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, Making Historic PropertiesAccessible, 32 PRESERVATION BRIEFS (NPS Technical Preservation Services,1993) 1021
STATE TAX INCENTIVES
44. State Tax Credits for Historic Preservation 1035
By Harry K. Schwartz Study Outline (NTHP Public Policy Report, May/June 2006) 1037 State-by State Summary (March 2007) 1043 45. State Historic Credits 1061
By Merrill F. Hoopengardner, Andrew S. Potts, and David F. Schon
PRESERVATION EASEMENTS, OTHER INCENTIVES, AND PROTECTION TECHNIQUES FOR PRESERVATION
46. Historic Preservation Easements 1073
By Paul W. Edmondson 47. An Appraiser’s Primer on Preservation and Conservation Easement Tax 1079 and Valuation Issues By Richard J. Roddewig Study Outline 1081 Preservation and Conservation Easements: Ten Keys to the Appraisal
Process (Presentation Slides) 1118 Preservation and Conservation Easements: Ten Myths & Ten Case Law
Lessons (Presentation Slides) 1124
xii 48. Pension Protection Act of 2006 (PPA) Changes Relating to Preservation 1135
Easements Summary of Changes 1137 Internal Revenue Code §170(h), showing changes included in PPA 1144 Joint Committee on Taxation Technical Explanation of Changes (Aug. 3,
2006) 1148 Regulations for Qualified Conservation Contributions (26 CFR Part
1.170A-14) (not amended to reflect PPA) 1154 49. New Reporting Requirements for Nonprofit Organizations with 1169
Easement Programs, NTHP 2007 50. Model Historic Preservation and Conservation Easement (National Trust 1173
for Historic Preservation, 2007) 51. Historic Preservation Certification Application: Part 1 - Evaluation 1191 Significance (U.S. Department of the Interior, National Park Service Form 10-168a (Rev.12/90)) 52. The Historic Preservation Certification Process: How to Succeed 1195
By Emily Hotaling Eig 53. Using Conservation Easements as a Development Tool (reprinted with 1205 permission from REAL ESTATE FINANCE JOURNAL (Spring 2002)) By Richard B. Nettler and Stacey E. Costello 54. Allocating Charitable Conservation Easement Deductions to Equity 1211 Investors (reprinted with permission from REAL ESTATE FINANCE JOURNAL
(Spring 2004) By Stacey E. Costello, Robert E. Falb, Richard B. Nettler, and David L. Finch 55. IRS Memorandum (AM 1007 002) Regarding State Tax Credit Transfers 1219 (Jan. 11, 2007) Submitted by Richard B. Nettler 56. Ethical Issues Related to Historic Preservation: An Update 1227
By Joseph Z. Fleming Index to Appendices 1228 Study Outline 1229 Appendix A: The Thompson Memorandum: Principles of Federal
Prosecution of Business Organizations (January 20, 2003) 1266 Appendix B: The McNulty Memorandum: Principles of Federal
Prosecution of Business Organizations (December 12, 2006) 1282 Appendix C: American Law Institute, Restatement of the Law, Third, The Law Governing Lawyers, §66 (Using or Disclosing Information to Prevent Serious Bodily Harm) 1303 Appendix D: ABA Model Rule 1.6: Confidentiality of Information 1308 Appendix E: ABA Model Rule 1.13: Organization as Client 1309 Appendix F: American Law Institute, Restatement of the Law, Third, The Law Governing Lawyers, §101 (Lawyer Dealings with Non-Client –
Contact with Represented Non-Client – A Represented Governmental Agency or Officer) xiii 1311 Appendix G: Code of the City of Miami Beach, § 118-31, Disclosure
Requirement 1314 Appendix H: Lee v. American Eagle Airlines, Inc., 93 F.Supp. 2d
1322 )S.D. Fla. 2000) 1315 Appendix I: Birbrower, Montalbano, Condon & Frank, P.C. v. Superior
Court, 117 Cal. 4th 119, 949 P.2d, 70 Cal. Rptr. 2d 304 (1998) 1327 Appendix J: Ethics Opinion of the Florida Bar 06-2 (Sept. 15, 2006) 1341 Appendix K: Peter H. Geraghty, More Data on Metadata (Your ABA, Dec.
2006) 1345 Appendix L: What’s the Meta with Metadata (Your ABA, Jan. 2006) 1348 Appendix M: New York State Bar Association Ethics Opinion 749 (Dec.
14, 2001) 1352 Appendix N: New York State Bar Association Ethics Opinion 782 (Dec. 8,
2004) 1355 Appendix O: ABA Standing Committee on Ethics and Professional
Responsibility Formal Opinion 99-413 (Mar. 10, 1999) 1358
ETHICS AND PROFESSIONAL RESPONSIBILITY
57. Maryland Enviromental Trust v. Gaynor, 803A.2d 512 (Md. 2002) 1371 58. Turner v. Commissioner, 126 T.C. 299 (2006) 1379 59. Land Trust Alliance, Land Trust Standards and Practices(Excerpts 1393 relating to Ethics) (Copyright © 2005, Land Trust Alliance; Reprinted with Permission) 60. IRS Form 8283 and Instructions: Noncash Charitable Contributions 1409
xiv ALI-ABA Course of Study Historic Preservation Law Cosponsored by the National Trust for Historic Preservation April 26-27, 2007 Washington, D.C.
PROGRAM
Thursday, April 26, 2007 7:45 a.m. Registration and Continental Breakfast 8:45 a.m. Introductory Remarks and Course Overview — Messrs. Fleming and Edmondson 9:00 a.m. Views of What We Are Preserving — Judge Hutt, Mr. Edmondson, and Ms. Park 9:30 a.m. Federal Preservation Laws I: Overview and Current Developments — Mss. Ferster, Merritt, and Mobley 11:15 a.m. Coffee Break 11:30 a.m. Federal Preservation Laws II: Practice Tips and Emerging Issues — Ms. Ferster and Messrs. Fleming, Nettler, Rossmann, and Yost 12:30 p.m. Lunch Break 2:00 p.m. Federal Preservation Laws III: Protecting Archaeological Sites and Native American Cultural Resources — Judge Hutt and Mr. Smith 3:00 p.m. State and Local Law: Overview, Current Issues, and Practice Tips — Messrs. Feola and Mayes and Ms. Miller 4:00 p.m. Coffee Break 4:15 p.m. Takings and Eminent Domain and Historic Religious Properties — Professor Kayden and Mr. Edmondson 5:45 p.m. Questions and Answers about Points of Interest to Registrants — Panel Discussion 6:00 p.m. Adjournment for the Day; Networking Reception for Registrants and Faculty, sponsored by the Legal Defense Fund of the National Trust for Historic Preservation
Friday, April 27, 2007 8:00 a.m. Continental Breakfast 8:30 a.m. Special Preservation Issues — Ms. Adams and Messrs. Fleming and Mayes 9:15 a.m. Federal Tax Incentives: The Basics — Ms. Hoopengardner and Messrs. Potts and Schon 10:30 a.m. Coffee Break 10:45 a.m. The National Park Service and Technical Preservation Services — Ms. Park 11:20 a.m. Economic Development: State and Local Tax Credits — Mr. Schwartz 11:45 a.m. The Role of the Preservation Consultant: Balancing Preservation and Interest and Clients' Expectations — Mss. Adams and Eig and Messrs. Edmondson and Fleming 12:30 p.m. Lunch Break
xv
2:00 p.m. Easements: Legislative Reforms and New Incentives in the Pension 2:00 p.m. Easements: Legislative Reforms and New Incentives in the Pension Protection Act of 2006; Easements as a Development Tool; Appraisal Issues — Messrs. Edmondson, Nettler, and Roddewig 3:00 p.m. Coffee Break 3:15 p.m. Putting It All Together — Faculty Panel 4:00 p.m. Ethical Considerations — Judge Hutt and Messrs. Fleming and Mayes 5:00 p.m. Panel Discussion; Questions and Answers 5:30 p.m. Adjournment
xvi
ALI-ABA Course of Study Historic Preservation Law
Cosponsored by the National Trust for Historic Preservation
April 26-27, 2007 Washington, D.C.
STEERING COMMITTEE
Joseph Z. Fleming, Esquire Paul W. Edmondson, Esquire Greenberg Traurig, P.A. General Counsel 1221 Brickell Avenue National Trust for Historic Preservation Miami, FL 33131 1785 Massachusetts Avenue, NW Washington, DC 20036
The Honorable Edward R. Becker In Memoriam (1933-2006)
FACULTY
Ms. Anne H. Adams Merrill F. Hoopengardner, Esquire Architectural Historian Nixon Peabody LLP Pillsbury Winthrop Shaw Pittman LLP Suite 900 2300 N Street, NW 401 9th Street, NW Washington, DC 20037 Washington, DC 20004
Ms. Emily Hotaling Eig Sherry Hutt, Esquire President Program Manager EHT Traceries, Inc. National NAGPRA Program 1121 Fifth Street, NW National Park Service Washington, DC 20001 1849 C Street, NW (2253) Washington, DC 20240 Phil T. Feola, Esquire Pillsbury Winthrop Shaw Pittman LLP Professor Jerold S. Kayden 2300 N Street, NW Harvard University Graduate Washington, DC 20037 School of Design 312A Gund Hall Andrea C. Ferster, Esquire 48 Quincy Street Tenth Floor Cambridge, MA 02138 1100 17th Street, NW Washington, DC 20036
xvii
Thompson M. Mayes, Esquire Andrew S. Potts, Esquire Deputy General Counsel Nixon Peabody LLP National Trust for Historic Preservation Suite 900 1785 Massachusetts Avenue, NW 401 9th Street, NW Washington, DC 20036 Washington, DC 20004
Elizabeth Sherrill Merritt, Esquire Antonio Rossmann, Esquire Deputy General Counsel Rossmann and Moore, LLP National Trust for Historic Preservation 380 Hayes Street 1785 Massachusetts Avenue, NW San Francisco, CA 94102 Washington, DC 20036 David F. Schon, Esquire Julia H. Miller, Esquire Nixon Peabody LLP Special Counsel Suite 900 National Trust for Historic Preservation 401 9th Street, NW 1785 Massachusetts Avenue, NW Washington, DC 20004 Washington, DC 20036 Mr. Harry K. Schwartz Diane Mobley, Esquire Apartment 8G Associate Counsel 220 Locust Street Federal Highway Administration Philadelphia, PA 19106 Room 4230 Nassif Building 400 Seventh Street, SW Gregory A. Smith, Esquire Washington, DC 20590 Johnston & Associates Suite 400 Richard B. Nettler, Esquire 1455 Pennsylvania Avenue, NW Robins, Kaplan, Miller & Ciresi L.L.P. Washington, DC 20004 Suite 1200 1801 K Street, NW Nicholas C. Yost, Esquire Washington, DC 20006 Sonnenschein Nath & Rosenthal LLP 26th Floor Sharon C. Park, FAIA 525 Market Street Chief, Technical Preservation Services San Francisco, CA 94105 National Park Service 1849 C Street, NW (NC200) Washington, DC 20240
xviii FACULTY BIOGRAPHIES
Planning Co-Chairs Joseph Z. Fleming, Miami, Florida Greenberg Traurig, P.A. B.A., University of Florida; J.D., University of Virginia; LL.M. (Labor Law), New York University Government and Public Service: Dade County Task Force on Well Field Protection (Vice Chair, 1984- ); Biscayne Bay Management Committee of Dade County, Florida; Legal Consultant to National Park Service, U.S. Department of the Interior, Regarding Biscayne Bay National Park (1981); Florida Rural Legal Services, Inc. (Past President; Director, 1967-76) Honors: From PROGRESSIVE ARCHITECTURE, for drafting of a preservation ordinance; 1000 Friends of Florida for pro bono litigation to protect the home of Marjory Kinnan Rawlings at Cross Creek Florida Memberships: American Law Institute; American Bar Association (Urban Quality Committee: Chair, 1987- ; Section of Urban, State and Local Government Law: Council, 1990-94); The Florida Bar (Entertainment, Arts and Sports Law Section: Chair, 1986-89) (Environmental Law Designation Committee: Chair, 1974-80) (Environmental and Land Use Section: Chair, 1974-75) (Labor and Employment Law Section: Chair, 1972-73); Dade County Bar Association; Inter-American Bar Association; International Bar Association; American Society of International Law Publications Include: Mt. Health, Causation, and Affirmative Defenses, 52 MERCER L. REV. 637 (Winter 2000); If Abraham Lincoln Died for Federalism Did He Die in Vain? C Florida Prepaid Postsecondary Education Expense board v. College Savings Bank and United States, 31 URBAN LWR. 777 (Fall 1999) Anecdotal Anarchy and the Legal Process: The Course to Coase and the Descent from the Highest Tribunal Down to the Regulated Parties, as Expressed in the Dissent in Lago, 30 URBAN LWR. 923 (Fall 1998); The Privatization Precedent Set by the Lord Chancellor in Iolanthe: An Analysis of Walker v. McKnight, 30 URBAN LWR. 233 (Winter 1998); City of Memphis v. N.T. Greene: "Before I Built a Wall I'd Ask to Know What I Was Walling In or Walling Out, And to Whom I Was Like to Give Offense", 21 URBAN LWR. 961 (Fall 1989); ENVIRONMENTAL REGULATION AND LITIGATION IN FLORIDA HANDBOOK (Editor, 1975-78); The Environmental Laws of the United States, in ENVIRONMENTAL POLLUTION AND INDIVIDUAL RIGHTS: AN INTERNATIONAL SYMPOSIUM (Kluwer, the Netherlands, and International Bar Association 1978); CONSTRUCTION INDUSTRY LABOR PROBLEMS (Contributing Author) (Practising Law Institute 1971)
Paul W. Edmondson, Washington, D.C. Vice President, Law, and General Counsel, National Trust for Historic Preservation B.S., Cornell University; J.D., American University Publications Include: PRESERVATION LAW REPORTER (Managing Editor)
xix Faculty Anne H. Adams, Washington, D.C. Architectural Historian, Pillsbury Winthrop Shaw Pittman LLP B.A., University of Rochester; M.A., University of Maryland Professional Experience: Formerly associated with the Wilkes Artis and the District of Columbia Historic Preservation Office; Don=t Tear It Down (Now the District of Columbia Preservation League) (1976-77)
Emily Hotaling Eig, Washington, D.C. President, EHT Traceries, Inc. Architectural Historian and Preservation Consultant. Projects have included the Warner Theatre, Alban Towers, the International Spy Museum, and the South East Federal Center, all in Washington, D.C.; Plaza Theatre in El Paso, Texas; the Grand Opera House in Meridian, Mississippi; and the Boyd Theatre in Philadelphia. Member, Lambda Alpha International (Honorary Society of the Advancement of Land Economics)
Phil T. Feola, Washington, D.C. Pillsbury Winthrop Shaw Pittman LLP Government and Public Service: Former Planner with the Cities of San Antonio, Texas, and Patterson, New Jersey B.A., University of Notre Dame; M.S., Florida State University; J.D., Catholic University of America Memberships: American Bar Association; Maryland Bar Association; District of Columbia Bar Association; Urban Land Institute; American Planning Association; Lambda Alpha International
Andrea C. Ferster, Washington, D.C. B.A., Sarah Lawrence College; J.D., George Washington University Publications Include: Commentary - Rails-to-Trails Conversions: A Review of Legal Issues, 58 PLANNING & ENV'T'L L. (American Planning Association, 2006); Fighting Freeways and Saving Historic Roads, FORUM JOURNAL (Summer 2000); Congress Acts to Curb Excess Benefits by nonprofit Insiders, PRESERVATION L. RPTR. (Sept. 1996); Planning for Trails and Greenways after Dolan v. City of Tigard (Co-Author), PROBIKE NEWS (Aug. 1994); Securing Tax Exemption for 'Main Street' Organizations: Choosing the Right Classification, PRESERVATION L. RPTR. (March 1994)
Merrill F. Hoopengardner, Washington, D.C. Nixon Peabody LLP B.A., J.D., Duke University
Sherry Hutt, Washington, D.C. Program Manager, National NAGPRA Program, National Park Service B.A., J.D., Arizona State University; Ph.D. (Forestry), Northern Arizona University Other Government and Public Service: Judge, Superior Court of Arizona (1986-2004); Former Assistant U.S. Attorney (D. Ariz.); Former Fellow in Museum Studies, The Smithsonian Institution
xx Honors: Department of the Interior Conservation Services Award Publications Include: CULTURAL PROPERTY LAW: A PRACTITIONER'S GUIDE (American Bar Associa- tion, forthcoming); HERITAGE RESOURCES LAW (Wiley, 1999); ARCHEOLOGICAL RESOURCE PROTECTION (Wiley, 1992);
Jerold S. Kayden, Cambridge, Massachusetts Frank Backus Williams Professor of Urban Planning and Design, Harvard Design School B.A., J.D., M.City and Regional Planning, Harvard University Government and Public Service: Law Clerk to Hon. William J. Brennan (U.S.) (1980-81); Law Clerk to Hon. James L. Oakes (2d Cir.) (1979-80); Principal constitutional counsel to the National Trust for Historic Preservation; Consultant to U.S. Agency for International Development, World Bank, International Finance Corporation, and United Nations Development Program; Senior Advisor on Land Reform and Privatization to the Government of Ukraine (1992-94) Honors: Guggenheim Fellow (1989-90); National Endowment for the Arts Fellow (1981, 1988); Harvard Design School Teacher of the Year (1996); National Trust for Historic Preservation Public Policy Award (1994) Memberships: American Bar Association; Advocates for Privately Owned Public Space (Founding member, 2003); D.C. Preservation League (Board of Trustees, 1991-95); American Planning Association; Urban Land Institute Publications Include PRIVATELY OWNED PUBLIC SPACE: THE NEW YORK CITY EXPERIENCE (John Wiley & Sons, 2000) (Awarded prizes by the Environmental Design Research Association, American Institute of Certified Planners/Association of Collegiate Schools of Planning, and American Society of Landscape Architects); LANDMARK JUSTICE: THE INFLUENCE OF WILLIAM J. BRENNAN ON AMERICA' COMMUNITIES (Co-Author) (Preservation Press, 1989); ZONING AND THE AMERICAN DREAM: PROMISES STILL TO KEEP (Co-Editor) (Planners Press, 1989); Breaking the 'Code' of Design Codes: A First Step Toward Thoughtful Discussion, PERSPECTA 35, YALE ARCH. J. (2004); Celebrating Penn Central: How the Supreme Court's Preservation of Grand Central Terminal Helped Preserve Planning Nationwide, PLANNING (June 2003)
Thompson M. Mayes, Washington, D.C. Deputy General Counsel, National Trust for Historic Preservation B.A., J.D., University of North Carolina
Elizabeth Sherrill Merritt, Washington, D.C. Deputy General Counsel, National Trust for Historic Preservation B.A., Mills College; J.D., Harvard University Government and Public Service: Law Clerk to Hon. Theodore R. Newman, Jr. (D.C. App.)(1980-81)
Julia H. Miller, Washington, D.C. Special Counsel and Education Coordinator, National Trust for Historic Preservation B.A., Columbia University (Barnard College); J.D., University of Wisconsin Memberships: American Bar Association; District of Columbia Bar Association Publications Include: Regulating Historic Properties Under RLUIPA (NTHP 2005, rev. 2007); Protecting Potential Landmarks Through Demolition Review (NTHP 2006, rev. 2007); PRESERVATION LAW REPORTER (Editor 1989-2005); Historic Preservation Law, Chapter 2 of
xxi ENVIRONMENTAL PRACTICE GUIDE (Co-Author) (Matthew Bender 2005); THE CONSERVATION EASEMENT HANDBOOK (Contributing Author) (Trust for Public Land and the Land Trust Alliance, 2d Ed., 2005); Protecting Older Neighborhoods Through Neighborhood Conservation Programs (NTHP 2004); A Layperson==s Guide to Historic Preservation Law (NTHP 2000, rev. 2004); An Introduction to Heritage Resources Law, in HERITAGE RESOURCES LAW (John Wiley & Sons 1999); HISTORIC PRESERVATION LAW & TAXATION (Co-Author)(Matthew Bender 1986)
Diane Mobley, Washington, D.C. Associate Counsel, Federal Highway Administration B.A., American University; J.D., University of Maryland
Richard B. Nettler, Washington, D.C. Robins, Kaplan, Miller & Ciresi L.L.P. B.A., George Washington University; J.D., Golden Gate University Government and Public Service: Assistant Corporation Counsel, Appellate Division, District of Columbia (1978-86); Department of the Navy consultant on economic development conse- quences of closed bases; Department of the Air Force consultant on housing privatization issues; Department of the Army consultant on preservation of Department's historic resources; Chair, Committee on Admissions, District of Columbia Court of Appeals (1993-2005) Memberships: American Bar Association; District of Columbia Bar Association (Technology Task Force); Maryland State Bar Association; American Planning Association; Committee of 100 on the Federal City (Trustee); Council for Court Excellence (Trustee); Urban Land Institute; Preservation Action (Trustee; Chair, 1996-2001)); National Association of Installation Developers Publications Include: Allocating Charitable Conservation Easement Deductions to Equity Investors (Co-Author), R.E. FIN. J. (Spring 2004); Using Conservation Easements as a Development Tool (Co-Author), R.E. FIN. J. (SPRING 2002); Chapter, Privatization of Military Support Services (Co-Author), in PRIVATIZING GOVERNMENTAL FUNCTIONS (Law Journal Press, 2001); An Insider's View of Historic Preservation, NAID NEWS (Feb. 1997); APPELLATE PRACTICE MANUAL FOR THE D.C. COURT OF APPEALS (Associate Editor)(1985)
Sharon C. Park, Washington, D.C. Chief, Technical Preservation Services, National Park Service (since 1997), and Senior Historical Architect, National Park Service National Center for Cultural Resources B.Arch, Catholic University of America; M.A. George Washington University Other Government and Public Service: Manager, Federal Historic Rehabilitation Tax Credit Program (1997- ); Architect, Federal Historic Rehabilitation Tax Credit Program (1980-1997) Fellow, American Institute of Architects Memberships: National Trust for Historic Preservation; Association for Preservation Technology, International Publications Include: Preservation Briefs 39: Holding the Line: Controlling Unwanted Moisture in Historic Buildings (National Park Service, U.S.G.P.O., 1996); Preservation Briefs 37: Appropriate Methods for Reducing Lead-Based Paint Hazards in Historic Housing (Co-Author) (National Park Service, U.S.G.P.O., 1995); Preservation Briefs 32: Making Historic Properties Accessible (Co-Author) (National Park Service, U.S.G.P.O., 1993);
xxii Preservation Briefs 31: Mothballing Historic Buildings (National Park Service, U.S.G.P.O., 1993); Preservation Briefs 24: Heating, Ventilating and Cooling Historic Buildings (National Park Service, U.S.G.P.O., 1992); Preservation Briefs 19: The Repair and Replacement of Historic Wooden Shingle Roofs (National Park Service, U.S.G.P.O., 1989); Preservation Briefs 16: The Use of Substitute Materials on Historic Building Exteriors (National Park Service, U.S.G.P.O., 1988); Preservation Briefs 13: The Repair and Thermal Upgrading of Historic Steel Windows (National Park Service, U.S.G.P.O., 1985); Rubber Tile Flooring, in TWENTIETH CENTURY BUILDING MATERIALS: HISTORY AND CONSERVATION (Contributing Author), (McGraw-Hill 1995); Moisture in Historic Buildings and Preservation Guidance, Chapter 22 of MOISTURE CONTROL IN BUILDINGS (ASTM, 1994); Historic Preservation, Chapter 17 of HUD GUIDELINES FOR THE EVALUATION AND CONTROL OF LEAD-BASED PAINT HAZARDS IN HOUSING (U.S.G.P.O., 1995); RESPECTFUL REHABILITATION (Contributing Author) (National Trust for Historic Preservation, 1982)
Andrew S. Potts, Washington, D.C. Nixon Peabody LLP B.A., J.D., Indiana University Government and Public Service: Former Associate General Counsel, National Trust for Historic Preservation Memberships: American Bar Association (Affordable Housing Committee, Section of Real Property, Probate and Trust Law); Chicago Bar Association
Richard J. Roddewig, Chicago, Illinois President, Clarion Associates, Inc. B.A., University of Notre Dame; M.A. (Political Science), J.D., University of Chicago MAI (The Appraisal Institute); CRE (Counselors of Real Estate) Adjunct Professor: University of Illinois and Chicago, DePaul University, Northeastern Illinois University, and Governor's State University Government and Public Service: State of Illinois Historic Preservation Agency (Former Trustee); Illinois Historic Sites Advisory Council Memberships: American Bar Association (Section on State and Local Government Law: Past Chair, Land Use Law Committee; Past Chair, Historic Preservation and Architectural Controls Subcommittee); Landmarks Preservation Council of Illinois (Past Vice President); Preservation Action (Former Member, Board of Directors)
Antonio Rossmann, San Francisco, California Rossmann and Moore, LLP A.B., J.D., Harvard University Lecturer, University of California at Berkeley School of Law (Boalt Hall) (1991- ); Fulbright Lecturer, University of Tokyo (1987-88); National Center for Preservation Law (Executive Director, 1979-80) Government and Public Service: Public Advisor, California Energy Commission (1975-76); Law Clerk to Hon. Matthew Tobriner (Cal.) (1971-72) Honors: Planning and Conservation League Carla Bard Award (for protecting California's water resources) (2000) Memberships: California State Bar (Chair, Committee on Environment, 1981-82)
xxiii Publications Include: HISTORIC PRESERVATION LAW HANDBOOK (Co-Author) (1983); HISTORIC PRESERVATION (Matthew Bender); CALIFORNIA ENVIRONMENTAL LAW AND LAND USE PRACTICE (Co-Author)
David F. Schon, Washington, D.C. Nixon Peabody LLP B.A., University of Michigan; J.D., Wayne State University Government and Public Service: Partners for the Common Good (Loan Advisory Committee); Memberships: Michigan Historic Preservation Network (Board of Directors); Preservation Action Publications Include: Gramm-Leach-Bliley Act Provisions Relating to CRA and Community Development (Co-Author) (2003); Final Rule Enacted Regarding Disclosure and Reporting of Community Reinvestment Act-related Agreements (Co-Author), 118 Banking L.J. 221 (Mar. 2001); The Community Reinvestment Act in Today's Markets, 7 J. AFFORDABLE HOUSING & COMMUNITY DEV.L.270 (Spring 1998)
Harry K. Schwartz, Philadelphia, Pennsylvania B.A., Harvard University; LL.B., University of Pennsylvania Government and Public Service: Assistant Secretary for Legislation and Intergovernmental Relations, U.S. Department of Housing and Urban Development; member, White House Domestic Policy Staff; Legislative Assistant to U.S. Senator Joseph S. Clark (Pa.); Assistant U. S. Attorney (D. D.C.); Attorney, U.S. Securities and Exchange Commission; Law Clerk to Hon. George T. Washington (D.C. Cir.); Former Director of Public Policy and currently Consultant on Public Policy, National Trust for Historic Preservation; former Special Projects Advisor, Office of Cultural Resources, National Park Service; former Member, Maryland State Advisory Council on Historic Preservation Honors: John Chafee National Preservation Award (National Trust for Historic Preservation, 2006); George T. Harrison Volunteer Award (Preservation Maryland) Memberships: Preservation Maryland (former Treasurer and member of Executive Committee of Board of Directors) awarded by Preservation Maryland. Publications Include numerous articles on state and federal tax incentives for historic preservation in PRESERVATION LAW REPORTER, THE REVIEW OF BANKING AND FINANCIAL SERVICES, and the NATIONAL TRUST FOR HISTORIC PRESERVATION FORUM.
Gregory A. Smith, Washington, D.C. Johnston & Associates (Strategic Public and Legislative Affairs Consulting Firm) B.A., Yale University; J.D., Cornell University Memberships: Native American Library and Museum Project, Inc. (Chair, Board of Directors); Native American Photovoltaics, Inc. (Chair, Board of Directors) Publications Include: NATIVE AMERICAN LAW DIGEST (Editor-in-Chief)
xxiv Nicholas C. Yost, San Francisco, California Sonnenschein Nath & Rosenthal LLP A.B., Princeton University; LL.B., University of California at Berkeley (Boalt Hall) Government and Public Service: Senior Attorney, Center for Law in the Public Interest (1982-85); General Counsel, Council on Environmental Quality (1977-81); Director, President's Task Force on Global Resources and Environment (1980-1981); Deputy Attorney General in Charge, Environmental Unit, State of California Department of Justice (1971-1977); Counsel, California State Environmental Quality Study Council (1969-1971); Attorney, California Justice Department (1965-69); Member, U.S. Delegation to the United Nations Conference on Environment and Development (the "Earth Summit"), Rio de Janeiro (1992); Counsel to the Presidio Trust; Former United States Director of the Law and Administration Project under the United States-Soviet environmental agreement; Member and Subcommittee Chair, California EPA Blue Ribbon Commission on a Unified Environmental Statute Honors: Environmental Quality Award (Natural Resources Council of America ,1996) Memberships: American Bar Association (Chair, Standing Committee on Environmental Law); National Conference of Lawyers and Scientists (ABA Member); California State Bar (Chair, Committee on the Environment); District of Columbia Bar (Co-chair, Section on Environment, Energy and Natural Resources); Environmental Law Institute (Board of Directors) Publications include: NEPA DESKBOOK (Environmental Law Institute, 3rd Ed. 2003); THE ENVIRONMENTAL IMPACT STATEMENT PROCESS (BNA, 3rd Ed. 2002); The Background and History of NEPA, in THE NEPA LITIGATION GUIDE, (ABA, 1998); Administrative Implementation of and Judicial Review Under the National Environmental Policy Act, in LAW OF ENVIRONMENTAL PROTECTION (ELI, Clark-Boardman-Callaghan, 1987) and in ENVIRONMENTAL LAW AND PRACTICE (ELI, Clark-Boardman-Callaghan, 1992); THE GOVERNANCE OF ENVIRONMENTAL AFFAIRS - TOWARD CONSENSUS (Aspen Institute, 1982); RIO AND THE ROAD BEYOND (ABA, 1992); The "Action-Forcing" Requirements of NEPA and Ongoing Action of the Federal Government, 34 ELR 10435 (2004)
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