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HomeMy WebLinkAboutItem 10 - Landmarks WHS HP Commissioner Training 2CHAPTER 2 – Preservation Laws & Programs National Preservation Laws and Statutes Page 1 Federal historic preservation laws largely concern the effects of federal undertakings. The three major federal laws involved are the National Historic Preservation Act, the National Environmental Policy Act, and Section 4(f) of the Department of Transportation Act. National Historic Preservation Act (NHPA) The NHPA is the leading federal preservation legislation, providing preservation regulations, standards, and guidelines. With the 1966 act came several specific preservation activities, including the establishment of the National Register of Historic Places, State Historic Preservation Offices, Certified Local Government program, Grants-in-Aid, and the Advisory Council on Historic Preservation. Amendments in 1976, 1980, and 1998 furthered the goals of the act, providing stronger protection of historic properties. Four sections of the NHPA deal directly with federal agencies. The most powerful of these areas is Section 106, which requires federal agencies to take into account the effects of their activities and programs on historic properties. Section 106 Section 106 of the NHPA requires federal agencies to consider the effects of their undertakings on historic properties. This portion of the legislation establishes a review process to ensure that historic properties are considered during federal project planning and execution. The review process is administered by the Advisory Council on Historic Preservation, which is an independent federal agency. Section 106 acts as the cornerstone of the 1966 NHPA, which was created out of public concern that the Nation's historic resources were not receiving adequate attention. Section 106 requires that every federal agency or any project funded or licensed by the federal government examine its undertakings and how those actions could affect historic properties. A federal agency must review any type of its actions that has the potential to affect historic properties. These include a broad range of activities, including construction, rehabilitation and repair projects, neglect, demolition, licenses, permits, loans, loan guarantees, grants and federal property transfers. A historic property is any property listed in or eligible for the NRHP. Section 106 cannot prevent a federal agency from proceeding with desired projects, but it does require analysis of the project and allows for identification of historic resources. In many cases, alternatives are suggested which satisfy all interested parties. National Environmental Policy Act (NEPA) Under the NEPA, federal agencies are responsible for the environmental impact of their activities. Historic properties as well as natural resources are considered to be part of this environment. Enacted in 1969, the NEPA states that it is the federal government's responsibility to provide American citizens with a safe and healthful environment and to "preserve important historic, cultural, and natural aspects of our national heritage." There is much overlap between NEPA and Section 106 of the NHPA, but differences occur in the scope of protection afforded under each law. The NEPA applies to all historic and cultural properties, while the NHPA only governs properties listed or eligible for listing on the National Register. The NHPA, however, applies to a much wider range of federal agency activities, while NEPA regulates only major federal actions. Section 4(f) of the Department of Transportation Act This segment of legislation prohibits federal approval or funding of transportation projects that require the "use" of any historic site, public park, recreation area, or wildlife refuge, unless there is no feasible alternative and the project incorporates all possible plans to minimize harm to the affected property. This includes the direct physical taking of property as well as indirect impacts that would greatly impair the value of protected sites. Adopted in 1966, this law applies to all transportation agencies within the U.S. Department of Transportation. Additional Federal Laws Some federal preservation laws contain enforcement provisions that provide civil and/or criminal penalties for violations, including these two:  Archaeological Resources Protection Act (ARPA): establishes a permitting process regarding important archaeological sites  Native American Graves Protection and Repatriation Act (NAGPRA): addresses the return of human remains and cultural objects held by museums or federal agencies to Native American State Preservation Laws and Statutes Page 2 State preservation laws address private actions affecting historic resources. This is done primarily through laws that enable local governments to pass ordinances for the protection and preservation of historic sites. Wisconsin Act 395 In Wisconsin, the primary historic preservation legislation is Wisconsin Act 395. Adopted in 1987, this legislation expresses the state's approach and commitment to historic preservation. It states: The historical and cultural foundations of this state should be preserved as a living part of its community life and development... Increased knowledge of historic resources, the establishment of better means of identifying and administering them and the encouragement of their preservation will improve the planning of governmentally assisted projects and will assist economic growth and development. This act created the Wisconsin State Register of Historic Places, which, like the National Register of Historic Places, lists "districts, sites, buildings, structures, and objects which are significant in national, state, or local history, architecture, archaeology, engineering and culture." Criteria for the State Register are also similar to those of the National Register. The Wisconsin Act 395 also contains provisions for reviewing the state's long-range building plans with respect to historic properties under the state's control. The act also initiated a state tax credit program for the rehabilitation of historic structures. Wisconsin Building Code The State of Wisconsin has adopted the International Building Code (IBC) as the state building code. For more information about the International Building Code and how historic buildings can qualify under the International Existing Building Code to maintain the historic features of a building, please see our article, Building Codes and Your Historic Rehabilitation Project. Wisconsin Statute 62.23 To ensure that historic preservation becomes part of the local government planning process, the Wisconsin legislature enacted Wisconsin Statute 62.23 in 1993. This law mandates that cities with properties listed on the National or State Registers of Historic Places adopt a Historic Preservation Ordinance. In order for a local ordinance to be certified it must:  Contain criteria for the designation of historic structures and districts on a local historic register similar to the criteria for inclusion in the National Register of Historic Places;  Provide procedures for designation of historic structures or districts including a nomination process, public notice, and opportunities for written and oral public comment;  Provide for the exercise of control by the city, to achieve the purpose of preserving and rehabilitating historic structures and districts; and  Create a historic preservation commission. State Historic Preservation Office Page 3 Throughout the U.S., state governors appoint a State Historic Preservation Office (SHPO) to carry out the responsibilities of the National Historic Preservation Act (NHPA) in their state. Each SHPO performs a wide variety of functions under the NHPA, state laws, and other authorities. These functions include:  Nominating properties to the National Register of Historic Places  Conducting statewide historic preservation planning and a statewide inventory of historic properties  Providing technical assistance to federal and state agencies, local governments, and others  Certifying local governments to participate in the national program Wisconsin SHPO In Wisconsin, the State Historic Preservation Office is part of the Wisconsin Historical Society. This office serves as the principal historic preservation agency in the state. The Wisconsin SHPO oversees state and federally mandated preservation responsibilities. The Wisconsin SHPO's responsibilities include:  Maintaining inventories of Wisconsin's historic properties  Administering the Certified Local Government program  Nominating sites to the National Register and State Register of Historic Places  Supporting research on historic architecture  Administering federal and state tax credit programs for the rehabilitation of historic properties  Cataloging burial sites  Reviewing public projects for their effects on historic resources under Section 106 of the NHPA and Wisconsin Statutes Certified Local Government (CLG) Program Page 4 The Wisconsin State Historic Preservation Officer (SHPO) administers the Certified Local Government program for the National Park Service in Wisconsin. The federal law creating the Certified Local Government program can be found in 36 CFR Part 61, Section 61.5 "Approved Local Programs." A Certified Local Government (CLG) is any city, village, county or town that has been certified by the SHPO and the Department of the Interior to meet these basic criteria:  Establish by ordinance a qualified historic preservation commission  Enforce appropriate state or local legislation for the designation and protection of historic properties  Maintain a system for the survey and inventory of local historic resources  Provide for public participation in the local historic preservation program Wisconsin Requirements for Certified Local Governments Federal law allows the state to establish additional requirements for CLGs. The CLG must adhere to all of the federal and state requirements or the SHPO may revoke the CLG certification. The Wisconsin SHPO has established these additional requirements: 1. The CLG must enact and enforce a historic preservation ordinance that regulates historic property. 2. A CLG must provide annual reporting to the SHPO on CLG activities. 3. A CLG must send copies of meeting minutes and agendas to the SHPO following each meeting. 4. The ordinance must not allow historic property owners to "opt-out" of local historic designation. 5. Designation must not require owner consent. 6. The commission must approve work on locally designated properties and recommendations may not be "advisory." What are the Benefits of CLG Status?  Eligibility to apply for Wisconsin Historic Preservation Fund Subgrants from the federal Historic Preservation Fund allocation to the state, to be used for eligible CLG activities.  Ability to formally comment on National Register of Historic Places nominations within its municipal boundaries before they are sent to the State Historic Preservation Review Board.  Eligibility to authorize the use of Chapter 11 of the International Existing Building Code for locally designated historic buildings. Is My Community Already a CLG? A searchable database of CLGs nationwide can be found through the National Park Service CLG search page. You can also view a map (311 KB, PDF) of all Wisconsin CLGs. Learn More How Does My Community Become a Certified Local Government? How to Apply for Historic Preservation Fund Subgrants for Certified Local Governments Certified Local Government (CLG) Subgrant Criteria Have Questions? Contact Jason Tish by phone at 608-264-6512 or by email below: jason.tish@wisconsinhistory.org National Register and State Register of Historic Places Page 5 The National Register of Historic Places is the nation's official list of properties that are deemed historically significant on a local, state, or national level. The National Register is administered by the National Park Service and the Keeper of the Register, who makes the final decision about whether a property should be listed. The State of Wisconsin also maintains a State Register of properties that have been determined to be significant to Wisconsin's heritage. Criteria for Eligibility A property is eligible for listing on the National Register if it meets one or more of the following criteria:  Criterion A: Property is associated with historic events or activities  Criterion B: Property is associated with important persons  Criterion C: Property has a distinctive design or physical characteristics  Criterion D: Property has yielded, or may be likely to yield, information about prehistory or history In addition to meeting one of the above criteria for historic significance, the property must retain integrity, or a sense of time and place. Integrity is determined based on seven qualities: location, design, setting, materials, workmanship, feeling, and association. Purpose of Listing a Property The National Register primarily serves as a means of honoring and recognizing important historic and cultural properties. National Register status does not place restrictions on private property owners. It does, however, provide a degree of protection from federally funded or licensed activities, which must take into consideration their impact on historic resources. Income-producing properties listed on the National Register may also take advantage of federal rehabilitation tax credits. In Wisconsin, residential and income producing properties listed in the National Register may qualify for state rehabilitation tax credits. Nominations Properties are typically nominated to the National Register by property owners, preservation advocates, or consultants. Nominations must meet the criteria set forth in National Register Bulletin 16: How to Complete the National Register Registration Form. Nominations are then reviewed by the staff of the Wisconsin Historical Society and presented to the Wisconsin State Review Board for consideration. Once approved at the state level, the nomination is sent to Washington D.C., where it is reviewed once more at the federal level. If the nomination is approved at the federal level, the property is officially listed in the National Register of Historic Places. Both the State Register and the National Register are administered by the State Historic Preservation Office at the Wisconsin Historical Society. Current property listings of both registers are available on our website. Read more on our website About the State Register and National Register of Historic Places. Historic Preservation Tax Incentives Page 6 A variety of beneficial tax incentives are available to owners of Wisconsin historic properties. Both federal and state income tax incentive programs are available for the rehabilitation of historic properties that are either listed in or eligible for the National Register or State Register of Historic Places. The most comprehensive and up to date information about the Federal and State rehabilitation credits is always available through our Tax Credits for Historic Building Rehabilitation website. Community Development Block Grants Page 7 The Community Development Block Grants (CDBG) program is administered by the U.S. Department of Housing and Urban Development. The CDBG program provides annual grants on a formula basis to entitled cities, urban counties, and states to develop viable urban communities. Viable communities are those that (1) provide decent housing and suitable living environments, and (2) expand economic opportunities, primarily for low- and moderate-income persons. CDBG Funding CDBG funds assist a wide variety of projects, including economic development, housing rehabilitation, public facilities, and large-scale physical development projects. Preservation activities can be supported through the CDBG program by helping residents to maintain and upgrade historic homes. The Department of Housing and Urban Development (HUD) determines grant amounts using a formula that measures various factors, such as a community's extent of poverty, population, housing overcrowding, age of housing, and lag in population growth. The annual CDBG appropriation is allocated between states and local jurisdictions called "entitlement" and "non-entitlement" communities. Entitlement Communities Three types of jurisdictions are considered entitlement communities:  The central cities of Metropolitan Statistical Areas (MSAs)  Metropolitan cities with populations of at least 50,000  Qualified urban counties with a population of 200,000 or more (excluding the populations of entitlement cities) Wisconsin entitlement communities include the following cities: Appleton, Beloit, Eau Claire, Fond du Lac, Green Bay, Janesville, Kenosha, La Crosse, Madison, Milwaukee, Neenah, Oshkosh, Racine, Sheboygan, Superior, Waukesha, Wausau, Wauwatosa, and West Allis. Wisconsin entitlement counties are Dane, Milwaukee, and Waukesha. Non-Entitlement Communities The state also distributes CDBG funds to non-entitlement localities that do not qualify as entitlement communities. Non-entitlement areas are cities with populations of less than 50,000 (except cities that are designated principal cities of MSAs) and counties with populations of less than 200,000. Wisconsin awards CDBG funds only to units of general local government that carry out development activities. Each year Wisconsin develops funding priorities and criteria for selecting projects, including:  Formulating community development objectives  Deciding how to distribute funds among communities in non- entitlement areas  Ensuring that recipient communities comply with applicable state and federal laws and requirements  Historic Preservation Tax Incentives  Community Benefits of Preservation