By Gary L. Cole AIA, Esq.
“… 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, former 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.”
At the time, this was 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 tempered my expectations. Constructive governmental reform is rarely a swift or revolutionary process.
And, in 2024, more than ten years after former Secretary Salazar’s request to the NPS, little, if anything, has been done to accommodate that mandate.
Many of this country’s historic preservation laws and programs are nearly old enough for their own historic designations and are in dire need of rehabilitation. The historic property-owning public would certainly appreciate a little regulatory streamlining of the HTC program, starting with eliminating application fees for the redundant SHPO and NPS review process.
Meaningful reform also includes reforming how historic properties and communities attract reinvestment capital for business growth, job creation, and local economic stability. This reform should start by relegating the Standards to their stated and intended role of simply providing philosophical consistency for historic rehabilitation efforts. It should not continue to serve as a de facto historic building code enshrined as federal regulations and incorporated directly into federal and state historic preservation laws and programs, nor local historic preservation ordinances, including those of Certified Local Governments.
Hardly changed since their inception in 1977, the Standards comprise a ten-point manifesto of historic preservation’s essential rehabilitation doctrine as enforced by federal, state, and local historic preservation regulatory entities. Though most of the Standards have retained their relevance in varying amounts, some have not. The second part of the unloved Standard No. 9, for example, is the product of an equally unloved 1970s Modernist bias and should be eliminated …
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.
Presumedly to address this, the NPS has published 56 and counting “Interpreting the Standards Bulletins” which is prefaced in the NPS’s own words:
“… Interpreting the Standards Bulletins explain rehabilitation project decisions made by the National Park Service in its administration of the Historic Preservation Tax Incentives program. Each bulletin references the relevant standards. The bulletins are case-specific and are provided as information only; they are not necessarily applicable beyond the unique facts and circumstances of each case.”
Even admitting that the Standards are intended to provide philosophical consistency and that 56 — and counting — interpretive bulletins are needed to decipher and make objective sense of the Standards, all that has been accomplished is to transform doctrine into dogma and to raise the obvious question of why something so brief as the 10-point Standards needs 56 NPS bulletins to understand its application in historic rehabilitation.
And the Standards are not just used by the NPS in its administration of the federal HTC program. The Standards are expressly incorporated by reference into both state and local historic preservation rehab tax benefit programs, and especially into local historic preservation programs such as the “Certified Local Government” (CLG) programs. Local governments with historic preservation ordinances, including CLG approved local ordinances, often regulate local historic rehabilitation through the building permitting process which generally requires compliance with the Standards.
Historic Preservation in the United States is a regulatory octopus with the National Park Service and its interpretations of the Standards as its head, fifty-plus State Historic Preservation Offices as its arms, with sub-tentacles in the form of over 2,000 Certified Local Governments — all paying obeisance to the NPS’s interpretations of the Standards.
Worse, unlike the Standards, the NPS’s bulletins are not actual law – they’re merely NPS staff opinions, and in the NPS’s own words”… they are not necessarily applicable beyond the unique facts and circumstances of each case.” The are, however, written and presented authoritatively enough to bewilder a preservation supporting public untrained and unfamiliar with statutory interpretation. Some of the bulletins were written decades ago, but doing something one way for a long time doesn’t make it the best way of doing something.
If the Standards and their NPS interpretative bulletins are not a de facto historic preservation building code, I can’t imagine what would be.
Historic preservation in the 21st century deserves better.
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 choose 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 current 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 incentivizes reinvestment to create economic sustainability. A model code should be written as a deeply integrative collaboration between public regulatory and private development and investment interests with significant contributions from historic preservation, architecture, construction, community development, sustainable design, accessibility, and legal and financial interests.
A Model Historic Building Code should also be adopted and administered at the municipal level according to local conditions and community support in a way the Standards, as intractable federal regulations, cannot. Historic properties are a special type of real estate, but all real estate, as they say, is local. Decisions to adopt the model code should also be local. A Model Historic Building Code should also be adopted and administered at the municipal level according to local conditions and community support in a way the Standards, as intractable federal regulations, cannot.
Recent legislation may both mandate and foreshadow reforms to the Standards by the passage of the “Plain Writing Act of 2010,” already implemented by the National Park Service and which requires federal agencies to communicate clearly with the public, and President Obama’s Executive Order 13563, “Improving Regulation and Regulatory Review,” dated January 18, 2011, which states:
“… Our regulatory system must … promote predictability and reduce uncertainty … It must ensure that regulations are accessible, consistent, written in plain language, and easy to understand.”
The pending “Plain Regulations Act of 2012,” which has as its stated purpose: “To ensure clarity of regulations to improve the effectiveness of Federal regulatory programs while decreasing burdens on the regulated public,” speaks directly to the problem with the Standards and makes the development of a Model Historic Building Code all the more timely.
Secretary Salazar’s directive to reform the HTC program was commendable, but it should have had an immediate mandate to replace the Standards with a Model Historic Building Code the public can objectively understand and that better assists historic property owners and communities to attract reinvestment capital.
Sustainability is a much-bandied term in historic preservation, but only one kind of sustainability preserves historic properties: economic sustainability.
It’s certainly the kind that matters most to struggling historic communities.
Copyright Gary L. Cole AIA, Esq. 2024
Gary L. Cole AIA, Esq. is an Illinois and Florida licensed attorney and Illinois licensed architect with over 30 years of experience in a wide variety of historic preservation roles including as a staff architect at the Illinois SHPO; as a Visiting Associate Professor of Architecture/Preservation at the University of Illinois; as an instructor at Chicago’s School of the Art Institute’s historic preservation program; as General Counsel and Founding Board Member of the Chicago-Midwest Institute of Classical Architecture & Classical America; in his private law practice, and as a consultant providing historic preservation expert witness services for administrative and state and federal civil disputes.
