By Anne Ward, Esq.
The following is a brief overview of the role of Historic Preservation Commission and an attorney’s appearance before it.
The establishment of a Historic Preservation Commission is authorized by Municipal Land Use Law (“MLUL”) N.J.S. 40:55D-107, et seq., which also recognizes the validity of the creation of historic districts. This authority was created in 1985 and acknowledges a generally held belief that the visual impact of the past is worthy of preservation, the exterior of buildings in historic areas should be retained, and that new development should be compatible with older sites. The statute requires that every Commission have at least one member who is “a person who is knowledgeable in building design and construction or architectural history”; and “one person who is knowledgeable or with a demonstrated interest in local history”.[1] Members must be citizens of the municipality and hold no other municipal office, except for membership on the planning board or board of adjustment. Planning boards and boards of adjustment are the entities which share responsibility for interpreting and applying the zoning regulations of a municipality.[2]
The responsibilities of a Historic Preservation Commission are to:[3]
a. prepare a survey of historic sites of the municipality pursuant to criteria identified in the survey report;
b. make recommendations to the planning board on the historic preservation plan element of the master plan and on the implications for preservation of historic sites of any other master plan elements;
c. advise the planning board on the inclusion of historic sites in the recommended capital improvement program;
d. advise the planning board of adjustment on applications for development pursuant to Section 24 of P.L. 1985, c. 516 (C.40:55D-110);
e. provide written reports pursuant to Section 25 if O,K, 1985, c. 516 (C.40:55D-111) on the application of the zoning ordinance provisions concerning historic preservation; and
f. carry out such other advisory, educational and informational functions as will promote historic preservation in the municipality.
The term “development” means:
the division of a parcel and land into two or more parcels, the construction, reconstruction, conversion, structural alteration, relocation, or enlargement of any building or other structure, or of any mining, excavation or landfill, and any use or change in the use of any building or other structure, or land or extension of use of land, for which permission may be required pursuant to this act.[4]
Historic districts are defined as “one or more historic sites and intervening or surrounding property significantly affecting or affected by the quality and character of the historic site or sites.”;[5] A historic site is “any real property, man-made structure, natural object or configuration or any portion or group of the foregoing of historical, archaeological, cultural, scenic or architectural significance.”;[6] These definitions are more expansive than the term “historic” generally connotes because they embrace the concept of aesthetics in zoning. By their language, a Historic Preservation Commission’s authority is not restricted just to sites with important associations to past events and notable personalities; but may take the aesthetics of an application into consideration. The Appellate Division of this State has held that aesthetics are a legitimate goal of zoning.[7]
By far the bulk of a Commissions work lies in advising the planning board on an application for development. Such applications run the gamut from choosing a sign for a historic façade to residential additions to the renovation and redesign of a major public site, such as a railroad station. Attorneys who represent clients before a Historic Preservation Commission should be sensitive to the following. Members of the Commission consider it their goal to enrich the lives of their community by preserving historical landmarks and districts and to advance the cause of coherent planning and construction. They aim to beautify and protect public spaces by bringing to bear their knowledge and talents in the areas of architecture, engineering, design, and history. As a result, a Commission’s focus will be on minimizing adverse impacts on the intangible qualities of a landmark or site. It will try to match the scale of a proposed development to its neighborhood and preserve its architectural integrity. There is often an inherent tension between a property owner’s desires to use his property according to private wishes and the Commission’s emphasis on maintaining the tone of a neighborhood. By example, a shop owner wants its sign sufficiently bold to entice customers while the Commission seeks to match the tone of a historic downtown. The emphasis at a hearing should be on cooperation between the parties who ideally will engage in a joint effort and respect each others’ interests. An attorney would do well to use the Commission as a valuable resource and not approach it as an adversary.
Proceedings before municipal agencies are “quasi-judicial” in nature. The power of a Historic Preservation Commission is limited by the MLUL’s direction that it plays an “advisory” role in the zoning and planning processes of a municipality.[8] As a result, appearances before Commissions are less demanding in terms of complying with the rules of procedure than proceedings before a court of law. Given their advisory roles, the conduct of hearings before Historic Preservation Commissions are generally less formal than that of most public bodies and tend to be more collaborative in nature. Nonetheless, a practitioner should not underestimate the impact of a Commission’s recommendation to a Planning Board. They should come well prepared for an appearance before a Historic Commission by being conversant in areas of the members’ interests as it relates to their specific proposal. Check to see whether a municipality has established a guide for development by hiring an architectural historian to survey the municipality for architectural styles and recommendations for future growth. The Secretary to a Historic Preservation Commission or a municipality’s website may be helpful in this respect. Attorneys should appear before the Commissions with a witness who has both the ability and authority to make appropriate modifications to elements of a development. Depending upon the complexity of a proposal, attorneys may need the project’s architect or engineer to answer questions and to explain a proposal. Members of the public are entitled to be present and may voice concerns and opinions about a development. [9] These also need to be addressed to the satisfaction of the Historic Preservation Commission.
[1] Open Public Meetings Act, N.J.S.A. 10:4-7, et seq
Anne P. Ward, Esq. is an Associate with the firm. Ms. Ward was the liaison from the Planning Board of the Village of Ridgewood to the Village’s Historic Preservation Commission from 2001 to 2006. She is a member of the Planning Board for the Village of Ridgewood. She may be contacted at Anne@lep-lawyers.com or 973-643-0040, Ext. 117