Preservation Ordinance Frequently Asked Questions
The historic preservation ordinance is the primary method by which communities protect their historic resources, and ultimately their character.
In addition to instilling pride within a community, historic preservation laws have been helpful in spurring tourism, generating new investment in otherwise forgotten areas, and increasing local tax revenue and property values. While the degree of protection may vary from place to place, most ordinances establish a historic preservation commission and a process for consideration of proposals to alter or demolish historic properties. Local governments with preservation ordinances may also become eligible for federal funds. Under the National Historic Preservation Act, up to 10% of a state's allocation under the Historic Preservation Fund may be transferred to "certified local governments."
Communities seeking to establish historic preservation ordinances should consult their city attorney before proceeding. While authority to enact such laws exist in every state, individual differences necessitate legal oversight.
Below you'll find the answers to some of the most frequently asked questions about historic preservation ordinances. If you don't find what you are looking for or need additional resources, please contact us at email@example.com.
What is a historic preservation commission?
A historic preservation commission or review board is an administrative
agency generally established under a historic preservation ordinance.
Its members typically have expertise in related fields such as
architectural history, history, architecture, archaeology, real estate,
and so forth, which helps to ensure that decisions are both rational and
informed. Historic preservation commissions are primarily responsible
for identifying historic properties for protection and reviewing and
acting upon applications to alter, demolish, add on to, move, or
otherwise adversely affect any properties protected by a historic
Who appoints members to a preservation commission?
Commission members are generally appointed by the mayor for
three-year terms, although variations may exist from place to place.
Individual terms are usually staggered to ensure continuity over time. A
chairperson may be appointed by the mayor or selected by the members of
How are historic properties identified?
Historic properties are generally identified through a survey
process, conducted by a historic preservation commission. In many cases,
the National Register of Historic Places or a state register provides a
useful starting point for identifying historic structures within your
community. But, national and state register listings should not be
relied upon as a substitute for survey work and ultimately the
designation of historic properties under a local ordinance (even if the
boundaries may ultimately be coterminous). Properties listed on the
National Register should always be surveyed and listed independently.
While variations exist from jurisdiction to jurisdiction,
applications for designation are generally initiated by the property
owner or a preservation commission, upon completion of an architectural
survey. The application form, provided by the historic preservation
commission, typically asks for background information on the property
and requires the applicant to make his or her case for historic
What are "historic districts" and "landmarks?"
Most jurisdictions designate historic districts or both historic
districts and individual landmarks, depending upon the nature of the
resources being protected and the extent of a local community's
authority to regulate historic property under state law. Historic
districts are geographically defined areas often comprised of
significant concentrations of historic structures or sites that share
common historic events, aesthetic features, or physical development.
Landmarks are typically individual properties or sites.
Properties located in historic districts are generally labeled as
contributing or noncontributing. This label, in turn, dictates 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."
What criteria are used to designate historic properties?
The criteria for designation and the process for considering
applications for designation are generally set forth in the preservation
ordinance. If criteria for designation is not set forth in a state's
enabling law, many communities utilize the criteria for listing historic
properties in the National Register of Historic Places or an equivalent
state register. An ordinance, for example, may seek to protect
districts, sites, buildings, structures, and objects that are associated
with historic events, "that embody the distinctive characteristics of a
type, period, or method of construction," or "that represent the work
of a master."
Who designates historic districts and landmarks?
Once a preservation commission has determined that certain property
meets the criteria for designation, it may recommend or nominate that
property for designation. Individual properties are most often
designated as historic resources by a city council or comparable
legislative body, upon holding a public hearing. In some communities,
however, the preservation commission or another administrative body may
be empowered to designate individual properties and/or districts.
Many historic preservation ordinances provide interim protection for
historic resources while applications for designation are pending. This
prevents property owners from demolishing the resource before a
commission or legislature has had time to act on the application.
How are historic districts and landmarks protected under a preservation ordinance?
Historic preservation ordinances generally empower preservation
commissions to review and act upon applications for "certificates of
appropriateness." Most often, owners of property subject to a
preservation ordinance must submit an application to a preservation
commission for permission to alter, move, or construct additions, and
new buildings. This application, once deemed complete, will be evaluated
at a public hearing based upon standards for review set forth in the
ordinance. Upon consideration of all the evidence, the commission will
issue a formal decision, making specific findings of fact and
conclusions of law. Permission is typically granted in the form of a
historic area permit or certificate of appropriateness.
What types of actions generally require review by a historic preservation commission?
Review of applications to alter, demolish, or otherwise change
historic property is generally triggered by a request for a building
and/or demolition permit. Permit officials will delay issuance of a
permit until the matter has been referred to and acted upon by the
preservation commission in accordance with the terms set forth in the
preservation ordinance. Historic preservation commissions generally have
authority over alterations to a building's exterior, additions,
demolition, and new construction in historic districts. Some communities
also protect interior spaces that are accessible to the public.
Preservation commissions may be authorized to consider other types of
alterations, such as repainting, window or roof replacement, and
signage, which may or may not require a building permit. Despite the
wide range of actions which are subject to commission review, responses
to a recent survey completed by the National Alliance of Preservation
Commissions showed that the vast majority of applications for
certificates of appropriateness are ultimately approved.
How do local governments protect historic properties from being demolished?
Controls over requests to demolish historic structures vary somewhat
from community to community. Many localities allow for the demolition of
historic properties only in cases where retention of the structure will
cause an extreme burden on the property owner and the resource cannot
be rehabilitated or sold or the property poses a safety threat after a
fire or other type of natural disaster. This is the best way to ensure
that historic resources are protected.
A limited number of 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 be constructed and that the building will be compatible
with other historic resources in the area.
What standards of review are used to guide commission's in acting upon requests for certificates of appropriateness?
Many communities utilize the Secretary of the Interior's Standards
for Rehabilitation to guide commissions in reviewing permit
applications, which are general in nature. For example, the Secretary's
standards provide that "deteriorated architectural features shall be
repaired, wherever possible," and "in the event that replacement is
necessary, the new material should match the material being replaced in
composition, design, color, texture, and other visual qualities."
Communities considering adoption of the Secretary's standards should be
careful to ensure that the standards actually correspond to the types of
properties being protected and the scope of authority conferred on the
commission by the ordinance.
In addition to legal standards of review, which must be set forth in
the preservation ordinance, many communities also adopt advisory design
guidelines. These are used not only to guide the commission, but also to
assist the property owner in understanding what types of actions may or
may not be appropriate.
An increasing number of communities have also established an informal
process to encourage property owners to consult with commission staff
and/or members before embarking on a major project. Although not
required, this process generally helps a property owner and/or architect
to understand the factors that will be considered by a commission in
acting upon a specific application.
Do historic preservation ordinances impose affirmative responsibilities on property owners?
Routine maintenance work such as repairing a broken fence or
replacing individual tiles on a slate roof is generally excluded from
commission review. However, many ordinances 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.
What if a historic resource is threatened by actions not covered by
the ordinance, such as a proposed subdivision or street widening?
While historic preservation commissions have specific authority over
applications by property owners to alter or demolish historic
properties, commissions may be given authority to review applications
for other types of actions which may affect historic properties such as a
rezoning or subdivision request. Generally, referrals will be made to a
preservation commission, who, in turn, will issue a "recommendation."
Some states have also enacted "environmental protection laws" which
require state and/or local governments to consider the impact of
proposed governmental actions on historic properties, such as the
construction or widening of a road running through a historic district.
How should a community address special situations such as undue hardship?
Many ordinances provide for the consideration of "economic hardship"
claims. 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." Requests for
economic hardship exceptions are generally considered once a commission
has acted upon an application for a certificate of appropriateness. Such
provisions are generally helpful in providing property owners assurance
that relief is available in situations where the impact of a particular
action proves to be exceptionally harsh. They can also enhance a local
government's ability to protect individual properties if challenged in
What if a historic building poses a threat to public safety?
Many preservation ordinances also include public safety provisions
which recognize that it may be necessary to demolish a historic
structure that threatens or endangers public safety. To discourage
unnecessary demolition, public officials should be encouraged to
stabilize rather than demolish historic buildings, when feasible.
Should decisions under historic preservation ordinances be appealed to another administrative body or court?
Some preservation ordinances provide property owners with the
opportunity to appeal a commission decision to another administrative
body, such as a board of appeals or a planning commission. In
establishing an appeal process, it is important to ensure that the
appellate body is 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 is not required to defer to the
conclusions reached by the commission), that body must use the same
criteria as the preservation commission in making its decision.
How are preservation ordinances generally enforced?
Preservation ordinances usually empower local jurisdictions to impose
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 commercial 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
What type of assistance is available for owners of historic property?
Several states and an increasing number of local communities have
established tax incentive programs to provide monetary support for
historic property owners seeking to rehabilitate their properties.
Relief may be provided through property tax abatement or an income tax
credit. Some communities have also established a "transferrable
development rights" program, enabling individual owners to transfer or
sell unused development rights to other parcels within a community.
Property owners may also be eligible for tax relief through federal
government programs including the "rehabilitation tax credit" and a
charitable tax deduction for the donation of a historic preservation
Are there any limitations on a local jurisdiction' authority to adopt an historic preservation ordinance?
The authority to enact historic preservation ordinances for the
protection and preservation of historic structures is conferred on local
governments by the state. Some local governments operate under a broad
grant of authority, commonly referred to as "home rule authority." Most
governments, however, operate under a specific grant of authority that
enumerates specific powers relating to certain governmental functions
such as zoning, or as in this case, historic preservation.
Historic preservation ordinances must be consistent with the specific
grant of authority conferred by the state. In other words, protection
for historic properties must correspond with the regulatory scope of
applicable enabling laws.