Historic Rehab Tax Incentives

A Call for Replacing the Secretary’s Standards with a Model Historic Building Code

April 8, 2013

By Gary L. Cole AIA, Esq.

[Author’s Note:  The following article was also be published in the April 2013 print and online edition of Traditional Building Magazine.]

                                                           

“The Standards are neither technical nor prescriptive, but are intended to promote responsible preservation practices that help protect our Nation’s irreplaceable cultural resources.  For example, they cannot, in and of themselves, be used to make essential decisions about which features of the historic building should be saved and which can be changed.  But once a treatment is selected, the Standards provide philosophical consistency to the work.”  Introduction to Standards and Guidelines.  National Park Service.

 

On January 25, 2013, U.S. Secretary of the Interior Ken Salazar asked the National Park Service (NPS) to conduct an internal review of the Federal Historic Preservation Tax Incentives Program (HTC) to “. . . make sure that we are doing everything we can to work in partnership with local communities, developers and other stakeholders to provide guidance and promote restoration efforts.”

This is welcome news, though as a former Illinois State Historic Preservation Office (SHPO) staff architect charged with interpreting the Secretary of the Interior’s Standards for Rehabilitation (Standards) for the HTC and other historic rehabilitation tax-incentive programs and now as a private practice attorney, I temper expectations.  Governmental reform is rarely a swift or revolutionary process.

Many of historic preservation’s laws and programs are nearly old enough for their own historic designations and are in dire need of rehabilitation.  The public would certainly benefit from a little regulatory tinkering with the HTC program, starting with eliminating application fees and the redundant SHPO and NPS review process.

Many of historic preservation’s laws and programs are nearly old enough for their own historic designations and are in dire need of rehabilitation.

However, meaningful reform includes reforming the way historic properties and communities are able to attract reinvestment capital for business growth, job creation and local economic stability.  This should start by relegating the Standards to their intended role of simply providing philosophical consistency to historic rehabilitation efforts, and not as a de facto historic building code by historic preservation administrative entities.

Hardly changed since their inception in 1977, the Standards comprise a ten-point manifesto of historic preservation’s essential rehab doctrine as enforced by federal, state and local historic preservation regulatory entities.  While philosophical guidance can inform the development of federal regulations with high social and legal aspirations, the vague language of the Standards bars the public from any objective, plain meaning understanding of their text.  Published “Interpretations” of the Standards by the NPS have merely transformed doctrine into dogma.  Though most of the Standards have retained their relevance, some, such as the unloved Standard No. 9, is the product of an outdated 1970s Modernist architectural bias and should be eliminated.

Though most of the Standards have retained their relevance, some, such as the unloved Standard No. 9, is the product of an outdated 1970s Modernist architectural bias and should be eliminated. 

Communities seeking to redevelop their historic properties compete with other communities for a limited pool of private reinvestment capital.  When faced with choices, developers and investors will often chose the more predictable and less risky of those options.  The ambiguous Standards and their unpredictable interpretations by administrative entities can decrease the former, increase the latter and discourage reinvestment in historic properties.

But the solution is simple:  the Secretary of the Interior should support phasing out the Standards and replacing them with a Model Historic Building Code that conforms to the Federal Plain Language Guidelines, combines the ethics of the Standards with clear performance and prescriptive rehabilitation requirements; embraces 21st century preservation technology and materials science; and . . .

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Secretary of the Interior to Review and Streamline Historic Tax Credit Regulations?

By Gary L. Cole AIA, Esq. / Attorney & Architect

Intriguing article at http://www.cpapracticeadvisor.com/news/10859567/tax-credit-for-historic-preservation-to-be-reviewed

Secretary of the Interior Ken Salazar to review the Historic Tax Credit’s (HTC) regulations to make them easier to use “in cities like Detroit.”  I assume he’s just giving an example of where HTC’s are heavily used – like Detroit – and is not suggesting creating special regulations for blighted urban areas and forgetting the rest of the country.

But I like that the article also alludes to problems with the Secretary’s Standards, which – as a former administrator of the HTC, other preservation tax benefits and interpreter of the Standards for the State of Illinois – I have long held that the Standards are overdue for a complete replacement as a de facto historic building code.  That was never their intended purpose.

I’m publishing a number of articles soon addressing the need for a more comprehensive overhaul of Historic Preservation’s regulations and programs such as the HTCs, the National Register and Section 106, as well as emphasizing greater state and federal preservation agency transparency to the public – all to make it easier and less expensive for owners and developers to rehabilitate historic properties.  But, more on that later.

Copyright Gary L. Cole AIA, Esq. 2012

Gary L. Cole AIA, Esq. http://www.garylcolelaw.com/ is Chicago-based Illinois and Florida-licensed attorney and Illinois-licensed architect. He practices design & construction law, real estate law, historic preservation law, accessibility law, is an arbitrator with the American Arbitration Association’s Construction Division, is a Certified Mediator, and is a consultant and an expert witness in civil construction, historic preservation and federal accessibility litigation. He can be contacted at garycole@garylcolelaw.com.

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Beyond Historic Tax Credits: Treasure Hunting for Historic and Non-Historic Rehab Financial Incentives

Originally Published 2011

By Gary L. Cole AIA, Esq.

[Author’s Note: The following lecture was presented on October 22, 2010 at the 2010 Traditional Building Exhibition and Conference in Chicago. Fair warning – it’s a bit longer than most LawArk posts. I’d originally intended to post it in parts, but instead, have decided to post the whole thing at once and also provide it as a PDF that can be downloaded by clicking here – to be chewed in bite-sized chunks at any reader’s leisure.

And, as always: Nothing in the following article should be construed as legal or business advice. Readers should always consult their legal or business professionals for specific advice and information.]

Gary L. Cole AIA, Esq. http://www.garylcolelaw.com/ is Chicago-based Illinois and Florida-licensed attorney and Illinois-licensed architect. He practices design & construction law, real estate law, preservation law and accessibility law, is an arbitrator with the American Arbitration Association’s Construction Division, and is a Certified Mediator and on the roster of Mediators for the Association of Licensed Architects. He can be contacted at garycole@garylcolelaw.com.

The following is a bullet-point summary of the lecture’s main points:

▪ A wide range of historic and non-historic incentives benefitting a property owner’s federal income taxes, property taxes, project equity requirements – far beyond those typically promoted by government historic preservation entities and preservation not-for-profits – may be available for historic rehabilitation projects.

▪ Development incentives that are not specifically intended for historic redevelopment may be available to historic rehabilitation projects.

▪ A comprehensive approach for discovering incentives available for historic rehabilitation projects should include a methodology for researching and analyzing both historic and non-historic incentives.

▪ The tools for discovering incentives are available to anyone.

▪ This lecture used the metaphor of “treasure hunting” to illustrate how to research and discover development financial incentives for historic rehabilitation as a way to frame the exercise in a more interesting way – hopefully.

Beyond Historic Tax Credits: Treasure Hunting for Historic and Non-Historic Rehab Financial Incentives

By Gary L. Cole AIA, Esq.

Introduction: I’d like to thank everyone for coming here today. My name is Gary Cole, and I’m an Illinois-licensed architect, and an Illinois and Florida-licensed attorney. I received a Bachelor of Architecture degree from the University of Illinois in Chicago in 1988, and a Master of Architecture degree, in its Historic Preservation option, from the Universe Illinois and Champaign-Urbana in 1992. Following graduation, I became an historical architect with the Illinois Historic Preservation Agency, during which I helped administer various historic rehab tax benefit programs, supported the National Register program, provided technical assistance in connection with state and federal preservation regulatory laws, and also worked with the National Trust and FEMA during the 1993 Mississippi floods. Also in 1993, I became . . .

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Corvettes and the National Register: A Landmark in Your Garage?

Originally Published 2011

By Gary L. Cole AIA, Esq.

[Note from Gary L. Cole AIA, ALA, Esq.: Government-sponsored Historic Preservation as a movement is nearing the half-century mark, and though it’s done its job well, it’s also due for fresh ideas and thought leadership. Actually, it’s in need of a substantial 21st century overhaul: one that shifts it from government as a strict regulator of private preservation activities, to more of a public-private partnership with government as a learned mentor and advisor to private capital investors – those who take 100% of the risk in any historic rehabilitation project.

Accordingly, this article looks at the National Register of Historic Places landmarking process as a tool for encouraging the preservation of not simply buildings and other fixed icons of American culture – but mobile ones as well.]

Stephen A. Thompson is a guest author on LawArk and a unique historic preservation professional who has been involved with more than 10,000 historic preservation regulatory and landmarking matters. He’s an Illinois-based cultural resource consultant focusing on the management and development of historic properties. Through full-time positions within historic preservation and environmental sections of the National Park Service, the Illinois State Historic Preservation Agency and the U.S. Department of Defense, Mr. Thompson has gained unique insight in the legal, procedural and budgetary planning aspects of cultural resource management. Thompson is a student of post-Napoleonic military history and is an enthusiastic participant in battlefield archaeological documentation and interpretation programs.

His CV can be viewed and downloaded HERE and he can be contacted directly at skthompson@mchsi.com.

By Stephen A. Thompson

When the idiom “historic landmark” comes to mind, some envision a grand piece of architecture regaled for its innovative aesthetic design or classical presentation. Others may visualize the landscape remains of some archaic civilization. Generally, historic landmarks are defined by entities advocating preservation as properties associated with human activity. Buildings, structures, objects and landscape sites exhibiting significance, integrity and meeting minimum age requirements can easily fall into the landmark category.

But what of the mobile mechanisms of society, those marvels of engineering without which the State of Mankind would be differently structured? Those ships, planes, trains, trucks, motorcycles, automobiles and their derivatives?

Actually, a few ships, locomotives, rolling stock and aircraft have been . . .

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Legal Issues When Historic Preservation Goes Green

Originally Published 2010

By Gary L. Cole AIA, Esq.

[Author’s Note: The following paper was presented on October 21, 2010 at the 2010 Traditional Building Exhibition and Conference in Chicago. Fair warning – it’s a bit longer than most LawArk posts. Well, a lot longer. I’d originally intended to post it in parts, but instead, decided to post it all at once to be chewed in bite-sized chunks at a reader’s leisure.

And, as always: Nothing in the following post or paper should be construed as legal or architectural advice – the contents are entirely the unsolicited opinions of the author. Parties should always consult their legal or design professionals for specific advice and information.]

The following is a bullet-point summary of the paper’s main points:

▪ Local governments that have enacted historic preservation ordinances (HPOs), and, that are considering enacting green building ordinances (GBOs) which might affect local or National Register-designated historic properties, should proceed with caution because:

– unlike the underlying legislation for most local HPOs – the NHPA of 1966, which was deliberated by the U. S. Congress and is well-vetted after more than four decades since its enactment – the entire premise for GBOs, i.e., “anthropogenic global warming” is becoming increasingly controversial, rendering GBOs increasingly vulnerable to legal challenges;

– tying compliance with GBOs to third-party energy and resource-efficiency standards such as LEED, especially for politically motivated reasons and without proper consideration of local economic development, may subject such GBOs to legal challenges;

– GBOs that fail to require prior local approval of adopting changes to third-party standards such as LEED may also subject such GBOs to legal challenges; and

– GBOs that fail to balance carrots and sticks – incentives and requirements – may have a chilling effect on local development.

▪ Depending on how GBOs are drafted – with or without due consideration of HPOs – the two ordinances may impose conflicting requirements on owners and developers undertaking the rehabilitation of local historic properties as follows:

– compliance with a GBO may impact the character-defining features of an historic property, thereby running afoul of an HPO and preventing permitting from a local preservation commission as well as disqualifying a project for historic tax incentives; and/or

– compliance with a local HPO and the National Register may prevent a property from complying with a GBO, especially as relates to achieving any required green building ratings, thereby affecting permitting and any possible financial incentives.

▪ The paper concludes with possible mitigation strategies for dealing with conflicts between HPOs and GBOs, and suggestions for cities considering enacting GBOs.

Traditional Building Exhibition & Conference, Chicago, October 21, 2010 – “Legal Issues When Historic Preservation Goes Green”

Introduction: I’d like to thank everyone for coming here today. I’m going to start by giving a brief introduction of myself, and why I think a discussion about possible frictions between green building ordinances and historic preservation laws is both timely and relevant.

My name is Gary Cole, and I’m an Illinois licensed architect, and Illinois and Florida-licensed attorney. I received a Bachelor of Architecture . . .

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Gary L. Cole AIA, Esq. Speaking at the Traditional Building Exhibition & Conference in Chicago, October 21 & 22, 2010

Originally Published 2010

By Gary L. Cole AIA, Esq.

Gary L. Cole AIA, Esq., will deliver two lectures at the Traditional Building Exhibition and Conference in Chicago on October 21 & 22, 2010.

The first lecture will be held at 9:00 a.m., on Thursday, October 21 and is titled “Avoiding Legal Liability When Preservation Goes Green.” Attendees of this session will gain an understanding of how to avoid legal pitfalls that can arise when rehabilitating historic properties that are subject to both preservation laws and energy-efficiency requirements.

The second lecture will be held at 1:15 p.m. on Friday, October 22, and is titled “Beyond Historic Tax Credits – Creatively Combining and Strategizing the Use of Historic Rehabilitation Economic Incentives and Finance Opportunities.” This lecture will deal with how to treasure hunt and research, analyze and project historic rehabilitation development incentives that go beyond the usual Federal Historic Tax Credits to include such incentives as New Markets Tax Credits, historic property-tax incentives, historic façade/conservation easements, Low-Income Tax Credits, Tax-Increment Financing (TIFs), public financing, energy-efficiency tax benefits, cost segregation and accelerated depreciation, various grants and other development incentives – and how to bundle these incentives together for greater benefits.

Further details about the Traditional Building Exhibition and Conference, including registration information, can be found at the conference’s website at http://www.traditionalbuildingshow.com/index.shtml

© Copyright Gary L. Cole AIA, Esq. 2010

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