Practice Before Local Historic Commissions

10/6
PRACTICE BEFORE LOCAL HISTORIC COMMISSIONS
BY DONALD M. NIELSEN
    The State Historic Preservation Office counts over eighty active historic preservation commissions across North Carolina.   Sooner or later a client will ask about the legal ramifications of designating, buying, demolishing or altering an “historic property.” Your answer, of course, will be that “it depends.”
    A property is “historic” independent of designation by any authority, but without designation a property has little protection.  Where a property is designated—or in some circumstances is eligible for designation—different  programs can come into play.  Local historic landmark and historic district programs are distinct and separate from the National Register of Historic Places.   National Register listing is primarily honorary, and does not restrict a private owner unless the owner seeks federal benefits such as tax credits.1  While a historic commission may review and comment on National Register nominations, or use National Register documentation as a basis for local designation, a local commission has no authority over National Register property unless the property is also a local landmark or within a local historic district.  Demolishing or altering a National Register property is more likely to be a political battle than a legal issue.
NORTH CAROLINA ENABLING LEGISLATION
    The enabling legislation for North Carolina local historic preservation commissions is N.C.G.S. 160A-400.1-400.14.  The North Carolina Supreme Court had “no difficulty in holding that the police power encompasses the right to control the exterior appearance of private property when the object of such control is the preservation of the State’s legacy of historically significant structures.”  A-S-P Associates v. City of Raleigh, 298 N.C. 207, 258 S.E.2d 444, 450 (1979).   Yet proper procedure is crucial.  The late Robert E. Stipe, a key figure in North Carolina preservation,  was exaggerating but voicing a real concern when he wrote that “I would guess that 98% of all the decisions made by preservation commissions—at least in the smaller cities, and even some of the largest ones—could be overturned on appeal by any half-bright, first-year law student.”  A Letter to George: How to Keep the Preservation Commission Out of Court and Avoid Being Sued (1994).
    Municipalities and counties need not establish historic commissions.   If formed, a commission must function consistent with the enabling legislation, which mandates certain fundamental powers and responsibilities for commissions but leaves the granting of various other powers to the governing board’s discretion.  Commissions will likely spend most of their time (1)  recommending designation of individual landmarks and historic districts to the local governing board; and (2) reviewing, as a quasi-judicial body, applications for certificates of appropriateness to alter historic landmarks or property in historic districts.
DESIGNATION OF LOCAL LANDMARKS AND DISTRICTS
    Numerous procedural steps are required before recommending designation of a landmark or district to a governing body, including establishment of procedural rules and design guidelines, appropriate investigation and consultation with the State Historic Preservation Office, notice and public hearing(s).   The commission acts in an advisory role to the governing body.  The process is not quasi-judicial.
    Local landmarks are individual properties with significant historical value.  Most often landmark designation is a cooperative process, where the landowner seeks the honor and the potential property tax credit.   Building interiors cannot be designated without the owner’s consent, but consent is not required for designation of a property’s exterior or grounds.  Many commissions and governing bodies will not consider designation without consent of the owner.  Those which designate without consent need to be careful in strictly following required procedures.  The commission’s job, however, is to test whether the application qualifies under the applicable standards, not to do a favor for a sympathetic applicant or consider issues outside the application and property.
    Governing boards do reject recommended designations for reasons which have nothing to do with the historical merit of the property, such as concern over potential loss of property tax revenue.2  While ultimate designation decisions may be legislative, and a local government need not designate any properties at all, rejecting some properties but not others based on lost revenue or an owner’s assets rather than preservation principles may leave a governing board in a difficult position.
    Historic districts may be overlay districts or a separate use district in the zoning code.  An historic district such as Old Salem in Winston-Salem is a separate use district with strict design review guidelines.  An overlay district superimposes the historic district over existing zoning and is intended to recognize adaptations necessary to accommodate modern life.    
    The setting of district boundaries, what property is included and what is not, can be political and contentious, but must be justifiable.  “Non-contributing” lots and structures are included so that a district will not have a “swiss-cheese” look and to control new development that may impact historical integrity.   For example constructing a high-rise on a vacant lot in an historic area would likely be incongruous.  See A-S-P Associates, 258 S.E.2d 444 (upholding inclusion of a vacant lot on the edge of a historic district).
CERTIFICATES OF APPROPRIATENESS
    Once a property is a local landmark, or is within a local historic district, an owner must obtain a certificate of appropriateness (“COA”) for almost any change to an exterior feature.3  The process is quasi-judicial, and the hearing and procedural issues are similar to those faced by boards of adjustment:  testimony under oath, adequacy of evidence, hearsay, cross-examination, fact-finding and making a record, impartiality, prohibition on ex parte contacts and so forth.
    The standard of review in considering applications for certificates of appropriateness is that “the commission shall take no action except to prevent changes that would be incongruous with the special character of the landmark or district.”   160A-400.9(a) (emphasis added).  In finding the “contextual standard of ‘incongruity’” a sufficient limitation on a historic commission’s discretion, the court in A-S-P Associates stated that “incongruity” must derive its meaning “from the total physical environment of the Historic District.”  258 S.E.2d at 454.
    Adopted design guidelines are the key to applying the incongruity standard, although the commission must also be cognizant of the ordinance establishing the commission,  rules of procedure,  ordinances establishing the landmark or district and, sometimes, precedent.  The commission must make findings of fact and create a written record stating the findings that constitute the reasons for the decision.
    Design guidelines cannot cover everything, but how guidelines are phrased can be important.   Flexible guidelines with “shoulds” or strict guidelines dominated by “shalls”  can lead in different directions.  But if commissions have some leeway in deciding what is incongruous, the conclusions must be backed up with reference to facts and authority.   Denials of applications cannot be because the commission finds a proposed change unattractive or has the “instinctive feeling” that the picket fence is out of character with the neo-classical house.    
    My experience is that overlay districts cause the most controversy.   Landmark and separate use historic district property owners are more likely to be aware and supportive of restrictions.  In overlay districts, property owners are more likely to protest that they did not know they were in an historic district, and certainly did not know that they could not cut down a tree, add siding or pave the front yard without permission.
    As at board of adjustment hearings, it is important for an applicant to make a defensible record that can be reviewed on appeal.   Appeals are in the nature of certiorari, and may be taken to the board of adjustment by any “aggrieved party.”  160A-400.9.  The board of adjustment only reviews the record and whether there is reasonable evidence to support the commission’s decision.  The board of adjustment does not take new testimony, admit new evidence or have the power to grant a variance.
    Needless to say, it can be difficult for a citizen board of adjustment to sit as an appellate court.  Actual examples of the wrong thing to say in reviewing a commission’s  denial of a COA include: “historic significance, it would seem to me, is being given undue emphasis,” and objecting that commission findings were “founded entirely on the wording of the Guidelines” when the commission should work with the applicant since the project really “won’t hurt anything.”
MAINTENANCE, DEMOLITION, REMOVAL and DEMOLITION BY NEGLECT
    Property owners are allowed to perform ordinary maintenance and repair of exterior features which do not involve a change in design, material or appearance.  Nor can they be prevented from construction or demolition required by the building inspector or similar official  for public safety or from handling certain emergency situations.  160A-400.13.
    Historic commissions cannot deny a property owner a certificate of appropriateness for the demolition or relocation of a landmark or structure within an historic district (unless the building is deemed of statewide significance) but the commission can delay demolition or relocation for up to 365 days, or up to 180 days if a landmark has been recommended but not yet designated.  160A-400.14(a).
    Governing boards may also enact ordinances to prevent the demolition by neglect of any landmark or structure within an historic district.  Demolition by neglect occurs when the exterior features of a designated property are found to be in severely deteriorated condition.  160A-400.14(b).
CONCLUSION
    This too-long summary merely touches the surface.  The enabling statute,  Bob Stipes’ A Letter to George, the 1994 Handbook for Historic Preservation Commissions in North Carolina and other information is available on the State Historic Preservation Office website: www.hpo.dcr.state.nc.us  
    Nielsen is with Bell, Davis & Pitt, P.A., in Winston-Salem.  He has served as Chairman of the Forsyth County Historic Resources Commission.

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