Local Historic Preservation Ordinances
Today, Ohioans are increasingly searching for effective ways to protect their historic neighborhoods, downtowns and rural landscapes and the irreplaceable character of the buildings and structures that define these places and provide us with visible evidence of our past. For over 75 years, the local historic preservation ordinance has effectively accomplished this goal.
What is a historic preservation ordinance?
The preservation ordinance is nothing more than local legislation (a law) enacted to protect historic districts, individual buildings and archaeological sites from destruction or insensitive remodeling. It is a legal means by which local communities can identify, evaluate and protect historic properties. Such laws empower a board or commission to regulate to a greater or lesser degree, the design of exterior changes to buildings within a defined area.
Constitutional Basis for Effective Historic Preservation Legislation
The U.S. Supreme Court upheld the constitutionality of local historic preservation ordinances in Penn Central Transportation Company v. New York City, which was decided in 1978. Some people feel it is illegal for a city or village to tell them what they can or cannot do with their property other than to ensure healthy and safe conditions. However, the Supreme Court decision upheld the concept that a city can enact land use controls that preserve the aesthetic features of a city, including the areas that have special historical, archaeological and architectural significance. The court ruled that such laws do not constitute a “taking” of a property as long as an owner may still get a reasonable return from his property and the restrictions are closely related to promoting the general welfare of the citizenry.
Ohio facilitates the establishment of local preservation legislation by providing for strong “Home Rule” through which local communities can utilize their general municipal “police powers” to designate groups of historic or archaeological properties, usually called “historic districts,” or individual properties (sometimes referred to as “landmarks”) as zoning overlays. This means that the legal use of the land does not change but that an additional designation of historic “zone” is identified.
What the Supreme Court decision means to communities in Ohio is that the legal foundation for local historic preservation legislation is firmly upheld if there are well-thought-out criteria and standards, good hearing procedures, well-documented records and sound administrative oversight and if decisions are consistent and serve multiple public goals. Detailed minutes must be kept, historic sites and districts must be carefully researched and selected throughout the community, and design review decisions must be consistent and based upon sensible design guidelines which are readily understandable and available to the public.
Establishing Effective Local Legislation
The most effective local ordinances enable establishing a design review board or commission and the designation of local historic districts and individual landmarks. Ordinances of this type are called “enabling ordinances.” Most ordinances do not identify specific districts or landmarks in the ordinance itself. In this way, additional historic properties may be identified and designated in the future. One clear advantage of the enabling ordinance is that it establishes a community’s historic preservation program as an integral part of city or village government, recognized by law.
An Enabling Ordinance:
- declares public policy
- explains why the review board is being established
- states how the members of the board will be appointed and their responsibilities
- includes criteria and procedures for the designation of historic districts and individual landmarks
- states procedures for review of work to be undertaken to the designated properties
- provides for the review of proposed demolition and new construction in historic areas
- stipulates penalties and appeals procedures
Enabling Ordinances Should Have the Following Sections:
The title should be brief and should identify the content of the ordinance.
- Statement of purpose
List the purposes served by the adoption of the ordinance. These might include the promotion of aesthetic and architectural values, civic-mindedness or cultural values.
Be thorough! Never assume that the public, elected officials or even members of a board or commission know the definition of terms routinely used in the administration of a local ordinance.
- Procedures for establishing a review board or commission
This section establishes and describes the entity within local government that will administer the ordinance. What is the name of the entity? How many members are there? Who appoints them and for how long? What are their qualifications? What officers will there be, etc.?
- Powers and duties of the review board or commission
Describe the actual responsibilities of the board or commission. Most boards are charged with conducting historic surveys, maintaining historic property inventories and keeping adequate records. However, their most important function, the authority to designate and regulate historic properties, varies from community to community. This includes the responsibility for approving applications for construction, preservation, demolition, restoration, reconstruction and rehabilitation submitted by the owners of individually designated properties and those within historic districts.
- Criteria and procedures for identification, review and designation of historic districts and individual landmark
This section spells out the criteria used for designating historic districts and landmarks. The criteria may vary from community to community but basically relies on the criteria for listing on the National Register of Historic Places. In addition, the designation process must allow for an adequate notification period; provide an opportunity for property owners to be heard before the designation and specify who can nominate properties, how and when property owners are notified, and whether public hearings are required.
- Procedures and standards for reviewing proposed alterations (including demolition and new construction) and for the issuance of approval to proceed with work to a designated property
This section gets at the heart of the design review process, the approval to proceed with work to a designated property, and the issuance of a certificate usually known as a Certificate of Appropriateness. The approval or denial should be based on specific criteria (design guidelines), which are based on the Secretary of the Interiors’ Standards for Rehabilitation. Describe the types of changes subject to design review and the standards the board or commission will use to evaluate these changes. This section also sets out the timetables for commission decision-making, in order to insure timeliness and fairness.
- Enforcement provisions and penalties
Enforcement provisions are necessary to ensure that a commission’s authority is binding. The ordinance should describe the consequences of failure to follow the law. The ordinance may establish specific penalties for violation or provide for civil remedies.
- Appeals procedures
In many cases ordinances allow a property owner to appeal to another decision-making body, such as a plan board or commission, with final determination generally made by the elected city or village council.
Most ordinances have a severability clause, which allows the ordinance as a whole to remain in effect if a court has determined that a specific provision is invalid.
- Minimum Maintenance
If not already included in a separate city ordinance, preservation ordinances often include some means of addressing the deterioration of historic buildings from neglect.