Title of Regulation: 17VAC5-30. Evaluation Criteria and Procedures for Designations by the Board of Historic Resources (amending 17VAC5-30-100, 17VAC5-30-110, 17VAC5-30-120, 17VAC5-30-160).

Statutory Authority: § 10.1-2205 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, FAX (804) 367-2391, or email jennifer.pullen@dhr.virginia.gov.

Basis: The Board of Historic Resources has authority to promulgate regulations necessary to carry out its powers and duties, including at a minimum criteria and procedures for the designation of historic landmarks, including buildings, structures, districts, objects, and sites under § 10.1-2205 of the Code of Virginia.

Purpose: The subject matter addressed is the owner objection process to properties nominated for historic district designation by the Board of Historic Resources for inclusion in the Virginia Landmarks Register (VLR). The intent of the proposed amendments is to clarify and detail the process and requirements necessary for formal objection. Amendment and clarification of the existing procedures are necessary to more clearly set out the objection letter requirements for both property owners and the Department of Historic Resources (DHR) staff and set out what is required for an owner objection to be considered formal and valid. By clarifying and detailing existing language, the proposed 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 they should be consulted in addition to creating specific deadlines and attestation requirements as well as requiring proof of ownership on the part of objecting owners are 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 amendments to the existing regulations clarify language that written notification of the nomination and written notification of the public hearing will be sent to property owners listed, within 90 days of 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 amendments also add that in addition to the letter being notarized, it must also be attested and reference the property by address or parcel number. Also, in order to be counted by the director as a property owner, if the objecting party was not listed on the official land recordation records or tax records within 90 days of notification, then a copy of the recorded deed evidencing transfer of ownership must be submitted along with the written, attested, and notarized statement. Lastly, formal designations may be reconsidered at a subsequent board meeting if the director receives, at least 30 days prior to the next scheduled board meeting, written, attested, and notarized statements stating that there is no longer an objection. In current regulations, it is unclear as to what "current real estate tax assessment books" really means so amending it to specifically state the official land recordation records or tax records makes certain what records are to be consulted to determine property ownership within nominated district boundaries. Also, currently there is no time restriction or deadline on the director receiving formal letters of objection to a property being considered for designation on the VLR. Also, 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. Current regulations do not require that a copy of the recorded deed evidencing ownership transferred to the objecting party be submitted along with the objection letter. Lastly, in current regulations, there is no time restriction or deadline for the director to receive letters for reconsideration.

Issues: The primary advantage to the public that is offered by the proposed regulation is a clear timeframe within which private property owners may participate in the VLR nomination process and to submit comments or objections to the proposed listing, and the proposed regulation clearly defines what local government records will be used and when for the purpose of identifying property owners within a nominated historic boundary. The primary disadvantage to the public is that the proposed regulation introduces a new requirement to provide a copy of a recorded deed showing evidence of a transfer of property if the transfer occurred after the date that then-current local government records were used to gather property owner information.

Under the current regulation, such a situation does not require a property owner to provide a copy of a recorded deed with their written objection. Under the proposed regulation, to object to VLR listing, a property owner must provide written notice no less than seven business days prior to a meeting of the Board of Historic Resources, but the property owner will retain a minimum of 30 days from notice of a proposed nomination to the deadline to object. The primary advantage to DHR and the Commonwealth is that DHR staff will have a clear definition of the local government records to be consulted for a proposed nomination, the timeframe within which they may be consulted, the timeframe within which property owner objections to VLR listings will be received prior to a joint board meeting, and a minimum of seven business days within which to process and verify the property owner's objection. Under the current regulation, property owner objections to a VLR listing may be received up to the day of a joint board meeting, leaving no opportunity for DHR staff to process the objection and keep Board of Historic Resources members informed of property owner objections. The proposed regulation offers no disadvantage to DHR or the Commonwealth. The proposed regulation offers 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 them of any property owner objections. The proposed regulation offers 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 Virginia Landmarks Register.

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

Estimated Economic Impact. This regulation establishes the owner objection process when the owner's real property is nominated to be included in the Virginia Landmarks Register, which is the state's official list of properties important to Virginia's history. The purpose of the registration is to recognize the historic value of a property and encourage present and future owners to continue to exercise good stewardship. 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 state 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 primarily clarify the objection process.  Specifically, the Board of Historic Resources (Board) proposes to 1) require that a copy of the recorded deed evidencing transferred ownership to the objecting party be submitted along with the objection letter when official land records or tax records do not reflect the accurate ownership information; 2) require owners to state the subject property address or parcel number in a formal objection letter and require that the letter be attested; 3) require that formal letters of objection be submitted at least seven days prior to the Board meeting and require that letters for reconsideration be submitted at least 30 days prior the Board meeting; and 4) clarify that the ownership information be obtained from official land records or tax records for public hearing notifications sent to owners.

While requiring a copy of a recorded deed may introduce a nominal cost on the owners whose ownership is not yet reflected in the official land records or tax records, this requirement will be relevant only when a transfer of ownership occurred between the time the Board obtained ownership information and sent notices to the owners. The number of such cases is expected to be very small.¹ On the other hand, this change will ensure that the new owner of the property is notified and afforded a chance to object. Remaining 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 Virginia Landmarks Register. Between September 2014 and December 2015, the Department of Historic Resources 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 Virginia Landmarks 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 they own is nominated for listing in the Virginia Landmarks 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.

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¹ There were only 6 objections between September 2014 and December 2015 to the nominations for either the Virginia Landmarks Register or the National Register. Thus, the chance of one of them being a new owner is relatively small.

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 Board of Historic Resources for inclusion in the Virginia Landmarks Register. The proposed amendments (i) clarify that written notification of the proposed designation 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, must be attested and reference the property by address or parcel number, or both; (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 in determining whether a majority of the owners object; and (v) provide that formal designations may be reconsidered at a subsequent board meeting if the director receives, at least 30 days prior to the next scheduled board meeting, written, attested, and notarized statements stating that there is no longer an objection.

Part IV
Public Notice and Public Hearings

17VAC5-30-100. Written notice of proposed nominations.

In any county, city, or town where the board proposes to designate property for inclusion in the Virginia Landmarks Register, the department shall give written notice of the proposal to the governing body and to the owner, owners, or the owner's agent (i) of property proposed to be designated as a historic landmark building, structure, object, or site, or to be included in a historic district, and to the owners, or their agents, (ii) of 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.

17VAC5-30-110. Public hearing for historic district; notice of hearing.

A. Prior to the designation by the board 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 board. 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 17VAC5-30-100. 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 17VAC5-30-100. 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.

17VAC5-30-120. 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 17VAC5-30-100. 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 National Register of Historic Places pursuant to nomination by the director, the department may provide concurrent notice of and hold a single public hearing on the proposed state designation and the proposed nomination to the National Register.

17VAC5-30-160. Owner objections.

A. Upon receiving the notification required by 17VAC5-30-100, any owner or owners of property proposed for designation by the board shall have the opportunity to concur in or object to that designation.

B. Property owners who wish to object to designation 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 property, as appropriate,; and (iii) certify that the objecting party objects to the designation. The statement of objection must be received by the director at least seven business days prior to the meeting of the board at which the property is considered for designation.

If an owner C. An 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 17VAC5-30-120 certifies in a must submit with the written, attested, and notarized statement that of objection an attested and notarized copy of the party is the sole or partial owner of a nominated property, such owner recorded deed evidencing transfer of ownership to such objecting party. Only upon such submission shall such objecting owner 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 board at which the property is considered for designation.

D. The board shall take no formal action to designate the property or district for inclusion in the Virginia Landmarks Register if (i) the owner of a property, or (ii) the majority of owners of a single property with multiple owners, or (iii) a majority of the owners in a district, have has objected to the designation. These objections must be received prior to the meeting of the board at which the property is considered for designation.

E. Where formal designation at a board meeting has been prevented by owner objection, the board may reconsider the property for designation at a subsequent board meeting upon presentation to the director, at least 30 days prior to the next scheduled meeting of the board, of written, attested, and notarized statements sufficient to indicate that the owner or majority of owners no longer object objects to the designation. In the case of a proposed reconsideration, the notification procedures set out in Part IV (17VAC5-30-100 et seq.) of this chapter shall apply.

F. Each owner of 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.