GENERAL ASSEMBLY OF NORTH CAROLINA

SESSION 1989

S	3 
SENATE BILL 139*
Judiciary Committee Substitute Adopted 4/5/89
Third Edition Engrossed 4/12/89

Short Title:  Historic Districts/Landmarks.	(Public)
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Sponsors:
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Referred to:  
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February 9, 1989

A BILL TO BE ENTITLED
AN ACT TO REGULATE HISTORIC DISTRICTS AND LANDMARKS.
The General Assembly of North Carolina enacts:
Section 1.  Part 3A and Part 3B of Article 19 of Chapter 160A of the General Statutes are repealed.
Sec. 2.  Article 19 of Chapter 160A of the General Statutes is amended by adding a new Part to read:
“Part 3C.  Historic Districts and Landmarks
"§ 160A-400.1.  Legislative findings.
The historical heritage of our State is one of our most valued and important assets.  The conservation and preservation of historic districts and landmarks stabilize and increase property values in their areas and strengthen the overall economy of the State.  This Part authorizes cities and counties of the State within their respective zoning jurisdictions and by means of listing, regulation, and acquisition:
(1)	To safeguard the heritage of the city or county by preserving any district or landmark therein that embodies important elements of its culture, history, architectural history, or prehistory; and
(2)	To promote the use and conservation of such district or landmark for the education, pleasure and enrichment of the residents of the city or county and the State as a whole.
"§ 160A-400.2.  Exercise of powers by counties as well as cities.
The term ‘municipality' or ‘municipal' as used in G.S. 160A-400.1 through 160A-400.15 shall be deemed to include the governing board or legislative board of a county, to the end that counties may exercise the same powers as cities with respect to the establishment of historic districts and designation of landmarks.
"§ 160A-400.3.  Character of historic district defined.
Historic districts established pursuant to this Part shall consist of areas which are deemed to be of special significance in terms of their history, prehistory, architecture, and/or culture, and to possess integrity of design, setting, materials, feeling, and association.
"§ 160A-400.4.  Designation of historic districts.
Any municipal governing board may, as part of a zoning or other ordinance enacted or amended pursuant to this Article, designate and from time to time amend one or more historic districts within the area subject to the ordinance.  Such ordinance may treat historic districts either as a separate use district classification or as districts which overlay other zoning districts.  Where historic districts are designated as separate use districts, the zoning ordinance may include as uses by right or as conditional uses those uses found by the Preservation Commission to have existed during the period sought to be restored or preserved, or to be compatible with the restoration or preservation of the district.
No historic district or districts shall be designated until:
(1)	An investigation and report describing the significance of the buildings, structures, features, sites or surroundings included in any such proposed district, and a description of the boundaries of such district has been prepared, and
(2)	The Department of Cultural Resources, acting through the State Historic Preservation Officer or his or her designee, shall have made an analysis of and recommendations concerning such report and description of proposed boundaries.  Failure of the department to submit its written analysis and recommendations to the municipal governing board within 30 calendar days after a written request for such analysis has been received by the Department of Cultural Resources shall relieve the municipality of any responsibility for awaiting such analysis, and said board may at any time thereafter take any necessary action to adopt or amend its zoning ordinance.
The municipal governing board may also, in its discretion, refer the report and proposed boundaries to any local preservation commission or other interested body for its recommendations prior to taking action to amend the zoning ordinance.  With respect to any changes in the boundaries of such district subsequent to its initial establishment, or the creation of additional districts within the jurisdiction, the investigative studies and reports required by subdivision (1)	of this section shall be prepared by the preservation commission, and shall be referred to the local planning agency for its review and comment according to procedures set forth in the zoning ordinance.  Changes in the boundaries of an initial district or proposal for additional districts shall also be submitted to the Department of Cultural Resources in accordance with the provisions of subdivision (2) of this section.
On receipt of these reports and recommendations, the municipality may proceed in the same manner as would otherwise be required for the adoption or amendment of any appropriate zoning ordinance provisions.
"§ 160A-400.5.  Designation of landmarks; adoption of an ordinance; criteria for designation.
Upon complying with G.S. 160A-400.6, the governing board may adopt and from time to time amend or repeal an ordinance designating one or more historic landmarks.  No property shall be recommended for designation as a historic landmark unless it is deemed and found by the preservation commission to be of special significance in terms of its historical, prehistorical, architectural, or cultural importance, and to possess integrity of design, setting, workmanship, materials, feeling and/or association.
The ordinance shall describe each property designated in the ordinance, the name or names of the owner or owners of the property, those elements of the property that are integral to its historical, architectural, or prehistorical value, including the land area of the property so designated, and any other information the governing board deems necessary.  For each building, structure, site, area, or object so designated as a historic landmark, the ordinance shall require that the waiting period set forth in this Part be observed prior to its demolition. For each designated landmark, the ordinance may also provide for a suitable sign on the property indicating that the property has been so designated.  If the owner consents, the sign shall be placed upon the property.  If the owner objects, the sign shall be placed on a nearby public right-of-way.
"§ 160A-400.6.  Required landmark designation procedures.
As a guide for the identification and evaluation of landmarks, the commission shall undertake, at the earliest possible time and consistent with the resources available to it, an inventory of properties of historical, architectural, prehistorical, and cultural significance within its jurisdiction.  Such inventories and any additions or revisions thereof shall be submitted as expeditiously as possible to the Division of Archives and History.  No ordinance designating a historic building, structure, site, area or object as a landmark nor any amendment thereto may be adopted, nor may any property be accepted or acquired by a preservation commission or the governing board of a municipality, until all of the following procedural steps have been taken:
(1)	The preservation commission shall (i) prepare and adopt rules of procedure, and (ii) prepare and adopt principles and guidelines, not inconsistent with this Part, for altering, restoring, moving, or demolishing properties designated as landmarks.
(2)	The preservation commission shall make or cause to be made an investigation and report on the historic, architectural, prehistorical, educational or cultural significance of each building, structure, site, area or object proposed for designation or acquisition.  Such investigation or report shall be forwarded to the Division of Archives and History, North Carolina Department of Cultural Resources.
(3)	The Department of Cultural Resources, acting through the State Historic Preservation Officer shall either upon request of the department or at the initiative of the preservation commission be given an opportunity to review and comment upon the substance and effect of the designation of any landmark pursuant to this Part.  Any comments shall be provided in writing.  If the Department does not submit its comments or recommendation in connection with any designation within 30 days following receipt by the Department of the investigation and report of the commission, the commission and any city or county governing board shall be relieved of any responsibility to consider such comments.
(4)	The preservation commission and the governing board shall hold a joint public hearing or separate public hearings on the proposed ordinance.  Reasonable notice of the time and place thereof shall be given.  All meetings of the commission shall be open to the public, in accordance with the North Carolina Open Meetings Law, Chapter 143, Article 33C.
(5)	Following the joint public hearing or separate public hearings, the governing board may adopt the ordinance as proposed, adopt the ordinance with any amendments it deems necessary, or reject the proposed ordinance.
(6)	Upon adoption of the ordinance, the owners and occupants of each designated landmark shall be given written notification of such designation insofar as reasonable diligence permits.  One copy of the ordinance and all amendments thereto shall be filed by the preservation commission in the office of the register of deeds of the county in which the landmark or landmarks are located.  Each designated landmark shall be indexed according to the name of the owner of the property in the grantee and grantor indexes in the register of deeds office, and the preservation commission shall pay a reasonable fee for filing and indexing.  In the case of any landmark property lying within the zoning jurisdiction of a city, a second copy of the ordinance and all amendments thereto shall be kept on file in the office of the city or town clerk and be made available for public inspection at any reasonable time.  A third copy of the ordinance and all amendments thereto shall be given to the city or county building inspector.  The fact that a building, structure, site, area or object has been designated a landmark shall be clearly indicated on all tax maps maintained by the county or city for such period as the designation remains in effect.
(7)	Upon the adoption of the landmarks ordinance or any amendment thereto, it shall be the duty of the preservation commission to give notice thereof to the tax supervisor of the county in which the property is located.  The designation and any recorded restrictions upon the property limiting its use for preservation purposes shall be considered by the tax supervisor in  appraising it for tax purposes.
"§ 160A-400.7.  Historic Preservation Commission.
Before it may designate one or more landmarks or historic districts, a municipality shall establish or designate a historic preservation commission.  The municipal governing board shall determine the number of the members of the commission, which shall be at least three, and the length of their terms, which shall be no greater than four years.  A majority of the members of such a commission shall have demonstrated special interest, experience, or education in history, architecture, archaeology, or related fields.  All the members shall reside within the territorial jurisdiction of the municipality as established pursuant to G.S. 160A-360.  The commission may appoint advisory bodies and committees as appropriate.
In lieu of establishing a historic preservation commission, a municipality may designate as its historic preservation commission, (i)	a separate historic districts commission or a separate historic landmarks commission established pursuant to this Part to deal only with historic districts or landmarks respectively, (ii) a planning agency established pursuant to this Article, or (iii) a community appearance commission established pursuant to Part 7 of this Article.  In order for a commission or board other than the preservation commission to be designated, at least three of its members shall have demonstrated special interest, experience, or education in history, architecture, or related fields.  At the discretion of the municipality the ordinance may also provide that the preservation commission may exercise within a historic district any or all of the powers of a planning agency or a community appearance commission.
A county and one or more cities in the county may establish or designate a joint preservation commission.  If a joint commission is established or designated, the county and cities involved shall determine the residence requirements of members of the joint preservation commission.
"§ 160A-400.8.  Powers of the Historic Preservation Commission.
A preservation commission established pursuant to this Part may, within the zoning jurisdiction of the municipality:
(1)	Undertake an inventory of properties of historical, prehistorical, architectural, and/or cultural significance;
(2)	Recommend to the municipal governing board areas to be designated by ordinance as ‘Historic Districts'; and individual structures, buildings, sites, areas, or objects to be designated by ordinance as ‘Landmarks';
(3)	Acquire by any lawful means the fee or any lesser included interest, including options to purchase, to properties within established districts or to any such properties designated as landmarks, to hold, manage, preserve, restore and improve the same, and to exchange or dispose of the property by public or private sale, lease or otherwise, subject to covenants or other legally binding restrictions which will secure appropriate rights of public access and promote the preservation of the property;
(4)	Restore, preserve and operate historic properties;
(5)	Recommend to the governing board that designation of any area as a historic district or part thereof, or designation of any building, structure, site, area, or object as a landmark, be revoked or removed for cause;
(6)	Conduct an educational program with respect to historic properties and districts within its jurisdiction;
(7)	Cooperate with the State, federal, and local governments in pursuance of the purposes of this Part.  The governing board or the commission when authorized by the governing board may contract with the State, or the United States of America, or any agency of either, or with any other organization provided the terms are not inconsistent with State or federal law;
(8)	Enter, solely in performance of its official duties and only at reasonable times, upon private lands for examination or survey thereof.  However, no member, employee or agent of the commission may enter any private building or structure without the express consent of the owner or occupant thereof;
(9)	Prepare and recommend the official adoption of a preservation element as part of the municipality's comprehensive plan;
(10)	Review and act upon proposals for alterations, demolitions, or new construction within historic districts, or for the alteration or demolition of designated landmarks, pursuant to this Part; and
(11)	Negotiate at any time with the owner of a building, structure, site, area, or object for its acquisition or its preservation, when such action is reasonably necessary or appropriate.
"§ 160A-400.9.  Certificate of appropriateness required.
(a)	From and after the designation of a landmark or a historic district, no exterior portion of any building or other structure (including masonry walls, fences, light fixtures, steps and pavement, or other appurtenant features), nor above-ground utility structure nor any type of outdoor advertising sign shall be erected, altered, restored, moved, or demolished on such landmark or within such district until after an application for a certificate of appropriateness as to exterior features has been submitted to and approved by the preservation commission.  The municipality shall require such a certificate to be issued by the commission prior to the issuance of a building permit or other permit granted for the purposes of constructing, altering, moving, or demolishing structures, which certificate may be issued subject to reasonable conditions necessary to carry out the purposes of this Part.  A certificate of appropriateness shall be required whether or not a building or other permit is required.
For purposes of this Part, ‘exterior features' shall include the architectural style, general design, and general arrangement of the exterior of a building or other structure, including the kind and texture of the building material, the size and scale of the building, and the type and style of all windows, doors, light fixtures, signs, and other appurtenant fixtures.  In the case of outdoor advertising signs, ‘exterior features' shall be construed to mean the style, material, size, and location of all such signs.  Such ‘exterior features' may, in the discretion of the local governing board, include historic signs, color, and significant landscape, archaeological, and natural features of the area.
Except as provided in (b)	below, the commission shall have no jurisdiction over interior arrangement and shall take no action under this section except to prevent the construction, reconstruction, alteration, restoration, moving, or demolition of buildings, structures, appurtenant fixtures, outdoor advertising signs, or other significant features in the district which would be incongruous with the special character of the landmark or district.
(b)	Notwithstanding subsection (a) of this section, jurisdiction of the commission over interior spaces shall be limited to specific interior features of architectural, artistic or historical significance in publicly owned landmarks; and of privately owned historic landmarks for which consent for interior review has been given by the owner.  Said consent of an owner for interior review shall bind future owners and/or successors in title, provided such consent has been filed in the office of the register of deeds of the county in which the property is located and indexed according to the name of the owner of the property in the grantee and grantor indexes.  The landmark designation shall specify the interior features to be reviewed and the specific nature of the commission's jurisdiction over the interior.
(c)	Prior to any action to enforce a landmark or historic district ordinance, the commission shall (i) prepare and adopt rules of procedure, and (ii) prepare and adopt principles and guidelines not inconsistent with this Part for new construction, alterations, additions, moving and demolition.  The ordinance may provide, subject to prior adoption by the preservation commission of detailed standards, for the review and approval by an administrative official of applications for a certificate of appropriateness or of minor works as defined by ordinance; provided, however, that no application for a certificate of appropriateness may be denied without formal action by the preservation commission.
Prior to issuance or denial of a certificate of appropriateness the commission shall take such steps as may be reasonably required in the ordinance and/or rules of procedure to inform the owners of any property likely to be materially affected by the application, and shall give the applicant and such owners an opportunity to be heard.  In cases where the commission deems it necessary, it may hold a public hearing concerning the application.  All meetings of the commission shall be open to the public, in accordance with the North Carolina Open Meetings Law, Chapter 143, Article 33C.
(d)	All applications for certificates of appropriateness shall be reviewed and acted upon within a reasonable time, not to exceed 180 days from the date the application for a certificate of appropriateness is filed, as defined by the ordinance or the commission's rules of procedure.  As part of its review procedure, the commission may view the premises and seek the advice of the Division of Archives and History or such other expert advice as it may deem necessary under the circumstances.
(e)	An appeal may be taken to the Board of Adjustment from the commission's action in granting or denying any certificate, which appeals (i) may be taken by any aggrieved party, (ii) shall be taken within times prescribed by the preservation commission by general rule, and (iii) shall be in the nature of certiorari.  Any appeal from the Board of Adjustment's decision in any such case shall be heard by the superior court of the county in which the municipality is located.
(f)	All of the provisions of this Part are hereby made applicable to construction, alteration, moving and demolition by the State of North Carolina, its political subdivisions, agencies and instrumentalities, provided however they shall not apply to interiors of buildings or structures owned by the State of North Carolina.  The State and its agencies shall have a right of appeal to the North Carolina Historical Commission or any successor agency assuming its responsibilities under G.S. 121-12(a) from any decision of a local preservation commission.  The commission shall render its decision within 30 days from the date that the notice of appeal by the State is received by it.  The current edition of the Secretary of the Interior's Standards for Rehabilitation and Guidelines for Rehabilitating Historic Buildings shall be the sole principles and guidelines used in reviewing applications of the State for certificates of appropriateness.  The decision of the commission shall be final and binding upon both the State and the preservation commission.
"§ 160A-400.10.  Conflict with other laws.
Whenever any ordinance adopted pursuant to this Part requires a longer waiting period or imposes other higher standards with respect to a designated historic landmark or district than are established under any other statute, charter provision, or regulation, this Part shall govern.  Whenever the provisions of any other statute, charter provision, ordinance or regulation require a longer waiting period or impose other higher standards than are established under this Part, such other statute, charter provision, ordinance or regulation shall govern.
"§ 160A-400.11.  Remedies.
In case any building, structure, site, area or object designated as a historic landmark or located within a historic district designated pursuant to this Part is about to be demolished whether as the result of deliberate neglect or otherwise, materially altered, remodeled, removed or destroyed, except in compliance with the ordinance or other provisions of this Part, the city or county, the historic preservation commission, or other party aggrieved by such action may institute any appropriate action or proceedings to prevent such unlawful demolition, destruction, material alteration, remodeling or removal, to restrain, correct or abate such violation, or to prevent any illegal act or conduct with respect to such building, structure, site, area or object.  Such remedies shall be in addition to any others authorized by this Chapter for violation of a municipal ordinance.
"§ 160A-400.12.  Appropriations.
A city or county governing board is authorized to make appropriations to a historic preservation commission established pursuant to this Part in any amount that it may determine necessary for the expenses of the operation of the commission, and may make available any additional amounts necessary for the acquisition, restoration, preservation, operation, and management of historic buildings, structures, sites, areas or objects designated as historic landmarks or within designated historic districts, or of land on which such buildings or structures are located, or to which they may be removed.
"§ 160A-400.13.  Certain changes not prohibited.
Nothing in this Part shall be construed to prevent the ordinary maintenance or repair of any exterior architectural feature in a historic district or of a landmark which does not involve a change in design, material or appearance thereof, nor to prevent the construction, reconstruction, alteration, restoration, moving or demolition of any such feature which the building inspector or similar official shall certify is required by the public safety because of an unsafe or dangerous condition.  Nothing in this Part shall be construed to prevent a property owner from making any use of his property that is not prohibited by other law.  Nothing in this Part shall be construed to prevent a) the maintenance, or b) in the event of an emergency the immediate restoration, of any existing above-ground utility structure without approval by the preservation commission.  
"§ 160A-400.14.  Delay in demolition of landmarks and buildings within historic district.
(a)	An application for a certificate of appropriateness authorizing the demolition or destruction of a designated landmark or a building, structure or site within the district may not be denied except as provided in subsection (c).  However, the effective date of such a certificate may be delayed for a period of up to 365 days from the date of approval.  The maximum period of delay authorized by this section shall be reduced by the commission where it finds that the owner would suffer extreme hardship or be permanently deprived of all beneficial use of or return from such property by virtue of the delay.  During such period the preservation commission shall negotiate with the owner and with any other parties in an effort to find a means of preserving the building or site.  If the preservation commission finds that a building or site within a district has no special significance or value toward maintaining the character of the district, it shall waive all or part of such period and authorize earlier demolition, or removal.
If the commission or planning agency has voted to recommend designation of a property as a landmark or designation of an area as a district, and final designation has not been made by the local governing board, the demolition or destruction of any building, site, or structure located on the property of the proposed landmark or in the proposed district may be delayed by the commission or planning agency for a period of up to 180 days or until the local governing board takes final action on the designation, whichever occurs first.
(b)	The governing board of any municipality may enact an ordinance to prevent the demolition by neglect of any designated landmark or any building or structure within an established historic district.  Such ordinance shall provide appropriate safeguards to protect property owners from undue economic hardship.
(c)	An application for a certificate of appropriateness authorizing the demolition or destruction of a building, site, or structure determined by the State Historic Preservation Officer as having statewide significance as defined in the criteria of the National Register of Historic Places may be denied except where 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."
Sec. 3.  G.S. 40A-3(b) reads as rewritten:
"(b)	Local Public Condemnors. – For the public use or benefit, the governing body of each municipality or county shall possess the power of eminent domain and may acquire by purchase, gift or condemnation any property, either inside or outside its boundaries, for the following purposes.
(1)	Opening, widening, extending, or improving roads, streets, alleys, and sidewalks. The authority contained in this subsection is in addition to the authority to acquire rights-of-way for streets, sidewalks and highways under Article 9 of Chapter 136. The provisions of this subdivision (1) shall not apply to counties.
(2)	Establishing, extending, enlarging, or improving any of the public enterprises listed in G.S. 160A-311 for cities, or G.S. 153A-274 for counties.
(3)	Establishing, enlarging, or improving parks, playgrounds, and other recreational facilities.
(4)	Establishing, extending, enlarging, or improving storm sewer and drainage systems and works, or sewer and septic tank lines and systems.
(5)	Establishing, enlarging, or improving hospital facilities, cemeteries, or library facilities.
(6)	Constructing, enlarging, or improving city halls, fire stations, office buildings, courthouse jails and other buildings for use by any department, board, commission or agency.
(7)	Establishing drainage programs and programs to prevent obstructions to the natural flow of streams, creeks and natural water channels or improving drainage facilities. The  authority contained in this subdivision is in addition to any authority contained in Chapter 156.
(8)	Acquiring designated historic properties, designated as such before October 1, 1989, or acquiring a designated landmark designated as such on or after October 1, 1989, or acquiring a building, structure or site within a historic district, for which an application has been made for a certificate of appropriateness for demolition, in pursuance of the purposes of G.S. 160A-399.3, Chapter 160A, Article 19, Part 3B, effective until October 1, 1989, or G.S. 160A-400.14, whichever is appropriate.
(9)	Opening, widening, extending, or improving public wharves.
The board of education of any municipality or county or a combined board may exercise the power of eminent domain under this Chapter for purposes authorized by other statutes.
The power of eminent domain shall be exercised by local public condemnors under the procedures of Article 3 of this Chapter."
Sec. 4.  Nothing in Sections 1 or 2 of this act shall affect the validity of any historic district commission or historic district established prior to the effective date of this act pursuant to Part 3A of Article 19 of Chapter 160A of the General Statutes, nor of any historic properties commission or historic properties established prior to the effective date of this act pursuant to Part 3B of Article 19 of Chapter 160A of the General Statutes.
Sec. 5.  This act shall become effective October 1, 1989.