US/ICOMOS June 3, 2011

Secretary of Interior Standards Policy Impact on Tax Credit Projects

Susan Mead Jackson Walker L.L.P.

Question: Is It Immoral For a New Building Not to Look Like a New Building?
ANSWER: Yes, if you want to use the Historic Tax Credit

THE CURRENT POLICY OF MODERNISM

The policy that was supposed to encourage historic restoration has been turned on its head and is being used to deny tax credits.

THE HISTORY OF THE POLICY

A policy against replication began at the Department of Interior in the 1970s, before the 20% tax credit was available, when the policy was applied to large, publicly owned buildings and not new infill or additional construction in historic districts.
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HISTORIC PRESERVATION TAX CREDITS

Two Tax Credits Are Available: 1. The 20% rehabilitation tax credit equals 20% of the amount spent in a certified rehabilitation of a certified historic structure. 2. The 10% rehabilitation tax credit equals 10% of the amount spent to rehabilitate a non-historic building build before 1936.
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The Secretary of the Interiors STANDARDS FOR REHABILITATION

9. New additions, exterior alteration, or related new construction shall not destroy historic materials that characterize the property. The new work shall be differentiated from the old and shall be compatible with the massing, size, scale, and architectural features to protect the historic integrity of the property and its environment.
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TRADITIONAL APPROACH RULE AGAINST CONFUSION

new additions should be designed and constructed so that the characterdefining features of the historic building are not radically changed, obscured, damaged or destroyed in the process of rehabilitation. New design should always be clearly differentiated so that the addition does not appear to be part of the historic resource.
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REVISIONIST APPROACH - RULE IN FAVOR OF CONTRAST

2007 Revised Guidelines From: Making a Good Program Better Final guidance and implementation of National Park System Advisory Board Recommendations for the Federal Historic Rehabilitation Tax Credit Program
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REVISIONIST APPROACH - RULE IN FAVOR OF CONTRAST

From: Making a Good Program Better

In the past, the NPS approach to new additions and new construction was understood as favoring a particular style over another. That style was a simplified version of the historic building, rather than a frankly modern or more traditional approach. The NPS has made clear that:

New additions and construction can be in any style modern, traditional, or an adaptation of the historic building style provided that the criteria in Standards 9 and 10 are met.
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REVISIONIST APPROACH - RULE IN FAVOR OF CONTRAST

From: Making a Good Program Better

Previously, the NPS has considered subordination of a new addition to a historic building to be an essential component of compatibility. To illustrate an exception, NPS makes explicit that: The compatibility of new additions and new construction within urban or densely built environments will be viewed in a wider context and may allow greater flexibility of size and design than would be appropriate for stand alone buildings.

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Current Policy of Contrasts

Has Delivered Bad and Good Results Sixth Floor Museum Addition

Jefferson Tower Addition

Approved- but credits denied when architect tried to add string-coursing, tower, and other architectural articulation, refinement or details, rather than just compatible volumes.

Approved- with some architectural detailing but no window openings or other articulation.

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Current Policy of Contrasts

Has Delivered Bad and Good Results

Approved- addition is the mirror image of the existing house volume-wise, but the new half was approved with brick string-coursing and tile gable end. 12

The upper 2 floors of this early-20th century office building were part of the original design, but were not built. During rehabilitation, the 2 stories were finally constructed. This treatment does not meet the Standards because the addition has given the building an appearance it never had historically. (even though owner used the original plans)

Denial of Credits
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Current Policy of Contrasts

Has Delivered Bad and Good Results 501 Elm or Sixth Floor Museum Addition

Jefferson Tower Addition

Approved- by local landmarks commission, SHPO, and National Park Service.

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Reevaluation of Policies Relating to Tax Act Projects But first:

Recognize that typically there are no national standards in any country except for federally owned or federally financed projects being reviewed by federal board Recognize that before and immediately following the passage of the NHPA, it was more common for the local historic commission to determine the design guidelines for changes in a historic district

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Reevaluation of Policies Relating to Tax Act Projects

Recognize that great design cannot be created through regulations Recognize legal issues related to overregulation using design standards Recognize that all design standards are negotiated solutions that are context specific and therefore local in nature
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Potential Solution
Review of Tax Act projects should rely first and foremost on local negotiated design solutions and approaches in lieu of policy decisions at a national level. The Local Landmarks Commission and SHPO recommendation more often than not reflects a contextual solution.
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Some say demolition might have been better

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