Orig­i­nally Pub­lished 2010

By Gary L. Cole AIA, Esq.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Orig­i­nally Pub­lished 2010

By Gary L. Cole AIA, Esq.

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

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

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

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

© Copy­right Gary L. Cole AIA, Esq. 2010