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ALI-ABA Course of Study Historic Preservation Law

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ALI-ABA Course of Study Historic Preservation Law ALI-ABA Course of Study Historic Preservation Law Cosponsored by the National Trust for Historic Preservation April 26 - 27, 2007 Washington, D.C. TABLE OF CONTENTS Page PROGRAM xv FACULTY PARTICIPANTS xvii FACULTY BIOGRAPHIES xix STUDY MATERIAL VOLUME 1 OVERVIEW MATERIALS 1. A Layperson's Guide to Historic Preservation Law: A Survey of Federal, 1 State, and Local Laws Governing Historic Resource Protection (PRESERVATION BOOKS, 2005) By Julia H. Miller 2. Glossary of Terms (NTHP PRESERVATION LAW REPORTER EDUCATIONAL 57 MATERIALS, 2007) FEDERAL PRESERVATION LAW 3. Principal Federal Historic Preservation Laws at a Glance 65 By Elizabeth Sherrill Merritt 4. National Historic Preservation Act of 1966 (as amended 1980, 1992, 2000, 16 69 U.S.C. §§ 470-470x-6) 5. National Historic Preservation Act Regulations: Protection of Historic 103 Properties, 36 CFR Part 800 (As amended, 2004) 6. Section 106 of the National Historic Preservation Act and Section 4(f) of the 121 Department of Transportation Act By Elizabeth Sherrill Merritt 7. Protecting Historic Properties: A Citizen's Guide to Section 106 Review and 129 Section 106 Flow Chart with Explanatory Material (Advisory Council on Historic Preservation, 2001) Citizen's Guide 131 Section 106 Regulations Flow Chart and Explanation 143 8. National Environmental Policy Act, (Selected Provisions) (42 U.S.C. §§ 153 4321-4347) vii 9. Federal Highway Administration Materials 159 Submitted by Diane Mobley Section 4(f), as Amended by SAFETEA-LU 161 Department of Transportation Regulations Implementing Section 4(f) (49 U.S.C. § 303, 23 CFR § 771.135) 163 New Statute of Limitations Established by SAFETEA-LU 170 Guidance for Determining De Minimis Impacts to Section 4(f) Resources (Cover Memorandum, Dec. 13, 2005) 171 Questions and Answers on the Application of the Section 4(f) De Minimis Impact Criteria 173 173 Guidance for Applying the 4(f) Exemption for the Interstate Highway System (Cover Memorandum, Jan. 13, 2006) 181 SAFETEA-LU: Section 6007: Questions and Answers on the Exemption of the Interstate System 183 FHA Final List of Nationally and Exceptionally Significant Features of the Federal Interstate Highway System 186 10. An Overview of Federal Historic Preservation Case Law, 1966-1996 215 (Advisory Council on Historic Preservation, 1996) Introductory Note 217 Table of Contents 218 Overview 220 11. Federal Historic Preservation Case Law Update, 1996-2000 (Advisory 271 Council on Historic Preservation, 2001) By Javier Marques 12. Recent Developments in Case Law Interpreting the National Historic 305 Preservation Act, 1990 to the Present By Andrea C. Ferster Study Outline 307 Merrit Parkway Conservancy v. Mineta, 424 F.Supp. 2d 396 (D. Conn., 2006) 323 13. NEPA and Historic Preservation 347 By Nicholas C. Yost 14. California Preservation Sagas: 710 Freeway and Owens River 353 By Antonio Rossmann 15. Federal Preservation Laws Protecting Archaeological Sites and Native 357 American Cultural Resources By Sherry Hutt viii 16. Archaeological Issues: Closing The Circle – An Update 403 By Joseph Z. Fleming Study Outline 405 Appendix A: Background Information 407 Appendix B: Papers filed in Dade Heritage Trust v. City of Miami (Fla. 11th Cir., No. 99-02657CA23) and Miami-Dade County v. Prickell Point, Ltd. (Fla. 11th Cir., No. 99-04219CA32) 441 17. Art Law Issues 481 By John Henry Merryman STATE AND LOCAL PRESERVATION POLICY 18. A Menu of Historic Preservation Laws and Policies at the State Level 493 By Thompson M. Mayes 19. State Laws to Consider Historic Resources (FROM SMART STATES, BETTER 497 COMMUNITIES (National Trust for Historic Preservation, 1996) By Constance Beaumont 20. The Historic Preservation Ordinance (NTHP PRESERVATION LAW 509 REPORTER EDUCATIONAL MATERIALS, 2007) 21. Frequently Asked Questions About Local Preservation Laws (NTHP 513 PRESERVATION LAW REPORTER EDUCATIONAL MATERIALS, 2007) 22. Assessing Economic Hardship Claims Under Historic Preservation 521 Ordinances (NTHP PRESERVATION LAW REPORTER EDUCATIONAL MATERIALS, 2007) 23. Demolition by Neglect (NTHP PRESERVATION LAW REPORTER EDUCATIONAL 527 MATERIALS, 2007) 24. Protecting Potential Landmarks Through Demolition Review (NTHP 537 PRESERVATION LAW PUBLICATION, 2007) By Julia H. Miller 25. Advocacy for Alternatives to Teardowns (NTHP TEARDOWN RESOUCES 551 GUIDE, 2007) 26. The Miami Beach Art Deco District: An Evolving Case Study of 563 Preservation and Its Discontents By Joseph Z. Fleming Study Outline 565 Index to Appendices 603 Appendix I 604 Appendix II 613 Appendix III 616 Appendix IV 620 27. Talking Points 661 By Joseph Z. Fleming ix 28. Thematic Resources District Ordinance: A Potential for Resolving Matters 675 That Do Not Neatly Fit into Historic Preservation Ordinances: An Update By Joseph Z. Fleming and Margot Ammidown Study Outline 677 Appendix A: Conceptual TRD Ordinance 682 Appendix B: City of Miami Beach, Florida, Ordinance Relating to Neighborhod Conservation Districts 693 Appendix C: City of Miami Beach Notice of Preliminary Public Hearing on a Proposed Neighborhod Conservation District 698 Appendix D: Gilbert M. Fein Neighborhood Conservation District Plan Report 699 ACCESSIBILITY AND HISTORIC PRESERVATION 29. Disability and Historic Preservation Law: Accommodation of Public Policy 709 to Ensure Preservation Is for All By Joseph Z. Fleming Study Outline 711 Appendix A 715 Appendix B-1 749 Appendix B-2 750 Appendix C 754 30. Gathright-Dietrich v. Atlanta Landmarks, Inc., 452 F.3d 1269 (11th Cir., 757 2006) VOLUME 2 HISTORIC PRESERVATION AND THE CONSTITUTION 31. Designating Penn Central Transportation Co. v. New York City a Landmark 763 of Contitutional Jurisprudence (NATIONAL TRUST FORUM, Spring 2003) By Professor Jerold S. Kayden 32. Supreme Court Takings Cases at a Glance (NTHP PRESERVATION LAW 771 REPORTER EDUCATIONAL MATERIALS, 2007) 33. Some Thoughts about the Kelo Decision for Members of the Historic 775 Preservation Community... By Paul W. Edmondson 34. Kelo v. The City of New London: What the Supreme Court's Ruling on 783 Eminent Domain Means for America's Downtowns (reprinted with permission from CLUE Group, LLC) By Kennedy Smith 35. State Legislation Addressing Eminent Domain and Regulatory Takings 791 (NTHP, April 2007) By Julia H. Miller and Heather Amrhein x RELIGIOUS FREEDOMS 36. First Amendment Cases Relevant to the Protection of Historic Religious 803 Properties (NTHP PRESERVATION LAW REPORTER EDUCATIONAL MATERIALS, 2005) 37. Religious Land Use and Institutionalized Persons Act (RLUIPA), 42 U.S.C. 809 §§ 2000cc-2000cc-5 (Pub. L. No. 106-274 (2000)) and Legislative History 38. Regulating Historic Religious Properties under RLUIPA (NTHP 817 PRESERVATION LAW, 2007) By Julia H. Miller 39. Episcopal Student Foundation v. City of Ann Arbor, 341 F.Supp 2d 691 833 (E.D. Mich. 2004) 40. Authority of the Department of the Interior to Provide Historic 849 Preservation Grants to Historic Religious Properties Such as the Old North Church (U.S. Department of Justice, Office of Legal Counsel, April 30, 2003)(excerpt) 41. Periods of Significance, Preservation Policy, and Preserving Modern 853 Architecture Submitted by Thompson M. Mayes Secretary of the Interior's Standards for the Treatment of Historic Properties, Restoration Standard (National Park Service) 855 Guidelines for Restoring Historic Buildings (National Park Service)(excerpts) 857 Marcella Sherfy and W. Ray Luce, Guidelines for Evaluating and Nominating Properties that Have Achieved Significance Within the Past Fifty Years (National Register Bulletin ##22, 1979; Rev. 1990, 1996, 1998) 861 District of Columbia Municipal Regulations Relating to Historic Preservation (excerpts), 10 DCMR Title 10A, §§ 700-705.2 885 FEDERAL TAX INCENTIVES FOR PRESERVATION 42. Federal Tax Incentives for Historic Preservation: The Basics 893 By Merrill F. Hoppengardner, Andrew S. Potts, and David F. Schon 43. Material on Federal Tax Incentives for Historic Preservation 917 Submitted by Sharon C. Park National Park Service (NPS), Historic Preservation Tax Incentives 919 NPS, Heritage Preservation Services Contact Information (http://www.cr.nps.gov/hps/hps_contact.htm) 937 NPS, Incentives!: A Guide to the Federal Historic Preservation Tax Incentives Program for Income Producing Properties (http://www.cr.nps.gov/hps/tps/tax/incentives/index.htm) 938 Regulations Governing Historic Preservation Certifications Pursuant to Section 48(g) and Section 170(h) of the Internal Revenue Code of 1986 (36 CFR 67) (http://www.cr.nps.gov/hps/tps/tax/taxregs.htm) 939 NPS, Federal Tax Incentives for Rehabilitating Historic Buildings: Statistical Report and Analysis for Fiscal Year xi2006 971 NPS, Federal Tax Incentives for Rehabilitating Historic Buildings: Annual Report for Fiscal Year 2006 995 NPS, Historic Preservation Tax Incentives Program Administration (http://www.cr.nps.gov/hps/tps/tax/admin/index.htm) 999 NPS, Historic Preservation Tax Incentives, Introduction to Case Studies in Affordable Housing (http://www.cr.nps.gov/hps/tps/Affordable/index.htm) 1001 NPS, Case Studies in Affordable Housing Through Historic Preservation:Number 5: Van Allen Apartments, Clinton, Iowa) (http://www.cr.nps.gov/hps/tps/Affordable/CS5_Van_Allen.pdf) 1003 NPS, Historic Preservation Easements: A Historic Preservation Tool with Federal Tax Benefits (NPS Technical Preservation Services for Historic Buildings) (http://www.cr.nps.gov/hps/tps/tax/easement.htm) 1011 NPS PRESERVATION BRIEFS: Listing of Titles (http://www.cr.nps.gov/hps/tps/briefs/presbhom.htm) 1017 Thomas C. Jester and Sharon C. Park, AIA,
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