.

1. Local preservation ordinances
benefit from being able to be
narrowly tailored, protecting what is
its important to a specific
community. State and federal level
laws need to be far more broad.
Local ordinances can reflect local
attitudes towards property rights
and what is politically feasible as
well as protecting what is important
to the community. What’s right for
Lexington, Kentucky isn’t
necessarily right for Portland,
Oregon. And what’s right for
Portland isn’t going to work for
Miami. Think of it as similar to
zoning - it can be created to be
interwoven with practical economic
and political notions.

2. Local ordinances are also more easily
enforced. It’s much easier to keep an
eye on what’s going on in your
backyard. It’s cheaper and more
feasible logistically speaking.
At the local level as opposed to federal
or usually state, you can control
adverse alterations or demolitions of
properties. This is particularly important
in reference to controlling what private
property owners are or are not able to
do with their buildings or landscapes.
The federal government has no
authority to mandate that you use
historic windows in your historic
building. It can’t tell you you can only
use 12 shades of paint to paint your
front door. Local ordinances can and
do limit these things.

3. Local ordinances are also more
capable of ensuring the entirety of
preservation of an area. Because of
the interaction of all of the local laws –
zoning laws, building codes,
preservation ordinances, signage
requirements, and so on, you can
ensure that compatible development
goes around landmark buildings.
Of course this doesn’t necessarily
mean just because there isn a historic
preservation ordinance that that
preservationists always get what they
want. It is still not possible to save
everything.

4. Local Level Protection
• Local preservation ordinances (can
be preservation or archaeology
specific)
• Planning
• Zoning and site protection
• Subdivision regulation
• Review of development proposals
• Development permits
• Cemeteries, graves and human
remains provisions
Just like at the federal level where
there are preservation specific laws
and other laws that bolster the
protection of historic properties, at
the local level there are
preservation specific ordinances.
There are also other laws that can
be used to bolster preservation
laws, which touch and concern
historic properties. There are local
laws addressing cemeteries,
graves, and human remains that
can impact archaeological sites as
well.

5. The authority for local laws can come from a few places.
From a legislative perspective the authority for local
ordinances can come from enabling legislation or home
rule depending on the law of the state. This authority is
supported by the Penn Central decision, which you will
learn about in the Module on takings.
Where does
local
authority
come from?

6. Enabling Legislation
for Local Governments Authority often comes from state
enabling legislation. Through an
enabling act a legislative body grants
some entity, which depends on it for
authorization or legitimacy, the power to
take certain actions. For example,
enabling acts can create government
agencies to carry out specific
government policies. There was enabling
legislation to create EPA or the Advisory
Council. The term can also mean a state
law that enables a local government to
enact local ordinances like preservation
legislation.

7. States have adopted various laws that enable local
governments to enact certain types of laws - historic
preservation ordinances are just one example. The powers
delegated under these enabling laws vary greatly and they
can have the tendency reflect the political climate at the time
they were adopted.
Its helpful that the National Trust has come up with 15
components that are generally included in state enabling
legislation. Usually not all 15 are included (except in Indiana).
But at least a few of these provisions would be included in any
typical local preservation ordinance.

8. Some Enabling Provisions
• A provision establishing a historic preservation commission or board
with specific information on appointment procedures, composition of
preservation commission, terms of members, officers, and voting
procedures.
• A statement of regulatory and administrative authority granted to a
preservation commission, including the authority to adopt administrative
guidelines.
• A provision enabling the designation of landmarks and historic districts,
and a list of types of resources to be designated such as structures,
sites, archeological and cultural resources, and interiors.
• A provision establishing of criteria for designation.

9. Some Enabling Provisions
• A provision establishing a process for nomination and designation including the
identification of resources, procedures for nominating properties, notice and hearing
requirements, and the final decision.
• A provision establishing authority to protect resources while designation applications are
pending.
• A provision establishing criteria and procedures for de-designating properties.
• A provision regarding the affirmative responsibilities of owners of designated properties
such as maintenance and a prohibition against demolition-by-neglect.
• A provision governing reviewable actions under a preservation ordinance, including the
types of actions subject to review (alterations, additions, moves, demolitions, new
construction), treatment of minor alterations and routine maintenance, scope of review
authority (visible from public way, interiors and exteriors), and legal effect of review
(binding, advisory).

10. Some Enabling Provisions
• A provision setting forth standards for review.
• A provision establishing procedures for review of applications (including the
role of staff and procedures for preliminary review/conceptual approval, notice
and hearing requirements, and decision-making requirements).
• A provision establishing standards and procedures for granting exceptions for
economic hardship.
• A provision regarding exceptions to the ordinance such as public safety.
• A provision regarding process for appeal.
• A provision governing enforcement, including the issuance of fines and
penalties.

11. Enabling Legislation Basics
• Enabling legislation defines what a locality can do by giving local governments
authority to regulate, authority to acquire, and authority to tax.
• Regulation, acquisition, and taxation are the principal means that state
governments have to protect historic resources. In most cases states have
delegated these powers in some degree to local governments. Local
governments means counties, cities, villages, townships, etc.
• Some localities only have the powers that are delegated to them by the state
enabling legislation. Other localities have what’s called home rule status, in
which case the local government drafts its own charter and defines its power
in accord with general state requirements – these are home rule or charter
cities.
• Unless you are in a home rule state, you cannot act outside the scope of your
enabling authority. Otherwise the ordinances you pass, the taxes you levy, the
properties you acquire, and the manner you take actions are not legally
permissible.

12. Take a look at the North Carolina enabling law. You will see that the
law provides for everything from legislative findings to powers of the
historic preservation commission, from certificates of appropriateness
to remedies in situations of demolition.
law.justia.com/codes/north-carolina/2010/chapter160a/article19/
North
Carolina’s
Enabling
Law

13. Now in North Carolina, take a
look at the city of Greensboro’s
historic preservation commission
website to see how it is that this
state’s enabling law makes its
way down to the local level. You
can see that Greensboro has a
historic preservation
commission. That commission is
responsible for the historic
districts program, it’s responsible
for advising the city Council and
preservation matters, it reviews
applications for certificates of
appropriateness for changes to
properties located in historic
districts, and it follows a set of
commission-established historic
district program manual and
design guidelines.
http://www.greensboro-
nc.gov/index.aspx?page=1622

14. http://www.mcdowellgov.com/vertical/sites/%7B2D9A4CFF-
B077-4D35-8C47-
FDF52593850E%7D/uploads/An_Ordinance_Establishing_
McDowell_County_Historic_Preservation_Commission.pdf
Now take a look at the McDowell County, North Carolina
Ordinance Creating the Historic Preservation Commission
to see the connections between the enabling legislation and
the local law.

15. Home rule
Some states don’t have specific enabling legislation for local governments to
create historic preservation ordinances. Some states operate under what is
called home rule. Home rule is the right to local self-government, including the
powers to regulate for the protection of the public health, safety, morals, and
welfare; to license; to tax; and to incur debt.
Home rule involves the authority of a local government to prevent state
government intervention with its operations. The extent of its power, however,
is subject to limitations prescribed by state constitutions and statutes. When a
municipality or other political subdivision has the power to decide for itself
whether to follow a particular course of action without receiving specific
approval from state officials, it acts pursuant to such powers. For example, a
town exercises its home rule powers when it puts the issue of allowing the sale
of alcoholic beverages within its borders on the ballot.
West's Encyclopedia of American Law, 2nd Ed. (2008).
It could also be the authority to create its very own preservation laws.

16. Maine is a home rule state. Maine’s historic preservation commission discusses how its home rule
program gives municipalities broad discretion on how it is that they implement legislation for protecting
historic resources.
Different cities or townships have wide-ranging legislation that can require voluntary or mandatory
participation by property owners. Some have historic preservation committees some don’t. Some of
these committees advise local planning boards, some make decisions about permits that are issued
within districts. Some have standalone historic preservation ordinances others have historic
preservation Incorporated into things like zoning provisions. What you will see by looking at the State’s
website is that the state historic preservation commission offers sample historic preservation ordinances
or zoning ordinances for localities to take from. Take a look at the state’s webpage:
www.maine.gov/mhpc/preservation_planning/local_planning/index.html
Next take a quick look at an example of the result of what a home rule statute may look like by looking
at the City of Ellsworth, ME. What you will see is that even though there is not state enabling legislation
(i.e. it’s up to the locality to determine what it is that they want), because of the nature of historic
preservation law what ends up happening is that cities modeled their own local ordinances after those
of other cities. It’s much easier and more cost-effective to base your laws on something that already
exists.
http://www.ellsworthmaine.gov/wp-content/uploads/2016/06/ord39_Historic_Preservation.pdf