legal basis for historic preservation...

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Legal Basis for Historic Preservation OrdinancesLegal Basis for Historic Preservation Ordinances

Historic Preservation TimelinePrimary Legal Issues

The following constitute a significant portion of legal issues surrounding the establishment and implementation of historic preservation ordinances:

– Regulatory takingsg y g– Procedural due process– Equal protection– Establishment– Free exercise– Free speech

Historic Preservation TimelineRegulatory Takings

Source: 5th and 14th Amendments

Purpose: protection against overly burdensome or confiscatory governmental actions affecting private property.private property.

Requirement: action must “substantially advance legitimate state interest” and not deny owner an “economically viable use of his land.”

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Historic Preservation TimelineProcedural Due Process

Source: 5th and 14th Amendments

Purpose: protect individual from arbitrary and capricious governmental action.

Requirement: Government must provide individual notice and opportunity to be heard before affecting protected property right.

Historic Preservation TimelineEqual Protection

Source: 14th Amendment

Purpose: protection against discriminatory governmental actions.

Requirement: laws must be fairly and uniformly applied.

Historic Preservation TimelineEstablishment Clause

Source: 1st Amendment

Purpose: ensure laws are neutral towards religionreligion.

Requirement: laws must have a secular purpose and may not advance or inhibit religion or foster an “excessive entanglement” with religion.

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Historic Preservation TimelineFree Exercise Clause


Purpose: protect against laws or governmental actions that inhibit the free exercise of religion or coerce individuals into violating their religion.

Requirement: except for “neutral laws of general applicability,” government may not “substantially burden” the free exercise of religion unless the government can establish that the burden is the “least excessive means” of furthering a “compelling governmental interest.”

Historic Preservation TimelineFree Speech


Purpose: protect individual against governmental restriction on speech based on content.

Requirement: government may not abridge speech i l di i d th di dincluding signs and other media used to convey ideas. However, it can impose “reasonable time, place and manner” restrictions on speech, if those restrictions are “content neutral” and “narrowly tailored” to meet legitimate governmental objectives.

Historic Preservation TimelineSecondary Legal Issues

The following regulatory tools are often used to promote historic preservation:

– Transfer of Development Rights (TDR)– Easements– Tax Incentives– Revolving Funds

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Historic Preservation TimelineOther Laws and Issues

The following laws may have a significant effect on historic preservation activities:

– Access Laws (ADA)– Executive Orders– Environmental Hazard Laws (CERCLA, aka “superfund’)– Archeology (ARPA)– Native Americans (NAGPRA)– Building Codes (IEBC, UCBC)– Department of Transportation Act (Section 4(f))– Transportation Laws (ISTEA, TEA-21)

Historic Preservation TimelineLegal Precedents

The following cases have served has precedents in upholding preservation ordinances in the US:

– Berman v. Parker, 1954– Maher v. City of New Orleans, 1974 y– Figarsky v. Historic District Commission, 1976 – Penn Central Transportation Company v.

City of New York, 1978 – St. Bartholomew’s v. New York City Landmarks

Preservation Commission, 1990

Historic Preservation TimelineBerman v. Parker, 1954

Challenged the existing “aesthetics plus” principle for justifying a regulation or action.

– Established the principle that aesthetics alone is sufficient to justify government regulation.

– Meant to address blight removal programs– Used to justify protective historic ordinances– “…backbone of historic preservation regulations”

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Historic Preservation TimelineMaher v. City of New Orleans, 1974

Challenged use of historic preservation protection for a building that was not individually significant within a historic district.

– Identifies context as partIdentifies context as part of a regulatory action

– Protection of the building was not a “taking”

Historic Preservation TimelineFigarsky v. Historic District Commission, 1976

Challenged HDC use of “vague aesthetic legislation” in denying a demolition permit.

– Identifies context as part of a regulatory actionDenied awarding compensation to make repairs– Denied awarding compensation to make repairs needed to satisfy building code

– Upheld commissions power to deny demolition

Historic Preservation TimelinePenn Central Transportation Company v. City of New York, 1978

Challenged the right of a city to “review and regulate the development of a designated historic property.”

– First Supreme Court decision di ti lregarding a preservation law

– Reinforced Landmarks Commission power to deny development that significantly alters historic character of a landmark

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Historic Preservation TimelineSt. Bartholomew’s v. New York City Landmarks Preservation Commission, 1990

Questioned whether religious buildings were exempt from historic preservation ordinances.

– Free exercise was not limitedFree exercise was not limited– No taking since reasonable

return remained– Due process maintained

Historic District Ordinances

Historic District Ordinances

Historic Preservation Timeline

Why establish a Historic District?

Protection of historic propertiesControl of new developmentpRedevelopment incentivePublic relations and promotion

St. Augustine, FL

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Historic Preservation TimelineEnabling Legislation

The granting authority from the state given to cities and municipalities to enact a local preservation ordinance that includes the power to:

– Regulate private actions through permit process– Designate historic properties and districts to

prevent incompatible alterations, demolition, or new construction

– Establish specific processes for economic hardship, special merit exceptions, and appeals

Historic Preservation TimelineHistoric Property Listing

The registers on which historic properties can be listed include:

– National Register of Historic Places • National significance• Statewide significance• Local significance• Local significance

– State Register• Statewide or local significance

– Local Register• City, town, county • “Salt Lake City Register of

Cultural Resources”

Historic Preservation TimelineLocal Preservation Ordinance

The key components to a local ordinance include:

1. Statement of “Purpose” or “Powers and Authorities”

2. Definitions3 Establishment and authority of historic3. Establishment and authority of historic

preservation commission or board4. Criteria and procedures for designation of historic

landmarks and/or districts5. Statement of reviewable actions and their effect6. Criteria and procedure for review of such actions

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Historic Preservation TimelineLocal Preservation Ordinance (continued)

The key components to a local ordinance include:

7. Standards and procedures for the review of “economic hardship” claims

8. “Affirmative maintenance” requirements and procedures governing “demolition by neglect”procedures governing demolition by neglect

9. Procedures for appeal from final preservation commission decision

10.Fines and penalties for violation of ordinance provisions

Historic Preservation TimelineLocal Preservation Ordinances(continued)

Historic DistrictsHistoric Districts

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Historic Preservation TimelineNational Monuments• Antiquities Act of 1906• Designated through Presidential

or Congressional proclamationg p• Natural or cultural resource• May be upgraded to National Park status

at a later date


National Parks• Initiated in 1872 (Yellowstone NP)

D i t d b C i l l ti• Designated by Congressional proclamation• Natural or cultural resource


National Historic Landmarks• Historic Sites Act of 1935

D i t d th h N ti l P k S i• Designated through National Park Service review and nomination

• Generally privately owned

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Historic Preservation TimelineNational Register of Historic Places (NRHP)Is composed of:– Districts– Sites

Buildings– Buildings– Structures– Objects

that are significant in American history, architecture, archeology, engineering, and culture.

Lake Quinalt Lodge, WA

Historic Preservation TimelineDistrict

“…a significant concentration, linkage, or continuity of sites, buildings, structures, or objects united historically or aesthetically by plan or physical development ”development.

University of Utah President’s Circle

National Historic District

College Campuses, CBD, Residential Areas, Commercial Areas, Large Forts, Industrial Complexes, Civic Centers, Rural Villages, Canal Systems, Irrigation Systems, Large Farms, Ranches, Estates, Plantations, Transportation Networks, Large Parks…

Historic Preservation TimelineSite“…the location of a significant event, a prehistoric or historic occupation or activity, or a building or structure, whether standing, ruined, or vanished, where the location itself possesses historic, cultural, or archeological value regardless of the value of the value of any existing structure ”any existing structure.

Golden SpikeNational Historic Site

Habitation Sites, Funerary Sites, Rock Shelters, Village Sites, Hunting and Fishing Sites, Ceremonial Sites, Petroglyphs, Rock Carvings, Gardens, Grounds, Battlefields, Ruins, Campsites, Sites of Treaty Signings, Shipwrecks, Cemeteries…

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Historic Preservation TimelineBuilding

“…a building…created principally to shelter any form of human activity.”

Houses Barns Stables Sheds Garages

Hotel GalvezGalveston, TX

Houses, Barns, Stables, Sheds, Garages, Courthouses, City Halls, Commercial Buildings, Libraries, Factories, Mills, Train Depots, Stationary Mobile Homes, Hotels, Theatres, Schools, Stores, and Churches…

Historic Preservation TimelineStructure

“…those functional constructions made usually for purposes other than creating human shelter.”

Bridges Railroad Locomotives and Cars

Key West LighthouseKey West, FL

Bridges, Railroad Locomotives and Cars, Tunnels, Grain Elevators, Silos, Canals, Power Plants, Dams, Kilns, Corncribs, Railroad Grades, Carousels, Boats & Ships, Bandstands, Gazebos, Windmills, Mounds, Cairns, Roadways, Telescopes, Aircraft…

Historic Preservation TimelineObject

“…those constructions that are primarily artistic in nature or are relatively small in scale and simply constructed. Although it may be, by its nature or design, movable, an object is associated with a specific setting or environment ”environment.

Paul Bunyan andBabe the Blue Ox

Bemidji, MN

Sculptures, MonumentsBoundary Markers, Statuary,Fountains…

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Historic Preservation TimelineHistoric Criteria

Criterion A: events that have made significant contribution to the broad patterns of our historypatterns of our history,

Antietam National Military Park


Criterion B: association with the lives of persons significant in our past

George Washington’s estate at Mt Vernon, VA


Criterion C: embodies distinctive character-istics of a type, period, or method of con-struction, or that represents the work of a master, or that possesses high artistic values, or that represent a significant and distinguishable entity whose components may lack individual distinction.

National Farmers BankOwatonna, MN

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Criterion D: may or already have yielded information important to prehistory or history.

Mesa Verde NP

Historic Preservation TimelineEvaluating a Property Within its Historic Context

Determine these five things:

1. What facet of prehistory or history of the local area, State or the nation is represented?

2. Is that facet significant?3. Does the property illustrate the historic context?4. How does the property illustrate that context?5. Do the physical features of the property convey

that facet of prehistory or history?

Historic Preservation TimelineDeciding What to Include

When defining the boundary, consider the following factors:

1. Integrity2. Setting and landscaped featuresg3. Use4. Research potential

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Historic Preservation TimelineSelecting Boundaries

Consider these five things:

1. Distribution of resources2. Current legal boundaries3. Historic boundaries4. Natural features5. Cultural features

Historic Preservation TimelineEstablishing a Historic District

Salt Lake City Register of Cultural Resources

– Local Historic Districts– National Historic DistrictsNational Historic Districts– Landmark Sites

City County Building Detail

Salt Lake City, UT

Historic Preservation TimelineDefining Historic District Boundaries


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Salt Lake City Register of Cultural ResourcesGalveston HD,Galveston, TX

Pioneer Square HD,Seattle, WA

Annapolis HD,Annapolis, MD

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Historic Preservation TimelineEstablishing a Historic District: Defining Boundaries

Salt Lake City Register of Cultural ResourcesInformation gathering:SHPO reconnaissance surveysSHPO intensive level surveysSHPO intensive level surveysLocal Municipal Planning DepartmentArchival researchWindshield surveyPedestrian survey

Archival Research: Sanborn Maps

1911

1884

1898

Historic Preservation TimelineEstablishing a Historic District: Defining Boundaries


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Historic Preservation TimelineCase Study: Establishing Historic District Boundaries


Methodology:

– Reviewed maps at Ann Arbor planning department– Performed windshield survey of neighborhood– Reviewed Sanborn maps at Bentley Library

R i d A A b hi t t i l t UM Lib– Reviewed Ann Arbor history materials at UM Library– Performed initial foot survey to develop preliminary

boundary– Reviewed Sanborn maps at Bentley Library– Performed final survey to establish boundary– Completed photo survey of representative buildings


Historic Significance:

– Represents changes occurring within Ann Arbor neighborhoods in the early half of the 20th century

– Changes include architectural styles and city planning methods:planning methods:

• Early usage of curvilinear street plats• Parking courts (cul de sacs)

– Includes representative examples of the building styles of the late 19th & early 20th centuries:

• Period Revivals, Folk Victorian, Italianate, Bungalow, Foursquare, and Cape Cod Cottage

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Verbal boundarydescription



Boundary justification:– The boundary follows the

1925 Ann Arbor city limits to the west and north of the proposed district.

– Houses in the 1931Houses in the 1931 annexations display a distinctly different post-war style and streetscape.

– Eastern and southern boundaries are defined by the existing OWSHD, the railroad tracks, and Main Street where housing stock and street patterns are of earlier periods.

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Criterion C: embodies distinctive characteristics of a type, period, or method of construction, or that represents the work of a master, or that possesses high artistic values, or that represent a significant and distinguishable entity whose components distinguishable entity whose components may lack individual distinction.

National Trend: The transition of architectural styles and city planning concepts in the early to mid-20th century in Ann Arbor.


Old Northwest Side HD Survey Boundary Investigation

legal basis for historic preservation...

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