What’s Historic Preservation Got to Do With Environmental Law?

Posted on December 7, 2015 by John A. McKinney Jr

To answer the question posed above - in New Jersey, plenty!  Under several New Jersey environmental statutes regulating, inter alia, development, the least that can happen if historic preservation issues are overlooked is a delay of the project.  The worst is a criminal indictment of the developer and/or its consultants.

Regulations implementing the Coastal Area Facility Review Act (N.J.S.A. 13:19-1 et seq.), the Waterfront Development Law (N.J.S.A. 12:5-3), the Wetlands Act of 1970 (N.J.S.A. 13:19-1 et seq.)  and the Freshwater Wetlands Protection Act (N.J.S.A. 58:10A-1 et seq.) in effect require a historic preservation analysis in order to obtain approvals.  Using as an example the Freshwater Wetlands Protection Act Rules, (N.J.A.C. 7:7A-4.3(b)5), an applicant must first determine if the property to be developed and the surrounding properties that may be adversely affected are listed on the New Jersey or the National Register of Historic Places listed or are eligible for listing.  “Adversely affected” can be as little as compromising the view from a neighboring property.

            Anyone can look at the registers of historic places to see if a property is listed.  More often, properties are not so listed.  But an analysis cannot stop there, since an applicant must determine if the property is “eligible for listing”.  That often takes an analysis, not by an environmental engineer, but by a “cultural resources consultant” working with the developer’s counsel.  Determining if a property is eligible for listing is more of an art than an engineering analysis, as illustrated by the following highly subjective criteria for evaluation which are set forth in rules implementing the New Jersey Register of Historic Places Act (N.J.A.C. 7:4-2.3(a)(1)):

Criteria for Evaluation:  The quality of significance in American history, architecture, archeology, engineering, and culture is present in districts, sites, buildings, structures, and objects that possess integrity of location, design, setting, materials, workmanship, feeling, and association, and:

(Criterion A) That are associated with events that have made a significant contribution to the broad patterns of our history; or

(Criterion B) That are associated with the lives of significant persons in our past; or

(Criterion C) That embody 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) That have yielded, or may be likely to yield, information important in history or prehistory.

As you can see from reading the criteria above, concluding that a property is or is not eligible for listing is a whole lot harder than determining if it is within a specific distance from the middle of a stream or from the edge of a wetland.  However, failure to make the determination correctly can result in significant delays and penalties. 

The upshot?  Before the applicant can obtain the necessary state approval, the applicant must demonstrate that an unlisted property is or is not eligible for listing.  That in itself can be a resource intensive effort. If it is eligible, the lawyer’s and cultural resource consultant’s real work is just beginning.  Describing that work and the legal issues arising from it may be the subject for a future blog post.