Best Practices
Ordinances, Executive Orders and Protections
Appeals Processes| Executive Orders | State Statutes
Are there any states whose local HP enabling legislation permits appeals to be heard by the local governing body (i.e. Mayor and Council)?
Georgia: Yes, in Georgia, we have an appeals process for state tax incentive denials. The appeal goes through the Department of Natural Resources (Historic Preservation is a division of that department.) Then a petition is filed through our Attorney General. Attached is the language added to the bottom of our letters. The local governing body is not connected to this appeal process.
You are hereby advised of your right to file a written petition for hearing on this denial within thirty (30) days of the date hereof. An original and two copies of any petition must be filed with W. Ray Luce, Director and Deputy State Historic Preservation Officer, Historic Preservation Division, 34 Peachtree Street, NW, Suite 1600, Atlanta, Georgia 30303. In addition, one copy of the petition must also be served simultaneously by certified mail or personal service upon the Attorney General, in care of John Hennelly, Senior Assistant Attorney General, 40 Capital Square, Atlanta, Georgia 30334.
The requirements for the contents and filing of a petition for hearing may be found in Chapter 391-1-2 of the Rules of the Georgia Department of Natural Resources.
(www.rules.sos.state.ga.us/docs/391/TOC.pdf). A printed copy of these rules may be obtained from the Department of Natural Resources’
office, 2 Martin Luther King, Jr., Drive, SE, Suite 1252, East Tower, Atlanta, GA 30334.The procedures to be followed in the review of the petition and this denial are found in Chapter 616-1-2 of the Rules of the Office of State Administrative Hearings. (www.osah.ga.gov/documents/procedures/rules)
A printed copy of the Rules of the Office of State Administrative Hearings may be obtained from the Office of State Administrative Hearings, Peachtree Center, Atlanta Gas Light Tower, Suite 700, 235 Peachtree Street, NE, Atlanta, Georgia 30303.Kansas: Kansas' state law provides for local government appeals also.
http://www.kshs.org/resource/statelawregs.htmVirginia: Virginia's local historic preservation ordinance enabling legislation does provide for appeal to the local governing body in §15.2-2306. Don't know if the link will work, but here is the url http://leg1.state.va.us/cgi-bin/legp504.exe?000+cod+15.2-2306
| California | Colorado | Connecticut | Florida | Indiana | Kansas |
| Minnesota | Mississippi | New Jersey | New York | North Carolina |
| Pennsylvania | Texas | Washington |California: Go to www.ohp.parks.ca.gov for the general information on CA Public Resources Code (PRC 5024, PRC 5024.5 and during emergencies PRC 5028 dealing with state owned facilities. This legislation was signed by Governor Pete Wilson in the 1990s. We have the California Environmental Quality Act which overlays state owned facilities as well. Use drop-down tab CEQA
In addition, we also have the California Historical Building Code which is the mandatory code for state owned facilities. www.dsa.dgs.ca.gov/SHBSB/2001chbc.htmColorado: The Historical, Prehistorical, and Archaeological Resources Act protects sites on lands belonging to the state and its political subdivisions. It was modeled after the federal 1906 Antiquities Act, and established an archaeological permit system. It has never been used to protect buildings.Click here for more information:http://www.coloradohistory-oahp.org/publications/pubs/1308a.pdf
The State Register Act ought to protect all manner of historic properties during state-level actions. In some ways, the review process parallels federal Section 106, but it works in a manner similar to the early days of 36CFR800. Former Colorado Attorney General Gail Norton opined that we could not request survey under the provisions of this Act, but could only comment on properties already listed on or nominated to the State Register.
Click here for more information: http://www.coloradohistory-oahp.org/publications/pubs/1307.pdf
Connecticut: Public Act 82-367 directs that the provisions of Sections 22a -15 through 22a - 19, inclusive, of the Connecticut Environmental Protection Act, which permit legal recourse for the unreasonable destruction of the state's natural resources such as air, water, and soil, shall also be applicable to historic structures and landmarks. Structures and landmarks are defined as those properties that are listed or under consideration for listing as individual units on the National Register of Historic Places and that have been determined by the State Historic Preservation Board to contribute to the historic significance of such a district.
Florida: Section 267.061(2) of the Florida Statutes requires state agencies of the executive branch (which is virtually all of Florida’s state agencies) to afford the Division of Historical Resources “a reasonable opportunity to comment” on proposed state or state-assisted undertakings in order to consider the effect of the undertaking on NR listed or eligible properties. As a result, our agency commented on nearly 8,400 state agency or state-assisted undertakings in state FY 2006-2007 and over 9,100 such undertakings in state FY 2005-2006. The great majority of these undertakings were projects requiring a permit from either a State Water Management District and/or the Department of Environmental Protection. We consider this to be a great success story for historic preservation at the state level. Although some of the projects overlap with Section 106 reviews, most do not. Without this state statute, many development projects in Florida (and we are obviously a high growth state) would have gone forward with no consideration of their effect on historic resources.
The link to the statute is: http://www.flsenate.gov/Statutes/index.cfm?App_mode=Display_Statute&Search_String=&URL=Ch0267/SEC061.HTM&Title=->2007->Ch0267->Section%20061#0267.061
- Indiana Code (IC) 14-21-1- http://www.in.gov/legislative/ic/code/title14/ar21/ ;
- rules which accompany- 312 IAC 20 -23 http://www.in.gov/legislative/iac/iac_title?iact=312 ;
- surface coal mining and reclamation IC 14-34 http://www.in.gov/legislative/ic/code/title14/ar34/ ;
- specifically IC 14-34-3-10 http://www.in.gov/legislative/ic/code/title14/ar34/ch3.html ;
- rules which accompany- 312 IAC 25 http://www.in.gov/legislative/iac/T03120/A00250.PDF?
- Indiana General Cemetery Act- IC 23-14 - http://www.in.gov/legislative/ic/code/title23/ar14/
- Criminal mischief- including vandalism of cemeteries- IC 35-43-1-2.1 http://www.in.gov/legislative/ic/code/title35/ar43/ch1.html
- 312 IAC 6-3 Ancient Shipwrecks and Historic Sites in Navigable Waters: This rule sets standards for licenses and the conduct of investigations at ancient shipwrecks and other historic sites located in navigable waters. Also- Indiana Code (IC) 14-29-1-8 http://www.in.gov/legislative/ic/code/title14/ar29/ch1.html
- Section 18 of our Indiana Historic Preservation and Archaeology Act (IC 14-21-1), provides that all state agencies that spend state funds to alter, remove, or demolish a state-owned historic site or structure (eligible for the National Register or listed) or any state-funded project that would alter, remove, or demolish a non-state owned site or structure listed on the State or National Register must obtain a certificate of approval from our Indiana Historic Preservation Review Board. Section 16 of the same act provides that non-state persons or entities that wish to alter a state-owned historic property must obtain a permit from our division.
Kansas: See information about the Kansas Preservation law on our website at: http://www.kshs.org/resource/histpresstatutes.htm.
The law covers any action by the state or any subdivision of the state (cities, counties, etc.) or any project requiring a permit or license or funding from such an entity. The law requires the SHPO to review such projects on historic buildings (generally state and national registered buildings) as well as projects within the "environs" (500ft in cities and 1000ft in unincorporated areas). After reviewing the project, the SHPO offers a comment and the state or subdivision may then accept our comment or over turn it if there are no "feasible and prudent alternatives" found to doing the project as proposed.
Minnesota: Minnesota Chapter 138 contains a number of provisions on archaeological and historical sites. It directs state agencies to consult regarding the protection of "significant" historic sites on state lands and waters: https://www.revisor.leg.state.mn.us/statutes/?id=138
The Private Cemeteries Act (MN Statute 307) protects grave sites on public and private land (burial mounds, pioneer graves, etc.): https://www.revisor.leg.state.mn.us/statutes/?id=307
Here is an index page for "historic preservation" in Minnesota state law: https://www.revisor.leg.state.mn.us/data/revisor/statutes_index/current/H/HI/historic_preservation.htmlMississippi: The Mississippi Antiquities Law, passed in 1970 and amended in 1983, affirms the State’s interest in locating, protecting, and preserving historic properties, which include sites, objects, and buildings of historical, archaeological, or architectural significance, and are identified in the law as "Mississippi Landmarks." The Antiquities Law places the responsibility of implementing the law on the Board of Trustees of the Mississippi Department of Archives and History. The Board has established a Permit Committee, composed of the Department director and professional staff in the Department’s Division of Historic Preservation,
- to designate properties as Mississippi Landmarks
- to review any proposed changes to these properties
- issue Mississippi Landmark permits for approved work.
The Antiquities Law can be found at: http://www.mscode.com/free/statutes/39/007/
More info about administration of the law can be found on our web site at: www.mdah.state.ms.us
New Jersey : New Jersey has several state-level laws requiring protection and/or consideration of the state's historic and archaeological resources.
The New Jersey Register of Historic Places Act requires State, county, municipal government, or any agency or instrumentality therof, to receive authorization from the Commissioner of the Department of Environmental Protection for any project that could encroach upon a property listed on the New Jersey Register of Historic Places. Under this law, the Commissioner can authorize a project, authorize a project with conditions, or deny a project. The statute is N.J.S.A. 13:1B-15.108 et. seq. and can be found at: http://lis.njleg.state.nj.us/cgi-bin/om_isapi.dll?clientID=1093415&Depth=2&depth=2&expandheadings=on&headingswithhits=on&hitsperheading=on&infobase=statutes.nfo&record={4121}&softpage=Doc_Frame_PG42The rules of the New Jersey Register of Historic Places are codified at N.J.A.C. 7:4 and can be found at: http://www.state.nj.us/dep/hpo/2protection/njac7_4.pdf
Consideration of historic and archaeological resources is also required in New Jersey when freshwater wetlands permitting, waterfront development permitting, or Coastal Area Facilities Review Act (CAFRA) permitting, or a Highlands Preservation Area Approval is required. The links to the appropriate documents are below:
- Freshwater Wetlands Protection Act:
statute: http://www.state.nj.us/dep/landuse/13_9b.pdf
rules: http://www.state.nj.us/dep/landuse/7-7a.pdf- Coastal Area Facilities Review Act
statute: http://www.state.nj.us/dep/landuse/13_19.pdf
rules: http://www.state.nj.us/dep/landuse/7-7e.pdf- Waterfront Development Act:
statute: http://www.state.nj.us/dep/landuse/12_5_3.pdf
rules: same as above- Highlands Water Protection and Planning Act
statute: http://www.state.nj.us/dep/highlands/docs/highlands_bill.pdf
rules: http://www.nj.gov/dep/rules/rules/njac7_38_2006_1204complete.pdfMore information about these regulatory processes can be found on our website at: www.state.nj.us/dep/hpo/protect
New York: NY has the State Historic Preservation Act (1980) which parallels NHPA in many respects. Section 14.09 of SHPA approximates Section 106.
The full regs for the law can be found on our website at http://nysparks.com/shpo/environ/regulations.htm.
The law itself can be accessed through http://public.leginfo.state.ny.us/menugetf.cgi?COMMONQUERY=LAWS then scroll down and click on: PAR Parks, recreation and historic preservation
on the next page go to Article 14 - Historic Preservation and click and you will be taken to the legislation.
NY also has a law that lets local governments/agencies take historic issues into account as well - called the State Environmental Quality Review Act - SEQRA - which parallels NEPA.For the SEQRA legislation go to http://public.leginfo.state.ny.us/menugetf.cgi?COMMONQUERY=LAWS then scroll down and click on ENVIRONMENTAL CONSERVATION and then on Article 8.
For the regs you and how to - you can search the DEC website at http://www.dec.ny.gov/regs/4490.html.
North Carolina : http://www.ah.dcr.state.nc.us/nc-hist-com.htm
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Pennsylvania:Under the Pennsylvania History Code (PDF, 104 KB) and the National Historic Preservation Act, the Pennsylvania Historical and Museum Commission (PHMC), the Commonwealth's official history agency, is designated as the State Historic Preservation Office (SHPO). The Commission's Bureau for Historic Preservation (BHP) administers all official state historic preservation programs and activities.
Washington: Washington state has both state law applying the Secretary’s Standards for the Treatment of Historic Properties to our state capitol campus historic buildings and grounds, and a Governor’s executive order requiring review of state-funded capital projects for protection of cultural resources.
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For corrections or comments on the website please contact Kristen Harbeson at harbeson@sso.org
