UPDATE September 2013: The 2013 law that revises the zoning board of adjustment statutes (S.L. 2013 – 126) affects appeals of certificate of appropriateness decisions of historic preservation commissions. Section 1 of the act adds G.S. 160A-388(b1)(9) to provide that the board’s review of such appeals must be based on the record made by the commission and shall be like that of an appellate court.
According to a recent count by the State Historic Preservation Office (SHPO), ninety-four (94) cities and counties in North Carolina either support a local historic preservation program singly or participate with other local units in a joint program. One element of most of these programs is the appointment of a historic preservation commission that reviews plans involving changes in the exterior features of locally designated historic landmarks and of properties located within a local historic district. The consideration of applications for certificates of appropriateness (COA) to authorize these changes raises a number of legal and administrative issues. Here are three frequently asked questions.
I. Historic preservation people seem to talk about “design guidelines” rather than “development standards.” What criteria is a commission supposed to use in determining whether or not to grant a certificate of appropriateness?
Under state law there is only one ultimate decision-making rule to which a commission must adhere: a certificate of appropriateness may not be granted if the proposed changes to the features of the subject property “would be incongruous with the special character of the landmark or district.” (Underlining added.) (G.S. 160A-400.9(a)). To assist a commission in determining whether it can reach this conclusion, communities must adopt principles and guidelines (“design guidelines”) applicable to the district or the landmark. These guidelines are often accompanied by illustrative materials. In contrast to most zoning standards, design guidelines are not necessarily prescriptive standards; they are often written in the form of admonitions, suggestions, and advice. For example, a guideline might say “The owner should not replace or cover wooden siding or trim with cladding material such as aluminum siding, vinyl siding, or brick veneer.” Only a relatively small number of such guidelines may apply in an individual case. However, in order to justify its conclusion regarding congruity (or lack of it), a commission must refer to these guidelines in making findings of facts. Those findings must relate the property owner’s proposed changes to the defining features of the district (or the landmark) itself in its formative period. Compatibility with most (but not necessarily all) of these guidelines– not considerations of good taste, personal style, or the influence of “non-contributing” buildings– is necessary in order for the commission to conclude that a particular proposal “fits in.” In this regard the applicable guidelines serve a function similar to but a bit different from the function served by typical development standards.
II. Shouldn’t the historic commission consider affordability and financial feasibility in making COA decisions?
Not necessarily. Even though they have obvious financial implications, most design guidelines adopted by local commissions do not include references to the economics of making suitable changes. As a general rule, then, even though a commission enjoys considerable discretion in making its decisions, a commission is not required or even expected to take affordability into account in making its COA decision. Since a property owner in a local historic district enjoys reciprocal benefits from the special features exhibited by other properties in the district, it is generally appropriate to expect a property owner to meet district guidelines as they may apply to his or her own property without referring to cost or to the personal circumstances of the applicant. There are, however, three exceptions to this general rule that financial impact is not a consideration when reviewing COA applications.
The first involves situations involving “demolition by neglect.” G.S. 160A-400.14(b) requires ordinances that provide for these situations to include “appropriate safeguards to protect property owners from undue economic hardship.” Considerations of economic hardship can be important because regulations addressing demolition by neglect typically impose affirmative obligations on property owners to stem property decline.
The second exception to the general rule concerns an application for a COA for the demolition of a landmark or property within a local historic district. G.S. 160A-400.14(a) allows the COA to be delayed for a period of up to 365 days from the date of approval. This delay period must be reduced if the commission finds “that the owner would suffer extreme hardship or be permanently deprived of all beneficial use or return by virtue of the denial.” The statute is designed to protect the commission from a claim that the refusal to allow demolition amounts to an uncompensated “taking” or wipeout of all practical use of or reasonable return from the property.
The third exception applies if the property to be demolished is deemed by the State Historic Preservation Officer to have “statewide significance.” In such an instance G.S. 160A-400.14 allows a COA for the demolition of such a property to be denied rather than delayed, unless the refusal to allow demolition at all causes the owner to “suffer extreme hardship or be permanently deprived of all beneficial use or return by virtue of the denial.” This finding, of course, is similar to the one above that justifies a reduction in the COA delay period for properties that are not of statewide significance.
III. How can a COA decision made by a historic preservation commission be appealable to the zoning board of adjustment rather than the courts?
The answer is because the statute (G.S. 160A-400.9(e)) says so. In contrast to most quasi-judicial zoning decisions made by local governments, which are subject to judicial review in superior court, decisions of historic preservation commission must be appealed to the zoning board of adjustment first. The zoning board of adjustment hears these appeals “in the nature of certiorari.” (G.S. 160A-400.9(e)). This means that the board of adjustment’s review is based strictly on the record of the case that is forwarded to the board by the commission. The board hears no new evidence; it does not hear the case all over again.
The board of adjustment is responsible for determining whether the decision is legally defensible as a matter of law. But the board must defer to the judgment of the commission on matters of fact. A decision about a certificate of appropriateness clearly involves applications of discretion and judgment to which the board must be prepared to defer. The board of adjustment should not reverse a commission’s decision simply because it disagrees with the result. The commission’s decision should be reversed or remanded only when the commission has failed to comply with applicable legal requirements or has acted arbitrarily or capriciously.
It is unclear whether the commission is a party that has the right to seek judicial review of an unfavorable action by the board of adjustment regarding a commission decision. As a practical matter, the local governing board may have to determine for itself how best to reconcile the interests of its own preservation commission and its own board of adjustment and to determine the legal defensibility of the positions of each.
As more and more local governments develop increasingly sophisticated programs of historic preservation and public awareness becomes greater and greater, it seems likely that legal and administrative questions affecting such programs will continue to arise.