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:
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.
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.