Updates to Historic Preservation Ordinances Required by State Law

Dan Lawler

From our Summer 2021 e-newsletter

In 2017, the Oregon Department of Land Conservation and Development (DLCD) amended the administrative rules that govern local historic resource programs and ordinances (OAR 660-023-0200). Afterwards, the State Historic Preservation Office (SHPO) developed a model historic preservation ordinance to provide local governments with an example of local regulations that comply with DLCD’s amended administrative rules. Together, the updated administrative rules and model ordinance identify elements of historic preservation programs that localities must adopt the next time they amend their historic preservation ordinances.

To help our clients that operate historic preservation programs, this article summarizes and explains significant items that must be included in historic preservation ordinances to ensure compliance with state law and to qualify for funding and technical assistance as a Certified Local Government. However, this article does not contain an exhaustive list of every requirement that local governments must incorporate into their historic preservation ordinances. Feel free to contact our office if your entity desires assistance updating its historic preservation ordinance.

Definitions

SHPO’s model ordinance identifies a handful of definitions that localities must incorporate into their historic preservation ordinances. These definitions are intended to promote consistency between federal, state, and local historic preservation programs, but may require localities to rename some of their existing definitions. For example, the commonly-used term “historic landmark” is now referred to by the State as “historic resource.” While SHPO may allow localities to retain some of their existing terminology, adopting the State’s definitions for historic preservation programs would help to avoid confusion between local, state, and federal requirements. For the complete list of definitions required under state law, see Section 7 of SHPO’s model ordinance.

Inventorying, Evaluating, and Designating Historic Resources

OAR 660-023-0200(4), (5), and (6) establish procedures that localities must use to inventory, evaluate, and designate historic resources. The following bullets summarize the State’s updated inventory, evaluation, and designation requirements that must be incorporated into local historic preservation ordinances.

• Local historic resource inventories and resource lists must be maintained as public records, except for archaeological sites.
• Historic Preservation Commissions must evaluate historic resources in accordance with the State’s “Guidelines for Historic Resource Surveys in Oregon, 2010” document or SHPO updates to the guidelines.
• Historic Preservation Commissions must evaluate historic resources in accordance with the following categories: Eligible/Significant, Eligible/Contributing, Non-Contributing, or Not in Period.
• Objections from property owners must not prevent properties from being inventoried, evaluated, or designated to the historic resource inventory.
• Commission designations to the historic resource list must be made as land-use actions at public meetings.

See Sections 10 and 11 of SHPO’s model ordinance for more information on requirements related to inventorying, evaluating, and designating historic resources.

Historic Preservation Commissions

Sections 8 and 9 of SHPO’s model ordinance identify requirements for Historic Preservation Commissions that localities must include in their historic preservation ordinances. These requirements fall into two general categories: 1) Organization of Historic Preservation Commissions; and 2) Duties of Historic Preservation Commissions. The following bullets summarize the requirements for each category.

• Organization of Historic Preservation Commissions:

o Commission members must have a demonstrated interest in and knowledge of historic preservation.
o Localities must make all reasonable efforts to appoint individuals with experience in preservation, architecture, archaeology, community history, building trades, real estate, or related fields.
o Localities may establish their own residency requirements and term lengths for Commission members.

• Duties of Historic Preservation Commissions:

o Commissions must meet at least four times per year.
o Commissions must use the procedures of local historic preservation ordinances to review and act upon applications for designation, evaluation, preservation, rehabilitation, reconstruction, alteration, relocation, or demolition of historic resources.
o Commissions must provide written comments to SHPO upon request regarding the eligibility of historic resources for listing in the National Register of Historic Places.

Miscellaneous Requirements

While the paragraphs above outline larger categories of changes required by the state, the updated administrative rules and model ordinance contain various additional requirements that localities must incorporate into their historic preservation ordinances. The following bullets outline these requirements.

• Additional Protections for National Register Resources: Commissions must consider the list of factors in Section 13(d)(2) of the SHPO model ordinance at a public hearing when determining whether to apply additional protections to National Register Resources.

• Demolition or Relocation of National Register Resources: Section 14 of SHPO’s model ordinance establishes a definition of “demolition” that must be used for National Register Resources and specifies factors that Historic Preservation Commissions must consider when reviewing applications to demolish or relocate National Register Resources.

• Removal from the Resource List: Section 16(d) of SHPO’s model ordinance establishes specific procedures and factors that Historic Preservation Commissions must use to consider applications to remove significant historic resources from the resource list.

• Archaeological Resources: Local historic preservation ordinances must include language stating that archaeological resources must be protected and preserved in accordance with federal, state, and local regulations and that no person may excavate, injure, destroy, or alter archaeological sites without a permit. See Section 15 of SHPO’s model ordinance for more information on requirements related to archaeological resources.