New State Law Tinkers with Local Historic Preservation Policies

The Pinkus-McBride commercial building anchors a corner of a six-pointed intersection in Madison, and provides a sense of the neighborhood's history while a new apartment building rises behind it.

The Pinkus-McBride commercial building anchors a corner of a six-pointed intersection in Madison, and provides a sense of the neighborhood's history while a new apartment building rises behind it.

A new state law in Wisconsin places new provisions on local historic preservation ordinances, but does not include proposed changes that would have disabled the ability of cities, towns and counties to provide long-term protection for important historic places. We wrote about the proposed Bill here

The new law requires Wisconsin municipalities (counties, cities, towns) to hold a public hearing on any proposed historic designation for an individual property or historic district, and to notify all property owners about the public hearing by paper mail. The law also provides for an appeal process, by which any property owner who is "affected by a decision of" a Historic Preservation Commission may appeal the decision to the County or Town Board or city Council, who may overturn the Commission's designation by a simple majority vote.

The law leaves intact the ability of counties and towns to designate landmarks and historic districts under powers of zoning that have been affirmed by the US Supreme Court in several cases. It does, however, require changes to some municipal preservation policies that currently require a 3/4 supermajority vote of the Board or Council to overturn a decision of the Commission. It leaves intact the ability to designate historic properties over the objection of the current owner. This was perhaps the most critical provision of the proposed bill. We argue in a previous post that historic preservation is a long game, and that allowing any owner, no matter how briefly they own the property, to opt out of local historic guidelines would lead to the rapid erosion of historic places in many Wisconsin communities.

The Wisconsin Trust for Historic Preservation lobbied, alongside the National Trust for Historic Preservation, the Milwaukee Preservation Alliance, other organizations, and several town mayors, for the wholesale removal of the section of the Bill dealing with local Historic Preservation laws. We were successful to the extent that the most dramatic provisions of the bill were amended before it became law.

State Bills Improved, But Still Weaken Local Preservation Laws

Historic downtown Portage

Historic downtown Portage

Two bills in the Wisconsin Legislature that would have forced opt-out provisions on local historic preservation ordinances have been amended, but they still weaken communities' ability to designate historic places, and provide long-term protection. 

Companion bills in the Wisconsin Senate (SB445) and Assembly (AB568) have been amended and are working their way through Committees. The original bills included an unconditional opt-out provision for property owners. Owners would have had veto power over historic designation, and over design standards in historic districts. It would have essentially dismantled local historic preservation ordinances that are designed for long-term conservation of historic buildings, structures, objects, and districts for the economic and cultural health of the whole community.

Amendments to both bills put some conditions on the opt-out provision, but still weaken the ability of communities to designate historic places when they meet community-developed criteria for historic significance, and regulate changes over the long term under conditions of changing ownership.

Here's how the bills work in their current form:

  • The bills preserve the right of Counties, Cities, and Towns to have preservation ordinances, design standards for historic properties, and to establish a Historic Preservation Commission. 
  • If a County, City, or Town proposes to designate a Historic District or individual Landmark they must:
    • Notify all affected property owners,
    • Provide a form to each owner, to vote for or against designation,
    • Allow 60 days for owner(s) to vote.
  • Then after 60 days:
    • In the case of an individual Landmark, if the owner has not voted against designation, the County, City, or Town may proceed with designation.
    • In the case of a Historic District, if 2/3 of votes cast within the allowed 60 days are in favor of designation (1 vote per “principal structure”), then County, City, or Town may proceed with designation.  If 2/3 threshold is not reached, then the designation may not proceed.
Pinckney Street, Capitol Square, Madison

Pinckney Street, Capitol Square, Madison

Other important provisions:

  • “No” votes by property owners who have used historic tax credits would not be counted. (presumably “yes” votes by these owners would be counted. The language is silent on this. This matters in Historic Districts where 2/3 of votes cast must be in favor in order to proceed). 
  • “No” votes by owners of properties listed in the National or State Registers would not be counted.
  • If a historic designation is rejected by votes of the property owner(s), then the County, City, or Town must wait one year before proposing same designation.
  • Once a Landmark or Historic District is designated, it may not be rescinded without the consent of the County, City, or Town. 
  • Preservation easements would not be affected by the current provisions.

Representative Leon Young (D- Milwaukee) offered an amendment to AB568 that would have removed all provisions related to local preservation ordinances.  Young's amendment was voted down in the Assembly's Housing and Real Estate Committee. WTHP supported this amendment because virtually all local ordinances in Wisconsin already include "pressure-release" provisions that allow property owners to appeal decisions of Historic Preservation Commission, and seek variances from design standards in cases of economic hardship.

As these bills move from Committees to the full legislature, we will continue to support the removal of all provisions of these bills that impose unnecessary state overrides of local historic preservation ordinances. 

Local Historic Preservation ordinances - regulation of historic and cultural places through municipal powers of zoning - are important tools in many Wisconsin communities. They are embedded into local and county zoning codes, and help communities regulate their own look, feel, and functionality. That regulation goes far beyond individual property ownership that changes, on average, every seven years. There are generational marks left on Wisconsin communities that define those communities, and define a heritage worth visiting, worth investing in, and worth caring about. The longevity of those those places should rise above the privilege of short-term property ownership. 


What AB-568 Means to Wisconsin's Historic Communities.

Wisconsin Assembly bill AB-568 (and a similar bill, SB445 in the Senate) contains clauses that would require owner consent before any historic property can be designated under local historic preservation ordinances. It would also make it optional for owners of historic properties to abide by design standards crafted under local historic preservation ordinances. These provisions would make local historic preservation ordinances optional.

The Wisconsin Trust for Historic Preservation is opposed to these provisions and has asked legislators to remove them from the bill. Here's why:

Eager Free Public Library - Evansville

Making preservation optional disables the only tool that Wisconsin communities have to protect their historic places. The federal National Register of Historic Places program provides no protection for historic places. A National Register building can be demolished with no penalty whatsoever. So, a local historic preservation ordinance is the only tool available to Wisconsin communities to determine what is important to their heritage, and how the community will protect their irreplaceable cultural assets.  It's a tool that is important to many Wisconsin communities in determining the quality of their historic residential and commercial districts. Towns like Bayfield, Cedarburg, Mineral Point, and Ephraim, need local historic designation ordinances and historic standards to maintain the character and unique quality that is at the heart of their tourism industry, their retail activity, and the quality of life in their communities. This bill would make it impossible to enforce such standards. It would place the long-term protection of community heritage in the hands of short-term owners. 

Historic Preservation is an important component of economic development. Recently, Mayors from  Bayfield, Waukesha, and Oshkosh testified against the "owner consent" provisions of the bill, saying that local historic preservation regulation is important to maintain the character and quality-of-life they've tried to cultivate for their communities. Bayfield Mayor, Larry McDonald, testified that Bayfield uses a triple bottom-line model to measure their success and quality of life. It requires that residents are taken care of, businesses are profitable, and environment (including the lakeshore heritage and historic character) is well-protected. "We have a tremendous concern," he said, "about what it would do to our economy, and we really believe it would really devalue the surrounding historic neighborhoods and buildings. We've got a brand, we've got a look."

Some of the most well-known and most visited historic districts in the nation - Charleston, Savannah, the French Quarter - are successful not because their design standards are optional, but because these cities have the power to compel adherence to design standards, and  they are diligent about enforcing their standards.

Are historic preservation regulation constitutional? Yes. Regulation of private property (including historic preservation regulations) for the purpose of beautification and redevelopment of the community falls within municipal powers of zoning, and do not violate the Takings Clause of the Fifth Amendment.  These powers, and historic district regulation by cities and towns, have been affirmed by the US Supreme Court in several cases (e.g. Berman v. Parker, 1954 and Penn Central v. NYC, 1978).  The "owner consent provisions of AB-568 rescind a constitutional power from Wisconsin municipalities and gives it to property owners. It's akin to making local waterfront zoning rules optional.

Historic Preservation is a long game. Owner consent provisions are short-sighted. Having historic places in your Wisconsin town is a long-term effort. Historic places, especially buildings, are dependent on their historic character to tell their stories - to be places people want to visit. But they also need to be economically viable. That means they need to be adapted to modern uses, but they need to retain their historic character. That is exactly the balance that local preservation ordinances try to strike. Property owners come and go. On average, real estate changes hands every seven years. As historic properties change hands and change uses design standards are in place to maintain their historic character over the long term, so that a town's historic shoe factory keeps looking like a shoe factory, and isn't eroded little by little over time.  If owners are allowed to opt out of local design standards, any short-term owner can opt out, demolish, and leave the community without that piece of their heritage.

Shared risk, shared reward. Many studies of the economic impacts of historic preservation conclude that local regulation of historic districts, both commercial and residential, tends to stabilize and even increase property values in those districts. Property owners in those district have a shared interest in the health - the appearance and quality - of their district. All owners share the reward that comes with a well-regulated neighborhood. And all owners also share the risk of allowing deterioration of the character of their district.  Owners who have no interest in maintaining the character of their property bring risk to the stability and value of historic districts. 

Research Tower at SCJohnson company headquarters -Racine. Photo courtesy of Eric Allix Rogers on Flickr.

Research Tower at SCJohnson company headquarters -Racine. Photo courtesy of Eric Allix Rogers on Flickr.

Building codes are not equivalent to historic design standards. Building codes address safety and structural standards, but not aesthetic standards. Historic buildings, sites, and districts are critically dependent on the historic integrity and character for their significance. It's what makes people want to visit them. Building codes can make a property owner repair a damaged roof, but historic design standards make the owner of historic buildings make the roof look like it did before it was damaged. Why is this important? Just imagine Frank Lloyd Wright's SCJohnson research tower in Racine with a mansard roof like a barn. It would protect the building pursuant to Racine's building code, but it would completely change the character of the historic building.

Local HP ordinances are not arbitrary, and they are not applied to every old building. Local ordinances rely on community-defined criteria that properties must meet in order to be designated. Once they are designated, they are subject to community-developed standards for maintaining their historic integrity. Also, local ordinances have pressure release clauses that allow property owners to appeal a decision of the local historic preservation commissions. They also have economic hardship causes that allow property owners to skirt the standards when compliance would impose and burdensome economic hardship.




AB-586 - Highlights from Committee Hearing on Bill That Would Devastate Local Preservation Ordinances in WI

The  Assembly Committee on Housing and Real Estate held a public hearing Thursday on several bills, including AB-568 that would make local historic preservation ordinances in Wisconsin optional.

WTHP registered in opposition of the bill because it includes clauses that would require the consent of property owners before properties could be designated as historic places under local ordinances. They would also make design standards for historic properties and historic districts unenforceable.

The thread that ran through much of the testimony against AB-568 was that municipalities prefer to retain local control of their own territory, and that a statewide remedy for regulating cultural places is a blunt instrument that can not address the varying needs of Wisconsin communities to determine their own character. Testimony in favor of the bill came mostly from real estate and rental management organizations, and were focused on property rights and economic hardship arguments.

Jail Alley - Mineral Point

Jail Alley - Mineral Point

One of the bill's sponsors, Rep. Rob Brooks (R-Saukville) testified that the bill is not intended to be retroactive. He said the "owner consent" provision would apply only to historic designations going forward, but would not be applicable to properties already designated. The draft of the bill that was available on prior to the hearing did not include a retroactivity clause. 

Rep. John Jagler (R-Watertown), Chair of the Committee, said he heard from representatives of Watertown in his 37th Assembly District, and also from the communities of Columbus and Waterloo that they have "grave concerns about this [owner consent] provision." They are concerned that "efforts to revitalize their downtowns would be greatly hampered by this if its voluntary." 

Curt Witynski, Assistant Director of the League of Wisconsin commented that the bill "strips municipal power in many ways," including the power to regulate historic and cultural resources that are important to community identity and character. 

Larry McDonald, Mayor of Bayfield testified that the "owner consent" provisions of AB-568 "particularly affects the city of Bayfield", which he called the "economic powerhouse of that corner of the state." "We have built a market," McDonald said, "to show ourselves off as a historic waterfront community," and that "the Chamber of Commerce and Visitors' Bureau promote the historic quality of our town." Bayfield uses a triple bottom-line model to measure their success and quality of life. It requires that residents are taken care of, businesses are profitable, and environment (including the cultural character) is well-protected. "Our community" he said "wants to be held accountable. We have a tremendous concern about what it would do to our economy, and we really believe it would really devalue the surrounding historic neighborhoods and buildings. We've got a brand, we've got a look, and we've got a community that's going to ask you to not impose any of the historic or aesthetic portions of this bill."

Shawn Reilly, Mayor of Waukesha testified against the provisions stating that "Waukesha has a very successful historic area. The downtown is pretty much all historic." Reilly articulated the adverse impact that the provisions would have on the state's Certified Local Government (CLG) program. 

Steve Cummings, Mayor of Oshkosh, testified that AB-568 usurps local control of quality-of-life issues. quality of life...sees local regulation of housing stock as "equity protection."  Healthy neighborhoods and economic development go hand-in-hand. "If you want companies to locate in your city, and bring their workers to your city, you have to have healthy neighborhoods. You have to have quality-of-life, and quality-of-life means healthy neighborhoods."

John Decker, Evansville attorney, and president of the Wisconsin Association of Historic Preservation Commissions, called the owner consent provisions "reverse spot zoning."  The provisions, he said "delegate local legislative authority to property owners simply on the basis that they don't consent. They can withhold their consent for a good reason, for a bad reason, or no reason at all." 

Brenda Wood representing the City of MKE said the bill "strikes at the heart of what local government does," including protecting the health, safety and welfare of its citizens, improving and maintaining neighborhood conditions, decreasing blight, increasing investments and economic vitality throughout the city. Protecting and preserving housing stock." she said, "is a benefit to stabilization, homeowner and taxpayer investment, and to overall health of city's tax base."

One point of disagreement articulated by Rep. Brooks was that his information on how the bill would affect the state's CLG program differed completely from what he heard from testimony.

According the the Wisconsin State Journal, Brooks said after the hearing that they would take input from the hearing and "go back to the drawing board."  

Bill in WI Legislature Would Strip Local Historic Preservation Ordinances

Historic district - Greendale (federal greenbelt town)

A bill (AB-568), currently in the legislature’s Committee on Housing and Real Estate, would strip the power of Wisconsin towns to protect their own historic places by making compliance with local historic preservation ordinances optional for property owners.  Local preservation ordinances often include some protections for historic properties through a town’s power of zoning, as opposed to the National Register of Historic Places program at the federal level, which provides no protection. Municipal zoning powers that include preservation laws have been affirmed by several decisions of the US Supreme Court.

The bill adds an “owner consent” provision to state law. Under the bill, Wisconsin municipalities may not designate a property as a historic landmark without the consent of the owner. Also under this bill, Wisconsin municipalities may not require or prohibit any action by an owner of a property related to preservation of the historic or aesthetic value of the property without the consent of the owner. Property owners would have to opt in to the regulatory provisions of local ordinances, and owners of already-designated properties would be able to ignore adopted standards designed to maintain the historic character of these properties. It would affect owners of individually designated properties as well as those in historic districts.

Commercial building - Kenosha

The bill’s impact on Wisconsin’s Certified Local Government program, authorized by the National Historic Preservation Act, is being evaluated. The CLG program brings federal money to Wisconsin towns to survey, identify and nominate properties to the National Register of Historic Places, which makes them eligible for state and federal Historic Tax Credit programs to encourage private investment.

The practical impact of the “owner consent” provision would be that Wisconsin towns and cities would not be able enforce their local preservation ordinances. Standards designed to maintain the character of historic properties and districts would be unenforceable. Municipal planning staff would find themselves working to delist historic places, take down historical markers, and rewrite their preservation ordinances. Tourism brochures and websites would need to be revised as historic places drop off the lists. Wisconsin’s heritage sites and buildings would no longer have regulatory protections.

Well-regulated historic landmarks and districts have advantages to Wisconsin towns and cities. They tend to have more stable, and often higher, property values, they contribute to a community’s character and identity, and in many towns they are a key attraction for heritage tourism.  If property owners in Wisconsin’s local historic districts are able to opt out of local zoning regulation, the benefits of those districts would dissolve as owners opted out. The character of historic districts would be subject to passing, individual tastes, rather than a cohesive set of standards. Demolitions of historic buildings would likely increase statewide as owners opt to ignore inconvenient local regulation.

Jules Iverson Park - Stevens Point

The provisions in this bill threaten the foundational purpose of historic preservation ordinances in Wisconsin communities like Cedarburg, Stevens Point, Mineral Point, Sister Bay, and Superior.  They undermine the ability of Wisconsin communities to identify those places that are important to them, and to protect their integrity for future generations. Historic places in Wisconsin – their condition and their very existence - would be subject to the mercy of passing owners, no matter how brief their stewardship.