 All right, let's just get started then. Hi, my name is Priya Chaya, I'm the Associate Director of Content at the National Trust for Historic Preservation. I want to welcome you all to the third in our pre-pass forward workshops on an introduction to preservation law and easements. But before we get started, I have a few housekeeping items. The first is that we are recording the session and any information we share in the chat and the slides and everything will be available after this is done. We will include it in a follow-up email that will be sent out to the email that you registered for this session with about 24 hours after the workshop is over, so tomorrow. You can also find the materials on the workshop page on savingplaces.org and on Preservation Leadership Forum, but we will include all the links for you in the follow-up email. Also, closed captioning is enabled and available through your control bar at the bottom of the screen. And also today, if you have a question at any point during the session, please use the Q&A function on the control bar and not the chat. We will be using the Q&A primarily to follow up on questions and things as they come in. So you can ask them at any time, but just make sure to use the Q&A bar. Also, please abide by the conference code of conduct. Once I sign off and I hand this over to Tom in a second, I'll put all these links in the session by including the code of conduct. And so with that, I think I'm gonna just hand those things over to Tom Mace, who is the Chief Legal Officer of the National Trust for Historic Preservation, who's gonna kick things off for us today. Tom, do you wanna join us on camera? Thank you, Priya. Thank you very much for that introduction and also for everything you've been doing to help organize this webinar. We really greatly appreciate it. As Priya said, I'm Tom Mace. I'm Chief Legal Officer and General Counsel of the National Trust. And I'm delighted that you all are all joining us this afternoon for an introduction to Preservation Law and Ease Months. As you know, this program is part of the Pass Forward Conference and is intended to provide a brief overview of key preservation laws that you may want to know more about. And that may be referred to throughout Pass Forward or in other preservation work. Next slide, please. You see in the images, some examples of the type of issues that we'll be covering today. From Grand Central Terminal, the upper left in New York City, which is the subject of the Supreme Court's leading decision on takings, to Bears Ears National Monument, just below that, which is the subject of challenges to the Antiquities Act, to St. Bartholomew's Church in New York in the far right, the subject of an important case on historic preservation and the free exercise of religion, to the Fisher-Con House in the center, the Modernist House in the center, which is a significant residential property protected by a historic preservation easement held by the National Trust, two images in the center from the Charleston, South Carolina historic district, the first local historic district in the country. These images give you some of the range of laws and legal issues that are considered the heart of historic preservation law. And this introduction is to provide you with that overview. It is not intended to cover every aspect of historic preservation law, but is to be a primer and an overview of them generally. Next slide, please. Here's the agenda for the program today. And I'm pleased that this information is being presented by these members listed of the staff of the National Trust Law Division, many of whom are recognized as experts in these areas. They will each briefly introduce themselves as they begin each section. But I am particularly pleased that they are sharing the information from their relative areas of expertise with you today. Next slide. Finally, there will be many other sessions that pass forward that touch on legal issues. And I invite you to attend these sessions. One of the topics that we are not covering in this session is incentives. And I'll particularly point out the two sessions on the historic tax credit, one on November 4th at 315 and another on November 5th at 315, which will focus on case studies of historic buildings. I will also really invite you to participate in the easement roundtable, particularly for those of you with easement programs. This is a particularly popular aspect of the conference. I hope you will attend many of these and also other sessions that pass forward. I also hope that this overview of historic preservation law will be helpful to you both for your attendance at Pass Forward and for your future work in historic preservation. And now I would like to turn this over to Betsy Merritt, my long-term colleague at the National Trust to provide an overview of federal preservation laws. Thank you, Betsy. Good afternoon. I'm going to be summarizing the key federal historic preservation laws. So we have a lot to cover. Next slide, please. Two of the three key laws were enacted on exactly the same day, October 15th, 1966. So two weeks from this Friday on October 15th, we will be celebrating the 55th anniversary of the National Historic Preservation Act and section 4F of the Department of Transportation Act. These were followed a few years later by the National Environmental Policy Act, NEPA, which was signed into law by President Nixon. These laws were in part a response to the community destruction that was being wrought by urban renewal programs and the construction of interstate highways through urban areas. And together, these laws have dramatically reshaped the way that infrastructure decisions are made and the things we take for granted as fundamentals today, such as the opportunity for public input to infrastructure decisions. They were established by these three laws. Next slide. For example, the National Register of Historic Places, the Advisory Council on Historic Preservation, the State Historic Preservation Offices, the Certified Local Government Program, and the Historic Preservation Fund, all were established by the NHPA starting in 1966. Then in 1980, Congress directed the Park Service to address tribal preservation funding needs. And in 1996, the first 12 tribal historic preservation officers were designated by the National Park Service, and today we have more than 200 THPO, Tribal Historic Preservation Officers. But let's focus on the two key procedural provisions of the National Historic Preservation Act, Section 106 and Section 110. Section 106 is a procedural Stop, Look, and Listen requirement, and the regulations issued by the Advisory Council on Historic Preservation, they introduced the concept of consultation, which has been a real game changer. Section 110 was added to the NHPA starting in 1980, and it describes special stewardship obligations for federal agencies who own and manage historic properties and special requirements for undertakings that adversely affect national historic landmarks. The National Park Service is delegated the responsibility to interpret and implement Section 110, and they have issued guidance that helps us apply some of these provisions. Next slide. So here's the specific statutory language of Section 106. Any federal agency having director and director, jurisdiction over a proposed federal or federally assisted undertaking shall prior to the approval of the expenditure of federal funds or prior to the issuance of any license, take into account the effect of the undertaking on any historic property. A couple of specific points I want to point out about this language. Section 106 applies to federal or federally assisted undertakings, and when the nature of the federal action is assistance, like a grant or a permit or approval, the undertaking is the action that is receiving the federal assistance, not the permit itself or the grant itself. And I also want to point to the prior to language. This is critical. The agency must complete its Section 106 review prior to making its decision, or else it will foreclose the consideration of alternatives and foreclose the ability of the advisory council to comment on the undertaking. And finally, of course, the take into account language. This is the heart of Section 106, and the advisory council's regulations define in excruciating detail what is required in order to meaningfully take into account the effects of the undertaking. Next slide. So this is the process for going through the Section 106 review, determining whether there's an undertaking, will it affect historic properties over on the right-hand column. This is typically implemented through identifying an area of potential effects within which historic properties are assessed and identified. And then finally, how will those adverse effects be avoided, minimized, mitigated, i.e., resolved? And ideally, and in 99% of the cases, that results in a written agreement that is signed by the federal agency, the State Historic Preservation Office, and other consulting parties. And it spells out a process for resolving adverse effects, what mitigation commitments there will be, and how any disputes will be resolved. Next slide. Section 110F adopted in 1980 is also a really important provision, which applies to national historic landmarks. And as you can see, the language says that if the federal undertaking will directly and adversely affect any national historic landmark, the head of the agency must, to the maximum extent possible, undertake such planning and actions as may be necessary to minimize harm. So when an NHL is involved, the agency is required to try extra hard to avoid and minimize harm. The key question here though is, what is the meaning of a direct adverse effect? Well, the National Trust recently won an important court ruling confirming that a direct adverse effect is not limited to physical damage or destruction, but it refers to causation. So if the undertaking itself would cause the adverse impact, as opposed to the actions of a third party, then that triggers the more stringent standard of Section 110F. And the case that we won involved the Carter's Grove National Historic Landmark, which you can see pictured on the right side of the slide here, which is directly adversely affected by the visual impacts of the James River transmission line permitted by the Army Corps of Engineers. The map shows the alignment of the transmission line. So the court ruled that the Army Corps has to go back and comply with Section 110F. We're waiting for that to happen. Next slide. The National Environmental Policy Act, we turn to NEPA, which is certainly the most well-known and the most widely used of these three federal laws. The regulations implementing NEPA are issued by the Council on Environmental Quality. The Trump administration adopted some revisions to the NEPA regulations that significantly weakened the law, such as eliminating the consideration of cumulative impacts. And the National Trust is involved in a legal challenge to those regulations, led by the Southern Environmental Law Center, which is currently pending in the Federal Court of Appeals. So right now there's enormous uncertainty surrounding the NEPA rules. And I'm sure it's very difficult for federal agencies who want to try to make decisions while minimizing their vulnerability to legal challenge. Next slide. NEPA was originally passed in 1969 and 1970. It requires disclosure and consideration of impacts and of mitigation and alternatives. But the agency is not required to change the project or adopt any mitigation measures. So it's strictly procedural. It applies to all environmental resources, including historic and cultural properties and not just those that are eligible or listed on the National Register. And the public input process prescribed by NEPA is extremely important, but it doesn't require consultation, which is the direct back and forth dialogue, if you will, required under the Section 106 regulations. So it's not uncommon to have a public hearing under NEPA where people testify and raise concerns and objections, and the agency listens and says, thank you for your comments, and that's the end. There's not a back and forth. Next slide. So what triggers NEPA? It's a different threshold than Section 106. Major federal actions significantly affecting the quality of the human environment. And that category is what requires preparation of an environmental impact statement, a detailed statement about the environmental impacts. So that's a higher threshold than what triggers Section 106. And the federal agency with the decision-making authority is the one responsible for carrying out the NEPA review, which is supposed to be done concurrently with the Section 106 review. Next slide. So the $64 million question is whether to prepare an environmental impact statement or an environmental assessment. And sometimes the purpose of an environmental assessment is to evaluate whether the impacts are significant enough to require an EIS. An environmental assessment is what was prepared in the James River transmission line case that I mentioned earlier, and we also won a court ruling that the Army Corps of Engineers was required to prepare a full environmental impact statement. So this is a question that is often brought to court because, next slide, one of the disadvantages of NEPA is that going to court is really the only way to resolve disagreements or disputes under NEPA. And sometimes the court says, yes, the agency is required to go back and prepare an environmental impact statement. But in making the decision in the first instance, the agency looks at whether the project will have a significant impact. And there are also, each agency has adopted categorical exclusions for types of projects that are unlikely to have environmental impacts. And so an environmental assessment is not necessary. Once the environmental impact statement is prepared, it's circulated for public comment, and then the agency issues a final written decision, which then becomes the basis for a challenging court, if necessary. Next slide. Now we turn to section 4F, which is my favorite of the federal preservation laws because it includes a substantive standard. It prohibits the use of historic sites and publicly owned parks, recreation areas, and wildlife refuges for any transportation project, unless there's no feasible and prudent alternative to using the land, and the project includes all possible planning to minimize harm. Next slide. So in going through the process, the transportation agency, this only applies to transportation projects. The transportation agency determines, will there be a use of section 4F resources by the project? And sometimes the use is in the form of constructive use, which means no direct physical damage, but the project will substantially impair the historic property or the park to the degree that it is, but it constitutes a constructive use. And I'll go into the details of that standard in a bit. There is an exemption if the use is considered de minimis. And in the case of historic properties, that means if you get a written signature from the state historic preservation officer confirming that if you're going to take a 10 foot strip of a 100 acre historic property, it's going to have no adverse effect, even though you're physically using a portion of the historic property. That's the concept of the de minimis exemption. So assuming there's no exemption, then the agency has to evaluate prudent and feasible alternatives to whether the use of the 4F resources can be avoided and incorporate all possible planning to minimize harm into the project. Next slide. So the feasibility of an alternative is rarely ever an issue. The Supreme Court has defined it and this transportation agencies have adopted in their regulations the definition that if it can be built as a matter of sound engineering, it's feasible, but the arguments always revolve around whether an alternative is prudent. And these are the regulations that have been adopted by the Department of Transportation to try to define how you evaluate whether an avoidance alternative or a less harmful alternative is prudent. Would the less harmful alternative involve some kind of unacceptable safety issue? Would it involve costs of extraordinary magnitude? Would it involve community disruption and so balancing these factors and looking at all these factors, the agency decides whether a less harmful alternative or an avoidance alternative is prudent. Next slide. I didn't realize that was the last that I didn't have another slide, sorry. So as a result, these cases are often enforceable only in court. And they're difficult to prove in court and often involve very technical issues. We recently had a court argument involving a historic bridge in Maine, for example, where the very technical issues being argued before the court had to do with whether the cost of the preservation alternative, the bridge preservation alternative, were costs of extraordinary magnitude and whether the Department of Transportation was evaluating and analyzing those costs using the proper methodology. Anyway, I will turn the podium, so to speak, over to Ross and Anne to address constitutional issues and any questions can be put into the Q&A and we will hopefully have time to address them at the end of the program. Thank you. Hi, everybody. My name is Anne Nelson and I'm an attorney here at the trust as well. And I'm going to be speaking with you about a few constitutional issues that regularly come up with the application to challenge the application of preservation laws and particularly those related to preservation ordinances. The three that we're going to focus on are taking challenges and do process challenges under the Fifth Amendment and also religious properties, the establishment of religion under the First Amendment. Next slide, please. Starting with takings, the constitutional provisions that we look at relate to the Fifth Amendment, which says that nor shall private property be taken for public use without just compensation. And this takings provision, this constitutional amendment applies to the states through the Fourteenth Amendment. No state shall deprive any person of life, liberty, or property without the due process of law. As you can see in the Fifth Amendment, this does not prohibit takings, but it conditions takings on the payment of just compensation. Next slide, please. And when we talk about takings, we also often hear the term eminent domain. What takings does, the Fifth Amendment takings clause does is it protects an individual's right to not have their property taken by the government without that payment of just compensation. In contrast, eminent domain is the government's right to take your property for that public use with the payment of just compensation. And there was what seems to be a recent court case, but doesn't seem so recent now in 2005. Kilo versus the city of New London, which defined that public use term in the amendment and in this eminent domain provision to expand, I'd say, the use of what public use is. And it said that it could be used for the private development where there was an economically depressed area and a city wanted to take land to give to a private developer for the benefit of creating jobs and revenue and improving that area. Next slide, please. And when we talk about takings under the Fifth Amendment, there are two different types. We have physical takings, where the government actually takes your property, confiscates it, or occupies it. And then we have regulatory takings, which are really the key to the preservation law challenges that we see. And that's when government regulations, such as local ordinances, leave no reasonably economical viable use of the property. And regulatory takings came up or established by the Supreme Court in 1922 case called Pennsylvania Coal versus Mahong. In Pennsylvania, the coal rights, the mineral rights are a separate ownership right than the surface rights. And the Pennsylvania State Commonwealth passed a law that prohibited mining of coal underneath houses. And so by passing that regulation and that law, there was no use of the coal in certain areas. Next slide, please. And so the standard that was set by that Mahong case was if a regulation goes too far, it can constitute a taking and compensation must be paid. So that was the first Supreme Court case we have that develops this concept of regulatory takings. Next slide, please. And the key takings cases I'm sure many people are aware of is Penn Central Transportation Company versus the city of New York. It relates to not Penn Central, Penn Station, but Grand Central Terminal, which Tom mentioned earlier today. This case is important for many reasons, not just preservation reasons, but for those preservation reasons, it established that historic preservation is a valid public purpose. So a bit upheld the local preservation ordinances that were being passed throughout the country around this time and really encouraged more municipalities to develop their and pass their own local ordinances. It also established the principle that communities have the authority to adopt these laws and regulations to protect and enhance the quality of life for citizens. And it established more broadly the framework for evaluating takings cases with regulatory takings. So next slide, please. So Penn Central, as I mentioned, was in New York City and the Landmarks Preservation Law in New York City was adopted in 1965. The train station was designated locally in 1967. And then the property owner subsequently requested a certificate of appropriateness to construct a 55-story tower above the terminal. That request was denied by the Landmarks Commission and they made some comments about how a four-story or an addition that was four times as high as the existing structure would reduce the landmark to the status of the curiosity. Instead of putting together an alternative or requesting a smaller addition to the property, Penn Central appealed this to the courts because they felt that they were deprived of a property interest in the air rights to build above the terminal. So they argued that this was the takings of their property without just compensation. Next slide, please. So coming out of the Supreme Court case in 1978 was a three-part test called the Penn Central three-part test. And this is the test that's used to evaluate regulatory takings. First, you look at the economic impact of the regulation on the property. Not the property owner, but the property. As it's said on the slide, the more impact, the more likely there will be a taking. This is an evaluation that's done on a case-by-case basis to determine whether there is any reasonable economic use left in the property with the regulation. This does not mean, in the course of health, that you do not get the highest and best use of your property. And a denial of the ability to exploit a certain property interest will not be found to automatically be a taking. This is what the vast majority of preservation cases are challenged under, but they're routinely not successful. The second test, the second point of this three-part test, is the investment-backed expectations. The degree of the interference that the regulation has on the reasonable investment-backed expectations. So what is the owner's investment in the property and their expectations at the time that they invested in the property? In the Penn Central case, the property owner purchased the property, I believe, after it was designated a local. Actually, they owned it beforehand, but they didn't challenge the designation, so they knew that was in place. It was already being operated as a train station with offices and other concessions. So the court determined that the regulation on Penn Central, the local historic preservation ordinance, didn't interfere with the reasonable investment expectations of the property owner in this case. And the final key point to this test is the character of the government action. And whether it restricts development or the physical taking, such as, excuse me, the character of the government action, such as whether it authorizes the direct physical occupation. And this is rarely a point that is used to challenge historic preservation ordinances. But it's the nature of the action of the regulation that is in dispute. Next slide, please. And to summarize some additional key principles that came out of the Penn Central case, as I mentioned at the beginning, historic preservation is a valid basis for exercising police power. So again, this allowed other municipalities to substantiate and give them the authority they needed to continue to pass those local preservation ordinances. A preservation ordinance may affect different people differently, but this does not mean that it is unconstitutional. There are arguments made by Penn Central that they were illegally spot-zoned because they were being treated differently than other people. But the New York landmarks law was based on a comprehensive plan that protected, I believe, 31 historic districts and over 400 individual landmarks at the time that it was passed in 1965. The mere diminution of property values, even if substantial, is not equivalent to a taking. As I mentioned previously, the denial of the highest and best use does not automatically mean there is a taking. It has to be done on a case-by-case basis to see what the economic impact of the regulations is on the property. The effect of preservation regulation must be measured in terms of the entire parcel and not just one parcel, one property interest. This is called the parcel as a whole rule. And in the case of Penn State or Grand Central Terminal, the property owner argued that the building and the air rights were two separate property interests, but the court came back and said, you look at the entire parcel. And the entire parcel, the tax parcel includes both the building and the air rights as one. And this can be distinct, this can be compared to the Mahone case where the mineral rights were completely separate, transferred separately under different ownership than the surface rights in Pennsylvania, which is unique to Pennsylvania. And incentives are important, but not dispositive, but a significant factor. And again, in Penn Central, the New York landmarks law had an incentive to allow historic property owners to use transfer development rights, the air rights to other parcels, and that gave the property owner some economic benefit underneath the landmarks law. But again, not dispositive, but it can be a factor in these analyses. Next slide, please. And since Penn Central, there has been a lot of taking his jurisprudence and the National Trust does monitor these cases to make sure that the Penn Central three-part test does continue to be upheld. And we won't go through the cases, but I'm sure Priya has some links that she can send or I'll send later in the chat that outline some of these cases that relate not just to the denial of permits and designations, but also to conditions on extractions and conditions on developments. And also, the evolved Penn Central test, as they say, is we've got the three parts, the economic impact on the owner, the effect of the reasonable investment expectations, and the character of the government actions, such as whether it authorizes a direct physical occupation. However, there was a case called Lucas versus South Carolina Coastal Council, which related to shoreline development where regulation made building pretty much impossible on a waterfront parcel. And the rule coming out of that Supreme Court case was that if there is a per se takings, where if it results in a permanent physical invasion or taking of all economical beneficial use of the property, then that can be considered a regulatory taking. So we have that change as well. Next slide, please. All right, moving on to due process. Due process as well comes through the Fifth Amendment and the 14th Amendment as applied to the states. No person shall be deprived of the life, liberty, or property without the due process of law. And at the core of the due process clause is that everybody should be treated fair and equal under the law. And the process of making laws will be open to all and enforcement and administration will be open and neutral. This constitutional amendment was designed to protect individuals from arbitrary government action by ensuring that there's a process for making, applying and enforcing laws in a fair manner. Next slide, please. Two areas where due process and preservation intersect. Procedural due process requires adequate notice of something affecting your rights. So they require property, excuse me, mailing notices, newspaper publications, sign postings so that property owners and property owners in the vicinity of an area that is being considered for designation or certificate of appropriateness have notice and understanding of what is happening under the law. So there needs to be a chance to be heard. There are public hearings as my colleague Chris Cody is going to talk about where there is a designation or a request to make a change to a historically designated property. There needs to be a hearing. Everybody needs an opportunity to be heard and it needs to be an impartial hearing. I'm unbiased and the commission members who are overseeing the hearings need to have no conflicts of interest with each other's participating in the hearing. And finally, the third point of procedural due process is uniform procedures that are fairly applied. And this relates to how the hearing is held, when notice is provided, that hearings are recorded, decisions are made and issued in a fair and reasonably rationally related way. Most frequently as it's noted here, due process issues come up when buildings are designated or nominated to become local historic landmarks. Those can be done without, by others other than property owners. So property owners need to be given notice of what is going to happen to their property and when they'll have an opportunity to be heard at those public hearings. Also under certificates of appropriateness and zoning reviews. And the challenges that frequently come up under due process are vagueness. The local ordinance is too vague, so I couldn't understand what was happening to my property. So that's the constitutional challenge that we see most frequently with due process and local preservation. Next slide, please. Where to find due process requirements? Many states have passed laws that require meetings to be in the open so that the public can participate. There are notice and hearing requirements at the state level as well. As I mentioned, local ordinances have their own notice and hearing requirements that are outlined in those statutes. And there can also be commissioned bylaws, historic preservation commission bylaws that outline the process, the notice requirements on the open meeting requirements. There are a lot of different things to look at and make sure you understand related to local preservation commission actions and the due process requirements. And what about during the COVID pandemic? My colleague Jim Lindberg in the preservation division and myself put out a form blog, I guess about a year and a half ago now, which is sad, but that talked about some of the changes that municipalities and states made to these procedural due process requirements given that we were in a global pandemic. Sunshine laws were modified to allow meetings to occur without the public during an emergency situation. Municipalities and cities passed ordinances that allowed for meetings to occur virtually. And commissions and others developed new ways to provide notice via email by posting things on the websites and by developing different ways for participants to comment and be heard in those virtual meetings. So I encourage you to look at those. I think most are hopefully on their way out since meetings seem to be happening in person again, but I think there are some positives to the pandemic in that more people were able to participate in the community processes and have an opportunity to be heard since meetings were held virtually. So with that, I am going to turn it over to my colleague Ross Bradford to talk about religious property issues. Thanks, Ann. I appreciate your presentation. So my name is Ross Bradford. I'm Deputy General Counsel of the National Trust, and I'm going to talk to you about religious properties in the intersection with the First Amendment. I think a general caveat and a lot of the materials we've talked about today are very large topics of the law, and you could spend an entire course just talking about the First Amendment. So in about 15 minutes or so, we're going to touch on the highlights of how the First Amendment interacts with zoning laws, and first we'll go through the two primary clauses in the First Amendment that affect property zoning laws, the Establishment Clause, and the Free Exercise Clause. Under the Establishment Clause, the government can't favor or promote religion over non-religion, and under the Free Exercise Clause, can practice their religion without undue burden from the government. So these two clauses sort of interact with each other. So, you know, anytime the government gives more difference to one or the other, there's a tension that's created. So for example, when government provides exceptions to neutral laws and favor a free exercise, the claims can be made that the government is favoring religion over non-religion and violating the Establishment Clause. But the opposite is also true. When government goes to great lengths to exclude interaction with religion for fear that an Establishment Clause violation might occur, a claim can be made that the government is creating an atmosphere that burdens the free exercise of religion. Next slide. So we'll move to the Establishment Clause, and there are three main factors that, of course, look at when they're viewing Establishment Clause cases. The first is, does the government in action have a secular purpose? Is the primary effect of the action one that neither advances or inhibits religion? And does the action excessively entangle the government in the affairs of their religion? So as an example, we've got Rainbow Bridge in Utah, which is considered sacred by a number of Native American tribes. And in the 90s, the National Park Service developed a general management plan for the bridge that included a policy that requested that visitors voluntarily refrain from walking under the monument in an effort to respect the sacred status of the site. So an outside group claimed that that policy violated the Establishment Clause, and they argued that the government abandoned its neutrality by endorsing Native American religion through the adoption of the policy. Fortunately, a district court found that that was not the case, that visitors to the park or visitors to the site were not coerced to practice Native American religion, and that they were merely creating a site that is the Park Service was merely creating a setting more conducive to Native American worship by requesting visitors to voluntarily refrain from walking under the monument. Next slide. So now we're going to move to free exercise, and that's going to be the bulk of the conversation we'll have about the free exercise in the First Amendment. The Free Exercise Clause is broken down into two concepts, and the first is the freedom to believe, and the second is the freedom to act. So under the freedom to believe, individuals have an absolute right to believe and adhere to any belief system they choose. The complicating factor with that is that there's no real way to evaluate one's belief system. There's no definition for what a belief system is. So for example, a belief system doesn't have to be, have a supreme being or be organized. So courts often have difficulty evaluating this in the context of whether someone has a sincerely held belief. So while the government can't dictate what individuals believe, they can regulate actions or conduct related to religious practices. Next slide, please. So the constitutional issues framed by the Free Exercise Clause and the Free Exercise Clause create a framework for individuals to sue the government when they feel their rights have been violated. We're now going to look at the law known as the Religious Land Use and Institutionalized Persons Act that codifies case law in an attempt to protect free exercise rights. Rolupa is a federal law that Congress passed in reaction to two Supreme Court cases, Employment Division v. Smith in 1990 and City of Bernie v. Flores in 1997. Prior to Smith from the 1960s and 1990 strict scrutiny was applied generally to all laws that were challenged under a free exercise claim under strict scrutiny in order to burden religion the state had to have a compelling state interest that was nearly tailored to do so. In 1990, Smith carved out an exception to applying strict scrutiny in cases where the laws in question were neutral and generally applicable. This Smith case created a great uproar and Congress acted in the 1993 to create the Religious Freedom and Restoration Act seeking to restore strict scrutiny as a statutory right under both state and federal laws. Under Bernie, the court struck down RIFRA because it exceeded Congress's power as applied to the state, although RIFRA continues to be applied to federal laws. In response to Bernie Congress enacted a narrow law, Rolupa, or the Religious Land Use and Institutionalized Persons Act. So with Rolupa, it only applies to land use regulations or regulations related to institutionalized purposes. And generally Rolupa restores the standard established by Employment Division B Smith so that if a substantial burden of religion exists through a land use regulation and the government must have a compelling interest to do so, that is tailored using the least restrictive means. Also, Rolupa creates a right of action if land use laws treat religion on less than equal terms with non-religious entities or if the application of land use laws has the effect of discriminating on the basis of religion or religious denomination. Finally, one of the most powerful things under Rolupa is the fact that attorney's fees are available to plaintiffs that win their cases. So there's a statutory right to attorney's fees which can be extremely expensive for local municipalities. Next slide, please. So under Rolupa we're fortunate that there's a robust legislative history that explains and provides a great deal of context for the basis for why Rolupa was implemented and it doesn't however provide a standard for assessing what a substantial burden on religion is. And so courts often look at a variety of different standards and there's no one single standard that courts agree with. So one of the common questions that courts struggle with or apply when they're evaluating whether substantial burden exists is, you know, what is the degree of coercion or constraint on religious exercise imposed by the land use regulation? Does the regulation significantly inhibit or constrain conduct or expression? Does the regulation significantly modify behavior or violate beliefs that denies a reasonable opportunity to engage in those activities that are fundamental to one's religious beliefs? Does the regulation bear a direct, primary or fundamental responsibility for rendering religious exercise effectively and practical? So you can tell from the variety of different standards that are applied some are very strict and some are some are more loose. So it's difficult for courts to evaluate what is a substantial burden and there are a variety of different standards that are used across the country. Next slide. Under Rolupa there are two burdens that are present. The first is the plaintiff's burden. So anytime a plaintiff makes a claim under Rolupa the plaintiff has the burden of showing that the burden on religious exercise is substantial. But as I said earlier because there's no agreement on what the standard for evaluating whether a substantial burden exists oftentimes plaintiffs are fairly successful in showing that a substantial burden is present. So once that happens the burden is shifted to the government and then they must show that there's a compelling state interest for the regulation that's accomplished through the least restrictive means. So take for example let's say a church in Baltimore this image is the Roshanbo apartments in Baltimore that were owned by a church and they no longer wanted to maintain these buildings and they claim that they wanted to tear them down to build a contemplative garden. And so the question is the church have to maintain this building in perpetuity or can they tear it down in order to express their beliefs through the installation of a contemplative prayer garden. Next slide. So as you can see the image here here's the result of that building being torn down they did install a contemplative prayer garden. And no it's an open question whether or not there was a substantial burden there and requiring them to maintain that building or allow them to tear it down. But some takeaways in this area of the law are that for local governments are that individuals who serve on preservation review boards should be mindful that their activities not restrict religious activities more than you would non-religious activities of the same type. You don't necessarily have to cave to a church's claim that they are exempt or immune from ordinances. It has a very iterative process where if there's a claim made that you can work to accommodate a church's objection you should obviously be careful or cautious about interior designations of religious properties because obviously the current owner may object to having their religious iconography restricted in a way that they might find is substantially burdening their religion. You also want to make sure that your ordinances have appropriate economic hardship provisions so that there are outs in order to get around restrictions on maintaining or preserving historic buildings. But the final sort of takeaway is that you always want to try to accommodate these objections to the greatest extent possible or balance those requests so that there's some sort of back and forth between a church and the local municipality. I would say as a general caveat most of these court cases really focus more on zoning issues and for example two recent cases from the past year or two one was related to Amish out in Minnesota and the local law required that they install septic tanks and Amish objected to that and said this is a central burden on our religion there's a more restrictive means what about a mulch system for disposing of waste and ultimately the court weighed the balances of those things and said that there was actually a compelling interest to ensuring that water quality was preserved and so they found that even though there were regulations imposed on Amish for installing septic tanks that there was a compelling interest and it was really narrowly tailored and so in that case this is the 2020 case of a state court in Minnesota determined that this undervalupa wasn't a viable claim so next slide please so finally we're going to wrap up with some Supreme Court trends it's no surprise to anybody that if you've watched the news about Supreme Court cases and you're aware of the fact that there have been a number of appointments to the Supreme Court that there's more likely going to be more deference given to free exercise over the coming years and I'm just going to touch on a few notable cases the first is the Trinity Lutheran B. Comer case in 2017 and here the Supreme Court found that churches can't be excluded from state playing ground grants simply because they are a church so that's important because grants generally grant grant type systems that provide grants for preservation projects or other types of bricks and mortar projects generally are thought to not violate the establishment clause however there are objections to those things in some states particularly in the Trinity Lutheran case they thought that there should be a strict separation from churches being allowed to apply for grant funding for basically a secular playground even though it's on a church property a very specific case related to preservation grants that actually was opposite of this is in New Jersey the Morris County case the Supreme Court denied cert for this case even though the New Jersey Supreme Court said that under New Jersey's constitution churches can't be applicants for preservation grants in New Jersey and this was such a big deal that Justice Kavanaugh issued a statement and in the statement we gain a lot of insight in his views on free exercise and basically you get a sense that he has a very strong feeling that you know barring religious organizations because they are religious from a general historic preservation grant program is pure discrimination against religion basically on its face in my view prohibiting historic preservation grants to religious organizations simply because the organizations are religious would raise serious questions under this course precedence and the constitution's fundamental guarantee of equity equality so you know where he stands on this issue and then following that there were two other cases tandem venusum and the Fulton County case the gay adoption case where the court is actually signaling a bit more openness to revisiting Smith the thought was in Fulton that they would overturn Smith they didn't they did sort of reaffirm that if there's any sort of exception to a neutral law meaning there's any sort of discretion at the government level to grant accommodations and that law by definition is not generally applicable and would be struck down tandem venusum goes a bit further and even though this was not a case for the court they granted injective relief for COVID restrictions in California related to in-home secular and non-secular gatherings basically the members of the court that wrote opinions related to the injective relief order followed what was known as a most favored nation status which means that if a state grants an extension for the exercise of any other right such as such that the law at issue is deemed under inclusive the state would be constitutionally required to grant an exemption for comparable free exercise activities essentially if there are other exemptions available there you have to give an automatic free pass to free exercise activities next slide with that we'll pass it off to Chris Cody thank you so much all right well hello everyone my name is Chris Cody and it's my pleasure to talk to you today about local historic preservation ordinances it's my goal in the short presentation to present you with a holistic view of local ordinances that typically impact historic preservation and this of course includes local historic preservation ordinances and design guidelines but it also includes other local ordinances and some state laws that can impact local historic preservation ordinances next slide please let's start with state laws that impact local historic preservation ordinances state planning acts are the enabling legislation for local zoning laws which includes the authority to establish both historic preservation zoning districts and historic preservation commissions state planning acts also contain the enabling legislation for other local bodies that impact preservation like planning commissions and zoning appeal boards as with all zoning laws they're an exercise of the government's police power which was found to be constitutional in the 1926 supreme court decision village of Euclid versus amber realty so in addition to enabling those bodies state planning acts also require municipalities to develop comprehensive or general plans which are master documents for communities state historic preservation acts usually concern the responsibilities of state agencies state agencies and state undertakings in regards to historic resources but they can also sometimes contain the enabling legislation for historic preservation commissions and historic preservation zoning overlays so within one of these two types of laws state planning acts and state historic preservation acts you will find the legal framework which local historic preservation ordinances must exist within in your state there are several other types of state laws that depending on the jurisdiction can have major impacts on local historic preservation ordinances so open meeting laws these detailed state requirements form the basis for the procedural rules for historic preservation commissions all local ordinances must meet these requirements real property laws an example of a real property law that can impact local historic preservation ordinances heirs property if your community is in a state with heirs property protection act effectively dealing with the issue of demolition by neglect through local ordinances can be very challenging takings laws many states have enacted their own laws defining takings especially in the wake of the key load decision which hand Nelson just discussed an example of one that impacts local preservation ordinances is Arizona's private property protection act which defines is it taking any government action that diminishes a property's value and this has led to many Arizona communities including major and small demolition denials while others have ceased all new historic preservation designations. Next is STR short-term rental laws some states have established preemptive localities by prohibiting the regulation of short-term rentals within the whole state others have established statewide regulations state law as well as your community's relationship with short-term rentals should inform what accessory uses your local preservation ordinance will allow or even encourage and lastly demolition by neglect state enabling legislation can specifically define and enable communities to enact laws to prevent demolition by neglect and some states as all have also even established review and appeals processes administered by shippos in relation to demolition by neglect so these are all areas of state law that you should be aware of and review when considering your community's historic preservation ordinances next slide moving on from state laws to the local level these are the bodies established in local ordinances that typically interact with historic preservation issues all of them have legal authorities via local ordinances to positively or negatively impact preservation and effective local preservation advocacy requires engagement with all of them now their names and exact authorities do differ from state to state and even community to community but typically generally they are city council or the top legislative body in a community planning commission zoning appeals board and of course most important for our purposes historic preservation commissions now city council is objectively the most important in part because it appoints and can remove members of the other commissions and boards but it also often serves as a venue for administrative appeals from other boards and commissions and it controls the budget and thus all funding for all historic preservation activities including grant applications next slide please planning commissions are also a very important body is limited to making recommendations to city council but they hear applications for rezoning subdivisions and pods are planned urban developments and these projects are often the largest scale new development projects and communities that can have massive impacts on historic resources and preservation the planning commission evaluates these applications solely through the lens of their compliance with the established general or comprehensive plan which as we discussed earlier is usually mandated by state planning commission and the planning commission also includes the importance of including preservation at every level of that document not just a paragraph or a chapter but getting the language of preservation woven into your master planning document will pay dividends for years and the planning commission also engages in planning activities and initiatives connected with the development or amendment of ordinances so examples of this include amending or passing a historic preservation ordinance or a short term rental lease boards of zoning appeals are another important body established in local ordinance that very often intersect with historic preservation boards of zoning appeals here request from variances from underlying zoning and also your applications for specific uses within certain overlay districts in both cases boards of zoning appeals evaluate applications using very specific tests or standards codified in ordinance and this slide has an example of the variance test from the zoning appeals board. These are types of variance requests that can impact historic resources include requests for additional height lock coverage or density on a parcel and many cities have set up overlay districts with specific tests to manage uses an example of this is charlson's accommodations overlay which covers downtown charlson's main historic districts in order to have an accommodations use like a hotel in this area an applicant must pass a specific test to make sure that the zoning overlays and tests are important to ensuring resident quality of life by maintaining a sustainable balance of uses within historic districts again these are local ordinances local zoning overlays and they can be developed specifically with preservation in mind. Lastly it's important to note that most state planning acts guarantee a right to just judicial appeal from decisions made by local boards of zoning appeals as I mentioned before many city councils and opportunity to review controversial decisions next slide please and now here we are to historic preservation commissions the star of the local historic preservation show historic preservation commissions are established in the local zoning code so their authority thus comes from the government's police power an ordinance establishing a commission must have several elements at an absolute minimum it should make clear that preservation is a community priority that the commission shall have it must detail the procedures and rules for meetings which as we previously covered must be aligned with state open meetings laws and the constitutional due process requirements that and covered earlier it also must an ordinance also must establish who sits on the commission now in terms of what powers historic preservation commission may have their core function is actually to engage in historic preservation planning and designation activities a local historic preservation commission's enabling ordinance must contain a statement of the resources protected by the ordinance for example all historic resources located within a historic preservation overlay zone and the criteria and process for nominating and designate properties for that protection it is the job of the HP commission to administer this process and to lead community efforts to expand local historic districts and to list new ones this function of planning and designations virtually universal for historic preservation commissions across the country yet it is often neglected especially by commissions who have to deal with a high volume of design review applications though most historic preservation commissions participate in the national park service certified local government or CLG program this certification is required to receive federal grant money for historic preservation planning activities and believe me federal CLG grants are the best source of funding for historic preservation planning in addition to having a commission community must also have a historic preservation ordinance that's it there's no design review or physical protections from demolition of any kind that are required for CLG certification a local historic preservation can exist in your ordinance and be a CLG with no authority other than the responsibility to nominate and designate historic properties and many actually start this way to get into the program which then makes them eligible for CLG grants to develop and further expand their ordinances and finally here we are at the heart of what most people think about when they think of local HP ordinances local design review for your local historic preservation commission to have design review authority it must be specifically enabled in local ordinance procedures for applications and reviews of proposed projects must also be established in the ordinance and these procedures must meet both basic due process requirements and any specific requirements established in state there also must be enforcement procedures like stop work orders fines and penalties established in ordinance and depending on the extent of the authority grant into the commission an administrative appeals process may also be something to include as well as variances for things like economic hardship lastly for historic preservation commission to have design review authority design guidelines must also be included in the ordinance either in the text or as an appendix while the secretary of interior standards are often incorporated by reference as well individual guidelines must be included let's talk about this requirement in the context of the evolution of local historic preservation ordinances next next slide please so this is just how I've come to organize local historic preservation ordinances in my mind this is nothing official or formal but to me it reflects the variation and evolution of local ordinances the generation one ordinances are relatively simple ordinances in terms of how they technically address preservation they're usually adequate in terms of procedural matters often having been updated to be consistent with changes in state open meetings laws but they're sometimes simply as short as one sentence and a vague charge to ensure compatibility and these currently often fail judicial tests because they're an arbitrary because they're deemed to be arbitrary and capricious in violation of due process requirements just giving other citizens broad subjective authority to veto proposed projects because they deem them incompatible to the economic detriment of applicants has unsurprisingly not been viewed favorably by modern courts so generation two constitutes the majority of ordinances today instead of merely having vague language about ensuring compatibility generation two ordinances have descriptions of specific design elements that are appropriate for local context like materials massing citing and architectural details these can range from still being short paragraphs with a few descriptors to longer sometimes impenetrably long ordinances with encyclopedic recitations of architectural terms but generation two ordinances typically survive traditional review many have been updated with additional appendices as well as persistent design or issues of a risen in communities so there are innumerable examples of generation two ordinances around the country and the national trust and the National Association of Preservation Councils have both published a extensive guideline on these types of ordinances and guidelines so rather than tread again on that well trodden ground let's talk about generation three to generation three ordinances they have even more detailed written guidelines even more references to specific local context all vague languages removed and here at the end this is the most important part to me they usually contain tools and examples to help the public generation three recognize the goal is to encourage good applications to historic preservation with design review authority and this is a goal beyond simply protecting against liability by having a well-developed non-arbitrary and capricious ordinance the goal is to give the public as much information and guidance as possible because that's how you get the best applications and the less time a commission has to spend dealing with bad applications the more time a commission can spend on proactive preservation initiatives like designation and planning think about it like this a very sophisticated party in another state or country who may be considering buying property in your community's historic district should be able to look at your guidelines and even if they've never been to your town understand what will and won't be approved by your board unfortunately it's very difficult for lay persons to understand detailed ordinances chock full of architectural terms much less visualized compatible new designs so generation three makes it easier with design guidelines and tools let's take a look at some of those tools next slide please so this is the cover page for a recently enacted set of design guidelines from Williams Arizona it's a route 66 town that's also the closest town to the Grand Canyon with a population of only about 3,000 next slide please even for a town of this scale this is how develop their design guidelines on this is an over 50 page document it's now been incorporated as an appendix to their zoning code in addition to having language for the ordinance and guidelines like a generation two ordinance it speaks to specific issues like under energy conservation there's guidance for HVAC upgrades and window replacements sustainability is another area where while not in Williams guidance can be provided on climate change considerations and lastly and most importantly generation three ordinances include visual guidance next slide please instead of just writing that vertical windows with transoms are acceptable number seven provides a picture of one from the local context to help the public understand what is successful and context appropriate this extra visual orientation is extremely appropriate next slide please in fact every single architectural term mentioned in Wams ordinance and guidelines are supported by a picture from Wams historic district showing that architectural element this is the ideal level of guidance it's impossible to read Wams ordinance and guidelines and not understand exactly what they're talking about next slide please this event is from Charleston's board of architectural review guidelines this is an example of more conceptual guidance in this case for massing and urban design responses again this is the kind of visual guidance that superior written descriptions conceptual models are also more helpful for design concepts like massing and urban response whereas photos are most helpful for elements like architectural details next slide please and this is my absolute favorite tool this is an approval matrix to help guide both members of Charleston's board of architectural review and applicants notice that it doesn't say anything definitive just easier to approve and harder to approve you know this clearly lets applicants know that some design choices like lower ceiling heights and using composites instead of natural materials will be harder to approve this is exceptional guidance for applicants far beyond just listing desirable design elements guidelines and even beyond photographs and conceptual models these are the kind of tools that are included in generation three ordinances that are typically not found in earlier historic preservation ordinances next slide please lastly I'd like to draw your attention to a few current issues that are important to consider when drafting or revising a local historic preservation ordinance demolition by neglect this is a huge problem in preservation many communities address it by developing a standard ordinance that gives their historic preservation commission authority to declare that a property is suffering from demolition by neglect and to take remediative measures however developing a standalone demolition by neglect ordinance is a significant endeavor that has to include specific considerations like exceptions for economic hardship an alternative path that I recommend is to give historic preservation commissions referral authority to building code departments most structures suffering from demolition by neglect ordinance also violate the building code and the code officer is already empowered to undertake enforcement actions against them the historic preservation commission simply having a mechanism in ordinance to bring a neglected historic building to the code official and city council's attention can be a more achievable scheme than developing an entire separate demolition by neglect ordinance so next is accessory dwelling units or ADUs as we mentioned earlier whether or not your state allows you to regulate short-term should inform your design guidelines concerning ADUs you can encourage them or not encourage them via your local historic preservation ordinance and design guidelines so this next one feet versus stories is really a public service announcement I'm just trying to get the word out to everyone when you're looking at your historic preservation zoning overlays and guidelines if you can at the same time change the height zoning within your historic preservation overlay zone from feet to stories do it feet makes you have a uniform skyline and discourages high ceiling rights stories liberates architects regulating height by feet instead of stories is an artifact from the 20th century and it was a mistake window replacements this is one area where I advise all design guidelines have separate section windows are the most commonly replaced building elements and old ones can be very difficult to repair or replacing kind it's also a minor enough project that it usually won't go to hearings and can be approved at the staff level so make sure that the guidance on it is clear in your ordinance and guidelines so this next one the availability of historic materials and still skill contractors is you know you really need to be aware of what reasonably can and can't be done in your community an example of this is adobe repair in Arizona there are only a handful of people that are skilled at adobe repair left in the whole state so if there were an affirmative maintenance requirement to maintain adobe at a certain level it would be nearly impossible for many homeowners to meet that and it would be a feudal requirement and lastly climate change now many communities are already working on supplements to their guidelines to allow for elevating buildings and other climate considerations when you're working on your ordinances updating them or developing them before we're thinking about this and anticipating well in conclusion I hope that you now have at least some understanding of the world of local preservation ordinances and local bodies that interact with historic preservation and how to design or upgrade historic preservation design guidelines in your communities there are many resources out there that can help you develop or upgrade your communities historic preservation ordinances and I encourage you to contact your SHPO office your state historic preservation office who administer the certified local government in each state for your state specific guidance and model ordinances from your state thank you very much with that I'll turn it over to the next presenter. Thank you Chris now we're going to turn to preservation easements next slide please so basically we'll start out with a general definition of what a preservation easement is and essentially it's an agreement between a nonprofit or government entity and a private citizen that limits the use of property for the purpose of protecting a property's preservation slash historic or conservation values or resources so what does that mean exactly well preservation easements are restrictions on private property real property and they can be used to protect outdoor recreation natural habitat fish wildlife plants open space including farmland and forest land but the topic of our discussion is going to be focused on protecting historically important land areas and certified historic structures or historic buildings we use preservation easements to protect significant things about properties so when we evaluate properties we want to look at well what are the conservation and preservation values that are important to protect and sometimes that involves regulating subdivision sometimes that requires making agricultural uses conform with sound agricultural practices or forest management practices that conform with sound forest management forest management practices or just simply preventing demolition of historic buildings or regulating changes or alterations to historic buildings and structures next slide please so you'll see in this easement in this image there are a variety of different types of properties that are protected by easements as I mentioned earlier open space on the left and upper left historic buildings interiors very high architectural style buildings so old modern buildings agricultural buildings commercial buildings easements can be used to protect a variety of different structures and so it's a very versatile tool that we use in our preservation toolkit and one that both the preservation and conservation communities use oftentimes together to protect both open space and the built environment next slide please when we talk about easements sometimes I'll refer to them as preservation easements but sometimes you might hear people talk about conservation easements when we talk about preservation easements we talk about restrictions on property that affect four fundamental things and one the first is the covenant to maintain meaning under a preservation easement a property owner would be obligated to maintain the property that is do normal cyclical maintenance and keep the property in a standard condition then there are prohibited activities under the easement those are things like prohibitions on subdivision obviously one of the biggest prohibition on demolition of the building and then finally easements are used to restrict property so that alterations or changes have to be reviewed by third party so if an easement holder holds an easement on a property and a property owner wants to say add an addition they would come to the easement holder to seek approval for that and then finally property owners have what are called preservation easements they are things that they can do without getting approval from the easement holder things like mowing your lawn doing normal lawn maintenance activities doing normal cyclical maintenance painting scraping replacing with in kind materials those types of things our next slide please so preservation easements have a variety of benefits and risks so we'll look at this from the perspective of both an owner and an organization for owners of property you can donate an easement on your property and you can continue to own and use that property forever and you can sell or pass it to your heirs or to someone else and be comforted by the fact that your property is being protected without having to basically transfer it to another entity or organization and the benefit to a preservation organization is that it's a very typically a smaller financial incentive for them to put an easement on a property versus outright owning a property and operating or maintaining it one thing we didn't mention earlier is that preservation easements typically come into two types those that are perpetual those that last forever and then those that are term-limited easements often times you'll find term-limited easements related to grant programs at the state level where you're getting state bricks and border grants to improve your property preservation easements are great tools however they are risks to they do present risks to holding organizations that means that you have to regularly monitor and review projects that come before you and that often times or sometimes you might be forced with legal action or the need to take a property owner to court to resolve a dispute related to a change or alteration that wasn't approved next slide please in the preservation toolkit and preservation easements as an alternative to local preservation ordinances or as a compliment to local preservation ordinances and I won't go through all the specifics of this chart but some of the differences between preservation ordinances and local ordinances is that easements are perpetual local ordinances aren't necessarily perpetual or they aren't perpetual in the sense that lawmakers can change legislation overnight as a quick example in Washington DC we were faced with a potential change to preservation ordinances due to a free exercise claim made a couple years ago related to a church in town and you know in the matter of a couple of days city council was looking at legislation that would radically exclude religious buildings from the preservation ordinance so in that instance you can see how or changes from administration to administration or council to council that if people's needs they might change the laws so easements are perpetual local laws can be changed under easements there are a number of things that are sort of absolutely prohibited whereas under local law there are often safety features to give property owners certain outs so economic hardship provisions those types of things but I think one of the main factors is that with preservation easements there's typically a lot more oversight because preservation organizations have or should have the staffing to administer their easements to visit them regularly versus at the local level there's typically not enough staff to go out and see all the local landmarks all the time to see if there's demolition might neglect and so oftentimes it's a reactive sort of situation versus preservation easement monitoring is more proactive we're going and having conversations with property owners and interacting with them and seeing problems before they start next slide please so in the context of preservation easements there are federal tax benefits under section 178 to the tax code and the three fundamental things that you'll want to be aware of are that if you have a property you can put a perpetual restriction on it to restrict its use you have to donate that to a qualified organization and that means you know 501 C3 or governmental organization and it has to be what's known as for exclusively for conservation purposes as I mentioned earlier that can mean protection of open space natural habitat but the area we focus mostly on in the preservation world are the protection of historically important land areas or certified historic structures also known as just historic buildings that are listed on the national register on next slide please so in terms of big picture trends that we should be aware of next slide please the IRS because there are tax incentives involved with donating easement the IRS has regularly over the last several decades looked at easements very skeptically and have challenged a number of easement donations for a variety of reasons fundamentally a lot of these disputes are about valuation of the easement whether the easements value is actually valid and whether it can be substantiated or not but oftentimes the IRS will focus on minor issues in these transactions that they say basically don't meet the requirements of the code so the couple areas I'll talk about very quickly are proceeds clause under these easements so right now there's been a lot of focus on proceeds clause under easement cases where the IRS has argued that if the easement holding organization in a condemnation setting is not entitled to the entire value of the easement after condemnation that they are somehow violating the perpetual requirement of the tax code and so there are a number of cases that have come out addressing this issue the Carol case the Rose Hill case and the Cole property holdings case and then specifically and we'll put this in the chat a little later this past summer the chief count the IRS issued a chief council opinion addressing this specific issue and basically the idea of the concept here is that the value of your easement must track throughout the life of that easement and that you can't net out a properties improvements from those proceeds so in other words if your easement is worth 10% of the property in year one it's worth 10% of the property in year 50 regardless of any improvements the donor may have made of those 50 years next slide please the other area that the IRS is focused on are easements that have where known as automatic approval clauses and the most recent case or most popular case is talked about as the Hoffman case and it was reviewed by the 6th circuit and in that case basically the court was looking at easements where the easement holder and the property owner or the donor had agreed that if the property owner presented the easement holder with request for alterations or changes of the property and there was never a response from the easement holder that over time that lack of a response would be deemed an approval or an automatic approval and the IRS argued that if that's the case then the easement holding organization is not actually enforcing their easement they're not actually abiding by the terms of it and that it's actually not perpetual and the tax court would approve the IRS in that situation and the 6th circuit also agreed so generally as a best practice we don't like to see automatic approvals in easements and if you're going to include an automatic approval clause in easements it's typically best to draft it as a constructive denial meaning if the easement holding organization doesn't respond within a number of days the request is deemed denied next slide please the final section where the IRS has put a lot of focus on their enforcement actions have to do with amendments and amendment clauses in easements and at one point the IRS and the IRS continues to do so argues that easements should be forever and that they should never be changed and that if an amendment clause exists in an easement it conflicts with the perpetuity requirements under the tax code luckily the IRS lost that challenge in the 11th circuit in the Pine Mountain Preserve case and basically the idea the court said look easements are not unique real property tools in the sense that they need to be flexible and donors and easement holding organizations need to have the ability to change or alter an easement and that having just the sheer factor the sheer fact of having an amendment clause in an easement doesn't in and of itself void the perpetuity of that easement and so in this case a good drafting tip generally both for preservation and conservation easements is that you want to have amendment clauses in your easements to accommodate future changes or alterations but you want to make sure that if you are going to amend an easement it has either a neutral or beneficial effect you don't want to be in a situation where you're weakening an easement through an amendment that would be something obviously the IRS would have a problem with and that wouldn't be mindful that any sort of changes or alterations you make to an easement don't create private enermot or private benefits next slide and finally I'll wrap up with two additional points and the final one is in the last I would say three to four years IRS has focused a lot on the syndication of conservation and preservation easements and syndication is essentially the concept where an investor buys into a promoted and marketed tax shelter disguised as an easement donation so for example an investor will buy into an LLC for one dollar and then the LLC will decide to donate an easement on the property and they'll get an overinflated easement appraisal that says basically the property is worth five times as much so their investment of one dollar has turned into five dollars in tax deductions and the IRS and the Senate Finance Committee have focused on this pretty significantly over the past couple of years a lot of this a lot of these transactions do happen in the conservation world but they also happen in the preservation world and so there have been IRS notices about it there's a very substantial Senate Finance Committee report on the syndication of conservation easement transactions that you should look at and we'll place in the chat and then finally the IRS publishes an audit techniques guide and occasionally updates it and they made some substantial updates to it in both 2020 and 2021 and we'll provide links to those and essentially this is the guide that all the examiners use to review these transactions and it's important because it gives insight into how the IRS views easements, views the different requirements under existing case law and it's just a great resource for easement holding organizations, donors, and the attorneys that advise them and with that I'll turn it over to Reina. Thank you Ross and I'm going to wrap us up by talking a little bit of an overview of preservation easement program administration from the perspective of if you work for or volunteer with a preservation organization that accepts or holds preservation easements a significant part of the success of using this legal tool is kind of the ability of that organization to effectively administer and enforce the easement. In the recent past we've done webinars on specifically related to easement monitoring and stewardship and I know Prio will share those in the chat so if you really want to dig in more about those specific topics you'll get you can watch those webinars on demand at your pleasure but I'm going to talk through the basics about how organizations administer preservation easements with a few recommendations particularly for those of you if you're considering starting to hold easements with your organization or if you're considering restarting holding easements as well. So next slide. So as Ross was talking about if your organization is going to agree to accept or hold easements particularly if those easements are going to be tax-motivated and the donor will receive a charitable contribution the IRS requires that organizations have to meet the requirements specific requirements to be what they see as an easement holding organization. A qualified organization they will agree to protect the conservation or preservation purposes of the easement donation and this is the key part have the necessary resources to enforce those restrictions and we'll talk a little bit more about what that means but generally speaking organizations that are holding and monitoring and accepting easements are kind of focused on two things from an organizational perspective transactions or acquisition of new easements and stewardship so the management of those existing easements and generally speaking in the preservation community qualified organizations are either non-profit organization or a governmental entity of some kind. Next slide. If your organization is considering starting an easement program or restarting to accept easements maybe you haven't accepted new easements in a couple of decades or you're just taking a moment to reflect on your program and its effectiveness and I want to encourage you to think through a couple of these questions that I have on the screen. To start with how does an easement program fit within your organization's mission? Can you accept properties specifically that are important to your organization's strategic plan or fall within your ability to monitor and enforce those over time? I think you want to ask yourself what are the goals of starting an easement program what are we hoping to achieve by accepting and holding easements to have with your board or with your staff or with other key stakeholders in your community? I think you want to identify short and long-term goals to establish and operate your easement program even if you have existing easements this is always a great thing to do on a regular basis. This might include developing procedures or standards to administer your program but also you'll want to think about what is the funding that you're going to use to have the capacity to be able to enforce and monitor those easements. Next slide please. So Russ kind of chatted about this briefly but generally speaking preservation organizations typically accept or acquire new preservation easements one of four ways. In some situations a nonprofit or sometimes even government entities may acquire a property and then sell it subject to a preservation easement or covenant placed on the deed at the time or placed in the deed or on the title at the time property is sold. And this typically occurs through real estate that's gifted to the organization or the organization acquires the property through revolving loan funds. Many preservation easements originate through traditional donation where an individual donates the easement to an organization those can be tax motivated and in many cases they're not tax motivated the property owner has an interest in seeing their property preserved until they'll donate easement without wanting the tax benefits. As Russ mentioned some easements originate as a condition of grant programs typically state or federal grants those are often term easements and lastly easements or covenants are used to protect historic properties being disposed of by government entities such as through the section 106 process. Next slide. So how does a preservation organization obtain kind of those necessary financial resources to monitor and enforce its easements over time? Typically the preservation organizations require the easement donor or other funding sources to provide kind of what we call a stewardship cash contribution at the time the easement is donated. This cash contribution is added to a fund that's used for the ongoing easement administration. Organizations typically use one of three ways to determine an appropriate stewardship contribution and you see those kind of summarized on the screen we did a great article in forum that was put in the chat as well and I'm just going to briefly touch on these but essentially you can calculate the annual projected costs for monitoring enforcing those easements that specific easement depending on what the restrictions are its location how large it is other factors and then capitalize that for an endowment draw on an annual basis you can also use a fixed percentage of the property's fair market value or some preservation organizations use a flat rate or range of rate dependent on certain factors. Regardless of which funding model you utilize to determine what is that stewardship cost you want to be able to have some type of cash fund or financial resource at your organization that you can use to not only for annual monitoring costs but in case of a legal challenge that requires you to enforce the easement. Next slide. Organizations should be strategic in how they acquire new easements and really a key part of the administration and long-term relationship with the property and the preservation of the property through an easement starts when it's being drafted and developed. If you're considering using an easement to protect the historic property you should evaluate the property to ensure it meets whatever criteria you've developed or goals you have for your easement program. The National Trust we have something called a project selection criteria that helps us narrow down you know if the project meets kind of our goals for our easement program and you'll typically need to complete a site visit to complete your evaluation. As part of your developing the easement you want to be able to make sure that you're drafting this easement identifying the specific historic architectural and conservation values of the property and developing an easement that helps advance the preservation and conservation purposes of the property. A critical challenge for preservation organizations I think in developing new easements is addressing those other conservation values. If you have a large say a large farm or rural property that's not only has a historic farmstead but also might have some agricultural land you might want to include easement restrictions that address that open space and natural natural resources or other conservation purposes. And on the other side land trusts have the same issues when they're developing conservation easements that protect historic resources. I encourage you to reach out to land trusts or other similar conservation organizations in your area and find ways to collaborate so you can better learn how to develop easements that protect the whole property. And lastly I'll note when drafting new easements consider the long-term stewardship and enforcement of the restrictions. I think many of us who've worked in easements have easements that date from the 70s and 80s and we've learned that over time some easement restrictions have seen great ideas in practice but they do pose long-term stewardship or management challenges not only for the easement holding organization but the property owner and preserving the property. Now with climate change being a factor you really think long and hard about what restrictions make sense for that property before putting on them on the title and perpetuity. Next slide. Well I'm not going to go point by point but I just want to touch on the fact that if you're going to be accepting a new preservation easement at your organization this kind of walks through a step-by-step of the best practices involved to do diligence and accepting and holding an easement. Your organization should understand this is a risk or liability your organization is accepting into the preservation of the property and so this process typically does take some time so there's lots of resources out there about some of these topics and if you have questions about them we're happy to go through them. Next slide. When I talk about stewardship I'm talking about the ongoing administration of the easement the day-to-day management of the easement and kind of the organization's ongoing obligation to ensure the terms of the easement are being upheld. Your organization wants to develop property owners and that you can typically accomplish through having successful easement monitoring promptly reviewing the request for approval keeping in regular communication with your owners among other activities. Stewardship also involves reaching out to new owners and helping them to understand the easement and its obligations. I know I wrote a piece for a forum blog about some common ways to track changes in easement property ownership changes in property ownership in the easement agreement. The easement agreement is often where there will be challenges in easement enforcement or often violations if they're not familiar with the easement to understand its terms. Next slide. And easement enforcement. We talked a little bit about this. That typically involves when a preservation organization utilizes there's remedies typically in the easement agreement that allows the organization that the owner is not upholding the affirmative maintenance cause or if there's a not permitted use. The easement or holding organization does have legal remedies to address that violation. At the National Trust and I think it's the best practice of all preservation and conservation easement holding organization, you want to seek kind of resolving that violation without seeking legal action to the best of your ability. But sometimes that's not feasible and you might have to take the owner to seek legal action to kind of remedy that violation. But I would suggest that a major part of preventing violations include regular contact with your property owners and conducting inspections on a cyclical basis. This helps reinforce the easement terms and remind them of their obligations is a great way to kind of keep that top of mind for them so it avoids future violations. Next slide. So we commonly hear from staff or volunteers from preservation organization interested in kind of reviving their easement program. Perhaps you accepted some easements in the 80s and you haven't in a long time and you're thinking about, you know, we want to kind of refresh our program and so I thought I would just kind of kind of give you my insights on what I would do if I was in your position. You know, perhaps you haven't accepted a new easement, you know, in a long time and so you're just trying to get a handle on what's the state of your portfolio. And so, you know, it's always good to start with what you have already inventory, your existing easements, and make sure you have copies of your existing recorded easement documents. You know, determine how you're going to keep records such as developing a database and how you're going to store your records, your inspection photographs, digitizing them if that's something that's feasible for your organization. We just developed a GIS application and database for our program and I know Priya will share that link in the chat and that's been a great asset for us in our easement administration. If you're kind of restarting your program, you want to update or develop a few key organizational documents such as having an easement policy that'll outline kind of the framework of your program, including what types of properties that you'll acquire new easements on. You'll want to develop kind of standard operating procedures which kind of outlines, you know, the day-to-day management of the program, you know, kind of the institutional memory so that when you have staff turnover if a property owner, you know, has a new contact that they have a seamless transition and how the easement is administered and the best way to accomplish that is by writing everything down so that your procedures are standardized. Next, you'll want to establish a regular monitoring program that helps you consistently communicate with your existing property owners. And I think from there, that gives you an opportunity to really have a great framework in place to start accepting new easements. You can say to donors, we have this program, here's how it organized. You know, we have a regular monitoring program in place and then you can start trying to seek out or accepting new easements. So that is all I have and so I think I will turn it over for the Q&A. Thank you very much. Hi everyone, sorry I was a busy putting links in the chat. So I hope many of you have noticed that first of all if all our panelists want to hop on camera now, they can. And Rhonda, I don't know if you want to stop sharing. Go ahead and do that so we can see everyone. But it looks like our panelists have been busy answering all the questions in the chat box. I don't know if there's one that you guys particularly want to highlight that you've already answered. There's a lot in here that they've already answered that I think all of you who are participating can see and they basically had to do with all sorts of the issues that were brought up during the presentation. So I can read the two that haven't been answered if that makes sense for you guys. Yeah, I'm seeing general nodding. Okay, so we'll start with this one from Evelyn that says, have there been any trends in whether the court side with the property owner or with the easement holder when the National Trust or other easement holders have pursued legal action over lack of maintenance and or unapproved alterations? And I think this is a Reina and a Ross question. I'll let Ross answer that one if he's so inclined. I wouldn't say there are trends. I mean, they're not a lot of, first of all, litigation is extremely expensive. So most easement holding organizations avoid or come to some compromise of the property owner before litigation occurs. And so there's not a great case docket of cases out there that address these issues. The ones that we're familiar with easement holding organizations usually they've built a solid case and so there's a record that's there and it's hard to refute a record when you've given a property owner multiple opportunities to address situations and they failed to do so. And so in the cases that are out there things like additions that were added without approval that courts have agreed have required to be removed. The easement holding organizations prevail but I would say it's hard to say there are trends because I don't see a lot of these aren't cases that pop up a lot on the radar and I think mainly that's because oftentimes they get settled way before they get to that point. The threat of litigation alone is probably enough to settle most of those cases. I would just briefly add I mean it's equivalent but same principle there's been a couple recent I think cases in the conservation easement world where the easement holding organization has also been extremely successful. The Sonoma Land Trust was very successful in some litigation with our tree removal and there was an easement holder in Connecticut that was very successful so I think in kind of the broader picture outside of preservation easements as well there's been some general success. Great this is another question directly towards Ross I think he means Rolupa what is the definition of institutionalized persons or she I'm sorry Leslie I apologize for gendering you Typically we're talking about people that are people that are incarceration or other people that are subject to federal or state laws that either incarceration or your in confinement so it's no institutions those types of places those would be the types of individuals. Great let's see Irving is asking does a term preservation easement in a grant situation cause the grantor to lose the tax benefits such as deduction or tax credits that normally accrue to preservation easements? Yes If you're getting an easement that's the result of a grant or if you're having to give an easement because you're receiving a grant it's not eligible for tax deduction because it fails to have donative intent essentially you're agreeing to get compensation or grant in exchange for giving an easement on your property so the IRS wouldn't recognize that as a valid qualified conservation contribution. I know there's one question that I'm referring to so I'll read it and then if you can get let me know have there I lost it two seconds there's another question in the chat on easements which ask are there any appraisers who can appraise preservation easements on historic structures in Colorado? Thank you Tom Ross, Reina I don't know that we know of specific appraisers there's someone that I can refer you to that if there are specific persons I'll put their name in the chat privately to you if there is someone they'll know who you should talk to and I'll message that to you directly Generally speaking there are courses for appraisers to take that focus specifically on appraising conservation preservation easements it's difficult to find those individuals the appraisal institute has a website you might look there but Colorado I suspect is a difficult area most of these individuals practice at a national level so they will not necessarily be in Colorado but they may be somewhere nearby so I would check out the appraisal institute you might get lucky and find the name of somebody in out west that does conservation or preservation easements but I encourage you to contact History Colorado it's really a fabulous organization and I'm sure that they've dealt with this issue in Colorado before I see another question just came in the chat I would just ask that if you ask anything please put it in the Q&A it's just easier for us to track and monitor but Blair is asking if an easement agreement was never recorded with the county clerk's office is it still enforceable if an easement is recorded with the county clerk's office is it enforceable if it was never recorded if it was never recorded sorry I didn't hear I missed the never part that's a difficult situation probably not but it just depends on the facts and circumstances of that interaction so for example if the person, if the easement if the property owner is the same person that donated it and it was never recorded but they still in the property it could very well still be enforceable if they sold the property it may not be okay there have to be other questions about first amendment free exercise takings there's a lot of easement questions but I will say the one question that people have asked me in the chat a bunch and I see just came in is I'm going to take all the URLs and all the links that we're putting in the chat and put them in a resource link on preservation leadership forum we will link to this off the savings places conference website and then everyone who has registered for this webinar will get a link to that in an email from I think zoom webinar or directly from us about 24 hours after we end today so you will get all this material I guess so it needs to be a question I'm sorry my organization has an easement held by a state entity but we haven't had much successful communication with them with regard to upcoming updates we are trying to make for security purposes do you have any advice for channels we can consider in order to make sure we're not making changes in defiance of our easement I think a couple suggestions not sure you know what state entity but you know obviously trying to provide them you know you know if I was trying to reach out to a property owner and they weren't communicating with me one of the things I would do is try to send them certified mail in the U.S. Postal Service and that way you know that that is actually getting to someone and you know I know that a lot of government entities and workplaces obviously you can see some of us the National Trust are still at home and some of us are at the office so I think it is a difficult time to reach out to and I would have Ross if you have others I think that you want to just create a good paper trail that says that you made multiple attempts to contact them as Reina said and at this point start going up the chain if the division that you are interacting with is not responding then keep going up and eventually it will get to somebody that will respond it may not be the response you're looking for but they'll respond I see Tom is answering one of these questions so I'm going to go ahead and ask the one afterwards when an easement is required by a transfer of a historic property to a private ownership from city ownership of a designated property on the state and national register the city placed the entire exterior of the house as being exempt from the ordinance much of the exterior was removed and changed the HBC went against the easement as it was designated the HBC never was included in the development and registering what are the actions the HBC can do to not have that happen again if you want to read that it is in the Q&A so that might also help to read it instead of be reading out loud I think the short answer is don't let the city exclude it from the ordinance that seems to be the critical flaw even though they held an easement on it excluding it from the ordinance took it out of the HBC's sort of domain but given that it was owned by the city there's a different conflict there you've got city administrators administering easements versus the HBC which might have a different perspective on how these things should be monitored and enforced and I would add too and I think Ross is going there I don't know who is holding the easement if it is the city government then can the HBC be involved and administering the easement that is possible without knowing more specifics it's hard to say but that may be also an option great we have a 4F case maybe you want to answer it out loud Betsy mentioned a few section 4F cases do you have a list of good case studies I just lost it sorry we have a lot of examples of good case studies beyond the over 10 one sorry you lost it because I pressed send for my type dancer I'd be happy to provide a list and I actually just wrote to the person saying send me your email address and I'll email you a list but I could provide it to you Priya and we could post it along with the other post conference materials sure let's see anything else we don't usually provide the transcript for webinars just because we just don't usually provide that when we do upload the video on YouTube we do make sure that the auto captions are on there so that's available but if you really need it reach out to me at forum at savingplaces.org and I can see if I can pull it for you it likely will not be cleaned up and will have lots of name misspellings and word misspelling I'm not very much used to you but I can try and pull it for you if you need it Priya there's a question about free exercise and the establishment clause from Jonathan Stark-Sax maybe we'll have that as the last question yeah let's do that do you want to go ahead and read that because I don't it says how can a state or local government use a requirement that their funding programs do not violate the free exercise clause and discriminate against religion and also not entangle themselves with religion under the establishment clause I think that's a raw spread so I mean the main the primary issue here is that if you have a funding program that you don't obviously want grant programs in general are viewed as not being in violation of the establishment clause there is an exception I mentioned about Morse County where the New Jersey Supreme Court found that that wasn't the case and one of the caveats I didn't mention during my part of the presentation is in addition to the federal constitution there are state constitutions and sometimes they have a stricter standard regarding free exercise and establishment and in some states it just may not be possible under the state constitution to provide funding to religious organizations or entities so if you have a funding program I would say that you need to apply it the same way you're applying it to everybody and don't make a church go through unusual steps in order to comply with the grant funding program and you know make sure that what you're asking for in terms of any sort of justification around the grant or reporting or financial reporting is reasonable I mean if it's not reasonable and you're getting into the weeds of a church's their actions or their their day-to-day working things that sort of gets into that area of establishment but generally I would say you know as long as you have a fair program that looks at everyone equally and you're giving out grants equally and that you're not making the church provide additional information that you're not making others provide you should be pretty sure that you're not having it run afoul of the establishment clause great I did I know we're at 358 but I figured it might be good to just respond to comment Heather Hoffman made in that you guys answered in text by someone as requested a verbal answer not a question but a correction in Massachusetts zoning and historic preservation are entirely separate and trying to accomplish preservation scheme will invalidate that scheme I don't know if you want to verbally comment on that and I think the point Anne was making is that things are different from state to state so Oh absolutely it's very difficult to speak about local historic preservation schemes and ordinances which are inherently local at the national level so there will be variations in all of those issues but I'm very interested to learn more about preservation protections that are existing in local ordinance outside of zoning law that's an interesting thing to explore great and then I think Chris maybe I'm going to ask you the last question because it's not about easement but I think something you can answer can you provide examples of places that have done a good job of fortifying their zoning ordinance language with preservation friendly strengths we need more character and historic I would really encourage you to look at the example that I cited during my presentation which is Charleston South Carolina they've done an excellent job of establishing overlaid zoning districts specifically to preserve the quality of life for residents within historic districts which is a preservation concern many other cities have done that that's the place that I am most familiar with and it's a great place to start Charleston is the site of the very first historic preservation zoning ordinance that we're going to be trying to keep on top of things down there great so just a couple of quick announcements before we sign out early bird registration the deadline is coming up you need to sign up before October 5th which means that October 4th is the last day for early bird registration we also have a whole series of sessions related to law that are coming up at Passport and I see that Rhonda is trying to share her screen but it's taken a minute but I'll make sure to include that in the list of materials that I share out and let me just really quick dump this link in the chat so you can grab it for Passport and as I've mentioned a bunch of different times I will include everything as much as I can include in the with the recording that will go out in an email to the general address that you registered at the end of this 24 hours after the end of the session so thank you for coming and have a great day