Guidance on Use of Real Property Restrictions or Conditions in the Section 106 Process to Avoid Adverse Effects
Federal agencies transfer real property out of federal ownership in a variety of ways and for a variety of reasons. When federal land managing agencies or permitting and assistance agencies transfer real property out of federal control, they often use preservation conditions. Sometimes referred to as covenants or easements, preservation conditions are restrictions and conditions on transfers of federal real property, put in place prior to transfer and written in such a way that they are adequate and legally enforceable to ensure the long-term preservation of a historic property's historic significance ("Preservation Conditions").
The National Historic Preservation Act (NHPA) includes provisions which state that historic preservation is a value to the public, and that the federal government should act as a steward of historic properties. Specifically, the NHPA states that the government should "administer federally owned, administered, or controlled historic properties in a spirit of stewardship for the inspiration and benefit of present and future generations." 54 U.S.C. § 300101(3). In the event that the federal government seeks to transfer a historic property, the proper application of Preservation Conditions is an example of its stewardship role.
Over the years, studies have demonstrated the economic value of preservation to a variety of stakeholders (http://www.achp.gov/economicstudies.html). Also, the NHPA states that the federal government should "contribute to the preservation of non-federally owned historic properties and give maximum encouragement to organizations and individuals undertaking preservation by private means." 54 U.S.C. § 300101(4). This means that federal agencies should consider effects which may occur when the transfer of non-historic federal property is planned near historic properties.
Section 106 and Real Property Transfers
Real property transfers are typically considered to be undertakings subject to the review process under Section 106 of the National Historic Preservation Act, 54 U.S.C. § 306108, and its implementing regulations at 36 C.F.R. part 800 ("Section 106"). The Section 106 regulations state that the transfer or sale of a historic property out of federal ownership or control constitutes an adverse effect when undertaken without adequate and legally enforceable restrictions or conditions to ensure the long-term preservation of the property's historic significance. 36 C.F.R. § 800.5(a)(2)(vii).
Typically in the Section 106 process, federal agencies use covenants as their Preservation Conditions. However, easements may be required by state law or may be preferred by those entities that will enforce the Preservation Conditions. More information can be found in a state's easement enabling statute (Read More), or other laws that control real property conditions and restrictions. A federal agency may propose to transfer a historic property for various reasons and in different ways. For instance, an agency may determine the property is excess to its needs; if the property is also determined as surplus to the needs of the federal government (as applicable), after a screening or public review process, there may be a proposal to transfer it through sale to a non-federal entity.
When a historic property is transferred with such Preservation Conditions, the federal agency is able to make a finding of "no adverse effect" in accordance with the Section 106 regulations.
This guidance addresses the use of Preservation Conditions on federal buildings that are listed on or eligible for the National Register of Historic Places, referred to in the Section 106 regulations as "historic properties." It does not address leases, landscapes (excepting building yards), archaeological sites, or personal property. For additional guidance on the use of Preservation Conditions, consider seeking legal counsel or contact the ACHP. When a federal agency is considering use of a Preservation Condition, the relevant SHPO/THPO may also be a useful source of information
The purpose of this guidance is threefold. This guidance is meant to help federal agencies that are considering placing a Preservation Condition on properties they intend to transfer out of federal ownership, and that desire to use a Preservation Condition to support a no adverse effect finding in the Section 106 review of the transfer. It is also meant to educate historic preservation stakeholders and the public regarding Preservation Conditions. This guidance may also assist parties working to amend existing Preservation Conditions.
While this guidance is focused on transfers or sales of properties out of federal ownership or control, its concepts could be useful in Section 106 reviews that may not involve such transfers or sales but include the consideration of Preservation Conditions on historic properties as measures to resolve other adverse effects on them. Such reviews would typically involve federal agencies providing financial assistance or permits for the relevant undertaking, rather than transferring or selling federal properties. For example, the Federal Highway Administration may agree to record a Preservation Condition for a historic property as a desirable way to resolve adverse effects on that property from a project it will financially assist.
As mentioned above, Preservation Conditions are adequate and legally enforceable to ensure the long-term preservation of the historic property's historic significance. The following definitions clarify these critical terms:
- Adequate: A Preservation Condition is "adequate" if it is designed to fully satisfy the purpose of ensuring the long-term preservation of the historic property's historic significance. This guidance, particularly as set out in Section III.a. (below), provides advice on characteristics that tend to make a Preservation Condition "adequate."
- Legally Enforceable: A Preservation Condition is "legally enforceable" if it is valid under applicable laws, allows a willing and able party to enforce it in court, and is such that a court can compel its performance. This guidance, particularly as set out in Section III.a. (below), provides advice on characteristics that tend to make a Preservation Condition "legally enforceable."
Former U.S. Post Office, Franklin, TN (Credit: Heritage Foundation of Franklin and Williamson County)
- Ensure Long-Term Preservation: A Preservation Condition ensures the long-term preservation of a historic property's historic significance if it is designed to require the property owner, over the reasonably foreseeable future and absent extraordinary circumstances, to maintain the physical integrity of those characteristics of the property that qualify it for inclusion in the National Register of Historic Places ("National Register").This guidance, particularly as set out in Section III.b. (below), provides advice on characteristics of a Preservation Condition that tend to allow it to ensure the long-term preservation of the subject historic property's historic significance.
- Real Property Conditions or Restrictions: Real property conditions or restrictions are usually in the form of easements or covenants.
- Federal Agency: A federal agency under the NHPA is each authority of the Executive branch of the United States government per 5 U.S.C. § 551. For purposes of this guidance, the term refers to such an agency with jurisdiction over the transfer of the property at issue, and the official within such an agency that has approval authority over such transfer and can commit the agency to appropriate action. 36 C.F.R. § 800.2(a). Also for purposes of this guidance, the term federal agency includes other federal entities, such as the United States Postal Service. Permitting and assistance agencies may also find this guidance helpful, though they typically do not have jurisdiction over the transfer of the property at issue.
IV. Roles and Responsibilities
- Federal Agency: Generally, the federal agency controls historic property on behalf of the United States government (Please see the definition above.). In accordance with the Section 106 regulations, federal agencies are required to take into account the effects of their undertakings, a term that may include proposed transfers of historic properties and afford the ACHP a reasonable opportunity to comment on such undertakings. 36 C.F.R. § 800.1(a). Such efforts should be administered in good faith and in accordance with applicable laws and regulations. Upon transfer of a historic property to a non-federal owner, the responsibilities and rights of the federal agency may be completely extinguished depending on the Preservation Condition.
- Advisory Council on Historic Preservation ("ACHP"): The ACHP is an independent federal agency that "promotes the preservation, enhancement, and sustainable use of our nation's diverse historic resources." In accordance with the Section 106 regulations, the ACHP may be invited by the federal agency to participate in consultation regarding a historic property transfer. The ACHP also plays a role in reviewing no adverse effect findings that have been challenged by consulting parties. For instance, an agency may propose a no adverse effect finding based on its commitment to place a Preservation Condition on the property. If a consulting party files a timely objection to such a finding (e.g., it believes the Preservation Condition does not ensure long-term preservation), the ACHP reviews the finding and provides the agency with its opinion on the matter before the agency makes a final determination.
Former Boilermaker's Shop (Exterior), Navy Yard Annex, Washington, DC (Credit: Wikipedia Commons, Library of Congress Prints and Photographs Division Washington, D.C.)
- Consulting Party: The parties listed in II.d. through II.g. (below) may have consultative roles in the Section 106 process as described in detail at 36 C.F.R. part 800.
- State Historic Preservation Officer (SHPO)/Tribal Historic Preservation Officer (THPO)/Tribe/Native Hawaiian Organization (NHO): In accordance with the Section 106 regulations, the SHPO is a consulting party regarding the planned historic property transfer. The SHPO may have a role in the transfer of historic property from federal ownership, if specified in the Preservation Condition, for continuing preservation. Similarly, federally recognized tribes and NHOs are consulting parties if the transfer affects a historic property of religious and cultural significance for the tribe or NHO, or, in the case of a tribe, the transfer occurs on tribal lands. For a tribe that has assumed the responsibilities of the SHPO for Section 106 on tribal lands, the THPO appointed or designated in accordance with the NHPA is the official representative for the purposes of Section 106. 36 C.F.R. § 800.2(c)(1-2).
- Preservation Condition Enforcement Entity: This entity has an important role upon transfer of historic real property from federal ownership, as specified in a Preservation Condition (and perhaps also in a Memorandum of Agreement ["MOA"] under 36 C.F.R. § 800.6(c), or a Programmatic Agreement ("PA") under 36 C.F.R. § 800.14(b)). This is an entity that has accepted the responsibility to enforce the Preservation Condition. It may also have other specific roles under the Preservation Condition, such as conducting reviews of proposed projects, post-transfer, that could affect the historic property. It is important to identify an entity which has the willingness, expertise, and financial resources (See VI. below) to monitor and enforce the condition, often a state or local government entity, or a preservation-related entity, including a SHPO or a non-profit organization. A federal agency can also be an enforcement entity, if they have the commitment and capacity to enforce the Preservation Condition.
It is essential that any enforcement entity have demonstrated experience in protecting historic properties and evidences its interest and capability, through its core mission or otherwise, in the long-term preservation of the property even after it, or parts of it, leave the federal agency's ownership. In remote areas or in other situations, in which the state government is unable to enforce Preservation Conditions, it can be challenging to identify an adequate enforcement entity. The Preservation Condition enforcement entity should have access to qualified personnel that can consistently apply the Secretary's Standards for the Treatment of Historic Properties (36 C.F.R. Part 68) and Secretary of the Interior's Standards and Guidelines.
Former Boilermaker's Shop (Interior), Navy Yard Annex, Washington, DC (Credit: Wikipedia Commons, Library of Congress Prints and Photographs Division Washington, D.C.)
The entity must consent to carry out its role. If the entity is not willing or able to do so, the conditions cannot be carried out and therefore will not meet all the requirements of a Preservation Condition as listed in this section II.e. [National Trust Field Offices, NCSHPO SHPO Directory, NPS Directory (2003-2006)].
- Prospective Property Owner: The prospective owner to whom the historic property will be transferred could be a state or local government, an organization, a corporate real estate developer, or a private citizen. If the prospective property owner is known prior to the completion of the Section 106 process, the federal agency should consider giving them status as a Consulting Party. Upon transfer of historic property from federal ownership, the property owner is responsible for property ownership, maintenance, and preservation (if the property is transferred with a Preservation Condition), among other things.
- Additional Consulting Parties: In accordance with the Section 106 regulations, those with a demonstrated interest may be given Consulting Party status by the relevant federal agency due to the nature of their legal or economic relation to the proposed transfer or affected properties, or their concern with the proposed transfer's effects on historic properties. The federal agency should consider granting Consulting Party status to both the Preservation Condition enforcement entity (II.e., above) and the prospective property owner (II.f., above).
- The Public: Members of the general public may be invited by the federal agency to participate in consultation regarding the proposed historic property transfer, or they may request to be part of the consultation by reaching out to the federal agency. The views of the public are essential to informed decision making in the Section 106 process.
V. Recommended Administrative Stipulations of Preservation Conditions
- Property Description: In addition to an accurate and sufficient legal description of the property being conveyed (maps, measurements, and bounds, etc.), the Preservation Condition should address other matters. The description should document that the property is considered a historic property (either because it has been listed in the National Register, or has been determined eligible for listing, in the National Register) since only such properties fall within the scope of Section 106 36 C.F.R. § 800.16(l) (See IV.b. below). The description should also list the character-defining features of the property – interior, exterior, or both –that make it a historic property. This information is particularly important to ensure such features are protected and not inadvertently affected. Lastly, the description should document, through photographs or otherwise, the condition of the property–including character-defining features–at the time of the transfer. This baseline information, sometimes referred to as a "Baseline Documentation Report," will avoid future disagreements as to what harm may have been caused prior to the transfer (not subject to the Preservation Condition) as opposed to after the transfer (subject to the Preservation Condition). It should also be in sufficient detail to support future inspection of the historic property, as specified in the Preservation Condition. The Preservation Condition should take into account the condition of the property and the conservation needs of its character-defining and related structural components, as assessed by qualified personnel, to provide consistent application of the Secretary's Standards for the Treatment of Historic Properties (36 C.F.R. Part 68) and Secretary of the Interior's Standards and Guidelines. (More here).
- Recordation: If authorized by state and local real property law, which may vary significantly by jurisdiction, the Preservation Condition must be incorporated into the deed and recorded, along with integral exhibits, in the land records of the jurisdiction. Since recording fees can be quite costly and may be based on numbers of pages, exhibits should be limited to provide that information which is necessary to the proper implementation of the Preservation Condition. An electronic or hard copy of the Preservation Condition and its exhibits should be provided to the prospective property owner, the enforcement entity (or entities), consulting parties (as applicable), and maintained in a publicly accessible location. By incorporating the Preservation Condition into the deed and recording it, it will run with the land and will be publicly accessible.
- Enforcement Procedures, Reviews: These procedures clarify the "who, when, and how" of enforcing a Preservation Condition. They identify what entity or entities have the right to enforce a Preservation Condition, and under what circumstances such entity or entities may pursue enforcement. They also specify how Preservation Conditions may be enforced (e.g., in court or through dispute resolution) and when.
- Dispute Resolution: A Preservation Condition may have a dispute resolution process that requires the property holder and the Preservation Condition enforcement entity to attempt to resolve disagreements on compliance with the Preservation Condition, prior to pursuing more formal enforcement efforts. If the Preservation Condition calls upon a separate entity to assist in resolving a dispute, the prior consent of that entity to carry out that role should be secured in order to give notice to the entity and to ensure the entity is willing and able to carry out the role.
- Inspection Rights: In order to better provide a Preservation Condition enforcement entity an opportunity to monitor compliance with the Preservation Condition, it should grant the enforcement entity reasonable rights to physically inspect the property.
- Extinguishment: A Preservation Condition may have provisions for its extinguishment for certain reasons. For instance, if the property suffers substantial harm, through no fault of the owner (such as a natural disaster, a fire, or other casualty loss), or there's an extraordinary circumstance defined in the Preservation Condition, it could provide for extinguishment. It is important to establish such types of extraordinary circumstances as the reasons allowing for extinguishment because Preservation Conditions need to be written so as to reasonably provide for long-term preservation of the property. If extinguishment is allowed under ordinary circumstances, the Preservation Condition would be much less likely to survive, and provide for preservation, in the long term.To avoid disagreements, the circumstances allowing for extinguishment should be clearly delineated. Judicial oversight is sometimes required for extinguishment.
- Amendments: A Preservation Condition should allow a process for amendments. Since the fundamental purpose of the Preservation Condition is to ensure the long-term preservation of the historic property, absent highly unusual circumstances, amendments should generally maintain or increase protection, rather than diminish or weaken protection. Various unforeseen changes in circumstances may arise for which the property owner and Preservation Condition enforcement entity may want to amend the Preservation Condition through mutual consent.
- Identification of Enforcement Entity Successor: A Preservation Condition enforcement entity that was willing and able to monitor and enforce the Preservation Condition at the time of the transfer may, for a variety of reasons, such as economic hardship or dissolution of its corporate charter, no longer be able to effectively carry out its role under the Preservation Condition. Accordingly, in order to ensure long-term viability of the Preservation Condition, it should specify who or what kind of entity would take over enforcement responsibilities under such circumstances. For instance, the Preservation Condition may provide enforcement entities with the ability to assign their roles to other entities. If the Preservation Condition has a provision for amendments, an amendment can be made to reflect the new Preservation Condition enforcement entity.
- Identification of a Third-Party Enforcement Entity: Many state enabling acts identify an individual entity (or entities) that, while they may be unfamiliar with a particular Preservation Condition, may sue to enforce the condition. It may be helpful to explicitly cross-reference the relevant state enabling act in the Preservation Condition. (Read More.)
VI. Recommended Substantive Stipulations of Preservation Conditions
- Minimum Standards of Protections :
Former Clara Barton Office of Missing Soldiers, Washington, DC (Credit: OLBN, Inc./Courtesy GSA)In order to ensure the long-term preservation of a property's historic significance, a Preservation Condition must include an affirmative obligation by the prospective owner to maintain the property's historic significance. The Preservation Condition must also include specific standards and protocols that must be followed by the property owner in maintaining the property and in making any physical changes to the property, and/or prohibitions against actions that could affect the property's historic significance. Many examples of Preservation Conditions require the owner to abide by the Secretary's Standards for the Treatment of Historic Properties (36 C.F.R. Part 68) when performing any preservation, restoration, rehabilitation, or restoration (including, for example, repair, maintenance, or stabilization) of the property. Other examples of Preservation Conditions require compliance with design guidelines or historic structure report recommendations. These may have the advantage of providing clearer standards that are more specific and tailored to the particular property. Finally, a Preservation Condition should require that the Preservation Condition enforcement entity use qualified personnel for oversight, to provide consistent application of the Secretary's Standards for the Treatment of Historic Properties (36 C.F.R. Part 68) and Secretary of the Interior's Standards and Guidelines.
- Public Access: Ultimately, the reason to preserve historic properties is to provide a benefit to the public. A lack of access to the character-defining features of such properties may be inconsistent with that public purpose. Accordingly, a Preservation Condition should require reasonable public access to appropriate areas of the property, that does not unduly interfere with the owners' use of the property nor compromise the physical integrity of those characteristics of the property that qualify it for inclusion in the National Register.
- Insurance: It is good practice for a Preservation Condition to include a requirement of maintenance of property insurance, unless the transfer is to a government entity or institution that, by law, regulation, or organizational bylaws, is self-insured. The insurance may be used to replace or rehabilitate character-defining features of the property when they have been harmed by fire loss, theft, or water damage. A non-governmental prospective property owner should be required to provide proof of insurance or prove they have the financial means to adequately cover a casualty loss of the historic property, or portions thereof.
- Emergency Procedures: A Preservation Condition should permit an owner to respond to an emergency as required by law, or as directed by governmental authorities, or as necessary to protect life and property, without violation of the Preservation Condition, and may require the owner to notify the Preservation Condition enforcement entity of such actions promptly.
- Minimum Standards of Protections :
VII. The Role of Preservation Conditions in Section 106 Reviews
- Establishment of an Undertaking: In accordance with the Section 106 regulations, the transfer of historic property from federal control constitutes an "undertaking," 36 C.F.R. § 800.16(y); the determination that a federal action is an "undertaking" is made by the federal agency in accordance with 36 C.F.R. § 800.3. Once the property leaves federal ownership, a new owner's actions that may affect the property may not be subject to Section 106 consideration unless there is federal involvement in a proposed new action (e.g., through assistance or permitting).
- Identification of Historic Properties: The property slated for transfer may itself be historic and/or other historic properties may be in the transfer's Area of Potential Effects (APE). 36 C.F.R. § 800.16(d).
Westport, CT Post Office (Credit: Evan Kalish)Historic property is defined as any prehistoric or historic district, site, building, structure, or object included in, or eligible for inclusion in, the National Register. The term "eligible for inclusion in the National Register" includes both properties formally determined as such in accordance with regulations of the Secretary of the Interior, at 36 CFR Part 60, as well as properties that have not been formally evaluated and determined eligible by the National Register, but that the federal agency and the SHPO agree meet the National Register criteria. 36 C.F.R. § 800.16(l). Historic properties in the Area of Potential Effects of the proposed transfer are identified by the federal agency, in consultation with the SHPO and other consulting parties 36 C.F.R. § 800.4.
- Finding of Effect - No Adverse Effect: If a historic property transfer is executed with 'adequate and legally enforceable restrictions or conditions to ensure long-term preservation of the property's historic significance' – often in the form of a set of Preservation Conditions – the agency may, following the process in 36 C.F.R. § 800.5, find that the proposed transfer has "no adverse effect." Subject to state and local real property law, a Preservation Condition must be recorded in the land records of the jurisdiction for the location of the property, generally through recordation of the deed.
- Finding of Effect - Adverse Effect: If the federal agency determines that the transfer may result in an adverse effect because, for example, the transfer cannot be executed with 'adequate and legally enforceable restrictions or conditions to ensure long-term preservation of the property's historic significance,' (e.g., even though the agency took reasonable steps, it was not able to identify a reliable Preservation Condition enforcement entity), or for other reasons, then the agency must proceed to the next step in the Section 106 process to resolve adverse effects 36 C.F.R. § 800.6, notifying the ACHP and, if applicable, inviting the ACHP to participate. 36 C.F.R. § 800.6(a)(1).
- Reasonably Foreseeable Effects: In applying the criteria of adverse effect, it is important for an agency, and all parties involved in consultation, to consider "reasonably foreseeable effects" caused by the proposed transfer, that may occur later in time, be farther removed in distance, or be cumulative 36 C.F.R. § 800.5(a)(1). These may or may not be addressed in a Preservation Condition; if after consideration of reasonably foreseeable effects there is a finding that an adverse effect is unavoidable, despite the Preservation Condition, the agency must proceed to the next step in the Section 106 process to resolve adverse effects 36 C.F.R. § 800.6, notifying the ACHP and, if applicable, inviting the ACHP to participate. 36 C.F.R. § 800.6(a)(1).
- Resolution of Adverse Effects: Resolution of adverse effects can be documented through a Memorandum of Agreement (MOA). An MOA can be especially useful if the agency needs to complete certain avoidance or minimization tasks (documentation, mothballing, archaeological surveying) or other tasks (engineering studies, environmental remediation), to get to a point where 'adequate and legally enforceable restrictions or conditions to ensure long-term preservation of the property's historic significance' can be determined through consultation. In those cases, a Preservation Condition and a commitment to legal recordation can be integrated into an MOA. An MOA can also be used when signatories agree on Preservation Conditions that are desirable, yet do not truly ensure long-term preservation. An MOA does not have to incorporate a Preservation Condition. Other methods for resolving adverse effects can be found at 36 C.F.R. § 800.14.(Note: Upon transfer of a historic property to a non-federal owner, the responsibilities and rights of the former federal owner may be completely extinguished.)
VIII. Preservation Conditions and Local Zoning and Land Use Laws
- Overview: A Preservation Condition can provide an additional layer of protection for historic property beyond existing protections under local zoning and land use laws. Local zoning and land use laws vary around the country; in some areas there are little or no zoning or land use restrictions on historic property while in other areas zoning and land use laws are extremely restrictive. In places where other approvals are required for permitting, such approval should be sought–along with any approvals required via the Preservation Condition–prior to the permit itself.
- Examining Local Protections: A Preservation Condition should be drafted to stand on its own, as local zoning and land use law may not provide for adequate, legally enforceable, long-term preservation of a historic property's historic significance.
Governor's Island, N.Y. (Credit: Wikipedia Commons, Arturoramos)
To this end, a Preservation Condition's restrictions may mimic or restate local land use and zoning restrictions, and may also add additional restrictions. Because local laws vary, a close examination of the local land use and zoning laws is important for consulting parties to understand what existing regulations may or may not be in place to protect historic property. As with any law, local zoning and land use regulations can be altered at any time through legislative action. In addition, local governments may not have the funding available to enforce their laws or they may selectively enforce regulations. As such, local zoning and land use laws should not necessarily be viewed as permanent protection for historic properties. A Preservation Condition imposed by an agency, on the other hand, can create long-term protection through the use of restrictions that are placed on the title to the historic property, thereby ensuring preservation independent of the local community's legislative decisions.
- Local Governments as Preservation Condition Enforcement Entities: In some instances, a Preservation Condition held by a local government may expand protections for a historic property beyond what the local government has prescribed in its ordinances. Under this scenario, the local government may be both the enforcer of its ordinance and the Preservation Condition enforcement entity. They must satisfy each role independently. If that may not be possible, when a governmental body's scope of authority limits its ability to enforce a Preservation Condition, thought should be given to having additional non-governmental enforcement entities, rather than relying on a local government as the sole enforcement entity. In addition, the Preservation Condition should state that Preservation Condition enforcement entities should have access to qualified personnel to provide consistent application of the Secretary's Standards for the Treatment of Historic Properties (36 C.F.R. Part 68) and Secretary of the Interior's Standards and Guidelines.
- Multiple Review Process: Property owners may need to go through multiple levels of review before making changes or alterations to their historic properties: first they should review the changes with the Preservation Condition enforcement entity to ensure the changes meet the terms of the Preservation Condition and then (if applicable) they should review such changes with the local governing body, which in many cases is a historic architectural review board or its staff. Note that these reviews are in addition to any local permitting processes (like building permits).
IX. Fees and Preservation Condition Enforcement
- Fees: While federal agencies are not required by law to pay fees, sometimes referred to as "stewardship fees," to support activities necessary to enforce Preservation Conditions, the entity accepting responsibility for enforcing a Preservation Condition may reasonably ask for them in order to ensure it can cover its operating requirements for administering and holding a Preservation Condition. A Preservation Condition may not be adequate or truly ensure long-term preservation if the selected enforcement entity is known to not have the capacity to carry out its role and does not receive the fees it needs to maintain such capacity (See II.e. above.). Sometimes, for a federal agency to identify a Preservation Condition enforcement entity, it may be helpful if the federal agency provides fees. If an entity is provided fees, they are typically paid when the Preservation Condition is legally placed on the property (through recordation or otherwise). Fees may be documented in the Preservation Condition, and may or may not be recurring.
- Funding Fees: If fees are required, they are traditionally paid by the new owner, but could also be paid by the federal agency disposing of the historic property (if they have the legal authority to do so) either directly, by agreement, or indirectly as a result of a negotiated price adjustment. Given that historic properties no longer held by the government cannot generate revenue or programming value for it, government entities may have a limited ability to fund enforcement fees levied over an extended period of time. Federal agencies may also not have sufficient funds to pay fees for enforcement of a Preservation Condition in public benefit conveyances generating little or no proceeds.
- Fee Scope: Fees can cover of variety of activities associated with the enforcement of a Preservation Condition. The activities supported by fees traditionally fall into one of two categories: enforcement or administrative.
Enforcement activities include the regular monitoring of the property protected by the Preservation Condition and the review of requested changes by the owner. Monitoring can include regular site visits, detailed inspections, and annual reports to ensure the conditions are being upheld. Additionally, the Preservation Condition enforcement entity may be required to review and approve reasonable requests for changes, modification, or repair to the historic property. These tasks would include application and design review and potential site visits for approval. In such instances, fees could provide for staffing and equipment for such performance for the duration of the Preservation Condition. Depending upon the size of the entity enforcing the Preservation Condition, or the location of the enforcement entity relative to the historic property, monitoring can be the most expensive cost.
Administrative activities include those costs associated with the long-term maintenance of a Preservation Condition such as attorney fees, appraisal costs, and court fees. These costs are typically associated with actions the Preservation Condition enforcement entity might be required to take if the Preservation Condition terms are not followed.
For additional guidance on the use of Preservation Conditions, consider seeking legal counsel or contact the ACHP. When a federal agency is considering use of a Preservation Condition, the relevant SHPO/THPO may also be a useful source of information on the preservation needs of the property at hand, and also various considerations relevant to the substantive terms of the draft Preservation Condition. The ACHP intends to supplement this guidance with case studies (Appendix II.) and regularly update this guidance as necessary. If you have any suggestions about this guidance, please contact the ACHP at email@example.com.
This guidance was developed by the ACHP. The ACHP consulted with a workgroup of federal agencies and other historic preservation stakeholders in its development, including the Department of Defense, the General Services Administration, the U.S. Postal Service, the Department of Veterans Affairs, the National Trust for Historic Preservation, and the National Conference of State Historic Preservation Officers.
Questions to Consider when Developing a Preservation Condition
When writing, reviewing, or consulting upon a Preservation Condition, the questions below should be considered to gauge whether a Preservation Condition adequately ensures the long-term preservation of a property's historic significance, in accordance with the Section 106 regulations.
- Why is the historic property listed on or eligible for the National Register? What are the characteristics that qualify it for inclusion in the National Register?
- Has the property been documented through written descriptions, photographs, drawings, etc.?Are original drawings available, and can they be digitized?
- What is the current condition of the property? Is it documented in a written description, photographs, or drawings?
- How will the historic property be maintained and preserved in the short- and long-term?
- What is the intended use of the property? If the proposed use is known, will that use necessitate physical changes to the property and its character-defining features? Who will review proposed changes, and will there be an effect on the property's character-defining features?
- Who will own and/or manage the property?
- Will the public have access to the historic property?
- Is there potential for the property to contain archaeological resources that are eligible for listing on the National Register? Will ground disturbance occur following transfer?
- What happens in case of an emergency?
- What happens in case of a dispute?
- Are fees being requested, and if so, who will pay?
- Where will the Preservation Condition, and associated exhibits, be recorded for future reference?
(To be developed)