Listing on the national register and what it does and does not restrict, federal undertaking review and its consultation steps, local landmark commissions and certificates, preservation easements, rehabilitation tax credits, and demolition by neglect.
Under 36 CFR 60.4 a district, site, building, structure or object qualifies for the National Register if it possesses integrity and meets one of four criteria: association with significant events, association with significant persons, distinctive design or construction, or the capacity to yield important information. Nominations travel through the State Historic Preservation Officer and a state review board to the Keeper, and 36 CFR 60.6 gives a private owner an objection that blocks listing.
Under 36 CFR 800.16(y) an undertaking is a project, activity or program funded in whole or in part under the direct or indirect jurisdiction of a federal agency, carried out by or on behalf of an agency, carried out with federal financial assistance, or requiring a federal permit, license or approval. Section 800.3 requires the agency to decide first whether an undertaking exists and then whether it is the type of activity with potential to cause effects on historic properties.
Subpart B of 36 CFR Part 800 sets out four steps: initiation under 800.3, identification of historic properties under 800.4, assessment of adverse effects under 800.5, and resolution under 800.6. The preservation officer, Indian tribes, local governments, the applicant and interested members of the public are consulting parties. Resolution normally ends in a memorandum of agreement, or in a programmatic agreement for complex or repeated undertakings.
Section 800.5 of 36 CFR finds an adverse effect where an undertaking may alter, directly or indirectly, any characteristic qualifying a property for the National Register in a manner that diminishes the integrity of location, design, setting, materials, workmanship, feeling or association. The listed examples include destruction, treatment inconsistent with the Secretary's Standards, relocation, visual and audible intrusions, neglect, and transfer out of federal control.
National Register listing is honorific and procedural. It does not require an owner to maintain, restore, open or preserve a property, and it does not prevent alteration or demolition carried out with private funds and without federal involvement. What listing does is bring a property within 54 U.S.C. 306108, which requires a federal agency to take the effects of its undertakings into account, and it establishes eligibility for the federal rehabilitation credit and certain grants.
Demolition by neglect is the loss of a protected property through withheld maintenance rather than through demolition. Local ordinances address it by imposing an affirmative duty to keep a designated property weathertight, structurally sound and secure, enforced by repair orders, accruing penalties, liens, injunctions, municipal repair with cost recovery and sometimes receivership. Hardship the owner created is generally not a defense.
The Archaeological Resources Protection Act, at 16 U.S.C. 470aa and following, prohibits excavating, removing, damaging, altering or defacing any archaeological resource on public or Indian lands without a permit from the federal land manager. Permits under 16 U.S.C. 470cc require a qualified applicant, a research purpose in the public interest, curation of resources and records, and tribal consent on Indian lands.
Under 36 CFR 800.16(l) a historic property is one included in or eligible for inclusion in the National Register, so eligibility alone brings a property inside the review. Eligibility is usually settled by consensus between the agency and the preservation officer, and referred to the Keeper under 36 CFR Part 63 where they disagree. The area of potential effects covers the geography in which the undertaking may directly or indirectly alter historic properties.
A preservation easement is a recorded interest in real property conveyed to a government body or qualified charitable organization, restricting alteration and demolition and reserving to the holder rights to inspect, approve changes and enforce. Where a deduction is claimed, 26 U.S.C. 170(h) requires a qualified real property interest granted to a qualified organization exclusively for conservation purposes and protected in perpetuity.
Local historic designation is created by municipal ordinance under state enabling authority or home rule power. Designation of a landmark or a district is normally a legislative act preceded by a study, notice and a public hearing. Once designated, exterior alteration, new construction, relocation and demolition require a certificate of appropriateness from a preservation commission applying adopted design standards, with hardship relief and a route of appeal.
Section 47 of the Internal Revenue Code allows a rehabilitation credit equal to twenty percent of qualified rehabilitation expenditures for a certified historic structure, taken ratably over five years beginning when the building is placed in service. The building must satisfy the substantial rehabilitation test, and the work must be certified under 36 CFR Part 67 as consistent with the Standards for Rehabilitation. Early disposition triggers recapture.
