[House Hearing, 108 Congress]
[From the U.S. Government Publishing Office]
REAUTHORIZATION OF THE ADVISORY COUNCIL ON HISTORIC PRESERVATION AND
PRIVATE PROPERTY PROTECTION UNDER THE NATIONAL HISTORIC PRESERVATION
ACT
=======================================================================
OVERSIGHT HEARING
before the
SUBCOMMITTEE ON NATIONAL PARKS, RECREATION, AND PUBLIC LANDS
of the
COMMITTEE ON RESOURCES
U.S. HOUSE OF REPRESENTATIVES
ONE HUNDRED EIGHTH CONGRESS
FIRST SESSION
__________
June 3, 2003
__________
Serial No. 108-24
__________
Printed for the use of the Committee on Resources
Available via the World Wide Web: http://www.access.gpo.gov/congress/
house
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______
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COMMITTEE ON RESOURCES
RICHARD W. POMBO, California, Chairman
NICK J. RAHALL II, West Virginia, Ranking Democrat Member
Don Young, Alaska Dale E. Kildee, Michigan
W.J. ``Billy'' Tauzin, Louisiana Eni F.H. Faleomavaega, American
Jim Saxton, New Jersey Samoa
Elton Gallegly, California Neil Abercrombie, Hawaii
John J. Duncan, Jr., Tennessee Solomon P. Ortiz, Texas
Wayne T. Gilchrest, Maryland Frank Pallone, Jr., New Jersey
Ken Calvert, California Calvin M. Dooley, California
Scott McInnis, Colorado Donna M. Christensen, Virgin
Barbara Cubin, Wyoming Islands
George Radanovich, California Ron Kind, Wisconsin
Walter B. Jones, Jr., North Jay Inslee, Washington
Carolina Grace F. Napolitano, California
Chris Cannon, Utah Tom Udall, New Mexico
John E. Peterson, Pennsylvania Mark Udall, Colorado
Jim Gibbons, Nevada, Anibal Acevedo-Vila, Puerto Rico
Vice Chairman Brad Carson, Oklahoma
Mark E. Souder, Indiana Raul M. Grijalva, Arizona
Greg Walden, Oregon Dennis A. Cardoza, California
Thomas G. Tancredo, Colorado Madeleine Z. Bordallo, Guam
J.D. Hayworth, Arizona George Miller, California
Tom Osborne, Nebraska Edward J. Markey, Massachusetts
Jeff Flake, Arizona Ruben Hinojosa, Texas
Dennis R. Rehberg, Montana Ciro D. Rodriguez, Texas
Rick Renzi, Arizona Joe Baca, California
Tom Cole, Oklahoma Betty McCollum, Minnesota
Stevan Pearce, New Mexico
Rob Bishop, Utah
Devin Nunes, California
VACANCY
Steven J. Ding, Chief of Staff
Lisa Pittman, Chief Counsel
James H. Zoia, Democrat Staff Director
Jeffrey P. Petrich, Democrat Chief Counsel
------
SUBCOMMITTEE ON NATIONAL PARKS, RECREATION, AND PUBLIC LANDS
GEORGE P. RADANOVICH, California, Chairman
DONNA M. CHRISTENSEN, Virgin Islands, Ranking Democrat Member
Elton Gallegly, California Dale E. Kildee, Michigan
John J. Duncan, Jr., Tennessee Ron Kind, Wisconsin
Wayne T. Gilchrest, Maryland Tom Udall, New Mexico
Barbara Cubin, Wyoming Mark Udall, Colorado
Walter B. Jones, Jr., North Anibal Acevedo-Vila, Puerto Rico
Carolina Raul M. Grijalva, Arizona
Chris Cannon, Utah Dennis A. Cardoza, California
John E. Peterson, Pennsylvania Madeleine Z. Bordallo, Guam
Jim Gibbons, Nevada Nick J. Rahall II, West Virginia,
Mark E. Souder, Indiana ex officio
Rob Bishop, Utah
Richard W. Pombo, California, ex
officio
C O N T E N T S
----------
Page
Hearing held on June 3, 2003..................................... 1
Statement of Members:
Christensen, Hon. Donna M., a Delegate to Congress from the
Virgin Islands............................................. 3
Radanovich, Hon. George P., a Representative in Congress from
the State of California.................................... 1
Prepared statement of.................................... 2
Statement of Witnesses:
Bisno, Robert, Owner, Lincoln Place Apartments, Venice,
California................................................. 20
Prepared statement of.................................... 22
Nau, John L., III, Chairman, Advisory Council on Historic
Preservation, Washington, DC............................... 8
Prepared statement of.................................... 9
Sanderson, Edward, President, National Conference of State
Historic Preservation Officers, Washington, DC............. 14
Prepared statement of.................................... 16
Tiller, De Teel Patterson, Acting Associate Director for
Cultural Resources, National Park Service, U.S. Department
of the Interior, Washington, DC............................ 4
Prepared statement of.................................... 6
OVERSIGHT HEARING ON THE REAUTHORIZATION OF THE ADVISORY COUNCIL ON
HISTORIC PRESERVATION AND PRIVATE PROPERTY PROTECTION UNDER THE
NATIONAL HISTORIC PRESERVATION ACT
----------
Tuesday, June 3, 2003
U.S. House of Representatives
Subcommittee on National Parks, Recreation, and Public Lands
Committee on Resources
Washington, DC
----------
The Subcommittee met, pursuant to call, at 2 p.m., in room
1334, Longworth House Office Building, Hon. George Radanovich
[Chairman of the Subcommittee] presiding.
Mr. Radanovich. Good afternoon. The Subcommittee on
National Parks, Recreation, and Public Lands will come to
order.
STATEMENT OF THE HON. GEORGE RADANOVICH, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF CALIFORNIA
This afternoon the Subcommittee on National Parks,
Recreation, and Public Lands will conduct an oversight hearing
on private property protection under the National Historic
Preservation Act and the reauthorization of the Advisory
Council on Historic Preservation.
As you are aware, the Subcommittee has jurisdiction over
the preservation of historic ruins and objects of interest on
the public domain and other historic preservation programs and
activities, including national monuments, historic sites and
programs for international cooperation in the field of historic
preservation.
I think it is important to take a moment here right now to
clarify for those in the audience, as well as those listening
via the Committee's audio system, what my reasoning is for
calling this hearing today.
Recently, a case was brought to my attention where an
application for eligibility was submitted by a third party for
an apartment complex in Los Angeles, California. What concerns
me with this case is two-fold. First, the owner of the
apartment complex furiously objected to the application, yet it
appears his pleas were largely ignored by the State historic
preservation office; and, second, what will be the effects from
the case on the integrity of the National Historic Preservation
Act.
Especially important to note is, in this case, was that
before the application was even considered and nominated by the
SHPO for eligibility, it was rejected by the city planning
department, the planning commission, the city's cultural
heritage commission, the city council, for not meeting the
criteria for local significance.
Today, I am very concerned that this important Act, one
that I support very much, will now become a tool used by
preservationists and activists in State historic preservation
offices to halt development or redevelopment of communities
across our country.
For the record, I have always seen the National Historic
Preservation Act and the Advisory Council as success stories
because of the cooperative nature promoted between the Federal
and State governments, preservationists and owners of historic
property.
I believe John Nau, the chairman of the Advisory Council on
Historic Preservation, who will testify today is a great
example of someone who has taken personal responsibility to
develop historic tourism as an economic development engine,
thus giving historic preservation an economic basis.
I believe that we are all stewards of our past, or we
should be, and that preservation of our cultural and historic
resources is our collective responsibility as a society. In
fact, I have long promoted a designated historic district in my
hometown of Mariposa, California.
What I would like to understand today is, is the situation
I briefly outlined--an anomaly or is there a dangerous trend
developing across the country where third parties, such as
apartment tenants, are taking advantage of the Act and its
effect on local development to serve their own purposes?
Consequently, should this Committee take action to prevent
further abuse of the Act?
I look forward to the testimony of all of our witnesses
today, especially Mr. Robert Bisno, the property owner in Los
Angeles, who I referred to in my statement, and my good friend,
Mr. John Nau.
At this time, I will yield to Mrs. Christensen, our Ranking
Member for your opening statement. Donna.
[The prepared statement of Mr. Radanovich follows:]
Statement of The Honorable George Radanovich, Chairman,
Subcommittee on National Parks, Recreation and Public lands
Good afternoon. The hearing will come to order.
This afternoon the Subcommittee on National Parks, Recreation and
Public Lands will conduct an oversight hearing on private property
protection under the National Historic Preservation Act and the
reauthorization of the Advisory Council on Historic Preservation. As
you are aware, the Subcommittee has jurisdiction over the preservation
of prehistoric ruins and objects of interest on the public domain and
other historic preservation programs and activities, including national
monuments, historic sites and programs for international cooperation in
the field of historic preservation.
I think it is important that I take a moment to clarify for those
in the audience as well as those listening via the Committee's audio
system what my reasoning is for calling this hearing today.
Recently, a case was brought to my attention where an application
for eligibility was submitted by a third party for an apartment complex
in Los Angeles, California. What concerns me with this case is twofold:
First, the owner of the apartment complex furiously objected to the
application, yet it appears his pleas were largely ignored by the State
Historic Preservation Office, and second, what will be the effects from
this case on the integrity of the National Historic Preservation Act.
Especially important to note in this case was that before the
application was even considered and nominated by the SHPO for
eligibility, it was rejected by the city planning department, the
planning commission, the city's cultural heritage commission and the
city council for not meeting the criteria for local significance.
Today, I am very concerned that this important Act will now become
a tool used by preservationists and activists in State Historic
Preservation Offices to halt development or redevelopment of
communities across our country.
For the record, I have always seen the National Historic
Preservation Act and the Advisory Council as success stories because of
the cooperative nature promoted between the Federal and State
governments, preservationists, and owners of historic property. I
believe John Nau, Chairman of the Advisory Council for Historic
Preservation, who will testify today, is a good example of someone who
has taken personal responsibility to develop historic tourism as an
economic development engine, thus giving historic preservation an
economic basis. I believe that we are all stewards of our past, and
that preservation of our cultural and historic resources is our
collective responsibility as a society. In fact, I have long promoted a
designated historic district in my hometown of Mariposa, California,
which includes the John C. Fremont adobe.
What I would like to understand today is, is the situation I
briefly outlined an anomaly, or is there a dangerous trend developing
across the country where third parties, such as apartment tenants, are
taking advantage of the Act and its effects on local development to
serve their own purposes. Consequently, should this Committee take
action to prevent further abuse of the Act.
I look forward to the testimony of all of our witnesses today,
especially Mr. Robert Bisno, the property owner I referred to in my
statement.
At this time, I yield to Ms. Christensen, our Ranking Member, for
her opening statement.
______
STATEMENT OF THE HON. DONNA M. CHRISTENSEN, A DELEGATE TO
CONGRESS FROM THE TERRITORY OF THE VIRGIN ISLANDS
Mrs. Christensen. Thank you, Mr. Chairman.
For nearly 40 years, the Historic Preservation Act has
provided the backbone of a national strategy for the
preservation of valuable pieces of American history. Under the
Act, the National Park Service, the National Council on
Historic Preservation, State historic preservation officers,
local preservation organizations and private individuals worked
together in a cooperative process to identify, protect and
preserve significant American treasures.
Importantly, this is not a Federally directed system.
Nominations come from individuals and from local organizations.
These nominations are then evaluated by the State historic
preservation officers appointed at the State level who are
given broad latitude regarding whether such nominations merit
consideration at the Federal level or not.
Flexibility, grassroots involvement and careful
professional consideration of nominations have been hallmarks
of this process. Obviously, the National Council on Historic
Preservation plays a critical role in ensuring that no Federal
action will unnecessarily impact historic property.
Authorization of funding of the Council expires at the end
of the 2005 fiscal year. In our view, the Council has always
done its job well, but we look forward to hearing from our
witnesses regarding any improvements to existing law that might
help the Council perform its valuable functions more
effectively.
However, we find the inclusion of private property rights
on the Subcommittee agenda today somewhat puzzling. Nothing in
the Historic Preservation Act prevents the owner of private
property listed in the Register or property deemed eligible for
such listing from doing as he or she wishes with that property.
A privately owned building listed in the National Register
may even be demolished by the owner at any time under Federal
law. Furthermore, private property may not be included in the
Register without the consent of the owner.
Given these circumstances, it is unclear how the Act might
affect private property rights, but we look forward to any
insight that any of our witnesses may be able to provide in
this regard.
Finally, Mr. Chairman, we would like to thank our witnesses
for their time and effort to be here today. We understand that
each of them are here because they value historic preservation,
and we look forward to their testimony.
Mr. Radanovich. Thank you.
Is there any other member wishing to make an opening
statement? Thank you very much. Thank you, Donna.
I want to welcome our panel here today. If the folks would
please come forward and take their position. I want to welcome
Mr. deTeel Patterson Tiller, Acting Associate Director For
Cultural Resources at National Park Service in Washington,
D.C.; Mr. John Nau, the Chairman of the Advisory Council on
Historic Preservation here in Washington, D.C.; Mr. Edward
Sanderson, President of the National Conference of State
Historic Preservation Officers, Washington, D.C.; and Mr.
Robert Bisno, the owner of Lincoln Place Apartments in Venice,
California.
Gentlemen, welcome to the Committee. I appreciate the fact
that you are here today.
The way we will do this is allow every one of you to
deliver your testimony for 5 minutes. If that is a little
longer than your opening statement or the written statement or
the text statement that you have, please know that that will be
submitted to the record and will be entered just as well as
your voice comments.
So if you could keep your comments as close to 5 minutes as
possible, it would be much appreciated. It would help the
hearing to move on a little bit quicker.
The lights in front of you, they run just like traffic
lights. Red means stop, yellow means slow down, and green means
go.
Mr. Radanovich. So welcome, Mr. Tiller. If you would like
to begin, and then we will work right on down. Then we will
open up.
STATEMENT OF DeTEEL PATTERSON TILLER, ACTING ASSOCIATE DIRECTOR
FOR CULTURAL RESOURCES, NATIONAL PARK SERVICE, WASHINGTON, D.C.
Mr. Tiller. Mr. Chairman, thank you for the opportunity to
provide the Committee a brief report on America's national
historic preservation program authorized under the National
Historic Preservation Act and to provide support for the
reauthorization of the Advisory Council on Historic
Preservation under the same Act.
In the interest of brevity, I will summarize my full report
already submitted to the Committee.
Thirty-seven years ago, a Special Committee on Historic
Preservation of the U.S. Conference of Mayors recommended that
our Nation adopt a public policy in support of the preservation
and protection of our Nation's significant historic places for
the benefit of future generations. Out of that recommendation
Congress pass the National Historic Preservation Act of 1996.
The Act set in motion a means for all our citizens, with the
assistance of their Federal Government, to reduce the loss of
this Nation's invaluable heritage.
I am pleased to report that the nearly 4-decade-old Act
remains healthy and vigorous. The National Historic
Preservation Act created some of the Nation's most widely
recognized, successful and iconic national institutions like
the National Register of Historic Places.
The Register now lists over 1.2 million properties and
76,000 listings nominated by our citizens from Maine to Hawaii.
There is hardly a city or town in this great Nation that is
without a listed property. America's National Register is
unique in the world as that process by which the properties are
nominated is bottom up. The overwhelming number of nominations
are submitted by citizens, local governments, town councils and
State governments.
Our National Register is unique also in its recognition of
local significance. No other national system does that. Fully
two-thirds of the property listed in America's national
register are designated for their significance to local
citizens and local history. This policy was borne of the
congressional vision that local citizens and their local and
State governments knew better those places important to
preserve for the next generations and not the Federal
Government.
We are also singular among nations in that the listing of
the National Register confers no restrictions by the Federal
Government on a property owner's decision to dispose of that
historic place in any manner he or she sees fits, except in
those rare circumstances where the owner has accepted Federal
funding for the preservation of the property or received
Federal tax credits.
In cases where a property has been listed or determined to
be eligible for listing in the National Register, a private
property owner is under no obligation to the Federal Government
to protect or preserve the historic property.
The National Historic Preservation Act also created a
remarkable national partnership network, one in which States,
tribal and local governments play decisive and, in most ways,
coequal roles to the Federal Government. The Federal
Government, acting through the National Park Service, sets
professional standards, provides technical assistance and
training and provides oversight and approval roles where a
Federal hand is warranted and appropriate.
But the on-the-ground work of the national preservation
program directly involves citizen input and is delivered
principally to them through State and local governments and,
most recently, through tribal governments. It is this complex
partnership network to which can be credited the national
program's great success.
I would now like to turn my comments to the reauthorization
of the Advisory Council on Historic Preservation. The 1966
National Historic Preservation Act also created the Advisory
Council as part of this unique national partnership. The
Department of the Interior and the Advisory Council have a long
and close working relationship. Together with our partners in
State, tribal and local governments, we have enhanced historic
preservation efforts across the Nation for more than 30 years.
The Department strongly supports reauthorization of the
Council. The Council serves a critical national role in the
national historic preservation program and remains a vital part
of this success story in America.
Mr. Chairman, this concludes my remarks. I will be more
than pleased to answer any questions you or the Committee
members have.
Mr. Radanovich. Thank you very much, Mr. Tiller.
[The prepared statement of Mr. Tiller follows:]
Statement of De Teel Patterson Tiller, Acting Associate Director for
Cultural Resources, National Park Service, U.S. Department of the
Interior
Mr. Chairman, thank you for the opportunity to provide the
committee with a brief report on America's national historic
preservation program authorized under the National Historic
Preservation Act of 1966 and to provide support for the reauthorization
of the Advisory Council on Historic Preservation under that same act.
Thirty-seven years ago, a Special Committee on Historic
Preservation of the U.S. Conference of Mayors recommended that the
United States adopt a public policy in support of the preservation and
protection of our country's significant historic places for future
generations of Americans. In that report, the Special Committee also
made broad recommendations on the pressing need for this nation to
establish a strong Federal historic preservation program.
In response to the Conference of Mayors Report, Congress passed the
National Historic Preservation Act of 1966 establishing a national
historic preservation program. The National Historic Preservation Act
(NHPA) set in motion a process to reduce the loss of much of this
nation's invaluable heritage and established the means for the Federal
Government to protect and preserve our nation's historic places in a
unique partnership that remains effective to this day.
We are pleased to report that the nearly four-decade-old act and
vision it created, remains healthy and rigorous. The 37-year history of
this important national program has shown that the Conference of Mayors
was correct--economic development can go hand-in-hand with preserving
America's heritage.
The NHPA created some of our most widely recognized national
institutions like the National Register of Historic Places. The
National Register now includes over 1.2 million properties in 76,000
listings nominated by citizens from Maine to Hawaii, Alaska to Puerto
Rico, and in American Samoa and the U.S. Virgin Islands. There is
hardly a city or town without a property listed on the National
Register of Historic Places. Last fiscal year alone, 40,141 properties
were listed in 1,454 nominations representing every state in the
country.
The National Register is unique in its recognition of ``local
historic significance.'' No other national system does this. Today, two
thirds (66%) of the properties listed on our National Register are
designated for their significance to local citizens and local history.
That policy is based on a vision borne almost 40 years ago that local
citizens and their local and state governments know best those places
important to preserve a unique sense of history and community for
future generations--and not the Federal Government.
Listing in the National Register does not restrict a property owner
from disposing of the historic place in any manner he or she sees fit
except, in those rare circumstances, when the owner has accepted
Federal funding for the property. In cases where a property has been
listed or determined to be eligible for listing in the National
Register, a private property owner is under no obligation to protect
the historic property and it can be torn down by its owner without
Federal Government intervention.
The NHPA has created also a remarkable national partnership
network, one in which state, tribal, and local governments play
decisive and, in most ways, co-equal public roles to the Federal
Government. The Federal Government, acting through the National Park
Service, sets professional and performance standards, provides
technical assistance, advice, and training, and provides oversight and
approval roles. But the on-the-ground work of the national preservation
program directly involves citizen input and is delivered principally to
our citizens through state and local governments, and more recently,
tribal governments. It is this complex partnership network to which can
be credited the national program's great success.
The NHPA created an effective national ``cost-sharing'' approach
where the Federal Government provides a share of the financial
resources needed to local, tribal, and state governments, who, in turn,
provide a portion as well while the benefits are shared by citizens. A
1976 amendment to the NHPA created the Historic Preservation Fund so
that revenues from Outer Continental Shelf extraction could pay the
Federal share in the protection of our nation's prehistoric and
historic treasures. The Historic Preservation Fund is highly cost-
effective and remains an important cornerstone in this national
program. The fund has always had strong bipartisan support and has been
reauthorized three times since its creation.
State governor-appointed State Historic Preservation Officers in 56
States and Territories assist citizens, units of local government, and
public and private organizations to carry out their part of the
national preservation program. Activities include locating and
documenting prehistoric and historic properties, assisting citizens to
nominate properties to the National Register, assisting local
governments and Federal agencies in meeting historic preservation
statutes, and assessing the impact of Federal projects on historic
places. Last year, states reviewed over 100,000 Federal projects to
minimize their impacts on our nation's heritage and historic places.
The work of state governments in this program is invaluable.
The Historic Preservation Tax Incentives Program, jointly
administered by the National Park Service and State Historic
Preservation Officers, is the nation's largest program to stimulate the
preservation and reuse of income-producing historic properties. Since
its inception in 1976, it has generated over $28 billion in historic
preservation activity; in Fiscal Year 2002 alone, a record-setting $3.2
billion in private investment was leveraged using Federal historic
preservation tax credits rehabilitating over 1,200 historic properties
listed on the National Register and creating over 50,000 jobs and
14,000 housing units.
Local governments received a formal role in the national
preservation program in the 1980 amendments to the NHPA. These
important partners assist local citizens to preserve their
neighborhoods and local historic district values, to work with local
schools to ensure the next generation recognizes and values their local
history, and to work hand-in-hand with state governments to ensure the
national historic preservation program meets local needs in the best
manner possible.
The 1992 amendments to the law brought a more inclusive and formal
role for tribal governments in the national program, and we are pleased
to report that as of today, 37 tribal governments have formally joined
the national program. Tribal participation in the national program has
brought an energy and different way of thinking about heritage,
history, preservation and sense of place.
The nation's understanding of what is worthy of preservation has
also changed since the 1960's. As an example, where once we focused on
the grand houses of the Founding Fathers, battlefields, and homes of
the rich and famous, we now include the record of everyday lives,
farmsteads, vernacular architecture, and, the recent past. Now that the
20th century itself is history, the field of historic places worthy of
preservation now gives way to ``modern'' American stories like World
War II, Rock and Roll, the Cold War, and the Civil Rights struggle. As
the nation changes in diversity and complexity, we must ensure that the
history of all Americans is identified, honored, and preserved.
Fortunately, the law passed in 1966 was flexible enough to accommodate
a nation's changing sense of what is historic and worthy of
preservation.
The 1966 NHPA also created the Advisory Council on Historic
Preservation as part of this national partnership. An independent
Federal agency dedicated to historic preservation, the Council is the
major policy advisor to Federal agencies on historic preservation. The
Council is comprised of 20 members, including Federal agencies, private
citizens and experts in the field of historic preservation. Its mission
is to advocate full consideration of historic values in Federal
decision making; to oversee the Section 106 process which requires
Federal agencies to consider the impact of their programs and projects
on places of historic value; to review Federal programs and policies to
further preservation efforts; to provide training, guidance, and
information to the public and Federal entities; and to recommend
administrative and legislative improvements for protecting the nation's
heritage.
For more than 30 years, the Department of the Interior and the
Advisory Council have worked together to enhance historic preservation
efforts across the nation. The Department looks forward to continuing
this relationship with the Council as we implement one of the most far-
reaching and important Federal policies on historic preservation in the
past 20 years. The Department supports reauthorization of the Advisory
Council on Historic Preservation.
On March 3, President Bush launched the Preserve America Initiative
by the signing of Executive Order 13281. This Executive Order focuses
on the sound public policy that historic preservation makes good
economic sense. The Federal Government can play an important role in
assisting local and state governments to realize this potential through
such efforts as heritage tourism, which can bring economic benefits to
communities throughout the nation.
Mr. Chairman, this concludes my prepared remarks. I would be
pleased to answer any questions you or members of the committee may
have.
______
Mr. Radanovich. Mr. John Nau, welcome to the Subcommittee.
If you would like to begin your testimony, that would be great.
STATEMENT OF JOHN NAU, CHAIRMAN, ADVISORY COUNCIL ON HISTORIC
PRESERVATION, WASHINGTON, D.C.
Mr. Nau. Thank you, Mr. Chairman.
Chairman Radanovich and members of the Subcommittee, it is
a pleasure to testify before you this afternoon. I thank you
for this opportunity to discuss the vital importance of the
Federal Historic Preservation Program to our Nation and the
essential role of the Advisory Council on Historic Preservation
in that effort.
The National Historic Preservation Act, which created the
ACHP, is a strong demonstration of the collective wisdom of the
U.S. Congress in three vital regards: the importance of
preserving America's heritage; the necessity of building upon
the foundation of our past to create a better future for the
Nation; and the strength of linking the Federal, State and
local efforts in partnerships with the private sector in order
to accomplish these goals.
The ACHP is actively involved in pursuing these goals on
behalf of the Congress, the President, and, most importantly,
the American people. It has been actively involved in changing
itself to better meet these needs through wise stewardship of
the Federal Government's historic assets that can stimulate
economic development through activities such as heritage
tourism.
To this end, the ACHP has focused its energies on
reestablishing the leadership role that the framers of the 1966
Act envisioned. As part of that effort, on March 2nd, 2003,
President Bush signed Executive Order 13287, Preserve America.
The same day, our First Lady, Laura Bush, announced the
Administration's Preserve America Initiative, a governmentwide
effort to recognize and celebrate our heritage. This step will
guide our efforts into the foreseeable future. The
underpinnings of the Preserve America Initiative are found in
the policy statement of the Executive Order.
This policy also articulates the approach of the ACHP's
work over the coming years. I have taken steps to recast the
ACHP to more efficiently accomplish its mission in accordance
with this Executive Order.
We are leveraging our resources and, most importantly,
building partnerships to promote the benefits of preservation
across our Nation. We know that the Federal Government works
best when it works in partnership with States, counties,
communities, tribes, in short, when it works in partnership
with the constituents that you all represent.
The Preserve America Initiative promotes such activity, and
the Executive Order directs Federal agencies to actively engage
in these partnerships. Our job is to encourage the integration
of the historic resources that are managed at the Federal,
State and local level with community development opportunities.
We are building successful partnerships with a number of other
Federal agencies, and it is our commitment that we will
continue to build on those relationships to maximize our
efficiency and effectiveness.
Might I add that, as a businessman, I would not be here if
I didn't believe on a clear return on this investment; and in
my experience as Chairman of the Texas Historical Commission, I
know that this approach will work. I have seen it work, and I
have experience in making it work. I know with your support we
can make it work on a national basis.
We are before the Committee today because your assistance
is essential to allow us to realize our expanded role. ACHP
members have carefully examined our current legislative
authorities, which include the administration of Section 106.
Section 106 is a very important and significant responsibility.
However, we believe our mission is broader and have adopted
several proposed changes for which we seek your support.
These changes are: amend the current time limit and
authorization and replace it with permanent appropriations
authorization; authorize the President to add the heads of
three additional Federal agencies to our membership; provide us
with the authority and direction to work cooperatively with
Federal funding agencies to assist them in using their existing
grants programs more effectively for advancing the purpose of
the NHPA; and authorize several technical amendments that would
allow us to function more rationally and efficiently.
You have also asked us in our appearance today to discuss
our views on the adequacy of protections for private property
owners during the process of evaluating and listing properties
on the National Register.
The Register is the keystone of the National Historic
Preservation Program. In my judgment, the overall process works
well on the national level, especially in regard to the Section
106 process that we oversee.
I believe that as a function of Federal law and Federal
administrative practice there are adequate protections for the
rights of private property owners within this process. I do,
however, share concerns with some unintended consequences that
the National Register process may have at State and local
levels.
A determination of eligibility for nomination to the
National Register should not, by itself, automatically trigger
or link to a State or local review process without due process
and additional protections for private property owner's rights.
I look forward to the questions and having an opportunity
to expand on my comments. Thank you, Mr. Chairman.
Mr. Radanovich. Thank you, Mr. Nau.
[The prepared statement of Mr. Nau follows:]
Statement of John L. Nau, III, Chairman,
Advisory Council on Historic Preservation
SUMMARY STATEMENT
An independent Federal agency, the Advisory Council on Historic
Preservation (ACHP) promotes historic preservation nationally by
providing a forum for influencing Federal activities, programs, and
policies that impact historic properties. In furtherance of this
objective, the ACHP seeks reauthorization of its appropriations in
accordance with the provisions of the National Historic Preservation
Act of 1966, as amended (16 U.S.C. 470 et seq.) (NHPA).
The ACHP offers amendments to its authorities that we believe will
strengthen our ability to meet our responsibilities under NHPA, and to
provide leadership and coordination in the Federal historic
preservation program. As part of that responsibility, and as requested
by the Subcommittee, the ACHP also provides its views on the adequacy
of protections for private property owners in the process of evaluating
properties for inclusion in the National Register of Historic Places.
BACKGROUND
The ACHP was established by Title II of the NHPA. NHPA charges the
ACHP with advising the President and the Congress on historic
preservation matters and entrusts the ACHP with the unique mission of
advancing historic preservation within the Federal Government and the
National Historic Preservation Program. In Fiscal Year 2002, the ACHP
adopted the following mission statement:
The Advisory Council on Historic Preservation promotes the
preservation, enhancement, and productive use of our Nation's
historic resources, and advises the President and Congress on
national historic preservation policy.
The ACHP's authority and responsibilities are principally derived
from NHPA. General duties of the ACHP are detailed in Section 202 (16
U.S.C. 470j) and include:
advising the President and Congress on matters relating
to historic preservation;
encouraging public interest and participation in historic
preservation;
recommending policy and tax studies as they affect
historic preservation;
advising State and local governments on historic
preservation legislation;
encouraging training and education in historic
preservation;
reviewing Federal policies and programs and recommending
improvements; and
informing and educating others about the ACHP's
activities.
Under Section 106 of NHPA (16 U.S.C. 470f), the ACHP reviews
Federal actions affecting historic properties to ensure that historic
preservation needs are considered and balanced with Federal project
requirements. It achieves this balance through the ``Section 106 review
process,'' which applies whenever a Federal action has the potential to
impact historic properties. As administered by the ACHP, the process
guarantees that State and local governments, Indian tribes, businesses
and organizations, and private citizens will have an effective
opportunity to participate in Federal project planning when historic
properties they value may be affected.
Under Section 211 of NHPA (16 U.S.C. 470s) the ACHP is granted
rulemaking authority for Section 106. The ACHP also has consultative
and other responsibilities under Sections 101, 110, 111, 203, and 214
of NHPA, and in accordance with the National Environmental Policy Act
(42 U.S.C. 4321 et seq.) is considered an agency with ``special
expertise'' to comment on environmental impacts involving historic
properties and other cultural resources.
The ACHP plays a pivotal role in the National Historic Preservation
Program. Founded as a unique partnership among Federal, State, and
local governments, Indian tribes, and the public to advance the
preservation of America's heritage while recognizing contemporary
needs, the partnership has matured and expanded over time. The
Secretary of the Interior and the ACHP have distinct but complementary
responsibilities for managing the National Historic Preservation
Program. The Secretary, acting through the Director of the National
Park Service, maintains the national inventory of historic properties,
sets standards for historic preservation, administers financial
assistance and programs for tribal, State, and local participation, and
provides technical preservation assistance.
The ACHP also plays a key role in shaping historic preservation
policy and programs at the highest levels of the Administration. It
coordinates the national program, assisting Federal agencies in meeting
their preservation responsibilities. Through its administration of
Section 106, the ACHP works with Federal agencies, States, tribes,
local governments, applicants for Federal assistance, and other
affected parties to ensure that their interests are considered in the
process. It helps parties reach agreement on measures to avoid or
resolve conflicts that may arise between development needs and
preservation objectives, including mitigation of harmful impacts.
The ACHP is uniquely suited to its task. As an independent agency,
it brings together through its membership Federal agency heads,
representatives of State and local governments, historic preservation
leaders and experts, Native American representatives, and private
citizens to shape national policies and programs dealing with historic
preservation. The ACHP's diverse membership is reflected in its efforts
to seek sensible, cost-effective ways to mesh preservation goals with
other public needs. Unlike other Federal agencies or private
preservation organizations, the ACHP incorporates a variety of
interests and viewpoints in fulfilling its statutory duties, broadly
reflecting the public interest. Recommended solutions are reached that
reflect both the impacts on irreplaceable historic properties and the
needs of today's society.
New Directions. Since assuming the Chairmanship in November 2002, I
have tried to ensure that the ACHP takes the leadership role envisioned
for it in NHPA. NHPA established a national policy to ``foster
conditions under which our modern society and our prehistoric and
historic resources can exist in productive harmony and fulfill the
social, economic and other requirements of present and future
generations.'' Among other things, the statute directed Federal
agencies to foster conditions that help attain the national goal of
historic preservation; to act as faithful stewards of Federally owned,
administered, or controlled historic resources for present and future
generations; and to offer maximum encouragement and assistance to other
public and private preservation efforts through a variety of means.
In creating the ACHP, Congress recognized the value of having an
independent entity to provide advice, coordination, and oversight of
NHPA's implementation by Federal agencies. The ACHP remains the only
Federal entity created solely to address historic preservation issues,
and helps to bridge differences in this area among Federal agencies,
and between the Federal Government and States, Indian tribes, local
governments, and citizens. While the administration of the historic
preservation review process established by Section 106 of NHPA is very
important and a significant ACHP responsibility, we believe that the
ACHP's mission is broader than simply managing that process.
With the new direction, the ACHP members are committed to promoting
the preservation and appreciation of historic properties across the
Nation by undertaking new initiatives that include:
developing an Executive order (Executive Order 13287,
``Preserve America,'' signed by the President March 3, 2003) to promote
the benefits of preservation, to improve Federal stewardship of
historic properties, and to foster recognition of such properties as
national assets to be used for economic, educational, and other
purposes;
creating an initiative for the White House (``Preserve
America,'' announced by First Lady Laura Bush March 3, 2003) to
stimulate creative partnerships among all levels of government and the
private sector to preserve and actively use historic resources to
stimulate a better appreciation of America's history and diversity;
using Council meetings to learn from local government and
citizens how the Federal Government can effectively participate in
local heritage tourism initiatives and promote these strategies to
Federal agencies and tourism professionals;
effectively communicating its mission and activities to
its stakeholders as well as the general public;
pursuing partnerships with Federal agencies to streamline
and increase the effectiveness of the Federal historic preservation
review process; and
improving the Native American program, which the ACHP has
identified as a critical element in the implementation of an effective
Federal historic preservation program and review process.
The ACHP's 20 statutorily designated members address policy issues,
direct program initiatives, and make recommendations regarding historic
preservation to the President, Congress, and heads of other Federal
agencies. The Council members meet four times per year to conduct
business, holding two meetings in Washington, D.C., and two in other
communities where relevant preservation issues can be explored.
In 2002 we reorganized the ACHP membership and staff to expand the
members' role and to enhance work efficiencies as well as member-staff
interaction. To best use the talents and energy of the 20 Council
members and ensure that they fully participate in advancing the ACHP's
goals and programs, three member program committees were created:
Federal Agency Programs; Preservation Initiatives; and Communications,
Education, and Outreach.
In addition, we created an Executive Committee comprised of myself
and the vice chairman of the ACHP and the chairman of each of the other
committees to assist in the governance of the ACHP. Several times a
year, we appoint panels of members to formulate comments on Section 106
cases. Member task forces and committees are also formed to pursue
specific tasks, such as policy development or regulatory reform
oversight. On average, three such subgroups are at work at any given
time during the year. Each meets about five to six times in the course
of its existence, is served by one to three staff members, and produces
reports, comments, and policy recommendations.
The staff carries out the day-to-day work of the ACHP and provides
all support services for Council members. To reflect and support the
work of the committees, the Executive Director reorganized the ACHP
staff into three program offices to mirror the committee structure.
Staff components are under the supervision of the Executive Director,
who is based in the Washington, DC, office; there is also a small field
office in Lakewood, Colorado.
PROPOSED AMENDMENTS TO THE NATIONAL HISTORIC PRESERVATION ACT
Background to Reauthorization. The ACHP has traditionally had its
appropriations authorized on a multi-year cycle in Title II of NHPA
(Section 212, 16 U.S.C. 470t). The current cycle runs through Fiscal
Year 2005 and authorizes $4 million annually. These funds are provided
to support the programs and operations of the ACHP. Title II of NHPA
also sets forth the general authorities and structure of the ACHP.
For Fiscal Year 2004, the President's budget seeks $4.1 million for
the ACHP. Because this is over the authorization limit, the Executive
Office of the President directed the ACHP to propose any legislation
required to modify its authorization to be consistent with the
President's Budget. The ACHP is therefore seeking amendments to the
authorizing legislation at this time. At its February and May 2003
meetings, the ACHP endorsed an approach to the reauthorization issue.
The approach addresses the immediate appropriations authority issue and
also seeks amendments to the ACHP's composition and authorities to
better enable the ACHP to achieve its mission goals. The changes
proposed by the ACHP are explained in this overview; specific statutory
language will be provided to the Subcommittee at a later date.
Appropriations Authorization. This section would amend the current
time-limited authorization and replace it with a permanent
appropriations authorization. When the ACHP was created in 1966, its
functions were exclusively advisory and limited and the agency was
lodged administratively in the Department of the Interior. Since then,
the Congress has amended the NHPA to establish the ACHP as an
independent Federal agency and give it a range of program authorities
crucial to the success of the National Historic Preservation Program.
Not unlike the Commission of Fine Arts (CFA) and the National
Capital Planning Commission (NCPC), the ACHP now functions as a small
but important Federal agency, carrying out both advisory and
substantive program duties. Specific language creating a permanent
appropriations authorization would draw upon the similar statutory
authorities of the CFA and NCPC. No ceiling to the annual
appropriations authorization would be included in the authorizing
legislation, but rather the appropriate funding limits would be
established through the annual appropriations process.
Expansion of Membership. This section would expand the membership
of the ACHP by directing the President to designate the heads of three
additional Federal agencies as members of the ACHP. The ACHP has been
aggressively pursuing partnerships with Federal agencies in recent
years and has found the results to be greatly beneficial to meeting
both Federal agency historic preservation responsibilities and the
ACHP's own mission goals. Experience has shown that these partnerships
are fostered and enhanced by having the agency participate as a full-
fledged member of the ACHP, giving it both a voice and a stake in the
ACHP's actions. The amendment would bring the total number of Federal
ACHP members to nine and expand the ACHP membership to 23, an
administratively manageable number that preserves the current majority
of non-Federal members. A technical amendment to adjust quorum
requirements would also be included.
Authority and Direction to Improve Coordination with Federal
Funding Agencies. This section would give the ACHP the authority and
direction to work cooperatively with Federal funding agencies to assist
them in determining appropriate uses of their existing grants programs
for advancing the purposes of NHPA. For example, it is our experience
that programs such as the Historic Preservation Fund (HPF) administered
through the States by the Department of the Interior have the
flexibility to provide matching seed money to a local non-profit
organization to support a heritage tourism program.
The ACHP would work with agencies and grant recipients to examine
the effectiveness of existing grant programs, evaluate the adequacy of
funding levels, and help the agencies determine whether changes in the
programs would better meet preservation and other needs. Any
recommendations would be developed in close cooperation with the
Federal funding agencies themselves, many of whom sit as ACHP members,
and with the States. The proposed amendment would also allow the ACHP
to work cooperatively with Federal funding agencies in the
administration of their grant programs.
Technical Amendments. This section would provide four technical
changes that would improve ACHP operations:
1. Authorize the Governor, who is a presidentially appointed
member of the ACHP, to designate a voting representative to participate
in the ACHP activities in the Governor's absence. Currently this
authority is extended to Federal agencies and other organizational
members. The amendment would recognize that the personal participation
of a Governor cannot always be assumed, much like that of a Cabinet
secretary.
2. Authorize the ACHP to engage administrative support services
from sources other than the Department of the Interior. The current law
requires the ACHP's administrative services to be provided by the
Department of the Interior on a reimbursable basis. The amendment would
authorize the ACHP to obtain any or all of those services from other
Federal agencies or the private sector. The amendment would further the
goals of the FAIR Act and improve ACHP efficiency by allowing the ACHP
to obtain necessary services on the most beneficial terms.
3. Clarify that the ACHP's donation authority (16 U.S.C. 470m(g))
includes the ability of the ACHP to actively solicit such donations.
4. Adjust the quorum requirements to accommodate expanded ACHP
membership.
VIEWS ON THE ADEQUACY OF PRIVATE PROPERTY PROTECTIONS IN THE NATIONAL
REGISTER PROCESS
The Committee has requested our views on the adequacy of
protections for private property owners during the process for
evaluating and registering properties for inclusion in the National
Register of Historic Places.
The National Register is the keystone of the National Historic
Preservation Program. Through the professional application of objective
criteria, a comprehensive listing of what is truly important in
American history has been systematically compiled. The ACHP has direct
experience with the National Register review and evaluation process
through its administration of Section 106 of NHPA. As part of planning,
unless properties are already listed in the National Register of
Historic Places, determinations of eligibility for inclusion in the
National Register must be made when such properties may be impacted by
Federal or Federally assisted actions.
We are unaware of problems with the protection of the rights of
private property owners in the Section 106 process, since the
determination is made for planning purposes only and for consideration
by Federal agencies in taking into account the effects of their
actions.
We do believe it is important to distinguish between actual listing
in the National Register, which may result in tax and other benefits
and legally must include opportunities for property owners to object to
such listing, and determinations of eligibility which are used for
Federal planning. It is our understanding that in rare instances, some
States' legislation and some local ordinances include ``eligibility for
inclusion in the National Register'' to trigger the State or local
review process. It is our opinion that determinations of eligibility
should not by themselves automatically trigger or link to a State or
local review process without due process and additional protections of
private property owners' rights. It is also our understanding that
State Historic Preservation Offices, such as Texas, are generally
discouraging eligibility from being included in State laws and local
ordinances to ensure adequate private property protections.
States have varying approaches to dealing with the overall issue of
notification and objection. Public notices, hearings, and other
mechanisms are used when large historic districts are being considered.
In the case of smaller districts or individual properties, written
notification is provided. In Texas, notifications are sent out to the
property owner, the county judge, the chief elected official, and the
local preservation board chair of pending listings in the National
Register with an opportunity for making their views known. In New York,
if an objection to a nomination is received from an owner, that
nomination does not proceed. An official representative from the New
York State Historic Preservation Office will speak with the property
owner and explain the effects of listing in the National Register. In
many instances, owners will withdraw their objections once they
understand the implication of such listing.
In summary, we think that as a function of Federal law and Federal
administrative practice there are generally adequate protections for
the rights of private property owners in the National Register process.
CONCLUSION
The ACHP has reached a level of maturity as an independent Federal
agency and as a key partner in the National Historic Preservation
Program to warrant continued support from the Congress. We believe that
reauthorization, coupled with periodic oversight by this Subcommittee
and the annual review provided by the Appropriations Committees, is
fully justified by our record of accomplishment. We hope that the
Subcommittee will favorably consider this request, including our
recommended technical amendments.
We appreciate the Subcommittee's interest in these issues, and
thank you for your consideration and the opportunity to present our
views.
______
Mr. Radanovich. Next is Mr. Edward Sanderson.
Mr. Sanderson, welcome to the Committee; and you may begin
your testimony.
STATEMENT OF EDWARD SANDERSON, PRESIDENT, NATIONAL CONFERENCE
OF STATE HISTORIC PRESERVATION OFFICERS, WASHINGTON, D.C.
Mr. Sanderson. Thank you, Mr. Chairman. I am pleased to
represent the National Conference of State Historic
Preservation Officers at this hearing.
As you know, the SHPOs are the State officials appointed by
their Governors who actually carry out the National Historic
Preservation Act on behalf of the Secretary of the Department
of the Interior and the Advisory Council on Historic
Preservation.
You have asked us to address the reauthorization of the
Advisory Council and to report to you on our sense of the
status of the National Historic Preservation Act.
In regard to the Advisory Council, our report is brief. We
are wholehearted supporters of the Advisory Council. We think
they are doing an excellent job. We strongly support their
reauthorization with the modest expansion of authority that
they have requested.
In regards to the National Historic Preservation Act, we
are pleased with the leadership that President Bush and Mrs.
Bush have exercised just this year in establishing the Preserve
America Program, and we believe that carries forward the work
of the National Historic Preservation Act begun in 1966.
As has been described, the Act created a program that is
carried out by States on behalf of the Federal Government.
Through the National Register of Historic Places the program
records the history of America as a nation and as individual
communities, and more than a million properties are currently
so designated.
Through the program, historic preservation works with local
communities. Today more than 1,400 communities are working as
partners with SHPOs. I expect more will choose to join with the
Presidents new initiative. And perhaps most important, the
program is putting historic sites back to work. It is saving
them and putting them to productive use.
For example, working with the Advisory Council, more than
100,000 projects a year are successfully resolved at the State
level to make sure that Federal projects avoid unnecessary
impacts to historic properties; and working with the private
sector since 1976, more than 30,000 private property owners
have rehabilitated their historic properties and have enjoyed
the incentives of Federal tax credits. Private investment
through this program has totaled $29 billion and has helped to
create needed housing as well as ongoing creation of jobs and
places of business.
The National Historic Preservation Act has not succeeded in
every area. I like to think of the preservation program as a
high-performance car manufactured by the wise authorizing
committees of Congress. But we can't win the race without
higher octane fuel provided by the appropriators. In the last
25 years, only one-third of the total authorized revenue in the
Federal Historic Preservation Fund has ever been appropriated,
and underfunding means that many areas still lack a reliable
inventory of their historic resources. We can't preserve
America's heritage if we don't know where it is. Underfunding
means that local landmarks in town centers need preservation
grants. Save America's Treasures Grants have successfully
helped to restore some of our greatest national treasures, but
properties that are important at the local level are going
without.
And underfunding means that Federal costs are transferred
to the private sector, as uncompleted work and program review
delays inevitably impact private development projects.
Let me turn now for a moment to your request about how the
National Register affects private property owners.
Respect for private owners is a fundamental principle of
the National Register and certainly of State Historic
Preservation Offices. As has been noted, listing on the
National Register does not place Federal restrictions on how
private property owners use their property. Only Federal
actions are restricted or reviewed by National Register
listing; and over the last 10 years, less than 1 percent of the
total number of nominations listed on the National Register
have involved an owner objection at all. Ninety-nine out of one
hundred owners are satisfied customers with the program as it
is.
The National Register process is defined in Federal
regulations that all SHPOs are required to follow. The process
includes checks and balances that protect property owners
rights. SHPOs are required to follow this process, and a SHPO
may not refuse to consider a properly documented nomination
that is presented to him or her.
The National Register information is checked three
different times, by the professional review of the SHPO and its
staff, it is checked by the independent expert State review
board, and then it is checked a third time here in Washington
by the Keeper of the National Register and her staff at the
National Park Service.
Private property rights are explicitly recognized in the
regulations. Owners are notified of the process and given an
opportunity to comment on nominations. They routinely provide
information to the SHPO to consider in the process of reviewing
nominations and provide information both to the Keeper and to
the State review board.
If an owner objects to the listing, the property may not be
listed on the Register, although the Keeper may go through a
determination of eligibility process. Throughout the system,
there is a series of checks and balances to make sure that no
one authority, particularly at the State level, can run
roughshod over the rights of the property owner or the accuracy
of the information presented.
In preparing for this hearing, I spoke with my colleagues
around the country. Most SHPOs report they almost never have
owners object to National Register listing, primarily because
property owners want to get on the Register, and SHPOs spend
limited resources working on the nomination of properties that
are supported rather than opposed.
I believe the National Register is working well. I would be
glad to work with the Committee, with property owners and other
partners to investigate any potential improvements that might
be needed.
Mr. Radanovich. Thank you, Mr. Sanderson for your
testimony.
[The prepared statement of Mr. Sanderson follows:]
Statement of Edward Sanderson, President, National Conference of State
Historic Preservation Officers, and Executive Director, Rhode Island
Historical Preservation and Heritage Commission
I. Introduction
The Subcommittee on National Parks, Recreation and Public Lands has
asked the National Conference of State Historic Preservation Officers
(NCSHPO) to testify on the following topics.
1. Reauthorization of the Advisory Council on Historic
Preservation
2. Implementation of the National Historic Preservation Act
The National Conference of State Historic Preservation Officers is
the professional association of the gubernatorially appointed State
officials who carry out the National Historic Preservation Act (Act, 16
U.S.C. 470) for the Secretary of the Interior and the Advisory Council
on Historic Preservation (ACHP). States pay for half of the cost of
carrying out this Federal program. State Historic Preservation Offices
(SHPOs) have a direct, hands-on, daily involvement with the Act and are
well suited to inform the Committee. 1
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\1\ The Act authorizes Indian tribes to choose to assume the
responsibilities of State Historic Preservation Officers on tribal
lands. The National Conference supports tribal involvement in the
national preservation program; SHPOs work closely with tribes in their
States. The National Conference respects the government-to-government
relationship of tribes to the Federal Government. Therefore, our
remarks represent the opinions of SHPOs only. The NCSHPO encourages the
Committee to seek tribal views on the Act.
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II. Reauthorization of the Advisory Council on Historic Preservation
In general, the National Conference supports the reauthorization of
the Advisory Council on Historic Preservation. As a statutory member of
the ACHP, the National Conference was a part of the February 2003
meeting when the Council voted to propose legislative changes. We
supported the amendments: chiefly, a permanent authorization with no
appropriations ceiling and increasing the Federal agency membership on
the Council. We believe these changes are needed so that the ACHP can
continue its excellent work and carry out the mandates of the
President's Preserve America program and Executive Order 13278.
However, since the National Conference of State Historic Preservation
Officers has not seen the bill language, we are unable to comment on it
specifically.
The National Conference has direct experience with the activities
of the ACHP through the role of the SHPOs and the National Conference's
seat on the Council. The ACHP regulations implementing Section 106 of
the National Historic Preservation Act (36 CFR Part 800) set up a
process for Federal agencies to identify areas that may be potentially
impacted by Federal projects, find the historic properties in those
areas, and, should adverse impacts to historic properties exist,
consider eliminating or mitigating those impacts. Federal agencies,
under the ACHP regulations, must consult with State Historic
Preservation Officers in making those decisions. 2
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\2\ The SHPOs conduct 99% of the preservation consultation work
required by the ACHP regulations. Every year SHPOs review 100,000
Federal undertakings for their potential impact on historic properties.
In working with Federal agencies, SHPOs agree that 90,000 of those
undertakings have no effect on historic properties. Federal agencies
and the SHPOs resolve the effects on historic properties in the
remaining 10,000 projects. The Council staff, under the current
regulations will be involved in a few hundred projects. The
Presidentially appointed Council members consider approximately ten
cases a year.
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III. Implementation of the National Historic Preservation Act
Secondly, the Committee has asked the National Conference of State
Historic Preservation Officers to comment on the implementation of the
National Historic Preservation Act. The following discusses the
priority of historic preservation in the Administration, the successes
of the program, the failures, and the relationship of private property
rights and the National Register.
A. Historic Preservation: a Priority for the Bush Administration
Historic preservation is a national priority of the Bush
Administration. On March 3, 2003, the President and the First Lady
launched Preserve America, a multi-component program to improve Federal
stewardship of historic places (Executive Order 13287), to recognize
achievement in historic preservation, to acknowledge and celebrate the
historic preservation activities of communities across the country
(Preserve America Communities ), and to facilitate economic development
through heritage tourism.
* * * * *
preserve america
The First Lady reiterated what every preservationist has long
believed in her Preserve America speech on March 3, 2003, as is
illustrated by the following quotes.
``Our land is the foundation upon which the American story is
written. Our history is rooted in our buildings, parks and
towns.
``The second goal of Preserve America is to support community
efforts to restore cultural resources for heritage tourism.
``Preserve America. . . will provide. . .greater support to
protect and restore our nation's culture. . . from monuments
and buildings to landscapes and main streets.
``Preserve America will promote historic and cultural
preservation and encourage greater public appreciation of our
national treasures.
* * * * *
B. The Role of the State Historic Preservation Officers
The National Historic Preservation Act sets up the national
historic preservation program. The Act charges the State Historic
Preservation Officers with the following tasks.
1. find historic places and maintain information about them for
future research and analysis,
2. working with private property owners, nominate significant
places to the National Register,
3. work with local governments who are interested in historic
preservation and help them receive the Secretary's certification,
4. help private owners seeking a Federal rehabilitation tax
credit,
5. consult with Federal agencies on Federal activities that may
affect historic places, and
6. conduct planning and educational activities on historic
preservation for interested parties in the private and public sectors.
C. Historic Preservation a National Success Story
1. Historic preservation stimulates the economy
The national historic preservation program, run by the SHPOs,
stimulates the economy. The rehabilitation of National Register
properties using the Federal investment tax credit recently is
generating $3 billion in private investment annually. The owners of the
1,202 rehab tax credit projects undertaken in 2002 believe in and have
benefitted economically from historic preservation and the National
Register.
In 1993, the University of Rhode Island calculated that one dollar
of Historic Preservation Fund expenditure generated $63 dollars of
investment. 3 Ten years later, the University of Florida and
Rutgers University demonstrated that in Florida historic preservation
created more than 123,000 jobs during 2002, spending on historic
preservation activities generated more than $657 million in state and
local taxes in 2000, and, tourists who visited Florida's historic sites
spent more than $3.7 billion. The total annual impact of historic
preservation in Florida is $4.2 billion. 4
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\3\ University of Rhode Island Intergovernmental Analysis Program,
Economic Effects of the Rhode Island Historical Preservation Commission
Program Expenditures from 1971 to 1993.
\4\ Center for Governmental Responsibility, University of Florida
Levin College of Law, and Center for Urban Policy Research, Rutgers
University, Executive Summary Economic Impacts of Historic Preservation
in Florida. The foundation of the activities analyzed in the University
of Florida report is the National Register process administered by the
Florida State Historic Preservation Officer and the 1400 National
Register listings (cumulative) and the over 135,000 historic structures
and archeological sites in the Florida Master Site File inventory of
historic sites.
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In Colorado, the dollar value of Federal investment tax credit
rehabilitation projects certified in 1999 was $28,265,017 more than
Georgia's $24,993,209 but not as much as Texas' $89,622,748. Historic
building rehabilitation creates 32 new jobs per $1 million of direct
impact, where as the figure for computer and data processing is 31,
trucking is 30, manufacturing semiconductors is 20 and mining for
petroleum and natural gas is 12. Heritage tourism in Colorado generated
$1.4 billion in direct tourist expenditures, generated $1.0 billion in
total household earnings and 55,300 jobs. After Denver's LoDo became a
historic district the number of housing units increased by 1,260%, the
average rental cost per square foot increased from $7 to $20/$30, and
the parking meter revenues increased from $141,200 in 1989 to
$1,497,070 in 2000. Interestingly, the Colorado study looked closely at
two residential historic districts, Potter Highlands in Denver and Fort
Collins Midtown District and found that while quality of life and
property values were increasing, the economic mix of the residents did
not change dramatically. 5
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\5\ Clarion Associates of Colorado, LLC, Economic Benefits of
Historic Preservation in Colorado, Denver, January 2002.
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2. Historic preservation celebrates our history
In addition to being good for the economy, the historic
preservation program also boasts successes in helping owners and
residents seek recognition for the historic places where they live and
work through the National Register nomination process. Nationally, in
2002, the Keeper of the National Register (Department of the Interior,
National Park Service) made 1456 listings which include a total of
40,141 individual properties (one National Register historic district
contains multiple individual, historic properties).
3. Historic preservation partners in local governments
The national historic preservation program has also ``sold'' well
with local governments who have sought the Secretary of the Interior's
designation as Certified Local Governments, formal partners with the
SHPOs. In 2002, 58 city and county governments decided to enact a
historic preservation ordinance and establish a historic preservation
commission. As a CLG, the local government is eligible to apply for
passthrough funding (10% of the State's Historic Preservation Fund
allocation) from the SHPOs. In total, 1,384 local governments have
opted to become Certified Local Governments. Each State establishes its
own criteria for certification which allows for variation to reflect
State by state differences.
4. Historic preservation is a ``bargain'' for the Federal government
Finally, the national historic preservation program is a great
value for the Federal investment--States pay half the cost.
D. Historic Preservation Needs
The authorizing committees of the Congress have established a well-
designed vehicle to deliver the national historic preservation program.
Unfortunately, Administrations and Congresses have failed to provide
the funding--the gas--necessary for the vehicle to operate.
6 The under funding of the national preservation program has
several implications.
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\6\ Susan West Montgomery, ``The Historic Preservation Fund and Why
it Matters,'' Forum News, January/February 2003. This article outlines
the history of the Historic Preservation Fund, how SHPOs match it and
use it, and the effects of appropriations shortfalls.
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1. Where are the Nation's historic places?
The survey of historic sites across America is not finished. The
nation lacks the base line data about where historic places are
located. This lack of basic information makes it difficult to evaluate
comprehensively the significance of an individual property. Further,
without full information on historic places, Federal agencies planning
projects have no alternative but to conduct ad hoc historic site
surveys for the potential impact area. If the inventory were complete
and the information readily available by computer, Federal agency
planning would be substantially facilitated. Agencies would have the
historic property information on hand at the earliest stages of project
planning.
2. Lack of restoration grants
Second, two decades of ``bare bones'' funding have eliminated SHPOs
ability to offer restoration matching grants to help restore threatened
National Register properties. In the 1970's the State Historic
Preservation Officers used half of their annual allocation to help
owners restore National Register properties. These matching grants
helped owners restore significant places and insured that state-of-the-
art construction techniques were used. Further, the SHPOs' HPF grants
were usually a small percentage of the total project cost. The Federal
funds were a catalyst for a larger private investment as well as a
commitment from the owner to insure future maintenance. SHPOs made many
small grants stretching the Federal dollars further. Those financial
incentives need to be reinstated by increased appropriations.
3. Federal costs transferred to the private sector
Third, continued reductions of Historic Preservation Fund
appropriations to State Historic Preservation Offices is adversely
affecting the private sector, specifically applicants for Federal
assistance. If the SHPO comment process is a funnel, ongoing reductions
have constricted that funnel opening slowing project response times
from a stream to a trickle. North Carolina has kept records of the
effect of Federal budget cuts on response times. With fewer resources
from the HPF available and an increasing work load, response times have
doubled, not only in consultation in the Section 106 process but also
in response to private sector requests related to National Register
nominations and rehabilitation tax credits.
E. The National Register and Private Property Owners
The fundamental principle of the National Register and its
implementation by SHPOs is cooperation and respect for and with private
property owners.
The National Historic Preservation Act begins with the National
Register. This is the Secretary of the Interior's list of America's
historic properties. In the past 35 years more than 75,000 nominations
have been listed on the National Register. Those listings represent
over 1,000,000 private property owners: one nomination may cover a
historic district with multiple owners. In Fiscal Year 2002, 1456
nominations were listed. In the last ten years less than one per cent
of the total nominations submitted were the subject of owner
objections.
National Register listing occurs only after notifying the private
property owner and after a careful review of the background research on
and the significance of the property. National Register listing conveys
the honor of the Secretary's recognition, eligibility for Federal
benefits matching restoration grants (when sufficient funds are
available) and for the 20% rehabilitation tax credit for work on
commercial property, and consideration if a Federal project might
affect the property.
Listing places no restrictions on private property owners. Private
owners may make any changes they wish to their property and may even
demolish or destroy National Register listed places. (Subject, of
course, to any locally enacted laws and restrictions.) Listing places
controls only on the actions of the Federal Government--the Federal
Government must consider the impacts of its actions on National
Register listed and eligible property and look for ways to minimize any
adverse effects.
SHPOs carry out the National Register nomination process following
the Act and the Interior regulations (36 CFR Part 60). The regulations
are clear on the role of private property owners in the nomination
process. Property owners are notified about nominations. Property
owners have the right to file an objection directly with the Keeper of
the National Register who is a Federal employee of the National Park
Service. In addition, the Federal regulations set forth a uniform
nomination process that all SHPOs must follow. The process offers
little administrative discretion and requires that every nomination be
evaluated and approved by an independent expert review board in
addition to approval by the SHPO. Owners may appeal a SHPO's decision
to the Keeper. Finally, the process provides Federal oversight of the
State's nomination process; nominations are subject to substantiative
and procedural review by the Keeper.
Most nominations come from property owners seeking the national
recognition. Notice is provided to all owners prior to consideration of
the nomination. Many States, for example, Georgia, Michigan, Ohio and
Tennessee, have not seen any proposed nominations that lack the owner's
knowledge and involvement.
If the owner objects, the property may not be listed on the
National Register.
State Historic Preservation Officers often do more than the
regulations require to involve private property owners in the
nomination process. The New York State Historic Preservation Officer
works with local communities in face-to-face meetings and discussions
to insure that owners' questions are fully considered and addressed. In
most States--Arizona, Idaho, Maryland, Mississippi and Montana, for
example--potential nomination proposals are not pursued if the owner
objects.
The National Register program remains popular across the country.
Register listing is sought for various reasons. Register listing is
needed for developers to receive the 20% rehabilitation tax credit.
Individuals and communities look to the National Register as official
recognition of the historic significance of their home or neighborhood.
Register listing is often an important catalyst for community pride
leading to neighborhood revitalization. Convention and visitor bureaus
see National Register sites as an attraction for visitors and new
businesses. In North Carolina's Triad (Greensboro, High Point, Winston-
Salem) the Welcome section of the Guest Guide in hotel rooms
prominently displays National Register sites--Mendenhall Plantation,
the Greensboro Woolworth's, and the Alamance County Historical Museum--
to promote the area. 7
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\7\ Triad Guest Guide 2002-2003,Vol. XII, Raleigh: Lone Wolf
Publishing, Inc., 2002, p. 8-9.
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IV. Conclusion
The National Historic Preservation Act and the National Register
have been operational for more than 30 years. Private property rights
are respected and protected within its provisions. The National
Conference of State Historic Preservation Officers offers to work with
the Chairman and the Committee, private property owners, Federal
preservation partners, and private sector partners on improving the
Nation's historic preservation program in a way that respects the needs
of this generation and bequeaths a proud legacy of America's heritage
to the future.
______
Mr. Radanovich. Next is Mr. Robert Bisno, owner of Lincoln
Place Apartments in Venice, California.
Mr. Bisno, welcome to the Committee. We will appreciate
your insights here and your testimony. You may begin.
STATEMENT OF ROBERT BISNO, OWNER, LINCOLN PLACE APARTMENTS,
VENICE, CALIFORNIA
Mr. Bisno. Thank you, and good afternoon, Mr. Chairman,
Committee members.
My experience is different than one which you may have
heard from listening to those who spoke before me. I am here
today as the owner or major owner of the Lincoln Place
Apartments, a large apartment community in Venice, California.
I am here because I believe it is crucial that we protect
the importance and the integrity of the National Register
process from those who are seeking to exploit it to present or
promote their own self-serving agenda.
In my case, that agenda belongs to the tenants of my
property who were seeking to block redevelopment so they
wouldn't have to move. This agenda had nothing to do with
historic preservation. In fact, I actually proposed a plan 2 or
3 years ago that all existing buildings be preserved. The
tenants fought that as well, because under the rent
stabilization ordinance of Los Angeles I would have been
allowed to raise the rents.
I see the abuse of the National Register process as the No.
1 tool today to stop economic development unless you take steps
to stop it.
The Lincoln Place Apartments, our project, was built in
1950, using off-the-shelf plans. For the past 9 years, we have
gone through the arduous permitting process to allow us to
build 144 low- and moderate-income apartments for rent, 50 low-
and moderate-income townhomes for sale, and 650 at-market
townhomes for sale.
Before SHPO got involved, the Los Angeles Planning
Department, the Los Angeles Planning Commission, the Los
Angeles Cultural Heritage Commission, the Planning Land Use
Management Subcommittee of, and the Los Angeles City Council
reviewed our project.
Our project was also reviewed by Mr. Robert Chattel, a
nationally recognized expert qualified under the Secretary of
Interior's professional qualifications.
At each and every stage and in the City Council, that was
two times, the national--pardon me, the determination was that
our project was not locally significant. Having lost at the
local levels, the applicants then identified the National
Register as a soft spot that they might exploit, and they filed
an application. Bear in mind, we had done nothing.
On February 7th of this year, California SHPO voted to
recommend to the Keeper that Lincoln Place be considered as a
locally significant resource. They came to their conclusion
without verifying claims made in the application. They also
failed to even contact the city of Los Angeles for their input,
as required by the regulation. And you will recall, as I
testified earlier, every single agency within the city of Los
Angeles had determined that this was not a locally significant
resource. I am being told that the National Register does not
have an impact on our property rights. I am living proof that
it does. Our rights are being trampled by this process.
Even before SHPO cast its vote, lawyers for the applicant
challenged the city's permits, permits they had granted to us
in court. The city lined up with us. But our ability to move
forward came to a stretching halt. Well, this is a halt of a
project which would generate more than $150 million in local
goods and services, provide low- and moderate-income living for
almost 200 families and market-rate living for 650 families.
To make matters worse, we asked SHPO to write a letter.
SHPO did. SHPO wrote a letter stating that our property has
been or would shortly be listed on the National Register. Even
the Keeper herself could not clear up the confusion created by
SHPO, and the City Attorney of Los Angeles still refused to
issue our permits.
On April 24th, the Keeper returned the application to SHPO
declaring that the application was significantly inadequate.
Even though the National Register application has been
effectively terminated, our problems continued. Since the
application has been terminated, the applicants, the Lincoln
Place Tenants Association and those aligned with them, have
filed two lawsuits based solely on submission to the National
Register.
Those who oppose property rights have carefully designed
the system to strangle development activities by the mere
filing of an application. Even today, as we speak, the Lincoln
Place Tenants Association are asserting in a city procedure
that our property is a local resource because of the actions by
SHPO and we should be denied demolition permits, which are a
condition precedent to our redevelopment.
Mr. Chairman and members, I believe the answer to this is
easy. Federal law should not allow being listed on the National
Register without a property owner's consent. I am of the belief
that 167 of 170 property owners have objected to and have had
the properties rubber stamped. I believe it is time to change
the law, because private property rights are being impacted,
and to the bad.
Mr. Radanovich. Thank you.
[The prepared statement of Mr. Bisno follows:]
Statement of Robert Bisno, Owner, Lincoln Place Apartments,
Venice, California
Good Morning Mr. Chairman and members.
My name is Bob Bisno, and I'm a principal in the Lincoln Place
Apartment Redevelopment Project located in Venice, California.
I'm here today because it's important, that we protect the
importance and integrity of the National Register process from those
who are seeking to exploit it to promote their own self-serving agenda.
In my case, that agenda belonged to the tenants of my property who
were seeking to block the redevelopment of my property so that they
would not be obliged to relocate. Their true agenda has nothing to do
with historic preservation. Indeed, several years ago I actually
proposed a plan to renovate all of the existing buildings that would
have preserved them, but the tenants fought and blocked that effort
because they were opposed to the increased rents that would have been
necessary to make such a program feasible.
Abuse of the National Register process and other ``preservation''
mechanisms will become the number one tool to stop economic development
in the coming decade unless you take immediate steps to stop it.
We purchased Lincoln Place Apartments in 1986, and for the past
nine years, we've been through the arduous permitting process to allow
us to carry out our redevelopment plan. Our plan includes the
construction of 144 low-income apartments without any governmental
subsidy, even though the City of Los Angeles does not require
affordable housing in new projects.
Our redevelopment process started in 1994 with an Environmental
Impact Report that considered the historic preservation arguments made
later by the applicants for the National Register.
The Lincoln Place Apartments were built in 1950, basically using
off-the-shelf plans made available by the FHA, which had been issuing
mortgage insurance for thousands of project nation-wide since 1937.
After a full public hearing, the Planning Department of the City of
Los Angeles voted to certify the EIR that found that Lincoln Place was
NOT a significant local resource. See Exhibit A (excerpts from City
EIR).
The following year, the full City Planning Commission, after a full
public hearing and consideration of the same EIR, found that Lincoln
Place was NOT a significant local resource.
Dissatisfied with the decision of the City's Planning Department,
the applicants then filed an application to the City's Cultural
Heritage Commission; a board concerned only with historic preservation,
to have Lincoln Place declared a City monument.
The Cultural Heritage Commission independently reviewed the
evidence cited by the proponents of the National Register application.
They also reviewed the analysis of Robert Chattel, a nationally
recognized expert qualified under the Secretary of the Interior's
Professional qualifications.
After an extensive review of the facts, the commission determined
that Lincoln Place should NOT be designated a Cultural Historic
Landmark as it did not represent significant architecture and was a
later example of the many projects involving FHA mortgage insurance
found in the region.
And just last year, after considering the National Register
application filed by the applicants, the Los Angeles City Council
reviewed that application and UNANIMOUSLY voted that Lincoln Place was
NOT a locally significant resource. See Exhibit B (Findings of City of
Los Angeles).
Having lost locally, the applicants then identified the National
Register process as a tool they might exploit, and filed an application
to have these commonplace structure listed on the National Register of
Historic Places. Under current law, anyone can file a National Register
application, even if the owner objects.
The preliminary steps in the National Register process are
administered by State officials with final decision-making reserved to
the Keeper of the Register.
On February 7th of this year, by a vote of 7 to 1, the California
State Historical Resources Commission voted to recommend to the Keeper
of the National Register that Lincoln Place be considered a ``locally
significant'' resource notwithstanding the City's repeated findings
that Lincoln Place was NOT a significant local resource. Ironically,
according to supporters of the application in a published article,
attempting to have Lincoln Place designated as a historic site was a
last-ditch desperate effort since the applicants had lost everywhere
else they had tried. See, e.g., ``Sad Story Unfolding in Venice'' Santa
Monica Mirror, July 11-17, 2001. Mr. Chairman, I ask unanimous consent
to submit a copy of this article for the record.
Although those administering the National Register process told us
that the application would not have an impact on our property rights,
even before the State Commission cast its vote, the City's permits were
challenged in court, and after the Commission's vote, the City refused
to issue any more permits. Our ability to move forward was instantly
stopped.
Moreover, the State Historic Preservation Officer, who had
essentially ``rubber-stamped'' the application without any independent
review went out of his way to assist those trying to block our
activities by writing letters to suggest that the property had been, or
would be shortly, listed on the National Register.
The Keeper herself had to intervene to clear up the confusion. On
March 28, 2003, the Keeper wrote that neither the February 7, 2003
action of the State Historic Preservation Commission nor the March 3,
2003 transmittal of State Historic Preservation Officer regarding the
Petitioners' application constituted a formal ``determination of
eligibility'' for the Lincoln Place Apartments, and that only she could
make such an official determination.
However, despite her letter and her intention to clarify the
problem created by the State SHPO, the City Attorney still refused to
release our permits.
Later, on April 24, 2003, the Keeper of the National Register
returned the application to the State Historic Preservation Officer
with her findings that the application was significantly inadequate.
Basically, the actions of the State Historic Preservation Commission
and Officer's recommendations were overturned. See Exhibit C (April 24,
2003 Keeper action).
On May 12, 2003, the State Historic Preservation Officer returned
the application in a letter stating that if the applicants wished to
persist in their efforts, a wholly new application would be required.
However, even though the National Register application has been
effectively terminated, our problems resulting from the National
Register application have continued unabated.
As of today, the applicants have filed not one, but two, lawsuits
before different courts to block our redevelopment based only on their
National Register application.
In terms of personal costs, I have spent over $ 500,000.00 in the
past seven months alone just to respond to this application, to respond
to the related lawsuits, and to allow my objections to be heard.
Since this soap opera started, I keep hearing some people say that
an application for the National Register does not affect a property
owner's rights. Moreover, some tell me that I should feel it is an
honor to have my property considered for the National Register.
Those are naive and misguided views. The truth is that those who
oppose property rights have carefully designed the National Register
system so that it can be used to effectively strangle an owner's
activities without any express prohibition on the owner's activities
being invoked.
I'm living proof that the rights of property owners are trampled in
the National Register process, as it currently exists.
That is what has happened, and is continuing to happen to me.
The National Register process needs to be reformed to prevent this
type of abuse. The regulations are vague and not understood even by
cities like Los Angeles, the second largest city in this country. The
evaluation criteria are so subjective as to be non-existent. There is a
lack of rigor on the part of professional staff in screening
applications. In our case, the SHPO conducted no independent review of
the application, and didn't even request that the applicants submit
their bibliography so that the SHPO could check that any of the claims
made were accurate.
But most of all, properties should not be declared eligible for the
National Register if the owner does not request it. If I want my
property honored by the National Register, I will myself make the
application. On the other hand, if I believe being listed on the
National Register is not in my interest as a property owner, I should
be left alone.
There are other laws on the books that give the Federal Government
the right to preserve property that is a significant historic resource
where necessary.
If the Federal Government believes that a property must be
preserved, it can buy the property or condemn it. If the Federal
Government is unwilling to acquire the property for preservation
purposes, it should leave matters to local government and property
owners.
Mr. Chairman and members, the solution to this problem is rather an
easy one. Federal law having to do with preservation must be changed to
require approval of property owners before any application is accepted
by any state SHPO. Only then can the Federal Government take pride in
knowing that it's protecting private property rights rather than have
those right trampled as mine have been.
I thank you Mr. Chairman and this committee for giving me a chance
to bring this travesty to your attention and the attention of this
Congress.
______
[NOTE: Attachments to Mr. Bisno's statement have been retained in
the Committee's official files.]
Mr. Radanovich. I will go ahead and begin. Then we will ask
other members if they would like to ask questions.
I want to start out by saying that I am a big fan of the
Historic Preservation Act and the work that is done by the
societies at the State levels all across the country.
As I mentioned in my opening statement, I think the goal is
to find out whether the process that Mr. Bisno has been subject
to is indeed an anomaly or is this something that might not
happen again or, if it does happen again, is it a threat to the
integrity of the process of identifying historic places all
across the country. So that is going to be what I would like to
find out I think from this hearing.
In my review of Lincoln Place and the application, it seems
to me that this was an application that never should have been
approved at the State SHPO level. This was clearly--and I may
ask someone on the panel, if you are familiar with the
application packet, how could they expect something like that
that was so poorly done and had so many holes in it could have
been possibly approved by a State SHPO director?
Mr. Tiller, are you familiar with the content of that
application?
Mr. Tiller. Mr. Chairman, only to the extent that, after it
arrived in our office and we reviewed it, as Mr. Bisno related,
it was returned by the Keeper of the National Register for a
number of substantive purposes, both on procedural error as
well as substantive and research errors.
So I concur with Mr. Bisno and with your inquiry. It got to
us in a state that it had not be appropriate to go ahead and
submit it to the Keeper at that time.
At the moment, it is back in the court of the folks in
Sacramento, and Mr. Bisno. We await it. But, right now, we have
no issue with this whatsoever.
Mr. Radanovich. Again, I may ask the Keeper to come up and
comment on this, what was left out of the package. But, given
the inadequacy of the package, why was it sent back and why was
it not rejected by the Keeper?
Mr. Tiller. It was sent back, and in a form it was
rejected. We gave them a long list of the work that had to be
done on it. We closed the case on it. So it is, I guess in a
term, rejected. If they choose to resubmit it, they can. But
they now know all of the work that has to be done on it, both
historic research and contextual research, information up-to-
date on its current condition; and it is a fairly tall order
that we have sent back to them.
So, as I said, the case is closed as far as the Park
Service is concerned. It is up to the State of California
whether they want to resubmit it again.
Mr. Radanovich. There is a difference between sent back and
rejected, I would State in Mr. Bisno's defense. Because one
would allow--if indeed the application was sent back with a
statement of what was missing in the application and what
needed to be done in order for the Keeper to hear the case
again, that didn't relieve Mr. Bisno of any problems he had
with the development of his property.
Where, had it been rejected, the folks at Lincoln Place
would have had to start the thing all over again; and there
wouldn't have been a cloud over the development process that
Mr. Bisno did have. So there is a distinct difference between
being sent back and being rejected.
Mr. Tiller. There is, Mr. Chairman. The Keeper of the
Register is asked to make a binary choice: It is eligible for
the National Register or it is not eligible for the National
Register. In sending it back, the Keeper determined and stated,
we have insufficient information to make that call one way or
another. So it is not rejected. It is only rejected at the time
we have enough information to make the call, and then she will
make the call on whether it is eligible or not. At this time,
we have issued no opinion one way or the other.
Mr. Radanovich. I would like to ask if Carol Shull, the
Keeper, would come up and comment on the content of that
particular application, with the idea of how did the State
approve something like it.
Ms. Shull. Thank you, Mr. Chairman.
Mr. Radanovich. Thanks, Carol, for being here.
I would just start out by saying, I know you are familiar
with the case, and thanks for being here today.
Carol, would you state your name and title before you
comment on the content of the application.
Ms. Shull. Thank you. I am Carol Shull. I am the Keeper of
the National Register of Historic Places for the National Park
Service.
Would you prefer to ask me a question or should I comment
on our review?
Mr. Radanovich. That would be perfect. If you would give us
an idea of what was left out and how--I don't want to put words
in your mouth, but whether a SHPO should have approved it and
send forward a document that was in the condition that it was.
Ms. Shull. Well, as you know, owners are given an
opportunity to comment and local officials and anyone else
during the nomination process. We received quite a stack of
comments on the nomination, many of them from Mr. Bisno.
We carefully reviewed the nomination, and there were
substantial questions raised as to whether or not the
nomination had followed all of the appropriate procedures as
required by the law and regulations. So there were so many
concerns raised in the procedural aspects of the nomination
that what we always do in a case like that, in respect to a
State, is ask them, when we return something, to review any
allegations that there have been irregularities in the process.
So we asked the State to look at the comments that had been
received during the comment period and whether or not the
procedures had been followed.
There were also many comments raised about the substance of
the nomination, and we ourselves had comments as we reviewed
the nomination.
Our standard procedure is that when we have questions about
documentation or questions are raised by commenters or in our
own review is that we return the nomination to the State,
raising the questions that need to be raised if we do not think
the documentation is adequate.
We generally--in fact, don't out and out reject nominations
on the first submittal if there are questions that we think
that the State, as the nominating authority, should have the
opportunity to review because--as a matter of respect to the
State and also because the information in the nomination may be
what is inadequate, rather than the property itself.
We always return the nomination unless it is very, very
clear from the documentation that the property does not meet
the criteria. But we had very substantial questions on the
adequacy of this nomination; and I think that was clear in the
return comments, as well as the procedures that were followed.
Mr. Radanovich. Thank you, Mrs. Shull.
With respect to the rest of the Committee, I think if I may
just ask one more question, then I will go ahead and pass time
to somebody else.
I wanted to get Mr. Bisno to react to Mr. Tiller's comment
about the idea of sending back applications to the State and
the difference between that and not just rejecting them and how
that keeps you in limbo still, with the type of--in progressing
with your development.
Can you comment on that for me, Mr. Bisno?
Mr. Bisno. First of all, we would like to thank Mrs. Shull,
the Keeper. We think that she has done her job just like she
should do the job. We think the procedure is broken, the
procedure which allowed the State SHPO, over the objection of
the owner, by a 7-to-1 vote to forward to the Federal
Government a property that at every step of the way on the
local level had not be determined eligible. We think in and of
itself that is a reason for the Keeper to reject such an
application.
Mr. Radanovich. Thank you, Mr. Bisno.
I recognize Mrs. Christensen. Donna.
Mrs. Christensen. Thank you, Mr. Chairman.
I guess I would ask my question to Mr. Nau, or I guess the
first three panelists, this one question: Could you give the
Committee some idea of how common it is for a State or locality
to pass laws limiting a private property owner's ability to
alter the character of that property during consideration for
listing? Is that a common --
Mr. Sanderson. Let me try that one from the perspective of
the State Historic Preservation Officers. I think it is very
unusual. There certainly are some local and State jurisdictions
around the country that in one way or another tie a State or
local program or law to National Register listing. But for that
to be held up during the consideration of the National Register
nomination is not something that, frankly, I am aware of
occurring anywhere, other than the case that has just been
described.
Most States and most local jurisdictions that have
developed these kinds of programs maintain their own list of
historic properties, and even the reliance on National Register
listing is a very small fraction of what most States do. I
think what we are hearing is quite an unusual situation.
Mrs. Christensen. Mr. Bisno, since the application is
essentially closed, and I realize you have been--seems like you
have been in and out of court a lot. As you said, there is
something being filed now. Is that, what is being filed now,
related to the application? Because the application is closed.
It would seem to me that, that being the case, that that should
not be an issue anymore unless they reapplied?
Mr. Bisno. Your question, in my view, points out why this
Act is flawed. Everyone in this room would think that, with the
application being returned, that that would be the end of it.
But it is not. While the city of Los Angeles agrees with us at
every little juncture, the Lincoln Place Tenants Association,
since the Keeper returned the application--that is since--has
filed two lawsuits standing for the proposition that the State
SHPO in forwarding the application recognized the local
significance. Two times we will have to appear in court to
defeat that allegation.
Additionally, today the Lincoln Place Tenants Association
and those aligned with them are contesting that the State
SHPO's action was an official action and therefore the
demolition permits which have previously been granted to us
should be withdrawn.
So the problem that we face isn't one that those in this
room would see, but we have a matrix which allows those who
wish to create mischief to create just that, the type of
mischief that stops $150 million from going into the community,
that stops low-income housing and that stops market-rate
housing.
The solution that we suggest, requiring the property owner
to consent to property put on the National Register, shouldn't
burden anyone whose motives are pure.
Mrs. Christensen. But as far as the Federal legislation is
concerned, it is my understanding that as far as the Federal--
the Act that we are having this hearing on, if the private
property owner objects to the nomination the property cannot be
listed on the National Register. So what we have is a State
issue or a county or city issue. How would anyone propose that
we would fix that in this legislation?
Mr. Bisno. I don't think your assessment is correct. We all
agree that the Federal issue shouldn't apply here. However,
back in State court in California, using the matrix of this
law, the Lincoln Place Tenants Association, again, using this
matrix, is contending that the State SHPO has, under Federal
law, determined this property to be locally significant. And we
don't believe there is a place for that.
With respect to owners consenting, 170 owners in the last
10 years have objected to inclusion on the Federal Register;
167 of those properties, over the owner's objections, have been
listed.
That does not speak to thorough consideration of the
merits, but, rather, a process that simply puts through the
process applications of SHPO.
Finally, we have asked our State SHPO for a letter
confirming that no official State action took place, and we
still have not received that. We have asked for it better than
a month ago.
Mrs. Christensen. Well, my time is up. But I am concerned
about your last statement, about the 170 objections and 167
being on. But I will withhold my comment until maybe another
round. It probably will be answered.
Mr. Radanovich. OK. Thank you, Donna.
Too, I think I want to correct something. I think it might
have been mentioned that 167 applications were listed. But I
think that those were applications that qualified for listing
or were made eligible. I think it is a distinction that needs
to be made.
Mr. Gibbons, did you have any questions?
Mr. Gibbons. I do, Mr. Chairman. Thank you very much. And I
would address my first question to Mr. Tiller.
Listening to these individuals and the obvious knowledge
that the Service must have of the secondary impact of the
eligibility process that you have heard about today, has the
Service undertaken any effort to remedy or address these
problems that--to either Mr. Bisno or others in this process
listing them? 167 out of 170 applicants. Has the Service
undertaken any activity to address that problem?
Mr. Tiller. Congressman, the short answer is no. The 160-
some cases to which we are referring--let me correct the record
first, please. None of those has been listed. It was just a
finding of eligibility, but none has been listed on the
National Register of Historic Places.
Secondly, the larger context of these 160-some findings of
eligibility have been made over the last 10 years. Let's
understand that in the overall reality that we are talking
about 1.2 million properties that are now listed on the
National Register of Historic Places. So what we are talking
about statistically is a fraction of a fraction of 1 percent of
the properties that are now listed on the National Register of
Historic Places.
Mr. Gibbons. I apologize for interrupting you, but my time
is very short. I want to get to two major points that I want to
make.
If the fact the Service agrees that a property merits
eligibility and recognition as a historical place and there is
an owner's objection to that listing and there is a secondary
effect to that listing and yet the Service believes that it
should go forward with the listing regardless of the owner's
objection, isn't due process, as you heard earlier, a
fundamental right of the property owner and shouldn't the
Service then utilize its condemnation authority or some type of
condemnation authority and compensation of an owner for the
loss of the property right or the validation due to listing if
it is objected to by the owner?
Mr. Tiller. Complex question. Again, with respect,
Congressman, none of these properties has been listed on the
National Register.
Mr. Gibbons. No. But I am just saying if there were.
Mr. Tiller. I understand, sir.
Secondly, and I think importantly, conferring or listing a
property on the National Register of Historic Places in the
United States as we have stated confers no control on behalf of
the Federal Government and little or none anywhere else.
I have been in this business 25 years, and the Keeper has I
suspect that or maybe a little bit more, also. This is the
first time that we have come up with a situation like this
throughout 1.2 million properties listed on the Register.
In answer to your question, sir, the fact that a property
is listed on the National Register of Historic Places or
determined eligible for it conveys--the creation of the
National Register was, first and foremost, honorific these 30-
some years that it has been in existence.
Secondly, it is viewed as a planning tool to indicate to
State and local planners and people in the city there in which
it exists that we have an important property here that you
should consider as you think about the preservation and long-
term effects of the business that you do.
Thirdly, it conveys also and creates an opportunity for it
to receive grant or tax projects, as you have heard from Ted
Sanderson. There was an never an intent of putting a property
on the Register or listing it as significant, that this leads
to absolute preservation for all time forward.
There are many ways to preserve. You can document before
you demolish it. There is not necessarily an iterative line
between on the National Register, and it must be preserved.
The National Park Service, we have 388 units in the
National System. The 1.2 million number of properties on the
National Register, under no circumstances would we, the Park
Service, consider these for condemning and making units of the
National Park System. They are strictly there for honorific and
planning purposes.
Mr. Gibbons. Let me ask one final question before my time
runs out. And I want to flip the coin.
Because, at Lake Tahoe there is a place called the Dreyfus
Estate, Thunderbird Lodge, built in the turn of the century,
20th century, beautiful, magnificent artwork, in the rock
construction, listed as a historic place, owned and--sits on
property owned by the Forest Service which was transferred to
the Forest Service subsequent to the construction of the
property.
The estate is still there run by a non-profit for tours.
However, the Forest Service indicated that because of the
liability it would like to get the property back, and its
intent in getting the property back would be to tear down the
Dreyfus Estate or the Thunderbird Lodge.
There is nothing in the law which prevents the Federal
Government from going in and tearing down a place, even though
it is registered as a historic place. So it should not impose a
private citizen's right to go in and tear something down simply
because it is a historically registered place. Would you agree
with that presumption or not?
Mr. Tiller. I agree with that, and nothing in the finding
of eligibility in Federal law prevents Mr. Bisno from tearing
down the Lincoln Place Apartments. Where he has been snagged is
municipal law, not the Federal law.
Mr. Gibbons. Thank you, Mr. Chairman.
Mr. Radanovich. Thank you Mr. Gibbons.
Mr. Udall, Mr. Tom Udall, did you have any questions?
Mr. Udall of New Mexico. Thank you, Mr. Chairman.
I wanted to ask Mr. Nau about the activities of his
Advisory Council with regard to--there is a recent ruling in
the Circuit Court of the District of Columbia called National
Mining Association versus John Fowler. Are you familiar with
that case?
Mr. Nau. I came in as chairman right in the middle of that,
Congressman. I have a little bit of knowledge, which makes me
dangerous. Mr. Fowler is here, so he is a little bit more on
point.
Mr. Udall of New Mexico. Why don't you share with me a
little bit of your knowledge as it relates to your Council on
that decision?
Mr. Nau. I am serious. I came in right at the absolute end
of it. May I refer to Mr. Fowler?
Mr. Udall of New Mexico. I don't know if the Chairman wants
another witness or not.
Mr. Nau. I think he would be the right person to answer the
question, Mr. Chairman.
Mr. Radanovich. That would be fine.
Mr. Fowler, if you would state your name and title before
you answer the question, that would be fine.
Mr. Fowler. My name is John Fowler. I am the Executive
Director of the Advisory Council on Historic Preservation and
the defendant in the case of National Mining Association versus
Fowler, which I would note was previously National Mining
Association versus Nau, but they gave me the dubious
distinction of naming the appellate case for me.
The case goes back to a challenge that was made by the
National Mining Association 2 years ago, 3 years ago, to new
regulations that were issued by the Advisory Council on
Historic Preservation to implement Section 106 of the National
Historic Preservation Act.
To state it very simply, the district court dismissed the
challenge to the Council regulations on most counts. There were
two minor points where they ruled in favor of the Mining
Association. The Mining Association appealed on the issue of
whether the definition of undertaking, under Section 106 of the
National Historic Preservation Act, included permits that are
issued by State or local authorities under color of Federal
law, such as a permit under the Surface Mining Control and
Reclamation Act that is issued by a State under Federal
delegation.
The Mining Association, which obviously is very concerned
about the application of Section 106 to State-issued mining
permits, took that as their one issue on appeal. The appellate
court, in a decision that was handed down on April 15th, ruled
in favor of the Mining Association, citing a previous case that
the full D.C. Court of Appeals had ruled on several years ago.
They said they were bound by the precedent of that case and,
under that precedent, if there was no direct Federal
involvement in an undertaking, Section 106 of the National
Historic Preservation Act would not apply.
So that ruling was handed down by a panel of the D.C.
Circuit. The period for determining whether a rehearing en banc
will be filed has been extended to June 30th. The Council is
currently in discussions with the Justice Department regarding
the government's position on a petition for rehearing.
Mr. Udall of New Mexico. Is it fair to say, Mr. Fowler,
that the ruling would impact historic preservation pretty
severely?
Mr. Fowler. The ruling would directly impact the
application of Federal protections to such things as permits
for surface mining issued under the Service Mining--under SMCRA
and several other statutes.
Mr. Udall of New Mexico. Mr. Fowler, you and Mr. Nau serve
together on the Advisory Council?
Mr. Fowler. I am the head of the staff. Mr. Nau is the head
of the agency appointed by the president.
Mr. Udall of New Mexico. Is the Council itself urging the
Justice Department to ask for an en banc review by the D.C.
Circuit Court or willing to ask for a further Supreme Court
review of this?
Mr. Fowler. I will defer to my Chairman.
Mr. Nau. The answer is yes.
Mr. Udall of New Mexico. OK. And the time period is still
for June 30th? It has been extended?
Mr. Nau. Yes.
Mr. Udall of New Mexico. So your Council is weighing in on
this?
Looking at your responsibilities that are laid out in the
statute, it seems to me that that is a prudent thing to do; and
I would urge you to do that. I hope that you may be successful
on this, because it directly impacts my State of New Mexico. It
may well impact a lot of the other States of members on this
Committee, and obviously ones that aren't on the Committee.
Thank you. I see my time is up.
Mr. Radanovich. Mr. Duncan, did you have any questions?
Mr. Duncan. Well, I have got a few. I apologize. I was at
another hearing, so I didn't get to hear all of the testimony,
so I won't have many questions.
But let me ask, can any of the witnesses tell me roughly
how many properties are on the National Register at this point?
Mr. Tiller. At the moment, there are a little in excess of
1.2 million properties and 76-some thousand listings.
Mr. Duncan. I don't understand the difference between a
property and a listing.
Mr. Tiller. In Charleston, South Carolina, the Charleston
Historic District is one listing, but it may contain 500
properties. So some of the listings in the National Register
are one house, Mt. Vernon, and that is the one. Charleston
Historic District may have 500 properties.
Mr. Duncan. 1.2 million you say?
Mr. Tiller. Yes, sir. RPTS BRYANDCMN HERZFELD[3 p.m.]
Mr. Duncan. And how many requests roughly do you get each
year for new listings or new properties?
Mr. Tiller. As I mentioned--Carol, do you off the top of
your head remember what last year's listing was?
Mr. Radanovich. You are going to need to repeat that for
the record.
Mr. Tiller. Mr. Chairman, 1,454 nominations, including
40,141 properties.
Mr. Duncan. And what was the first year the list was set
up?
Mr. Tiller. The late 1960's. It was authorized in the 1966
act, and I think--well, automatically a lot of the national
park properties got added to it, so that came almost
automatically in 1966.
Mr. Duncan. So the late 1960's, is that what you said?
Mr. Tiller. Yes, sir.
Mr. Duncan. What I am getting at, about how many listings
did you have each year back in, say, the late 1960's and early
1970's? In other words, what I am wondering about, is this
something that is increasing every year, or are we listing or
having a lot more properties listed? In other words, if I asked
you for the statistics, say, 20 years ago, what would that 1.2
million figure have been 10 years ago or 20 years ago?
Mr. Tiller. Sir, I don't have those trends. I know in
recent history it has been fairly constant each year. We
certainly can get you that information over the life of the
program.
Mr. Duncan. I would be interested in seeing that. And I
understand, and I didn't get to hear his testimony, but I
understand that, Mr. Bisno, that your property--that the Los
Angeles City Council or the city of Los Angeles found that your
property was not historic, but then later on the State came in
and found that it was? Or what was the situation there?
Mr. Bisno. The planning staff, the planning commission,
Cultural Heritage, Planning, Land Use Management Subcommittee
of, and the City Council of Los Angeles found that we were not
locally significant. Acting pursuant to the Federal law, SHPO
forwarded our application to the Keeper, and that started a
world of problems for us. It has stopped commercial
development, has trampled our rights. And Mr. Tiller would
suggest that the Federal law didn't snag us, and I just can't
agree with that, sir. The city of Los Angeles is on the same
side as we are. The Federal law is supposed to be neutral, and
the Federal law is not neutral if, over the owner's objection,
we are going to be eligible for listing, because that triggers,
even if the city is on our side, litigation in the hands of
third parties, which suggests the result that we have
encountered. And I would suggest that if the Federal
legislation is intended not to interfere with property owners'
rights, then we can alleviate, ameliorate our problem by simply
changing the legislation to have it not be in effect when a
property owner objects.
Mr. Duncan. Well, it seems to me that if we already have
1.2 million properties on the list now, and if a person is
truly willing to more than just pay lip service to a belief in
private property, that this process shouldn't be able to be
done over the objection of a private property owner. One of the
foundation stones of our freedom and our prosperity is private
property, and I am sure that everybody here today would say
they believe in private property, but you really don't if you
believe that this type of thing should be done over the
objections of the property owner.
Thank you very much, Mr. Chairman.
Mr. Radanovich. Thank you, Mr. Duncan.
Mr. Mark Udall.
Mr. Udall of Colorado. Thank you, Mr. Chairman. I want to
recognize the panel. Thank you for taking time out of your day
for joining us. It has been very helpful to me to hear this
debate and discussion.
As a preface, I would just say that I think we would all
agree that the historic preservation program has been very
successful across a broad range of cities and towns in America,
and that the discussion by Mr. Bisno, about a particular
difficult situation. I hope I will have enough time to hear a
little bit more from Mr. Bisno.
But I want to just do what I can with Mr. Tiller, to
understand that it is the difference between eligibility and
listing.
Now, Mr. Tiller, under the Federal law, can a private
property be listed on a Federal register if the owner objects?
Mr. Tiller. No, sir, it cannot.
Mr. Mark Udall. It cannot. And as a matter of Federal law,
what is the significance of a listing, and how does that differ
from a finding of eligibility for listing?
Mr. Tiller. Congressman, there is actually--there are three
things sort of cutting back and forth here. What we call a
formal listing on the National Register of Historic Places is
when the property owner or a nomination is submitted to the
national register, and the form is filled out, and it is
located on the map, and there are photographs provided and
submitted to and through the State--Governor-appointed State
historic preservation office, and then if the review board of
the State passes on it, it comes to the Keeper of the National
Register of Historic Places, and her staff reviews it for
technical sufficiency and also the scholarship. If it passes
all of those hurdles, it is entered into the National Register
of Historic Places. It becomes officially part of the list.
The second area is within the 106 arena with our colleagues
and friends on the advisory council who co-administer this part
of the process. In the 106 process, when a Federal agency is
undertaking a project anywhere in the United States, the
question is asked, are there historic properties in the impact
area? And the first question is, are there any on the national
register, and that is answered. But then the other question is
asked, are there other properties we may not know anything
about? And the State and the Federal agencies work to identify
those. Those are called opinions on eligibility or sometimes
consensus determinations. They do not--they are not listed on
the national register, but they are at least determined if
there is something that appears to meet national register
criteria in the area, and neither the advisory council nor the
National Park Service gets involved in this. This is just a
finding of fact between the Federal agencies.
The third category is what brings us here today, which is
called the determination of eligibility, or the owner object
determination of eligibility. In those rare instances, and, as
I said, it is less than 1 percent every year of these sorts of
activities, there is a citizen that submits a nomination to the
Keeper of the national register through that same process I
described, but the owner objects to it. And the Keeper
nonetheless makes a determination whether he or she believes it
is eligible for the register, but it is not listed, and it
brings no Federal restrictions on what happens to that. It is,
in fact, never listed.
So there are really three types of categories we are
talking about here.
Mr. Udall of Colorado. Mr. Bisno, you had some
recommendations, and I want to make sure you have a fair
hearing here and that we have a chance to review what you
suggest. My understanding right now is that, in effect, you
have become caught in a web that is more the making of local
and State law than it is the Federal law, and that what you are
requesting us to do would perhaps be better done at the local
or the State level. Do you--would you like to comment on that
and edify me further or give me a little more insight into the
situation in which you find yourself?
Mr. Bisno. Well, the city of Los Angeles and the Lincoln
Place Apartment owners don't have any disagreement, so we are
not caught in city law. The city of Los Angeles has
consistently taken the position that this property has no
historical significance worth protecting. And so I can't really
agree that we are caught in city law, because we and the city
of L.A. are lined up on the same side.
On the other side is the Lincoln Place Tenants Association,
and their position is, they are able to assert this in court,
that the starting of this procedure, through SHPO, which is
part of the Federal process, and I am not suggesting that this
is the right position, but this is the position they are
contending--
Mr. Udall of Colorado. Sure.
Mr. Bisno. It has brought our project to a halt, and it has
been a detriment to the community down there, but their
position is the starting of this procedure, SHPO forwarding the
application to the Keeper, is sufficient official action that
we should not be given demolition permits or the right to
redevelop our property.
Now, if we are only talking about 167 properties over the
course of thousands or tens of thousands, it would seem to be a
relatively easy loophole for Congress to fix, modifying the
current matrix to provide that, over an owner's objection, you
just don't get on this list. You don't start the process. That
is my suggestion.
Mr. Udall of Colorado. I see my time has expired, but I
would say that I understand what you are pointing out. We have
had some 99 percent of the application process work out fine
for everybody involved. We have the 1 percent that maybe you
are in, or an even much smaller percentage of the 1 percent,
but that doesn't reduce the headache and the heartache that you
have experienced. But we have to be careful, I think, in
looking at changing the law that we would have unintended
consequences on the 99 percent of the processes that seem to
unfold successfully.
So I thank the panel, and I thank the Chairman for his
indulgence.
Mr. Radanovich. Thank you, Mr. Udall.
Mr. Bishop, did you have any questions?
Mr. Bishop. No.
Mr. Radanovich. None now? Thank you.
I do have a couple of questions that I want to make sure
that get asked and into the record here, not the national
record, but just a reminder, this is a hearing on the
reauthorization of the advisory council.
Mr. Nau, I wanted to ask you to comment on this. You
mentioned as one of your recommendations to expand membership
by directing the President to designate the heads of three
additional Federal agencies to the Commission. Can you tell me
which agencies you think should be added and why?
Mr. Nau. Mr. Chairman, let me take the why first and then
come back to the three.
The original intent was to have various agencies sit on the
council that have programs that impact historic properties
throughout the country. There are four that are Presidentially
designated. As we went through working with the Administration
and creating the Preserve America Program, it became clear to
those of us on the council that there are other departments,
other agencies that clearly have an impact on aspects of
historic preservation as historic preservation exists today and
into the future. There are clearly economic development
benefits through heritage tourism and other programs. The only
agency that traditionally deals in that arena is obviously the
Commerce Department, and particularly the Economic Development
Administration.
Secondly, one of the long-term benefits of heritage tourism
and preservation is the education of the youth of America and,
quite honestly, foreign visitors to the American values. The
only place that you can touch American values is in these
locations. So obviously, it is the Department of Education and
that should be added.
The third is an agency whose programs impact thousands of
historic properties all over the country every year--the
Department of Housing and Urban Development.
So I don't want to presuppose, this is up to the President
to nominate these agencies, but the three that we would
recommend to him would be Commerce, Education, and HUD.
Mr. Radanovich. Very good. Thank you.
Mr. Nau, I want to get your comment on the issue at hand
here with Mr. Bisno. And to lead into that, I understand that
the State of New York and, I think, the State of Texas
typically do not make eligible, and correct me if I am wrong,
any particular property unless if the private property owner
objects to it. It seems to me it is decided differently State
by State on how these things are handled. Do you think, given
what you have heard here, that it would just be a flat-out
requirement that every State could not do this, and if so, can
you tell me why?
Mr. Nau. Well, you have heard Mr. Tiller identify the three
different classifications. I would like to zero in on one,
because there is a clear difference between listing and
eligibility.
Mr. Radanovich. Correct.
Mr. Nau. And the question to me, when I heard of this-- and
I agree, Mr. Bisno, he has obviously been a victim, or the
process has been abused, there is no question, from my
perspective--but why would we have a system that would allow an
eligibility level without the owner's consent?
Go back to 1966 and why Act this was created in the first
place. Take the building of the Interstate Highway System.
There were hundreds, if not thousands, of historic properties
where these interstates were cutting through. The question
became how can the preservation community engage or be engaged
in the process when the U.S. Transportation Department does
something, or HUD does something? So the system of eligibility
simply allows that property, if it is going to be impacted by a
Federal undertaking, to come under the Section 106 process
review, as Mr. Tiller said. It does not require owner consent,
and as we have all identified in 99 percent of these projects,
there is no adverse impact from the eligibility status of the
property; it simply allows it to engage a Federal process
through the 106. I would say that that is a good outcome.
I also would suggest that there is a gatekeeper issue here
from my perspective, and I think from the Council's; the Keeper
is a gatekeeper and the SHPO is the gatekeeper, and if there is
a disconnect, it is somewhere not at the Federal side of this,
it is a disconnect at the--in this particular case it would
appear at the State level.
But I would again point out that there is a logical reason
for having an eligibility level in here that does not require
an owner's consent. If we were to go to that, because there is
no adverse effect at the Federal level, I am absolutely
convinced of that--if we were to go to that and require owner
consent, or at least owner awareness, it would, from an
efficiency standpoint, slow down an awful lot of the Section
106 reviews, because in most cases, the owner doesn't need to
know that there is a review going on on a 106 basis. In most
cases they are ultimately involved anyway, but there is no
adverse effect.
So I would point out that there was a reason for it. The
reason still exists. We have to figure out how to fix the
gatekeeper, and I would say that the Council would love to be
part of the process of addressing this particular issue,
because Mr. Bisno has clearly shown that there is a break. I
don't think it is completely broken, but there is a break in
the process in this case. Thank you.
Mr. Radanovich. Thank you, Mr. Nau.
A couple of wrap-up questions, I think.
Mr. Tiller, I would like you to comment on this. You
mentioned in your testimony that under the National Historic
Preservation Act, a property owner is under no obligation to
protect the historic property following a determination of
eligibility. Thus, a determination of eligibility by the Keeper
is not intended to adversely impact a property owner's right.
That is correct, isn't it?
Mr. Tiller. Yes, Mr. Chairman.
Mr. Radanovich. If the Federal Government is not intending
to affect a private property owner's rights by determination of
eligibility, what is the point of the Federal Government making
such a determination against an owner's wishes?
Mr. Tiller. When this piece of policy was created, when
this was written into the law, which was before my time in this
business, but my understanding was that the Congress had
intended largely three things: one, to create some record of
what was there for future generations if the property is
demolished or so denatured; second, to create information for
local and regional and statewide planning purposes, to put a
dot on the map and say, there is something here that we need to
pay attention to now and in future generations; and I think
third, although of less weight, is if there is a new property
owner, that he or she can go ahead and get the property listed
and get tax and grant benefits that are offered under the aegis
of these SWITA programs. But I know the policy intent at the
time was to impose no punitive and no restrictive rights on
the--controls on the private property owner.
Mr. Radanovich. Thank you, sir.
Mr. Sanderson, I do have a question of you. A determination
of eligibility is an official determination that can be made
only by the Keeper of the national register; that is correct,
is it not? It cannot be made by the SHPO; is that true?
Mr. Sanderson. That is correct. Actually a determination of
eligibility, as I understand it, can be made by the Keeper, by
the Secretary of the Interior, or by the Congress itself.
Mr. Radanovich. But not by the SHPO.
Mr. Sanderson. Not by the SHPO.
Mr. Radanovich. Do you know why the California SHPO is
unwilling to send a letter to Mr. Bisno confirming that the
California SHPO had not made a determination for Mr. Bisno's
property?
Mr. Sanderson. I am not aware of that particular situation
at all. I am not aware that a request has been made or what
action the SHPO may have taken on that. I would note that the
SHPO and the State review board are both part of a multi-tier
process. We have talked about the national register process
this afternoon, and they do have an involvement in that
process.
So I think in Rhode Island where I run the preservation
program, if I received a request like that, I think I probably
would write a letter. I would probably begin that letter by
explaining the role of the Keeper and the fact that only the
Keeper can make an official Federal determination of
eligibility, and then I would probably report on whatever
action the State review board had taken, if it had looked at
the property simply as a matter of fact, whether they had
looked at the property and what conclusions they had reached,
and I would probably report on whether I and my professional
staff had looked at the property and whether we had developed
any professional opinion about its significance or in relation
to criteria.
Mr. Radanovich. Thank you, Mr. Sanderson. I appreciate that
comment.
Mr. Bisno, did you want to react to that?
Mr. Bisno. Mr. Chairman, I would like to comment first to
what Mr. Sanderson just said and then to what Mr. Tiller said,
and to put on the record that we have asked SHPO in California
two or three times as recently as last week to write a letter
to us telling us that no official action had been taken. We
would find that letter valuable in our litigation against the
Lincoln Place Tenants Association. The first request was 3, 4
weeks ago. We have received no letter for whatever reason. The
keeper has refused--pardon me, SHPO has refused to write such a
letter. It is surprising to us.
Second, the matrix here is not to impact private property
rights. That is the overall theory. Federal law allows the
government to buy or condemn a property if the Federal
Government believes it should be preserved. If the government
does not believe the property is sufficiently important to
acquire it, it should leave the matter to local government. But
in this case SHPO is acting as an agent of the Federal
Government. It is not performing an independent State
government function, and therein we find the problem that we
have arrived at today.
Mr. Radanovich. Thank you very much.
Mr. Bisno, if the national register process is not intended
to affect your rights, why do you think that the application--
that the applicants have fought so hard to make sure that your
property is determined eligible?
Mr. Bisno. The actions of the Lincoln Place Tenants
Association speak volume as to their view that the national
process does affect our rights.
Mr. Radanovich. Right. Thank you.
Any other questions, Mr. Duncan or Mr. Bishop?
Ms. Christensen. If I could just follow up on that. But it
is the States or the city of Los Angeles really that has
determined that their--part of their criteria is the
eligibility. It is not what we are doing through the Federal
law, it is through what Los Angeles does and what they decide.
They decided that part of their criteria would be the
eligibility, and that is what is creating the problem for you,
isn't it?
Mr. Bisno. The current litigation with the Lincoln Place
Tenants Association has the city of Los Angeles and our company
on the same side, so, no, I do not see this as a dispute with
the city of Los Angeles.
Ms. Christensen. OK. Who issued the demolition permit?
Mr. Bisno. The city of Los Angeles.
Ms. Christensen. But they are refusing to do it based on
the eligibility?
Mr. Bisno. No. The Lincoln Place Tenants Association has
now filed a proceeding within the city of Los Angeles which has
temporarily stopped the demolition permit. The city of Los
Angeles in this case will be the arbiter of the third party.
Mr. Radanovich. Thank you.
Mr. Nau, in your capacity as chairman of the advisory
council, is it within the purview of the advisory council to
take up issues like this and make recommendations? The reason I
ask that was that there seemed to be some openness to want to
work, or at least to review the Bisno situation to see if there
were changes that could be made.
Mr. Nau. We would--Mr. Sanderson sits as a member of the
council, and we could play, I think, a catalytic role, but we
would have no formal role. That is why I wanted to understand
the question. But if this came to our attention, we would then
be able to carry that back through the particular SHPO office
to Mr. Sanderson and his organization, yes.
Mr. Radanovich. Is there a way that the Committee could
hear back the results of something like that?
Mr. Nau. Certainly. Absolutely.
Mr. Radanovich. OK. All right. Well, thank you.
Gentlemen, thank you so much for again taking time out of
your day to be here and to discuss this topic. I appreciate
your being here and the information you provided.
With that, this hearing is adjourned.
[Whereupon, at 3:30 p.m., the Subcommittee was adjourned.]