A core responsibility of the local historic preservation commission is to review and decide on certificates of appropriateness (COAs) to prevent development and changes “that would be incongruous with the special character of the landmark or district” (G.S. 160D-947). A COA decision requires the commission to take historic design standards and apply them to a specific property or development. Such decision-making is quasi-judicial, and as such, COA decisions must follow the statutory procedural requirements and ensure the due process rights of all parties with legal standing in the case.

This blog explores the scope of COA decisions and the procedural requirements for these quasi-judicial decisions.  

What projects need a Certificate of Appropriateness?

In general, a major change to a locally designated historic landmark or to a property within a locally designated historic district requires the owner to obtain a certificate of appropriateness. COAs are required for most changes to the exterior of the building or site; there are limited situations when COAs are necessary for interior work. If a building permit is required, the COA must be issued prior to issuance of building permit. Even if no building permit is required for a project, a COA might be required (G.S. 160D-947).

Public buildings are subject to COA review, though the process and standards may be different depending on whether the public building is owned by the state or another public body. For minor works, state law allows for administrative review by staff rather than review by the full preservation commission. Ordinary maintenance and action to address safety concerns are exempt from COA review.

Now, consider each of those topics in a bit more detail.

“Exterior Features”

State law requires COAs for changes to exterior features and provides a broad scope for “changes” and broad definition of “exterior features.”

“[N]o exterior portion of any building or other structure, including masonry walls, fences, light fixtures, steps and pavement, or other appurtenant features, nor above‑ground utility structure nor any type of outdoor advertising sign shall be erected, altered, restored, moved, or demolished on the landmark or within the district until after an application for a certificate of appropriateness as to exterior features has been submitted to and approved by the preservation commission.”

(G.S. 160D-947).

“Exterior features” are defined to include:

“the architectural style, general design, and general arrangement of the exterior of a building or other structure, including the kind and texture of the building material, the size and scale of the building, and the type and style of all windows, doors, light fixtures, signs, and other appurtenant fixtures. In the case of outdoor advertising signs, “exterior features” mean the style, material, size, and location of all such signs. Such “exterior features” may, in the discretion of the local governing board, include historic signs, color, and significant landscape, archaeological, and natural features of the area.”

(G.S. 160D-947).

Limited Applicability to Interior Features

Generally, COAs do not cover interior spaces. There are limited exceptions for landmarks for which “[t]he landmark designation shall specify the interior features to be reviewed and the specific nature of the commission’s jurisdiction over the interior.” This regulatory reach to interior spaces only applies to “specific interior features of architectural, artistic, or historical significance in publicly owned landmarks and of privately owned historic landmarks for which consent for interior review has been given by the owner” (G.S. 160D-947).

Administrative Review for Minor Works

Not every change to a historic property must go to the full preservation commission for review. Run-of-the-mill changes may be defined as “minor works” and reviewed by administrative staff. Such minor works must be clearly identified in the applicable preservation regulation. Examples include minor exterior work that does not change the design, material, or appearance, such as redecking a porch with similar materials; storm windows and storm doors; rear yard decks; and similar changes.

Decisions about minor works must be based on detailed design standards adopted by the preservation commission. Staff may approve a COA for a minor work, but any denial must go to the preservation commission for formal action (G.S. 160D-947).

Exemption for Ordinary Maintenance, Unsafe Situations, and Emergency Utility Work

A local government may not require a COA for ordinary maintenance or necessary actions to resolve a dangerous situation. A local government may not “prevent the ordinary maintenance or repair of any exterior architectural feature in a historic district or of a landmark that does not involve a change in design, material, or appearance thereof.” Additionally, the local government may not “prevent the construction, reconstruction, alteration, restoration, moving, or demolition of any such feature which the building inspector or similar official shall certify is required by the public safety because of an unsafe or dangerous condition” (G.S. 160D-947).

Above-ground utility structures—such as power poles—get special treatment. Maintenance of above-ground utilities is exempt from COA approval, and in the case of an emergency above-ground utilities may be immediately restored without COA approval (G.S. 160D-947).

Public Buildings

Local historic regulations apply to the “construction, alteration, moving, and demolition by the State of North Carolina, its political subdivisions, agencies, and instrumentalities.” But there are subtle changes in the process and standards.

Buildings owned by the State of North Carolina and its agencies are not subject to local design standards; rather, they are reviewed based on the Secretary of the Interior’s Standards. Appeals of COA decisions for State and agency buildings go to the North Carolina Historical Commission, and that decision is final and binding (G.S. 160D-947(f)).

With regard to regulating the interiors of buildings, G.S. 160D-947(b) indicates that the local preservation commission may have regulatory authority over “specific interior features of architectural, artistic, or historical significance in publicly owned landmarks.” G.S. 160D-947(f), however, states local COA review “do[es] not apply to interiors of buildings or structures owned by the State of North Carolina.” With that, interiors of state buildings are not subject to local review, but interiors of other publicly owned buildings potentially may be. 

Demolition Delay

In general, a request for a certificate of appropriateness for demolition may not be denied but may be delayed.

For properties within a district, the commission may delay the effective date of the COA for up to 365 days (G.S. 160D-949). For locally designated landmarks, the commission shall delay the effective date for a COA for demolition for 365 days (G.S. 160D-945). Such delay period must be reduced when “the owner would suffer extreme hardship or be permanently deprived of all beneficial use of or return from such property by virtue of the delay.” For proposed landmarks or districts, demolition may be delayed up to 180 days (G.S. 160D-949).  

During a delay the preservation commission may negotiate for the preservation of the property. 

There are limited circumstances in which a demolition COA may be denied. That is for “a building, site, or structure determined by the State Historic Preservation Officer as having statewide significance as defined in the criteria of the National Register of Historic Places” (G.S. 160D-949).

Beyond the authority to slow down active demolitions, local governments have authority to adopt regulations to prevent demolition by neglect (G.S. 160D-949).

Quasi-Judicial Decision-Making

Determinations about certificates of appropriateness are not simple, objective determinations—they require evidence from interested parties, analysis of design standards and specific projects, and judgment from the decision-makers. As such, COA decisions must follow the statutory procedural requirements for quasi-judicial decisions and ensure the due process rights of all parties with legal standing.

“[D]ecisions on certificates of appropriateness are quasi‑judicial and shall follow the procedures of G.S. 160D‑406.” Those requirements include:

• Clear Guiding Standards
• Notice
• Impartial Decision-Makers
• Evidentiary Hearing
• Decision Based on Evidence and Standards  
• Right to Appeal

Clear Guiding Standards

After a city or county establishes a historic district or historic landmark, the local historic preservation commission is authorized to prevent certain changes that “would be incongruous with the special character of the landmark or district.” But what is that special character? And what is incongruous with it? 

The North Carolina Supreme Court explains the incongruity standard to be “a contextual standard.”

A contextual standard is one which derives its meaning from the objectively determinable, interrelated conditions and characteristics of the subject to which the standard is to be applied. In this instance the standard of “incongruity” must derive its meaning, if any, from the total physical environment of the Historic District. That is to say, the conditions and characteristics of the Historic District’s physical environment must be sufficiently distinctive and identifiable to provide reasonable guidance to the Historic District Commission in applying the “incongruity” standard.

A-S-P Associates v. City of Raleigh, 298 N.C. 207, 222, 258 S.E.2d 444, 454 (1979)(citation omitted).

The special character of the landmark or district is not left to speculation or guessing. It is not conjured up at the time of COA review. A determination of congruity is guided by the details of the ordinance designating the historic landmark or district and by the required design standards.

“Prior to any action to enforce a landmark or historic district regulation, the commission shall . . . prepare and adopt principles and standards . . . to guide the commission in determining congruity with the special character of the landmark or district for new construction, alterations, additions, moving, and demolition” (160D‑947(c)). Moreover, “[i]n making decisions on certificates of appropriateness, the commission shall apply the rules and standards adopted pursuant to subsection (c) of this section” (G.S. 160D-947)(a).

Design standards commonly include elements such as architectural styles of the landmark or district; building details such as siding, roofing, windows and doors, and porches; site details such fences and walls; expectations for building additions; and expectations for new construction.  

Notice

Notice for quasi-judicial evidentiary hearings is specified at G.S. 160D-406. Notice must be mailed to the applicant, the owner of the property (if different from the applicant), the owners of property abutting the subject property, and any other individuals entitled to notice pursuant to the local rules. Mailed notice must be deposited in the mail at least 10 days, but not more than 25 days, prior to the evidentiary hearing.

In addition to mailed notice, the local government must post notice on the site (or adjacent right-of-way) 10-25 days prior to the evidentiary hearing.

State law sets the minimum notice requirements. Local rules may call for additional notice such as newspaper notice or mailed notice to owners of property within a certain distance. The local government must adhere to any additional notice requirements it has set for itself.

Impartial Decision Maker

In quasi-judicial decisions, decision-makers must be neutral, third-party arbiters. Indeed, individuals with legal standing in the matter have constitutional rights to an impartial decision maker. To that end, G.S. 160D-109 sets forth some conflicts of interest that are impermissible violations of due process rights. These include:

• a member having a fixed opinion prior to hearing the matter that is not susceptible to change,
• undisclosed ex parte communications,
• a close familial, business, or other associational relationship with an affected person,
• or a financial interest in the outcome of the matter.  

If a commissioner has a conflict of interest, they must recuse themself and not participate in the hearing or decision. If there is an objection to a commissioner’s participation, the remainder of the board votes on their participation.

Evidentiary Hearing

As with any quasi-judicial decision, a decision on a certificate of appropriateness “shall be based upon competent, material, and substantial evidence in the record.” Some of the record is compiled upfront, including the application materials, technical analysis, staff reports. But the full record is established through an evidentiary hearing.

An evidentiary hearing is different from a general, public hearing. The formal process and the legal requirements are heightened. Witnesses are sworn in; evidence is admitted (and may be objected to); witnesses must provide factual testimony (not personal opinion); and for technical matters, qualified experts are required.

The applicant, local government, and other parties with formal legal standing have the right to participate (an opportunity to be heard). Other individuals from the public may participate as witnesses, but not to make legal claims such as objecting to evidence, cross-examining witnesses, or challenging a commissioner for conflicts of interest.      

Decision Based on Standards and Evidence

The incongruity standard does not grant the preservation commission “untrammeled authority to compel individual property owners in the Historic District to comply with whatever arbitrary or subjective views the members of the Commission might have as to how property in the district should be maintained or developed.” A-S-P Associates v. City of Raleigh, 298 N.C. 207, 221, 258 S.E.2d 444, 453 (1979).  A decision to grant or deny a COA must be framed within the design standards and based on evidence in the record.

North Carolina courts have ruled that when a preservation commission decision departs from the framework of historic standards and guidelines, that decision is arbitrary and will not stand.  In Sanchez v. Town of Beaufort, for example, the court disapprovingly noted that the “height requirement was not reached on the basis of any particular determining principle. Rather, each [commission] member reached what he or she considered an appropriate height based on their own personal preferences.” 211 N.C. App. 574, 581, 710 S.E.2d 350, 355 (2011).

The Court of Appeals quoted commissioners discussing the height requirement in loose terms, unmoored from the applicable standards. One commissioner argued that the project could be redesigned to reduce five feet in height. When the chair asked for the basis for the five feet, the commissioner offered:

Well five feet (5′) would be if you had a . . . This is his determination, with a ten foot (10′) ceiling downstairs, and a nine foot (9′) ceiling upstairs, if you had eight foot (8′) ceilings, that’s three feet (3′). . . .  And then, if the duct work was to be relocated, that’s two more feet. So that would be five feet (5′) without a lot of material changes. Now it could be a different number, but I’m just throwing that out.

211 N.C. App. 574, 581, 710 S.E.2d 350, 355 (2011)(emphasis added by court).

Another commissioner made his own calculations for how the project could be redesigned.  A third commissioner stated simply that “twenty five feet (25’) is a reasonable height.” When the commission voted on the height limit one commissioner “explicitly admitted that none of the [commission] guidelines were used to determine that height.”

The court was clear: “Since the twenty-four foot height requirement was established by each member of the [commission] without the use of any determining principle from the [design] guidelines, it was clearly arbitrary.” Sanchez v. Town of Beaufort, 211 N.C. App. 574, 582, 710 S.E.2d 350, 355 (2011).

In order to avoid arbitrary decision-making that could be overturned by the courts, the preservation commission must ground its review and decision-making in the applicable design standards.

Procedurally, the historic preservation commission must make a decision based on the standards and evidence “within a reasonable time, not to exceed 180 days from the date the application for a certificate of appropriateness is filed” (G.S. 160D-947)(d). The written decision must “reflect the board’s determination of contested facts and their application to the applicable standards, and be approved by the board and signed by the chair or other duly authorized member of the board” (G.S. 160D-406).

Right to Appeal

Parties with standing have a right to appeal a preservation decision. Appeals must be filed within 30 days, but the particulars depend on the local rules and the decision being appealed, as noted at G.S. 160D-947:

• Administrative decisions on minor work are appealed to the preservation commission.
• COA decisions are appealed to superior court in the nature of certiorari, the same as other quasi-judicial decisions.
• The local ordinance may provide for COA decisions to be appealed to the board of adjustment before it goes to superior court. In that case the board of adjustment follows procedures for an appeal in the nature of certiorari. 
• For buildings of the State and its agencies, appeals are taken to the North Carolina Historical Commission.

Conclusion

Making decisions on certificates of appropriateness is a core responsibility for the local historic preservation commission. This work requires the commission to apply broader design standards to a specific property or project. Such decision-making requires evidence and judgment—and it requires the commission to follow quasi-judicial procedures to protect the due process rights of the parties with legal standing.

For more information on local preservation, check out these related blogs on Preservation Commission Basics and Designating Local Historic Landmarks and Districts.