Title of Regulation: 17VAC10-20. Evaluation Criteria and Procedures for Nominations of Property to the National Register or for Designation as a National Historic Landmark (amending 17VAC10-20-130, 17VAC10-20-140, 17VAC10-20-150, 17VAC10-20-200).

Statutory Authority: § 10.1-2202 of the Code of Virginia.

Public Hearing Information: No public hearings are scheduled.

Public Comment Deadline: June 17, 2016.

Agency Contact: Jennifer Pullen, Executive Assistant, Department of Historic Resources, 2801 Kensington Avenue, Richmond, VA 23221, telephone (804) 482-6085, or email jennifer.pullen@dhr.virginia.gov.

Basis: The Department of Historic Resources (DHR) has specific statutory authority under § 58.1-339.2 of the Code of Virginia to promulgate regulations necessary to implement the program. The regulation is mandated in whole by the state statute. The statute provides that the Director of DHR shall establish by regulation the requirements needed for the program, including the process and procedures by which nominations and designations of properties are approved by the State Review Board for forwarding to the National Park Service, which manages both the National Register of Historic Places (NRHP) and the National Historic Landmark (NHL) programs.

Purpose: The subject matter addressed is the owner objection process to properties nominated for designation by the State Review Board for inclusion in the National Register of Historic Places or designation as a National Historic Landmark. The intent of the planned regulatory action is to clarify and detail the process and requirements necessary for formal objection to designation. Amendment and clarification of the existing procedures are necessary to more clearly set out the objection letter requirements for both property owners and DHR staff and what is required for an owner objection to be considered formal and valid. By clarifying and detailing existing language, the amendments will make the objection process and requirements easier to understand for property owners and DHR staff. Making specific the records to be consulted and the timeframe in which the records should be consulted, in addition to creating specific deadlines and attestation requirements, are all intended to prevent confusion or assumptions about the formal objection process and will benefit both property owners and DHR staff. By protecting property interests, the proposed action will benefit the public welfare.

Substance: The proposed amendments to the existing regulations add clarifying language that written notification of the nomination and written notification of the public hearing will be sent to property owners listed, within 90 days prior to the notification, in official land recordation records or tax records. In addition, property owners who wish to object to a designation must submit their formal objection seven business days prior to the board meeting. The proposed amendments also add that in addition to the letter being notarized, the letter must also be attested and must reference the property by address or parcel number.

In current regulations, it is unclear as to what "current real estate tax assessment books" means, so amending it to specifically state the official land recordation records or tax records makes clear what records are to be consulted to determine property ownership within nominated district boundaries. Also, there is no time restriction or deadline for the director to receive the formal objections. Lastly, in current regulations, property owners are not required to state the subject property address or parcel number in a formal objection letter, nor is it required that the letter be attested.

Issues: The primary advantage to the public that is offered by the proposed amendments is a clear timeframe within which private property owners may participate in the NRHP nomination process and to submit comments or objections to the proposed listing, and the changed regulation clearly defines what local government records will be used and when the records will be used for the purpose of identifying property owners within a nominated historic boundary.

The opportunity to object to NRHP listing will not be affected by the proposed amendments.

DHR staff will continue to receive property owner objections to an NRHP listing as required under federal regulations and will continue to process and forward such objections to the National Park Service even if the objections are received after the State Review Board has recommended that the nomination be listed in the NRHP, as the National Park Service has the final authority to approve a nomination for listing in the NRHP. The proposed amendments offer no disadvantage to DHR or the Commonwealth.

The proposed amendments offer advantages to local governments and to nomination authors by clearly explaining the types of local government records that will be consulted to identify property owners within a nominated historic boundary, the timeframe within which the records are to be consulted, and a deadline of at least seven business days prior to a joint board meeting for DHR staff to notify local governments and nomination authors of any property owner objections. The proposed amendments offer no disadvantage to local governments or to nomination authors.

Department of Planning and Budget's Economic Impact Analysis:

Summary of the Proposed Amendments to Regulation. The proposed changes will clarify the owner objection process when an owner's real property is nominated to be included in the National Register of Historic Places.

Result of Analysis. The benefits likely exceed the costs for all proposed changes.

Estimated Economic Impact. This regulation establishes the owner objection process when an owner's real property is nominated to be included in the National Register of Historic Places, which is the official list of structures, sites, objects, and districts that has historical and cultural significance for the nation. The National Register is a part of a national program to coordinate and support public and private efforts to identify, evaluate, and protect America's historic and archeological resources. Participation is voluntary and registration itself does not limit the owner's rights in any way. However, owners of registered properties may donate historic preservation easements, participate in federal historic rehabilitation tax credit programs, or accept grants which may place certain restrictions on alterations or demolitions.

In most cases, owners nominate their own properties. However, in cases where there are multiple owners or a property is located in a district nominated to be listed in the register, an owner has a right to object according to the procedures set out in this regulation. The proposed changes merely clarify the objection process.  Specifically, the Department of Historic Resources (DHR) proposes to 1) clarify that the ownership information be obtained from official land records or tax records for public hearing notifications sent to owners; 2) require that formal letters of objection be submitted at least seven days prior to the State Review Board meeting; and 3) require owners to state the subject property address or parcel number in a formal objection letter and require that the letter be attested.

The proposed changes are expected to improve the clarity of the formal objection process requirements to prevent any confusion by the property owners and the staff and are not expected to create any significant economic effects.

Businesses and Entities Affected. The proposed regulation applies to property owners who may wish to object to the nomination of their property for listing in the National Register. Between September 2014 and December 2015, DHR received 58 nominations to either the Virginia Landmarks Register or the National Register, sent out 1673 notifications to the property owners, and received 6 objection letters. Separate statistics for the National Register alone is not available at this time.

Localities Particularly Affected. The proposed changes apply throughout the Commonwealth.

Projected Impact on Employment. The proposed amendments are unlikely to affect employment.

Effects on the Use and Value of Private Property. No impact on the use and value of private property is expected.

Real Estate Development Costs. No impact on real estate development costs is expected.

Small Businesses:

Definition. Pursuant to § 2.2-4007.04 of the Code of Virginia, small business is defined as "a business entity, including its affiliates, that (i) is independently owned and operated and (ii) employs fewer than 500 full-time employees or has gross annual sales of less than $6 million."

Costs and Other Effects. The proposed regulation will not affect small businesses unless a property a small business owns is nominated for listing in the National Register, in which case the effects would be the same as discussed above.

Alternative Method that Minimizes Adverse Impact. No adverse impact on small businesses is expected.

Adverse Impacts:

Businesses. The proposed regulation will not adversely affect non-small businesses.

Localities. The proposed regulation will not adversely affect localities.

Other Entities. The proposed regulation will not adversely affect other entities.

Agency's Response to Economic Impact Analysis: The agency concurs with the economic impact analysis submitted by the Department of Planning and Budget.

Summary:

The proposed amendments address the process of owner objection to designation of properties by the State Review Board for inclusion in the National Register of Historic Places or designation as a National Historic Landmark. The proposed amendments (i) clarify that written notification of the nomination and written notification of the public hearing will be sent to property owners listed within 90 days prior to the notification in official land recordation records or tax records; (ii) require property owners to submit their formal objections seven business days prior to the board meeting; (iii) require that the objection letter, in addition to being notarized, be attested and reference the property by address or parcel number, or both; and (iv) require that an objecting party who was not listed on the official land recordation records or tax records submit a copy of the recorded deed evidencing transfer of ownership with the attested and notarized statement to be counted by the director as a property owner.

Part IV
Public Notice and Public Hearings

17VAC10-20-130. Written notice of proposed nominations.

In any county, city, or town where the director proposes to nominate property to the National Park Service for inclusion in the National Register of Historic Places or for designation as a National Historic Landmark, the department shall give written notice of the proposal to the governing body and to the owner, owners, or the owner's agent of (i) property proposed to be nominated as a historic landmark building, structure, object, or site, or to be included in a historic district, and to the owners, or their agents, of (ii) all abutting property and property immediately across the street or road or across any railroad or waterway less than 300 feet wide. The list of such owners shall be obtained from either the official land recordation records or tax records, whichever is more appropriate, within 90 days prior to the notification of the proposal. The department shall send this written notice at least 30 but not more than 75 days before the State Review Board meeting at which the nomination will be considered.

17VAC10-20-140. Public hearing for historic district; notice of hearing.

A. Prior to the nomination of a historic district, the department shall hold a public hearing at the seat of government of the county, city, or town in which the proposed historic district is located or within the proposed historic district. The public hearing shall be for the purpose of supplying additional information to the director. The time and place of such hearing shall be determined in consultation with a duly authorized representative of the local governing body, and shall be scheduled at a time and place that will reasonably allow for the attendance of the affected property owners.

B. The department shall publish notice of the public hearing once a week for two successive weeks in a newspaper published or having general circulation in the county, city, or town. Such notice shall specify the time and place of the public hearing at which persons affected may appear and present their views, not less than six days or more than 21 days after the second publication of the notice in such newspaper.

C. In addition to publishing the notice, the department shall give written notice of the public hearing at least five days before such hearing to the owner, owners, or the owner's agent of (i) each parcel of real property to be included in the proposed historic district, and to the owners, or their agents, of (ii) all abutting property, and property immediately across the street or road, or across any railroad or waterway less than 300 feet wide pursuant to 17VAC10-20-130. Notice required to be given to owners by this section may be given concurrently with the notice required to be given to the owners by 17VAC10-20-130. A complete copy of the nomination report and a map of the historic district showing the boundaries shall be sent to the local jurisdiction for public inspection at the time of notice. The notice shall include a synopsis of why the district is significant.

D. The department shall make and maintain an appropriate record of all public hearings held pursuant to this section.

17VAC10-20-150. Mailings and affidavits; concurrent state and federal notice.

The department shall send the required notices by first class mail to the last known address of each person entitled to notice, as shown on the current real estate tax assessment books pursuant to 17VAC10-20-130. A representative of the department shall make an affidavit that the required mailings have been made. In the case where property is also proposed for inclusion in the Virginia Landmarks Register pursuant to designation by the Virginia Board of Historic Resources, the department may provide concurrent notice of the proposed state designation and the proposed nomination to the National Register.

17VAC10-20-200. Owner objections.

A. Upon receiving the notification required by 17VAC10-20-130, the owners of property proposed for nomination shall have the opportunity to concur in or object to the nomination.

B. Any owner or owners of a private property who wish to object shall submit to the director a written, attested, and notarized statement certifying of objection. The statement of objection shall (i) reference the subject property by address or parcel number, or both; (ii) certify that the objecting party is the sole or partial owner of the private property, as appropriate,; and (iii) certify that the objecting party objects to the listing. The statement of objection must be received by the director at least seven business days prior to the meeting of the State Review Board at which the property is considered for nomination

C. If an owner objecting party whose name did not appear on the current real estate tax assessment list official land recordation records or tax records used by the director pursuant to 17VAC10-20-150 certifies in a written, attested, and notarized statement that the party is the sole or partial owner of a nominated private property, such owner shall be counted by the director in determining whether a majority of the owners has objected. The statement of objection must be received by the director at least seven business days prior to the meeting of the State Review Board at which the property is considered for nomination.

D. If (i) the owner of a private property, or (ii) the majority of the owners of a single private property with multiple owners, or (iii) the majority of the owners in a district, have has objected to the nomination prior to the submittal of a nomination, the director shall submit the nomination to the keeper only for a determination of eligibility for the National Register. In accordance with the National Historic Preservation Act, the keeper shall determine whether the property meets the National Register criteria for evaluation, but shall not add the property to the National Register.

E. Each owner of private property in a district has one vote regardless of how many properties or what part of one property that party owns and regardless of whether the property contributes to the significance of the district.