Enabling Authority for Local Preservation Ordinances
The strongest protection for privately-owned historic places is afforded by local historic preservation ordinances.
Many states, if not all, have enacted laws providing local governments with requisite authority to adopt and implement such ordinances. Some local governments have successfully relied on a broad grant of authority to enact preservation ordinances. In so-called "Dillon Rule" states, such as the Commonwealth of Virginia, where a local jurisdiction's authority must be express, detailed authority should be provided.
The types of provisions commonly included in the enabling legislation are:
- A provision establishing a historic
preservation commission or board with specific information on
appointment procedures, composition of preservation commission, terms of
members, officers, and voting procedures.
- A statement of regulatory and
administrative authority granted to a preservation commission, including
the authority to adopt administrative guidelines.
- A provision enabling the designation
of landmarks and historic districts, and a list of types of resources to
be designated such as structures, sites, archeological and cultural
resources, and interiors.
- A provision establishing of criteria for designation.
- A provision establishing a process
for nomination and designation including the identification of
resources, procedures for nominating properties, notice and hearing
requirements, and the final decision.
- A provision establishing authority to protect resources while designation applications are pending. A provision establishing criteria and procedures for de-designating properties.
- A provision regarding the affirmative
responsibilities of owners of designated properties such as maintenance
and a prohibition against demolition-by-neglect.
- A provision governing reviewable
actions under a preservation ordinance, including the types of actions
subject to review (alterations, additions, moves, demolitions, new
construction), treatment of minor alterations and routine maintenance,
scope of review authority (visible from public way, interiors and
exteriors), and legal effect of review (binding, advisory).
- A provision setting forth standards for review.
- A provision establishing procedures
for review of applications (including the role of staff and procedures
for preliminary review/conceptual approval, notice and hearing
requirements, and decision-making requirements).
- A provision establishing standards and procedures for granting exceptions for economic hardship.
- A provision regarding exceptions to the ordinance such as public safety.
- A provision regarding process for appeal.
- A provision governing enforcement, including the issuance of fines and penalties.
Although every state has adopted laws which enable local
governments to enact historic preservation ordinances, the powers
conferred under these laws vary greatly and to a large extent reflect
the political realities of the time in which they were adopted.
The State of Indiana provides a good example of a detailed
enabling law that touches on each of the 15 components identified above
(see Indiana Code § 36-7-11). Other examples of states with detailed
enabling laws include Maryland (Maryland Code Art. 66B, § 8.01 through §
8.17) and North Carolina (N.C. Gen. Stats. §160A-400.1 through
Learn More About Ordinances
Take a look at our answers to frequently asked questions on historic
preservation ordinances. Although no two preservation ordinances are
alike, many are similar in design and scope.