Writing a Local Historic District Preservation Ordinance
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One requirement of the Certified Local Government Program is for teach CLG to develop a Historic Preservation Ordinance prior to certification. A historic district preservation ordinance should reflect the current community's interest in the historic preservation. Different communities will have provisions in their ordinances that vary tremendously. When establishing an ordinance, it is important to anticipate that they will be changed over time. Preservation programs in communities mature at different speeds.
Basic Historic Preservation Ordinance
To begin, a community should establish a historic preservation commission and outline duties. Local governments are empowered to create local historical districts and local historical district commissions through Alaska Statute 29.55.010. To be a Certified Local Government, the outline of basic duties must include the following five components:
- Enforce appropriate local, state, and national laws for designation and protection of historic properties.
- To the extent possible, the local commission must have a historian, archaeologist and architectural historian or architect with a minimum of seven people. The ordinance must outline the meetings, appointments and terms.
- The local government will maintain an inventory of historic properties compatible with the Alaska Heritage Resources Survey and the policies that govern its use.
- Meetings will meet all applicable Open Meetings Laws.
- The local government will perform all duties delegated to it under the National Historic Preservation Act.
Designation Criteria and Process
Criteria: Many commissions in the Alaska have not yet established designation criteria and procedures for listing important historic districts at the local level. It is highly recommended that this is included in all local preservation ordinances when they are drafted. Designation criteria is oftentimes similar to the criteria outlined in the National Register of Historic Places, however, different localities identify criteria that are specific for their area. When developing criteria, age of a property is an important issue that should be addressed. It is never advisable to include an age requirement for listing a historic property. The professional expertise on the commission will be able to determine if a property is significantly old enough to evaluate for listing. Many important places in Alaska are relatively recent, recent past history has merit and should be considered worthy of preservation.
Be prepared to discuss owner consent when you are developing the designation process. Ordinances and actions are more predictable when owner consent is not included. Some courts have even found such provisions unlawful because they delegate legislative decision making authority to an individual, allowing individuals to "opt out" of planning and zoning process. If the local government decides that owner consent should be considered, there are generally three approaches to consider, owner objection, owner consent, and governing body supermajority override. Owner objection is similar to the National Register process in that an owner has absolute veto over a designation if they file an objection. Owner consent is when express consent must be received by the property owner or a majority of the property owners in a district for a property to be listed. A third variation is when there is an objection or lack of consent, the governing body can designate a property with a supermajority vote. In the end, the ordinance must reflect the current attitude of the community with a sound knowledge of the benefits and disadvantages to all approaches.
Design Review Procedures and Standards
Developing a design review process and standards is often the next step taken by a historic preservation commission as they grow. Concepts such as economic hardship, takings, and stays of demolition are important to consider while developing procedures and standards, but these topics will not be addressed in this preservation series.
Process: Developing a designation process is just as crucial as establishing the criteria. It is important that property owner's are notified of a proposed designation so they can have the opportunity to present facts and information at a scheduled public hearing. All governmental bodies in Alaska must adhere to Alaska Statute 44.62.310. The ordinance should clearly outline what members of the public should expect procedurally when a property or district is being listed. If your community plans to list properties previously listed in the National Register of Historic Places in your local register, it is important that there is a new hearing. Different rules accompanying listing in the National Register of Historic Places versus a local register, so it is necessary that a hearing is held in accordance with local procedures and new findings of fact are recorded. Local land use regulations for locally designated historic properties are oftentimes more stringent than National Register of Historic Properties.
Procedures: Five basic procedural elements should be included in every ordinance that includes design review. First, the applicability of the process and criteria should be outlined. Identify the types of projects that will be reviewed and list any exempted types of projects. Secondly, outline the basic process, including appeals, with timeframes that will be followed. Third, list the required components of the application. Fourth, specify the criteria that will be used to review cases. Lastly, stipulate the powers of the commission in the certification process. .
Standards: Each commission that establishes design review should define standards that will be applied to projects that are applying for a Certificate of Appropriateness. In many instances, local governments start by adopting The Secretary of the Interior's Standards for Rehabilitation. Since these standards are vague, it is important to provide the commission with the power to "promulgate and publish" standards. This ability will help create a commission with more predictability for the individual home or business owner.
As the importance of historic preservation continues to grow in a community, it is important to decide if the community will promote historic preservation with incentives or penalties. Possible incentives are limitless. Many incentives can be low cost to the government and create economic investment in the community. Some of the low cost standard incentives include: design assistance, permit fee reduction or waiver, and parking requirement waivers. Other possible incentives include tax abatements, transfer of development rights, and special valuations. Alaska Statute 29.45.050 includes "historic sites, buildings, and monuments," as a possible residential property type that may be exempted or partially exempted from taxation by the electorate.
Conservation Districts and Zones are often used for areas that do not meet National Register or Local Register criteria, but still have important cultural or visual significance that is worthy of preservation. In some cases, these zones are used to buffer a locally designated area so there is a smooth transition between the designated area and areas of the community that are not designated. In most cases, these districts are overlays of the current zones. In general, the zones attempt to conserve the neighborhood characteristics. The review process is not as concerned with the individual changes to buildings where those changes do not impact the important qualities worthy of preservation identified by the community.
You can do it
It is easy to feel overwhelmed when developing a historic preservation ordinance or amending an existing ordinance. There are so many samples to read and cautionary tales to heed. Remember that when you are improving your community in any way, there is a great deal of information to learn. It is important to take a balanced and well thought out approach to preservation in your community. The information provided to you here is to provide you with a well informed starting point.