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Essential Elements of a Statewide Legislative Program for Historic Preservation 

12-09-2015 17:35

The state and local levels have always been the most significant political spheres for the historic preservation movement. The last decade has seen a ground swell of innovative new legislative strategies by state and local preservation organizations all across the country. It is time for national organizations like Preservation Action and the National Trust to catalog these ideas, act as a clearinghouse for new legislative approaches to preservation and spearhead the drive for comprehensive state legislative programs for preservation in key states throughout the nation.

There are at least five activities that a statewide preservation legislative program should include:


Enacting state legislation requires an effective statewide organization. A small county historical society has little influence on a state legislature beyond the one representative or state senator for that area. Statewide organization, however, does not necessarily mean creation of a new not-for-profit entity with a new membership, a new budget and a new staff. Existing preservation groups can form a coalition. But make it a broad one that includes historical societies, museums, preservation groups and archeological interests.

Give this group the resources to assign one person on a part- or full-time basis to work with the state legislature to accomplish the preservation agenda. An effective program can be launched with a budget of $20,000 or $30,000. Energy, enthusiasm and knowledge of the legislative process are more important than money. Knowledge of the process can be gained on the job.

The statewide legislative coordinator must quickly learn to carry out what I call a "two-day legislative fire drill": the ability to snuff out a dangerous bill on very short notice. If someone in the legislature introduces a bill that hurts the preservation movement, you have to be able to crank up a phone-calling and letter-writing process in every legislative district on short notice. If the bill is in committee, find out who the key committee members are. Get them to stall the bill or kill it before it gets to the floor of a legislative chamber. It is easier to work through a committee than influence an entire house of a legislature.

In every legislative district, sign up one volunteer who can be counted on in a crisis to make phone calls to legislative offices and to contact 5 or 10 other people in that district to make similar phone calls and write letters. One enthusiastic supporter in every legislative district is easy to find.


Review your state`s existing preservation legislation along with that of other states. Compile the best concepts from around the country and propose them to your state legislature. Analyze the strengths and weaknesses of your state`s existing legislation and identify its most glaring deficiencies. Then go after those weaknesses systematically until you have eliminated them all.

The most important element state legislation should include is clear statutory authority for local landmark and historic district commissions. Make sure state legislation gives local governments the authority to designate individual landmarks as well as historic districts. Do your state`s statutes give local governments the authority to review alterations? Is there authority to deny demolition permits? Is there authority for local preservation commissions to review new construction within historic districts or adjacent to individually designated landmarks? Can local commissions legally require affirmative maintenance? Does state legislation authorize special local incentives such as tax relief to offset hardship that might result from denial of an alteration or demolition permit? Who has the local authority in your state? Is it only the city? Do counties have it as well? Make sure the authority to protect historic properties spreads across all levels of local government.

Finally, does existing state legislation give local commissions enough guidance about what to put in their local ordinance or program? The best state legislation today gives specific guidance to local commissions, especially smaller and rural communities that do not have much experience with historic preservation or other innovative land use laws. Indiana, Georgia, Illinois, Louisiana, Massachusetts, Michigan, New Jersey and North Carolina specify in their state enabling legislation the steps that local commissions must take to comply properly with state enabling legislation for local landmark protection.

Look at the zoning and planning legislation in your state. Is there clear authority to establish historic zones or to include historic preservation in your zoning ordinance? Is there authority to grant variances to historic buildings and special use permits for some types of uses in historic districts? Does the state legislation allow or require local comprehensive plans to include a preservation component? More and more states make preservation components an essential element of a local comprehensive plan. Oregon and California, and more recently Florida and New Jersey, have enacted such legislation.

Is the legal status of a preservation easement clear in your state? The Uniform Commission on State Laws has published a model easement statute, which some states have adopted verbatim. Other states, such as Arizona, recognizing some problems with the model, have adopted it only after making important changes. Still other states, like South Carolina, have borrowed some components from the Uniform Commission`s model but have essentially created their own easement enabling law.

Innovative state easement statutes eliminate old common law confusion over who can hold an easement and how it can be enforced. They eliminate confusion over the meaning of such terms as "easement," "covenant" and "preservation restriction." An increasing number of states now require preservation easements to be recorded and demand that assessors take the easement into account when valuing property. Many states also give third parties, such as a state preservation agency, the right to enforce an easement even when the easement-holding organization does not.

Economic incentives for the rehabilitation of historic buildings are important to any agenda. We must look at incentives that can complement the reduced importance of the federal rehabilitation tax credit.

Property tax incentives can be very powerful. After utilities, the biggest burden for the owner of income-producing historic properties is the ad valorem tax. As much as 15 to 25 percent of gross income may be devoted to local taxes.

Some states have created total or partial abatements, exemptions or freezes on property tax payments on historic buildings. Some of the programs require that the property be rehabilitated and that the work conform with the Secretary of the Interior`s Standards. Some states create a property tax credit measured as a percentage of qualifying rehab expenditures. Other states allow historic buildings to be assessed at current use rather than at their "highest and best" use. Texas, North Carolina, Oregon, Alabama, Arizona, Illinois, Maryland and Washington have created the best incentive programs. In addition, New Mexico, Maryland, Montana and Wisconsin have created state income tax credits for historic rehabilitation.

A few states offer low-interest financing for historic rehabilitation. Alabama authorizes creation of local historic preservation authorities that can provide a combination of below-market rate financing, exemption from property taxes and exemption from sale taxes. Connecticut has established a statewide historic preservation revolving fund to be funded up to $1 million from state revenues.

Building code reform should also be high on your agenda. Georgia, Massachusetts and Ohio have innovative new model building code provisions that exempt historic rehabilitation from otherwise stringent requirements.

There are many other legislative initiatives that you can add to your agenda. Do you have a state historic register, a process for designation protection of key buildings in your state from private as well as state actions that might adversely affect them? Is there anything like the Section 106 process of the Federal Historic Preservation Act, that is, a provision requiring state agencies to consider the impact of their actions on historic resources? Wisconsin recently created such a process, and other states including Illinois are considering it. Is your state preservation program adequately funded? Work closely with your historic preservation office to ensure adequate funding for their programs, especially if they own historic sites.

Finally, consider the regulations that implement your state statutes. Are they adequate? Vague legislative initiatives often pass with good intentions but fail because of faulty regulatory interpretation.


How do you win political allies and how do you keep them? First, find the three or four legislators in your state with an interest in historic preservation. Work with them on the easiest parts of your agenda. Get less controversial items enacted. And then reward your legislative friends. Hold a ceremony with press coverage where you recognize their help and assistance. You will be amazed at how much a state legislator appreciates simple recognition and how quickly they will help you in the future if you publicly thank them. Other legislators will take notice if you act professionally.


Making enemies is part of the political process. Pick your opponents carefully but don`t be afraid to offend a politician, especially if you have other friends in the legislature on whom you can count.


The need for compromise is one of the toughest lessons preservationists must learn. The preservation movement has matured in the last decade and gained political savvy. Sometimes we are going to lose battles and sometimes we are going to win. And sometimes we have to give up a little bit in order to win the long contest. Preservationists have to make tough choices. Sometimes one building may have to be sacrificed in order to save hundreds of buildings later.

Publication Date: Summer 1988



Author(s):Richard J. Roddewig