Imagine if you were a developer and wanted to build 70 new homes on an expensive piece of property that you just purchased. And imagine if you found out that part of the property was once a very important civil war battlefield and that some of the still-standing buildings date back to that battle. And you were also told that you had to preserve half the property, as in not build new homes there. You would probably be very upset. There are laws in this county that protect our nation's history. And thank Heaven for such laws. Without them, much of our history that can still be seen today would have perished decades ago. That National Historic Preservation Act, along with many state and local laws, are in place to preserve these treasures.

How can a developer avoid such surprise? Developers need to determine whether any properties that they are purchasing may be historically significant before they purchase, not after. There are historians and professional organizations that can help make this determination. Perhaps less costly means, such as document inspections and local interviews, can accomplish the same thing.

If developers do not do this, then they are at risk. Because if these preservation laws kick in, it is possible that the scope of a developer's project may be reduced. And reduced projects can mean less profitable projects.

The federal preservation act applies to properties that are listed or may be eligible for inclusion on the federal Historic Register. Note: a project does not have to be eligible for the Act to be applicable. It is enough that a project may be eligible. There are many projects that may be eligible but are not yet on the Register, so developers and citizen groups need to do their homework.

If a project meets this first requirement, the second is a determination of whether it is receiving federal funding or approvals. Now, these moneys or approvals do not have to come from the feds - they can also come from a state or local agency with authority that is delegated by the feds. There are many such programs. As an example, often state wetlands programs are really delegated federal programs.

So the protective laws are broad in scope. Let the developer beware. And the best way to avoid a pitfall such as this is for the developer to do his or her homework before a purchase is made. You do not want to be dealing with these issues after the purchase.

If a project is protected by federal law, a Section 106 review will be required, referring to Section 106 of the National Historic Preservation Act. The purpose of this review is to insure that federal agencies consult with state and local groups before archaeologically and historically significant sites are destroyed.

The law requires that federal agencies review the effects on the cultural resources of projects that they finance, permit or own. Some of the agencies that will require such a review include the Army Corps of Engineers; the Federal Energy Regulatory Commission; the Federal Aviation Administration; the Department of Housing and Urban Development; the Federal Highway Administration; the Natural Resource Conservation Service; the U.S. Forest Service; and even the Federal Deposit Insurance Corporation. Again, many State and local programs are also implicated where there authority is delegated by the federal government.

Interested parties, such as community groups, can participate in this review process and should. It is, after all, our shared history that we are talking about.

Published: October 19, 2000

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