Is Your Property Historic? You Might Not Think So, But Always Check!

In a state like New Jersey, land in urban or developed areas is often at a premium, and developers will need to be mindful of whether the property has any historical significance. In addition to the standard approvals required from local planning or zoning boards, one approval that is commonly overlooked is that of the local historic preservation office or commission. These entities are authorized under the Municipal Land Use Law, N.J.S.A. 40:55D-107 et seq., and are now common in municipalities large and small throughout New Jersey. Where a formal commission exists, applications for development are to be referred to the historic preservation commission for review whenever applications involve property in historic districts or on historic sites identified by the official map or master plan. In other municipalities, there may be an application and approval process separate from the typical land development board. Some are required as part of completeness obligations for applications for development, where others are a separate process from the typical application for development.

One active historic preservation commission has been the City of Newark’s Landmarks and Historic Preservation Commission (the “Commission”). This article provides a brief primer on when Commission approval is required, and what developers can expect during the application and approval process in the City of Newark (“the City”). Newark continues to be a prime location targeted for development in the State, and the role of the Commission is a significant and scarcely discussed aspect of the land development process.

The Commission’s two main responsibilities under Chapter 10 of the City’s zoning and land use regulations are the designation of historic sites and districts within the City and the regulation of alterations of historic sites or properties within historic districts. Any applications to the Central Planning Board or Zoning Board of Adjustment for development in historic districts or on historic sites are required to be made available to the Commission. The Commission may then provide advice on the application either through oral testimony or a written report, which will include recommendations on the application.

The Commission’s scope goes beyond only land development applications, as most development work on a designated historic site or within a designated historic district requires Commission review. Commission approval and the issuance of a permit by the Administrative Officer is required for the following: (1) changes to the exterior of a site if visible from a public street; (2) additions to a site if visible from a public street; (3) relocation of a historic site within a district; (4) demolition of a historic site within a district; (5) new construction on a historic site within a district; (6) change of use of a historic site or within a district if such change effects the exterior appearance; and (7) work within the root zone of a Historic Tree without preservation methods.

The Commission requires a completed application as well as the submission of additional materials, which include site and architectural plans, photos of the property, and material samples of both the current and proposed replacement materials. Once an application is deemed complete, the applicant may request a hearing on the application, and the Commission shall render a decision on the application within 45 days from when it was deemed complete. An approved application may be accompanied by conditions of approval. The approval, codified by the issuance of a permit, is valid for a period of one year. This approval is independent of any planning or zoning board approvals, as this permit is required for any of the above-mentioned actions that require Commission review. In other words, a project may not require site plan approval from the Central Planning Board but could still require the issuance of a permit from the Commission.

The Commission uses the Secretary of the Interior’s Standards for Rehabilitation and Guidelines for Rehabilitating Historic Buildings, 36 C.F.R. § 67.1 to .11, as a guide in its decision-making process. There are distinct standards for protection, stabilization, new construction, relocation, and demolition. If an application is denied by the Commission, the applicant may appeal the decision to the Zoning Board of Adjustment.

As demonstrated in this article, undertaking development within a historic district or on a historic site may be accompanied by unique regulatory hurdles. Although Newark’s Commission is just one example, developers will need to be mindful of similar bodies throughout the State. Gibbons attorneys have extensive experience assisting developers, builders, and tenants with various types of land development projects in Newark, and have provided guidance on historic preservation issues both in Newark and throughout the State. Please reach out to an attorney in the Gibbons Real Property Department if you are seeking counsel on historic preservation issues related to development.

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