The Legal Intelligencer
(by Blaine Lucas and Alyssa Golfieri)
Preservation of the commonwealth’s historically significant natural, scenic, cultural, and architectural features and resources is a rising priority among local municipalities—and for good reason. Historic preservation not only helps cultivate an aesthetically pleasing environment for residents and business owners to live, work, and play, but it can increase property values, generate new tourism/economic development opportunities, and encourage future development with high-quality site design and architectural patterns. Municipalities are vested with several options when it comes to historic preservation. The two most common are the utilization of their authority under the Pennsylvania Historic District Act, 53 P.S. Section 8001 et seq., (Historic District Act) and the Pennsylvania Municipalities Planning Code, 53 P.S. Section 10101 et seq., (MPC).
The Historic District Act was enacted in 1961 and confers upon counties, third class cities—First and second class cities (i.e., Philadelphia and Pittsburgh) are expressly excluded from the Historic District Act’s grant of authority—boroughs, incorporated towns, and townships the authority to designate historic districts within their geographical limits. In order to create a historic district, a municipality must do two things. First, it must adopt an ordinance. While the Historic District Act does not command in great detail what content or subject matters the ordinance must cover, it should, at a minimum, express the municipality’s intent to create a historic district pursuant to the Historic District Act, delineate the historic district’s boundaries, establish a historical architectural review board (HARB), enumerate the powers and duties of the HARB, and set forth guidelines and the approval process applicable to the issuance of a certificate of appropriateness (COA). Next, the municipality must provide the Pennsylvania Historical and Museum Commission written notice of the ordinance’s enactment. The commission must then certify, by resolution, to the district’s historical significance. Only after such certification does the ordinance become effective.
Upon receipt of an application for a project within a historic district, members of the HARB should carefully review the application, discuss the project with the applicant, consider the effect the proposed project will have upon the general historic and architectural nature of the district, and assess the proposed structural changes using the municipality’s ordinances and supplemental guidelines. When doing so, the HARB only may consider and pass on the appropriateness of external architectural features visible from a public street or way, including general design, arrangement, texture, material, and color of a building or structure, and their relation to similar features or structures in the district. The HARB may not consider matters unrelated to the preservation of the historic aspect and nature of the district (e.g., internal design features).
After the HARB renders a recommendation, the governing body votes on the project’s historical appropriateness, and if it concludes that the project is, it issues a COA. Receipt of a COA is a prerequisite to an applicant’s ability to apply for and receive all other necessary permits and approvals (e.g., land use, building, grading, environmental, etc.).
If the governing body concludes a proposed project is not historically appropriate, it must vote to deny a COA. Upon doing so, the governing body must set forth its denial in writing. The written decision must list the reason(s) for denial and the changes that must be made to ensure the district’s historic character is protected. All written denial letters must be forwarded to the applicant, any third-party agency implicated by the application, and the Pennsylvania Historical and Museum Commission. If the applicant disagrees with the governing body’s denial, he has the right to appeal pursuant to the law or local ordinance governing the other necessary permits and approvals.
In addition to, or in conjunction with, the powers vested by the Historic District Act, municipalities can rely on historic preservation authority granted by the MPC, the state law establishing the framework for zoning and land use development regulations in Pennsylvania. The MPC not only mandates that municipalities plan for the preservation and protection of natural and historic features and resources, it also authorizes municipalities to partner with surrounding communities to create an intergovernmental plan for historic preservation, and incorporate regulations into their zoning ordinances for the purposes of regulating, restricting, and prohibiting activity that may impact natural and historic features and resources. More specifically, the MPC provides as follows:
- Section 301 mandates that a municipality’s comprehensive plan include a plan for the protection and preservation of natural and historic resources.
- Section 603 authorizes municipalities to protect natural and historic features and resources, regardless of whether they are located within a district designated pursuant to the Historic District Act, via zoning.
- Section 605 authorizes municipalities to create zoning districts with specific classifications for the purpose of regulating, restricting or prohibiting “uses and structures at, along or near … places having unique historical [or] architectural … interest or value.”
- Article XI, titled “Intergovernmental Cooperative Planning and Implementation Agreements,” authorizes municipalities to enter into intergovernmental cooperative agreements to develop, adopt, and implement a comprehensive plan for the entire county or for any area within the county in order to, among other things plan for the conservation and enhancement of the natural, scenic, historic and aesthetic resources within the area of the plan, and provide for the continuation of historic community patters.
Due to the variety of means by which a municipality can regulate and enforce historic preservation within its borders, one thing is evident—each municipality’s historic preservation approach will vary in function and form from the next. In light of the unavoidable difference between each municipality’s approach, it remains critical that buyers, developers, real estate agents, and municipal officials remain cognizant of local historic preservation goals, the steps necessary to satisfy the historic-specific regulations/assessment criteria, and the additional time that purchasing or developing property in a historic district or a historical-preservation area will add to the overall permitting and approval process.
*Reprinted with permission from the 4/16/18 issue of The Legal Intelligencer. © 2018 ALM Media Properties, LLC. Further duplication without permission is prohibited. All rights reserved.
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