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Kansas Law: Protecting the Environs of Historic Properties 

12-09-2015 17:35

The state of Kansas may appear to be an unlikely location for innovative historic preservation legislation to occur. After all, the historic buildings in Kansas typically date from the 1870s to the 1920s. However, Kansas has had the foresight to engage in what many states have not yet become involved in--the protection of the environs of historic properties.

In 1977 the Kansas legislature enacted the State Historic Preservation Act (K.S.A. 75-2715 through K.S.A. 75-2725). The state historic preservation law declared historic preservation to be public policy and in the public interest for the state to engage in a comprehensive program of historic preservation. The legislature found that the historic, architectural, archaeological, and cultural heritage of Kansas was an important asset of the state and was worthy of preservation. In addition to identifying the Historic Preservation Department`s (HPD) duties and responsibilities in the area of historic preservation, the law also affords protection to those properties listed in the national and state registers of histonc places and their environs. The state preservation statute was amended in 1981 to widen the range of the state or local government activities affecting historic properties that are subject to review by the state historic preservation officer (SHPO) and again in 1988 to define limits for project notification and to establish penalties for certain violations.

Although other states have preservation statutes that protect listed properties, the Kansas law was one of the first to provide protection for their environs. The law requires that the state or any political subdivision of the state shall not undertake any project that will encroach upon, damage, or destroy any historic property listed in the National Register of Historic Places or in the State Register of Historic Places or the environs of such property until the SHPO has been given notice and provided with an opportunity to investigate and comment upon the proposed project. The amendment in 1988 clarified when local municipalities are required to provide information to the SHPO for review and comment because the original statute did not define the term "environs." Working with the League of Municipalities and other interested parties, the HPD office proposed that all projects undertaken within 500 feet of the boundaries of a historic property located within the corporate limits of a city, or within 1,000 feet of the boundaries of historic property located in the unincorporated portion of a county, require the SHPO`s comments prior to proceeding with the project, issuing the permit, or taking other action. In some communities the protection of the historic properties` environs may encompass the entire business district. In communities that have a high number of listed historic properties that are located near each other, large areas of the city are included within the limits of notification. The Kansas legislature did not attempt to define the term "environs" with the 1988 amendment. In fact, that statute specifically states that the law does not limit the authority of the state historic preservation officer to investigate and comment on proposed projects regardless of the proximity of the project to the boundaries of a historic property.

The comments the SHPO can make on a proposed project are limited by the statute. Legally, the SHPO has two options: The SHPO may determine that the project as proposed will exert no adverse effect on the historic property or its environs, or the SHPO may determine that the project will "encroach upon, damage, or destroy" the historic property or its environs. Prior to the SHPO`s rendering of the second opinion, the HPD staff works with the project sponsor to make adjustments to the proposed project. Revisions typically can be made so that the project will not exert adverse effects on the historic properties or on their environs and therefore can be approved. The SHPO and staff use the Secretary of the Interior`s Standards for Rehabilitation and Guidelines for Rehabilitating Historic Buildings as a guide for the determination of the effects of the proposed projects. These standards are used across the nation and provide for consistency in staff reviews.

The Secretary`s Standards address the importance of the relationship between historic buildings, the streetscape, and landscape features that help to define the historic character of a neighborhood. Instituting radical changes to relationships that are important in defining the area surrounding the historic structure is not recommended. New buildings and the associated site development should reinforce the context and not ignore their neighbors. Demolition without appropriate new infill construction is typically determined as encroaching upon the environs of the historic property because such demolition allows for the continued deterioration of the historic property`s context. The Secretary`s Standards allow new construction within the environs as long as it is compatible in size, scale, color, material, and design. The Kansas state preservation statute, therefore, discourages the use of the urban-renewal development concept. Urban-renewal development typically results in the demolition of buildings, including the removal of all site improvements, with the hopes of attracting new development. History has shown that this development philosophy does not work as it was intended and, in fact, contributes to the erosion ot the existing context surrounding historic properties over extended periods of time. These historic properties now appear as if they are museum artifacts that are not accompanied by the written text that explains their importance or the history behind them. The state statute attempts to address these concems by posing the question: Is the project designed to be compatible with the existing environment?

The state preservation statute establishes a two-part process. The first determination is made by the SHPO, the second determination by the governor, in the case of a state project, or by the governing body of the local political subdivision when the SHPO has determined that the proposed project will encroach upon, damage, or destroy the historic property or its environs. Once it has been determined that the project will encroach upon, damage, or destroy the historic property or its environs, the project cannot proceed until the second determination has been made. The governor or the local political subdivision is required to determine after consideration of all relevant factors that no feasible and prudent alternative exists to the proposed project and that the project contains provisions to minimize damage to the environs of the historic property.

The responsibility of carrying out the intent of the state preservation statute is therefore passed to the local level. Serious consideration must be given to finding that no feasible altematives exist before allowing the project to proceed. The state statute allows for anyone aggrieved by the governor`s or local unit`s determination to file suit and to have the issue decided in the district court holding jurisdiction in the county in which the affected historic property is located. The constitutionality of the state preservation statute was recently upheld both in the state district courts and the Court of Appeals in the State of Kansas.

The environs review portion of the state statute has been actively enforced for three years. Each year the SHPO averages approximately 300 state law reviews. Although not all of the communities in Kansas or individuals completely understand or agree with the law, the SHPO and staff are continuing their efforts to educate the public about the importance of preservation and about the law. Refinement of the process through implementation of rules and regulations is expected to take place this year.

Publication Date: January/February 1991


Author(s):K. Vance Kelley, AIA