Historic preservation regulations and development rights transfer techniques

Historic preservation is a significant land use issue in various states throughout the country. For many years, the preservation of historic sites has taken place in many areas of the nation. The purpose of this discussion is to examine "historic preservation" as a major land use program -reviewing historic district regulation & historic landmark protection (which are the 2 major local regulatory programs), as well as the use of 'development rights transfers' as an historic preservation technique. The research will also investigate landmark court cases pertaining to historic preservation and the rights if owners and cities. The research will also discuss the transfer of development rights as it relates to historic sites. Let us begin our discussion with a brief overview of the National Historic Preservation Act.

The National Historic preservation Act

The National Historic Preservation Act (NHPA) became law in 1966. Via this law Congress declared that "the spirit and direction of the Nation are founded upon and reflected in its historic heritage...the historical and cultural foundations of the Nation should be preserved as a living part of our community life and development in order to give a sense of orientation to the American people (National Historic Preservation Act of 1966)."

This act asserted that a number of America's historic sights were being destroyed or significantly altered. As a result of this situation congress believed it necessary to preserve these sites for the purposes of education and enrichment for the next generations of Americans.

At the time congress believed that the rapid growth of urban areas was beginning to overwhelm the preservation of historic sites. As such the federal government created certain regulations as it relates to the preservation of historic sites. Congress also wanted to ensure that both private and public organizations would have the resources necessary to preserves these historic sites (National Historic Preservation Act of 1966).

Ross (2005) explain that starting in the 1970's the NHPA inspired the passing of city based historic preservation ordinances throughout the country and supplied the basic regulations for state enacted legislation (Ross, 2005). In addition, legislation at the State level was created with a similar structure and purpose as the national level. In addition the state laws had the authority to pass local enabling laws (Ross, 2005). The author further explains that These enabling laws granted the necessary police power to regulate historic preservation through preservation ordinances. Review boards or commissions review any private actions under the preservation ordinance in either an advisory or a binding capacity. Though governments at all levels may control growth, the majority of issues and ultimate cases that pertain to historic preservation evolve from local concerns (Ross, 2005)."

As a result of the aforementioned efforts, there are currently thousands of historic sites throughout the United States.

In some locales historic preservation has become a form of major land use. The next section of this discussion will focus on historic preservation and land use.

Historic preservation" as a major land use program

There are several land use programs that localities can adopt. For the most part the type of land use adopted is determined by the availability of land and the presence of historic sites. For many cities, land use is associated with historic preservation; this is particularly true of areas of the country that were British colonies or otherwise instrumental in the forming in the United States of America as it is known today. Indeed, the preservation of historic sites is a legitimate and necessary form of land use.

As it relates to historic district regulations, the federal law is designed to give states the authority to decide on specific regulations. In addition many states give individual districts the authority to create regulations. For the purposes of this discussion we will focus on historic district regulations as it relates to Nashville, Tennessee.

Article XIII provides the regulations for both Historic and Landmark districts. Section 13-105.3 describes the "Criteria for Designation of Historic and Landmark Districts." According to this criteria, at least one of five factors must be present for a structure, building, site or neighborhood to be considered for nomination as an historic district or landmark. These five factors are as follows:

The site is linked to an event which has played an important role in local, state or national history.

The site includes structures associated with the lives of persons significant in local, state or national history;

3. The site must have within it structures or groups of structures the characteristics of a type, period or style of construction, or that symbolize the work of a master, or that cotain substantial artistic values, or reflect an important and obvious entity whose components may not posses unique characteristics.

4. The site must yield or have the potential to yield archaeological information concerning historical events

The site is a part of the National Register of Historic Places ("ARTICLE XIII: Historic and Landmark...")

The nomination is then review and recommendations are made by the Historic Zoning Commission. According to the law, the decision to designate a site as historic or not must be made within a 60 day period Places ("ARTICLE XIII: Historic and Landmark..."). Both a resolution and a written report will be presented to the Hendersonville Regional Planning Commission for review as required by Subsection 13-105.9, and to the Board of Aldermen for final considerations Places ("ARTICLE XIII: Historic and Landmark...").

Once a site has been designated as a historic landmark there are also certain regulations that govern the manner in which the site is preserved. Section 13-104 provides various definitions concerning preservation. These definitions are as follows:

Alteration -- Any act or procedure that modifies one or more of the external architectural features of a structure, including, the construction, reconstruction, or elimination of any structure ("ARTICLE XIII: Historic and Landmark...").

Construction -- the process of creating an addition to a structure or the construction of a new main or secondary structure on a lot or property ("ARTICLE XIII: Historic and Landmark...").

Demolition -- Any procedure that eliminates any or all of a landmark or a structure that belongs to an historic district ("ARTICLE XIII: Historic and Landmark...").

Design Guideline -- a criterion of suitable activity that will protect the historic and architectural disposition of a site ("ARTICLE XIII: Historic and Landmark...").

Exterior Architectural Appearance -- the architectural quality and general makeup of the exterior of a structure, including the type, color, and quality of the building material and the style, design, and character of light fixtures, windows, doors, signs and appurtenant elements ("ARTICLE XIII: Historic and Landmark...").

Ordinary Repair and Maintenance -- All work performed for the purposes of remedying deterioration, or damage to a historic site and to repair the same, as closely as possible, to the condition it was in before the deterioration took place, utilizing materials identical or similar to the original materials ("ARTICLE XIII: Historic and Landmark...").

In addition to the aforementioned definitions, the law also points out the various statutes that limit the manner in which an historic site can be preserves. For instance the law asserts that the height of any possible alteration or construction should be consistent with the design and character of the landmark and the surrounding buildings within an historic district. In addition, factors such as roof shape, scale and landscaping are governed by certain guidelines Places ("ARTICLE XIII: Historic and Landmark..."). There are also guidelines associated with directional expression. These guidelines assert that facades in historic districts should be consistent with other structures as it relates to directional expression. That is, structures that are a part of an historic district should be identical to the most common horizontal or vertical expression of surrounding structures Places ("ARTICLE XIII: Historic and Landmark..."). Also the directional expression of a landmark subsequent to modifications, construction, or fractional demolition should be consistent with its original architectural style Places ("ARTICLE XIII: Historic and Landmark...").

Overall the research seems to indicate the regulations concerning historic preservation is extremely detailed. It appears that at all levels pf govern special efforts have been taken to ensure that historic sites will be taken care of properly, so that future generations can enjoy these sites. Now that we have garnered a greater understanding of these regulations let us discuss historic landmark protection.

Historic landmark protection

In addition to the regulations that govern the preservation of historic sites, there also exist protections for historic landmarks. According to the National Park Service Historic landmarks are sites of historic significance that are designated by the Secretary of the Interior because they contain extraordinary worth in demonstrating the heritage of the United States (National Historic Landmarks). There are currently less than 2,500 historic sited that have the national distinction of Historic Landmark (National Historic Landmarks). In collaborations with citizens around America, the National Historic Landmarks Program utilizes the knowledge of National Park Service staff responsible for nominating new landmarks and assists established landmarks (National Historic Landmarks).

The National Parks service reports that the National Historical Landmarks Program began as a private endeavor to preserve and restore historical sites. Although the program is still relatively small it has developed into a well respected method of preserving important American landmarks. The program works at the federal, state and local level to guarantee the protection and preservation of these designated sites. Now that we have a greater understanding of Historic preservation and landmarks, let us discuss the constitutional issues that arise as a result of historic preservation.

Another landmark case involving historic preservation was Penn Central

Transportation Co. v. City of New York [438 U.S. 104 (1978). This served as the leading takings case, dealing with the constitutional issue and objections based on substantive due process, takings of property, and equal protection. An article published in Journal of the American Planning Association asserts that in Penn Central Transportation Company v. New York City, which upheld the landmark protection of Grand Central Terminal, the Court expressed two central principles.

To determine whether a taking has transpired, a court must take into consideration the effect of the guideline on the complete property, not just on a specified segment. The court also must ensure that the owner was deprived of all reasonable use (Kelly et al.). This principle was also reiterated as it relates to taking test being applied to the entire property in Keystone Bituminous Coal Association v. DeBenedictis. In this case the court found that a law shielding property owners from surface subsidence by demanding retention of roof pillars did not deny coal mine owners of all "economically viable use" of their property (Kelly et al.).

The second principle expressed in Penn Central v. New York City is an all-inclusive test for the takings clause. This tests necessitates the balancing of three factors: the nature of the governmental action, the economic effect on the landowner, and the presence or absence of "reasonable, investment-backed expectations (Kelly et al.)."

According to a book entitled the American Mosaic the Supreme Courts decision in this case played an instrumental role in supplying guidelines for local historic preservation regulations. The authors assert that "This decision settled many legal issues that had previously haunted preservationists, since the validity of preservation regulations were never reviewed by the U.S. Supreme Court. The Penn Central Case in addition to answering major constitutional questions provided guidance on many fronts for local preservationists (Stipe & Lee pg. 135)."

These decisions have assisted in forging the boundaries associated with historic preservation and the rights of property owners. Through these cases the courts clarifies what is expected from property owners and government as it relates to the preservation of historic sites. These cases have been the benchmark for the types of laws that states and locales create as it pertains to historic preservation.

Transfer of Development Rights

As with many of the aforementioned laws, Transfer of development rights differ from state to state. In the state of Tennessee Code 13-7-402, asserts that counties and municipalities may institute a voluntary transfer of development rights program for the purposes of preserving historic districts, of for important environmental or agricultural sites. In addition, according to Tennessee Code Annotated 13-7-101(a)(2) only those counties with a metropolitan government can manage a TDR program (Transfer of Development Rights). Regulations associated with TDR programs in Tennessee also asserts that Historic zoning is established to promote the educational, cultural, and economic welfare of the people of the state. 13-7-401. The legislative body of any county or municipality may establish special historic districts or zones, and to regulate the construction, repair, alteration, rehabilitation, relocation and demolition of any building located within the bounds of any historic district or zone. 13-7-402(a). Historic districts or zones may be superimposed on other districts or zones, including zoning maps, established by any other zoning ordinance or regulation. 13-7-402(b) (Tennessee).

Overall the Transfer of development rights makes it possible for cities to define zoning restrictions. In the state of Tennessee restrictions can serve the purpose of preserving historic sites, the environment, and agricultural sites.

Discussion and Conclusion

The purpose of this discussion was to examine "historic preservation" as a major land use program -reviewing historic district regulations & historic landmark protection (which are the 2 major local regulatory programs), as well as the use of 'development rights transfers' as an historic preservation technique.

There research indicates a plethora of laws that govern historic sites. Although these laws are governed by certain federal standards, state and local governments also yield a great deal of authority concerning land use and the preservation of historic sites. As such historic district regulations differ from district to district. However because of the federal regulations that govern historic preservation there are certain similarities that can be found from district to district as it relates to regulations. For instance the site must be of historical value as it relates to a specific event taking place on the site or a historic figure being born in a particular home. For instance the Church where Martin Luther King was pastor and the home he was born in are both historic sites that are part of a historic district in the city of Atlanta. With these things being understood there are certain regulations that govern the changes that can be made to historic sites. One of the primary regulations is the use of original material to refurbish historic sites. In addition sites are expected to display similar architecture as other structures within the historic district.

As it relates to the National Historic Landmark program, the research indicates that there are less than 3000 sites that carry this particular distinction. As such it can be concluded that it is more difficult for a site to become a landmark. The research indicates that although there is some protection for these landmarks property owners also have some protections.

The research also focused on the constitutionality of historic preservation. The research found two landmark cases that have assisted greatly in the forging of federal, state and local laws that govern the preservation of historic sites. The first case Figarsky v. Historic District Commission took place in 1976. This particular case involved the issue of unconstitutional deprivation of property without compensation. In this the plaintiff asked for permission to destroy the building but the application was denied, even though the building in question had very little historical significance. The plaintiff asserted that he should be compensated for the costs of having to repair the building but the court sided with the Commission asserting that the denial was not confiscatory nor was it an abuse of power and as such the property owner did not have to be compensated.

In addition to Figarsky v. Historic District Commission, another important decision came two years later in the Penn Central Transportation Co. v. City of New York. This case was important because it established some parameters that were previously absent from matters concerning historic preservation. The two most important principles that came about as a result of this case were when guaranteeing whether a taking has occurred the court is obligated to take into consideration the effect of the guideline on the entire property; and the establishment of an wide-ranging test for the takings clause which requires the balancing of the nature of the governmental action, the economic consequence on the landowner, and the presence or absence of "reasonable, investment-backed expectations."

Finally the research focused on the transferring of development rights. It became obvious that such laws are designed to make clear certain zoning laws and to ensure that certain lands and/or structures can be protected. The transfer of development rights allows for the implementation of certain land use.

Overall the research indicates that historic preservation is a major form of land use in some areas of the country. The research also asserts that the preservation of historic sights is a concerted effort of federal, state and local government and the development of the laws that govern historic preservation have been informed by various court decisions.