A Layperson's Guide to Historic Preservation

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A LAYPERSON’S GUIDE TO HISTORIC PRESERVATION LAW A Survey of Federal, State, and Local Laws Governing Historic Resource Protection

By Julia H. Miller A LAYPERSON’S GUIDE TO HISTORIC PRESERVATION LAW A Survey of Federal, State, and Local Laws Governing Historic Resource Protection By Julia H. Miller

Historic preservation and the law have been surprising but comfortable bedfellows for well over a century. When the words “historic preservation” are pronounced, however, visions of stately houses or monumental buildings rather than preservation ordinances or easement agreements readily come to mind. Most people are unaware of the complex array of legal tools that generally lie behind a particular site’s rehabilitation or preservation.

Important laws exist at the federal, state, and local level that require preservation in some cases and encourage preservation in others. Behind these laws rest public policy considerations that attempt to balance the need to preserve important resources with other governmental objectives such as economic development and that also address the rights of individual property owners who may be affected. Some laws limit or restrict changes to historic property while others seek to place preservation on equal footing with alternative courses or actions, such as demolition and new construction. Historic resources may be listed in any of three types of registers: the National Register of Historic Places, a state register of historic places, or a local listing of historic Historic preservation laws are important tools landmarks and districts. that can shape, modify, strengthen, or other- Photo by Adrian Scott Fine. wise improve preservation programs. A basic understanding of the laws affecting historic preservation will help you identify the full other laws that can either enhance or through a formal process that lists build- range of options available to protect a historic restrict historic resource protection efforts. ings, structures, districts, objects, and sites building or archeological site. It will help you It also lists resources on preservation law in a historic register or inventory based on evaluate the strengths and weaknesses of and related issues designed to help you find specific criteria. existing laws in your community and to additional information and advice. understand the limits of those laws when fully Historic resources (sometimes called “her- implemented. Familiarity with preservation DEFINING THE HISTORIC itage” or “cultural” resources) may be listed law will also help you respond to individual RESOURCE: PROPERTY in any of three types of registers: The threats as they arise and to develop strategies IDENTIFICATION AND LISTING National Register of Historic Places, a state on how best to avoid or reduce the likelihood register of historic places, or a local listing for such threats in the future. The first step in understanding preservation of historic landmarks and districts. To be laws is to determine what properties are eligible for listing, properties must meet This booklet explains the laws and legal subject to protection. Historic resources certain statutory criteria generally based principles that protect historic resources. It include a wide range of properties ranging on historical, architectural, archeological, provides a basic overview of the laws gov- from buildings and other structures to or cultural significance. erning historic resources at the federal, state, archeological or culturally significant sites. and local level, along with a number of In most cases, resources are identified

PreservationBooks 1 State Registers Many states maintain their own register of historic places, which may be more or less inclu- NATIONAL REGISTER CRITERIA sive than the National Register of Historic The National Park Service applies specific criteria to evaluate property nominated for inclu- Places. As with the National Register, listing in sion in the National Register of Historic Places. These criteria, codified at 36 C.F.R. § 60.4, a state register tends to be honorific. In some often serve as the basis for listing in state and local registers as well. cases, however, it may trigger regulatory protection or govern whether a property owner National Register Criteria for evaluation. The quality of significance in American history, may qualify for favorable tax treatment. architecture, archeology, engineering, and culture is present in districts, sites, buildings, structures, and objects that possess integrity of location, design, setting, materials, Locally Designated Landmarks workmanship, feeling, and association and and Historic Districts Properties may also be designated as individ- (a) that are associated with events that have made a significant contribution to the ual landmarks or as contributing structures broad patterns of our history; or within a historic district pursuant to a local (b) that are associated with the lives of persons significant in our past; or historic preservation ordinance. Unlike listing (c) that embody the distinctive characteristics of a type, period, or method of construction, in the National Register, designation under or that represent the work of a master, or that possess high artistic values, or that local ordinances often affects a property represent a significant and distinguishable entity whose components may lack indi- owner’s ability to change his or her property vidual distinction; or in ways that would harm its historic or archi- (d) that have yielded, or may be likely to yield, information important in prehistory or history. tecturally significant character. Sometimes properties designated under local ordinances may be eligible for significant tax benefits, such as reductions in local property taxes.

National Register of Historic Places responsible for listing and determining eligibil- Locally designated properties may also Established under the Historic Sites Act ity for listing in the National Register, although enjoy flexible application of land-use laws of 1935, 16 U.S.C. §§ 461, et. seq., and the designation process usually begins with through the waiver of use and bulk restric- expanded by the National Historic the state historic preservation office. A prop- tions or benefit by transferable development Preservation Act of 1966, as amended, erty owner may prevent the inclusion of his rights programs. 16 U.S.C. §§ 470a, et. seq., the National or her property in the National Register by Register is the official list of historic formally objecting to the listing. This will REGULATORY APPROACHES resources at the national level. The National not prevent the application of laws affecting TO HISTORIC RESOURCE Register includes districts, sites, buildings, historic properties that are eligible for inclu- PROTECTION structures, and other objects that are signifi- sion in the National Register, such as the cant in American history, architecture, arche- Section 106 review process, discussed later. Historic resources may be protected from ology, engineering, and culture. It includes both governmental and private actions at the not just nationally significant resources, but The National Register includes a special cat- federal, state, and local level. The nature of also those having state or local significance. egory of properties, known as National the restrictions and degree of regulation vary Historic Landmarks (NHLs). These proper- depending upon the players and, in some Initially designed as a planning tool for federal ties are generally of exceptional value to the cases, the type of property being regulated. agencies, the National Register’s primary pur- nation as a whole. As with other properties In general, historic resource laws governing pose is to identify the historical and cultural listed in the National Register, NHL designa- governmental actions do not require preser- resources of our nation. While listing in the tion is primarily honorific. National Historic vation every time. Rather, they provide a National Register is primarily honorific, the Landmarks, however, may receive a higher process for balancing preservation concerns National Register plays a central role in the degree of protection from federal actions. with other governmental objectives. In con- federal regulatory protection scheme, enables trast, historic preservation laws governing property owners to qualify for federal tax ben- The criteria for designation, established by private actions generally seek to protect the efits, and in some cases may be used as the the Department of the Interior, are set forth historic resource by regulating alterations, basis for listing at the state and local level. at 36 C.F.R. Part 60. Regulations governing demolitions, or other changes that could National Historic Landmarks are codified at destroy or impair significant features of the The National Register of Historic Places is 36 C.F.R. Part 65. The National Park Service resource. These laws, typically enacted as maintained by the Secretary of the Interior publishes an annual cumulative listing of local historic preservation ordinances, do not through the National Park Service. The Park National Register properties in the Federal Service’s Keeper of the National Register is Register each year.

2 prohibit change altogether, but rather estab- local nonprofit, historic preservation organi- While most laws falling within this category lish a mechanism to ensure that the integrity zations are often equipped to provide are purely procedural in nature, (meaning of the resource is not compromised. detailed assistance. National Trust Regional that governmental bodies must follow a spe- Offices, listed on the inside back cover of cific process to fulfill their statutory obliga- Finally, a few laws, generally enacted at the this booklet, can also provide these contacts. tion), there are a few laws, enacted at both federal level, do not fit neatly into either the federal and state level, that afford historic category of resource protection laws. These The Regulation of Governmental resources substantive protection (meaning laws are designed to address specific types Actions Affecting Historic Resources that governmental bodies must take affirma- of actions governing specific types of Protection of historic resources from harmful tive steps to protect the resource). These laws resources. Archeological protection laws, governmental actions is generally accom- require agencies to avoid harming historic Native American cultural resource laws, plished through historic preservation acts and resources unless there is no alternative, and and laws protecting historic shipwrecks environmental protection laws. These laws do then, only if the harm is minimized. fall into this category. not require that federal, state, or local governments preserve historic resources where other Public participation is essential to the enforce- Specific information about a particular law can competing governmental interests may be at ment of laws protecting historic resources generally be obtained from the federal, state, or stake. Rather they require governmental agen- from governmental actions. Many statutes local agency directly responsible for the law’s cies to comply with specific procedures to give individuals and organizations the right to implementation. Besides the National Park ensure that the effects of their actions are fully sue and the ability to recover attorneys’ fees. Service and the Advisory Council on Historic considered before embarking on otherwise Preservation—the primary federal agencies harmful activity. Governmental agencies are Federal Preservation Laws charged with the implementation of federal generally directed to identify historic resources Three major laws protect historic resources preservation laws—it may be useful to contact and weigh and assess competing factors, from federal government actions: the National your state historic preservation office—the including historic resource protection along Historic Preservation Act, 16 U.S.C. §§ 470 state agency responsible for historic preser- with other environmental and socio-economic et. seq.; the National Environmental Policy vation matters—or your local preservation concerns, in deciding how and whether a Act, 42 U.S.C. §§ 4321-4347; and Section 4(f) or planning commission. Statewide and/or project or activity should proceed. of the Department of Transportation Act, 49

FEDERAL HISTORIC PRESERVATION LAWS AT A GLANCE

NEPA Section 4(f) Section 106

42 USC § 4332 49 USC § 303; 6 USC § 470f Citations 40 CFR Part 1500 23 USC § 138 36 CFR Part 800 23 CFR § 771.135 (revised July 6, 2004)

all environmental resources, historic sites (nat’l, state, or local); National Register listed or eligible Properties Protected including cultural & historic parks; wildlife refuges; recreation areas

Triggering Federal Action “major federal action” “approval” of transportation project “undertaking”

“significantly affecting the quality “use” (subject to “de minimis” any “effect” Threshold Effect of the human environment” exception); or constructive use (“substantially impair”)

disclose & consider impacts avoid unless not feasible & prudent; “take into account” Standard for Consideration all possible planning to minimize harm

Procedure v. Substance procedural substantive Combination (procedure + MOA)

EIS or EA; 4(f) determination or “consultation” negotiation; Mechanism for Compliance public hearings chapter of EIS or EA MOA

EPA review; DOT has final authority; SHPO (sometimes ACHP) at the Involvement of CEQ referral in extreme cases Interior comments table, with an opportunity to object to effect determinations Other Agencies Litigation is the only way to Litigation is the only way to appeal & historic significance issues appeal agency decisions. agency decisions.

PreservationBooks 3 U.S.C. § 303. Other statutes, more narrow in The NHPA creates a specific role for state a federal agency may delegate certain scope, include the Antiquities Act of 1906, 16 and local governments, Native American Section 106 responsibilities to a state or U.S.C. §§ 431-433, the Historic Sites Act of tribes, and Native Hawaiian organizations in local government, the federal agency is ulti- 1935, 16 U.S.C. §§ 461-467, and the Surface carrying out the Act’s specific directives. A mately responsible and may be held legally Mining Control and Reclamation Act, 30 state or tribe electing to establish a historic accountable for Section 106 compliance. U.S.C § 1272(e). In addition, a number of fed- preservation program (for which federal eral statutes relate only to specific resources. grant funding is available) is responsible for The statutory provision establishing the identifying and nominating properties for list- Section 106 review process is relatively ing in the National Register of Historic succinct. It states: Places and working with federal agencies in The National Historic Preservation implementing the Section 106 review process. The head of any Federal agency having Act is the key federal law that (Regulations governing state, tribal, and local direct or indirect jurisdiction over a pro- establishes a federal policy for the government programs under the NHPA are posed Federal or federally assisted preservation of cultural and historic set forth at 36 C.F.R. Part 61). State historic undertaking in any State and the head of any Federal department or indepen- resources in the United States. preservation offices are also responsible for administering a federal assistance program dent agency having authority to license for historic preservation projects and certify- any undertaking shall, prior to the ing local governments who wish to assume approval of the expenditure of any specific responsibilities under the NHPA. For Federal funds on the undertaking or The National Historic Preservation Act example, a certified local government may prior to the issuance of any license, as The National Historic Preservation Act of nominate property for listing in the National the case may be, take into account the 1966, 16 U.S.C. §§ 470a to 470w-6, (NHPA), Register. To be certified, local governments effect of the undertaking on any district, amended in 1980, and again in 1992, is the must meet certain criteria such as establishing site, building, structure, or object that is key federal law that establishes a federal policy a preservation commission and operating a included in or eligible for inclusion in for the preservation of cultural and historic preservation program that designates and the National Register. The head of such resources in the United States. The law estab- protects historic properties. Federal agency shall afford the Advisory lishes a national preservation program and a Council of Historic Preservation estab- system of procedural protections, which The NHPA establishes a Historic Preservation lished under §§ 70i-470v of this title a encourage both the identification and protec- Fund in the U.S. Treasury. Money from this reasonable opportunity to comment tion of historic resources at the federal level, fund is made available to the states through with regard to such undertaking. and indirectly, at the state and local level. annual appropriations by Congress. At least 10 percent of a state’s allocation must be This provision, in effect, directs federal The NHPA can be broken down into three transferred to certified local governments to agencies to determine whether any proper- major components. fund local historic preservation projects. ties listed or eligible for listing in the National Register will be adversely affected 1. It authorizes the expansion and mainte- Section 106 is the regulatory heart of the by proposed “undertakings,” and if so, pro- nance of the National Register of NHPA. Codified at 16 U.S.C. § 470f, Section vides the Advisory Council on Historic Historic Places, the official federal listing 106 requires that federal agencies consider the Preservation, an independent federal agency, of “districts, sites, buildings, structures, effects of their actions on historic resources with an opportunity to comment. and objects significant in American his- before funding, licensing, or otherwise pro- tory, architecture, archeology, engineer- ceeding with projects that may affect historic For the most part, the Advisory Council, ing, and culture.” resources listed in, or eligible for listing in the whose members include heads of different 2. It establishes a protective review process National Register of Historic Places. federal agencies, a governor, mayor, a (known as “Section 106 review process”) Native American or Native Hawaiian mem- to ensure that federal agencies consider The kinds of undertakings requiring Section ber, and preservation experts (the National the effects of federally licensed, assisted, 106 review are broad and inclusive and may Trust for Historic Preservation and the regulated, or funded activities on historic affect historic resources either directly or National Conference of State Historic properties listed or eligible for listing in indirectly. For example, a federal agency Preservation Officers serve as ex officio the National Register. may be required to perform a Section 106 members), participates as a facilitator rather 3. It requires federal agencies to locate, review before approving funds to build a than regulator of federal agency actions. inventory, and nominate properties to the new convention center in or near a historic Located in Washington, D.C., the Council, National Register, assume responsibility district or before issuing a permit to fill in a through its staff, works with federal agen- for preserving historic properties, and use wetlands area that would allow the con- cies and state historic preservation offices to historic buildings to “the maximum struction of new houses that could harm the meet their Section 106 responsibilities. The extent possible.” historic character of a nearby village. While agency also assists federal agencies in satis-

4 fying their stewardship requirements under resources besides those being demolished ronmental statements available to the the NHPA (Section 110) and encourages will be adversely affected, the agency may President, the Council on Environmental coordination and consistency of federal agree to redesign the project so that it is Quality (CEQ), and the public. agency laws and programs with national more in keeping with the scale and style of policy on historic preservation. the remaining resources. Depending upon the magnitude of the impact, agency responsibilities under NEPA The Section 106 review process may encom- Regulations implementing Section 106 have may be achieved through the preparation of pass the identification of protected resources, been promulgated by the Advisory Council an Environmental Assessment, or a more determinations as to adverse effects, and on Historic Preservation. These regulations detailed Environmental Impact Statement, consultation with the appropriate state his- set forth the specific procedures that federal where adverse effects have been identified. toric preservation officer, the tribal historic agencies must follow to satisfy the require- Regulations implementing NEPA, codified preservation officer, and in some cases, the ments of Section 106. The regulations, most at 40 C.F.R. Part 1500, set forth the process Advisory Council about ways to avoid or recently revised in 2004, are published at 36 for conducting an environmental review, the reduce those effects. In the vast majority of C.F.R. Part 800. They may be viewed at the specific documents that must be prepared, cases, a legally binding Memorandum of ACHP’s website at www.achp.gov. as well as public notice requirements and Agreement is executed by the consulting par- timing for public review and comment. ties, setting forth specific protective measures National Environmental Policy Act that must be taken. In situations where Although the National Environmental Policy In many cases, the statutory protections agreement cannot be reached, the matter is Act, 42 U.S.C. §§ 4321-4347, (NEPA), is under NEPA and the NHPA overlap. As with put before the full Council, who in turn primarily viewed as an environmental law, it Section 106 of the NHPA, NEPA governs issues formal comments that may be governs major federal agency actions affect- federal agency actions. Moreover, like Section accepted or rejected by the agency involved. ing not only natural resources, but also cul- 106, NEPA is essentially a compliance tural resources, including properties listed in statute, providing only procedural protection While Section 106 is an effective tool in focus- the National Register of Historic Places. against potentially harmful federal agency ing attention on federal agency actions affect- NEPA states, in relevant part: actions. Coordination of Section 106 and ing historic resources, it does not prevent NEPA responsibilities is encouraged under federal agencies from taking actions that ulti- [I]t is the continuing responsibility of the Advisory Council’s regulations imple- mately harm historic resources. Section 106 the Federal Government to use all menting the Section 106 review process. only requires that federal agencies comply practical means, consistent with other with certain procedural requirements before essential considerations of national issuing a permit or funding a project affecting policy, to … (2) assure for all The National Environmental historic resources. Americans safe, healthful, productive, and esthetically and culturally pleasing Policy Act… governs major federal In other words, Section 106 will not prevent surroundings, … [and] (4) preserve agency actions affecting not only a federal agency from funding a housing important historic, cultural, and nat- natural resources, but also cultural project that entails demolishing a complex ural aspects of our national heritage, resources, including properties of historic buildings. It does, however, require and maintain, wherever possible, an listed in the National Register the agency to identify historic resources and environment which supports diversity of Historic Places. explore alternative measures, in consultation and variety of individual choice. with the state historic preservation officer, that may mitigate or avoid whatever harm To ensure that environmental concerns are the project would have on the buildings. The disclosed and considered to the fullest Nonetheless, because of slight differences in agency, for example, may be required to extent possible, NEPA directs federal agen- the scope of protection afforded, in certain address alternatives such as moving the entire cies to “include in every recommendation or situations only one of these laws may be housing project to a different site or shifting report on proposals for legislation and other invoked. While NEPA applies to all historic the location of the project on the proposed major federal actions significantly affecting and cultural properties, it regulates only site so that an archeological resource or his- the quality of the human environment, a “major federal actions,” such as the adoption toric structure can be preserved. detailed statement by the responsible official of federal policies and programs or the on the environmental impact of the pro- approval of federally funded, licensed, or per- In cases where alternatives to demolition are posed action,” including any “adverse envi- mitted projects. In contrast, the NHPA only not options, the agency may agree to adopt ronmental effects that cannot be avoided” governs properties listed or eligible for listing certain measures that would mitigate the and any “alternatives to the proposed in the National Register of Historic Places. harm identified. For example, an agency action.” Federal agencies must consult with The NHPA, however, applies to a broader may document the historic buildings and other relevant agencies regarding the pro- range of federal agency undertakings. erect a plaque in their stead. If other historic posed action and make copies of their envi-

PreservationBooks 5 The Department of Transportation’s regulations implementing Section 4(f) for the FHWA and FTA are set forth at 23 C.F.R.§ 771.135. The regulations seek to clarify when Section 4(f) applies and to coordinate Section 4(f) requirements with environmental review procedures under the NHPA and/or NEPA.

Surface Mining Control and Reclamation Act The Surface Mining Control and Reclamation Act (SMCRA), 30 U.S.C § 1201 et. seq., governs the regulation of surface mining activities in the United States. The Office of Surface Mining and Enforcement (OSM) is charged with its implementation. OSM is responsible for issuing permits for the surface mining of coal and monitoring state regulatory programs operating pursuant to delegated authority. After a lengthy legal battle against the Department of Transportation, an overhead section of I-30 in Fort Worth, Tex., was dismantled rather than expanded. The court decision resolving this case, I-CARE v. Dole, established that indirect effects of highway projects such as noise, air Among other things, the act provides pro- pollution, physical access, and visual and aesthetic damage, trigger Section 4(f) protection if tection for historic resources that would be such effects “substantially impair” the significance, enjoyment, or value of historic sites. adversely affected by mining operations.

Photo by Jim Lindberg. Section 522(e) of SMCRA, 30 U.S.C.§ 1272(e)(3), provides that:

Section 4(f) of the Section 4(f) applies to all transportation [N]o surface mining operations … shall Department of Transportation Act agencies within the U.S. Department of be permitted which will adversely affect Section 4(f) is considered the strongest preser- Transportation, including the Federal any … places included in the National vation law at the federal level. Codified at 49 Highway Administration (FHWA), which Register of Historic Sites unless approved U.S.C. § 303, it provides substantive protec- funds highway and bridge projects; the jointly by the regulatory authority and tion for historic properties by prohibiting fed- Federal Transit Administration (FTA); the the Federal, State, or local agency with eral approval or funding of transportation Federal Aviation Administration (FAA); and jurisdiction over the … historic site. projects that require the “use” of any historic the Coast Guard, which owns or operates site, public park, recreation area, or wildlife many historic lighthouses and often has reg- The OSM is also required to comply with refuge, unless (1) there is “no feasible and ulatory authority affecting bridges. Section 106 of the NHPA when approving prudent alternative to the project,” and (2) state regulatory programs or amendments to the project includes “all possible planning to Although statutory protections under the those programs. However, Section 106 does minimize harm to the project.” NHPA, NEPA and Section 4(f) overlap, there not apply directly to individual mining permits are important distinctions. Unlike Section issued by the states, according to the D.C. The term “use” includes not only the direct 106 and NEPA, Section 4(f) applies only to Circuit, even though Congress amended the physical taking of property, but also indirect the “approval” of transportation projects. NHPA in 1992, to make Section 106 applica- effects that would “substantially impair” the While Section 106 and NEPA require agen- ble in such cases. See National Mining Ass’n v. value of protected sites. For example, the cies to “take into account” historic proper- Fowler, 324 F.3d 752 (D.C. Cir. 2003). effect of a proposed highway on the eco- ties, Section 4(f) directs the Secretary of the nomic vitality of a nearby historic district Department of Transportation to avoid State Preservation Laws that would isolate the district from nearby harming such resources unless no feasible or Governmental actions affecting historic commercial activity would probably require prudent alternative exists. Note, however, resources are generally taken into account at assessment under Section 4(f). (The provi- that in an effort to streamline the Section the state level in two ways. First, state agen- sion has been called “Section 4(f)” since its 4(f) review process, the Secretary may find a cies, through their state historic preservation initial adoption in 1966 as Section 4(f) of “de minimus impact” whenever a project officers, play a formal role in the Section the Department of Transportation Act, Pub. has been determined, under Section 106, to 106 review process by helping federal agen- L. No. 89-670, 80 Stat. 931, 933 (1966).) have no adverse effect on a historic site or cies identify historic resources, assess poten- that no historic properties would be affected. tial impacts to those resources, and develop alternatives that would avoid or mitigate

6 adverse effects. Second, many states have procedural and/or substantive protection While some ordinances may protect both enacted laws that protect historic resources for historic resources by requiring consider- public and privately-owned resources, the from state government action in a manner ation of the impact of state agency actions ability to regulate public property is depen- comparable to the way in which the NHPA, affecting such resources. The Minnesota dent upon the delegation of authority by a NEPA, and Section 4(f) protect historic Environmental Rights Act, Minn. Stat. § state to regulate municipal or state-owned resources from federal government actions. 116B, for example, provides that state agen- property or the willingness of a state agency These may be called “State Historic cies may not demolish a historic resource to be regulated. This issue often arises in the Preservation Acts” or “Little 106 laws” unless there is “no prudent and feasible alter- context of historic schools and civic build- and “State Environmental Policy Acts.” native site.” The New Mexico Prehistoric ings. While federal agencies are required to and Historic Sites Preservation Act, New. take historic preservation into consideration Administration of Federal Programs Mex. Stat. Annot. §§ 18-8-1—19-8-8, directs when constructing or altering buildings, fed- State involvement in historic preservation state agencies to undergo “all possible plan- erally-owned historic properties are not sub- activities historically has focused on the ning to preserve and protect” and to “mini- ject to local preservation ordinances. (See administration of federal government pro- mize harm” to historic resources. discussion on “Public Buildings” below.) grams. Pursuant to the NHPA, each state has established a state historic preservation As with their federal counterparts, these laws office (SHPO) to administer federal preser- provide for public participation and, in most Under historic preservation vation programs, such as nominating prop- cases, rely upon the citizenry for enforcement. ordinances, historic property owners erties to the National Register of Historic Places, participating in the Section 106 Local Preservation Laws are required to obtain a permit review process, and reviewing projects seek- Local environmental protection laws gov- from a preservation commission, ing certification for federal tax benefits. erning local government actions generally or other authority, before altering do not exist. In a few states, however, state or otherwise affecting the property The NHPA relies heavily on the SHPO to help environmental or preservation laws have being regulated. federal agencies meet their Section 106 respon- been extended to include local government sibilities by identifying historic resources, actions. For example, New York’s State determining the extent to which those Environmental Quality Review Act, N.Y. resources will be affected, and considering Environmental Conservation Law § 8-0101, The Regulation of Private Actions alternatives to avoid or reduce those effects. et. seq., (SEQRA), applies to local and state Affecting Historic Resources government actions, thus affecting a wide Historic resources may be protected to a lim- Historic Resource Protection range of municipal actions, including zoning ited extent from private actions through fed- The regulation of state agency actions affect- changes that could potentially affect historic eral and state laws. Many historic resources, ing historic properties varies considerably. resources. Because of the direct effect land- however, are protected through local laws Some states regulate governmental actions use actions have on historic resources, these that govern changes to private property. affecting historic property through state laws can be an important component of a Under historic preservation ordinances, his- environmental protection laws. For example, local preservation program. toric property owners are required to obtain the California Environmental Quality Act a permit from a preservation commission, or (CEQA), Cal. Pub. Res. Code § 21000, et. As with state governments, local govern- other authority, before altering or otherwise seq., requires state agencies to consider the ments may also assume certain federal affecting the property being regulated. Failure impact of their actions on the environment, agency responsibilities under Section 106 of to obtain a permit may result in the issuance including historic resources. The Alaska the NHPA. While federal agencies remain of a stop-work order, the imposition of fines Coastal Management Program, (ACMP), legally responsible for Section 106 compli- and other penalties, and in some cases, a Alaska Stat. § 46.40-210, sets forth specific ance, some federal agency responsibilities court injunction. These laws typically provide requirements agencies must follow to protect may be delegated to local officials. Section a much stronger level of protection for his- environmental and cultural resources in 106 responsibilities are often carried out by toric resources than the procedural protec- Alaska’s coastal zone. These laws provide an city agencies, receiving federal funding from tions that apply to governmental actions. important source of protection since they HUD, for example. Local governments may take into account a broad range of factors also participate as a “party” in the Section Federal Preservation Laws that may adversely affect historic resources, 106 consultation process. As discussed above, the preservation of his- such as increased traffic or pollution. toric resources is generally accomplished Historic resources are most often protected under federal preservation statutes through Many states have adopted what are com- at the local level through historic preserva- procedural laws. These laws do not require monly referred to as “state 106” or “state tion ordinances. These laws focus on the that historic resources be preserved but 4(f)” laws. Patterned after their federal regulation of private, as opposed to govern- rather insist that a federal agency consider counterpart, these laws generally provide mental, actions. historic resources before proceeding with a

PreservationBooks 7 having jurisdiction over the lands on which said antiquities are situated.” The Historic Sites Act, correspondingly, allows the imposition of a $500 fine against any person found violating the act or implementing regulations.

State Preservation Laws States address private actions affecting historic resources primarily through enabling laws, which act as a grant of police power authority from the state to local government. Only in extremely limited instances have states elected to regulate private actions through a separate permitting process. The State of Kansas, for example, regulates actions that would destroy or alter historic resources or the “environs” of those resources.

Every state has enacted some form of enabling law granting specific powers and authority to local governments to pass ordinances for the protection and preservation of historic structures. Some local governments may operate under a broad grant of authority, which is commonly referred to as “home rule authority.” Most governments, however, operate under a specific grant of authority that enu- merates specific powers and authorities. A local law must comply with the specific grant of authority from the state. In other words, the Historic preservation ordinances allow local jurisdictions to regulate historic districts, level of protection afforded to historic including incompatible infill structures, which can seriously compromise the integrity resources under a local preservation ordinance of a historic streetscape. must correspond with the regulatory scope of Photo by Adrian Scott Fine. applicable state enabling laws.

While state enabling laws vary widely in particular course of action. For the most Native American human remains and cultural form, they generally authorize local govern- part, the emphasis is generally on process objects held by museums or federal agencies ments to regulate private actions affecting rather than substance. This means that the and imposes penalties for individual violations. historic properties through a permitting agency must only comply with certain pro- Both statutes are discussed in more detail later. process. Local governments are typically cedures. Preservation is not required. granted authority to designate historic prop- Although rarely invoked, penalty provisions erties and districts and to prevent incompat- A few laws, however, contain enforcement are also contained in the Antiquities Act of ible alterations, demolition, or new provisions, authorizing the imposition of civil 1906, 16 U.S.C. §§ 431-433, and the Historic construction. Sometimes, state enabling laws and/or criminal penalties for violations of spe- Sites Act of 1935, 16 U.S.C. §§ 461-467. may also authorize a specific process for cific provisions. The best known laws falling While the Antiquities Act does not establish a consideration of economic hardship claims, within this category include the Archaeological permitting process per se, it authorizes the special merit exceptions, demolition by Resources Protection Act, 16 U.S.C. §§ imposition of a $500 fine and/or imprison- neglect, and even appeals. 470aa470mm, (ARPA), and the Native ment up to 90 days against any person who American Graves and Repatriation Act, 25 “appropriate[s], excavate[s], injure[s], or Local Preservation Laws U.S.C. §§ 3001-3013, (NAGPRA). ARPA destroy[s] any historic or prehistoric ruin or Laws governing private actions affecting his- establishes a permitting process and imposes monument, or any object of antiquity, situ- toric resources are primarily enacted at the both civil and criminal penalties for violations ated on lands owned or controlled by the local level pursuant to state enabling of its terms. NAGPRA establishes a process Government of the United States, without the authority. Through historic preservation for, among other things, the repatriation of permission of the Department of Government ordinances, local jurisdictions regulate

8 changes to historic resources that would Local preservation commissions or design historic preservation commission, however, is irreparably change or destroy their charac- review boards administer most local ordi- the governmental agency that grants or ter. Projects reviewed range from routine nances. Preservation commissions are admin- denies a permit to change historic property. applications for window replacement or istrative bodies of local governments and are modifications to plans for a new addition, typically established under the historic preser- While variations exist from ordinance to ordi- or even demolition. Today, more than 2,300 vation ordinance. While the number of com- nance, most include at least five major parts. historic preservation ordinances have been mission members and terms varies, depending Besides establishing a preservation commis- enacted across the country. upon the size and needs of a community, indi- sion, historic preservation ordinances gener- vidual members are generally required to have ally set forth procedures and criteria for the Historic preservation may also be accom- some expertise in certain areas, such as archi- designation of historic properties, along with plished through comprehensive planning and tecture, history, real estate, and so forth, to procedures and criteria for reviewing requests coordination with other land-use laws. ensure that informed decisions are made. to alter, move, or demolish such properties. Preservation ordinances alone can be insuffi- Preservation ordinances also allow for consid- cient to protect historic resources when other The scope of authority conferred on preser- eration of hardship and other issues of special governmental programs and policies such as vation commissions will vary considerably concern and establish a process for appeal zoning, transportation, and housing favor new depending upon state enabling authority, the and enforcement of its terms. development over rehabilitation alternatives. relationship between the commission and other administrative agencies, and the sup- Individual properties are most often desig- Preservation ordinances vary widely from port for historic resource protection. Historic nated as historic resources by a city council place to place depending upon several fac- preservation commissions may have either or equivalent legislative body upon nomi- tors. Variations may arise, for example, binding or advisory review authority over nation by a preservation commission. because of specific limitations on permissi- historic designations or changes to historic Sometimes, however, the preservation com- ble regulatory action imposed at the state properties, and in some cases, they must be mission or another administrative body level or because of differing levels of politi- consulted regarding other land-use actions may be empowered to designate individual cal support for preservation in a given com- affecting historic resources, such as a request properties and/or districts. munity. No single approach works in every for a variance or the subdivision of land. The situation and thus historic preservation ordinances are generally tailored to meet the individual needs of the community and the resources being protected.

As noted earlier, every state has enacted in some form an enabling law that authorizes local jurisdictions to adopt historic preservation ordinances. (In a few states, this authority may be implied through zoning enabling laws.) These laws, varying widely in form and content, provide the legal basis for regulating historic property. They should be consulted, along with interpreting case law, before adopting a preservation ordinance.

Historic preservation has been upheld as a valid public purpose under the U.S. Constitution. In 1978, the U.S. Supreme Court in its landmark decision, Penn Central Transportation Co. v. City of New York, 438 U.S. 104 (1978) recognized that preserving historic resources is “an entirely permissible governmental goal” and that New York City’s historic preservation ordinance was an “appropriate means” to securing that goal. Historic district laws protect historic buildings as well as a community’s character. Some states have also explicitly recognized New construction generally must be compatible with the surrounding buildings in historic preservation as a legitimate govern- terms of size and design. mental function in their state constitutions. Photo by Adrian Scott Fine.

PreservationBooks 9 Most jurisdictions designate historic districts The extent of control over requests to demol- or both historic districts and individual ish historic structures varies from community landmarks. While designations may include to community. Many localities allow for the KEY COMPONENTS OF A the entire historic structure, many communi- demolition of historic properties only in cases PRESERVATION ORDINANCE ties extend protection only to the exteriors where a property owner establishes economic 1. Statement of “Purpose” and of such properties, and in some cases, only hardship or the property poses a safety threat “Powers and Authorities” in to those facades visible from a public way. after a fire or other type of natural disaster. enacting preservation ordinance. A few communities protect both the interior Some communities, however, permit property and exterior of historic properties. Interior owners to demolish historic properties after a 2. Definitions. protections, where they exist, generally are specific waiting period, during which time a limited to interior spaces open to the public. city or town, along with private preservation 3. Establishment and authority of groups, can explore alternative actions to historic preservation commission Properties may be identified as contributing save the building. Some communities also or other administrative board. or noncontributing in historic districts. This condition the issuance of a demolition permit determination, in turn, may dictate the level upon a showing that a new building will 4. Criteria and procedures for desig- of review that will be applied. Contributing actually be constructed (i.e., by showing that nation of historic landmarks and/ properties may enjoy full protection while plans and financing are sufficiently finalized) or districts. changes to non-contributing property (includ- and that the building will be compatible with ing vacant land) are generally approved if other historic resources in the area. 5. Statement of actions reviewable by “compatible” with the character of the his- commission and the legal effect of toric district. A few jurisdictions also recog- Routine maintenance work such as repairing such review. nize distinctions among individual landmarks, a broken fence or replacing individual tiles providing the highest level of protection for on a slate roof is generally excluded from 6. Criteria and procedure for review properties of “exceptional importance.” commission review. Many ordinances, how- of such actions. ever, require that designated property be The preservation ordinance sets forth the kept structurally sound and may empower a 7. Standards and procedures for criteria for designation and the process for commission to make repairs and seek reim- the review of “economic considering applications for designation. bursement in instances where a property is hardship claims.” More detailed information may also be con- essentially being demolished by neglect. tained in implementing regulations. While 8. “Affirmative maintenance” variations exist from jurisdiction to jurisdic- An increasing number of communities have requirements and procedures tion, historic designations are generally initi- also established an informal process to governing situations of ated by the property owner or the encourage property owners to consult with “demolition-by neglect.” commission after conducting a survey of commission staff and/or members before historic properties within the community. embarking on a major project. Although not 9. Procedures for appeal from final required, this process generally helps a prop- preservation commission decision. Historic preservation ordinances generally erty owner and/or architect to understand empower preservation commissions to the factors that a commission will consider 10. Fines and penalties for violation of review and act upon applications for certifi- in acting upon a specific application. ordinance provisions. cates of appropriateness. Most often, owners of property subject to a preservation Many ordinances also provide for the con- ordinance must submit an application to a sideration of economic hardship claims, and preservation commission for permission to to a lesser extent, projects of special merit. alter, demolish, move, or construct additions Economic hardship provisions typically pro- and new buildings. Requests for change are vide a variance from individual restrictions evaluated at a public hearing based upon under the ordinance in situations where the standards for review set forth in the ordi- owner demonstrates that he or she would nance. The commission will generally issue otherwise be denied all reasonable or benefi- a formal decision, making specific findings cial use of his or her property. Special merit of fact and conclusions of law. (A commis- provisions enable individual buildings to be sion must determine what the facts are, demolished or substantially altered when an apply those facts to the standards in the overriding community objective, such as the ordinance, and then reach a conclusion.) need to construct a conference center, exists. Permission is typically granted in the form (For a detailed discussion on economic of a permit or certificate of appropriateness. hardship see “Providing for Economic

10 Hardship Relief in the Regulation of rise development and in neighborhoods Ideally, comprehensive plans should also Historic Properties,” 15 Preservation Law where replacement houses can far exceed the state how conflicts between historic preser- Reporter 1129 (1996) and “Assessing size of existing houses. Similarly, the historic vation and other community goals, such as Economic Hardship Claims Under Historic setting of certain resources may be irrepara- economic development or transportation, Preservation Ordinances,” 18 Preservation bly altered in communities where existing are to be resolved in a manner consistent Law Reporter 1069 (1999).) lots can be subdivided without regard to his- with a community’s local preservation ordi- toric preservation concerns. nance. For example, while a plan may Historic preservation ordinances either pro- strongly endorse economic growth, it may vide for appeal to another administrative Comprehensive or master plans are formal state that historic resources should be pro- body or specify that appeal is to be made documents, typically adopted at the local level, tected in all instances or allow for demoli- directly to court. In establishing an appeal that set forth a guideline or road map for tion of historic resources only when no process, it is important to ensure that the community development over time. They gen- other prudent or feasible alternative exists. appellate body must uphold the commis- erally identify important community goals A plan may also stress the importance of sion’s decision if it is supported by “sub- such as economic growth and stability, envi- historic preservation as a means to promote stantial evidence” or a “rational basis” ronmental protection, and public safety in the economic development by providing neigh- exists for its decision. If the appeal body context of specific planning elements such as borhood stability and tourism opportunities. engages in “de novo” review (i.e., it engages land use, housing, and transportation. Historic in its own fact-finding rather than limiting preservation is often identified as an important Besides the comprehensive plan, zoning, subdi- its review to the information contained in community goal and may be included as an vision controls, and other forms of land-use the record and is not required to defer to element of a comprehensive plan. protection can impact historic resources. the expertise of the commission), that body Zoning laws govern the use and intensity of must use the same criteria as the preserva- The legal status of the comprehensive plan both new and existing development while sub- tion commission in making its own decision. varies considerably from state to state. In division laws govern the platting and conver- some states, consistency between compre- sion of undeveloped land into buildable lots. Preservation ordinances usually empower hensive plans and local laws is mandatory. local jurisdictions to issue stop-work orders In other words, all zoning and other land-use The relationship between zoning laws and his- and impose fines and other penalties for laws must be consistent with the comprehen- toric properties is readily understood. Zoning individual violations. Fines generally range sive plan. In other jurisdictions, a plan may laws allowing fast food restaurants as a matter from $100 to $5,000 per day depending be viewed as advisory, serving as a guideline of right in historic districts, for example, create upon the type of property being regulated, or road map for future development. potentially unresolvable compatibility con- residential or commercial, and the likeli- cerns. Pressure to demolish low-rise, historic hood for violations. Penalties for unlawful While planning generally occurs at the local commercial buildings will be greater in com- alterations or demolitions may include the level, it is accomplished increasingly on a munities with zoning laws that permit the con- denial of a building permit for a number of statewide or regional basis as well. Several struction of 20-story structures. Zoning laws years or mandatory reconstruction. (Stiffer states including Vermont, Maine, Rhode can also be used to curtail the practice of penalties are used to discourage midnight Island, Washington, Georgia, Florida, and building mansion-sized houses in older resi- demolitions of historic structures, where a Delaware have enacted growth management dential areas by ensuring that applicable set fine might be viewed as a business cost laws that provide additional protection for back, lot coverage, height, and bulk require- rather than deterrent.) In cases of demoli- historic resources. ments conform to existing housing stock. tion by neglect, a commission may be empowered to repair a building and then The comprehensive plan should identify his- Subdivision laws can also affect historic prop- recoup its expenses by imposing a lien on toric preservation as a specific goal or key erties in profound, although less direct, ways. the property. Ultimately, the commission element. Strong policy statements in favor of Land is subdivided to permit new develop- may seek an injunction in court to compel preservation can help a decision maker act ment. If that development is located next to or compliance with the law. favorably toward preservation in instances near a historic resource, the historic setting of where historic resources might otherwise be that resource is likely to change dramatically. Other Land-Use Laws harmed, such as in conducting a site plan The strength of a preservation program can review or in acting upon a rezoning request. The way tracts of land are broken into lots also be measured by the degree of correlation Decisions based on comprehensive plans are and blocks and streets are laid out can also between historic preservation and other land- also more likely to be upheld, even when the be important. The design of a street system, use programs, such as comprehensive plan- plan is merely advisory, since they help prove for example, could create certain traffic pat- ning, zoning, and the subdivision of land. that a government acted fairly and reason- terns, which, in turn, could lead to inappro- Pressure to demolish historic buildings will ably rather than arbitrarily or capriciously. priate street-widenings in a neighboring obviously be much greater in in commercial historic district. districts with zoning laws that permit high-

PreservationBooks 11 PRIMARY LAWS GOVERNING ARCHEOLOGICAL RESOURCES There are several ways to ensure compatibility between preservation and other land-use laws. Archeological Resources Protection Act of 1979, 16 U.S.C. §§ 470aa-mm. Principal federal Property, for example, may be rezoned or new law protecting archeological resources on all federal and Indian lands. It establishes a permit height restrictions imposed so that pressure application process for the excavation and removal of archeological resources located on for new development is effectively removed. these lands. Provides for the imposition of civil and criminal penalties for specific violations. Buffer zones may also be established to prevent encroachment on lower density, commer- Archeological and Historic Preservation Act of 1974, 16 U.S.C. §§ 469-469c-2. Provides cial, or residential historic areas. (For further for the preservation of historical and archeological data that might otherwise be irrepara- discussion see David Listokin, “Growth bly lost through alterations to the terrain resulting from federal agency construction-related Management and Historic Preservation: activities. Upon notification by a federal agency that significant resources may be irrepara- Best Practices for Synthesis,” 29 The Urban bly lost, the Secretary of the Interior must conduct a survey, preserve data, and consult Lawyer 2 (Spring, 1997), “Protecting with others regarding ownership and appropriate repository for items recovered. Historic Structures Against Incompatible Development,” 14 Preservation Law Historic Sites Act of 1935, 16 U.S.C. §§ 461467. Establishes a national policy for the Reporter 1012 (1995) and “Coordination of preservation of historic American sites, buildings, objects and antiquities of national sig- Historic Preservation and Land Use Controls: nificance, delegating specific powers and responsibilities to the Secretary of the Interior New Directions in Historic Preservation in the implementation of that policy. Also authorizes the imposition of a $500 fine plus Regulation,” 5 Preservation Law Reporter costs for violations of any rules promulgated under the act. 2041 (1987). For discussion on teardowns in residential areas, see “Teardowns and Antiquities Act of 1906, 16 U.S.C. §§ 431-433. Imposes criminal sanctions for the destruc- McMansions Resource Guide” at tion of historic or prehistoric sites on federally owned or controlled land without a permit. www.preservationnation.org/issues/ teardowns/resource-guide.html.) National Historic Preservation Act of 1966, as amended, 16 U.S.C. § 470 et. seq. Prohibits federal undertakings (such as the funding, licensing or permitting of activities) In some situations, special permitting affecting properties eligible for listing in the National Register, including archeological processes may be invoked to allow for con- sites, without first consulting with the state historic preservation officer and, in some sideration of preservation issues as appro- cases, the Advisory Council on Historic Preservation. priate. For example, owners of historic residential property may be allowed to con- National Environmental Policy Act, 42 U.S.C. §§ 4321-4347. Requires environmental duct a limited range of commercial uses on impact statement for all major federal actions significantly affecting the quality of the their property such as a bed and breakfast human environment, including archeological resources. Department of Transportation Act or small office. These uses can help offset of 1966, 49 U.S.C. § 303. Prohibits federal approval or funding of transportation projects rehabilitation and/or maintenance expendi- that require the “use” of any historic site, including archeological sites, unless there is “no tures incurred in larger historic properties. feasible and prudent alternative to the project,” and the project includes “all possible plan- Exceptions from onerous parking require- ning to minimize harm to the project.” ments may also be established.

Abandoned Shipwreck Act of 1987, 43 U.S.C. § 2101 et. seq. Asserts title to abandoned In a few jurisdictions, preservation commis- shipwrecks within U.S. territorial waters and then transfers ownership to the state in whose sions may have either binding or advisory submerged lands the shipwreck is located to facilitate the protection of historic shipwrecks. authority over requests to subdivide historic property. Commissions with binding author- Native American Graves Protection and Repatriation Act of 1990, 25 U.S.C. §§ 30013013. ity may approve, deny, or modify an applica- Provides for repatriation of Native American human skeletal material and related sacred tion to subdivide property protected by a items and objects of cultural patrimony. Also allows for the imposition of criminal penalties preservation ordinance. Commissions with for the illegal trafficking in human remains and burial items. advisory authority may only recommend to a planning board or other administrative State archeological protection laws. Regulate private and/or public actions affecting agency with ultimate authority that a specific archeological resources on state (and in some cases on private lands). application be approved, denied, or modified to address historic preservation concerns. State preservation and environmental laws. Require state agencies to consider impact of proposed governmental actions on archeological resources. Preservation commissions may also be consulted in situations involving the development Historic preservation ordinances, comprehensive plans, site plan review and subdivision laws. of land around an existing resource to ensure Some local laws protect archeological resources in addition to historic and other cultural that any new construction is compatible. For properties. example, a site plan review process may call

12 for consultation with a commission on issues regarding the siting or massing of particular buildings or the types of materials or colors used. In some cases, the actual density or size of a project may be limited where incompatible with historic preservation objectives.

Laws Addressing Specific Resources A few laws seek to protect specific types of resources from governmental and/or private actions. The protective mechanisms employed by these laws are generally tailored to meet the peculiar concerns of the resource at issue.

Archeological Resource Protection Laws protecting archeological resources have been enacted at the federal and state level, and to a much lesser extent at the local level. These laws typically regulate archeological activity on land owned by the federal government through a special permitting process supported by the ability to impose criminal and/or civil penalties for individual violations. In more recent years, archeological protection laws have been extended to private lands, largely in response to increasing threats combined with a growing awareness that damage Archeological resources are protected under federal, state and, in some cases, local laws. to archeological sites is irreversible. These laws require permits before excavating or altering archeological sites and impose criminal penalties for looting and other illegal activity. Federal Laws Photo courtesy of the National Trust for Historic Preservation. The Archeological Resources Protection Act, 16 U.S.C. §§ 470aa-470mm, (ARPA), is the primary statute governing archeological resource protection at the federal level. This ARPA’s penalty provisions are critical to its additional information are available on the law protects archeological resources on fed- effectiveness as a tool for resource protec- National Park Service’s website at eral and Native American lands through a tion. The statute authorizes the imposition of www.cr.nps.gov/linklaws.htm. permitting process accompanied by enforce- civil and criminal penalties, including both ment provisions. Under ARPA, it is unlawful imprisonment and fines up to $100,000 for A few federal laws protect archeological to remove, excavate, or alter any archeologi- repeat offenders. All archeological resources, resources in particular instances. The cal resource from federal or Indian lands along with any vehicles or equipment used Reservoir Salvage Act of 1960, 16 U.S.C. §§ without a permit issued by the Department to carry out the violation can be forfeited. 469-469a, requires federal agencies to notify of the Interior. Permits are approved only for The act also explicitly authorizes the federal the Secretary of the Interior upon the discov- research purposes and all artifacts must government to pay rewards for information ery of any significant archeological resources remain property of the United States. leading to the finding of a civil violation or threatened with destruction due to dam con- criminal conviction. struction or terrain alterations. The law In addition, ARPA prohibits the selling, pur- authorizes the Secretary to undertake sal- chasing, exchanging, transporting, and traf- Primary regulations governing the protec- vage operations as deemed necessary. The ficking of archeological resources that were tion of archeological resources are set forth Archaeological & Historical Preservation Act removed in violation of law. Significantly, at 43 CFR Part 7. Regulations pertaining to of 1974, 16 U.S.C. §§ 469-469c-1, extends this prohibition extends not only to artifacts the preservation of American antiquities are the scope of the 1960 Act to include all fed- found on public and Indian lands, but also codified at 43 CFR Part 3 and regulations eral and federally-assisted or licensed projects to artifacts taken from private land in viola- concerning the care of federally-owned and that threaten historical and archeological tion of state law. administered archeology collections are data with destruction. The responsible federal located at 36 CFR Part 79. These laws and agency may elect to undertake salvage or

PreservationBooks 13 As with other types of resources, states also play a primary role in protecting archeological resources in exercising their responsibilities under both federal and state programs. The National Historic Preservation Act, state preservation laws, federal and state environmental protection laws, transportation laws, and others, require state involvement in identifying and developing plans to avoid or mitigate potentially adverse governmental actions.

Local Laws While a number of jurisdictions extend protection for archeological or cultural sites in local historic preservation ordinances, only a handful of communities have developed detailed protection measures. Several jurisdictions, for example, include archeological resources among other items qualifying for designation, but provide little guidance about how these sites are to be protected in individual circumstances. Usually, archeological resources are treated the same as any other resource. A few communities, however, Several states have enacted laws to protect historic cemeteries against vandalism and theft. have included specific procedures governing archeological resources in their preservation Photo by Elizabeth Byrd Wood. ordinances. San Antonio, Tex., for example, requires owners to prepare a “determination of effect” and explore alternative ways to other protective measures or allocate up to 1 16 U.S.C §§ 470-470w-6, the National reduce or avoid any adverse effects. percent of its project funds for use by the Environmental Policy Act, 42 U.S.C. §§ 4321- Secretary of the Interior for such efforts. 4347, and Section 4(f) of the Department of Archeological resource protection also may be Transportation Act, 49 U.S.C. § 303. These accomplished at the local level through other As noted above, the Antiquities Act establishes laws protect archeological resources from types of land-use laws likely to entail “land a permitting system for the excavation and potentially adverse federal agency actions by disturbing” activity. Archeological protection, gathering of “objects of antiquity” on federal requiring agencies to identify archeological for example, may be provided through condi- lands designated as “National Monuments.” resources and by urging either in place preser- tional or incentive zoning that allows for the Limited in scope, permits may be issued only vation or removal, as appropriate. preservation of archeological resources in for the benefit of “reputable museums, univer- exchange for more intensive development. sities, colleges, or other recognized scientific or State Laws Resources may be protected through subdivi- educational institutions.” The law imposes Laws governing archeological resource protec- sion laws and/or site plan review by requiring nominal penalties (violators may be fined tion vary widely at the state level. Some states that an archeological assessment be per- $500 or jailed for up to 90 days) for the have enacted separate archeological resource formed as a condition to approval and by unlawful excavation, injury, or destruction of protection laws, while others include an arche- requiring applicants to avoid or mitigate the “any historic or prehistoric ruin or monument, ological component in more general historic destruction of such resources in delineating or any object of antiquity on federal lands preservation laws. Many states have adopted the size and location of buildings, and loca- without the permission of the federal land laws patterned after the federal Archeological tion and design of streets and individual lots. manager.” The Historic Sites Act of 1935, 16 Resources Protection Act, making it unlawful Alexandria, Va., for example, requires the U.S.C. § 462 (k), also authorizes the imposi- to disturb or remove archeological resources preparation of a preliminary archeological tion of a $500 fine plus costs for violations of on state-owned land without a permit. A few assessment and, sometimes, the development rules adopted by the Secretary of the Interior states also restrict certain archeological activity of a resource management plan, as part of its under this law. Archeological resource protec- on privately-owned land and/or extend specific site plan review process. tion may also be accomplished under Section protection for burial sites. Penalties are gener- 106 of the National Historic Preservation Act, ally imposed for individual violations.

14 Laws Protecting Native American Cultural Resources In addition to the more general laws governing historic resource and/or archeological protection, specific laws have been enacted at the federal and state level governing the disposition of Native American artifacts and human remains. These laws seek to place control or ownership of these items in the appropriate Indian tribe or Native Hawaiian organization.

The Native American Graves Protection and Repatriation Act (NAGPRA), codified at 25 U.S.C. §§ 3001-3013, establishes a process for protecting and distributing Native American cultural items found on federal or tribal lands either through “intentional excavation” or “inadvertent discovery.” Among other things, the law specifically seeks to place ownership or control of such items in the appropriate Indian tribe or Native Hawaiian organization and establishes a process to resolve competing claims. Consistent with this objective, the law also imposes specific requirements on museums and federal agencies (excluding the Keeping federal facilities, such as post offices, downtown can be critical to the economic viability of historic commercial areas. Smithsonian Institution) to assist Indian tribes and Native Hawaiians in the identification Photo courtesy of the National Trust for Historic Preservation. and eventual repatriation of burial remains and related items within their collections. NAGPRA further directs the Secretary of the vandalism, and trespass and may prohibit for his or her efforts in recovering the vessel. Interior to establish a review committee to the alteration or relocation of historic ceme- A number of courts have included the monitor and review the implementation of the teries in particular instances. preservation of archeological resources as a specific documentation and repatriation factor in determining whether to give title to requirements and provides for enforcement of Shipwreck Laws a finder or to give a salvage award. its terms through the assessment of civil penal- Specific laws apply to historic shipwrecks ties. Regulations implementing NAGPRA are found in submerged lands, depending, in The Abandoned Shipwreck Act was enacted set forth at 43 C.F.R. Part 10. part, upon where the wreck is located. in 1987 to end confusion over the ownership Shipwrecks found outside a state’s territorial of certain abandoned shipwrecks and to pro- A number of states (particularly in the West) waters are governed by admiralty law. vide for their protection by state authorities. have enacted specific laws to protect against Shipwrecks found within a state’s territorial The Abandoned Shipwreck Act, 43 U.S.C. the removal or destruction of human remains waters may be governed by appropriate state §§ 2102-2106, (ASA), modifies admiralty of Native Americans or the possession, sell- law pertaining to historic shipwreck protec- law by vesting title to abandoned shipwrecks ing or displaying of such remains as well as tion. State control over shipwrecks located in the states. The law applies to abandoned associated artifacts, in addition to more gen- within a state’s territorial limits is conferred shipwrecks that are embedded in the sub- eral laws governing cemeteries as a whole. by the federal Abandoned Shipwreck Act. merged lands of the states, embedded in Inadvertent disturbances must generally be coralline formations on the submerged lands reported to the state, which in turn must con- The disposition of shipwrecks outside a of the states, or listed in or determined eligi- sult with the appropriate tribe governing the state’s territorial seas is generally governed ble for inclusion in the National Register of disposition of the site. Violations are gener- by admiralty law. In the absence of a statu- Historic Places. A “shipwreck” may include ally punishable through fines and/or impris- tory claim, title may be conferred under the not only the vessel or wreck, but also its onment proportionate to the specific offense. “law of finds” or the “law of salvage.” The cargo and other contents. An “abandoned” law of finds essentially confers title to the shipwreck includes those shipwrecks “which Some states have also enacted laws to pro- finder of an abandoned shipwreck. Under have been deserted and to which the owner tect historic cemeteries. These laws fre- the law of salvage, a court may order the has relinquished ownership rights with no quently address issues such as theft, owner of a vessel to pay a salvor an award retention.” A shipwreck is embedded if it is

PreservationBooks 15 “firmly affixed in the submerged lands or in Regulations implementing the Public Buildings Executive Orders coralline formations.” The U.S. Department Cooperative Use Act are set forth at 41 C.F.R. A number of executive orders relevant to of the Interior has adopted advisory guide- § 19.000, et. seq., and § 10551.001, et. seq. preservation have been enacted over the lines to assist states in implementing the years. These orders impose additional ASA. These guidelines are published at 55 The National Park Service and the GSA responsibilities on federal agencies with Fed. Reg. 50120 (1990). They are also administer a Historic Surplus Property respect to historic property. posted on the National Park Service’s web- Program that gives state, county, and local site at www.nps.gov/archeology/submerged/ governments the ability to obtain surplus fed- Executive Order 11593, enacted in 1971, intro.htm. eral properties that are listed or eligible for requires federal agencies to operate their poli- listing in the National Register of Historic cies, plans, and programs so that federally A majority of states have enacted statutes Places, at no cost. See www.nps.gov/history/ owned or controlled sites, structures, and to protect archeological resources located hps/tps/hspp_p_admin.htm. objects of historical, architectural, or archeo- in their territorial waters. Many of these logical significance are “preserved, restored, statutes protect historic shipwrecks The disposition of surplus property is also and maintained.” (See Exec. Order No. through a special permitting process, gen- governed by the Federal Property and 11,593, 36 Fed. Reg. 8921 (1971), reprinted erally requiring private salvers to operate Administrative Services Act, 40 U.S.C. § at 16 U.S.C.§ 470 note.) Among other pursuant to a contract or license. 550(h). This law authorizes the conveyance things, the order directs federal agencies to of historic properties to state and local gov- locate, inventory, and nominate properties to Public Buildings ernments for use as a historic monument. the National Register and professionally doc- A number of laws, particularly at the federal ument any listed property that may be sub- level, have been enacted in recognition of the Section 110(a) of the National Historic stantially altered or affected and place such link between public policy regarding the loca- Preservation Act, 16 U.S.C. § 470h-2(a), records in the Library of Congress as part of tion of governmental facilities and efforts to imposes additional responsibilities on federal the Historic American Buildings Survey or preserve historic properties. Public buildings agencies that own or control historic proper- Historic American Engineering Record. In such as courthouses and city halls provide an ties or sites such as historic office buildings, addition, federal agencies are required to take important visual landmark for urban com- military installations, or battlefields and necessary measures to provide for the mainte- munities and often serve as an important cat- cemeteries. Among other things, federal nance and planning of federally-owned prop- alyst for further economic investment. agencies are required to locate, inventory, erty listed in the National Register, including Locating federal facilities in downtown areas and nominate properties to the National the preservation, rehabilitation, and restora- can spur economic development, while relo- Register, assume responsibility for preserving tion of such sites. Most of the requirements cating federal facilities outside downtown historic properties, and use historic buildings of this order have been enacted into law as areas can significantly contribute to urban to the “maximum extent possible.” part of the 1980 Amendments of the NHPA. decay and suburban sprawl. In addition, agencies responsible for the Expanding on the NHPA and PBCUA, The Public Buildings Cooperative Use Act impairment or demolition of a historic build- Executive Order No. 12072 (1978), entitled (PBCUA) governs the construction, acquisi- ing or site must document the property in “Federal Space Management,” underscores tion, and management of space by the General accordance with professional standards. the policies set forth under the PCBUA and Services Administration (GSA) for use by fed- When National Historic Landmarks are directs federal agencies “to give first consider- eral agencies. Codified at 40 U.S.C. § 601616, involved, Section 110 also requires that fed- ation to centralized community business the PBCUA outlines the authority vested in the eral agencies undertake, to the maximum area[s]” when meeting federal space needs in Administrator of General Services and his or extent possible, “such planning and actions as urban areas in order “to strengthen the her responsibilities in exercising that authority. may be necessary to minimize harm to such Nation’s cities and to make them attractive landmark” and request comments from the places to live and work.” On March 7, 1996, To encourage the use of historic buildings Advisory Council on Historic Preservation. the General Services Administration issued by federal agencies, the law directs the interim regulations, 61 Fed. Reg. 9110 (Mar. Administrator to “acquire and utilize space Guidelines issued by the Secretary of the 7, 1996)(to be codified at 41 C.F.R. Part 101- in suitable buildings of historic, architec- Interior regarding federal agency responsi- 17), reaffirming the order’s policies and goals tural, or cultural significance, unless use of bilities under Section 110 are published at and setting in motion a process for adopting the space would not prove feasible and pru- 63 Fed. Reg. 20496-20508 (Apr. 24, 1998). revised regulations consistent with that order. dent compared with available alternatives.” Special rules allowing for the waiver of This requirement extends to, but is not lim- Section 110 requirements in the event of Executive Order 13006, issued in 1996, ited to, all buildings that are listed or eligi- natural disasters or emergencies are set forth directs federal agencies not only to locate their ble for listing in the National Register of at 36 C.F.R. Part 78. operations in established downtowns but to Historic Places. give first consideration to locating in historic properties within historic districts. (See 61

16 Fed. Reg. 26,071 (1996).) The order requires RESTRICTIONS ON THE cial circuits within the United States. The the federal government to “utilize and main- REGULATION OF HISTORIC United States Supreme Court is the ultimate tain, wherever operationally appropriate and PROPERTY: PROTECTING THE arbiter of federal cases and federal constitu- economically prudent, historic properties and INDIVIDUAL FROM THE STATE tional cases. Supreme Court review, in most districts, especially those located in central cases, is discretionary. business areas.” It also directs federal agencies In reviewing preservation laws, it is as to give “first consideration” to historic build- important to understand the limitations on Most states have a trial court, appeals court, ings when “operationally appropriate and these laws as it is to understand the laws and a high court generally referred to, but economically prudent” and requires that any themselves. These limitations are usually not always, as the “supreme court.” The rehabilitation or new construction be “archi- imposed by courts interpreting constitutional names of these courts will vary from juris- tecturally compatible with the character of the requirements that protect the individual diction to jurisdiction and thus it is impor- surrounding historic district or properties.” from overly burdensome governmental tant to become familiar with the judicial This order was codifed into law as an amend- actions. The following section explains how system within your particular state. ment to the NHPA on May 26, 2000. See the court system works and the types of con- Pub. Law 106-208 (Section 4) (amending 16 stitutional issues that are generally raised. Lower courts are required to abide by the U.S.C. § 470h-2(a)(1)). decisions of higher courts within their own Judicial Review system. For example, an appellate court deci- Executive Order 13007 published at 61 Fed. Historic preservation laws, whether enacted sion interpreting a specific law or ordinance Reg. 26,711 (1996), seeks to protect Native at the federal, state, or local level, are sub- is binding on trial courts within the same cir- American religious practices. It directs federal ject to review by courts, generally called cuit. In general, state courts are not bound land-managing agencies to accommodate the “judicial review.” The decisions resulting by federal court decisions interpreting state use of sacred sites by Native Americans for from this review become law until vacated law unless such decisions are issued by the religious purposes. In addition, such agencies or reversed by a higher court. U.S. Supreme Court. Federal courts, how- must avoid adversely affecting the physical ever, can determine the validity of state and integrity of sacred sites and provide reason- The importance or particular relevance of an local laws under the U.S. Constitution. State able notice when an agency’s action may individual court case can vary from place to courts are not bound by the decisions of restrict the ceremonial use of a sacred site or place depending on a variety of factors, such courts of other states, even when based on otherwise adversely affect its physical as which court issued the decision and what laws similar to those at issue. Such decisions, integrity. Because some Native American sites kind of laws and issues were addressed. For however, can have great weight, particularly may qualify for listing in the National example, a state supreme court decision in an area such as historic preservation Register of Historic Places, this order may in addressing constitutional issues may have where the body of law is relatively small, some instances overlap with Section 106 and broad significance, creating either binding or and thus are often viewed as persuasive Section 110 of the NHPA. Recognition of the persuasive authority. Whereas, a trial court authority. Courts often look to other juris- right to exercise traditional religions under decision focusing on the application of a dictions for guidance on particular issues. the First Amendment is also set forth under notice provision may have little relevance the American Indian Religious Freedom Act outside the context of the particular contro- Similarly, federal courts are not bound by of 1978, 42 U.S.C. § 1996. versy at issue. Therefore it is necessary to federal court decisions from other circuits. It have a basic understanding of how the judi- is possible to have conflicting interpretations Executive Order 13287, known as “Preserve cial system works and the general signifi- of federal statutory provisions or constitu- America,” states that the federal govern- cance of the issue being decided in order to tional issues among the circuits. The U.S. ment “must recognize and manage the his- assess the importance of a particular decision. Supreme Court, again, is the ultimate arbiter toric properties in its ownership as assets of conflicts among the federal circuits. While that can support department and agency Separate court systems are maintained at judicial consistency is strongly favored, courts missions while contributing to the vitality the federal and state level. Federal court may abandon prior law. In most cases, how- and economic well-being of the nation’s decisions focus on disputes involving fed- ever, reversals in policy occur at the legisla- communities and fostering a broader appre- eral laws such as the National Historic tive rather than judicial level of government. ciation for the development of the United Preservation Act or federal constitutional States and its underlying values.” All agen- issues. State court decisions generally Statutory Claims cies are required to build preservation part- involve controversies over the application Historic preservation litigation generally nerships with state and local governments, of state or local laws, which may involve involves both statutory and constitutional Indian tribes, and the private sector to pro- both statutory and/or constitutional issues. claims. Statutory claims may address issues mote local economic development through such as whether a local preservation commis- the use of historic properties. See 68 Fed. Federal court cases are generally tried in sion exceeded its authority under a preserva- Reg. 10635-38 (2003). federal district courts and appealed to a U.S. tion law or whether “substantial evidence” Court of Appeals. There are 13 federal judi- or a “rational basis” exists to support the

PreservationBooks 17 Regulations, in comparison, have the full force of law and must be enacted within the con- fines of the law being interpreted. They must be consistent with the requirements of the law and 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.

Constitutional Restrictions Historic preservation laws must be within the limitations of state and federal constitutional provisions that protect the rights of individuals and organizations, and thus constitutional claims are frequently raised. Constitutional challenges to historic preservation laws may arise under the Takings, the Due Process and the Equal Protection Clauses of the Fifth and Fourteenth Amendments, or the Free Exercise and Free Speech Clauses of the First In 1978 the U.S. Supreme Court upheld New York City’s denial of permission to construct Amendment to the U.S. Constitution. a 55-story office tower on Grand Central Terminal in the landmark decision, Penn Central Transportation Co., v. City of New York. The following discussion focuses on federal

Photo courtesy of the National Trust for Historic Preservation. constitutional requirements. Additional protection may be afforded under state constitutions as well. commission’s decision. Commission decisions Finally, claims may arise concerning the are generally reviewed under standards set appropriateness of a commission’s decision. Police Power Authority forth in state administrative procedure acts. In other words, does the evidence in the All preservation laws must be enacted in record support the commission’s findings accordance with the police power. The police As discussed earlier, the issue of legislative and did the commission assign appropriate power is the inherent authority residing in authority arises most frequently in connection weight to the evidence presented. Most each state to regulate, protect, and promote with local preservation laws subject to state courts will defer to the expertise of the com- public health, safety, morals, or general wel- enabling authority. If an ordinance is not mission and uphold decisions to designate fare. The police power is enjoyed by the enacted in accordance with state enabling law, property for historic resource protection or states, rather than local jurisdictions, and the entire ordinance may be invalidated. Cases to affirm or deny applications for certifi- cities and towns can enact preservation laws have been litigated, for example, on the ability cates of appropriateness if there is a reason- only if the state has given them specific of a commission to deny permission to demol- able basis in the record or if the decision is authority to do so. As noted earlier, this ish a building or to control the design of new supported by substantial evidence. authority is typically bestowed on local juris- buildings constructed within a historic district. dictions either through specific enabling leg- In reviewing preservation laws, it is impor- islation or more general home rule power. Even if an ordinance has been duly enacted, tant to recognize that federal, state, and questions may arise concerning whether a local laws are generally interpreted through The basic constitutional question is whether commission has acted within the scope of implementing regulations and guidelines. historic preservation is a legitimate function authority conferred on it by the ordinance or Guidelines are typically advisory in form of the government. The U.S. Supreme Court whether it has followed appropriate proce- and are generally used to illustrate what in its 1978 decision in Penn Central dures in taking a particular action as required kinds of activities may or may not be per- Transportation Company v. City of New under local law. For example, did the commis- missible under a preservation ordinance. York, 438 U.S. 104 (1978), laid to rest the sion follow a community’s open meeting laws Design criteria, for example, are often argument that restrictions on property for (often referred to as “sunshine laws”) or fol- adopted in the form of guidelines. the purpose of preserving structures and low requisite notice and hearing requirements? areas with special historic, architectural, or cultural significance were not a valid use of

18 governmental authority. Many state courts tion of roads servicing that subdivision. In The “parcel as a whole” analysis is especially have explicitly found historic preservation such cases, the Supreme Court has said that significant in view of Lucas v. South Carolina to be a legitimate use of the police power. there must be an “essential nexus between the Coastal Council, 505 U.S. 1003 (1992), burdens placed on the property owners and a which established the rule that a “total depri- Regulatory Takings legitimate state interest affected by the pro- vation of beneficial use” is a per se or cate- Property owners challenging historic preser- posed development.” In other words, there gorical taking. In other words, if a regulation vation laws sometimes argue that such laws, should be a reasonable correlation between renders property completely valueless (i.e. a either generally or in their application in a the conditions placed on the property owner “total wipeout”), then a taking requiring specific case, amount to a taking of private and the public interest being served. A nexus, “just compensation” results. Without the property. The term “taking” comes from the perhaps, might not be found if a preservation “parcel as a whole” rule, property owners Fifth Amendment to the U.S. Constitution, commission required historic property owners could claim that a categorical taking has which states “… nor shall private property to build a sidewalk in front of their house as a resulted with respect to the portion of prop- be taken for public use without just com- condition to the issuance of a certificate of erty directly affected by the challenged regu- pensation.” Under the Supreme Court’s appropriateness to build an addition on the latory action. See, e.g., District Intown interpretation, the takings clause extends to back of their home. (See Nollan v. California Properties Ltd. Partnership v. District of governmental regulations as well as physical Coastal Commission, 483 U.S. 825 Columbia, 198 F.3d 874 (D.C. Cir. 1999), takings of property and accordingly, if a reg- (1987)(nexus between a lateral beach access cert. denied, 531 U.S. 812 (2000), in which ulation is so burdensome as to amount to a condition and the Coastal Commission’s the owner argued, unsuccessfully, that the “taking,” then compensation must be paid. stated goals ruled insufficient).) denial of permission to develop the lawn of a historic apartment building amounted to a Takings cases fall into one of three cate- In addition, the Supreme Court has ruled categorical taking under Lucas. gories—physical occupations, exactions or that a governmentally imposed dedication conditions on development, and permit of land for public use must be “roughly pro- denials. The level of judicial scrutiny varies portional” to the impacts on the community among each of these categories depending that will result from the proposed develop- Historic preservation laws must upon the level of intrusiveness on the part of ment. This rule precludes placing onerous be within the limitations of state the government. In general, the more closely requirements on property owners seeking and federal constitutional the government action resembles “confisca- governmental approval. provisions that protect the rights tion” rather than simply a restriction on use, of individuals and organizations. the closer the court will look at the govern- In Dolan v. City of Tigard, 512 U.S. 687 mental purpose behind the alleged taking and (1994), for example, the Supreme Court found its corresponding impact on the property. a taking since Tigard had failed to establish that the development exaction of a greenway Although decided over 25 years ago, Penn Physical Occupations and bicycle path would mitigate the flooding Central Transportation Co. v. City of New This first category of takings claims involves and traffic impacts caused by a proposed store York, 438 U.S. 104 (1978), is the leading situations where the government invades or expansion in a roughly proportionate manner. case governing the constitutionality of permit occupies private property. The occupation denials under the takings clauses of the fed- may be “in fact,” such as the required instal- Permit Denials eral and state constitutions. As Supreme lation of wires or cable boxes on an apart- The vast majority of preservation takings Court Justice Sandra Day O’Connor wrote in ment building, or “constructive,” such as the cases fall within the “permit denial” cate- her concurring opinion to Palazzolo v. Rhode frequent flying of planes over private prop- gory. Under this scenario, a property owner Island, 533 U.S. 606, 633 (2001)(O’Connor, erty. Because of the close link between physi- argues that a taking has occurred as a result J. concurring). “our polestar … remains the cal occupations and actual expropriations of the denial of an application concerning principles set forth in Penn Central itself and through eminent domain, the Supreme Court the use of his or her property. In determin- our other cases that govern partial regulatory has established a “per se” rule, requiring just ing whether a taking has occurred, it is takings. Her views were echoed by the compensation in all physical occupation cases. important to identify the “relevant parcel.” majority in Tahoe-Sierra Preservation The Supreme Court has said that reviewing Council, Inc. v. Tahoe Regional Planning Exactions and Conditions courts must look at the “parcel as a whole” Agency, 535 U.S. 302 (2002), which held on Development rather than the land directly affected by the that outside the exceptional “wipe out” situ- This category of takings claims involves chal- regulatory action. Thus, for example, in ation found in Lucas, takings claims must be lenges to conditions imposed by government analyzing a takings claim, courts should analyzed under Penn Central’s ad hoc, multi- in exchange for the issuance of a development look at the entire historic estate rather than factored framework, and again, in Lingle v. permit. For example, a local government may the segment of the estate on which a historic Chevron, U.S.A., Inc., 544 U.S. 528 (2005). condition the issuance of a building permit for preservation commission has ruled that a new residential subdivision on the construc- development may not occur.

PreservationBooks 19 THE PENN CENTRAL DECISION Philadelphia, 635 A.2d 612, 619 (Pa. 1993), “in fifteen years since Penn Central,” no state Penn Central Transportation Co. v. City of New York, 438 U.S. 104 (1978), the landmark has ruled that a “taking occurs when a state decision upholding the application of New York City’s preservation law to Grand Central designates a building as historic.” Terminal, a Beaux Art railroad station in midtown Manhattan, is important to preservation for several reasons: Takings claims involving the denial of permission to alter or demolish historic structures The Supreme Court laid to rest concerns over the appropriateness of governmental are also routinely dismissed. Both federal and restriction on historic property by recognizing historic preservation as a legitimate state courts have ruled that governmental governmental objective. actions under historic preservation laws that prevent landowners from realizing the highest The Court strengthened preservation programs around the country by ruling that and best use of their property are not uncon- New York City’s historic preservation laws, which restricted changes to property stitutional. A taking will not result when the designated as landmarks and historic districts, was an appropriate means for accom- owner can realize a reasonable rate of return plishing historic preservation. on his or her investment or can continue to use the property in its current condition or The Court ruled that a property owner must be denied all reasonable and beneficial use upon rehabilitation. Several courts have also of his or her property to establish a regulatory taking. The focus of a takings inquiry is ruled that a property owner must establish the entire property interest (not just the property interest directly affected) and restric- that he or she cannot recoup his or her invest- tions on property are valid so long as the owner is not denied a reasonable return on his ment in the historic property through sale of or her investment. (The Court observed that nothing in New York City’s preservation the property “as is” or upon rehabilitation. law prevented the owner from using the terminal as it had for the past 65 years.) Investment-Backed Expectations. Under the Property owners are not entitled to the highest and best use of their property. As stated by final Penn Central factor, the property owner the Supreme Court, “the submission that [property owners] may establish a ‘taking’ sim- must show that the challenged regulatory ply by showing that they have been denied the ability to exploit a property interest that action interferes with his or her “distinct they heretofore had believed was available for development is quite simply untenable.” investment-backed expectations.” Although the exact meaning of this factor is still being While the Supreme Court focused its review on the constitutionality of New York City’s debated, the general consensus is that the indi- denial of permission to construct a 55-story office tower on top of Grand Central Station, vidual circumstances surrounding the property courts throughout the country have relied upon the decision in upholding local preservation in question, such as the owner’s investment laws. The Court’s decision helped to spur considerable growth in the adoption of preser- motives or his or her primary expectation con- vation ordinances by cities and towns throughout the United States (numbered at 500 in cerning the use of the property are relevant 1978 when the Court issued its decision and more than 2,300 today). considerations. To prevail, the expectation must be objectively reasonable rather than a “mere unilateral expectation.”

In Palazzolo v. Rhode Island, the Supreme The Penn Central Test Economic Impact. The vast majority of Court ruled that the acquisition of property Character of Governmental Action. This preservation cases involving takings claims subsequent to the adoption of a law, such as prong focuses on the nature of the action in focus on the question of economic impact. To a historic preservation ordinance, does not dispute. As noted above, permanent occupa- succeed under this factor, the property owner bar a takings claim. This does not mean, tions are treated as per se takings and gov- must demonstrate that the challenged regula- however, that the existence of a preservation ernmental actions involving exactions or tion will result in the denial of the economi- law or designation of a property as historic conditioned approval are generally subject cally viable use of the land. This inquiry prior to acquiring title is not a relevant factor. to a higher level of scrutiny. Historic preser- focuses on the impact of the regulation on vation regulations are rarely challenged on the property and not the property owner. Conversely, the argument raised by property this issue. Indeed, in Penn Central, the U.S. owners, that the application of preservation Supreme Court recognized that preserving Takings claims involving the mere designa- laws unconstitutionally interferes with their historic structures is “an entirely permissible tion of properties as historic resources pur- investment-backed expectations in situations goal” and the imposition of restrictions on suant to historic preservation ordinances where the property in question has been historic property through historic preserva- under both federal and state constitutions designated after the property was pur- tion ordinances is an “appropriate means of have uniformly been rejected. As the chased, has also been rejected. Courts have securing” that purpose. Pennsylvania Supreme Court observed in found that an owner’s expectation to be free United Artists’ Theater Circuit, Inc. v. City of from regulation is not reasonable.

20 Statutory Responses While highly controversial, the impact of tak- In some situations, statutory provisions may ings laws on historic preservation has not protect individuals from potential regulatory been documented. Nonetheless, because his- takings. Many jurisdictions, for example, toric preservation laws may affect private include provisions in their preservation ordi- property, these laws are likely to have some nances that establish a separate administrative impact on efforts to regulate historic property process for considering cases of undue hard- and should be consulted where applicable. ship that may lead to potential takings claims. Commonly referred to as economic hardship Eminent Domain provisions, they enable local governments to Under the Fifth Amendment, a federal, state, address hardship claims in individual cases or local government may confiscate privately and help prevent invalidation of commission owned properties for public use, provided decisions on constitutional grounds. Economic that “just compensation” is paid. This hardship provisions are typically invoked once authority has been both helpful and harmful an owner has been denied permission to to historic properties. On the one hand, demolish or substantially alter his or her prop- scores of historic buildings have been demol- In Tahoe-Sierra Preservation Council, Inc., erty. An applicant may be required to submit ished through the application of eminent v. Tahoe Regional Planning Agency, a detailed information to show that retention or domain proceedings under urban renewal, group of property owners affected by a sale of the property is economically infeasible. transportation, and other public works pro- series of moratoria on development in the grams. On the other hand, dilapidated his- Lake Tahoe Basin argued unsuccessfully toric resources have been protected from that compensation was due for the total ruin by government seizure and subse- 32-month period in which the moratoria Due process and equal protection quent transfer to preservation organizations were in effect. require that restrictions imposed committed to rehabilitating the structures. Photo courtesy USGS. on individual rights be free from arbitrary or discriminatory The use of eminent domain or condemnation treatment and that the individual authority has become an issue of increased Due Process and Equal Protection receives sufficient notice and an importance since the U.S. Supreme Court handed down its controversial decision in Kelo Two basic constitutional concepts underlie opportunity to be heard. v. City of New London, 545 U.S. 469 (2005). all regulatory laws in the United States, In Kelo, the Court ruled that the seizure of including any effort to protect historic prop- houses for use in a major, private development erty—fairness and equal treatment. Known The standard for measuring economic hard- project that would bring jobs and tax revenues in legal terminology as “due process” and ship may vary from one jurisdiction to the to an economically distressed area satisfied the “equal protection,” they require that restric- next. Most jurisdictions, however, use the Fifth Amendment’s “public use” requirement. tions imposed on individual rights be free same standard as that for a regulatory tak- from arbitrary or discriminatory treatment ing, finding economic hardship when an In response to the public outcry against the and that the individual receives sufficient owner has been denied all economically decision, a number of states have amended notice and an opportunity to be heard. viable use of his or her property. their state constitutions and eminent domain laws. These amendments restrict Procedural Due Process A number of states have enacted so-called seizures of privately-owned property for The Fifth and Fourteenth Amendments to the “takings” laws mandating a governmental economic development if the property is to U.S. Constitution require that no person be assessment of the impact of a proposed action be transferred to another private entity. deprived of “life, liberty, or property” without on individual property owners to avoid situa- Many of these laws narrow the definition of due process of law. Generally referred to as tions that may ultimately result in a compens- “public use” and tighten existing laws relat- “procedural due process,” this constitutional able taking. A proposed regulation or ing to the identification of blighted areas. requirement is designed to protect individuals governmental action may fail to be enacted Some also strengthen procedures relating to from arbitrary governmental action by ensur- based upon its projected impact on constitu- the condemnation process. ing that the process of making, applying, and tionally-protected property rights. In a very enforcing laws is fair. The amount of protec- limited number of states, compensation may Although many of these laws may help limit tion afforded usually depends upon the type be required upon a showing by a private the use of eminent domain authority to of action being taken, the interest of the indi- owner that the value of his or her property redevelop areas with historic buildings, local vidual involved, the extent to which the gov- (and, in some cases, a portion of that prop- governments, even under the most restrictive ernmental action affects the interest at stake, erty) has been diminished by a certain per- statutes, still enjoy considerable authority. and to a lesser extent, the government’s need centage (sometimes as low as 10 percent.) to work efficiently and expeditiously.

PreservationBooks 21 In preservation cases, notice is generally provided in advance of hearings regarding the designation of historic property or consideration of an application to alter or demolish such property. Property owners or occupants of property directly affected by a proposed designation of property or by decisions relating to an application for a certificate of appropriateness are generally entitled to individual notice by mail. Although not neces- sarily a constitutional requirement, many communities also mail individual notices to nearby property owners. Notice requirements, however, may vary depending on the law of a particular state.

The right to be heard also includes the right to an impartial proceeding. Commission members must be unbiased. They must avoid prejudging a case or exhibiting per- sonal animosity against any particular individual. When a conflict of interest exists, the commission member should remove himself or herself from the decision-making process. Commission members must also avoid ex parte contacts, including any oral or written communications that are not A posted sign is one way to let property owners know about a proposed historic designation part of the public record and which other for their neighborhood. interested parties have not been given rea- Photo by Elizabeth Byrd Wood. sonable notice.

The most fundamental requirement of pro- Embraced within the hearing requirement While allegations have been made that his- cedural due process is the opportunity to be are a number of other individual rights. In a toric preservation commissions, as a whole, heard. The U.S. Supreme Court has made preservation context, for example, a prop- are institutionally biased in favor of preser- clear that a trial-type hearing is not required erty owner generally has the right to fair vation, this argument has generally failed in in every case. A hearing will be deemed suf- notice of a proposed action, such as the des- recognition that the specialized backgrounds ficient if it provides all interested persons ignation of his or her property as a historic of many individual commission members sufficient opportunity to present their cases resource, and the factors under considera- actually help to ensure fair and informed fairly in a meeting open to the public. tion. The owner should be given an oppor- decision making. tunity to present reasons in favor of or In preservation cases, a hearing is generally opposed to the proposed action as well as A number of preservation laws have been held before property is designated for pro- witnesses and relevant evidence. Finally, a challenged under the due process clause as tection under a local preservation ordinance record of the proceedings should be made, unconstitutionally vague, i.e., they are too and in considering an application to alter or and a formal decision based on the factors vague to give fair notice of the laws being demolish property once designated. Such prescribed should be issued. imposed. Courts, however, have uniformly hearings are usually “informal,” meaning rejected these challenges. Historic preserva- that witnesses are not sworn in and cross Notice must be both timely and sufficiently tion ordinances have been upheld, both examination is not required. Many jurisdic- clear so that affected individuals will be able “facially” and “as applied,” so long as pro- tions, however, follow specific statutory pro- to appear and contest issues in a meaningful cedural safeguards have been enacted to cedures relating to the timing and process way. The type of notice given generally control a preservation commission’s discre- for conducting hearings that address such depends on the interest at stake. Notice is tion and so long as the meaning of general issues as the presentation of the staff report, generally provided in one of three forms: indi- criteria and standards is discernible from the the presentation of the applicant and expert vidual mailed notice; published notice (usually facts and circumstances. For example, a witnesses, and consideration of testimony of through a local newspaper); and posted notice requirement that any new construction in a other interested persons or organizations. (usually a sign on the property at issue). historic district be consistent in scale and

22 design with existing historic structures It is important to recognize that federal and to the individual. Laws that generally impose should be able to withstand constitutional state constitutions set forth only the minimum procedural requirements, in addition to those attack since that requirement will not be requirements that must be met in adopting required under the constitution, include state considered in a vacuum but rather in the and implementing historic preservation laws. enabling laws, state sunshine laws, federal or context of nearby properties and the charac- State and local laws governing procedural state administrative procedure acts, local ter of the district as a whole. requirements as well as any court decisions land-use laws including preservation ordi- interpreting specific constitutional or statutory nances, and implementing regulations includ- requirements may provide greater protection ing any rules of procedures, or others.

CONSTITUTIONAL ISSUES AT A GLANCE

The United States Constitution contains several provisions that pro- Except for the Fifth Amendment, which provides for compensation tect the individual from the state. Included in the Bill of Rights are if a taking of property through overly burdensome regulatory action important restrictions on governmental actions that are relevant to occurs, the remedy for constitutional violations is “invalidation.” historic preservation such as a prohibition on the “taking” of prop- However, damages may be obtained through § 1983 of the Civil erty without just compensation and restrictions on free speech. These Rights Act of 1871 (42 U.S.C. § 1983), which provides relief for constitutional protections are made applicable to the states through individuals against state actions and public officials who violate the Fourteenth Amendment. In addition, the Fourteenth Amendment federally protected rights. guarantees “equal protection” under the law.

Regulatory Taking Establishment Clause Source: Fifth and Fourteenth Amendments. Source: First Amendment. Purpose: Protect against overly burdensome or confiscatory Purpose: Ensure that laws are neutral toward religion. governmental actions affecting private property. Requirement: Laws must have a secular purpose and may not Requirement: Governmental action must “substantially advance advance or inhibit religion or foster an “excessive legitimate state interest” and not deny owner entanglement” with religion. “economically viable use of his land.” Look at Remedy: Invalidation. (1) economic impact; (2) effect on “distinct-investment- backed expectations;” and (3) “character of governmen- Free Exercise Clause tal action.” Must be “nexus” between any conditions Source: First Amendment. imposed and public interest being served. Conditions Purpose: Protect against laws or governmental actions that on development must also be “roughly proportional.” inhibit the free exercise of religion or coerce individu- Remedy: Compensation. als into violating their religion. Requirement: Except for “neutral laws of general applicability,” a Procedural Due Process government may not “substantially burden” the free Source: Fifth and Fourteenth Amendment. exercise of religion unless the government can estab- Purpose: Protect the individual from arbitrary and capricious lish that the burden is the “least restrictive means” of governmental action. furthering a “compelling governmental interest.” Requirement: Government must provide individual notice and Remedy: Invalidation. opportunity to be heard before affecting protected property right. Free Speech Remedy: Invalidation. Source: First Amendment. Purpose: Protect individual against governmental restrictions Equal Protection on speech based on content. Source: Fourteenth Amendment. Requirement: Government may not abridge speech, including signs Purpose: Protect against discriminatory governmental actions. and other media used to convey ideas. However, it Requirement: Laws must be fairly and uniformly applied. can impose “reasonable time, place, and manner” Remedy: Invalidation. restrictions on speech, if those restrictions are “content-neutral” and “narrowly tailored” to meet legitimate governmental objectives. Remedy: Invalidation.

PreservationBooks 23 since the ordinance “embodie[d] a compre- While relatively few preservation-related hensive plan to preserve structures of historic cases have been brought under the First or aesthetic interest wherever they might be Amendment, claims may arise in response to found in the city.” The Supreme Court found the designation and regulation of historic it significant that more than 400 other land- religious property. Although infrequent, free marks and 31 historic districts had been des- speech claims may arise in the context of ignated under the city’s overall plan. sign regulations.

Nonetheless, the uniform application of writ- Free Exercise of Religion ten criteria and standards is critical to the While strong arguments exist in support integrity of governmental actions. While of the regulation of historic religious prop- courts have consistently ruled that criteria erty, the law in this area is still evolving. governing the designation and review of While not always consistent, the few court proposed actions affecting historic resources decisions addressing this question in the need not be precise to pass constitutional context of preservation laws provide some muster, it is clear that they must be fairly and guiding principles. uniformly applied. Note that many jurisdictions base their standards on the Secretary The controlling U.S. Supreme Court decision of the Interior’s Standards for Rehabilitation. on the free exercise issue is Employment Division v. Smith, 494 U.S. 872 (1990). In The First Amendment that decision, the Supreme Court reaffirmed The First Amendment to the U.S. Constitution prior case law which held that a government provides that “Congress shall make no law may not “substantially burden” an individ- respecting an establishment of religion, or pro- ual’s free exercise of religion unless the gov- hibiting the free exercise thereof; or abridging ernment can establish that the burden is the the freedom of speech …” The Establishment “least restrictive means” of furthering a Clause generally requires government neutral- “compelling governmental interest.” The ity toward religion. It prohibits laws that Supreme Court, however, carved out a major The Second Circuit ruled that New York advance religion or express favoritism toward exception to that rule. The Smith Court City’s denial of an application by religion or that foster “an excessive entangle- stated that “neutral laws of general applica- St. Bartholomew’s Church to demolish a ment” with religion. Thus, for example, a law bility” need not be justified by a “compelling community house adjacent to the historic that provides special funding for religious state interest” even if they substantially bur- church building to construct a 47-story office tower did not unconstitutionally schools or exempts religious property from den the exercise of religion. burden the church’s burden of free exercise. building code requirements may be found to violate the Establishment Clause. Four distinct issues should be addressed in Photo: National Trust for Historic Preservation. considering the constitutionality of the regu- The Free Exercise Clause, on the other hand, lation of historic religious properties in view prohibits governmental entities from substan- of Smith. First, what is the religious basis for tially burdening the free exercise of religion, asserting a free exercise violation? Second, is Equal Protection unless the government can establish that the the law a “neutral law of general applicabil- The Fourteenth Amendment to the U.S. burden is “the least restrictive means” of fur- ity?” If the law is found not to be neutral, Constitution, among other things, protects thering a “compelling governmental interest” then it must be determined whether, third, against any state action that would “deny to such as public health or safety. However, the law or action “substantially burdens” any person within its jurisdiction the equal “neutral laws of general applicability” need the free exercise of religion. Finally, one must protection of the laws.” This means that not be justified by a “compelling govern- consider whether the action was taken in similarly situated property should be treated mental interest,” even if “the law has the “furtherance of a compelling state interest,” similarly under the law. Different treatment, incidental effect of burdening a particular and, if so, whether the action is “the least however, of similar property will be upheld religious practice.” A law designed to pro- restrictive means” of furthering that interest. if reasonable grounds exist for the disparity. mote secular objectives, for example, such Because historic preservation is generally not as protecting historic buildings from demoli- viewed as a compelling state interest, free Equal protection claims rarely succeed in his- tion, would not burden the free exercise of exercise cases in this area are lost once a toric preservation cases. In Penn Central, the religion even though a congregation may be court has determined that the free exercise of Supreme Court ruled that a landmarks ordi- required to spend additional money to reha- religion has been substantially burdened. nance that singled out selected properties for bilitate rather than demolish and rebuild a landmark designation was not discriminatory historic house of worship.

24 Religious Basis for Objection. The Supreme law of general applicability); and City of City, 914 F.2d 348 (1990), the leading fed- Court has made clear that the individual or Ypsilanti v. First Presbyterian Church of eral court case on this issue, the Second institution seeking exemption from govern- Ypsilanti, No. 191397 (Mich. Ct. App. Feb. Circuit, found that the application of the mental laws under the First Amendment 3, 1998) (Ypsilanti preservation ordinance is landmark law to a church-owned structure must first show that the conduct in question “a law of general application which does did not impose an unconstitutional burden is grounded in religious belief. In other not burden [the church] any more than on the free exercise of religion, even though words, the question of whether a religious other citizens, let alone burden [the church] the law “drastically restricted the church’s property owner has a viable free exercise because of its religious beliefs.”) ability to raise revenues to carry out its vari- claim depends on the religious nature of the ous charitable and ministerial programs.” objection. Not every change that a religious The Supreme Court in Smith, however, recog- See also, City of Ypsilanti v. First property owner desires to make to its prop- nized two limitations on its general rule that Presbyterian Church of Ypsilanti, No. erty implicates the Free Exercise Clause. substantial burdens on the free exercise of 191397 (Mich. Ct. App. Feb. 3, 1998), in Alterations to historic religious property religion need not be justified by a compelling which the Michigan Court of Appeals recog- based on practical considerations rather governmental interest: (1) where the govern- nized that the alleged “burdens are still only than theological choice warrant no more ment “has in place a system of individual incidental effects of the ordinance . . . [and protection than changes to secular property. exemptions;” and (2) where the substantial do] not burden [the religious organization] For example, courts have ruled that maxi- burden involves another constitutionally pro- any more than other citizens, let alone the mizing the value of real estate owned by tected right. There is little guidance on the religious organization because of its religious religious organizations or covering a historic law in this area. Constitutional experts main- beliefs,” and Diocese of Toledo v. Toledo house of worship with vinyl siding does not tain that exceptions under historic preserva- City-Lucas County Plan Commissions, Case constitute “exercise of religion.” tion laws, such as “economic hardship No. 97-3710 (Ohio Ct. Common Pleas Mar. provisions,” do not trigger the “individualized 31, 1998) (church failed to establish that Although distinguishing between religious exemptions” limitation because they do not denial of permit to demolish a historic house and non-religious changes to historic reli- invite “religiously motivated discrimination.” to construct a parking lot amounted to “an gious property may be difficult, determina- See, e.g, Laura S. Nelson, “Remove Not the undue burden on the Diocese’s right to freely tions are generally based on whether a Ancient Landmark: Legal Protection for exercise religion” or that “the denial pre- proposed change stems from a “sincerely Historic Religious Properties in an Age of vents the Diocese from continuing existing held belief,” such as the need to replace a Religious Freedom Protection,” 21 Cardozo charitable and religious activities.”) cruciform-shaped window with the Star of Law Review 740-753 (Dec. 1999). Courts are David. If a religious property owner estab- also generally in accord. See, e.g., Cambodian Note that some courts have dismissed free lishes that the belief is “sincerely held” and Buddhist Soc. of Connecticut, Inc. v. Planning exercise claims on the basis that the claim is the change is “religious in character,” then and Zoning Comm'n of Town of Newtown, not yet “ripe” for review, meaning that judi- the government must accept those assertions 941 A. 2d 868 (Conn. 2008) and Grace cial review would be premature because the as true even if it considers them to be illogi- United Methodist Church v. Cheyenne, 451 F. jurisdiction being sued has not had the oppor- cal or incomprehensible. 3d 643 (10th Cir. 2006). But see, Keeler v. tunity to make a final, concrete decision on Mayor & City Council, 940 F. Supp. 879 (D. what alterations or other actions it will permit “Neutral Law of General Applicability.” Md. 1996) and Mount St. Scholastica v. City a religious entity to make on the subject prop- Historic preservation laws are generally of Atchison, 482 F. Supp. 2d 1281 (D. Kans. erty. There is still some potential that a consti- viewed as “neutral laws of general applica- 2007). While some religious property owners tutional violation will not occur. See, e.g., bility.” The object of such laws is to pro- have argued that historic preservation laws Metropolitan Baptist Church v. Consumer mote the preservation of historic properties, fall into the “hybrid” constitutional rights Affairs, 718 A.2d 119 (D.C. 1998), and rather than the suppression of religious con- limitation on the basis that such laws infringe Church of Saint Paul & Saint Andrew v. duct. Moreover, they seek to preserve all on both free exercise and free speech rights, Barwick, 496 N.E.2d 183 (N.Y. 1986). historic properties, whether secular or reli- no court has applied this limitation in the gious, and without regard to the religious context of historic properties. Compelling State Interest. In the event that a orientation of the property owner. See, e.g., preservation law is deemed “non-neutral” or Rector, Warden & Members of the Vestry of “Substantial Burden on Religion.” Court not of “general applicability,” and the regula- St. Bartholomew’s Church v. New York decisions addressing this issue are both mod- tion of historic religious property would result City, 914 F.2d 348 (2d. Cir. 1990), cert. est in number and conflicting in result. in a “substantial burden” on the free exercise denied, 499 U.S. 905 (1991) (New York Nonetheless, the prevailing view is that of religion, any restrictions under the law City’s landmark law is neutral law of gen- enforcement of historic preservation laws must be justified by the virtually insurmount- eral applicability); First Church of Christ v. against historic religious property owners able “compelling state interest” test, which Ridgefield Historic District Comm’n, 737 does not impose a “substantial burden on only applies to government interests such as A. 2d 989 (Conn. App. 1999) (Ridgefield religion.” In Rectors, Wardens & Members public safety. No court thus far has ruled that historic preservation ordinance is neutral of St. Bartholomew’s Church v. New York historic preservation meets that test.

PreservationBooks 25 The Washington Cases. In a trilogy of cases ther advances nor inhibits religion. See Lemon Although the RLUIPA applies to a broad from the State of Washington, the v. Kurtzman, 403 U.S. 602 (1971). To avoid range of religious activity, it does not pro- Washington Supreme Court has either con- having an impermissible “primary effect,” the vide immunity from historic preservation strued the first amendment more restric- governmental action must not “(1) result in and other land-use laws. Courts have uni- tively against the government or recognized governmental indoctrination; (2) define its formly rejected attempts to make the term additional protections for historic religious recipients by reference to religion; or (3) cre- “substantial burden” meaningless, by find- property owners beyond those guaranteed ate an excessive entanglement.” Agostini v. ing that it applies to broad range of effects by the federal constitution. Among other Felton, 521 U.S. 203 (1997). that inhibit or constrain religious exercise. things, the Washington court found that Rather, they view the “substantial burden” Seattle’s preservation law was not a neutral In interpreting these requirements, the requirement as an important limitation on law of general applicability and that even Supreme Court has said that government the law’s scope and have dismissed claims the nomination of religious-owned historic may “accommodate” religion, but only where the burdens on religious exercise have property violates the free exercise clause. where accommodation is necessary to been incidental or similar to the type of bur- These decisions reflect a marked departure remove governmental intrusions into per- dens experienced by any property owner. from controlling U.S. Supreme Court prece- sonal religious beliefs or practice (which, in No single standard for measuring “substan- dent on the free exercise clause. turn, may require analysis under the Free tial burden” has been adopted. Most federal Exercise Clause). Moreover, although a law appeals courts agree, however, that substan- The Establishment of Religion. In addition may incidentally benefit religion, it must tial burden must be interpreted in a manner to prohibiting substantial burdens on the have a secular effect. Finally, consistent with consistent with First Amendment law and free exercise of religion stemming from non- this approach, the Court has recognized that thus require a showing of coercion or signif- neutral, generally applicable laws, the First some intermingling between church and icant restraint on religious exercise. See J. Amendment to the U.S. Constitution also state is inevitable in today’s world. Miller, Regulating Historic Religious prohibits the establishment of religion. This However, excessive entanglement is imper- Properties under the Religious Land Use prohibition does more than preclude the missible. Governmental actions that require and Institutionalized Persons Act (National federal government or a state from setting substantial intrusion into the doctrinal Trust for Historic Preservation, 2007). up an “official” church. It also prohibits the affairs of religious entities are not allowed. adoption of laws that aid religion, or that Finally, governmental entities should be give preference to one religion over another Applying these factors, a federal district aware that even if a claimant establishes a religion, or religion in general over non-reli- court upheld city funding of repairs and substantial burden on religious exercise, gion. In essence, government must be neu- improvements for three historic churches in accommodations made by a local entity to tral toward religion. Detroit against an Establishment Clause relieve the burden must be accepted unless claim. See American Atheists v. City of they are “unreasonable” or “ineffective.” The Establishment Clause and the Free Detroit Downtown Development Authority, This is an important limitation in matters Exercise Clause work in tandem with each 503 F. Supp. 2d 845 (E.D. Mich. 2007). involving historic properties, because it other, striving for the appropriate balance should lead to negotiations that result in between church and state. On the one hand, Statutory Protections. Efforts have been preservation-based solutions. the government may not enact laws or fund taken at both the federal and state levels to programs that are favorable to, or which give provide statutory protection for religious While the RLUIPA has had a noticeable preference to, religious entities. On the other property owners. The primary law at the chilling effect on local government activities hand, government may not enact laws or federal level is the Religious Land Use and involving historic properties, only one fund programs that discriminate against reli- Institutionalized Persons Act (RLUIPA), 42 preservation case has been reported thus far. gious entities. An issue in many Establishment U.S.C. § 2000cc. Signed into law in 2000, In Episcopal Student Foundation v. City of Clause cases, in effect, is where to draw the this act prohibits any government from Ann Arbor, 341 F. Supp. 2d 691, 709 (E.D. line between religious preference and religious enacting or applying land-use laws, includ- Mich. 2004), a federal district court dis- exercise. For example, under what circum- ing historic preservation laws, to property missed a RLUIPA claim because the preser- stances may a governmental entity fund the owned or used by individuals or religious vation commission’s denial of a permit to restoration of a historic church? institutions in a manner that would “sub- demolish a student worship facility did not stantially burden” religious exercise without substantially burden the organization’s free While the answer is rarely clear cut, the U.S. a compelling state interest, such as public exercise rights. The court reasoned that the Supreme Court has provided some guidance health and safety. The RLUIPA also requires commission’s action did not “force [the on how to evaluate Establishment Clause “equal treatment” of religious and non-reli- organization] to choose between pursuing claims. To survive constitutional scrutiny, the gious entities and prohibits discrimination its religious beliefs and incurring criminal challenged governmental action or program against religious institutions or assemblies. penalties or forgoing government benefits.” must (1) serve a secular governmental pur- Successful claimants are entitled to attor- pose and (2) have a primary effect that nei- neys’ fees and possibly damages.

26 It also did not prevent the organization “from engaging in religious worship, or other religious activities.”

The vast majority of court challenges brought under the RLUIPA, to date, have primarily focused on land-use challenges involving the exclusion of religious properties from certain locations or discriminatory actions by prison officials in matters involving institutionalized persons.

By way of background, the RLUIPA was adopted in response to the U.S. Supreme Court’s ruling in City of Boerne v. Flores, 521 U.S. 507 (1997), that the act’s predecessor, the Religious Freedom Restoration Act (RFRA), 42 U.S.C. § 2000bb et seq., was unconstitutional as applied to the states. Among other things, the Court found that Congress had exceeded its authority in enacting the RFRA, by mandating that the Free Exercise Clause afford more protection than that required by the Supreme Court under Employment Division v. Smith. (Note that RFRA is still applied to federal agency actions. See Gonzales v. O Centro Espirita Beneficiente Uniao Do Vegetal, 546 U.S. 418 (2006).)

As with the RFRA, the RLUIPA was Free speech questions may arise in the context of sign regulations in historic districts. adopted in response to the Court’s ruling in Smith. Although the law’s constitutionality Photo courtesy of the National Trust for Historic Preservation. as applied to challenges to state or local land-use and preservation actions has not been resolved, the U.S. Supreme Court upheld the law as applied under its “institu- A limited number of state and local govern- Free Speech tionalized persons” prong in 2005. See ments have responded to concerns raised by First Amendment claims have also surfaced Cutter v. Wilkinson, 544 U.S. 709 (2005). religious property owners over the land- in the context of alleged violations of free marking of their property with the adoption speech resulting from efforts to regulate At least 11 states have also enacted varying of historic religious property exemptions signs or other activities in historic districts. forms of the RFRA, enabling religious prop- from historic preservation laws. As with free exercise of religion claims, there erty owners to seek redress from state and are only a handful of court decisions on this local governments that substantially burden Strong arguments exist that religious rights particular issue in a preservation context. their religious rights without a compelling statutes violate the Establishment Clause of However, a substantial body of state and governmental reason. Although preservation the First Amendment, which requires neu- federal case law exists on the question of the actions have been challenged in court under trality toward religion. (See discussion on constitutionality of sign regulations, in par- both federal and state RFRA grounds, no the Establishment Clause above.) The ticular, and free speech, overall. court has ruled in favor of a religious prop- California Supreme Court, however, upheld erty owner on such grounds. See, e.g., First a provision in a California preservation In general, the First Amendment to the U.S. Church of Christ v. Historic District statute that enables religious property own- Constitution bars the regulation of speech, Commission, 737 A.2d 989 (Conn. App. ers to exempt themselves from local preser- including signs, on the basis of content. 1999), cert. denied, 742 A.2d 358 (Conn. vation laws, against such a claim. See East Thus, a community-wide ban on all political 1999) (upholding denial of application to Bay Asian Local Development Corp. v. signs or a ban that excluded political signs install vinyl siding on historic church against State of California, 13 P.3d 1122 (Cal. but allowed commercial signs would be state RFRA claim). 2000), cert. denied, 532 U.S. 108 (2001). unconstitutional. See Ladue v. City of Gilleo,

PreservationBooks 27 Easements can be used to protect both the interior and exterior of historic buildings. The National Trust holds an easement on the John H. Doughty House in Absecon, N.J.

Photo courtesy of the National Trust for Historic Preservation.

512 U.S. 43 (1994). In some cases, even the all commercial newsracks while permitting Restrictions on speech must also be “nar- imposition of permitting requirements may noncommercial newsracks on the basis that rowly tailored” to meet governmental objec- also be viewed as unconstitutional. See Lusk the city’s action lacked a close relationship tives. A law need not employ the least v. Village of Coldspring, 475 F.3d 480 (2d to its stated purpose of addressing aesthetic restrictive means to satisfy the governmental Cir. 2007) (ruling that a provision under the and safety concerns. While distinctions objective at issue. Nonetheless, restrictions town’s preservation ordinance, which between on-premises (business identifica- on speech should not be “substantially required a permit prior to displaying a politi- tion) signs and off-premises (billboards and broader than necessary.” cal sign, was unconstitutional as an imper- other types of advertising) signs is gener- missible prior restraint on free speech). ally permissible, any exceptions within The vast majority of free speech questions those categories must be carefully justified. arise in the context of sign regulations in his- In considering the neutrality of sign regula- toric districts, however, free speech questions tions, it is important to recognize that Generally speaking, a government can have surfaced in other contexts as well. Free “non-commercial” signs and other forms impose reasonable time, place, and manner speech claims have been raised, although of “pure” speech involving political or reli- restrictions on speech if those restrictions unsuccessfully, in preservation cases involving gious messages will be afforded greater are “content-neutral.” Laws that have “an a total ban on newspaper vending machines protection than commercial speech. incidental effect” on some speakers or mes- in a historic district, the distribution of adver- However, this does not mean, in turn, that sages and not others will be upheld as con- tising leaflets in a historic district, restrictions regulations favoring non-commercial tent-neutral so long as they serve some on off-premise, person-to-person canvassing speech over commercial speech will neces- purpose unrelated to the content of the reg- and the use of sidewalk tables to distribute sarily be upheld. For example, the U.S. ulated speech. Historic preservation and aes- leaflets and sell shirts, and the regulation of Supreme Court in City of Cincinnati v. thetic considerations are judicially murals, per se, and the denial of permission Discovery Network, Inc., 507 U.S. 410 recognized police power objectives. to paint a mural on the wall of a commercial (1993), struck down an ordinance banning building in a historic district.

28 VOLUNTARY APPROACHES property may be donated to preservation orga- Easement Programs TO HISTORIC RESOURCE nizations, along with special endowments to Historic properties are frequently protected PROTECTION ensure its maintenance over time, through by preservation or conservation easements. charitable giving or estate planning techniques. Conservation easements are partial restrictions A variety of programs encourage the preser- on land for conservation purposes which may vation of privately-owned historic resources In considering how best to protect a historic include historic preservation, scenic preserva- through voluntary action ranging from preser- resource, such as a house, it is important to tion, archeology, and so forth. Conservation vation easements to tax incentives. These pro- address the viability of the resource over easements, for example, may be used to programs often play a critical role in historic time. In some instances, property may be tect important archeological resources located preservation by encouraging protection for better protected if used as a house or office on privately-owned property. significant resources where regulatory protec- rather than preserved as a house museum tion measures do not exist or by augmenting with limited resources. The term preservation easement refers to existing regulatory programs by providing a easements on historic property. This type of higher degree and/or more lasting protection. Revolving Funds and Land Trusts easement may be used to preserve the facade While revolving funds may be established by of the building (facade easement) and/or the Direct Acquisition either private or governmental entities, they entire structure and surrounding land. For many years historic resources within the are generally operated at the private level by United States have been protected through vol- historic preservation and other charitable Under Section 170(h) of the Internal untary efforts accomplished primarily by organizations (who can accept tax- Revenue Code, historic property owners acquisition. Often limited to places associated deductible donations). Revolving funds are may receive a charitable tax deduction for with important people or significant historic typically established through donations, the donation of a conservation easement. events, these resources are often purchased by grants, or loans of money that generate To be deductible, however, the easement must government entities or nonprofit organizations income sufficient to finance the acquisition meet a number of conditions. In particular, and generally operated as house museums. of threatened properties. Upon acquisition, properties must be donated to a qualified the property is either rehabilitated and sold charitable organization and the property While this approach to preservation is still or sold with protective covenants or preser- must qualify as a “historically important used today, alternative methods have been vation easements. The proceeds from the land area” or a “certified historic struc- developed to preserve historic resources with- resale are then used to replenish the fund. ture.” Special rules apply to contributing out converting them to museum use, which properties in registered historic districts. requires a significant financial investment. Revolving fund money may be used to pur- Historic resources may be purchased through chase historic property directly or to finance The easement donation is usually docu- revolving funds and then resold after restric- the purchase or rehabilitation by another mented in the form of an easement agree- tions have been imposed. Historic properties entity or individual. Organizations with ment. The agreement spells out the rights of may also be protected by acquiring easements revolving funds may serve as a lender when the “holding organization” or donee, and is or partial interests in property, which give other sources of money are unavailable or recorded on the deed of record. While ease- preservation organizations or public entities the terms for other loans are too restrictive ments may be of lesser duration, an ease- the right to approve changes to properties for or expensive. In addition to providing direct ment must be “perpetual” to qualify for a period of years or in perpetuity. loans, organizations may also, through their federal tax benefits. Regulations governing revolving funds, provide loan guarantees or “qualified conservation contributions” are House Museums participate in the lending of money with set forth at Section 170 (h) of the Internal Many of our nation’s most important his- other financial institutions. Revenue Code and Section 1.170A-14 of toric properties are preserved as house the Treasury Regulations. museums. This form of protection generally Historic, archeological, environmental, and involves restoration of the interior and exte- other resources may also be protected through Historic preservation organizations often rior of the building and preservation of the land trusts. By acquiring parcels of land and/or serve as recipients of preservation ease- surrounding landscape. Because house partial interests in property, nonprofit organiza- ments. As a recipient, the organization is museums are generally open to the public, tions with limited funds can provide long-term responsible for monitoring and enforcing they often play a key role in attracting stewardship of important resources. Land trusts the restrictions spelled out in the easement tourism to specific areas. often work directly with private landowners, agreement. If the property owner subject to soliciting donations of land, development rights, the easement violates the terms of the agree- Historic museums may be owned and oper- and conservation easements. When critical ment, then the organization has the legal ated by public and/or private organizations. parcels of land cannot be obtained, donations right to require the owner to correct the vio- The level of protection often depends upon the may be sought to purchase the land. lation and, if necessary, restore the property resources available to restore the property or to its prior condition. make necessary repairs. In some instances,

PreservationBooks 29 Organizations operating easement programs generally establish an application process, written criteria for accepting easements, and a standard easement agreement which can be modified based on the particular resource at issue. Fees are often imposed to cover costs associated with monitoring the easement (i.e., in the form of an endowment). For detailed information on establishing and operating easement programs, see Establishing and Operating and Easement Program (National Trust for Historic Preservation, 2007) and Best Practices for Preservation Organizations Involved in Easement and Land Stewardship (National Trust for Historic Preservation, 2008).

Tax Incentives Tax incentive programs generally address three important objectives: they provide monetary support for owners of property subject to preservation laws; they counter private and public land-use policies that tend to favor demolition and new construction; and they encourage the rehabilitation Federal tax incentives have been used to rehabilitate both commercial and residential income-producing property throughout the country. The Bedford Springs Resort in of historic structures. While no one incen- south-central Pennsylvania was recently restored to its historic grandeur after a $120 tive program accomplishes all three objec- million restoration which took advantage of the federal historic rehabilitation tax credits. tives, meaningful tax incentives have been adopted at the federal, state, and increas- Photos by Adrian Scott Fine. ingly, the local level. Frequently, these incentives are combined to make a historic rehabilitation project economically viable.

Federal Tax Incentives The federal government encourages the preservation and rehabilitation of historic structures and other resources through tax incentives. By rehabilitating eligible buildings or investing in such projects, taxpayers can recoup dollar for dollar expenditures in the form of a credit from tax owed if certain criteria and standards are met. Taxpayers may also deduct from their taxable income, in the form of a “charitable tax deduction,” the value of donated, full, or partial interests in historic property.

Perhaps the best known incentive to preserve historic property is the historic rehabilitation tax credit. This incentive gives property owners either a 10 or 20 percent tax credit on rehabilitation expenses, depending upon the classification of the building at issue. “Certified historic structures” (residential investment and commercial property) are eligible for a 20 percent credit while noncerti-

30 fied, nonresidential property placed in service before 1936 is eligible for a 10 percent credit. See I.R.C. § 47.

Several specific conditions must be satisfied to qualify for the credit. In addition to being historic, the building must be income producing, not an owner-occupied residence, and “placed in service” before the beginning of the rehabilitation, meaning the structure must have been used as a building before being rehabilitated. Most importantly, the building must be “substantially rehabilitated” and the rehabilitation must be a “qualified rehabilitation.” In other words, rehabilitation costs must exceed the adjusted basis of the building or $5,000, and the work performed must meet preservation standards. See I.R.C. § 47 and Treas. Reg. § 1.46, et. seq.

Credits from “passive activities” (those in which the taxpayer is not involved on a regular, continuous, and substantial basis) may not be used to offset income and taxes owed Congress created the New Markets Tax Credit to stimulate long-term investment in the from “non-passive activities.” For example, economic development of low-income communities. The Harmony Mills complex in Cohoes, partner investors in rehabilitation projects N.Y., was converted into loft apartments using the historic and new markets tax credits. would not be able to apply the rehabilita- Photo courtesy of the National Trust for Historic Preservation. tion credit against wages and portfolio income such as stock dividends and interest on bank accounts. A credit, however, may be carried over to future tax years to offset Development Entities (CDEs), which in (NTCIC), is a CDE. Through the NTCIC, taxes from passive activities. turn, award credits to taxpayers that invest which has been awarded two allocations of money in a CDE program. The taxpayer tax credits, taxpayers can participate directly A rehabilitation tax credit may not be taken can receive up to 39 percent in new markets in historic rehabilitation projects or invest in until the Secretary of the Department of the tax credits over a seven-year period. conduit funds that serve, for example, his- Interior has certified that the building at toric Main Street businesses. issue is historic and the rehabilitation has A CDE is an investment fund, also certified met specific standards. Certifications of his- by the CDIF, whose primary mission is to Charitable Giving Rules toric significance and certifications of reha- serve or provide investment capital for low- The federal government encourages the dona- bilitation work are obtained from the income areas. Through CDEs, which can tion of historic property through its charitable National Park Service upon review by the include, for example, community develop- giving rules. Generally speaking, a taxpayer is appropriate state historic preservation offi- ment corporations, community development entitled to a deduction from taxable income cer. Regulations governing the certification banks, small business investment corpora- or taxable estates and gifts, the amount of process are set forth at 36 C.F.R. Part 67. tions, and other entities, taxpayers invest in money or the fair market value of property businesses serving low-income areas in the donated to a charitable organization. With The New Markets Tax Credit form of loans, equity investments, and finan- respect to charitable contribution deductions Congress established a new program under cial counseling. By creating alliances with from income, the value of the deduction may § 121 of the Community Renewal Tax Relief financial institutions, real estate developers, depend upon the taxpayer’s adjusted gross Act of 2000, which provides funding oppor- nonprofit corporations, and other taxpayers, income and the type of property donated. tunities for historic business districts in low- the CDE has access to sufficient capital and Deductions for estate and gift tax purposes, income communities. Through a competitive business acumen to ensure economic success. however, are generally unlimited. process, the Community Development Financial Institutions Fund (CDIF), a divi- The National Trust for Historic Preservation’s For historic preservation purposes, charitable sion of the U.S. Treasury, awards tax credit for-profit subsidiary, The National Trust organizations include governmental entities, if allocations to qualified Community Community Investment Corporation the contribution is made exclusively for public

PreservationBooks 31 purposes, and a variety of educational and I.R.C. § 170(h); I.R.C. §§ 2055(f) and 2522; may be completely or partially exempt from nonprofit organizations. See I.R.C. §§ and Treas. Reg. § 1.170A, et. seq. Among taxation, sometimes based on the difference 170(c)(1) & (2). To qualify as a charitable other requirements, the donor must agree, in between the property’s assessed value before organization, nonprofit organizations must the form of a recordable deed, to relinquish and after rehabilitation. obtain a determination letter from the Internal his or her rights to demolish, alter, or develop Revenue Service attesting to their status as a the property, in perpetuity, to a qualified orga- Most states link their incentive programs to tax-exempt organization under Section nization. Upon donation, the donor and all historic rehabilitations, generally requiring 501(c)(3) of the Internal Revenue Code. subsequent property owners will not be able that a historic property be at least partially to change the property without the express renovated. A limited number of states, how- Historic resources are generally donated as permission of the recipient organization. ever, provide relief based solely upon desig- part of lifetime and estate planning objec- nation as a historic landmark. tives, including the deferral and reduction of The value of the easement is the difference the overall tax burden of the property owner between the property’s fair market value With few exceptions, property tax incentives and his or her survivors as well as the con- before donation of the easement and its fair are generally not used statewide. Most states tinued preservation of the property into the market value afterward. In order to obtain limit tax relief to jurisdictions that have opted future. The fundamentals of lifetime and the charitable deduction, the donor must to participate in the program. In at least one estate planning are beyond the scope of this retain a professional appraiser to value the state, however jurisdictions are automatically publication. Generally speaking, however, a donated easement, unless the donation is included in the program unless they have historic property owner can ensure the worth less than $5,000. opted out. preservation of a historic resource by donating the structure to a preservation or other State and Local Tax Incentives A few states provide relief in the form of a charitable organization. A historic house, for Several jurisdictions provide special incentives credit from state income tax for preserva- example, may be given to a preservation to encourage the maintenance and rehabilitation projects. Similar in many respects to the organization for use as a museum or for tion of historic properties, typically in the form federal rehabilitation tax credit, relief is pro- future sale with restrictions that protect the of property and/or income tax relief. As with vided to owners of historic property who building in perpetuity. Alternatively, historic federal income tax incentives, relief is generally substantially rehabilitate their property property may be donated to a non-preserva- available only to owners of qualified historic according to preservation standards. The tion organization with preservation restric- properties making qualified rehabilitations. incentive may be tied directly to the federal tions already in place. In some cases a The size of the incentive is directly propor- income tax credit or provided indepen- “charitable remainder” gift of historic prop- tional to the size of the rehabilitation. State dently, based on state-enacted procedures. erty may be made to an organization, allow- and local tax incentives may be available on ing for the retention of a “life estate” to rehabilitations for either or both, income pro- Again, the size of the credit and the mini- allow the immediate family to reside in the ducing and non-income producing property. mum amount of money that must be spent house until the death of the donor. varies from state to state. Some jurisdictions Tax incentive programs are typically admin- also impose a “cap” or ceiling on the amount istered at the state level by the state historic of the credit that can be taken each year. [A] historic property owner can preservation office. Although infrequent, local incentives may be provided in the form Combining Incentives ensure the preservation of a of property tax relief or as a credit from The economic viability of rehabilitation historic resource by donating the local taxes. Most state and local govern- projects is sometimes dependant upon the structure to a preservation or ments use the Secretary of the Interior’s combining of the federal historic rehabilita- other charitable organization. Standards for Rehabilitation in certifying tion tax credit with other federal and state historic rehabilitations. programs. In addition to the New Markets Tax Credit program, discussed above, Property tax relief is generally provided in one investors in the rehabilitation of low-income Historic resources may also be preserved of three ways: a property assessment freeze, a rental housing properties, for example, may through the donation of partial interests in property tax abatement, or a property tax be eligible for a low-income housing tax property, commonly referred to as preserva- exemption. Under a property assessment credit, renewal community tax incentives, tion or conservation easements. As discussed freeze, the assessed value of rehabilitated empowerment zone tax incentives, or other above, owners of historic properties who property is frozen at the pre-rehabilitation incentives. Taxpayers often seek both fed- donate easements, or partial interests in their assessed value for a set number of years. eral and state rehabilitation tax credits and, property, to qualified preservation or conser- Under a property tax abatement, the tax in some cases, a preservation easement may vation organizations may be eligible for a owed on historic property is “abated” or also be donated. For further information, charitable contribution deduction under reduced for a period of time. Finally, under a consult your tax attorney. Section 170 of the Internal Revenue Code. property tax exemption, historic property

32 OTHER RELATED LAWS AND ISSUES

A number of miscellaneous laws come into play in any resource protection program. While many of these laws address concerns unrelated to historic resource protection, they often include provisions that may either enhance or curtail preservation efforts.

Access Laws Increasingly, state and federal governments are enacting laws that prohibit discrimination against persons with disabilities. While historic property owners, in general, must meet each law’s specific requirements, alternative measures of compliance may be applied if the historic resource would otherwise be threatened or destroyed. The most comprehensive example of this type of legislation, to date, is the Americans with Disabilities Act, 42 U.S.C. §§ 12101-12213, (ADA). This law prohibits discrimination to individuals with disabilities in a wide range of circumstances including private sector employment, public services, transportation, telecommunications, and most significantly for historic resources, places of public accommodation.

The level of compliance under the ADA generally depends on the classification of the facility. The ADA requires, for example, that government buildings, “places of public accommodation” such as hotels and restaurants, and “commercial facilities,” including office buildings and warehouses, be “readily The Americans with Disabilities Act requires that public entities make services, programs, accessible” to the disabled. The law estab- or activities accessible and usable by disabled persons. Historic sites should be made lishes specific accessibility requirements for accessible to the maximum extent feasible, although alternative methods of compliance new construction and alterations to existing may be used if the historic resources would be threatened or destroyed. structures and, requires the removal of exist- Photo by Elizabeth Byrd Wood. ing architectural or communication barriers when their removal is “readily achievable.” Finally, all public entities must make any service, program, or activity readily accessible threatened or destroyed. In most cases, the alternative methods of compliance may be and usable by disabled persons. entity making the alteration must consult with provided. Public entities are also not required the state historic preservation officer regarding to take any action that would threaten or In general, owners, lessees, or operators of his- accessibility requirements. destroy a property’s historic significance. toric buildings, structures, or sites must comply with the ADA. Alterations to “qualified” Architectural barriers such as steps or narrow The ADA is primarily enforced through suits historic buildings and facilities, including the doors and communication barriers such as brought by individuals who believe that they construction of new additions or renovation of high mounted telephones, must be removed have been discriminated against. In addition, existing spaces, for example, should be made from historic resources that are used as “pub- the U.S. Attorney General may initiate com- readily accessible to the maximum extent fea- lic accommodations,” if “readily achievable.” pliance review and sue for injunctive relief sible. Alternative measures of compliance may If the barrier removal would destroy the his- and monetary damages. Note that federal be used if the historic resource would be torical significance of the building, however, buildings and federally-funded facilities cov-

PreservationBooks 33 ered by the Architectural Barriers Act of www.access-board.gov. ADA regulations The Department of Housing and Urban 1968 (ABA) must satisfy the Uniform can be found on the Justice Department’s Development (HUD) issued new regulations Federal Accessibility Standards as well as website at www.usdoj.gov/crt/ada. governing lead paint abatement and removal Section 106 of the NHPA. State and local in 1999, which became effective in September access codes also may differ from the ADA Environmental Hazard Laws 2000. Codified at 24 C.F.R. Part 35, the reg- and may be enforced in other ways. Special environmental liability laws, enacted ulations set forth specific requirements for at the federal and state level, apply to indi- risk assessment, treatment, and ongoing viduals who own, or have a financial interest maintenance of lead paint on any federally- in property with environmental hazards. assisted or federally-owned residential prop- Historic preservation organizations Historic preservation organizations directly erty constructed before 1978. Specific directly involved in real estate involved in real estate activities as owners, requirements vary depending on the funding activities as owners, developers, developers, or holders of preservation ease- source and agencies involved, but they may ments may be directly liable for environmen- include risk assessment, repair or removal of or holders of preservation tal problems associated with such property. deteriorated paint, and contaminated dust easements may be directly liable Historic preservation organizations lending “clearance.” For detailed information on lead for environmental problems money secured by real property may also be paint requirements, visit HUD’s website at associated with such property. liable under certain circumstances. www.hud.gov/lead/leadpboff.cfm or contact the National Lead Information Center at The most sweeping law governing liability for 1-800-424 LEAD. hazardous substances is the Comprehensive The federal Access Board adopted revised Environmental Response, Compensation and Liability for hazardous wastes may be found ADA Accessible Guidelines (ADAAG) in Liability Act (CERCLA or “Superfund” act), under the following federal and state laws: 2004. The new ADAAG includes a scoping 42 U.S.C. §§ 9601-9675, which authorizes document for ADA facilities, which govern the federal government to clean up hazardous the Resource Conservation and Recovery facilities in the private sector (places of public substance releases and recover damages and Act, 42 U.S.C. § 6901, et. seq. (which accommodation and commercial facilities) and associated costs from those who own or regulates the treatment, storage, and dis- the public sector (state and local government “control” the property. posal of hazardous wastes); facilities); a scoping document for ABA facili- the Asbestos Hazard Emergency Response ties, which addresses facilities in the federal In addition to other environmental hazards, Act of 1986, 15 U.S.C. § 2641 (which sector, and a common set of technical criteria the following federal laws address lead- addresses the removal and containment that each scoping section will reference. In based paint hazards: of asbestos); and contrast to the prior guidelines, specific stan- the Occupational Health and Safety Act, dards applicable to historic properties are the Residential Lead-Based Paint Hazard 29 U.S.C.A. § 651678 (29 C.F.R. §§ interspersed throughout the publication rather Reduction Act of 1992, 42 U.S.C. §§ 4851- 1910.1001 and 1929.58) (which estab- than contained in a single section. 4856 (which imposes specific abatement lishes asbestos standards applicable to and disclosure requirements governing lead- employers before, during, and after a The revised ADAAG is advisory until for- based paint in residential property); rehabilitation project). mally adopted by a regulatory agency, at the Lead Paint Poisoning Prevention Act of which time they will have the force of law. 1971, 42 U.S.C. § 4821, et. seq. (which Finally, liability may be imposed under the Current regulations for the ADA are set sets forth specific inspection and lead- Toxic Substances Control Act, 15 U.S.C. § forth at 28 C.F.R. §§ 5.149-151 (state and based paint abatement requirements on 2601, et. seq., mentioned above, which applies local governments) and 28 C.F.R. § 36.4-1- federally-owned and assisted housing); and to abandoned or improperly used or disposed 406 (public accommodations). The Justice the Toxic Substances Control Act, 15 sources of toxic substances, such as PCBs, and Department has not yet incorporated the U.S.C. § 2601, et. seq. (which directs fed- the Clean Water Act, 33 U.S.C. § 1251, et. new standards into its ADA regulations. eral agencies to enact regulations govern- seq., which governs unlawful discharges to However, the U.S. Department of ing lead-based paint training programs surface or ground water. Several states have Transportation, the General Services and certification procedures for contrac- enacted some form of “superfund” legislation, Administration, and the U.S. Postal Service tors involved in lead-based paint removal, imposing liability on property owners for have adopted portions of the ADAAG as and requires the development of standards clean up costs associated with hazardous regulatory standards and as such, must be for laboratory testing, technical assistance, waste, and specialized laws addressing lead followed in the implementation of their own and public education, and the perfor- paint contamination, asbestos, and so forth. programs. Information on the ADAAG is mance of lead paint exposure studies.) available at the Access Board’s website at

34 A number of states have passed “brown- In recent years, a number of states have field” laws to make reclamation of historic adopted special rehabilitation codes in an urban sites easier. These laws limit an indi- effort to remove code-driven barriers to vidual’s or organization’s exposure to legal investment in existing buildings in older liability from contamination when they vol- urban areas as part of a broader, smart unteer to clean up contaminated sites in cer- growth program. These codes, such as the tain areas. In some cases, technical or New Jersey Rehabilitation Sub Code financial assistance may also be available. (adopted in 1999) and the Maryland Building Rehabilitation Code (adopted in Building Code Requirements 2000), offer flexibility in meeting life-saving The rehabilitation of historic buildings is often code requirements such as those relating to hindered by the application of building codes egress requirements and the use of fire-resis- and standards, which specify how buildings tant materials. For more information, see must be constructed and used in order to pro- “Adopting 21st Century Codes for Historic tect the public’s health, safety, and general wel- Buildings,” M. Kaplan, National Trust for fare. Because building codes set forth Historic Preservation (2007). standards for new construction, particular The Alaska Department of Fish and Game problems arise when those standards are Transportation Funding used transportation enhancements funds applied to historic resources. Code require- Every six years Congress enacts a new trans- to rehabilitate the dairy barns at Creamers ments, for example, may mandate the removal portation funding bill that sets forth the Refuge—a national wildlife area near a busy or alteration of historic materials and spaces to financial and legal framework that states four-lane road to Fairbanks. meet fire and other safety requirements. must follow to qualify for federal matching Photo courtesy of the Yukon Historical Society. funds for all transportation projects. The Building codes are generally adopted at the Transportation Equity Act for the 21st state level and enforced at the local level. Century, dubbed TEA-21, and its predeces- Most state code programs follow model sor, The Intermodal Surface Transportation codes, incorporating modifications as neces- Efficiency Act of 1991 (ISTEA), authorized a Congress replaced TEA-21 with the “Safe, sary to respond to individual needs and cir- wide range of highway, safety, mass transit, Accountable, Efficient Transportation Equity cumstances. The three most commonly used and other surface transportation-related pro- Act—a Legacy for Users" (SAFETEA-LU) in model codes include the code of the Building grams. Both programs, for example, sup- 2005. SAFETY-LU, among other things, Officials and Code Administrators (BOCA), ported spending on bus and rail lines, bike continues the transportation enhancement generally referred to as the National Building paths, and sidewalks. They also stressed the program and is scheduled to expire at the Code, the code of the International importance of intermodalism—which focuses end of Fiscal Year 2009. The list of qualify- Conference of Building Officials (ICBO), on the quality of connections between differing enhancement activities is set forth at 23 known as the Uniform Building Code, and ence modes of transportation, and trans- U.S.C. § 101(a)(35). the code of the Southern Building Code portation planning—which requires the Congress International (SBCCI) or Standard development of long-range plans to improve Road Design Standards Building Code. the efficiency and effectiveness of transporta- Standards governing road design can threaten tion in metropolitan areas. historic resources and adversely affect local All of these codes have incorporated special community character in unexpected ways. provisions for rehabilitation, which require A key component of both transportation These standards, for example, may require for the most part that additions and alter- bills, from a historic preservation perspective, that certain roads in a historic district be ations meet new code requirements, but that proved to be a provision for “transportation widened, that trees be taken down, or curb- existing parts of the buildings can avoid code enhancements” funding. Under TEA-21, for side parking in downtown areas be removed. requirements, provided that the building is example, states were required to set aside not made less safe. Several states have 10 percent of their “surface transportation Roads included in the National Highway adopted special rehabilitation or historic funds” for enhancement projects such as System (NHS) must comply with guidelines building codes that enable buildings to meet historic preservation, landscaping, and adopted by the U.S. Department of code standards with fewer alterations to his- scenic beautification. Also included in Transportation in consultation with the toric fabric. See, e.g., the California Historical TEA-21 was a “National Historic Covered American Association of State Highway and Building Code (2001), which provides alter- Bridge Preservation Program,” which pro- Transportation Officials (AASHTO). Roads natives to otherwise applicable code require- vided special funding to states on a competi- that are not part of the NHS are subject to ments, including seismic upgrades. tive basis for the preservation, rehabilitation, state design standards. or restoration of covered bridges.

PreservationBooks 35 Federal and state requirements for road design can adversely affect historic bridges and roadways. Several states have developed alternative guidelines to help protect historic bridges and roads. In Indiana, preservationists worked with the Federal Highway Administration and the state department of transportation to develop a comprehensive historic bridge rehabilitation program for the state.

Photo courtesy of the Historic Landmarks Foundation of Indiana.

While AASHTO standards and other design and solutions for highway projects affecting example, these laws tend to encourage the standards are advisory in form, they are historic or scenic areas. The State of Vermont revitalization of older urban areas and dis- generally treated as legal requirements and has developed its own set of guidelines for courage new development that drains the rigidly applied. This practice has been the historic roads and bridges and some states economic vitality out of historic downtowns target of considerable criticism, since the have departed from AASHTO standards in and neighborhoods. The growth manage- AASHTO standards recognize important specific cases involving historic roadways ment laws of Delaware and Rhode Island concerns such as environmental protection such as the historic Columbia River highway mandate the inclusion of historic preserva- and historic preservation. For example, the in Portland, Ore. For further information, tion elements in local comprehensive plans— minimum width requirements for roads and see National Trust for Historic Preservation, which state agencies, including departments bridges, based on projections for high speed “Historic Preservation and Transportation,” of transportation, must honor. The laws of driving, are often unnecessarily large and 14 Forum Journal No. 4 (Summer 2000). Washington, Maine, and Rhode Island list out-of-scale with many historic areas and historic preservation among the state’s top rural communities. State Growth Management Laws planning goals. Oregon and Washington A growing number of states have enacted mandate “urban growth boundaries,” that Some inroads on the problem have occurred comprehensive, statewide growth manage- prevent sprawl-type development from over the past few years. The Federal ment laws. Most of these laws contain provi- spreading into rural areas. Maryland’s Highway Administration has published a sions that can help historic preservation “Smart Growth” law eliminates state subsi- new book, Flexibility in Highway Design, advocates limit sprawl which, directly or dies for sprawl. Georgia provides protection which highlights important considerations indirectly, harms historic resources. For for regionally important cultural resources.

36 Laws Affecting the Organization ACKNOWLEDGMENTS John Wiley & Sons also came out with and Operation of Historic comprehensive, preservation law publica- Preservation Organizations A Layperson’s Guide to Historic Preservation tions in the 1980s: Historic Preservation Historic preservation organizations gener- Law was written by Julia H. Miller. Ms. Law & Taxation and Rehabilitating Older ally qualify for tax exempt status under Miller, former editor of the Preservation Law and Historic Buildings, respectively. Section 501(c)(3) of the Internal Revenue Reporter, is now serving as Special Counsel Code. Under that provision, corporations and Education Coordinator for the National While historic preservation as a specialized “organized and operated” exclusively for Trust for Historic Preservation. She has writ- area of law has grown rapidly, an up-to-date charitable and educational purposes may ten extensively on historic preservation law and comprehensive, single-source publication qualify for federal income tax exemption. issues and co-authored Historic Preservation no longer exists. The Preservation Law As a nonprofit, charitable organization, Law & Taxation, a three-volume treatise on Reporter has been discontinued and other funds can be raised more easily because any historic preservation law. publications were never updated. That being contributions made to such organizations said, a lot of material on specific aspects of are tax deductible. Organizations enjoying The inspiration for writing this book came historic preservation law is available through tax-exempt status under federal laws are from Paul Edmondson, vice president and individual publishers, nonprofit organiza- generally eligible for tax exemption under general counsel for the National Trust for tions, and public agencies. Set forth below is state and local laws as well. Historic Preservation, who saw the need for a list of the many significant publications on a basic summary on historic preservation historic preservation law currently available. Historic preservation organizations enjoying law that would be useful to the preserva- tax-exempt status must be careful not to tion community and helpful in teaching PRIMARY RESOURCES jeopardize that status by engaging in activi- preservation law. ties contrary to their charitable purpose. Preservation Law Reporter. Published by the Among other things, an organization must Thompson Mayes, associate general counsel Law Department of the National Trust for be operated “exclusively” or “primarily” for the National Trust, played a major role Historic Preservation from 1982 through for one or more tax-exempt purpose, and in the organization and writing of this publi- 2004, the Preservation Law Reporter covered an organization’s net earnings may not inure cation. His clear vision and constructive sug- recent court decisions and legislative develop- to the benefit of any private individual such gestions proved invaluable as A Layperson’s ments relevant to historic preservation. It as an officer or director. Finally, an organi- Guide to Historic Preservation Law began includes several in-depth articles on a wide zation’s activities must be for the public to take place. The individual contributions range of issues, such as lobbying by historic benefit as a whole. Lobbying activities, of Constance Beaumont, Megan Bellue, preservation organizations, addressing the while not prohibited, are subject to specific Jennifer Dooley, and Edith Shine are also takings challenge, recent developments in limitations under the tax code. greatly appreciated. federal preservation law, cell towers, and the regulation of historic religious properties. PART II. RESOURCES ON For further information, contact the Law HISTORIC PRESERVATION LAW Department at the National Trust for Historic Preservation, 1785 Massachusetts Historic preservation law is a relatively new Avenue, N.W., Washington, D.C. 20036. field, first gaining recognition as a distinct (202) 588-6035. FAX (202) 588-6272. body of law in 1957 with the publication of Jacob H. Morrison’s book, Historic Heritage Resources Law. Written by her- Preservation Law, and his substantially itage resource law experts, Judge Sherry revised Historic Preservation Law in 1965. Hutt and U.S. Attorneys, Caroline M. Following the U.S. Supreme Court’s landmark Blanco (Department of Justice) and Ole decision in Penn Central Transportation Co. Varmer (National Oceanic and Atmospheric v. City of New York and the adoption of Administration), on behalf of the National significant tax preservation tax incentives Trust for Historic Preservation, this book at the federal level, two major preservation provides an overview and case law on legal publications emerged: A Handbook on issues relating to the protection of archeo- Preservation Law, published in 1983 by logical, Native American, and underwater the National Center for Preservation Law resources. Published by John Wiley & Sons and the Conservation Foundation, and the in 1999, the 591-page hardbound book Preservation Law Reporter, published from may be purchased from the National 1982 through 2004 by the National Trust Trust for Historic Preservation online at for Historic Preservation. Indeed, two pub- www.preservationbooks.org or by calling lishing houses, Matthew Bender, Inc. and (202) 588-6296.

PreservationBooks 37 Historic Preservation: An Introduction to Its Practice Guide (1992, rev. 2004). Information Trust at (202) 588-6219 for more informa- History, Principles, and Practice. Written by on specific issues may also be found on an tion. A list of National Main Street publica- Norman Tyler, this basic primer on historic ongoing basis in law reviews and legal ency- tions can be obtained by contacting the preservation discusses a wide range of issues, clopedias such as American Jurisprudence National Main Street Center at the National including “the legal basis for historic preser- (published by the Lawyers Cooperative Trust for Historic Preservation directly at vation.” Published by W.W. Norton & Publishing) and West’s Federal Practice (202) 588-6219. Company in 1999, the softbound book (154 Digest (published by West Publishing Co.). pages) is available in bookstores and online. National Park Service National Trust for The National Park Service offers a variety of A Richer Heritage: Historic Preservation in Historic Preservation publications on issues relating to historic the Twenty-first Century. Edited by Robert E. The National Trust for Historic Preservation preservation law and archeology through its Stipe, this publication includes a collection of publishes a number of booklets and reports Cultural Resources Program. These include essays by leading scholars and professionals, on specific issues relevant to historic preser- books on topics such as Federal Historic including discussion on legal developments in vation law. Preservation Laws, monthly periodicals, and the field. Published by the University of North a variety of technical summaries on issues Carolina Press in 2003, the 570-page book Preservation Books. The National Trust for such as How to Establish National Register is available from Preservation Books. See Historic Preservation offers a number of Boundaries for National Register Properties. www.preservationbooks.org. booklets on a wide range of preservation The Park Service publishes a Catalog of and organizational development issues such Historic Preservation Publications, which is The American Mosaic: Preserving a Nation’s as Procedural Due Process in Plain English, available through the Superintendent of Heritage. Edited by Robert E. Stipe and Takings Law in Plain English, Protecting Documents of the Government Printing Antoinette J. Lee, this publication provides Older and Historic Neighborhoods through Office, Washington, D.C. 20401 or Heritage an overview of historic preservation laws in Conservation Districts, Economics of Preservation Services, Department of the the United States, along with discussion on Rehabilitation, Establishing and Operating Interior, National Park Service, P.O. Box what types of resources are preserved and an Easement Program to Protect Historic 37127, Washington, D.C. 20013-7127. why. Originally published by US ICOMOS Resources, Safety, Building Codes and in 1987 and then republished by Wayne Historic Preservation, and Preservation The National Park Service makes many of its State University Press in 1997, the book (360 Revolving Funds. To request a Preservation publications available to the general public pages) is available online and in bookstores. Books catalog write to Preservation Books, through its website at www.nps.gov which National Trust for Historic Preservation, may either be ordered directly from the Park Historic Preservation Law: An Annotated 1785 Massachusetts, Ave., N.W. Service or downloaded off the internet. Survey of Sources and Literature. This sur- Washington, D.C. 20036, or call Publications of particular interest include: vey of published literature on preservation (202) 588-6296. To order publications law focuses on U.S. law governing the online, go to www.preservationbooks.org. CRM. This periodical, published by the preservation of historic buildings, sites, and Cultural Resources Division of the districts. Written by Gail I. Winson, this Preservation Law Publications. The National Park Service, features articles 365-page hardback book was published in National Trust has launched a new series and news items on a variety of cultural 1999 by William S. Hein & Co., Inc. To of publications on specific legal issues that resource management and historic preser- order a copy call (800) 828-7571 or order are available in pdf format only. Examples vation issues. online www.wshein.com. include: Regulating Historic Properties Preservation Briefs Series. Published by under the Religious Land Use and the Preservation Assistance Division of SECONDARY RESOURCES Institutionalized Persons Act (2007); the National Park Service, this series Protecting Potential Landmarks Through addresses technical issues relating to the Although preservation law is not the primary Demolition Review (2007); and Best preservation and rehabilitation of historic focus of publications within this category, Practices for Preservation Organizations structures. Examples include “Making these resources generally include preservation Involved in Easement and Land Historic Properties Accessible” and “The law-related issues among other matters Stewardship (2008). To order publications Preservation and Repair of Stained and addressed. Examples of resources falling online, go to www.preservationbooks.org. Leaded Glass.” within this category are a number of National National Register Bulletins. The Trust for Historic Preservation, National Park National Main Street Publications. The Interagency Resource Division of the Service, and American Planning Association National Main Street Center of the National National Park Service publishes a series of publications. A new chapter on historic Trust publishes a series of reports on issues pamphlets on issues relating to the National preservation co-authored by Julia M. Miller relating to historic preservation and devel- Register of Historic Places ranging from and Dorothy Miner, has been published by opment in downtown areas. Contact the historic shipwreck designations to certifi- Matthew Bender in the Environmental Law National Main Street Center of the National cation of state and local governments.

38 Partnership Series: The Heritage Services law and urban legal affairs and is distributed publications on federal preservation laws and Division publishes booklets on issues to all members of the Section. Back issues programs can be obtained through the relating to preservation planning, zoning, may be obtained from Order Fulfillment, Advisory Council on Historic Preservation’s subdivision controls and so forth. American Bar Association, 321 N. Clark St. website (www.achp.gov). Technical Brief Series. The Archeology Drive, Chicago, Ill. 60610, (312) 988-5522 and Ethnography Program/Departmental (800) 285-2221 or FAX (312) 988-5568. Miscellaneous Reporters Consulting Archeologist (formerly Abstracts are available at A number of specialized reporters such Archeological Assistance Program) pro- http://w3.abanet.org/home.cfm. as Zoning and Planning Law Report vides technical information on cultural (Clark Boardman, New York City), the resource management and related issues Libraries and Online Resources Environmental Law Reporter (Environmental through its “Technical Brief” series. The Universities with specialized programs in Law Institute, Washington D.C.), and the program also publishes a periodical, historic preservation generally have a Housing and Urban Development Reporter Common Ground, Archeology and preservation law component within their (BNA, Washington, D.C.) address historic Ethnography in the Public Interest (replac- library collection of historic preservation preservation-related issues on an ad hoc basis. ing Federal Archeology), which addresses materials. The National Trust for Historic archeological enforcement issues and other Preservation’s library is located in the RESOURCES ON activities, along with a number of other Architecture Building of the University of SPECIFIC ISSUES publications. For specific information on Maryland. The collection includes books, this publication contact the Archeology journals, newsletters, photographs, and This section identifies publications that and Ethnography Program of the National other items relating to historic preservation. focus on specific topics of law such as envi- Park Service at 800 N. Capitol St., NW, For information, call (301) 405-6319. ronmental law, takings law, archeology, and Suite 210, Washington, D.C. 20002. the rehabilitation tax credit and other tax (202) 343-4110. The University of Virginia Law School houses incentive programs. This list has been com- the Preservation Law Collection, which piled to suggest the range of publications American Planning Association includes a number of books, journals, federal available and is in no way exhaustive. Also The American Planning Association pub- and state documents, litigation files from note that a number of articles on specific lishes a wide range of books and booklets major cases, local ordinances from more than topics have also been published in the on issues often related to historic preserva- 700 municipalities, newsletters, and other Preservation Law Reporter (see above). tion. A complete listing is available online information relating to historic preservation at www.planning.org. A catalog of its publi- law. Categories of materials in the collection Federal Historic Preservation Laws cations may also be obtained through the are listed in the University of Virginia Law Federal Historic Preservation Case Law, Subscription Department, 122 S. Michigan Library’s online catalog. For additional 1966-2000. A. Kanefield, Advisory Council Avenue, Suite 1600, Chicago, Ill. 60603, information contact: Law Librarian, on Historic Preservation, 1996 (rev. 2000). (312) 431-9100. University of Virginia Law Library, Federal Historic Preservation Laws. 580 Massie Road, Charlottesville, Va. 22903- National Center for Cultural Resources, PAS Reports. The American Planning 1789. (804) 924-3384, FAX (804) 982-2232, U.S. Department of the Interior, National Association publishes a series of reports e-mail address: [email protected]. Park Service, 2002. for professional planners, which, on Federal Planning and Historic Places: occasion, address preservation issues. An increasing number of resources relating to The Section 106 Process. Thomas F. King Planning & Environmental Law (formerly historic preservation may be found on the (Alta Mira Pub. 2000). the Land Use Law & Zoning Digest). Internet. The National Trust for Historic The National Register of Historic Places This monthly publication reports on Preservation provides specific information on Forms. U.S. Department of the Interior, major issues and decisions on land-use the activities and publications of the Trust’s National Park Service, History and law, including historic preservation. Legal Defense Fund, up-to-date information on Education, (2002). pending preservation laws, and the National National Register Information System. American Bar Association Trust’s library at the University of Maryland National Park Service, current. Online The Committee on Land Use, Planning and on its home page, www.preservationnation.org. database of places listed or eligible for Zoning Law of the Section of State and The National Park Service provides links to listing in the National Register. Local Government of the American Bar other databases such as the National Register www.nr.nps.gov. Association, publishes an annual summary of of Historic Places and the Historic American Tribal Consultation: Best Practices in developments in historic preservation law in Buildings Survey (www.cr.nps.gov.) The Historic Preservation. T. Jarvis, J. the fall issue of The Urban Lawyer. Articles National Center for Preservation Technology Lavellee, and R. Nichols. National addressing specific preservation issues are and Training maintains a separate menu to Association of Tribal Historic also published periodically. The law journal, access a range of international architectural Preservation Officers, 2005 (online). issued quarterly, focuses on local government and archeological websites. Information and www.nathpo.org/publications.html.

PreservationBooks 39 State Preservation Laws How Superstore Sprawl Can Harm Preservation, 2006 (online). State Tax Credits for Historic Preservation. Communities (And What Citizens Can www.preservationnation.org/resources/ H. Schwartz, National Trust for Historic Do About It). Constance Beaumont, public-policy/center-for-state-local-policy/ Preservation, 2007 (online). National Trust for Historic Preservation, additional-resources/ www.preservationnation.org/resources/ 1994, reprinted 1996. Saving Historic Roads. D. Marriott. public-policy/center-for-state-local-policy/ Innovative Tools for Historic Preservation. John Wiley and Sons, 1997. Marya Morris, American Planning “Transportation Enhancements Under Local Preservation Ordinances Association PAS Report No. 438, 1992. ISTEA: A Once-In-A-Lifetime Chance for Design Guidelines Collection. National Protecting America’s Historic Planners,” A. Dawson. Zoning & Planning Alliance of Preservation Commissions Neighborhoods: Taming the Teardown Law Report, Vol. 19, No. 1, Jan. 1996. (online database). www.uga.edu/sed/pso/ Trend. National Trust for Historic programs/napc/guidelines.htm. Preservation, Preservation Books, 2002. Archeology Law and the Historic Preservation Saving America’s Countryside. Samuel N. Archeological Resource Protection. Commission: What Every Member Stokes, A. Elizabeth Watson, and others. S. Hutt, E. Jones and M. McAllister, Needs to Know. J. Reap and M. Hill, Jr., Baltimore: Johns Hopkins University The Preservation Press, National Trust Cultural Resources Partnership Notes Press, (2nd edition) 1997. for Historic Preservation, 1992. (National Park Service 2007). Take Back Your Streets: How to (Available through John Wiley & Sons) Local Preservation Reference Shelf. Protect Communities From Asphalt A Survey of State Statutes Protecting National Alliance of Preservation and Traffic. Boston: Conservation Law Archeological Resources. C. Carnett, Commissions (National Park Service Foundation, 1995. Esq., National Trust for Historic 1999)(bibliography). Teardowns and McMansions Resource Preservation, 1995. Preparing a Preservation Ordinance. Guide. National Trust for Historic Cultural Resource Law and Practice. R. Roddewig. American Planning Preservation, 2008 (online). T. King. AltaMira Publ., 1998, rev. 2004. Association PAS Report No. 374, 1983. www.preservationnation.org/issues/ Protecting Archeological Sites on Private Preparing A Preservation Plan. B. White teardowns/resource-guide.html). Land. S. Henry, Interagency Resources and R. Roddewig. American Planning Too Big, Boring or Ugly. L. Kendig. Division, National Park Service, 1993. Association PAS Report No. 450, 1994. American Planning Association PAS Yearbook of Cultural Property Law. Protecting Older Neighborhoods through Report No. 528 (2005). S. Hutt, ed., Left Coast Press, Walnut Conservation District Programs. Creek, CA, 2006, 2007, & 2008. National Trust for Historic Preservation, Americans With Preservation Books, 2004. Disabilities Act (ADA) Constitutional Issues Working on the Past in Local Historic Entrances to the Past, VIDEO, National “Avoiding Takings Challenges While Districts. National Park Service (online). Park Service, 1993 (Available through Protecting Historic Properties from www.nps.gov/history/hps/ Historic Windsor, Inc. (802) 674-6752.) Demolition,” T. Logue, 19 Stetson workingonthepast/ Accessibility Under the Amercans with Law Review 3 (Summer 1990). Disabilities Act and Other Laws: Procedural Due Process in Plain English. Land-Use Laws and Preservation A Guide to Enforcement and Compliance. B. White and P. Edmondson, National Aesthetics, Community Character, and E. Slavitt and D. Pugh, editors, American Trust for Historic Preservation, the Law. C. Duerksen and R. Goebel, Bar Association 2000. Preservation Books, 1994 (rev. 2004, 2007). American Planning Association, Planning “Making Historic Buildings or Facilities Regulating Historic Religious Properties Advisory Series (PAS) Report No. Accessible,” Preservation Brief No. 32, under the Religious Land Use and 489/490, 1999. National Park Service. Institutionalized Persons Act. J. Miller, Approaches to Managing Teardowns. National Trust for Historic Preservation A. Fine, National Trust for Historic Transportation (2007). Preservation, 2008 (online). At Roads End: Transportation and Land “Remove Not the Ancient Landmark: www.preservationnation.org/resources/ Use Choices for Communities. D. Carlsen, Legal Protection for Historic Religious public-policy/center-for-state-local-policy/ L. Wormser and C. Ulberg. Covelo, Calif.: Properties in an Age of Religious additional-resources/ Island Press, 1995. Freedom Legislation,” L. Nelson. 21 Crossroads, Hamlet, Village, Town. R. Building on the Past; Traveling to the Cardozo Law Review No. 2-3 (Yeshiva Arendt, American Planning Association, Future. D. Costello and L. Schamus. University Dec. 1999). Planning Advisory Series (PAS) Report National Trust for Historic Preservation/ Takings Law in Plain English. C. Duerksen No. 487/488, 1999. Federal Highway Administration, 2000. and R. Roddewig, National Trust for Context Sensitive Solutions: Changing Historic Preservation, Preservation Books, the Mindset in Transportation Planning. 1994 (rev. 2003). M. Maguire. National Trust for Historic

40 Takings Litigation Handbook: OTHER SOURCES National Association of Defending Takings Challenges to FOR INFORMATION Tribal Historic Preservation Officers Land Use Regulations. D. Kendall, 1625 K Street, N.W. T. Dowling, and A. Schwartz. A number of public agencies and nonprofit Washington, DC 20006 American Legal Publ. Corp., 2000. organizations may be helpful in addressing spe- (202) 628-8476 cific legal problems. Listed below are a few key www.nathpo.org Economic Impact and national organizations that may be helpful. Tax Incentive Programs National Conference of The Economics of Rehabilitation. National Organizations State Historic Preservation Officers D. Rypkema, National Trust for Historic American Planning Association 444 North Capitol Street, N.W. Suite 342 Preservation, Preservation Books, 1991 1776 Massachusetts Ave., N.W. Washington, DC 20001-1512 (rev. 2005). Washington, DC 20036 (202) 624-5465 Tax Incentives for Rehabilitating Historic (202) 872-0611 www.ncshpo.org Buildings. Preservation Assistance Division, www.planning.org U.S. Department of the Interior, National 122 S. Michigan Ave., Suite 1600 National Trust for Park Service, published annually. Chicago, IL 60603 Historic Preservation (312) 431-9100 (headquarters) Department of Law and Public Policy Preservation and Legal Defense Fund Conservation Easements Archeological Conservancy 1785 Massachusetts Avenue, N.W. Appraising Easements: Guidelines for 5301 Central Avenue, N.E., Suite 1218 Washington, DC 20036 Valuation of Historic Preservation and Albuquerque, NM 87108 (202) 588-6035 Land Conservation Easements. National (505) 266-1540 www.preservationnation.org Trust for Historic Preservation/The Land www.americanarchaeology.com Trust Alliance, 3 ed. 1999. Preservation Action Best Practices for Preservation National Alliance of 1054 31st Street, N.W. Suite 526 Organizations Involved in Easement and Preservation Commissions Washington, DC 20007 Land Stewardship. National Trust for Public Service and Outreach Founders (202) 298-6180 Historic Preservation (2008). Garden House www.preservationaction.org The Conservation Easement Handbook. 325 South Lumpkin Street E. Byers and K. Marchetti Ponte. Land University of Georgia Society for American Archeology Trust Exchange and Trust for Public Athens, GA 30602-1861 900 2nd Street N.E. #12 Land, rev. 2005. (706) 542-4731 Washington, DC 20002-3557 The Conservation Easement Stewardship www.sed.uga.edu/pso/programs/napc/ (202) 789-8200 Guide: Designing, Monitoring, and contact.htm www.saa.org Enforcing Easements. B. Lind. Land Trust Alliance and Trust for New Hampshire Lands, 1991. Establishing and Operating an Easement Program. Preservation Books, National NATIONAL TRUST LEGAL DEFENSE FUND Trust for Historic Preservation, rev. ed. 2007. Through its Legal Defense Fund, the National Trust for Historic Preservation defends, The Federal Tax Law of Conservation enforces, and monitors federal, state, and local preservation laws to ensure their effec- Easements. S. Small. The Land Trust tiveness in protecting historic resources. In over 150 cases to date, the National Trust’s Exchange, 1997. Legal Defense Fund has defended America’s historic places. Its lawyers work closely with Protecting the Land: Conservation preservationists throughout the country, providing legal advice, advocacy, and expertise Easements Past, Present and Future. Ed. on a range of issues affecting preservation, including constitutional law, federal statutes, Julia Gustanski and Roderick Squires. and state and local laws. For more information call (202) 588-6035 or check online at Island Press, 2000. www.preservationnation.org/resources/legal-resources/.

For more information contact: National Trust for Historic Preservation Department of Law 1785 Massachusetts Avenue, NW Washington, DC 20036 (202) 588-6035

PreservationBooks 41 GLOSSARY OF TERMS

Abandoned Shipwreck Act. Federal law Certified local government. A city or town Economic hardship. Extreme economic impact vesting title to abandoned shipwrecks found that has met specific standards enabling par- on individual property owner resulting from in state territorial waters, thereby enabling ticipation in certain National Historic the application of a historic preservation law. the preservation of historic shipwrecks. Preservation Act programs. Eligible property. Property that meets the cri- Advisory Council on Historic Preservation. Charitable contribution. A donation to a teria for inclusion in the National Register of Independent federal agency responsible for charitable organization whose value may be Historic Places but is not formally listed. implementing the Section 106 review process. deducted from gross income for purposes of determining how much tax is owed. Eminent domain. The right of government Affirmative maintenance. Requirement in to take private property for a public purpose historic preservation ordinances that a build- Comprehensive plan. Official plan adopted upon payment of “just compensation.” ing’s structural components are maintained. by local governments that guides decision making over proposed public and private Enabling law. Law enacted by a state setting Americans with Disabilities Act. Law prohibit- actions affecting community development. forth the legal parameters by which local ing discrimination to persons with disabilities, governments may operate. Source of author- by requiring, among other things, that places Contributing structure. Building or struc- ity for enacting local preservation ordinances. generally open to the public, such as restau- ture in historic district that generally has rants and hotels, be made accessible. Special historic, architectural, cultural, or archeo- Environmental Assessment or Impact rules apply to historic buildings and facilities. logical significance. Statement. Document prepared by state or federal agency to establish compliance with Appellate review. Review of lower court or Demolition by neglect. Process of allowing obligations under federal or state environ- agency decision generally based on evidence a building to deteriorate to the point where mental protection laws to consider impact in the record. demolition is necessary to protect public of proposed actions on the environment, health and safety. including historic resources. Archeological Resources Protection Act. Primary federal statute governing archeolog- De novo review. Review of matter for the first Executive Order. Official proclamation ical resources. time or in the same manner as originally heard. issued by the President that may set forth policy or direction or establish specific “As applied” claim. Term used to describe Designation. Act of identifying historic duties in connection with the execution of argument that a law has been unconstitu- structures and districts subject to regulation federal laws and programs. tionally applied. in historic preservation ordinances or other preservation laws. Facial claim. Term used to describe argument Building code. Law setting forth minimum that law is unconstitutional in all situations. standards for the construction and use of build- Due process. Protection of constitutionally ings to protect the public health and safety. protected rights from arbitrary governmen- Finding. Factual or legal determination tal action. Requires notice and opportunity made by an administrative body or court Certificate of appropriateness. Certificate to be heard. upon deliberation. issued by a preservation commission to indicate its approval of an application to Easement (preservation or conservation). Guidelines. Interpretative standards or alter, demolish, move, or add on to a pro- Partial interest in property that can be trans- criteria that are generally advisory in form. tected resource. ferred 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.

42 Historic district. An area that generally National Environmental Policy Act. Primary Police power. The inherent authority resid- includes within its boundaries a significant federal law requiring consideration of ing in each state to regulate, protect, and concentration of properties linked by archi- potential impacts of major federal actions promote the public health, safety, morals, tectural style, historical development, or a on the environment, including historic and and general welfare. past event. cultural resources. Precedent. A prior case or decision similar Keeper of the National Register. Individual National Historic Landmark. Property or identical in fact or legal principle to the in the National Park Service responsible for included in the National Register of Historic matter at hand that provides authority for the listing in and determination of eligibility Places that has been judged by the Secretary resolution in a similar or identical way. of properties for inclusion in the National of the Interior to have “national significance Register of Historic Places. in American history, archeology, architec- Procedural laws. Those laws that prescribe ture, engineering and culture.” the method in which rights and responsibili- Land trust. A nonprofit organization engaged ties may be exercised or enforced. in the voluntary protection of land for the pur- National Historic Preservation Act. The pose of providing long-term stewardship of federal law that encourages the preserva- Rational basis. Standard of review applied important resources, whether historical, arche- tion of cultural and historic resources in by appellate courts that affords high defer- ological, or environmental, through the acqui- the United States. ence to the wisdom or expertise of an sition of full or partial interests in property. administrative body. National Register of Historic Places. Land use. General term used to describe how Official inventory of “districts, sites, build- Regulations. Rules promulgated by an land is or may be utilized or developed, ings, structures, and objects significant in administrative agency that interpret and whether for industrial, commercial, residential American history, architecture, archeology, implement statutory requirements. or agricultural purposes, or as open space. engineering and culture.” Rehabilitation tax credit. Twenty percent fed- Landmark. A site or structure designated Native American Graves and Protection and eral income tax credit on expenses for the sub- pursuant to a local preservation ordinance Repatriation Act. Federal law providing for stantial rehabilitation of historic properties. or other law that is worthy of preservation the repatriation of Native American human because of its particular historic, architec- skeletal material and related sacred items Revolving fund. Fund established by a public tural, archeological, or cultural significance. and objects of cultural patrimony. or nonprofit organization to purchase land or buildings or make grants or loans to facil- Lien. A claim or charge on property for Passive activity rules. Prohibits the use of itate the preservation of historic resources. payment of debt, obligation, or duty. deductions and credits from “passive” activities (those in which the taxpayer is not Section 106. Provision in National Historic Memorandum of Agreement. Document involved on a regular, continuous, and sub- Preservation Act that requires federal agen- executed by consulting parties pursuant to stantial basis) to offset income and taxes cies to consider effects of proposed undertak- the Section 106 review process that sets owned from “non-passive” activities. ings on properties listed or eligible for listing forth terms for mitigating or eliminating in the National Register of Historic Places. adverse effects on historic properties result- Public Buildings Cooperative Use Act. ing from agency action. Federal law governing the construction, acquisition, and management of space by the General Services Administration for use by federal agencies.

PreservationBooks 43 Section 4(f). Provision in Department of Sunshine law. General term applied to laws Transportation Act that prohibits federal that require meetings of governmental agen- approval or funding of transportation projects cies and other authorities be open. that require “use” of any historic site unless (1) there is “no feasible and prudent alterna- “Taking” of property. Act of confiscating pri- tive to the project,” and (2) the project includes vate property for governmental use through “all possible planning to minimize harm.” “eminent domain” or by regulatory action.

Site plan. Proposed plan for development sub- Tax abatement. A reduction, decrease, or mitted by the property owner for review by a diminution of taxes owed, often for a fixed planning board or other governmental entity period of time. that addresses issues such as the siting of structures, landscaping, pedestrian and vehicular Tax assessment. Formal determination of access, lighting, signage, and other features. property value subject to tax.

Special permit. Device allowing individual Tax credit. A “dollar for dollar” reduction review and approval of a proposed devel- on taxes owed. opment. Tax deduction. A subtraction from income State historic preservation officer. Official (rather than taxes) that lowers the amount appointed or designated, pursuant to the upon which taxes must be paid. National Historic Preservation Act, to administer a state’s historic preservation program. Tax exemption. Immunity from an obligation to pay taxes, in whole or in part. Subdivision. Act of converting land into buildable lots. Ordinances generally set forth Tax freeze. A “freezing” of the assessed standards for layout of streets, utility systems, value of property for a period of time. storm-water management, and so forth. Transferable development right. Technique Substantial evidence. Standard of review allowing landowners to transfer right to applied by courts in reviewing governmental develop a specific parcel of land to decisions. A decision will be upheld if sup- another parcel. ported by such evidence that a reasonable mind would accept as adequate to support a Undertaking. Federal agency actions requir- certain conclusion. ing review under Section 106 of the National Historic Preservation Act. Substantive laws. Those laws that create, define, and regulate specific rights as Zoning. Act of regulating the use of land opposed to those which set forth the process and structures according to district. Laws or means for the enforcement of such rights generally specify allowable use for land, or obtaining redress. such as residential or commercial, and restrictions on development such as minimum lot sizes, set back requirements, maximum height and bulk, and so forth.

44 OFFICES Preservation Books National Trust Forum HEADQUARTERS SOUTHERN OFFICE are published by the National is a membership program for 1785 Massachusetts Avenue, NW William Aiken House Trust for Historic Preservation. preservationists—from board Washington, DC 20036 456 King Street For a complete list of titles members to students, from 202.588.6296 Charleston, SC 29403-6247 call or write: architects to educators, from 843.722.8552 preservation commissioners to SOUTHERN FIELD OFFICE ALABAMA, FLORIDA, GEORGIA, Preservation Books, planners, from volunteers to 1785 Massachusetts Avenue, NW KENTUCKY, LOUISIANA, National Trust for restoration contractors. Forum Washington, DC 20036 MISSISSIPPI, NORTH CAROLINA, Historic Preservation membership provides you with 202.588.6107 SOUTH CAROLINA, TENNESSEE, 1785 Massachusetts Avenue, NW the knowledge, tools and DISTRICT OF COLUMBIA, MARYLAND, PUERTO RICO, VIRGIN ISLANDS Washington, DC 20036 resources to protect your VIRGINIA, WEST VIRGINIA 202.588.6286 community. As a Forum member OUR MISSION MOUNTAINS/PLAINS OFFICE FAX 202.588.6223, you receive a subscription to MIDWEST OFFICE 535 16th Street, Suite 750 or visit our web site at Preservation magazine, Forum THE NATIONAL TRUST FOR HISTORIC PRESERVATION IS A NONPROFIT MEMBERSHIP 53 West Jackson Blvd., Suite 350 Denver, CO 80202-2910 www.preservationbooks.org. Journal, and Forum News. ORGANIZATION BRINGING PEOPLE TOGETHER TO PROTECT, ENHANCE AND ENJOY THE Chicago, IL 60604-2103 303.623.1504 Benefits also include discounts 312.939.5547 COLORADO, KANSAS, MONTANA, © 2000 (rev. 2004, 2008) on conferences and all publications PLACES THAT MATTER TO THEM. BY SAVING THE PLACES WHERE GREAT MOMENTS FROM ILLINOIS, INDIANA, IOWA, MICHIGAN, NEBRASKA, NORTH DAKOTA, National Trust for listed in the Preservation Books HISTORY—AND THE IMPORTANT MOMENTS OF EVERYDAY LIFE—TOOK PLACE, THE MINNESOTA, MISSOURI, OHIO, SOUTH DAKOTA, UTAH, WYOMING Historic Preservation catalog as well as participation NATIONAL TRUST FOR HISTORIC PRESERVATION HELPS REVITALIZE NEIGHBORHOODS WISCONSIN in financial/insurance assistance AND COMMUNITIES, SPARK ECONOMIC DEVELOPMENT AND PROMOTE ENVIRONMENTAL SOUTHWEST OFFICE RICHARD MOE programs, technical advice and SUSTAINABILITY. WITH HEADQUARTERS IN WASHINGTON, DC, 9 REGIONAL AND FIELD NORTHEAST OFFICE 500 Main Street, Suite 1030 President, National Trust access to Forum Online, the OFFICES, 29 HISTORIC SITES, AND PARTNER ORGANIZATIONS IN ALL 50 STATES, THE Seven Faneuil Hall Marketplace Fort Worth, TX 76102-3943 for Historic Preservation online system designed for NATIONAL TRUST FOR HISTORIC PRESERVATION PROVIDES LEADERSHIP, EDUCATION, 4th Floor 817.332.4398 the preservation community. ADVOCACY AND RESOURCES TO A NATIONAL NETWORK OF PEOPLE, ORGANIZATIONS Boston, MA 02109-1649 ARKANSAS, NEW MEXICO, PETER BRINK To join send $115 to: AND LOCAL COMMUNITIES COMMITTED TO SAVING PLACES, CONNECTING US TO 617.523.0885 TEXAS, OKLAHOMA Senior Vice President, Programs OUR HISTORY AND COLLECTIVELY SHAPING THE FUTURE OF AMERICA’S STORIES. CONNECTICUT, MAINE, National Trust Forum FOR MORE INFORMATION VISIT WWW.PRESERVATIONNATION.ORG. MASSACHUSETTS, WESTERN OFFICE KATHERINE ADAMS National Trust for NEW HAMPSHIRE, NEW YORK, The Hearst Building Director, Center for Historic Preservation RHODE ISLAND, VERMONT 5 Third Street, Suite 707 Preservation Leadership 1785 Massachusetts Avenue, NW San Francisco, CA 94103 Washington, DC 20036 NORTHEAST FIELD OFFICE 415.947.0692 ELIZABETH BYRD WOOD 202.588.6296 6401 Germantown Avenue ALASKA, ARIZONA, CALIFORNIA, Editor forum.nationaltrust.org Philadelphia, PA 19144 HAWAII, IDAHO, NEVADA, 215.848.8033 OREGON, WASHINGTON, RON WOODS DELAWARE, NEW JERSEY, PACIFIC ISLAND TERRITORIES Business Manager PENNSYLVANIA

Cover—Clatsop County Courthouse, Astoria, Ore.

Photo: J. Todd Scott, City of Astoria.