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Scenario #1 – During preparation for demolition of an industrial building, the owner discovers the property is listed on the National Register of Historic Places.

Scenario #2 – In response to a permit application to demolish a single-family home converted to a commercial use, the owner is informed the home is a contributing structure in a designated historic district.

Scenario #3 – As part of the permitting process for remodeling an existing building, the owner is informed the property is located in a historic district and is subject to certain design review criteria and limitations.

Scenario #4 – Nearby neighbors object to an application to demolish a single-family home and request a historic designation of the property against the wishes of the property owner.
The right to own and use real property free from undue governmental restrictions is a fundamental right in the United States and in Colorado. All of the scenarios above, however, involve limitations on a person’s right to freely use their real property in the manner they see fit based on a Federal, State or local government agency’s determination that the property is “historic”.

How could this happen?

Most people have a fairly well-defined idea of what they consider to be a historic building. The perceived historic significance of a building is typically based on the age of the structure, and how it “looks”. However, determining whether a property is historic is not always as simple as viewing the property and its environs. Also, some types of historic designations are not listed in the local real property records, and therefore are not easily found. Finally, hostile designation of a structure as historic by non-owners is quickly becoming a tool of development foes in at least one local jurisdiction to thwart or slow down development and redevelopment.

The result is that some property owners find out the hard way that their property is indeed “historic” with limitations on whether it can be demolished or what improvements can be made to the property. Even more concerning, some property owners are required to take legal action to fend off a hostile historic designation application by non-owners.

What Can I Do?

There are several ways to improve your due diligence efforts before purchasing a property, in order to determine potential “historic” limitations on the property. In addition to reviewing the record title documents for the property, review the local jurisdiction’s applicable planning and zoning documents, and the zoning file for the particular property. Also, the U.S. Department of the Interior and the Colorado Office of Archaeology & Historic Preservation maintain records of properties in Colorado that are listed on the National and State Registers of Historic Places.

Finally, if you own a property that is not currently designated as a historic property or located in a historic district, and you anticipate renovating or demolishing the structure or selling the property within the next five (5) years, consider prospectively applying for a designation of non-historic status for the property to ward off a hostile designation.

Taking these steps before you decide to purchase, remodel, scrape and rebuild, or sell your property for redevelopment will help you answer the question, “My property isn’t historic … is it?” before the answer becomes a problem. If you have any questions regarding this article or need assistance with a historic property or any other land use, development or construction matters, feel free to contact Michelle Berger at 303-333-9810 or mberger@fostergraham.com.