While similar in many respects, preservation ordinances can differ widely from place to place. Variations may arise, for example, because of specific limitations on permissible regulatory action imposed at the state level or because of differing levels of political support for preservation in a given community. No single approach works in every situation, and thus, historic preservation ordinances are generally tailored to meet the individual needs of the community and the resources being protected.

Historic preservation commissions or design review boards administer most local ordinances. They are administrative bodies of local governments with members appointed by a mayor and/or legislative body that have interest and/or expertise in disciplines relevant to historic preservation. Commissions rule by majority vote and may have either binding or advisory review authority over historic designations or changes to historic properties, and in some cases, they must be consulted regarding other land use actions affecting historic resources, such as a request for a variance or the subdivision of land. The historic preservation commission, however, is the governmental agency that grants or denies a permit to change historic property.

Besides establishing a preservation commission, historic preservation ordinances generally set forth procedures and criteria for the designation of historic properties, along with procedures and criteria for reviewing requests to alter, move, or demolish such properties. Preservation ordinances also allow for consideration of hardship and other issues of special concern and establish a process for appeal and enforcement of its terms.

Authority to Regulate Property

Although a relatively new form of governmental regulations, historic preservation ordinances are well-grounded legally.

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. Some states have also explicitly recognized historic preservation as a legitimate governmental function in their state constitutions.

That being said, a local government's ability to regulate historic properties is dependent upon state law. Local governments are creatures of the state and, pursuant to the U.S. Constitution, the authority to regulate private property is reserved to the states. Thus, it is important to ensure that local preservation ordinances are consistent with the authority bestowed on local governments to protect historic resources. This authority may take the shape of a broad delegation of authority (commonly referred to as home rule authority) or special grants of authority that specify what types of properties may be designated, who may designate those properties, the composition of a preservation commission, actions subject to review, and so forth.

Historic Designations

Properties are identified or designated as landmarks and historic districts by local legislative bodies or preservation boards based on detailed research and a rigorous review process. Sometimes, however, the preservation commission or another administrative body may be empowered to designate individual properties and/ or districts.

Most jurisdictions designate historic districts or both historic districts and individual landmarks. While designations may include the entire historic structure, many communities extend protection only to the exteriors of such properties, and in some cases, only to those facades visible from a public way. Some communities also protect interior spaces, especially those spaces open to the general public.

Properties may be identified as contributing or noncontributing in historic districts. This determination, in turn, may dictate the level of review that will be applied. Contributing properties may enjoy full protection while changes to non-contributing property (including vacant land) are generally approved if "compatible" with the character of the historic district. A few jurisdictions also recognize distinctions among individual landmarks, providing the highest level of protection for properties of "exceptional importance."

The preservation ordinance sets forth the criteria for designation and the process for considering applications for designation. More detailed information may also be contained in implementing regulations. While variations exist from jurisdiction to jurisdiction, historic designations are generally initiated by the property owner, preservation organizations or neighborhood associations, or the preservation commission itself, after conducting a survey of historic properties within the community.

Reviewable Actions

Historic preservation ordinances generally empower preservation commissions to review and act upon applications for certificates of appropriateness (sometimes called "certificates of approval" or "historic area work permits"). Most often, owners of property subject to a preservation ordinance must submit an application to a preservation commission for permission to alter, demolish, move, or construct additions and new buildings. Requests for change are evaluated at a public hearing based upon standards for review set forth in the ordinance. The commission will generally issue a formal decision, making specific findings of fact and conclusions of law. (A commission must determine what the facts are, apply those facts to the standards in the ordinance, and then reach a conclusion.) Permission is typically granted in the form of a permit or certificate of appropriateness.

The extent of control over requests to demolish historic structures varies from state to state, depending upon a state's enabling law, and from community to community within a state. Many localities allow for the demolition of historic properties only in cases where a property owner establishes economic hardship or the property poses a safety threat after a fire or other type of natural disaster. Some communities, however, permit property owners to demolish historic properties after a specific waiting period, during which time a city or town, along with private preservation groups, can explore alternative actions to save the building. Some communities also condition the issuance of a demolition permit upon a showing that a new building will actually be constructed (i.e., by showing that plans and financing are sufficiently finalized) and that the building will be compatible with other historic resources in the area.

Maintenance Requirements

Routine maintenance work such as repairing a broken fence or replacing individual tiles on a slate roof is generally excluded from commission review. Many ordinances, however, require that designated property be kept structurally sound and may empower a commission to make repairs and seek reimbursement in instances where a property is essentially being demolished by neglect.

An increasing number of communities have also adopted provisions in their preservation ordinances to prevent a practice often described as "demolition by neglect." Such provisions enable a city or town, following notice and hearing, to make essential repairs to prevent situations whereby a building or structure must be demolished to remove a public safety hazard. Expenses are often recouped by imposing a lien on the property.

Economic Hardship

Many preservation ordinances provide for variances from the strict application of its rules in cases of economic hardship, and to a lesser extent, projects of special merit. Economic hardship provisions typically provide a variance from individual restrictions under the ordinance in situations where the owner demonstrates that he or she would otherwise be denied all reasonable or beneficial use of his or her property.

Factors typically considered include the property’s current rate of return; efforts to sell or list the property in its “as is” condition; the economic feasibility of alternative uses for the property; the extent to which the hardship is self-created; the claimant’s knowledge of the property’s designation or the likelihood of designation at the time the property was purchased; and the availability of any economic incentives or funding.

Special merit provisions enable individual buildings to be demolished or substantially altered when an overriding community objective, such as the need to construct a conference center, exists. For example, in the District of Columbia, a special merit project could include a building designed by an outstanding architect or a project necessary to achieve important social or community objectives.

Appeals and Enforcement

Historic preservation ordinances either provide for appeal to another administrative body or legislative body or specify that appeal is to be made directly to court. In establishing an appeal process, the appellate body should be required to uphold the commission's decision if it is supported by "substantial evidence" or a "rational basis" exists for its decision. If the appeal body engages in "de novo" review (i.e., it engages in its own fact-finding rather than limiting its review to the information contained in the record and/or is not required to defer to the expertise of the commission), that body must use the same criteria as the preservation commission in making its own decision.

Preservation ordinances are usually enforced through stop-work orders and the assessment of fines and other penalties for individual violations. Fines generally range from $100 to $5,000 per day depending upon the type of property being regulated, residential or commercial, and the likelihood for violations. Penalties for unlawful alterations or demolitions may include the denial of a building permit for a number of years or mandatory reconstruction. (Stiffer penalties are used to discourage midnight demolitions of historic structures, where a fine might be viewed as a business cost rather than deterrent.) In cases of demolition by neglect, a commission may be empowered to repair a building and then recoup its expenses by imposing a lien on the property. Ultimately, the commission may seek an injunction in court to compel compliance with the law.

Other Land Use Laws

Historic preservation objectives can be furthered through other land use techniques, such as the establishment of conservation districts, the adoption of a transferable development rights program, view protection laws, or a city-wide demolition review program. In addition, through comprehensive planning and the fine-tuning of zoning and subdivision laws, communities can insure that its land use laws support rather than undermine efforts to protect its historic resources.

Conservation districts, generally established as a zoning overlay, protect character-defining streetscapes in older areas through the regulation of changes to height, bulk, and mass of individual buildings. As with historic districts, conservation districts have preservation or conservation as their primary goals. However, the focus is on preserving the area's traditional character rather than historic fabric.

Transferable development right programs protect historic resources by shifting development pressure away from historic areas. Owners of designated historic resources sell their unusual development rights to commercial developers, who in turn, can use those rights to build larger buildings in other areas within a city. The money received from the sale of those rights can be used by the historic property owner to maintain the property.

View protection laws can ensure that development near historic resources maintain a resource's historic views or viewshed. Alternatively, they can ensure that views of a historic resource, such as a capitol building or other visual landmark are protected.

Demolition review programs provide a safety net for a community’s historic resources by requiring the referral of all applications for demolition permits of buildings over a certain age to a historic preservation commission. If the building qualifies as historic, then the property may be protected through official designation as a historic resource or its owner may be required to participate in a demolition delay process, whereby the owner and community officials work together to develop solutions that would save the building.