Historic preservation laws and zoning requirements usually operate as two overlapping layers: your base zoning sets density, setbacks, height, and permitted uses, while a historic overlay or landmark designation adds a second set of rules governing the exterior appearance of the building. If your property carries a local historic designation or sits inside a local historic district, you generally need government approval, called a Certificate of Appropriateness, before altering anything visible from the outside. Federal designation on the National Register is largely honorific for private owners, and it only restricts your project if federal money or a federal permit is involved.
Which Designation You Have Determines What You Can Do
Properties can be recognized at the federal level, the local level, or both, and the practical consequences differ sharply.
The National Register of Historic Places, maintained by the National Park Service, is essentially a list of recognition. Federal regulation states explicitly that listing private property on the National Register “does not prohibit under Federal law or regulation any actions which may otherwise be taken by the property owner with respect to the property.”1eCFR. 36 CFR Part 60 – National Register of Historic Places If you own a National Register property and your renovation uses only private funds with no federal permits, the listing alone imposes no restrictions. It matters mainly in two situations: when federal money or licensing enters the picture, which triggers Section 106 review under 54 U.S.C. § 306108,2Office of the Law Revision Counsel. 54 USC 306108 – Effect of Undertaking on Historic Property and when you want to claim the federal rehabilitation tax credit.
Local designation is where the regulatory weight sits. A locally designated “landmark” is typically a single building. A local historic district covers an entire neighborhood. Inside a district, properties are classified as either contributing or noncontributing. A contributing property retains enough original character to reflect the era the district is meant to preserve. A noncontributing property has been significantly altered, is too new, or otherwise doesn’t align with the district’s historical theme. Both categories are usually subject to design review for exterior changes, though some commissions apply a lighter standard to noncontributing structures.
Local authority to regulate private property this way comes from state enabling legislation that delegates power to municipalities. Courts have consistently upheld these ordinances as a valid use of police power. The U.S. Supreme Court sided with New York City’s landmarks law in Penn Central Transportation Co. v. New York City (1978), holding that restrictions on the development of Grand Central Terminal did not constitute a taking of property.3Justia US Supreme Court. Penn Central Transportation Co. v. New York City, 438 US 104 (1978)
One practical point for buyers: many states include historic district status on their standard property disclosure forms. Ask directly before closing, because the restrictions follow the property, not the previous owner.
How the Overlay Stacks on Top of Base Zoning
Most cities impose preservation rules through an overlay district layered on top of the existing base zoning. Your property keeps its underlying classification, whether that’s single-family residential, commercial, mixed-use, or something else. The base zoning controls density, setbacks, building height, and permitted uses. The historic overlay adds a separate set of requirements focused on exterior appearance, materials, and architectural compatibility.
The practical consequence: you answer to two different sections of the municipal code for every project. If your base zoning allows a two-story addition but the historic overlay limits new construction to match the scale of the original structure, the more restrictive standard wins. Check both layers before planning any work.
When You Need a Certificate of Appropriateness
A Certificate of Appropriateness is the permit required before making exterior changes to a locally designated landmark or a property inside a local historic district. Scope varies by jurisdiction, but it generally covers any alteration to the visible exterior: replacing windows, changing siding material, adding a porch, modifying the roofline, installing fencing, or demolishing part of the structure.
Routine maintenance that doesn’t change the design, materials, or appearance of the building is typically exempt. Repainting in the same color, replacing broken glass, cleaning with mild solutions, and patching existing materials with matching replacements usually don’t require commission approval. The line between exempt maintenance and a regulated alteration is narrower than most owners expect. Replacing historic wood windows with vinyl, sandblasting masonry, or painting a surface that was historically unpainted almost always crosses into permit territory.
Interior work that doesn’t affect the exterior is generally exempt, as are changes to the surrounding landscape unless the landscaping was specifically included in the designation. When in doubt, call the local preservation office before starting. Performing exterior work without the certificate can result in stop-work orders, daily fines, and in some jurisdictions a requirement to restore the property to its pre-violation condition at the owner’s expense.
How the Approval Process Works
Applications go through the local planning department or preservation commission. A typical submission requires photographs of every elevation of the building and close-ups of the area where work is planned, along with drawings or site plans showing the proposed change in context. If new materials are involved, expect to submit samples or specifications identifying the type of masonry, wood species, roofing material, or paint color you intend to use. Commissions care intensely about material choices, because a historically inappropriate substitute like aluminum siding over original clapboard can undermine the visual character the district exists to protect.
Filing fees vary. Some jurisdictions charge nominal amounts for minor residential projects; commercial or large-scale applications can run several hundred dollars. Many commissions require multiple hard copies or upload to a municipal filing system so board members can review before the hearing.
The Public Hearing and Design Standards
Once the application is complete, the commission schedules a public hearing. The commission typically posts notice and may publish it in a local newspaper beforehand. The applicant presents the proposed work to a board that usually includes architects, historians, and community representatives, and neighbors often have the chance to comment.
Commissions evaluate proposals against adopted design guidelines, most of which draw from the Secretary of the Interior’s Standards for Rehabilitation, a set of ten principles published by the National Park Service. Among the most consequential: historic character should be retained rather than removed; deteriorated features should be repaired rather than replaced; where replacement is necessary, new features should match the old in design, color, texture, and visible qualities; and new additions should be compatible with the existing structure but clearly differentiated from it, so the building doesn’t create a false impression of its history.4National Park Service. The Secretary of the Interior’s Standards for Rehabilitation
If the commission finds the proposal compatible, it issues the certificate. The process commonly takes 30 to 60 days, though complex proposals may need multiple rounds of revision. Receiving the Certificate of Appropriateness is a prerequisite for obtaining a standard building permit.
Federal Tax Credits for Rehabilitation
The most significant financial incentive is the federal rehabilitation tax credit under 26 U.S.C. § 47. It equals 20% of qualified rehabilitation expenditures for certified historic structures, allocated evenly over a five-year period starting in the tax year the rehabilitated building is placed in service.5Office of the Law Revision Counsel. 26 USC 47 – Rehabilitation Credit A “certified historic structure” is a building listed in the National Register or located in a registered historic district and certified by the Secretary of the Interior as being historically significant to that district.
To claim the credit, the rehabilitation must be “substantial.” Qualified expenditures during a 24-month measuring period must exceed either the adjusted basis of the building and its structural components or $5,000, whichever is greater. If the project is phased according to architectural plans completed before work begins, a 60-month measuring period is available instead.6Internal Revenue Service. Rehabilitation Credit (Historic Preservation) FAQs The work must also follow the Secretary of the Interior’s Standards, and the National Park Service reviews and certifies the project through a three-part application.
Five-Year Recapture
Owners who take the credit and then sell the property or change its use within five years face recapture, meaning they owe some or all of the credit back. The recapture rate starts at 100% if the property leaves qualifying use within the first year and drops by 20 percentage points for each full year the property is held: 80% after one year, 60% after two, 40% after three, 20% after four. Once five full years have passed, there is no recapture.7Internal Revenue Service. Rehabilitation Credit Recapture Recapture is also triggered if a partner’s interest in a partnership is reduced by more than one-third during the recapture period, a detail that catches investors in syndicated tax credit deals off guard.
Many states offer their own incentives for historic rehabilitation, including property tax freezes, income tax credits, and abatement programs that can run five to ten years or more. Check with your state historic preservation office before starting a project.
Hardship Relief and the Limits on Letting a Building Decay
When preservation restrictions genuinely prevent a property from earning any reasonable return, most ordinances provide an economic hardship exception. The legal threshold is deliberately high: in most jurisdictions, the standard mirrors the constitutional test for a regulatory taking. An owner typically must demonstrate that denial of a permit has deprived the property of all reasonable economic use, not merely that the preservation rules made a project less profitable than hoped.
Applying for hardship relief requires substantial documentation. Commissions commonly ask for recent property tax assessments, purchase price and date, annual income and expense records for income-producing properties, independent appraisals, evidence that the property was listed for sale or lease at a reasonable price, and an analysis of whether profitable adaptive reuse is feasible. A vague claim that compliance is expensive, without financial proof, will not clear the bar. Some jurisdictions apply a lower hardship threshold for low-income owners.
Letting a building deteriorate until demolition becomes the only option is not a workaround. Preservation law calls this “demolition by neglect,” and most ordinances impose an affirmative duty on owners to maintain designated properties against decay. Enforcement can include daily fines, criminal penalties, city-initiated repairs charged back to the owner as a lien, court orders requiring restoration, and in extreme cases acquisition through eminent domain. The more sophisticated ordinances also prevent an owner from claiming economic hardship based on deterioration the owner caused or allowed.
Accessibility Still Applies
Historic properties are not exempt from the Americans with Disabilities Act. The National Park Service frames the goal as providing the highest level of accessibility possible without threatening or destroying the materials and features that make the property historically significant.8National Park Service. Preservation Brief 32: Making Historic Properties Accessible
Where specific accessibility modifications would threaten a property’s significance, the owner consults with the State Historic Preservation Officer to determine whether alternative compliance methods are available. Alternatives might include audio-visual programs showing inaccessible areas, tactile models of building features, or interpretive displays at accessible locations. Under Title III of the ADA, owners of public accommodations such as restaurants, theaters, and retail shops in historic buildings must make “readily achievable” accessibility changes, defined as modifications that can be accomplished without much difficulty or expense. This is an ongoing obligation, not a one-time assessment. When modifications are made, the NPS recommends new features be compatible with the historic property, clearly differentiated from the original design, and reversible where possible.
If Your Application Is Denied
Most jurisdictions provide a formal appeals process. In some places the appeal goes to a local board of adjustment before reaching a court; in others it goes directly to the courts. Filing deadlines are typically 30 to 60 days from the date of the commission’s written decision, and missing that window usually forfeits the right to appeal.
Courts reviewing preservation commission decisions apply a deferential standard, asking whether the commission acted within its authority and whether the decision was supported by the evidence. This is not a second chance to make your case from scratch. Build a thorough record at the commission hearing itself: submit detailed evidence, make clear arguments, and make sure the commission’s reasoning gets into the minutes.
Owners who argue that a commission’s decision amounts to an unconstitutional taking face long odds. Courts applying the Penn Central framework weigh the economic impact of the regulation, the extent to which the restriction interferes with the owner’s reasonable investment-backed expectations, and the character of the government action.3Justia US Supreme Court. Penn Central Transportation Co. v. New York City, 438 US 104 (1978) Courts have generally been reluctant to find a taking where the owner retains some economically viable use of the property. The economic hardship exception exists in part to resolve those cases administratively before they ever reach a courtroom.