1785 Massachusetts Avenue, NW Washington, DC 20036 T 202.588.6296 F 202.588.6038 www.PreservationNation.org 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 build- ings 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 eco- nomic 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 his- toric 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 pro- tection 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