Can my Virginia locality require me to pay for an archaeological survey before I develop my property in a historic district?

Plain-English summary

Delegate Pogge asked whether Va. Code § 15.2-2306 lets a locality require a property owner to commission an archaeological survey to determine whether historic or archaeological resources are present on the property. This often comes up in places like James City County and the Williamsburg area, where Native American sites, colonial settlements, Civil War battlefields, and other significant archaeological resources can be present underground on private property. Archaeological surveys are expensive, often requiring trained archaeologists to do test excavations, and the cost can run from a few thousand dollars to tens of thousands depending on scope.

AG Herring gave a qualified yes. The framework is permissive; the specific application is fact-dependent.

The constitutional and statutory framework strongly supports historic preservation. Article XI, § 1 of the Virginia Constitution declares that "it shall be the policy of the Commonwealth to conserve, develop, and utilize . . . its historical sites and buildings." Section 15.2-2306 authorizes localities to create historic districts and to control development in them to preserve historical, architectural, archaeological, or cultural resources. Within that statute, subsection (A)(1) expressly says: "A governing body may provide in the ordinance that the applicant must submit documentation that any development in an area of the locality of known historical or archaeological significance will preserve or accommodate the historical or archaeological resources." The legislature plainly intended localities to be able to require documentation.

The documentation requirement must be reasonable. Section 15.2-2306(A)(3) sets the standard of review for local historic-district decisions: courts review for whether the decision is arbitrary and capricious and constitutes an abuse of discretion, or is contrary to law. The locality's decision is presumed correct. The challenger has the burden of proving that the decision is clearly unreasonable, arbitrary, or capricious, and bears no reasonable or substantial relation to public health, safety, morals, or general welfare (Covel v. Town of Vienna). But the locality can lose: Norton v. City of Danville (2004) overturned a historic preservation restriction when the locality failed to meet its burden.

Is an archaeological survey "reasonable"? It depends on the facts. The opinion explicitly declines to give an abstract yes or no. Factors that would matter: the strength of evidence that significant resources are or may be present on the property, the scale and type of development, the alternative ways to document resource impact (less expensive desktop review, monitoring during construction, etc.), the cost of the requested survey, and the development's likely effect on whatever resources may be present. An archaeological survey requirement could be reasonable for a major earth-moving development on a property with strong evidence of pre-historic or colonial occupation, and unreasonable for a small accessory building on a property with no resource indicators.

Appeals to circuit court. Section 15.2-2306(A)(3) gives an aggrieved party the right to appeal to circuit court. So a landowner who feels the documentation demand is unreasonable can challenge it in court, where the locality has to defend its decision.

Scope limit. The opinion expressly addresses only land within a designated historic district. It does not address whether a locality could require similar documentation for properties outside a designated district. That would require a separate statutory authority analysis.

Currency note

This opinion was issued in 2014. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Section 15.2-2306 has been amended since 2014. The Virginia Department of Historic Resources has also updated its guidance on archaeological surveys and historic district administration. Anyone facing a historic-district documentation requirement today should check the present statute and current DHR guidance.

Common questions

How does a property end up in a historic district?
Each locality that has historic districts adopts an ordinance under § 15.2-2306 designating areas of historical, architectural, archaeological, or cultural significance. The designation typically follows research, public hearings, and local council or board adoption. National Register listing is a separate federal designation; local historic district status is set by Virginia statute and local ordinance.

What is an archaeological survey?
It is professional fieldwork (sometimes preceded by background research) to identify and assess archaeological resources on a property. Phase I surveys are typically less invasive (visual inspection, shovel tests). Phase II evaluates significance of identified resources. Phase III is full data recovery (excavation). The cost depends on the property size, conditions, and scope.

Who pays for the survey?
Usually the property owner or developer, as a condition of getting development approval. The cost can be a significant burden, and that is partly why the reasonableness limit matters.

Can a locality just refuse development outright?
Section 15.2-2306 lets localities regulate development in historic districts to preserve resources. Total denial would be more aggressive than a documentation requirement and would need to clear a higher reasonableness bar. Norton v. City of Danville showed that even less-than-total restrictions can fail the test.

What if the survey finds significant resources?
The locality may then require design changes, project relocation, mitigation measures, or in extreme cases project denial. The framework is for the locality to preserve resources, so the owner may face additional development conditions. The owner can still appeal any adverse decision.

Does the requirement apply to private property?
Yes. The historic district statute reaches all property (private or public) within the designated district. Constitutional takings analysis applies if the requirements are so onerous that they effectively deprive the owner of all economically beneficial use.

Is this a Fifth Amendment takings issue?
Potentially. The opinion frames the question as one of reasonableness under the statutory standard, but onerous historic-preservation requirements can in theory rise to a regulatory taking under Penn Central and similar doctrines. Norton v. City of Danville is the closest Virginia analogue.

Background and statutory framework

• Va. Const. art. XI, § 1: State policy to conserve historical sites and buildings.
• Va. Code § 15.2-2306(A)(1): Authorizes historic districts; permits documentation requirements for development in areas of known historical or archaeological significance.
• Va. Code § 15.2-2306(A)(3): Standard of review for local historic-district decisions; appeal right to circuit court.
• Va. Code § 15.2-2201: Definition of "historic area" (includes archaeological resources).

The interpretive moves:

• The Virginia Constitution declares a policy of historic conservation.
• Section 15.2-2306(A)(1) expressly authorizes documentation requirements for development in known-historic areas.
• Documentation requirements are subject to a reasonableness standard.
• Whether an archaeological survey in particular is a reasonable requirement is fact-dependent.
• Aggrieved owners have the right of appeal to circuit court.

Citations

• Va. Const. art. XI, § 1
• Va. Code § 15.2-2201
• Va. Code § 15.2-2306
• Bd. of Supvrs. v. Rowe, 216 Va. 128, 216 S.E.2d 199 (1975)
• Bell v. City Council, 224 Va. 490, 297 S.E.2d 810 (1982)
• Covel v. Town of Vienna, 280 Va. 151, 694 S.E.2d 609 (2010)
• Norton v. City of Danville, 268 Va. 402, 602 S.E.2d 126 (2004)

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2014/14-062_Pogge.pdf

Original opinion text

COMMONWEALTH of VIRGINIA
Office of the Attorney General
Mark R. Herring
Attorney General

900 East Main Street
Richmond, Virginia 23219
804-786-2071
FAX 804-786-1991
Virginia Relay Services
800-828-1120
7-1-1

November 21, 2014

The Honorable Brenda L. Pogge
Member, House of Delegates
Post Office Box 196
Norge, Virginia 23127

Dear Delegate Pogge:

I am responding to your request for an official advisory Opinion in accordance with § 2.2-505 of the Code of Virginia.

Issue Presented

You inquire whether § 15.2-2306 of the Code of Virginia grants localities the authority to require a property owner to procure an archaeological survey to determine the existence of historic or archaeological resources on his property.[1]

Response

It is my opinion that § 15.2-2306 allows a locality to require, as a condition of developing property in an area of known historical or architectural significance, documentation, reasonable under the circumstances, that the development will preserve or accommodate historical or archaeological resources. Whether an archaeological survey is necessary to meet the reasonable documentation requirement is a question of fact about which this Office can express no opinion.

Applicable Law and Discussion

Historic areas and sites have long been recognized in Virginia as important resources worthy of protection. Indeed, the Constitution of Virginia states, "it shall be the policy of the Commonwealth to conserve, develop, and utilize . . . its historical sites and buildings."[2] The ability of localities to create historic districts as provided by § 15.2-2306(A)(1) has been recognized repeatedly by the Supreme Court of Virginia.[3]

Consistent with this policy, the General Assembly has granted localities wide powers to ensure historic and archaeological preservation. For instance, § 15.2-2306 authorizes localities to create historic districts and to control development in such areas in order to preserve historical, architectural, archaeological, or cultural resources:

A. 1. Any locality may adopt an ordinance setting forth . . . buildings or structures within the locality having an important historical, architectural, archaeological, or cultural interest, any historic areas within the locality as defined by § 15.2-2201 and areas of unique architectural value located within designated conservation, rehabilitation or redevelopment districts, amending the existing zoning ordinance and delineating one or more historic districts . . . . A governing body may provide in the ordinance that the applicant must submit documentation that any development in an area of the locality of known historical or archaeological significance will preserve or accommodate the historical or archaeological resources.

The term "historic area" is defined as "an area containing one or more buildings or places in which historic events occurred or having special public value because of notable architectural, archaeological, or other features relating to the cultural or artistic heritage of the community, of such significance to warrant conservation and preservation." Thus, it encompasses archaeological matters as well as architectural and historical matters.[4]

Section 15.2-2306(A)(1), quoted above, explicitly allows localities to require "documentation that any development in an area . . . of known historical or archaeological significance will preserve or accommodate the historical or archaeological resources." The remaining questions, then, are whether an archaeological survey report is the type of documentation that reasonably may be required, and the circumstances under which it may be required.

Applying the standard of review set forth by statute,[5] the Supreme Court of Virginia has held that "our review of the decision of a local governing body relating to a historic district is limited by statute to 'whether that decision is arbitrary and capricious and constitutes an abuse of discretion' or is 'contrary to law' . . . . The decision of the governing body is presumed to be correct . . . . The party challenging the decision has the burden of proving 'it is clearly unreasonable, arbitrary or capricious, and that it bears no reasonable or substantial relation to the public health, safety, morals, or general welfare.'"[6] Nonetheless, the Court has overturned a local historic preservation restriction when the locality failed to meet its burden of showing the restriction to be reasonable.[7]

Thus, the validity of any particular requirement imposed by a locality in connection with historic preservation is a question of reasonableness, and therefore one of fact, to be measured by the legal standards articulated by statute and the cases cited here. While some documentation may be required to demonstrate that the development will preserve resources of historical or archaeological significance, the requirement may not be unreasonable or arbitrary or capricious, and it must bear a substantial relation to the historic, archaeological, or historical interest in question. A party who is aggrieved by a local decision related to historic preservation, be it the requirement of an archaeological survey or any other decision or requirement, has a right of appeal to Circuit Court.[8]

Conclusion

Accordingly, it is my opinion that § 15.2-2306 allows a locality to require certain documentation as a condition of developing property that is in a designated area of known historical or archaeological significance. Any documentation that may be required is subject to a standard of reasonableness. Whether an archaeological survey is a reasonable requirement for this type of documentation is a question of fact depending on the particular circumstances at hand, on which I can express no general opinion.

With kindest regards, I am

Very truly yours,

Mark R. Herring
Attorney General

[1] From the question presented, this inquiry entails only the scope of a locality's authority involving land within a designated historic district. Consequently, no opinion is expressed or implied herein about a locality's authority to preserve and protect historic, architectural, or archaeological resources that are not located in a historic district.

[2] Va. Const. art. XI, § 1.

[3] See, e.g., Bd. of Spvrs. v. Rowe, 216 Va. 128, 216 S.E.2d 199 (1975); Bell v. City Council, 224 Va. 490, 297 S.E.2d 810 (1982); Covel v. Town of Vienna, 280 Va. 151, 694 S.E.2d 609 (2010).

[4] Va. Code Ann. § 15.2-2201 (Supp. 2014).

[5] Section 15.2-2306(A)(3) (2012).

[6] Covel, 280 Va. at 157, 694 S.E.2d at 613.

[7] Norton v. City of Danville, 268 Va. 402, 602 S.E.2d 126 (2004).

[8] Section 15.2-2306(A)(3).