West Virginia is rich with historic properties of significant architectural and cultural value. Unfortunately, despite the intrinsic value of these properties, owners are sometimes unable to maintain them, leaving many neglected and dilapidated. Given the importance of historic properties, regulations exist to help protect them, and incentives are available to help fund their restoration. This Section discusses regulations and incentives for historic properties.
The National Historic Preservation Act1
Under the National Historic Preservation Act, the federal government provides technical and financial assistance and administers regulations to protect prehistoric and historic resources. One of the primary laws regulating historic properties is Section 106 of the National Historic Preservation Act. Under Section 106, federal agencies consider the effects of their projects on historic resources and must provide opportunities for public input. Section 106 applies when a federal agency “undertaking” could affect historic properties. Federal undertakings include 1) federally owned or federally controlled properties; 2) federally funded projects, including grants and loans; and 3) federally licensed and federally permitted projects.
Historic properties are properties that are listed in the National Register of Historic Places or that meet the criteria for the National Register. The criteria generally require that the property be significant, of a certain age, and have integrity.2
Old buildings are more resilient than we think. Constructed with durability and longevity in mind, the materials were better quality, and the craftsmanship often unparalleled. The building itself reminds us of our shared past and the forces that shaped our communities. Wholesale demolition of old, historic buildings has the potential to create more community instability than investing the funds to address a leaking roof or a broken window. Luckily, we have the tools to help rehabilitate these historic structures before they are lost.
-Sandra Scaffidi, President, Preservation Alliance of West Virginia
Criteria for Listing in the National Register of Historic Places
The National Register of Historic Places is the nation’s official list of properties recognized for architecture, archeology, engineering, and culture, making them worthy of preservation. 3
Significance: historical, architectural, archaeological, engineering, or cultural value.
Age: typically over 50 years old, or enough to be considered significant.
Integrity: the property still generally looks the way it did during its period of significance. Considerations include location, design, setting, materials, workmanship, feeling, and association. 4
The property must also meet one of the four following criteria for evaluation:
Criterion A. Property is associated with events that have made a significant contribution to the broad patterns of our history; or
Criterion B. Property is associated with the lives of significant persons in our past; or
Criterion C. Property embodies the distinctive characteristics of a type, period, or method of construction, or that represent the work of a master, or that possess high artistic values, or that represent a significant and distinguishable entity whose components may lack individual distinction; or
Criterion D. Property has yielded, or may be likely to yield, information important in history or prehistory. 5
If a federal project has the potential to affect a historic property, the lead federal agency consults with the State Historic Preservation Officer or Tribal Historic Preservation Officer 6 to determine the area of potential effect, identify properties, and make an assessment of adverse effects. Adverse effects could include 1) physical destruction or damage; 2) change in the character of the property’s use, setting, or location; 3) introduction of incompatible visual, atmospheric, or audible elements; 4) neglect and deterioration; and 5) transfer, lease, or sale of a historic property out of federal control without adequate preservation restrictions. If an adverse effect is identified, consultation will continue and may result in a Memorandum of Agreement that describes measures the federal agency will take to avoid, minimize, or mitigate adverse effects. In some cases, adverse effects are unavoidable based on another public interest, and a project may move forward as planned. For a flowchart outlining this process, see http://www.achp.gov/ regsflow.html.
West Virginia State Historic Preservation Office.
Similar to review of historic properties for federal projects, the West Virginia Division of Culture and History reviews impacts to historic properties prior to any undertaking “permitted, funded, licensed or otherwise assisted, in whole or in part, by the state.” 7 Adverse effects on historic properties include 1) “physical destruction, damage, or alteration of all or part of the property”; 2) “isolation of the property from or alteration of the character of the property’s setting when that character contributes to the property’s qualification for the State or National Register”; 3) “introduction of a significant change to visual, audible, or atmospheric elements that are out of character with the property or alter its setting”; 4) “neglect of a property resulting in its deterioration or destruction”; and 5) “transfer, lease, or sale of the property without protective restrictions.” 8 If the relevant state agency and the Division of Culture and History find that there will be an adverse effect on a historic property, they are required to seek ways to avoid or reduce the effects. 9 Similar to the federal process, a Memorandum of Agreement may be developed to describe measures that the agency will take to avoid adverse effects.
Historic Landmark Commission (HLC) Requirement for a Certificate of Appropriateness.
Many communities in West Virginia have created historic landmark commissions. 10 HLCs must hold public meetings to establish local historic landmarks. Prior to designating a property as historic, the commission must develop a report on the historical, cultural, and architectural significance of each proposed building, structure, site, and district based on specific standards. If designated by local ordinance, an HLC may also have the authority to review building design and issue Certificates of Appropriateness for properties designated as historic landmarks. If a property is designated a historic landmark, a Certificate of Appropriateness may be required prior to any alteration of a designated structure or earthwork, including restoration, demolition, and excavation. 11 Working outside the scope of the Certificate of Appropriateness can cost a landowner up to ten percent of the total cost of the project in fines or $500, whichever is greater. In addition, a court is authorized to imprison a violator in the county jail for not more than six months, or issue both a fine and a jail sentence. 12 Over 60 HLCs have been established in West Virginia, although only about four have design review authority. 13
Historic as defined by Historic Landmark Commissions
No building, structure, site or district shall be deemed to be an historic one
unless it has been prominently identified with or best represents, some major
aspect of the cultural, political, economic, military or social history of the
locality, region, state or nation, or has had a major relationship with the life
of an historic personage or event representing some major aspect of, or ideals
related to, the history of the locality, region, state or nation. In the case
of buildings or structures which are to be so designated, they shall embody the
principal or unique features of an architectural type or demonstrate the style
of a period of our history or method of construction, or serve as an illustration
of the work of a master builder, designer or architect whose genius influenced
the period in which he worked or has significance in current times.
-West Virginia Code § 8-26A-6
Communities with zoning ordinances have several requirements related to historic landmarks. First, “preserving historic landmarks, sites, districts and buildings” must be considered when enacting a zoning ordinance. 14 Zoning ordinances may include the designation of historic districts and the design of buildings within the historic district. 15 For example, the City of Charleston has designated historic districts in its zoning ordinance. These historic districts are designated by the City’s Historic Landmark Commission and are smaller in scope than the designation by the National Register district. In Charleston, as with all HLCs, only those areas designated by ordinance are subject to design review. 16 Other HLCs with design review requirements include those in Martinsburg and Lewisburg. 17
As stated above, historic preservation is a mandatory element for all comprehensive plans in West Virginia. The plan must “[i]dentify historical, scenic, archaeological, architectural or similar significant lands or buildings, and specify preservation plans and programs so as not to unnecessarily destroy the past development which may make a viable and affordable contribution in the future.” 18 Communities interested in historic preservation may also create a separate historic preservation plan that is adopted by the local governing body, but this is not required.
Conflict with Historic District and Zoning Regulations
Historic properties and districts within the boundaries of a zoning district are subject to the regulations for both the zoning district and the historic district. If there is a conflict between the requirements of the zoning district and the requirements of the historic district or property, the zoning district requirements apply. 19
Historic Properties and the Building Code
Historic properties are given flexibility in the building code. The provisions of the State Building Code relating to the construction, repair, alteration, restoration, and movement of structures are not mandatory for existing buildings and structures identified and classified by the State Register of Historic Places. 20 However, additions constructed on a historic building must comply with the State Building Code. 21
In addition, provisions of the International Property Maintenance Code are “not mandatory for existing buildings or structures designated as historic buildings when such buildings or structures are judged by the code official to be safe and in the public interest of health, safety and welfare. 22” Note that code enforcement officials are given leeway to define public safety.
Incentives for Historic Properties
20% Federal Tax Credit for the Certified Rehabilitation of Certified Historic Structures. This federal tax credit equals 20% of the amount spent in a certified rehabilitation of a certified historic structure. 23 A certified historic structure is a building listed individually in the National Register of Historic Places or located in a registered historic district and certified by the National Park Service. A certified rehabilitation means that the National Park Service must approve that a rehabilitation is consistent with the historic character of the property and does not damage, destroy, or cover materials or features, whether interior or exterior, that help define the building’s historic character. The NPS assumes some alteration is necessary for modern use of historic structures.
10% State Income Tax credit for Commercial Buildings. This tax credit is intended for commercial buildings with substantial rehabilitation and the expenditure of 1) more than $5,000 or 2) more than the adjusted basis in the building, whichever is greater. 24 Projects are only eligible for the 10% state income tax credit if they are eligible for the 20% federal tax credit.
10% Federal Tax Credit for the Rehabilitation of Non-Historic, Non-Residential Buildings Built Before 1936. 25 To qualify for this tax credit, nonhistoric buildings placed in service before 1936 must be rehabilitated for non-residential use and meet certain criteria that aim to preserve the original structure.
20% state income tax credit for private homeowners for approved rehabilitation work on their own residence. The building must be listed on the National Register of Historic Places either individually or as a building in a historic district that is listed on the National Register of Historic Places. 26
State Development Grants. These are competitive grants for the rehabilitation of properties listed on the National Register of Historic Places, a contributing property in a historic district, or archaeological development of a site listed on the National Register of Historic Places. 27 State development grants as well as the state tax credits are managed by the State Historic Preservation Office.
Survey & Planning Grants. These grants enable architectural and archaeological surveys, National Register nominations, predevelopment plans, heritage education projects, and more. 28
The West Virginia State Historic Preservation Office, Division of Culture and History maintains a list of Historic Preservation Grants including the process, deadlines, and eligibility criteria to receive grants.
- National Historic Preservation Act §106, 16 U.S.C. § 470(f) (2012); see also Advisory Council on Historic Properties, Protecting Historic Properties: A Citizen’s Guide to Section 106 Review (2002), available at http://www.achp.gov/docs/CitizenGuide.pdf.
- 36 C.F.R. § 800.16(l)(1) (2014); see Te-Moak Tribe of Western Shoshone v. United States Dep’t of Interior, 608 F.3d 592, 607–08 (9th Cir. 2010).
- National Register, Bulletin: How to Apply the National Register Criteria for Evaluation (1995), available at http://www.nps.gov/nr/publications/bulletins/pdfs/nrb15.pdf (last visited July 17, 2015).
- Id. at 44.
- Id. at 2.
- 36 C.F.R. § 800.6(a) (2014).
- W. Va. Code Ann. § 29-1-8 (West 2015).
- W. Va. Code R. § 82-2-5(5)(a) (2013).
- Id. § 82-2-5.
- Any municipality by ordinance and any county by order of the county commission entered of record may establish a municipal historic landmarks commission or county historic landmarks commission. W. Va. Code Ann. §§ 8-26A-4 to -5 (West).
- Id. §§ 8-26A-6 to -7.
- Id. § 8-26A-9.
- Interview with Sandra Scaffadi, President, Preserve Alliance of West Virginia, in Morgantown, West Virginia (Jun. 18, 2015).
- W. Va. Code Ann. § 8A-7-2(a)(5) (West 2015).
- Id. § 8A-7-2(b)(3).
- Charleston, W. Va., Zoning Ordinance art. 20-040 (2005).
- Interview with Susan Pierce, Deputy State Historic Preservation Officer, West Virginia Division of Culture and History, in Charleston, West Virginia (Jul. 2, 2015).
- W. Va. Code Ann. § 8A-3-4(c)(13) (West).
- Id. § 8-26A-3.
- “[U]nder the provisions of section eight, article one of this chapter or the National Register of Historic Places, pursuant to 16 U.S.C. §470a.” Id. § 29-3-5b(j).
- W. Va. Code Ann. § 29-3-5b(b), (j) (West). “Prior to renovations regarding the application of the State Building Code, in relation to historical preservation of structures identified as such, the authority having jurisdiction shall consult with the Division of Culture and History, State Historic Preservation Office. The final decision is vested in the State Fire Commission.” Id. § 29-3-5(j). The State Fire Marshal is required to provide compliance alternatives for historic structures under the Building Code.
- Int’l Prop. Maint. Code § 102.6 (2012).
- Tax Reform Act of 1986, P.L. 99-514, 100 Stat. 2085.
- Historic Rehabilitation Tax Credits, W. Va. Div. of Cult. and Hist., available at http://www.wvculture.org/shpo/tccommoverview.html (last visited Aug. 10, 2015).
- Tax Incentives for Preserving Historic Properties, Nat’l Park Serv., http://www.nps.gov/tps/tax-incentives.htm (last visited Aug. 10, 2015).
- Historic Rehabilitation Tax Credit, W. Va. Div. of Cult. and Hist, available at http://www.wvculture.org/shpo/tcresoverview.html (last visited Aug. 10, 2015).
- State Development Grant Program, W. Va. Div. of Cult. and Hist, available at http://www.wvculture.org/shpo/GrantManual/development.html (last visited Aug. 10, 2015).
- Survey and Planning Grant Program, W. Va. Div. of Cult. and Hist, available at http://www.wvculture.org/shpo/GrantManual/Surveyplanning.html (last visited Aug. 10, 2015).