Wisconsin Historical Society

Guide or Instruction

Defensible Decision-Making for Preservation Commissions

Chapter 7: Preservation Commission Processes, Page 2 of 3

Defensible Decision-Making for Preservation Commissions | HPC Training | Wisconsin Historical Society

When rendering a property decision, a commission must follow its own established criteria. By linking its decision to the applicable criteria, the commission will make certain that each party is treated fairly, and commission decisions will be consistent from case to case.

General Decision-Making Practices

When making a decision, commission members should follow these general practices:

  • Listen closely to the evidence presented by both proponents and opponents, ask questions to clarify issues, and weigh the facts against the criteria.
  • Base decisions on only the evidence provided.
  • Avoid making a decision on a case until all the evidence and testimony has been reviewed.
  • Clearly explain and present the rationale behind all decisions.  

If a commission member has a conflict of interest, whether personal, financial, or otherwise, he or she should excuse himself from that particular case. If it is unclear whether or not a conflict of interest exists, the member should consult the commission’s legal counsel.

If a commission has provided reasonable and fair due process and followed its legal policies and procedures, its record should be defensible in the case of an appeal or a court battle over its actions or decisions.

Review Process

The following points for ensuring the efficiency and legality of the review process are based on an article by Stephen Dennis, former Executive Director of the National Center for Preservation Law: 

  • Commission members must avoid appearing arbitrary or capricious. Decisions must be based on and supported by evidence presented at the hearing.
  • Commission decisions should be clear and comprehensible, with specific and substantial details that explain and support the decision in both the meeting minutes and decision letters to applicants.
  • Commission decisions should indicate the significance of the structure or district involved. The propriety of a decision might be based on the historical significance of a historic resource, and it is important to place the property in a context that can be easily and convincingly explained.
  • Commission members need to have a thorough knowledge of existing precedents. Decisions should be consistent with precedents and based on accepted criteria. If a commission approves a project and months later denies a similar project, the denied applicant could use the earlier decision against the commission in an appeal. If there are unique reasons or circumstances why a project is appropriate for one property and not another, the rationale must be clearly explained to justify the decision.
  • Commission members need to anticipate potential controversial issues and arguments that might come before them. Good legal counsel can help guide commissions on particularly complicated issues.
  • A commission should address each issue of an application individually. Some applications have a variety of issues that require separate decisions, and the commission must not allow the applicant to confuse the issues.
  • Commission members need to thoroughly question "experts" hired by applicants whose testimony does not seem credible. When a commission does not discuss or question testimony, it gives the appearance of support. If commission members question witnesses and challenge their assumptions and conclusions, the record will demonstrate the commission’s decision-making process.
  • Local preservation organizations or neighborhood groups can supplement a commission’s work on individual applications. When a commission is faced with powerful and influential developers, public support can boost the defense of a challenged commission’s actions.   

Finally, a commission should ensure that all of its actions conform to relevant provisions of the state statutes and the state administrative code. Again, good legal council will assist with this matter.