Chapter 9. Religious Liberty 99 results (showing 5 best matches)
- It may be difficult to show that a government has a compelling government interest in enforcing historic preservation laws, especially since historic preservation laws deal with primarily aesthetic concerns. Most courts considering free exercise challenges to historic preservation laws have characterized the laws as neutral laws of general applicability, a characterization that does not require a court to review whether there is a compelling government interest. Two decisions that have found historic preservation laws not to be neutral laws of general applicability (and thus proceeded to the compelling government interest question) have both said that historic preservation is not a compelling government interest.
- Historic preservation laws are enacted and enforced at every level of government. Agencies and officials play a big role in the historic preservation scheme. Members of boards and commissions—from local preservation review boards all the way up to federal advisory commissions—act under color of law even if they are not public employees. Their actions, too, are subject to RLUIPA.
- Historic preservation laws are specifically mentioned, in the definition’s reference to “landmarking law[s].” They often require individualized assessments of proposals for properties and thus would fit within the limitation provided by the scope of application provision. Consider, for example: local historic preservation ordinances that require property owners of historic resources to submit plans for board scrutiny; statutory schemes (at any level) requiring detailed reviews before properties may be designated historic; and public grant (or other incentive) programs meant to benefit historic properties meeting certain criteria. Indeed, other than enabling legislation (such as legislation allowing municipalities to create historic districts, or legislation authorizing private creation of preservation or conservation restrictions) or historic preservation planning laws, it is hard to think of many examples of historic preservation laws that would not be subject to RLUIPA.
- The Court has further defined the parameters of the establishment clause on several occasions. One can extrapolate from its cases that the establishment clause constrains government behavior in the historic preservation context in three key ways: the designation of significant resources as historic (the theme of Chapter II), the regulation of historic properties, and the provision of public historic preservation grants.
- Using the rational basis standard, it is hard to imagine how a historic preservation law could be held unconstitutional. Indeed, courts applying the rational basis test have overwhelmingly rejected free exercise challenges to historic preservation laws. One excellent example is a Second Circuit case involving St. Bartholomew’s Church in Manhattan. , 499 U.S. 905 (1991). The church wanted to replace a structure on its campus with an office tower, which would earn revenues that the church could use to support its religious mission. It contended that the local historic preservation commission’s denial of a certificate of appropriateness for its building plans “unconstitutionally denies it the opportunity to exploit this means [fundraising through renting out the office tower] of carrying out its religious mission.” at 353–54. Finding that the local historic preservation ordinance used by the commission in its decision was a facially neutral regulation of general applicability, the...
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Chapter 5. Section 4(f) 98 results (showing 5 best matches)
- For historic sites, the official with jurisdiction is the state or tribal historic preservation officer where the historic site is located. When a historic site is located on tribal land but there is no tribal historic preservation officer, then the tribe may designate a representative of the tribe to serve as an official with jurisdiction, alongside the state historic preservation officer. The Advisory Council on Historic Preservation may also be named an official with jurisdiction when it has been involved in a consultation for the same property in a Section 106 review under the National Historic Preservation Act.
- Another area of interaction between the statutes is the consultation requirements: who must or may be consulting parties to the Department of Transportation officials reviewing a federal transportation program or project. Both statutes require that the Department consult with the state or tribal historic preservation officers, or a tribal representative alongside the state historic preservation officer if there is no tribal historic preservation officer and the tribe names a representative. Section 4(f) also provides that any consulting parties in a Section 106 review, including the Advisory Council on Historic Preservation or local parties, be consulting parties in a Section 4(f) review.
- Both Section 4(f) of the Department of Transportation Act and Section 106 of the National Preservation Act (considered in Chapter III) impose duties on federal agencies to address the effects of their actions on historic resources. They provide different types of protection for historic resources, but do interact in a few ways.
- Such a determination is usually made through consultation with the state or tribal historic preservation officer. The determination may be referred to the Keeper of the National Register if there is disagreement between the federal and state/tribal authorities, or if a third party requests the involvement of the Keeper through the Advisory Council on Historic Preservation. In such instances, the Keeper’s finding that the property is eligible for the National Register will supersede any contrary determinations made by state authorities. Stop H–3 Ass’n v. Coleman, 533 F.2d 434 (1976) (ruling for the protection of a historic site that the Secretary of the Interior declared eligible for the National Register, even though state officials said it had merely marginal significance). If the property is reviewed and the parties agree that the property is not historic, then documentation of this consensus should be collected as part of the Section 4(f) record. If the property is located within a
- There are several points in the Section 4(f) process where the nature of the historic significance of a resource—that is, the reason why it is considered to be historic—is critical. For example, a constructive use only occurs if the “proximity impact” affects the feature or attribute that conveys the site’s historic significance. Moreover, the legal determination as to whether there is an adverse effect on the protected property also depends on a clear link to those features and attributes that contribute to the property’s historic significance. 36 C.F.R. § 800.5 (mandating review under Section 106 of the National Historic Preservation Act where there is an effect on historic significance). Thus understanding the reason why non-lawyers call a property significant is critical for attorneys dealing with Section 4(f) cases.
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Chapter 1. Introduction 85 results (showing 5 best matches)
- Historic preservation is the process of identifying resources of historic, cultural, or architectural significance and then protecting, interpreting, maintaining, and/or rehabilitating such resources. It is important to distinguish historic preservation, as a political movement and professional endeavor, from historic preservation law, which is the supporting legal regime. Humans have engaged in historic preservation in some form or another for millenia; it is human nature to preserve objects and sites we find meaningful. But only fairly recently have countries around the world begun to develop robust legal regimes for the preservation of historic resources.
- Although each of these federal actions was significant, the National Historic Preservation Act of 1966 (the subject of Chapter III) has been the most far-reaching piece of federal activity in historic preservation law. One of the central features of the statute is that it required federal agencies to review certain federal undertakings that impacted certain historic properties. It also expanded the list of historic places compiled under the Historic Sites Act, renaming it the National Register of Historic Places. The Register, covered in Chapter II, must list “districts, sites, buildings, structures, and objects significant in American history, architecture, archaeology, engineering, and culture.” 16 U.S.C. § 470a(a)(1)(A). With this language, Congress recognized that historic preservation included all three distinct movements (the protection of archaeological and tribal resources and the conservation of landscapes) that we discussed previously. In addition, the National Historic
- Public entities and officials—associated with federal, state, local, or tribal governments—also play a major role in historic preservation. Congress and state legislatures pass laws binding public or private actors to behave in certain ways. Presidents and governors can direct agencies to act or issue executive orders relating to preservation. Legislatively created advisory groups, such as the Advisory Council on Historic Preservation or state historic preservation councils, provide critical guidance. The Secretary of the Interior and head of the National Park Service, and their state and tribal historic preservation officer counterparts, make decisions and consult with multiple bodies in accordance with the framework created by the National Historic Preservation Act. State and tribal historic preservation officers also have national organizations that help coordinate and convey their concerns. At the local level, historic preservation commissions and planning and zoning staff can...
- Nonprofit organizations have also been instrumental in communicating a pro-preservation message and facilitating change. The key national nonprofit organization is the National Trust for Historic Preservation, chartered by Congress in 1949. It has an expansive mission that includes legal assistance, regional initiatives, historic site ownership, investment in specific towns and projects, and publicizing preservation-related news. Preservation Action, another national nonprofit, advocates that Congress pass laws promoting preservation. State historic trusts for preservation and state advocacy groups fulfill similar roles. We also have a proud tradition of local historical societies and other groups who advocate and engage on the local level.
- The primary goal of historic preservation law is to protect significant historic resources from destruction, inappropriate alteration, and neglect. The most enduring historic preservation laws manage to achieve this protective aim while balancing a range of other values, including (among others): individual property rights, architectural design innovations, free speech, cultural identity, access for persons with disabilities, and economic development. These values need not be in tension with the goal of protecting historic resources. When tensions do arise, however, the law should create a fair and efficient process for parties to resolve their disputes.
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Preface 5 results
- Most of the Chapters in this book focus on federal laws and jurisprudence implicating preservation, and we devote one Chapter to international preservation law. It is important to note, however, that the venue in which most people interact with historic preservation law is the local level. Hundreds of localities have stand-alone historic preservation ordinances, while others incorporate historic preservation considerations into their planning and zoning rules. While we could not survey every locality with a preservation ordinance, we present common legal strategies and areas of concern.
- We consider preservation law to be “emerging” because it began to fully develop in the United States only in the last fifty years. Two key transition points happened at the federal level: the 1966 passage of the National Historic Preservation Act and the 1978 Supreme Court decision, which upheld a landmarks law against a constitutional challenge and consequently encouraged other localities to adopt similar ordinances. (Of course, this book covers laws and judicial decisions prior to and subsequent to those two key transition points.)
- Historic preservation law continues to evolve. Our book is intended to give a broad overview of the key issues as they stand today, supported by statutory references and caselaw. Some of the issues, particularly in the conservation/preservation restriction and the tax credit context, are very much “live,” and we strive to highlight areas of current controversy. We will address the way these legal controversies come to be settled, if at all, in future editions of this book.
- The purpose of this book is to provide a concise, coherent reference for the emerging field of historic preservation law for lawyers, policymakers, planners, architects, and students alike.
- We hope that this resource is valuable and encourage you to contact us with any comments on how to improve the book in future editions.
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Chapter 10. Free Speech 38 results (showing 5 best matches)
- If a court reviews a historic preservation law that restricts speech based on its content and applies strict scrutiny, then a government will have to show that its interest in enacting the law is compelling. Historic preservation laws are likely to fail this part of the strict scrutiny test. No federal court has found that historic preservation is a compelling government interest, even though many courts have found it to be a significant or substantial government interest. Similarly, aesthetic ends are not considered to be compelling government interests.
- In sum, strict scrutiny will almost certainly be fatal to a historic preservation law that is not justified by some other interest a court would deem compelling. Governments should therefore ensure that their historic preservation laws do not regulate on the basis of content.
- The Supreme Court has never taken a case involving the conflict between free speech and historic preservation. However, its decisions in the land use and signage arenas (several of which are described above) suggest that the free speech clause constrains government behavior in the preservation context in a few key ways. As a general rule, a historic preservation law must not be a guise for restricting free speech on the basis of the personal tastes of local officials; nor may it be overbroad or vague. Beyond these broad guidelines, lower courts will likely apply two standards of review—strict scrutiny or intermediate scrutiny—in a manner similar to the Supreme Court.
- These cases are outliers whose reasoning should not be incorporated into other courts’ decisions. Wooden application of the prior restraint presumption would fatally undermine all preservation regulation of private property if it would apply strict scrutiny to, say, denying a permit to build a modernist cube building in a Victorian historic district. Historic preservation laws regulate aesthetic expression but only in specified places and thus should generally not be held to more than intermediate scrutiny.
- A court will apply strict scrutiny to a historic preservation law that regulates speech on the basis of content. To survive, the law must be (1) justified by a compelling government interest, and (2) narrowly tailored to achieve (or be the least restrictive means of achieving) that interest.
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Chapter 12. Native American Issues 90 results (showing 5 best matches)
- The Secretary shall establish a program and promulgate regulations to assist Indian tribes in preserving their particular historic properties. The Secretary shall foster communication and cooperation between Indian tribes and State Historic Preservation Officers in the administration of the national historic preservation program to ensure that all types of historic properties and all public interests in such properties are given due consideration, and to encourage coordination among Indian tribes, State Historic Preservation Officers, and Federal agencies in historic preservation planning and in the identification, evaluation, protection, and interpretation of historic properties.
- For the Section 106 review process, Indian tribes may identify an individual, known as the tribal historic preservation officer (THPO), who can assume all or any part of the functions of a state historic preservation officer (SHPO) for tribal land. To ensure that the Department of the Interior recognizes this individual as the THPO, the following must occur: (1) the tribe’s chief governing authority must request the designation of a THPO from the Secretary of the Interior; (2) the tribe must designate a tribal preservation official to administer the tribal historic preservation program; (3) the tribe must provide the Secretary with a plan describing how the functions the THPO proposes to assume will be carried out; (4) the Secretary of the Department of the Interior, after consultation with the tribe, decides whether the tribal preservation program is fully capable of carrying out the functions specified in the plan. .... § 470a(d)(2). Note that in this instance, the NHPA does not...an
- Unlike Indian tribes, Native Hawaiians do not have a tribal historic preservation officer. Rather, the NHPA states that they engage in the Section 106 consultation process through the Hawaii state historic preservation officer. . § 470a(d)(6)(C). This arrangement effectively means the state, rather than a Native Hawaiian, is representing the needs of Native Hawaiians. The Hawaii state historic preservation officer consults under Section 106 with Native Hawaiian organizations, the most significant of which is Hui Malama I Na Kupuna O Hawai’i Nei. § 470a(d)(6)(C); 36 C.F.R. § 800.16(s)(1). There may be other smaller Native Hawaiian organizations that may also need to be consulted, which could lead to competing consultation viewpoints about historic Native Hawaiian properties.
- When a tribe appoints a “tribal historic preservation officer” (THPO) pursuant to NHPA regulations, the federal government views the THPO as the key representative of the tribe for all NHPA purposes. A THPO is defined as “the tribal official appointed by the tribe’s chief governing authority or designated by a tribal ordinance or preservation program who has assumed the responsibilities of the SHPO [state historic preservation officer] for purposes of Section 106 compliance on tribal lands.” 36 C.F.R. § 800.16(w). Some tribes do not have THPOs, in which case the SHPO is responsible for Section 106 compliance. Thus, in a federal undertaking on tribal lands where the tribe has a THPO, agencies must consult with the THPO, not the SHPO.
- The National Historic Preservation Act includes provisions specific to Native Americans to assist them in protecting their historic properties and preserving their traditional values. It summarizes the obligations of the Secretary of the Department of the Interior as follows:
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Chapter 15. Issues in Building Rehabilitation 96 results (showing 5 best matches)
- Many public programs that do not specifically address historic preservation are located in historic properties. For example, a state public health office may be housed in a National Register designated historic building, or a county courthouse may be located in a building in a state register historic district. These types of programs are not included in the definition of “historic preservation programs” because they do not have the preservation of historic properties as their primary goal.
- Title II has a provision specific to the alterations for accessibility of the historic preservation programs of public entities. The regulations define “historic preservation programs” as “programs conducted by a public entity that have preservation of historic properties as a primary purpose.” 28 C.F.R. § 35.104. Such programs include the ownership and operation of historic house museums or other historic properties that members of the public might visit specifically to enjoy their historic characteristics. The definition also includes those programs—such as the Advisory Council on Historic Preservation and the fifty state historic preservation offices—that have as their primary purpose the preservation of historic properties. The Title II provision on alteration may have less relevance to these programs unless their offices are housed in historic buildings that are also meant to be enjoyed by the public.
- As the preceding section shows, the definition of “historic preservation programs” in Title II of the Americans with Disabilities Act is linked to the definition of “historic properties.” The regulations define historic properties as “those properties that are listed or eligible for listing in the National Register of Historic Places or properties designated as historic under State or local law.” 28 C.F.R. § 35.104. Thus properties that are otherwise unlisted but could be eligible for the National Register will be covered by the ADA.
- For our purposes, an important implication of Title II is that public buildings—including those that have been designated historic—must be made accessible to persons with disabilities, with limited exceptions. Existing facilities must, “to the maximum extent feasible, be altered in such manner that the altered portion of the facility is readily accessible to and usable by individuals with disabilities.” 28 C.F.R. § 35.151(b)(1). The regulations proceed to carve out an exception for historic properties, saying that: “If it is not feasible to provide physical access to an historic property in a manner that will not threaten or destroy the historic significance of the building or facility, alternative methods of access shall be provided pursuant to the requirements of § 35.150.” § 35.151(b)(3). There is another provision regarding “historic preservation programs,” a term defined below. It says that although physical access to such programs is preferred, alternative methods of achieving...
- The second obligation imposed on private entities by Title III is the requirement that alterations to regulated facilities occur, to the maximum extent feasible, in a way that provides physical access to the disabled. 42 U.S.C. § 12183(a)(2). Alterations to historic properties must provide physical access only “to the maximum extent feasible.” If access is not feasible without “threaten[ing] or destroy[ing] the historic significance of the building or the facility, alternative methods of access shall be provided.” 28 C.F.R. § 36.405. Further guidance on the appropriateness of alterations to historic sites may be found in the U.S. Architectural & Transportation Barriers Compliance Board, ADA Accessibility Guidelines for Buildings and Facilities 4.1.7 (2002). Among other procedures, the guidelines suggest that the state historic preservation officer make the final determination as to whether alterations will threaten or destroy the historic significance of the historic property. If...
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Chapter 7. Police Power and Due Process 29 results (showing 5 best matches)
- Local historic preservation laws, discussed further in Chapter VI, have been the target of the majority of procedural due process challenges to historic preservation laws.
- from substantive due process challenges to historic preservation laws have been all over the map. However, our review of the limited number of such cases suggests that plaintiffs tend to lose. Below, we briefly describe a few challenges to local preservation laws and mention a federal statute challenged for substantive due process violations.
- decision has made it nearly impossible to successfully argue that the most common historic preservation laws enacted at the state and local levels—rules creating historic districts, providing for registers of historic places, or regulating the aesthetic features of private property—violate the police power. We know of no court decision upholding such an argument and do not believe that any of the laws mentioned in this book could reasonably be said to exceed the police power.
- Applying the Supreme Court’s three-factor test to a historic preservation law is very fact-specific. For example, the nature of the private interest affected may range from mere inconvenience of having to choose from a limited palette of exterior paint colors to the inability of replacing a historic building with one better-suited to the plaintiff’s needs and economic position. Courts apply these factors very differently (or fail to mention them at all), and outcomes are unpredictable. For historic preservation laws, procedural due process has generally meant that deprivations of property may not occur unless the affected party is given notice about the application of the law, the opportunity to be heard, an explanation of the decision, uniform standards, and qualified, neutral decision-makers.
- The Fifth and Fourteenth Amendments state that in no case shall government deprive a person “of life, liberty, or property, without due process of law.” U.S. C . amends. V & XIV. The due process clause does not protect government actors, and challenges are typically brought by private individuals as well as corporate persons. As a threshold matter, a plaintiff challenging a historic preservation law must demonstrate a deprivation of property by government. Shanks v. Dressel, 540 F.3d 1082, 1087–88 (9th Cir. 2008) (rejecting neighbors’ substantive due process challenge against a city that failed to enforce local historic preservation regulations because they failed to show such deprivation).
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Chapter 8. Takings 71 results (showing 5 best matches)
- Another eminent domain case that has had a surprising effect on preservation law is was to allow the condemnation and razing of existing stores and homes to make way for an urban renewal project. In that sense, the case enabled the large-scale destruction of buildings (some of them likely historic)—the antithesis of historic preservation. , however, has impacted the way courts view the exercise of the police power in a way that has bolstered historic preservation. One of the purposes of the urban renewal project in was to beautify the neighborhood. The Supreme Court explicitly identified aesthetic goals as valid justification for a state’s (in that case, the District of Columbia’s) exercise of its police power. Historic preservation advocates have used this aspect of as legal justification for local preservation ordinances and the expansion of historic district and individual property designations.
- In reality, historic preservation regulations almost never rob a property of all of its economically beneficial use.
- Many local historic preservation ordinances contain declarations that preservation is in the public interest, are applied like the New York City ordinance was applied, and impose similar burdens (and benefits) on property owners. As a result, the Court’s analysis of the character of the government action has helped to buttress local historic preservation ordinances against takings challenges by declaring that preservation ordinances with a legitimate, stated public purpose cannot easily be declared unconstitutional.
- In , the Supreme Court analyzed the government action at issue: the decision by the New York City Landmarks Preservation Commission to deny a certificate of appropriateness to the owner of Grand Central Terminal for its proposed rehabilitation. Penn Central Transportation Co. v. City of New York, 438 U.S. 104 (1978). The Court found that the historic preservation scheme applied broadly and was not applied to the property owner in an inconsistent manner. at 132. The Court thus wholly rejected the property owner’s contention that the law was “inherently incapable of producing the fair and equitable distribution of benefits and burdens of governmental action which is characteristic of zoning laws and historic-district legislation.” at 133. Moreover, the Court found that the property owners gained a reciprocity of advantage by participating in the regulatory scheme:
- The Supreme Court identified the “really important question” in this case to be whether the preservation of Gettysburg constituted a public use. at 679. The Supreme Court held that historic preservation was indeed a public use under both the Condemnation Act and the U.S. Constitution. It further explained:
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Chapter 11. Archaeological Protections 106 results (showing 5 best matches)
- The four statutes discussed previously in this Chapter focus exclusively on archaeologically significant sites and artifacts. We turn now to a fifth federal statute, the National Historic Preservation Act, which addresses archaeological resources but does not exclusively focus on them. Section 106 of the National Historic Preservation Act—the backbone of federal historic preservation law in the United States—protects, among other historic and prehistoric resources, archaeological resources listed or eligible for listing on the National Register of Historic Places. Specifically, it requires federal agencies to “take into account the effect of the undertaking on any district, site, building, structure, or object that is included in or eligible for inclusion in the National Register” prior to the issuance of any license or federal funds in support of the undertaking. 16 U.S.C. § 470f.
- §§ 462(a)–(c). The information collected through these efforts formed the basis for the Historic American Buildings Survey, the Historic American Engineering Record, the Historic American Landscapes Survey, and the National Historic Landmarks Program, which was later integrated into the National Register after the promulgation of the National Historic Preservation Act in 1966 (discussed in Chapter III). Information about the designation criteria for National Historic Landmarks is contained in Chapter II.
- The Historic and Archaeological Data Protection and Preservation Act of 1974 (HADPA) extends the powers of the Secretary of the Interior beyond those granted in the Historic Sites Act. 16 U.S.C. §§ 469–469c2. HADPA is designed to preserve:
- Nearly three decades after the Antiquities Act authorized the President to designate national monuments, Congress passed the Historic Sites Act of 1935. This Act organized the myriad federally owned parks, monuments, and historic sites under the National Park Service of the Department of Interior and expanded the executive branch’s ability to preserve, maintain, and acquire historic sites. In addition to providing an overview of the key provisions of the Historic Sites Act, this Part discusses a related statute, the Historic and Archaeological Data Protection Preservation Act.
- But what constitutes a “reasonable and good faith effort”? This standard can be particularly difficult to divine in the context of an agency trying to identify the archaeological resources related to Indian tribes, due to tribal concerns about revealing sites that are culturally significant and/or sacred. , Pueblo of Sandia v. United States, 50 F.3d 856 (10th Cir. 1995) (finding that an agency did not make a reasonable and good faith effort when it simply mailed letters to Indian tribes inviting them to meetings, did not include any tribal traditional cultural sites in the potential affected area despite having reliable information that such sites were in the area, and withheld information from the state historic preservation officer); Muckleshoot Indian Tribe v. U.S. Forest Serv., 177 F.3d 800 (9th Cir. 1999) (holding that an agency made a reasonable and good faith effort by cooperating fully with the state historic preservation officer, making continued efforts to obtain...
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Chapter 6. Local Regulation 58 results (showing 5 best matches)
- Understanding how zoning and historic preservation intersect (and do not intersect) can explain how localities regulate historic properties. As a structural matter, the regulation of zones and of preservation often occurs under two different regulatory schemes: the zoning ordinance and the historic preservation ordinance. Sometimes, a zoning ordinance will incorporate aspects of historic preservation, as we discuss below.
- Whatever its content, a historic preservation ordinance is almost always administered by a small group of people, usually residents of the jurisdiction, called the historic preservation commission. (This group may also be called the historic properties commission, historic district commission, or landmarks commission.) Commissioners may be required to have expertise in architecture, planning, history, and/or real estate development. In addition to its powers to make decisions pursuant to the historic preservation ordinance, the commission may also have advisory responsibilities in other matters affecting historic properties, including the process of designating properties as historic, planning and zoning applications, and local legislative body actions.
- Sometimes called “historic preservation light,” a conservation district scheme will generally have fewer regulations than a historic district scheme. Localities generally allow demolition in conservation districts. Alterations and new construction will be reviewed pursuant to guidelines less onerous than those used to evaluate historic districts. If review guidelines reference the Secretary of the Interior’s Standards for Rehabilitation, these will be relaxed when applied to conservation districts. Reviews may be conducted by the zoning department staff, zoning commission, historic preservation staff, or historic preservation commission. In Cambridge, Massachusetts, conservation districts are administered by a neighborhood group. The conclusions of these reviews may be binding or advisory. Official permits may or may not be issued.
- Hundreds of localities around the country have passed historic preservation ordinances: rules governing development and rehabilitation of privately owned historic properties. These rules might encompass a range of restrictions, from preventing demolition of historic structures, to imposing aesthetic standards on exterior alterations, to dictating how new construction in historic districts should be built. Historic preservation ordinances focus on historic buildings and districts of historic buildings—rarely do they impact structures, objects or sites.
- Historic preservation ordinances, by contrast, focus on these aesthetic details. Their primary objective is the preservation of the physical characteristics of historic buildings and districts that are important to their historic character. As a secondary objective, they regulate new construction to ensure that it is compatible with protected historic fabric. To accomplish these goals, preservation ordinances usually create a process for reviewing proposed changes to ensure compatibility with historic character and restrict other kinds of activities, such as demolition.
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Chapter 13. Conservation and Preservation Restrictions 57 results (showing 5 best matches)
- Conservation and preservation restrictions are useful and flexible historic preservation tools created pursuant to state statutes. Under the terms of a typical conservation or preservation restriction, a property owner places restrictions on the development of, or changes to, the property and transfers these restrictions (usually through a deed) to a nonprofit organization or government agency whose mission includes environmental conservation, land conservation, or historic preservation.
- Federal tax incentives for conservation or preservation restrictions have increased the use of restrictions to protect important historic resources. In 1976, Congress authorized temporary tax deductions for conservation and preservation restrictions that lasted at least thirty years. Given the success of the program, Congress made these tax deductions a permanent feature in 1980 and added requirements—including a provision that restrictions must be granted in perpetuity—which remain the core of the tax program today. Following stories of widespread abuse of conservation and preservation restriction tax deductions, Congress revised section 170 of the Internal Revenue Code in 2006. Among other things, these changes: clarified the type of property eligible for deductions, including property already in historic districts; required certified statements from donors and donees regarding the donee’s capability to hold the conservation or preservation restriction; required more documentation...
- Another issue that has received attention is whether the conservation or preservation restriction was donated “exclusively for conservation purposes.” 26 U.S.C. § 170(h)(1)(C). In , the Sixth Circuit held that the donation of two, small discontinuous conservation restrictions on a single lakefront parcel satisfied the “conservation purposes” requirement and qualified for the tax deduction. 471 F.3d 698 (6th Cir. 2006). Similarly, a conservation restriction that reserved rights to the owners to develop portions of the properties and alter the properties’ current conditions met the “conservation purposes” requirement because the reserved rights were consistent with a conservation purpose, and the land trust retained the right to enforce the conservation restriction. Butler v. Comm’r, T.C.M. (RIA) 2012–072. However, a preservation restriction that does not directly preserve a “historically important land area” or “certified historic structure” will fail the “conservation purposes”...
- Conservation and preservation restrictions are usually drafted to last in perpetuity. However, changed circumstances may require that a conservation or preservation restriction be altered. For example, the nonprofit holder of the restriction may have ceased to exist, the protected historic structure may require repairs prohibited by the restriction, or the amount of public access to the site may need to be modified. Currently, most states allow the relevant parties to a conservation or preservation restriction to amend the restriction without any government interference. Indeed, this flexibility is one of the most attractive features of such restrictions.
- Furthermore, given the variability and complexity of conservation and preservation restrictions, there has been a tendency to oversimplify the value of particular types of restrictions. For example, some thought that a series of court decisions had created an informal rule that historic façade restriction donations would automatically reduce the value of a historic property between 10 and 15 percent. disavowed the notion that historic façade donations receive some set percentage reduction. Nicoladis v. Comm’r, T.C.M. (P–H) 1988–163 (1988). And a federal court has recently enjoined an organization from advertising that historic façade donations would automatically result in reductions of certain amounts. United States v. McClain, No. 1:11–cv–01087–GK (D.D.C. 2011). While conservation or preservation restrictions are flexible, individualized tools for protecting particular features of land and/or property, each restriction must be assessed by a qualified appraiser to gain an...
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Chapter 3. Preservation Act 97 results (showing 5 best matches)
- In lieu of strict adherence with Section 106, an agency may develop alternate procedures that meet the goals of Section 106. 36 C.F.R. § 800.14(a). Unlike programmatic agreements, which follow a process set forth in the regulations to deal with specific undertakings or types of undertakings, alternate procedures allow individual federal agencies to develop new processes that apply to certain actions they wish to cover. These procedures must be developed in consultation with the Advisory Council on Historic Preservation, the National Conference of State Historic Preservation Officers, and any relevant state or tribal historic preservation officers, Indian tribes, and Native Hawaiian organizations. Once the procedures are developed, the Advisory Council on Historic Preservation must formally approve them.
- • Created the Advisory Council on Historic Preservation, a federal agency that advises the President, sets federal historic preservation policy, and plays an integral role in the process through which agencies fulfill their obligations under the NHPA.
- Additional mandatory consulting parties include the state historic preservation officer (SHPO) and/or tribal historic preservation officer (THPO) with jurisdiction over the property on which the undertaking will occur or on which the historic resource is located. § 800.3(c). A SHPO is the individual, designated by her state, with responsibility for the state’s preservation programs. Among other responsibilities, a SHPO identifies, evaluates, and nominates eligible properties to the National Register of Historic Places, as further described in Chapter II. 16 U.S.C. § 470a(b)(3)(B). A THPO is the chosen representative of a Native American group who “may assume all or any part of the functions of a State Historic Preservation Officer.” . § 470a(d)(2). Normally, if a THPO has jurisdiction, only the THPO will be named a consulting party, not the SHPO. However, the owners of properties on tribal lands “which are neither owned by a member of the tribe nor held in trust by the Secretary...in
- The Advisory Council on Historic Preservation (ACHP) is an independent federal agency created by the National Historic Preservation Act and composed of members of the Cabinet, a governor, a mayor, a Native American representative, members of the public, and others. 16 U.S.C. § 470i(a). The ACHP has several key functions including: advising the President and Congress on historic preservation issues; encouraging public interest in preservation; assisting state and local governments in drafting preservation legislation; and reviewing agency policies and programs. § 470j(a). Importantly for this Chapter, the ACHP also promulgates the regulations for Section 106 and plays a crucial role in commenting on reviews conducted pursuant to Section 106. Its role in that process is discussed in Part C.
- The National Historic Preservation Act of 1966 (NHPA) is a sweeping statute that established a detailed federal program for historic preservation. Among other things, it:
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Chapter 4. National Environmental Policy Act 92 results (showing 5 best matches)
- But what, exactly, are the historic resources that NEPA protects? On this question, we get no specific guidance from the statute or regulations. Rather, guidance from CEQ suggests that in practice, agencies have been tasked with identifying a range of historic resources. A 2013 report from the CEQ and the Advisory Council on Historic Preservation (the federal agency overseeing historic preservation programs and policies) says that NEPA protects all historic resources listed on or eligible for the National Register of Historic Places, as well as a few other resources not eligible for the National Register. , & A NHPA: A H 106 (2013) at 4, 12–13. In theory, therefore, NEPA casts a wider net than does the National Historic Preservation Act, which requires federal agencies to review the impact of undertakings affecting only those resources listed on or eligible for the National Register of Historic Places. In practice, however, such an expansive interpretation is rare, because the...
- To encourage and emphasize cooperation within the NEPA environmental review process, the regulations also delineate the concepts of lead agencies and cooperating agencies. A lead agency is the “agency or agencies preparing or having taken primary responsibility for preparing the environmental impact statement.” 40 C.F.R. § 1508.16. A cooperating agency is a federal agency “other than a lead agency which has jurisdiction by law or special expertise with respect to any environmental impact involved in a proposal (or a § 1508.5. State agencies, local agencies, and Indian tribes may also be designated as cooperating agencies under NEPA if a federal agency action impacts a state, locality, or Indian reservation. This extension of cooperating agency status is important in the historic preservation context, as state and/or tribal historic preservation officers are usually cooperating agencies under NEPA when a federal agency action impacts historic resources within a state, locality, or...
- In explaining the meaning of human environment, the NEPA regulations refer readers to the definition of “effect” in 40 C.F.R. § 1508.8 (discussed in the preceding section). For historic preservation law, this reference is important, as it confirms that “aesthetic, historic, [and] cultural,” , effects will be reviewed, and that the corresponding resources impacted by such effects—historic resources—are covered by NEPA.
- The National Environmental Policy Act of 1969 (NEPA) is the centerpiece of federal environmental law. It ensures that our environment—defined to include natural and historic resources—is given consideration in federal project planning by requiring federal agencies to analyze the environmental impact of their major actions prior to beginning such actions. Like the National Historic Preservation Act discussed in Chapter III, NEPA is a procedural, rather than an outcome-based statute: NEPA does not mandate any particular result, but it requires an agency to follow certain procedures in its decision-making process. Accordingly, NEPA has been characterized (and sometimes criticized) as a “stop, look, and listen” statute. This characterization, while technically correct, probably understates NEPA’s profound impact on federal decisions affecting the environment, including the preservation of historic resources.
- In addition to requiring federal agencies to consider the impact of their actions before they begin, NEPA also created an agency in the executive office of the President to implement environmental policies that shape federal project planning: the Council on Environmental Quality (CEQ). The CEQ has promulgated detailed regulations for NEPA that set forth federal environmental review procedures. Andrus v. Sierra Club, 442 U.S. 347 (1979) (holding that the CEQ’s interpretation of NEPA is entitled to substantial deference). Note that in many respects, the CEQ is the environmental counterpart to the Advisory Council on Historic Preservation (ACHP), the federal agency created by the National Historic Preservation Act of 1966 and discussed in Chapter III. Similar to the CEQ’s role under NEPA, the ACHP promulgates regulations for the National Historic Preservation Act which bind all federal agencies and are afforded substantial deference by courts. We will further discuss the relationship...
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Chapter 2. Designation 88 results (showing 5 best matches)
- This Chapter focuses on the designation process at the federal level, and adds brief commentary about the designation process at the state and local levels. The content of this Chapter is foundational to an understanding of historic preservation law, because the laws in this book largely deal with resources that have been designated through the processes we describe here.
- National Register nominations come to the Keeper from three primary sources: (1) state historic preservation officers, (2) tribal historic preservation officers, and (3) federal preservation officers from the federal agencies. Private parties may not submit a nomination directly to the Keeper. Here we cover the procedures each of these three primary sources follow to submit nominations to the National Register. (The National Historic Landmark designation process requires special procedures not discussed here.
- Historic preservation law only protects resources that are “designated” historic and resources that are eligible for such designation. Through the designation process, decision-makers evaluate the integrity of the resource and the physical characteristics or relationships to history which make the resource significant. The process is largely conducted by non-lawyers who use their backgrounds (often in architecture, archaeology, or history) to evaluate resources within a legal framework. When a federal, state, or local official decides a resource meets the applicable designation criteria, it will be listed on the requisite public register of historic places and/or given another special name (such as a “landmark” or “scenic byway”).
- Most National Register nominations come through state historic preservation officers (SHPOs): individuals who have been designated by their states as being responsible for their respective statewide preservation programs. The SHPO must “identify and nominate eligible properties to the National Register and otherwise administer applications for listing historic properties on the National Register.” 16 U.S.C. § 470a(b)(3)(B). In practice, members of the public typically identify properties and draft nominations for the SHPO’s consideration, rather than the SHPO surveying properties and drafting nominations herself. The SHPO makes decisions about which properties to nominate in light of the state’s historic preservation plan and need not submit every suggested property to the Keeper.
- Tribal historic preservation officers (THPOs) “may assume all or any part of the functions of a State Historic Preservation Officer.” 16 U.S.C. § 470a(d)(2). This assumption of duties will be completed pursuant to a plan for a comprehensive tribal preservation program, approved by the Secretary of the Department of the Interior in consultation with affected SHPO(s).
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Chapter 14. Tax Credits 91 results (showing 5 best matches)
- The federal rehabilitation tax credit program has effectively catalyzed billions of dollars’ worth of historic preservation development. An understanding of this program is critical for historic preservation developers (and their attorneys).
- The federal rehabilitation tax credit program—the most significant direct federal financial aid to private historic preservation development projects—was created in 1978. At this time, cities around the country were experiencing high rates of vacant and neglected structures in urban neighborhoods with historic buildings. To spur economic development in these neighborhoods, Congress passed the Revenue Act of 1978. It authorized a 10 percent tax credit for rehabilitations of certain nonresidential properties. Three years later, Congress passed the Economic Recovery Tax Act, expanding the tax credit program to a three-tier system that authorized a 15 percent credit for rehabilitations of nonresidential buildings at least thirty years old, a 20 percent credit for nonresidential buildings at least forty years old, and a 25 percent credit for certified historic structures (residential and nonresidential alike).
- The National Trust for Historic Preservation, a nonprofit advocacy group, has identified a few areas that make some state tax credit programs more successful in attracting investment than others. These include:
- Thirty-one states also have historic tax credit programs. Many are based on the federal credit—and may even be coupled with the federal credit to make qualifying projects more attractive to historic preservation developers.
- : A P 2–4 (2011). We think these eight suggestions are wise, but few states have adopted them in their entirety. The National Trust for Historic Preservation maintains a website that lists key characteristics of the current state programs, available here: www.preservationnation.org/take-action/advocacy-center/additional-resources/historic-tax-credit-maps/state-rehabilitation-tax.html
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Index 110 results (showing 5 best matches)
- Advisory Council on Historic Preservation (see “Advisory Council on Historic Preservation”)
- NATIVE AMERICAN HISTORIC PRESERVATION AUTHORITIES (SEE “TRIBAL HISTORIC PRESERVATION OFFICERS”)
- Tribal Historic Preservation Officer, Relationship With (see “Tribal Historic Preservation Officers”)
- Role in Historic and Archaeological Data Protection and Preservation Act, 338–339
- Role in National Historic Preservation Act Tribal Provisions, 396–397, 403
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Dedication 1 result
Title Page 4 results
Outline 116 results (showing 5 best matches)
Chapter 16. International Preservation Law 104 results (showing 5 best matches)
- The idea for combining conservation of cultural sites with those of nature came from the United States. In 1965, a White House Conference called for a “World Heritage Trust” to protect the world’s superb natural and scenic areas and historic sites for present and future generations. At the 1972 United Nations Conference, a single text—melding the concepts of nature conservation and the preservation of cultural properties—was agreed upon by key parties and adopted by UNESCO.
- The United States has not yet engaged in any national efforts to protect significant resources from the foreseeable effects of armed conflicts. There are no American properties listed on the International Register of Cultural Property, which is a very short list (unlike the World Heritage List discussed in Part C). And there are no federal statutes imposing criminal or civil liability that specifically implement the Convention. Even extant statutes protecting cultural property, such as the National Historic Preservation Act of 1966 (NHPA), discussed in Chapter III, would not meet the standards of the Convention. While the NHPA provides a mechanism for identifying historically significant properties, the NHPA does not encompass all of the resources included in the Convention’s definition of cultural property; it excludes properties with merely
- The Secretary of the U.S. Department of the Interior, through the Assistant Secretary for Fish and Wildlife and Parks and the National Park Service, has the responsibility for administering the 1972 World Heritage Convention in the United States. Under the authority of Title IV of the National Historic Preservation Act (discussed in Chapter III of this book), the National Park Service has promulgated regulations for identifying, selecting, and nominating U.S. sites to the World Heritage List. 16 U.S.C. §§ 470a–1 & 36 C.F.R.73.1–17. Proposed sites are then sent to the World Heritage Committee for review and a decision of whether the sites qualify for World Heritage status. Designated World Heritage Sites are eligible for financial assistance to aid in protection and conservation through the World Heritage Fund. This section discusses the nomination process, the evaluation of nominations, and benefits for listed sites from the World Heritage Fund.
- • The property must currently be legally protected to ensure its preservation in the United States. Private owners of sites to be nominated must commit in writing to preserve their property in perpetuity.
- at arts. 77–78. The concept of integrity in the 1972 World Heritage Convention is similar to that used in the National Register of Historic Places—the United States’ list of properties and sites that have been designated historic (further described in Chapter II). Essentially, the resource or landscape must be in such physical condition that it can convey its significance.
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Copyright Page 4 results
- Nutshell Series, In a Nutshell
- The publisher is not engaged in rendering legal or other professional advice, and this publication is not a substitute for the advice of an attorney. If you require legal or other expert advice, you should seek the services of a competent attorney or other professional.
- Printed in the United States of America
- © 2014 LEG, Inc. d/b/a West Academic
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Advisory Board 11 results (showing 5 best matches)
- Professor of Law, Michael E. Moritz College of Law,
- Professor of Law Emeritus, University of San Diego Professor of Law Emeritus, University of Michigan
- Professor of Law, Chancellor and Dean Emeritus, Hastings College of the Law
- Professor of Law, Yale Law School
- Professor of Law, Pepperdine University Professor of Law Emeritus, University of California, Los Angeles
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- Publication Date: May 5th, 2014
- ISBN: 9780314180445
- Subject: Land Use
- Series: Nutshells
- Type: Overviews
Historic Preservation Law in a Nutshell provides the first-ever in-depth summary of historic preservation law within its local, state, tribal, federal, and international contexts. Historic Preservation is a burgeoning area of law that includes aspects of property, land use, environmental, constitutional, cultural resources, international, and Native American law. This book covers the primary federal statutes, and many facets of state statutes, dealing with the protection and preservation of historic resources. It also includes key topics like the designation process, federal agency obligations, local regulation, takings and other constitutional concerns, and real estate development issues.
Click here to read a book review from the National Trust for Historic Preservation.