55-10-08. Duties of the state and political subdivisions in regard to state historic sites
- Historic easements - Prohibitions.
1. The state, its departments and agencies, and each political subdivision are by this
chapter notified of the existence of state historic sites on land and water areas in North
Dakota listed in the state historic sites registry.
2. The state or a political subdivision may not demolish or cause to alter the physical
features or historic character of any site listed in the state historic sites registry as a
state historic site without first obtaining the prior approval from the director of the state
historical society upon authorization of the state historical board, unless section
55-02-07.2 applies to the site. The state and political subdivisions shall cooperate with
the director of the state historical society in identifying and implementing any
reasonable alternative to demolition or alteration of any state historic site before the
board approves the demolition or alteration.
3. The state or a political subdivision may acquire fee title to a state historic site, or
property listed in the national register of historic places, or may acquire a historic
easement with respect to a privately owned state historic site, or property listed in the
national register of historic places, and buildings and structures thereon when
restored, reconstructed, or improved in accordance with plans approved by the
director of the state historical society. A historic easement is:
a. A nonpossessory interest in the real property, imposing limitations or affirmative
obligations the purposes of which include preserving the historic aspects of the
property as so restored, reconstructed, or improved;
b. Created and capable of being conveyed, recorded, assigned, released, modified,
terminated, or otherwise altered or affected in the same manner as other
easements, except as otherwise provided in this subsection; provided, that no
right or duty in favor of or against a holder or another party having a right of
enforcement arises under a historic easement before it is accepted by the holder
and the acceptance is recorded;
c. Held by the grantee for the benefit of its citizens and the people of the state
generally;
d. Specifically enforceable by the grantee or, if so provided by the grant, by the state
or a political subdivision;
e. Binding upon the holder of the servient tenement and that person's successors
and assigns;
f. Limited to a term of years provided in the grant and approved by the director of
the state historical society, not exceeding the estimated useful life of the real
property as restored, reconstructed, or improved, and not less than the term of
any loan made by the holder to finance in whole or in part the cost of the
restoration, reconstruction, or improvement;
g. Subject to no other legal limitation upon the duration of estates or of restraint on
the alienation thereof, except the limitation contained in section 47-05-02.1; and
h. Subordinate to any interest existing when the easement is created, in the real
property affected thereby, unless the owner of the interest is the grantor of the
easement or consents to it.
4. A historic easement is valid even though:
a. It is not appurtenant to an interest in real property;
b. It can be or has been assigned to another holder;
c. It is not of a character that has been recognized traditionally at common law;
d. It imposes a negative burden;
e. It imposes affirmative obligations upon the owner of an interest in the burdened
property or upon the holder;
f. The benefit does not touch or concern real property; or
g. There is no privity of estate or of contract.
5. A project comprising the acquisition of a state historic site or of a historic easement
with reference thereto, and the restoration, reconstruction, and improvement of the site
and buildings and structures thereon to preserve physical characteristics of historic
importance, is declared to be a proper and necessary purpose for the expenditure of
public funds. The proceeds of tax increments or bonds or both may be expended by a
city for such a project within an urban renewal area when determined by the governing
body to be desirable for the redevelopment, rehabilitation, and conservation of the
area in accordance with chapter 40-58.
6. If any state agency or department or a political subdivision objects to any decision of
the state historical board to disallow alteration or demolition of a site listed on the state
historic sites registry, the objecting party may submit the objection to arbitration.
Arbitration may also be demanded by either the board or the objecting party if the
board or the objecting party determines that the other has failed to cooperate in
identifying or implementing reasonable alternatives to demolition or alteration. The
party desiring arbitration shall make a written demand therefor of the other and in the
demand shall name three arbitrators. The demand must also set forth the objections
that the party desires to submit to arbitration, with reference to the particular state
historic site. The demand must be made within ninety days of a decision by the board.
The demand must be served upon the other party, which, within ten days, shall name
in writing three arbitrators, and set forth in writing its response to the objections set
forth in the demand served upon it and any additional objections that it desires to
submit to arbitration on its part. The six arbitrators selected shall name a seventh
arbitrator. If the party proceeded against fails or refuses to name three arbitrators, the
moving party may apply ex parte to the judge of the district court of the county in which
the state historical site in question, or any part thereof, is located, for the appointment
of the unnamed arbitrators. If upon the appointment of three arbitrators by each of the
parties, the six have been unable to agree upon a seventh arbitrator within five days,
either party, upon five days' notice may apply to the district court for the appointment of
the seventh arbitrator. The political subdivision may select its arbitrators from among
the governing board of the affected political subdivision, from any regular or special
committee appointed by the governing board, whether serving on such governing
board or not, or from any combination thereof. A state agency may select its arbitrators
from its officers or employees. The state historical board may select its arbitrators from
among the board itself, from an executive committee of the board, or from any
combination thereof. When a panel of arbitrators has been appointed, a submission in
writing must be acknowledged by the parties in the same manner as a conveyance of
real property and may fix the time on or before which the award must be made. The
submission must provide for the entry of judgment upon the award by the district court
of the county within which the state historical site or some part thereof is located. The
submission must also provide that each party shall bear its own arbitration costs and
expenses, however, the costs and expenses relating to the seventh arbitrator must be
borne equally by both parties to the dispute. The seven arbitrators shall proceed to
resolve the controversies brought before them, and the decision of the arbitrators, or a
majority of them, must be given in writing to the parties concerned and is binding upon
both parties. Thereafter, the arbitration must proceed in accordance with chapter
32-29.2.
