 51 Meeting Street 2007 Franklin Street (301)514-7600 Charleston,SC 29401 San Francisco, CA 94109 (803)723-1623 (415)441-3000 Trustees of Reservations 572 Essex Street Virginia Department of Conserva- Historic Denver Beverly,MA 01915 tion and Historic Resources 1330 17th Street (508)921-1944 Division of Historic Landmarks Denver, CO 80202 221 Governor Street (303)534-1858 Society for the Preservation of Richmond,VA 23219 New England Antiquities (804)786-3143 The L'Enfant Trust 141 Cambridge Street 2013 0 Street N.W. Boston,MA 02114 Waterford Foundation Washington, DC 20036 (617)227-3956 P.O.BOX 142 (202) 785-9184 Waterford,VA 22190 Montana Land Reliance (703)882-3018 National Trust for Historic 107 West Lawrence Preservation P.O. Box 355 1785 Massachusetts Ave, N.W. Helena,MT 59624 Washington, DC 20036 (406)443-7027 (202)673-4035 . Historic Savannah Foundation 212 W.Broughton Street Savannah, GA 31401 I rri... -"V ' - •••'''". ---- . - _ . -- - (912)233-7787 it ' ' ' - - i - -!: -,... ! . ''.- -4 .. - Landmarks Preservation Council fr. I • "*•71-0 1 I II. -I.. I ill . 4 .i• of Illinois .* i Iti":-._ 11 •i ' lir .1 ir 'ii : 't 1 1 53 West Jackson Boulevard, 4 j . a • pli • t) 1E' ii: Suite 752 - • 1 it • I: Chicago,IL 60604 i -1 : (312)922-1742 1: i 1 . • 2 - Ilk . __. ,--- ii • - • Historic Faubourg St.Mary 4 • ------11 f - .,.- i Corporation ., , • i 4 ..... L.,;, ki 611 Gravier Street, Suite 712 New Orleans,LA 70130 - . _.------.1:- ,. . (504)524-1796 - _ - - i•f•-• .i'.. •,..:aiti , -4"7- •• :. •-- • , -- — Preservation Resource Center 604 Julia Street Easements can also protect interior spaces. An easement held by the National New Orleans,LA 70130 Trust protects the exterior as well as the first floor public rooms of this (504)581-7032 Washington,D.C.property. 11111 IIVIJIJJ- - ...1 3-37- -- ,-,- .1 National Trust for Historic Preservation Inif SUMMARY OF MAR-A-LAGO PRESERVATION EASEMENT PROVISIONS The purpose of the easement is to ensure that the Critical Features of the property will be retained forever predominantly in their historic, scenic, and open space condition for conservation and preservation purposes . The property owner is obligated to maintain the property in its current form and condition and to maintain the property in accordance with Secretary of the Interior' s historic property rehabilitation guidelines. The National Trust has the following rights under the easement : to prevent the owner or any third persons from using the property in a way that is inconsistent with the purpose of the easement or the preservation of the Critical Features of the property; to enter the property to monitor its use and condition; and to use legal means to enforce the easement if it is breached or violated. The property owner is prohibited from demolishing or razing the Critical Features, constructing new buildings and structures within defined critical areas, dumping trash or rubbish, and obstructing the public ' s view of the property from the adjacent public streets. The property' s owner retains the following rights: to engage in all lawful uses of the property; to repair and maintain the property in accordance with the Secretary' s standards in such a manner that retains the property in good condition without changing its appearance; to erect temporary structures for permitted activities. The prior approval of the National Trust is necessary for any proposed alterations to the Critical Features, which include the entrance gate, main entrance drive, open vistas from the Mansion to the ocean and lake, perimeter wall, patio, parrot pool, the exterior surfaces (including exterior fenestration) of the property manager' s complex, the Mansion and cloisters (including exterior fenestration) , and the interior of the Mansion. In the event of damage to the property caused by fire or other 1785 Massachust.:ts Avenue, N.W. Washington, D.C. 20036 (202) 673-4000 i FAX (202) 673-4038 Page 2 disaster, the property owner and the National Trust may agree on plans for repair or replacement, and the owner will cover the costs up to the amount recoverable by insurance, which he is required to carry. Alternatively, the property owner and the National Trust may agree to extinguish the easement by judicial proceeding. In connection with any proposed work or action requiring the approval of the National Trust under the easement, the property owner is required to submit proposed plans to the National Trust. The National Trust will, within 30 days, review the proposal and either approve, deny or deny with suggestions for modification. If the Landmarks Preservation Commission or its successor agency must approve the same proposal, it will be submitted to the Commission after the National Trust has had the opportunity to review and approve the proposal . During such time as Mr. Trump has an ownership interest in the property, the National Trust may assign the easement to certain qualified preservation organizations only with approval from Mr. Trump, and only if the new organization agrees to carry out the purposes of the easement. After Mr. Trump' s death or whenever he no longer has an ownership interest in the property, the National Trust may assign the easement to a qualified preservation organization without prior approval. Similarly, Mr. Trump reserves the right, subject to the Trust' s approval, to request assignment of the easement to another qualified easement holding organization. The easement agreement may be amended by written agreement of both the National Trust and_tha_property owner, provided the amendment does not adversely affect National Trust ' s status under applicable Florida or federal laws, the amendment is consistent with the purpose of _the -easement, and the duration of the easement is not affected. Neither party is required to agree. t;'D an amendment of the easement. If Mr. Trump or any subsequent property owner transfers an interest in the property, the terms of the easement must be incorporated by reference in the deed or other instrument under which the property interest is transferred. The property remains subject to the easement irrespective of future ownership. • 3-38 HISTORICAL RESOURCES GRANTS DIVISION OF HISTORICAL RESOURCES ...--4:-.1Y-1........ 1• f::::0.-'.s-44,F.:,_41-.1 .121450„,„,1 . '.:/;i;' --:f -•`;'' ii.te'i.:::: ,.." ••PS;j5icri...... ... FLORIDA DEPARTMENT OF STATE Sandra B. Mortham, Secretary of State • HISTORICAL RESOURCES GRANTS DTVISION OF HISTORICAL RESOURCES HISTORIC PRESERVATION SMALL MATCHING GRANTS PAGES 1 &2 HISTORICAL MUSEUMS SMALL MATCHING GRANTS PAGES 3 &4 HISTORIC PRESERVATION & HISTORICAL MUSEUMS SPECIAL CATEGORY GRANTS PAGES 5 & 6 ( HISTORIC PRESERVATION GRANTS-IN-AID SMALL MATCHING GRANTS AUTHORITY: Section 267.0612 and 267.0617, Florida Statutes. Chapter 1A-35, Florida Administrative Code. PURPOSE: To assist and encourage the identification, excavation, protection, rehabilitation and public knowledge of historic and archaeological properties in Florida and to encourage historic preservation in Florida's smaller cities through the Main Street Program. ELIGIBILITY: Departments or agencies of the State (including state universities), units of county, municipal, or other local governments; not-for-profit corporations, institutions, organizations, and other non-profit entities. There are two grant cycles annually: One begins on July 1 and ends August 31 and the other begins October 1 and ends December 15. Applications must be received or post- marked by the deadline. CRITERIA: All applications are evaluated using criteria relating to the site, grantee, and public benefit. These include historic significance, endangerment, appropriateness of work, local cost share, educational potential, economic impact, public use or other public good. The maximum matching grant award is $40,000; however, most grant awards range from $5,000 to $25,000. REVIEW PROCESS: All grant applications are evaluated on a competitive basis by the Historic Preservation Advisory Council in public meetings held in the Spring and Fall, and ranked in priority order with a recommended level of funding for each project. Grants are awarded by the Secretary of State, based on the recommendations of the Historic Preservation Advisory Council. The twelve members%of the Historic Preservation Advisory Council are appointed by the Secretary of State. AVAILABILITY OF FUNDS: Funds are available in mid-January for the first cycle and after July 1 for the second. FUNDING SOURCES: Dedicated funding through the licensing of Fictitious Names for businesses (approximately $2 million per year). Annual apportionment of funds from the U.S. Department of the Interior (approximately $200,000 per year). LOCAL MATCH: 50% of project costs which may include cash, allowable in- kind and donated services and allowable donated materials. CONTACT: For additional information and grant applications contact: Grants and Education Section Bureau of Historic Preservation (904) 487-2333 or Toll Free at 1-800-847-PAST. 2 HISTORICAL MUSEUMS GRANTS-IN-AID SMALL MATCHING GRANTS AUTHORITY: Section 267.072, Florida Statutes. Section 1A-43, Florida Administrative Code. PURPOSE: To provide funding for the development of educational exhibits relating to the history of Florida and to assist Florida history museums with basic operational costs. ELIGIBILITY: Public educational exhibit grants are available to a department or agency of the State; a unit of county, municipal, or other local government; or a public or private profit or private non-profit corporation, partnership, or other organization. General operating support grants are available only to a non-profit Florida history museum that is not an agency of the State and has been operating for at least two years. There are two grant cycles annually: One begins on April 1 and ends June 30 and the other begins September 15 and ends on December 15. Applications must be received or post-marked by the deadline. CRITERIA: All applications are evaluated on the basis of the educational benefits of exhibits, administrative capability of the applicant, public impact of the museum or organization, and appropriateness of the proposed project. Maximum award for operating grants is 20% of the operating expense budget up to a maximum of $75,000. Maximum award for exhibits is $35,000. REVIEW PROCESS: Applications are evaluated on a competitive basis by an ad hoc committee, appointed by the Secretary of State, knowledgeable about the development and operation of historical museums and historic:al exhibits. The committee reviews all applications in a :puplic meeting held in the Spring, and ranks them in priority order with a recommended level of funding for each project. Grants are awarded by the Secretary of State, based on the recommendations of the ad hoc committee. AVAILABILITY OF FUNDS: Funds are available in mid-January for the first cycle and after July 1 for the second. 3 FUNDING SOURCE: $1.5 million transferred annually from the Division of Corporations Trust Fund to the Museum of Florida History Trust Fund. LOCAL MATCH: 50% of project costs which may include cash, allowable in- kind and donated services and allowable donated materials. CONTACT: For additional information and grant applications contact: Education Section Bureau of Historical Museums (904) 487-1902 4 HISTORIC PRESERVATION AND HISTORICAL MUSEUMS GRANTS-IN-AID SPECIAL CATEGORY GRANTS AUTHORITY: Section 267.0612 and 267.0617, Florida Statutes. Chapter 1A-35, Florida Administrative Code. PURPOSE: To assist major restoration of historic structures, major archaeological excavations, and major museum exhibit projects involving the development and presentation of exhibitions and educational materials on the history of the human occupation of Florida. ELIGIBILITY: Departments or agencies of the State (including state universities), units of county, municipal, or other local governments; not-for-profit corporations, institutions, organizations, and other non-profit entities. Application period begins on April 1 of each year and ends on May 31. Applications must be received or post-marked by May 31. CRITERIA: All applications are evaluated using criteria relating to the site, grantee, and public benefit. These include historic significance, endangerment, appropriateness of work, local cost share, educational potential, economic impact, public use or other public good. No maximum amount for grant award; however, the majority of the Special Category grant awards are in the $50,000 to $250,000 range. REVIEW PROCESS: All grant applications are evaluated on a competitive basis by the Historic Preservation Advisory Council in a public meeting held in the Fall, and ranked in priority order with a recommended level of funding for each recommended project. Council recommendations are submitted to the Secretary of State for approval. The approved list is submitted for legislative consideration as part of the Department of State's annual budget request. The twelve members of the Historic Preservation Advisory Council are appointed by the Secretary of State. AVAILABILITY OF FUNDS: Funds are available after July 1 of the year in which the funds are appropriated by the Legislature (13 Months after application deadline). 5 FUNDING SOURCE: State General Revenue Fund. LOCAL MATCH: Evidence of substantial local cost share at a minimum of $50,000 to be eligible for consideration. Project costs incurred during the five years preceding the application are allowable. A 50% or better local cost share is preferred. CONTACT: For additional information and grant applications contact: Grants and Education Section Bureau of Historic Preservation (904) 487-2333 or Education Section Bureau of Historical Museums (904) 487-1902 • 6 HISTORIC PRESERVATION GRANTS-IN-AID APPLICATION CYCLES CYCLE SOLICITATION DEADLINE FOR HPAC PERIOD APPLICATION MEETING** SUBMITTAL* SPECIAL CATEGORY APRIL 1st GRANTS TO MAY 31st IN SEPTEMBER MAY 31st FEDERAL/STATE JULY 1st MATCHING GRANTS TO AUGUST 31st IN NOVEMBER AUGUST 31st STATE MATCHING OCTOBER 1st GRANTS TO DECEMBER 15th IN FEBRUARY DECEMBER 15th * In the event the closing date of the solicitation period falls on a weekend or State holiday, the submittal deadline will be on the next business day. ** Grant applications are reviewed by the Florida Historic Preservation Advisory Council (HPAC). Grants are awarded by the Secretary of State, based on the recommendations of the HPAC. RULES OF THE DEPARTMENT OF STATE DIVISION OF HISTORICAL RESOURCES CHAPTER 1A-35, FLORIDA ADMINISTRATIVE CODE HISTORIC PRESERVATION GRANTS-IN-AID 1A-35.008 Application Review (4) The Council shall evaluate each application on the basis of criteria relating to the site involved, the prospective-grantee, and the anticipated public benefits, as follow: (a) Criteria related to the site: - 1. Historic significance, meaning the relative importance of the site in connection with prehistory or historical events,developments or personalities. 2. Endangerment, meaning existing or potential threats of loss of damage through demolition,deterioration or encroaching development. 3. Appropriateness of the historic preservation treatment proposed in relation to the preservation of the historic appearance and character of the site and the protection to be provided against existing or potential threats. (b) Criteria related to the grantee: 1. Administrative capability,including personnel,facilities and organization adequate to complete the project and meet the administrative requirements of the grant. 2. Financial resources adequate to carry project costs as necessary pending receipt of reimbursements from grant funds. 3. Availability of professional and technical services required to carry out the project work. (c) Criteria related to public benefit: 1. Compatibility with statewide historic preservation priorities, including equitable geographic and demographic distribution of available grant funds. 2. Educational potential or demonstration value for enhancing the public awareness of Florida history,Florida historic sites and properties,the objectives of historic preservation,and the application of historic preservation methods,materials and standards. 3. Anticipated economic benefits, including direct impact on the local economy and the stimulation of additional private sector interest and investment in historic preservation projects. 4. Public use or other public good resulting from the project. 3-47 LOCAL INCENTIVES FOR HISTORIC PRESERVATION Prepared by Constance E. Beaumont May 24, 1991 Many local governments provide incentives to encourage private property owners to preserve or rehabilitate historic buildings. Such incentives can be an important complement to regulatory controls embodied in local preservation ordinances. Among the different types of historic preservation incentives used by cities and towns around the country are: • tax incentives • financial assistance (e.g., rehabilitation grants or loans) • regulatory relief (from building code or parking requirements) • zoning incentives (e.g., transfer of development rights, density bonuses) • technical assistance (e.g., design assistance) In addition to providing preservation incentives, many communities are creating disincentives for property owners to demolish historic landmarks and replace them with surface parking lots. This memorandum cites examples of such disincentives as well as incentives. It should be noted at the outset that some preservation incentives discussed herein may not be permitted under state law. Local governments considering incentive programs are advised to review their state historic preservation or zoning enabling laws to determine whether they have the legal authority to put certain incentives in place. If they lack such authority but wish to obtain it, they might consider working with statewide preservation organizations to amend their state enabling legislation. (See "Successful State Advocacy," National Trust Information Sheet No. 57) Additional references on preservation incentives are cited at the end of this memorandum. 1 A. TAX INCENTIVES FOR HISTORIC PRESERVATION 1. San Antonio. Texas One of the more mature tax incentive programs for preservation is found in San Antonio, where in 1980 the city council authorized property tax relief for owners of historic properties. Under this program, taxpayers who substantially rehabilitate historic residential structures may have their property tax assessments frozen for 10 years at pre- rehabilitation assessment levels. After that period, tax assessments must again reflect a property's full market value. Both rental housing and owner-occupied residences may qualify for this benefit. Rehabilitated commercial structures may be exempted completely from city property taxes for five years. During the following five years, taxes are assessed on only half of the renovated building's value. San Antonio preservation advocates are currently working with the Bexar County Appraisal District to persuade county tax assessors to tax historic landmarks according to their actual use, rather than their "highest and best" use. For more information: San Antonio Historic Preservation Office, Box 839966, San Antonio, Texas 78283-3966. Tel: 512/299-8308. 2. Boulder. Colorado Boulder law authorizes a waiver of city sales taxes on construction materials used to rehabilitate historic landmarks if at least 30% of the cost of materials is for a building's exterior. This program has been used extensively and reportedly makes property owners happier about complying with design review requirements applied to historic buildings. For more information: Department of Community Planning and Development, Rm. 305, Park Central Bldg., 1739 Broadway, Boulder, Colorado 80306. Tel: 303/441-3270. 3. Other Examples of Communities with Tax Incentives o Jackson. Mississippi authorizes property tax exemptions for up to 7 years for designated landmarks or buildings in historic districts. Both commercial and residential structures 2 qualify. o Atlanta. Georgia provides a freeze on property taxes for income-producing historic landmarks. o Buffalo. New York allows 50% of the value of a rehabilitated landmark property to be excluded from tax assessments for up to 20 years. o Seattle. Washington permits tax assessments on rehabilitated historic properties to exclude the increased values attributable to rehabilitation for up to 10 years. .11 GRANTS AND LOANS 1. Roanoke. Virginia In 1989 Roanoke created a "Historic Buildings Rehabilitation Loan Program." The program is the result of a partnership involving Downtown Roanoke, Inc., the Roanoke Valley Preservation Foundation, the City of Roanoke and local commercial lenders. Under this program, the banks provide rehabilitation loans of up to $100,000 per project. The interest rate is set at 2% below prime; the loan term, at seven years. The program is limited to buildings in Roanoke's central business district. In addition, the city of Roanoke offers matching facade improvement grants of up to $5,000 and provides free architectural design assistance to property owners in local historic districts. To qualify for these grants, a person must rehabilitate a deteriorated building and increase job opportunities for low to moderate-income persons. All renovations must comply with special rehabilitation standards. This program is funded through community development block grant funds available from the U.S. Department of Housing and Urban Development. For more information: City of Roanoke Community Planning Office, Room 355, Municipal Bldg., 215 Church Ave., S.W., Roanoke, Virginia 24011. Tel: 703-981-2344. 3 EXEMPTIONS FROM PARKING REQUIREMENTS Many communities recognize that it is difficult for historic areas to meet parking requirements that were intended for new construction. Inasmuch as the enforcement of such requirements can easily destroy the pedestrian-oriented character of historic districts, many zoning ordinances allow for flexibility in this area. Cited below are some examples. 1. Eugene. Oregon Eugene's preservation ordinance states: The (historic review) board or council may modify... general provisions regarding (the)...number of off-street parking spaces required-in the final order designating landmark status tf the modifications: 1) are necessary to preserve the historic character, appearance or integrity of the proposed historic landmark, and 2) are in accordance with the purposes of zoning and sign regulations. 2. Durham. North Carolina Durham's preservation ordinance authorizes parking variances to protect the special character of its historic districts: When the Historic District Commission finds that the number of off-street parking spaces required by the zoning regulations for a building or structure for which a Certificate of Appropriateness is requested is inconsistent with the historic character and qualities of the District, the Historic District Commission shall recommend to the Board of Adjustment that the Board-grant a variance, in part or in whole, of the number of off-street parking spaces required. The Board...may authorize a lesser number of off-street parking spaces, provided: (1) the Board finds that the lesser number of off-street parking spaces will not create problems due to increased on-street parking, and (2) will not constitute a threat to the public safety. 3. Austin. Texas Austin authorizes its landmark conunission to: • 4 review the parking regulations in existence in the (historic) district and recommend any changes in numbers, or location of on-street and off-street parking requirements it feels necessary to enhance the district. (The commission) shall review the adequacy of parking facilities in or affecting the district and may offer recommendations for such public and/or private parking lots, garages or structures it deems to be in the best overall interest of the district. 4. Richmond. Virginia Section 16-11 of Richmond's ordinance states: The...off-street parking and loading regulations—shall not app4, to buildings or premises in an old and historic district when it is demonstrated to the satisfaction of the commission by competent evidence that it is necessary to depart from such regulations and provisions in order to accomplish, encourage and promote the purposes and objectives set out in (the ordinance's statement of purpose). 5. Seattle. Washington Seattle's land use code helps to maintain the walkability of the downtown area through reduced parking requirements. No parking is required for new uses located in existing structures, even when they are remodeled. No parking, either long- or short-term, is required: for the first 30,000 square feet of retail space on lots in areas with high transit access; for the first 7,500 square feet of retail and service space on lots in other areas; and for the first 2,500 square feet of non-retail commercial space. Seattle also has a special ordinance governing development in the historic Pioneer Square Preservation District. Among the stated purposes of that ordinance are: o to avoid a proliferation of vehicular parking and vehicular-oriented uses; o to provide regulations for existing on-street and off-street parking; and o to encourage the use of transportation modes other than the private automobile. The Pioneer Square ordinance prohibits free-standing gas stations and such other auto- related land uses as automotive retail sales and services, drive-in businesses and surface parking lots. The ordinance explicitly discourages parking garages and subjects them to special design review. Curb cuts and street-level entrances to parking facilities, when they are allowed, are subject to special review. 5 For more information: Dept. of Community Development, 700 3rd Avenue, Seattle, Washington 98104. Tel: 206/684-0228. 6. Denver. Colorado The zoning ordinance for Denver's Lower Downtown Historic District includes the following restriction to guard against the construction of parking garages that could destroy with the special character of this area: Parking is prohibited within a space which extends from street level upwanis a distance of 12 feet in any structure located within 35 feet of the zone lot front line which is part of the long dimension of any block Denver also exempts buildings in the Lower Downtown Historic District that were constructed or altered before 1974 from the normal parking requirements. For more information: Denver Planning Office, 1445 Cleveland Place, Denver, Colorado 80202. Tel: 303/640-3609. D. EXEMPTIONS FROM BUILDING CODE REQUIREMENTS As is the case with parking requirements, today's building codes were written with new construction in mind and are often inappropriate for historic structures. For this reason, many communities allow waivers of certain building code provisions for historic structures provided that the public safety is not endangered. Usually this is done through tradeoffs: the existence of certain characteristics in a historic structure may compensate for the absence of features required by the building code. Examples of communities that provide such flexibility are cited below. 1. Duluth, Minnesota Duluth's ordinance encourages building code enforcement authorities: to be open to acceptable alternative solutions and alternative compliance concepts, where practical, that will permit the continued use of existing buildings and structures without creating overly restrictive financial burdens on owners or occupants. (But) nothing in this ordinance shall be construed to prevent the ordinary maintenance or repair of any exterior elements of any building or structure required by city ordinance. 6 2. Taos. New Mexico The model code followed by Taos is the Uniform Building Code. However, the Taos preservation ordinance explicitly authorizes building code officials to consider alternative ways for historic buildings to comply with code requirements: Rehabilitation or restoration of an officially designated historic strcuture can be made without conformance to all of the requirements of the codes upon the review and authorization by the building official who has legal authority. • 3. Sarasota. Florida The building code relief provided for historic structures in Sarasota is as follows: Historically designated structures and structures which are located in a designated historical district—shall qualify for the exemption accorded to special historic buildings under...(the) Sarasota Building Code (Standard Building Code, 1985 edition)...provided that the building meets all other requirements of that section to the satisfaction of the Building and Zoning Administrator.. 4. Boise. Idaho Boise allows flexibility in the fire code as well as the building code: The Council, in order to promote the preservation and restoration of any historic properties, landmarks or property within an historical district may, upon the recommendation of the Commission, exempt an historic property, landmark, or property within an historical district from the application of City Fire or Building Codes upon compliance with the criteria for exemption set forth in said codes and upon a finding that non-exemption would prevent or seriously hinder the preservation or restoration of said historic property, landmark or property in an historical district. Upon recision of an historic designation, any code exemption herein granted shall be revoked effective the date of recision. 5. Austin. Texas Austin's preservation ordinance permits the local landmark commission to: review and recommend any amendments to the building regulations it feels necessary to preserve the architectural and historic integrity and authenticity of structures within each such district. 7 6. Richmond. Virginia Richmond authorizes flexibility in fire code requirements for historic buildings: when the chief of the bureau of fire certifies to the (landmark) commission that in his opinion such building or structure and the character of construction thereof will not materially increase the danger from fire... (Portsmouth, Va., has a similar ordinance.) 7. Seattle. Washington The Seattle Building Code, which is based on the Uniform Building Code, allows the director of the Department of Construction and Land Use to modify building code requirements for landmark buildings. The director has the discretion to request alternate requirements so long as they do not compromise the public health and safety. E. ZONING INCENTIVES 1. Transfer of Development Rights The transfer of development rights (TDR) is a publicly created mechanism through which owners of historic properties may sell unused development rights (air rights) to a property owner who uses these rights on another site. With TDRs in hand, a developer may build a larger building on the "receiving site" than the zoning would normally allow. Historic property owners who sell TDRs may use the proceeds from their sales to pay for necessary repairs to their property. In order for TDR programs to succeed, there must be a market for the development rights that owners of historic properties want to sell. Communities in which the overall real estate market is sluggish may not find TDRs very useful. Cities with robust real estate markets have established TDR programs but often destroy the TDR market by zoning "receiving sites" too liberally. That is, they make building density and height limits so generous that there is little incentive for developers to purchase TDRs. If the zoning already permits developers to build exceedingly large buildings as a matter of right, why should they pay extra for TDRs? Anther prerequisite for a successful TDR program seem to be a city planning staff with expertise in real estate matters, as TDR transactions can be complicated. Although TDR programs exist in a number of cities, as can be seen from the experiences 8 of the following communities, TDRs have not been used very often: o Seattle. Seattle's TDR program, created in 1985, permits TDR transactions for two purposes: to produce or preserve low-income housing and to save historic landmarks. Although the program has been used for housing, it has never been used to preserve landmarks. Efforts are currently being made to correct the problems with Seattle's TDR program for preservation. o San Francisco. San Francisco included a TDR program in the Downtown Plan the city enacted in 1985. Approximately 10 to 15 TDR transactions involving historic buildings have been carried out since then. o Atlanta and Dallas. Both Atlanta and Dallas authorize TDRs for historic preservation. However, because their zoning codes permit such extraordinarily high floor area ratios (25 to 1 in Atlanta, 20 to 1 in Dallas), developers have had little incentive to purchase TDRs. o Pittsburgh. Pittsburgh's program, established in 1987, allows TDRs in three circumstances: 1) if new housing is constructed on the receiving site; (2) if the sending site is a designated historic strcutures; and (3) if a nonprofit performing arts facility is a sending site. The city has used this program only once, to transfer development rights from the Benedum Center, a historic building and a performing arts center. The transfer of development rights was used to accommodate a twin office tower project across the street. o Philadelphia. A TDR program is under active consideration in Philadelphia at this time. o New York. A TDR program run by the city dates to 1961 but has been used for only about 24 TDR transactions in the last 20 years. 2. Zoning Variances During the 1960s, many communities revised their zoning ordinances to require suburban-style yards, with large lot sizes and front- and side-yard setbacks. In older neighborhoods where houses were often built more closely together on smaller lots, this type of zoning has made it difficult to construct compatibly designed "in-fill" housing. As 9 a result, vacant lots have proliferated and neighborhood revitalization efforts have been stymied. Some communities have acted to overcome this problem. a. Lansing. Michigan. Lansing's historic district ordinance contains the following language: Due to particular conditions of design and construction in historic neighborhoods where structures are often built close to lot lines, and since it is in the public interest to retain a neighborhood's historic appearance by making variances to normal yard requirements where it is deemed that such variances will not adversely affect neighborhood properties, the Historic District Commission may recommend to the Board of Zoning Appeals that a variance to standard yard requirements be made b. Roanoke. Virginia The city of Roanoke reduced the minimum lot sizes in historic residential neighborhoods as part of a comprehensive revision to its local zoning code in 1987. At the same time, Roanoke moved to permit special uses of historic residences to make their preservation more economically feasible. For example, the city amended its zoning to permit large Victorian houses that are now too big for most families to be used as bed and breakfasts, art galleries and other uses that do not destroy residential neighborhoods. To encourage downtown housing, Roanoke's zoning permits multifamily apartment buildings, townhouses, and the conversion of upper floor space to residential uses in the downtown and adjacent areas. These residences accommodate people who enjoy walking to work and provide a market for downtown stores. For more information: Office of Community Planning, Rm. 355, Municipal Bldg., 215 Church Ave., S.W., Roanoke, VA 24011. 703/981-2344 c. Sarasota. Florida Sarasota authorizes variances and special exceptions to zoning rules to make it easier for owners of historic structures to find economically viable uses for their properties: Owners of historically designated structures...may petition the Planning Board for a special exception for any type of use which would serve to perpetuate the viable contemporary utilization of the his' toric structure, regardless of whether 10 such use is permitted by special exception in the zone district in which the historic structure is located... When a petition for a variance is filed with the Board of Adjustment for an historically designated structure...then the petition for such a variance need only demonstrate that the grant of the variance will not be detrimental to the public welfare. d. Miami. Florida Miami authorizes flexibility in zoning, parking and building code requirements when necessary to encourage the preservation of historic structures. Under a recently adopted historic preservation overlay zone ordinance, the city may approve conditional uses -- e.g., professional offices, tourist and guest homes, museums, private clubs and lodges -- in order to make the preservation of historic structures more economically feasible in certain cases. The ordinance has helped to save large historic houses located on the fringes of commercial districts. Miami also permits waivers of minimum lot size, floor area, open space, height, building spacing and footprint requirements to encourage historic preservation. A provision in the South Florida Building Code permits the waiver of certain building code provisions under certain circumstances. Finally, where the size or configuration of a historic district is such that compliance with offstreet parking requirements would destroy the area's historic character, the city may authorize a reduction of up to one-third of the number of parking spaces that would otherwise be required. For more information: Miami Planning Department, Historic Preservation Office, Miami, Florida. Tel: 305/579-6086. DISINCENTIVES FOR SURFACE PARKING LOTS AND GARAGES 1. Pasadena. California Pasadena's preservation ordinance contains this provision: No building or construction related permits shall be issued for a period of 5 years from the date of demolition for property on which demolition has been done in violation (of the ordinance's requirements) and no permits or use of the property as a parking area shall be allowed during the 5 years.. 11 All property subject to (the above provision) shall be maintained in an orderly state. The owner shall maintain all existing trees and landscaping on the properly, and, when appropriate shall sod and seed the property, or otherwise install planting and landscaping materials in a manner satisfactory to the City's zoning administrator Any new construction on the property after the time period within which building and other development permits may not be issued shall be subject to design review by the Design Commission with recommendations from the Cultural Heritage Commission to be received by the Design Commission prior to rendering decisions on the design of new development. The Pasadena ordinance also forbids the demolition of structures over 50 years old "unless there has been issued a building permit for a replacement structure or project for the property involved." A property owner may be exempted from this requirement if he can show that "demolition without replacement will not result in harm to the public." Harm is defined as "the loss of low-income housing stock which will not be replaced...nuisance uses of the vacant property...(or) significant adverse visual impact(s) on the neighborhood." 2. Lowell. Massachusetts Lowell seeks not only to discourage surface parking lots but also to ensure that new parking garages are built to fit in harmoniously with their surroundings: Where off-street parking provision is necessary, vehicles shall be accommodated in multi-story structures which are sensitively designed to fit into their architectural context. Removal of buildings to aeate ground-level parking space shall generally be prohibited. Ground level parking spaces proposed to be located on existing open land shall be adequately landscaped utilizing a combination of shade trees and shrubs for screening. 3. Salt Lake City Utah Salt Lake City prohibits demolitions of historic buildings unless their owners have plans for replacement structures: All applications for (demolition)permits must be accompanied by post-demolition or post-removal schematic construction plans 12 or landscaping plans for the site, which plans shall be submitted to the historical landmarks committee for recommendation... A. Prior to approval of any demolition permit, (the)planning (department) shall review the post-demolition or removal plans to determine if a faithful performance bond is required hereunder to ensure the installation and maintenance of sprinkled landscaping upon the regraded lot according to: L The landscaping plan approved by the committee; or 2. In absence thereof a minimum standard of automatically sprinkled sodded grass, within 6 months following the demolition... B. If a bond is required, it must be issued by a corporate surety authorized to do business in Utah, in a form approved by the city attorney, or a cash bond under an escrow agreement approved as to form and terms by the city attorney. The bond shall be in an amount determined by planning and shall be sufficient to cover the estimated costs, as determined by the city engineer to: 1. Restore the grade as required.. 2. Install a working automatic sprinkling.system. 3. Revegetate and landscape with sodded grass. 4. Continuing (sic) obligation to maintain the same in an orderly, clean condition until a structure is constructed upon the site 5. The bond shall require installation of landscaping and sprinklers within six months, unless the owner has obtained a valid building permit and commenced pouring foundations. It shall be the owner's responsibility at all times to maintain the landscaped lot in an orderly, clean and good condition to avoid becoming an eyesore, weedpatch or otherwise detrimental to the streetscape or public health. 13 D. The bond shall be required under the following circumstances: 1. upon applications involving property located within any historic distrct; and 2. upon applications involving properly located upon a landmark site. F. PACKAGES OF INCENTIVES Some cities provide a whole package of preservation incentives. Examples of such comprehensive approaches are cited below. 1. Portland. Maine The preservation ordinance of Portland, Maine, authorizes the city council to approve an "Incentive Plan" for property owners who could not preserve a historic property without facing undue economic hardship. The ordinance states: This Incentive Plan may include, but is not limited to, loans or grants from the City of Portland or other public or private sources, acquisition by purchase or eminent domain, building and safety code modifications to reduce cost of maintenance, restoration, rehabilitation or renovation, changes in applicable zoning regulations including a transfer of development rights, or relaxation of the provisions of this article sufficient to allow reasonable use of the structure. For more information: Dept. of Planning & Urban Development, Rm. 211, City Hall, 389 Congress St., Portland, Maine 04101. Tel: 207/874-8300. 2. Aspen. Colorado Aspen provides a $2,000 grant to residential property owners who "volunteer to landmark designate" their property. The city also provides zero-interest grants of up to $10,000 to help persons who demonstrate economic hardship pay for minimum maintenance of their property. In addition, historic property owners may be exempted from processing fees and park dedication fees that would normally be required for regular building permits. 14 Landmarks are exempt from the Aspen Growth Management Quota System as well as from an annual competition for a limited allocation for commercial square footage, lodge or residential units. There is a 3.4% cap on growth. Aspen also makes special conditional uses available only to landmarks and authorizes flexibility in the zoning rules with respect to building setback requirements for historic structures, floor area ratios, and Uniform Building Code requirements when appropriate. For more information: City of Aspen, Planning & Zoning Office, 130 S. Galena, Aspen, Colorado 81611. Tel: 303/920-5909. 3. Seattle, Washington Seattle's landmark preservation ordinance explicitly authorizes a variety of economic incentives to encourage the maintenance or rehabilitation of historic structures. The ordinance states: Examples of economic incentives include tax relief conditional use permits, rezoning, street vacation, planned unit development, transfer of development rights, facade easements, named gifts, preferential leasing policies, private or public grants-in-aid, beneficial placement of public improvements, or amenities, or the like. For more information: Office of Urban Conservation, Dept. of Community Development, 700 Third Ave., Seattle, Wash. 98104. Tel: 206/684-0381 G. TECHNICAL ASSISTANCE Many communities have found that plain old friendly persuasion can be an effective way of getting property owners to maintain their historic buildings and to rehabilitate them in a way that respects the distinctive character of the neighborhood. The National Alliance of Preservation Commissions encourages local preservation commissions to provide helpful guidance to property owners on design matters. Such advice can be provided by qualified planning department staff members, through special neighborhood workshops, or even on a "circuit rider" basis. For more information on communities using this approach, contact the National Alliance of Preservation Commissions, 444 N. Capitol St., Washington, D. C. 20001. 15 ADDITIONAL REFERENCES America's Downtowns: Growth. Politics and Preservation, by Richard C. Collins, A. Bruce Dotson and Elizabeth B. Waters. Preservation Press. 1991. This 159-page book describes the efforts of 10 cities to establish local historic preservation programs. The cities are Atlanta, Boston, Cincinnati, Denver, Jersey City, Philadelphia, Roanoke, St. Paul, San Francisco and Seattle. Preservation incentives were included in programs adopted by several of these cities and are discussed in the book. Available for $14.95 (plus sales tax and $4 for shipping) from the Preservation Press, National Trust for Historic Preservation, 1785 Massachusetts Ave., N.W., Washington, D. C. 20036. Fiscal Incentives for Historic Preservation, by Susan Robinson and John E. Petersen. January 1989. This 69-page report discusses preservation incentives from the perspective of local governments. It addresses such issues as: eligibility criteria, timing and duration of incentives, impacts on tax bases, administrative concerns and assessment practices. Available for $10 from the Center for Preservation Policy Studies, National Trust for Historic Preservation. • "State Tax Incentives for Historic Preservation," by Constance E. Beaumont. March/April 1991 Historic Preservation Forum, the journal of the National Trust for Historic Preservation. This six-page article describes approaches taken by six states to encourage historic preservation. The tax relief programs discussed are those of Texas, Georgia, Rhode Island, Wisconsin, Washington and Oregon. 17 Transferable Development Rights Programs, by Richard J. Roddewig and Cheryl A. Inghram. American Planning Association. 1987. This 38-page Planning Advisory Service Report (Number 401) defines TDRs and discusses their application in 8 communities: Montgomery County, Md.; Collier County, Florida; New Jersey Pinelands; Santa Monica Moutains, Calif.; New York City; Denver; Seattle; and San Francisco. The report also discusses the legal basis for a TDR program and the design of an effective TDR system. Finally, it includes sample ordinances and a bibliography. Available for $16 from the APA ($8 to PAS subscribers), 1313 E. 60th St., Chicago, Illinois 60637. (312) 955-9100. Using A Revolving Loan Fund for Downtown Preservation, a Critical Issues Fund issue paper by J. Myrick Howard. 1988. This 22-page report discusses: revolving fund techniques, selecting properties, the problem of profit (or lack thereof), establishing property values and potential uses, recouping expenses, working with brokers and fundraising for the revolving fund. Available for $5 from the Center for Preservation Policy Studies of the National Trust for Historic Preservation. Preserving Small Buildings in Downtown Washington. D. C„ a Critical Issues Fund report by Tom Moriarity of Halcyon, Ltd. 1988. This 77-page report summarizes techniques available to preserve small historic buildings in a downtown area. The report includes brief explanations of such preservation tools as zoning (overlay, performance, bonus), tax abatements, differential assessments, investment tax credits, tax increment financing and special taxing districts. Available for $10 from the Center for Preservation Policy Studies of the National Trust. "Economic Incentives for Historic Preservation," a Critical Issues Fund paper by Richard J. Roddewig. 1988. This 16-page paper discusses historic buildings as an economic resource and comments on the advantages of different approaches to preservation incentives. Available for $5 from the National Trust's Center for Preservation Policy Studies. • 18 Carrots and Sticks: New Zoning Downtown, by Terry Jill Lassar. Urban Land Institute. 1989. This 203-page book discusses incentive zoning, density bonus programs, design review, street-level retail uses, view protection, open space and streetscapes, parking and transportation. Information is included on zoning tools used by such cities as Portland (Oregon), Pittsburgh, Seattle, San Francisco, Bellevue (Washington) and Charlotte (North Carolina). Available from the Urban Land Institute, 625 Indiana Avenue, N.W., Washington, D. C. 20004. (202) 624-7000. Appraising Easements: Guidelines for Valuation of Historic Preservation and Land Conservation Easements. An 82-page book published jointly by the Land Trust Alliance and the National Trust for Historic Preservation, this publication includes: guidelines for the appraisal of charitable gifts of conservation easements, excerpts from the U.S. Treasury Dept. regulations concerning easements; selected IRS revenue rulings, and sample easement restrictions. The book may be obtained for $8.95 from the Preservation Bookstore, 1600 H St., N.W., Washington, D. C. 20006. 202/673-4200. The Conservation Easement Handbook: Managing Land Conservation and Historic Preservation Easement Programs. Authored by Janet Diehl and Thomas S. Barrett, this 269-page book discusses such matters as: the different types of conservation and preservation easements; criteria for easement programs; marketing easement programs; tax benefits of easements; and preventing easement violations. The book also includes model historic preservation and conservation easements and commentary. Available for $19.95 from the Preservation Bookstore, 1600 H St., N.W., Washington, D. C. 20006. 19 Preservation Law Reporter. Published by the National Trust for Historic Preservation, the Preservation Law Reporter covers new developments relating to federal, state and local preservation laws and ordinances. State laws affecting tax incentives for preservation are included as part of this coverage. Subscriptions to the PLR are $90 ($50 for members of the National Trust's Preservation Forum). A subscription includes 12 monthly issues plus a year-end report summarizing highlights in preservation law. Write to the Law and Public Policy Department, National Trust for Historic Preservation, 1785 Massachusetts Ave., N.W., Washington, D. C. 20036. 202/673-4035. The Alliance Review Published quarterly by the National Alliance of Preservation Commissions, this newsletter offers helpful advice on a variety of matters'. design guidelines for historic districts, local ordinance provisions dealing with special problems, such as "demolition by neglect," workshops and conferences, etc. Annual subscriptions are $15, available from NAPC, Hall of the States, Suite 332, 444 N. Capitol St., Washington, D. C. 20001 20 Ch. 92-1159 LAWS OF FLORIDA Ch. 92-159 (13) The lepartment of State shall adopt rules as provided in chapter 120 for the implementation of this section.These rules must specify the criteria for deter- mining whether a property is eligible for exemption;guidelines to determine im- CHAPTER 92-159 provements to historic properties which qualify the property for an exemption; criteria for the review of applications for exemptions;procedures for the cancella- tion of exemptions for violations to the agreement required by subsection (7);the Committee Substitute for Senate Bill No. 776 manner in which local historic preservation offices may be certified as ilualified to review applications;and other requirements necessary to implement this section. An act relating to ad valorem tax exemptions;creating s.196.1997,F.S.;pro- Section 2. Section 196.1998, Florida Statutes, is created to read: viding that the board of county commissioners of any county or the' gov- erning authority of any municipality may adopt an ordinance to grant ad 196.1998 Additional ad valorem tax exemptions for historic properties open to valorem tax exemptions under s.3,Art.VII of the State Constitution for the public.— improvements to historic properties which are a result of the restoration, (1) If an improvement qualifies a historic property for an exemption under s. renovation,or rehabilitation of those properties;specifying requirements 196.1997, and the property is used for non-profit or governmental purposes and for ordinances granting exemptions;providing procedures for application is regularly and frequently open for the public's visitation, use, and benefit,the for an exemption;requiring the property owner to covenant to maintain board of county commissioners or the governing authority of.the mtinicipality by the character of the property during the exemption period and providing ordinance may authorize the exemption from ad valorem taxation of up to 100 per- for assessment of previously exempted taxes upon violation of the cove- cent of the assessed value of the property, as improved, any provision of s. nant;establishing qualifications for applicants to be approved for an ex- 196.1997(2)to the contrary notwithstanding,if all other provisions of that section emption;requiring property appraisers to provide certain information to are complied with;provided,however,that the aSsessed value of the improvement the local governing authorities;providing duties of the Division of Histor- must be equal to at least 50% of the total assessed value of the property as im- ical Resources of the Department of State or local historic preservation proved. The exemption applies only to real property to which improvements are offices;requiring the Department of State to adopt certain rules;creating made by or for the use of the existing owner. In order for the property to qualify s.196.1998,F.S.;providing additional ad valorem tax exemptions for his- for the exemption provided in this section,any such improvements must be made toric properties open to the public;providing for additional rules;provid- on or after the day the ordinance granting the exemption is adopted. ing a contingent effective date. (2) In addition to meeting the criteria established in rules adopted by the De- Be It Enacted by the Legislature of the State of Florida: partment of State under s. 196.1997,a historic property is qualified for an exemp- tion under this section if the Division of Historical Resources,or the local historic Section 1. Section 196.1997,Florida Statutes, is created to read: preservation office, whichever is applicable, determines that the property meets 196.1997 Ad valorem tax exemptions for historic properties.— the criteria established in rules adopted by the Department of State under this sec- tion. (1) The board of county commissioners of any county or the governing authori- ty of any municipality may adopt an ordinance to allow ad valorem tax exemptions (3) In addition to the authority granted to the Department of State to adopt under B. 3, Art. VII of the State Constitution to historic properties if the owners rules under s. 196.1997, the Department of State shall adopt rules as provided in are engaging in the restoration,rehabilitation,or renovation of such properties in chapter 120 for the implementation of this section,which shall include criteria for accordance with guidelines established in this section. determining whether a property is qualified for the exemption authorized by this section, and other rules necessary to implement this section. (2) The board of county commissioners or the governing authority of the mu- nicipality by ordinance may authorize the exemption from ad valorem taxation of Section 3. This act shall take effect on the effective date of an amendment to up to 100 percent of the assessed value of all improvements to historic properties the State Constitution approved by the electors at the general election to be held which result from the restoration,renovation,or rehabilitation of such properties. in November 1992 which authorizes the governing authority of any county or mu- The exemption applies only to improvements to real property. In order for the nicipality to grant ad valorem tax exemptions for rehabilitation or renovation of property to qualify for the exemption,any such improvements must be made on historic properties. or after the day the ordinance authorizing ad valorem tax exemption for historic Became a law without the Governor's approval April 9, 1992. properties is adopted. Filed in Office Secretary of State April 8, 1992. (3) The ordinance shall designate the type and location of historic property for which exemptions may be granted,which may include any property meeting the provisions of subsection(11),which property may be further required to be located within a particular geographic area or areas of the county or municipality. (4) The ordinance must specify that such exemptions shall apply only to taxes levied by the unit of government granting the exemption.The exemptions do not c. C-71 4 1 t co CODING: Words stricken are deletions;words InideLlined are additions. CODING: Words stricken are deletions;words underlined are additions. Ch.92-159 LAWS OF FLORIDA Ch.92-159 Ch. 92-159 LAWS OF FLORIDA Ch. 92-159 apply,however,to taxes levied for the payment of bonds or to taxes authorized by or's Standards for Rehabilitation and will be made in accordance with guidelines a vote of the electors pursuant to s.9(b)or s.12,Art.VII of the State Constitution. developed by the Department of State. (5) The ordinance must specify that any exemption granted remains in effect (e) Other information deemed necessary by the Department of State. for up to 10 years with respect to any particular property,regardless of any change (9) The board of county commissioners or the governing authority of the mu- in the authority of the county or municipality to grant such exemptions or any nicipality shall deliver a copy of each application for a historic preservation ad va- change in ownership of the property. In order to retain the exemption, however, lorem tax exemption to the property appraiser of the county. Upon certification the historic character of the property,and improvements which qualified the prop- of the assessment roll,or recertification, if applicable, pursuant to s. 193.122, for erty for an exemption,must be maintained over the period for which the exerap- each fiscal year during which the ordinance is in effect,the property appraiser shall tion is granted. report the following information to the local governing body: (6) The ordinance shall designate either a local historic preservation office or (a) The total taxable value of all property within the county or municipality the Division of Historical Resources of the Department of State to review applica- for the current fiscal year. tions for exemptions.The local historic preservation office or the division,which- ever is applicable,must recommend that the board of county commissioners or the (b) The total exempted value of all property in the county or municipality governing authority of the municipality grant or deny the exemption.Such reviews which has been approved to receive historic preservation ad valorem tax exemp- must be conducted in accordance with rules adopted by the Department of State. tion for the current fiscal year. The recommendation,and the reasons therefor,must be provided to the applicant (10) A majority vote of the board of county commissioners of the county or of and to the governing entity before consideration of the application at an official the governing authority of the municipality shall be required to approve a written meeting of the governing entity. For the purposes of this section, local historic application for exemption.Such exemption shall take effect on the January 1 fol- preservation offices must be approved and certified by the Department of State. lowing substantial completion of the improvement.The board of county commis- sioners or the governing authority of a municipality shall include the following in the resolution or ordinance approving the written application for exemption: or agreement with the governing body for the term for which the exemption is i granted. The form of the covenant or agreement must be established by the De- (a) The name of the owner and the address of the historic property for which partment of State and must require that the character of the property, and the the exernrItion is granted. qualifying improvements to the property,be maintained during the period that the exemption is granted.The covenant or agreement shall be binding on the current (b) The period of time for which the exemption will remain in effect and the property owner,transferees,and their heirs,successors,or assigns.Violation of the expiration date of the exemption. covenant or agreement results in the property owner being subject to the payment . (c) A finding that the historic property meets the requirements of this section. of the differences between the total amount of taxes which would have been due in March in each of the previous years in which the covenant or agreement was in (11) Property is qualified for an exemption under this section if: effect had the property not received the exemption and the total amount of taxes (a) At the time the exemption is granted,the property: actually paid in those years,plus interest on the difference calculated as provided in s. 212.12(3). 1. Is individually listed in the National Register of Historic Places pursuant to the National Historic Preservation Act of 1966,as amended;or (8) Any person,firm,or corporation that desires an ad valorem tax exemption for the improvement of a historic property must,in the year the exemption is de- 2. Is a contributing property to a national-register-listed district; or sired to take effect,file with the board of county commissioners or the governing 3. Is designated as a historic property,or as a contributing property to a histor- authority of the municipality a written application on a form prescribed by the De- ic district, under the terms of a local preservation ordinance;and partment of State. The application must include the following information: (b) The local historic preservation office or the Division of Historical Re- (a) The name of the property owner and the location of the historic property. sources,whichever is applicable,has certified to the local governing authority that (b) A description of the improvements to real property for which an exemption the property for which an exemption is requested satisfies paragraph(a). is requested and the date of commencement of construction of such improvements. (12) In order for an improvement to a historic property to qualify the property for an exemption,the improvement must: (c) Proof,to the satisfaction of the designated local historic preservation office or the Division of Historical Resources,whichever is applicable,that the property (a) Be consistent with the United States Secretary of Interior's Standards for that is to be rehabilitated or renovated is a historic property under this section. Rehabilitation. (d) Proof,to the satisfaction of the designated local historic preservation office (b) Be determined by the Division of Historical Resources or the local historic or the Division of Historical Resources,whichever is applicable,that the improve- preservation office, whichever is applicable, to meet criteria established in rules ments to the property will be consistent with the United States Secretary of Interi- adopted by the Department of State. 2 3 CODING: Words stricken are deletions;words underlined are additions. CODING:Words stricken are deletions;words underlined are additions. 3-60 PART 9. TAX EXEMPTION FOR REHABILITATION OF HISTORIC LANDMARKS AND PROPERTIES IN HP OVERLAY DISTRICTS Section 65.900 Purpose In November of 1992,Florida voters overwhelmingly approved by referendum an amendment to the Florida State Constitution authorizing units of local government to provide a partial ad valorem property tax exemption to owners of Florida historic properties who restore, rehabilitate or renovate those structures. The City of Orlando hereby creates an ad valorem exemption for qualifying improvement of historic properties designated by the City of Orlando in order to accomplish the following purposes: Provide a positive financial incentive for designation of Orlando Historic Landmarks and HP Overlay districts; Encourage more restoration,rehabilitation and renovation of designated historic structures in Orlando; Stabilize and improve property values, and enhance the property tax base of the City of Orlando, by encouraging improvement of designated historic structures; and Improve the appearance of designated Historic Landmarks and HP Overlay districts in Orlando, therefore enhancing their appeal as places to live, to work, or to visit. Section 65.901 Definitions Assessed Value - For purposes of this section, the total value of a tax parcel, excluding the value of the land, as determined by the Orange County Property Appraiser, and shown on the property tax bill sent to the owner of record by Orange County. Historic Preservation Board - The Historic Preservation Board created by Section 65.130 of the Orlando Land Development Code. Contributing Property - Property determined by the Historic Preservation Board at the time of designation of an HP Overlay district as a property that shares in the qualities and characteristics that qualified an area of the City of Orlando as an HP Overlay district. 1 Owner of Record- The owner of record as defined in Section 66.200 of the Land Development Code. Preservation Exemption Covenant- The Historic Preservation Property Tax Exemption Covenant, in substantially similar form to Florida DOS Form No.HR3E111292, indicating that the owner agrees to maintain and repair the property so as to preserve the architectural, historical, or archaeological integrity of the property during the Exemption Period. Qyalifying Improvement--Any change in the condition of qualifying property brought about by the expenditure of money on labor or materials for the restoration,renovation or rehabilitation of such property. Expenditures for interior or exterior work,including construction of additions or accessory structures, shall be included in the meaning of improvement for purposes of this section. Qualifying Improvement Project-A qualifying improvement project is one for which the property owner can document to the satisfaction of the Historic Preservation Board that the total expenditure on the project within the two years prior to the date of submission of the Part 2:Final Application equals or exceeds 25 percent of the assessed value of the property in the year in which the qualifying improvement project was initiated. An amount equal to$2,500, or 15 percent of the amount spent on the qualifying improvement project, whichever is less, must be an expenditure on work to the exterior of the historic structure. Qualifying Property-The following real property in the City of Orlando is qualifying property for purposes of this Section: (a) property designated as a Historic Landmark by the City of Orlando, and (b)property within the boundaries of an HP Overlay District designated by the City of Orlando and found by the Historic Preservation Board to be a contributing property to that district. The property must be a qualifying property on the date that the historic rehabilitation tax exemption is approved by City Council. •• Section 65.902 Historic Rehabilitation Tax Exemption Qualifying property that has completed a qualifying improvement project shall be exempt from that portion of ad valorem taxation levied by the City of Orlando on 100 percent of the increase in assessed value resulting from the substantial improvement project during the Exemption Period. The amount of the exemption shall be determined by the Orange County Property Appraiser based upon its usual process for post-construction inspection and appraisal of property following rehabilitation or renovation. Section 65.903 Exemption Period The Exemption Period shall be ten years, beginning on January 1 of the year following the year in which final approval of the application is given by the City Council and the Orange County Property Appraiser has been instructed by the Historic Preservation Officer to provide the Historic Rehabilitation Tax Exemption. The Exemption Period shall continue in force even when the applicant subsequently sells the property to another owner. Property owned by a non-profit or governmental entity exempt from the payment of ad valorem taxes on the date that'the application is filed, but subsequently sold to a for-profit owner not exempt from payment of ad valorem taxes, shall be qualifying property for the remaining period of th,e exemption following the date on which the property has.been conveyed or sold to the for-profit owner. Section 65.904 Application Application for the Historic Rehabilitation Tax Exemption shall be made on the appropriate form obtained from the City of Orlando Historic Preservation Officer. The application form shall contain all the information required in the tax exemption application form approved by the Division of Historical Resources,Florida Department of State, and promulgated in accordance with rule 1A- 38,F.A.C., but shall also contain such additional information, including documentation of the cost of the qualifying improvements, as determined necessary by the Historic Preservation Board. Application forms and summaries of deadlines and application procedures shall be maintained by the Historic Preservation Officer and shall be made available to the general public. Each applicant shall also be provided a copy of the Preservation Exemption Covenant, and an explanation of the requirement that the covenant must be signed before a final application can be approved by City Council. A final application, in proper form, shall be submitted upon completion of the qualifying_ improvement project. Every final application shall be accompanied by a copy of the Preservation-Exemption Covenant • signed by every property owner of record. Section 65.905 Applicant Tne applicant shall be the owner of record of a qualifying property. or the authorized agent of the owner. Section 65.906 Part 1: Preconstruction Application Only expenditures made to contributing properties after the effective date of this ordinance shall be reviewed by the Historic Preservation Officer for approval. A Part 1: Preconsmiction Application shall be filed on the appropriate form before the qualifying improvement project is initiated. The Part 1: Preconstruction Application form shall be accompanied by information sufficient to allow the Historic Preservation Officer to determine whether the proposed project involves a qualifying property and will comply with the review standards contained in Section 65.917, and in the ordinance designating the district in which the property is located, if it is located in a designated HP Overlay district. It shall also contain information concerning the proposed cost of the qualifying improvement project and be accompanied by a copy of the most recent tax bill sent out by the Orange County Property Appraiser. Section 65.907 Preconstruction Application: Review by Historic Preservation Officer • The Historic Preservation Officer shall contact the applicant within ten (10) days following submission of a properly completed Part 1:Preconstruction Application. The Historic Preservation Officer shall indicate to the applicant whether(1) the proposed work is a qualifying improvement project, and (2) whether the work as proposed is in compliance with the review standards contained in Section 65.917. If the Historic Preservation Officer determines that the work is a qualifying improvement project and that the work as proposed is in compliance with the review standards contained in Section 65.917, the Part 1:Preconstruction Application shall be approved by the Historic Preservation Officer and issued to the applicant. if the Historic Preservation Officer determines that the work as proposed is either(1) not a qualifying improvement project, or(2)is not in compliance with the review standards contained in Section 65.917, the applicant shall be so advised, and the Historic Preservation Officer shall make recommendations to the applicant concerning changes to the proposed work necessary to make it a qualifying improvement project and brine it in compliance with the review standards. The applicant shall have fourteen (14) days following receipt of a written summary of the recommendations of the Historic Preservation Officer to resubmit the Part 1: Preconstruction Application. This time period may be extended for an additional fourteen (14)days by the Historic Preservation Officer if practical difficulties make it impossible for the applicant to revise the Part 1: Preconstruction Application within fourteen (14) days. Section 65.908 Work Requiring a Certificate of Appropriateness If all or part of the proposed work involves exterior work requiring a Certificate of • • Appropriateness under Section 65.470 of the Land Development Code, the exterior portion of the work shall be reviewed in accordance with that section of the Code. The appropriate Major Review procedure or Minor Review procedure pursuant to Section 65.471 of the Code shall be applicable. The Part 1: Preconstruction Application process may be conducted simultaneously with the process for issuance of a Certificate of Appropriateness, but no Preconstruction Application shall be approved by the Historic Preservation Officer and issued to the applicant until the process for issuance of a Certificate of Appropriateness has been completed. However, if all or part of the proposed work involves exterior work requiring review by the Downtown Development Board/Development Review Committee under Section 65.510 of the Land Development Code, the exterior portion of the work shall be reviewed in accordance with that section of the Code. Section 65.909 Assistance From Design Review Committee The Historic Preservation Officer may request technical assistance from the Design Review Committee of the Historic Preservation Board in reviewing either a Part 1:Preconstruction Application or a Part 2: Final Application for Review of Completed Work. Section 65.910 Part 2: Final Application for Review of Completed Work The Part 2: Final Application shall be accompanied by documentation that the total cost of the work qualifies it as a qualifying improvement project. Appropriate documentation may include paid contractor's bills, canceled checks, an approved building permit application listing cost of work to be performed, or other information as determined to be sufficient by the Historic Preservation Officer. The Historic Preservation Officer shall contact the applicant within seven (7) days following submission of a properly completed Part 2: Final Application. The Historic Preservation Officer shall indicate to the applicant whether(1) the completed work is a qualifying improvement project. and (2) whether the work as completed is in compliance with the review standards contained in Section 65.917. If the Historic Preservation Officer determines that the work is a qualifyins improvement project and is in compliance with the review standards contained in Section 65.917. the Part 2: Final Application shall be approved by the Historic Preservation Officer and issued to the applicant. If the Historic Preservation Officer determines that the work as completed is either (1) not a • qualifying improvement project, or(2) is not in compliance with the review standards contained in Section 65.917, the applicant shall be advised that the final application has been denied, and the Historic Preservation Officer shall provide a written summary of the reasons for that determination, including recommendations to the applicant concerning changes necessary to make it a qualifying improvement project and bring it in compliance with the review standards. Upon submission of satisfactory evidence that the applicant intends to undertake the work necessary to comply With the recommendations of the Historic Preservation Officer, the denial of the final application may be continued by the Historic Preservation Officer for a reasonable period of time, not to exceed sixty (60) days, while the applicant makes a good faith effort to comply with the recommendations. Section 65.911 Interior Inspection Upon receipt of a Pan 1: Preconstruction or Part 2: Final Application involving a qualifying improvement project in which some of the work is in the interior of the property, the Historic Preservation Officer shall an-ange with the applicant for an interior inspection. The purpose of the interior inspection is to ascertain the effect, if any, of the qualifying improvement project on significant historical or architectural interior features. Section 65.912 Approval by City Council Every Part 1: Preconstruction Application and Part 2: Final Application reviewed and approved by the Historic Preservation Officer, or by the Historic Preservation Board upon appeal pursuant to Section 65.914, shall be placed upon the consent agenda of City Council for final approval at the next City Council meeting following the approval. Section 65.913 Issuance of Other Permits No Building Permit, or other required permit, shall be issued by the City of Orlando until the required Certificate of Appropriateness or Part 1: Preconstruction Application has been approved and all appeal proceedings have been completed. Section 65.914 Appeals to Historic Preservation Board Within five (5) days following receipt of notice that the Historic Preservation Officer has denied a Par. 1: ?reconstruction Application or a Part 2: Final Application, the applicant may file an appeal from the determination TO the Historic Preservation Board. Tne appeal shall be filed on a form prepared by the Historic Preservation Officer. Included with the form shall be a copy of any recommendations made by the Historic Preservation Officer. 6 ..; - • . The Historic Preservation Board shall review the qualifying improvement project in substantially the same manner as in a Major Review of a Certificate of Appropriateness as specified in Section 65.471. A public hearing shall be held and notice provided the applicant. The Standards for Review contained in Section 65.917 shall be the criteria applied by the Historic Preservation Board in hearing the appeal. Section 65.915 Public Notice of Appeal to Historic Preservation Board At least ten (10)days prior to the public hearing,by the Historic Preservation Board on an appeal, a sign shall be posted in the front yard of the property notifying the public of the time and place of the Historic Preservation Board meeting at whiCh the appeal will be heard. At least two (2) weeks prior to the date of the Historic Preservation Board meeting, written notice shall also be sent to all owners of neighboring property summarizing the proposed qualifying improvement project and also indicating the time and place of the Historic Preservation Board meeting. If the decision of the Historic Preservation Board is that the Part 2:Final Application be approved, the applicant shall be notified to record the Preservation Exemption Covenant. If the decision of the Historic Preservation Board is that the Final Application be disapproved, the applicant may appeal the decision of the Board to City Council in accordance with Section 65.916. Section 65.916 Appeal- to City Council The applicant may appeal any final decision of the Historic Preservation Board to City Council pursuant to Article XXIV, Section 2.176 and following. Section 65.917 Standards for Review In considering a Part 1: Preconstruction Application or a Part 2: Final Application, the Historic Preservation Officer and the Historic Preservation Board shall follow the Secretary of the Interior's Standards for Rehabilitation and Guidelines for Rehabilitating Historic Buildings, as revised, and as summarized in Section 62.201. The Historic Preservation Officer and the Historic Preservation Board shall also follow the Design and Demolition Standards contained in Part 7 of Section 62, and any standards in the ordinance designating a Historic Landmark or a particular area of the City of Orlando as an HP Overlay district. Section 65.918 Completion of Work An applicant must complete all work within two years following the date of approval of a Part 1: Preconstruction Application by City Council. A Preconstruction Application approval shall 7 automatically be considered revoked if the property owner has not submitted a Final Application within two years following the date of approval of a Part 1: Preconstruction Application by the City Council. The Building Official, upon recommendation of the Historic Preservation Officer, may extend the time for completion of a substantial improvement project in accordance with procedures in Chapter 13, Building Code, Section 13.03-1. Section 65.919 Historic Preservation Exemption Covenant No Part 2: Final Application shall be approved by City Council unless it is accompanied by a signed Historic Preservation Exemption Covenant. Section 65.920 Notice to Applicant Written notice shall be made to the applicant in reference to each application after a recommendation or final decision has been made. Each written notice shall include reasons for the decision and recommendations for changes to the proposed improvement project that will make it a qualifying improvement. The notice of approval shall indicate to the applicant that the Orange County Property Appraiser will be instructed by the Historic Preservation Officer to provide the Historic Rehabilitation Tax Exemption upon proper submission of a recorded copy of the Historic Preservation Exemption Covenant. Section 65.921 Notice to Property Appraiser Within three (3) business days following receipt by the Historic Preservation Officer from the applicant of a certified copy of the recorded Preservation Exemption Covenant, the Historic Preservation Officer shall transmit a copy of the approved Part 2:Final Application to the ()ranee County Property Appraiser, with instructions that the Property Appraiser provide the Historic Rehabilitation Tax Exemption to the applicant. A copy of the letter of transmittal to the Orange County Property Appraiser shall be sent to the applicant within three (3) business days following its submission. Section 65.922 Effective Date of Exemption Tne effective date of the Historic Rehabilitation Tax Exemption shall be January 1 of the \rear following the year in which the final application is approved and a Historic Preservation Exemption Covenant has been recorded and has been transmitted to the Orange County Property Appraiser. Section 65.923 Revocation Proceedings 8 The Historic Preservation Officer may initiate proceedings to revoke the Historic Rehabilitation Tax Exemption in the event that the applicant, or any subsequent owner or successor in interest to the property,fails to maintain the property according to the terms, conditions, and standards of the Historic Preservation Exemption Covenant Proceedings under this section may also be initiated following a finding by the Code Enforcement Board that a housing code violation has occurred. The Historic Preservation Board shall provide notice to the current owner of record of the property and hold a hearing in the same manner as in a Major Review of a Certificate of Appropriateness as specified in Section 65.471, and make a recommendation to City Council. City Council shall review the recommendation of the ltstoric Preservation Board and make a determination whether the Historic Rehabilitation Tax Exemption shall be revoked. Section 65.924 Notice of Revocation Upon a determination by City Council that the Historic Rehabilitation Tax Exemption shall be revoked,the Historic Preservation Officer shall provide written notice of the decision to the property owner of record as well as to the Orange County Property Appraiser. The notice to the owner of record shall be accompanied by reasons and recommendations for changes to the property that may result in reinstatement of the exemption. Upon receipt of a notice of revocation, the Orange County Property Appraiser shall discontinue the Historic Rehabilitation Tax Exemption on the property as of January 1 of the year following receipt of the notice of revocation. Section 65.925 Notice of Penalties The notice of revocation shall include a statement that a penalty equal to the total amount of taxes that would have been due in March in each of the previous years in which the Historic Preservation Exemption Covenant was in effect had the property not received the exemption,less the total amount of taxes actually paid in those years,plus interest on the difference calculated as provided in Section 212.2 of the Florida Statutes shall be imposed by the Orange County Tax Collector for violation of the terms, conditions and standards of the Historic Preservation Exemption Covenant. Section 65.926 Reinstatement A property may be reinstated for the Historic Rehabilitation Tax Exemption upon satisfactory submission of evidence that the recommendations for changes to the property previously made by the Historic Preservation Officer have been completed. The process for reinstatement shall be the same as the process for review of a Pan 2: Final Application as set forth in Section 65.910. and 0 following. Upon completion of the reinstatement process, the Historic Preservation Officer shall notify the Property Appraiser pursuant to Section 65.921. The Historic Rehabilitation Tax Exemption shall only be reinstated for the remaining unexpired term of the initial Exemption Period. Section 65.927 Reapplication An applicant previously granted a Historic Rehabilitation Tax Exemption by the Historic Preservation Board may undertake an additional substantial improvement project during the EZemption Period, or following its expiration, and reapply for an additional Historre'Rehabilitation Tax Exemption for such subsequent work. Section 65.928 Annual Report The Historic Preservation Officer shall prepare an annual report to the City Council concerning the Historic Rehabilitation Tax Exemption program. The report shall be filed in December of each calendar year, and shall summarize activities of the Historic Preservation Officer and the Historic Preservation Board related to the Historic Rehabilitation Tax Exemption program during the previous calendar year. The information contained in the annual report shall include, but not be limited to, the following items: (1) a list of the properties for which Part 1: Preconstruction Applications and Part 2: Final Applications were made during the preceding year, (2) explanation of the disposition of each application; (3) the total expenditure on each approved qualifying improvement project during the preceding year, (4) the-total number of properties currently parricipatine in the Historic Rehabilitation Tax Exemption program as of the end of the previous year, (5) the total expenditure on all qualifying improvement projects currently participating in the pro -am: and (6) any other information requested by City Council, or considered significant bv the Historic Preservation Officer. Section 65.929 Judicial Review Judicial review of decisions made by City Council shall be in accordance with Article XXIV Section 2.180 of the Land Development Code. 10 3-C-5 0 itpl: DOWNTOWN DEVELOPMENT OFFICE 111 ...id CITY OF TALLAHASSEE CITY OF TALLAHASSEE HISTORIC PROPERTY GRANT AND REVOLVING LOAN PROGRAM SUMMARY The Historic Property Grant and Revolving Loan Program has been established by the Tallahassee City Commission as an incentive to provide financial assistance to restore/rehabilitate eligible historic structures located within the City's Downtown Plan boundaries as specified below. The purpose of the program is to promote broader use and appreciation of Tallahassee's historic areas by its citizens and visitors through a more active mix of residential, cultural, retail, and restaurant uses in the historic districts. Approximately $300,000 in funds are available. Based upon available appropriations, it is the intent of the City to accept project applications at any time during the year. The Historic Property Grant and Revolving Loan Finance Committee will review applications every sixty days based on an established meeting schedule. The Chairman of the Committee has - the authority to call special meetings as circumstances dictate. lite Committee has the authority to approve funding for projects in amounts up to and including $10,000. Uojects in excess of $10,000 will be forwarded with a recommendation from the Committee to the City Commission for funding approval. However, the release of City funds for approved projects is subject to the receipt of either a Certificate of Appropriateness from the-Tallahassee-Leon County Architectural Review Board (ARB) or a Certificate of Minor Review from ARB staff. Staff of the Downtown Development Office, in conjunction with the Chairman of the Committee, shall have the authority to grant a subsequent request for additional funds up to 10% of any approved request, but not more than $10,000, provided that the total request inclusive of any additional funding remains within the program parameters as determined herein. HISTORIC PROPERTY GRANT AND LOAN FINANCE COMMITTEE The Historic Preservation Grant and Loan Program Finance Committee was established by the City Commission to review and make recommendations on applications submitted for funding under the program. The Committee also has the responsibility of developing and updating implementation regulations for the program based on Commission policy. The membership of the Committee consists of representatives from the Treasurer-Clerk's Office, the Finance Department, the Real Estate Office, the Historic Tallahassee Preservation Board, and three representatives from local financial institutions. The Committee is staffed by the Downtown Development Office. Page 1 of 9 (03/28/96) City Hall•300 South Adams Street•Tallahassee,Florida 32301 Telephone(904) 891-8625•Fax (904) 891-8733 •TDD 1-800/955-8771 GENERAL GRANT AND REVOLVING LOAN ELIGIBILITY CRITERIA • Properties must be located within the Park Avenue and Calhoun Street Special Character Districts and be subject to the Historic Preservation Overlay (HPO). • Qualifying properties must be existing historic structures that are presently listed on the National Register or listed as contributing or contributing-altered historic properties. • State owned historic properties are excluded. • No new construction is eligible for program funds. • Property land use must be consistent with the City of Tallahassee Downtown Plan, the Tallahassee-Leon County 2010 Comprehensive Plan, and the Tallahassee Zoning Site Plan Review Codes. • Project restoration/rehabilitation is subject to site plan and architectural review criteria. • Project restoration/rehabilitation must be consistent with the Secretary of the Interior's Standards for Rehabilitation and Guidelines for Rehabilitating Historic Buildings. GRANT AND REVOLVING LOAN FUND USE GUIDELINES _storic property funds can be used for one or all of the following purposes: 1. Stabili 7ntion for the purpose of restoration/rehabilitation; 2. Structural repair; 3. Facade restoration/rehabilitation; 4. Compliance improvements for fire/building/commercial/handicap and other code and health/safety requirements; and 5. Other construction activity that will result in a "total project" restoration/rehabilitation of the building. ELIGIBLE PRO.TECT TYPES BY TIER Projects eligible under this program fall in one of three tiers: Tier 1 - residential use Tier 2 - cultural, retail, restaurant use Tier 3 - other Lie tiers represent the preference level for various types of projects in descending order, which is reflective U the historic preservation goals contained in the City of Tallahassee Downtown Plan. Page 2 of 9 (03/28/96) FUNDING AMOUNT GUIDELINES • Funding will be awarded for projects in the form of both grants and/or loans. The type of funding and the amount of funding are described below for each type of project as categorized by tier. A. Tier 1 -Residential Use • This tier will apply to all residential properties and to residential portions of eligible mixed-use properties. Single family residences converted to function as a bed and breakfast inn which is owner-occupied with five or fewer guest rooms shall be considered a residential property. Consistent with the City's Zoning Code, bed and breakfast inns in the Historic Overlay District are limited to five or fewer guest rooms. . • Residential funding will be based solely on the need of the property, not the financial need of the owner. • Tier 1 funding will be structured as follows: — The first$10,000 of project costs would be 100% funded by a City grant. -- The next increment of project cost in excess of $10,000 to $30,000 would be funded by a 50% City grant (up to a maximum of $10,000 in additional City grant money), with the applicant's portion being either in cash or a City loan, at the applicant's discretion subject to approval by the City. — The next increment of project cost in excess of $30,000 to $100,000 would be funded by a 30% City grant (up to a maximum of $21,000 in additional City grant money), with the applicant's portion being either in cash or a City loan, at the applicant's discretion subject to approval by the City. — The final increment of project cost in excess of $100,000 would be 100% funded by either applicant's cash or a City loan, at the applicant's discretion subject to approval by the City. • -- The maximum allowable City grant for a project in this tier is $41,000. There is no maximum allowable City loan in this tier. B. Tier 2 - Cultural. Retail. and Restaurant Use • This tier will apply to all cultural, retail, transient lodgings (other than bed and breakfast inns), and restaurant uses and to cultural, retail, transient lodging (other than bed and breakfast inns), and restaurant use portions of eligible mixed-use properties. • Cultural, retail, transient lodging (other than bed and breakfast inns), and restaurant use funding will be based on the financial capacity of the applicant and/or project. Page 3 of 9 (03/28/96) • • The application process for any Tier 2 project requesting $20,000 or more in loan funding will include an independent credit analysis by a financial institution under contract to the City. The fee for such is an eligible cost for reimbursement. This part of the application process will be initiated only after the Historic Property Grant and Loan Finance Committee has determined that the project is eligible under the program guidelines. • Tier 2 funding will be structured as follows: -- The first $25,000 of project cost would be funded by a 70% City grant (up to a maximum of $17,500 in City grant money), with the applicant's portion being either in cash or a City loan, at the applicant's discretion subject to approval by the City. -- The next increment of project cost in excess of $25,000 to $50,000 would be funded by a 50% City grant (up to a maximum of $12,500 in additional City grant money), with the applicant's portion being either in cash or a City loan, at the applicant's discretion subject to approval by the City. — The next increment of project cost in excess of $50,000 to $100,000 would be funded by a 22% City grant (up to a maximum of $11,000 in additional City grant money), with the applicant's portion being either in cash or a City loan, at the applicant's discretion subject to • approval by the City. -- The final increment of project cost in excess of $100,000 would be 100% funded by either applicant's cash or a City loan, at the applicant's discretion subject to approval by the City. -- The maximum allowable City grant for a project in this tier is $41,000. There is no maximum allowable City loan in this tier. C. Tier 3 - Other • Other uses, such as office, will be funded based on the financial capacity of the applicant and/or project. • The application process for an Tier 3 project requesting $20,000 or more in loan funding will include an independent credit analysis by a financial institution under contract to the City. The fee for such is an eligible cost for reimbursement. This part of the application process will be . initiated only after the Historic Property Grant and Loan Finance Committee has determined that the project is eligible under the program guidelines. • Tier 3 funding will be structured the same as Tier 2 funding which is as follows: -- The first $25,000 of project cost would be funded by a 70% City grant (up to a maximum of $17,500 in City grant money), with the applicant's portion being either in cash or a City loan, at the applicant's discretion subject to approval by the City. Page 4 of 9 (03/28/96) -- The next increment of project cost in excess of $25,000 to $50,000 would be funded by a 50% City grant (up to a maximum of $12,500 in additional City grant money), with the applicant's portion being either in cash or a City loan, at the applicant's discretion subject to approval by the City. -- The next increment of project cost in excess of $50,000 to $100,000 would be funded by a 22% City grant (up to a maximum of $11,000 in additional City grant money), with the applicant's portion being either in cash or a City loan, at the applicant's discretion subject to • approval by the City. -- The final increment of project cost in excess of $100,000 would be 100% funded by either applicant's cash or a City loan, at the applicant's discretion subject to approval by the City. -- The maximum allowable City grant for a project in this tier is $41,000. There is no maximum allowable City loan in this tier. D. Funding Request Documentation Applicants will be required to submit in the application for funding under this program quotes from three (3) licensed contractors. The funding awarded will be based on the lowest qualified bid (qualified defined as taking into consideration the historic nature of the structure and following the Secretary of Interior's Standards for Rehabilitation and Guidelines for Rehabilitating Historic Buildings). The owner may elect to choose a contractor other than the one with the lowest qualified bid but shall be responsible for all costs exceeding the lowest qualified bid. The Historic Property Grant and Loan Finance Committee may grant an exception to the requirement to provide three quotes on a case-by-case basis . where there is a sole source or limited number of qualified providers. • FUNDING SET-ASIDES BY TIER • 35% of remaining and future grant and loan program funds will be set aside for residential funding (Tier 1 projects). • 65% of remaining and future grant and loan program funds will be set aside for cultural, retail, and restaurant uses (Tier 2 projects). • There shall be no initial set-aside for Tier 3 projects. • If during an application cycle there are not sufficient qualified projects to fully utilize the Tier 1 set-aside, the balance in the Tier 1 set-aside would become available for Tier 2 projects. • If during an application cycle there are not sufficient qualified projects to fully utilin the Tier 2 set-aside, the balance in the Tier 2 set-aside would become available for Tier 1 projects. • If during an application cycle there are not sufficient qualified projects to fully utilin the Tier 1 and Tier 2 set-aside, the balance in the Tier 1 and Tier 2 set-aside would become available for Tier 3 I projects. Page 5 of 9 (03/28/96) LOAN STRUCTURE • A ten-year straight line amortization with equal monthly principal payments will be used. • The interest rate will be one-half of the prime rate at the time of loan approval. This will be an annually adjustable interest rate and will contain a maximum two percent annual change. The interest • component of the monthly payment will change annually on the anniversary date of the loan, depending on changes in the interest rate. • Interest during the construction phase will be capitnlind, meaning that it will accrue as money is drawn for construction purposes and will be amortized into the loan. • Principal and interest will be paid on a monthly basis beginning one month subsequent to receipt of a Certificate of Occupancy for the improved property. • The transaction will be treated as a note upon preliminary approval and a loan at closing, following construction. • The loan may be subordinate to other loan commitments made by the borrower, however, it may not be subsequently further subordinated after closing without the written approval of the Committee. The property may be sold during the loan period, however, should such occur, the remaining balance of the loan will either become due and payable or may transfer to the new owner, at the option of the - owner. • Should the character of the property change to something other than historical in nature during the loan period, the outstanding balance of the loan will become due and payable. • Any loan (or grant and loan in combination) of $10,000 or greater will be secured by a mortgage. Prior to closing, the applicant shall provide the City with mortgagee title insurance, the cost of which shall be paid by the applicant or deducted from the proceeds at the time of closing. • Any loan (or grant and loan in combination) of less than $10,000 is not required to be secured by a mortgage. Instead, a notice of historic grant and restrictive covenants will be filed with the Clerk of the Court. Prior to closing, however, the applicant shall provide the City with an ownership and encumbrance report, the cost of which shall be paid by the applicant or deducted from the proceeds at the time of closing. GRANT STRUCTURE • All grants will be treated as ten year, zero interest, deferred loans. The amount of the deferred loan will be amortized in monthly installments over a ten year period beginning one month subsequent to receipt of a Certificate of Occupancy for the improved property. Page 6 of 9 (03/28/96) • The monthly installments will be automatically forgiven (without any action by the City) as they become due as long as the character of the property remains historical in nature. Should the character of the property change to something other than historical in nature during the deferred loan period, the outstanding balance of the deferred loan will become due and payable. • The deferred loan may be subordinate to other loan commitments made by the borrower, however, it may not be subsequently further subordinated after closing without the written approval of the Committee. • The property may be sold during the deferred loan period, however, should such occur, the remaining balance of the deferred loan will either become due and payable or may transfer to the new owner, at the option of the owner. • Should the character of the property change to something other than historical in nature during the . deferred loan period, the outstanding balance of the deferred loan will become due and payable. • Any deferred loan (or deferred loan and loan in combination) of$10,000 or greater will be secured by a mortgage. Prior to closing, the applicant shall provide the City with mortgagee title insurance, the cost of which shall be paid by the applicant or deducted from the proceeds at the time of closing. • Any deferred loan (or deferred loan and loan in combination) of less than $10,000 is not required to be secured by a mortgage. Instead, a notice of historic grant and restrictive covenants will be filed with the Clerk of the Court. Prior to closing, however, the applicant shall provide the City with an ownership and encumbrance report, the cost of which shall be paid by the applicant or deducted from the proceeds at the time of closing. TOTAL PROTECT PRIORITY RANKING SYSTEM Projects within each tier shall be evaluated based on a competitive total project ranking system which ranks restoration/rehabilitation of eligible historic structures in the following order of priority: 1. Restoration/rehabilitation of an existing historic structure that is currently determined to be in fair to poor condition (criteria based definitions as defined by the State of Florida, Department of State, • Division of Historical Resources application for "Historic Preservation Grants-In-Aid") and the historic structure must not have been comprehensively restored/rehabilitated within the last ten years. 2. The restoration/rehabilitation will serve as a catalyst for revitalizing a city block or area of the Special Character Districts in furtherance of the Downtown Plan, Objective 9.2 ("...by promoting broader use and appreciation of Tallahassee's historic areas by its citizens and visitors through a more active mix of cultural, retail, and restaurant uses in the historic structures..."). 3. For Tier 2 and Tier 3 projects financial need should be demonstrated by documenting in the application that the project would only be financially feasible contingent upon receiving program funds. Page 7 of 9 (03/28/96) IMPLEMENTATION REQUIREMENTS 1. All project work must be completed within eighteen months, unless an extension is approved by the City Commission. Should the project not be completed within eighteen months, and an extension not approved by the City Commission, the loan and/or grant (deferred loan) shall be considered in default and subject to foreclosure. a. In order to draw down project funds for an approved project, applicants must submit an invoice that has been initialed by an authorized member of the City's Building Inspection staff who has inspected the work and approved it as complete. b. An amount equal to 25% of the authorized funds for an approved project will be held back from disbursement until a Certificate of Completeness is received from the staff of the Tallahassee-Leon County Architectural Review Board. 2. The applicant shall be required to repay any amounts outstanding under a loan and/or grant (deferred loan) if there is any material damage to, or destruction of, all or a portion of the property. Provided, however, the applicant, in the event of such damage or destruction, shall not be considered in violation of this provision if it repairs such damage or destruction, in a manner consistent with the restored or rehabilitated appearance and quality of the property and structures, within thirty (30) days, or such longer time as may be approved by the City, of the date of such damage or destruction. I The applicant shall maintain, and continually keep in full force and effect, insurance on the property, and all structures and improvements located thereon, in a sum of not less than the maximum insurable value of the same. Such insurance shall be issued by an insurer acceptable to the City and authorized to issue such insurance and otherwise do business in the State of Florida. The City shall be named as insured under such policy during such time as the loan is effective. 4. The applicant shall comply with all laws, statutes, ordinances, rules and regulations of any kind which may be imposed by any governmental entity with appropriate jurisdiction, regarding its use, restoration, and rehabilitation of the property and any structures thereon. Nothing in the grant and/or loan agreement shall be construed so as to alleviate the applicant from such obligation of compliance nor as a waiver of the jurisdiction of the City, or any other governmental authority, to impose such laws, statutes, or ordinances, rules, or regulations. 5. The property and all structures thereon that are restored or rehabilitated using funds provided by a loan or grant (deferred loan) from the City through the City's historic property preservation loan program shall not be demolished, nor shall any structural or physical change to the historic character of the same be made during the period for which an outstanding balance is due on the loan or grant (deferred loan) from the City. 6. The applicant (owner of the property), during the period for which an outstanding balance is due on the loan or grant (deferred loan) from the City, shall maintain and repair the property, and structures located thereon, in accordance with good preservation practice so as to preserve the architectural and historical integrity of the same in order to protect and enhance those qualities that made the property and structures eligible for participation in the City's subject program. Page 8 of 9 (03/28/96) In restoring and/or rehabilitating the property and any structures thereon, the applicant (owner) shall comply with the terms of the Certificate of Appropriateness issued by the Tallahassee-Leon County Architectural Review Board. 8. Upon the applicant's repayment of the loan to the City, or in the case of a grant (deferred loan), the City's forgiving or applicant's repayment, of all sums received by the applicant pursuant to the award described above, the restrictions shall become null, void, and of no further force or effect; provided, however, that such repayment shall not relieve the applicant from its obligations to comply with all laws, statutes, ordinances, rules and regulations which may be imposed in regard to the property by any governmental entity, including but not limited to the City, nor shall this paragraph be construed as a waiver of any such authority by the City. 9. These restrictions shall be enforceable by the city through appropriate proceedings at law or equity. ADDITIONAL NON-CASH INCENTIVES The City's Historic Property Grant and Revolving Loan Program is provided in addition to a number of non- cash incentives, which are also available to assist in the restoration of historic Tallahassee properties. These incentives include: 1. Streamlining the variance process to facilitate historic preservation within standard building code criteria and allowing variances through the Board of Adjustment and Appeals procedures. 2. Reservation of concurrency capacities has been set-aside for historic properties. 3. Encouraging use by the City and County of historic properties for rental office space. 4. Exempting historic properties from on-site parking and loading requirements. 5. Exempting historic properties which are used to conduct business from occupational license fees. 6. Exempting historic properties from environmental management review fees. 7. Exempting historic properties from a variety of permit fees including: a. Building, plumbing, electric, mechanical, and fire permit fees; b. Roofing permits, gas permits, and re-inspection fees; c. Landscape and stormwater permit fees; and d. Variance fees and tree removal and rezoning fees. For more information call the Downtown Development Office at (904) 891-8625. c:liaerdazallastoriclhps4=0.doc Page 9 of 9 (03/28/96) SPECIAL CHARACTER DISTRICT WITH DESIGNATED Hpo PROPERTIES — I L_____J I I i I [ i LsTrirril_i L ........ . 11=D - HISTORIC PRESERVATION OVERLAY 1 I AND NATIONAL REGISTER 1— AORGIA i OF HISTORIC PROPERTIES MIN _ I I = imMi ._ (FULL ARB REVIEW) ' •Iiiim NM NM t...... MM. - r ""iii INA - --------- III 1 H. • Sili AI " 1 [. _ - -1--- \, t 111 111 [ 1 1 illiviRcrititiiii [r W ! :1:t... ...VT,i .1. • El% 1, a 1 a Fl Es 0.1ma.,4 - .• .„1,. • • •• : • t -- ...--Itus.,m0 _ — -- -.. .- -' m-&--z . r-il ' 1 — . 1 _ I- rIF _ .. r I --------i =mu Not: in , ,L_.-- 1 TENNESSEE STREET 1- 1 L 1 I [ -,__ J- Rill - L nom . -... ... ;..--. • II 1 El 011111111 -- ----- ! _ -,...:111-......,.. --: .1 1 ...-........,......,._ .......,-,....i .... ......_ ---........„--,::-._ --...:-...--„.. r ,1 -1--- I I I' . -....,,,,....„...-........". = 1 - --..----..-4-24!". 1 ' _ ----_--, , -. -„ . . , • ;—1 11 Ji ....,,,,. . .' .. ... . ' . .:.::... . .. BEVERLY ST. 3-[ 4 '-'-'"•••,... - . .. . : "A• : •:::::::::::::...:::. ::::: ::: :..: :. 17"..:7:7.7- :': 111111111110., al :". l': .MM''' ' 1111111111.1% !' . . . ., . :.: ::::::„::::!ii:...w . L ,.: :. .1.: , " AKitt l'ir:=1 . 1 : :i. : ; %Mr- • t3: , . , -1 illT1 I —. i\--1 , - .--) 1 1 . i - _ I --1._ r -1.-- FicE _ L § i —6 r--', ilf _i_IL_ . . — _ _ --F g- 1 L, - N .— - C -1 ._ _8 _ ri.. I u . - T -1-1-0 % 0_._r_il -7.-::r --- r[19 • -, _T. i_. Iiii : _-- - "1 • - - I -- ---- -1- '-' "" Alin rtioi I--- ---- —'-`- — —PI— 1-61711 Jill" .11E7:- i.,-'.3 - -_ .-.. .. , • ri2,[1- 1[ 1 ill -III ]-14-IT F511 LAW SC1 KX* -1. C-.(TUr1-1-0; 1 71400-5.(-— 'L.' r------- [TFF 1 1-1, I I-7 / yy -ociy>.- E 1 1 1 J-:7 I I 1 1 1 ' 1 ......- // s , oi DOWNTOWN DEVELOPMENT OFFICE CITY OF TALLAHASSEE HISTORIC PROPERTY GRANT AND REVOLVING LOAN APPLICATION 1. Property Owner/Applicant Name: 2. Applicant Mailing Address: 3. Project Address: 4. Property Tax I.D. Number: 5. Years of Ownership of Project Property: 6. Present Employer and Address: 7. Current Position or Title: 8. Date of Hire: 9. Daytime.Telephone: 10. Gross Salary*: $ 11. Other Income*: 12. Please describe the purpose for the funding request (use additional sheets): *Not required for residential type projects. Page 1 of 2 (03/28/96) City Hall•300 South Adams Street•Tallahassee,Florida 32301 Telephone(904) 891-8625•Fax (904) 891-8733 •TDD 1-800-955-8771 13. Requested Funding Amount: $ Grant Loan* TOTAL 14. Provide justification for the amount and type of funding requested in Item #12. (For residential type projects, a letter regarding the condition of the property should be obtained from the Historic Tallahassee Preservation Board and attached to the application to support the narrative response to . this question; for all other types of projects, the narrative for this question should address the financial capacity of the project and reference the operating pro formas required in question #15.) 15. Please identify other sources of funding requested or planned for this project and the results of other funding requests: . . 16. Please provide a five (5) year operating pro forma of the project subsequent to restoration.** • 17. Please provide a location map and quotes from three (3) licensed contractors to support the funding request. 18. If you are a business (including non-profit entity), please provide compiled financial statements for the past three (3) years and a listing of the names, addresses, and phone numbers of the board of directors or partners. 19. Complete the attached Application for Certificate of Appropriateness which will initiate review of the project by the Tallahassee-Leon County Architectural Review Board per City of Tallahassee Ordinance No. 93-0-0025. * If the requested loan amount is $20,000 or greater for a Tier 2 or 3 type project, the project will be required to undergo an independent credit analysis by a financial institution under contract to the City. Instructions on how to accomplish this will be provided by the Downtown Development Office once the Historic Property Grant and Loan Finance Committee determines the project is eligible under the guidelines. **Not required for residential type properties. • attachment Page 2 of 2 (03/28/96) cliacrdagalhIstoriclbothapp64oc TALLAHASSEE-LEON COUNTY ARCHITECTURAL REVIEW BOARD 329 NORTH MERIDIAN STREET TALLAHASSEE, FL 32301 (904) 488-3901 APPLICATION FOR CERTIFICATE OF APPROPRIATENESS FOR REHABILITATION OF A HISTORIC PROPERTY Building Address Historic Name of Building (if any) Owner's Name Address Phone Number Applicant's Name Address Phone Number Architect/Contractor's Name Address Phone Number PLEASE INDICATE THE TYPE(S) OF WORK PLANNED: REPAIRS REHABILITATION ADDITION — NEW CONSTRUCTION DEMOLITION MOVING VARIANCE OTHER: Please describe the work to be performed. List each proposed exterior alteration to the building or property. Has the owner applied for or received any city or state historic preservation grants or loans t—i=sist with this project? I j=s, please briefly describe: Do you request of the Architectural Review Board any variances on this project? If yes, please describe and state justification: The following information is required, unless waived in writing by the Executive Secretary to the Architectural Review Board: Photo(s) (3 1/2 x 5 or larger) of existing conditions Site plan Elevation(s) Material sample(s) and/or specifications Floor plans (only for projects receiving City of Tallahassee grants and/or loans) Notification of intent to file an application must be received in writing by the Architectural Review Board at least 30 days in advance of the meeting to allow time for notification as required by the City of Tallahassee and Leon County. Completed applications must be submitted to the Architectural Review Board at least 15 days in advance of the meeting. The Architectural Review Board will act on completed applications only. The Applicant or his/her representative must attend the meeting and present his/her proposal to the Architectural Review Board. Decisions of the Architectural Review Board may be appealed to the City Commission by filing written notice with the Tallahassee-Leon County Planning Department, City Hall, Tallahassee, FL 32301, within ten (10) days of the decision. If there is no appeal or Commission action, the decision of the Architectural Review Board shall be final. as owner(s) of (Street Address or Lot/Block/Subdivision) ! =ereby authorize the filing of this application on my behalf. (Printe4:1 Name) (Signature) (Date) • Tallahassee-Leon County Architectural Review Board In accordance with local ordinance, the Tallahassee-Leon County Architectural Review Board uses the federal Secretary of the Interior's Standards for Rehabilitation to guide them in review of exterior changes to properties zoned HPO. These Standards are listed below; the applicant should take care that their project in compliance with the applicable standards. SECRETARY OF 'THE INTERIOR'S STANDARDS FOR REHABILTTATION A property shall be used for its historic purpose or be placed in a new use that requires minimal change to the defining characteristics of the building and its site and environment. The historic character of a property shall be retained and preserved. The removal of historic materials or alterations of features and spaces that characterize a property shall be avoided. Each property shall be recognized as a physical record of its time, place and use. Changes that create a false sense of historical development, such as adding conjectural features or architectural elements from other buildings, shall not be undertaken. Most properties change over time; those changes that have acquired historic significance in their own right shall be retained and preserved. Distinctive features, finishes, and construction techniques or examples of craftsmanship that characterize a historic property shall be preserved. Deteriorated historic features shall be repaired rather than replaced. Where the severity of deterioration requires replacement of a distinctive feature, the new feature shall match the old in design, color, texture, and other visual qualities and, where possible, materials. Replacement of missing features shall be substantiated by documentary, physical or pictorial evidence. Chemical or physical treatments, such as sandblasting, that cause damage to historic materials shall not be used. The surface cleaning of structures, if appropriate, shall be undertaken using the gentlest means possible. Significant archaeological resources affected by a project shall be protected and preserved. If such resources must be disturbed, mitigation measures shall be undertaken. New additions, exterior alterations, or related new construction shall not destroy historic materials that characterize the property. The new work shall be differentiated from the old and shall be compatible with the massing, size, scale, and architectural features to protect the historic integrity of the property and its environment. New additions and adjacent or related new construction shall be undertaken in such a manner that if removed in the future, the essential form and integrity of the historic property and environment would be unimpaired. 3-80 ,ortic • • •r> N State Historical Society of Iowa The Historical Division of the Department of Cultural Affairs PRIVATE SECTOR FUNDING COMMON QUESTIONS & FUNDRAISING TIPS • 11-10-92 E; 402 Iowa Avenue E Capitol Complex 0 Montauk Iowa City, Iowa 52240 Des Moines, Iowa 50319 Box 372 (11u) 11;1.1u16 (R1;) isirroit ClormontIvi FREQUENTLY ASKED QUESTIONS ABOUT FOUNDATION GRANTSEEKING (Excerpts from the Annual Register of Grant Support & The Foundation Center User-Friendly Guide) QUESTION 1: DO DIFFERENCES EXIST AMONG PRIVATE FUNDING SOURCES? There are over 24,000 grantmaking foundations in the United States. Not only do private foundations differ greatly from public funding sources, there is wide diversity among private foundations themselves. Part of the success of a grantseeker depends on understanding the various types of grant-making entities and how they differ in their objectives and grant-making • procedures. Foundations can be broken into five categories. National Foundations: National foundations are not limited to any geographic area in their grant support. They are usually quite large, with assets of $25 million or more. They include all the better-known private foundations such as The Ford Foundation, the Ully Endowment, The Rockefeller Foundation, and the Carnegie Corporation. Because national foundations may make grants anywhere in the country, it is important to remember that these foundations are usually more attracted to programs and proposals with national, or at least regional, implications. Most of the national foundations are staffed with professional grantmakers, publish their own annual reports, and often have well-defined philanthropic goals. While national foundations are large enough to fund projects of almost any size--and have been known to make grants of a million dollars or more--it should be remembered that competition for these national foundation grants is extremely fierce. The Ford Foundation, for example, will receive as many as 30,000 proposals every year and will fund only about 2,000. cial Interest Foundations: Many foundations devote their entire grant efforts to programs within a single field of interest. These special interest foundations, just as the.national foundations, often make grants without geographic limitations so long as the projects relate to the specified areas. Special interest foundations range from the Robert Wood Johnson Foundation (health) and Joseph P. Kennedy Foundation (mental retardation) to those supporting research on a single disease. Some of the larger special interest foundations employ staffs whose purpose is not only to review grants, but to stay abreast of information being gathered about that special field of interest. Potential grantseekers, then, should consider special interest foundations as a potential source of information about a given subject as well as a potential source of funds. Corporate Foundations: Most corporate foundations while "independent" are very much creatures of the corporations that found them and fund them. Corporate foundations will, therefore, often be more receptive to proposals that are in line with their corporate interest. Corporate foundations more often have made grants in the fields of education, federated giving like United Way, minority enterprises, and local social services that demonstrate a benefit to the company employees as well as the community at large. Most corporate foundations will have relatively small assets in comparison with the amount of grants. This is because once the money has moved from the corporation to the corporate foundation, it can never go back to the corporation. Usually corporations will keep only enough funds in the corporate foundation to sustain the foundation's grant efforts without harming Iii corporate financial position. 1 Family Foundations: By far the largest number of private foundations are family foundations. They range in assets from I mdreds of millions of dollars, such as those of the several Rockefeller Foundations, to a few musand dollars. The grant support pattern of family foundations is very often a personal matter. Often the family foundation will be controlled entirely by family members, and even when these members have died, the family foundation will often continue to reflect their wishes. Unlike special interest foundations family foundations seldom have set fields of interest. Grants more probably will reflect areas of current family interest rather than any recognizable pattern of traditional philanthropy. Most family foundations are small and few will have staff or guidelines for submitting proposals. A majority of family foundations limit their grants to the city or locality in which the family resides and accumulated its wealth. Unlike national foundations, family foundations are best approached as if they were individual donors, not private foundations. Community Foundations: Community foundations are not really foundations at all but, rather, public charities. Community foundations maintain this favored tax status by collecting money from the public and directing grants within the community for which they are named. Because community foundations are not private foundations, they have no minimum giving requirements and pay no excise taxes on their net investment income. It is easy to distinguish a community foundation, for it will always be named for the community it serves. QUESTION 2: WHERE DO I BEGIN? —iere your research begins depends on the type of information you need. The more clearly you can define your own requirements, the more quickly you can locate the information you need. Begin by compiling a list of foundations that would be most likely to support your organization or your project. Select the best candidates for funding by examining their descriptive profiles and recent giving histories. Unfortunately, there is no list of grants available for a project exactly like yours. However, foundations that have already supported projects similar to yours, or ones in your geographic area should definitely go on your prospect list. Funding executives today report that they are swamped with grant proposals from people who have little or no idea what the funder is all about. Your research will help you focus on those foundations whose funding priorities most closely match your project. Target the appropriate funders and forget about the rest. The next step is to research carefully and exhaustively the funders you've selected. Remember, research is hard work; it takes time but with persistence it almost always pays off. Many foundations require that a proposal be submitted. Each proposal you develop must be unique and accompanied by a cover letter that reflects what you have learned about the foundation in question. • 2 - QUESTION 3: HOW DO I FIND OUT ABOUT GRANTS FOR MY SUBJECT? There are five major avenues of approach that can help you examine grants or locate potential linors by subject: a. directories of foundations b. specialized funding guides c. indexes of recent grants d. materials supplied by funders themselves e. computer searches • QUESTION 4: HOW DO I FIND OUT ABOUT GRANTMAKERS IN MY REGION OR STATE? Many grantmakers limit their giving to their own geographic area. If you are interested in foundations located in your own area, it might be advisable to find out if a directory of funders in your city, state, or region is available (Des Moines Public Library has Iowa IRS listing). The Foundation Directory (covering foundations with assets of $1 million or more) is arranged by - state and within each state alphabetically by foundation name. The Foundation Directory, Part 2 • provides the same type of access to smaller foundations. In the geographic and subject indexes bold type indicates foundations that give on a regional or national basis, while regular type indicated foundations whose giving is limited to their own city or state. 4u e National Data Book of Foundations includes more than 33,000 active grantmaking foundations. I organized by state. The National Data Book provides brief descriptions of each foundation. I- ndation funding is not your only potential source of local support. Corporate funding and in-kind support may be appropriate for your organization, especially if your project can enhance a company's image in the community where it operates. Almost all corporate giving programs have geographic restrictions and are limited to areas where companies conduct their business. For information on government funding, directories and periodicals such as the Catalog of Federal Domestic Assistance and the Federal Register may be available at your local public or university library. Since state and municipal grants are often difficult to track, find out what kinds of . information local government officials and Congressional offices can supply. Also, in Iowa you might contact the Attorney General's office and your Regional Planning Agency or Councils of Governments (COGs) office to see what they have to offer by way of directories for federal funding. Newspapers and magazines, especially those in the field of philanthropy and non-profit management, may list recent grants and note current funding trends. Your local library may have specialized bibliographies or user guides that can help you identify local funders. Finally, networking with other grantseekers and speaking with your organization's own board members and volunteers may provide valuable contacts and the names of potential local funders. 3 • . QUESTION 5: WHAT TYPES OF ORGANIZATIONS DO GRANTMAKERS FUND AND - WHAT ARE THE DIFFERENT TYPES OF GRANTS AWARDED? —antmakers typically fund non-profit organizations that qualify for "public charity" status under section 501(c)(3) of the Internal Revenue Code. These are organizations whose purposes are primarily charitable, educational, scientific, religious, literary, or cultural. They must not use their income to benefit shareholders or certain related individuals and they are restricted in the extent to which they may influence legislation or political campaigns. Grants from foundations and corporations are usually not available to for-profit ventures. • Of the 57,443 grants listed in the 20th edition of The Foundation Grants Index 11,371, or 19.8%, represent some "continuing support" defined as renewal grants to the same recipient for the same purpose, project, or type of support. Some foundations tend to repeat the same grants year after year. Others will make a commitment for several years, over a three-year period, for example. Occasionally funders will temporarily restrict the number of new proposals they accept because of ongoing commitments. Some foundations provide start-up funding (seed money) but expect the recipient organization to develop its own long-term funding; others provide matching grants. Funders do not want grant recipients entirely dependent on them for an indefinite period of time. Funders will look for projects that fall within the funder's giving guidelines. Many will want to verify the tax-exempt status of your organization early on. The subject field, geographic or other focus, and the type of support must match the funder's interests. Most grantmakers also look for manageable projects for which a real need can be demonstrated. They may seek evidence that an organization is well-known in its community and that it complements rather than competes with n ti - ilar local projects. A history of funding by other sources, whether governmental or private, also 1ps establish credibility. Evidence of sound fiscal management and a realistic budget can also ntribute greatly to the strength of your proposal. - QUESTION 6: NOW THAT I KNOW A LITTLE BIT ABOUT GRANTSEEKING, WHAT SHOULD I DO NEXT? Define your funding needs and focus on them. Getting a grant can depend on your status as an individual or non-profit organization. . Attend seminars and workshops to develop fundraising skills. Read books that give tips about fundraising and grantwriting. Visit regional or state libraries that serve as repositories for The Foundation Center's collections. These libraries often have videotaped orientations and slide shows for viewing on the premises. In fact, explore all of the repositories' resources such as books, periodicals, videotapes, and computerized databases. Network by talking to others who have been successful in winning grants for their organizations. 4 • QUESTION 7: WHAT ARE MY CHANCES OF FINDING A FUNDER? Researching funders that will turn out to be good prospects takes time. Successful fundraisers Ind many hours conducting research on potential funders. Be realistic in your expectations from the outset. Foundations and other grantmakers cannot meet all of your financial needs. The vast majority of the money given to non-profit organizations is actually donated by individuals. Foundations and corporations combined currently provide only about 11% of all philanthropic gifts. But carefully selected, they can make up an important part of your support. • Do not make the mistake of focusing all your efforts on one "ideal" funder. Even the most experienced proposal writers receive many more letters of rejection than they do grants. On the other hand, do not compile a list of several hundred "pie-in-the-sky" possibilities and send off a mass mailing of your proposal. Approaching a funder for support is a highly individualized process that should be conducted in a businesslike manner. • • 5 GRANTSEEKING BASICS (Excerpts from The Foundation Center's Foundation Fundamentals) ery year, grantmakers receive thousands of requests for funding, and mpetition for foundation resources grows increasingly intense. Many proposals fail because there are simply not enough funds to go around; others are denied because the application clearly falls outside the funder's interests. Applications may also fail because they are poorly prepared and do not reflect a careful analysis of the applicant organization's needs, its credibility , or its capacity to carry out the project as proposed. The key to any successful fundraising effort is homework. This begins with a careful analysis of your organization, a clear definition of where it is going, and a concrete plan for how you are going to get there. Once you have completed such self-assessment, you are ready to begin tracking those foundations whose giving records or stated objectives are directly related to your organization's goals and which are most likely to provide the support you need. All of this takes time. There are a few basic facts you need at your fingertips before you can plot your best approach to finding appropriate funding sources. a. See that your organization is structured so that it may receive foundation and corporate grants. Most foundations limit their giving to organizations that have received 501(c)(3) tax-exempt status from the IRS. b. Be able to transmit verbally and in writing a clear picture of the purpose of the project for which you are seeking support. c. Delineate the type of support you need (e.g. general operating, capital, seed money). d. Develop a formal budget indicating the precise amount of money you hope to raise and how it will be spent. Once you have analyzed your own organization thoroughly and pinpointed your funding needs, you can begin to develop your strategy for identifying funders that might be interested in your proposal. You can use a variety of approaches to uncover appropriate funding sources, but all of them boil down to three basic steps. Step One: Develop a Broad Prospect List The first step in funding research is to identify foundations and corporate grant-makers that have indicated in their statements of purpose or by recent grantmaking activities an interest in funding programs or organizations similar to your own. In analyzing your organization and its funding needs, you will be looking at subject fields in which your group is active, the geographic area and the population groups you serve, and the type and amount of grant support you need. There are three basic strategies you can use to develop a broad list of funding prospects. a. The subject approach identifies funders that have expressed an interest in programs in. your specific subject field. 6 b. The geographic approach identifies grantmakers that fund programs in a specific city, state, or region. c. The types of support approach identifies foundations that provide specific types of support to nonprofit organization, such as construction or renovation, research, endowment money, program-related investments, and so on. It is recommended that grantseekers conduct both a subject search to identify funders with an interest in their field and a geographic search to pinpoint local grantmakers likely to support them because of the service they provide to the funder's home community. During this initial phase of your research, you will want to focus on certain basic facts about the funders which are uncovered. While you may wish to develop your own prospect worksheet, the contents should include the following elements: name, city and state location, subject and geographic focus of grantmaking activities, andy stated restrictions or limitations, the size and type of grants typically awarded, and application procedures. Step Two: Refine Your List Once you have developed a broad list of funding prospects, you need to narrow it down to include only those grantmakers that are of most interest and therefore require further research. You should eliminate funders on your list that: a. Cannot fund projects in your geographic location, even though they may have an interest in your subject field. b. Do not fund projects in your subject area, even though they are located in your community or they provide the type of support you seek c. Cannot provide the type of support you need (e.g. do not fund general operating expenses or endowment campaigns) Step Three: Find Your Most Likely Prospects The final phase of your research will focus on identifying which of your funding prospects seem most likely to consider your proposal favorably. During this final stage of your research, you will be gathering information on the funders staff and trustees, its current financial status, its application procedures, and its most recent grantmaking activities. Background information on the foundation's donor or sponsoring company, financial and institutional history, current guidelines, and future plans will not only help you to eliminate projects that are unlikely to provide funding for your proposal but will also help you to present a more convincing proposal to those you select as final candidates to receive your request for funding. 7 • As you work your way through each of the three approaches for identifying potential funding sources, you gather names of grantmakers that, on the basis of at least initial evidence, appear to have an interest in some aspect of your project, and you eliminate those that on closer examination unlikely to consider your proposal favorably. Now you need to gather the most current information on those you consider to represent your best bets for funding. You will want to note the finder's address, staff, officers and trustees, assets, gifts received, application procedures, and most importantly, actual grants awarded in a recent time period. As you assemble these facts, you will be looking for answers to the following questions. a. Has the funder demonstrated a real commitment to funding in your subject field? b. Does it seem likely the funder will make grants to recipients in your geographic location? c. Does the amount of money you are requesting fit within the funder's typical grant range? d. Does the funder have a policy prohibiting grants for the type of support you are requesting? e. Does the funder like to make grants to cover the full costs of a project, or does it favor projects where other funding sources help share the burden? - f. For what period of time does the funder generally make grants? g. What types of organizations does the funder tend to support? h. Does the funder have application deadlines, or does it review proposals continuously? i. Do you or does anyone on your board know someone connected with potential funders? 8 FOUNDATION FUNDAMENTALS FOR NON-PROFIT ORGANIZATIONS (THE FOUNDA770N CENTER VIDEO) • Organizations must realize that fundraising is a competitive process. Receiving a grant is the result of a well-written and well-targeted proposal. A well-targeted proposal is the result of a serious research effort combined with an understanding of the fundraising process. Organizations receive grants when they find a foundation with interests that match their own. The more you know about a foundation and about your own goals, the more successful you will be in foundation fundraising. Steps to Consider 1. Examine your own organization. Consider needs, cost, and outcome. 2. Ask the question--is foundation fundraising the right way to go or would government or individual funding be more appropriate. 3. Do research using a three-pronged approach. Match foundations with your own by examining subject, location, and type of support. Study giving patterns of foundations. 4. Create a prospect list, refine the list, and add or delete as necessary. J. Write a proposal using 8 key elements: • a. begin with a summary b. follow with an introduction c. state the problem d. outline goals & objectives e. describe the methodology f. describe how success will be measured g• address future funding h. include a budget 6. Arm yourself with knowledge. 7. Be determined and persistent. 8. Consider a grant as an investment. • 9 PRESERVATION • • information One in a series of Historic Preservation Information Booklets ,? . The Economics of , . • ...„.. .. .. ,. ,-,,,i..t.,..,..,:- .-: - . .,....r.':. - Rehabilitation .. ,..7,,,,,,-. .,...!:.-:k.,- -,_...,, .„5----;...-- he arguments he arguments for historic preserva- --t--- . -.1 . -,t- ,k.,.. -*•..7,44,:.7-',::; ,:t. -..:::-3.‘i,,-.:-74-2.,' ,i..,„,-",,,,,,:z,i -fiX,P1'da' ,ese, ,,,--e.tei:-:,- ;:irk:t.,,;:..i - . :ri,_. Y'-:,r, ' — ---- tion are many. They include architec- I:. osaal , - - '-'' ki e .._::K E-"' tural distinction, social continuity, -,...-- 7) - G C ---)---....,,......._ „„.., cultural context, urban planning, his __,. .1.4__________7_______ __ C .--' ,-- .0C. COCCC C4T-- tori cal consciousness, environmental protection and aesthetic excellence. -,.."- .------ • ... ...,--... .....=„----- - -- -•,` All of these arguments are valid ones -;--. __--_---_____—__ - and should continue to be made. But ....z NI .... ---,--__----.7_,-=z---_-:-1-.4s.... __----:_- _ ---______---7-_-=___*-:;„:: increasingly preservationists and their ----..t..,- allies are called upon to make an eco- ...= L../ i 1 ----- . 1 ,nomic case for preservation. And i. 4 ..,---------1 I .— _ those insisting on an economic justifi- - -.L.s I --- x-A.._ -1--;z* cation for rehabilitation are the very -— --- _ --.:: ..÷:-..... ______ _ ones most empowered to make broad - .....,.....„._-_, -..=_ --scale preservation possible: bankers, --___ ":-.....--= — ---.:--- -...-.1:_--=._--, building owners, elected officials, V oiggimisminif• — ...- --:-.•••=••.- _____------; developers, local government person- _ a nel, investors, and taxpayers. /.. ---...=_._- -- . - -Preservationists responses responses to this f l --7-;-,. demand for economic rationale have .r: been occasionally well reasoned,fully :. 4 _ _ documented,and effectively pre- r -6: sented. More often, however, the eco- I nomic side of preservation has been -$.:- 'E. OPENING . __ i .-._.- tacked on to a litany of other justifica- fin S 411 .: ,411. .... _ tions or ignored altogether. At times ' , , diVEN i 1 preservationists have claimed that i, . . i "rehabilitation saves from 25 percent z. I ' .. -, _-.- -: - i .. II = 111 - t:-- - ,- , i 4 This publication was made possible : - -by the generous support of The Andy -- 11111 %. Warhol Foundation for the Visual Arts. -----.... ii,,..........-. National Trust for Historic Preservation W to 33 percent over comparable new Amortization-as tenants'rents An investment—any investment— construction." At the same time pleas reduce the outstanding indebtedness will be measured based on nine were being made before Congress for of the mortgage, the equity in the investment standards. No investment historic rehabilitation tax credits property is increased. The reduction will get an A+ in all nine categories. because of the high cost of historic of debt has the same effect as the But any investment must prove attra= preservation. These seeming contra- increase in value—greater net worth rive on a composite basis if investors dictions have called into question for the owner. will voluntarily commit their money to many of the economically based argu- that alternative. The nine tests are: ments preservationists have made. Tax Savings-the retention of dollars that would have otherwise been paid High Income- How many total dol- In fact the economic benefits of reha- in taxes(primarily federal, but also lars will the asset generate in relation bilitation are both demonstrable and state)through the reduction in taxable to the dollars that were invested? important enough to earn a favored income. Tax savings come about place along with the more ephemeral through tax deductions, particularly Dependable Income- How certain pillars upon which the preservation the deductibility of a depreciation can the investor be that the projected movement is built. The purpose of allowance and tax credits. Depreci- returns will, in fact, be realized? this Information booklet is to assist ation is essentially a bookkeeping preservationists in making the eco- entry which allows taxable income to Timing of Return-When will the nomic benefit argument. be reduced without a corresponding return be received? In real estate, expenditure of cash. A tax credit is a time really is money. dollar-for-dollar offset of taxes The Economics of Real Estate payable. The higher the tax rate,the Capital Appreciation-What is the more important the tax savings corn- likelihood that the value of the asset Regardless of whatever other attrib- ponent of the total return will be. will increase during the ownership utes it might have,a historic building period? is,ultimately,real estate. Its economic Which of these components of the capacity, measures of return,value as total return on real estate is most Minimum Risk of Loss-Is there a an asset,and attractiveness as an important will vary from time to time chance that the value of the asset will investment are all going to be calcu- and from investor to investor. Among decline or disappear during the own- lated by investors, bankers,and devel- the variables will be: priorities of the ership period? opers in the same fashion as any other investor;current tax rates;current parcel of real estate. Before discussing interest rates;strength of the local Favorable Tax Treatment- Does this the economics of rehabilitation,there- real estate market; investment alter- particular investment qualify for spe- fore, it is necessary to first understand natives;investor confidence;age,con- cial treatment under the tax code that the economics of real estate. dition,and location of the property; would allow the investor to save tax and numerous other factors. The dollars? Real estate is a long-term capital asset. point is that a rehabilitation project Its purpose is to generate net income must compete favorably on some Leveragability- Is this an asset to its owner over an extended period combination of these criteria in order against which money can be bor- of possession. In real estate(unlike to attract private capital. rowed on a sufficiently favorable rate, most other investment alternatives) terms,and conditions so that the rate the return to the owner is anticipated A potential rehabilitation project does of return on the investor's dollars(the to come from four different sources: not just compete with other real equity)will be enhanced? estate alternatives. Any investment Cash-the annual net proceeds to the must compete with every other Ease of Management-What is the owner after collecting the rents, pay- choice available to the investor— intensity of management required in ing the bills of the building(taxes, stocks, bonds, insurance policies, order to prudently maintain this asset? insurance, management, etc.)and Treasury bills,corporate notes, gold, paying the bills of the financing oil futures, tax-exempt municipal Liquidity - How quickly and easily (principal and interest payments on securities,and literally thousands of can this investment be converted the mortgage). others. It is only when a rehabilita- into cash? tion project can advantageously corn- Appreciation-the ability to sell the Pete with this entire range of options A passbook savings account,for exam- property for an amount greater than that it will attract private capital. pie,would probably get good ratings was paid for the property, for secure income,timing, minimum risk of loss, liquidity, and ease of El management; but poor ratings on high income, operating expenses, and bit as real)COM associated with a income,capital appreciation, favorable financing. Preservationists must be building project. Soft costs might tax treatment,and leveragability. able to compare the receipts and include architect's fees,appraisals, expenditures for rehabilitation versus construction period interest,legal IBM stock, on the other hand, might new construction within these fees, etc. For both new construction be seen as good for appreciation categories, and rehabilitation projects, hard costs potential and liquidity; fair for high can be expected to be 65 percent to income, secure income, minimum Capital Costs 80 percent of the total and soft costs risk of loss, timing, leveragability,and 20 percent to 35 percent. ease of management;and poor for There are three types of capital costs: favorable tax treatment. acquisition, demolition, and rehabili- Operating Income tation or new construction. To a large extent the justification for The gross revenues that a particular the historic rehabilitation tax credits For a rehabilitation project, acquisi- property will generate are obviously a is to compensate that particular type tion will include the land and the crucial variable in the investment of investment in the favorable tax building to be rehabilitated. For new decision and will be the starting point treatment category since it is often in a construction,acquisition might for analysis. In addition to the disadvantageous position in several of include land only(i.e. building on a amount of rent, however, there are the others. This issue will be clear site which will be discussed other important factors regarding the returned to later. Table 1 allows a later)or land and a building to be operating income. direct comparison between a pro- removed, necessitating demolition posed rehabilitation project and a costs as well. The quality of tenant will be a consid- new construction project based on eration. Quality in this instance these investment standards. In both instances there will be means the tenant's ability to pay the construction costs for either new rent, i.e. his or her financial capacity. construction or rehabilitation. Rental income from a lease with, for Dollars In/Dollars Out Construction costs will include hard example, General Motors or the U.S. costs and soft costs. Hard COM are Government,would be preferable to When consideration is being given those that would usually be part of anticipated receipts from a start-up to the investment in a particular real the general contractor's responsibili- business with no credit history or estate opportunity, the prospective ties such as labor and materials for operating experience. investor will consider the dollars plumbing,painting, electrical work, involved in the venture in four broad concrete, roofing, etc. Soft costs Durability of income stream refers CO categories: capital costs, operating include the less tangible(but every the time over which stable or increas- ing rental receipts can reliably be Table 1 Anvestment Standards Rehabilitation Project New Construction Project High Income Dependable Income Timing of Return Capital Appreciation Minimum Risk of Loss Favorable Tax Treatment Leveragability Ease of Management Liquidity anticipated. A 10-year lease with Financing to depositors, other banks,and the renewal options, for example,would Federal Reserve for the right to hold ordinarily be superior to a month-to- Real estate is an extremely capital and re-lend their money. This is month tenancy. intensive investment. The costs of called the institution's cost of funds. financing are treated separately from To that cost of funds is added the Vacancy is a cost of doing business in the operating costs since they are operational expenses for the bank real estate—all buildings will periodi- costs of the investment as opposed to itself. It is from this point that an cally have vacant space. From a real costs of the building. The building interest rate to a borrower is estab- estate analyst's point of view the task costs (taxes, insurance, management, lished. In addition to the cost of will be to estimate the stabilized, etc.)will largely be the same regard- funds and operational costs there long-term rate of property vacancy, less of who the individual owner of must be 1)profit for the bank,and An anticipated vacancy allowance of the property might be. Furthermore, 2)compensation for the risk the par- five percent, for example,versus ten operating costs ordinarily will not ticular loan represents. The higher percent could well make the differ- swing widely with the ups and downs the perceived risk of the loan,the ence between an investment that of the national economy. The higher the interest rate is likely to be. made sense and one that did not. amount, cost, term, and availability of financing, however. may vary widely Loan term is the period of time over Net to gross ratio is the relationship from one type of investor to another which the loan is to be repaid. For between the total space in a building and are extremely sensitive to eco- owner-occupied residential properties and that from which rent can be col- nomic forces that have little to do a loan term of 25 or 30 years is com- lected. Sometimes this is referred to with the local economy. mon. It is rare for commercial or as "rentable" space versus "gross" investment properties to obtain loan space. Since economic value will be a Lenders want to be in the banking terms of that length, particularly on a reflection of the income generated, business, not the real estate business, fixed interest rate basis(i.e. a con- the higher the percentage of rentable Unlike the portrayals in vaudeville stant interest rate throughout the life space,all other things being equal, melodramas,the last thing a banker of the loan). More often commercial the higher the value. The "all things wants to do is foreclose on a property. real estate loans are made either with being equal" disclaimer is a signifi- A foreclosure represents a failure on an interest rate that is adjustable over cant one, however,and will be dis- both the part of the borrower and the the life of the loan or for a much cussed later. lender. Mortgage lenders have three shorter loan term (3,5, or 7 years, for priorities: example). A hybrid situation is when Operating Expenses the loan term is relatively short,say 5 • make a loan on which there is a years, but the loan payments are The ownership of real estate entails high degree of probability that based on a longer amortization period, spending a significant portion of all of repayment will be made as agreed; perhaps 25 years. At the end of the the rents received on the costs of • price that loan at a rate that reflects five years the entire unpaid balance operating the building. These the risk the loan involves; and, of the loan is due and payable. The expenses fall into the categories of • apply loan underwriting standards borrower at that point will have to a) fixed expenses(primarily real estate that mitigate the risks the loan refinance the property(perhaps with taxes and insurance),variable represents. same lender), b)sell the property and expenses (utilities, property manage- apply the proceeds to pay off the ment, repairs and maintenance,clean- While lending institutions are in the loan, or c)Contribute additional cash ing, etc.) leasing expenses risk-taking business, they have a to pay off the mortgage balance. (advertising,commissions,tenant series of underwriting tools to help Because increased time means more alterations)and replacement reserves balance the risk/reward relationship. uncertainty, the shorter the loan term for those items(carpets, appliances, Four of these variables are nearly the less risk for the lender. roofing) that have a useful life less always part of the loan-making deci- than the building itself. The percent- sion process: interest rate, term, loan- These loan variables create a Catch-22 age that these expenses consume of to-value ratio,and debt coverage ratio, for both the lender and the borrower, the total rents collected is called the however. Both a higher interest rate operating expense ratio. Again,all Interest rate is the annual "price" of and shorter loan term increase the things being equal, the lower the the money outstanding on a loan,e.g. amount of the monthly payment. operating expense ratio, the more 8 percent, 12 percent, 18 percent. The higher the monthly payment the attractive the investment. Money is a commodity. The bank less margin there is for the natural ups uses as a base for the price of that and downs of the marketplace and, commodity the amount it has to pay consequently,the greater the possibil- icy for a loan default. Both the bor- how be made up by the investor, the price at which a typical buyer rower and the lender need to carefully requiring a lower loan-to-value ratio would buy and a typical seller would consider the balance between the risk and a higher debt coverage ratio sell,in an open and competitive mar- mitigation factors of rate and term on necessitates a greater cash contribu- ketplace with neither buyer nor seller one hand and the potential adverse tion on the part of the borrower. being under duress and sufficient effect of a higher fixed mortgage pay- time being allowed for exposure of ment on the other. Finally, it is important to understand the property to the market. And the that regulated lenders (banks, savings price that a typical buyer would pay is Loan-to-value ratio is the portion of and loans, insurance companies, etc.) a direct outgrowth of the net dollars the entire value of the property that are allowed to make loans against the property will generate. Preserva- the banker is willing to loan. In the value of a property, not its cost. tionists are often heard to say, "but if owner-occupied residential real estate This distinction is an important one you had to replace that building today the loan-to-value ratio is often 80 per- which will be discussed in the follow- it would cost five times that amount!" cent and sometimes as high as 90. ing section. True, no doubt. But unless the typi- For commercial real estate loans the cal buyer in the marketplace is willing acceptable loan to value ratio will be to pay more (for quality of materials, highly dependent on the current cost/Price/Value/Equity quality of workmanship,excellence of banking and real estate market envi- design) those elements do not add ronment. At times 75 or 80 percent Finally, before considering specific economic value. Again,that is not to loan-to-value ratio would not be comparisons between rehabilitation say those elements do not have value; unusual;at other times a conventional and new construction, it is necessary but rather CO suggest that demonstrat- lender may be willing to lend only 60 to clarify some often confusing real ing non-economic value is a different or 65 percent of the project's value, estate terms:cost, price,value,and sort of argument for preservationists and occasionally lenders won't be equity. These are interrelated terms to make. interested in real estate loans at all. but they are not synonymous! Price The lower the loan-to-value ratio,the is a historical event. "Mary Johnson Ultimately the question of economic lower the risk to the lender. paid Tom Smith$100,000 for the value comes from the decisions of the building at 114 Main Street." That marketplace. Are tenants willing to Debt coverage ratio is the relationship price may or may not reflect either pay more for excellence in design, between a property's net operating the cost of reproducing that structure materials and workmanship so often income (rents received minus operat- or its value in the marketplace. found in older buildings? Yes. Are ing expenses)and the principal and they willing to pay sufficiently more interest payment(debt service) to the Cost is the sum of the dollars so that the value is equal to the cost? bank. For example a property with a expended from the idea for a project Often not. net operating income (NOI)of until it is completed and ready for $15,000 per year and annual mortgage occupancy. Costs would include It is a very common situation in reha- payments totaling$10,000 would acquisition,demolition if required, bilitation projects that the cost have a debt coverage ratio of 1.50 and both hard and soft COM in con- exceeds the economic value. In real ($15,000÷$10,000). A property with struction. estate jargon the difference between an NOI of$20,000 and debt service Cost and value is called the gap. The of$16,000 has a debt coverage ratio of Value is perhaps the trickiest of the economic rationale for virtually every 1.25 ($20,000÷$16,000). In times of words. Value has a multitude of preservation incentive—federal,state normal lending most commercial meanings, many of which are not and local—is to help close that gap. property loans will have a debt cover- quantifiable in dollars and cents. The justification for these incentives age ratio of between 1.15 and 1.50. Cultural value, architectural value, is that there is value in both economic The higher the debt coverage ratio heritage value,community value,aes- and non-economic terms that the the more margin for error there is thetic value,even sentimental value public receives in the long run between the projected net income are all real values that can be legiti- through historic preservation but may from the property and the amount mately asserted by preservationists. not be obtained by the property needed to service the loan. They just aren't "values" which can developer in the short run. easily be quantified on a cash basis— A lower loan-to-value ratio and a they needn't be. But when preserva- The last of these prerequisite real higher debt coverage ratio both serve tionists are expostulating the narrow estate vocabulary words is equity. to reduce the risk to the lender, issue of preservation economics, it is Equity has two,sometimes different, Since any money the project requires necessary to understand and use the meanings in real estate. To a banker that cannot be borrowed must some- definition of economic value. Value is equity has a very specific meaning—it 11 is the difference between the value of Utility of Space to Use-Does the Other Tenants-Who are the other a property and its mortgage encum- space fit the needs of the tenant? A tenants in the building? Will they brance. Thus a property that has a retail tenant needs sidewalk window help or hurt the tenant's business? market value of$100,000 and a mort- exposure, a computer firm stringent What products or services do the gage of$75,000 will have equity of climate controls, a stockbrokerage other tenants provide and what is $25,000 independent of the cost of heavy duty telephone service, the public image they present? the property. To a banker equity is the difference between value and Location-Where is the building in Tenant Expenditures Required- debt, not the difference between cost relation to the firm's clients? Its corn- How much will the tenant have to and debt. As was noted above, a bank petitors? Its suppliers? What is the spend on improvements in the build- may only lend against value not proximity to public transportation, ing before the space is ready to be against cost. An investor, however, parking, day care? Is affordable hous- occupied? will define equity as the amount of ing nearby for employees,suitable the cash he or she has put into the housing for executives? What is the Incentives-What bonus is the land- property. When an investor has an distance to restaurants, office supply lord prepared to provide? Several expectation of a certain rate of return stores, printing companies,city hall? months of free rent? A tenant finish on equity(a subject that will be dis- allowance? Equity participation in cussed later), he or she is referring to Quality of Space-Different kinds of the building? the cash to be received as a percent- businesses have drastically different age of the cash that has been requirements for building quality. Amenities-Beyond the space itself invested. In other words the investor Typically tenants will pay for the level what does the building provide? looks at equity on a cost basis and a of quality their business needs. Only Parking? Private restrooms? banker looks at equity on a value the highest end tenant will pay for the Excellent public spaces? Security? basis. When, as is often the case in quality they want. This presents an Common area conference room? rehabilitation projects. cost exceeds excellent opportunity for owners of Employee cafeteria? value,financing difficulties arise historic buildings, however. Because between the lender and the prospec- the quality of the materials,workman- Prestige of Building- Does the tive borrower, ship,and public space amenity in his- building reflect an image to potential tonic buildings is typically much clients appropriate to the nature of higher than that found in comparably the business? Is the business The Tenant as the priced new space,historic buildings enhanced by being located in this par- Driving Force of Value provide an opportunity for tenants to ticular building? acquire a much higher level of quality Probably the most common misunder- in their workplace environment than Pay for/Receive Ratio-Does the ten- standing of real estate is the miscon- they would otherwise be able to ant pay only for the space being occu- ception that the landlord sets the rent. afford. pied or are there charges for common Not true! While the building owner areas, public restrooms,or other space? can establish an asking price for the Lease Provisions-How long is the occupancy of a property, it is ulti- lease term? What are the renewal Condition of Space-What is(or will mately the negotiations between the provisions? What is the opportunity be)the physical condition of the landlord and the prospective tenant— to expand or contract in the amount of space upon occupancy? the actions of the marketplace—that space if necessary? Who pays for the establishes the rent level. And the utilities,the cleaning, the mainte- Price of Comparable Alternatives- value of real estate is a direct out- nance? Does the tenant have to share Based on the criteria above,at what growth of the rents tenants are willing in tax increases? Are other expenses price can competitive space be to pay. If a comparison is to be made, "passed through" to the tenant? obtained? then, between the economics of reha- bilitation versus new construction, it is Environment-What is the nature If value is ultimately created by necessary to consider the require- of the neighborhood in which the demand in the marketplace, perhaps ments of the rent payer—the tenant, building is located? What is the preservationists need to devise new Below are listed 13 tenant choice van- quality of the adjacent buildings? methods of assistance to prospective ables. They are not listed in priority Is the neighborhood safe? Will tenants in their selection of leasehold order since that will vary greatly from clients/customers want to come to location. Table 2 incorporates the en- tenant to tenant, the area? Are there adverse effects teria above into a matrix for compar- from noise, traffic,odors,visual ing criteria. The additional use for pollution, or illicit activities? this table is to help landlords deter- 111 Table 2 Tenant Selection Criteria Rehabilitated Building New Building Utility of Space -- - ---- Location Quality of Space Lease Provisions Environment Other Tenants Expenditures Required Incentives Amenities Building Prestige Pay for/Receive Ratio Condition of Space Price Alternatives Other mine why their building is not filling Myths and Realities in the MYTH#3: Because each project is up so that adjustments can be made Comparison of Rehabilitation and site specific,there is no way to know accordingly. New Construction whether or not rehabilitation will be cheaper than new construction. Notice that none of the above include, Within this framework of real estate "how much did the landlord invest in economics, it is possible to make Where is the truth in this matter? It this property?" as a criteria for what direct comparisons between the eco- is to state the obvious to say that the the tenant is willing CO pay. The ten- nomic benefits of rehabilitation and cost of any particular project is a site ant is largely indifferent to the land- the like benefits of new construction, specific variable. It is also,however, lord's predicament. And yet building Over the last 25 years vigorous argu- more than a little cowardly to avoid owners can often be heard saying, ments have been waged between the issue with that response. Certain "but I have to have$15 per square preservationists and their adversaries generalizations can be made. First it foot since I invested$100 per square over the economics of rehabilitation. is necessary to make sure that apples foot." That simply is not a significant In many cases both sides were armed and oranges are not being compared. variable to a potential tenant. more with myth than with reality. There is a considerable difference if a Below are several of these myths, comparison is being made between Value, then, is a direct outgrowth the rehabilitation of an existing build- of effective demand created by con- MYTH#1: The cost of rehabilitation ing with new construction on a clear sumers,i.e. tenants, in the market- saves 25 percent to 33 percent over site; or if the comparison is between place. To increase value the owner comparable new construction. rehabilitation and the construction of of an asset must respond to the needs a new building on that same site the customer is willing to pay to have MYTH#2: The cost of rehabilitation which would necessitate the demon- satisfied,whether in a new building or in the end is nearly always more [ion of the existing structure. a rehabilitated one. than new construction. A broad spectrum of studies have Architects, builders,engineers, devel- Assume, however, that the market been conducted by the National opers will often cite floor size and lay- does penalize this particular historic Trust, the Urban Land Institute, the out, parking,ceiling height, loading structure—that because of ceiling Department of Commerce, the docks, floor loads, mechanical systems height, hall width, and floor layout, Department of the Interior, the as reasons why the existing building is the space can generate rents of only Institute for Health Planning. and inefficient. Preservationists often $17 per square foot instead of$20 a others. Construction cost manuals deny that these are legitimate foot for a comparable new building. also provide line item by line item issues—but certainly they are. If the Does that mean the only alternative is comparisons for rehabilitation and building's proposed use requires 12- to tear the building down? No. It new construction. While any single foot ceilings and the existing building means that the investor is only war- project will have variability, there is a has 8-foot ceilings, the use and the ranted in paying$100 per square foot consistent pattern that emerges. If no building are probably incompatible, for the finished product instead of demolition is required,a major corn- That is one of the reasons why it is a $120. Construction or acquisition mercial rehabilitation will probably preservation fact of life that the most costs need to be reduced or more cost from 12 percent less to 9 percent cost effective new use for a building is favorable financing obtained, or alter- more than the cost of comparable new a use that is the same as or highly native uses considered,or public construction with the typical building similar to the use for which the build- incentives garnered, or time savings cost saving being about 4 percent. ing was constructed. Additionally,the factored in,or any one of literally use from which a building is being dozens of other variables altered to On the other hand, if new construe- adapted has a greater influence on the compensate for the difference. tion requires incurring the costs of ultimate costs than the use to which it razing an existing building,the cost is being converted. In a recent New York Times advertise- savings from rehabilitation should ment,one of the amenities being range from 3 percent to 16 percent. Most often, however, it is not the touted for a new Manhattan office While this cost savings may seem existence of an unbridgeable physical building recently was operable win- nominal, other factors can add to the constraint that supports the argument dows,an attribute often cited in the cost benefit. Furthermore,whenever of functional obsolescence, but an past by architects of modern buildings major elements of the building can be erroneously held perception in the and mechanical engineers as an exam- reused—mechanical, plumbing or mind of the architect, engineer, or pie of functional obsolescence. electrical systems,windows, roof developer. Functional obsolescence is repair instead of replacement—the not defined by this year's volume of MYTH#6: The cost of trying to retro- cost savings will increase significantly. the Architect's Standards for Current fit an existing building to meet the Construction, or the most recent edi- standards of today's tenants makes MYTH#4: It will take longer to tion of the Uniform Building Code. rehabilitation too costly to pursue. complete the project trying to reha- Functional obsolescence—the With the geometric growth in rehabil- bilitate an existing structure instead diminution of value resulting from itation activity over the years prior to of simply starting from scratch. building inefficiency—is measured by the change in the tax code there has An extensive series of analyses by the the actions of the marketplace. Do been a dramatic evolution in the cost federal government on real estate pro- users of office space pay less, for effective technology of building reha- jects revealed that rehabilitation can example,for buildings where the hall- bilitation. Windows, mechanical sys- often reduce the construction time up ways are seven feet wide instead of tems,and energy conservation to 18 percent;even more if there are ten? If not, functional obsolescence, methods have been developed to help significant regulatory hurdles to be by definition does not exist. It is arro- make rehabilitation an even more overcome. Construction time savings gant presumptuousness on the part of financially competitive alternative. mean interest savings and earlier architects, engineers,or builders to receipt of income. Additionally, it is claim a building no longer meets the MYTH#7: The net to gross ratio is often possible in rehabilitation projects demand of the marketplace if that significantly lower in old buildings, to continue to generate rents while the allegation cannot be demonstrated, making new construction a more work is going on—not generally an cost effective alternative. option with new construction. If, on the other hand, functional obso- It is undeniably true that some older lescence does exist—and that is a buildings have a lower percentage of MYTH#5: Older buildings suffer determinable condition—demolition rentable space than some new build- from functional obsolescence result- is only one of many options. More ings. It should be kept in mind, how- ing from the inefficiency of older often the solution lies not in hiring ever, that spacious public areas buildings, wrecking contractors but in finding a (lobbies, hallways, foyers)are often more creative design professional. considered a significant amenity for El which tenants may be willing to pay. older building category does not dis- period over which a building can still It can certainly be demonstrated that tinguish between buildings that have be expected to contribute to the value the highest quality(and, therefore, been rehabilitated and those that have of the entire property. But the reha- highest rent producing) buildings not. One can reasonably assume that bilitation of a structure gives birth to a seldom skimp on public spaces. older buildings in which reinvestment ,,, new economic life as well as extend- has been made are nearer still to the ing the building's physical life. There The most comprehensive analysis new building amount. is no evidence that a building having of these kinds of issues, however, is undergone a quality rehabilitation will undertaken annually by the Building MYTH#9: The floor layouts of older have a shorter remaining economic Owners and Managers Association buildings are such that they will not life than will a new building of an (BONIA). Their Experience Exchange work for large corporate tenants. equivalent quality. Report gathers detailed information on This is more of an argument made 4.000 buildings in all parts of the by an architect who wants a new MYTH#12: The cost of operating United States and Canada—buildings building commission than one based older buildings is much greater than of all ages, locations,and sizes, on demonstrable evidence. Certainly energy efficient new buildings. Among the items of data reported is not every building—old or new—will This is a myth for which the answers the percentage that rentable square be suitable for every tenant. But true, false and both of the above feet represent of gross square feet. even new buildings are not domi- would all be correct answers. In the Year after year their studies show nated by entire floor,50,000 square direct comparison between buildings that there is little,if any,difference in foot corporate tenants. 50+years old (both rehabilitated and the net to gross ratio between build- non-rehabilitated)and those built ings 0 to 9 years old and those 50 The average office tenant in a new within the last nine years, older build- years old and older. In some reports building leases around 10,000 square ings will have lower total expenses the new buildings have a 92 percent feet. Many rehabilitated historic per square foot, but the expenses will net to gross ratio and the older build- structures could accommodate a ten- represent a higher percentage of the ings 89 percent; in other years the ant of that size without difficulty. income than for new buildings. percentage for both will be identical. MYTH#10: The vacancy rate for On a stabilized basis this divergence Furthermore, a quality design profes- older buildings is much higher than comes primarily from two sources: sional with a sensitivity to historic for new buildings. utility costs and real property taxes. structures can usually find ways to In very weak markets older buildings For older buildings that have been mitigate a less desirable net to gross seem to have somewhat higher rehabilitated with attention CO ratio without diminishing the architec- vacancy levels, primarily a result of mechanical systems and energy con- tural integrity of the building. When the extraordinary incentives offered servation,there remains little differ- an architect says, "it can't be done," by the owners of unoccupied new ence in utility operating costs between find a new architect, buildings—often banks who have old and new foreclosed on a property or very des- MYTH#8: The rents that can be perate developers. There is no evi- Property taxes are another matter. obtained from even quality rehabili- dence,however,that long-term Here is an area to which preservation- tated space are much less than in a vacancy is greater in quality rehabili- ists have not paid sufficient attention new building. tated buildings than in comparable in the past. On the average the real In some markets quality rehabilitated new buildings. In fact the level of property takes for older buildings are space will command the highest rents vacancy in older buildings has been much higher as a percentage of total in the community. In most areas,how- less than that of new buildings consis- income and of net operating income ever,rehabilitated office space seems tently for the past several years of than for newer buildings. Most likely to rent for 85 percent to 90 percent of BOMA reports. this is a reflection of land being taxed the rent levels of comparable quality at its highest and best use,which new construction. Rehabilitated retail MYTH#11: The remaining eco- might be as developed to a 50-story space will range from 95 percent CO nomic life of rehabilitation projects high rise, instead of its current use. 100 percent of competitive new space. is shorter than for a new building. In the long run this discrepancy can- There is an old adage in real estate not help but encourage demolition. BON1A data indicates the average total that says, "way more buildings are income per square foot for older build- torn down than fall down." This is a The other side of this issue is the ings(50 years old +)to be around 90 result of a difference between a prop- opportunity created in many states percent of that of properties built erry's physical life and its economic through legislation freezing the tax within the last nine years. But the life. Remaining economic life is the assessment of rehabilitated historic la properties at the pre-rehabilitation to$10 per square foot for a masonry ings are an important component of level for several years. Reducing a building would not be uncommon— the total return in nearly all real estate building's expenses has the same even more in a densely developed transactions and many other invest- effect as increasing the rents:greater urban site. Demolition can easily add ments as well. The historic rehabili- net income. Knowledgeable develop- from five percent to eight percent to tation tax credits represent a crucial ers will certainly include this type of the total costs of a project. element in attracting private capital to local incentive in the overall analysis historic preservation. of a property's feasibility. Reinvestment in the building as opposed to demolition also frees up MYTH#18: There is no way of MYTH#13: The financing available the land value, knowing at the outset of a rehabilita- for rehabilitation projects is not as tion project which building compo- attractive as for new construction. MYTH#15: For a real estate deal nents are going to save money and Unfortunately this myth often has to work it is necessary to attract which are going to cost more than some validity. Overall the availability large firms as tenants. new construction. of acceptable real estate financing is In fact, nearly all of the net job Like the overall construction cost any highly volatile. Interest rates, loan-to- growth in the 1990s will be from given project will be subject to situa- value ratios, debt coverage ratios,term small firms. Of the hundreds of tional variables. Based on overall pat- of the loan,and loan conditions will business classifications, 20 of them terns of experience there is a degree all reflect a lender's perception of the will provide 40 percent of all of the of predictability in which building safety and profitability of the pro- net job growth this decade. What is components will cost relatively more posed loan. The loan underwriting the average size of those rapidly in new construction and which will standards for a rehabilitation loan will growing firms? 11 to 14 people. What cost less. have as their base the standards for is the typical space need in those new construction. Those terms and industries? About 250 square feet per Building components most likely to conditions(interest rate, loan term, person. What is the average amount be less expensive in rehabilitation etc.)will then be toughened if the of space used by an office tenant in a than new construction include foun- lender perceives the project is riskier 50+year old building? About 4,500 dation,superstructure, exterior clo- than new construction. Rarely would square feet. Space in rehabilitated sure,and roof. Building components a rehabilitation project receive more older buildings is often the ideal size most likely to be more expensive in favorable conventional financing than to meet the needs of America's fastest rehabilitation than new construction would new construction. The real growing businesses, include interior construction,convey- estate and financial industry crisis of ing, mechanical, and general condi- the 1990s is, however,a direct result MYTH#16: Most older buildings are tions. Building components most of far too much money lent to new in downtown locations,and it is the likely to be equivalent in rehabilita- construction projects. In relation to suburbs where money is being made tion and new construction include the total dollars involved in bad loans, in commercial real estate investment, substructure,electrical,and architect. troubled rehabilitation projects form Talk of the decline of the central an insignificant percentage. city notwithstanding, BONIA data MYTH#19: The only way to rehabil- consistently shows that downtown itate old buildings is to do the whole MYTH#14: When land and building property commands higher rents, thing over. You might as well build a can be purchased for the value of the has lower vacancy,and has higher new building as end up with a new land,the building has no value, net operating income than does its building sttick in an old shell. therefore there is no economic reason suburban counterpart. It is true that much preservation work not to raze the structure, represents projects where almost This is the "end of economic life" MYTH#17: Older buildings,if it every building element is replaced, argument—that the building no makes sense financially,will be reha- updated, rebuilt,or restored. The longer contributes value to the prop- bilitated with or without the historic cost comparisons following myths itl, erry. One way to free up the value of rehabilitation tax credits. 2 and 3 reflect that assumption. But the land is to demolish the building Annually the National Park Service there are also thousands of rehabilita- (see demolition for parking discussion surveys property owners who have tion projects that represent a much below). In fact, however, this may completed historic rehabilitation tax smaller scale reinvestment. In the push the cost of the land far above its credit projects in the preceding year. heyday of rehabilitation activity value. Demolition of a building is a Every year the responses are over- (before the passage of the 1986 Tax commonly underestimated cost by whelming that the projects would not Reform Act)80 percent of all historic developers and particularly by city have gone forward without the avail- rehabilitation tax credit projects were governments. A demolition cost of$5 ability of the historic rehabilitation less than$500,000,and nearly half tax credits. The point is that tax say- were less than$100,000. all While it is somewhat more difficult to is a table that will allow the preserva- K, L,M-The higher rent, lower generalize based on a lesser degree of Lion advocate CO help the developer vacancy,the additional rentable rehabilitation, certain basic cost ranges make his or her decision. square footage combine to provide can be made. Assume minor rehabili- the newer building with significantly ration would include the following: Basic Project Information. Below more total operating income interior demolition and partitioning, is information that is then reflected in ($287,776 versus$240,300). exterior walls repointed but no win- Table 3: dow replacement, existing elevators N -The percentage of income going system used, updating but not A-The existing and proposed build- to operating expenses—the operating replacement done to mechanical and ings are the same building size expense ratio—is more favorable for plumbing systems, roof cover but not (20,000 square feet). the new building(35 percent com- roof structure replaced,and a new pared with 38 percent for the rehabili- electrical system installed. Based on B-The acquisition cost($200,000) tared building). this scenario,rehabilitation can be will be the same whether or not the undertaken for 40 to 50 percent of the building is razed. 0- Even though the expense ratio is cost of building a new comparable higher, the total operating expenses structure. But much of the construc- C -Demolition costs($80,000)are are less for the rehabilitated building tion cost savings would be offset by incurred for the new construction ($91,314) than the new building the higher acquisition cost for a build- alternative, not for the rehabilitation ($100,722) because of the difference ing having so many elements already option. in total operating income. in useable condition. D-Rehabilitation represents a slight P-This leaves the new building with construction cost saving($76 per greater net operating income Comparing the Dollars and square foot versus$80,about 5 per- ($187,054)than the rehabilitated Cents of Rehabilitation cent)over new construction. building($148,986). Preservationists often get trapped in E- Rehabilitation($1,520,000)will, Q-It is at this point that the first comparing rehabilitation with new therefore, be slightly less than new "rate of return" will be calculated. It construction solely on a cost per construction ($1,600,000). is called the unleveraged investment square foot of construction basis. return because no financing has been This works to the disadvantage of the F -Total capital costs will be consid- considered. This return will be calcu- preservationists'argument in a num- erably higher for new construction lated by dividing the net operating her of ways: 1)as was seen above, ($1,880,000 versus$1,720,000). income by the total capital costs that while rehabilitation often does have been invested in the project. include some cost savings, often that G-It is anticipated that the new This return for the new building(9.95 difference alone would not make a building($17/square foot/year)will percent) is greater than for the reha- compelling argument against demoli- command a higher rent than will the bilitated building(8.66 percent). Lion; 2)there are many elements in rehabilitated older building the investment decision process other ($15/square foot/year). R-A capitalization rate expresses the than construction cost that are part of relationship between what a property the equation;3) if the preservation H -Vacancy is expected to be greater generates in net revenues(net opera- economics argument is to have credi- in the rehabilitated building(10 per- ing income)and what it is worth bility,it is necessary to quantify and cent)than in the new(8 percent). (value). The appraiser will establish a compare both alternatives; and 4) capitalization rate based on a multi- preservation incentive tools should be I -More intensive use of the space is tude of factors including: current invented and applied to mitigate spe- projected to be possible in the newer interest rates;remaining economic life cific deficiencies in the rehabilitation building,giving it a higher net to of the building; investor demands; alternative for the investor. gross ratio(92 percent in new; 89 per- quality, quantity and durability of the cent in rehabilitated). income; and others. Below is an example as might be found in many communities. A J -This will leave the rehabilitated S-The value of the newer building developer is trying to decide whether structure with less rentable square ($1,870,544)is estimated to be greater to acquire and rehabilitate an existing feet(17,800) than in the new building than that of the rehabilitated structure structure or acquire the property,raze (18,400 square feet). ($1,489,860)as a direct result of its net the existing building and erect a new operating income having been greater. one. Following the basic information m Table 3 Rehabilitation New Construction Notes A Building Size(sq.ft.) 20000 20000 . 1 CAprra.Cosrs B Acquisition Cost $200,000 $200,000 2 C Demolition Cost $0 $80,000 3 D Construction Cost(sq.ft.) $76 $80 4 E Construction Cost(total$) $1,520,000 $1,600,000 D x A --- F Total Capital Costs $1,720,000 $1,880,000 B+C+E !OPERATING INCOME . . G Rent(sq.ft.) $15.00 $17.00 5 - — H Vacancy(%) 10% 8% 6 _ - -- I Net to Gross Ratio 89% 92% 7 J Rentable Square Feet 17800 18400 A x I - - K Rent(total$) $267,000 $312,800 . . G xi --- L Vacancy($) $26,700 $25,024 H x K M Total Operating Income $240,300 $287,776 K- L :OPERATING EXPENSES ._ N Operating Expense Ratio(%) 38% ' 35% 8 O Total Operating Expenses $91,314 $100,722 Mx N . - P Net Operating Income $148,986 $187,054 . . M-0 , Q Unleveraged Investment Return 8.66% 9.95% . P+F FINANCING R Capitalization Rate 10% 10% 9 S Value Based on Appraisal $1,489,860 I $1,870,544 . P+ R -- - T Loan to Value Ratio 65% I 65% . 10 , r-- — U Available Loan $968,409 $1,215,854 . S x T • ✓ Investor Cash Required $751,591 . . $664,146 ; F-U W Loan Term (years) 20 , 25 : ' 10 X Interest Rate(%) ii% 10% 10 - Y Annual Payment on Loan $119,950 . $132,582 11 — -- Z Cash Flow $29,036 $54,472 i P-Y _ AA Investors Cash on Cash Return 3.86% 8.20% , Z+V ---- — - BB Gap Between Cost and Value $230,140 $9,456 F-S Notes on Information Sources 4: General contractor,architect,appraiser, 8: Operating history,appraiser,leasing or cost estimator agent,or standard data sources 1: Actual measurements,plans,real estate 5: Market data from appraiser,leasing 9: Appraiser or commercial broker listing information,or tax records agent,or commercial broker 10: Bank real estate loan officer or 2: Real estate listing,appraisal,or actual 6: Market data from research firm, commercial broker purchase price appraiser,or leasing agent 11:Amortization schedule,bank, 3: Demolition contractor or cost estimator 7: Actual measurements or plans or commercial broker Ell Table 4 Rehabilitation New Construction Notes CC Gap Between Cost and Value $230,140 $9,456 From BB DD Tax Credit Available(%) 20% 0% 12 EE Eligible Expenditure $1,520,000 $0 From E FF Tax Credit Available($) $304,000 $0 DD x EE GG Gap After Adjustment ($73,860) $9,456 CC- FF HH Investor Cash before Credit $751,591 $664,146 From V II Investor Cash after Credit $447,591 $664,146 HH - FF JJ Cash Flow $29,036 $54,474 From Z KK Investors Cash on Cash Return After Credit Adjustment 6.49% 8.20% JJ_II Notes on Information Sources 12: Accountant,state historic preservation office T-The bank has offered the same after the net operating income has footnotes that follow)or the formula loan-to-value ratio to either alternative been reduced by the amount neces- used to determine the number for (65 percent). sary to make the loan payments. In that particular line. this comparison the rehabilitated U - Because the bank can only lend property had a cash flow of$29,036 Almost none of the variables in this against value and not against cost, and the new building$54,472. example work in favor of the rehabili- the rehabilitated property has an tation alternative. Construction cost available loan of only$968,409 instead AA-Now a knowledgeable investor savings were only nominal; rents were of the$1,215,854 available to the will made his/her second calculation. lower;vacancy was higher; net to new building. "What annual return does the cash gross ratio was lower; loan conditions flow I get out of the project represent were less favorable for both interest V-Since whatever cannot be secured as a percentage of what I put into the rate and loan term. All this led to a from the lender will have to be pro- project?" This measurement is called gap between cost and value of vided by the borrower, the investor the investor's cash on cash return. It $230,140. At this point there would cash required is considerably higher is derived by dividing the cash flow seem to be no pressing economic for the rehab project($751,591)than by the investor cash required. The argument for rehabilitation. And it is for the new building($664,146). investor would get a 3.86 percent cash at this point that many developers on cash return from the rehabilitation would make their decision—one in W,X-Apparently the banker consid- project or 8.20 percent from the new favor of the new building. ered the rehabilitation alternative building. riskier since that property was offered But an additional level of analysis is a shorter loan term (20 years)and a BB-As was discussed above,a gap available to preservationists to make higher interest rate(11 percent) than between cost and value is not uncom- their economic case. Table 4 is was available for the new building(25 mon in rehabilitation projects. In this devised to reflect the historic rehabili- years and 10 percent respectively). example it amounts to$230,140. The tation tax credit on the investment $9,456 gap for the new building is return. An explanation of the entries Y-The annual payment on the loan such a small percentage of the project on the table is as follows: worked out to be$119,950 for the costs as to be meaningless. rehabilitation project or$132,582 for CC -The gap between cost and value the new building. These numbers are all entered on is brought forward from the earlier Table 3. The notes column indicates analysis. Z -A crucial question any investor where one might go to find that par- will want to know is "what is the cash ticular piece of information(see the flow?" Cash flow is the money left Table 5 Rehabilitation New Construction Notes W Loan Term (years) 25 20 25 10 X Interest Rate(%) 10 4-1-% 10% 10 Y Annual Payment on Loan $105,599$119,950 $132,582 11 Z Cash Flow $43,387 $29,036 $54,473 P-Y AA Investors Cash on Cash Return 5.77% 3.86% 8.20% Z÷V BB Gap Between Cost and Value $230,140 $9,456 F-S Rehabilitation New Construction Notes CC Gap Between Cost and Value $230,140 $9,456 From BB DD Tax Credit Available(%) 20% 0% 12 EE Eligible Expenditure $1,520,000 $0 From E FF Tax Credit Available($) $304,000 $0 DD x EE GG Gap After Adjustment ($73,860) $9,456 CC- FF HH Investor Cash before Credit $751,591 $664,146 From V ll Investor Cash after Credit $447,591 $664,146 HH-FF JJ Cash Flow $43,387 $29,036 $54,473 From Z KK Investors Cash on Cash Return . After Credit Adjustment 9.69%$4,49 8.20% JJ÷II DD-A 20 percent tax credit is avail- now$447,591 for the rehabilitation • Design assistance could reduce able for the rehabilitation of historic alternative as opposed to the same architectural fees and thereby cut structures. $664,146 for the new building. construction costs. • A preservation easement could be EE -It is the construction costs JJ, KK-The cash flow remains the given,the deductibility of which ($1,520,000)that constitute the eligi- same as earlier but the investors cash could increase tax savings. ble expenditure. on cash return after credit adjustment • Local property taxes could be now increases to 6.49 percent for the frozen at pre-rehabilitation levels FF -This tax credit of$304,000 for rehabilitated building versus the same causing a reduction in the operating the rehabilitation project is not avail- 8.20 percent for the new building. expense ratio and, therefore, the able at all to the new building. operating expenses. As can be seen in Table 4,the cash on • A public entity could sign a long- GG-The gap between cost and cash return after credit adjustment term lease as a major tenant and value has been reduced by the tax improved the relative attractiveness reduce the vacancy. credit available so that the gap after of the rehabilitation project, but it • A local development corporation or adjustment is less than zero—that is still falls below the return available preservation revolving fund could ini- the gap has disappeared. with the new building. Does this tially acquire the property and recon- mean that the rehabilitation project is vey it at a bargain price to a developer HH -The investor cash before credit lost? No, but it is at this point that who commits to rehabilitate it, saving is brought forward from the previous preservation incentives are needed to the developer acquisition costs. calculation of investor cash required. improve the numerical position of the • A statewide preservation organiza- transaction. Virtually every preserva- don could make a loan guarantee on II -When the tax credit is applied tion incentive can be quantified and the project, perhaps securing for the against the investor cash required, the plugged into this analysis. Here are developer a higher loan-to-value ratio. amount "left in" the project is identi- some examples: lied as the investor cash after credit, EIS • There are literally hundreds of incen- There are three caveats to the use of The Threat of Demolition tive tools that have been developed by the methodology: preservation groups and local govern- It is often the threat of demolition ments that could be used to make this ■ the numbers used above are exam- that mandates action on the part of example project a go. But as an exam- pies only and will vary widely from preservationists to encourage building pie consider only one change: con- locale to locale and from time to time. owners, developers,or(all too often) since the lender that the risk on this It is for this reason that potential city governments to consider a reha- loan is as much but no greater than sources for the equivalent information bilitation alternative. And it is nearly the risk on the new building project. locally are provided. as often that their response is, "but it If that case can be made, the interest doesn't make economic sense." rate and the loan term will be adjusted ■ Appreciation, historically a major Demolition takes place under one of accordingly. The table that was pre- component of real estate return, two conditions: either the site is pared before will be adjusted slightly is not accounted for in this analysis. under development pressure or it is to reflect these changes. (The table Appreciation, even if it is at the same not. It is important, however, for begins with Line W as there are no rate for both properties,will begin preservationists to understand the dis- changes prior to that point.) with the value of the property, not tinctions since both the arguments to its cost as the base. In the example be made for rehabilitation and the W-Loan term is lengthened to above if each property appreciated incentives(or disincentives) that will 25 years. at the rate of three percent per year constitute an appropriate response that would mean an annual growth will be somewhat different. Before X-Interest rate is reduced to 10 in value of just over$56,000 for the any response can be developed, how- percent. new building as compared to slightly ever, it is necessary to understand the less than$45,000 for the rehabilita- logic behind the arguments of the Y-This gives a new annual payment tion project. building owners. on loan of$105,599. ■ Prior to the changes in the 1986 When the site is facing development Z-A lower annual payment results in Tax Reform Act all of the tax credits pressure, the owner may want to raze a higher cash flow, now up to$43,387. that could be generated could be used the existing building(s)for one or in the first year to the extent of tax more of the following reasons: AA-More cash flow means a higher liability. That is to say if an individual 1. More intensive development of investor's cash on cash return. otherwise owed taxes of$304,000, he the site, or she could use the entire tax credit 2. tIore intensive use of the land, BB through II -No changes. in the example the year the building 3. Greater building efficiency, or was finished. Because of what is 4. More profitable use of the property. JJ -The higher cash flow entered on known as the passive activity loss lim- line Z is re-entered here. itation, for many taxpayers the tax Each of these alternatives will be credit could well be limited to$7,000 discussed in turn. KK-Now the investor's cash on cash per year under the new tax law. Time return after credit adjustment reaches is money in real estate. The longer an More intensive development of the site. 9.69 percent,almost 1.5 percent investor has to wait to use up that tax The downtown is often where a higher than the new construction credit, the less valuable it becomes. community's most extensive collec- alternative. More than any other single factor, the Lion of historic structures is located. passive activity loss limitation caused Additionally, the central business dis- So the rehabilitation project with all the precipitous decline in preservation trict within the zoning ordinance will its handicaps, still ended up as the activity after the passage of the 1986 usually permit the greatest floor area more economically attractive alterna- Tax Reform Act. ratio(FAR),and have the fewest set- tive. This analysis would not be suffi- back provisions and highest allowable cient for a final decision for a good building height of anywhere in the developer. Annual cash flow both community. Because of the intensity before and after taxes, an internal rate of development, regulatory provi- of return analysis,and other standards sions,available infrastructure, and of measurement would likely be other factors, downtown is also where applied. But this is a sufficient level the highest land value per square foot of evaluation for a layman preserva- is likely to be found. tionist to begin to make the economic argument. To understand the dollars and cents between$5,400,000 and$600,000). enues. Even if the property is taxed of real estate investors' decisions it is This is not so! In order to achieve the on its current value(and assuming an necessary to understand a basic $5,400,000 asset the developer had to effective tax rate of 1.5 percent),the premise of real estate:the value of a give up the$600,000 current asset and existing building would generate property is made up of the value of invest an additional$4,500,000. The $9,000 in tax revenues, the new the land plus the value of the building, appropriate preservationists'analysis building$81,000. Seventy-two thou- Limiting the intensity of development would be as follows: sand dollars a year in additional at a level less than permitted by code receipts looks awfully attractive to (e.g.maintaining a low-rise historic Value of the cash-strapped municipal govern- structure)may have an adverse affect new property $5,400,000 ments. on the value of the land. Less:value of the old property 600,000 The other motives for demolition A not uncommon example of a build- Less:cost of under development pressure are more ing owner's argument(abetted by the new property 4 500 000 intensive use of the land,greater analysis of the owner's appraiser) Equals:value increase building efficiency,and more prof- would be as follows: from redevelopment $ 300,000 itable use of the property. An exam- ple of more intensive use of the land Lot size- 5,000 square feet would be a 40-acre farm and outbuild- Current building size: The existing constraint does,there- ings whose proposed redevelopment ....2 stories @ 5,000 square feet each fore, represent a foregone economic is as one-half acre residential lots. Permitted building height: opportunity of$300,000. Failing to Analytically the proposal can be eval- 10 stories have the opportunity to maximize an uated using the same method found Rent on existing building: investment is an argument an owner in the example above comparing a $10/square foot/year can reasonably make; to claim that two-story building with a ten-story Rent on new building: this situation represents a loss,how- building. $18/square foot/year ever, is a spurious claim based on the Value of existing property: information above. Greater building efficiency refers to an $600,000 attempt to construct a new building Depreciated value of existing building: There are two other arguments that that has a greater net to gross ratio $400,000 are legitimate, however. First is the than does the current building. From Therefore value of land currently: potential return from appreciation a preservation economics perspective $200,000 and,as was noted above,this is usu- this issue can be addressed through Value of property with new building: ally a major component of the total the use of the tables found at the end $5,400,000 return from real estate. Even a one of this Information booklet. Construction cost of new building: percent rate of appreciation generates $4,500,000 $54,000 for the owner of the redevel- The last demolition under develop- Therefore value of land with oped property as opposed to just ment pressure argument is likely to new building. $900,000 $6,000 from the existing property be encountered when a property Adverse impact on land value owner wants to demolish the building from smaller building- $700,000 Even worse(psychologically if not so that the land can be placed to a financially)is the impact of local prop- more profitable use. An example of this The appraiser will thus argue that the erty taxation. Most jurisdictions situation is the owner of a mill build- value of the land, if vacant, is greater assess land as if it is developed to its ing applying for a demolition permit than the value of the entire property "highest and best use" (see discussion because the uses for the mill no (land plus building)as currently devel- below)regardless of whether or not it longer exist but there is a demand for oped. In fact appraisal procedures is being used in that fashion. housing. Preservationists acknowl- require an appraiser to answer the It is entirely possible, therefore, that edged long ago the fundamental question, "what is the value of the the owner is being taxed on land unfairness of demanding that both a land, if vacant,and available for devel- assessed at$900,000,even though building and its use be preserved opment at its highest and best use?" under current use the entire property when the market no longer had a only has a value of$600,000. demand for the use for which the The building owner will want to make building was built. The whole con- an additional argument: that the The city may become the developer's cept of adaptive use is a direct conse- preservation of the existing building is proponent(and the preservationists' quence of this recognition. The adversely affecting the value of the adversary)for another reason as economic benefit of adaptive use property by$4,800,000(the difference well—long-term property tax rev- Ill instead of demolition and new con- 1. The eyesore argument To prevent demolition of a building struction is demonstrable using the 2. The holding costs argument in this situation requires the judicious methods described earlier. 3. The get ready for a developer use of both carrots and sticks. Often argument a modest amount of money(in rela- Preservationists should be aware, 4. The liability argument tion to what total rehabilitation will however, that certain kinds of build- S. The parking argument entail)spent in securing and stabiliz- ings are more adaptively usable than ing such a property will not only delay others on a cost effective basis. It was The Eyesore. Few people are blessed the imagined urgency of demolition noted earlier that the most cost effec- with the ability to see beyond what but will often have an immediate and tive new use is often the same or was or what might be. Buildings positive effect on surrounding prop- highly similar to the use for which the which have received little or no main- erty values. Using only sticks, how- building was built. Without denying tenance for several years will quickly ever(such as issuing a repair or the peculiarities of any given project, conceal their past grandeur(and their demolition order)will only hasten there has been sufficient construction potential) behind layers of dirt,graf- the building's demise. experience on a variety of types of fiti, broken windows,and false "before" and "after" uses so that gen- facades. Particularly if the building is Holding Costs. There is no question eralizations can be made on relative empty this deteriorating structure pro- that the ownership of a property(land costs of adaptive use. Table 6 identi- jects the image(and sometimes the and building), particularly if the build- ties 11 combinations which are reality)of unsafety. Building inspec- ing is vacant or vastly underutilized, is arranged in order from most expen- tors,adjacent property owners,and significantly more expensive than the sive to least expensive. neighbors quickly reach the(usually ownership of a vacant lot. Insurance, erroneous)conclusion that cracked often utilities,taxes, management, stucco means falling walls and that repairs and maintenance,and security Demolition When There is loose bricks imply imminent building are all holding costs that would be No Development Pressure collapse. much cheaper if the building were razed. If the owner has made the At least from an economic perspec- This is an area of real estate econom- unalterable decision to demolish the rive, it is easy to understand a prop- ics where perception quickly building,there is no economic advan- erty owner's sense of urgency to becomes reality. A building that tage in delaying that action. demolish an existing building when seems dangerous—either physically the owner stands to profit hand- or psychologically—will have an Fewer effective preservation tools somely as a result of market-driven adverse effect not only on its own exist in the area of holding costs. development pressures. Thousands value but on the value of nearby Outright acquisition of the property is of historic buildings are razed each properties as well. Even though the an option, but most preservation year, however, that are facing no such building is an intermediate and long- groups have limited resources CO use pressure. Here are five of the most term asset, it is often rightfully seen in that regard. Deferring property tax common reasons for this "no develop- as a short-term liability. payment is possible in some jurisdic- ment pressure" demolition: tions but is probably not sufficient to make a major impact over an extended period. A prominent Table 6 Denver banker recently suggested Original Use New Use Relative Cost creating a warehousing fund to help Theater Arts Facility absorb these interim costs until renewed investment in the property School Office Building t is economically rational. This is an Public Building Commercial Facility approach that certainly merits further Public Building Commercial/Office Facility Highest consideration from preservation orga- Hotel/Mansion/Apartment Office Building nizations and local governments. Factory/Warehouse/Industrial Commercial Office Hotel/Mansion/Apartment Residential Get Ready for the Developer. From a Public Building Office Building Lowest strictly economic viewpoint there are School Residential occasionally very valid reasons for building demolition. This is not one Mill Commercial of them! As a direct result of the Mill Office Building urban renewal mentality of the 1960s m and 70s, city officials, planners, eco- development pressures)is not where It is important for preservationists to nomic development advocates and demolition for parking is most corn- recognize that the threat of demoli- others developed the absurd proposi- mon. In those high development tion when there is no development tion that, "if we just acquire that pressure areas, the buildings are too pressure is often a more challenging property and clear the site, develop- valuable to be torn down to replace a situation than when such pressure ers will queue up in the street for the person who is paying$20 per square exists. The preservation community opportunity to develop it." In thou- foot a year to accommodate a car needs to invent more tools to address sands of American communities of all which will pay$2.30 per square foot. these issues. sizes, 15, 20, and 25 years later the city is still waiting for that developer Demolition for parking is more likely to show up. If building demolition is to take place in areas suffering high Economic Reasons for necessary and sometimes it is,a qual- levels of property vacancy and declin- Rehabilitation When No ity developer can certainly see past ing real estate values. Parking is seen Demolition Threat Exists the current structure to what might as the panacea for those conditions. be built there. It never is. Not every historic building is faced with imminent demolition. Often Real estate development is a difficult Here is an example that is common in preservationists need to encourage process at best. More than any other many communities. A five story building owners to reinvest in their ingredient,flexibility must be main- building sits vacant in the heart of the property, and this argument, too, tamed as long as possible throughout downtown on a 10.000 square foot lot, needs economic components. The the process. When a building is Land in downtown is worth$20 per table found at the end of this standing(even if it is vacant), there square foot. Merchants and property Information booklet,while designed are three courses of action: do noth- owners are demanding that city hall for use in comparing rehabilitation ing,rehabilitate the building,or acquire the building and raze it for with new construction, can as easily demolish the structure. Once the parking. In fact, the building owner be used to compare the economic building is razed, two of the three is willing to sell the entire property benefits of the property as it now options have been eliminated. That is for the value of the land only. How exists versus its income generating an economically irrational act from a can the city refuse? capacity as rehabilitated. The reader real estate development perspective, might also wish to consult the publi- independent of the preservation con- Value of the land: cation Rehabilitation and Pro Forma sequences of such an action. Demo- 10,000 s.f.x$20= $200,000 Analysis published by the National lition,if necessary,can be done at any Cost of demolition: Trust's National Main Street Center time. There is no necessity to do it 50,000 s.f.x$5 = 250,000 for additional guidance in this type prior to when it is required and cer- Cost of paving&striping: of analysis. tainly not in the mistaken judgment 10,000 s.f.x$6= 60,000 that razing the structure is the lure Total costs of parking lot= $510,000 But there are additional economic that will bring the developers running. zt of parking spaces provided = 25 -30 arguments for property reinvestment Cost per space= $17,000 to$20,400 as well: Liability. Like holding costs, liability is a legitimate concern of property Even the most vociferous advocates • Reinvestment can generate tax owners, particularly owners of vacant for additional parking when asked, credits and establish a new(and buildings. The exposure to risk from "would you be willing to pay$17,000 higher) depreciation schedule. an empty building is simply greater for a parking space?" will say "no!" than from vacant land. Properly And yet this most simple of analyses • Rehabilitation can extend the securing and maintaining the building is rarely conducted in these situa- property's economic life—the period will mitigate the risk but will not dons. Substituting local data for the of time over which it can profitably eliminate it. Like the holding costs procedure above and presenting the generate income. issue, this is an area where additional results to elected officials and the preservation tools are needed. press can forestall parking demolition • With an improved physical condi- in many instances. It is a fiscally tion the owner may be able to achieve Parking Lots. Every city in America irresponsible and economically irra- a better quantity, quality, and durabil- claims to have a parking problem, tional act to demolish for parking in ity of the income stream. especially in its downtown. In a few the above situation independent of instances that is actually true. Where the architectural or historical impor- there really is a parking problem, tance of the building. however(in areas facing considerable 112 • Capitalization, the process of esti- • Areas of the building that are cur- Public Economic Benefits of mating value based on a property's rently unused (such as upper floors of Rehabilitation income, is done by dividing the net downtown buildings)or underutilized operating income by a capitalization (often basements)may be placed in Nearly the entire discussion of reha- rate. An example would be: income financially productive service. This bilitation economics to this point has $12,000_capitalization rate 12% = may also effectively increase the been from the perspective of the pri- value$100,000. Without going into building's net to gross ratio. gate sector development community. an explanation of why it is so, it is a That is as it should be since there will mathematical fact of life that the While the economic arguments are never be enough public funds to lower the capitalization rate, the important, non-economic arguments undertake all of the preservation higher the property value. In estab- are often equally effective, particu- activity that is warranted. It would be lishing a capitalization rate, an larly with building owner-occupants. a mistake, however, not to consider appraiser considers many factors Pride of ownership, effect on sales another economic benefit accruing including: property condition, remain- within the building, neighborhood from historic preservation—the bene- ing economic life,and quality and obligation, civic responsibility, com- fit to the local community. Some durability of the income. When rein- muniry heritage are all essentially years ago the Advisory Council on vestment has improved a property's non-economic arguments that can be Historic Preservation issued a report relative status among those variables, used to good effect. identifying the contributions of it can be expected that the capitaliza- preservation to urban revitalization. tion rate will go down. This will be Their list included the following: reflected in a higher value estimate Highest and Best Use even if the amount of income stayed 1. New businesses formed. the same. If, for example, the income The phrase "highest and best use" is 2. Private investment stimulated. remained the same as above but the heard so frequently in debates about 3. Tourism stimulated. capitalization rate were reduced, the demolition permits, historic districts, 4. Increased property values. value estimate might be as follows: and preservation economics that it 5. Enhanced quality of life and income$12,000_capitalization rate merits a brief discussion here. the sense of neighborhood and 10% =value$120,000. Highest and best use does not mean, community pride. as many developers would lead one to 6. New jobs created. • An improved property could be believe, the most intense develop- 7. Compatible land use patterns. eligible for more favorable financing ment that might be placed on a site. 8. Increased property and sales taxes. including the variables of loan-to- Highest and best use is defined as 9. Pockets of deterioration and value ratio,interest rate,and loan "the most profitable likely use to poverty diluted. term. which a property may be placed." The word likely is a key one. The There is no reason to dispute any of • Rehabilitation might be the most identification of the highest and best these findings. No doubt they are cost effective way to free up the value use is immediately constrained by valid and preservationists should be of the land that is currently under- whatever is permitted under existing pleased that they are. One objection producing. regulations unless it can be demon- to the list, however, is that,with a sin- strated that is probable,not just pos- gle exception, the benefits would also • Individual reinvestment often is sible,that the existing regulations will be true of most economic initiatives, the most effective spur to adjacent be changed. For a developer to argue including demolition of deteriorating property reinvestment. This can have that a 20-story building is the highest historic structures and their replace- a positive effect on the cumulative and best use for a site, for example,in ment with new buildings. New busi- value of the properties within the area. a historic district that has a 10-story nesses would be formed, private height limitation when it isn't proba- investment stimulated, property • Vacancy tends to be significantly ble that the limitation will be lifted, values, sales and property taxes lower in well maintained buildings in reflects either ignorance of real estate increased,and so forth. The one good condition than in deteriorating vocabulary or misrepresentation or exception is the argument that his- structures. both. In a valid highest and best use tonic preservation can more effectively analysis, the first cut eliminates all enhance neighborhood and commu- • A well conceived rehabilitation uses except those which are allowed nity pride than will urban renewal- plan may eliminate areas of operating under existing(and sustainable)land type new construction, but there is a inefficiency such as outdated heating use restrictions. question as to whether community plants,etc. pride is measurable in dollars and cents. The argument extolling the economic benefit of preservation had Historic Preservation as Economic development officials were best be undertaken from a monetary Economic Development asked what they thought were the perspective, most successful economic develop- The National Trust,particularly ment cities. Of the 20 cities identi- Historic preservation does have a through the National Main Street fled as the most successful, 15 of measurable economic effect on a com- Center, has demonstrated in hundreds them are among the cities with the munity. This impact is not only as an of communities that downtown revital- greatest amount of historic rehabilita- economic activity in general, but in ization within the context of historic tion activiry. comparison to new construction in preservation can be an extremely suc- particular. Comprehensive economet- cessful (and profitable)process of eco- One other of the League of Cities ric models have been created by the nomic development. But that lesson findings is important to preservation- federal government to measure the is being learned even more widely. ists. Mayors were asked to identify effect that an expenditure in one seg- the major target of their economic ment of the economy has on the rest Those who are responsible for their development activities. Their answer? of the segments—the multiplier community's economic development Downtowns. Other targets—industrial effect. Using that data it is possible to increasingly are recognizing historic areas, retaining and expanding exist- directly compare the local impact of preservation itself as an important ing businesses,attracting new busi- new construction versus rehabilita- development tool. Recently Dr.Ann nesses—were important, but none tion. Suppose a community is choos- Bowman of the University of South more important than downtown. Did ing between spending$1,000,000 in Carolina and the National League of their economic development efforts new construction and spending Cities completed two studies on the have an impact? Not only was down- $1,000,000 on rehabilitation. What tools of economic development, town redevelopment the major target, would the differences be? They conducted an analysis of more it was also the area where cities expe- than 320 cities—large and small— rienced the greatest economic devel- • $120,000 more dollars will initially across the country. They surveyed opment success. It is surely not a stay in the community with rehabilita- the mayor and the chief economic coincidence that for most cities it is in tion than with new construction, development professional of each city the downtown where the greatest col- Here are some of their findings. lection of historic assets is located. • 5 to 9 more construction jobs will be created with rehabilitation than More mayors identify economic devel- with new construction. opment as one of their top three prior- ities than any other issue. It comes a 4.7 more new jobs will be created out slightly ahead of public safety,and elsewhere in the community with far above housing,education,trans- rehabilitation than with new con- portation and social services. The sur- Notes on Information Sources struction. vey asked which of 45 economic development tools were being used in 1: Actual measurements,plans,real estate • Household incomes in the commu- the community. At the very top of the listing information,or tax records nity will increase$107,000 more with list were such traditional municipal 2: Real estate listing,appraisal,or actual rehabilitation than with new con- tools as infrastructure improvements, purchase price 3: Demolition contractor or cost estimator struction. land acquisition,and business reloca- 4: General contractor,architect,appraiser, tion. But of the 45 economic develop- • Retail sales in the community will ment tools,the 7th most often cited or cost estimator 5: Market data from appraiser,leasing increase$142,000 as a result of that was historic preservation. Historic $1,000,000 of rehabilitation expendi- preservation as an economic develop- agent,or commercial broker 6: Market data from research firm, ture—$34,000 more than with ment tool was identified not by the appraiser,or leasing agent $1,000,000 of new construction. local historical society, preservationists, 7: Actual measurements or plans designers,or the garden club but by 8: Operating history,appraiser,leasing • Real estate companies, lending economic development professionals. agent,or standard data sources institutions, personal service vendors, Historic preservation was identified 9: Appraiser or commercial broker and eating and drinking establish- not as a cultural,social,or aesthetic 10:Bank real estate loan officer, ments all will receive more monetary amenity but as an economic develop- or commercial broker benefit from$1,000,000 in rehabilita- ment tool. And how was historic 11:Amortization schedule,bank, tion than from$1,000,000 of new preservation categorized? As a cost or commercial broker construction. reduction technique. 12:Accountant,state historic preservation office Ell Rehabilitation New Construction Notes A Building Size(sq.ft.) 1 �-- ._-1..J.....,�_-..�� _.-.--,.�...- ::� -_.,ew.._..—:.._...�. _........ ... :.... ... .._.�....._.�._....._ _may �__._ ...-.._-..._..�.._...._.n..-.-.�_�.s _.___.`e.__...._ .. B Acquisition Cost 2 C Demolition Cost 3 D Construction Cost(sq.ft.) 4 E Construction Cost(total $) D x A F Total Capital Costs B+C+E OPERATING INCOME G Rent(sq.ft.) _ ��......_....,...�..._..._...._. _._._.__._..�__. _ .__ . .,v.., . _...�...,._.�» 5 H Vacancy(%) 6 I Net to Gross Ratio 7 J Rentable Square Feet A x I K Rent(total $) G x J L Vacancy($) H x K M Total Operating Income K-L N Operating Expense Ratio(%) 8 0 Total Operating Expenses M x N P Net Operating Income M-0 Q Unleveraged Investment Return P_F — FWANCING �,� R Capitalization Rate 9 S Value Based on Appraisal P_R T Loan to Value Ratio 10 U Available Loan x T V Investor Cash Required - —� — — — F U W Loan Term(years) i 10 X Interest Rate(%) 10 Y Annual Payment on Loan 11 Z Cash Flow P-Y • AA Investors Cash on Cash Return ' Z+V BB Gap Between Cost and Value • F-S Rehabilitation New Construction Notes CC Gap Between Cost and Value From BB DD Tax Credit Available(%) 12 EE Eligible Expenditure From E FF Tax Credit Available($) DD x EE GG Gap After Adjustment CC-FF HH Investor Cash before Credit From V II Investor Cash after Credit i i HH-FF JJ Cash Flow From Z KK Investor's Cash on Cash Return • After Credit Adjustment JJ+II The Three Failure-Assuring The Economic Realities of Historic districting,too,will enhance Mistakes of Preservationists Rehabilitation the sum of the value of the properties affected. It should be evident that the real The aim of this Information booklet estate development process is neither was to re-examine the myths of the REALITY#5: In economics, it is the simple nor fast. But an understanding economics of preservation and make differentiated product that commands of the process,and an analysis of the available to preservationists the tools a monetary premium. It is the built economic consequences of the deci- for the evaluation and comparison of environment that expresses, perhaps sions,should be among the working new construction and rehabilitation, better than anything else, a commu- tools of the preservationist,whether or But beyond that, lessons have been nity's differentiation, diversity, iden- not he or she is directly in the busi- learned over the last two decades tity,and individuality. As the ness of rehabilitating buildings. about the broad economic benefits of differentiated product commands a rehabilitation. These realities ought premium,there is an economic It was noted above the key to success- to replace the myths that have stood strength in an unduplicated built ful development is the maintenance in the way of historic preservation, environment. of flexibility for as long as possible. The context in which the statement REALITY#1: The public and private REALITY#6:The myth of the indepen- was made earlier related to the deci- infrastructure needed to support dent business is rapidly dissipating. sion to raze a building,and suggested human activity—roads,water and Businesses and building uses are that for sake of flexibility that deci- sewer systems,gas lines, power lines, increasingly interdependent. The sion be deferred as long as possible. curbs and sidewalks,parking facilities, context of a historic commercial streetlights—are increasingly expen- neighborhood is an ideal physical But preservationists, too,often lock sive items drawing on increasingly environment for the mutually benefi- themselves into a position of inflexi- scarce public funds. For the most cial interaction of economic activities. bility that, unfortunately,ultimately part those items are already in place works against the aims they were try- and paid for in areas with historic REALITY#7: Low taxes,cheap labor, ing achieve. The three most common properties. readily available transportation are mistakes of inflexibility are: becoming relatively unimportant in REAUTY#2: Far from being obsolete, the choice of locations for business 1. The entire building has to be many historic buildings are perfectly and industrial expansion. The major rehabilitated, suited to meet the needs of both variable is quality of life for the 2. The rehabilitation has to take today's tenant and customer. employees,and the sense of place place at once. provided by the preservation of his- 3. The rehabilitation must be for this REALITY#3: Buildings are again being tone assets is an important ingredient predetermined use. recognized as not only a space to in the quality of life equation. house the business but as a physical The net effect of this obstinacy is to reflection of and complement to the REALITY#8: Historic preservation is a reduce the likelihood that the prop- goods and services being sold. When more cost effective and results ori- erty will ever be saved. Water,weather the image to be projected is one of ented approach to commercial revital- and vandalism are the three major quality of goods, quality of service, ization than earlier urban renewal enemies of a building. If those three intimacy, reliability,stability, personal efforts. . adversaries can be contained, there is attention—historic structures suit that rarely any urgency to complete an image well. REALITY#9:The revenue generating entire rehabilitation. Many more pro- capacity of rehabilitated historic struc- jects fail because they run out of time REALRY#4: Historic zoning and dis- tures often equals or exceeds that of than ones that run out of money. It is tricting may well have an adverse more "efficient" new structures. necessary from the outset to anticipate effect on any single property much and allow for as much time as possible. like prohibiting the use of a residen- REALRY#10: Historic preservation is a To increase the odds for rehabilitation tial lot for a hog rendering plant will more effective vehicle for generating to take place,whether by a private diminish that lot's value by limiting community consensus for economic sector developer,a public entity,or a the number of alternative uses to development activities than other preservation organization, it is neces- which that property may be placed. development strategies. sary to maintain flexibility in timing, The surrounding residential land will financing,use,structure of the transac- benefit by that restriction, however. tion,scale of development, regulatory environment, design,and money. El REALITY#11: The cost of rehabilita- REALITY#18: Historic preservation tion can compare favorably with new is a conserver,rather than an overcon- construction. Cost, however, is only sumer,of scarce public resources. one of the variables in the investment decision process. Revenue,vacancy; REALITY#19:The historic rehabilita- operating expenses,availability of tion tax credits, unlike many other financing are also important consider- public interest programs, have done ations. Tax credits and expense- exactly what they were meant to do— reducing incentives are both encourage the investment of private significant in the evaluation analysis capital in an area broadly recognized and often a necessary component for as being in the public good. The fis- private sector rehabilitation. cal efficiency and programmatic effec- tiveness of the federal tax credits for REALITY#12: Rehabilitation is 20 per- historic preservation can be favorably cent more labor intensive than new compared with any other federal construction. Since money paid for program. labor generally stays within a commu- nity; there is created a measurably Historic preservation makes sense in greater community benefit through large measure because historic preser- this expenditure. vation makes dollars and cents, but it also saves dollars and cents. Historic REALITY#13: Most historic buildings preservation is a rational and effective are located in areas appropriately tar- economic response to overconsump- geted for public intervention and the tion. To make a new brick today to encouragement of private reinvest- build a building on a site where there ment. is already a building standing steals from two generations. It steals from REALITY#14:The tax credits consti- the generation that built the brick tute an appropriate compensation for originally by throwing away their asset having to develop the property within before its work is done,and it steals the constraints of the Secretary of the from a future generation by using Interior's Standards,which do not apply increasingly scarce natural resources to any other type of development. today that should have been saved for tomorrow Perhaps we have already REALITY#15: There is demonstrably consumed enough of somebody else's more widespread public economic assets—it's time for us to make better benefit accruing from rehabilitation use of our own. Historic preservation than from new construction. is a way for us to do that. REALITY#16: There are non-economic public benefits achieved through Acknowledgment historic preservation not achieved elsewhere. This Information booklet was written by Donovan Rypkema,a principal in REALITY#17:The 65 percent decline the Real Estate Services Group,a real in rehabilitation activity after the estate and economic development passage of the 1986 Tax Reform Act consulting firm providing services is firsthand evidence that the eco- primarily to nonprofit organizations, nomic viability of historic preservation institutions,and state and local gov- and a usable tax credit are directly ernments. interrelated. Information Booklets Information booklets are published by the National Trust for Historic Preservation. Answer Your Preservation For a complete list of titles in the series call or write: Information Series, National Trust for Historic Preservation, 1785 Massachusetts Avenue,NAV.,Washington, Questions D.C. 20036, (202)588-6189 or(202)588-6286. FAX(202)588-6223. Copvright© 1997 National Trust for Historic Preservation. ISBN 0-89133-326-6 Richard Moe,President, National Trust for Historic Preservation Peter Brink, Vice President,Programs, Services and Information Katherine Adams.Director. Preservation Services Elizabeth Byrd Wood,Editor Donna Gentry,Business Coordinator Join Historic Preservation Historic Preservation Forum is a membership program for professionals and organizations. The benefits and privileges of membership include subscriptions Forum: The Information to Preservation magazine, and Historic Preservation Forum journal,Forum News, Clearinghouse for the participation in financial/insurance assistance programs, technical advice,substan- Organized Preservation tial discounts on professional conferences and educational publications,and access to Preserve Link,the computer-based communications system designed for Movement the preservation community. New Information booklets are available free upon request to Forum members. To join,send$90 annual dues to:Preservation Forum, National Trust for Historic Preservation, 1785 Massachusetts Avenue, N.W.,Washington, D.C. 20036. (202)588-6296. The mission of the Arational Trust for Historic Preservation is to foster an appreciation of the diverse character and meaning of our American cultural heritage and to preserve and revitalize the livability of our communities by leading the nation in saving America's historic environments. Support for the National Trust is provided in part by matching grants from the U.S. Department of the Interior National Park Service,under provisions of the National Historic Preservation Act of 1966. The opinions expressed in this publication are not necessarily those of the U.S.Department of the Interior Offices of the National Trust for Historic Preservation National Headquarters Midwest Office Mountains/Plains Office 1785 Massachusetts Avenue,N.W. 53 West Jackson Blvd.,Suite 1135 910 16th Street,Suite 1100 Washington,D.C. 20036 Chicago,III. 60604-2103 Denver,Colo. 80202-2910 (202)588-6296 (312)939-5547 (303)623-1504 (Illinois,Indiana,Iowa,Michigan,Minnesota, (Colorado,Kansas,Montana,Nebraska, Mid-Atlantic Office Missouri,Ohio, Wisconsin) North Dakota,South Dakota, Wyoming) One Penn Center at Suburban Station Suite 1520 Northeast Office Southwest Field Office 1617 John F. Kennedy Boulevard Seven Faneuil Hall Marketplace,4th Floor 500 Main Street,Suite 1030 Philadelphia,Pa. 19103-1815 Boston,Mass. 02109-1649 Fort Worth,Tex. 76102-3943 (215)568-8162 (617)523-0885 (817)332-4398 (Delaware,District of Columbia,Maryland, (Connecticut,Maine,Massachusetts,New (New Mexico. Texas,Oklahoma) New Jetsey,Pennsylvania,Puerto Rico, Hampshire,New York,Rhode Island, Vermont) Vitginia, Viigin Islands. West Virginia) Western Office Southern Office One Sutter Street,Suite 707 William Aiken House San Francisco,Calif. 94104-4916 456 King Street (415)956-0610 Charleston.S.C. 29403-6247 (Alaska,Arizona,California,Hawaii, (803)722-8552 Idaho,Nevada,Oregon, Utah, Washington, (Alabama.Arkansas,Florida.Georgia, Pacific island territories) Kentucky,Louisiana,Mississippi,North Carolina,South Carolina, Tennessee) Design Issues A Manual For Florida's Certified Local Governments and Historic Preservation Commissions PRESERVATION • • 1 n f o r m a t 1 o n One in a series of Historic Preservation Information Booklets Safety, Building Codes and Historic Buildings j ,..- kt' Big Alari/vn E. Kaplan '� ��:•-� r ^.. imultaneous compliance with IL '" Y building and safety codes and the - .:: 1 E _ !:---, 7;- y,- -.� goals and requirements ofl _4 .i ts-c_ q is historic r [ - , ,,, reservation have been an important r .� • 1t it 4'' P P ri , consideration for preservationists for - i ' •- ' ' �` , :=__ r- 't more than 20 years. With the rise of = '',111, !� 14 ia-0— `cz?s t public and private sector revitalization - - �'---) : i 1 ! '� a,1 -6" �'` iF }i • ! initiatives in the 1970s, large numbers t+ =" '�s g ik% , :fie I m ` of historic properties were substantial- __ -- • �; = ''1 u Milk — ly rehabilitated, usually under the - Y _ _ _ - requirement that building and fire - _ codes be met. Most of these codes The Clinton House in Ithaca,New York were written for new construction, opened in 1830 as the "area's most elegant making it difficult for historic build hotel-" Restoration of the first floor in ings to comply. 1994-95 met the current building code and included rewiring,general repairs,and Historically; many code officials were fire safety measures. flexible in their approach,or code interpretations, for historic properties. By the 1970s, it was evident that gov- Programs encouraging the rehabilita- This flexibility was possible when ernment policies, as articulated in tion of existing buildings were created, rehabilitation projects were still building codes, limited the ability of most of which focused on the rehabili- uncommon,or when projects involved existing buildings to meet their eco- tation of multi-family housing. The historic sites, house museums,or nomic potential while maintaining 1968 Douglas Commission had man- other historic structures considered their cultural value. In response to dated the government's development low hazard occupancies. As building the energy crisis, market changes, the of model rehabilitation standards which rehabilitation became commonplace emergence of grass-roots and other could be incorporated into local build- for a wide range of vernacular struc- public preservation programs,and in ing codes. Conferences and publica- tures, many of the more flexible pos- reaction to the wholesale demolition tions on building codes and existing tures eroded. Today most code offi- of entire city blocks, federal, state, cials expect historic buildings, like and local governments began the new construction, to meet or exceed process of revising their urban policies This publication was made possible the minimum safety standards estab- affecting existing buildings. by the generous support of fished by codes for newly constructed The Andy Warhol Foundation or the Visual Arts. properties. f National Trust for Historic Preservation (jlf structures furthered discussions. Fire protection features were State and municipal governments,as often included in the construc- . ,....- . :e well as private 'model code'organiza- tion of late 19th and early tions, adopted special provisions or 20th century structures. This separate code documents specifically New York State Hudson River _ --#. written for rehabilitation projects. mansion retains its early fire -1 ... .1 hose and standpipe system. - I / • - r tk These early efforts had several inher- ent limitations. They were primarily oriented to housing rehabilitation pro- , I 1 • ' 0 jects and were hindered by the splin- ' 1 . # , :4 L. tered dispersed organization of the I # ,1 I lii;tili 1 building code regulatory system. They also provided little guidance to 1 ,..1 11 • code officials, many of whom were ‘ : # unwilling or unable to approve reha- \ :.,.. bilitation proposals not specifically I I'' addressed in the codes. ;II i •I This Information booklet will review the I t . ... .- ,*"' . "- t .: ,_: # evolution of the building regulatory i 0:..., is-4,... , ver•-••1 •system,summarize the problems faced by existing and historic ii . il 11 - build- ings, review current existing building and historic preservation codes,and -_--- ..' suggest regulatory and other changes . 2: that can address the problems faced #ii - ...1.' by historic buildings. a. _ . laillidit as conflagrations and earthquakes that minimum stair tread widths were ful The Evolution of Building Codes threatened public health and safety. incorporated into the Tenement As a result,cities have been continu- Laws, and subsequently nationwide. Building and safety codes and stan- ously rebuilt with specific materials or dards specify how buildings will be configurations believed at the time to Although public health and safety constructed and used in order to provide superior protection from were of great concern,fire prevention establish a minimum standard for the unhealthy conditions,fire,or structur- was,and remains, the primary impe- public's health,safety and general al collapse. tus and ingredient of comprehensive welfare. While codes are documents code documents. While fire fighting to which strict adherence is required, Many of the health and safety-related and fire prevention made great standards are typically informational aspects of current codes originated in advances during the last century,soci- documents prepared by other building- the 19th century,when reform move- ety is still plagued by the dangers of related organizations,such as the mem sought to correct the density, building failure due to fire, earth- National Fire Protection Association or decay,and generally deleterious con- quake,or structural collapse. In these the American Society of Mechanical ditions predominant in major cities. respects the loss and devastation Engineers, to provide guidance on Of these,the New York Tenement caused by the 1903 Chicago Iroquois specific subjects. In some instances Laws, enacted between the mid-19th Theater fire that killed 602 people are standards become required by virtue century and 1910,were landmark leg- not unlike that caused by the 1977 of their citation by the code as islation which established a standard Southgate, Kentucky, nightclub fire at approved reference materials, followed throughout the country. the Beverly Hills Supper Club in These tenement laws dealt with an which 165 died. Codes and standards are the result of array of features and conditions still generations of conventional wisdom, addressed by current codes. The The first automatic fire extinguishing coupled with more recent advances in 1867 law,for example, established (sprinkler)system was patented in manufacturing and the scientific and window area as a percentage of floor England in 1723. By the late 19th technical fields. Codes are historically area,an approach still widely followed, century technological advances such reactive documents,and throughout and by 1901, requirements such as as powerful steam engines and mor= history have been promulgated in minimum room size and ceiling sophisticated sprinkler systems made response to hazardous situations such height, mandatory water closets, and interior and exterior fire suppression El an effective means of protection. Of particular challenge is the ongoing Building Code, is used primarily in the Advancements in sprinkler technology addition to the codes of provisions northeastern part of the United spurred the creation of standards-set- related to concerns beyond basic fire States. ring and fire-related insurance organi- and life safety issues. Lead paint, zations, the forebearers of many of asbestos, radon, seismic, energy con- The International Conference of the professional organizations still servation, and accessibility are all Building Officials (ICBO),with mem- active in the field. examples of national and state policies bers drawn primarily from the western that have found homes in the codes and central states, first published its In 1895 building inspectors, recogniz- and related regulations. Uniform Building Code in 1927. The ing variations in the thousands of Southern Building Code Congress sprinkler systems installed through- International was founded in 1940 by out northeastern mill and warehouse Code Organizations officials in the southeastern part of structures, formed the National Fire the United States. In 1945 it pub- Protection Association (NFPA). One In the 20th century,regional profes- lished the first edition of the Standard of the primary purposes of the organi- sional associations assumed primary Building Code. These three model zation was to provide uniform sprin- roles as authors of`model codes,' basic code organizations have collaborated kler standards. Published in 1897, yet broadly-scoped documents intend- with the International Code Council these standards were used until the ed for adoption by states or localities. (ICC),established in 1995, to create a mid-20th century. In addition, the model code organiza- common code format, integrated into tions publish a range of single purpose each of the model codes in the 1993 Today, the NFPA is the largest pro- codes,including those that address and 1994 editions. The ICC has fessional organization concerned with plumbing, mechanical systems,and already published an International fire protection and continues to serve electrical systems. Plumbing Code(1995),an International an educational role in the preparation Mechanical Code(1996), and plans to of codes, technical standards,and The model codes are developed and publish a fire protection code,existing other public outreach programs. The approved by staff and members on a buildings/housing code,and general NFPA's comprehensive Life Safety Code consensus basis. Members are typi- building code, by the year 2000. has been revised regularly since pub- cally code officials,fire fighters, lication in 1913 and remains an impor- design professionals(engineers and Building officials representing states rant reference tool. This code was architects), builders and contractors, and permit-issuing communities are particularly significant when first pub- and representatives of manufacturers' linked under the umbrella organiza- lished because it ranked life safety and trade associations. The model tion of the Council of American above property conservation, unlike codes are reprinted at three-year Building Code Officials, and many other early efforts that focused on the intervals and revisions are issued year- code authors are members of the protection of property and building ly in response to changes and devel- National Conference of States on contents. opments in the field. Building Codes and Standards. The NFPA became the model for The first model code was the 1905 In 1949 New York became the first other professional organizations in its National Building Code published by the state to establish a statewide code research efforts and dissemination of National Board of Fire Underwriters, administrative process. Until then, published educational and technical predecessor to the American Insurance local governments had almost full dis- materials. It also continued the prac- Association. By 1976,this code had cretion over the types and content of tice of developing new standards in expanded beyond its initial focus on regulations adopted and could selec- immediate response to catastrophic fire safety to address a wide range of tively adopt any single purpose code. events. For example, the NFPA 1927 public safety issues. As in all states, the inconsistencies in Building Exits Code, later adopted into requirements and application were the Life Safety Code,was a direct reac- The general format used by the confusing and created great inequities tion to the 1911 New York City National Building Code was followed in safety and other building perfor- Triangle Shirtwaist Company fire in later by the model code organizations. mance aspects. which 145 died, in part due to locked Organized geographically,these groups and inadequately sized and located produced codes reflecting regional Most states now have individually tai- exits. In a more recent example, construction practices and attitudes. bored code administration programs New York State initiated the 1984 The Building Officials and Code and have adopted one of the model Uniform Fire Prevention and Building Administrators(BOCA),founded in codes in part, in entirety, or with mod- Code and a study of the effects of 1915, published its first Basic Building ifications(additions or deletions)to toxic fumes and gases immediately Code in 1950. This code,later known respond to particular concerns or envi- following the 1980 Westchester as the Basic/National Building Code and ronmental conditions. Only a few County motel fire in which 26 died of from 1987 on as the BOCA National states continue to maintain their own inhalation. code. Enforcement is usually carried While the terminology used by the out at the local or county level by different codes varies,all essentially -' - .... --- code officials with varying degrees of use two primary 7 classifications— • . ,• -- ..,,-"'`.• ' - ..,, - experience, occupancy and construction type—to -....- - ..i. "''' determine the degree of risk or hazard ..... ; presented by a building. A building's 7_ ,i Code Documents occupancy or use classification is the pur- pose for which it functions. Examples ..-.'• . - _ ,. sio The specific language used by the of this classification as used by the .7-, •• . codes is found in either the prescrip- three model codes are included in ---- tive-based specification type provisions. Table 1. Additional distinctions are f . - _...err7-.... . -. ,-- or the performance based provisions, made within each occupancy group Building codes are minimum standards 4-, Nlost common is the specification type, by each of the model codes. For for safety,and often safety measures which provides specific descriptions. example, the Uniform Building Code beyond those required by the codes can definitions, and dimensions for design provides the following sub-categories increase a historic building's level of safe- and construction. In contrast,pet-for- in Group R: R-1 -Hotels and iv. Extending the fire alarm and deter- mance codes specify the level of per- Apartment Houses; R-2 -Convents lion system into a wood frame attic is an formance of a material.assembly, or and Monasteries(each accommodat- example of such a precaution. structure. While the specification codes ing more than 10 persons); R-3- are often criticized for inhibiting the Dwellings and Lodging Houses. use of innovative building designs and Constrwction classification categorizes a systems,petfonnance codes are more TABLE I: building according to its fire resis- difficult to administer given,among other factors,the lack of a generally Occupany/Use Classifications tance characteristics. The model codes use at least five categories to available means of evaluating equiva- lencies Group A Assembly describe these, ranging from. non- Group B Business combustible (Type 1)to combustible (Type 5 or 6). A fully concrete struc- Most codes are organized by sections Group E Educational ture,for example, is likely to be con- providing definitions,administrative Group F Factory and sidered Type 1 construction while a procedures, technical requirements, Industrial and appendices citing the most corn- Group H High Hazard wood frame building would be classi- fied as Type 5 or 6. mon reference standards. Although Group I Institutional reference standards provide valuable Group M Mercantile In determining the construction clas- detail,as separate documents their use Group R Residential sification,elements such as exterior can be cumbersome and confusing Group S* Storage because they require the user to coor- Group li** Litilit1.-and bearing walls, interior bearing walls, structural frame, and partitions are dinate between sometimes conflicting Miscellaneous considered. These elements are documents. • Group S not included in Uniform Building Code, assigned numerical values between 0 "•Group U included in National Building Code only. • V%-7-14%. Materials and features of historic build- ',1i,,..s.,*.,;„- .7- •..v5.4.. jags are often inconsistent with construe- , :.- •,- . . - e., 7 - . .---• ....:-/. 7•t. :..v. . • ,, - ' tion standards used for modern build- „ .4,7_ - . „., •:,..f.•-•ji,,-,, .•„ '_.• -'7 .Ifdle....!, . -o'ON.".,;: ., -.A:14 ..!*',.:,.. ' .,..'" ings. It is common for a structure such - - - • ' .F.?..'.„' -- It'----. as this wooden building to be considered ....:-Fi„ , 4.. . ect,*„...!. ..,.-......... . . .-....,'' -19 .....:.-f..,'-'4, =--------==- 2-iii - ..",•,:-', : non-complying based on its frame con• - -.....,--7-_----,_ .......:. .„ r., • _, . " IP-.. ... .21,-.. ; -"----- ...--- ---............-......, 4.. . ,.t-: . . struction, its low floor to ceiling height, 1 `7;. 6 ,' X . and inadequate exits. -yr,. ,it -V..- .:.'1;:.r- Milliillilli.. ..IIP,1111111. Illilli111111111: lirr.,i;:'.?' ''•?"1""' _. • I) -..• . .:.,-..--— , — 7- --"--- -L tWizzike-•:%,"7 ..:77 :77- ...i . ,c i : ,,---i: ./.,:i . t-.!-, ...,...• • , . EF-. I L:::-,j,____. la 16.10,,..t • ..,a ---t ;; —'::i li .1-da _ " -• .-........ ......- . 'in I I'I r 1111111g 1!!!i I I 1 1 /11111111' 10111 ir I 1$i I..'"'. •We 5 Wit4: '--• - '----... P'sar ::. _..... _." --`..'- Si_1 . F.ail."114‘11°311nrwaleifAitz•.•--- , —--....- _...„.mt, - . _-. . ....._ ...7... . ¢w` 1111.II' r . ^z `' ..,:,..4 I �. , ji ,. I _ . • 1 ti. , Ii A , N.`, • _ , , ,; ,.„!,!„„ 16 .., , .,,, (' 1 i r_T.,„,,,,„, „.:,_ ,,:. . ,. , i, :. ,..,... „ = .., ..: • . .Etta � >�'p ( IR Open stairways that do not separate the exit route from other .`" areas of a building create common compliance problems for his- r - ` - - ` ' - toric buildings. Stairways mar a/so be considered deficient based -A. ; `_ r� .. on their riser to tread ratio,the height of the railing,the existence { F .�,ct:� •- ' :t i -"' of winding stairs, or their construction in non-fireproof materials. - '.(� � :_ ��' t . and 4 based on the number of hours threshold and the degree of compli- All codes include provisions to appeal that element could maintain its struc- ance required. As a general rule, if a specific requirements. Requests for tural integrity in a fire situation. building's use does not change, minor appeals, also known as variances,are "These assigned values are called fire alterations can be made with materi- typically presented to an appeal offi- ratings, an important term repeated als and details matching the original. cer or board of professionals with dif- throughout the codes. Fire ratings If a change of use occurs or structural ferent areas of expertise. These enti- are determined by tests undertaken modifications are made, new con- ties have the authority to approve by independent laboratories such as struction standards must be met. alternate solutions to those specifical- the Underwriters Laboratories, Inc. or Common exceptions to this rule are ly required by the code,when these the American Society for Testing housing or maintenance related provi- solutions are determined to be equal- Materials. sions, requirements that address spe- ly safe. It can often be advantageous cial purposes such as accessibility or when an appeal is made in support of Examples of other basic code con- energy conservation, and retroactive another public purpose,such as his- cepts include concerns for external requirements, usually oriented to fire toric preservation. fire spread based on proximity of a safety. building CO adjacent structures; inter- Worthy of note is the often vague dis- nal fire spread potential based on a Modifications to the codes are made tinction between building and fire building's size as determined by floor on a regular basis,and buildings codes. While some codes include all area, height, and number of stories; quickly become outdated when com- fire related provisions, many fire and safe egress and access for occu- pared to their newly constructed codes are adopted and administered pants and fire fighters as determined counterparts. Thus,within a few separately. The situation is often by building structure,capacity, and years of construction most buildings aggravated by the existence of sepa- characteristics of exits. became non-complying structures, i.e. rate agencies with parallel or overlap- they do not meet current code ping jurisdiction. Codes typically apply to all new con- requirements. Although some code struction and `substantial' rehabilita- changes are retroactively applied, in tion projects, i.e., those that exceed most cases existing conditions are an established threshold of work or allowed to remain when no work on include a change of occupancy. Each the building is planned. of the model codes defines this TABLE II: Common Code and Safety Deficiences of Historic Buildings BUILDING CLASSIFICATION EQUIPMENT AND BUILDING SYSTEMS IM Occupancy/use not allowed in building based on Improperly sized or maintained electrical and construction classification mechanical equipment(includes wiring,numbethype • Construction materials no longer permitted of outlets,wiring,etc.) • Building exceeds allowable height and fire area • Lack of fire alarm, detection,or suppression systems limitations • Inadequate water supply for fire fighting II Inadequate distance between buildings mr Lack of adequate lightning protection EGRESS STRUCTURAL • Travel distances to legal exits are excessive • Inadequate vertical loading capacity of members II Existence of dead end corridors (corridors that do not (inability to support building contents,occupants,snow lead directly to an exit path) loads,etc.) • Inadequate number of exits MI Inadequate lateral capacity of members to resist wind, • Exit routes do not lead directly to the exterior expansion, etc. le- No stairs lead to roof • Inadequate seismic resistance • Inadequate fire rating of walls,ceiling,or floor of egress route HANDICAPPED ACCESSIBILITY • Existence of toxic or flammable materials,or improp- er fire ratings of doors, transoms,windows, and trim • Inadequate means of access or egress • Corridors,stairs,and doors inadequate in dimensions • Inaccessible interior spaces of width or height or Inaccessible facilities(toilets,baths,kitchens,etc.) • Inappropriately configured exit stairs(steepness of stairs,existence of winding stairs,lack of proper handrails) HEALTH/SANITATION/COMFORT No- Existence of inward swinging doors in exit route Ng- Lack of, or inadequate means to,ventilate smoke • Inadequately sized and located windows (light and and gases ventilation) • Presence of hazardous materials(asbestos,lead, radon) FIRE RESISTANCE III Inadequately dimensioned rooms(floor area and ceiling heights) • Interior walls and floors have inadequate fire resistance is^ Inadequate sanitary(rest room)facilities as measured by fire rating eir Inadequate heating and plumbing • Roofs, exterior, or party walls have inadequate fire resistance lor Indicates deficiencies often correctable with minimal cost and IM Vertical and horizontal shafts and plenums(elevator; impact on historic building character stairways,duct pipe and flue chases) have inadequate fire resistance • Exterior wall openings located too close CO adjacent properties or Chimneys inadequately constructed or lined • Inadequate fire stopping(physical blocking installed in walls and floors)to stop fire spread within these cavities Inadequate compartmentation in attic to stop fire spread mr• Inadequate enclosure at mechanical rooms 11 Code and Safety Problems of latter is the four-story wood frame struction to existing buildings,while Historic Buildings building,a construction type no others are more philosophical in longer permitted by many codes. nature. The primary problems faced by his- toric structures result from conflicts Many code-required modifications Liability. Liability concerns have a between historically significant mate- mandate the removal or alteration of substantial impact on the manner in vials and spaces and application of historic materials and spaces. These which historic buildings are rehabili- codes laden with new construction changes, even in cases where new tared. The responsibility of protecting requirements. The different priori- materials matching the original are public safety is an enormous burden ties of the code, preservation, and installed,can severely impact archi- to design professionals,code officials, design communities create additional tectural and historic significance. and engineers,and the current liti- challenges that must be overcome. Table II provides examples of corn- gious climate has exacerbated both mon code problems encountered by real and perceived fears. Architectural/Technical Problems historic buildings. Limited means for determining construc- The physical conditions that create Non-Technical Problems tion equivalencies. Preservation projects noncompliant situations range from are severely limited by the difficulties those easily remedied by minor modi- Equally significant and potentially in determining means of achieving fications,such as changing of the damaging is a range of nontechnical alternate,equivalent levels of safety. direction of door swings, to those so problems. Some are derived from the Codes are based largely on modern significant that no practical corrective basic conflict inherent to the applica- architectural and engineering theory measure exists. An example of the [ion of a code written for new con- and testing of contemporary construe- '-,,,,,,,, �ar:: Including required elevators or exit stairs in a new addition may allow for the retention of the historic building's floor \ plan and other significant features. New construction must be carefully designed to y,•`,/� . � be compatible with the historic structure. k V II t•-•.^ .. vh, _ K ...t,.;• > 101A [ . !1IR1 IC • .mow- - - •• • --c' _`� = .rI•� _ 1�S. ry -- _ _..-. '{`'-- I . \�i r=. 1 L-- 1� --?- Wit'`^ .. • n - ! . i - •.i r x• `:-,--•er•f w br.err -�.sr :y•...t`: r 1 tion materials and techniques,and it Solutions for Historic Buildings Table III lists commonly used archi- is particularly difficult to predict how tectural and engineering solutions. a historic building will respond in a The ideal solution for the historic Table IV identifies management and catastrophic situation. Computer property is one that retains historic operational approaches that rely on modeling for building performance is materials and character and simulta- the involvement of building owners a tool not yet commonly available. neously exceeds the minimum stan- and occupants,and are often most Obtaining independent, acceptable dard of safety established by the successful at the well-managed muse- testing of an existing building's con- code. Exceeding the minimum stan- um or historic site where visitation is struction assembly or configuration dard is desirable given the irreplaca- controlled and staff can be trained to represents an expense beyond the bility of the historic building. This assume fire protection responsibilities. budget of most projects. ideal can best be met by responding to a building's unique characteristics. Attitudes. The irreplaceability of his- codes and Provisions for tone structures is not a value reflected Communication and cooperation Existing Buildings in the codes or generally held by the between the building official, design public. Even if sensitive to preserva- professional,and owner are essential. Historically,the '25/50 percent rule' tion, in many instances the code offi- All must recognize the property's his- determined the degree of code corn- cial has limited discretion to vary from tone significance and agree on the pliance required for an existing build- the code's requirements. Officials project's safety goals. Project discus- ing when alterations were undertaken. also must consider the precedent-set- sions should begin as early in the Although the specific application of ting implications of each decision. planning stages as possible, and the this rule varied, in all codes the provi- code official brought in no later than sion based the degree of required Regulatory conflicts often arise when a the schematic design phase. Safety work/code compliance on the dollar proposed project must comply with solutions used at other historic build- amount expended on a repair or alter- both the building code and preserva- ings,and solutions allowed by other ation within a specified time period, tion guidelines at the local,state,or codes or appeal entities should be and as a function of the building's federal level. Most often, the preset- explored. Such information is avail- value. vation guidelines used are the able through professional journals, Secretary of the Interior's Standards code officials, or design professionals If less than 25 percent of a building's for Rehabilitation and Guidelines for with preservation expertise. value was spent on rehabilitation Rehabilitating Historic Buildings, pre- within a six month period, only the pared by the Department of the The administrative process for seek- components proposed for repair wer — Interior to provide guidance on appro- ing an appeal from specific provisions required to comply. If the rehabilita- priate preservation treatments. of the code should be evaluated. tion costs within that six-month pen- Building codes and the Secretary's Although the code official may be od exceeded 50 percent of the build- Standards are radically different in hesitant or legally unable to waive ing's value,complete compliance of their approach. While the codes pro- specific code requirements,an appeal the entire building was required. vide exact specifications for building board or officer has more discretion construction or performance,the and often greater expertise. This approach has lost favor over the Secretary's Standards use a nontechni- last 15 years. It was difficult to deter- cal language to outline a philosophy It is impossible to provide a single mine how a building's value should for the appropriate treatment of his- listing of successful architectural and be defined and calculated. Some tonic resources. Conflicts between the technical solutions for all historic codes or code officials used replace- two can be as blatant as the code buildings. Each building is unique in ment value,yet others used assessed requiring the removal of original its use,configuration,condition, and value or other definitions. Because materials and the preservation guide- location, and acceptable interventions the degree of compliance was partial- lines requiring their retention. vary widely. Operational and man- ly based on the project schedule, it Resolving conflict can be extremely agement policies addressing fire safe- was common for the construction difficult when multiple regulatory ty but not recognized by the code can schedule to be manipulated in order entities, i.e. the local historic review provide a level of protection that to avoid full compliance. In most commission, the state historic preset- meets or enhances code-required codes, the '25/50 percent' rule has vation office, and more than one fed- technical solutions. Other nontechni- been replaced with more clearly eral preservation agency, are involved cal aspects,such as firefighters' famil- defined provisions, although it is still in just the preservation issues of a iarity and access to the site, may also informally used by many code officials project. merit consideration. In practice, the to set a threshold for compliance. historic building can only benefit from a broad approach to fire protec- Since the 1970s,communities have tion that considers both technical and adopted a number of approaches for nontechnical solutions. separate codes (or chapters or provi- lal TABLE III: Architectural and Engineering Solutions for Historic Buildings REDUCE COMBUSTIBILITY AND LIMIT FIRE SPREAD ■ Upgrade deficient heating and electrical systems ■ Limit smoking and hazardous operations ■ Use intumescent paint to protect building materials ■ Upgrade electrical and mechanical systems from fire ■ Select less flammable/combustible materials for IMPROVE EGRESS architectural surfaces, finishes, and furnishings ■ Encase non-significant combustible elements ■ Extend stair to roof where not visually obtrusive ■ Add fire/smoke alarm, detection, and suppression • Create new exit openings compatible with existing systems fenestration pattern or detailing ■ Install self-closing protective devices on doors ■ Add compatibly designed exterior stair/elevator towers ■ Detail new doors and frames so that wood replicating I Reverse door swings original trim is installed over fire rated jambs ■ Add signage and exit route guidance ■ Modify existing doors to increase fire rating(addition I Add handrails or minor modifications to existing of fireproof panels, new seals,and hardware,etc.) rails CO increase height(raise existing rail,add I Modify transoms to increase effective fire resistance additional member) rating(addition of fireproof or rated panel on the less • Enclose stairs(glazed partitions,sensitively designed significant or visible side of the transom frame) walls and doors) • Increase fire resistance rating of walls and floor/ceiling I Create places of refuge within building assembly ill floor or ceiling cavities with fireproofing materials, increase thickness of drywall or plaster surfaces, IMPROVE HANDICAPPED ACCESSIBILITY addition of fire stopping) AND EGRESS • Add new barriers to decrease fire area(new walls in non-significant areas, new fire doors and partitions) ■ Add interior or exterior ramps ■ Add smoke venting at elevator and stairways ■ Add signage and controls ■ Install unobtrusively located elevators CONTROL OF IGNITION SOURCES ■ Use lifts for grade level changes IN Install automatic interior or exterior fire suppression systems(sprinklers) • Install lightning protection devices TABLE IV: Management and Operational Solutions ■ Modify building use and programs to control hazards I Install lightning protection ■ Orient occupants and visitors to safety related issues ■ Safely store flammable materials IN Improve and monitor housekeeping practices ■ Have equipment inspected regularly • Control use of extension cords, damaged • Create and regularly upgrade disaster appliances, etc. preparedness plans ■ Train staff in use of hand held fire extinguishers and ■ Ensure special precautions during rehabilitation work other fire fighting methods ■ Increase fire fighters'familiarity with site sions) that apply to existing buildings, rehabilitation ranging from advice to the hazard index moved up the scale. The simplest of these contain single communities on adopting a building compliance with the current code was statements giving the code official code to specific design alternatives for required. The system was refined the responsibility of determining egress requirements. Of these, further to specify the amount of corn- what conditions are safe, relying Volume 8, Fire Ratingc of Archaic pliance based on the amount of heavily on the skills,sophistication. Materials and Assemblies, remains par- increase of the hazard index. Article and sensitivity of the official. Most ticularly useful. It is the first widely 22's approach became a model for common are the entire separate chap- available comprehensive listing of subsequent rehabilitation codes, ters or codes for existing buildings, numerical values of fire ratings of including those of San Francisco, Of these, those that address the materials and construction systems no Chicago and the ICBO's Uniform Code unique circumstances of a particular longer listed in current codes or refer- for Building Conservation. building through hazard ratings and ence standards. quantitative analyses are the most Later editions of the Near York City sophisticated. In 1979,N1assachusetts pioneered Code for high-rise structures and the efforts to modify its code with special NFPA's Life Safety Code 101 employed In 1973, the U.S. Department of provisions for existing buildings, a more mathematical approach. Both Housing and Urban Development's Article 22 (now Article 32)and recognized the unique and inherent (HUD) Federal Housing Administra- Appendix 11 of the Massachusetts State safety features of older buildings that tion published the Minimum Design Building Code describe performance could be credited toward compliance. Standards for Rehabilitation for standards for existing buildings,as Numerical values are assigned to Residential Properties. In 1975, in well as compliance alternatives and select,critical life safety components cooperation with HUD and the three exemptions for museum buildings. such as building height and area, con- principal model code organizations, The code also divided historic build- struction of partitions and walls,sup- BOCA published its Code Enforcement ings into two categories: those to be pression systems,and smoke controls. Guidelines for Residential Rehabilitation, totally restored and those to be par- When totaled, a mathematical expres- Neither document was ever widely tially preserved. Broader exemptions sion of the level of safety provided by accepted,due to a lack of addressing were allowed for projects falling into the building was established,and conflicts between codes and other the first of these categories, could be modified in response to a program requirements, and an incom- building's unique characteristics. patible format with the most widely Article 22 established that if a conflict used code documents. arose between the State Building Code In 1984,as a result of a cooperative and local historic district law, the lat- effort by the Ohio Code Consultative In 1980 HUD published the first ter should prevail with respect to Council and the National Institute of eight volumes of the Rehabilitation exterior features. It also contained a Building Sciences, BOCA published Guidelines. These provided recom- numerical system to rate the increase Article 25, "The Repair,Alteration, mendations on aspects of building in hazard created by a change of occu- Addition to,and Change of Use of pancy. If a building use changed and Protection of the contents of this historic ..... ":.,,,r•''... ,:;, $ale I 1 44: t - ..; - =:-:; ., ,, ,._,.....,,,,, ....1, .-:-.:-_,,,N4-4 :.-- site is not addressed by building codes • . \--'‘'. , ,1,-1V- .,`. .:3- .•, i T.9' --_i,„4..,.-:-.- ,--I 1.1.,:,;A: - q'k';t ti- „ ,'- -'Y,--.;-`--„V ...-:; but must be considered Disaster pre- -;. ,i• 11 1' .''...Z,i.i."; .* S. , .......___ .1. __ --- .-- 4.''t el'''* -.-- • - '.. . 77:"44-5L.',:.- paredness should include planning for ?,.d..• - ' 7-, -.- . • \ :..-•-4' xe. ..-.. the protection of collections during an ............ ,-. ------,--- -.7:-.---- --_-1• :,-- - '. emergency as wefl as immediate conser- MP't .t!'1;' c '•'- -: -- - ‘.3.g,,', . - .4•4* ,..„'., • _ \ vation measures. Ongoing communica- S .. 1 ' # . ' '.-' - \I.- -' - :-., 1 lions and drills with the local fire , 4, ; 7' 't . .C• , rOdt,e, . .- 'ft' a, 4.4'. '‘'• ,r• ,ff c',.41.' - i' `bc*. ''''i:Kti .!-4- . . ' A ,..:{, , ...s,‘ . \ 17i k4. ,:... T. - 2 jilq department,as well as on site availabil- .. ,.. ‘7 ,•,ir, 'r.-"N'• - . ..:i 0, „ .:.,'i,. :.: tk, kr of materials to protect the collections 4I i ell/: .._;';:r4: . \\ ..iri if $ ', -.*: "i',0 .\. in an emergency situation,are important , „..... , w , -7:•-;:,,„-,:, , le- ,,,,,re-,,....e...- . .., .,‘.• - ',:f , Ao components of disaster planning T __ t -- ---- .,. -....-, E ',•:-. .., :: •-,..- --- 7 . _ -•., - - ,. .•••-tt"g4r4ittlbiiiegialtilegargallegiati -- -. --. -Z-- EIE The 1994-95 fire safety improvements of — - the Clinton House in Ithaca,New York, J r ;.. . included the installation of a 2 hour,fire >'''.' -__lv rated barrier above the first floor tin cell-ing, installed in the lobin Getweeu decora '�� _ i live wood box beams in 1901. To obtain / _ a continuous fire barrier, removal of the - tin ceiling was required. 1 1/2"was ' ^." • - .'-�i removed from the overall height of the _^ - `J= 11 box beams at the original ceiling level (Photo#1)to allow for the installation __ of 2 layers of 3/8"Type X sheetrock sepa 3 - 4 rated by an approved furling channel y (Photo#2). Following the installation of ' ,..rzs- —,� , F. , - new wiring and sheetrock,the tin was - r� _ -�-- ,T.. reinstalled(Photo#3), repaired and = 4 �'` painted(Photo#4). - -- - , C _ _ lip I,.'j , Existing Buildings." Article 25 corn- All of the model codes now include structure meets the intent for new bined aspects of the Massachusetts separate chapters or documents for construction,and the change must model with the quantitative analysis rehabilitation, as well as administra- not increase the building's hazard used in New York City and by the tive appeal processes. In general, the rating. Alterations or repairs only N FPA. Sixteen critical fire safety model codes take the approach that (and not the entire building)must parameters, including building height, additions and alterations must meet comply with the code's require- means of egress, maximum travel dis- the requirements for new construe- ments,although an unsafe condi- tances,smoke control, etc. were indi- tion, and that other areas of a building tion, specifically with respect to vidually rated and then totaled to left untouched by a project cannot be structural concerns and fire resis- determine if the building provided an made less safe. When a change of use Lance ratings, must not be created. adequate degree of safety. occurs, there is greater variation: BOCA requires that the intent of the Chapter 34 provides 3 choices for Now known as Section 3408.0 new construction code be met or that compliance. The existing building Compliance Alternatives, the mandatory safety scores be exceeded; can meet requirements established approach was most recently modified the UBC requires compliance with for alterations and additions, the in the 1996 edition of the BOCA new construction standards except requirements for new construction; code. Additional fire safety parame- when the new use is less hazardous; or the requirements as determined ters have been added,and other the UCBC allows compliance with in Section 3408.0 Compliance changes have been made to ensure the requirements for alterations,as Alternatives. consistency with general code modifi- well as imposes a few additional pro- cations of the last 10 years,as well as visions;and the SBC and SEBC ICBO,Uniform Building Code,1994 ed. to increase the model's utility for require that the intent of the code be additional building types. All build- met,as well as seismic requirements, Section 3403,Additions,Alterations ings except those classified as high if an increase in occupancy hazard and Repairs of the Uniform Building hazard or industrial, are eligible to use occurs. Code(UBC),allows for existing, this section. legally constructed buildings to A summary of the provisions for exist- remain as long as they present no Although BOCA's mathematical ing buildings follows: unsafe conditions. If a building is approach,and its predecessors, have to undergo a change of use, all been criticized for their complexity BOCA,National Building Code, 1996 requirements for new construction and a lack of verifiability; their signifi- must be met, although the build- cance as quantifiably oriented perfor- The code allows existing uses to ing official can authorize less than mance-based codes cannot be dis- be continued unchanged except as full compliance with the current counted. specifically required by the build- code if there are no unsafe condi- ing official. The building's use tions and no increase in the fire cannot change without the official's and life safety risk. approval and certification that the Uniform Code for Building Standard Existing Buildings Code, Codes for Historic Buildings Conservation(UCBC), 1994 1988 ed.,rev. 1991 Concurrent with the advent of these In 1985,ICB0 published the In 1988 the SBCCI first published rehabilitation codes, preservation UCBC to encourage the continued a separate code for existing build- emerged as a vital force in the rede- use or reuse of existing buildings. ings, the Standard Existing Buildings velopment of older urban areas. Lik= The UCBC assures existing build- Code. This code has not been housing advocates, preservationists ings, legally constructed under pre- widely adopted, perhaps because it soon recognized the difficulties of vious codes, the right to exist. It provides guidance rather than spe- rehabilitating buildings to meet mod- ,- includes minimum standards for cific requirements as is more typi- ern safety standards. existing buildings, minimum pro- cal to a code document. visions for change of occupancy,a In 1974, the National Trust for section on historic buildings,and a Laudable efforts by other states have Historic Preservation, in concert with section on requirements for resi- also been taken. In 1984 Georgia 11 other national organizations, spon- dential construction including passed The Uniform Act for the sored the Preservation and Building hotels. For changes of occupancy. Application of Building and Fire Related Codes Conference. In 1976, a survey a multiple hazard scale arranged by Codes to Existing Buildings, following on building code provisions for his- occupancy ranks building features the format and approach used in tonic structures was published by the (height and area,exit systems,sep- Massachusetts. Known as Article 3, National Bureau of Standards. The aration of occupancies,exterior the act allows a building to be rehabil- survey demonstrated that a number of walls,etc.)and is used to deter- itated without full compliance to new states had legislation specifically for mine the scope of work necessary, construction standards if the level of historic buildings; many states had the hazard is not increased. If the hazard authority to pursue compliance alter- The UCBC also includes sections level is increased, the use of compli- natives; and many larger cities had addressing relocated buildings and ance alternatives is encouraged. historic preservation boards to special occupancy provisions (such Further, the degree of compliance of approve alternatives or grant waivers. as for handicapped accessibility), the rehabilitated building must not Compliance alternatives are decrease;and hazardous conditions Survey results also indicated that encouraged. The UCBC reprints (structural, number and capacity of approximately 25 percent of the states in its appendix HUD's exits, mechanical systems)must be gave special consideration to historic Rehabilitation Guideline#8.• Fire addressed. buildings by way of specific technical Ratings of Archaic Building provisions or special administrative Materials. Although updated and amended since procedures. In general, this consider- passage in 1979. Massachusetts' ation was limited to situations where SBCCI,Standard Building Code, Article 32 continues to rely on a sys- at least one of the following require- 1994 ed. tern that triggers code requirements ments or characteristics was met: when the hazard index is increased. Section 3401 of the Standard Requirements range from the require- II Within a certain time period, Building Code allows for alterations, merit to address only egress and floor rehabilitation costs were less repairs,or rehabilitation work to loading when no hazard increase than the replacement value of existing buildings without compli- occurs, to compliance with the new the structure. ance with all aspects of the code construction requirements when the • The building use did not change. provided that the work undertaken hazard index increases by more than • The building was made less conforms to the new construction two. Although executed in a non- hazardous than when work began. requirements. The building offi- quantitative manner,Article 32 shares • The local building inspector cial may determine the extent to with BOCA Article 34 the intent of determined that the modifications which the existing systems must being a 'rational' method based on were safe. be modified. If a change of occu- perceived fire hazards. II A variance from the code was pancy does occur,the building obtained. must conform to the intent of the Of particular interest in the code for new construction, as Massachusetts model is the require- Through the 1980s.a number of state determined by the building official. ment that all approved compliance and model codes were amended to alternatives be sent to the state to be address historic preservation. As with compiled and eventually published, provisions for general rehabilitation Additionally,Article 32 requires the activity, these changes ranged in corn- preparation of a report that analyzes plexity from single statements permi= the building in the context of current ting local discretion to full perfor- code requirements. mance-based codes. Since each state 1111 or locality must assure that the provi- BOCA National Building Code, 1993 1979, adopted the California State sions are consistent with other applic- Historical Building Code(SHBC). In able laws and procedures, even the Section 3406.0 Special Historic part its creation was the result of the most standard approaches vary consid- Buildings and Districts: 1973 State History Plan's recommen- erably: The provisions of this code relat- dation for a special code for historic ing to the construction, repair, structures. The code,written by a In general, the model codes now alteration, addition, restoration, consortium of state agencies involved exempt historic buildings from corn- and movement of structures shall with the promulgation of building pliance with requirements for new not be mandatory for existing construction regulations, is written as construction if the code official deter- buildings and structures identified a performance-based code. Until mines the building to be safe, and the and classified by the federal,state 1985,adoption of the SHBC was building is no more hazardous than in or local government authority as optional. its pre-rehabilitation condition. The historic buildings,where such provisions for historic buildings in buildings are judged by the code Introductory statements of purpose each of the model code documents official to be safe and in the inter- explain the intent of the code: are as follow: est of public health, safety,and welfare regarding any proposed '... to provide alternative building Uniform Building Code 1994 construction, alteration, repair, regulations and building standards Uniform Code for Building addition and relocation. for the rehabilitation, preservation, Conservation 1994 restoration(including reconstruc- (Note:Previously,the code official's tion), or relocation of historic struc- Both of the ICBO's documents determination required the approval of tures designated as historic build- address historic buildings: the UBC in the board of appeals:while no longera ings...," and "...to facilitate the Chapter 34,Section 3403.5,and, in requirement,this confirmation is still restoration or change of occupancy greater detail, the UCBC in Chapter 6. available to the code official.) so as to preserve their original or Section 3403.5, Historic Buildings: restored architectural elements and Repairs,alterations,and additions SBCCI,Standard Building Code, features, CO encourage energy con- necessary for the preservation, 1994 ed. servation and a cost-effective restoration, rehabilitation, or con- approach to preservation,and to tinued use of a building or struc- Section 3401.5 Special Historic provide for the safety of the build- ture may be made without confor- Buildings: ing occupants." mance to all the requirements of The provisions of the technical this code when authorized by the codes relating to the construction, The code addresses the full range of building official provided: alteration, repair,enlargement, typical building code issues,as well as • The building or structure has restoration, relocation or moving of specifically discusses archaic materials been designated by official buildings or structures shall not be and methods of construction; historic action of the legally constituted mandatory for existing buildings or districts, sites and open spaces;state authority of this jurisdiction as structures identified and classified health and community care facilities; having special historical or by the state or local jurisdiction as alternative handicapped provisions; architectural significance. Historic Buildings when such and appeals and alternative proposed ■ All unsafe conditions as buildings or structures are judged design. described in this code are by the building official CO be safe corrected. and in the public interest of The SHBC is unique in its applicabil- • The restored building or struc- health,safety and welfare regard- ity to situations where there is a ture will be no more hazardous ing any proposed construction, change of occupancy. It also provides based on life safety, fire safety, alteration, repair,enlargement, its users a listing of previous cases and sanitation than the existing restoration, relocation,or moving heard by the SHBC Board. While building. of buildings within fire districts. decisions are recognized as precedent setting, all appeals are judged on a Chapter 6 of the UCBC expands on The SEBC contains no provisions case-by-case basis. the concepts presented in Section specific to historic buildings. 3403.5 and identifies specific require- Also, of note is the State of Georgia's ments that must be met related to fire Many states, including Wisconsin, approach to historic buildings. Article safety,structural safety,and change of Connecticut, Hawaii, Indiana,New 3 distinguishes between landmark occupancy. York,North Carolina,and Pennsylvania museum buildings(open to the public include special provisions for historic at least 12 days annually,and which structures. Few have progressed as retain a high degree of architectural far as the state of California which,in integrity),and historic buildings or structures. Landmark museum build- solutions for historic properties should tions. Preservation professionals must ings are exempt from most provisions also be created and made widely assume the responsibility of directing of the building and fire code: still accessible electronically. Such an attention to code compliance issues. required are portable fire extinguish- effort will become more practical as ers,smoke detectors, exit signs. man- single codes for building construction Finally,administrative solutions that ual alarm pull stations, emergency and existing buildings continue to be encourage creativity and flexibility lighting,approved occupancy loading, adopted. should be encouraged. While this and inspection of mechanical and may require the widespread accep- electrical systems. Other historic Finally, serious attention to the tance of performance-based codes, buildings are treated like all existing impact of codes on existing and his- the increased use of appeal boards can buildings,with the exception that the toric buildings should be rekindled, also achieve this goal. Appeal code official is directed to consider Members of the preservation commu- processes should be carefully exam- the state and federal preservation nity should support further research, ined to assure they are accessible and guidelines, increase communication with local not excessively burdensome. code officials, and expand their partic- ipation with those organizations prin- Future Directions cipally charged with these regulatory Acknowledgment responsibilities. Workshops and writ- There is still much to be done to ten materials oriented to both the Safety,Building Codes and Historic accommodate the special needs of preservation and code communities Buildings was written b Architect historic properties in the regulatory should be updated and made more Marilyn E. Kaplan. Ms. Kaplan is the process. Preservationists must widely available. Efforts should be principal of Preservation/Architecture, increase cooperation with local build- made to bring together individuals a consulting firm in Kinderhook and ing and fire officials on individual representing different facets of the Ithaca, New York specializing in his- projects, in addition to working at the building field at the national, regional, tonic preservation. She has written state and national levels where and local levels, and lectured exclusively on building research is undertaken and policy codes and historic structures. established. Preservationists must also take on the education of building owners, man- Additional work is needed to expand agers,and public officials. This is Resources the documentation of fire ratings and critical as all phases of project plan- characteristics of materials and sys- fling and implementation are impact- State Historic Preservation Officers terns typical to historic buildings. ed by efforts to address a building's (SHPO)are the state-level public-sec- This will involve testing by recog- historic nature. Additionally, owners tor preservation partners. Each state nized laboratories whose documents should be made aware of the need to is required to appoint a SHP()and to are most commonly adopted as refer- retain architects and other consultants appropriate funds to match federal ence standards. experienced in preservation, preservation dollars. States are required to identify historically signif- The results of research in the fire On the individual project,the design icant properties and nominate them to engineering field, particularly with professional,preservation representa- the National Register. SHPOs also respect to computer fire modeling, tive(s), and building official should administer state and/or federal grant should be transferred to the codes begin coordination as early as possible programs, provide technical assistance for historic buildings. Eventually, in the project's planning. All parties on rehabilitation and the National these can improve the ability to must recognize that successful solu- Register atid participate in the federal quantitatively and verifiably evaluate tions require full cooperation through tax incentives certification program. alternates and equivalencies that can the project's duration. Historical architects and technical meet or exceed the required level of reviewers at each SHP()can identify protection. Legislation and Administrative individuals and resources to assist Processes with code-related problems. For an A regularly updated survey should be up-to-date list of SHPOs with maintained to identify the special It is the adopted and enforced code addresses and phone numbers,contact: provisions and codes that exist for documents and accompanying admin- National Conference of State Historic historic buildings nationwide. This istrative procedures that dictate the Preservation Officers,Suite 332, survey should also address how spe- ultimate treatment of historic build- Hall of States,+14 North Capitol cial purpose requirements,such as ings. It is critical that those in a posi- Street, N.W.,Washington, D.C. 20001 the Americans with Disabilities Act or tion to effect change are aware of the (202)624-5465. seismic requirements,affect historic problems faced by historic properties structures. A data bank of successful and the availability of potential solu- Local or State Code Enforcement Publications 912 Recommended Practice for Fire Agencies maintain primary responsi- Protection in Places Of Worship/1993 bility for code adoption and/or Association For Preservation enforcement,and can also provide Technology Bulletin, Regulating 914 Recommended Practice for Fire technical assistance and code clarifica- Existing Buildings,Vol.XIII No 2, 1981. Protection in Historic Structures/1994 Lions. They are usually located within the state or local government building Building Rehabilitation Research c' State Historical Building Code. State of or planning departments. Technology for the 1980s. National California,Nov. 1990. Contact: Conference of States on Building Department of General Services, The National Fire Protection Codes and Standards Inc. and State Historical Building Safety Association is a private, national National Bureau of Standards. Board,400 "P" Street, Fifth Floor, organization dedicated to all aspects Dubuque, Iowa: Kendall/Hunt Sacramento,Calif. 95814. of fire protection. The NFPA pro- Publishing Company, 1980. duces technical codes and standards The Impact of the Americans with and develops educational programs NBS Special Publication 524, Disabilities Act on Historic Structures. on a wide range of topics. Assessment of Current Building Regulatory David Battaglia.Washington, D.C.: For more information contact: Methods as Applied to the Needs of National Trust for Historic National Fire Protection Association, Historic Preservation Projects. Preservation, 1991. Battery March Park,Quincy;Mass. Washington, D.C.: Government 02269(617)770-3000. Printing Office, 1978. Controlling Disaster: Earthquake Hazard Reduction for Historic Buildings. Model Code Organizations: NBS Special Publication 549, Rachel Cox.Washington, D.C.: Building Officials and Code Proceedings of the National Conference National Trust for Historic Administrators, Inc. on Regulatory Aspects of Building Preservation, 1992. 4051 W. Flossmoor Road Rehabilitation, October 30, 1978. Country Club Hills,Illinois 60478-5795 Washington, D.C.: National Bureau (708) 799-2300 of Standards, 1979. International Code Council Impact of Building Regulations on c/o International Conference of Rehabilitation-Status and Technical Building Officials Needs. U.S. Department of Commerce 5360 South Workman Mill Road and National Bureau of Standards. Whittier,California 90601 Washington, D.C.: Government (310)699-0541 Printing Office, 1979. International Conference of Survey of Building Code Provisions for Building Officials Historic Structures. U.S. Department of 5360 South Workman Mill Road Commerce and National Bureau of Whittier,California 90601 Standards.Washington, D.C.: (310)699-0541 Government Printing Office, 1976. Southern Building Code Congress Access to Historic Buildings for the International, Inc. Disabled. U.S. Department of the 900 Montclair Road Interior.Washington, D.C.: - Birmingham,Alabama 35213-1206 Government Printing Office, 1980. (205)591-1853 The following publications are available from the National Fire Protection Association, Quincy, Mass. (617)770-3000. 910 Recommended Practice for the Protection of Libraries and Library Collections/1991 911 Recommended Practice for the Protection of Museums and Museum Collections/1991 Information Booklets Information booklets are published by the National Trust for Historic Preservation. For a complete list of titles in the series call or write: Information Series, National Answer Your Preservation Trust for Historic Preservation. 1785 Massachusetts Avenue. NAV.,Washington, Questions D.C. 20036, (202)673-4189 or(202)673-4286. FAX(202)673-4223. (As of July 14, 1996 phone numbers will be (202)588-6189, (202)588-6286. FAX(202)588-6223 Copvright01992. 1996 National Trust for Historic Preservation. Richard Moe,President, National Trust for Historic Preservation Peter Brink, Vice President, Programs. Services and Information Katherine Adams,Director. Preservation Services Elizabeth Byrd Wood. Editor Andrea Goldwyn,Business Coordinator Join Historic Preservation Historic Preservation Forum is a membership program for professionals and orga- nizations. The benefits and privileges of membership include subscriptions to Forum: The Information Historic Preservation magazine, and Historic Preservation Forum journal.Forum Clearinghouse for the News, participation in financial/insurance assistance programs, technical advice, Organized Preservation substantial discounts on professional conferences and educational publications. and access to Preserve Link, the computer-based communications system Movement designed for the preservation community. New Information booklets are available free upon request to Forum members. To join,send$90 annual dues to: Preservation Forum, National Trust for Historic Preservation, 1785 Massachusetts Avenue.NAV_Washington, D.C. 20036. (202)673-4296. The mission of the National Trust for Historic Preservation is to foster an appreciation of the diverse character and meaning of our American cultural heritage and to preserve and revitalize the livability of our communities by leading the nation in saving America's historic environments. Support for the National Trust is provided in part by matching grants from the U.S. Department of the Interior National Park Service.under provisions of the National Historic Preservation Act of 1966. The opinions expressed in this publication are not necessarily those of the U.S.Department of the Interior Offices of the National Trust for Historic Preservation National Headquarters Midwest Office Mountains/Plains Office 1785 Massachusetts Avenue,N.W. 53 West Jackson Blvd..Suite 1135 910 16th Street,Suite 1100 Washington.D.C. 20036 Chicago,III. 60604-2103 Denver,Colo. 80202-2910 (202)673-4296 (312)939-5547 (303)623-1504 (Illinois,Indiana,Iowa,Michigan,Minnesota, (Colorado.Kansas,Montana,Nebraska, Mid-Atlantic Office Missouri.Ohio, Wisconsin) North Dakota.South Dakota, Wyoming) One Penn Center at Suburban Station Suite 1520 Northeast Office Southwest Field Office 1617 John E Kennedy Boulevard Seven Faneuil Hall Marketplace,5th Floor 500 Main Street,Suite 606 Philadelphia,Pa. 19103-1815 Boston.Mass. 02109-1649 Fort Worth,Tex. 76102-3943 (215)568-8162 (617)523-0885 (817)332-4398 (Delaware.District of Columbia,Maryland, (Connecticut,Maine,..11assachusetts,New (New Mexico, Texas, Oklahoma) New Jersey,Pennylvania,Puerto Rico. Hampshire.New York.Rhode Islandi-ermont) Virginia, Virgin Islands, iVest Virginia) Western Office Southern Office One Sutter Street,Suite 707 William Aiken House San Francisco,Calif. 941044916 456 King Street (415)956-0610 Charleston.S.C. 29403-6247 (Alaska.Arizona,California,Hawaii, (803)722-8552 Idaho,Nevada,Oregon, Utah, Washington, (Alabama.Arkansas,Florida,Georgia. Pacific island territories) Kentucky,Louisiana.Mississippi.North Carolina.South Carolina. Tennessee) ,dot , • :NSF . O. R=MfA T I O N: _• Information Series No.62, 1992 REVIEWING NEW CONSTRUCTION PROJECTS IN HISTORIC AREAS The design of new construction in a historic context is a subject that so- licits passionate opinions from everybody—architects,neighborhood activists,developers,property owners,even the supposed casual observer. Consequently,it is not surprising that new construction projects in locally designated historic districts continue to be among the liveliest,and most challenging applications that preservation commissions review. Reviewing New Construction Projects in Historic Areas: Procedures for Local Preservation Commissions was first published in 1986 by the North- east Regional Office of the National Trust. The purpose remains the same: to encourage responsible,rational decisions by providing preservation com- missions an outline of the basic documents and procedures that are essen- tial to the public design review process of new construction projects in historic districts. In 1986,there were an estimated 1,200 locally designated historic districts in the United States; six years later, that number has groi.nn beyond �v��u beyond 1,800. The same six year period has seen a gradual decline in the number of new construction projects in historic districts which reflects the national eco- nomic climate.This does not mean,however,that preservation commis- sions, especially those that may be reviewing new construction projects for the first time,are finding these decisions any less difficult or complicated. In addition to a new set of illustrations,there are minor variations worth noting between the 1986 and the 1992 versions of Reviewing New Con- struction Projects. The 1992 version encourages communities to revise the basic documents,i.e.,surveys,preservation plans,design guidelines,and or- dinances,that govern historic districts. Many locally designated districts are entering their second, third,perhaps even fourth stage of development but the documents are woefully outdated and do not reflect the districts as they now exist. The resources that are available to preservation commissions have grown and/or strengthened considerably. The Certified Local Government pro- gram(CLG)is one example of an organizational resource that has impacted the establishment and operation of preservation commissions in many states. Technological resources such as the video taping of an entire dis- trict,computer imaging,or computer mapping systems are being used or at least considered by a greater number of preservation commissions. National Trust for Historic Preservation -17'4'- (:. Preservation commissions review a -:-.7'.,:er : ,1.:. ,..1' '7:. range of design solutions for new cl - .--'..f ...1.00(..-, :4 • -. • ' - - ' '" 7... 1.-. • •• s :,--,•,,.... ,,..- '"'-- - - •.1w, ---" ' 'c'''''. -- s:10, ' , '";*----- --construction projects in historic agicir4gir 7 ••,• - • • -"4. ,.;,c.,' V :..•-. . - --11.---...o settings. The New York City . , elti.folff9- r.- ---- -.. 3.'%-;e4r--:,-,...: +-.. -n--.' ' '' •-t:i. '..-,i - - • Landmarks Preservation Commis- —_ ...- .--.... -...----7, sion approved the reconstruction of .. - -razor ...tu 4.,r1-6-"4"4- •-:::il .r. ' ' ` .%11;-:* ,I. a row house at 27 Tompkins Place ,:;4•,. t, -L-11,1 in ,: the Cobble Hill Historic District '17-i'-' . _ 4 .q1,1 ''-`-",-•!=-,, .---4,,:: ••• 2 ::1"7...1- :.41,, in Brooklyn. The original structure k'V--"-"*..:' , =I ..::.-. ..._. ---.:V.Lt --t-..:••1 i:- - ' ,'•• !- :- was destroyed by fire and reconstmc- 4. .7,-- :,g( -.1, A". - don was considered the best solution _--N:15._pir Twiqi_...t7 — ..., ... " K., • • ..4,: -- - _ -71. to maintaining the continuity of the ivc.a.,L -_ -- -FE,-,t- ..,-- :-_ kap.,:r. streetscape. The new structure is a ,-; ir.... ,.. - --- m.o. .._„_,_ - ----,- 1_ -"i; ,.In. II ---, Lak . . two family c.ondominium. Architect ,; ,-zi!;;;;;'...,4-7,-;-2%,-, ! ;::--_-- --- - - I. -,:.-_,=7---7-• -- ,.. :•=m7-.f.;.-:;--.. -----..- DiFiore,Giacobbe&Associates. si. ' -•--..-,--,.:*v-.-- - i..:.----:,7,-.--4-- ---Y...- .. .__7-%--L---11-_,.....,--,_-:-711-17,--- --7-,...4:-. 2. '•••-s:-•::ej.2.----,: C4?'' t!"-1,41i!-V44; ,Z7,-}:,•:,...,:r..7...:,•;ft:_._-_-:-------7=.7:.--.1.-.:.-,._-_:-.7-:-7-_-::-.7.7,-z-_-=-= r _.. -,:- =2„:_:_7..-71;•_-:_-=-=-7:Z.,r-.72:._-::-;:="---f-.2-7-4-_-.72.• r',7;' Pc ..-111 :---7:7-?,40*,..;4; :`..';'1441,M11111!' -- -- :;' -r-'''-'7- ------'--4--:14.'.'"""'..1"-""L-E=.•:-' __. li::::--rt:ItEr:-..t:-77;11-1."-,,, .._--=7:--El:7:f j !• :'''..' A:AK.... ._.IFIES.`•-7 ::-.:.•: 4:4-1.5.5, ttip0X••• _jf.::::-._ ; fk2-7:' '... 4:74 ''. fOil.....-..p•--, 't•Fifill Z--'' ill 1 •'.Z. 11'.1':et's ' tit 41Z-s-j-r7 L t.- 1.7'-gt1;_1:: =MN ;:r.7-71:::fa......._ ' .,-- 7 -• illivr-Ally a....., t±:ata:_ar: 7ff.=_:: aEri:ri a. F:. - --,-,41 ,_________ • I:.-4.-_- _,, \ ---,E-73-.----f-E- -.. ; 2 4:44-f-, \_.._. .:.. -:.__7_- '3:41i:ft; tr. . - •".rT`.1-7-;---:E.Lr'_.,.__-_,:__4-.1 F.:1 •,,. . .7.--- --_'±. -.-: 3:":1-77-"- -747. 7---"--T1., , ., v.•m•1 >-':- 'yr.': " • rEff,-,:42.,*-#X* .....1 11, =IIIIIIMIE ".."'2:::4.-4,-" . Nt r---i- ir_ .,—........._.....,- :▪ . . ii tz m•••• rfue-----lis"A d7 .-__'_L•_-: ..,"!"-.t 7:t.-- ,--"• Ilm. ,-.... :, -, -. -- , s.., , 1.- " -• -- ; - -•:,--, ..././/./ .!,_- t, ::•-.z-k";421;37• .- ---t.'A- - - -wine, ________ - ...ram,.. --.,- - •--• - 4.7'• . _ - 11, . OMiimM.•;.................""" ilk . .-;• •-: .-.1.-.4, — i • ,-• --';' ir - These developments as well as other factors suggest that the 1990s will be progressively active and challenging years for preservation commissions in their capacity as reviewers of new design in historic districts. There will be a greater melding and coordination of the oftentimes overlapping if not con- flicting functions of preservation commissions and other municipal plan- ning and zoning boards. This will expedite the application and review process,make it more understandable to the public, and hopefully, relieve many preservation commissions of being held solely accountable for new construction decisions in their communities. Although the number of districts will continue to glow, albeit at a slower pace, organized opposition by property rights groups to both the designation of additional districts and the administration of existing districts is also likely to grow. This could discourage new construction in those districts that are perceived as being unstable or threatened, or inhibit commissions from regulating anything beyond minimal design standards. There are many reasons why a local preservation commission should oper- ate as professionally as possible,regardless of how long it has been in exist- ence,and this publication is intended to benefit commissions of varying experience. The steps and procedures outlined offer a basic guide for newly established commissions. They also serve as a checklist for seasoned com- missions to measure performance and identify areas of their review process ril The same New York City Land- _---- marks Preservation Commission -'� \_ \� approved the glass-roofed conser- E11.1.L,1 u�• __is+.....;4 ---- vancy or garden court that con- - nects the Italianate brownstone :, • ..:, mansion built in 1852 for J.P.Mor- an; ff,.... ,,, seas f��� �,t. -=� - - = r�--•. ,,-- , - ; gas,Jr., with the Pierpont Morgan '4 ,� -r t3" ;, ,�, - s4.r. Library and annex,designed in :;, ;,[, 4r s -: r t-r -7 �-; E I j.. - 1906 by Charles F.McKim and in son. ' uu&Q���.r uu t... � ,--'- ! ..t.._. I • ;''� fur.=■r■[ [ = .. '' �....kf..A, �."'.. .4. -�- I- j) . 1 , I6.■ ■"■ 1928 by Benjamin Wistar Morris, '.�"', !"' . . ;) 'I _, '�" `—, I. ' i I I C respectively. The Madison Avenue i-. `'{ a®' .' aY -- - r ' ' •1 "'�' '• elevation was among the materials ®>• r • e. ..�.. ...�. .. pp Rr « =4. -a [ ' [[[[ n[9 I reviewed by the commission when i►i1 y it- " 3 - �,g`` _ _ `�_ ■��11*NM 1 making its decision. Architect: — —_ 1r+'_"I" ''g_ ___ '` I nS��I Voorsanger&Associates. .� •.i ► -i lw,---..,_.,--,-e - -- - - i '' M •PR' .X.• dAir -,,,—..,, -r--.,—.,, a. cig is v I, _ r- Ne .. . !,/ L. • ,+tea E pr c.,.m. �� V: a M ra r €;a 4 I L -' - -..,, �� f''j r awry I� t r ay!! It4' u' ' ' . 1 t ' 'r--**--•,171:1.- . 1-i"`` +} --t =_ r .•F. ` 1 i 1. ---. IA '' tom t .: ..*-:.1_. A FA Ita::i lS- 3iT('.FA, / killitglil - ; -•.. �,A g %Rtt'1-PI i.Cs_+ 4(-L• , t {�. . P wr • .n r: 4sw+- J., .re_-1�_ — - .lift - :-.- A building-by-building map of a .....,.., district is a necessary and easily — )N_/ understood tool for illustrating such things as building signifi- 7 71_._ ..‘\r cance, condition,age, current use, ,--r- P • ,--- :--.1"..--3 -".- zoning,and vacant land. In addi- I ......., ,....,.., .--- - iTtit= don to a series of maps, the Whole- sale District Historic Area Plan for . =.-- t„,..-..,..., • :i 1.... Indianapolis also includes dia- - .l ed i g ',E=1 = !, i, . I-1 ; grams that illustrate the develop- - , ..-, ,— able envelope for vacant land in the E 17 ! district. The plan explains that the :I : WHOLESALE diagrams do not indicate appropri- ,!, 1 _, ate building shapes but rather, the E 1 -7:minjumi I=mom.; d t. ''''''' ' . , allowable maximum massing and i '- ' LE _ •11 F-7.----',, .. .., _ , ____ height of infill construction. ,i J Building SIgnIfleunee Z. ..-,„. Ca•frerting r..." = .- —.-------.—---- "'..--.:-., -:: -,- :-,._ MI Intr.1. ...,-, :...... V ti,i .. . 4-" §.. — I!. I t HZ 1 1 i 111110k. II °"1•111111111b Alg'illuk0 1.1111111hdll 111101111!),17,7,:i .4P..-10,/ 4-4 ,_ 'w,,,- ...- °. ''...., 4 0 .,,..' c 5 0., -6 that need improvement. The recommendations take into account the wide discrepancy in resources that are available to commissions. For example, some commissions are assisted by support staff;however,many still operate with little or no staff. In some cities and towns, a sizable design community exists while in others it does not. Despite their differences,most preservation commissions share a desire to improve their expertise and effectiveness. The recommendations that fol- low will help commissions make decisions on requests for new construction but they do not and cannot provide absolute solutions. Every request for new construction in a historic district is site specific, and what was success- ful in one location can be a disaster in another. The challenge for preserva- tion commissions is knowing how to make the judgments that will preserve the distinguishing characteristics of the district while allowing expressions of change and adaptation. 0 Design Review: The Essential Documents Basic operational tools and procedures are essential if commissions are to give a thorough and fair review to applications for new construction and if applicants and the public are to understand the process. These are the same for both new construction and rehabilitation projects and include a survey or inventory,a preservation plan, an ordinance, design guidelines, and ad- ministrative procedures. The Survey:Documenting Your Historic Resources The survey documents the resources in a historic area. Through written descrip- tions and photographs,it records information on all buildings and sites such as their age,style,type,and condition,and on other visual elements such as open space,vacant lots,vistas,street and landscaping patterns,and sidewalk and fence materials and design. The survey identifies the distinguishing characteristics and special qualities of the area and helps determine district boundaries. It forms the basis for the preservation plan and the design guidelines under which rehabilita- tion and new construction projects are reviewed. Survey methodology is important because the results will have both imme- diate application to the documentation of existing conditions and long-term application to proposals for rehabilitation, demolition, the moving of struc- tures,and new construction. The cohesiveness of a historic area depends on many factors including those buildings and sites that individually may lack distinction but collectively support the broader design and cultural features of the area. The method for collecting data should accommodate these fac- tors because the survey results will influence decisions on the alteration or demolition of buildings. For example, surveys based on a ranking system tend to make buildings and sites that are collectively rather than individu- ally important to a district expendable and,therefore,vulnerable to demolition. The preservation commission will refer to the survey forms,visual records, and base maps frequently. The information should be available to the pub- lic and will be of particular interest to property owners in the area. The survey information should be regularly updated as well as incorporated into a citywide data base. If a survey did not originally identify the location of vacant,buildable lots in a district, this should be included in an update. For districts in which there is mounting pressure for new construction,a supplementary survey of vacant lots may be advantageous. The Preservation Plan:Defining Your Goals A preservation plan provides a descriptive overview of the historic area and outlines the philosophical goals and the recommendations for its preserva- tion and development. It should be based on an analysis of the survey re- sults, other planning and zoning regulations for such things as traffic and parking, use, density and new development,and input from property owners and residents. The plan need not be lengthy but should include clear, con- cise answers to the following questions. There are two locally designated -- - - - - - ,r- • - - -----, • , districts in Breckenridge, Cok.as -----7=-1----- __-- ..• . -..., -. _.- .._,. . shown in the map on the right The - conservation district embraces the -- _ _ _-- ,•---T- 'i-'--11- • _ . _ . - , core area of the older part of town -,..- i . :.--.-, ,r--- -j ..and serves as a transitional zone as distinguished from the historic dis- 1.-1.-_- . _----,:__-------.,‘.. _____- - _------:......-----11 _ -:--_.- I-. - -- -:-- - _ --;.• `.-----1„.0.--1 - _ ---,.. .--------- ••_.- ... trict which contains the greatest ----- ' - 't 4A-5---- ------.. -'-'_-_-_:,- A .Va' ___----::--I,--------,...- _----- ...---‘:-.•.--.-. .. ..___. concentration of historic structures. 00,040- _ --.:._ -- •-,_.....-----•_-,...-,-,-..,_!--„V- „0„,.....-1,-A ,_1- .,... --' - Design review is applied to all - _ --- ---_-_-_-------1---- --,---_-_-:-.:_-•---=-,. ----„T--1- --- _ -----_-- projects in both districts but new . . =7---77: ---. -- i-_,----_- -_:_-_--,-- - _.---__ - ") .. , construction criteria for the conser- "4 - - • -... . _ ' --- ,-------_-_- -_-------- .....-- vation district is broader than for 1.-. -- .... .... ' the historic district as explained in — 1"----1-------emremnm...••••••_r_w•••••••••.......n......... LEGEND ------ - the Handbook of Design Standards .... .„.„. • _ . ,.._ --- Lace!Historic District Boundary ',...____—.----:-- National Register Historic District Boundary for the Historic Conservation Dis- —--- --- Conservation District Boundary tricts. In addition,as shown in the map below, the districts have been r_......_______IM subdivided into character areas _ --- and design standards have been _ _ _ _ - • printed in a series of separate • . --__. , ---—-- , _ _-• booklets for each area. , . - ., . _ . . . , __ _. • • \OM" END _=- ")r-'''''''!'"--"'""'. .,..,____ -•Trfrioum•Frp ne....,,t'''' ,---- -- Re...Tr. - - -------- - ..' -"A.,1•BN.--- ,...___....--- ,/Ire,lim.ROSE 1,1..SMOk — f_o!--1::-C-.':' ----. . _f_t1_____..'JX-4ft-lit'A:f; y-;'----..- ,''• / -- >, ; F. ' rB maiini END n9E...Mt. -- ---C"'"°-4. ,612i-•;;;;I•ai . '- -:----'-e..". • - - ' _ • U i -6 C3 I. I.,:°="41.,,,,,., . _ SIMI'RESIDEIMAC- - SITrtrr 'Mtge 1 . ..r.: 41)PioaTif rani . ,IR, .1.1 1 ...,- •What is significant about the area? • What are the physical characteristics and the special qualities that make it significant? •What do we want to preserve? Determining how to maintain historical and architectural integrity is prob- ably the greatest challenge when defining the goals for a historic area. The complexity of the task increases as the opportunity for new construction in- creases in a district.For example,a goal may be to preserve the image of the area as unchanged as possible;to preserve the integrity of the district while allowing change;to create a sense of continuity that does not exist at present;or perhaps a combination of these approaches. Defining the goals raises other questions. •Is visual compatibility more important than authentic representation of the evolution and change of the district? •Does imitative architecture distort or enforce the goals for the district? •Does the volume of new development threaten the integrity of the district? •What is the long-term potential for new construction and what will the impact be? It is essential that these questions be answered because they give needed di- rection to applicants, designers, and preservation commission members when considering new construction and rehabilitation projects in the area. A plan also should recommend ways to achieve its stated goals. As an ex- ample, the survey of a neighborhood identifies a concentration of significant residential structures ringed by vacant lots and buildings similar in scale but altered and of mixed use. The plan might recommend that the core be des- ignated a historic district with explicit guidelines for the rehabilitation of existing structures, and that the outer area be designated a secondary zone with guidelines that focus on new construction and more lenient rehabilita- tion standards for existing buildings. This particular example addresses the edges of historic districts, an important but frequently overlooked issue when historic districts are designated. Once again, the preservation plan for a historic district should be coordi- nated with other planning departments and updated periodically not only to reflect changes in the district but also to redefine the goals and objectives if appropriate. The Preservation Ordinance:Your Legal Mandate The local preservation ordinance is the legal mandate for the designation of New construction in a historic dis- historic districts, the establishment of preservation commissions, and the trict is often tied to a request for adoption of procedures for administering the districts. It should include the the demolition of an existing struc- following provisions that are particularly relevant to new construction: ture. Some preservation commis- sions will not consider demolition •approval of new construction,both additions and free-standing buildings; requests unless a replacement • approval of new construction projects that is not contingent on replication project is also presented for review. of specific architectural styles; This line drawing of the one-block • approval of alterations or demolition of all buildings in a district, Blakemore Conservation Zoning regardless of age; District in Nashville, Tenn.,shows • a demolition clause granting a commission the right to deny demolitions the conceptual design for a low- or, at the least, to delay them; scale office building in a row of • a clause that defines minimum maintenance and demolition by neglect; early 20th century residences that • a requirement that demolition requests include future plans for a site;and have been zoned as a Commercial • a clause that requires archeological investigation at least on historically PUD with a historic overlay,and significant sites if not all new construction sites. adapted for retail and office use. Based on this drawing, the Metro- An ordinance may list detailed criteria and procedures for reviewing applica- politan Historic Zoning Commis- tions including new construction or, after outlining the general purposes sion granted the demolition of a and functions of the district and the commission,it may refer to a separate bungalow which was considered of document or documents detailing guidelines and procedural standards. marginal architectural merit and The latter approach allows greater long-term flexibility primarily because in which was adjacent to a vacant lot. y '� rk• U kJ •U 1!3 ! r � I _elite 1LS�f j C Line drawings are an effective way of illustrating the streetscape and building characteristics of a dis- trict. The facade elevation shows UPPER FicoR F,./WGE a. GENERAL TYPKAL a specific commercial streetscape vARIATION r,1 ALIGNMENT VINDOW t5 5c0D, WILDING 1IEIGHT5 Cr CCRNICE5. 5HAPE. S1ALLNINDOv5. in Telluride, Cob . ). -7-77 n MP 1E it] ,.A• In districts where there is greater <! - ref •• -7 4 ; TrI -I!! gal - variety,isometric block drawings can be useful. The guidelines for FIR5T FLOOR. MOLDNG5 ,r1COR 15 iR.ECE5.5ED Galveston, Tex.,illustrate a typical ARE ALIGNED_ __ OPEN TRAN5PARENT ENTRANEE5. block in the historic district and include a conceptual drawing of a new primary structure inserted in the block. 1141110 Sources:Design Guidelines for _- Buildings in Telluride by Winter& Afr Company and the Telluride Corn- 4144 4 k munity;and Design Guidelines for the Historic Districts in Galveston, "* Texas, by Ellen Beasley. rt" o, Alkt1 - *7% 1 NEW PRMARY SreverzigE-: 4). 51m/LA g ShAPE ONE PZirLik'Y F/VT ZIA/CE- THOUG-1/ TWO F. 5LAE 1L6C7GE5 HIDDEN r,e01.4 MA-pi 1-Nrgy/r-AeE-5 szcs-e-r es TYR/e,4L most communities the political system makes it difficult to amend an ordi- nance. If separate documents are used,they should be prepared as soon as an ordinance is adopted. The Design Guidelines:Adopting Your Standards Design guidelines are written standards against which applicants should measure planned projects and preservation commissions should review them. The guidelines analyze those qualities and characteristics high- lighted in the survey that should be preserved and restored in rehabilitation projects as well as respected when new construction is proposed within the area. They provide a common body of information for all participants in the review process. For the purpose of reviewing new construction, the guidelines should iden- tify and illustrate the basic design elements,not style-specific, that establish the character of the area. The guidelines also must indicate the relative sig- nificance of these elements. For example,in a historic district composed of late 19th-century brick row houses, all similar in scale and style, the most significant elements may be the basic building volume, street alignment, and material uniformity. The overall homogeneity of the area is more --."7-.7- = The eight-story Olympic Block was `_ built on a central,highly visible _) `:; i corner in Seattle's Pioneer Square g A Preservation District and was part ;m of a historic rehabilitation tax "" credit project that also included :iil the rehabilitation of the adjoining it • historic structures(foreground). I ""' The project, which went through t r .... multiple-layers of design review on r ��, .... the local and federal levels,gener- i F.i 9 " ' ' ated considerable public interest. v ' ' !;�• �* i It is a mixed-use project with resi- v 1 i dential usage on the two highest -• - t: ; ivw 1rrr t g floors.Architect: Hewitt/Olson/ /111• /rr - "'`-: . Walker/Daly/Isley. __ y 1r - , • • 4 L' , s I. ,,,,..0 iI1r ..",41i,' ' --- . Pr 1 . ; - ''9, "'...3.1. - 4-42; ' • y r 10 •fit •`• ,``• 1 E ~• .V • .R important than individual buildings. The guidelines for such an area should state clearly that these elements must he the primary consider- ations when designing and reviewing infill projects. New construction guidelines should stress the importance of context,including the relationship of a proposed project to abutting buildings and side streets. If characteristics differ within the district itself,the guidelines should indicate that the design standards also vary from street to street. The guidelines should re- quire an applicant for a new construction project to document the context of the proposed work in submission materials;the preservation commission,in turn, must be familiar with the design standards and any variations within the area. Design guidelines for a historic area should not dictate certain styles for new buildings unless one of the goals for the area is restoration to a specific time period. Most districts, however, exhibit an evolution of architectural styles and cultural trends including the 20th century. Therefore,guidelines that emphasize context and design elements,rather than styles, allow the broadest and most flexible interpretation for new construction. Participation in the development of design guidelines is an instructive exer- cise for a preservation commission because it requires close scrutiny of the area. Someone with expertise in visual analysis must be involved,such as an architect who is a member of the commission,a staff person, or a con- sultant.The resulting document should be simple,graphic,and easily un- derstood by the general public as well as design professionals.Commissions and communities with greater resources may wish to use computer graphics to develop their design guidelines or have a scale model built of the historic district. The design guidelines for a historic district should be reassessed on a regular ba- sis. For example,many districts begin as residential areas but uses gradnally shift to commercial and office activities. New construction is of a larger scale than originally anticipated and yet the guidelines still apply to a residential district. Commissions participating in the Certified Local Government program through their state historic preservation offices or administering local his- toric districts that also are listed in the National Register of Historic Places and that contain income-producing properties or Community Development Block Grant and Urban Development Action Grant target areas should be familiar with The Secretary of the Interior's Standards for Rehabilitation. Certain projects,primarily additions to historic structures,may require re- view by the local preservation commission, the state historic preservation office, and the National Park Service of the Department of the Interior. Some state historic preservation offices require that communities in the Certified Local Governments adopt The Standards as part of their design re- view process. The Standards include very broad guidelines for new con- struction but do not address the individual characteristics of local historic districts. Consequently,they should be used in conjunction with,but not in place of,guidelines written for the specific local situation. Design Reviews: Administrative Procedures Both the preservation commission and applicants for new construction projects will benefit from a detailed set of procedures for administering the review process. These include a step-by-step outline of the review process, submission requirements for applications,and a system for maintaining the commission's records. Many commissions distribute brochures to explain the process. Administrative procedures should include a system for public notification through local newspapers and posting commission meetings in the city or town hall. The Design Review Schedule The review process for new construction projects varies from community to community depending on the division of responsibilities among city depart- ments. The schedule for the review procedure and related activities such as building and special use permits,zoning changes, and the appeals process should be outlined. For each phase of the review process, the applicant should be informed of the department to which application is made, the de- cisions and actions to be expected at each level, and the time frame. If some decisions are made by staff, this should be explained. 11 The Submission Requirements Commissions must remember that their decisions will be based entirely on what is presented verbally and graphically by applicants and that the submission pro- cedure must require enough information to make fair decisions. The require- ments should be tailored to the design resources available in a community as well as the scope of specific projects. For example,a scale model may not be a re- alistic requirement in a town with no design professionals nor would one be nec- essary for minor rear-lot buildings. The recommended minimum submission requirements for new construction projects are: • written specifications including measurements; •photographs of the site and its surroundings including side streets; • facade elevations; • primary street facade elevation(s) superimposed to scale on a photograph of the streetscape; • material samples including a sample wall on location; and • color samples if this is a design review responsibility. Ideally, submission requirements for new construction in historic areas also should include: • a complete set of plans and elevations; • scaled drawings including street elevations that show the proposed struc- ture in context and all facing streets; and • a scale model in accurate colors showing the proposed building in context. The Visual Laboratory of the Historic Preservation Program at the University of Vermont assists a government agencies,preservation commissions, and citizen groups in uo of prvµuviuuaghviSuai e cct posed through the use of accurately scaled simulations of landscapes,rural villages, and even portions of the cities. In the ex- r ample shown,planners and citi- Ob` .• zens in the Village of Williston, Vt., — were able to visualize the impact of a commercial development on the town's rural setting. Xr j3 ! .f2, f • New construction projects in the r : r - • historic setting may have to satisfy r more than one set of design stan- r _ - °- -,= .,: dards. The twelve houses and "" Community Building built by the -� Housing Authority of the City of k Yuma(Ariz.)and financed by HUD . "� r. : '' i , F t✓ through the Low-Rent Public Hous- -��• t-- _ p.- " '. ing Program,are located in the ---,,,- �� Century Heights Conservancy Resi- • a tzt �1;; dential Historic District,a portion ' s, -- .,; F `+ ' `'"3.. of which is also listed in the Na- ..1. ram:• "'"—V` }� �Y - tional Register. The project had to * " ; _ " w , �' —7; ' ''' i�4 o b' meet the designstandards ofboth 0,:, •" `4 N- c „` ; the local district and HUD which, - '`" �-' '.."� .--- --. -.•:. ..--"_" ' ' - among other things, will not allow porches on public housing projects. 73 The review process resulted in the - ..jr?r 'r ` • • PLAYGROUND :•`. •:~.`• W 1 approval of a bungalow house type '-- k ;' rather than the adobe design that _ Bi 11 r r • • '•"' ' : was originallyproposed and the in- - :'•=:; :::•:>; 1 t I t ', )I t ..• . t `_11€1:111.'•1 p P • . .n. I I ■ I I I '�' elusion of"porchettes"on the front : %j l� = _ facades. Uniform setbacks and = _ - PARKING j front-street orientation for the '< .;,;,.;,;;:, 0 1 nit 1 I - < houses,as seen in the final site .--....'• - { n _}:r::;: •:i f 1 r I I i i t I 1 f plan,were other changes that -I?: pit ::.... evolved during the review process. r. _ ;::..:.:: *KM The complex received an Award of ... r` :.;:r :.: ,-:: x,-=-::�:%' . ^ :: Merit from the National Association :'' :::: ` ?::: {:'`:{ Of Housing and Redevelopment Offi- ��i1tt1�: trttiiIi --•-•-#; - �Sri � �iittrt � � tii � , trtt ! tIrr) r Ili _ cials.Architect HPL Architects. In communities where the resources exist, commissions should make the scale model of a district or computer graphics capability available to appli- cants. For example,if a commission has a scale model of a district that is large enough to make judgments and comparisons, the applicant would need to make a model only of the proposed building. Many commissions require a preapplication workshop or meeting with ap- plicants who are proposing new construction projects. The project design is discussed on a conceptual level as are relevant planning and zoning require- ments. The applicant may display working drawings at this time. The pre- application workshop can help reduce confrontations that may occur at a formal review meeting when an applicant presents final drawings that the commission has never seen and that do not meet the guidelines. Preservation commission members always should study the site of a new construction project before any discussion. Some commissions make on- site visits to such projects with or without the applicants. It should be clear to all participants that no decisions are made during either preapplication workshops or on-site visits. The discussions in both instances should be documented. Record Keeping A well-organized system for keeping records and filing applications is im- portant to the smooth administration of a commission and directly influ- ences its ability to enforce decisions. Minutes should be taken at all meetings which,ideally, also should be taped. Descriptions of decisions should be clear and comprehensive. Approvals, denials and alterations as well as the date and the initials of the chairperson or designated authority, should be recorded on drawings and other visual materials. Each applica- tion and related drawings should have a separate file folder. Before submitting materials, the applicant should understand what will be kept for the permanent files of the preservation commission and what will be returned upon completion of the project. An applicant should be able to supply duplicate copies of all the materials listed except a scale model which usually is returned. Design Review: Conducting the Meeting A thorough review of new construction applications largely depends on how commission meetings are conducted. Commission members should be businesslike,focused and attentive, and the commission as a group must understand its role as reviewer. Some commissions approve or deny projects without offering specific design suggestions whereas other commis- sions do. Most commissions are required to list their reasons for denying applications. Commissions should limit their discussion to those aspects of the project for which they are responsible and leave other issues of zoning and planning to the appropriate departments. It is important for the preservation commission to remember that the re- view process involves people and personalities as well as buildings. First and foremost, the commission represents a larger client—the public. As such,its primary responsibility is to make decisions that support and main- tain the goals and the standards of the historic area. The list of participants in the review process can include commission members, design profession- als,property owners,neighbors,builders, contractors,developers,preserva- tion organizations, support staff, elected officials,lawyers,and others. Viewpoints undoubtedly will differ,but in most instances, all participants • are eager to reach a decision that is acceptable to everyone. The key is to keep communication lines open and leave room for negotiation. Applicants should know what is expected of them in their presentations. At the conclusion of the application reN,iew,all participants should under- stand the decision that has been made and the next step whether it be the issuance of a Certificate of Appropriateness, a building permit, or a request for design modifications. To ensure a thorough and orderly design review meeting commissions should ask three broad questions that will guide them through any application for new construction: Commissions often review projects - . 4 that reflect a shift in use and scale ,. " c.,•_s�' `=II. . ��. • y in an area. The Providence His- :�. � ;_ , a i�1�.f h L. , .- toric District Commission re- �' `,...- an., •331 G•�'=- " � �' !` .� ,t i fr�.�l.a i d �► I V�`� viewed two projects proposed by "" ,. '``' ':R ��4 °�'K i4 Brown University:a residential Pitwt . , •.-.., +"-se'ok ► � .': complex and a parking deck. Each '--. `" ,• ;,,. .�.�."�• �`Y 'ti .. '! 04,,,, of the proposed projects covered a \. <_ mow;" ' a� . of el s, 1 +� 1. !oCr city block in the College Hill His- *` ;, `r- .yy - =A �� n •:i ,Q, toric District. The parking deck, kW t \ - . j ,%�". 'it A• x _ IA vd t which is visible between the trees • vs \ �' y=� R on the right of the photograph,; • • ;l 3 a �a.� 4 • .'''" `r5Ci was built on a block that was,at �. l_'��+ ''� �� � ',k '•-" �`' !r \• ��' 4sq`'••0-,i ice,-,;: .,- .k •.;� one time,a tennis court and then �. ;< ,,`A. pr,• i,�s- . ':» . . • �...k. a surface parking lot. As part of `.: r • _' ,r t-�,�`,:' ,✓e 1••• -y :Tti • , {�f•-', the review process, the university «" "�.;4tr Se; ' �_ • ,. r <4. y accepted a deed restriction with - ° 4.t, •• t . 1 •. 'ta ,the city that does not permit build- - ' -+ I)►9 - _ +;-a �t,Iii ing additional stories to the struc- � ▪ 1 4)J! r_ il ,--,_a�;, ,. , ,2 , :8� • ture. The residential complex y Y•- ,. >Ts 'ih•I r �x post-dates the parking deck. i- -; �- j'-„vt;`' r 4,.Y sy;'• A g The bay windows,intersecting r ,., ` '� , - 1 i'�,,: '' ;.I' -.-. "` - gable roofs, and yard space were ,..:, -liti. i. ,poll..,, , 1.� -, ...:14,,:,--'' . designed to suggest row housing -�, a -: II .• 1 '�- ` ';it .• '� 't': •'` ► -4=, and to complement the detached -fa. G- "01 1 ' ' ` M z- Y • _ single family housing in the = �' ', i - -. neighborhood, an example of r ',' .� '� i �ar WV which is in the background. An -s N-- : ; _ interior courtyard provides public ' 4 - 4 IIPIr space for the complex. Architect: :.' , 'ja 1, parking deck:Seymour Gage Asso- s E . ..,,, ciates. Architect:residential com- *-t f:"Q g P - s -: \ plea Davis,Brody&Associates. _ ..4_ "W g r- a -- 4,._ . '+. s-Y.,tom,•`-- — ' :t+ ` is �':.t eau�.� `. Does Everyone Understand the Application? Before the commission responds to an applicant's presentation of a proposed project, all aspects of the application should be clear to everyone. The requi- site visual and written materials should be prepared properly and provide enough information to determine the impact of the project on the district. There should be a consensus on the definition of architectural, technical and planning terms,and adjectives such as "compatible," "contextual,"and "appropriate." 14 Commission members frequently complain that a finished new construc- tion project looks nothing like what was expected. In many such cases, project files and documents reveal that design details were either unclear or unspecified. The commission should not hesitate to table or deny an appli- cation and request additional materials if it lacks sufficient information to make a decision. On occasion, commissioners may suspect that the appli- cant has deliberately obscured the intended design or materials. For ex- ample,a material sample may be"similar but not identical to the actual material" to be used. In such cases, the commission should request clarifi- cation even if it means delaying a decision. Does the Application Meet the Design Guidelines? To judge whether an application meets the design guidelines for the district, commission members must determine if the project supports and maintains the stated goals of the district and respects the design elements that charac- terize the district. The commission should be sure that the appropriate de- partments have reviewed the project for compliance with all other zoning - requirements such as geological and flood plain hazard areas, solar air rights, and off-street parking. Finally, the commission should evaluate the long- term effect of the project on the district. Having determined that the proposed project fits the overall goals of the dis- trict, the commission should evaluate the project in terms of the larger de- sign features such as scale, massing and height,followed by a look at the details. Commissions often focus on the details first, losing sight of the larger issues.This frequently reflects inadequate presentation materials that make it easier to visual i7e the details of a project than to visual in the mass- ing or scale. Attention to details later in the review,however, should not be overlooked:poor detailing and poor quality materials can compromise an otherwise well-designed building as many preservation commissions and communities have learned. 4,. .•• • o This single-family, three-bedroom residence is clearly a new structure • * but maintains the scale and mass- ing of the adjoining primary struc- tures in the Old Northside Historic • . v., t. District in Indianapolis. Architect: 7.1 ••••°%. 'o: t • . •••l'"` • Woollen,Molzan and Partners. , • . . - — •, • 44. „ler - ' -.T, A- • • ti„. ono • 1. -- ' 104 •111• Ilion 7 • • im gm . No • MINI • . ..1?„,..4 -r".4;44T-. 40tRetO "'_ .•e'72o "o. - • . .4.`A• --•frcet„.: '.44_,Vgift44...- • • •-• In This sample design review checklist is based on Building with Nantucket in Mind: Guide- SITE PLANNING ROOF lines for Protecting the Historic Architecture and Landscape of Siting of the Building: Shape(gable, lean-to, etc.) Nantucket Island. Use of a Setback Pitch checklist will ensure that the Facade width Overhang commission considers all the im- Spacing between buildings Dormers portant design elements that dis- Skylight tinguish the district in its review Delineation of street space: Chimneys of new construction proposals. Creation of continuous Checklists should be prepared street edge for each historic district because Separation of public,semi- WINDOWS these designelements vary. A public, and private areas y Fences Type(double-hung,case- checklist will help commission ment,etc.) members determine if the new Garage placement Shape and proportion structure or development will Rhythm and balance contribute to and enhance the Landscape plantings Blinds/shutters long-term goals of the historic district. Site Improvements: Walkways DOORWAYS Driveways Retaining walls Placement and orientation Type(paneled, etc.) BULK,PROPORTION and SCALE(building size) EXTERIOR ARCHITEC- TURAL ELEMENTS Height Facade proportions Door platforms and steps Scale Porches Exterior stairs and decks Roofwalks and platforms MASSING(building shape) Mass of main portion: MATERIALS Form Roof shape Wall surfaces Orientation Foundation Roof Additions: Placement Form TRIM and MISCELLANEOUS Bulk DETAILS Trim Gutters and leaders Louvres,vents, etc. House lights Public utilities COLORS To organize and simplify the review of new construction applications, com- missions may want to develop a checklist of the design elements to be con- sidered and as specified in the guidelines. The checklist also should begin with the broader design features such as scale, massing and height,and then cover the details such as materials, openings and ornamentation. Following the applicant's presentation and the general discussion, the commission can study each element to determine whether or not it meets the guidelines. Using this method, the commission is more likely to base its evaluation of the project on the design standards than on personal opinions. Commission members and applicants alike can distinguish more easily between the design elements for which there is approval and disapproval. Items on the checklist should not be ranked or given quantitative values; they should be used to facilitate the review process and clarify decisions. Occasions will arise when commissions simply should deny a request be- cause it is obvious that the applicant or designer does not understand the district and that the proposed design will never meet the standards even with modifications. Too often, commissions try to redesign such projects, frequently with disastrous results. Instead, commissions should say"no" and encourage the applicant to start anew. Preapplication workshops will not eliminate these situations entirely but they will reduce them. What Is the Decision and Does Everyone Understand It? No application review should conclude until everyone understands the deci- sion as it relates to the design guidelines. Was the application approved as presented,approved with modifications, or denied? The commission should identify and describe any modifications so that the applicant understands which design elements to rework for the next review. If the commission de- nies a proposal,it should explain the appeals process to the applicant. Once the commission gives final approval to the design,it should outline subsequent steps in the review process to the applicant such as obtaining a building permit. The applicant should understand that any change in the approved design during construction must he presented to the relmill eci Any enforcement requirements should be stated clearly such as a time limi- tation on a building permit or when construction must begin. Finally, the drawings,plans,and other submission materials must be dated, initialed, and stamped with the decision. If there is a series of plans for a project, items that are not approved also should be stamped and filed to avoid confusion. Design Review: Maintaining Professional Standards The successful review of any project by a preservation commission depends on several factors. In addition to having the basic set of operational tools and procedures in place, commission members must do their homework. Each member should review the survey, ordinance,guidelines, and proce- dures regularly. The commission should hold workshops to review deci- sions and policies, and to evaluate its performance. The discussions should include questions such as: 1. Do property owners,residents and the commission still agree on goals for the district as expressed in the plan or should these goals be revised? 2. Do all commission members understand the responsibilities of the commission or are they confusing them with those of the planning com- mission or the zoning board? 3. Do the guidelines cover new or anticipated types of projects such as the construction of secondary structures as rental units, the development of buildings for mixed uses, or the relocation of historic buildings on va- cant lots in the district? 4. What are the recurring problems and how can they be resolved? For example,the massing of new buildings may be out of scale with the exist- ing structures but politically, down-zoning is not an option. One solutior— may be to prepare more specific guidelines for treating the street level of new buildings. In another case,it may be necessary to work with other commissions and boards to resolve a conflict between present zoning and design and preservation objectives. As an example,matching the scale of 19th-century residences with the single-family zoning designation in a neighborhood may inhibit new construction or lead to poorly scaled single-family dwellings. If well-designed duplexes are more feasible both economically and architecturally, the commission may decide to sched- ule a meeting with the appropriate city and residential groups to outline the options. As stated previously,operational tools and procedures may need to be re- fined,updated or even revised to accommodate changes in the district. In fact, commissions should view this as standard professional practice. Out- dated survey information and base maps that do not reflect improved build- ing conditions,additional vacant lots, or new construction not only can cause confusion when reviewing applications but also can result in poor de- cisions. If there are any procedural changes,the materials that are given to applicants should be revised and reprinted immediately. Clear and current documents and procedures will aid both designers and applicants and en- courage better design quality. In addition to regular assessments of their decisions and operation,preserva- tion commissions should define their role as public educator, a role that most commissions must assume. A commission can introduce many pro- grams depending, of course, on the resources available. These can range from scheduling a small workshop to discuss a particularly difficult issue - ......,......4.."- •• Buildings that are threatened in 7-,....,14r.qs!„,7•:--' their original location can be an- . •.g iktiet. other solution to in/ill development i Allit,..• .1.409. in a his t o ric district. Most commis- - ----,__. - ,..., • . _ k ....).-0 'ig.'.. - ..n ...."10..2 th.. " . fir: , sions apply e same design stan- i4.-g•Ai •••..., 17- ->. • .. dards to move-in buildings as to r-i---"-j \ -,.....-...i. •••,,, . ...,. new construction in terms of their - - --- \- -`" • 5 , - , relationship to the surrounding a "-i -`" • ri- ' • : : 1 0. - . 4,, area. The four-square house in the o-, . , 1 .-- i - -. -• V• --- - . .....'"''''",;.,;-,,,I., , IiA- foreground was moved from the - ---- •-..•.:-. - ' .• 4 -!...e. :441;7. .: arsiteenoaf taopthroepos Shermaned imivffillersitHiy sports 47 ••,-2.:_-..--,-. .. . 1 -i• ::c7,''1,',.- . ,,, .,..., _ ....m,liter 1 IIIII --. r 'wire .., District in Des Moines,Iowa. Built as a duplex but converted to a tri- _ ;---4. -.*'.---.) :' '•t•!iii 4 - -__... ' L. AR-1.M., - -...,-. 1 i .--, plex, the house was reverted to a , il ; ,• . duplex when moved and is now - - - • — ' ----•- ....,...i.. l• ?to li al .. : . --_, 'fr.- ' -- — •- - ..f::: - ,:,;.....,-!!•-tr•---..., :.- . •.. !.<.... .1- ., owner-occupied. . ;,-,, .. .040. ... ..- ....., .., ,- -. --,..... _ ..,- $. - , • --,,,,,,ur ....1„„rao. --z„..-•-;:,,.. -:-.:- -, - :,..- us. q ,',,-;- -;...- - gi.P.' i,...- 4.--z,-.,..*U4"- ''.{.'-`t•-. -- ,.---4140.-ZI, F-. - - .....: ' ' -•,i.4c' -A.iv4-;-• •-...tiZ:'"'-?•''.:. «.ii'7•44''''' ''.•:-. ..:-, - --%-'•' -'. • -' 7" - '...:-,..:::- ,••••••- .:-.0,- ,-.--10,,.„.... ..!tii,,---7" ,,,,„ -kt-., ..-. _ .. , ._- „..:, -. •.. .-.:--,=•-,,,,,,:‘,.-ir 2.,1,- ...-•,-.v.. •••t•-,„;:-•,•..5.--ci- 4 '-' 4—--"!-:':as: 7- - _•'- '''' • :'::-."''...--- .c,- -,-„r-,..;-:i7- ,t. 0-1v If, 2 f-ok:':: .- ''..--‘;-4-4%;--4.-;.,..-'•r---. -.:e. ; ..!.---•?%-, ,.- ''-, -1'44k. friOlfrilei.:_ '..r ' s'41.-.4.,...,,I, -, •—'4' -.. .A. " .:-, -'" ..:4-,-:,:,..,.......,....... -..r."' with property owners in a district to planning a one-day, citywide confer- ence with speakers. Publications are essential and can be anything from printed design guidelines to simple xeroxed sheets that explain the function of the commission. The cost of the program is not important—what is im- portant is communicating with the public. Preservation commissions may find it both educational and reassuring to participate in statewide or regional workshops involving other local preser- vation commissions. These keep commissioners current on issues affecting local historic districts and build networks to exchange ideas. Many state historic preservatiori offices require that communities participating in the CLG program send representatives to such meetings. Lasting Decisions Workshops,preapplication discussions, design guidelines, and checklists of design elements, are techniques that contribute to the ability of a local pres- ervation commission to review applications for new construction projects in historic districts with confidence. It is most important for commission members to know the district and the characteristics that distinguish it as well as to define its long-term goals. Without an understanding and a con- sensus about these basic considerations,it is impossible for any preservation commission to deal properly with requests for new construction. In addition, a solid set of operational procedures is essential to a fair and or- derly decision-making process. Open communication and continuing edu- cation are necessary ingredients not only with the public and applicants but also among commission members. In smaller communities and those with limited resources, commission members themselves may have to initiate and prepare many, if not all, of their programs and materials. M The North Carolina Medical Soci- '' "" ety requested demolition of the -! • <; building on the left located in the ? • , � Oakwood Historic District in Ra- leigh and proposed planting the - ` '< µ;< vacant lot with trees. The Historic • " ".� r<• 7*- < -•fir District Commission's denial of the `� " -- # • '`'•F .. request has placed a one-year �' ,�" ' ' z =�r �' `t r- demolition delay on the house. ' s ate! The infill project on the right was =` t!!� - .F� " ' x ' built in 1985 for offices by the ° '`- , North Carolina Beer Wholesalers 11. = f 4 and was designed to be compatible r,141 • ,� •- Ian-'P y � ' with the residential surroundings '` '� ' iiiq;/"'' �Ir1 -., ,•,3..Y s.r ".1�.y�sh-.a :+cs `i---•--w%'r ± .- .-, -.- RY. �,. a.._ _ including its next door neighbor. R ---- The Governor's Mansion is directly w"` "'"—77,,' across the street from the build- .,. ° l= � � •. = ings. Architect of the in fill proj- ect:Clearscapes Architecture PA. ° ��� yy ? � L4Z' ...c. 'Fer '�.,..�Y,`'uF,_`��'r}�"`<,t`cT'�t`r w .',��,.'>,. ,n�e:-.�`�,-Y.,v'`ec`';c�b. •p� Even when all the tools are in place,reviewing applications for new con- struction projects in historic districts is seldom easy. They are site specific and project unique:no two projects are alike,and rarely,if ever,is there one clear-cut solution. When reviewing new construction projects,a preserva- tion commission should remember that it is the impact of the design on the historic surroundings that should be measured first,followed by an evalua- tion of the individual structure. Equally important,a commission should examine each decision within the context of the long-term goals for the dis- trict as a whole because, once built,the decisions of a preservation commis- sion become an integral,visible, and lasting presence in the historic district. Acknowledgements This publication was written and revised by Ellen Beasley,preservation con- sultant. The public design review process and the design of new buildings for historic settings have been among her concentrated areas of study and writings since the late 1970s. Based in Houston,Tex., Ms.Beasley received a Loeb Fellowship at the Harvard Graduate School of Design and a Rome Prize in Urban Design at the American Academy in Rome. Elements of the handbook were developed originally for a class that was organized by the author and taught jointly with Nore V.Winter,urban de- signer. Dwayne Jones,preservation planner of the Texas Historical Com- mission,was particularly helpful in preparing the revision. The author also wishes to acknowledge collectively all the people who provided illustrations for the revision. The illustration and architectural credits recognize only some of the groups and individuals who have been in- volved in the building and publication projects that are represented in this booklet. Select Bibliography Design and Development:In fill Housing Compatible with Historic Neigh- borhoods.Information Series No.41. Ellen Beasley. Washington,D.C.: National Trust for Historic Preservation. 1988, reprinted 1992. The publi- cation describes the preconstruction phase of the inf ill process and the vari- ous participants in a multi-layer design review process that includes a local preservation commission and a neighborhood association. The Edgefield Historic District in Nashville, Tenn., serves as a case study. Available for $5.00 from: Information Series, National Trust for Historic Preservation, 1785 Massachusetts Avenue, N.W., Washington,D.C. 20036. (202)673-4189. A Handbook on Historic Preservation Law. Christopher J.Duerksen, ed. Washington,D.C.:The Conservation Foundation and the National Center for Preservation Law. 1983. The chapter on"Local Preservation Law:Re- viewing Applications for Demolition,Alteration or New Construction," will be of particular interest to commissions. Also includes "Recom- mended Model Provisions for a Preservation Ordinance,"with annotations by Stephen N.Dennis as Appendix A. Available for$30 plus$2.00 shipping and handling from: The World Wildlife Fund,Publications Handling De- partment,P.O.Box 4866,Hampden Post Office,Baltimore,Md. 21211. (410)516-6951. • Saving Place:A Guide and Report Card for Protecting Community Charac- ter. Philip B.Herr. Boston: National Trust for Historic Preservation, North- east Regional Office. 1991. The booklet is designed to help citizens of small and rural towns to identify and protect the characteristics that distin- guish their communities. New development is placed within the context of growth management issues. Available for$14.95 plus$2.00 shipping from the National Trust for Historic Preservation,Northeast Regional Office, 7 Faneuil Hall Marketplace, 5th Floor,Boston, Mass. 02109. (617)523-0885. A Design Primer for Cities and Towns. Anne Mackin and Alex Krieger. Boston:Massachusetts Council on the Arts and Humanities. 1989. The book serves as a guide for decision makers,both citizens and professionals, in the public design and planning processes. The Primer explains the impli- cations of design decisions and how various aspects of design affect plan- ning and development. Although written for Massachusetts,it is applicable to communities everywhere. Available for$15.00 from the Massachusetts Municipal Association,60 Temple Place,Boston,Mass. 02111. Old and New Architecture:Design Relationship. National Trust for His- toric Preservation, ed. Washington,D.C.:Preservation Press. 1980. This book was one of the first major publications to address the issue of new de- sign in the historic context. The series of essays reflect a range of opinions and while some of the material may be dated, the basic issues remain the same. The book is out of print but is available in many libraries. Vacant Lots. Carol Willis and Rosalie Genervo, eds. New York:Princeton Architectural Press and The Architectural League of New York. 1989. Ar- chitects were invited to design infill housing for ten sites in older, mostly small-scale neighborhoods in New York. The published results, Vacant Lots, can serve as a textbook for anyone interested in infill design because the examples illustrate a range of solutions for each site and test the reader's rfi ability to read and interpret plans and elevations. Available for$24.95 plus $3.00 shipping(add 8.25 percent sales tax for New York residents)from Princeton Architectural Press,37 East 7th Street,New York, N.Y., 10003. Good Neighbors:Building Next to History. Colorado Historical Society. Denver: Colorado Historical Society. 1980. A step-by-step guide to help a community identify and define its distinguishing characteristics and write a set of design guidelines. Five Colorado towns serve as examples but the pro- cess is applicable anywhere. Although printed in 1980, the publication re- mains one of the best on the subject. Available for$4.95 plus$3.00 for shipping and handling from the Colorado Historical Society, Museum Store, 1300 Broadway,Denver, Colo. 80203. Call(303) 866-4993 for information and prices on bulk orders. The Secretary of the Interior's Standards for Rehabilitation and Guidelines for Rehabilitating Historic Buildings. Washington,D.C.: U.S.Department of the Interior, National Park Service, Preservation Assistance Division. Revised 1990. The Standards include the Secretary's guidelines for new construction with an emphasis on additions to historic buildings. The Pres- ervation Assistance Division also publishes a series of Preservation Briefs including No. 14,New Exterior Additions to Historic Buildings:Preserva- tion Concerns. Both publications are available through the Superintendent of Documents,U.S. Government Printing Office,Washington,D.C. 20402. The Standards is GPO stock number 024-005-01061-1, $2.00 per copy; Brief No. 14 is GPO stock number 024-005-01011-4, $1.00 per copy. Three national magazines,Architecture,Architectural Record, and PIA (Progressive Architecture),regularly publish articles featuring new design in the historic and/or urban context as well as annual preservation issues. Many libraries subscribe to at least one if not all three magazines. Organizational Resources The National Alliance of Preservation Commissions is a membership orga- nization that provides information regarding historic preservation law,local ordinances, design review, and local preservation planning. It maintains a speakers'bureau and publishes the periodic Alliance Newsletter. For fur- ther information contact: The National Alliance of Preservation Commis- sions,Hall of the States,'141 North Capitol Street, N.W., Suite 332, Washington,D.C. 20001. The National Center for Preservation Law maintains an active file of legal issues pertaining to historic preservation, much of which relates to the de- sign review process. The Center interprets specific court cases and other subjects in a series of Updates that are available through subscription. For further information contact: The National Center for Preservation Law, 1333 Connecticut Avenue,N.W., Suite 300,Washington,D.C. 20036. (202)338-0392. The National Trust for Historic Preservation has seven regional and field of- fices that provide services to state and local organizations and individuals. These services cover all preservation activities including field visits, advi- sory assistance, conferences, and special projects on issues of particular con- cern to each region. The offices are listed on the back cover of this booklet. The National Trust's Department of Law and Public Policy provides educa- tion and advice on preservation law and historic districts,zoning, monitor- ing of preservation litigation, and other preservation issues. For further information contact the appropriate National Trust regional office. The Preservation Assistance Division of the National Park Service conducts a variety of activities to guide governmental agencies and the general public in historic preservation project work. The office is responsible for develop- ing and disseminating technical information about specific preservation and rehabilitation problems as well as interpreting The Secretary's Standards. For further information including a catalogue of their publications, contact: The Preservation Assistance Division,Technical Preservation Services, P.O. Box 37127, Washington,D.C. 20013-7127. (202)343-9578. State Historic Preservation Offices(SHP0s)administer a variety of programs including the National Register program at the state level, state and federal grants programs, and the Certified Local Government program that provides assistance in the establishment and training of local preservation commis- sions. The SHPOs conduct regular workshops for CLGs as well as maintain a series of publications and audiovisual materials that are available to CLGs. For further information, contact:National Conference of State Historic Preservation Officers at(202)624-5465, the CLG Program at the National Park Service at (202)343-9505, or the National Trust regional offices. - - • -.4 Secondary structures are among - the types of new construction 5 - • N. • - it projects reviewed by preservation r commissions. The "Design Services pt.•41,P 7 - Bank"offered by the Bozeman • ; (Mont.)Historic Preservation Board assisted the owners of this 1889 4 _ ft: house in designing the detached ga- _ , rage/workshop,shown on the left. • • = ii•• • The new building and driveway _ encroach upon the required 8-foot • . • ' I side yard setback but the review , . , /.0` ; t• •- .1 ' t 1 11- • board can grant such zoning devia- - • I.• : tions providing infill structures or . _ • •• -------- : - - additions are considered reflective • . -L - ' - • ,••••• of the design fabric of the neighbor- - - - - -- ; 16011eilohl hood.Architect:Donald j. 7 . . McLaughlin. Ell Support for the National Trust is provided in part by matching grants from the U.S.Department of the Interior, National Park Service,under provisions of the National Historic Preservation Act of 1966. The opinions expressed in this publication are not necessarily those of the U.S.Department of the Interior. JOIN THE HISTORIC PRESERVATION NETWORK The Preservation Forum of the National Trust is a membership program for professionals and organizations. The benefits and privileges of membership include subscriptions to Historic Preservation Forum,Historic Preserva- tion magazine, Historic Preservation News,participation in financial/insurance assistance programs, technical ad- vice,and substantial discounts on professional conferences and educational publications. New Information booklets are available free upon request. To join, send$75 annual dues to: Preservation Forum National Trust for Historic Preservation 1785 Massachusetts Avenue,N.W. Washington,D.C. 20036 (202)673-4296 Offices of the National Trust for Historic Preservation National Headquarters Northeast Office Texas/New Mexico Field Office 1785 Massachusetts Avenue,N.W. Seven Faneuil Hall Marketplace,5th Floor 500 Main Street,Suite 606 Washington,D.C. 20036 Boston,Mass. 02109 Fort Worth,Tex. 76102 (202)673-4296 (617)523-0885 (817)332-4398 (Connecticut,Maine,Massachusetts,New (New Mexico,Texas) Mid-Atlantic Office Hampshire,New York,Rhode Island,Vermont) Cliveden,6401 Germantown Ave. Western Office Philadelphia,Pa. 19144 Southern Office One Sutter Street,Suite 707 (215)438-2886 William Aiken House San Francisco,Calif. 94104 (Delaware,District of Columbia,Maryland,New 456 King Street (415)956-0610 Jersey,Pennsylvania,Puerto Rico,Virginia,Vir- Charleston,S.C. 29403 (Alaska.Arizona,California,Guam.Hawaii, gin Islands,West Virginia) (803)722-8552 Idaho,Micronesia,Nevada,Oregon, Utah,Wash- (Alabama,Arkansas,Florida,Georgia,Kentucky, ington) Midwest Office Louisiana,Mississippi,North Carolina,South 53 West Jackson Blvd.,Suite 1135 Carolina,Tennessee) Chicago,Ill. 60604 (312)939-5547 Mountains/Plains Office (Illinois,Indiana,Iowa,Michigan,Minnesota, 511 16th Street,Suite 700 Copyright©1992 Missouri,Ohio,Wisconsin) Denver,Colo. 80202 National Trust for Historic Preservation (303)623-1504 (Colorado,Kansas,Montana,Nebraska,North Dakota,Oklahoma,South Dakota,Wyoming) N Reconstruction is defined as the act of process of depicting, by means of new construction, the form, features, and detailing of a non-surviving site, landscape, building, structure, or object for the purpose of replicating its appearance at a specific period of time • and in its historic location. Standards for Reconstruction 1. Reconstruction shall be used to depict vanished or non-surviving portions of a property when documentary and physical evidence is available to permit-accurate reconstruction with minimal conjecture, and such reconstruction is essential to the public understanding of the property. 2. Reconstruction of a landscape, building, structure, or object in its historic location shall be preceded by a thorough archeological investigation to identify and evaluate those features and artifacts which are essential to an accurate reconstruction. If such resources must be disturbed, mitigation measures shall be undertaken. 3. Reconstruction shall include measures to preserve any remaining historic materials, features, and spatial relationships. 4. Reconstruction shall be based on the accurate duplication of historic features and elements substantiated by documentary or physical evidence rather than on conjectural designs or the availability of different features from other historic properties. A reconstructed property shall re-create the appearance of the non-surviving historic property in materials,design, color, and texture. 5. A reconstruction shall be clearly identified as a contemporary re-creation. 6. Designs that were never executed historically shall not be constructed. The Secretary of the Interior's Standards for the Treatment of Historic Properties, Rev. 1992 3-6. 12 Planning May 1991 • P L A N N I N G P R A C T I C ir A Primer for Writing Design Guidelines By Ed Zotti How detailed is too detailed?On-line experience helps this writer decide. 0 ne of the characters in may be useful to others about Herman Wouk's novel, to embark on a similar task. The Caine Mutiny,calls the U.S. The first lesson was that ef- Navy"a master plan devised by fective citizens' groups are an geniuses for execution by idi- indispensable ally in preparing ots."That's a useful thought to guidelines with teeth. Design Chicago's riverfront keep in mind when writing guidelines need a champion, urban design design guidelines.Not that real someone or something outside guidelines apply only estate developers andarchitects of government that will press m to the downtown are dopes;on the contrary,some for them regardless of day-to- corridor.Future are masters of the art of cre- daydistractions and changes of guidelines are LI expected to cover ative interpretation. For that political fortune. Guidelines other sections. reason, guidelines, like navy without strong civic support are manuals, should leave as little a frail reed that will bend the to the imagination as possible. first time a developer proves CHICAGO That's only one of the con- recalcitrant. CHICAGO AMER clusions we drew from a recent A savvycitizens' groupcan • _. A", ` foray into guideline writing. be a catalyst.It can supply vital The Chicago department of information, expertise, con- J1,, - Tannin had joined with a tacts,and talent.It can educate "� i•.-+; nonprofit advocacy group, the public at large and drum up _ `r,N,.. •.. >:. Friends of the Chicago River, support. It can make common ,.;'t.,'i . -K` .. to write the Chicago River Ur- cause with the planning staff in ? :•=s�,— . �''�":'.;;�:: banDesign Guidelines— enforcing the guide- «,n,.K - ' ...� ��yj y_'sti Downtown Corridor. DESIGN lines.As it turned out, o iIr' .a "7.4.. The guidelines, to be DLtMU1\ that certainly was true used in the review of / in our case. "� downtown riverside ✓ e . real estate projects, /. One One is better 5 '�` were adopted by the Lesson number two: Z ' Chicago Plan Corn- — Good guidelines can't • mission last year.I did be written by com- the actual writing. mittee. Although scores of The view east from .y�,. F?='; _ �: _ The city and FOCR had de- people made suggestions that _ the Wells Street i'el€w"�'�: - iO � :�_ �� _ veloped a close working rela- were incorporated into the river [i1KE !� _ bridge shows the sow ERE* ' _- tionship over several years of guidelines, having one writer .•- _ _ riverside project review. As a was the onlywayto ensure extensive develop- _ ._,_- P J ment along the u I: I_ _� = member of FOCR's board, I coherence and consistent tone. riverfront. The p.- ;pt:7 • .. had participated in many of That writer,by the way, must circular tower to - }„;?': _ these reviews. Many of us in- know the subject intimately, the left is part of -.. volved in the process felt de- have apractical turn of mind, Marina City. Q -` �9�9�' ---= sign guidelines were essential and be stubborn without being - - if we were to create an active, rigid. - ' . _ people-oriented riverfront.But Another point: Don't worry `�'- l the city had no money to pay about beginning review before 11 " for them. you have the guidelines fin- • ! = 1= So I volunteered. Eighteen ished.The experience you gain 1 - •! -' s months and 560 hours of un- while continuing to review .;, A' - - paid labor later, you can be projectsisusefulinhelpingfine- sure I won't do that again.Still, tune the guidelines.In our first s it was a fascinating process, draft,for instance,we had asked -:.2, - : and I did learn a few things that developers to provide a mini- A 13 iL A N N I N G R A C T I C E mum 25-foot setback from the project on a site hemmed in by below.We braced ourselves for zoning and require some hard river's edge.Fifteen feet of this railroad tracks came in show- protests, but none came. The bargaining on the city's part if was to be a street-level walk- ing walkways of minimum developers of the project that the public interest is to be way, which was to overlook a width-15 feet above, 10 be- had triggered the change cheer- protected.The city had never 10-foot walkway at dock level, low, as the guidelines speci- fully admitted the building had much stomach for this (Lest you think that's skimpy, fled.To our dismay,however, turned out better that way. endeavor. bear in mind that this is in a it turned out that 10 feet wasn't Finally,the city had failed to heavily developed downtown wide enough to plant any trees. Implementation is all insist that developers commit where land sells for hundreds The dock-level walkway was Difficult as it is to have a review themselves to public amenities of dollars a square foot.In years going to wind up a barren bowl- mechanism and no guidelines, in writing. In the case of a past many buildings had ex- ing alley,exactly what we were it's worse to have guidelines couple of riverside projects,the tended right out to the water's trying to avoid, and no review mechanism.An developers had provided the edge.) We hastily decided to make earlier attempt at urban design legal minimum-to the disap- After the guidelines hadbeen the minimum setback require- guidelines in Chicago had run pointment of river advocates. issued for public review, a ment 30 feet-15 above and 15 into this problem. This situation changed only The city does have a review recently, in large part through mechanism of sorts. Projects the efforts of FOCR and its meeting certain criteria(size is executive director,Beth White. , .•- • :!':.., 41-".'•,V-4;Lit'i,`-..; the main one) must be pro- At her urging,the city planning -7-:- ' ";....•.4;7 . '..'3--,:...,fr,•;..• cessed as 'planned develop- staff has insisted on much more '- '' •',..?,i•-• -"*".1'..: '• ments,'which are reviewed by elaborate river amenities than -_--7------ .- ' ...... -. . . ,-?••," the planning staff and then in the past.The guidelines will " " ... .. 'I ---. ..--:.r.r., i..r.ez“-fr.2..2 w::. jr -51`,.--14-454iic - --V4 0; approved by the plan commis- ensure that this is done system- --- ......04 .",i ..-:-•14'1-,-,i,•75%.:-:`qi'-.,4r sion and city council. In most atically from now on. ,r.-- 6 _:,i„t:-.tr.... •..4e.....);;.,...„.:As. U.S. cities, planned develop- Equally important, the city „.;...--_-_,.. , ,,•:,.. . /IL ---;..Aiiit — -' Wir4er,"7!-v.,?... ments are large-typically sub- now routinely requires devel- ' .• , . , 0-.*.Y.Vfik4,....,;,•.'N. .. .., _ , ,, . . • -.- .,...„.„...lzill.),.: :..,- urban subdivisions.In Chicago opers to include detailed ..::-1- . .71;;;In...i-.1•-"f a a, ..;e At..- a planned development can be descriptions of promised me- _, - 7,; -:'..+..1•,,,•:;':,,k-a - s: -, . -- : --=' :::".S ;:g•-:;larskrf a single building. nities-including drawings and t ;:.,- Some dock-level The system has several site plans-in the planned de- - __, ."-,, , -_-',.-.-; . .,.... .. '-,-= - 7.........k. • -- - - .4.'.. T. '-`'t.-; .%":;;--'1' • Lc-17 walkways are drawbacks. First, the review velopment ordinances for their -;. .::. ....,.- 7,....._-_,,..-?. ,-, already in place threshold is still fairly high: A projects. We spelled out these --__ r- -----T- . -' •. - - - ' '-*1 • /'.-:*-N. -•-,.--\:- . This one is west of 30-story office building can be requirements in detail in the "--------_. • - --7 '---1 '17,. . I L It .d.,r I'.\; ' % III ...,., _:.:::::z.,... _\....,\.V. Michigan Avenue built as of right.Second,planned guidelines. ;--,-___1*"."71=,-,a2sttel-..,: - •. N...1.ti.*. . 1.:4'•,. ,.. .r along Wacker developments (in Chicago, The last step was to compel ----: --, • r.,>: .. ..k... .,.,. .-X-ry'V.--Zi Drive. anyway)are a form of contract all riverfront projects to come before the plan commission for review. Here we got a boost !Iiii!i'.:;,::" ..,--.1=f;f-f-f-51i; When street level and 1, from Mayor Richard Daley :').:::::•:*.-i-14.i;-"" • i' dock level differ by at Rhd M Dl . least 20 feet, the an unexpectedly strong advo- I....:...r.....:_ , I i guidelines i 5.5 ....' cate of riverfront revitalization. ,• . I.".-.... I .i.' - min IM — recommend an Daley said he would introduce 1 l .......,_ . - ---- ... • I-, u • . 0 _ intermediate-level an ordinance requiring review l .. . . . . walkway to ease the of all downtown projects. It's -= ___ „•., . ..- • - • . ,,-• - transition. expected to pass the city coun- .......: ---. I ,_ ._,-._ . ..• ••,., • -- :__ -. - • • -.:. ....• --: :... .-7010 - cil easily. := 1• - =.... -' - - - • ' • - '...-7-• = 1 i .' .;•ii- _.;._.-- • , Z., ' • " '• ? . Keep it simple -.- - -0 Two -• g---- t Years ago planning documents, - •-- -- . ;: . ,. . • a. .-n-r. - a guidelines included, began by a laying out an elaborate hierar- 1----• ' mins • ----41 . :-..:" .-7.-C------. :`. ----,-- 77 _-_-F :-.--':::,-" • --;-• .1-- 4 c ti chy of objectives,issues, stat- tr: ,,,-...... -' •.;.: -.'.z-4--;.---.-:7 :-.1 , ,___________ i egies,and policies.Others tried i 15'min. No min. 15'mln. ,t--, .;:.... -- •- -,----.•••• --" - : .."146,,,' ;• -•••.-- 4............. to convey a 'vision, a vestige i 4 0.! „ , perhaps of tlie day when all 30'minimum .1• --, •--- •--. -;...---•- .,.- .,. ;-... ....* • • -•\-.----•1;•,..•::•":._. i • . ' plans depended chiefly on their I .....-::-,:,- -....-_---.-z-.i.-.2.: •---• --- 50'optimum • - -- . . 1 W••••:'„- .. .".•. ."•-.:--_--:'.1.1. --7-'•-:-:-._.:-1....._ :q . ability to persuade. We dis- , , ____, ..,.. ,,-1:-----:.- --. :•-----.::-. •,-, ...-.•--- :-..-----.•-1-tr.:-:-,:•-4...:-- . _, --,,,,,2-.._:. ...„-s,•-.,., ---.-:-.4:;T;,._ -,.z.,-.,:,2,...::„::::..,' ,-..- ; 3-8. 14 Planning May 1991 P L A N N I N G P R A C • .* T I C f " ':,�. o x� ���fli'e j HIM F Since we weren't sure what I j -. +11� i kind of support we'd receive, •1 ' ' - 7 - ;t• ifttt1l = we had been careful to frame r' y,• ttl��_ the •guidelines as recommenda- j i ggi _ lions, not requirements. But : F. � � L emboldened by the mayor s s r ! • +i� ,�w - xxs - - r • 1j1' enthusiasm, the plan commis- ; i 1 J arr- ) i .? • i11t�- sion went through the guide- r 1 '{ > •+,• I--./-- _ ,_ ��� lines replacing 'shoulds" with • ' 1.• l ` _• '? i IIMMI 'musts."We wound up placing tt ' ' Y ' - ° ' _ •��• a list at the beginning of the �: ; • ' 1 �I guidelines establishing'certain �` gili ".;,' minimum standards[that)must --_ - (r . 141.11 },lax be met." Riverside Plaza, -- i • -- -- _ part of ! 4-1. `�-- Good response a hoped-for — < A few developers objected to continuous west - • -: - this last-minute show of feisti- bank walkway. ness. On the whole, though, there was little opposition from the development community. pensed with most of that. We riverside projects approved but ment ordinance governing each On the contrary, many devel- were less concerned that users not yet built. project). opers praised the guidili of the guidelines understood We also used drawings to Make clear in your choice of since they set out the m the big picture than that they illustrate key points. To save language which guidelines rules in unequivocal terms. understood the details. time and money we prepared you'll go to the wall for and There are always those who Although we tried to avoid the illustrations on an IBM per- which are less important. In will interpret the guidelines to stilted legal writing,the guide- sonal computer using an easy- addition to guidelines of gen- suit themselves.One section of lines were written to resemble to-learndrawingprogram called eral application,our document the document,for example,has an ordinance.They were num- Gem Draw Plus. The results had a section called "district to do with 'permanently bered,captioned,and organi7Pd were glorified stick drawings opportunities,' in which we moored vessels"—floating into subject areas such as"dock- in two dimensions rather than identified high-profile sites nightclubs, mostly. We pro- level walkways'and'parking." 3-D renderings.But they had along the river, with recom- vided what we thought were On the other hand, because a professional appearance, mendationsonhowtheyshould clear guidelines regulating the the guidelines did not have the reproduced cleanly, were less be treated. size of such vessels. legal status of an ordinance (it ambiguous than pen-and-ink In writing the guidelines ini- Apparently we thought wasn't politically possible),we drawings,and,best of all,could tially, I thought these recom- wrong.Among other things,the i weren't obliged to throw in a be modified in minutes. mendations could somehow be guidelines said, "permanently lot of incomprehensible boiler- given equal weight with the moored vessels should not sub- plate to satisfy the lawyers.That Dos and don'ts general guidelines.But no one stantially obstruct views of the meant we didn't have to write Drawings won't do it all, was comfortable with this ap- water from dock level." The the guidelines twice, as some though. Guidelines must be proach, certainly not develop- first proposed floating night- cities have had to do—once in written in precise language.We ers and property owners. Al- club to come in for review after legalese and once in English. avoided vague constructions though they didn't object to the guidelines were adopted We used photographs to de- such as'the streetscape should regulations that applied to ev- was a monster some 240 feet scribe our vision for the river. enhance the pedestrian expert- eryone equally, they didn't long whose sheer walls rose We were fortunate to have a ence.' Instead we provided want to be singled out for addi- two stories above the water number of excellent riverfront specifics.Along list of unsightly tional restrictions. In the end line.'OK,so it obstructs views projects that showed exactly features was to be avoided. the plan commission flatly de- of the water a little," said the what we were trying to accom- Landscaping was to be pro- dared that the ideas for the developers. 'Who's to say it plish, and we sprinkled pic- vided,with preference given to high-profile sites were "not to does so 'substantially'?— tures of these throughout the certain species of trees(although be construed as requirements.' still working on that°AI- document. In upcoming edi- we did not prescribe, say, dis- In other respects,though,the Ed Zotti is a Chicago-based writer tions, we also plan to provide tances between trees; we left plan commission felt we specializing in planning issues. artist's renderings of striking that for the planned develop- weren't being tough enough. Copyright 1991 by the author. •r• .. -i: . .. - s .. ... ..t:..... 3-7. -.. .. i•. ..it ..�:t: .. 1 TheA L L IA N c E REV!! w Origre NEWS from the NATIONAL ALLIANCE of PRESERVATION COMMISSIONS FALL 1990 DESIGN GUIDELINES FOR HISTORIC DISTRICTS WITHIN THE CONTEXT OF COMMUNITY PLANNING by Nore V. Winter public officials often find them- selves reviewing designs for ic s Spacingrt ntildsis one othersttrLetant ch:ra:terissed:;csnewconsructioninhstorcdisrt ozngnznuenFLcolim. core group ,is illustration to weightrelationh''f5gacT?toVZ` s1!todeterminetheappropratenessofin Fort proposed new buildings. These people are accustomed to dealing STREET TRF-E5 AKE BIND'5PACED Als0 ALIGNED,WHCI-1 OZEA7E5 A 5TItONG PATTERN. with standards for rehabilitation, I K based on the Secretary of the ,,,,v Interior's Standards,that are gener- I i i i I ally applied uniformly from one <_....,1 <7_3 I 1 f--) i I I IROOF5 jurisdiction to another.When deal- I I : ing with the issue of new construc- \ - t,,yvasi y .. % _, c -7C- '-'1.. tion,however,they are often rudely r;z4-1'. .rjAtgp..-. ,t,igl. ., r , a , A. 5'121' jliaA 1 awakened to wide variations in local ii118_1I, .," .1 _1.6'i_IPI. __"-1)1. ,14MY27.-._.1.,st'.!Hi. .!..alF 0.It 11_1' _ design policies for new construc- IRECTANGULAK FOKCH MOLDING5 MNDOV5,ORIENTED ARE AustuED. tion.The reason is that design poli- VERDCALLY. cies for new construction are not developed in a pristine setting in Mustration from the Fort Collins design guidelines prepared by Nore Winter. which "pure"preservation theory establishes the playing field.Local governmental structure,public opinion,and basic community goals influence the standards as do variations in the physical characteristics of the individual historic districts themselves. THE FACTORS THAT INFLUENCE LOCAL DESIGN STANDARDS Governmental structure affects the character of the guidelines. The degree of regulation provided for an individual historic district will greatly influence the level of review and the specificity of the standards that are applied.City governments usually hold the strongest review powers.Some county governments have similar powers,but many have advisory capabilities only.Some state governments may also provide for design review of historic resources on state-owned lands,but the level of protection and detail of review varies widely.Even federal projects that involve the Section 106 process may yield widely varying results,depending upon the particular agency and the corresponding State Historic Preservation Officer. Community goals also affect the character of the guidelines.Communities seeking to encourage development and growth may be less restrictive in their preservation regulations for historic districts than governments that are hying to limit the rate of expansion. Even where protection is provided for historic resources within the district,guidelines for new construction may be quite lenient.Other communities may seek to encourage new, creative architectural designs and therefore may feel that inhibiting creativity through design review in the historic district is inappropriate.They may argue for very limited criteria in order to allow wider flexibility in design solutions for new construction. 3-10. Te ALLIANCE REVIEW Continued from page I Executive Directors Message The agenda of neighborhood groups may also influ- ence the outcome of design review for new construc- Welcome to Charleston,South Carolina and the 44th lion.They are usually more concerned about change in National Preservation Conference.Here we are in the social character of the neighborhood than in the reha- city that not only boasts the birth of historic district bilitation of the existing buildings. Other factors, in- design review but also is the birthplace of the National eluding land use,traffic impacts,and property values Alliance of Preservation Commissions. Thanks for often color their response to new design proposals and helping us celebrate a beautiful city that has literally these sentiments frequently come to light in the design changed the nation's definition of our sense of place. review process. This issue of The Alliance Review is dedicated to The desire to preserve general community character design guidelines. More and more review commis- that extends beyond the boundaries of defined historic sionsarerealizing the importance of having a road map district boundaries may also influence local design to follow when they make decisions and both Nore guidelinesand the publicreview process.Design guide- Win ter and Dale Jaeger have pointed out how impor- lines for"transitional"or"conservation"areas may be tant design guidelines are to effective local review developed in such cases. programs. The NAPC strongly encourages commis- sions to begin the process of developing and using Other community goals for the overall density of de- clear,concise and thorough guidelines as the basis for velopment,as defined in local zoning regulations and their decisions. Communities which have become building codes,may also influcnce the character ofnew Certified Local Governments have an even greater construction.These policies often suggest architectural opportunity to use the grant money that is available to solutions thatcontrastwith the existinghistoriccontext them for the production of guidelines. You should and may be in direct conflict with stated policies in the contact your State Historic Preservation Office for more design guidelines information about how to take advantage of this pro- gram. The physical setting also greatly influences the de- tails of the guidelines.Each district is a unique combi- Many of you have received an invoice for membership nation of physical characteristics,many of which may in the Alliance recently. Some of you have already contribute to the historic significance of the area,and responded and renewed for another year,we appreci- some of which do not.An inventory of the characteris- ate that!Those of you who are waiting to renew....do it tics of the district helps to catalog those features that soon,the Alliance needs your support!Our hard work- contribute to its significance and to establish priorities ing board of directors and all volunteer staff want to for writing guidelinesbased on theimportanceof these continue serving your commission or preservation characteristics.Features to consider when conducting organization,so let us here from you. a visual survey include: • The physical characteristics of individual Pratt Cassity, buildings,including their style,materials,and Acting Executive Director scale qiit) 4,eier? • The physical character of the landscape, � , including fences,plantings and paving. _W • ?- • The spatial arrangement of these features, including buildings,site elements and public `�._ infrastructure 4 �� 1• •7 •The natural site forms and topography that -/ \;; often influence the way things are arranged A* a kt„g10 - f.1 . Temporal issues also influence the guidelines.Our ;_, attitude about design standards is also influenced by %N7gi*N : ,' - g. how important weperceive the physical characteristics of the district to be.Our perception rce tion of this character is :i .. 3-11. Fall 1990 often a mixture of what is was like hysterically and how residents,because of housing pressures of a ski resort. it exists today.Our sense of priorities for design stan- The town cannot expand its boundaries to allow new dards is also influenced by how we anticipate the development on the periphery without altering its district will appear in the future,given current devel- "small town"character that is an essential marketing opment policies and trends in the community. ingredient and source of civic identity. OPERATING IN A CHANGING ARENA Should the community allow an increase in density in its established neighborhoods to provide close-in What do these factors mean, in terms of developing worker housing,or does it maintain the historic low designs for new construction in historic districts?They density,forcing new housing out of town and causing suggest that officials should be prepared to operate in an increase in commuter traffic by employees who a political environment that holds a high degree of must then drive in to work?Such questions arise with variability. Local zoning regulations may contradict each new development proposal. The results of the what are assumed to be federal standards. For ex- review process,the designs of structures that are built ample,local regulations may allow an increase in site and of those that are denied permits will vary each year density,resulting in a reduction of open space that is an as the politics,local sentiment and community needs important characteristic of the area. are blended into evolving preservation policies. In some cases,the historic context is so"sub-standard" Most communities with historic districts face similar with respect to today's building codes that any new questions.Each must find their own answers to these construc tion by definition will differ from the character are related design policies,which,if founded on clearly of the original architecture. Local zoning may also articulated goals and well understood design policies allow new uses,with correspondingly different build- will help to retain the unique character of the district. ing types, that were unknown historically. If current zoning allows auto service businesses in the district,for Note Winter is president of Winter&Company,a consulting firm example,there is little likelihood that structures built to in Boulder, Colorado, specializing in historic preservation and accommodate them will resemble a row of town houses, urban design.He has developed design guidelines and has con- no matter how materials are used or what style is used. ducted design review training programs for numerous communi- ties and states.Recent projects indude design guidelines for Biltmore In these cases,the relationship of preservation goals to Village,North Carolina,design review training for the counties of .,. Nova:land planning for Flagstaff,Arizona and Aspen,Colorado. broader community plans and goals becomes very . Winter also directs the architectural team for the rehabilitation of important. A residential neighborhood that seeks to the Colorado governor's mansion and is member of the board of reserve development to single family occupancy struc- directors of the National Alliance of Preservation Commissions. tures may therefore oppose a multi-family apartment project,even if the massing is configured to resemble the established building fabric. Some confusion often occurs in the review process because local boards have a dual allegiance.They must Design Guidelines for serve their local masters(their town councils)bylaw, the Landscape for these are the groups that create them.On the other hand they also seek to conform to what are perceived by Dale Jaeger to be national standards for historic districts.In some cases they are more strongly obliged to promote such Design guidelines have typically addressed buildings standards by participating in the Certified Local Gov- and have given little attention,if any,to the landscape ernments program. setting.The preservation movement in recent years has moved away from this building-only orientation to a Blending planning and preservation policies. Poli- recognition of the important role a setting plays in cies for new construction will be a combination of the creating and preserving historic character.A compre- factors described above. As an example, the review hensive set of design guidelines should include all board in the mountain resort of Telluride,Colorado,of aspects of the built environment,including the land- which a significant part is a National Historic Land- scapesetting,,naturaland man-made.To develop guide- mark District,is concerned about loosing historic open lines for the landscape one should begin with a recog- space in the yards in the residential neighborhoods,but nition of the overall form of a setting and the arrange- it also seeks to accommodate more employees as local ment of elements within it, and identify the details 3-12. Tie ALLIANCE REVIEW . which characterize it.In the following article,the ele- that the informality found at the town's periphery be ments which effect design guidelines are identified preserved and the formality near the town center main- and examples of each from Georgia and South Caro- tained. lina cities are discussed. Overall Form and Elements within the Form- The Formal Streetscape Section overall form of a setting is its layout. Layouts can be formal or informal. The most typical example of a •• formal layout is the grid,the town plan found in most 0.t•4 historic southern cities.An informal layout contains a r, •. �.. "; curvilinear street pattern and is many times reflective `''"':"` of terrain. Design guidelines should identify the district's form, evaluate its importance, and make recommendations on how this form should be treatedt '." in the future. In most cases, the form of a town or district should be preserved in its original configura- T T T tion. Parkway Street Curb Paved Private Walk Yard Greenspace The unique town form in Aiken,South Carolina,is the Fence/ Wall framework upon which the community's built envi- ronment has evolved.Without thisintact form,Aiken's historic resources would lose much of their meaning Informal Streetscape Section and context. The plan contains a grid street pattern with most avenues containing landscaped medians, known asparkways.A majority of the structures in the community face the parkway spaces,giving the entire community a park-like character. This grid form of streets divided by parkways has only experienced A minor alteration and this has been limited to the busi- Parkway Street Pedestrian Private may or may not paved or unpaved Walk Yard ness district.Here the parkway space has been lost to be present grass or gravel a central island which contains a double row of park- Greenspace ing spaces. Preliminary, discussions for downtown Curb Fence/ may or may not Wall improvements include a desire to see the parkway be present space either completely reconstructed or at least re- Forma/Street scape Section finformalStreetscapeSecfionAiken, built to accommodate both cars and vegetation. South Carolina. Aiken's parkways are the community's most unique Fitzgerald, Georgia, provides another example of a feature. Illustrations of walkway systems within the unique grid plan in a southern city.Founders of the city parkway spaces appear on Sanborn maps from the came from the Midwest and brought with them town turn-of-the-century.This attests to the significance of planning traditions.The city was laid out in 1895,one the parkways,since Sanborn insurance maps typically mile square and divided into four wards. The two only documented building data.The character of the central streets included landscaped medians.Every lot 200 parkway spaces varies, and depending on the within the city was accessible through an intersecting location within the community,the parkway may be pattern of streets and alleys.In this flat south Georgia curbed with lush plantings or flush with the road with landscape this regimented street pattern created long sparse plantings.The individuality of each parkway is vistas,bu trecent developmentin Fitzgerald interrupted what is important.Retain the diversityand the historic this pattern.In one project two blocks were assembled character is maintained. for commercial development and a street closed,while in another, a multi-story housing structure utilized In a similar manner to the parkways,the streetscape former alley space.Both projects resulted in visual and elements in Aiken relate to the location within the physical impacts. The continuity of the street system town.The public right-of-way space near the center of was lost as views were blocked and former circulation town is formal and is divided into distinct sections.The paths hindered.Guidelines developed for Fitzgerald in streetscape layout at the periphery is more informal 1989 emphasized preservation of town form,including with less defined edges.It is important in the future its grid street system,the alleys,and parkways. 3-13. DESIGN REVIEW FOR SOUTH CAROLINA HISTORIC DISTRICT COMMISSIONS Prepared for South Carolina Department of Archives and History and The City of Charleston • By Winter& Company 475 Poplar Avenue Bouider, Colorado 80302 September 6, 1988 3-17. BACKGROUND REASONS FOR DESIGN REVIEW Design review is usually established to preserve the integrity of the historic district by moni- toring design changes for renovation and new construction. The basic function of the process is to prevent designs that would weaken the integrity of the district. In this sense, the pur- pose of the review process is to"filter out"inappropriate designs regardless of the quality of those designs. In other words, a design may be very good from a technical standpoint, but inappropriate in the context of the historic district. To determine compatibility of new construction with old,designs are reviewed considering their scale, material, siting,etc. In the case of a renovation, the proposal is considered for its impact on the building's integrity as an historic structure. These reviews are basically "pas- sive,"responding to proposals,and pointing out which items are inappropriate. A second goal of the review process on be to encourage better quality design. This is more difficult to define within the guidelines themselves in a manner that is equitably enforceable. (The board should always strive to achieve an objectivity in its reviews that gives each applicant equal consideration.) We can encourage higher quality design through examples, by using illustrations in the guidelines that suggest excellence. These examples can also stimulate creativity by suggest- ing alternative design solutions that meet various guidelines in special ways. • • 3-18. L3ACKGROUND WHAT GUIDELINES CAN AND CANNOT DO FOR YOUR HISTORIC DISTRICT Guidelines can: Help reinforce the character of a historic area and protect its visual aspects; Improve the quality of growth and development Protect the value of public and private investment, which might otherwise be threatened by the undesirable ConsequenCes of poorly managed growth; Preserve the integrity of a historic area by discouraging the construction of buildings that are inappropriate; Indicate which approaches to design a community encourages as well as which it discour- ages; Provide an objective basis for the decision of a design review board; Serve as a tool for designers and their clients to use in making preliminary design decisions; Increase public awareness of design issues and options. Guidelines cannot: Limit growth, or regulate where growth takes place. They address only the visual impact of growth. Growth itself is a separate issue that must be separately addressed; Control how space within a building is used.. They usually deal only with the exterior, publicly visable portions of buildings,not with how interior space is laid out or used; Serve the same legal purpose as a design review ordinance. A design review ordinance is a law, but guidelines are typically not laws. Instead, they simply set forth, in terms of design ideas and illustrations, the criteria to be used when the rights conferred by law are exercised. Guarantee that all new construction will be compatible with a historic setting. Guidelines ultimately can only guide, leaving final results in the hands of the people responsible for following the directions they set. They can put up barriers that block the worst sorts of insensitive design. But they visually cannot guarantee the creativity that is essential to the best sorts of sensitive design; Guarantee"high quality"construction. 3-19. I3ACKGROUND APPLICATIONS OF DESIGN REVIEW AND DESIGN GUIDELINES Although design review may seem to be a new tool for development management, it is in widespread use. Following are some of the most frequent uses of design review and design guidelines. 1. Appearance commissions: This is usually an advisory process which is applied to special types of projects, often public works. 2. Conservation districts: These are designated by ordinance, for non-historic neighborhoods, where some existing characteristics are to be respected. Designs are reviewed by a commission or board, which usually includes neighborhood representatives. 3. Design Review districts: Designated by ordinance. May be for existing areas or new developing areas. May be advisory or regulatory. 4. Easements: These are legal restrictions purchased by or donated to non-profit organizations, for individ- ual properties. They usually are for a building facade only, although interior features or land- scape easements are sometimes used. 5. Educational/advisory programs: In these cases, guidelines are distributed for voluntary use to property owners by city staff or a service organization. 6. Federally-funded projects: Federal projects are reviewed for effect on buildings eligible for listing or listed on the National Register. The Secretary of the Interior's "Standards for Rehabilitation" are most often used in the review. 7. Historic districts and landmarks: These are designated by ordinance,as a distinct zone or an overlay zone. Designs are re- viewed by a commission or board appointed by the City Council. 8. Main Street Improvement Incentive Programs: Design approval is used as a condition for receiving low-interest loans or grants for building rehabilitation. Guidelines are generally applied by a volunteer committee. 10. New residential communities and office parks: Legal right to review is applied in the form of property deed covenants. Review is enforced by the developer or property owners' association. 3-20. BACKGROUND 11. P.U.D.'s/Group Development Reviews: Design review is applied as a Condition of receiving special zoning designation. 12. Public improvements: Design review is conducted by a civic board or committee for parks, street furniture, street lights,civic buildings,etc. 13. Redevelopment projects: Guidelines are administered by a redevelopment authority in this application. The proposed developer submits to review as a condition of development in the target area. Other forms of regulation that also influence design character A. Zoning ordinance in general. a. Set-backs,floor area ratios b. Use restrictions to some extent c. Usually prescriptive standards B. Building codes. a. Limit of materials by type of construction b. Restrictions on awnings, windows,exits c. New code versions are more progressive for rehab C. Special hazards regulations. a. Flood plains, flood zones b. Earthquake standards c. Environmenmi regulations 3-21. • DESIGN GUIDELINES WITHIN THE PLANNING PROCESS • • open space land use zoning ) COMPREHENSIVE \ --( - • PLAN `" local historic P transportation r 7 district J historic survey o0 • —{ ) housingA National Register , \district r m d b1 0 ,o CI zoning overlay preservation ) F plan J rehabilitation programs ,....{ preservation , N. design ordinancei=i='-) design review "� j� guidelines l PLANNING A SYSTEM COMPONENTS OF DESIGN REVIEW 1. GOALS & OBJECTIVES - for the district -in relation to other planning issues 2. DESIGN POLICIES - for work which will not damage the historic property - for the overall visual character of the district -for styles of new construction 3. LEGAL TOOLS: Ordinances; Covenants; - to define limits,right,power - in conformance with enabling legislation 4. PROCEDURES - for submittal -for review 5. GUIDELINE STATEMENTS -published and distributed 6. ENFORCEMENT -responsibility for -monitoring of compliance -penalties for non-compliance 7. SYSTEM MAINTENANCE -evaluation of results annually -revisions/updates to the system -training of reviewer annually 3-23. ' PLANNING A SYSTEM COMPONENTS OF A DESIGN REVIEW SYSTEM Setting up a design review system is one way a community can regulate the visual quality of its built environment. Following is a brief discussion of three key components, a design review ordinance,design review board, and design.guidelines. Design Review Ordinances In South Carolina, laws have been passed that provide the authority for towns, cities, and counties to enact historic district ordinances that are designed to preserve the visual quality of historic areas. Such ordinances serve two functions. They provide for the designation of significant historic districts. They also provide for the maintenance of a district's visual attributes by requiring that all development in the district be reviewed for appropriateness by an appointed board. The concept of design review ordinances has been upheld in numerous court decisions. Many of these decisions also hold that for an ordinance to be legally en- forceable there must be reasonable standards on which the administrative board bases its decisions. Design Review Board A review ordinance usually allows the executive body of the municipality to create an admin- istrative board,commonly called a Board of Architectural Review (BAR),design review board,Landmarks Board, or Preservation Commission. The ordinance should specify the number of board members, their term of office,and their form of selection. The establishment of a board creates a place where review boards and designers can meet to work out design solutions. The design review board's main job is to look at the design of proposed renovations, additions, and new construction and determine whether or not a proposed project is compatible with its setting according to the criteria established in the guidelines. Compatibility is the main issue as it is not the board's purpose to pass judgement, in a personal way,on a project's design. Design Guidelines Design review ordinances and reviewers are integ ral to the whole review process; however, guidelines are vitally important. The manner in which the guidelines are developed and worded is extremely important to their validity. Ideally, design guidelines are developed by the people in the district with the asssistance of professionals. Once established, guidelines become the community standards by which the design review board evaluates the appropri- ateness of proposed changes in the district. The guidelines also inform developers in ad- vance of the criteria on which their designs will be judged. Guidelines and the review proc- ess also play an educational role, increasing understanding and awareness of design issues in historic areas. It should be understood that the intent of guidelines is to encourage compatible development. Guidelines should not limit compatible design options but rather discourage the introduction of incompatible design and building styles. 3-24. PLANNING A SYSTEM SUMMARY OF THE TYPICAL METHODS OF DESIGN REVIEW FUNCTION APPLICATION ADVOCACY ADVISORy INCENTIVE REGULATED PROGRAM PROCESS PROGRAM DISTRICT Review Voluntary Mandatory Voluntary Mandatory Compliance Voluntary Voluntary Mandatory Mandatory Staff AsLstance Useful Needed Required Required Start-up costs Law Moderate Moderate High System Maintenance Not Required Helpful Needed Required Maintenance Costs High Cost Moderate High Cost Moderate Cost It is important to distinguish the requirement of an owner to submit a design for review from the requirement to comply with design recommendations of a review board. Some systems require that owners submit their design for discussion and yet do not require approval of the review board as a step in receiving construction permits. Each method requires start-up efforts, such as development of guidelines and operating procedures; administration is also required. The start-up costs and administrative effort generally increase as the degree of control increases over development. Advocacy Program-Guidelines are promoted for voluntary use by a public service organiza- tion. Advisory Process -Property owners are required to listen to a critique of their project, but are not required to comply with the recommendations. Incentive Program- Special loans or grants are offered to owners who will comply with the guidelines. Regulated District-Review and compliance are required by ordinance or covenant. 3-25. PLANNING A SYSTEM TYPICAL DESIGN POLICIES OF HISTORIC DISTRICTS Design review is now a well-established process in historic districts, and guidelines are the accepted tool for applying uniform standards to each applicant who comes forward to have a design approved. Many communities have had good experience with design guidelines, but many others have seen the review process fall short of their expectations, either because the guidelines were difficult to use,or the results were disappointing. Many of these problems stem from how the guidelines are applied, but there are many legiti- mate cases where the design guidelines themselves are difficult to understand and difficult for review boards to use. Part of the problem may be that the reasons for implementing design reviews have not been made clear at the outset. If the purpose of design review is to preserve a district as is—to freeze it in time—then the guidelines will be quite different from those where the intention is to accommodate growth and change but to encourage its development in a way that is compatible with the historic structures. One of three broad goals is typically found at the heart of a design review process: • The first possible goal is to preserve the district unchanged. In such a case,renovations must be accurate, and new construction must be an authentic imitation of historic styles. The Vieux Cane in New Orleans, and the core area of Santa Fe are examples of districts where the results suggest such a goal is the basis for design review. The second goal that may be adopted to preserve the integrity of the district while also allowing change to occur. In this case, ambience is important, and basic characteristics of mass, scale and materials must be respected in new construction, but contemporary designs are allowed. In fact, they are encouraged, because in these cases, the sense of the continuing evolution of the street is to be expressed, and the authenticity of historic structures is not be be compromised with imitations. Renovation guidelines focus on maintaining the overall character of the buildings but allow certain contemporary elements to be introduced if they are"compatible" with the overall context. The last of the three goals that may be operating is to create a sense of continuity where presently none exists. In these areas,change is a foregone conclusion and the changes are often of a magnitude that they can actually reshape the character of the district. Urban design policies come into play here, in guidelines that encourage landscaping, street furniture, plazas,or other amenities. Streetscape design joins in with preservation policies in a road map for future development. This approach is especially effective where the original district is"weak"in its concentration of historic structures. 3-26. PLANNING A SYSTEM In fact, nearly all districts have a combination of the goals, and thus the Confusion. You can begin to imagine the problems in interpretation that arise if a member of the review board is operating under the assumption that the district should be strictly preserved without evident changes, and he is operating with a set of guidelines written to encourage greater flexibility in design,including contemporary inflU. The point is that the long-range goals for the district must be identified upfront, and they must be clearly stated in the guidelines themselves, so that users will understand the Connec- tions. A useful exercise that can help define goals for a district is to have the people involved in developing the guidelines"fantasize"what they imagine the district to be sometime in the future. The images they conjure can help define the goals. These exercises can be part of an organized procedure for developing guidelines that includes residents,property owners, designers,city staff,and officials. 3-27. PLANNING A SYSTEM SOME FREQUENTLY ASKED QUESTIONS ABOUT DESIGN REVIEW IN HISTORIC DISTRICTS Does a historic area have to be placed on the National Register first, before we can have design review and design guidelines? No. The National Register is a federally administered list of sites and districts of historic significance and it does not regulate buildings at the local level. A local historic district designation is needed in order to establish the boundary within which enforced design review will apply. Do we have to establish a local historic district before we can develop design guidelines? No. In most cases, guidelines are applied to a historic district that the community has defined as worthy of protection. Sometimes, however, there may be areas of town that contain build- ings which contribute to the visual character of the community but are not so"historic"or do not occur in enough numbers to really justify a historic district. In many cases, these areas are good prospects for neighborhood conservation or rehabilitation projects, where design guidelines are also appropriate to assure that the basic character of the buildings and the neighborhood is not destroyed. Do we have to have a local design review ordinance in order to use design guidelines? No. Although most towns that want to promote good design in historic areas do adopt ordinances that establish review powers for design, this is not the only way. Communities that do not feel quite ready to adopt such laws may take a less comprehensive approach: • They may develop guidelines for voluntary use. These are used as an educational tool,and a special group, sometimes the Iocal historical society or Chamber of Commerce, promotes the use of the guidelines. • They may be applied where special government incentives are offered for renovation or development assistance. In these cases,such as when low-interest loans are made avail- able in rehab project areas, the developervoluntarily submits his design for review in order to receive the special benefits. • They may be applied to public works only. In some communities, the town will enact design standards for all public buildings, parks, and street furniture. Although this is less comprehensive than an overall design review ordinance, it can help to make the process a familiar one to local residents. • Sometimes guidelines are developed for signs only, and attached to a sign ordinance. Isn't there a good set of guidelines that we could copy? There are good examples of design guidelines that towns have developed for their own historic districts but physical and political conditions vary from town to town, so what is suitable for one community may not apply in another. It is a good idea to review guidelines 3-28. PLANNING A SYSTEM from other towns to see how particular design issues have been handled. But, if your guide- lines are to be as effective as possible, they should be developed by local residents for the local setting. Won't design guidelines stifle creativity in design? In reality,design guidelines act more as a filter, screening out designs that are obviously inappropriate for a defined historic district But when written appropriately they focus on protecting the essential visual characteristics of an area and should not restrict creativity. Using this approach to design guidelines, which encourages contemporary design, should actually broaden the range of design options that many boards will consider appropriate. Also remember that this approach was developed for older areas of a community with build- ings of historic interest. Outside of these areas may be the appropriate setting for unconven- tional designs. Who should initiate the development of design guidelines? Anyone can. Town governments often do, but equally often a local historic preservation group will start the process. It is a good idea,of course, to coordinate efforts,so that work is not duplicated. Do we have the legal right to tell people what to do with privately owned buildings? The Supreme Court has upheld the constitutionality of design review. Proper procedures are important, however, to assure due process. Will design review increase development costs? Compatible design need not cost any more than a design that is inappropriate for an historic area. Even design fees should not increase if the attitudes of the review board are understood by the designer at the beginning of his work. Therefore it is important to have guidelines that are printed and available ahead of time. Also remember that one of the purposes of establishing an area with design review is to protect the property values of everyone in the area, a high level of cost consideration that is usually considered to be most important. 3-29. PLANNING A SYSTEM TYPICAL ROLES OF A DESIGN REVIEW BOARD 1. EDUCATION Purpose: •To build public awareness of opportunities and resources •To teach proper renovation procedures Techniques: •Slide shows at service club meetings 'Brochures explaining permitting and construction processess 'Library of renovation literature 'Seminars for building owners,contractors 'Walking tours 'Publications about local assets and history 2. ADVOCACY Purpose: •To encourage building owners to make improvements "To promote public policies and programs that encourage appropriate renovations and public improvements Techniques: 'One-on-one discussions with owners 'Rehabilitation loan programs •Publicity in newspapers,newsletters of rehabs 'Lobbying for sign and building codes that encourage preservation and appropriate design 'Promoting development of urban design plans for public improvements "Design assistance 'Fund-raising drives and petitions for public improvements 3. FACILITATION • Purpose: .To make it easier for owners to rehabilitate Techniques: 'Group purchasing of rehab services •Do-it-yourself rehab training workshops •Design assistance 'Publications of technical rehab procedures 'Handbook of rehab design tips 4. REGULATION Purpose: 'To encourage appropriate design,in both public and private sectors Techniques: 'Design review by ordinance 'Design review through incentive programs 3-30. PLANNING A SYSTEM STAFF ROLES IN THE ADMINISTRATION OF DESIGN REVIEW A Review Board usually makes a good-faith effort at maintaining a high standard of submis- sion documents, but one problem that often appears is that screening for completeness of submissions and for broader zoning issues does not occur in town hail prior to the Board's re- ceiving the submittal. Certainly the work load in City Hail is a major factor. Having a staff member assigned to review with adequate time to do so, and properly trained to do so, is imperative. Design Review is one of the most important planning tools used, and one of the most labor intensive, and yet it often lacks clear staff support. Clearly-structured submission requirements can only work if there is someone at City Hall to administer the process. This can be accomplished in one of two ways: A. A staff persor handles the task. Ideally, this would be someone with experience in preservation planning. B. A sub-committee handles the task. This may be a couple of members from the Review Board, or perhaps even better,a joint sub-committee with the Planning Board, so that if broader planning issues are identified, there is someone from Planning to address them and instruct the applicant on other reviews that he may have to go through first. In fact, a"cross- over"representative who sits on both commissions may be a good person to have on this sub- committee. The tasks to be included in this role are: 1. Process facilitatioji for the applicant, helping guide the project through all reviews. 2. Determine the critical patl of project review, including zoning,special reviews, and building code. 3. Schedule and coordinate pre-subminal counseling with all relevant departments or Board representatives. This would include all submittals and reviews, (not just preservation). This may be accomplished with a joint departmental pre-submittal meeting, in which repre- sentatives from each department determine if they will be involved,and when they will be involved. At that time, a timetable is negotiated. 4. Identify relevant design guidelines and note this for the applicant and report this recommendation to the Review Board. The particularly relevant guidelines for a particular project should be highlighted in an advance review that occurs at City Hall. This could be a checklist,and a copy would be included in the review packet for the Board. 5. Determine the amount of documentatioq required for submittal,especially with regards to determining how much of the context must be considered. 3-31. • PLANNING A SYSTEM 6. Check for completeness of documentation upon submittal. 7. Place the proposed project on the agenda. This includes determining when this is appropriate. 8. Technical review for code compliance (enforcement of standards that are clearly measurable,as opposed to interpretation of guidelines). 9. Review of new Manor design proposals for placement on the consent calendar. (A "minor"design would be defined). 10. Review of minor changes to the Review Board-approved design proposals: These would be for projects that have already received final approval,and the applicant wishes to make a minor change. Again, the scope of"minor changes"would have to be clearly de- fined. These changes could be placed on the consent calendar if there were questions of interpretation. 11. Review of minor changes to conditionally approved proposals for placement on the consent calendar to receive official approval from the Review Board. This is similar to #10, except that the projects involved would not have already received final approval. Conditions for approval made by the Review Board at its meeting would be reviewed by a staff person, rather than having that item returned to the agenda as a consent item at a later meeting. 12. Preliminary review of major design proposals and recommendation to the Review Board on appropriateness: This could reduce discussion time, by focusing on the critical issues first. All decisions on these projects would still rest with the Review Board. NOTE: A number of these roles depend on clarified guidelines and definitions in order to work successfully. They also depend on the staffing approach—whether by professional staff,or by sub-committee—since committee members would not be able to allocate the amount of time that staff would. • 3-32. PLANNING A SYSTEM THE TYPICAL DESIGN REVIEW PROCESS 1. PRELIMINARy DISCUSSION WITH BOARD • Occurs at beginning of project concept. • Key guidelines are identified. • Review schedule is negotiated. • Other reviews are coordinated. 1, 2. CONCEPTUAL REVIEW WITH BOARD • Site plan is reviewed. • Broad scale issues, such as mass and scale are reviewed. • Overall renovation approach is discussed. 3. FINAL REVIEW WITH BOARD • Detailed design issues are reviewed. • Official final action is recorded. 4. APPLICATION PROCEEDS TO BUILDING DEPT. • Construction must comply with approved plans. NOTE: Step 1 is an informal meeting,called at the request of the applicant. No documents are required for this session. If project is not approved, applicant may revise and re-submit,or appeal as provided in the ordinance. 3-33. PLANNING A SYSTEM INCENTIVES FOR PRESERVATION OF HISTORIC STRUCTURES To encourage historic preservation, communities may consider these tools where enabling legislation allows: 1. DONATION OF FACADE EASEMENTS Building owners may donate a preservation easement for the facade of their building to a private, non-profit organization, and receive a charitable gift deduction for the donation, under current tax laws. The city government, or the Historical Society are potential recipi- ents of the easement. This assures preservation of the facade. This tool would be most applicable for high-value buildings, and especially those with a relatively valuable front. IRS regulations require that the buildings must lie within the boundaries of a National Register district to qualify for this benefit. 2. LOW-INTEREST REHABILITATION LOANS The City could arrange for lower than market rate construction loans for rehabilitation of historic buildings. Eligibility could hinge on two points: First, the significance of the build- ing, and secondly, an assurance for continued preservation and maintenance of the structure. A maintenance agreement would be signed by the owner, to run with the deed. The owner would also sign a preservation covenant. Significance could be defined as those buildings that are locally designated landmarks,or all historic buildings defined as contributing on the historic survey. 3. PURCHASE OF DEVELOPMENT RIGHTS In some cases, the City may purchase outright a facade easement or some other right to limit development of a site. This could apply to key buildings that are determined to be critical to the preservation of the district. For example, buildings designated as local landmarks may be so treated, or buildings Iocated in such a way that they could be threatened as a part of a large assemblage of land. In fact,this could be a strategy to prevent large assemblages from occurring in some areas. 4. STRONG DEMOLITION POLICY In some sense a reverse"incentive,"this policy is usually applied most vigorously to locally designated landmarks. 5. REDUCED FEES FOR REHABILITATION • Building permit fees, tap fees, and other City assessments could be reduced,or even waived for rehabilitation projects. This could be applied to all rehab projects,or it could be limited to the"high risk cases." Conversely, fees could be much higher for new development on sites where such buildings are demolished, as a"disincentive." 3-34. PLANNING A SYS1tM 6. PERMIT MOVING OF HISTORIC STRUCTURES Perhaps this is an odd concept of"preservation,"but it may be considered, if stronger preser- vation incentives are not available. In such a case, a more liberal interpretation of moving policies would be applied to"high risk buildings"that otherwise would be lost. 7. TRANSFER OF DEVELOPMENT RIGHTS A "chic"planning tool,TDR can be effective in promoting preservation where present zoning allows a scale of development far larger than that of existing historic buildings. It is a labor-intensive tool, in that the TDR's must be tracked, but in a small town, this would not be very difficult In order to work, however, the system requires the presence of desirable "receiving sites," where the potential development can be transferred. This can mean that one outlying area would become intensely developed if the rights were exercised. 8. REDUCED SET-BACK REQUIREMENTS A policy that exempts renovation of historic buildings from meeting new setback and other zoning requfremen may be considered.. 9. SYMPATHETIC BUILDING CODE REQUIREMENTS The special clause exempting historic buildings from fully meeting the requirements of a new building may be adopted. This allows the building official to negotiate application of the codes on a case-by-case basis. Many standard building codes now include provisions for historic buildings that allows more flexibility than with new construction. An alternative to the special exemption clause may be the adoption of the Uniform Code for Building Conser- vation, which addresses the technical code issues pertinent to historic buildings. 10. REDUCED PARKING REQUIREMENTS FOR PRESERVATION When an historic building is renovated and its preservation is covenanted, the Town may reduce parking requirements for the project, to reduce land development pressures. 3-35. THE GUIDELINES PROCESS DEVELOPING 1 GETTING STARTED 2 THE GUIDELINES 3 FOLLOWING UP establish a core group adopt a common vocabulary ratify the guidelines , ,4k + _ appoint a define ' project administrator visual characteristics publish the guidelines 5 4" + 47 , • + set goals of project13 . evaluate characteristics apply the guidelines 4" ÷ 4" get assistance from professionals write the guidelines monitor the results 4 seek funding MODEL GUIDELINES 1O©EJ a ©E1 T©11O By Noré V.Winter, Preservation Consultant, Boulder, Colorado I PART 1: GUIDELINES FOR SITE DESIGN SET-BACKS 1. MAINTAIN THE PATrERN AN]) ALIGNMENT OF BUILDINGS ESTAB- LISHED BY THE TRADITIONAL SET-BACKS FROM THE STREET. ENTRANCE ORIENTATION 2. MAINTAIN THE TRADITIONAL DESIGN VOCABULaRy USED FOR DEFIN- ING BUILDING ENTRANCES. PLANT BEDS AND PLANTINGS 3. LOCATE PLANTINGS IN TRADITIONAL AREAS OF THE SITE. • Along fences, walks, foundations, and t porch edges are good locations. FENCES 4. MAINTAIN TRADITIONAL FENCE LINES WHERE ThEY EXISTED. • Preserve historic fences in their original location. 3-37. MODEL GUIDELINES PAVING 5. WHERE HISTORIC PAVING MATERIALS EXIST IN THE AREA, CONSIDER USING SIMILAR MATERIALS FOR NEW PAVING. • Preserve historic paving materials in their originallocation. PARKING LOTS 6. PLAN PARKING LOTS TO BE SUB-DIVIDED INTO SMALL COMPONENTS SO THAT THE VISUAL IMPACT OF LARGE PAVED AREAS IS REDUCED. • Provide planting buffers at the edges of parking lots. • Also include islands of planting in the interior of lots. • Side or rear locations are preferred for parking lots. SIGNS Signs should be subordinate to the architecture and overall character throughout the district. The types and sizes of signs allowed are defined in the zoning ordinance. These guidelines also apply: 7. NO MOVEABLE OR PORTABLE SIGNS ARE ALLOWED IN ANY LOCATION IN THE DISTRICT. 8. POSITION FLUSH-MOUNTED SIGNS SO THEY WILL FIT WITHIN ARCHI- TECTURAL FEATURES. • Locate flush signs so they do not extend beyond the outer edges of the building front. • Avoid obscuring ornament and detail. 9. LOCATE PROJECTING SIGNS ALONG THE FIRST FLOOR LEVEL OF THE FACADE. • Positions near the building entrance are encouraged. 10. WHERE SEVERAL BUSINESSES SHARE A BUILDING, COORDINATE THE SIGNS. • Align several smaller signs, or group them onto a single panel. • Use similar forms or backg rounds for the signs, to visually tie them together. 11. LOCATE POLE-MOUNTED SIGNS IN LANDSCAPED AREAS. 12. SIGN MATERIALS SHOULD BE COMPATIBLE WITH THE BUILDING MATERIALS. • 3-38. MODEL GUIDELINES PART 2: GUIDELINES FOR THE REHABILITATION OF CONTRIBUTING STRUCTURES IN HISTORIC DISTRICTS These guidelines, #13-26, apply to the rehabilitation of all contributing Structures in the "Historic Districts" in addition to the site guidelines, #1-12. ESTABLISHING A GENERAL APPROACH: The primajy objectjve of a rehabilitation plan should be: • The preservation of all important or"character-defining"architectural materials and features of the building. AND • Provision for a safe and efficient contemporary use. DETERMING THE CONTES OF A REHABILITATION PLAN: A plan should contain strategies for these three types of work: • Protection and maintenance of historic features that survive in generally good Condition. • Repaj of historic materials and features that are deteriorateri • Replacement of historic materials and features with new materials where deterioration is so extensive that repair is not possible. A plan MAY also include strategies for: • Alterations to the exterior of the historic building. • Mditip of new rooms or spaces to the exterior of the historic building. General Preservation Policy: Preservation of character-defining elements of historic buildings is a top priority, and alterations and repairs should accurately represent the historic qualities of the buildings. Original documentation therefore should be used for restoration work whenever possible. Where original documentation is not available, interpretations of similar elements that occurred in the area may be considered. DESIGN CHARACTER 13. RESPECT THE ORIGINAL DESIGN CHARACTER OF THE BUILDING. • Analyze the building to determine which elements are essential to its character. • Don't try to make it appear older(or younger) in style than it really is. The genuine heritage of the District should be expressed. 3-39. MODEL GUIDELINES CHANGE IN USE 14. NEW USES THAT REQUIRE THE LEAST CHANGE TO EXISTING STRUC- TURES ARE ENCOURAGED. • Every reasonable effort should be made to provide a compatible use for the building that will require minimal alteration to the building and its site. REPAIRING ORIGINAL FEATURES 15. AVOID REMOVING OR ALTERING ANY HISTORIC MATERIAL OR SIGNIFI- CANT ARCHITECTURAL FEATURES. • Original materials and details that contribute to the historic significance of the structure are qualities that should be preserved whenever feasible. Rehabilitation work should not destroy the distinguishing character of the property or its environment. • Examples of historically significant architectural features are porches, window trim andchimneys. Other significant elements may be the overall building form, its roof shape or material finish. 16. PROTECT AND MAINTAIN EXISTING SIGNIFICANT STYLISTIC ELE- MENTS. • Protection includes the maintenance of historic material through treatments such as rust removal, caulking, and re-painting. 17. USE APPROVED PROCEDURES FOR CLEANING, REFINISHING,AND RE- PAIRING HISTORIC MATERIALS. 18. MINIMIZE INTERVENTION WITH HISTORIC ELEMENTS. • Deteriorated architectural features should be ream'rather than h possible. replaced, wherever • Patch, piece-in, splice,consolidate,or otherwise upgrade the existing material, using recognized preservation methods, whenever possible. 19. THE ggpLACEMFU'T' OF MISSING PORTIONS OF AN ELEMENT MAY BE INCLUDED IN REPAIR ACTIVITIES. • Match the original material when feasible. A substitute material is acceptable if the form and design of the substitute conveys the visual appearance of the original. 20. WHEN DISASSEMBLY OF AN HISTORIC ELEMENT IS NECESSARY FOR ITS REHABILITATION, USE METHODS THAT MINIMIZE DAMAGE TO THE ORIGINAL MATERIALS. • Always devise methods of replacing the disassembled materials in their original configuration. 3-40. MODEL GUIDELINES REPLACING ORIGINAL FEATURES 21. REPLACEMENT OF MISSING ARCHITECTTJPL ELEMENTS SHOULD BE BASED ON ACCURrE DUPLICATIONS OF ORIGINAL FEATURES. In the event replacement is necessary, the new material should match that being replaced in design,color, texture, and other visual qualities. • The design should be substantiated by physical and/or pictorial evidence. 22. USE MAT 1S&I SIMILAR TO THOSE EMPLOYED HISTORICALLY WHERE FEASIBLE. • If alternate materials must be used, they should match the original in appearance as closely as is possible. 23. WHERE RECONSTRUON OF AN ELEMENT IS IMPOSSIBLE BECAUSE OF A LACK OF HISTORICj EVIDENCE,THEN A NEW DESIGN THAT RE- LATES TO THE BUILDING IN GENERAL SIZE, SCALE AND MATERL&j MAY BE CONSIDERED • Use design elements that reflect the building's style. EXISTING ALTERATIONS 24. PRESERVE OLDER ALTERATIONS THAT HAVE ACHIEVED HISTORIC SIGNTFICANCE IN THEMSELVES. • Many changes to buildings that have occurred in the course of time are themselves evidence of the history of the building and its neighborhood. These changes may have developed significance in their own right, and this significance should be recognized and respected. • An example of such an alteration may be a porch or a kitchen wing that was added to the original building early in its history. 25. MORE RECENT ALTERATIONS ThAT ARE NOT HISTORICALLy SIGNIFI- CANT MAY BE REMOVED. SERVICE AREAS AND EQUIPMENT 26. SCREEN SERVICE EQUIPMENT AND TRASH CONTAINERS FROM PUBLIC VIEW. • The visual impact of mechanical and electrical equipment should be minimized. Note: • lithe rehabilitation project involves a commercial type building,also see guidelines#27-31. • If the rehabilitation project involves a residential type building, also see guidelines#32-38. 3-41. MODEL GUIDELINES PART 3: • SPECIAL GUIDELINES FOR COMMERCIAL TYPE BUILDINGS These guidelines apply to the rehabilitation of commercial type structures in the "Historic Districts" in addition to the general guidelines, #1-26. DISPLAY WINDOWS 27. MAINTAIN THE LARGE DISPLAY WINDOWS THAT ARE CHARACTERIS- TIC OF COMMERCIAL BUILDINGS. • The traditional "storefront"image should be preserved at the street level. • When replacing glass or restoring windows, maintain the original size and shape of the storefront opening. SECOND STORY WINDOWS 28. PRESERVE THE ORIGINAL SIZE AND SHAPE OF UPPER STORY WINDOWS. BUILDING ENTRANCES 29. MAINTAIN ORIGINAL RECESSED ENTRIES WHERE THEY EXIST. ROOFS 30. PRESERVE ORIGINAL ROOF FORMS WHERE THEY CONTRIBUTE TO THE HISTORIC CHARACTER OF THE BUILDING. 31. MAINTAIN ORIGINAL ROOF MATERIALS WHERE THEY ARE VISIBLE TO THE STREET. 3-42. MODEL GUIDELINES PART 4: SPECIAL GUIDELINES FOR RESIDENTIAL TYPE STRUCTURES These guidelines apply to the rehabilitation of residential type structures in the "Historic Districts" in addition to the general guidelines, #1-26. MATERIALS 32. MAINTAIN THE ORIGINAL MATERIAL FINISH. TRIM AND ORNAMErr 33. MAINT HISTORIC TRIM AND ORNAMENT • Preserve existing trim in place where it survives. • Where original trim is missing,replace missing elements with designs to match the original. • Use original proportions for trim designs. ROOFS 34. PRESERvE ROOFS AT THEIR ORIGINAL PiTCH. 35. PRESERVE THE CHARACTER OF ORIGINAL ROOFING MATERIALS WINDOWS 36. MAINTAIN HISTORIC WINDOW PROPORTIONS. 37. IF STORM WINDOWS ARE USED,THEY SHOULD NOT OBSCURE ORIGI- NAL WINDOW PROPORTIONS. ENTRANCES 38. MAINTAIN THE HISTORIC CHARACrER OF THE BUILDING E1rTRANCE. • Where porches exist, they should be preserved. • Where original doors contribute to the historic character, they should be preserved. 3-43. MODEL GUIDELINES PART 5: • GUIDELINES FOR NEW CONSTRUCTION IN HISTORIC DISTRICTS In general, new buildings should be harmonious in form, material, siting and scale with the established district character. In addition to the general site design guidelines#1-12, the following guidelines apply to all new construction in "Historic Districts." BUILDING ORIENTATION 34. ALIGN THE FACADE OF THE NEW BUILDING WITH THE ESTABLISHED SET-BACKS OF THE AREA. BUILDING FORM AND SCALE 35. NEW BUILDINGS SHOULD APPEAR SIMILAR IN MASS AND SCALE WITH HISTORIC STRUCTURES IN THE AREA. • Where new building facades will be wider than those found traditionally, subdivide the surface into portions similar in scale to historic facades by varying set-backs, roof forms,and materials. 36. USE BUILDING FORMS THAT MATCH THOSE USED HISTORICALLY. 37. USE ROOF FORMS THAT MATCH THOSE USED HISTORICALLY. MATERIALS 38. USE BUILDING MATERIALS THAT ARE SIMILAR TO THOSE EMPLOYED HISTORICALLY FOR ALL MAJOR SURFACES. • Materials for roofs should be similar iri a • New materials maybe used if their appearances to those used historically. ppearances are similar to those of the historic building materials. • Use finishes similar to others in the district. ENTRANCES 39. ORIENT THE MAIN ENTRANCE OF THE BUILDING IN A MANNER SIMI- LAR TO ESTABLISHED PATTERNS IN THE DISTRICT. • If porches are typical of the district, use similar elements to define entrances to new buildings. 3-44. MODEL GUIDELINES WINDOWS 40. USE OF WINDOw SIZES AND PROPORTIONS SIMILAR TO HISTORIC DESIGNS IS ENCOURAGED Note tithe new construction includ see also guidenes 4146. es an addition to an existing building, 3-45. MODEL GUIDELINES PART 6: ADDITIONS TO "CONTRIBUTING" STRUCTURES These guidelines apply for additions to contributing structures in the "Historic Districts" in addition to guidelines, #1-12 and#34-40. RELATIONSHIP TO MAIN BUILDING 41. ADDITIONS TO EXISTING BUILDINGS SHOULD BE COMPATIBLE WITH THE SIZE, SCALE, COLOR, MATERIAL,AND CHARACTER OF THE MAIN BUILDING AND ITS ENVIRONMENT. • Additions include porches and bay windows, as well as entire wings or rooms. ORIGINAL DESIGN CHARACTER 42. WHEREVER POSSIBLE, NEW ADDITIONS OR ALTERATIONS TO BUILD- INGS SHOULD NOT OBSCURE OR CONFUSE THE ESSENTIAL FORM AND CHARACTER OF THE ORIGINAL BUILDING. 43. AVOID NEW ADDITIONS OR ALTERATIONS THAT WOULD HINDER THE ABILITY TO INTERPRET THE DESIGN CHARACTER OF THE HISTORIC PERIOD OF THE DISTRICT. • Alterations that seek to imply an earlier period than that of the building are inappropriate. • Alterations that seek to imply an inaccurate variation on the historic style are also inappropriate. LOCATION 44. WHEN LOCATING ADDITIONS TO HISTORIC BUILDINGS, MAINTAIN THE PATTERN CREATED BY THE THE REPh 111 ION OF BUILDING FRONTS IN THE AREA. • Site additions back from the building front so they will not alter the historic rhythm of building fronts. 45. LOCATE ADDITIONS SO THEY WILL NOT OBSCURE OR DAMAGE SIG- NIFICANT ORNAMENT OR DETAIL. • Place additions to the side or rear. • Avoid impacts to special moldings, decorative windows or dormers. MATERIALS 46. USE MATERIALS THAT ARE COMPATIBLE WITH THE ORIGINAL BUILD- ING. 3-46. A . -. ! .- j ,, . , .J = ftj.' -M W LII _____ - LI I ' ' IL ; E __ JAEL1II • EB irni n __ -,- I r - - / ____ • A service of the - •.. • . - ç f - . - : National Park Service DISTRIBUTED BY INTERAGENCY RESOURCES DIVISION, WASHINGTON D. C. Subdivision Regulation and Historic Preservation Stephen A. Morris Preservation Planner, National Park Service August 1992 In the language of land use planning and regulation, the term subdivision refers to the process by which a tract of land is split into smaller parcels, lots, or building sites for the purposes of sale and eventual development. The regulation of land subdivision by local governments is one of the principal means of guiding the direction and quality of land development. Under local subdivision regulations, a landowner is not permitted to divide and sell his land until the governing body or its designated local agent, has approved a plat (map) of the proposed subdivision design. In many suburban and rural areas, subdivision regulation rivals zoning in importance as a public control on land development or redevelopment. In urban areas, subdivision regulation determines whether or not large lots in established neighborhoods can be split up into smaller lots for new development which may alter the character of the neighborhood. Like zoning, subdivision regulations can be either harmful or helpful in the preservation of historic properties. Advocates of preservation should be knowledgeable about subdivision regulation in their communities in order to determine what effects it has on the community's historic resources. How does subdivision regulation affect historic preservation? When a parcel of land is subdivided for development, the historic resources, both standing structures and subsurface sites, on that land become vulnerable to destruction if the proposed new development is not carefully arranged on the parcel of land. For example, a 1990 excavation for the foundation of a house in Ledyard, Connecticut uncovered human remains and funerary objects associated with -4 an unmarked Mashantucket Pequot cemetery which had been in use between 1 667 and 1721. Field examination revealed that 1 5-25 graves had been destroyed by the excavation. Tribal authorities worked with the landowner, town officials, and State officials to allow Construction of the home to continue while at the same time ensure that the remaining portions of the cemetery would be 3-53. preserved. Even when historic resources are not directly threatened by demolition, the resource's immediate surroundings including, for example, secondary buildings or structures and important landscape features such as woodlots or hedgerows,can be destroyed by insensitive land development. Subdivision regulations that include provisions to protect historic properties can help prevent this needless destruction by ensuring that the developers or subdividers take historic resources into account as they lay out lots, blocks, and streets. As a result of the Pequot cemetery incident, the Ledyard Planning Commission amended its subdivision regulations to require that archeological resource inventories be conducted in all areas covered by newly proposed subdivisions and that all subdivisions should be laid out to preserve significant historic resources. 36 -nN 34 NILO AC. SD At. i 32\\ 35 SD 33 Sea MIL».w,.. CR00., •ao % . 27 Ac. g c?3,.....H.../ 63 31 1 ` --- ;_� 6 / 8 .�.`sa A. 1 30 2 , ,J A,. , K. ,t SD A<. ss A,. (� 7 /` E++Mt t.�.\\ I.2 A,. --� 26 3 4 A,. ` 9 / sD k. 29 v � / \ . SS AC. 11OW , SD A[. 25 28 1 10 SD A,. 13 ' ! 11 " A,. 24 `.SD A<. \,\\27• , SD M. �,, ,.S A,. / SDi. \\33 A,. S:Ac. 19 r` 23 i y M. ic 1 .,k. 14 ill :.A,. I 1\ 22 5. 21 ,, 20 1 18 1 17 16 1 \ 1 sD A,. I 15 SI Av.. \ Plan for the West End Farms subdivision in Prince George's County, Maryland. Negotiations between the Historic Preservation Commission and the developer led to a doubling of the size of the lot containing the historic Estate House, relocation of the subdivision entrance road,and Commission review over new construction on adjoining lots. (Reproduced by permission of the Lawrence Doll Company.l 3-54. What purposes do subdivision regulations serve? Modern subdivision regulations are an outgrowth of colonial laws relating to the the layout of new towns and 1 9th-century laws that sought to ensure the maintenence of proper land records by requiring accurate surveying and platting (mapping) of land as it was sold. Titles to land can be identified more readily if they refer to a surveyed and recorded plat in addition to the traditional metes and bounds description. Many States adopted modern subdivision enabling legislation following the publication of the Standard City Planning Enabling Act by the Department of Commerce in 1928. As a result, subdivision ordinances were transformed into development controls with design standards for lots and blocks and, eventually, design and construction standards for new roads and other subdivision improvements. The public interest in land subdivision derives from the fact that once.land is divided into streets, blocks, and lots and is publicly recorded, the pattern of development is set for years to come and is difficult to change. Communities have adopted such controls to prevent poor quality development within their jurisdiction, i.e., subdivisions with inadequate streets, water mains, sewers and other facilities, which, if built, could result in health and safety problems and diminished property values. Increasingly, subdivision regulations have been used by local governments as a way of sharing with the private sector (i.e. the developers creating the subdivisions) the financial burdens of building and maintaining the new roads, sewers, and other infrastructure associated with new development. Do subdivision regulations apply to all divisions of land and property transactions? The definition of subdivision varies widely from State to State. In most States, subdivision for the purposes of local regulation is defined in the State enabling legislation (although some States, such as Virginia, allow local governments to adopt their own definition). One State defines subdivision as the division of a lot, tract, or parcel of land into two or more lots, tracts, parcels, or other divisions.0 Another defines it as the division Into three or more lots or parcels of less than five acres each for the purpose of transferring ownership or building development. In some jurisdictions, large-lot subdivisions (2-, 5- , or 10- acres) are exempt from regulation. Conversely, in some States, such as North Carolina, small-scale subdivision (involving land in single ownership whose entire area is no greater than two acres) is exempt. How do subdivision regulations relate to a community's comprehensive plan and to its zoning regulations? In communities which have a comprehensive or master plan, both zoning and subdivision ordinances carry out or implement the plan's policies. Zoning regulates the uses of land as weD as the intensity of use (e.g., number of dwelling units), while subdivision ordinances regulate the division of tracts into 3-55. building lots and the provision of infrastructure. In terms of their relationship to each other, both zoning and subdivision regulations may specify minimum lot size, shape, and access requirements; some of the standards from the zoning ordinance are typically incorporated by reference into the subdivision ordinance. While historically zoning and subdivision have been seen as separate kinds of regulations, the distinction between them is blurring and both come into play in all but the simplest development project. Is subdivision regulation a tool for limiting growth and development? No. While a well-crafted subdivision ordinance can be very effective in minimizing the negative impact of development, subdivision ordinances do not determine where, or if, development can take place; they merely ensure that whatever development does take place meets appropriate quality standards. Consequently, subdivision regulation alone, even when it incorporates preservation concerns, is insufficient to prevent development from ocurring. A determination of how much new growth and development a community wants and where in the community it should be located is a function of the community's comprehensive or master plan. Communities that wish to limit new development in the interest of maintaining rural character, for example, will likely have to consider a range of additional strategies beyond subdivision regulation, including scenic road designations, agricultural preservation techniques, acquisition of easements, etc. What sorts of concerns come under the purview of subdivision regulations? Typically, subdivision ordinances cover the following kinds of issues: • Street design, which deals with the layout or pattern of streets, their width, the spacing of intersections, the location of pedestrian ways, and the relationship of the subdivision streets to the community's existing streets. • Lot layout and design, including the.size and shape of lots and minimum width where lots meet the street (frontage requirements). • Provision of utilities to serve the residents of the new development including water supply, gas and electrical service, and sanitary sewers. • Hazardous and environmental areas requiring special attention such as steep slopes, floodplains, unstable land,wetlands, woodland conservation areas,and habitats for endangered species. • Stormwater management, which deals with providing for safe and environmentally appropriate drainage of stormwater through installation of storm sewers and other drainage systems. • Soil erosion and sedimentation of streams and rivers, which seeks to limit the extent of grading and land disturbance and the length of time graded areas can be exposed without ground 3-56. cover. • Water quality, which deals the impact of new development on water-supply watersheds and seeks to limit the pollution of drinking water supplies. • Landscaping and aesthetics, which deals with protecting existing vegetation and the installation of new vegetation such as Street trees and buffers or planting strips to shield new subdivision residents from the effects of adjacent land uses. • Mandatory dedication of land for public facilities, such as roads, parks, and schools needed to serve the residents of the subdivision. What types of improvements do subdivision regulations typically require? The types of improvements required by subdivision regulations varies according to the type of subdivision (e.g., whether it is industrial or residential) and its density. However, the types of improvements typically required of developers in residential subdivisions are fairly standard and include paved streets (including curb and gutter where appropriate), surface and subsurface drainage facilities, sidewalks in some instances, water and sewer lines where service is available, and fire hydrants. More demanding municipalities may require Street signs, streetlights, subdivision entrance signs, perimeter fences or walls, trash receptacles, or even bus shelters. Which local jurisdictions are empowered to adopt subdivision regulations? Local governments derive their power to regulate subdivisions from State enabling legislation; virtually all States allow various classes of municipalities to exercise this power. Some States, such as Alaska and Virginia, require certain or all units of government to do so. In many States, the power to enact and enforce subdivision regulations may be applied in areas immediately adjacent to a municipality's borders. Since a substantial amount of land subdivision occurs on the fringe of urban and suburban areas outside municipal boundaries, virtually all States also allow Counties (or comparable units) to review subdivision plats. What agency of local government adopts and administers subdivision regulations? The way in which subdivision regulations are adopted and administered varies from jurisdiction to jurisdiction and from State to State. In some States, (e.g. Arizona) the legislative body both adopts the regulations and approves plats. In most States, locally appointed planning commissions or boards are delegated authority to regulate subdivisions. In some States the planning commission both adopts the subdivision regulations and reviews subdivision plats; in others, the planning commission acts only as a plat approval agency while the local legislative body adopts the regulations. In many States, plat approval authority is delegated to staff technical review committees or the planning director. 3-57. What is the subdivision application and review procedure? Typically, there are two stages in the review of subdivision proposals—preliminary(or sketch plan) and final plat review. The steps in the review of preliminary plats generally take place as follows: 1) Pre-filing conference between developer and local government representative (planning department staff) 2) Developer submits application 3) Planning department (or other authorized review body) accepts application 4) Application is distributed to appropriate State and local agencies(e.g.,State health department, utilities, transportation agency) for review 5) Planning department and other agencies conduct field inspection as appropriate 6) Other agencies submit written comments on application to planning department 7) Planning department compiles other agency comments and those of its own staff into a report 8) Staff or planning department approves the plat, often with conditions, or disapproves it (or recommends approval/denial to the planning commission or the local governing body). (A public hearing may be required as part of the approval process). If approved, the applicant goes on to final plat review, generally within a specified period of time; if not, the applicant is informed and generally given the opportunity to redesign the subdivision to conform with the requirements of the community's regulations and to reapply for approval. Final plat review and approval follows a similar sequence. A large part of final plat review involves ensuring compliance with the conditions established during preliminary plat approval; major changes to the subdivision layout (such as streets, lots, nondisturbance areas) are not usually permitted at this time. The final plat is recorded as a legal document in the land records with metes and bounds description. Many communities have a simplified review and approval process for-minor subdivisions'which might be defined as those involving fewer than five lots, requiring no new streets or roads, and requiring no new extension of water or sewer lines. What role does a local historic preservation commission or landmarks board have in the subdivision review process? When an application for subdivision is submitted for parcels of land that contain historic resources or for parcels that are adjacent to historic resources, the local historic preservation commission should have an opportunity to review and comment on the application as part of the routine plat review process (corresponding to Step 4 listed above). Ideally, local laws should include provisions that require consideration of historic resources and list the preservation commission as a required referral 3-58. body on Subdivision cases. If this is not possible, the commission should make an informal arrangement with the planning office to receive and comment on applications (under these circumstances the commission may have to conduct its review and provide its opinion relatively quickly so as to not interrupt the broader review process). The commission should ensure that the planning office has accurate information (on maps and in other forms) on the location of all historic properties in the communily (depending on local law, the commission may be restricted in its review of subdivision plats to only those that affect officially designated historic resources). How does a preservation commission review a subdivision proposal? To facilitate the commission or its staff's review of a subdivision plat, applicants should be required to show all historic resources on or adjacent to the property being developed. For.proposals that involve the Subdivision of historic sites themselves (e.g., a farmstead or an estate) the commission should consider whether or not the applicant is retaining enough land and historic features to maintain a sense of the primary building's historic setting. Significant Outbuildings, family cemeteries, stone walls, and ancient trees should be kept with the lot of the historic house. Even if a barn or a farm road is too far from the house to be included in its lot, the commission may be able to negotiate with the applicant to find ways to save such resources, either as part of another lot or as a community feature. What factors should a commission consider in reviewing a subdivision proposal? The commission or its staff should consider the following factors: • Topography. Does the historic site Sit on a hill? Will the new development be visible from the historic site? Will new development block important views from the historic site? • Vegetation. Does the setting consist of scrub, new growth, or mature growth? Does the local subdivision law require the developer to map the general location of stands of trees and indicate which ones he plans to retain? For example, are there remnants of old orchards which could be preserved? • Layout of lots. Does the arrangement allow the new lots to back up to the setting of the historic site, or will the historic site front on a new road? • Historic features. How can historic features be used in the development of new design alternatives? For example, can old farm lanes be used as drives or internal hiking trails? • Siting of buildings. Do new buildings intrude on important views of the historic site? Can they be sited within groves of trees or behind hills to protect views from the historic property? (Depending on the local subdivision law, a developer may not be required to show the location of buildings when applying for subdivision approval). • Alignment of stubout" streets. Sometimes local governments require a developer to extend 3-59. a street to the boundary of the development to connect with a street on adjacent property that is yet to be built (the developer's street ends with a temporary dead-end). If the adjacent property contains historic resources the commission should ensure that the alignment of the stubout street does not make it impossible to protect historic sites on the adjacent property when the connecting street is built. What sorts of specific requests can the preservation commission make of an applicant seeking to subdivide an historic site? Depending on the language of the local subdivision ordinance, the commission may be authorized to request that the applicant: • retain or incorporate into the new development major building and landscape.features. For example, fence lines and stone walls can serve as property lines,farm lanes can become paths or horse trails, and farm buildings can be reused as gatehouses, or storage shelters; • retain woodland to a depth that will effectively screen the historic site from the new development; • create a buffer zone, and buffer features, such as berms, to screen new development; • use a variety of high quality native planting materials; • protect original approaches including views from the road. Many subdivisions cause roads to be widened and hedgerows or mature old trees to be destroyed. The commission can request variations in road alignment and establish limits of disturbance" lines along the roadside to preserve the hedgerows and old trees. • provide a site plan showing that the placement of buildings within lots and the architectural design of the buildings is compatible with the historic site. • ensure that an appropriate party (a private owner, a property owners' or citizens' association, or some other local organization) assume responsibility for long-term maintenance of historic features that are retained. How can subdivision regulations be written to require consideration of historic resources? Typically, subdivision regulations require developers to avoid routing streets or placing lots on sensitive environmental features such as wetlands and floodplains. Subdivision regulations can be written to specifically require developers to give the same care in protecting historic resources as they do sensitive environmental features. Requirements relating to historic preservation are sometimes included in the environmental section of the subdivision ordinance as is the case in Prince George's County, Maryland. The Prince George's County ordinance includes the following "historic preservation requirements" for proposed subdivisions containing or adjacent to a historic resource: 3-60. (1) Lots shall be designed to miminize adverse impacts of new construction on the historic resource; (2) Natural features (such as trees and vegetation) which contribute to the preservation of a historic resource or provide a buffer between the historic resource and new development shall be retained; and, (3) Protective techniques (such as limits of disturbance, building restriction lines and buffers) shall be used. (Subtitle 24. Subdivisions, Sec. 24-135.1) In addition,to safeguard the integrity of the historic resourceTM,the Prince George's County subdivision ordinance allows the Planning Board to require that the developer submit a detailed Site plan for the purpose of evaluating the effect of the orientation, mass, height, materials, and design of the proposed development on the environmental setting . When a developer proposes to subdivide land containing a cemetery (and does not plan to relocate the human remains to another cemetery), the County requires even more stringent conditions to be met including a complete inventory of existing cemetery elements and their condition as well as placement of lot lines in a way that promotes maintenance and protection of the cemetery. What procedures should subdivision ordinances establish for subdivision proposals that affect archeological sites? As discussed above, Ledyard, Connecticut amended its subdivision regulations to allow the Planning Commission to require a developer to prepare an archeological assessment if, in the Commission's opinion, there is a likelihood that significant cultural resources or undetected human burials will be adversely impacted by construction activities associated with the proposed development.TM The ordinance also includes a provision which obligates the Commission to seek the advice of the State Archeologist or State Historic Preservation Officer in determining the need for an assessment. If significant archeological resources are identified, the developer is required to submit a management plan describing measures to be taken to reduce the impact of new construction on the resources (such as conservation easements, redesign or relocation of roads, drainage features, or buildings). Similarly, at the earliest stages of the subdivision approval process, the Anne Arundel County, Maryland Office of Planning and Zoning routinely requires developers to conduct an archeological survey if the subdivision has known archeological sites or a high probability of containing sites. Developers are requested to avoid significant sites or to mitigate their destruction by retrieving information through excavations. 3-61. What additional measures can be employed as part of the subdivision process to protect and preserve historic resources? Mandatory dedication (dedication to public use) can be a useful preservation tool. As part of the mandatory dedication requirement, many subdivision ordinances require developers to set aside a certain percentage of the land in their subdivision for public right-of-way, open space, and recreational use to ensure adequate public facilities to serve the development. If this open space area is located where there are archeological sites, for example, the sites will be protected while recreational facilities such as nature and exercise trails (carefully sited' to avoid the archeological sites) can still be accommodated. The Westport, Connecticut subdivision regulations contain provisions for the establishment of "Open Space Subdivisions" in residentially zoned districts. Among the purposes of allowing such subdivisions are: to permit the best possible design of a parcel of land after consideration of its particular topography, size, shape, soils or other unique features such as valuable trees, watercourses, waterbodies, and historical, archeological and/or paleontological sites. What about cluster subdivisions? Clustering allows the developer to develop lots smaller than those specified in the zoning and subdivision regulations and to concentrate housing units in one part of the tract to be subdivided, provided the remainder of the tract is reserved for permanent common use, often as open space. The actual number of lots is the same as if the tract had been subdivided in a conventional manner. This is important because some citizens believe clustering permits greater density when in actuality it creates the same number of lots but in a more site-sensitive layout. In jurisdictions that allow cluster subdivisions, developers can take advantage of it by including areas where historic resources are located in the undisturbed common land, while shifting development to portions of the tract where there are no historic resources. In Prince George's County, Maryland the subdivision regulations permit clustering for a variety of reasons including to "encourage compatibility with historic resources". Do subdivision regulations and review procedures affect historic resources in already developed areas such as historic districts and neighborhoods? Yes. Although subdivision is primarily thought of as affecting less developed areas, in certain cases, it can have negative implications in historic neighborhoods through what is known as resubdivision, in which traditionally large lots are split up into smaller lots. In these circumstances, the ample yards surrounding historic homes are crowded by houses built on the newly created smaller lots and the character and historic appearance of the neighborhood is changed. This was basis for the Greenwich, Connecticut Planning and Zoning Commission's denial of a property owner's application to resubdivide his property to create three lots in the town's Mill Pond Historic District. The Commission's decision 3-62. was upheld by a Connecticut trial court in part because the town's subdivision regulations include provisions for the protection of historic properties. Resubdivisions sometimes involve what are known as pipestem or uflaga lots, which are distinguished by the fact that the portion of the lot that fronts on the street or the road is just wide enough to accommodate a driveway. Where subdivision regulations don't prohibit such lots, the owner of a large lot in a historic district may be allowed to resubdivide his lot by creating a pipestem lot extending behind his existing historic home. This kind of situation prompted the City of Rockville, Maryland to amend its subdivision regulations to prohibit Rpipesteml lots by requiring that resubdivisions in existing residential areas maintain the area and frontage of existing lots within five hundred feet of the proposed resubdivision. Conclusion Subdivision regulations are an important public control over private land development,especially in rural and suburban areas with large tracts of undeveloped land, but, also, in historic neighborhoods with traditionally large lots. When written to include preservation concerns, they can be a powerful tool to ensure that new development doesn't needlessly destroy historic resources. Citizens should familiarize themselves with the subdivision regulations in their own communities to determine whether or not historic preservation concerns are included. 3-63. Sources of Information Unless otherwise noted, the following publications are available from the Planner's Bookstore, 1313 E. 60th Street, Chicago, IL 60637-2891. Phone: (312) 955-9100, FAX: (312) 955-8312. The Cluster Subdivision: A Cost-Effective Approach, Planning Advisory Service (PAS 356), 1980, American Planning Association Dealing with Change in the Connecticut River Valley: A Design Manual for Conservation and Development, Robert D. Yaro et al. Cambridge MA: Lincoln Institute of Land Policy and the Environmental Law Foundation, September 1988. "Land Subdivision Regulation", by David Ducker in The Practice of Local Government Planning, International City Management Association, 2nd ed., 1988. Linking the Past to the Future: A Land Conservation Strategy for Waterford, Virginia, forthcoming Fall 1992, Waterford Foundation, Inc. and National Park Service. Available from: National Park Service, Landmark Preservation, Preservation Assistance Division, P.O. Box 37127, Washington, DC 20013- 7127. Phone: (202) 343-9578. The Subdivision and Site Plan Handbook, David Listokin and Carole Walker, Center for Urban Policy Research, 1989, Rutgers University Press. "Subtitle 24. Subdivisions." Prince George's County Code 1987 edition, 1989, 1990 supplements, Prince George's County, Maryland. For further information contact: Prince George's County Historic Preservation Commission, County Administration Building, 14741 Governor Oden Bowie Drive, Upper Marlboro, MD 20772. Phone: (301) 952-3520. "Regulations Governing the Subdivision of Land," Town of Ledyard, Connecticut, Adopted: March 22, 1962, Amended: June 11, 1991. For further information contact: Town of Ledyard, Department of Planning, P.O. Box 38, Ledyard, CT 06339-0038. Phone: (203)464-8740. Acknowledgements: This document incorporates material prepared for the Maryland Association of Historic District Commissions by Gail Rothrock, Preservation Planner, who also provided thoughtful comments on early drafts of the manuscript. The author wishes to thank the following additional reviewers: Teri Von Adelung Bond, Pratt Cassity, Stephen Dennis, Sue Henry, Chris Kehoe,Antoinette Lee, Al Luckenbach, Bruce Noble, Patricia Parker, de Teel Patterson Tiller, Jean Travers, and Nancy Webster. 3-64. 1rT INFORMATION Information Series No. 55, 1991 THE IMPACT OF THE AMERICANS WITH DISABILITIES ACT ON HISTORIC STRUCTURES () n July 26, 1990, President while making it accessible to of it. Clearly it is important to Bush signed one of the everyone, understand the broad range of most important and far-reaching disabilities in designing accessi- laws passed in recent years, the What is a Disability? bility provisions in any facility. Americans with Disabilities Act (ADA). Its purpose is to establish a clear and comprehensive prohi- In order to accurately determine 'What Types of bition of discrimination on the whether a building or facility is Buildings and basis of disability in private sec- accessible to persons with dis- tor employment,public accom- abilities,it is important to clearly Facilities are modations, public services, understand how the law defines transportation, and telecommuni- disability. Many people tend to Covered? cations. Among other things,the think that making a structure law requires that state and 10 accessible simply means making The ADA accessibility require- government entities, places of it accessible to people in wheel- ments apply to public accommo- public accommodation, and chairs. hi fact, under the ADA a dations, commercial facilities, commercial facilities be readily disability is defined more broadly and state and local government accessible to persons with dis- as a permanent or temporary entities. If you own,operate or abilities. These new accessibility phsical or mental impairment lease a historic building or facil- requirements have led to many that substantially limits one or ity, it is important to determine questions on how efforts to make more major life functions. whether that building falls into facilities accessible can be bal- ainples include orthopedic, visual, one of the following categories. anced with historic preservation speech and hearing impairments, concerns. The ADA specifically cerebral palsy,epilepsy, muscular Public Accommodations recognizes the importance of dystrophy, multiple sclerosis, historic preservation and includes cancer,heart disease, diabetes, A place of public accommodation a number of special provisions for mental retardation, emotional is a facility that falls within at historic sites. For the most part illness, specific learning disabili- least one of 12 specific categories. however, historic buildings will ties,H1V disease,tuberculosis, A facility is defined broadly to have to comply with accessibility drug addiction,and alcoholism, include any portion of buildings, requirements in the same way as A person is also considered to structures, sites, complexes, non-historic buildings. The pur- have a disability if he or she has a equipment,rolling stock or other pose of this information booklet record of an impairment,such as conveyances (such as cruise ships is to discuss the impact of the someone who has recovered from or floating restaurants),roads, ADA on historic resources and to cancer,or if he or she is regarded walks, passageways,parking lots, review how a number of organiza- as having an impairment, such as or other real or personal property, tions have taken innovative a burn victim who is not im- including the site where the approaches to preserving the past paired, but who may be errone- building, property,structure,or ously regarded as disabled because equipment is located. Nationa Trust for Historic Preservation The 12 categories are: 12. a gymnasium, health spa, What Actions are bowling alley, golf course, or 1. an inn, hotel, motel, or other similar place of exercise Required? other similar place of lodging; or recreation. For state and local government 2. a restaurant, bar, or other Commercial Facilities entities and public accommoda- establishment serving food or tions the ADA requires: drink; A commercial facility is one that has operations affecting corn- • that all newly constructed 3. a motion picture house, merce and that is intended for buildings and facilities be theater, concert hall, stadium, nonresidential use. This term is readily accessible, or other place of exhibition or broadly defined and includes entertainment; factories,warehouses, office • that all altered portions of buildings,and other buildings existing buildings and facili- 4. an auditorium, convention where employment may occur. ties be readily accessible, and center, or lecture hall; State and Local Government • that all barriers to accessibil- 5. a bakery,grocery store, Entities ity in existing buildings and clothing store,hardware facilities be removed when it store, shopping center, or A state or local government is"readily achievable" to do other similar retail sales entity includes any department, so. establishment; agency, special purpose district, or other instrumentality of state Most commercial facilities are 6. a laundromat, dry-cleaner, or local government. Buildings also considered public accommo- bank, barber shop, beauty and facilities which house any dations and, therefore, must meet shop, travel service,shoe such office will be affected. the requirements described above. repair service, funeral parlor, Those commercial facilities that gas station, office of an Exceptions are not public accommodations, accountant or lawyer, phar- such as a building used solely macy, insurance office, The ADA specifically exempts warehousing,are required onl-1 professional office of a health certain types of buildings and make new construction and care provider, hospital, or facilities from coverage. For alterations readily accessible. A other similar service estab- instance,a place of lodging with structure is readily accessible if it lishment; five or fewer rooms that is also meets the requirements of the the residence of the proprietor, ADA Accessibility Guidelines for 7. a terminal used for public such as a small bed and breakfast, Buildings and Facilities. These transportation; is exempt from the requirements guidelines are published by the of ADA. Architectural and Transportation 8. a museum,library, gallery, or Barriers Compliance Board. Their other similar place of public Private clubs and religious enti- address is listed in the resource display or collection; ties are also specifically ex- section of this booklet. empted. Finally,the ADA does 9. a park or zoo; not apply to a private home that New Construction is used exclusively as a residence. 10. a nursery, elementary, sec- However, if part of the home is The ADA requires that all corn- ondary, undergraduate, or post used as a place of public accom- pletely new facilities which are graduate school; modation,for example a dentist's built for first occupancy, and office or knitting shop, the which are designed and con- 11. a day care center, senior portions used in such a manner structed after January 26, 1993, citizen center, homeless are covered. Thus the ADA must be readily accessible to and shelter,food bank, adoption would apply to any doors, entry usable by individuals with dis- program, or other similar ways, hallways, rest rooms,and abilities. Design and construc- social service center; and any other portion of the resi- tion is considered to occur after deuce, interior or exterior,used January 26, 1993 if a complet by customers or clients of that application for a building pe place of public accommodation. or permit extension, is filed January 26, 1992 and the facility In addition to making the altered is occupied after January 26, portion of a building accessible,if 1993. After this date a facility the alteration affects the usability Previous Laws may only be exempted from this of, or access to, an area contain- requirement if it can demonstrate ing a primary function,the path Prior to the ADA only federal that it is structurally impracti- of travel to the altered area,and government and federally cable to comply. Structurally the bathrooms, telephones, and funded programs were re- impracticable means that unique drinking fountains serving the quired to make all facilities characteristics of the terrain area, must be readily accessible to and services accessible to prevent the incorporation of and usable by individuals with penswith disabilities under accessibility features, such as a disabilities. In no case, however, the Architectural Barriers Act structure that must be built on will an entity have to spend more of 1968 and Rehabilitation Act stilts because of its location in than 20 percent of the total cost of 1973. The ADA extends marshlands or over water. of altering the primary function these requirements to all state area to provide such an accessible and local governments, While the new construction path. If it would cost more than reaidless of their funding requirements will not have an 20 percent of the total cost to do sources,as well as to private impact on historic buildings,they so, only an amount equal to 20 businesses that provide will apply to recreations of percent must be spent. services to the general public. historic buildings. For instance, if a farm museum wanted to build A"primary function" means a an exact replica of a historic barn major activity for which the for visitors to tour, that replica facility was intended. For ex- would have to be readily acces- ample, the customer services sible. lobby of a bank,the dining area of a cafeteria,the meeting rooms in Alterations to Existing Buildings a conference center, and the and Facilities viewing galleries of a museum contain a primary function. A The ADA requires that if a mechanical room, boiler room, building or facility is altered after supply storage room, or janitorial January 26, 1992, the altered closet are not areas containing a portions must,to the maximum primary function. extent feasible,be readily acces- sible to and usable by individuals Generally historic sites should be with disabilities. An "alteration" altered in such a manner that, to means a change to a building or the maximum extent feasible, the facility that affects or could affect altered portions are readily its usability. Alterations include accessible just like all non- remodeling, renovation, rehabii- historic buildings. However, if tation, restoration, reconstruc- making the altered portion of a tion, and changes or rearrange- "qualified"historic building ment in structural parts or ele- readily accessible would threaten ments or in the configuration of or destroy the historic signifi- walls and partitions. Normal cance of that building, certain maintenance, reroofing, painting alternative minimum accessibil- or wailcovering, or changes to ity standards may be applied. A mechanical and electrical sys- qualified historic building or tems are not alterations unless facility is one that is either listed, they affect the usability of the or eligible for listing, in the building or facility. Clearly many National Register of Historic of the procedures necessary to Places, or one that is designated restore and maintain historic as historic under state or local buildings and facilities are consid- law. ered to be alterations for purposes of the ADA. II The procedure for determining historic preservation officer may • Only the publicly used spaces whether the historic significance delegate this consultation respon- on the level of the accessible of a site would be threatened or sibility to a local government entrance must be made destroyed depends on whether the historic preservation program. accessible. building or facility is subject to Other interested persons should Section 106 of the National also be invited to participate in • Displays and written informa- Historic Preservation Act. If the the consultation process, includ- tion should be located where alteration is part of a federal ing state and local government they can be seen by a seated undertaking, or one that is accessibility officials, individuals person. Exhibits and signs federally assisted or federally with disabilities, and organiza- displayed horizontally should licensed,and the building is listed tions representing individuals be no higher than 44 inches or eligible for listing in the with disabilities. above the floor surface. National Register of Historic Places, Section 106 of the Na- Alternative Minimum In some instances it will still not tional Historic Preservation Act Requirements be possible to achieve compliance applies. with these alternative accessibil- If the state historic preservation ity requirements without destroy- In this case the federal agency officer, or his or her designee, ing the historic significance of the with jurisdiction over that under- agrees that the historic signifi- building. The current regulations taking must consider the effects cance of a building would be recognize that some sort of that the alteration will have on threatened or destroyed,the exception in such cases is neces- the building's historic signifi- alternative minimum require- sary, but lawmakers have not yet cance and give the Advisory ments may be used. The altema- come up with a specific proposal. Council on Historic Preservation tive minimum requirements Such a proposal will be made in a reasonable opportunity to permit the following exceptions the next phase of rulemaking. It comment on the matter. In to the normal standards: is likely to be a very narrow one, addition,the federal agency however, and virtually all altered should consult with the state • Only one accessible route buildings and facilities will still historic preservation officer of the from a site access point,such be required to achieve some state where the site is located. as a designated parking space degree of accessibility. for the disabled,to an acces- If either the state historic preser- sible entrance must be pro- Removal of Barriers vation officer or the Advisory vided. A ramp with a slope of Council on Historic Preservation no greater than 1:6 for a run The ADA requires that all places agrees that compliance with the not to exceed 2 feet may be of public accommodation and all normal accessibility requirements used as part of this accessible facilities providing state or local during alteration would threaten route to an entrance. Nor- government programs or services or destroy the historic signifi- many the maximum allow- must remove architectural cance of the building, alternative able slope is 1:12. barriers and communication minimum accessibility standards bathers that are structural in may be used. • Only one accessible public nature,where such removal is entrance must be provided. If readily achievable. An architec- If alterations are undertaken to a it is determined that no tural barrier is a physical barrier qualified historic building or entrance used by the public to access of any kind, such as facility that is not subject to can meet normal accessibility steps,turnstiles,narrow doors, Section 106 of the National standards then an alternative sidewalks without curb cuts, or Historic Preservation Act, and if building entrance should be the close arrangement of furni- the entity undertaking the alter- identified by signs and left ture. A communication bather is ation believes that compliance unlocked during hours of one that is an integral part of the with normal accessibility require- operation. physical structure of the facility ments would threaten or destroy such telephones mounted high on the historic significance of the • If toilets are provided, then a wall, signs mounted out of sight building or facility, the entity only one accessible unisex of individuals in wheelchairs, the should consult the state historic toilet facility must be pro- absence of braille markings on preservation officer. The state vided along an accessible elevator buttons,and alarms t= route. provide only audio signals. 4 - . - - .. i lithe installation of a rp were - I' to threaten or destroy the $1 historicsignificanceofa - building,alternatives such as g I • thistemporazyramp at Colonial — ii Williamsburg may be used. III : : . t (Photo:ColoniolWilliamsburg) • ___ • - - --• .... - . . .- - '•. .---.5;;• - -1.., 4 ,. - S • W - F - . S - -: . - ._.;- - - ' , - . ?.._.r...._5• .. - - S. '.5s •5i .. .5,..., ' 'c" ,' / - —— : -- ' What is "Readily Achievable"? because of its burdensome cost. Alternative Methods However,a small low-cost ramp The term "readily achievable" probably would be required. In Where an entity can demonstrate means easily accomplishable and contrast, if a qualified historic that removal of a barner is not able to be carried out without building is involved and the small readily achievable it must make much difficulty or expense. The ramp would completely destroy a its goods, services, facilities, difficulty and expense of barrier historically significant door or privileges,advantages,and ac- removal will depend on such stairway such a ramp might not commodations available through factors as the nature and cost of be required. alternative methods if such the action needed, the impact of methods are readily achievable. the action upon the operation of In many cases removing architec- the site, the overall financial tural barriers is not difficult. For example, if it is not readily resources of the organization Typical examples include a res-. achievable for a retail establish- responsible for the barrier re- taurant that must rearrange tables ment to change counter top moval, the number of persons and chairs, or a store that must heights or to rearrange display employed at the site,and any adjust its layout of display racks racks to provide accessible aisles, legitimate safety requirements. and shelves,in order to permit the store may have to provide a Thus for most facilities the access to individuals who use clerk to retrieve inaccessible readily achievable standard will wheelchairs. Other examples of merchandise. Similarly, if it is only require physical access that barrier removal include making not readily achievable to ramp a can be achieved without exten- curb cuts in sidewalks and en- long flight of stairs leading to the sive restructuring or burdensome trances;repositioning telephones; front door of a restaurant, the res- expense. For qualified historic installing grab bars in rest rooms; taurant may have to take alterna- buildings, however, historic adding raised markings to eleva- tive measures, such as providing preservation concerns may also be tor control buttons; installing curb service or home delivery. considered. Therefore, if barrier flashing alarm lights;widening Other examples include coming removal would threaten or entrances; repositioning a paper to the door to receive or return destroy the historic significance towel dispenser in a bathroom; dry cleaning;allowing a disabled of a building, it will not be creating designated accessible patron to be served drinks at a considered"readily achievable." parking spaces; installing an table even though nondisabled accessible paper cup dispenser at persons having only drinks are For example,a non-historic public an existing inaccessible water required to drink at the inacces- accommodation would not be fountain;and even removing high sible bar;and rotating movies required to provide access if a pile, low density carpeting which between the first floor accessible flight of steps would require hampers wheelchair movement, theater and a comparable second extensive ramps or an elevator floor inaccessible theater. It is important to remember that • construct new accessible they often must be located in or individuals with disabilities may facilities. near the historic site. If this is not be charged for the costs of an the case and 1) making the alternative method. If structural changes are to be historic structure accessible made in order to comply with this would threaten or destroy its Services and Programs of Public requirement, they must be historic significance and 2) relo- Entities completed by January 26, 1995. cation would result in a funda- There is one important exception mental alteration in the nature of The ADA requires that all public to this requirement. Public the program or in undue financial entities must operate each ser- entities are not required to take and administrative burdens, the vice,program, or activity so that any action that would threaten or public entity does not have to it is readily accessible to and destroy the historic significance ensure physical access. However, usable by individuals with dis- of a historic property. If a service, it still must adopt alternative abilities. If a service, program, or program, or activity is provided at methods for providing program activity is provided in a facility a historic property and making accessibility. Such alternative that is not accessible,the public that property accessible would methods include: entity will have to either. threaten or destroy its historic significance, the service, program, • using audio-visual materials • remove the barriers to access or activity must either be relo- and devices to depict those in that facility, cated to an accessible facility or portions of a historic property provided in an alternative acces- that cannot otherwise be • shift the location where the sible manner. made accessible; service or program is provided to an accessible site, The only exception is for historic • assigning persons to guide preservation programs. A historic individuals with disabilities • provide the service in some preservation program is one that into or through portions of alternative method like visits has the preservation of historic historic properties that cannot to the home, properties as a primary purpose. otherwise be made accessible; Because such programs uniquely or • make alterations to existing concern the preservation and facilities, or experience of the property itself, • adopting other innovative methods. '_. Staff at Chesterwood,located in the Berkshires in western Massachusetts,assist visually - • - - impaired visitors by using +' objects to interpret the history of the estate. (Photo:Chesterwood) 4, , ,_ RP` *. ...; . .. r tomk tea` £fr, ..i .+1 T. .. _ ..7. ( 0 S �^r .. �,, ;"yam __ S' aai:.. - 0 Historic Rail Cars she is about to be subjected to appropriate, including monetary discrimination. Thus an indi- damages. Monetary damages can The ADA generally requires that vidual may file suit both to include all forms of compensatory transportation facilities be acces- remove barriers from existing damages, including out-of-pocket sible in much the same way as facilities,as well as to prevent expenses and damages for pain buildings and facilities. Buses, new construction of facilities and suffering. In extreme cases trains, boats, and other vehicles with architectural barriers. The the court may assess a civil for public transportation will have only relief available to individuals penalty of up to$50,000 for a first to be modified to achieve this is injunctive relief. For example, violation and up to$100,000 for goal. However,as with historic an individual may seek a court any subsequent violation, if such buildings, the law grants some order to make a facility readily a penalty is necessary to vindicate flexibility in the interest of accessible to persons with dis- the public interest. The statute historic preservation. The ADA abilities, or an order requiring indicates that in assessing such a therefore sets out a specific that a particular auxiliary aid or civil penalty the court should exception for historic or anti- service be provided or a particular consider whether the entity to be quated rail passenger cars and rail policy be modified, penalized has made any good faith stations served exclusively by effort or attempt to comply with such cars. A"historical or Individuals also have the option the ADA. antiquated rail passenger car" is of reporting violations of the one that is more than 30 years old ADA to the U.S. Justice Depart- While the ADA permits enforce- and was manufactured by a ment. The U.S.Attorney Gen- ment through the courts as company that is no longer in the eral, through the Assistant described above, it also encour- business of manufacturing rail Attorney General for Civil Rights, ages the use of alternative dispute passenger cars. The car must also has the power to investigate these resolution methods. These have a consequential association alleged violations.If there is a include settlement negotiations, with significant events or persons reason to believe that a violation conciliation, facilitation, media- or it must embody the distinctive has occurred,he or she may tion, fact finding, mini-trials, and characteristics of a type of rail initiate a compliance review of a arbitration. These procedures are passenger car used in the past. If particular facility. The purpose of usually less costly and time compliance with any accessibility a compliance review is to pro- consuming methods of resolving requirement would significantly mote voluntary compliance and disputes. alter the historic or antiquated avoid the need for litigation. character of such passenger car or station compliance is not re- Should litigation be necessary, What Is the Time quired. the Attorney General has the Frame for power to initiate civil suits if, How Will the ADA Compliance? he or she has reason to Be Enforced? believe that any person or Different sections of the ADA group of persons is engaged in become effective at different The intent of the ADA is to a pattern or practice of dis- times. New construction corn- encourage voluntary compliance crimination on the basis of pleted after January 26, 1993, by requiring structural changes disability or, must meet minimum accessibil- only when new construction or ity standards. Alterations to alteration is already taking place • if any person or group of existing structures made after and barrier removal only when it persons has been discrimi- January 26, 1992, must also meet is readily achievable. However to hated against on the basis of the same standards. Barrier ensure compliance, the law disability and the discrimina- removal that is readily achievable permits both private civil suits by tion raises an issue of general must also be accomplished after individuals and suits by the U.S. public importance. January 26, 1992. State and local Attorney General. Private suits governments have three years for preventive relief may be filed In such cases, the ADA gives from this date to complete re- by any person who is subjected to courts the power to grant not only quired changes. discrimination on the basis of a the equitable relief available in an disability, or who has reasonable individual private suit but also grounds for believing that he or any other relief it considers to be The important thing to keep in - � mind is that everyone should '�'•� �.� _-�� i�� Kr.�:ate �i sible designs into planned new construction and alterations and a3 ', a�= � .:.'e ►� ���!!� �� develop plans for removing .rR - ,s.•� .- barriers in existing buildings from the work place and from spaces t used by the public. ",�. t Y _ , F i a ...{.j.0 L' � _. 1� t iz_ Citations PI "-- -:� _ - 1. The Americans with Disabili- �� f �i/ - ties Act,Title 42, U.S.C.A. §§ '� �"`Y 12101 to 12213. '` r* ` , . 2.Nondiscrimination on the _ l t ~ Basis of Disability in State and y a ` c Local Government Services;Final f Rule,28 CFR part 35. + / • x ••_ ,p4 3. Nondiscnm;nation on the a "- - x Basis of Disability by Public '` � Accommodations and in Corn- r ._ �1 ,., f j mercial Facilities;Final Rule 28 - -*y CFR part 36. 3' j � � S vLF.�`_a� ..`V.. J /;`''—ate- _•- - Drayton Hall,one of America's finest examples of Georgian Palladian architecture,has installed a Stair Trac unit to transport visitors in wheelchairs up a flight of 13 steps to the main floor.No alterations to the building were required (Photo:Drayton Hall) 8 Case Studies To enable all visitors to expert- of the house and the surrounding ence the history and beauty of the landscape to interpret 300 years of Historic building museums often building, the Frank Lloyd Wright history and culture. There are no present problems museums disabled Home and Studio Foundation exhibits or interpretive signs in visitors.problems Doorways are not wide offers special programs to make any of the rooms. While this enough for wheelchairs, stars are the building accessible to disabled approach allows visitors to fully sometimes too steep and narrow visitors. A 35-minute videotape, appreciate the architecture in its s or the elderly, and a verbal tour shown in Wright's office, takes original form, it is not adequate guests who are unable to navigate for hearing impaired guests. given to visitors standing behind the stairs to the house on a visual velvet ropes does little too help the visually or hearing impaired walking tour of Wright's home. In 1986 the National Endowment understand the historic The studio portion of the tour is for the Arts held a workshop at visitor un significance of the building. accessible to all visitors. The Drayton Hall on access for dis- video is available for sale in the abled visitors to historic sites. As Administrators at historic sites bookstore at the property and has a result of this workshop, have worked Administrators minimize these been used in training interpreters Drayton Hall staff began to barriers even prior to the pacese and for school groups unable to explore ways to interpret the of the Americans with e p ssli- visit the site. A self-guided tour house for the hearing impaired. using an audio cassette recording Their first attempt using sign ties Act. In the next 10 years roved too more and more historic sites will and map takes visitors through language interpreters P implement interpretation pro- the surrounding historic district, cumbersome to be used on a grams for disabled visitors in Curb cuts have been installed regular basis. Because of the gra order to comply with the new throughout the district to make wealth of architectural terms, the examples the tour accessible for wheelchair interpreters had to finger-spell law. The following from a variety of historic sites users. most of the tour which proved to provide some ideas on ways to be a lengthy and tiring process. A public lecture interpret and make historic sites series relating to accessible to disabled visitors. the Frank Lloyd Wright Home The staff decided a written tour This does not mean that these and Studio and the Prairie School was a better solution and, in the This have already n that the of Architecture is held year-round course of a year,with much trial requirements of the ADA. The in the Oak Park Public Library. and error, drafted a text based on organizations listed below may Wheelchair ramps and elevators the current interpretation and still need to examine the amaysi- Provide handicapped accessibility tour flow through the house. The bility of their properties and may at the library. final 40-page notebook includes a need to make further changes in written description of each room light of the new legislation. Drayton Hall paired with black-and-white illustrations depicting architec- tural near elements. The Frank Lloyd Located on the Ashley Wright Home and Charleston, S.C.,Drayton Hall An original flight of 13 steps leads stands as one of America's finest up to the main floor of Drayton Studio Foundation examples of Georgian Palladian Hall which,in the past, made it architecture. Built between 1738 difficult for physically disabled and 1742,the house was occupied visitors to see the main part of The Frank Lloyd Wright Home by seven generations of the the house. To solve this problem, and Studio in Oak Park, Ill., built Drayton family and appears much guests were offered a 50-minute between 1889-1898,was the as it did in the 18th century, video tour of the house and could architect's home and studio for 20 without running water, electric participate in the regular tour years. Designated a National lighting, or central heating. outside and on the Historic Landmark in 1976, ground floor. Wright's home and studio are Access to the house is b guided Drayton Hall recently purchased surrounded b the tree-lined y gn a Stair Trac unit which can carry y tour only. Visitors to Drayton a visitor in a wheelchair up the streets of the Frank Lloyd Wright Hall are often surprised to find no stairs without any alteration to Prairie School of Architecture furniture,household objects, or the building. Stair Trac devices National Historic District, portraits inside. Instead guides cost from$3,500 to$4,500 and use the outstanding architecture will work on an maximum stair 0 pitch of 35 degrees. Once on the main floor,physically disabled •..; visitors follow the regular tour I and then descend to ground level Vf. .. -, on the Stair Trac unit. 3 z 1 : Drayton Hall guides use a scaled- x !_j down, wooden model of the house - __ - • to help visually impaired visitors understand the building's overall - shape and design. Guides can provide individual "Touch Tours" of the property using a variety of textures and materials that won't i •- be harmed by gentle contact such as native plants, stone, masonry, _ - - decorative ironwork,and glass. r Work is underway to provide models of moldings, materials, =t= Y and architectural details found ; throughout the house. . �., +:^ Chesterwood x '' ` Accessibility has been an impor- Smau sculpture replicas at Chesterwood, depict those portions of a tant issue at Chesterwood for historic property that cannot otherwise be made accessible. (Photo: several years. Located in the Chesterwood) picturesque Berkshire Mountains of western Massachusetts, Chesterwood was the summer French's most important works Colonial Williamsburg attracts residence and studio of sculptor and sculptor's tools. A "sensory" more than one million visitors Daniel Chester French who tour of Chesterwood has also each year and has taken special created such important works as been developed. Items relating to measures to assure that all the Minute Man in Concord, French and the property itself are visitors are able to enjoy the Mass.,and the seated Abraham used to interpret the history of historic village. A Guide For Lincoln for the Lincoln Memorial the estate. These items include Visitors With Disabilities is in Washington,D.C. sculpting tools,pieces of marble available at the Visitor Center, and clay, and a bird's nest. Inter- and provides details on the For those individuals who are ested groups may make reserva- buildings, restaurants, hotels, and unable to tour the entire property, tions for the sensory tour. shops accessible to the disabled. each building displays a number of large photographs of the van- Colonial The Visitor Center is fully ous buildings on the site and of • accessible to the handicapped. A objects associated with French. Williamsburg printed synopsis of the orienta- These laminated place-mat size tion film, Williamsburg- The photographs are used as visual The restoration of the Colonial Story of a Patriot,is available at aids not only when disabled Williamsburg historic site,which the Visitor Center, as are special visitors tour the site, but for all began in 1926, covers 73 acres. headsets with adjustable volume visitors. There are 88 surviving 18th-and control. Information is available early 19th-century buildings,as on wheelchair rentals,portable To assist visually impaired well as many others that have wheelchair ramps,and special visitors the property offers a been reconstructed as accurately passes for parking. written tour in braille that de- as possible on their original scribes the estate,written bro- foundations. There are hands-on activities at chures in large print,and "please many of the exhibits throughout= touch"reproductions of some of Colonial Williamsburg. Major 10 exhibition buildings have"Touch - Me"baskets that include artifacts . -. and reproductions of items ,1_ 3 _. important to the interpretation of _ the site. Visitors at the - .,_ Governor's Palace,for example, can hold a sample of the mos- quito netting used at the palace ' and a reproduction of an early firearm. . . Signing interpreters are available — to assist visitors with hearing x impairments. The numerous .. _-t, - crafts demonstration that take r- ri- place—baking, candlemaking, �- T forging,and printing—are ex- - -• ws �� � # �-_ : = � . .�� plained further in the guide for ! S . : . 7 ., - hearing impaired visitors. ,.�,. _- In addition to house museums, other historic sites must comply with the provisions of the Ameri- x- .� cans with Disabilities Act. Some L, f of these include: lighthouses and f historic vessels, historic theaters, i downtown commercial districts, ` x � parks,and archeological sites. Several programs already under- r -b way are listed below. The Frelmghuysen .s, � Arboretum The surrounding landscape is integral to understanding historic sites,yet many arboretums and At Colonial Williamsburg,a variety of textures and materials such as gardens are not fully accessible to this replica of a wig, can further enhance a visit to the site for visually visitors with disabilities. The impaired visitors. (Photo:Colonial Williamsburg) Frelinghuysen Arboretum, located in Morristown, N.J., offers several programs for the disabled. The 127-acre arboretum provides a quiet oasis where visitors can relax and learn about the plantings and soil climate of Morris County. Known for its rose garden and lilac collection, the arboretum is a regional center for horticultural activities. It offers educational programs and provides a comprehensive collec- tion of botanical literature. Ramps in the education center At the Cape May Point Light- difficult to reach. Next,the and the home demonstration house in New Jersey,a fully director found it difficult to carry garden provide a barrier-free accessible Visitors Orientation on a comfortable conversatic= environment. The arboretum Center is now in place in the with the box office clerk gives recently installed a raised bed newly-restored Oil House on the the height of the counter. As a container garden in the home lighthouse grounds. Visitors who result of the tour,specially- demonstration garden for handi- are unable to climb the light- designed door handles that were capped visitors. Because of its house staircase can see a photo easier to grip were installed and height,the garden is ideal for mural of the view from the the box office counter height was individuals in wheelchairs or for Watchroom Gallery,as well as adjusted. those who use walkers. Hanging reproductions of each display in flower baskets are on pulleys that the lighthouse. An information After an emotional interview can be adjusted to whatever video about the lighthouse is with local press in 1985 by height is needed. shown in the Visitors Orientation musician Itzhak Perlman, city Center. fathers donated funds for a back- A self-guided nature trail features stage wheelchair lift,making plant markers in braille and in Samuel Clemens stage facilities accessible to the raised letters to accommodate the physically disabled. visually impaired. The trail Center for the includes trees, shrubs,and flowering stations e g Performing Arts Mystic Seaport plants. The nature trail booklet is also available in braille. Historic theaters also need to Access to historic vessels often consider the needs of disabled poses problems for disabled patrons. The original renovation visitors. Boats are usually Cape May Point in the 1970s of the Samuel moored at docks,rising up and Clemens Center in Elmira, N.Y., down with the tide. Aisles and Lighthouse included barrier-free adaptations, doorways are often too narrow to and over the years the theater's accommodate wheelchairs. Although the 200-year-old tradi- board and staff have continued to Ladders and gangways replaces don of the manned lighthouse is improve the building's accessibil- stairs. Mystic Seaport,a non- coming to a close, many light- ity. To locate obstacles, the profit maritime museum located houses remain and are being director took a tour of the theater on the Mystic River in Mystic, preserved for future generations while sitting in a wheelchair. Conn., has made provisions to as symbols of our maritime The first obstacle was the front make at least one of their historic heritage, door;the door handles were ships accessible. The 17-acre f The Frelingbuysen Arboretum, f . f .. located in Morristown,N.J.,has x� fr 'rh 's.�x`","� '=' � !�- f - _ installed araised bed container ' . -� 3 s , garden as a demonstration ;r. .' garden for disabled and elderly •.;_1 r : rs.� - visitors. (Photo:MollyAdanrs) '_. a ��tlll� ` I<: `� . - -¼ r r I • ?..•,�«'- _ - �. �'',.=-•� museum,founded in 1929, i includes tall ships,a complex of *Y historic buildings, a preservation shipyard, planetarium, and numerous exhibit buildings. "TE4s f ' f T �^ ' i _ — . S ADM�- " The museum has four historic , � 4 �°° ;, � ��� vessels, one of which, the 1841 �`}'°`"` " � lour "_ ��_ # ,;-- } ^�• ;... Charles W.Morgan, is accessible Sc to wheelchair users. The gang- H�� — �""'ytt ` � way ramp to this historic whaling _— bark was placed on rollers which allows it to rise and fall with the �`" - ` ,. t' s; k. ": r tides. A smaller ramp was added to permit wheelchair access to the gangway ramp. An additional y t ramp was added at the top of the gangway ramp to provide access to the main deck. ` The ship's design as a whaling ship provides easier access for disabled visitors than is the case ! The Cape May Point Lighthouse provides a mural of the view from the with other historic vessels. On Watcb.room Gallery for those visitors unable to climb the stairs. the Morgan's starboard side is a i (Photo:Cape May Point Lighthouse) removable section of the ship's bulwarks and rail. Originally this allowed the crew to strip the blubber from the whale. Today, Selected Resources this opening provides easy access for disabled visitors. The Association for Persons with and distributes a variety of free Severe Handicaps (TASH) is a publications on the ADA and Mystic also gives visitors a nonprofit,international member- barrier removal. For an order brochure indicating which exhib- ship organization concerned with form contact: United States its and buildings are accessible to education and independence for Architectural and Transportation wheelchairs, allowing disabled individuals who traditionally Barriers Compliance Board, 1111 visitors to better plan their tour. have been labelled severely 18th Street,N.W., Suite 501, intellectually disabled. TASH Washington,D.C.20036-3894. Acknowledgements publishes a monthly newsletter,a (202) 653-7834. quarterly journal,numerous This Information booklet was books and videos,and holds an The Clearinghouse on Disability written by David H.Battaglia,an annual conference. For more Information responds to inquiries attorney with the Washington information contact: The Asso- on disability issues, federal office of the law firm of Hunton cat on For Persons With Severe legislation,and programs benefit- &Williams. Inquiries concerning Handicaps, 7010 Roosevelt Way, ing the disabled. For more infor- the ADA can be directed to the N.E., Seattle,Wash.98115. (206) mation contact: Clearing House author in writing at the following i 523-8446' on Disability Information, Office of Special Education and Rehabili- Bdxr192ess 0 Was &Williams, P.O. The United States Architectural tation Services,U.S.Department Box 19230, Washington, D.C. and Transportation Barriers of Education, Room 3132, Switzer 20036. i Compliance Board is an indepen- Building, Washington,D.C. The case studies and resource dent federal agency that ensures 20202. (202) 732-1723. sections were prepared by Na- accessibility to federally-owned or tional Trust interns Daphne funded programs or facilities and Lmgon,Theresa Park,and Maria j handles complaints on non- Roach. compliance. The board produces Several offices of the National Resource Center distributes a The National Information Center Park Service,U.S.Department of variety of publications on accessi- on Deafness (NICD)is a central- the Interior provide technical bility and design which are ized source of information ab assistance and publications available free to PVA chapters and hearing loss and deafness. Nt related to access for the disabled members and at low- or no cost to collects, develops,and dissemi- at historic sites. others. For more information nates up-to-date information on contact: Paralyzed Veterans of deafness,hearing loss,and re- The Branch of Special Programs America,Department of Archi- sources and services for deaf and and Populations administers the tecture and Barrier-free Design, hearing impaired people. For a National Park Service accessibil- 801 18th Street, N.W., Washing- list of publications, directory of ity program and handles corn- ton,D.C.20006. (202) 872-1300. national organizations, or further plaints for non-compliance of inquiries, contact: National NPS-owned properties. This The President's Committee on Information Center on Deafness, office also produces accessibility Employment of the Disabled is a Gallaudet University, 800 Florida resource materials and provides public,nonprofit organization Avenue, N.E., Washington, D.C. technical assistance. (202)343- established by an Executive Order 20002-3695. (202) 651-5051. 3674. to acquire, organize,and dissemi- nate information to increase Alexander Graham Bell Associa- The Park Historic Architecture public awareness of the needs, tion for the Deaf,Inc.is a non- Division is responsible for devel- capabilities,and opportunities for profit membership organization oping policies,guidelines, and disabled individuals. Publica- that provides services and support procedures including those for tions, referrals,and assistance are for the hearing impaired to accessibility to historic and available at no charge. For more broaden educational,vocational, prehistoric properties in the information contact: President's and personal opportunities for National Park System. (202)343- Committee on Employment of hearing impaired people. For 8148. the Disabled, Law and Regula- further information on services lions Department, 1111 20th and/or publications contact: The Preservation Assistance Street,N.W. Washington,D.C. Alexander Graham Bell Associa- Division is responsible for devel- 20036. (202)653-5044. tion for the Deaf,3417 Volta oping policy and technical guid- Place, N.W., Washington,D.C. ance for alterations to historic The National Endowment for the 20007-2778. (202)337-5220. buildings and landscapes. This Arts,Office for Special Constitu- division responds to questions envies serves as the technical Through a variety of programs regarding proposed treatments assistance and advocacy arm of and services, The American that meet the Secretary of the the Arts Endowment for people Council of the Blind (ACB), a Interior's Standards for Historic who are older, disabled, or living national membership organiza- Preservation projects. (202)343- in institutions such as nursing tion, enables blind people to live 9578. For more information homes. This office works with and work independently. ACB contact: National Park Service, Endowment staff and grantees, programs and activities include: P.O. Box 37127,Washington, state and local arts organizations, information and referral, publica- D.C.20013-7127 or call the as well as other federal agencies tions, legislative and governmen- telephone numbers listed with to educate artists and administra- tal monitoring,scholarships, each office. tors on how to mainstream public awareness and education, special constituencies into the and legal advice and assistance. The Paralyzed Veterans of arts. For more information For further information contact: America (PVA) is a private non- contact: The National Endow- American Council of the Blind, profit organization established to merit for the Arts, Office for 1155 15th Street, N.W., Suite 720, support improved programs for Special Constituencies, 1100 Washington, D.C. 20005. (202) rehabilitation and social integra- Pennsylvania Avenue, N.W., 467-5081 within D.C., or(800) tion of disabled Americans. PVA's Washington, D.C. 20506. (202) 467-5081. Architecture and Barrier Free 682-5532. Design Program includes staff architects who provide assistance on barrier-free design and remov- ing barriers from existing build- ings. The program's Access 14 The Disabled American Veterans Information Service, 5285 Port Massachusetts Avenue, N.W., (DAV)helps veterans with repre- Royal Road, Springfield,Va. Washington, D.C. 20036. (202) sentation before the Veterans 22161. (703)487-4600. NTTS order 673-4219. Administration and provides a number. PB 85-180826. $17.00 wide range of assistance for paper. Preserving the Past and Making veterans and their families. DAV it Accessible to Everyone:How has actively pursued the removal Accommodation of Disabled Easy a Task? CRM Supplement of barriers to all handicapped Visitors at Historic Sites in the 1991. Washington, D.C.:Preser- people. Their services are pro- National Park System.Duncan S. vation Assistance Division, U.S. vided free of charge for members. Ballantyne. Washington,D.C.: Department of the Interior, 1991. For more information contact: Technical Preservation Services, This publication outlines ADA Disabled American Veterans, 807 U.S.Department of the Interior, requirements, the time frame of Maine Avenue, S.W., Washing- This publication focuses on the new law, and various types of ton, D.C. 20024. (202)554-3501. physical access and the need to project work needed to comply. resolve the differences between A list of organizations and a The Society for the Advancement the needs of physically disabled bibliography is included. The of Travel for the Handicapped has visitors and the need to preserve publication is available free of material on many popular domes- the historic integrity of sites and charge to the public. To order a tic tourist destinations and will structures. Available from the copy contact: Cultural Resources, provide contacts for callers to get U.S.Department of Commerce, National Park Service,U.S. information about specially National Technical Information Department of Interior, P.O.Box adapted rental cars and accessibil- Services, 5285 Port Royal Road, 37127,Washington,D.C.20013- ity on airlines, trains or buses. Springfield,Va.22161. (703)487- 7127. (202)343-9573. For more information contact: 4600. NTIS order number PB 85- Society for the Advancement of 103711. $23.00 paper. Travel for the Handicapped,347 Within the U.S.Department of Fifth Avenue, Suite 610, New ADA Compliance Guidebook A Justice, the Office on the Amen- York, N.Y. 10016. (202)447-7284. Checklist for Your Building. cans with Disabilities Act has an Building Owners and Managers information packet on the ADA Publications Association International.Wash- that includes:final regulations ington, D.C.: BOMA Intl., 1991. and highlights of Title II and Title Access to Historic Buildings for This handbook promotes volun- III,and a question and answer the Disabled:Suggestions Buildings �'compliance by commercial brochure. To request the packet properties with the Americans or further information contact: Planning and Implementation. with Disabilities Act. The cost Office on the Americans with Charles Parrott.Washington, is$36 for members/$46 for Disabilities Act, Civil Rights D.C.:Technical Preservation nonmembers. For information or Division,U.S.Department of Services, U.S.Department of the purchase contact:BOMA Intl., Justice, P.O. Box 66118,Washing- Interior, 1980. This publication 1201 New York Avenue, N.W., ton,D.C.,20035-6118. (202)514- describes methods to achieve Suite 300,Washington,D.C. 0301 (Voice)or(202)514-0381 or barrier-free access to historic 20005. (202)408-2662. (202) 514-0383 (TDD). buildings that conform with the Department of the Interior's "The Americans with Disabilities historic preservation standards. It Act: What It Means for Main addresses a variety of specific Street," Kennedy Smith.Main needs for the disabled, including Street News, September, 1991. ramps, vertical wheelchair lifts, This issue reports on the impact curb cuts, railings, rest rooms, of ADA on historic and neighbor- miscellaneous fixtures, and hood commercial districts. The signage. It also examines tech- cost is$3.50 including postage niques to make programs and and handling. To order a copy services housed in historic contact: National Main Street buildings accessible in lieu of Center, National Trust for architectural changes. Available Historic Preservation, 1785 from the U.S.Department of Commerce, National Technical Support for the National Trust is provided in part by matching grants from the U.S.Department of the Interior,Na- tional Park Service,under provisions of the National Historic Preservation Act of 1966. The opinions expressed in this publication are not necessarily those of the U.S.Department of the Interior. JOIN THE HISTORIC PRESERVATION NETWORK The Preservation Forum of the National Trust is a membership program for professionals and organizations. The benefits and privileges of membership include subscriptions to Historic Preservation Forum,Historic Preservation magazine,Historic Preservation News,participation in financial/insurance assistance programs,technical advice, and substantial discounts on professional conferences and educational publications. To join,send$75 annual dues to: Preservation Forum National Trust for Historic Preservation 1785 Massachusetts Avenue,N.W. Washington,D.C. 20036 (202)673-4296 Offices of the National Trust for Historic Preservation National Headquarters Northeast Office Texas/New Mexico Field Office 1785 Massachusetts Avenue,N.W. Seven Faneuil Hall Marketplace,5th Floor 500 Main Street,Suite 606 Washington,D.C. 20036 Boston,Mass. 02109 Fort Worth,Tex. 76102 (202)673-4296 (617)523-0885 (817)332-4398 (Connecticut.Maine,Massachusetts,New (New Meuco,Texas) Mid-Atlantic Office Hampshire,New York,Rhode Island,Vermont) Cliveden,6401 Germantown Ave. Western Office Philadelphia,Pa. 19144 Southern Office One Sutter Street,Suite 707 (215)438-2886 William Aiken House San Francisco,Calif. 94104 (Delaware,District of Columbia,Maryland.New 456 King Street (415)956-0610 Jersey.Pennsylvania.Puerto Rico,Virginia. Charleston,S.C. 29403 (Alaska.Arizona.California.Guam,Hawaii, Virgin Islands,West Virginia) (803)722-g552 Idaho,Micronesia,Nevada,Oregon.Utah. (Alabama.Arkansas.Florida,Georgia.Kentucky. Washington) Midwest Office Louisiana.Mississippi,North Carolina,South 53 West Jackson B1vd.Suite 1135 Carolina,Tennessee) Chicago,Ill. 60604 (312)939-5547 Mountains/Plains Office (Illinois,Indiana.Iowa.Michigan,Minnesota, 511 16th Street,Suite 700 Copyright©1991 Missouri,Ohio,Wisconsin) Denver,Colo. 80202 National Trust for Historic Preservation (303)623.1504 (Colorado.Kansas.Montana,Nebraska,North Dakota,Oklahoma,South Dakota,Wyoming) Historic Preservation Legislation A Manual For Florida's Certified Local Governments and Historic Preservation Commissions Historic Preservation Fund Grants Manual National Historic Preservation Act Appendices Page 1 National Historic Preservation Act As Ataended Through 1996 (The wording of the "National Historic Preservation Act Amendments of 1992" is as passed in Title XL of HR429. HR429 also contains an amendment to An Act to Establish the Martin Luther King, Jr. National Historic Site in the State of Georgia, Public Law 96- 428; 94 Stat. 1839, which has not been reprinted.) AN ACT to Establish a Program for the Preservation of Additional Historic Properties throughout the Nation, and for Other Purposes, Approved October 15, 1966 (Public Law 89-665; 80 Stat. 915; 16 U.S.C. 470) as amended by Public Law 91-243, Public Law 93-54, Public Law 94-422, Public Law 94-458, Public Law 96- 199, Public Law 96-244, Public Law 96-515, Public Law 98-483, Public Law 99- 514, Public Law 100-127, and Public Law 102-575, Public Law 103-437, Public Law - 104-333) . Section 1 (16 U.S.C. 470) Short title (a) This Act may be cited as the "National Historic Preservation Act." Purpose of the Act (b) The Congress finds and declares that-- (1) the spirit and direction of the Nation are founded upon and reflected in its historic heritage; (2) the historical and cultural foundations of the Nation should be preserved as a living part of our community life and development in order to give a sense of orientation to the American people; (3) historic properties significant to the Nation's heritage are being lost or substantially altered, often inadvertently, with increasing frequency; (4) the preservation of this irreplaceable heritage is in the public interest so that its vital legacy of cultural, educational, esthetic, inspirational, economic, and energy benefits will be maintained and enriched for future generations of Americans; (5) in the face of ever-increasing extensions of urban centers, highways, and residential, commercial, and industrial developments, the present governmental and nongovernmental historic preservation programs and activities are inadequate to ensure future generations a genuine opportunity to appreciate and enjoy the rich heritage of our Nation; (6) the increased knowledge of our historic resources, the establishment of better means of identifying and administering them, and the encouragement of their preservation will improve the planning and execution of Federal and federally assisted projects and will assist economic growth and development; and (7) although the major burdens of historic preservation have been borne and major efforts initiated by private agencies and individuals, and both should continue to play a vital role, it is nevertheless necessary and appropriate for the Federal Government to accelerate its historic preservation programs and activities, to give maximum encouragement to agencies and individuals undertaking preservation by private means, and to assist State and local governments and the National Trust for Historic Preservation in the October 1997 Release . . .. .. .. .. _ "•ti;�=.5.', rc.:�l.- :? . :C?As:' i. •yr.;rt_.. ;: �:.�.;i.r:S>r•:u•:`:�:�. :li.ate,-s•. Historic Preservation Fund Grants Manual National Historic Preservation Act Appendices Page 2 United States to expand and accelerate their historic preservation programs and activities Section 2 (16 U.S.C. 470-1) Declaration of policy of Federal Government It shall be the policy of the Federal Government, in cooperation with other nations and in partnership with the States, local governments, Indian tribes, and private organization and individuals to-- (1) use measures, including financial and technical assistance, to foster conditions under which our modern society and our prehistoric and historic resources can exist in productive harmony and fulfill the social, economic, and other requirements of present and future generations; (2) provide leadership in the preservation of the prehistoric and historic resources of the United States and of the international community of nations and in the administration of the national preservation program in partnership with States, Indian tribes, Native Hawaiians, and local governments; (3) administer federally owned, administered, or controlled prehistoric and historic resources in a spirit of stewardship for the inspiration and benefit of present and future generations; (4) contribute to the preservation of nonfederally owned prehistoric and historic resources and give maximum encouragement to organization and individuals undertaking preservation by private means; (5) encourage the public and private preservation and utilization of all usable elements of the Nation's historic build environment; and (6) assist State and local governments, Indian tribes and Native Hawaiian organizations and the National Trust for Historic Preservation in the United States to expand and accelerate their historic preservation programs and activities. TITLE I Section 101 (16 US.0 470a) - National Register of Historic Places, expansion and maintenance (a) (1) (A) The Secretary of the Interior is authorized to expand and maintain a National Register of Historic Places composed of districts, sites, buildings, structures, and objects significant in American history, architecture, archeology, engineering, and culture. National Historic Landmarks, designation (B) Properties meeting the criteria for National Historic Landmarks established pursuant to paragraph (2) shall be designated as "National Historic Landmarks" and included on the National Register, subject to the requirements of paragraph (6) . All historic properties included on the National Register on December 12, shall be deemed to be included on the National Register as of their initial listing for purposes of this Act. All historic properties listed in the Federal Register of February 6, 1979, as "National Historic Landmarks" or thereafter prior to the effective date of this Act are declared by Congress to be National Historic Landmarks of national historic significance as of their initial listing as such in the October 1997 Release ... - .. .-. .. ....'..r,�.. . �wp.�.. �"3.'- .._ri :iH?si-�a.tr-:'}":•':t:.'_4X�^ ��;•;Y.i: •��_.ti."����.�a w..•�:rc .. . Historic Preservation Fund Grants Manual National Historic Preservation Act Appendices -Page 3 Federal Register for purposes of this Act and the Act of August 21, 1935 (49Stat. 666) [16 U.S.C. 461 to 467] ; except that in cases of National Historic Landmark districts for which no boundaries have been established, boundaries must first be published in the Federal Register. Criteria for National Register and National Historic Landmarks and regulations (2) The Secretary in consultation with national historical and archeological associations, shall establish or revise criteria for properties to be included on the National Register and criteria for National Historic Landmarks, and shall also promulgate or revise regulations as may be necessary for-- (A) nominating properties for inclusion in, and removal from, the National Register and the recommendation of properties by certified local governments; (B) designating properties as National Historic Landmarks and removing such designation; (C) considering appeals from such recommendations, nomination, removals, and designations (or any failure or refusal by a nominating authority to nominate or designate) ; (D) nominating historic properties for inclusion in the World Heritage List in accordance with the terms of the Convention concerning the Protection of the World Cultural and Natural Heritage; (E) making determinations of eligibility of properties for inclusion on the National Register; and (F) notifying the owner of a property, and any appropriate local governments, and the general public when the property is being considered for inclusion on the National Register, for designation as a National Historic Landmark or for nomination to the World Heritage List. Nominations to the National Register (3) Subject to the requirements of paragraph (6) , any State which is carrying out a program approved under subsection (b) , shall nominate to the Secretary properties which meet the criteria promulgated under subsection (a) for inclusion on the National Register. Subject to paragraph (6) , any property nominated under this paragraph or under section 110(a) (2) shall be included on the National Register on the date forty-five days after receipt by the Secretary of the nomination and the necessary documentation, unless the Secretary disapproves such nomination within such forty-five day period or unless an appeal is filed under paragraph (5) . Nominations from individuals and local governments (4) Subject to the requirements of paragraph (6) the Secretary may accept a nomination directly from any person or local government for inclusion of a property on the National Register only if such property is located in a State where there is no program approved under subsection (b) . The Secretary may include on the National Register any property for which such a nomination is made if he determines that such property is eligible in accordance with the regulations promulgated under paragraph (2) . Such determinations shall be made within ninety days from the date of nomination unless the nomination is appealed under paragraph (5) . Appeals of nominations October 1997 Release . ,.+.,<'G.,',z.'Ctrs`? .':•T.,".'4�' %�.Kl�i-;s:;il�r�_`•it:•s;�.nti.p -.Ty-Yt^:`:''�y;. r.': :• ::45','r.+,:.o�.,:+.:�ra'::.�;�.. Historic Preservation Fund Grants Manual National Historic Preservation Act Appendices Page 4 (5) Any person or local government may appeal to the Secretary a nomination of any historic property for inclusion on the National Register and may appeal to the Secretary the failure or refusal of a nominating authority to nominate a property in accordance with this subsection. Owner participation in nomination process (6) The Secretary shall promulgate regulations requiring that before any property or district may be included on the National register or designated as a National Historic Landmark, the owner or owners of such property, or a majority of the owners of the properties within the district in the case of a historic district, shall be given the opportunity (including a reasonable period of time) to concur in, or object to, the nomination of the property or district for such inclusion or designation. If the owner or owners of any privately owned property, or a majority of the owners of such properties within the district in the case of a historic district, object to such inclusion or designation, such property shall not be included on the National Register or designated as a National Historic Landmark until such objection is withdrawn. The Secretary shall review the nomination of the property or district where any such objection has been made and shall determine whether or not the property or district is eligible for such inclusion or designation, and if the Secretary determines that such property or district is eligible for such inclusion or designation, he shall inform the Advisory Council on Historic Preservation, the appropriate State Historic Preservation Officer, the appropriate chief elected local official and the owner or owners of such property, of his determination. The regulations under this paragraph shall include provisions to carry out the purposes of this paragraph in the case of multiple ownership of a single property. Regulations for curation, documentation, and local government certification (7) The Secretary shall promulgate, or revise, regulations-- (A) ensuring that significant prehistoric and historic artifacts, and associated records, subject to section 110 of this Act, the Act of June 27, 1960 (16 U.S.C. 469c) , and the Archeological Resources Protection Act of 1979 (16 U.S.C. 470aa and following) are deposited in an institution with adequate long-term curatorial capabilities; (B) establishing a uniform process and standards for documenting historic properties by public agencies and private parties for purposes of incorporation into, or complementing the national historic architectural and engineering records within the Library of Congress; and (C) certifying local governments, in accordance with subsection (c) (1) and for the allocation of funds pursuant to section 103(c) of this Act. Secretary's review of significant threats to historic properties (8) The Secretary shall, at least once every 4 years, in consultation with the Council and with State Historic Preservation Officers, review significant threats to properties included in, or eligible for inclusion on, the National Register, in order to-- (A) determine the kinds of properties that maybe threatened; (B) ascertain the causes of the threats; and (C) develop and submit to the President and Congress recommendations for appropriate action. October 1997 Release • Historic Preservation Fund Grants Manual National Historic Preservation Act Appendices -Page 5 State Historic Preservation Programs (b) (1) The Secretary, in consultation with the National Conference of State Historic Preservation Officers and the National Trust for Historic Preservation, shall promulgate or revise regulations for State Historic Preservation Programs. Such regulations shall provide that a State program submitted to the Secretary under this section shall be approved by the Secretary if he determines that the program-- Designation of the State Historic Preservation Officer (SHPO) (A) provides for the designation and appointment by the Governor of a "State Historic Preservation Officer" to administer such program in accordance with paragraph (3) and for the employment or appointment by such officer of such professionally qualified staff as may be necessary for such purposes; (B) provides for an adequate and qualified State historic preservation review board designated by the State Historic Preservation Officer unless otherwise provided for by State law; and (C) provides for adequate public participation in the State Historic Preservation Program, including the process of recommending properties for nomination to the National Register. Review of State programs (2) (A) Periodically, but not less than every 4 years after the approval of any State program under this subsection, the Secretary, in consultation with the Council on the appropriate provisions of this Act, and in cooperation with the State Historic Preservation Officer, shall evaluate the program to determine whether it is consistent with this Act. (B) If, at any time, the Secretary determines that a major aspect of a State program is not consistent with this Act, the Secretary shall disapprove the program and suspend in whole or in part any contracts or cooperative agreements with the State and the State Historic Preservation Officer under this Act, until the program is consistent with this Act, unless the Secretary determines that the program will be made consistent with this Act within a reasonable period of time. (C) The Secretary, in consultation with State Historic Preservation Officers, shall establish oversight methods to ensure State program consistency and quality without imposing undue review burdens on State Historic Preservation Officers. (D) At the discretion of the Secretary, a State system of fiscal audit and management may be substituted for comparable Federal systems so long as the State system-- (i) establishes and maintains substantially similar accountability standards; and (ii) provides for independent professional peer review. The Secretary may also conduct periodic fiscal audits of State programs approved under this section as needed and shall ensure that such programs meet applicable accountability standards. SHPO responsibilities (3) It shall be the responsibility of the State Historic Preservation Officer to administer the State Historic Preservation Program and to-- October 1997 Release .. - _ Historic Preservation Fund Grants Manual National Historic Preservation Act Appendices Page 6 (A) in cooperation with Federal and State agencies, local governments, and private organizations and individuals, direct and conduct a comprehensive statewide survey of historic properties and maintain inventories of such properties; (B) identify and nominate eligible properties to the National Register and otherwise administer applications for listing historic properties on the National Register; (C) prepare and implement a comprehensive statewide historic preservation plan; (D) administer the State program of Federal assistance for historic preservation within the State; (E) advise and assist, as appropriate, Federal and State agencies and local governments in carrying out their historic preservation responsibilities; (F) cooperate with the Secretary, the Advisory Council on Historic Preservation, and other Federal and State agencies, local governments, and organizations and individuals to ensure that historic properties are taken into consideration at all levels of planning and development; (G) provide public information, education and training, and technical assistance in historic preservation; (H) cooperate with local governments in the development of local historic preservation programs and assist local governments in becoming certified pursuant to subsection (c) ; (I) consult with the appropriate Federal agencies in accordance with this Act on-- (i) Federal undertakings that may affect historical properties; and (ii) the content and sufficiency of any plans developed to protect, manage, or to reduce or mitigate harm to such properties; and (J) advise and assist in the evaluation of proposals for rehabilitation projects that may qualify for Federal assistance. Arrangements with nonprofit organizations (4) Any State may carry out all or any part of its responsibilities under this subsection by contract or cooperative agreement with any qualified nonprofit organization or educational institution. Approval of existing programs (5) Any State historic preservation program in effect under prior authority of law may be treated as an approved program for purposes of this subsection until the earlier of-- (A) the date on which the Secretary approves a program submitted by the State under this subsection, or (B) three years after the date of the enactment of the National Historic Preservation Act Amendments of 1992. October 1997 Release Historic Preservation Fund Grants Manual National Historic Preservation Act . Appendices Page 7 Contracts or cooperative agreements between the Secretary and a SHPO (6) (A) Subject to subparagraphs (c) and (d) , the Secretary may enter into contracts or cooperative agreements with a State Historic Preservation Officer for any State authorizing such Officer to assist the Secretary in carrying out one or more of the following responsibilities within that State-- (i) Identification and preservation of historic properties. (ii) Determination of the eligibility of properties for listing on the National Register. (iii) Preparation of nominations for inclusion on the National Register. (iv) Maintenance of historical and archaeological data bases. (v) Evaluation of eligibility for Federal preservation incentives. Nothing in this paragraph shall be construed to provide that any State Historic Preservation Officer or any other person other than the Secretary shall have the authority to maintain the National Register for properties in any State. Restrictions on contracts or cooperative agreements (B) The Secretary may enter into a contract or cooperative agreement under subparagraph (a) only if-- (i) the State Historic Preservation Officer has requested the additional responsibility; (ii) the Secretary has approved the State historic preservation program pursuant to section 101(b) (1) and (2) ; (iii) the State Historic Preservation Officer agrees to carry out the additional responsibility in a timely and efficient manner acceptable to the Secretary and the Secretary determines that such Officer is fully capable of carrying out such responsibility in such manner; (iv) the State Historic Preservation Officer agrees to permit the Secretary to review and revise, as appropriate in the discretion of the Secretary, decisions made by the Officer pursuant to such contract or cooperative agreement; and (v) the Secretary and the State Historic Preservation Officer agree on the terms of additional financial assistance to the State, if there is to be any, for the costs of carrying out such responsibility. Specific conditions and criteria (C) For each significant program area under the Secretary's authority, the Secretary shall establish specific conditions and criteria essential for the assumption by State Historic Preservation Officers of the Secretary's duties in each such program. (D) Nothing in this subsection shall have the effect of diminishing the preservation programs and activities of the National Park Service. October 1997 Release Historic Preservation Fund Grants Manual National Historic Preservation Act Appendices Page 8 Certification of local governments (c) (1) Any State program approved under this section shall provide a mechanism for the local certification by the State Historic Preservation Officer of local governments to carry out the purposes of this Act and provide for the transfer, in accordance with section 103(c) , of a portion of the grants received by the States under this Act, to such local governments. Any local government shall be certified to participate under the provisions of this section if the applicable State Historic Preservation Officer, and the Secretary, certifies that the local government-- (A) enforces appropriate State or local legislation for the designation and protection of historic properties; (B) has established an adequate and qualified historic preservation review commission by State or local legislation; (C) maintains a system for the survey and inventory of historic properties that furthers the purposes of subsection (b) ; (D) provides for adequate public participation in the local historic preservation program, including the process of recommending properties for nomination to the National Register; and (E) satisfactorily performs the responsibilities delegated to it under this Act. Where there is no approved State program, a local government may be certified by the Secretary if he determines that such local government meets the requirements of subparagraphs (a) through (e) ; and in any such case the Secretary may make grants- in-aid to the local government for purposes of this section. Participation of certified local governments in National Register nominations (2) (A) Before a property within the jurisdiction of the certified local government may be considered by the State to be nominated to the Secretary for inclusion on the National Register, the State Historic Preservation Officer shall notify the owner, the applicable chief local elected official, and the local historic preservation commission. The commission, after reasonable opportunity for public comment, shall prepare a report as to whether or not such property, in its opinion, meets the criteria of the National Register. Within sixty days of notice from the State Historic Preservation Officer, the chief local elected official shall transmit the report of the commission and his recommendation to the State Historic Preservation Officer. Except as provided in subparagraph (B) , after receipt of such report and recommendation, or if no such report and recommendation are received within sixty days, the State shall make the nomination pursuant to section 101 (a) . The State may expedite such process with the concurrence of the certified local government. (B) If both the commission and the chief local elected official recommend that a property not be nominated to the National Register, the State Historic Preservation Officer shall take no further action, unless within thirty days of the receipt of such recommendation by the State Historic Preservation Officer an appeal is filed with the State. If such an appeal is filed, the State shall follow the procedures for making a nomination pursuant to section 101 (a) . Any report and recommendations made under this section shall be included with any nomination submitted by the State to the Secretary, (3) Any local government certified under this section or which is making efforts to become so certified shall be eligible for funds under the provisions of section 103(c) of this Act, and shall carry out any October 1997 Release ....-_;h..r.�:T,f}b.ts;t,•G;.,�:y�,`..'.'.,':Y3•*'f1t."q.+�:� ;�� -/. •.r ._r_j.is�.� .tits.... < .. _ Xfi�}... _ .Driti .."-�,E�w:��?�F.`- 1•. :C 'd� s }!''iy.�� C�•y. Historic Preservation Fund Grants Manual National Historic Preservation Act Appendices Page 9 responsibilities delegated to it in accordance with such terms and conditions as the Secretary deems necessary or advisable. (4) For the purposes of this section the term-- (A) "designation" means the identification and registration of properties for protection that meet criteria established by the State or the locality for significant historic and prehistoric resources within the jurisdiction of a local government; and (B) "protection" means a local review process under State or local law for proposed demolition of, changes to, or other action that may affect historic properties designated pursuant to subsection (c) . Program for assistance to Indian tribes (d) (1) (A) The Secretary shall establish a program and promulgate regulations to assist Indian tribes in preserving their particular historic properties. The Secretary shall foster communication and cooperation between Indian tribes and State Historic Preservation Officers in the administration of the national historic preservation program to ensure that all types of historic properties and all public interests in such properties are given due consideration, and to encourage coordination among Indian tribes, State Historic Preservation Officers, and Federal agencies in historic preservation planning and in the identification, evaluation, protection, and interpretation of historic properties. Consideration of tribal values (B) The program under subparagraph (a) shall be developed in such a manner as to ensure that tribal values are taken into account to the extent feasible. The Secretary may waive or modify requirements of this section to conform to the cultural setting of tribal heritage preservation goals and objectives. The tribal programs implemented by specific tribal organizations may vary in scope, as determined by each tribe's chief governing authority. (C) The Secretary shall consult with Indian tribes, other Federal agencies, State Historic Preservation Officers, and other interested parties and initiate the program under subparagraph (a) by not later than October 1, 1994. Tribal assumption of State Historic Preservation Officer functions (2) A tribe may assume all or any part of the functions of a State Historic Preservation Officer in accordance with subsections (b) (2) and (b) (3) , with respect to tribal lands, as such responsibilities may be modified for tribal programs through regulations issued by the Secretary if-- • (A) the tribe's chief governing authority so requests; (B) the tribe designates a tribal preservation official to administer the tribal historic preservation program, through appointment by the tribe's chief governing authority or as a tribal ordinance may otherwise provide; (C) the tribal preservation official provides the Secretary with a plan describing how the functions the tribal preservation official proposes to assume will be carried out; (D) the Secretary determines, after consultation with the tribe, the appropriate State Historic Preservation Officer, the Council (if the tribe proposes to assume the functions of the State Historic Preservation Officer with respect to review of undertakings under section 106) , and other tribes, October 1997 Release Historic Preservation Fund Grants Manual National Historic Preservation Act Appendices Page 10 if any, whose tribal or aboriginal lands may be affected by conduct of the tribal preservation program-- (i) that the tribal preservation program is fully capable of carrying out the functions specified in the plan provided under subparagraph Cc) ; (ii) that the plan defines the remaining responsibilities of the Secretary and the State Historic Preservation Officer; (iii) that the plan provides, with respect to properties neither owned by a member of the tribe nor held in trust by the Secretary for the benefit of the tribe, at the request of the owner thereof, the State Historic Preservation Officer, in addition to the tribal preservation official may exercise the historic preservation responsibilities in accordance with subsections (b) (2) and (b) (3) ; and (E) based on satisfaction of the conditions stated in subparagraphs (a) , (b) , (c) , and (d) , the Secretary approves the plan. Consultation procedures for tribal programs and section 103(a) (3) In consultation with interested Indian tribes, other Native American organizations and affected State Historic Preservation Officers, the Secretary shall establish and implement procedures for carrying out section 103(a) with respect to tribal programs that assume responsibilities under paragraph (2) . Contracts for tribal preservation programs (4) At the request of a tribe whose preservation program has been approved to assume functions and responsibilities pursuant to paragraph (2) , the Secretary shall enter into contracts or cooperative agreements with such tribe permitting the assumption by the tribe of any part of the responsibilities referred to in subsection (b) (6) on tribal land, if-- (A) the Secretary and the tribe agree on additional financial assistance, if any, to the tribe for the costs of carrying out such authorities; (B) the Secretary finds that the tribal historic preservation program has been demonstrated to be sufficient to carry out the contract or cooperative agreement and this Act; and (C) the contract or cooperative agreement specifies the continuing responsibilities of the Secretary or of the appropriate State Historic Preservation Officers and provides for appropriate participation by-- (i) the tribe's traditional cultural authorities, (ii) representatives of other tribes whose traditional lands are under the jurisdiction of the tribe assuming responsibilities; and (iii) the interested public. Review of undertakings under tribal preservation regulations instead of section 106 (5) The Council may enter into an agreement with an Indian tribe to permit undertakings on tribal land to be reviewed under tribal historic preservation regulations in place of review under regulation promulgated by the Council to govern compliance with section 106, if the Council after consultation with the October 1997 Release Historic Preservation Fund Grants Manual National Historic Preservation Act Appendices Page 11 tribe and appropriate State Historic Preservation Officers, determines that the tribal preservation regulations will afford historic properties consideration equivalent to those afforded instead of by the Council's regulations. Traditional religious and cultural properties eligible for National Register (6) (A) Properties of traditional religious and cultural importance to an Indian tribe or Native Hawaiian organization may be determined to be eligible for inclusion on the National Register. Section 106 review and religious and cultural properties (B) In carrying out its responsibilities under section 106, a Federal agency shall consult with any Indian tribe or Native Hawaiian organization that attaches religious and cultural significance to properties described cultural in subparagraph (A) . Native Hawaiian organizations (C) In carrying out his or her responsibilities under subsection (b) (3) , the State Historic Preservation Officer for the State of Hawaii shall-- (i) consult with Native Hawaiian organizations in assessing the cultural significance of any property in determining whether to nominate such property to the National Register; (ii) consult with Native Hawaiian organizations in developing the cultural component of a preservation program or plan for such property, and (iii) enter into a memorandum of understanding or agreement with Native Hawaiian organizations for the assessment of the cultural significance of a property in determining whether to nominate such property to the National Register and to carry out the cultural component of such preservation program or plan. Grants to States (e) (1) The Secretary shall administer a program of matching grants to the States for the purposes of carrying out this Act. Grants to the National Trust (2) The Secretary shall administer a program of matching grants-in-aid to the National Trust for Historic Preservation in the United States, chartered by Act of Congress approved October 26, 1949 (63 Stat. 947) , for the purposes of carrying out the responsibilities of the National Trust. Direct grants for threatened National Historic Landmarks, demonstration projects, and displacement prevention (3) (A) In addition to the programs under paragraphs (1) and (2) , the Secretary shall administer a program of direct grants for the preservation of properties included on the National Register. Funds to support such program annually shall not exceed 10 per centum of the amount appropriated annually for the fund established under section 108. These grants may be made by the Secretary, in consultation with the appropriate State Historic Preservation October 1997 Release nc-• _ ::4=�'S`,'. .- ,.<—:3= `."=•-.`:K?•`, .-;;a.;�•.rr�it•�)?�.?;i•.:T T• - �.'�l..�r'�Y'tr%'..�'r'_ �'�-a'�.'.tf+? ,.s,.;;•AN..c F. r..: Historic Preservation Fund Grants Manual National Historic Preservation Act Appendices Page 12 Officer-- (i) for the preservation of National Historic Landmarks which are threatened with demolition or impairment and for the preservation of historic properties of World Heritage significance; (ii) for demonstration projects which will provide information concerning professional methods and techniques having application to historic properties; (iii) for the training and development of skilled labor in trades and crafts, and in analysis and curation, relating to historic preservation: and, (iv) to assist persons or small businesses within any historic district included in the National Register to remain within the district. Grants and loans to minority groups (B) The Secretary may also, in consultation with the appropriate State Historic Preservation Officer, make grants or loans or both under this section to Indian tribes and to nonprofit organizations representing ethnic or minority groups for the preservation of their cultural heritage. (C) Grants may be made under subparagraph (a) (i) and (iv) only to the extent that the project cannot be carried out in as effective a manner through the use of an insured loan under section 104. Grants for religious properties (4) Grants may be made under this subsection for the preservation, stabilization, restoration, or rehabilitation of religious properties listed in the National Register of Historic Places, provided that the purpose of the grant is secular, does not promote religion, and seeks to protect those qualities that are historically significant. Nothing in this paragraph shall be construed to authorize the use of any funds made available under this section for the acquisition of any property referred to in the preceding sentence. Direct grants to Indian tribes and Native Hawaiian organizations (5) The Secretary shall administer a program of direct grants to Indian tribes and Native Hawaiian organizations for the purpose of carrying out this Act as it pertains to Indian tribes and Native Hawaiian organizations. Matching fund requirements may be modified. Federal funds available to a tribe or Native Hawaiian organization may be used as matching funds for the purposes of the tribe's or organization's conducting its responsibilities pursuant to this section. Direct grants to Federated States of Micronesia and Marshall Islands, Trust Territory of the Pacific Islands, and Government of Palau (6) (A) As a part of the program of matching grant assistance from the Historic Preservation Fund to States, the Secretary shall administer a program of direct grants to the Federated States of Micronesia, the Republic of the Marshall Islands, the Trust Territory of the Pacific Islands, and upon termination of the Trusteeship Agreement for the Trust Territory of the Pacific Islands, the Republic of Palau (referred to as the Micronesian States) in furtherance of the Compact of Free Association between the United States and the Federated States of Government of Micronesia and the Marshall Islands, approved by the Compact of Free Association Act of 1985 (48 U.S.C. 1681 note) , the Trusteeship Agreement for the Trust Territory of the Pacific Islands, and October 1997 Release +►i."r; `Tt.-'E.,"?i'r'!� { '�"`. ^'+{!+Y�}ix',e::.ids,_. ^.:�'-i—'ar:>4j.- '311`. :'j:!f:a';,l'^%� 4G`"�.Y':'•',T•'j?:::t°'i:�'�Ti�x. ,c: . Historic Preservation Fund Grants Manual National Historic Preservation Act Appendices Page 13 the Compact of Free Association between the United States and Palau, approved by the Joint Resolution entitled 'Joint Resolution to approve the "Compact of Free Association" between the United States and Government of Palau, and for other purposes' (48 U.S.C. 1681 note) . The goal of the program shall be to establish historic and cultural preservation programs that meet the unique needs of each Micronesian State so that at the termination of the compacts the programs shall be firmly established. The Secretary may waive or modify the requirements of this section to conform to the cultural setting of those nations. (B) The amounts to be made available to the Micronesian States shall be allocated by the Secretary on the basis of needs as determined by the Secretary. Matching funds may be waived or modified. Prohibition on compensating intervenors (f) No part of any grant made under this section may be used to compensate any person intervening in any proceeding under this Act. Guidelines for Federal agency responsibilities (g) In consultation with the Advisory Council on Historic Preservation, the Secretary shall promulgate guidelines for Federal agency responsibilities under section 110 of this title. Preservation standards for federally owned properties (h) Within one year after the date of enactment of the National Historic Preservation Act Amendments of 1980, the Secretary shall establish, in consultation with the Secretaries of Agriculture and Defense, the Smithsonian Institution, and the Administrator of the General Services Administration, professional standards for the preservation of historic properties in Federal ownership or control. Technical advice (i) The Secretary shall develop and make available to Federal agencies, State and local governments, private organizations and individuals, and other nations and international organizations pursuant to the World Heritage Convention, training in, and information concerning professional methods and techniques for the preservation of historic properties and for the administration of the historic preservation program at the Federal, State, and local level. The Secretary shall also develop mechanisms to provide information concerning historic preservation to the general public including students. Preservation education and training program (j) (1) The Secretary shall, in consultation with the Council and other appropriate Federal, tribal, Native Hawaiian, and non-Federal organizations, develop and implement a comprehensive preservation education and training program. (2) The education and training program described in paragraph (1) shall include-- (A) new standards and increased preservation training opportunities for Federal workers involved in preservation-related functions; (B) increased preservation training opportunities for other Federal, October 1997 Release -- .. --r-T:::- .TM �`'•�_ '}= -.}f Lam•=t'•u<i,".^f.7 -T+.,;�':�_f z t::ii�:li;_'a:'� .^C=y:'�:c::t}' S'.�7��;'• :;rIr_�'''.t:'.~' Historic Preservation Fund Grants Manual National Historic Preservation Act Appendices Page 14 State, tribal and local government workers, and students; (C) technical or financial assistance, or both, to historically black colleges and universities, to tribal colleges, and to colleges with a high en- rollment of Native Americans or Native Hawaiians, to establish preservation training and degree programs; (D) coordination of the following activities, where appropriate, with the National Center for Preservation Technology and -Training-- (i) distribution of information on preservation technologies; (ii) provision of training and skill development in trades, crafts, and disciplines related to historic preservation in Federal training and development programs; and (iii) support for research, analysis, conservation, curation, interpretation, and display related to preservation. Section 102 (16 U.S.C. 470b) Grant requirements (a) No grant may be made under this Act-- (1) unless application therefore is submitted to the Secretary in accordance with regulations and procedures prescribed by him; (2) unless the application is in accordance with the comprehensive statewide historic preservation plan which has been approved by the Secretary after considering its relationship to the comprehensive statewide outdoor recreation plan prepared pursuant to the Land and Water Conservation Fund Act of 1965 (78 Stat. 897) ; (3) for more than 60 percent of the aggregate costs of carrying out projects and programs under the administrative control of the State Historic Preservation Officer as specified in section 101 (b) (3) in any one fiscal year; (4) unless the grantee has agreed to make such reports, in such form and containing such information as the Secretary may from time to time require; (5) unless the grantee has agreed to assume, after completion of the project, the total cost of the continued maintenance, repair, and administration of the property in a manner satisfactory to the Secretary; and (6) until the grantee has complied with such further terms and conditions as the Secretary may deem necessary or advisable. Except as permitted by other law, the State share of the costs referred to in paragraph (3) shall be contributed by non-Federal sources. Notwithstanding any other provision of law, no grant made pursuant to this Act shall be treated as taxable income for purposes of the Internal Revenue Code 1954. Waiver for National Trust (b) The Secretary may in his discretion waive the requirements of subsection (a) , paragraphs (2) and (5) of this section for any grant under this Act to the National Trust for Historic Preservation in the United States. Limitation on matching October 1997 Release Historic Preservation Fund Grants Manual National Historic Preservation Act Appendices Page 15 (c) No State shall be permitted to utilize the value of real property obtained before the date of approval of this Act in meeting the remaining cost of a project for which a grant is made under this Act. (d) The Secretary shall make funding available to individual States and the National Trust for Historic Preservation as soon as practicable after execution of a grant agreement. For purposes of administration, grants to individual States and the National Trust each shall be considered to be one grant and shall be administered by the National Park Service as such. (e) The total administrative costs, direct and indirect, charged for carrying out State projects and programs may not exceed 25 percent of the aggregate costs except in the case of grants under section 101 (e) (6) . Section 103 (16 U.S.C. 470c) Apportionment of survey and planning grants (a) The amounts appropriated and made available for grants to the States for the purposes of this Act shall be apportioned among the States by the Secretary on the basis of needs as determined by him. Apportionment of project and program grants (b) The amounts appropriated and made available for grants to the States for projects and programs under this Act for each fiscal year shall be apportioned among the States as the Secretary determines to be appropriate. The Secretary shall notify each State of its apportionment under this subsection within thirty days following the date of enactment of legislation appropriating funds under this Act. Any amount of any apportionment that has not been paid or obligated by the Secretary during the fiscal year in which such notification is given and for two fiscal years thereafter, shall be reapportioned by the Secretary in accordance with this subsection. The Secretary shall analyze and revise as necessary the method of apportionment. Such method and any revision thereof shall be published by the Secretary in the Federal Register. Apportionment to certified local governments (c) A minimum of 10 per centum of the annual apportionment distributed by the Secretary to each State for the purposes of carrying out this Act shall be transferred by the State, pursuant to the requirements of this Act, to local governments which are certified under section 101(c) for historic preservation projects or programs of such local governments. In any year in which the total annual apportionment to the States exceeds $65,000,000, one half of the excess shall also be transferred by the States to local governments certified pursuant to section 101(c) . Guidelines for apportionment to local governments (d) The Secretary shall establish guidelines for the use and distribution of funds under subsection (c) to ensure that no local government receives a disproportionate share of the funds available, and may include a maximum or minimum limitation on the amount of funds distributed to any single local government. The guidelines shall not limit the ability of any State to distribute more than 10 per centum of its annual apportionment under subsection (c) , nor shall the Secretary require any State to exceed the 10 per centum minimum distribution to local governments. October 1997 Release -'r.�`:':.t;;3;�'; --'t,-a�1A.k •e: i-"-"'_,7:w.'27.r.�':''�'$."• L'r'fig`tf}-:,rF,y •�.1t4,✓..'•::. - Historic Preservation Fund Grants Manual National Historic Preservation Act Appendices Page 16 Section 104 (16 U.S.C. 470d) Insured loans for National Register properties (a) The Secretary shall establish and maintain a program by which he may, upon application of a private lender, insure loans (including loans made in accordance with a mortgage) made by such lender to finance any project for the preservation of a property included on the National Register. Requirements (b) A loan may be insured under this section only if-- (1) the loan is made by a private lender approved by the Secretary as financially sound and able to service the loan properly; (2) the amount of the loan, and interest rate charged with respect to the loan, do not exceed such amount, and such a rate, as is established by the Secretary, by rule; (3) the Secretary has consulted the appropriate State Historic Preservation Officer concerning the preservation of the historic property, (4) the Secretary has determined that the loan is adequately secured and there is reasonable assurance of repayment; (5) the repayment period of the loan does not exceed the lesser of forty years or the expected life of the asset financed; (6) the amount insured with respect to such loan does not exceed 90 per centum of the loss sustained by the lender with respect to the loan; and (7) the loan, the borrower, and the historic property to be preserved meet other terms and conditions as may be prescribed by the Secretary, by rule, especially terms and conditions relating to the nature and quality of the preservation work. Interest rates The Secretary shall consult with the Secretary of the Treasury regarding the interest rate of loans insured under this section. Limitation on loan authority (c) The aggregate unpaid principal balance of loans insured under this section and outstanding at any one time may not exceed the amount which has been covered into the Historic Preservation Fund pursuant to section 108 and subsection (g) and (i) of this section, as in effect on the date of the enactment of the Act but which has not been appropriated for any purpose. Assignability and effect (d) Any contract of insurance executed by the Secretary under this section may be assignable, shall be an obligation supported by the full faith and credit of the United States, and shall be incontestable except for fraud or misrepresentation of which the holder had actual knowledge at the time it became a holder. Method of payment for losses October 1997 Release -.:C _'>� - -.-. ..L_ .:i:IF i`-�i�lr�.�..-JY.%�.iiv5 t-���.�Si L)•i:;?T�-:s-:�:.-T;i :.:.•]Y?^.'�. :a'..�1r �i.L •aJ�h+.►.�:J�.�. Historic Preservation Fund Grants Manual National Historic Preservation Act Appendices Page 17 (e) The Secretary shall specify, by rule and in each contract entered into under this section, the conditions and method of payment to a private lender as a result of losses incurred by the lender on any loan insured under this section. Protection of Government's financial interests; foreclosure (f) In entering into any contract to insure a loan under this section, the Secretary shall take steps to assure adequate protection of the financial interests of the Federal Government. The Secretary may-- (1) in connection with any foreclosure proceeding, obtain, on behalf of the Federal Government, the property securing a loan insured under this title; and (2) operate or lease such property for such period as may be necessary to protect the interest of the Federal Government and to carry out subsection (g) . Conveyance of foreclosed property (g) (1) In any case in which a historic property is obtained pursuant to subsection (f) , the Secretary shall attempt to convey such property to any governmental or nongovernmental entity under such conditions as will ensure the property's continued preservation and use; except that if, after a reasonable time, the Secretary, in consultation with the Advisory Council on Historic Preservation, determines that there is no feasible and .prudent means to convey such property and to ensure its continued preservation and use, then the Secretary may convey the property at the fair market value of its interest in such property to any entity without restriction. (2) Any funds obtained by the Secretary in connection with the conveyance of any property pursuant to paragraph (1) shall be covered into the historic preservation fund, in addition to the amounts covered into such fund pursuant to section 108 and subsection (i) of this section, and shall remain available in such fund until appropriated by the Congress to carry out the purposes of this Act. Fees (h) The Secretary may assess appropriate and reasonable fees in connection with insuring loans under this section. Any such fees shall be covered into the Historic Preservation Fund, in addition to the amounts covered into such fund pursuant to section 108 and subsection (g) of this section, and shall remain available in such fund until appropriated by the Congress to carry out the purposes of this Act. Loans to be considered non-Federal funds (i) Notwithstanding any other provision of law, any loan insured under this section shall be treated as non-Federal funds for the purposes of satisfying any requirement of any other provision of law under which Federal funds to be used for any project or activity are conditioned upon the use of non-Federal funds by the recipient for payment of any portion of the costs of such project or activity. Appropriation authorization October 1997 Release Historic Preservation Fund Grants Manual National Historic Preservation Act Appendices Page 18 (j) Effective after the fiscal year 1981 there are authorized to be appropriated, such sums as may be necessary to cover payments incurred pursuant to subsection (e) . Prohibition against acquisition by Federal Financing Bank (k) No debt obligation which is made or committed to be made, or which acquisition by is insured or committed to be insured, by the Secretary under this section. shall be eligible for purchase by, or commitment to purchase by, or sale or issuance to, the Federal Financing Bank. Section 105 (16 U.S.C. 470e) Recordkeeping The beneficiary of assistance under this Act shall keep such records as the Secretary shall prescribe, including records which fully disclose the disposition by the beneficiary of the proceeds of such assistance, the total cost of the project or undertaking in connection with which such assistance is given or used, and the amount and nature of that portion of the cost of the project or undertaking supplied by other sources, and such other records as will facilitate an effective audit. Section 106 (16 U.S.C. 470f) Advisory Council on Historic Preservation, comment on Federal undertakings The head of any Federal agency having direct or indirect jurisdiction over a proposed Federal or federally assisted undertaking in any State and the head of any Federal department or independent agency having authority to license any undertaking shall, prior to the approval of the expenditure of any Federal funds on the undertaking or prior to the issuance of any license, as the case may be, take into account the effect of the undertaking on any district, site, building, structure, or object that is included in or eligible for inclusion in the National Register. The head of any such Federal agency shall afford the Advisory Council on Historic Preservation established under Title II of this Act a reasonable opportunity to comment with regard to such undertaking. Section 107 (16 U.S.C. 470g) Exemption of White House, Supreme Court, and Capitol Nothing in this Act shall be construed to be applicable to the White House and its grounds, the Supreme Court building and its grounds, or the United States Capitol and its related buildings and grounds. Section 108 (16 U.S.C. 470h) Establishment of Historic Preservation Fund; authorization for appropriations To carry out the provisions of this Act, there is hereby established the Historic PreservationFund (hereafter referred to as the "fund") in the Treasury of the United States. There shall be covered into such fund $24,400,000 for fiscal year 1977, $100,000,000 for fiscal year 1978, $100,000,000 for fiscal year 1979, $150,000,000 for fiscal year 1980, $150,000,000 for fiscal year 1981, and $150, 000,000 for each of fiscal years 1982 through 1997, from revenues due and payable to the United States under the Outer Continental Shelf Lands Act (67 October 1997 Release .. ...:i,.< < _ �— Yam_ — -• '�`:.'•. ;lx+y+,is 'Kh—i = Historic Preservation Fund Grants Manual National Historic Preservation Act Appendices Page 19 Stat. 462, 469) as amended (43 U.S.C. 338) and/or under the Act of June 4, 1920 (41 Stat. 813) as amended (30 U.S.C. 191) , notwithstanding any provision of law that such proceeds shall be credited to miscellaneous receipts of the Treasury. Such moneys shall be used only to carry out the purposes of this Act and shall be available for expenditure only when appropriated by the Congress. Any moneys not appropriated shall remain available in the fund until appropriated for said purposes: Provided, that appropriations made pursuant to this paragraph may be made without fiscal year limitation. Section 109 (16 U.S.C. 470h-1) Donation to the Secretary (a) In furtherance of the purposes of sections of this Act, the Secretary may accept the donation of funds which may be expended by him for projects to acquire, restore, preserve, or recover data from any district, building, structure, site, or object which is listed on the National Register of Historic Places established pursuant to section 101 of this Act, so long as the project is owned by a State, any unit of local government, or any nonprofit entity. Expenditure of donated funds (b) In expending said funds, the Secretary shall give due consideration to the following factors: the national significance of the project; its historical value to the community; the imminence of its destruction or loss; and the expressed intentions of the donor. Funds expended under this subsection shall be made available without regard to the matching requirements established by section 102 of this Act, but the recipient of such funds shall be permitted to utilize them to match any grants from the Historic Preservation Fund established by section 108 of this Act. Transfer of funds donated for the National Park Service (c) The Secretary is hereby authorized to transfer unobligated funds previously donated to the Secretary for purposes of the National Park Service, with the consent of the donor, and any funds so transferred shall be used or expended in accordance with the provisions of this Act. Section 110 (16 U.S.C. 470h-2) Federal agencies' responsibility to preserve and use historic buildings (a) (1) The heads of all Federal agencies shall assume responsibility for the preservation of historic properties which are owned or controlled by such agency. Prior to acquiring, constructing, or leasing buildings for purposes of carrying out agency responsibilities, each Federal agency shall use, to the. maximum extent feasible, historic properties available to the agency. Each agency shall undertake, consistent with the preservation of such properties and the mission of the agency and the professional standards established pursuant to section 101(g) , any preservation, as maybe necessary to carry out this section. Protection and nomination to the National Register of Historic Places (2) Each Federal agency shall establish (unless exempted pursuant to October 1997 Release Historic Preservation Fund Grants Manual National Historic Preservation Act Appendices Page 20 section 214) , in consultation with the Secretary, a preservation program for the identification, evaluation, and nomination to the National Register of Historic Places, and protection of historic properties. Such program shall ensure-- (A) that historic properties under the jurisdiction or control of the agency, are identified, evaluated, and nominated to the National Register; (B) that such properties under the jurisdiction or control of the agency as are listed in or may be eligible for the National Register are managed and maintained in a way that considers the preservation of their historic, archaeological, architectural, and cultural values in compliance with section 106 and gives special consideration to the preservation of such values in the case of properties designated as having National significance; Potentially affected historic properties (C) that the preservation of properties not under the jurisdiction or control of the agency, but subject to be potentially affected by agency actions are given full consideration in planning, Consultation over preservation-related activities (D) that the agency's preservation-related activities are carried out in consultation with other Federal, State, and local agencies, Indian tribes, Native Hawaiian organizations carrying out historic preservation planning activities, and with the private sector; and Compliance with section 106 (E) that the agency's procedures for compliance with section 106-- (i) are consistent with regulations issued by the Council pursuant to section 211; (ii) provide a process for the identification and evaluation of historic properties for listing in the National Register and the development and implementation of agreements, in consultation with State Historic Preservation Officers, local governments, Indian tribes, Native Hawaiian organizations, and the interested public, as appropriate, regarding the means by which adverse effects on such properties will be considered; and Compliance with Native American Graves Protection and Repatriation Act (iii) provide for the disposition of Native American cultural items from Federal or tribal land in a manner consistent with section 3 (c) of the Native American Graves Protection and Repatriation Act (25 U.S.C. 3002 (c) ) . Recordation of historic properties prior to demolition (b) Each Federal agency shall initiate measures to assure that where, as a result of Federal action or assistance carried out by such agency, a historic property is to be substantially altered or demolished, timely steps are taken to make or have made appropriate records, and that such records then be deposited, in accordance with section 101 (a) , in the Library of Congress or with such other appropriate agency as may be designated by the Secretary, for future use and reference. Designation of Federal agency preservation officers October 1997 Release Historic Preservation Fund Grants Manual National Historic Preservation Act Appendices Page 21 (c) The head of each Federal agency shall, unless exempted under section 214, designate a qualified official to be known as the agency's preservation officer" who shall be responsible for coordinating that agency's activities under this Act. Each Preservation Officer may, in order to be considered qualified, satisfactorily complete an appropriate training program established by the Secretary under section 101(h) . Conduct of agency programs consistent with Act (d) Consistent with the agency's mission and mandates, all Federal agencies shall carry out agency programs and projects (including those under which any Federal assistance is provided or any Federal license, permit, or other approval is required) in accordance with the purposes of this Act and, give consideration to programs and projects which will further the purposes of this Act. Transfer of surplus Federal historic properties (e) The Secretary shall review and approve the plans of transferees of surplus federally owned historic properties not later than ninety days after his receipt of such plans to ensure that the prehistorical, historical, architectural, or culturally significant values will be preserved or enhanced. Federal undertakings affecting National Historic Landmarks (f) Prior to the approval of any Federal undertaking which may directly and adversely affect any National Historic Landmark, the head of the responsible Federal agency shall, to the maximum extent possible, undertake such planning and actions as maybe necessary to minimize harm to such landmark, and shall afford the Advisory Council on Historic Preservation a reasonable opportunity to comment on the undertaking. Preservation activities as an eligible project (g) Each Federal agency may include the costs of preservation activities of such agency under this Act as eligible project costs in all undertakings of such agency or assisted cost by such agency. The eligible project cost may also include amounts paid by a Federal agency to any State to be used in carrying out such preservation responsibilities of the Federal agency under this Act, and reasonable costs may be charged to Federal licensees and permittees as a condition to the issuance of such license or permit. Preservation awards program (h) The Secretary shall establish an annual preservation awards program under which he may make monetary awards in amounts not to exceed $1,000 and provide citations for special achievement to officers and employees of Federal, State, and certified local governments in recognition of their outstanding contributions to the preservation of historic resources. Such program may include the issuance of annual awards by the president of the United States to any citizen of the United States recommended for such award by the Secretary. Applicability of National Environmental Policy Act (i) Nothing in this Act shall be construed to require the preparation of an environmental impact statement where such a statement would not otherwise be required under the National Environmental Policy Act of 1969, and nothing in this Act shall be construed to provide any exemption from any requirement respecting the preparation of such a statement under such Act. (j) The Secretary shall promulgate regulations under which the requirements of October 1997 Release Historic Preservation Fund Grants Manual National Historic Preservation Act Appendices Page 22 this section may be waived in whole or in part in the event of a major natural disaster or an imminent threat to the national security. No Federal agency shall give assistance to an applicant who intends to intentionally create an adverse effect (k) Each Federal agency shall ensure that the agency will not grant a loan, loan guarantee, permit, license, or other assistance to an applicant to an who, with intent to avoid the requirements of section 106, has intentionally significantly adversely affected a historic property to which the grant would relate, or having legal power to prevent it, allowed such significant adverse effect to occur, unless the agency, after consultation with the Council determines that circumstances justify granting such assistance despite the adverse effect created or permitted by the applicant. Agency heads responsible for section 106 compliance (1) With respect to any undertaking subject to section 106 which adversely affects any property included in or eligible for inclusion in the National Register, and for which a Federal agency has not entered into an agreement with the Council, the head of such agency shall document any decision made pursuant to section 106. The head of such agency may not delegate his or her responsibilities pursuant to such section. Where a section 106 memorandum of agreement has been executed with respect to an undertaking, such memorandum shall govern the undertaking and all of its parts. Section 111 (16 U.S.C. 470h-3) Leases or exchanges of Federal historic properties (a) Notwithstanding any other provision of law, any Federal agency, after consultation with the Council, shall, to the extent practicable, establish and implement alternatives for historic properties, including adaptive use, that are not needed for current or projected agency purposes, and may lease a historic property owned by the agency to any person or organization, or exchange any property owned by the agency with comparable historic property, if the agency head determines that the lease or exchange will adequately ensure the preservation of the historic property. Use of proceeds (b) The proceeds of any lease under subsection (a) may, notwithstanding any other provision of law, be retained by the agency entering into such lease and used to defray the costs of administration, maintenance, repair, and related expenses incurred by the agency with respect to such property or other properties which are on the National Register which are owned by, or are under the jurisdiction or control of, such agency. Any surplus proceeds from such leases shall be deposited into the Treasury of the United States at the end of the second fiscal year following the fiscal year in which such proceeds were received. Management contracts (c) The head of any Federal agency having responsibility for the management of any historic property may, after consultation with the Advisory Council on Historic Preservation, enter into contracts for the management of such property. Any such contract shall contain such terms and conditions as the head of such agency deems necessary or appropriate to protect the interests of the United States and insure adequate preservation of historic property. October 1997 Release :. . Historic Preservation Fund Grants Manual National Historic Preservation Act Appendices Page.23 Section 112 Professional standards (a) In general. Each Federal agency that is responsible for the protection of historic resources, including archaeological resources pursuant to this Act or any other law shall ensure each of the following-- (1) (A) All actions taken by employees or contractors of such agency shall meet professional standards under regulations developed by the Secretary in consultation with the Council other affected agencies, and the appropriate professional societies of the disciplines involved, specifically archaeology, architecture, conservation, history, landscape architecture, and planning.• Personnel qualification standards (B) Agency personnel or contractors responsible for historic resources shall meet qualification standards established by the Office of Personnel Management in consultation with the Secretary and appropriate professional societies of the disciplines involved. The Office of Personnel Management shall revise qualification standards within 2 years after the date of enactment of this Act for the disciplines involved, specifically archaeology, architecture, conservation, curation, history, landscape architecture, and planning. Such standards shall consider the particular skills and expertise needed for the preservation of historic resources and shall be equivalent requirements for the disciplines involved. Data maintenance (2) Records and other data, including data produced by historical research and archaeological surveys and excavations are permanently maintained in appropriate data bases and made available to potential users pursuant to such regulations as the Secretary shall promulgate. (b) Guidelines. In order to promote the preservation of historic resources on properties eligible for listing in the National register, the Secretary shall, in consultation with the Council, promulgate guidelines to ensure that Federal, State, and tribal historic preservation programs subject to this Act include plans to-- (1) provide information to the owners of properties containing historic (including architectural, curatorial, and archaeological) resources with demonstrated or likely research significance, about the need for protection of such resources, and the available means of protection; (2) encourage owners to preserve such resources intact and in place and offer the owners of such resources information on the tax and grant assistance available for the donation of the resources or of a preservation easement of the resources; (3) encourage the protection of Native American cultural items (within the meaning of section 2 (3) and (9) of the Native American Graves Protection and Repatriation Act (25 U.S.C. 3001 (3) and (9) ) and of properties of religious or cultural importance to Indian tribes, Native Hawaiians, or other Native American groups; and (4) encourage owners who are undertaking archaeological excavations to-- (A) conduct excavations and analyses that meet standards for federally- sponsored excavations established by the Secretary, (B) donate or lend artifacts of research significance to an appropriate research institution; October 1997 Release Historic Preservation Fund Grants Manual National Historic Preservation Act Appendices Page 24 (C) allow access to artifacts for research purposes; and (D) prior to excavating or disposing of a Native American cultural item in which an Indian tribe or Native Hawaiian organization may have an interest under section 3(a) (2) (B) or (C) of the Native American Graves Protection and Repatriation Act (25 U.S.C. 3002 (a) (2) (B) and (C) ) , given notice to and consult with such Indian tribe or Native Hawaiian organization. Section 113 Interstate and international traffic in antiquities (a) Study. In order to help control illegal interstate and international traffic in antiquities, including archaeological,, curatorial, and architectural objects, and historical documents of all kinds, the Secretary shall study and report on the suitability and feasibility of alternatives for controlling illegal interstate and international traffic in antiquities. (b) Consultation. In conducting the study described in subsection (a) the Secretary shall consult with the Council and other Federal agencies that conduct, cause to be conducted, or permit archaeological surveys or excavations or that have responsibilities for other kinds of antiquities and with State Historic Preservation Officers, archaeological, architectural, historical, conservation, and curatorial organizations, Indian tribes, Native Hawaiian organizations, and other Native American organizations, international organizations and other interested persons. (c) Report. Not later than 18 months after the date of enactment of this section, the Secretary shall submit to Congress a report detailing the Secretary's findings and recommendations from the study described in subsection (a) . (d) Authorization. There are authorized to be appropriated not more than $500,000 for the study described in subsection (a) , such sums to remain available until expended. TITLE II Section 201 (16 U.S.C. 470i) Advisory Council on Historic Preservation membership (a) There is established as an independent agency of the United States Government an Advisory Council on Historic Preservation which shall be composed of the following members: (1) a Chairman appointed by the President selected from the general public; (2) the Secretary of the Interior; (3) the Architect of the Capitol; (4) the Secretary of Agriculture and the heads of four other agencies of the United States (other than the Department of the Interior) , the activities of which affect historic preservation, designated by the President; (5) one Governor appointed by the President; October 1997 Release '.r.t.r ---.:' -::w �;di„ - "='►=i'r:'�';r:: i- •s �.:.; Historic Preservation Fund Grants Manual National Historic Preservation Act Appendices P.age 25 (6) one mayor appointed by the President; (7) the President of the National Conference of State Historic Preservation Officers; (8) the Chairman of the National Trust for Historic Preservation; (9) four experts in the field of historic preservation appointed by the President from the disciplines of architecture, history, archaeology, and other appropriate disciplines; (10) three at-large members from the general public, appointed by the President; and (11) one member of an Indian tribe or Native Hawaiian organization who represents the interests of the tribe or organization of which he or she is a member, appointed by the President. Designees (b) Each member of the Council specified in paragraphs (2) through (8) (other than (5) and (6) ) may designate another officer of his department, agency, or organization to serve on the Council in his stead, except that, in the case of paragraphs (2) and (4) , no such officer other than an Assistant Secretary or an officer having major department-wide or agency-wide responsibilities may be so designated. Term of office (c) Each member of the Council appointed under paragraph (1) , and under paragraphs (9) through (10) of subsection (a) shall serve for a term of four years from the expiration'of his predecessor's term; except that the members first appointed under that paragraph shall serve for terms of one to four years, as designated by the President at the time of appointment, in such manner as to ensure that the terms of not more than two of them will expire in any one year. The members appointed under paragraphs (5) and (6) shall serve for the term of their elected office but not in excess of four years. An appointed member whose term has expired shall serve until that member's successor has been appointed. Vacancies (d) A vacancy in the Council shall not affect its powers, but shall be filled not later than sixty days after such vacancy commences, in the same manner as the original appointment (and for the balance of any unexpired terms) . The members of the Advisory Council on Historic Preservation appointed by the President under this Act as in effect on the day before the enactment of the National Historic Preservation Act Amendments of 1980 shall remain in office until all members of the Council, as specified in this section, have been appointed. The members first appointed under this section shall be appointed not later than one hundred and eighty days after the enactment of the National Historic Preservation Act Amendments of 1980. Vice Chairman (e) The President shall designate a Vice Chairman, from the members appointed under paragraphs (5) , (6) , (9) , or (10) . The Vice Chairman may act in place of the Chairman during the absence or disability of the Chairman or when the office is vacant. Quorum October 1997 Release Historic Preservation Fund Grants Manual National Historic Preservation Act Appendices Page 26 (f) Nine members of the Council shall constitute a quorum. Section 202 (16 US.C. 470j) Duties of Council (a.) The Council shall-- (1) advise the President and the Congress on matters relating to historic preservation, recommend measures to coordinate activities of Federal, State, and local agencies and private institutions and individuals relating to historic preservation; and advise on the dissemination of information pertaining to such activities; (2) encourage, in cooperation with the National Trust for Historic Preservation and appropriate private agencies, public interest and participation in historic preservation; (3) recommend the conduct of studies in such areas as the adequacy of legislative and administrative statutes and regulations pertaining to historic preservation activities of State and local governments and the effects of tax policies at all levels of government on historic preservation; (4) advise as to guidelines for the assistance of State and local governments in drafting legislation relating to historic preservation; (5) encourage, in cooperation with appropriate public and private agencies and institutions, training and education in the field of historic preservation; (6) review the policies and programs of Federal agencies and recommend to such agencies methods to improve the effectiveness, coordination, and consistency of those policies and programs with the policies and programs carried out under this Act; and, (7) inform and educate Federal agencies, State and local governments, Indian tribes, other nations and international organizations and private groups and individuals as to the Council's authorized activities. Annual and special reports (b) The Council shall submit annually a comprehensive report of its activities and the results of its studies to the President and the Congress and shall from time to time submit such additional and special reports as it deems advisable. Each report shall propose such legislative enactments and other actions as, in the judgment of the Council, are necessary and appropriate to carry out its recommendations and shall provide the Council's assessment of current and emerging problems in the field of historic preservation and an evaluation of the effectiveness of the programs of Federal agencies, State and local governments, and the private sector in carrying out the purposes of this Act. Section 203 (16 U.S.C. 470k) Information from agencies The Council is authorized to secure directly from any department, bureau, agency, board, commission, office, independent establishment or instrumentality of the executive branch of the Federal Government information, suggestions, estimates, and statistics for the purpose of this title; and each October 1997 Release Historic Preservation Fund Grants Manual National Historic Preservation Act Appendices Page 27 such department or instrumentality is authorized to furnish such information, suggestions, estimates, and statistics to the extent permitted by law and within available funds. Section 204 (16 U.S.C. 4701) Compensation of members The members of the Council specified in paragraphs (2) , (3) , and (4) of section 201(a) shall serve without additional compensation. The other members of the Council shall receive $100 per diem when engaged in the performances of the duties of the Council. All members of the Council shall receive reimbursement for necessary traveling and subsistence expenses incurred by them in .the performance of the duties of the Council. Section 205 (16 U.S.C. 470m) Executive Director (a) There shall be an Executive Director of the Council who shall be appointed in the competitive service by the Chairman with the concurrence of the Council. The Executive Director shall report directly to the Council and perform such functions and duties as the Council may prescribe. General Counsel and attorneys (b) The Council shall have a General Counsel, who shall be appointed by the Executive Director. The General Counsel shall report directly to the Executive Director and serve as the Council's legal advisor. The Executive Director shall appoint such other attorneys as may be necessary to assist the General Counsel, represent the Council in courts of law whenever appropriate, including enforcement of agreements with Federal agencies to which the Council is a party, assist the Department of Justice in handling litigation concerning the Council in courts of law, and perform such other legal duties and functions as the Executive Director and the Council may direct. Appointment and compensation of staff (c) The Executive Director of the Council may appoint and fix the compensation of such officers and employees in the competitive service as are necessary to perform the functions of the Council at rates not to exceed that now or hereafter prescribed for the highest rate for grade 15 of the General Schedule under section 5332 of Title 5, United States Code: Provided, however, That the Executive Director, with the concurrence of the Chairman, may appoint and fix the compensation of not to exceed five employees in the competitive service at rates not to exceed that now or hereafter prescribed for the highest rate of grade 17 of the General Schedule under section 5332 of Title 5, United States Code. Appointment and compensation of additional personnel (d) The Executive Director shall have power to appoint and fix the compensation of such additional personnel as may be necessary to carry out its duties, without regard to the provisions of the civil service laws and the Classification Act of 1949. Consultants (e) The Executive Director of the Council is authorized to procure expert and consultant services in accordance with the provisions of section 3109 of Title October 1997 Release Historic Preservation Fund Grants Manual National Historic Preservation Act Appendices - Page 28 . 5, United States Code. Financial and administrative services (f) Financial and administrative services (including those related to budgeting, accounting, financial reporting, personnel and procurement) shall be provided the Council by the Department of the Interior, for which payments shall be made in advance, or by reimbursement, from funds of the Council in such amounts as maybe agreed upon the Chairman of the Council and the Secretary of the Interior; Provided, That the regulations of the Department of the Interior for the collection of indebtedness of personnel resulting from erroneous payments (5 U.S.C. 46(e) ) shall apply to the collection of erroneous payments made to or on behalf of a Council employee, and regulations of said Secretary for the administrative control of funds (31 U.S.C. 665 (g) ) shall apply to appropriations of the Council: And provided further, That the Council shall not be required to prescribe such regulations. Section 206 (16 U.S.C. 470n) International Centre for the Study of Preservation and Restoration of Cultural Property; authorization (a) The participation of the United States as a member of the International Centre for the Study of the Preservation and Restoration of Cultural Property is hereby authorized. Members of official delegation (b) The Council shall recommend to the Secretary of State, after consultation with the Smithsonian Institution and other public and private organizations concerned with the technical problems of preservation, the members of the official delegation which will participate in the activities of the Centre on behalf of the United States. The Secretary of State shall appoint the members of the official delegation from the persons recommended to him by the Council. Authorization for membership payment (c) For the purposes of this section there is authorized to be appropriated an amount equal to the assessment for United States membership in the Centre for fiscal years 1979, 1980, 1981, and 1982: Provided, That no appropriation is authorized and no payment shall be made to the Centre in excess of 25 per centum of the total annual assessment of such organization. Authorization for payment of such assessment shall begin in fiscal year 1981, but shall include earlier costs. Section 207 (16 U.S.C. 470o) Transfer of funds So much of the personnel, property, records, and unexpended balances of appropriations, allocations, and other funds employed, held, used, programmed, or available or to be made available by the Department of the Interior in connection with the functions of the Council, as the Director of the Office of Management and Budget shall determine, shall be transferred from the Department to the Council within 60 days of the effective date of this Act. Section 208 (16 U.S.C. 470p) October 1997 Release - V.- _ -_l:•- ... ..Y`�vy au}S if.'-:v:.S F..., .:.7�;1�` ..'.rC'fi:�•�_'y'Y.-X:dfri.._ •.fl�'�.xIC�..•N'•.Ar-.'}; Historic Preservation Fund Giants Manual National Historic Preservation Act Appendices Page 29 Rights of Council employees Any employee in the competitive service of the United States transferred to the Council under the provisions of this section shall retain all rights, benefits, and privileges pertaining thereto held prior to such transfer. Section 209 (16 U.S.C. 470q) Exemption from Federal Advisory Committee Act The Council is exempt from the provisions of the Federal Advisory Committee Act (86 Stat. 770) , and the provisions of the Administrative Procedure Act (80 Stat. 381) shall govern the operations of the Council. Section 210 (16 U.S.C. 470r) Submission to Congress No officer or agency of the United States shall have any authority to require the Council to submit its legislative recommendations, or testimony, or comments on legislation to any officer or agency of the United States for approval, comments, or review, •prior to the submission of such recommendations, testimony, or comments to the Congress. In instances in which the Council voluntarily seeks to obtain the comments or review of any officer or agency of the United States, the Council shall include a description of such actions in its legislative recommendations, testimony, or comments on legislation which it transmits to the Congress. Section 211 (16 U.S.C. 470s) Regulations for Section 106; local government participation The Council is authorized to promulgate such rules and regulations as it deems necessary to govern the implementation of section 106 of this Act in its entirety. The Council shall, by regulation, establish such procedures as may be necessary to provide for participation by local governments in proceedings and other actions taken by the Council with respect to undertakings referred to in section 106 which affect such local governments. Section 212 (16 U.S.C. 470t) Council appropriation authorization (a) The Council shall submit its budget annually as a related agency of the Department of the Interior. There are authorized to be appropriated for purposes of this title not to exceed $4,000,000 for each of the fiscal years 1997 through 2000. Concurrent submission of budget to Congress (b) Whenever the Council submits any budget estimate or request to the President or the Office of Management and Budget, it shall concurrently transmit copies of that estimate or request to the House and Senate Appropriations Committees and the House Committee on Interior and Natural Resources and the Senate committee on Energy and Natural Resources. Section 213 (16 U.S.C. 470u) October 1997 Release Historic Preservation Fund Grants Manual National Historic Preservation Act Appendices Page 30 Reports from Secretary at request of Council To assist the Council in discharging its responsibilities under this Act, the Secretary at the request of the Chairman, shall provide a report to the Council detailing the significance of any historic property, describing the effects of any proposed undertaking on the affected property, and recommending measures to avoid, minimize, or mitigate adverse effects. Section 214 (16 V.S.C. 470v) Exemption for Federal activities from provisions of the Act The Council, with the concurrence of the Secretary, shall promulgate regulations or guidelines, as appropriate, under which Federal programs or undertakings may be exempted from any or all of the requirements of this Act when such exemption is determined to be consistent with purposes of this Act, taking into consideration the magnitude of the exempted undertaking or program and the likelihood of impairment of historic properties. TITLE III Section 301 (16 V.S.C. 470w) Definitions As used in this Act, the term-- (1) "Agency" means agency as such term is defined in section 551 of Title 5, United States Code. (2) "State" means any State of the United States, the District of Columbia, the commonwealth of Puerto Rico, Guam, the Virgin Islands, American Samoa, the Commonwealth of the Northern Mariana Islands, and the Trust Territory of the Pacific Islands, the Republic of the Marshall Islands, the Federated States of Micronesia, and, upon termination of the Trusteeship Agreement for the Trust Territory of the Pacific Islands, the Republic of Palau. (3) "Local government" means a city, county, parish, township, municipality, or borough, or any other general purpose political subdivision of any State. (4) "Indian tribe" or "tribe" means an Indian tribe, band, nation, or other organized group or community, including a Native village, Regional Corporation or Village Corporation, as those terms are defined in section 3 of the Alaska Native Claims Settlement Act (43 U.S.C. 1602) , which is recognized as eligible for the special programs and services provided by the United States to Indians because of their status as Indians. (5) "Historic property" or "historic resource" means any prehistoric or historic district, site, building, structure, or object included in, or eligible for inclusion on the National Register, including artifacts, records, and material remains related to such a property or resource. (6) "National Register" or "Register" means the National Register of Historic Places established under section 101. (7) "Undertaking" means a project, activity, or program funded in whole or in part under the direct or indirect jurisdiction of a Federal agency, October 1997 Release 7 r... Historic Preservation Fund Grants Manual National Historic Preservation Act Appendices Page 31 including-- (A) those carried out by or on behalf of the agency; (B) those carried out with Federal financial assistance; (C) those requiring a Federal permit, license, or approval; and (D) those subject to State or local regulation administered pursuant to a delegation or approval by a Federal agency. (8) "Preservation" or "historic preservation" includes identification, evaluation, recordation, documentation, curation, acquisition, protection, management, rehabilitation, restoration, stabilization, maintenance, research, interpretation, conservation, and education and training regarding the foregoing activities or any combination of the foregoing activities. (9) "Cultural park" means a definable area which is distinguished by historic resources and land related to such resources and which constitutes an interpretive, educational, and recreational resource for the public at large. (10) "Historic conservation district" means an area which contains-- (A) historic properties, (B) buildings having similar or related architectural characteristics, (C) cultural cohesiveness, or (D) any combination of the foregoing. (11) "Secretary" means the Secretary of the Interior acting through the Director of the National Park Service except where otherwise specified. (12) "State Historic Preservation Review Board" means a board, council, commission, or other similar collegial body established as provided in section 101 (b) (1) (B)-- (A) the members of which are appointed by the State Historic Preservation Officer (unless otherwise provided for by State law) (B) a majority of the members of which are professionals qualified in the following and related disciplines: history, prehistoric and historic archeology, architectural history, architecture, folklore, cultural anthropology, curation, conservation, and landscape architecture; and (C) which has the authority to-- (i) review National Register nominations and appeals from nominations; (ii) review appropriate documentation submitted in conjunction with the Historic Preservation Fund; (iii) provide general advice and guidance to the State Historic Preservation Officer, and (iv) perform such other duties as may be appropriate. (13) "Historic preservation review commission" means a board, council, commission, or other similar collegial body which is established by State or local legislation as provided in section 101(c) (1) (B) , and the members of October 1997 Release . � t-: . ..- . • Historic Preservation Fund Grants Manual National Historic Preservation Act Appendices Page 32 which are appointed, unless otherwise provided by State or local legislation, by the chief elected official of the jurisdiction concerned from among-- (A) professionals in the disciplines of architecture, history, architectural history, planning, prehistoric and historic archaeology, folklore, cultural anthropology, curation, conservation, and landscape architecture or related disciplines, to the extent such professionals are available in the community concerned, and (B) such other persons as have demonstrated special interest, experience, or knowledge in history, architecture, or related disciplines and as will provide for an adequate and qualified commission. (14) "Tribal lands" means-- (A) all lands within the exterior boundaries of any Indian reservation; and (B) all dependent Indian communities. (15) "Certified local government" means a local government whose local historic preservation program has been certified pursuant to section 101 (c) . (16) "Council" means the Advisory Council on Historic Preservation established by section 201. (17) "Native Hawaiian" means any individual who is a descendant of the aboriginal people who, prior to 1778, occupied and exercised sovereignty in the area that now constitutes the State of Hawaii. (18) "Native Hawaiian organization" means any organization which-- (A) serves and represents the interests of Native Hawaiians; (B) has as a primary and stated purpose the provision of services to Native Hawaiians; and (C) has demonstrated expertise in aspects of historic preservation that are culturally significant to Native Hawaiians. The term includes, but is not limited to, the Office of Hawaiian Affairs of the State of Hawaii and Hui Malama I Na Kapuna 0 Hawai'i Nei, an organization incorporated under the laws of the State of Hawaii. Section 302 (16 U.S.C. 470w-1) Authority to expend funds for purposes of this Act Where appropriate, each Federal agency is authorized to expend funds appropriated for its authorized programs for the purposes of activities carried out pursuant to this Act, except to the extent appropriations legislation expressly provides otherwise. Section 303 (16 U.S.C. 470w-2) Donations to Secretary; money and personal property (a) The Secretary is authorized to accept donations and bequests of money and personal property for the purposes of this Act and shall hold, use, expend, October 1997 Release Historic Preservation Fund Grants Manual National Historic Preservation Act Appendices Page 33 and administer the same for such purposes. Donations of less than fee interests in real property (b) The Secretary is authorized to accept gifts or donations of less than fee interests in any historic property where the acceptance of such in interests will facilitate the conservation or preservation of such properties. Nothing in this section or in any provision of this Act shall be construed to affect or impair any other authority of the Secretary under other provision of law to accept or acquire any property for conservation or preservation or for any other purpose. Section 304 (16 US.C. 470w-3) Confidentiality of the location of sensitive historic resources (a) Authority to withhold from disclosure. The head of a Federal agency or other public official receiving grant assistance pursuant to this Act, after consultation with the Secretary, shall withhold from disclosure to the public, information about the location, character, or ownership of a historic resource if the Secretary and the agency determine that disclosure may-- (1) cause a significant invasion of privacy; (2) risk harm to the historic resource; or (3) impede the use of a traditional religious site by practitioners. (b) Access deterirination. When the head of a Federal agency or other public official has determined that information should be withheld from the public pursuant to subsection (a) , the Secretary, in consultation with such Federal agency head or official, shall determine who may have access to the information for the purpose of carrying out this Act. (c) Consultation with Council. When the information in question has been developed in the course of an agency's compliance with section 106 or 110(f) , the Secretary shall consult with the Council in reaching determinations under subsections (a) and (b) . Section 305 (16 US.C. 470w-4) Attorneys' fees In any civil action brought in any United States district court by any interested person to enforce the provisions of this Act, if such person substantially prevails in such action, the court may award attorneys' fees, expert witness fees, and other costs of participating in such action, as the court deems reasonable. Section 306 (16 U.S. C. 470w-5) National Museum for the Building Arts (a) In order to provide a national center to commemorate and encourage the building arts and to preserve and maintain a nationally significant building which exemplifies the great achievements of the building arts in the United States, the Secretary and the Administrator of the General Services Administration are authorized and directed to enter into a cooperative October 1997 Release .. .. .. . -^_ - .• .^�: :•y'tir' . Historic Preservation Fund Grants Manual National Historic Preservation Act Appendices Page 34 agreement with the Committee for a National Museum of the Building Arts, Incorporated, a nonprofit corporation organized and existing under the laws of the District of Columbia, or its successor, for the operation of a National Museum for the Building Arts in the Federal Building located in the block bounded by Fourth Street, Fifth Street, F Street, and G Street, Northwest in Washington, District of Columbia. Such museum shall-- (1) collect and disseminate information concerning the building arts, including the establishment of a national reference center for current and historic documents, publications, and research relating to the building arts; (2) foster educational programs relating to the history, practice and contribution to society of the building arts, including promotion of imaginative educational approaches to enhance understanding and appreciation of all facets of the building arts; (3) publicly display temporary and permanent exhibits illustrating, interpreting and demonstrating the building arts; (4) sponsor or conduct research and study into the history of the building arts and their role in shaping our civilization; and (5) encourage contributions to the building arts. Cooperative agreement (b) The cooperative agreement referred to in subsection (a) shall include provisions which-- (1) make the site available to the Committee referred to in subsection (a) without charge; (2) provide, subject to available appropriations, such maintenance, security, information, janitorial and other services as may be necessary to assure the preservation and operation of the site; and (3) prescribe reasonable terms and conditions by which the Committee can fulfill its responsibilities under this Act. Grants to Committee (c) The Secretary is authorized and directed to provide matching grants-in-aid to the Committee referred to in subsection (a) for its programs related to historic preservation. The Committee shall match such grants-in-aid in a manner and with such funds and services as shall be satisfactory to the Secretary, except that no more than $500,000 may be provided to the Committee in any one fiscal year. Site renovation (d) The renovation of the site shall be carried out by the Administrator with the advice of the Secretary. Such renovation shall, as far as practicable-- (1) be commenced immediately, (2) preserve, enhance, and restore the distinctive and historically authentic architectural character of the site consistent with the needs of a national museum of the building arts and other compatible use, and (3) retain the availability of the central court of the building or portions thereof, for appropriate public activities. October 1997 Release Historic Preservation Fund Grants Manual National Historic Preservation Act Appendices Page 35 Annual report (e) The Committee shall submit an annual report to the Secretary and the Administrator concerning its activities under this section and shall provide the Secretary and the Administrator with such other information as the Secretary may, from time to time, deem necessary or advisable. Definition of "building arts" (f) For purposes of this section, the term " building arts" includes, but shall not be limited to, all practical and scholarly aspects of prehistoric, historic, and contemporary architecture, archeology, construction, building technology and skills, landscape architecture, preservation and conservation, building and construction, engineering, urban and community design and renewal, city and regional planning, and related professions, skills, trades and crafts. Section 307 (16 U.S.C. 470w-6) Transmittal of regulations to congressional committees (a) Except as provided in subsection (b) of this section, no final regulation of the Secretary shall become effective prior to the expiration of thirty calendar days after it is published in the Federal Register during which either or both Houses of Congress are in session. (b) REPEALED Disapproval by Congress (c) Except as provided in subsection (b) , the regulation shall not become effective if, within ninety calendar days of continuous session of Congress after the date of promulgation, both Houses of Congress adopt a concurrent resolution, the matter after the resolving clause of which is as follows: "That Congress disapproves the regulation promulgated by the Secretary dealing with the matter of , which regulation was transmitted to Congress on ," the blank spaces therein being appropriately filled. Inaction by Congress (d) If at the end of sixty calendar days of continuous session of Congress after the date of promulgation of a regulation, no committee of either House of Congress has reported or been discharged from further consideration of a concurrent resolution disapproving the regulation, and neither House has adopted such a resolution, the regulation may go into effect immediately. If, within such sixty calendar days, such a committee has reported or been discharged from further consideration of such a resolution, the regulation may go into effect not sooner than ninety calendar days of continuous session of Congress after its promulgation unless disapproved as provided for. Definitions (e) For the purposes of this section-- (1) continuity of session is broken only by an adjournment sine die; and (2) the days on which either House is not in session because of an adjournment of more than three days to a day certain are excluded in the computation of sixty and ninety calendar days of continuous session of Congress. Effect of congressional inaction October 1997 Release Historic Preservation Fund Grants Manual National Historic Preservation Act Appendices Page 36 (f) Congressional inaction on or rejection of a resolution of disapproval shall not be deemed an expression of approval of such regulation. TITLE IV Section 401 Findings The Congress finds and declares that, given the complexity of technical problems encountered in preserving historic properties and the lack of adequate distribution of technical information to preserve such properties, a national initiative to coordinate and promote research, distribute information, and provide training about preservation skills and technologies would be beneficial. Section 402 Definitions For the purposes of this title-- (1) The term "Board" means the National Preservation Technology and Training Board established pursuant to section 404. (2) The term "Center" means the National Center for Preservation Technology and Training established pursuant to section 403. (3) The term "Secretary" means the Secretary of the Interior. Section 403 Establishment of national center (a) Establishment. There is hereby established within the Department of the Interior a National Center for Preservation Technology and Training. The Center shall be located at Northwestern State University of Louisiana in Nachitoches, Louisiana. (b) Purposes. The purposes of the Center shall be to-- (1) develop and distribute preservation and conservation skills and technologies for the identification, evaluation, conservation, and interpretation of prehistoric and historic resources; (2) develop and facilitate training for Federal, State and local resource preservation professionals, cultural resource managers, maintenance personnel and others working in the preservation field; (3) take steps to apply preservation technology benefits from ongoing research by other agencies and institutions; (4) facilitate the transfer of preservation technology among Federal agencies, State and local governments, universities, international organizations, and the private sector; and (5) cooperate with related international organizations including, but not October 1997 Release -- iC= -`t:. - s':. i,,r i:'�,+ts:x > '-":1�ya..:..►7.•.:.T�a-'r�3c�c u Historic Preservation Fund Grants Manual National Historic Preservation Act Appendices Page 37 limited to the International Council on Monuments and Sites, the International Center for the Study of Preservation and Restoration of Cultural Property, and the International Council on Museums. (c) Programs. Such purposes shall be carried out through research, professional training, technical assistance, and programs for public awareness, and through a program of grants established under section 405. (d) Executive Director. The Center shall be headed by an Executive Director with demonstrated expertise in historic preservation appointed by the Secretary with advice of the Board. (e) Assistance from Secretary. The Secretary shall provide the Center assistance in obtaining such personnel, equipment, and facilities as may be needed by the Center to carry out its activities. Section 404 Preservation Technology and Training Board (a) Establishment. There is established a Preservation Technology and Training Board. (b) Duties. The Board shall-- (1) provide leadership, policy advice, and professional oversight to the Center; (2) advise the Secretary on priorities and the allocation of grants among the activities of the Center; and (3) submit an annual report to the President and the Congress. (c) Membership. The Board shall be comprised of-- (1) The Secretary, or the Secretary's designee; (2) 6 members appointed by the Secretary who shall represent appropriate Federal, State, and local agencies, State and local historic preservation commissions, and other public and international organizations, and (3) 6 members appointed by the Secretary on the basis of outstanding professional qualifications who represent major organizations in the fields of archeology, architecture, conservation, curation, engineering, history, historic preservation, landscape architecture, planning, or preservation education. Section 405 Preservation grants (a) In general. The Secretary, in consultation with the Board, shall provide preservation technology and training grants to eligible applicants with a demonstrated institutional capability and commitment to the purposes of the Center, in order to ensure an effective and efficient system of research, information distribution and skills training in all the related historic preservation fields. (b) Grant requirements. October 1997 Release Historic Preservation Fund Grants Manual National Historic Preservation Act Appendices Page 38 (1) Grants provided under this section shall be allocated in such a fashion to reflect the diversity of the historic preservation fields and shall be geographically distributed. (2) No grant recipient may receive more than 10 percent of the grants allocated under this section within any year. (3) The total administrative costs, direct and indirect, charged for carrying out grants under this section may not exceed 25 percent of the aggregate costs. (c) Eligible applicants. Eligible applicants may include Federal and non-Federal laboratories, accredited museums, universities, non-profit organizations; offices, units, and Cooperative Park Study Units of the National Park System, State Historic Preservation Offices, tribal preservation offices, and Native Hawaiian organizations. (d) Standards. All such grants shall be awarded in accordance with accepted professional standards and methods, including peer review of projects. (e) Authorization of appropriations. There is authorized to be appropriated to carry out this section such sums as may be necessary. Section 406 General provisions (a) Acceptance of grants and transfers. The Center may accept-- (1) grants and donations from private individuals, groups, organizations, corporations, foundations, and other entities; and (2) transfers of funds from other Federal agencies. (b) Contracts and cooperative agreements. Subject to appropriations, the Center may enter into contracts and cooperative agreements with Federal, State, local, and tribal governments, Native Hawaiian organizations, educational institutions, and other public entities to carry out the Center's responsibilities under this title. (c) Authorization of appropriaticns. There are authorized to be appropriated such sums as may be necessary for the establishment, operation, and maintenance of the Center. Funds for the Center shall be in addition to existing National Park Service programs, centers, and offices. Section 407 National Park Service preservation centers In order to improve the use of existing National Park Service resources, the Secretary shall fully utilize and further develop the National Park Service preservation (including conservation) centers and regional offices. The Secretary shall improve the coordination of such centers and offices within the National Park Service, and shall, where appropriate, coordinate their activities with the Center and with other appropriate parties. APPENDIX I National Historic Preservation Act Amendments of 1980, Public Law 96-515, October 1997 Release Historic Preservation Fund Grants Manual National Historic Preservation Act Appendices Page 39 December 12, 1980, 94 Stat. 3000 This appendix contains related legislative provisions enacted in the National Historic Preservation Act Amendments of 1980 but that are not part of the National Historic Preservation Act. Section 208 (16 U.S.C. 469c-2) Costs for identification, surveys, evaluation, and data recovery with respect to historic properties Notwithstanding section 7 (a) of the Act of June 27, 1960 (16 U.S.C. 469c) or any other provision of law to the contrary-- (1) identification, surveys, and evaluation carried out with respect to historic properties within project areas may be treated for purposes of any law or rule of law as planning costs of the project and not as costs of mitigation; (2) reasonable costs for identification, surveys, evaluation, and data recovery carried out with respect to historic properties within project areas may be charged to Federal licensees and permittees as a condition to the issuance of such license or permit; and (3) Federal agencies, with the concurrence of the Secretary and after notification of the Committee on Interior and Insular Affairs of the United States House of Representatives and the Committee on Energy and Natural Resources of the United States Senate, are authorized to waive, in appropriate cases, the 1 per centum limitation contained in section 7 (a) of such Act. Section 401 (16 U.S.C. 470a-1) World Heritage Convention (a) The Secretary of the Interior shall direct and coordinate United States participation in the Convention Concerning the Protection of the World Cultural and Natural Heritage, approved by the Senate on October 26, 1973, in cooperation with the Secretary of State, the Smithsonian Institution, and the Advisory Council on Historic Preservation. Whenever possible, expenditures incurred in carrying out activities in cooperation with other nations and international organizations shall be paid for in such excess currency of the country or area where the expense is incurred as may be available to the United States. (b) The Secretary of the Interior shall periodically nominate properties he determines are of international significance to the World Heritage Committee on behalf of the United States. No property may be so nominated unless it has previously been determined to be of national significance. Each such nomination shall include evidence of such legal protections as may be necessary to ensure preservation of the property and its environment (including restrictive covenants, easements, or other forms of protection) . Before making any such nomination, the Secretary shall notify the Committee on Interior and Insular Affairs of the United States House of Representatives and the Committee on Energy and Natural Resources of the United States Senate. (c) No non-Federal property may be nominated by the Secretary of the Interior to the World Heritage Committee for inclusion on the World Heritage List unless the owner of the property concurs in writing to such nomination. October 1997 Release Historic Preservation Fund Grants Manual National Historic Preservation Act Appendices Page 40 Section 402 (16 U.S.0 470a-2) Federal undertakings outside the United States; mitigation of adverse effects Prior to the approval of any Federal undertaking outside the United States which may directly and adversely affect a property which is on the World Heritage List or on the applicable country's equivalent of the National Register, the head of a Federal agency having direct or indirect jurisdiction over such undertaking shall take into account the effect of the undertaking on such property for purposes of avoiding or mitigating any adverse effects. Section 502 (16 U.S.C. 470a note) Secretary's report to the President and Congress: folklife The Secretary, in cooperation with the American Folklife Center of the Library of Congress shall, within two years after the date of the enactment of this act, submit a report to the President and the Congress on preserving and conserving the intangible elements of our cultural heritage such as arts, skills, folklife, and folkways. The report shall take into account the view of other public and private organizations, as appropriate. This report shall include recommendations for legislative and administrative actions by the Federal Government in order to preserve, conserve, and encourage the continuation of the diverse traditional prehistoric, historic, ethnic, and folk cultural traditions that undeilie and are a living expression of our American heritage. Section 503 (16 U.S. C. 470j note) Council's report to the President and Congress: tax laws The Advisory Council on Historic Preservation, in cooperation with the Secretary and the Secretary of the Treasury, shall submit a report to the President and the Congress on Federal tax laws relating to historic preservation or affecting in any manner historic preservation. Such report shall include recommendations respecting amendments to such laws which would further the purposes of this Act. Such report shall be submitted within one year after the date of enactment of this Act. Section 504 (16 U.S.C. 470h note) Secretary's report to the President and Congress: Historic Preservation Fund The Secretary shall submit a report directly to the President and Congress on or before June 1, 1986, reviewing the operation of the Historic Preservation Fund and the national historic preservation program since the enactment of this Act and recommending appropriate funding levels, the time period for the reauthorization for appropriations from the fund, and other appropriate legislative action to be undertaken upon the expiration of the current fund authorization. Section 505 (40 U.S.C. 874 note) Pennsylvania Avenue Development Corporation: development plan, review, report to congressional committees The Pennsylvania Avenue Development Corporation shall review the development October 1997 Release . :;rr:�c. .i.`•.ii...:✓r ++.:,;j• — .:ai-_t._. '.;i}h•ti�..c.:.!..-•:....-?:_;,);r.•. r.3 d Historic Preservation Fund Grants Manual National Historic Preservation Act Appendices Page 41 plan for those parts of the development area which are not under development or committed for development as of the date of the enactment of this Act, to identify means by which the historic values of such parts of the development area may be preserved and enhanced to the maximum extent feasible. The foregoing review shall not be limited by the applicable provisions of the development plan in effect at the time of the review, nor shall the review require any actions by the Corporation during the course of the review or during its consideration by the Congress. Within one year of the date of this act the Corporation shall submit to the appropriate committees of Congress a report containing the findings of the review required under this section, together with the Corporation's recommendations for any legislative measures or funding necessary to carry out the purposes of this section. The report shall also include a description of those activities which the Corporation proposes to undertake to carry out the purposes of this section and the financial implications of carrying out those activities. Section 506 (16 U.S.C. 470a note) Secretary's study and report to the President and Congress: cultural parks The Secretary shall undertake a comprehensive study and formulate recommendations for a coordinated system of cultural parks and historic conservation districts that provide for the preservation, interpretation, development, and use by public and private entities of the prehistoric, historic, architectural, cultural, and recreational resources found in definable urban areas throughout the Nation. The study shall propose alternatives concerning the management and funding of such system by public and private entities and by various levels of government. The Secretary shall submit a report of his study and recommendations to the President and the Congress within two years after the enactment of this Act. Section 507 (16 U.S.C. 470a note) Secretary's report to the President and Congress: fire in historic properties The Secretary, in cooperation with the Secretary of the Treasury, the Administrator of the United States Fire Administration, and the Administrator of the Federal Insurance Administration, shall submit a report to the President and the Congress on fire in historic properties. Such report shall include a review of Federal laws to determine any relationship between these laws and arson or fire by "suspicious origin, " and to make recommendations respecting amendments to such laws should a correlation be found to exist. Such report shall include the feasibility and necessity of establishing or developing protective measures at the Federal, State, or local level for the prevention, detection, and control of arson or fire by "suspicious origin" in historic properties. Such report shall also include recommendations regarding the Federal role in assisting the States and local governments with protecting historic properties from damage by fire. Such report shall be submitted within eighteen months after the date of enactment of this Act. APPENDIX II National Historic Preservation Act Amendments of 1992, Public Law 102-575, October 30, 1992, 106 Stat. 4753 This appendix contains related legislative provisions enacted in the National Historic Preservation Act Amendments of 1992 but that are not part of the National Historic Preservation Act. October 1997 Release Historic Preservation Fund Grants Manual National Historic Preservation Act Appendices Page 42 Section 4021 (16 U.S.C. 470a note) Recommendations The Secretary of the Interior, in consultation with the Advisory Council, shall seek to ensure that historic properties preserved under the National Historic Preservation Act fully.reflect the historical experience of this nation. Section 4023 (16 U.S.C. 470a note) Requirement for specific authorization for projects Section 6 of the Act entitled "An Act to provide for the preservation of historic American sites, buildings, objects, and antiquities of national significance, and for other purposes" (16 U.S.C. 461-467) is amended to read as follows: "Sec. 6. Requirement for specific authorization for projects under the Historic Sites, Buildings, and Antiquities Act. " (a) In general. Except as provided in subsection b any other provision of law, no funds a ( ) . notwithstanding a ma to the Secretary of the Interior to carry oout sectiono2 (e)wore2(f)demayabeable obligated or expended after the date of enactment of this section-- " (1) unless the appropriation of such funds has been specifically authorized by law enacted on or after the date of enactment of this section; or " (2) in excess of the amount prescribed by law enacted on or after such date. " (b) Savings provision. Nothing in this section shall prohibit or limit the expenditure of or obligation of any funds appropriated prior to January 1, 1993. " (c) Authorization of appropriations. Except as provided by subsection (a) , there is authorized to be appropriated for carrying out the purposes of this Act such sums as the Congress may from time to time determine. " Section 4025 (16 U.S.C. 470a note) Report by Secretary of the Interior on eligibility for National Register (a) Report. Not later than one year after the date of enactment of this Act, the Secretary of the Interior shall prepare and submit to the Congress a report on the manner in which properties are listed or determined to be eligible for listing on the National Register, including but not limited to, the appropriateness of the criteria used in determining such eligibility, and the effect, if any, of such listing or finding of eligibility. (b) Preparation. In preparing the report, the Secretary shall consult with, and consider the views and comments of other Federal agencies, as well as interested individuals and public and private organizations, and shall include representative comments received as an appendix to the report. October 1997 Release §61.1 36 CFR Ch. i (7-1-89 Edition) —', I National Park Service, Interior §61.4 ,J. to pursue his removal request, the the Keeper will notify the nominating +' State Historic Preservation Officer authority, the affected owner(s) and States under the Act to certified local evaluation, and protection/treatmen shall notify the petitioner in writing the applicable chief elected local offi- +, governments(CLGs); of historic resources. either that the State Review Board cial and provide them an opportunity (b) Directs the Secretary to conduct (f) "Comprehensive statewide histol will consider the petition on a specs- to comment. Upon removal, the !.• performance evaluations of State pro- is preservation plan" means the par fled date or that the petition will be Keeper will notify the nominating au- grams periodically; of the planning process that conform forwarded to the Keeper after notifi- thority of the basis for the removal. (c) Directs the Secretary to adminis- to the Secretary's Standards for Pre: cation requirements have been corn- The state Historic Preservation Offi- ter a program of matching grants-in- ervation Planning and is approved a pleted. The State Historic Preserva- cer, Federal Preservation Officer, or aid to the States for historic preserva- part of the State Program Approvs tion Officer shall forward the peti- person or local 'government which tion projects and programs approved tails the The comprehensive ion into a plan er al sr tions to the Keeper for review within nominated the property shall notify by the Secretary; 15 days after notification require- the owner(s) and the chief elected (d) Requires the Secretary to estab- quence of preservation informatio ments or Review Board consideration, local official of the removal. lish guidelines for the use and distri- pertaining to identification, evalut if applicable,have been completed. (1) No person shall be considered to bution of funds transferred to local tion, registration, and treatment c (i) Within 15 days after receipt of have exhausted administrative reme- governments to ensure that no local historic properties, and setting prior the petitioner notification of intent to dies with respect to removal of a prop- government receives a disproportion- ities for accomplishing preservatio pursue his petition, the Federal Pres- erty from the National Register until ate share of the funds available;and activities. ervation Officer shall forward the pe- the Keeper has denied a petition for (e) Requires the Secretary to make (g) "Historic Preservation Fund tition with his or her comments and removal pursuant to this section. information available concerning pro- means the monies accrued under tl. those of the State Historic Preserva- fessional methods and techniques for Outer Continental Shelf Lands Act, i tion Officer to the Keeper. PART 61—PROCEDURES FOR AP- the preservation of historic properties amended, to support the program r (I)The Keeper shall respond to a pe- tition PROVED STATE AND LOCAL GOV- and the administration of historic matching grants-in-aid to the Stair for r within 45 days of re- preservation programs. for historic preservation programs or ceipt, except where re the Keeper must ERNMENT HISTORIC PRESERVA- projects, as authorized by sectic notify the owners and the chief elect- TION PROGRAMS ii 61.2 Definitions. 101(d)(1) of the National Histor ed local official. In such cases the Preservation Act, as amended. Sec. As used in this part: Keeper shall respond within notify days (a) "Approved State program" (h) "Historic preservation revie of receipt The Keeper shall notify the 61.1 Authorization. means a State historic preservation commission" means a board, counc petitioner and the applicable State 61.2 Definitions. program that has been approved by commission, or other similar collegi Historic Preservation Officer, Federal 61.3 Implementation of 38 CFR Part el. Preservation Officer, or person or 61.4 Approved State Programs. the Secretary of the Interior in ac- body which is established in accor local government where there is no ap- 61.5 Approved Local Programs. cordance with section 101(b) of the ance with g 61.4(c)(�2)of these rules. proved State. Historic Preservation 61.6 Grants to Approved State Programs. National Historic Preservation Act, as (i) "Local government"means a cit Program, of his decision. The State 61.7 Transfer of Grants to Certified Local amended. All State programs will be county, parish, township, municips Historic Preservation Officer or Feder- Governments, treated as approved programs until sty, or borough, or any other gener al Preservation Officer transmitting 61.8 Waiver. December 12, 1983, unless specifically purpose political subdivision of ar 81.9 Information Collection Requirements, disapproved by the Secretary before State. the petition shall notify the petition- APPENDIX A—PROFESSIONAL QUALIFICATIONS that time. (j) "National Register of Histom er, the owner(s), and the chief elected STANDARDS local official in writing of the decision. APPENDIX B—INFORMATION SOURCES (b) "Certified local government" Places" means the national list of d The Keeper will provide such notice means a local government that has tracts, sites, buildings, structures, ai for petitions from persons or local gov- AUTNORITY National Historic Preserva- been certified to carry out the pur- objects significant in American hisi ernments where there is no approved tion Act of 1966, as amended, 16 U.S.C. 470 poses of the National Historic Preser- ry, architecture, archeology, engine( State Historic Preservation Program. et sly. vation Act, as amended, Inaccordance ing, and culture, maintained by t1 The general notice may be used for SOURCE:49 FR 14899,Apr, 13, 1984,unless with section 101(c)of the Act. Secretary of the Interior under a properties with more than 50 owners, otherwise noted. (c) "Chief elected local official" the rity of section 101(a)(1)fA) of U If the general notice is used it shall be means the elected head of a local gov- National Historic Preservation Act, 61.1 Authorization. ermnent. a ended. published in one or more newspapers with general circulation in the area of The National Historic Preservation (d) "CLG share" means the funding (k) "The National Register Progra, the nomination. Act of 1966, 16; U.S.C. 470 et. seq., as authorized for transfer to local gov- Manual" means the manual that s( (k) The Keeper may remove a prop- amended: ernments in accordance with section forth NPS administrative procedur erty from the National Register on his ' (a)Requires the Secretary of the In- 103(c) of the vatic)Act, tNational Historic Preser- ianl n the federally for relaactivities cis cet own motion on the grounds estab-ion, tenor (Secretary) to promulgate regu- (e) "Comprehensive historic Preser- erdation programs of the 'Nation expr liscept for paragraph (a) of this stedoin lations for vation planning" means an ongoing Trust for Historic Preservation, t except. for those properties listed in (1) Approving State historic preser- the National Register prior to Decem- vation programs; process that is consistent with techni- States, and local governments. Tl ber 13, 1980, which may only be re- (2) Certifying local governments to cal standards issued by the Depart- manual includes guidelines and pros moved from the National Register on carry out the purposes of the Act; I ment of the Interior and which pro- dukes for the administration of t the grounds established in paragraph (3) The allocation by States of a ► duces reliable, understandable, and historic preservation grants-in-aid p� (a)(1) of this section. In such cases, share of the grants received by the up-to-date information for decision- gram, and supersedes the HPF Gram i making related to the identification, Mdnagement Manual. 25R ___ §61.3 36 CFR Ch. I (7-1-89 Edition) c: National Park Service, Interior §61, (1) "National Park Service" means §61.3 Implementation of 36 CFR Part 61. f the bureau of the Department of the nomination to the National Register with these requirements shall be eva Interior to which the Secretary of the (a) The National Register Programs of Historic Places and so that the uated by the Secretary as required b Interior has delegated the authority the Manual. The National Park Service survey data collected can be incorpo- 4 61.4 of these regulations.These eva and responsibility for administering maintains this Manual for the use of rated into State priorities and plan- uations shall determine the State the National Historic Preservation the States, Certified Local Govern- ning decisions concerning the area sur- continued eligibility for approved pry Program. ments, and the National Trust for His- veyed; gram status. toric Preservation In performing feder- (2) Identify and nominate eligible (2) Procedures for Review and A; (m) "Secretary" means the Secre- ally related historic preservation ac- properties to the National Register of proval of State Historic Preservatic tary of the Interior. Unless otherwise tivities authorized by the National Historic Places and otherwise adminis- Programs. (i)The Secretary will eval stated hi law or regulation, the Secre- Historic Preservation Act, as amended. ter applications for the National Reg- ate each State program for compliant tary has delegated the authority and (1) The Manual is the vehicle ister (see 36 CFR Part 60: "National with the requirements of the Act at responsibility for administering the through which the National Park Register of Historic Places"); other applicable laws and regulatior National Historic Preservation Pro- Service implements 36 CFR Part 61. (3) Prepare and implement a corn- The program evaluation process w gram to the National Park Service. (2) The Manual provides guidelines prehensive statewide historic preserva- be conducted after the end of eves (n) "Secretary's Standards and and procedures for approved historic tion planning process; this high priori- second or third fiscal year. It will 1 Guidelines"means the Secretary of the preservation programs to use match- ty responsibility entails the organiza- rigorous with respect to assessing tl Interior's Standards and Guidelines ing Want assistance for preservation tion of preservation activities(identifi- State's performance of the requir for Archeology and Historic Preserva- program activities, cation, evaluation, registration, and ments in the Act. The State prograr tion. The Standards and .Guidelines (3) The Manual does not include treatment of historic properties)into a will be selectively examined to t1 provide technical information about technical information on preservation logical interrelated sequence so that depth of existing regulations ax archeological and historic preservation techniques, effective and efficient decisions and/ standards pertinent to each requir activities and methods. The Standards (b) The Secretary of the Interior's or recommendations can be made con- ment but only to the extent the and Guidelines are prepared under the Standards and Guidelines. The Na- cerning preservation in the State; were in effect during the performan authority of sections 101(f), (g), and tional Register Programs Manual in- (4) Administer the State program of period being evaluated. The Secreta (h), and section 110 of the Act. The cludes The Secretary of•the Interior's Federal assistance for historic preser- will verify the accuracy of requir subjects covered in the Standards and Standards and Guidelines for Archeol- vation within the State; if Historic periodic State reports used in alloy Guidelines may include: Preservation ogy and Historic Preservation. The Preservation Fund (HPF) monies are Ing grant funds and in reporting Planning.. Identification, Evaluation, Standards and Guidelines apply to appropriated, this includes the admin- the status of the national histo: federally authorized activities and will istration of the HPF Grant-in-Aid pro- preservation program and provi Registration, Historic Research and be used by the National Park Service gram; States with analyses of progra Documentation, Architectural and En- as the technical performance stand- (5) Advise and assist Federal, State, strengths and weaknesses. gineering Documentation, Archeology- ards for matters covered by these and local government agencies in car- (11) The categories of activities to cal Investigation, Historic Preserva- rules, rying out their historic preservation evaluated are: tion Projects, and Preservation Termi- (c)Availability of The National Reg- responsibilities; (A)Requirements of the Act. nology. ister Programs Manual. (6) Cooperate with the Secretary, (1) Legal authority and designati (o) "State" means any State of the (i) Copies of the Manual may be ob- the Advisory Council on Historic Pres- of the State Historic Preservation ( United States, the District of Colum- tamed from the National Park Service. ervation, and other Federal,State, and facer. bia, the Commonwealth of Puerto . (2) The National Park Service issues local government agencies to ensure (2) State Staff Qualifications a Rico, Guam, the Virgin Islands, Amer- updates of the Manual as necessary that historic properties are taken into Composition. scan Samoa,the Commonwealth of the and annually issues a summary of all consideration at all levels of planning (3) State Review Board QualifI Northern Mariana Islands, and the additions, changes, or deletions made and development; tions and Composition. Trust Territories of the Pacific Is- during the previous fiscal year. (7) Provide public information, edu- (q) Historic Preservation Fu lands, cation, training, and technical assist- Grant Management. (p) "State Historic Preservation Of- 0 61.4 Approved State Programs. ante relating to the National and (5) Comprehensive Historic Pres ficer" is the official within each State (a)A State Historic Preservation Of. State historic preservation programs; and otherwise fulfill the State's liaison vation Planning. who has been designated and appoint- ficer (SHPO) shall be appointed by responsibility with the Federal preser- (6)Survey and Inventory. ed by the Governor to administer,the the Governor to administer the State vation programs, other States, local ( )National Register. State historic preservation program in historic preservation program. governments, Indian tribes, private or- (8)Public Participation. the State. (b) It shall be the responsibility of ganizations,and individuals; (9) Technical Assistance to Cove (q) "State Program" means the the SHPO to: State historic preservation program in (1)Direct and conduct a comprehen- Cooperate with local govern- mental Agencies. the State. save statewide.survey of historic prop- ments in development pment of local cal historic (10)Review and Compliance. • (r) "Subgrantee" means the agency, erties and maintain an inventory of preservation programs and assist local (IS)Public Education. institution, organization or individual such properties; this high priority re- governments iri becoming certified. ove Cert[fication Assistance to Lo to which a subgrant is made by the sponsibility entails locating historic (c)ed State programs shah be deter- Governments. and archeological resources at a level proved by the Secretary if he deter- (B) Conditions and other requi State and which is accountable to the of documentation such that the re- mines that the program meets the re- ments as specified in The Natio: provided, sources can be evaluated for potential State for use of' 'funds State of paragraphs (a), (b>, (d), Register Pro grar Manual (N (e), and(f) of this section. Compliance Guideline 49). 260 ,, ,, 36 CFR Ch. 1 (7-1-89 Edition) f National Park Service, Interior §61.4 (C), Annual Historic Preservation sions of Sec. 61.4(c)(2)(iv) (A), (B),and These proposals will be reviewed and and related disciplines defined in Ap• Fund grant applications. (D). -: approved by the Secretary in writing pendix A to these rules.Except as ap (D) OMB circular and Treasury re- (D) States will be "disapproved" `e on a State-by-State basis.Approved al- proved pursuant to paragraph(e)(4)o quirements. only when, after the expiration of the ternatives will remain in effect until this section, ' F.: the membership shall In �� ,,_;• (E) Appropriate implementing regu- specified period, they are officially no- ;; ': they are reviewed, at the Secretary's elude a minimum of one professions lations. tified that their approved status is re- • discretion, or at the request of the in each of the following dlscipline: (iii) The Secretary will use a combs- moved for failure to correct cited deft- State. history,prehistoric and historic archc nation of on-site and off-site inquiries ciencies. The Secretary will then mitt- :; (3) The State shall annually certify ology, and architectural history an to perform the evaluation. To achieve .ate financial suspension and other ac- according to procedures provided by architecture.All of these professiona' uniformity of review and comprehen- tions in accordance with administra- the Secretary that the State program shall meet the standards set forth i save coverage of the approval criteria, tive guidelines specified in The Nation- ` i meets the minimum staffing require- Appendix A. The State shall dete .�> :, the following questions will generally al Register Programs Manual (NPS ments. mine what other professional disc form the basis for verifying State ac- Guideline 49). (4) When a required staff position plines and/or additional members a'. tivities for each of the requirements: (v) Instructions on carrying out the becomes vacant, and if the expertise of needed. (A) Is there an adequate system or evaluation process are provided in The the person filling that position is re- (2) The archeologist shall be qua process in place for the requirement? National Register Programs Manual quired by law, regulation, or ample- fled in both prehistoric and histo� (NPS Guideline 49). ? menting procedure the State shall archeology, or an additional qualifi' (B) Is the system or process being (d) A professionally qualified staff '' take immediate steps to ensure that person shall be appointed to the Sta used such that a minimvel of ac- shall be appointed or employed by the the requisite expertise is replaced. Review Board so that expertise tivlty for each requirement ennt can be State historic preservation program. I This may be done on a temporary both prehistoric and historic archeo) demonstrated? (1) Except as approved pursuant to basis (such as by contracting the re- gy will be represented. (C) Have all conditions of any grant paragraph (d)(2) of this section, the sponsibility) pending the permanent (3)The architectural historian or s awards been met? staff shall include at a minimum, one filling of the vacant required staff po- chitect shall be qualified in both t (D) Are the data contained in the full-time professional in each of the sition. Measures taken pursuant to chitectural history and architecture previous year's End-of-Year Report ac- following disciplines: history, archeol- §61.4(d)(2) or §61.8 are other possible an additional qualified person shall curate? ogy, and architectural history. Re- techniques to follow. However, States appointed to the State Review Boa (iv)Approval Method. quired professional State staff mem- should ensure that technical matters so that expertise in both architectul (A) States meeting all requirements bers shall meet the standards set forth are addressed by the corresponding history and architecture will be rep' in the review will receive immediate in Appendix A to these rules. Two or technical expertise. sented. official notice that their approved more part-time staff members may be (5) If these requirements for perma- (4) The Secretary will consider p1 status is continued, substituted for one full-time profes- nent required staff are not met for a posals for alternative Review Boa (B) States not meeting all require- sional in any of the required disci- period exceeding three months, the requirements for States with histo. rnents will receive immediate notice of pines as long as the equivalent of one State shall communicate by letter to resources and needs which cannot deficiencies along with recommenda- full-time professional Is achieved in NPS, the timetable for filing the va- served or met by the composition of tions on how to correct them.The Sec- each discipline. States shall determine cancy, or propose an alternative pursu- lined in paragraph (e)(1) of this s retary will defer making a decision on what other professional disciplines, ant to paragraph (d)(2) of this section. tion. Such alternative requlremel program approval for up to a 4 month such as planning, law, architecture, (6) If the lapse in staffing require- must ensure adequate professional period during which time technical as- historic architecture, historical arche- ments persists for more than six pertise on the Review Board,compa sistance In correcting the problems ology, accounting and grants manage- months, the Secretary may require ble to that required In paragra will be offered.States must either cor- .went are needed to carry out the re- further restrictions in State program (e)(1)of this section to perform the rect cited deficiencies, or provide an sponsibilities of the State historic operations or HPF financial assistance sponsibilities of the Review Boa acceptable justification for requiring preservation program. State proles- that will remain in effect until the Such proposals will be reviewed a additional time and a plan and timeta- sional staff members approved by the staff vacancy has been filled or an al- approved in writing by the Secret; ble for correcting deficiencies. During Secretary prior to September 21 19'l'l, ternative has been approved by the on a State-by-State basis.Approved this period,States have the opportuni- shall remain approved until such time Secretary pursuant to paragraph ternatives will remain In effect uw ty to appeal to the Secretary gny find- that they are no longer employed on (d)(2)of this section. they are reviewed, at the Secreta1 ngs and recommendations, the State staff. (e) An adequate and qualified State discretion, or at the request of 1 (C) States successfully resolving de- (2) The Secretary will consider pro- historic preservation Review Board State. ficiencies will receive notice from the posals submitted by States for alterna- shall be designated by the SHPO (5) The State shall annually ceri Secretary that their approved status is tive staffing requirements for States unless an alternative method of ap- according to procedures prbvided continued. Once approved status is re- with resources and needs which pointment is provided by State law. the Secretary that the State progr newed, States will not be 'reviewed cannot be served or met by the compo- (1) The State Review Board shall meets the minimum Review Board until the next regular evaluation sitlon outlined In paragraph (d)(1) of consist of at least five persons. The gnirements. If these requirements period, although evaluations may be this section. Such alternative require- Review Board shall consist of mem- nbt met for a period exceeding th conducted more often In individual ments must ensure adequate profes- bers who have demonstrated a compe- nonths, the State shall corhmunic States if the Secretary deems this nec- sional expertise on the staff, compara- tence, interest, or knowledge in histor- b letter to the Secretary, the time essary. The Secretary may disapprove ble to that required in paragraph is preservation and a majority of b.e for filling the vacancy, or prop a State program as a result of any (d)(1) of this section, to perform the Review Board members shall be recog- to NPS an alternative pursuant such evaluation subject to the provi- required responsibilities of the State. nized professionals In .the following paragraph (e)(4) of this secti 263 , 4: §61.5 36 CFR Ch. I (7-1-89 Edition) • p National Park Service, Interior §61.5 During such lapse in minimum Review As part of the process of recommend- ' (1) Enforce appropriate State or (Ii) States shall specify the role and Board requirements, the State shall ing properties to the National Regis- local legislation for the designation responsibilities of the local govern- take steps to ensure that temporary ter, the State shall comply with all and protection of historic properties. ment's Commission in local preserva- measures provide expertise so that the consultation and notification proce- • '( The State shall define what consti- tion decisions. These responsibilities Review Board continues to operate as dures contained in 36 CFR Part 60.6. ;.' tutes appropriate legislation so long as must be complementary to and carried a professional body that can objective- (g) Any State may carry out all or it Is consistent with the purposes of out. in coordination with those of the ly evaluate the historic significance of any part of its responsibilities by con- ' . the Act. Where State enabling legisla- State as outlined in §61.4(b) of these properties and provide professional tract or cooperative agreement with tion or home rule authority permits rules. advice on historic preservation mat- any qualified nonprofit organization, ' local historic preservation ordinances, iiD States shall make available on- ters. If a lapse in Review Board re- eduôational institution or otherwise . ' a State may require adoption of an or- entation materials and training to a11 quirements persists for more than six pursuant to State law. A State may dinance and indicate specific provi- local Commissions. The onientatior months, the Secretary may require not delegate its responsibility for com- sions that must be included In the or- and training shall be designed to pro further restrictions in State program pliance with grant R.c.cistance terms dinance. vide a working knowledge of the role: operations or HPF financial assistance and conditions. (2)Establish by State or local law an and operations of Federal, State, an to remain in effect until the Review Board vacancy has been filled or an (49 FR 14899, Apr. 13, 1984, as amended at adequate and qualified historic preser- local preservation programs. alternative has been proposed and ap- 50 FR 35224,Aug.30,19851 vation review commission (Commis- (3) Maintain a system for the surve: and inventory of historic properties proved by the Secretary pursuant to sion)composed of professional and lay States shall formulate guidelines fo paragraph(e)(4)of this section. §61.5 Approved Local Programs. members. All Commission members local survey and inventory system (6) The State Review Board shall (a) All approved State programs shall have a demonstrated interest, which ensure that such systems an meet at least three times a year and shall provide a mechanism for certify- competence, or knowledge in historic the data they produce can be readil shall adopt procedures governing its ing local governments to participate . preservation. To the extent available integrated into statewide compreher operations consistent with the provi- the National program. in the community, the local govern- sive historic preservation planning an ment shall appoint professional mem- other appropriate planning processe: sions of this section. In making deci- (b) All approved State historic pres- bers from the disciplines of architec- Local government survey and 1nvent sions the Review Board must have ervation programs shall develop, for ture, history, architectural history, ry efforts shall be coordinated wit access to the expertise necessary to approval by the Secretary, procedures planning, archeology, or other historic and complementary to those of th make objective professional judg- for the certification of local govern- ments. p ments. Procedures also shall be de- preservation related disciplines, such State. The State also shall requir as urban planning, American Studies, that local survey data be in a formt (7) The responsibilities that the fined for removal of CLG status for American Civilization, Cultural Geog- that is consistent with the plannin State Review Board performs include, cause. States shall indicate specific re- raphy,or Cultural Anthropology. processes noted above. but need not be limited to, the follow- quirements for certification, specific (1) States may specify the minImum (4) Provide for adequate public pa: lug responsibilities that will be delegated number and type of professional mem- ticipation in the historic preservatio (I)Reviewing each National Register to certified local governments (CLGs), bers that the local government shall program, including the process of re nomination proposal prior to submis- and the schedule for the certification appoint to the Commission and mdi- ommencling properties to the Natiors sion to the National Register to deter- mine whether or not the property process. The requirements outlined in cate how additional expertise can be Register.States shall require adequat meets the National Register criteria paragraph (C) of this section must be obtained. Requirements set by the public participation in relation to a for evaluation, and to make a recom- incorporated into the State's process State for local Commissions shall not responsibilities that are delegated I inendation that the State nominate or for local certification that is submitted be more stringent or comprehensive CLGs. States shall outline specif reject the proposed nomination; to the Secretary for approval. Beyond than its requirements for the State mechanisms to ensure adequate pub) (ii)Participating in the review of ap- the minimum delegations of authority Review Board.Local governments may participation in local preservation pr peals to National Register nomina- that must be made to all CLGs, States be certified without the minimum grams. These may include requii tions and providing written opinions may make additional delegations of re- number or types of disciplines if they ments for open meetings, publish on the significance of the properties; sponsibility to individual CLGs. These can demonstrate that they have made minutes, and the publication of proc (iii) Providing advice to the State delegations may not, include the a reasonable effort to fill those posi- dures by which assessments of pote about documentation submitted in State's overall responsibility derived tions. When a discipline is not repre- tiai National Register nomination conjunction with the Historic Preser- from the National Historic Preserva- sented in the Commission member- design review. etc. will be carried o vation Fu.nd including but not limited tlon Act, as amended, or where speci- ship,the Commission shall be required as well as compliance with appropria to grant applications, end-of-year re- fied by law or regulation (e.g., the op- to seek expertise in this area when regulations. National Register noti ports, and the State comprehensive erations of the Review Board and considering National Register nomina- cation requirements may be found historic preservation planning process; nominations to the National Register). tions and other actions that will 36 CFR Part 60. (iv) Providing general advice, guid- Regulations and standards governing impact properties which are normally (5) Satisfactorily perform the ance, and professional recominenda- performance of State functions (e.g., evaluated by a professional in such sponsibilities delegated to it under t tions to the SHPO in carrying out the rules relating to conflict of interest) discipline. This can be accomplished Act.States shall monitor and evalur duties and responsibilities listed in are to be enforced by States when the through consulting (e.g., universities, the performance of CLGs. States sh 61.4(b). functions are delegated, private preservation organizations, or outline procedures and standards • (f)Mechanisms shall be provided for Cc) States shall require local govern- regional planning commissions) or by which the performance of CLGs adequate public participation in the ments to satisfy the following mini- other means that the State determines program operation and administrati State histc1 jjeservation program, mum requirements: . appropriate. will be evaluat:±.1Vrittefl recor 264 265 §61 5 36 CFR Ch I (7-1-89 Eddion) National Park Service, Interior §61 6 shall be maintained for all State eval- ment, however, is automatically enti- 4;: tinue their approved State program (rn) The District of Columbia shall uations of CLGs so that results are tied to receive funds. Local govern- ;' status beyond that thne. be exempted from the requirements of available for the Secretary's perform- ments that receive these monies shall ;t ' 4. (1)A State may begin certification of section 61.5 because there are no sub. ance evaluations of States. If a State be considered subgrantees of the Y' local governments as soon as the ordinated local governments in the evaluation of a CLG's performance in- State. State's proposed certification process District. If a territory believes that its dicates that, in the State's judgment, (3) The requirements set forth in is approved by the Secretary. When a political subdivisions lack authorities such performance is inadequate, the paragraph (C) of this section may be local government certification request similar to those of local governments State shall suggest ways to improve amplified by the Secretary and/or the has been approved in accordance with in other States and hence cannot satis- performance. If, after a period of time States as necessary to reflect particu- • the State's approved certification fy the requirements for local certifica stipulated by the State, the State de- lar State and or local government pro- . process, the State shall prepare a writ- tion, it may apply to the Secretary for termines that there has not been suff i- gram concerns. ten certification agreement that lists exemption from the requirements of dent improvement, It may recommend (e) States shall submit, within 180 the specific responsibilities of the local §61.5. decertification of the local govern- days of publication of the final rule . government when certified. The State (n) Procedures for direct certifiCa• ment to the Secretary for his concur- for local certification and funds trans- shall forward to the Secretary a copy tion by the Secretary where there is nc rence. This recommendation shall cite 'fer, their proposed local certification . of the approved request and the certi- approved State program. (1) When the specific reasons why decertifica- processes to the Secretary for review fication agreement. If the Secretary there is no approved State program tion is proposed. If the Secretary does and approval. In developing the sub- does not take exception to the request local governments wishing to be certi not object within 30 working days of mission, the State shall consult with , within 15 working days of receipt, the fied must apply directly to the Secre receipt, the decertification shall be local governments, local historic pres- local government shall be regarded as tary. considered approved by the Secretary. ervation commissions, and all other certified by the Secretary. (2) The application must demon Appropriately documented State rec- parties likely to be interested in the (j) A State may agree with a CLG to strate that the local governmen ommendations for decertification ordi- CLG process; consider local preserva- change the delegation of responsibil- meets the specifications for certifica narily will be accepted by the Secre- tion needs and capabilities; and invite ities by amending the certification tion set forth in paragraph (C) of thi tary. When a local government is de- comments on the proposed process agreement.The State must submit the section. certified, the State shall conduct f I- from local governments, commissions, amendment to the National Park Serv- (3) The Secretary shall review certi nancial assistance closeout procedures and parties In the State likely to be in- Ice for review to ensure that it is in fication applications under this sut as specified in The National Register terested. The State's proposal shall conformance with the approved State section and take action within 90 day Program-s Manual. review the results of this consultation process, this rule, and the Act. If the of receipt. (d)Effects of certification: process. States shall keep a record of National Park Service does not object (4)To the extent feasible, the Secr€ (1) Inclusion in the process of nomi- their consultation processes and make within 15 working days, the amend- tary will ensure that there is consist nating properties to the National Reg- them available to the Secretary upon ment shall be considered approved. ency and continuity in the CLG prc ister of Historic Places in accordance request. (k) States may amend their ap- gram of a State that does not have at with Sections 101 (c)(2)(A) and (f) States shall establish procedures proved State certification and funds approved historic preservation prc (c)(2)(B) of the Act. The State may to ensure that all parties likely to be transfer processes. In developing the gram.Therefore, if a now disapprove delegate to a CLG any of the responsi- interested are notified and provide a amendment, the State shall follow to State program hall an approved loc bilities of the SHPO and the State 60-day period for public comment on the extent appropriate the same con- government certification process an Review Board in processing National the proposal before it is submitted to sultation procedures outlined ifl had already certified local goverr Register nominations as specified in 36 the Secretary. Records of all corn- §61.5(e)f(f) and §61.'l(g)(h). The ments, the Secretary will consider th CFR Part 60, except for the authority ments received during the commenting State shall submit the proposed process in his review of any applic: to review and nominate properties di- period shall be kept by the State and amendment to the National Park Serv- tions for local government certific: rectly to the National Register. CLGs shall be made available to the Secre- Ice. The National Park Service shall tion from within the State. may make nominations directly to the tary upon request. The State should review the proposed amendment for National Park Service only when the be able to respond to all suggestions conformance with this rule and the (49 FR 14899. Apr. 13, 1984, as amended : State does not have an apprOved pro- that it does not adopt. Act,and,within 45 working days of re- 50 FR 35225.Aug.30,19851 gram. States shall ensure that CLG (g) The Secretary shall review State ceipt, issue an approval or disapproval R 61 6 Grants to A roved State Pr performance of these responsibilities proposals and within 90 days of re- notice. PP Is eoisistent and coordinated with the ceipt issue an approval or disapproval. (I) State administration of its local grams. identification, evaluation, and preser- This review will be based on compli- certification process shall be reviewed (a) All States with approvdd Ste vatlon priorities of the comprehensive ance with all requirements set forth in by the Secretary during performance historic preservation programs shr State historic preservation planning this section. evaluations and audits of State pro- be eligible for matching grants-in-a process. (h) If a State proposal Is disap- grams as required by section 1O1(b)(2) from the Historic preservatic?n Fur (2) Eligibility to apply for portion proved, the Secretary will recommend of the National Historic Preservation for carrying out the responsibilities of the State's annual HPF grant. At changes that would make the pro- Act, as amended.. Local governments the SHPO including prepafinig cot least 10 percent of the States annual posed process acceptable and, in con- may appeal to the Secretary State de- prehensive statewide historic surve HPF apportionment shall be set aside sultation with the State,will designate cisions to deny certification or to de- and plans, and for preserving and pr for transfer to CLGs. All CLG in the a date by which the revision must be certify. Appealed actions shall be ex- tecting properties listed in the Natio State shall be eligible to receive funds submitted. Final approval by the See- amined for conformance with ap- al egIster of Historic Places. from the designated CLG share of the retary must be achieved by October 1, proved State procedures for CLOs, (b)Administration of HPF matchit State's annual HPF grant; nO govern- 1985,or States will be ineligible to con- these regulations,and the Act, grants-in-aid shall be in accordaii §61.7 36 CFR Ch. I (7-1-89 Edition) :j :• National Park Service, interior §617 with The National Register Programs Audit of Governmental Organizations, matching funds are available from (1) The Secretary shall review State Manual. States receiving HPF grants Programs, Activities, and Functions. other sources, ability to provide proposals and withIn 90 days of re- shall adhere to the procedures and States shall be responsible, through fi- matching funds need not be a primary ceipt Issue an approval or disapproval. guidelines in The National Register nanclal audit, for the proper account- allocation factor. Allocation proce- This review will be based on compli- Programs Manual and its supple- ing of 11FF CLG share monies In ac- dures shall include guidelines for the ance with the requirements set forth ments. cordance with 0MB CIrcular A-102, review of applications and the selec- In this section. (C) States are responsible, through Attachment P, "Audit Requirements." tion of applicants. At a minimum, (j)If a State proposal Is disapproved. financial audit, for the proper ac- The periodic State evaluations of CLG J. these guidelines shall Include the fol- the Secretary will recommend changes counting of HPF grants in accordance performance shall Include an assess- ;: lowing: that would make the proposed process with 0MB Circular A-102, Attach- ment of the fiscal management of (1) The amount awarded to any ap- acceptable and, in consultation with ment P, "Audit Requirements," and HPF monies. plicant must be sufficient to produce a the State, will designate a date by The National Register Programs (2) Adhere to all requirements of specific Impact.While no lower limit is which the revision must be submitted. Manual. The National Register Programs prescribed by these rules, States must Final approval by the Secretary must (d) States are responsible, through Manual. The National Register Pro- ensure that the funds awarded are su.f- be achieved by October 1, 1985, or the program performance evaluation grams Manual sets forth adminlstra- ficient to generate effects directly as a States will be Ineligible to continue requirements of §61.4(c), for adminis- tive procedures and policies for HPF result of the funds transfer. The re- their approved State program status tration of HPF grants in accordance grants awarded by the Secretary. It quirement for tangible results may not beyond that time. with the requirements of this section. serves as a basic reference for the be waived even If there are many oth- (k) Once a State's proposed process State management of HPF grants. In- erwise eligible applicants for the for funds transfer has been approved §61.7 Transfer of Grants to Certified direct costs may be charged as part of amount set aside for CLG share; by the Secretary and the Secretary Local Governments, the CLG grant only if the CLG sub- States may use additional funds from has obligated the State's annual HPF (a) At least 10 percent of each grantee meets the requirements of the their regular HPF annual grant to sat- grant, the State shall begin the trans. State's annual HPF allocation shall be Manual.Unless the CLG has a current Isfy competing demands. fer of HPF monies unless otherwise designated for transfer by States to indirect cost rate approved by the cog- (2)To promote local preservation ac- prohibited as a consequence of actions CLGs as subgrants. States may trans- nizant Federal agency, only direct tivities, States shall make reasonable described in §61.1(d)(3). • fer more than 10 percent unless other- costs may be charged. : efforts to distribute these monies (1) Each State shall ensure that its wise prohibited.Any year In which the (3) Adhere to any requirements among the maximum number of eligi- procedure is widely publicized so that annual HPF State grant appropriation mandated by Congress regarding the ble local jurisdictions to the extent all eligible local governments have the exceeds $65,000,000, one half of the use of such funds. The Secretary will that such distribution is consistent opportunity to apply for funding. • excess shall also be transferred to advise States of any directives con- with paragraph (f)(1) of this section. Cm) States shall be responsible for CLGs according to procedures to be tamed in annual appropriations laws States also shall seek to ensure a rea- reviewing requests from CLG subgran- provided by the Secretary, regarding the use of HPF State grants sonable distribution between urban tees for grant amendments as required (b) All CLGs shall be eligible to re- that must be applied to local govern- and rural areas In the State. States by 0MB Circular A-87, and for issuing celve funds from the 10 percent (or ments receiving a share of these must ensure that no CLG receives a approval or denial of such requests. If any action by a CLG will result in a greater)CLG share of the State's total grants. annual HPF grant award.The State is (e) The requirements listed in para- sproportlonate share of the alloca- change in the overall grant project or not required to award funds to all gov- graph (d) of this section shall be used . budget requiring NPS approval, the ernments that are eligible to receive by States as minimum requirements (3) States shall make available to State shall obtain such approval prior funds. for local governments receiving HPF the public, upon request, the rationale to granting approval to the CLG sub Cc) CLGs receiving HPF grants from funds; they also shall be included in for the applicants selected and the grantee. A State shall not forward tc the CLG share shall be considered the State's required written grant amounts awarded. NPS any action which is inconsistent subgrantees of the State. Transferred agreement with the local government. (g)Within 180 days of publication of with the purpose or terms of tIn monies shall not be applied as match- States may require specific uses of final rules for local certification and grant.CLG subgrantee requests for re• ing share for any other Federal grant, funds as long as such requirements are funds transfer, but not before submit- visions to the grant are invalid unle& Cd) States shall require all local gov- consistent with the State comprehen- ting their proposed local certification they are in writing and signed by ar ernments receiving a portion of the sive historic preservation planning process,States shall submit to the Sec- authorized official of the State grant local share of the State's annual HPF process and are eligible for HPF Rist- retary for review and approval their ee. grant to satisfy the following mini- ance. proposed procedure for transfer of (n) State performance in transfer mum requirements: (f) Each State shall develop, for ap- funds. ring funds to CLGs shall be revlewe (1) Maintain adequate financial proval by the Secretary, a procedure (h) States shall set up notice proce- by the Secretary during performanci management systems. Local financial for allocating the CLG share of its dures to ensure that all parties likely evaluations and audits of State pro management systems shall be in ac- annual Historic Preservation Fund to be interested are notified and pro- grams as required by Sec. 101(b)(2) 0 cordance with the standards specified grant to eligible local governmens in vide a 60-day period for public corn- the National Historic Preservatloi in 0MB Circular A-102, Attachment the State. States shall articulate a ment on the proposal before it is sub- Act, as amended. •G, "Standards for Grantee Financial clear rationale on which funding deci- mitted to the Secretary. Records of all (0) States may submit grant amend Management Systems." Local finan- slons will be based. Although only ag- comments received during the corn- rnent requests to NPS to reallocat' cial manage,"nt systems shall be au- gregate program matching funds are menting period shall be kept by the monies set aside for local government: ditable In ance with the General required, States may require a match- State and shall be made available to In instances whe_ertifled govern Accountin_fice's Standards for ing share for CLG grants,but if excess the Secretary upon request. ments exist, wisLceive funds, 0 (r <• II §61.8 36 CFR Ch. I (7-1-89 Edition) ,,,;- National Park Service, Interior 't. 61,App. B ..., year of full-time professional experience at Mid-Atlantic Region are qualified to receive funds.Such re- §61.9 Information Collection Require- • a supervisory level in the study of archeo- quests will be considered grant repro- ments. ' ?'fit logical resources of the historic period. Mld•Atlantic Region, 143 South Third St.,phlladelphis,PA 19106,215-597-8068 gramming actions and shall be submit- :: 1. ''. Connecticut Connecticut Historical6 Com- The information collection require- (c) Architectual history. The minimum ted to NPS not less than one calendar • ments contained in this part have •K: professional qualifications in architectual mission. 59 South Prospect Street, Hart- year after the beginning of the fiscal been approved by the Office of Man- • - . history are a graduate degree in architectur- ford,Connecticut 06106,203-566-3005 r:: al history,art history,historic preservation, Delaware:Division of Historical &Cultural year suchf the requests State's shall appropriation. 3507, et and Budget under 44 U.S.C. r or closely related field, with coursework in Affairs,Hall of Records,Dover,Delaware, All requests clearly docu- 3507, et seq., and assigned clearance :i; _,: American architectural history; or a bathe• 19901,302-678-5314 ment the State's attempts to encour- number 1024-0038. The information is �, lor's degree in architectural history,art his- District of Columbia: Dept. of Consumer age and assist local governments in de- being collected as part of the process <; .er tory,historic perservation,or closely related and Regulatory Affairs, 614 H Street, veloping local historic preservation of reviewing the procedures and pro- '-- ".:,. field plus one of the following: NW., Washington, D.C. 20001, 202-535- :.tx; programs pursuant to Section 61.5 of grams of State and local governments • •:.•,. (1) At least two years of full-time expert- 1500 participating in the National historic• • `,,.• ence in research, writing, or teaching in Indiana'Department of Natural Resources, these regulations,applying fn being certified, 608 State Office Building, Indianapolis, and in applying for funding. preservation program. The informs- American architectural history or restora- tion will be used to evaluate those pro- .. • �' tion architecture with an academic lnstitu- Indiana 46204,317-232-4020 (p)The District the require shall bef cedures and programs. The obligation .�.. tion, historical organization or agency, Maine: Maine Historic Preservation Corn- exempted from requirements no Bubo i- to respond is required to obtain a ben- 4:_ museum, or other professional institution; mission,55 Capitol Street,Station 65,Au- §61.7 because there are no subordi- - or gusts,Maine 04333,207-289-2132 nate local governments in the District. gift. (2) Substantial contribution through re- Maryland:State Historic Preservation Off I- If a territory believes that its political - search and publication to the body of schol- cer John Shaw House,21 State Circle,An- subdivisions lack authorities similar to APPENDIX A-PROFESSIONAL t, arly knowledge in the field of American ar- napolls,Maryland 21401,301-269-2851 chitectural history. Massachusetts: Massachusetts Historical those of local governments in other QIIALIFICATIONS STANDARDS (d) Architecture. The minimum profes- Commission, 294 Washington Street, States and hence cannot satisfy the re- In the following definitions,a year of full- sional qualifications in architecture are a Boston, Massachusetts 02108, 617-727- may applys for local certification,yfor exemp- time professional experience need not con- professional degree in architecture plus at 8470 may to the Secretary for 'I'sist of a continuous year of full-time work : least two years of full-time professional ex- Michigan: Michigan History Division, De- tion from the requirements of§61.7. but may be made up of discontinuous pert- r perience in architecture; or a State license partment of State, Lansing, Michigan (q) Where there is no approved ods of full-time or part-time work adding up y. to practice architecture. 48918,517-373-6362New Hampshire: Department of Resources State program,the method for allocat- to the equivalent of a year of full-time expe- (e) Historic Architecture. The minimum Economic Development,t P.O. o rc s ing funds will be determined by the rience. professional qualifications in historic archi- Concord, icw Hampshire P.O. Boxb 856, 271- Secretary In accordance with the pro- (a) History. The minimum professional • Lecture are a professional degree in architec- 3484 or 3558 cedures set forth for States in this sec- qualifications• in history are a graduate ture of State license to practice archttec- New4 Jersey: Department of Environmental Mon. To the extent feasible, there degree in history or closely related field; or ture,plus one of the following: Protection, CN 402, Trenton, New Jersey a bachelor's degree !n history or closely re- (1)At least one year of graduate study in 08625,809-292-2885 should be consistency and continuity lated field plus one of the following: architectural preservation, American archi- New York Office of Parks Recreation & in funding allocation policy of the (1) At least two years of full-time expert- tectural history, preservation planning, or o Preservation,Agency Building#1, CLG program of a State that does not ence in research,writing,teaching,interpre- closely related field;or Historicmpire State Plaza, Albany,g New York have an approved historic preservation tation or other demonstrable professional (2) At least one year of full-time profes- mpir t a8 program. Therefore, if a now disap- activity with an academic institution,histor- sional experience on historic preservation 12238,Ohio: State Historic Preservation Officer, ical organization or agency, museum, or projects.Such graduate study or experience The Ohio Historical Society, ion71 proved State program had an ap- other professional institution;or shall include detailed investigations of his- at 17th Avenue, Columbus, Ohio Interstate 1, proved allocation process, the Secre- (2) Substantial contribution through re- tonic structures, preparation of historic at417th-Avenue, tary will consider it•in the review of search and publication to the body of schol- structures research reports,and preparation 66-15State Historic Preservation any application for funding from ally knowledge in the field of history. of plans and specification for preservation Pennsylvania:Officer, PennsylvaniaStte & CLGs within that State. (b)Archeology.The minimum professional • projects. Museum Commission, BoxHistorical Har- qualifications in archeology are a graduate Museum risbur .Pennsylvania P.O..O. 1026, [49 FR 14899, Apr. 13, 1984, as amended at degree in archeology, anthropology, or • Commonwealth e of Puerto Rico:717-787-2891-2 of 50 FR 35225,Aug.30,19853 closely related field plus: APPENDIX B-INFORMATION SOURCES La San Juan. (1) At least one year of full-time profes-• Cultural Affairs,airs).,a0a Fortaleza, §61.8 Waiver. sional experience or equivalent specialized The following National Park Service Re- Rhode Puerto Rico Rhode Island9-724 Department of Tile Secretary may waive any of the 00 training in archeological research, adrninis- gtonal Offices and State Historic Preserve- Community Affairs, 150 Washington tration or management; tion Offices are sources of information con- Cm ityvideffai Rhode Island 029on 03. requirements of these rules which are (2) At least four months of supervised cerning the programs covered by these regu- Street,e77-2850 not mandated by statute or by govern- field and analytic experience in general lotions. Vermont Secretary, Agency for Develop melt-wide regulations, if, in. his/her North American archeology;and meat & Community Affairs,yfor Develop- opinion,opinion, as expressed in writing to the (3)Demonstrated ability to carry research • Alaska Regional Office meate B Community r, Vermont State, the State historic pre$ervation to completion. - Alaska Regional. Office, 2520 Gambill 05602,802-826-3226 program would benefit from such In addition, to these minimum qualifica- Street,Anchorage.Alaska 99503,907-277- Virgin Islands: Virgin Islands Plannint waiVer, and the purposes, conditions, lions,a professional in prehistoric archeolo- 1886 Board, Charlotte Amalie, St. Thomas gy shall have at least one year of full-time Alaska: Chief of History and Archeology, Virgin Island 00801,809-774-7859 and requirements of the National His- professional experience at a supervisory . Division of Parks,Department of Natural Virginia Virginia Historic Landmarks Corn. torte Preservation Act, as amended, level in the study of archeological resources Resources,, 619Pa s,Department ntAvenue, u mission, 221 Governor Street,nd Richmond would not be compromised. historic archeology shall haver atf gist one 210,Achorage,Alaska 99501,907-274-4646 Virginia 23219,804-786-3142 nn+ Pt. 61,App. B 36 CFR Ch. I (7-1-89 Edition) i:, National Park Service, Inferior §62.3 r' • a;- West Virginia: Department of Culture & Southeast Regional Office V. Nevada:State Historic Preservation Officer, United States or on the Outer Conti- History, State Capitol Complex, Charles- Dept of Conservation & Natural Re- nental Shelf designated by the Secre-• ton,West Virginia 25304,304-348-0244 Southeast Region, 75 Spring St., NW., At- ;;: sources,Rm.123,201 S Fall Street,Carson tary of the Interior that contains an Tanta,Georgia 30303,404-242-2651 • g;• City,Nevada 89710,702-885-5138 outstanding representative example(s) Rocky Mountain Region Alabama: Alabama Historical Commission, %; Northern Mariana Islands: Historic Preser- of the nation's natural heritage, in- 725 Monroe Street,Montgomery,Alabama vation Officer, c/o Department of Com- Rocky Mountain Region, P.O. Box 25287, 36104,205-832-6510 ir• munity & Cultural Affairs, Common- eluding terrestrial communities, equa- Denver Federal Center,Denver,CO 80225, Arkansas: Arkansas Historic Preservation wealth of the Northern Mariana Islands, tic communities, landforms, geological 303-234-2560 Program, Continental Building,Suite 500, • Saipan, Mariana Islands 96950, 701-224- features, habitats of native plant and Colorado: State Historic Preservation Offi- Markham and Main Streets, Little Rock, 2667 animal species, or fossil evidence of cer, Colorado Heritage Center, 1300 Arkansas 72201,501-371-2763 Oregon: State Parks Superintendent, 525 the development of life on earth. Broadway, Denver, Colorado 80203, 303- Florida: Bureau of Historic Preservation, Trade Street SE, Salem, Oregon 97310, "National Registry of Natural Land- 866-3394Department of State, The Capitol, Talla- 503-378-6305 marks" means the official listing of all Illinois: Department of Conservation, 405 hassee,Florida 32301,904-487-2333 • Trust Territory of the Pacific Islands:State national natural landmarks. East Washington, Springfield, Illinois Georgia: Chief, Historic Preservation Sec- Historic Preservation Officer, Land Re- 62706,217-782-3340 tion, Department of Natural Resources, sources Branch,Department of Resources "National Significance" denotes a Iowa:Iowa State Historical Dept.,Office of 270 Washington, Street SW., Room 703C, & Development, Trust Territory of the site which exemplifies one of a natural Historic Preservation, Historical Building, Atlanta,Georgia 30334,404-656-2840 Pacific Islands, Saipan, Mariana Islands region's characteristic biotic or geolog- East 12th Street and Grand Avenue, Des Kentucky: State Historic Preservation 2 96950 is features which has been evaluated, Moines,Iowa 50319,515-281-5113 Office, Kentucky.Heritage Council, Cap- ' Washington:State Historic Preservation Of- using Department of Interior stand- Kansas: Kansas State Historical Society, itol Plaza Tower, 9th floor, Frankfort, ficer, 111 West 21st Avenue,KL-11,Olym- ards, as one of the best examples of 120 West 10th Street, Topeka, Kansas Kentucky 40601,502-564-7005 pia,Washington 98504,206-753-4011 that feature known. 66612,913-296-3251 Louisiana:Office of Cultural Development, "Natural Region" means a distinct Minnesota: Minnesota Historical Society, P.O. Box 44247, Baton Rouge, Louisiana PART 62-NATIONAL NATURAL geographic province having similar 690 Cedar Street, St. Paul, Minnesota 70804,504-925-3880 • LANDMARKS PROGRAM c history, structures, and land- 55101,612-296-2747 Mississippi:Department of Archives&His- forms.iThe basic physiographic char- Missouri:State Department of Natural Re- tory, P.O. Box 571, Jackson, Mississippi sources,P.O.Box 176,Jefferson City,Mis- 39205,601-359-1424 SeC• acteristics of a natural region influ- souri 65101,314-751-4422 North Carolina:Department of Cultural Re- 62.1 Purpose. ence its vegetation, climate, soils, and Montana: Montana Historical Society, 225 sources, 109 East Jones Street, Raleigh, 62.2 Definitions. animal life. The 33 natural regions of North Roberts Street, Veterans Memorial North Carolina 27611,919-733-7305 62.3 Authority. the United States, Puerto Rico,Virgin rec- Building, Helena,. Montana 59601, 406- South Carolina:Department of Archives & 82.4 Natural landmark designation and Islands, and Pacific Trust Territories 449-2694 History, 1430 Senate Street, Columbia, ognition process. The Nebraska State Historical South Carolina 29211,803-758-5816 62.5 National natural landmark criteria. used in the natural•.landmarks pro- Nebraska: s Society, 1500 R Street, Lincoln, Nebraska Tennessee:Department of Conservation,701 62.6 Natural landmark monitoring. gram are based largely ioo Fe of the 68508,402-471-3850 Broadway, Nashville, Tennessee 37203, 62.78 Natural landmark modifications. Unitedogra States" Divisions of the in- New Mexico:Historic Preservation Division, 615-742-6747 62.8 Natural landmark designation remov- United (1928). Examples Office of Cultural Affairs, Villa Rivera, al' dude the Atlantic Coastal Plain, 62.9Generals Room 101, 228 E. Palace Avenue, Santa Western Regional Office provisions. Great Basin, and Brooks Range natu- Fe,New Mexico 87503,505-827-8320 AUTHORITY:Sec. 1,Pub.L.74-292,49 Stat. ral regions. Western Region,450 Golden Gate Ave.,San 666(16 U.S.C.461•et seq.);sec. 2 of Reorga- North Dakota: State Historical Society of Francisco,CA 94102,415-556-7741 nlzation Plan No. 3 of 1950 (34 Stat. 1262). "Owner" means the individual(s) or organization(s) of record that own pr1- North Dakota,Liberty Memorial Building, American Samoa:Territorial Historic Pres- Bismarck, North Dakota 58501, 701-224- ervation Officer, Department of Public SOURCE: 45 FR 81190, Dec. 9, 1980, unless vate land, or the head of the public 2667 Works, Government of American Samoa, otherwise noted. Redesignated at 46 FR ageny or subordinate employee of Oklahoma:State Historic Preservation Off i- Pago Pago,American Samoa 96799 34329,July 1,1981. the pcubl, ic agency to whom such au• cer, Oklahoma Historical Society, Histori- Arizona:Chief, Office of Historic Preserva- §62.1 Pur thority has been delegated, responsi• cal Building, Oklahoma City, Oklahoma Mon, Arizona State Parks, 1688 West pose. 73105,405-521-2491 Adams, Phoenix, Arizona 85007, 602-255- The purpose of these procedures is bl" for administering public land. South Dakota: State Historic Preservation 4174 to set forth the processes and criteria "Secretary" means the Secretary oi Officer, Historical Preservation Center, California State Historic Preservation Off I- the Interior or the designee author University of South Dakota, Alumni used to identify, study, designate, rec- ized to carry out the Secretary's re• House, Vermillion, South Dakota 57069, cer, Office of Historic Preservation, De- ognize, and monitor national natural House, Pertinent of Parks&Recreation,P.O.Box landmarks.The purpose of the natural sponsibilities. Texas: 7-53s Historical Commission, P.O. 2392390, Sacramento, California 95811, 916- landmarks program is to identify and (45 FR 81190,Dec.9, 1980.Redesignated a Box 12276, Capitol Station, Austin,Texas Guam:Department of Parks & Recreation P.O. Box 2950, , encourage the preservation of nation- 46 FR 34329, July 1, 1981, and amended a 78711,512-475-3092 Agana, Guam 96910, 477- ally significant examples of the full 52 FR 5458,Feb.23,1987] Utah:Utah State Historical Society,300 Rio 9620/21,Ext.4 range of ecological and geological fea- 62.3 Authority. Grande, Salt Lake City, Utah 84101, 801- Hawaii:State Historic Preservation Officer, tures that constitute the nation's nat- 533-7039 Department of Land&Natural Resources, ural heritage. • The policies and procedures con Wisconsin:State Historical Society of Wis- P.O. Box 621, Honolulu, Hawaii 96809, • tamed herein are based on the author consin,816 State Street,Madison,Wlscon- 808-548-7460 9 62.2 Definitions. .ity of the Secretary of the Interio) sin 53700,608-262-3266 Idaho: Historic Preservation Coordinator, "National Natural Landmark" under the Historic Sites Act of 193t Wyoming: Wyoming Recreation Commis- Idaho Historical Society, 610 North Julia - means an area of national significance (Pub. L. 74-292, Int. 666, 16 U.S.0 sion, 1920 TiStreet, Cheyenne,Wy- Davis Drive, Boise, Idaho 83706,208-334- oming 820027-7695 2120 located within the boundaries of the 461 et seq.). nn-, • 44 CH 59.1: Definitions applicable to the National Flood Insurance Program (October 1990 edition) "Historic Structure" means any structure that is a. Listed individually in the National Register of Historic Places (a listing maintained by the Department of Interior) or preliminarily determined by the Secretary of the Interior as meeting the requirements for individual listing on the National Register: b. " Certified or preliminarily determined by the Secretary of the Interior as contributing to the historical significance of a registered historic district or a district preliminarily determined by the Secretary to qualify as a registered historic district: c. Individually listed on a state inventory of historic places in states with historic preservation programs which have been approved by the Secretary of the Interior; or d. Individually listed on a local inventory of historic places in communities with historic preservation programs that have been certified either: 1. By an approved state program as determined by the Secretary of the Interior, or 2. Directly by the Secretary of the Interior in states without approved programs. COMPLIANCE REVIEW NFIP • • FLOODPLAIN MANAGEMENT GUIDANCE HANDBOOK Prepared by The Federal Insurance Administration Office of Lads Reduction May, 1988 • • HS-i NOTE:The following excerpt was taken from mint 1e76NFIP for Environmental Impact Statement (p.45-46) published the revised regulations. Of special importance is the note in parenthesis at the end of paragraph IIA2 (d) (i) . it explicitly states that if an ordinance contains the definition of substantial improvement (which includes an exemption for historic structures) , then the granting of variances to exempt historic structures from the NFIP is a duplicative and, therefore, unnecessary procedure. d. Historic Structures The Federal Insurance. Administration has attempted to accommodate the intent of.the National Historic Preservation Act of 1966 in both the flood. plain management and insurance purchase requirements of the NFIP. (1) Flood Plain Management Requirements Through the_application of the variance procedures set out in Section 1910.6 of the regulations (see Part i(D) of this. text), the 'reconstruction, rehabilitation or restoration of an historic structure may . be granted what is essentially .a blanket exception from: the required perfprmance standards. Although FIA encourages the:fullest- possible application of its. standards, it is. realized that: strict compliance- with these requirements could undermine the historic value. of such structures. (Note: In cases where participating communities include the regulation's definition of. "substantial improvement' in their regulatory measures, variances need not be required for historic structures since specific exclusionary language is included therein -- see Part e, below). (ii) Insurance Requirements . Where Federal or federally.-related financial assistance is required. _ for. the_purchase or improvement of a. structure listed on. the- National- Register of Historic. Places or on a State Inventory of Historic Places_ that is located in. a flood hazard area, flood insurance must be purchased; but - it may be purchased at subsidized rates for the first layer .of coverage. (By statutory requirement, second layer coverage must always be priced at actuarial rates). • 4 HS-2 • • Honorable Stewart Bell , Jr. Mayor, City of Winchester 4/18/79 Winchester, Virginia 22601 Dear Mayor Bell: In your. meeting with the City on February 1, 1979 , I promised that my staff would research the impact of the National Flood Insurance Program on Historic Districts. This letter explains why a general exemption for Historic Districts is not necessary to safeguard the- integrity of these Districts. • Currently, the "substantial improvement" definition in Section 1909. 1 of FIA regulations (copy enclosed) exempts any alteration of a structure listed on the National Register of Historic Places. These structures are never considered to be substantially improved and will never need to meet the regulations or be actuarially rated. Accordingly, 1909 . 6 (a) allows a blanket variance for the reconstruction, rehabilitation or restoration of structures listed on these registers. • The Heritage Conservation and Recreation Services (HCRS) in the Department of , Interior maintains the National Register. There • are two classes• of property on the National Register -- _ 1) Structures listed individually on the National Register. 2) Structures located in a National Register Historic District. The community submits a detailed inventory of all structures in the District, some of which are "contributing" to the historic significance of the area • and some of which are "non-contributing. " Only contributing structures are eligible for the tax break or restoration assistance. In addition, there are properties in a' State or locally designated Historic District which can be eligible for the tax incentives, provided the statute forming . the District is certified by the Secretary of the Interior. Under this procedure, there is no formal requirement for an inventory. However, HCRS can determine which structures are contributing on a case by case basis if the property owner submits documentation. These Districts are not listed on the National Register. * NOTE:As stated in the 1976 NFIP EIS (p.45-46 ) , in cases where participating communities include the definition of substantial improvement (Section 59 . 1 ) in their regulatory measures, variances need not be required for historic structures since exclusionary language is included therein. HS-3 Our regulations clearly intended to exempt structures which are individually listed on the National Register. However, structures which are in a National Register Historic District or an approved State or locally designated Historic District, also qualify for the exemption if they contribute to the historic significance of the District. Nationally, an HCRS staff member estimated 1 ,000,000 structures in National Register Historic Districts . It can be assumed that there are many non-contributing structures and vacant lots in Historic Districts. Since there are many non-contributing structures and vacant lots in Historic Districts, we cannot grant a blanket variance for all land within these Districts . The contributing structures within the Districts already qualify for an exemption, should any alterations be necessary. We can not • extend this exemption to new construction on vacant sites . A new structure's compliance with FIA regulations can be in harmony with the District. FIA requires protection to the base flood level but does not specificy the means. The protection does not have to be achieved by unsightly mounds of dirt or bare pilings . The structure could be elevated on pilings and the lower area then covered by an architecturally pleasing facade. Such a structure could be in harmony with surrounding structures and in compliance. with FIA. regulations. However, • the variance procedure • . in Section 1910.6(a) of FIA regulations can apply to new construction - in certain circumstances. . If the standards of * • Section 1910 .6(a) are followed, a community's eligibility in the Program will not be endangered. However, it must be noted that the variance procedure does not affect actuarial rates, so that property owners granted variances may not have to pay very high premiums for flood insurance. Owners of contributing historic structures will never be assessed actuarial rates , even if the structures are improved, since they cannot be substantially improved by definition (ref. Section 1909 . 1) . The only other class of structures which may be of concern are the existing structures in a Historic District which do not contribute to the historic significance. These would have to meet the Program's regulations if they are ever substantially improved, unless they qualified for a variance under section 1910 .6(a) . However, an architect could design the alteration in such a way as to be in harmony with the District and in compliance with FIA regulations. * NOTE:In the section on Variances, see page V-23 for the exact policy on circumstances where variances for new construction are appropriate. . HS-4 • In a floodway ( the inner part of the floodplain reserved for hhfloodwater conveyance) , new construction on vacant lots would be prohibited if any rise in the base flood elevation would result from the encroachment ( ref. Section 1910 . 3 (d) ( 3 ) of FIA regulations) . However, alterations to existing structures would not be affected by this floodway prohibition, since their * obstruction of the flood flows was calculated in the study as part of the determination of the base flood elevation. As you can see, there is already considerable flexibility in the Program for regulating Historic Districts. I believe this flexibility will . allay your concern that Program participation will lead to a deterioration in the quality of the City's Historic District. You expressed a concern that complying with the Program regulations may cause a hardship for handicapped people, since FIA's protection standard would require elevation • of nonresidential construction in the Central Business District. Section 1910.3 (c) ( 3) allows elevation or floodproofing. ** The floodproofing can be dependant on human intervention (e.g. , bolting on metal bulkheads over windows and doors) , just prior to flooding. So, there is no problem assuring access for the handicapped. • This letter has explained how the current Program regulations impact on Historic Districts. However, I * am planning an amendment to limit the applicability of the floodplain management regulations to existing construction which is substantially improved. This rule change would further reduce the impact of the Program on Historic Districts. This proposed rule change will be published in the Federal Register in the near future, and the publication will be followed by a public comment period. If you have any questions , please let me know. Sincerely, 1s5iadr' Gloria. M. Jimenez Federal Insurance Administrator * NOTE:Insert"that are not "substantial improvements" between the words "structures" and "would" . ** NOTE:FEMA publication 102/MAY 1986 , entitled "Floodproofing Nonresidential Structures" provides information on this topic. HS-5 :kt FF Federal Emergency Management Agency �. •r Washington, D.C. 20472 • APR 1 5 E85 . MEMORANDUM FOR: FEMA REGIONAL DIRECTORS - - ACTING REGIONAL DIRECTOR ATTENTION: NATURAL AND TECHNOLOGICAL HAZARDS DIVISION, CHIEFS FROM: Frank H. Thomas � - y" Assistant Administrator Office of Loss Reduction SUBJECT: Structures in Historic Districts National Flood Insurance Program (NFIP) floodplain management criteria contain two provisions intended -to:provide-:relieff or historic structures listed on- the -National-Register =of H'_ - :ic Places or 'a State Register.of -Historic-Places. ection 59 r excludes zany:-alteration-of a- structurelisted on `the'-;Nationalj - • •_Register. dr _State'Inventory fromthe-- term "substantial:amprovemente (Section 60 .6 permits';communities. to_issue-:variances--for the) r-, ,:li reconstruction, rehabilitation or restoration: of structures -listed, j• -on the-National Register-'or a: State "Inventory=without.-regard -for in other' NFIP variance criteria.- These provisions, which were included in the October 26, 1976, Final Rule, were intended to provide relief from the NFIP criteria for structures -that were individually listed on the National Register dr a State Inventory.. Subsequent to the adoption of that rule, FEMA was informed that there were many structures of comparable - historic value to those on- the National Register or a State . Inventory that have not been individually designated because they _ _ . were within the boundaries of designated historic districts. To ;•r accommodate the needs of these historic structures and to support - national goals of encouraging the preservation of historic struc- . tures, /FIA developed a policy which permitted communities-- to treat • _ = :structures that 'contributed to':the historical.;:significance :of.: a -- Jdesignated historic_district"_the same."as•_structures :on•=.the .National - Register-of Historic Places: or :a• .StateInventory-of"Historic -Places`". . This policy was first articulated in a. letter from the then- Federal 7 Insurance Administrator to the City of Winchester, Virginia dated April 18, 1979 .- This letter was subsequently forwarded to the • Advisory Council on Historic Preservation in a June 20 , 1979, letter as FEMA's 'policy on protecting historic properties.' Copies of - :e• - sas ES-6 - 2 - r these letters are attached. Although there was some discussion at the time of ratifying this policy through a rule change, this change has not been made. Since that letter, each time the issue has been - raised, Office of Loss. Reduction and its predecessors have indicated - that "contributing structures" in historic districts can be treated the same as structures. or the National Register of Historic Places - or a State Register of Historic Places. __ _: This issue has been raised on a number of occasions during the past - year and it has become apparent that the policy was not adequately • disseminated to Regional Offices . In addition, recent regulations issued by the Secretary of Interior have necessitated a revisiting of the issue by FIA's policy group. It was decided to reaffirm the policy of permitting communities to treat "contributing structures" in historic districts the same as individual structures on the National Register or a State Inventory. However, these "contributing Structures" must.be "-Certified Historic "Structures"Las .determined by :the Secretary of Interior. of Enclosed is a copy 36 CFR--Part`67 _. - published in t Federal Register on March 12, 1984 which amends - rules for Historic Preservation Certifications pursuant to various tax laws. Section 67.2 contains a definition of "Certified Historic Structure" which includes structures. individually listed on the National Register and structures located in a registered historic • district which are certified by the Secreta_ry_of Interior as being of historic significance the district. Section 67.3(a) contains i standards for dete mining if a structure contributes to- the significance of a district. Our current plans are to incorporate this change into NFIP criteria as part of FY 87 rulemaking. The status of these structures in regards to flood insurance is still being reviewed.. . A larger number of structures will be covered than if the provisions were, limited solely to structures on the National Register of - Historic Places or a State Inventory of Historic Places. However, the structures covered will still be only a small percentage of the structures in a many historic districts. The standards in 36 CFR 67 are' intended to limit the- numbers of structures that can qualify for favorable tax benefits. The trend has been to narrow the range of qualifying structures in each successive piece of tax legislation. We do not believe that the numbers of legitimate contributing structures are such that floodplain management will be significantly • , t undermined._ 'il_- • : j Z A community should not issue a variance or exclude an improvement - : • from the tern "substantial improvment` unless. the owner of the structure- has obtained from the Secretary-of the Interior (or State Historic Officer)- a certification that the structure contributes to the historic significance of the district (is a Certified Historic Structure) ._ Note- that under 36 CFR 67.5(a) (2) a structure does not contribute to the historic significance of the district if it "does :: • • ES-7 - 3 - • not add to the district's sense of time, place and historical development; or one where location, design, setting, materials, workmanships, feeling and association have been so altered or have so deteriorated that the overall integrity of the structure is irretrievably lost." If a structure has been altered so that it is no longer of historical significance, that structure should be reported to the State Historic Officer. A structure that loses its certification of historical significance to the district also loses its favorable tax treatment. In addition, this may justify the initiation of an enforcement action by FEMA against the community since the action may have been intended to circumvent NFIP criteria. If you have any further questions on this issue, please contact myself or Michael Robinson of my staff. • • • • • • • • • • • • • • ES-8 * NOTE:The following excerpts were taken from 36 CFR Part 67 published in the Federal Register (Vol. 49, No. 49) on 3/12/84. Part 67 amends rules for Historic Preservation Certifications pursuant to various tax laws. These excerpts provide- definition of "Certified Historic Structure" and standards for determining if a structure contributes to the significance of an historic district. This information should be used in conjunction with Section 59.1 which includes any structure listed on the National Register or a State Inventory from the term "substantial improvement". It should also be used with Section 60. 6 (a) which permits communities to issue variances for the reconstruction, rehabilitation, or restoration of structures listed on the - National Register or a State Inventory without •regard for other NFIP variance criteria. For additional clarification and proper application of . this information see the 4/15/86 FIA/OLR memo on page HS-5. DEPARTMENT OF THE INTERIOR For certification of significance • ; purposes of the demolition expense 1 purposes.the Secretary will not certify I provisions and the 15 percent and 20 National Paris Service , portions of a building(e.g..one I percent credits any building located in a condominium in a building),but will I-registered historic district is considered • 36 CFR Pert•67 only certify the whole building.A single- a certified historic structure unless the condominium owner within a certified Secretary has determined that it is not Historic Preservation Certifications historic structure could receiver of historic significance-to the district Pursuant to the Tax Reform Act of certification of a rehabilitation provided This presumption of significance is 1976;the Revenue Act of 1978;the Tax the overall rehabilitation project meets required by law. Treatment Extension Act of 1980;and the"Standards for Rehabilitation."The Another comment stated that the the Economic Recovery Tax Act of definition has also been revised in - ' definition of"certified historic 1981 response to comments to make dear structure"as it regards land areas needs AGENCY:National Park Service.Interior. . that rowbouses are considered as . clarification.Does it mean any vacant separate certified historic structures. property in a historic district.even if the ACstoN:Final fie' One comment suggested that property was not originally open space? sustuawvt This final rule restates and ; historical and architectural importance Section 8 of the Tax Treatment makes amendments to the procedures ' should not be based on feasibility of Extension Act of 1980 specifies in Sec.' by which owners desiring tax benefits rehabilitatiax another urged that the 18(b)(4)(A)(iv)that historically important for rehabilitation of historic buildings or regulations clarify'riot feasible to- land areas and certified historic desiring to demolish buidings within rehabilitate."Another comment stated- structures both qualify for the registered historic-districts apply for that determining whether or not a deductions for conservation purposes. certifications pursuant to the Tax building is feasible to rehabilitate However.in subsection(B)land areas Reform Act of 1978;the Revenue Act of should be up to the owner,not the are included within the definition of 1978:the Tax Treatment-Extension Act--i Department of Interior.if the property "certified historic structure."The of 1980:and the Economic Recovery Tax owner is willing to undertake a : Secretary considers that the only land Act of 1981.These tax laws require rehabilitation.the Department should • areas that should fall within the certifications from the Secretary of the encourage such actions.Another definition of"certified historic Interior in order for taxpayers to receive comment suggested omitting reference structure"are those which are part of tax benefits.This rule establishes to whether or not a building is •the setting of a structure or building for procedures whereby taxpayers apply for reasonably feasible to rehabilitate.The which an applicant is requesting these certifications.This rule also Secretary will certify buildings as certified historic structure status. establishes procedures to qualify significant unless the features which Therefore,these land areas are the only historic properties for Federal income give them their historical or - _ _ .land areas which the Secretary will and estate tax deductions for charitable certify.Land areas with no structures .contributions of interests in real architectural significance are either lost are covered by subsection(A).In the or so deteriorated that the overall opinion of the Sectary,anyland area •pTOp integrity of the property has been r which is-listed in the National Register EFFICTIVII DATE These regulations take irretrievably lost The Standards.for or which meets tfie National Register effect on April 11:1984. Evaluating Significance within criteria for evaluation should be--• • "Certrfre hdFffstvrresirctura" --- Registered Historic Districts in§67.5 considered to be a historically important have been revised to clarify this land area. Several commentswere received which suggested that,the references to position. • One comment urged that the One comment questioned how. -a definition of"certified historic portions or remnants of buildings and to building can be considered a certified structure"for donation of easements separate ownership or control should be historic structure for certain purposes should be limited to the entire structure clarified.especially in regard to. and not for other purposes(easements and that if necessary procedures should condominiums and other bnilriingt with vs.tax credit).Since the Internal be established for granting limited multiple.ownership and in regard to Revenue Code specifies different exceptions to this-rule.The Secretary rowhouses and how these will be requirements for"certified historic treated for certification.The definition - structures"for easements and tax • has been revised to clarify that single credits for rehabilitation.the definition condominium units in a larger building of"certified historic structure"treats- and remaining facades in a demolished each somewhat differently. building(except for easement purposes) One comment questioned the are not considered certified historic. statement in the definition that for strictures. • . ES-9 will certify a whole structure.rather In response to these comments.the than a portion.where the whole final regulations have been amended to structure remains but has no control provide for preliminary determinations §67.4 Certifications of historic over whether.for example.an owner for buildings in districts where the significance. donates only an easement on the documentation on file is not complete. (a) Requests for certifications of exterior.Conversely.if only a portion of The certification would become final historic significance should be made by a structure remains but is still once the district documentation has 'the owner to determine— significant.the Secetary may certify it been officially amended. (1) That a building within a registered so that a taxpayer can donate the Subsection 67.5(d):One comment historic district is of historic significance easement suggested that the regulations should to such district or make clear whether certifications of (2) That a building located within a Subsection 67.5:Standards for significance would be issued on the registered historic district is not of Evaluating Significance within appearance of a building before.during. historic significance to such district or Registered Historic Districts. or after a rehabilitation.Accordingly, (3) That a building not yet on the Subsection 67.5(a)(2):Several of the this subsection was added to make clear National Register appears to meet comments objected to the revision to that certifications of significance will be National Register criteria:or Standard(a)(2)from"A building not made on the appearance and condition (4) That a building located within a contributing to the historic significance of a building before rehabilitation was - potential historic district appears to of a district is one which detracts from begun. ontribute to the significance of such the district's sense of time and place"to Subsection 67.5(d)(now 87.5(e)): . contrdistricL "one which does not add."The language Several comments expressed concern in this Standard was revised to make about how•much nonhistoric surface §67.2 Definition clearer that to contribute a building material obscuring a facade needs to be As used in these regulations: must be of historic significance and that removed before a determination of "Certified nhstoric Structure"means a a building is not presumed to contribute significance can be made.The building(and its structural components) to the significance of a district simply. Department recognizes that it is which is of a character subject to the because it is not visually obtrusive.For generally not necessary to remove the allowance for depreciation provided in example.a 20th century revival style entire nonhistoric surface material to Section 157 of the Internal Revenue house which reproduces characteristics determine if a building can be certified Code of 1954 which is either(a) of historic buildings in a district and has revised the subsection to clarify individually listed in the National significant for its 19th century domestic the conditions under which it may be Register.or(b)lilocated in a registered architecture is not an historic structure necessary for an owner to remove historic district and certified by the and does not contribute to the ' nonhistoric surface material.and the Secretary as being of historic significance of the district simply extent to which removal might be significance to the district Portions of because it is compatible in style and required This provision will allow for .. larger buildings,such as single . scale and'does not visually detract from definitive certifications.rather than the condominium apartment units.are not 'certifications° d gn tho the district. conditional cEivaiwuu.". __._ tuuc}.cIIa.t t:tly considered certified Subsection 67.5(a)(2):Several past comments urged that the language "" ' historic structures:Rowhouses:even referring to"where physical §67 5 Standards for evaluating :with abutting or party walls.are considered as separate buildings. deterioration and/or structural damage signtficanca within registsrod historic has made it not reasonably feasible to districts rehabilitate the building"should be. (a)Buildings located within registered • removed from the Standard.The historic districts are reviewed by the ' subsection was revised accordingly. 5m-e ,to determine if they contribute Buildings are only certified as not to the significance of the district by 'significant where physical deterioration i a 1 the folio "Standards for and/or structural damage is such that pp ym8 wing the"overall integrity of the property has Evaluating Significance within been irretrievably lost."This last Registered Historic Districts." language remains in the Standard and (1)A building contributing to the adequately addresses this concern historic significance of a district is one Subsection 67.5(c):Several comments which by location,design,setting, urged that provision be made for materials wor�*T+�n�hip,feeling and certifications of significance which association adds to the district's sense would not be consistent with of time and place and historical documentation on file with the National development Park Service,if the State is making (2)A building not contributing to the • efforts to compile the necessary historic significance of a district is one information(i.e_if the National Register which does not add to the districts historic district nomination needs seine of time ansi place and historical amending).Without such provision. development:or one where the location, • program flexibility is limited.It was design.setting,materials.workmanship. further stated that developers may feeling and association have been so complete or abandon projects before altered or have so deteriorated that the • receiving guidance and limited overall integrity of the building has been • assurance of certification.One comment irretrievably lost. suggested that this lack of flexibility is •(3)Ordinarily buildings that have at odds with IRS flexibility in allowing been builtwithin the past 5O years shall 30 months to obtain certification under not be considered to contribute to the Section 191 of the Internal Revenue significance of a district unless a strong • Code. justification canceming their historical i ' or architectural merit is given or the historical attributes of the district are considered to be lees than 50 years old Chapter 267 http://www.leg.state.fl.us/citizen/...s/statutes/1997/ch0267/tit10267.hti CHAPTER 267 HISTORICAL RESOURCES 267.011 Short title. 267.021 Definitions. 267.031 Division of Historical Resources. 267.061 Historic properties; state policy,responsibilities. 267.0612 Historic Preservation Advisory Council; creation; membership; powers and duties. 267.0617 Historic Preservation Grant Program. 267.062 Naming of state buildings and other facilities. 267.071 Historical museums. 267.072 Museum of Florida history programs. 267.075 The Grove Advisory Council; creation; membership;purposes. 267.081 Publications. 267.11 Designation of archaeological sites. 267.12 Research permits; procedure. 267.13 Prohibited practices; penalties. 267.14 Legislative intent. 267.16 Florida Folklife Programs. 267.161 Florida Folklife Council. 267.162 Florida Folklife Grant Program. 267.17 Citizen support organizations; use of state property; audit. 267.171 St. Augustine; contract for preservation of historic properties. 267.172 Tallahassee; Florida Keys; contracts for historic preservation. 1 of 1 11/25/98 11:31 A Section 267.011 http://www.leg.state.fl.us/citizen/...tes/1997/ch0267/E011_.HTMn0267.01 267.011 Short title.--This act shall be known as the "Florida Historical Resources Act." History.--s. 1,ch.67-50;s.42,ch. 86-163. of 1 11/25/98 11:31 AM Section 267.021 http://www.leg.state.fl.us/citizen/...tes/1997/ch0267/E02I_.HTM#0267.02 267.021 Definitions.--For the purpose of this act, the term: (1) "Division" means the Division of Historical Resources of the Department of State. (2) "Agency" means any state, county, or municipal officer, department, division,board,bureau, commission, or other separate unit of government created or established by law. (3) "Historic property" or "historic resource" means any prehistoric or historic district, site,building, object, or other real or personal property of historical, architectural, or archaeological value. These properties or resources may include,but are not limited to,monuments,memorials, Indian habitations, ceremonial sites, abandoned settlements, sunken or abandoned ships, engineering works, treasure trove, artifacts, or other objects with intrinsic historical or archaeological value, or any part thereof,relating to the history, government, and culture of the state. (4) "Preservation" or"historic preservation" means the identification, evaluation,recordation, documentation, analysis, recovery, interpretation, curation, acquisition,protection,management, rehabilitation, restoration, stabilization,maintenance, or reconstruction of historic properties. (5) "National Register of Historic Places" means the list of historic properties significant in American history, architecture, archaeology, engineering, and culture,maintained by the Secretary of the Interior, as established by the National Historic Preservation Act of 1966, as amended. (6) "Folklife" means the traditional expressive culture shared within the various groups in Florida: familial, ethnic, occupational,religious, and regional. Expressive culture includes a wide range of creative and symbolic forms such as custom,belief, technical skill, language, literature, art, architecture, music, play, dance, drama,ritual,pageantry, and handicraft,which forms are generally learned orally,by imitation, are maintained or perpetuated without formal instruction or institutional or in performance and - direction. (7) "Florida history museum" means a public or private nonprofit institution which is established permanently in this state for the purpose of promoting and encouraging knowledge and appreciation of Florida history through the collection,preservation, exhibition, and interpretation of artifacts and other historical properties related to Florida history and the primary role of which is to collect and care for artifacts and other objects of intrinsic historical or archaeological value and exhibit them regularly through a facility or facilities owned or operated by the institution. (8) "Official Florida Historical Marker" means any marker,plaque, or similar device awarded, approved, or administered by the Division of Historical Resources for the purpose of recognizing and informing the general public about historic properties,persons, events, and other topics relating to the history and culture of the state. History.--s.2,ch. 67-50;ss. 10,35,ch. 69-106;s.72,ch.71-377;s.3,ch.79-322;s. 1,ch.81-124;s. 1,ch. 85-281;s.43,ch. 86-163;s.4,ch.89-359;s.2,ch.94-190. Note.--Subsection(6)former s.265.135. of 1 11/25/98 11:32 A' Section 267.031 http://www.leg.state.fl.us/citizen/...tes/1997/ch0267/E031_.HTM#0267.031 267.031 Division of Historical Resources.-- (1) The division shall adopt such rules as deemed necessary to carry out its duties and responsibilities under this chapter. (2) The division may make and enter into all contracts and agreements with other agencies, organizations, associations, corporations and individuals, or federal agencies as it may determine are necessary, expedient, or incidental to the performance of its duties or the execution of its powers under this chapter. (3) The division may accept gifts, grants,bequests, loans, and endowments for purposes not inconsistent with its responsibilities under this chapter. (4) All law enforcement agencies and offices are authorized and directed to assist the division in carrying out its duties under this chapter. History.--s.3,ch. 67-50;ss. 10,25,27,35,ch. 69-106;s.73,ch.71-377;s. 1,ch.73-280;s.4,ch.78-323;s. 1,ch.81-173;s. 11,ch.83-85;s. 130,ch. 83-217;s.44,ch. 86-163. 'f 1 11/25/98 11:32 AM ection 267.0612 http://www.leg.state.fl.us/citizen/...es/1997/ch0267/E0612_.HTM#0267.061: 267.0612 Historic Preservation Advisory Council; creation; membership; powers and duties.--In order to enhance public participation and involvement in the preservation and protection of the state's historic and archaeological sites and properties, there is created within the Department of State the "Historic Preservation Advisory Council." (1) The council shall consist of 12 members who represent different areas of the state, are appointed by the Secretary of State, and are qualified, through the demonstration of special interest, experience, or education, in the preservation of the state's historic and archaeological sites and properties, as follows: (a) At least three members shall have practical experience in the preservation of historic or archaeological sites and properties as demonstrated in one or more of the following fields: architecture, architectural history,historic preservation,history, or archaeology. (b) Each of at least three members shall be the president, chief elected officer, or other duly authorized representative of a statewide historic preservation, architectural,historical, or archaeological organization. (c) Each of at least three members shall be the president,chief elected officer, or other duly authorized representative of a local historic preservation board, commission, or nonprofit organization. • (2) Members shall be appointed for 4-year terms, except for an appointment to fill an unexpired term, in which event the appointment shall be for the remainder of the unexpired term only.No person shall serve more than two consecutive terms on the council. (3) Members shall elect a chairperson annually.No member shall be elected to consecutive terms as chairperson. (4) The council shall meet at the call of its chairperson, at the request of a majority of its membership, or " entitled to for at the request of the division. Members shall serve without pay,but shall be ei"lti Dieu reimbursement_ their expenses in carrying out their official duties, as provided in s. 112.061. (5) All action taken by the council shall be by majority vote of those present. The director of the division or the director's designee shall serve without voting rights as secretary to the council. The division shall provide necessary staff assistance to the council. (6) It shall be the responsibility of the council to provide assistance, advice, and recommendations to the division in: (a) Establishing priorities for the identification, acquisition,protection, and preservation of historic and archaeological sites and properties. (b) Establishing criteria for use in assessing the significance of historic and archaeological sites and properties. (c) Evaluating proposals for awards of historic preservation grants-in-aid administered by the division. Pursuant thereto, the council shall review and evaluate all proposals for grants-in-aid and shall make recommendations, including a priority ranking,reflecting such evaluation. In making such evaluation and recommendations, the council shall, at a minimum, consider the purpose, economic and other public benefit, location, compatibility with statewide historic preservation priorities, and cost of each proposal for grant assistance. (d) Providing an active outreach program to encourage public understanding of and involvement in the f- 11/25/98 11:33 A Section 267.0612 http://www.leg.state.fl.us/citizen/...es/1997/ch0267/E0612_.HTM#0267.0612 preservation of the state's historic and archaeological sites and properties. (e) Identifying and expressing public goals for historic preservation and gathering public ideas necessary for the formulation of alternative policies. (f) Preparing rules relating to the historic preservation programs administered by the division pursuant to this chapter. (7) It shall be the additional responsibility of the council to provide such other assistance and advice to the division as may be required from time to time in matters pertaining to the protection and preservation of the state's historic and archaeological sites and properties. History.--ss. 1,2,ch. 83-103;s.48,ch. 86-163;s. 1,ch. 87-33;ss. 1,2,ch.90-26;s. 5,ch. 91-429;s.4,ch.94-190;s. 855,ch. 95-148. 112 11/25/98 11:33 AM Section 267.0617 http://www.leg.state.fl.us/citizen/...es/1997/ch0267/E0617_.HTM#0267.0617 267.0617 Historic Preservation Grant Program.-- (1) There is hereby created within the division the Historic Preservation Grant Program,which shall make grants of moneys appropriated by the Legislature,moneys deposited pursuant to ss. 550.0351(2) and 607.1901(2)(g), and moneys contributed for that purpose from any other source. The program funds shall be used by the division for the purpose of financing grants in furtherance of the purposes of this section. (2) The division is authorized to conduct and carry out a program of historic preservation grants-in-aid, including matching grants, to any department or agency of the state; any unit of county, municipal, or other local government; any corporation, partnership, or other organization,whether public or private or whether or not for profit; or any individual for projects having as their purpose the identification, acquisition, protection,preservation, rehabilitation,restoration, or construction of historic sites and properties, or Florida history, or the planning of such activities. Funds appropriated from general revenue for the historic preservation grants-in-aid program shall not be provided for a project owned by private individuals or owned by for-profit corporations. All moneys received from any source as appropriations, deposits, or contributions to this program shall be paid and credited to the Historical Resources Operating Trust Fund. (3) All grants of state funds to assist the preservation of historic properties shall be made from the Historical Resources Operating Trust Fund and may be awarded only pursuant to applications for such assistance made to the Division of Historical Resources. The Historic Preservation Advisory Council shall review each application for a historic preservation grant-in-aid and shall submit annually to the Secretary of State for approval lists of all applications that are recommended by the council for the award of grants, arranged in order of priority. The division may allocate grants only for projects that are approved or for which funds are appropriated by the Legislature. (4) The Division of Historical Resources may accept and administer moneys appropriated to it for the purpose of providing grants for the projects approved by the Secretary of State. (5) The Division of Historical Resources shall adopt rules prescribing the criteria to be applied by the Historic Preservation Advisory Council in recommending applications for the award of grants and rules providing for the administration of the other provisions of this section. History.--s.3,ch. 78-357;s. 1,ch. 81-126;s. 170,ch. 81-259;s. 1,ch. 84-248;s.49,ch. 86-163;s. 8,ch. 88-137;s.2,ch. 90-26;s.3,ch.90-267;s.5,ch.91-429;s.59,ch.92-348;s.5,ch.94-190;ss.28,31,ch.95-242;s. 10,ch.96-418. 1 of 11/25/98 11:33 A Ch. 92-159 LAWS OF FLORIDA Ch. 92-159 (13) The Department of State shall adopt rules as provided in chapter 120 for the implementation of this section.These rules must specify the criteria for deter- mining whether a property is eligible for exemption; guidelines to determine im- CHAPTER 92:159 provements to historic properties which qualify the property for an 'exemption; criteria for the review of applications for exemptions;procedures for the cancella- tion of exemptions for violations to the agreement required by subsection(7);the manner in which local historic preservation offices may he certified as qualified to review applications;and other requirements necessary to implement this section. An act relating to ad valorem tax exemptions;creating s.196.1997,F.S.;pro- viding that the board of county commissioners of any county or the gov- Section 2. Section 196.1998, Florida Statutes, is created to read: erning authority of any municipality may adopt an ordinance to grant ad 196.1998 Additional ad valorem tax exemptions for historic properties open to valorem tax exemptions under s.3,Art.VII of the State Constitution for the public.— improvements to historic properties which are a result of the restoration, renovation,or rehabilitation of those properties;specifying requirements (1) If an improvement qualifies a historic property for an exemption under a. for ordinances granting exemptions;providing procedures for application 196.1997, and the property is used for non-profit or governmental purposes and for an exemption;requiring the property owner to covenant to maintain is regularly and frequently open for the public's visitation, use, and benefit, the the character of the property during i dur the exemption period and providing board of county commissioners or the governing authority of.the municipality by for assessment of previously durnged taxes upon violation of the cove- ordinance may authorize the exemption from ad valorem taxation of up to 100 per- nant;establishing qualifications for applicants to be approved for an ex- cent of the assessed value of the property, as improved, any provision of s. emption;requiring property appraisers to provide certain information to 196.1997(2)to the contrary notwithstanding,if all other provisions of that section the local governing authorities;providing duties of the Division of - are complied with;provided,however,that the assessed value of the improvement ical Resources of the Department of State or local historic preservation must he equal to at least50% of the total assessed value of the property as im- offices;requiring the Department of State to adopt certain rules;creating proved.The exemption applies only to real property to which improvements are s.196.1998,F.S.;providing additional ad valorem tax exemptions for his- mnde by or for the use of the existing owner. In order for the property to qualify tonic properties open to the public;providing for additional rules;provid- for the exemption provided in this section,any such improvements must be made ing a contingent effective date. on or after the day the ordinance granting the exemption is adopted. (2) In addition to meeting the criteria established in rules adopted by the De- Be It Enacted by the Legislature of the State of Florida: partment of State tinder s. 196.1997,a historic property is qualified for an exemp- Section 1. Section 196.1997, Florida Statutes,is created to read tion under this section if the Division of Historical Resources,or the local historic preservation office, whichever is applicable, determines that the property meets 196.1997 Ad valorem tax exemptions for historic properties.— the criteria established in rules adopted by the Department of State under this sec- (1) The board of county commissioners of any county or the governing authori- tion. ty of any municipality may adopt an ordinance to allow ad valorem tax exemptions (3) In addition to the authority granted to the Department of State to adopt under a. 3,Art. VII of the State Constitution to historic properties if the owners rules under a. 196.1997, the Department of State shall adopt rules as provided in are engaging in the restoration,rehabilitation,or renovation of such properties in chapter 120 for the implementation of this section,which shall include criteria for accordance with guidelines established in this section. determining whether a property is qualified for the exemption authorized by this (2) The board of county commissioners or the governing authority of the mu- section, and other rules necessary to implement this section. nicipality by ordinance may authorize the exemption from ad valorem taxation of Section 3. This act shall take effect on the effective date of an amendment to up to 100 percent of the assessed value of all improvements to historic properties the State Constitution approved by the electors at the general election to be held which result from the restoration,renovation,or rehabilitation of such properties. in November 1992 which authorizes the governing authority of any county or mu- The exemption applies only to improvements to real property. In order for the nicipality to grant ad valorem tax exemptions for rehabilitation or renovation of property to qualify for the exemption,any such improvements must be made on historic properties. or after the day the ordinance authorizing ad valorem tax exemption for historic Became a law without the Governor's approval April 9, 1992. properties is adopted. Filed in Office Secretary of State April 8, 1992. (3) The ordinance shall designate the type and location of historic property for which exemptions may be granted,which may include any property meeting the provisions of subsection(11),which property may be further required to be located within a particular geographic area or areas of the county or municipality. (4) The ordinance must specify that such exemptions shall apply only to taxes levied by the unit of government granting the exemption.The exemptions do not w cn 1 co 4 CODING: Words stricken are deletions;words underlined are ndoit.ions. CODING: Words stricken are deletions; words stn�erlined are additions.