Preservation law, Santa Fe

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Title:
Preservation law, Santa Fe
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Cangelosi, Robert
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Robert Cangelosi
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Gainesville, FL
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AFA HP document 713

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University of Florida
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University of Florida
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Full Text
PRESERVATION LAW
SANTA FE
u^WIt Cor-)qcj0o

State laws:
Historic District Act (1961)
Cultural Properties Act (1969)

Historic District Act
this act recognizes that the historical heritage of the
state is among the states most valued and important assets
establishes historic districts enabling legislation by
means of zoning; the purpose of which is to control and
enhance historic areas.
to date only three municipalities have adopted an ordinance
incorporating historic districts,Santa Fe being the oldest


Cultural Properties Act
-establishes a professional review committee composed of
seven members, the state archeoligist, state historian and
five professionals from the fields of history, anthropology,
architecture, or art. No more than two members may be from
the same field.
-the powers and duties of the committee are outlined;
*the primary function of the committee is to review pro-
posals for the preservation of cultural properties, to
identify, protect and preserve the cultural heritage of
the state.
*to keep a state register
*to maintain proper documentation of the cultural heritage
*to inspect,to insure that the integrity is maintained
can delete a property from the register
*issues permits for archeological excavations
*can advise private and government agencies or individuals
on preservation matters
*can give emergency classification, pending investigation
for the duration of one year
-defines the responsibilities of the New Mexico Museum and
the state planning office
*to administer, develop and maintain state owned register
properties is the responsibility of the museum as well
as being a depository for collections. The museum can also
acquire property by means of condemnation i4 all other
means fail
-provides tax exemptions to those owners of register private
property who undertake restoration and preservation approved
by the review committee, and make their properties available
for educational use -"tax ememption is for local city, county
and school property taxes assessed against the property where
the registed cultural property is located shall be reduced





by the amount expended for the restoration, preservation and
maintenance each year, and amounts expended in a given year
may be carried forward to as many as ten subsequent years for
application to property taxes."
deals with vandalism
creates the office of state historian and state archeoligist


Santa Fe "H" Historical District Regulations
-to promote the economy, and the cultural and general welfare
-to insure harmonious, orderly and efficient growth and dev-
elopment
-defines two architectural styles, the old Santa Fe style
and the recent Santa Fe style
-creates a historical style committee which is a sub-com-
mittee of the planning commission comprised of five members
they are to hold meetings once every two weeks
-the designation of "H" affords protection and restrictions
for a district, site,building, street,and area.
a permit for alteration is needed for any property with
a "H" designation, this permit is issued by the styles
committee
provision is made for the conversion of a street to a mall
with t1e recommendation of the planning commission and the
concent of 3/4 of the joining property owners


Litigation
CITY OF SANTA FE VS GAMBLE-SKOGMO, INC.

Incomplying with the regulation the entrepreneur decided to
to install a plate glass window with lattice work, simulating
smaller windows. Before the restoration was complete he removed
the dividers and was convicted of violation of the city ordinance.
He appealed his case to the New Mexico Supreme Court, arguing
that Santa Fe could not adopt the ordinance without state enabling
legislation and that the style committee demand that no window
have an area larger than 30 in was an unconstitutional aesthic
zoning requirement. The court observed that there is no clear
definition of the term "general welfare" and ascerted that
historic preservation was in the interest of the publics
general welfare. Citing the above reasoning the court held that
a municipal ordinance controlling historic structures was an
legitimate public purpose.The court contended that despite
specific state legislation, the city could rely on its police
power to zone.Dealing with the specific requirement of window
panes the court ruled that this was a valid requirement, since
the windows were merely one component of the historic architecture
The court did however limit its ruling to the historic old Santa Fe
Il-s note worthy that state enabling legislation had been passed
between the time of the problem and the appellate opinion,
probably influencing the courts decision.







APPENDIX A

EXISTING LEGISLATION

STATE LAWS
New Mexico's historic preservation program is based upon two pieces of
legislation known as the Cultural Properties Act and the Historic District Act.
In 1969, the first session of the twenty-ninth legislature passed the Cultural
Properties Act; it was approved by Governor Cargo in April of that year. This
act establishes a professional review committee, creates an official state regis-
ter of historic buildings, sites, districts, and objects, and defines the responsi-
bilities of the Museum of New Mexico and the State Planning Office in con-
nection with the administration of the act. It provides for tax exemptions to
those owners of registered private properties who undertake restoration and
preservation approved by the review committee, and who make their proper-
ties available for educational use. It deals with the problems of vandalism, and
suggests some remedies.
An earlier piece of legislation, the Historic District Act, dates from 1961. It
empowers counties and municipalities to create historic zones, and to expend
public funds for preservation. In 1965 this act was incorporated into the
state's municipal code.

HISTORIC ZONING ORDINANCES
At the present time, only three of New Mexico's municipalities have
adopted historic zoning ordinances. Santa Fe's is the oldest, dating from
October, 1957, with an addition in 1959. The city of Albuquerque passed its
H-Zoning ordinance in October, 1965. It remains in force without revision.
The latest historic zoning code is that of the town of Mesilla, which was
passed by the town council in September, 1970.

CULTURAL PROPERTIES ACT
Laws of 1969
CHAPTER 223
SENATE BILL NO. 173; Approved April 3, 1969
AN ACT
RELATING TO THE HISTORIC AND CULTURAL RESOURCES OF NEW MEXICO; PRO-
VIDING FOR THEIR PRESERVATION; CREATING A REVIEW COMMITTEE; PROVIDING
FOR CERTAIN POWERS AND DUTIES; CREATING THE OFFICES OF STATE HISTORIAN
AND STATE ARCHEOLOGIST; ALLOWING A TAX EXEMPTION; REPEALING SECTIONS
4-27-1 THROUGH 4-27-3 AND 7-13-2 THROUGH 7-13-7 NMSA 1953 (BEING LAWS 1967,






158


CHAPTER 7, SECTIONS 1 THROUGH 3 AND LAWS 1931, CHAPTER 42, SECTIONS 1
THROUGH 6); AND IMPOSING A PENALTY.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
Section 1. SHORT TITLE.-This act may be cited as the "Cultural Properties Act".
Section 2. PURPOSE OF ACT.-The legislature hereby declares that the historical and cultural
heritage of the state is one of the state's most valued and important assets; that the public has an
interest in the preservation of all antiquities, historic and prehistoric ruins, sites, structures,
objects and similar places and things for their scientific and historical information and value; that
the neglect, desecration and destruction of historical and cultural sites, structures, places and
objects results in antreplaceable loss to the public; and that therefore it is the purpose of the
cultural properties act to provide for the preservation, protection and enhancement of structures,
sites and objects of historical significance within the state, in a manner conforming with, but not
limited by, the provisions of the National Historic Preservation Act of 1966 (P. L. 89-665).
Section 3. DEFINITIONS.-As used in the Cultural Properties Act:
A. "committee" means the cultural properties review committee;
B. "cultural property" means a structure, place, site or object having historic, archeological,
scientific, architectural, or other cultural significance;
C. "registered cultural property" means a cultural property which has been placed on the
official register on either a permanent or temporary basis by the committee; and
D. "official register" means the New Mexico register of cultural properties maintained by
the committee for the purpose of recording cultural properties deemed worthy of preservation.
Section 4. COMMITTEE CREATED-MEMBERSHIP-COMPENSATION-VOTING-TERM-
CHAIRMAN-MEETINGS.-
A. There is created a "cultural properties review committee" which consists of seven mem-
bers as follows:
1. the state archeologist;
2. the state historian; and
3. five other professional persons appointed by the governor.
The appointed members must be persons professionally recognized in the fields of history,
anthropology, architecture or art, but no more than two members shall be appointed from any
one of those fields. Each appointed member shall have achieved recognition for accomplishment
in his field in the American southwest, and each shall have specialized knowledge of New Mexico.
B. Any member of the committee shall be reimbursed for necessary expenses in the dis-
charge of his official duties in accordance with the rates set by the Per Diem and Mileage Act.
Any committee member who receives a salary from state funds shall not be entitled to per diem
and mileage for service on the committee unless the service is away from the town in which his
duty station is located, and in that case he shall receive per diem and mileage allowance at the
rate set for salaried state employees. Committee members shall receive no other compensation,
perquisite or allowance for committee service, but this does not mean that committee members
who receive a salary from state funds shall not continue to draw such salary while discharging
committee duties.
C. A simple majority shall constitute a quorum. A member of the committee shall abstain
from voting or his vote shall be disqualified on any matter in which he has a pecuniary interest.
D. Appointed members shall serve terms of four years, except that two of the originally
appointed members shall be appointed for two-year terms. Members shall be appointed without
regard to partisan political affiliation, and any member may be reappointed to the committee.
E. A chairman shall be elected from the membership to serve for one year, subject to
reelection.
F. The committee shall meet at least once each quarter.






159


Section 5. COMMITTEE-POWERS AND DUTIES.-The primary function of the committee
is to review proposals for the preservation of cultural properties. The committee is authorized to
take such actions as are reasonable and consistent with law to identify cultural properties and to
advise on the protection and preservation of those properties. Among such actions as may be
necessary and proper to the fulfillment of these responsibilities, and without being limited
hereby, the committee:
A. shall determine what constitutes historical, archeological, scientific, architectural and
other cultural significance for the purpose of identifying cultural properties as used in the
Cultural Properties Act;
B. shall prepare and keep up to date a New Mexico register of cultural properties. This
official register shall be composed of properties identified by the committee has having historical
or other cultural significance and integrity, being suitable for preservation and having educational
significance;
C. shall prepare and maintain proper documentation of the historic or other significance of
cultural properties. The committee is granted access to all state and local public documents that
may be necessary for such documentation, and such state and local agencies as have custody of
such documents are authorized to allow the committee to examine and reproduce those docu-
ments useful for such documentation;
D. shall inspect all registered cultural properties at least once each year to assure proper
cultural or historical integrity and proper maintenance. The inspection may be made by an
authorized representative of the committee. For the purposes of inspection, the committee or its
representative shall have authority to enter upon the premises where the registered cultural
property is located, provided that the inspection is made at a reasonable time;
E. shall, based upon the inspection of a registered cultural property, specify such repairs,
maintenance and other measures as must be taken to correct nonconforming practices;
F. shall issue regulations pertaining to the preservation and maintenance of registered cul-
tural properties in order tq maintain the integrity of those properties;
G. may delete from the official register any registered cultural property whose owner does
not comply with the committee's regulations or follow its specifications of repair and mainte-
nance, or which upon presentation of further evidence does not merit continued official registry;
H. may recommend to the museum of New Mexico and other administrators of registered
cultural properties measures for the restoration and preservation of such properties;
I. may encourage and render technical advice to private owners of registered cultural prop-
erties in order that such properties may be preserved;
J. may encourage and provide technical assistance to municipalities and counties in
acquiring, preserving and developing cultural properties within their jurisdictions;
K. shall cooperate with federal, state, local and private agencies and persons engaged in the
administration, development or other work relating to cultural properties within the state;
L. shall pursue all activities in a manner consistent with federal laws and regulations;
M. may encourage and promote public appreciation of New Mexico's historical and cultural
heritage by:
1. reviewing for accuracy the proposed publication of information on cultural properties;
and
2. reviewing the accuracy and adequacy of proposed marking of cultural properties;
N. may utilize the assistance of individuals, local organizations, state agencies and others
interested in the identification and preservation of cultural properties;
O. may issue, with the concurrence of the state archeologist, permits for the excavation of
sites and the collection or removal of objects of antiquity or general scientific interest, where
such sites or objects are located on state lands, to institutions which the committee may deem to









be properly qualified to conduct such examination, excavation or collection, subject to such rules
and regulations as the committee may prescribe; provided that the examinations, excavations and
collections are undertaken by reputable museums, universities, colleges or other historical, scien-
tific or educational institutions or societies approved by the committee, with a view toward
disseminating knowledge about cultural properties; and, provided that a summary report of such
investigation, containing relevant maps, documents, drawings and photographs be submitted to
the committee which shall in turn submit the report to the appropriate agency or make other
appropriate disposition of the report; and, provided further, that all specimens so collected by
nonresident institutions shall be the property of New Mexico, and that prior arrangements be
made for the disposition of specimens derived from such investigations in an appropriate institu-
tion of the state or for loan of such specimens to qualified institutions in or out of the state; and
P. shall make an annual report on its activities to the governor and the legislature. The
report may contain recommendations for the more effective preservation of New Mexico's his-
toric and cultural heritage.
Section 6. MUSEUM OF NEW MEXICO-POWERS AND DUTIES RELATING TO THE CUL-
TURAL PROPERTIES ACT.-
A. The museum of New Mexico is responsible for administering, developing and main-
taining all registered cultural properties which belong to the state, provided funds are available.
Development and maintenance shall be in accordance with the long-range state plans approved by
the committee.
B. Unless other locations are deemed more appropriate because of the nature of the prop-
erty involved, the museum of New Mexico shall be the depository for all collections made under
the provisions of the Cultural Properties Act, and shall, subject to approval by the committee,
make available material from such collections to museums in and out of the state on the request
of the governing bodies of those museums when, in the opinion of thejnuseum of New Mexico,
such use is appropriate and when arrangements are made for the safe custodianship and public
exhibition of such material in accordance with museum of New Mexico regulations.
C. The museum of New Mexico may seek and accept gifts, donations and grants, subject to
the provisions of Subsection B of Section 7 of the Cultural Properties Act, to be used to acquire,
preserve or restore registered cultural properties.
D. The museum of New Mexico may acquire by gift, purchase or, if no other means of
acquisition is available, condemnation, any cultural property or interest therein sufficient to
preserve such property. Cultural properties so acquired shall be administered by the museum of
New Mexico or other appropriate state agencies in accordance with Subsections A and B of this
section.
E. The museum of New Mexico may enter into agreements with the committee to provide
assistance in carrying out the duties of the committee.
Section 7. STATE PLANNING OFFICE-PLANNING, FISCAL ADMINISTRATION AND
COOPERATION FOR PURPOSES OF THE CULTURAL PROPERTIES ACT.-
A. The state planning office shall, on the basis of review and decisions provided by the
committee, prepare a long-range plan for the preservation of cultural properties, including but
not limited to the acquisition, restoration and protection of historic and cultural properties.
B. The state planning office shall provide staff for the fiscal administration of federal and
other funds, which are received, controlled or disbursed for the purposes of the Cultural Prop-
erties Act, unless such funds are specifically granted or appropriated to another agency.
C. Consistent with the Cultural Properties Act and the State Planning Act, the state plan-
ning office shall cooperate in all matters with the committee and the museum of New Mexico.
Section 8. EXCLUSIVE RIGHT OF THE STATE IN PROPERTIES ON STATE LANDS--
UNAUTHORIZED APPROPRIATION, EXCAVATION, INJURY OR DESTRUCTION OF









RUINS, MONUMENTS OR ARTICLES OF HISTORICAL, ARCHEOLOGICAL OR SCIEN-
TIFIC VALUE-PENALTY.-The state reserves to itself the exclusive right and privilege of field
archeology on sites owned or controlled by the state, its agencies, departments and institutions in
order to protect and preserve archeological and scientific information, matter and objects. Any
person who appropriates, excavates, injures or destroys any historic or prehistoric ruin or monu-
ment, or any object of historical, archeological, architectural or scientific value situated on lands
or in places owned or controlled by the state or its institutions, or any person who causes to be
appropriated, excavated, injured or destroyed any such ruin, monument or object, without a
valid permit issued by the committee pursuant to Subsection O of Section 5 of the Cultural
Properties Act shall be fined not more than five hundred dollars ($500) or be imprisoned for not
more than ninety days, or both, and shall forfeit all articles discovered. It is the duty of any
member of the committee and any peace officer, including sheriffs, to proceed against any
violation of this section, and it is the duty of the district attorneys of the state to prosecute
anyone who violates the provisions of this section. All funds collected as fines under this section
shall be deposited with the state treasurer and earmarked for disbursement to the museum of
New Mexico for the preservation of registered cultural properties.
Section 9. CULTURAL PROPERTIES ON PRIVATE LAND.-
A. It is the declared intent of the legislature that field archeology on privately owned lands
should be discouraged except in accordance with the provisions and spirit of the Cultural Proper-
ties Act; and persons having knowledge of the location of archeological sites are encouraged to
communicate such information to the committee.
B. It shall be deemed an act of trespass and a misdemeanor for any person to remove, injure
or destroy registered cultural properties situated on private lands or controlled by a private owner
without the owner's prior permission. Where the owner of a registered cultural property has
submitted his acceptance in writing to the committee's registration of that cultural property, the
provisions of Section 8 of the Cultural Properties Act shall apply to that registered cultural
property.
C. Where a cultural property is on private land or is otherwise privately owned and the
committee determines that such cultural property is worthy of preservation and inclusion on the
official register, the committee may recommend the procedure best calculated to insure preserva-
tion. Such procedures may include:
1. providing technical assistance to the owner who is willing to restore, preserve and
maintain the cultural property;
2. acquiring the property or an easement or other right therein by gift or purchase;
3. advising the county or municipality within which the cultural property is located on
zoning the property as an historic area or district in accordance with the Historic District Act;
4. advising the county or municipality within which the cultural property is located on
the use of agreements, purchases or the right of eminent domain to obtain control of the cultural
property in accordance with the Historic District Act; and
5. acquiring the property for the state by use of the right of eminent domain.
Section 10. EMERGENCY CLASSIFICATION PENDING INVESTIGATION.-A cultural
property which the committee thinks may be worthy of preservation may be included on the
official register on a temporary basis for not more than one year, during which time the commit-
tee shall investigate the property and make a determination as to whether it may be permanently
placed on the official register. If the cultural property is on private land, the temporary classifica-
tion shall not be considered a taking of private property, but the owner may receive a fair rental
value for the part of the land affected if the temporary classification unduly interferes with the
owner's normal use of the land. The owner shall be immediately notified of the committee's
determination. If at the expiration of one year from the time the temporary classification was









imposed the owner has not been notified of any committee action, the temporary classification
shall lapse, and it shall not be renewed for five years.
Section 11. TAX EXEMPTION.-To encourage the restoration and preservation of cultural
properties which are under private ownership, all cultural properties listed on the official register
with the written consent of the owner and which are available for educational purposes under
conditions approved by the committee and in conformance with the meaning of Article 8,
Section 3 of the constitution of New Mexico shall be exempt from that portion of local city,
county and school property taxes which is offset by a properly documented showing of com-
mittee approved restoration, preservation and maintenance expenses. Local city, county and
school property taxes.assessed against the property where the registered cultural property is
located shall be reduced by the amount expended for restoration, preservation and maintenance
each year, and amounts expended in a given year may be carried forward to as many as ten
subsequent years for application to property taxes; provided, however, that if the registered
cultural property is lawfully removed from the official register, any unabsorbed tax credit ac-
cumulated by the owner shall immediately lapse.
Section 12. STATE HISTORIAN.-The deputy for archives for the state records center is
designated as "state historian".
Section 13. STATE ARCHEOLOGIST.-The curator in charge of the laboratory of anthropol-
ogy of the museum of New Mexico is designated as "state archeologist".
Section 14. REPEAL.-Sections 4-27-1 through 4-27-3 and 7-13-2 through 7-13-7 NMSA
1953 (being Laws 1967, Chapter 7, Sections 1 through 3 and Laws 1931, Chapter 42, Sections 1
through 6) are repealed.
Section 15. SEVERABILITY.-If any part or application of the Cultural Properties Act is held
invalid, the remainder, or its application to other situations or persons, shall not be affected.

ARTICLE 21
HISTORIC DISTRICT ACT
14-21-1. Historic District Act-Short title.-Sections 14-21-1 through 14-21-5 New Mexico
Statutes Annotated, 1953 Compilation, may be cited as the "Historic District Act."
14-21-2. Purpose.-The legislature of the state of New Mexico hereby declares that the his-
torical heritage of this state is among its most valued and important assets, and that it is the
intention of sections 14-21-1 through 14-21-5 New Mexico Statutes Annotated, 1953 Compila-
tion, to empower the counties and municipalities of this state with as full and complete powers
to preserve, protect and enhance the historic areas lying within their respective jurisdictions as it
is possible for this legislature to permit under the Constitution of the United States and of New
Mexico and subject to the specific duties and responsibilities respecting historical matters already
granted or to be granted under other statutes of this state.
14-21-3. Establishment of historic districts by zoning.-Any county or municipality otherwise
empowered by law to adopt and enforce zoning ordinances, rules and regulations is hereby
empowered to create, as part of the building and zoning regulations and restrictions adopted by it
in the manner otherwise provided by law and in accordance with a comprehensive zoning plan, a
zoning district or districts designating certain areas as historical areas, and may, for the purpose
of preserving, protecting and enhancing such historical areas, adopt and enforce the erection,
alteration and destruction of those exterior features of buildings and other structures subject to
public view from any public street, way or other public place.
14-21-4. Historic areas.-Authorization to expend funds, to enter agreements, and where
necessary, exercise power of eminent domain.-Any county or municipality is hereby empowered
to expend public funds for any purposes connected with the preservation, protection or en-









hancement of historical areas, areas related to historical areas or areas otherwise of special
architectural or visual interest, including, but not limited to the purchase of any or all of said
areas and the structures thereon contained, if necessary, through the use of eminent domain in
the manner provided by law for the acquisition of property for a public purpose, which said
acquisition is hereby declared to be:
A. The leasing or acquisition of any other title or interest in the same, by negotiation or, if
necessary, through the use of eminent domain in the manner provided by law, including the
acquisition of easements in and related to such areas which will permit said county or municipal-
ity to control development of the same in a manner consistent with the purposes of sections
14-21-1 through 14-21-5 New Mexico Statutes Annotated, 1953 Compilation;
B, The entering into any reasonable agreement or agreements with private persons to pro-
mote the objectives of this section; or
C. The enactment of appropriate ordinances or resolutions under which said county or
municipality, as the case may be, may be given prior right to acquire any interest in property in
such areas as over any private person offering an equal price for the same interest, or any other
similar measures as may be consistent with the purposes of sections 14-21-1 through 14-21-5 New
Mexico Statutes Annotated, 1953 Compilation.
14-21-5. Historic areas-Construction of this act.-Nothing in sections 14-21-1 through
14-21-5 New Mexico Statutes Annotated, 1953 Compilation, shall be construed to limit any
existing inherent, statutory or other powers under which any county or municipality has enacted
appropriate measures regarding historic areas.

COMPREHENSIVE ZONING ORDINANCE
CITY OF ALBUQUERQUE
SECTION 19. H-1 HISTORIC OLD TOWN ZONE.
A. Purpose: The purpose of this historic district is to preserve and promote the educational,
cultural, and general welfare of the public through the preservation and protection of the tradi-
tional architectural character of the H-1 Historic Old Town Zone.
B. Architectural Styles: The City Commission finds and declares that the Spanish Colonial,
Territorial, or Western Victorian architectural styles of buildings and structures erected prior to
1900 in the area now constituted as the State of New Mexico comprise the traditional architec-
tural character of the H-1 Historic Old Town Zone.
C. Permissive Uses:
1. Uses permissive in the R-2 zone
2. Antique shop
3. Art supply store
4. Arts & crafts school
5. Arts & crafts shop, studio, or gallery
6. Bakery goods shop or confectionery store in which a majority of the products are sold
on the premises at retail including an outside stand for these sales
7. Bar or lounge
8. Beauty shop, barber shop
9. Book or stationery store
10. Church
11. Club or lodge
12. Custom cabinet shop
13. Custom tailor or dressmaker, clothing store
14. Florist shop, including an outside stand for display and sales




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164-165
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a. Expiration. Approval of a request is void after six months from date of approval if the
rights and privileges granted thereby have not been executed or utilized, or if construction work
is involved, the work has not actually been started on the grounds or premises.
The Board may extend the expired approval upon request, and if it does, the request for
extension must be treated as an original application for purposes of notification, hearing, and
evaluation, and the original approval does not in any way obligate the Board to approve the
extension or restrict the Board from imposing different or additional conditions.
b. Violation. Violations of a condition imposed by the Board in approving an application
constitutes a violation of this ordinance and is subject to the same penalties as any other violation
of this ordinance. 4 condition imposed by the Board becomes effective and must be strictly
complied with immediately upon execution or utilization of a portion of the rights and privileges
authorized by approval of an application.
5. Procedures:
a. Meetings and Notices: The Board must fix a reasonable and regular time and place for
meetings, and adopt rules as may be necessary and proper to govern its own proceedings. The
rules must be in conformance with the requirements of this ordinance. All meetings must be open
to the public. The Board must keep minutes of its proceedings, including a record of the vote of
each member on each question, and its minutes are public records. Special meetings may be held
at other than the established time and place.
b. Applications: An application made to the Board must be in writing on forms pre-
scribed by the Board. Each application must be accompanied by information and plans as
required by the Board. Approval of an application by the Board is not to be construed as
approval of a building permit.
c. Notification and Recording: When a request is approved, written notification of the
approval listing conditions imposed, if any, must be sent to the applicant, the Enforcement
Officer, the City Clerk, and any other persons as directed by the Board. In the event special
conditions are imposed in connection with approval of a request, the City Clerk must have notice
of the special exception and any conditions accompanying it recorded in the office of the Ber-
nalillo County Clerk before a building permit may be issued.
d. Appeals: A determination by the Board is final unless written notice of appeal to the
City Commission is filed within 15 days after the determination of the Board. The day of
determination by the Board is not included in the 15 day period for filing of an appeal, and if the
fifteenth day falls on a Saturday, Sunday, or holiday as listed in the Merit System Ordinance, the
next working day shall be considered as the deadline for filing an appeal. A building permit must
not be issued until an appeal is decided or the time for filing an appeal has expired.
The concurring vote of at least four members of the City Commission is required to reverse a
determination by the Board. The following procedure must be complied with in filing an appeal:
(1) Written notice stating the reason for appeal must be filed with the Planning Direc-
tor
(2) A filing fee of $25 must accompany each appeal application.

SANTA FE
"H" HISTORICAL DISTRICT REGULATIONS
ORDINANCE NO. 1957-18
Section 28-43.5. Purpose of Creation
In order to promote the economic, cultural and general welfare of the people of the city and
to insure the harmonious, orderly and efficient growth and development of the municipality, it is









deemed essential by the city council that the qualities relating to the history of Santa Fe, and a
harmonious outward appearance which preserves property values and attracts tourists and resi-
dents alike, be preserved; some of these qualities being: The continued existence and preservation
of historical areas and buildings; continued construction of buildings in the historic styles, and a
general harmony as to style, form, color, proportion, texture and material between buildings of
historic design and those of more modern design.
Section 28-43.6. Styles of Architecture
The city council recognizes that a style of architecture has evolved within the city from the
year 1600 to the present, characterized by construction with adobe bricks, hereafter called "Old
Santa Fe Style", as well as a "Recent Santa Fe Style", which is a development from, and
elaboration of the Old Santa Fe Style with different materials and frequently with added decora-
tion.
a. Old Santa Fe Style
Old Santa Fe Style characterized by construction with adobe bricks, is defined as including the
so-called "Pueblo", or "Pueblo-Spanish" or "Spanish-Indian" and "Territorial" styles and is more
specifically described as follows:
With rare exceptions, buildings are of one story, few have three stories, and the characteristic
effect is that the buildings are long and low. Roofs are flat with a slight slope and surrounded on
at least three sides by a firewall of the same color and material as the walls, or of brick. Roofs are
never carried out beyond the line of the walls except to cover an enclosed portal, or porch,
formed by setting back a portion of the wall, or to form an exterior portal, the outer edge of the
roof being supported by wooden columns. Two story construction is more common in the
Territorial than in other sub-styles, and is preferably accompanied by a balcony at the level of the
floor of the second story. Facades are flat, varied by inset portales, exterior portales, projecting
vigas or roof beams, canales or waterspouts, flanking buttresses and wooden lintels, architraves
and cornices, which as well as doors are frequently carved and the carving may be picked out
with bright colors. Arches are almost never used except for non-functional arches, often slightly
ogive, over gateways in free standing walls.
All exterior walls of a building are painted alike. The colors are those of natural adobe, ranging
from a light earth color to a dark earth color. The exception to this rule is the protected space
under portales or, in church derived designs, inset panels in a wall under the roof, in which case
the roof overhangs the panel. These spaces may be painted white or a contrasting color, or have
mural decorations.
Solid wall space is always greater in any facade than window and door space combined. Single
panes of glass larger than thirty inches square are not permissible except as otherwise provided.
The rule as to flat roofs shall not be construed to prevent the construction of skylights or
installation of air conditioning devices, or other necessary roof structures, but such structures,
other than chimneys, flues, vents and aerials, shall be so placed as to be concealed by the firewall
from the view of anyone standing in the street on which the building fronts.
True Old Santa Fe Style buildings are made of adobe brick with adobe plaster finish. Construc-
tion with masonry blocks, bricks, tile or other materials with which the adobe effect can be
simulated is permissible, provided the exterior walls are not less than eight inches thick, and that
geometrically straight facade lines are avoided. Adobe plaster or hard plaster simulating adobe,
laid on smoothly, is required.
It is characteristic of Old Santa Fe Style commercial and public buildings to place a portal so
that it covers the entire sidewalk, the columns being set at the curb line.
b. Recent Santa Fe Style
The intent of this style is to achieve harmony with historic buildings by retention of a






168


similarity of materials, color, proportion and general detail. The dominating effect is to be that of
adobe construction.
No building shall be over two stories in height in any facade unless the facade shall include
projecting or recessed portales, setbacks or other design elements.
The combined door and window area in any publicly visible facade shall not exceed forty
percent of the total area of the facade except for doors or windows located under a portal.
No door or window in a publicly visible facade shall be located nearer than three feet from the
corner of the facade.
No cantilevers shall be permitted except over projecting vigas, beams or wood corbels, or as
part of the roof treatment described below.
Not less than eighty percent of the surface area of any publicly visible facade shall be adobe
finish, or stucco simulating adobe finish. The balance of the publicly visible facade, except as
above may be of natural stone, wood, brick, tile, terra cotta or other material, subject to approval
as hereinafter provided for building permits.
The publicly visible facade of any building, and of any adjoining walls, shall, except as other-
wise provided, be of one color, which color shall simulate a light earth or dark earth color, matte
or dull finish, and of relatively smooth texture.
Facade surfaces under portales may be of contrasting or complementary colors.'Windows,
doors and portales on publicly visible portions of the building and/or walls shall be of one of the
Old Santa Fe Styles, except that buildings with portales may have large plate glass areas for
windows under portales, only. Deep window recesses are characteristic.
Flat roofs shall have not more than thirty inches overhang.
Section 28-43.7. Requirements, uses, etc., Generally of Area Classified as Historical District; Use
of Suffix "H"
In addition to the regulations, uses and requirements created for the area classified under this
article as "H" District, the territory comprised within the Historical District shall be subject to
those requirements, uses, height and area regulations as were last prescribed by this chapter in
effect at the time of the adoption of this article. For convenience in determining the particular
area to be described, and to which zoning district it belongs, in addition to being classified a
Historical District, the area so classified will be designated for zoning purposes by its then
existing zoning district designation plus the suffix "H".
Section 28-43.8. Historical Style Committee Generally
There shall be established as a standing committee of the city planning commission a "his-
torical style committee", referred to hereafter as the "committee", with such functions and
duties as hereinafter prescribed and to make such recommendations to the planning commission
as may be needed to effectuate the purpose of this article. The, committee shall consist of five
members. The chairman shall be appointed by the chairman of the planning commission. The
committee shall hold a regular meeting at least once every two weeks. Three members of the
committee shall constitute a quorum. In the absence of the chairman, the committee shall elect
an acting chairman for that meeting.
Section 28-43.9. Procedure for Designation
By majority vote, the city planning commission may of its own motion on recommendation of
the historical style committee, or in response to petition, recommend that the city council
designate as "H" Districts, sites, buildings, streets and areas (all hereafter referred to as "H"
Districts) that merit careful preservation, and improvement or alteration only in keeping with
their existing character or to restore their older character. Such "H" Districts will be those of
historical interest or that display the character of Old Santa Fe, or both. "H" Districts so









classified will be designated for zoning purposes by the existing zone designations at the time of
the adoption of this article, plus the suffix "H". The procedure for establishment of an "H"
District, after approval by the planning commission, shall be that prescribed for other amend-
ments of districts after receipt of the city planning commission's report to the City Council, in
Section 28-82 of this Supplement.
Section 28-43.10. Permits for Alterations, Construction, etc.
a. Any proposed alteration of any structure in an "H" District, except as provided under this
heading, below, and including painting any structure a different color, shall require a zoning
permit from the administrative official and a building permit from the building inspector in the
manner provided in this chapter plus the following requirements.
The application shall give such information and be accompanied by such plans, descriptions,
elevations and color samples as may be required to enable the Historical Style Committee to form
an intelligent understanding of the proposed work. No exhibits need to be submitted with a
request for permission to tear down. The building inspector shall notify the committee promptly
of each application received and make it and accompanying exhibits available to the committee.
b. The committee shall act upon the application at its next regular meeting, unless the applica-
tion is made within less than seven days before a regular meeting, in which case the question may
be held over until the next following meeting, and shall report its decision to the City Planning
Commission. If the attached exhibits are inadequate for forming a clear idea of the proposed
alteration or new construction, however, the historical style committee may postpone action
until a date agreed upon between it and the applicant for the submission of adequate exhibits, if
such exhibits have not then been submitted. Recommended approval, disapproval or conditional
approval shall be noted on the face of the application and signed by the chairman of the
committee, or, in his absence, by the acting chairman, and then submitted to the planning
commission for approval. No permit for work within an "H" District may be issued without such
approval of the planning commission endorsed thereon except after appeal as provided in Section
28-43.18.
c. Applications and exhibits shall be kept available for public inspection.
d. No zoning or building permit shall be required for repairs that do not in any way alter the
exterior appearance of a structure, or for repainting it the same color, unless the committee shall
previously have notified the owner in writing that the existing color of his structure is
objectionable, in which case a zoning and building permit must be obtained for any repainting.
e. The historical style committee shall judge any proposed alteration or new structure for
harmony with adjacent buildings, preservation of historical and characteristic qualities and con-
formity to the Old Santa Fe Style. In the case of an application to raze a structure, judgment
shall be made on the basis of its historical importance as an example of Old Santa Fe Style and
actual physical condition of the structure; provided, however, that in the event it is determined
that a particular structure should not be razed or destroyed, the owner shall receive adequate
compensation therefore.
Section 28-43.11. Property Use
The property in an "H" District may be used for any use permitted unFer the zoning district
of which the property in question was a part at the time of the adoption of this article, or as it
may be amended.
Section 28-43.12. Area Regulations
The property in an "H" District shall be subject to the same area regulations of the zoning
district of which the area was a part at the time of the adoption of this article, or as it may be
amended.









Section 28-43.13. Conditional Approval of Application for Alteration or New Construction
The committee may approve an application for alteration or for new construction, on the
condition that changes relating to exterior appearance recommended by it be made in the
proposed work. In such case, no permit shall be issued until new exhibits, satisfactory to the
committee, have been submitted.
Section 28-43.14. Exceptions
The committee may recommend exceptions or waivers for construction or alterations within
"H" Districts; provided, such exceptions do not damage the character of the district, and are
required to prevent a hardship to the applicant or an injury to the public welfare. The recom-
mendation for exception shall be reported to the planning commission and if approved by it, to
the city council. If approved by the city council, the administrative official shall issue a zoning
permit and the building inspector shall issue a building permit therefore.
Section 28-43.15. Advertising Signs and Billboards
(Repealed by implication. See Chapter 3, Santa Fe City Code of 1953, as amended, Part III of
this compilation.)
Section 28-43.16. Nonconforming Structures
Any building in an "H" District not in Old Santa Fe Style, or in the historical style for which
that particular area was so designated, unless given special approval by the historical style com-
mittee for architectural or historic interest, shall be considered nonconforming. Except for re-
pairs and maintenance required by law, no nonconforming building may be added to, or altered
in any way, unless the proposed addition or alteration will bring the whole to a degree of
conformity acceptable to the committee. Structures other than buildings, including signs, not
conforming to the requirements under this heading, or the description of Old Santa Fe Style in
subsection (a) of Section 28-39.7 of this Supplement, shall be considered nonconforming. No
alteration or repair may be made of any such structure other than its removal. No nonconforming
building in an "H" District, which has been damaged by fire, explosion, Act of God, or the public
enemy, to the extent of more than fifty percent of its value, exclusive of basement or cellar, shall
be restored except in conformity with the requirements of this article.
Section 28-43.17. Walk Areas
The planning commission shall recommend to the city council appropriate streets, or portions
of streets, within "H" Districts to be set aside for walk areas. The city council may set aside the
areas recommended, provided that three-fourths of the property owners adjoining the street or
portion of street affected have given consent thereto. Such walk areas shall be closed to vehicular
traffic, and any improvements made by the city in the public right of way within the walk area
shall be for pedestrian purposes. No walk area shall be set aside unless there is adequate space
available, conveniently related to the area, for parking of cars of those who will make use of the
area. The city planning commission's recommendation to the city council shall include a state-
ment of the available parking space.
Section 28-43.18. Appeals
Appeals from the decision of the planning commission may be taken by any person aggrieved,
or by any officer, department, board of bureau of the municipality affected by any decision of
the planning commission in the enforcement of this article, rules or regulations adopted pursuant
to same. Such an appeal when taken shall stay all proceedings in furtherance of the action
appealed, unless the commission from whom the appeal is taken shall certify that by reason of
facts stated in a certificate to be issued by it, a stay would cause imminent peril of life or









property. Appeals from the findings and recommendations of the planning commission on all
matters under this article shall be taken to the city council of the city, and the procedure,
including the requirement of a public hearing, shall be the same as prescribed under Section
28-10 of this Code and by the laws of the state.

AN ORDINANCE FOR THE TOWN OF MESILLA, NEW MEXICO
TO ESTABLISH THE HISTORICAL DISTRICTS, TO DEFINE
SUCH DISTRICTS, AND TO PRESCRIBE REGULATIONS THEREFORE:
WHEREAS, the Board of Trustees of the Town of Mesilla, New Mexico is deeply interested
in the preservation of the culture and traditions of Mesilla and;
WHEREAS, The Board of Trustees acknowledge that the aforementioned, together with the
history of Mesilla, has caused the Plaza of Mesilla to be selected as a state historical monument,
and;
WHEREAS, The Board of Trustees considers it essential to act in accordance with a general
plan which will promote the aforesaid;
THEREFORE, BE IT ORDAINED BY THE BOARD OF TRUSTEES OF THE TOWN OF
MESILLA, NEW MEXICO, THAT:
ARTICLE I-TITLE
This Ordinance shall be known as the MESILLA HISTORICAL DISTRICTS ORDINANCE.
ARTICLE II-HISTORICAL "H" DISTRICTS
In order to regulate and restrict the number of stories, height, size and outward appearance of
buildings and other structures, the percentage of the lot that may be occupied, the size of yards,
courts and other open spaces, the density of population, and the location and use of buildings,
structures and lands for trade, industry, residence or other purposes, the areas bounded by the
following landmarks of the town are designated as "H" Districts:
Point of Beginning Corner Calle de Arroyo and Medanos
South on Calle de Arroyo to Calle de Correo
East on Calle de Correo to Laguna Lateral
North on Laguna Lateral to Baker Road
West on Baker Road to Highway 28
North on Highway 28 to Calle de Medanos
West on Calle de Medanos to Point of Beginning
ARTICLE III-ADDITION OF NEW "H" DISTRICT
The Board of Trustees, acting also as a Historical Style Committee until they designate
one-may approve the expansion of these districts or the addition of other districts as the owners
of these properties to be added so state their desire to be included in the Historical Districts and
agree to accept the regulations of this Ordinance. Once an area is approved Historical, it will
remain so designated.
The Mesilla Planning and Zoning Commission may of its own motion, or on recommendation
of the HSC, or in response to petition, recommend that the Board of Trustees designate as "H"
Districts, sites, buildings, streets, and areas that merit careful preservation, improvement, or
alterations in keeping with their existing character or to restore their older character. Such "H"
Districts will be those of historical interest or that display the character of Mesilla, or both.
"H" Districts so classified will be designated for zoning purposes by the existing zone designa-
tion at the time of the adoption of this Ordinance, plus the suffix "H". The procedure for
establishment of an "H" District, after approval by the Planning and Zoning Commission, shall be
that prescribed for zoning amendments.









94TII CONGRESS
1ST SESSION S




IN THE HOUSE OF REPRESENTATIVES
DECEMBER 9, 1975
Referred to the Committee on Interior and Insular Affairs




AN ACT
To establish the Nantucket Sound Islands Trust in the Common-
wealth of Massachusetts, to declare certain national policies
essential to the preservation and conservation of the lands
and waters in the trust area, and for other purposes.

1 Be it enacted by the Senate and House of Representa-

2 tives of the United States of America in Congress assembled,

3 FINDINGS AND STATEMENTS OF POLICY

4 SECTION 1. The Congress finds and declares-

5 (a) that the Nantucket Sound Islands in the Com-

6 monwealth of Massachusetts, known generally as the

7 Islands of Nantucket, Tuckernuck, Muskeget, Martha's

8 Vineyard, Noman's Land, and the group of islands




2

1 known collectively as the Elizabeth Islands, possess
2 unique natural, scenic, marine, ecological, scientific, cul-
3 tural, historic, and other values and resources;

4 (b) that there is a national interest in preserving,

5 conserving, and enhancing these unique values and

6 resources for the present and future well-being of the
7 Nation and for present and future generations;

8 (c) that in some portions of the Nantucket Sound

9 Islands these unique values and resources are being ir-
10 retrievably damaged and lost through growth pressures

11 leading to ill-planned development, and that such devel-

12 opment threatens heretofore successful local government

13 and private voluntary preservation, conservation, and
14 planning efforts;

15 (d) that the growth pressures resulting in the rapid

16 and ill-planned development in some portions of the

17 islands are partially the result of the use of the island by

18 citizens of many States and regions of the United States;

19 (e) that the present State, regional, and local

20 powers and authorities for controlling land and water

21 uses are inadequate to insure the prudent use of resources

22 and the preservation, conservation, and enhancement of

23 the values and resources of the said islands, and it is in

24 the national interest to establish a new system to assist

25 the Commonwealth of Massachusetts, regional agencies,




3

1 and local governments to preserve and manage the

2 values and resources of the islands;

3 (f) that the key to more effective preservation and
4 conservation of the unique values and resources of the

5 Nantucket Sound Islands is a program encouraging co-

G ordinated action by the Federal and State Governments,

7 acting in trust, to assist local governments (in partner-

8 ship with private individuals, groups, organizations, and

9 associations) to administer sound acquisition and man-

'0 agement policies regulating and guiding development on

11 the Nantucket Sound Islands;

12 (g) that such a new system for the protection and
1.3 management of the values and resources of the islands

14 requires the establishment by the Commonwealth of

15 Massachusetts of local commissions as operational entities

16 to give effect to the trust relationship;

17 (h) that such a program can protect and enhance

is the natural character and cultural and historic heritage

19 of the Nantucket Sound Islands consistently with the

20 maintenance of sound local economies, private property

21 values, and efficient public services, thus preserving and

22 conserving unique values and resources of the islands;

23 and

24 (i) that because expanded access to the said islands

25 would seriously impair their unique values and resources




4

1 and contravene the purposes of this Act, it shall be na-
2 tional policy that no bridge, causeway, tunnel, or other
3 direct vehicular access be constructed from the mainland

4 to the islands.

5 NANTUCKET SOUND ISLANDS TRUST

6 SEC. 2. (a) In order to protect the national interest in
7 the preservation and conservation of the unique natural,

8 scenic, ecological, scientific, cultural, historic, and other
9 values and resources of the Nantucket Sound Islands, there

10 is established in the Commonwealth of Massachusetts the

11 Nantucket Sound Islands Trust (hereinafter referred to as

12 the "trust"), comprising the area described in section 3

13 herein.

14 (b) Pursuant to the said trust relationship, the Secre-

15 tary of the Interior (hereinafter referred to as the "Sec-

16 retary") shall be responsible for the following:

17 (i) approval of the commissions, as established by

18 the Governor of the Commonwealth of Massachusetts

19 (hereinafter referred to as the "Governor") pursuant

20 to section 4 of this Act;

21 (ii) distribution of appropriations under this Act
22 to said commissions for the development of land use

23 control plans and for the costs of the implementation and

24 enforcement of such plans by the commissions;

25 (iii) approval of any land use control plans adopted




5

1 by the respective commissions under this Act, and of any
2 revisions to any such plans to the extent that any such
3 revisions substantially affect the expenditure of funds

4 granted pursuant to section 11 herein or the land classi-

5 fications established pursuant to section 5 herein; and

6 (iv) enforcement of the land use control plans of
7 the commissions and of the policies and guidelines of

8 this Act, including the making of recommendations to

9 the Department of Justice or other appropriate agency

10 that legal proceedings be brought for enforcement of
11 the policies of the Act with respect to any governmental

12 violation of the policies of the Act or of plans and

13 regulations issued pursuant thereto.
14 (c) Pursuant to the trust relationship, and in consid-

15 eration of the funds received in relation thereto, the in-

16 dividual commissions shall be responsible for the following:
17 (i) the development and adoption of land use con-

18 trol plans as authorized and described in section 5 herein;

19 (ii) the administration and implementation of said

20 plans; and

21 (iii) the monitoring of said administration and im-

22 plementation.

23 (d) The administration of the trust relationship by the

24 commissions shall at all times be consistent with the policies

25 of this Act, to wit: to conserve and protect the unique values




6

1 and resources of the trust area in a manner designed to en-
2 courage prudent stewardship of land and water resources

3 while being responsive to the need to maintain sound local

4 economies and efficient public services.

5 (c) The commissions may take such actions, adopt such

6 procedures, and assume such powers as are reasonably neces-

7 sary to carry out this Act including the following:

8 (i) be designated by any State or Federal agency

9 to participate in or receive funds and technical assistance

10 from any State or Federal programs, especially as those

11 programs relate to environmental protection, conserva-

12 tion, land use planning, water and air quality control,

13 economic development, transportation, or the develop-

14 ment of region-wide public services;

15 (ii) receive for the purposes of this Act any funds

16 or moneys from any source, including grants, bequests,

17 gifts, fees, or contributions made by any individuals,

18 association, corporations, or by municipal, county, State,

19 or Federal governments;

20 (iii) authorize debt by a majority vote of the com-

21 mission in anticipation of revenue to an amount not in

22 excess of that to be received during the current fiscal

23 year from all Federal, State, county, and local sources;

24 (iv) transfer moneys from its accounts to the ac-

25 counts of a municipal agency in reimbursement of such






1 costs, where the imposition of a regulation promulgated

2 by a commission imposes costs on a municipal agency;

3 (v) purchase or accept gifts of land or interests in
4 land, or accept grants, bequests, gifts, or contributions

5 for the purpose of acquiring land or interests in land;

6 (vi) sue and be sued; and

7 (vii) assume the duties, powers, and responsibilities

8 given it by action of State, local, or county government:

9 Provided, That they are not inconsistent with the func-

10 tions of the commissions under this Act.

11 SEc. 3. (a) The area comprising the trust shall en-

12 compass the lands and waters in the counties of Dukes and

13 Nantucket in the Commonwealth of Massachusetts.

14 (b) NoMAN's LAND.-The lands and waters of Noman's

15 Land Island are hereby declared part of the National Wild-

16 life Refuge System and the Secretary is directed to prepare

17 and execute forthwith the necessary documentation to give
18 effect to such declaration. The Secretary and the Secretury

19 of Defense shall, within twelve months after the date of

20 enactment of this Act, .survey Noman's Land Island and the

21 surrounding waters for unexplored military ordnance and

22 render such ordnance, wherever it may be found, harmless;

23 and thereafter, Noman's Land Island shall be administered

24 pursuant to the National Wildlife Refuge System Adminis-

25 tration Act (16 U.S.C, 668dd).




8

1 NANTUCKET SOUND ISLAND TRUST COMMISSIONS

2 SEC. 4. (a) Within three months after the date of this
3 Act, the Governor shall establish trust commissions which

4 shall be known collectively as the Nantucket Sound Islands
5 Trust Commissions (hereinafter referred to as the "commis-

6 sions") and individually as the Nantucket Trust Commis-
r sion, the Martha's Vineyard Trust Commission, and the

g Elizabeth Islands Trust Commission. After any commission

9 has been established pursuant to this Act, it shall have the

10 responsibilities specified in this Act for that portion of the

11 trust area assigned to it.

12 (b) NANTUCKET TRUST COMMI[ISSION.-The Nan-

13 ticket .Trust Commission shall have the responsibilities as

14 established herein over 'the lands and waters in Nantucket
15 County, and shall consist of eleven members nominated by

16 the Governor and approved by the Secretary. The members

17 shall serve three-year staggered terms which shall commence

18 on the first Monday in April. Members shall be nominated

19 and approved as follows:

20 (1) one member recommended by the Governor;

21 (2) two members recommended by the board of

22 selectmen of the town of Nantucket, who shall be

23 members of the board of selectmen;

24 (3) two members recommended by the board of

25 selectmen of the town of Nantucket within two weeks




9

1 after the annual town meeting, who shall be seasonal

2 resident property owners;

3 (4) two members who shall be qualified voters of

4 the town and who shall be elected at the annual election

5 which is a part of the annual town meeting; and

6 (5) four members, one each recommended by the

7 Nantucket Planning Board, the Nantucket Conservation

8 Commission, the Nantucket Historic Districts Commis-

9 sion, and the Nantucket Housing Authority, within twp

10 weeks after the annual town meeting, each of whom shall

11 be a qualified voter of said town.
12 (c) MARTHA'S VINEYARD TRUST COMAMISSION.-The

13 Martha's Vineyard Trust Commission shall have the respon-
14 sibilities as established herein over the lands and waters in

15 Dukes County, excepting the Elizabeth Islands, and shall

16 consist of twenty-one members nominated by the Governor

17 and approved by the Secretary, twelve of whom shall be

18 appointed and nine elected. The members shall serve two-
19 year staggered terms which shall commence on January 1

2C of each year. Members shall be nominated and/or elected

21 as follows:
22 (1) one member recommended by the Govenor;

23 (2) one member recommended by the board of

24 selectmen of each town on Martha's Vineyard, who may

S. 67-2




10

1 be a selectman, a member of a planning board, or of any
2 other municipal agency, board, department, or office of
3 that town;

4 (3) one member recommended by the Dukes Coun-

5 ty commissioners, who may be a Dukes County commis-

6 sioner;

7 (4) nine members elected at large in an islandwide

8 election, with not less than one member nor more than
9 two members to be elected from any one town on

10 Martha's Vineyard; elections held subsequent to the
11 initial election of members shall be held concurrent with

12 the biannual elections for State and county offices; and

13 (5) four members whose principal residence is not
14 on Martha's Vineyard but who are seasonal residents,

15 who shall be recommended by the Governor: Provided,

16 That such members shall have voice but no vote in decid-

17 ing matters before the Commission.

s1 (d) ELIZABETH ISLANDS TRUST COMMISSION.-The

19 Elizabeth Islands Trust Commission shall have the responsi-

20 abilities as established herein over the lands and waters of the

21 Elizabeth Islands, and shall be composed of six members

22 nominated by the Governor and approved by the Secretary.
23 The members shall serve three-year staggered terms which

24 shall commence on the first Monday in April. Members shall

25 be nominated and/or elected as follows:






11

1 (1) one member recommended by the Governor;
2 (2) one member elected at the annual election
3 which is a part of the annual town meeting;

4 (3) two members recommended by the board of

5 selectmen to represent the Island of Cuttyhunk, one of

6 whom shall be a permanent resident of Cuttyhunk and

7 one of whom shall be a seasonal resident of Cuttyhunk;

8 land

9 (4) two members appointed by the board of select-
10 men to represent the other islands in the Elizabeth Is-

11 lands, one of whom shall be a permanent resident of one

12 of 'such other islands, and one of whom shall be a season-

13 al resident of one of such other islands.
14 (e) Each commission shall elect from its members at

15 least the following officers: chairman, vice chairman, and

16 clerk-treasurer.

17 (f) Pursuant to subsection (a) of this section, the Gov-

18 ernor may establish the Martha's Vineyard Commission,

19 established by chapter 637 of the Acts and Resolves of 1974

20 of the Massachusetts Legislature, as amended, as the Mar-
21 that's Vineyard Trust Commission in lieu of the commission

22 otherwise to be established pursuant to subsection (c) of

23 this section.




12

1 PREPARATION OF LAND USE CONTROL PLANS

2 SEC. 5. (a) Each conunission shall, within six months

3 of its formation, develop a land use control plan to govern

4 the preservation, conservation, and enhancement of the lands

5 and waters within the trust area, and the provision of effi-

6 cient public services, where appropriate, within the trust
7 area. A land use control plan shall consist of three parts:

8 (i) Part I: such maps, text, and statements of gen-

9 eral policies and specific implementation programs as

10 each commission shall deem necessary to carry out the

11 policies of this Act;

12 (ii) Part II: the assignment of lands and waters

13 within the trust area, except as may be excluded by

14 specific provisions of this Act, to one of the classifica-

15 tions designated in subsection (b) of this section; and

16 (iii) Part III: regulations which shall apply to

17 the preservation, conservation, use, and development of

18 lands within each classification.

19 (b) Lands and waters within the trust area shall be

20 assigned by each commission to one of the following classi-

21 fications as part of the land use control plan:

22 (1) OPEN LANDS.-Lands and waters so classified

23 shall remain forever free of improvements, as defined

24 hereinafter, of any kind except as provided herein. If

25 improvements exist on any lands so classified on the




13

1 date of enactment of this Act, then there shall be per-
2 mitted a right of use and occupancy to the legal or bene-
3 ficial owner or owners thereof, or their successors or

4 assigns, for so long as such successors or assigns are

5 members of the same family or families as the legal or

6 beneficial owner or owners. If, however, the legal or
7 beneficial owner or owners seek to sell or otherwise

8 convey the improvement with or without the land there-

9 under to others than legal or beneficial owners or mem-

10 bers of the same family or families as the legal or bene-
11 ficial owner or owners, then the commissions shall have

12 an exclusive option to purchase said improvement with
13 or without the land thereunder at full and fair market

14 value, which shall be promptly determined, and such

15 option shall exist for sixty days after such determination.

16 If such option is exercised, then the land acquired shall
17 be held by the commissions in trust for the Secretary,

18 and administered pursuant to the land use control plan,

19 and if such option is not exercised, then the sale or other

20 conveyance may proceed in the ordinary course. For the

21 purposes of this paragraph, family shall mean siblings
22 of a legal or beneficial owner or owners, lineal descend-

23 ants natural or adopted, or relatives by marriage. Any

24 substantial change in access to and/or use of land classi-

25 fled as "Open Lands" must be approved by the commis-




14

1 sions if such change is substantially contrary to a respec-

2 tive land use control plan.
3 (2) RESOURCE MANAGEMENT LANDS.-Lands

4 and waters so classified shall not be developed beyond

5 their present intensity of use except as provided in this

6 paragraph. Owners of such lands, or of improvements

7 thereon, or of both, may transfer, sell, assign, or demise

8 such land or improvements, or both. Reasonable replace-

9 ment and extension of improvements shall be permitted,

10 under the regulations approved and/or issued by the

11 commissions. Development on lands so classified be-

12 yond their present intensity of use shall be permitted

13 only under regulations approved and/or issued by the
14 commissions, which shall be consistent with the follow-

15 ing policies:

16 (i) the overall intensity must take into account

17 the capability of the land for such development,

18 which shall include consideration of existing land

19 use, intensity and types of uses in the immediate

20 vicinity, areawide water quality and quantity, soil

21 conditions, roadway utilization, and visual and top-

22 graphic conditions;

23 (ii) overall intensity regulations shall not create

24 uniform lot sizes and shall be defined and applied

25 with flexibility to encourage sound land use planning




15

1 respecting the varying natural values of the different

2 geographical areas of land; and

3 (iii) the area upon which intensity is calculated

4 shall not include bodies of water or wetlands classi-

5 fled as such under Massachusetts Wetlands Protec-

6 tion Act (131 M.G.L. 40).

7 Said regulations shall be adopted only after (i) public

8 hearing or hearings and (ii) approval by the Secretary

9 of the relevant portions of the land use control plan.

10 The Secretary shall indicate his approval or suggested

11 modifications to such regulations of each commission
12 within ninety days of receipt. After the Secretary has

13 given his final approval of the relevant portions of the

14 land use control plan of the respective commissions,

15 construction of improvements on the lands or in the

16 waters classified as Resource Management Lands within

17 the jurisdiction of each conunission may thereafter be

18 permitted only upon the granting of a permit therefore

19 by each commission acting pursuant to its regulations:

20 Provided, That such a permit may be granted only if

21 all other necessary local and State approvals have been

22 received.

23 (3) TOWN ZONED LANDS.-Lands and waters so
24 classified shall remain under the jurisdiction of the town

25 in which located for purposes of planning and zoning




16

1 ordinances and other land use regulations: Provided,
2 That such planning and zoning ordinances and other
3 land use regulations shall be reviewed and commented
4 upon by the commissions as to consistency with the

5 purposes of this Act prior to the adoption of such ordi-

6 nances or regulations or amendments thereto: And pro-
7 vided further, That the commissions may review and

8 comment upon variances and special permits proposed

9 to be granted pursuant to any local zoning ordinance.

10 (c) The land use control plan adopted by each con-
11 mission shall be consistent with the policies, objectives, and

12 guidelines contained in this Act, and shall include, but not

13 be limited to, the following components which shall be con-

14 tainted in part I of the plan:

15 (1) a program for the preservation of significant,

16 natural, scenic, ecological, scientific, cultural, marine,

17 or historical resources, including areas which, because of

18 their local, regional, or other importance, should be pre-

19 served in their natural state (such lands may include,
20 but need not be limited to, lands assigned by the com-

21 missions to the "Open Land" classification under this

22 Act). This program may include regulation of uses of

23 land and water pursuant to the constitutional authority

24 of the State; other noncompensatory land use regulations

25 which may be appropriate; compensatory land use regu-





17

1 lations; tax incentives and payments in lieu of laxes;

2 acquisition of the fee title or of lesser interests in lands
3 and/or waters; or any combination of land use control

4 methods which best meets the purposes and policies of

5 this Act;

6 (2) a program for the development of public recre-
7 national facilities;

8 (3) a program and regulations for the preservation

9 of beaches and for the development of public access to

10 beaches and passages along them;

11 (4) a transportation program including regula-

12 tions for and a. review of all existing public and pri-

13 vate access by air and water to lands within the trust
14 area, and a review of public and private transportation

15 systems for land transportation on each of the major

16 islands. Said review shall be accompanied by recom-

17 mendations for legislative and administrative action to

18 harmonize such access, and the use of land and facilities

19 incident thereto, with the conservation and preservation

20 policies of this Act, and shall further include a system for

21 regular reviews of such access and of their impact on

22 development pressures on the trust area. This review

23 shall also include recommendations for the development

24 of trails, bicycle paths, observation points, and exhibits




18

1 deemed by each commission to be appropriate for the
2 public enjoyment of and understanding of the values and
3 resources of the trust area;

4 (5) a program for the identification and promotion

5 of new employment opportunities for residents of the

6 trust area which would be consistent with the policies
7 of this Act, which shall include recommendations for

8 action by the Commonwealth and the Secretary and

9 other Federal agencies; and

10 (6) a program for the development of resident

11 homesites for year-round residents of the islands in the
12 trust area, said program 'to include recommendations for

13 action by Federal agencies and for the expenditures of
14 appropriations under this Act, upon approval of the

15 Secretary, for the resident homesite plan. A resident
16 homesite plan shall mean a plan established by the ap-
17 propriate commission designating parcels of land which

18 may be acquired by the commission at fair market value

19 and resold at a lower price to year-round residents who
20 meet criteria established by the commission.

21 (d) Each commission shall include as part of its land use
22 control plan a listing of improvements the construction of
23 which commenced after April 11, 1972. Such listing shall

24 include improvements for residential, commercial, industrial,
25 recreational, or any other purpose. If any such improvement




19

1 is located on lands or waters classified as "Open Lands",

2 the commission may acquire the improvement forthwith, not-
3 withstanding the provisions of section 5 (b) (1) herein. If

4 any such improvement is located on lands or waters classi-

5 fled as "Resource Management Lands", the commission may,

6 for those improvements for which no certificate of need was
7 granted or sought, acquire the improvements, notwithstand-
8 ing the provisions of section 5 (b) (2) herein.

9 (e) Any acquisition by the commissions of a fee or less
10 than fee interest in lands or waters shall conform to the
11 requirements of the Uniform Relocation Assistance and Real

12 Property Acquisition Policies Act (42 U.S.C. 4601).

13 (f) A land use control plan developed by a commission
14 may utilize land use control regulations developed by regional
15. or county authorities pursuant to applicable State laws; and
16 the land use control methods made a part of the program

17 authorized by section 5 (c) (1) of this Act may be utilized to

18 supplement or complement such regulations.

19 PRIVATE NONPROFIT ORGANIZATIONS
20 SEC. 6. (a) In order to encourage and provide an oppor-

21 tunity for the establishment of natural and scenic preserves

22 by voluntary private action of owners of lands and waters
23 in the trust area, and notwithstanding any provision in this

24 Act or in any other provision of law, the authority established

25 by this Act to acquire lands or interests therein for preserva-




20

1 tion and conservation purposes without the consent of the

2 owner shall be suspended when-
3 (i) lands or waters or interests therein which are

4 designated as being presently or from time to time needed

5 to carry out the purposes of this Act are irrevocably in

6 the ownership of private nonprofit conservation, preser-

7 ovation, historic, or other organizations or associations,

8 and the restrictions against the development of such lands

9 meet the standards of the land use control plan; or

10 (ii) lands or waters or interests therein which are

11 designated as being presently or from time to time

12 needed to carry out the purposes of this Act are, to the

13 satisfaction of the commissions, the Governor, and the
14 Secretary and within twenty-four months after enact-

15 ment of this Act, irrevocably committed to be sold,

16 donated, demised, or otherwise transferred to such or-

17 ganizations or associations.

18 (b) The provisions of this section shall be applied only

19 to those organizations and associations which are determined
20 to be bona fide and general purpose.

21 (c) All of the provisions of this Act, except sections 1,

22 2, and 3, shall be suspended with respect to any lands, wa-

23 ters, or interests therein so long as such lands, waters, or

24 interests therein are within twenty-four months of the enact-

25 ment of this Act subject to a revocable or irrevocable con-




21

1 servation restriction created, approved, and recorded under

2 'sections *31 through 33 of chapter 184 of the General Laws
3 of Massachusetts, which forbids, or in the judgment of the
4 commissions, and the Secretary, as evidenced by their joint

5 written approval of such restriction, .substantially limits all

6 or a majority of the land uses referred to in clauses (a)

7 through (g) of the first paragraph of -said section 31. With

8 respect to any revocable restriction, notice of the intention

9 to revoke must be given to the appropriate commission and

10 the Secretary not less than twelve months prior to the pro-

11 posed effective date of the revocation unless the lands, wa-

12 ters, or interests therein are in whole or in part made subject

13 to a taking by eminent domain. The entity carrying out such

14 eminent domain proceedings with respect to property cov-

15 ered by such a conservation restriction shall give notice of

16 such proposed taking to the commission having jurisdiction

17 over the property proposed for condemnation.

18 INDIAN COMMON LANDS

19 SEC. 7. (a) The Martha's Vineyard Commission is di-

20 rected to establish as part of its land use control plan an

21 orderly program for determining the precise extent of Indian

22 Common Lands on Martha's Vineyard. The program 'shall

23 include a survey or surveys and such other research or field

24 work as may be necessary to establish the boundaries of the

25 Common Lands belonging to the Wampanoag Tribe of Gay




22

1 Head and known generally as the Cranberry Bogs, the Clay

2 Cliffs, and Herring Creek. The commission is further directed
3 to determine the location, boundaries, and owners of record
4 title of the monuments and burial grounds of the Wampanoag

5 Tribe of Gay Head on Martha's Vineyard. Funds to carry

6 out the program may be drawn from those authorized to be
7 appropriated by section 13.

8 (b) Upon completion of the program described in sub-
9 section (a) of this section, lands determined to be Indian

10 Common Lands shall be acknowledged as an Indian reserva-
11 tion owned by the Wampanoag Tribe of Gay Head pursuant

12 to recognized Indian title and entitled to the full protection
13 of Federal laws pertaining to Indian lands.

14 (c) Nothing contained in this Act shall be construed to
15 prejudice or limit any claims which the Wampanoag Tribe

16 of Gay Head Indians, or any member of that tribe, may have

17 for past violations of their rights as Indians, including but

18 not limited to claims arising under the Indian Trade and

19 Intercourse Act (25 U.S.C. 177).

20 (d) The Wampanoag Tribe of Gay Head is hereby
21 acknowledged as and declared to be eligible for the services
22 and assistance now or hereafter provided to Indians be-

23 cause of their status as Indians by or through any depart-

24 ment, agency, or instrumentality of the United States Gov-

25 ernment including, but not limited to, the Bureau of Indian




23

1 Affairs, Department of the Interior, and the Indian Health

2 Service, Department of Health, Education, and Welfare, or

3 pursuant to 'any statute -of the United States.
4 COOPERATION OF OTIIER AGENCIES

5 'SEC. 8. The Secretary and the heads of other Federal

6 agencies Ishall cooperate with the commissions in the formn-
7 nation of their land use control plans upon the request of the

8 respective commissions and to the extent of available funds.

9 COMMISSION EXPENSES AND PROCEEDINGS

10 SEC. 9. (a) Members of the commissions who are em-

11 ployee~s of a State or local government shall serve without

12 additional compensation as such. All other members m'ay, if

13 a commission so votes, receive $50 per diem when actually

14 engaged in the performance of the duties of the commissions.

15 (b) The Secretary shall reimburse all commission mem-

16 bers for necessary travel !and 'subsistence expenses incurred

17 by them in the performance of the duties of the commissions.

18 (c) Financial and administrative services (including

19 those relating to payment of compensation, budgeting, ac-

20 counting, financial reporting, personnel, and procurement)

21 shall be provided by the Secretary from the funds appropri-

22 ated to carry out the provisions of this Act.

23 (d) The commissions shall have the power to appoint

24 and fix the compensation of such additional personnel, includ-

25 ing experts and professionals, and for such temporary and





24

1 intermittent services as may be necessary to carry out their

2 duties, without regard to the provisions of the civil service
3 laws and the Classification Act of 1949, and they shall have

4 the power to hold hearings and administer oaths.

5 (e) The commissions shall act by affirmative vote of a
6 majority thereof. Vacancies shall be filled in the same man-

7 ner as the original appointment.

8 SUBMISSION AND APPROVAL OF PLANS

9 SEC. 10. (a) Each commission within six months of
10 being established, shall submit a land use control plan to the

11 Secretary who shall, within one hundred and twenty days of

12 the day it is received by him, either approve or disapprove it.

13 The plan must be complete, or if -divided into phases, must
14 clearly state the reasons for the division into phases and the

15 date or dates by which subsequent phases will be submitted.
16 Approval or disapproval of phases or resubmissions shall be

17 made within one hundred and twenty days of receipt by the

18 Secretary.
19 (b) The Secretary shall approve the plan if he finds

20 that (1) the commission has afforded adequate opportunity

21 in the area within its jurisdiction for public comment on the

22 plan, and such comment was received and considered in the

23 plan or revision as presented to him; (2) State and local

24 units of government identified in the plan as responsible for






25

1 implementing any portion of its provisions have the neces-

2 sary legislative authority to do so, and the chief executive
3 officers of the State and local units of government have in-

4 dicated their commitment to utilize such authority in im-

5 plementation of the plan in accordance with the program
6 established by the commission; (3) the plan will preserve

7 significant natural, cultural, marine, or historical values;

8 and (4) the plan is consistent with the preservation, conser-

9 ovation, and enhancement policies of this Act and will fulfill

10 the objectives of the land classifications and policies estab-

11 lished in section 5 of this Act.

12 (c) If the Secretary disapproves a plan, a phase of a

13 plan, or any revisions thereto he shall advise the commission

14 of the reasons therefore and convey his recommendations for

15 revision. The plan, phase, or revision, following its disap-

16 proval, may be resubmitted to the Secretary for his approval

17 as soon as the commission is able to make revisions which are

18 responsive to the Secretary's recommendations.

19 (d) Upon approval of a plan, the Secretary shall

20 publish a notice thereof in the Federal Register and shall

21 transmit copies of the plan together with his comments to

22 the President of the Senate and the Speaker of the House

23 of lRepresentatives.






26

1 (e) No substantial revision to an approved plan or

2 land classification assignments may be made without the

3 approval of the Secretary. The Secretary shall either approve

4 or disapprove such a proposed revision within ninety days

5 from the date on which it is submitted to him. Whenever

6 the Secretary approves a revision and prior -to ,such approval,

7 he shall publish notice thereof in the Federal Register.

8 TRUST GRANTS BY THE SECRETARY

9 SEC. 11. Upon approval of a plan, the Secretary shall

10 make implementation grants in the total amount of

11 $10,000,000 to the commissions. Prior to submission of a
12 plan, the Secretary may, upon application therefore, make

13 grants to the commissions for the development of a land

14 use control plan: Provided, That such development grants

15 shall not exceed $1,000,000 of the total $10,000,000. Such

16 development or implementation grants shall be supplemental

17 to any other Federal financial assistance for any purpose,

18 and shall be subject to such reasonable terms and condi-

19 tions ,as the Secretary deems necessary to effectuate the
20 purposes of this Act. In making the grants, the Secretary

21 shall take into consideration that there are three commis-

22 sions with responsibilities pursuant to this Act, and shall

23 insure that the grant funds are equitably distributed among







27

1 the three commissions, taking into account such factors as

2 population, acreage, land and water resources, existing and
3 projected development, and the special tasks imposed by this

4 Act relative to Indian Common Lands.

5 TRUST ACCOUNT

6 SEC. 12. There is hereby established a special account
7 in the Treasury of the United States for the purpose of hold-

8 ing moneys to be used for trust grants, pursuant to section
9 11 of this Act, to the commissions. There shall be covered

10 into such special account $10,000,000 from revenues due

11 and payable to the United States under the Outer Continental

12 Shelf Lands Act (67 Stat. 462) as amended and/or under

13 the Act of June 4, 1920 (41 Stat. 13) as amended, which
14 would otherwise be credited to miscellaneous receipts of the

15 Treasury. Moneys covered into the account shall be used

16 only for grants made pursuant to section 11 of this Act and

17 shall be available for expenditure only when appropriated

18 therefore.

19 APPROPRIATIONS

20 SEC. 13. There are authorized to be appropriated to

21 defray the expenses of the commissions, established pursuant

22 to section 3, including salaries and other expenses incident




















28

to the operation of the commissions, such sums annually as

may be necessary; and for grants to the commissions to de-

velop and implement land use control plans and regulations

approved pursuant to.this Act, $10,000,000 from the special

account created in section 12 of this Act.

Passed the Senate December 8, 1975.

Attest: FRANCIS R. VALEO,
Secretary.



























94TH CONGRESS
1ST SESSION S



AN ACT
To establish the Nantucket Sound Islands Trust
in the Commonwealth of Massachusetts, to
declare certain national policies essential to
the preservation and conservation of the
lands and waters in the trust area, and for
other purposes.

DECEMBER 9,1975
Referred to the Committee on Interior and Insular
Affairs