STATE AND FEDERAL HISTORIC BUILDING PRESERVATION LAWS

This memorandum discusses state and federal statutes that may be applicable to the historic preservation of buildings and requirements that govern the preservation and demolition of such structures.

STATE HISTORIC PRESERVATION LAWS

North Dakota Century Code (NDCC) Section 55-02-07, included in Chapter 55-02 which governs the superintendent of the State Historical Board, provides that any historical site that is found or located upon any land owned by the state or its political subdivisions and which is, in the opinion of the superintendent, significant in understanding and interpreting the history of the state, may not be destroyed, defaced, altered, removed, or otherwise disposed of in any manner without the approval of the State Historical Board. This section requires the superintendent's opinion of significance be communicated to the appropriate governing official of the historic site. The State Historical Board, acting through the superintendent, must, within 60 days of written notification to it by the appropriate governing official of the state's or political subdivision's desire, need, or intent to destroy, alter, remove, or otherwise dispose of the significant site, provide that governing official written direction for the care, protection, excavation, storage, destruction, or other disposition of the significant site. This section provides further that it is the responsibility of the state and its political subdivisions to cooperate with the State Historical Board in identifying and implementing any reasonable alternative to destruction or alteration of any historical site significant in understanding and interpreting the history of the state before the State Historical Board may approve the demolition or alteration of the site.

North Dakota Century Code Chapter 55-09 governs the preservation of historical sites and antiquities in North Dakota. Section 55-10-01 sets out the policy of the state that it is in the public interest to provide for the preservation of historic sites, buildings, structures, and antiquities of state and national significance for the inspiration, use, and benefit of the people of the state. As used in this chapter, state historic sites are land or water areas containing historic or archaeological value or areas designated by the State Historical Society of North Dakota as sites possessing historical value of state or national significance.

North Dakota Century Code Section 55-10-08 outlines the duties of the state and political subdivisions concerning state historic sites. This section provides that the state, its departments and agencies, as well as political subdivisions are notified of the existence of state historic sites on land and water areas in North Dakota listed in the state historic sites registry. The state historic sites registry is a listing of sites designated by the State Historical Board as state historic sites according to written criteria established by the board. It should be noted that the list is broader or more encompassing than merely those sites listed in NDCC Sections 55-10-03, 55-10-04, 55-10-05, and 55-10-06. A list of sites on the state historic sites registry is attached as an appendix.

The State Historical Board has developed an extensive series of criteria for listing properties in the state historic sites registry. These criteria are contained in North Dakota Administrative Code Section 40-02-01-03, which provides that the State Historical Board shall consider historic and prehistoric sites, structures, buildings, objects, neighborhoods, networks, and cultural landscapes eligible for inclusion in the registry if it can be demonstrated:

1. They have been associated with and illustrate, recall, or characterize one or more of the following:
   1. Individuals;
   2. Groups;
   3. Events;
   4. Processes;
   5. Institutions;
   6. Movements;
   7. Lifeways;
   8. Folkways;
   9. Ideals;
   10. Beliefs; or
   11. Other patterns or phenomena
   that had a significant influence on or are important reflections of the prehistoric or historic development or identity of the state, or of a region, community, or cultural group within the state, or
2. They are distinctive or they distinctively illustrate one or more of the following:
   1. Architectural styles;
   2. Building types;
   3. Types or methods of construction;
   4. Vernacular, popular, or traditional building design;
   5. Landscape architecture;
   6. Urban design or planning;
   7. Works of significant architects, designers, builders, or planners;
   8. Monumental sculpture; or
   9. Industrial, technological or engineering design, or other architectural, aesthetic, or engineering expressions
   that characterize, are unique to, possess special artistic or aesthetic values for, or had an important influence on the historic or prehistoric community, or cultural group for which they were created, or
3. They contain information about or evidence of one or more of the following historic or prehistoric:
   1. Events;
   2. Processes;
   3. Institutions;
   4. Design;
   5. Construction;
   6. Settlement;
   7. Migration;
   8. Ideals;
   9. Beliefs;
   10. Lifeways; or
   11. Folkways, or other facets of development and cultural systems
   that are known or established likely to be important to professional or public knowledge or understanding of earlier cultures or cultural systems or of the development of the state or of regions or communities within the state, and
4. They possess integrity of form, material, and setting, generally retaining those historic characteristics such as:
   1. Physical features;
   2. Evidence of workmanship;
   3. Fabric;
   4. Locations; and
   5. Surroundings
   that convey, support, represent, or contain values and qualities for which they are judged significant.

North Dakota Century Code Section 55-10-08 provides further that neither the state nor any of its political subdivisions may demolish or cause to alter the physical features or historic character of any site listed in the state historic site registry without first obtaining the prior approval of the superintendent of the State Historical Board upon authorization of the State Historical Board. This section provides that it is the responsibility of the state or political subdivision to cooperate with the State Historical Board in identifying and implementing any reasonable alternative to demolition or alteration of any state historic site before the board approves the demolition or alteration.

The State Historical Board has adopted rules governing the removal of properties from the state historic sites registry and alteration or demolition of properties listed on the registry. North Dakota Administrative Code Section 40-02-01-10 governs the alteration or demolition of registry properties and provides that the state or political subdivision must notify the superintendent of the State Historical Society and obtain the superintendent's written approval for any action that would result in the alteration or demolition of a registry property. The superintendent of the State Historical Society is required to notify the board of any proposed demolition of registry property. The superintendent is required to schedule a board review of the proposed demolition at any regular meeting of the board but not later than 150 days after the superintendent's receipt of notification of the proposed demolition. The superintendent then is required to notify the governmental body proposing demolition of the date, time, and place of the board review and to initiate any studies, inspections, meetings, or negotiations with that governmental body in order to identify and implement a reasonable alternative to demolition of the property.

FEDERAL HISTORIC PRESERVATION LAWS

The federal National Historic Preservation Act is codified at 16 U.S.C. § 470 et seq. The national register of historic places is the official list of the nation's cultural resources worthy of preservation. The national register of historic places is authorized in the National Historic Preservation Act of 1966 and is part of a national program to coordinate and support public and private efforts to identify, evaluate, and protect the historic and archaeological resources of the nation. The national register is administered by the National Park Service under the Secretary of the Interior. Properties listed in the national register include districts, sites, buildings, structures, and objects that are significant in American history, architecture, archaeology, engineering, and culture. The national register includes all historic areas in the national park system; national historic landmarks that have been designated by the Secretary of the Interior for their significance; and properties significant to the nation, state, or community that have been nominated by the states, federal agencies, and others and have been approved by the National Park Service.

Properties may be nominated by federal preservation officers, local governments, individuals, and states. State nominations are submitted to the National Park Service by state historic preservation officers. During the time the proposed nomination is reviewed by the state historic preservation officer, property owners and local authorities are notified. All property owners are given the opportunity to comment on the nomination and owners of private property are given an opportunity to concur in or object to the nomination. If the owner of any privately owned property or the majority of owners of the properties within the district in the case of a historic district object to the inclusion or designation, the property may not be included on the national register or designated as a historic landmark until the objection is withdrawn. If a majority of owners do not object, a state historic preservation officer may approve the nomination and forward it to the National Park Service to be considered for listing. If the nomination is approved by the National Park Service, the property is officially entered in the national register.

Although not addressed in the federal statutes, representatives of the State Historical Society of North Dakota indicated that even though a building is placed on the national register of historic places, if it loses it historical significance or is damaged it may be delisted for purposes of demolition.

CONCLUSION

The issue of whether the State Historical Society may prohibit the demolition of a state-owned building that the Legislative Assembly or a state agency intends to demolish depends upon whether the building, in the opinion of the superintendent of the State Historical Society, is significant in understanding and interpreting the history of the state or has been placed on the state historic sites registry. If it is determined that the building is significant, the procedure outlined in North Dakota Century Code Section 55-02-07 must be followed. If the building has been placed on the state historic sites registry, the procedure outlined in NDCC Chapter 55-10 must be followed. Although it appears that under its statutory authority the State Historical Society may prohibit the demolition of a state-owned building, the society is a creature of the Legislative Assembly. As such, the Legislative Assembly could order the demolition of a state-owned building by enacting appropriate legislation. Similarly, we are not aware of any constitutional or statutory provision that would obligate the Legislative Assembly to provide funds to preserve and maintain a building it desired demolished.

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