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87-420 PS 2003

REAUTHORIZATION OF THE 

ADVISORY COUNCIL ON HISTORIC PRESERVATION AND 

PRIVATE PROPERTY PROTECTION UNDER THE NATIONAL 

HISTORIC PRESERVATION 

ACT

OVERSIGHT HEARING

BEFORE THE

SUBCOMMITTEE ON NATIONAL PARKS, RECREATION, 

AND PUBLIC LANDS

OF THE

COMMITTEE ON RESOURCES 

U.S. HOUSE OF REPRESENTATIVES

ONE HUNDRED EIGHTH CONGRESS

FIRST SESSION

June 3, 2003

Serial No. 108-24

Printed for the use of the Committee on Resources

(

Available via the World Wide Web: http://www.access.gpo.gov/congress/house 

or 

Committee address: http://resourcescommittee.house.gov 

(II)

COMMITTEE ON RESOURCES 

RICHARD W. POMBO, California, Chairman 

NICK J. RAHALL II, West Virginia, Ranking Democrat Member

Don Young, Alaska 

W.J. ‘‘Billy’’ Tauzin, Louisiana 

Jim Saxton, New Jersey 

Elton Gallegly, California 

John J. Duncan, Jr., Tennessee 

Wayne T. Gilchrest, Maryland 

Ken Calvert, California 

Scott McInnis, Colorado 

Barbara Cubin, Wyoming 

George Radanovich, California 

Walter B. Jones, Jr., North Carolina 

Chris Cannon, Utah 

John E. Peterson, Pennsylvania 

Jim Gibbons, Nevada, 

Vice Chairman 

Mark E. Souder, Indiana 

Greg Walden, Oregon 

Thomas G. Tancredo, Colorado 

J.D. Hayworth, Arizona 

Tom Osborne, Nebraska 

Jeff Flake, Arizona 

Dennis R. Rehberg, Montana 

Rick Renzi, Arizona 

Tom Cole, Oklahoma 

Stevan Pearce, New Mexico 

Rob Bishop, Utah 

Devin Nunes, California 

VACANCY 

Dale E. Kildee, Michigan 

Eni F.H. Faleomavaega, American Samoa 

Neil Abercrombie, Hawaii 

Solomon P. Ortiz, Texas 

Frank Pallone, Jr., New Jersey 

Calvin M. Dooley, California 

Donna M. Christensen, Virgin Islands 

Ron Kind, Wisconsin 

Jay Inslee, Washington 

Grace F. Napolitano, California 

Tom Udall, New Mexico 

Mark Udall, Colorado 

Anı ́bal Acevedo-Vila ́, Puerto Rico 

Brad Carson, Oklahoma 

Rau ́l M. Grijalva, Arizona 

Dennis A. Cardoza, California 

Madeleine Z. Bordallo, Guam 

George Miller, California 

Edward J. Markey, Massachusetts 

Rube ́n Hinojosa, Texas 

Ciro D. Rodriguez, Texas 

Joe Baca, California 

Betty McCollum, Minnesota

Steven J. Ding, Chief of Staff 

Lisa Pittman, Chief Counsel 

James H. Zoia, Democrat Staff Director 

Jeffrey P. Petrich, Democrat Chief Counsel 

(III)

SUBCOMMITTEE ON NATIONAL PARKS, RECREATION, 

AND PUBLIC LANDS 

GEORGE P. RADANOVICH, California, Chairman 

DONNA M. CHRISTENSEN, Virgin Islands, Ranking Democrat Member

Elton Gallegly, California 

John J. Duncan, Jr., Tennessee 

Wayne T. Gilchrest, Maryland 

Barbara Cubin, Wyoming 

Walter B. Jones, Jr., North Carolina 

Chris Cannon, Utah 

John E. Peterson, Pennsylvania 

Jim Gibbons, Nevada 

Mark E. Souder, Indiana 

Rob Bishop, Utah 

Richard W. Pombo, California, ex officio 

Dale E. Kildee, Michigan 

Ron Kind, Wisconsin 

Tom Udall, New Mexico 

Mark Udall, Colorado 

Anı ́bal Acevedo-Vila ́, Puerto Rico 

Rau ́l M. Grijalva, Arizona 

Dennis A. Cardoza, California 

Madeleine Z. Bordallo, Guam 

Nick J. Rahall II, West Virginia, ex officio 

(V)

C O N T E N T S 

Page

Hearing held on June 3, 2003 ................................................................................. 1

Statement of Members: 

Christensen, Hon. Donna M., a Delegate to Congress from the Virgin 

Islands ............................................................................................................ 3

Radanovich, Hon. George P., a Representative in Congress from the State 

of California ................................................................................................... 1

Prepared statement of ............................................................................... 2

Statement of Witnesses: 

Bisno, Robert, Owner, Lincoln Place Apartments, Venice, California ......... 20

Prepared statement of ............................................................................... 22

Nau, John L., III, Chairman, Advisory Council on Historic Preservation, 

Washington, DC ............................................................................................ 8

Prepared statement of ............................................................................... 9

Sanderson, Edward, President, National Conference of State Historic 

Preservation Officers, Washington, DC ...................................................... 14

Prepared statement of ............................................................................... 16

Tiller, De Teel Patterson, Acting Associate Director for Cultural 

Resources, National Park Service, U.S. Department of the Interior, 

Washington, DC ............................................................................................ 4

Prepared statement of ............................................................................... 6

(1)

OVERSIGHT HEARING ON THE REAUTHORIZATION OF THE ADVISORY COUNCIL ON 

HISTORIC PRESERVATION AND PRIVATE 

PROPERTY PROTECTION UNDER THE 

NATIONAL HISTORIC PRESERVATION ACT 

Tuesday, June 3, 2003

U.S. House of Representatives 

Subcommittee on National Parks, Recreation, and Public Lands 

Committee on Resources 

Washington, DC 

The Subcommittee met, pursuant to call, at 2 p.m., in room 1334, 

Longworth House Office Building, Hon. George Radanovich 

[Chairman of the Subcommittee] presiding. 

Mr. RADANOVICH. Good afternoon. The Subcommittee on 

National Parks, Recreation, and Public Lands will come to order. 

STATEMENT OF THE HON. GEORGE RADANOVICH, A 

REPRESENTATIVE IN CONGRESS FROM THE STATE OF 

CALIFORNIA 

This afternoon the Subcommittee on National Parks, Recreation, 

and Public Lands will conduct an oversight hearing on private 

property protection under the National Historic Preservation Act 

and the reauthorization of the Advisory Council on Historic 

Preservation. 

As you are aware, the Subcommittee has jurisdiction over the 

preservation of historic ruins and objects of interest on the public 

domain and other historic preservation programs and activities, including national monuments, historic sites and programs for international cooperation in the field of historic preservation. 

I think it is important to take a moment here right now to clarify 

for those in the audience, as well as those listening via the Committee’s audio system, what my reasoning is for calling this hearing today. 

Recently, a case was brought to my attention where an application for eligibility was submitted by a third party for an apartment 

complex in Los Angeles, California. What concerns me with this 

case is two-fold. First, the owner of the apartment complex furiously objected to the application, yet it appears his pleas were 

largely ignored by the State historic preservation office; and, 

2

second, what will be the effects from the case on the integrity of 

the National Historic Preservation Act. 

Especially important to note is, in this case, was that before the 

application was even considered and nominated by the SHPO for 

eligibility, it was rejected by the city planning department, the 

planning commission, the city’s cultural heritage commission, the 

city council, for not meeting the criteria for local significance. 

Today, I am very concerned that this important Act, one that I 

support very much, will now become a tool used by preservationists 

and activists in State historic preservation offices to halt development or redevelopment of communities across our country. 

For the record, I have always seen the National Historic Preservation Act and the Advisory Council as success stories because of 

the cooperative nature promoted between the Federal and State 

governments, preservationists and owners of historic property. 

I believe John Nau, the chairman of the Advisory Council on Historic Preservation, who will testify today is a great example of 

someone who has taken personal responsibility to develop historic 

tourism as an economic development engine, thus giving historic 

preservation an economic basis. 

I believe that we are all stewards of our past, or we should be, 

and that preservation of our cultural and historic resources is our 

collective responsibility as a society. In fact, I have long promoted 

a designated historic district in my hometown of Mariposa, California. 

What I would like to understand today is, is the situation I 

briefly outlined—an anomaly or is there a dangerous trend developing across the country where third parties, such as apartment 

tenants, are taking advantage of the Act and its effect on local development to serve their own purposes? Consequently, should this 

Committee take action to prevent further abuse of the Act? 

I look forward to the testimony of all of our witnesses today, 

especially Mr. Robert Bisno, the property owner in Los Angeles, 

who I referred to in my statement, and my good friend, Mr. John 

Nau. 

At this time, I will yield to Mrs. Christensen, our Ranking 

Member for your opening statement. Donna. 

[The prepared statement of Mr. Radanovich follows:]

Statement of The Honorable George Radanovich, Chairman,

Subcommittee on National Parks, Recreation and Public lands 

Good afternoon. The hearing will come to order. 

This afternoon the Subcommittee on National Parks, Recreation and Public Lands 

will conduct an oversight hearing on private property protection under the National 

Historic Preservation Act and the reauthorization of the Advisory Council on Historic Preservation. As you are aware, the Subcommittee has jurisdiction over the 

preservation of prehistoric ruins and objects of interest on the public domain and 

other historic preservation programs and activities, including national monuments, 

historic sites and programs for international cooperation in the field of historic preservation. 

I think it is important that I take a moment to clarify for those in the audience 

as well as those listening via the Committee’s audio system what my reasoning is 

for calling this hearing today. 

Recently, a case was brought to my attention where an application for eligibility 

was submitted by a third party for an apartment complex in Los Angeles, California. What concerns me with this case is twofold: First, the owner of the apartment complex furiously objected to the application, yet it appears his pleas were 

largely ignored by the State Historic Preservation Office, and second, what will be 

3

the effects from this case on the integrity of the National Historic Preservation Act. 

Especially important to note in this case was that before the application was even 

considered and nominated by the SHPO for eligibility, it was rejected by the city 

planning department, the planning commission, the city’s cultural heritage commission and the city council for not meeting the criteria for local significance. 

Today, I am very concerned that this important Act will now become a tool used 

by preservationists and activists in State Historic Preservation Offices to halt development or redevelopment of communities across our country. 

For the record, I have always seen the National Historic Preservation Act and the 

Advisory Council as success stories because of the cooperative nature promoted between the Federal and State governments, preservationists, and owners of historic 

property. I believe John Nau, Chairman of the Advisory Council for Historic Preservation, who will testify today, is a good example of someone who has taken personal 

responsibility to develop historic tourism as an economic development engine, thus 

giving historic preservation an economic basis. I believe that we are all stewards 

of our past, and that preservation of our cultural and historic resources is our collective responsibility as a society. In fact, I have long promoted a designated historic 

district in my hometown of Mariposa, California, which includes the John C. Fremont adobe. 

What I would like to understand today is, is the situation I briefly outlined an 

anomaly, or is there a dangerous trend developing across the country where third 

parties, such as apartment tenants, are taking advantage of the Act and its effects 

on local development to serve their own purposes. Consequently, should this Committee take action to prevent further abuse of the Act. 

I look forward to the testimony of all of our witnesses today, especially Mr. Robert 

Bisno, the property owner I referred to in my statement. 

At this time, I yield to Ms. Christensen, our Ranking Member, for her opening 

statement. 

STATEMENT OF THE HON. DONNA M. CHRISTENSEN, A 

DELEGATE TO CONGRESS FROM THE TERRITORY OF THE 

VIRGIN ISLANDS 

Mrs. CHRISTENSEN. Thank you, Mr. Chairman. 

For nearly 40 years, the Historic Preservation Act has provided 

the backbone of a national strategy for the preservation of valuable 

pieces of American history. Under the Act, the National Park 

Service, the National Council on Historic Preservation, State historic preservation officers, local preservation organizations and private individuals worked together in a cooperative process to identify, protect and preserve significant American treasures. 

Importantly, this is not a Federally directed system. Nominations 

come from individuals and from local organizations. These nominations are then evaluated by the State historic preservation officers 

appointed at the State level who are given broad latitude regarding 

whether such nominations merit consideration at the Federal level 

or not. 

Flexibility, grassroots involvement and careful professional consideration of nominations have been hallmarks of this process. Obviously, the National Council on Historic Preservation plays a critical role in ensuring that no Federal action will unnecessarily impact historic property. 

Authorization of funding of the Council expires at the end of the 

2005 fiscal year. In our view, the Council has always done its job 

well, but we look forward to hearing from our witnesses regarding 

any improvements to existing law that might help the Council perform its valuable functions more effectively. 

However, we find the inclusion of private property rights on the 

Subcommittee agenda today somewhat puzzling. Nothing in the 

Historic Preservation Act prevents the owner of private property 

4

listed in the Register or property deemed eligible for such listing 

from doing as he or she wishes with that property. 

A privately owned building listed in the National Register may 

even be demolished by the owner at any time under Federal law. 

Furthermore, private property may not be included in the Register 

without the consent of the owner. 

Given these circumstances, it is unclear how the Act might affect 

private property rights, but we look forward to any insight that any 

of our witnesses may be able to provide in this regard. 

Finally, Mr. Chairman, we would like to thank our witnesses for 

their time and effort to be here today. We understand that each of 

them are here because they value historic preservation, and we 

look forward to their testimony. 

Mr. RADANOVICH. Thank you. 

Is there any other member wishing to make an opening statement? Thank you very much. Thank you, Donna. 

I want to welcome our panel here today. If the folks would please 

come forward and take their position. I want to welcome Mr. 

deTeel Patterson Tiller, Acting Associate Director For Cultural Resources at National Park Service in Washington, D.C.; Mr. John 

Nau, the Chairman of the Advisory Council on Historic Preservation here in Washington, D.C.; Mr. Edward Sanderson, President 

of the National Conference of State Historic Preservation Officers, 

Washington, D.C.; and Mr. Robert Bisno, the owner of Lincoln 

Place Apartments in Venice, California. 

Gentlemen, welcome to the Committee. I appreciate the fact that 

you are here today. 

The way we will do this is allow every one of you to deliver your 

testimony for 5 minutes. If that is a little longer than your opening 

statement or the written statement or the text statement that you 

have, please know that that will be submitted to the record and 

will be entered just as well as your voice comments. 

So if you could keep your comments as close to 5 minutes as possible, it would be much appreciated. It would help the hearing to 

move on a little bit quicker. 

The lights in front of you, they run just like traffic lights. Red 

means stop, yellow means slow down, and green means go. 

Mr. RADANOVICH. So welcome, Mr. Tiller. If you would like to 

begin, and then we will work right on down. Then we will open up. 

STATEMENT OF DeTEEL PATTERSON TILLER, ACTING 

ASSOCIATE DIRECTOR FOR CULTURAL RESOURCES, 

NATIONAL PARK SERVICE, WASHINGTON, D.C. 

Mr. TILLER. Mr. Chairman, thank you for the opportunity to provide the Committee a brief report on America’s national historic 

preservation program authorized under the National Historic Preservation Act and to provide support for the reauthorization of the 

Advisory Council on Historic Preservation under the same Act. 

In the interest of brevity, I will summarize my full report already 

submitted to the Committee. 

Thirty-seven years ago, a Special Committee on Historic Preservation of the U.S. Conference of Mayors recommended that our Nation adopt a public policy in support of the preservation and protection of our Nation’s significant historic places for the benefit of 

5

future generations. Out of that recommendation Congress pass the 

National Historic Preservation Act of 1996. The Act set in motion 

a means for all our citizens, with the assistance of their Federal 

Government, to reduce the loss of this Nation’s invaluable heritage. 

I am pleased to report that the nearly 4-decade-old Act remains 

healthy and vigorous. The National Historic Preservation Act created some of the Nation’s most widely recognized, successful and 

iconic national institutions like the National Register of Historic 

Places. 

The Register now lists over 1.2 million properties and 76,000 listings nominated by our citizens from Maine to Hawaii. There is 

hardly a city or town in this great Nation that is without a listed 

property. America’s National Register is unique in the world as 

that process by which the properties are nominated is bottom up. 

The overwhelming number of nominations are submitted by citizens, local governments, town councils and State governments. 

Our National Register is unique also in its recognition of local 

significance. No other national system does that. Fully two-thirds 

of the property listed in America’s national register are designated 

for their significance to local citizens and local history. This policy 

was borne of the congressional vision that local citizens and their 

local and State governments knew better those places important to 

preserve for the next generations and not the Federal Government. 

We are also singular among nations in that the listing of the 

National Register confers no restrictions by the Federal Government on a property owner’s decision to dispose of that historic place 

in any manner he or she sees fits, except in those rare circumstances where the owner has accepted Federal funding for the 

preservation of the property or received Federal tax credits. 

In cases where a property has been listed or determined to be eligible for listing in the National Register, a private property owner 

is under no obligation to the Federal Government to protect or preserve the historic property. 

The National Historic Preservation Act also created a remarkable national partnership network, one in which States, tribal and 

local governments play decisive and, in most ways, coequal roles to 

the Federal Government. The Federal Government, acting through 

the National Park Service, sets professional standards, provides 

technical assistance and training and provides oversight and approval roles where a Federal hand is warranted and appropriate. 

But the on-the-ground work of the national preservation program 

directly involves citizen input and is delivered principally to them 

through State and local governments and, most recently, through 

tribal governments. It is this complex partnership network to 

which can be credited the national program’s great success. 

I would now like to turn my comments to the reauthorization of 

the Advisory Council on Historic Preservation. The 1966 National 

Historic Preservation Act also created the Advisory Council as part 

of this unique national partnership. The Department of the Interior 

and the Advisory Council have a long and close working relationship. Together with our partners in State, tribal and local governments, we have enhanced historic preservation efforts across the 

Nation for more than 30 years. 

6

The Department strongly supports reauthorization of the Council. The Council serves a critical national role in the national historic preservation program and remains a vital part of this success 

story in America. 

Mr. Chairman, this concludes my remarks. I will be more than 

pleased to answer any questions you or the Committee members 

have. 

Mr. RADANOVICH. Thank you very much, Mr. Tiller. 

[The prepared statement of Mr. Tiller follows:]

Statement of De Teel Patterson Tiller, Acting Associate Director for 

Cultural Resources, National Park Service, U.S. Department of the Interior 

Mr. Chairman, thank you for the opportunity to provide the committee with a 

brief report on America’s national historic preservation program authorized under 

the National Historic Preservation Act of 1966 and to provide support for the reauthorization of the Advisory Council on Historic Preservation under that same act. 

Thirty-seven years ago, a Special Committee on Historic Preservation of the U.S. 

Conference of Mayors recommended that the United States adopt a public policy in 

support of the preservation and protection of our country’s significant historic places 

for future generations of Americans. In that report, the Special Committee also 

made broad recommendations on the pressing need for this nation to establish a 

strong Federal historic preservation program. 

In response to the Conference of Mayors Report, Congress passed the National 

Historic Preservation Act of 1966 establishing a national historic preservation program. The National Historic Preservation Act (NHPA) set in motion a process to reduce the loss of much of this nation’s invaluable heritage and established the means 

for the Federal Government to protect and preserve our nation’s historic places in 

a unique partnership that remains effective to this day. 

We are pleased to report that the nearly four-decade-old act and vision it created, 

remains healthy and rigorous. The 37-year history of this important national program has shown that the Conference of Mayors was correct—economic development 

can go hand-in-hand with preserving America’s heritage. 

The NHPA created some of our most widely recognized national institutions like 

the National Register of Historic Places. The National Register now includes over 

1.2 million properties in 76,000 listings nominated by citizens from Maine to Hawaii, Alaska to Puerto Rico, and in American Samoa and the U.S. Virgin Islands. 

There is hardly a city or town without a property listed on the National Register 

of Historic Places. Last fiscal year alone, 40,141 properties were listed in 1,454 

nominations representing every state in the country. 

The National Register is unique in its recognition of ‘‘local historic significance.’’ 

No other national system does this. Today, two thirds (66%) of the properties listed 

on our National Register are designated for their significance to local citizens and 

local history. That policy is based on a vision borne almost 40 years ago that local 

citizens and their local and state governments know best those places important to 

preserve a unique sense of history and community for future generations—and not 

the Federal Government. 

Listing in the National Register does not restrict a property owner from disposing 

of the historic place in any manner he or she sees fit except, in those rare circumstances, when the owner has accepted Federal funding for the property. In cases 

where a property has been listed or determined to be eligible for listing in the 

National Register, a private property owner is under no obligation to protect the historic property and it can be torn down by its owner without Federal Government 

intervention. 

The NHPA has created also a remarkable national partnership network, one in 

which state, tribal, and local governments play decisive and, in most ways, co-equal 

public roles to the Federal Government. The Federal Government, acting through 

the National Park Service, sets professional and performance standards, provides 

technical assistance, advice, and training, and provides oversight and approval 

roles. But the on-the-ground work of the national preservation program directly involves citizen input and is delivered principally to our citizens through state and 

local governments, and more recently, tribal governments. It is this complex partnership network to which can be credited the national program’s great success. 

The NHPA created an effective national ‘‘cost-sharing’’ approach where the 

Federal Government provides a share of the financial resources needed to local, tribal, and state governments, who, in turn, provide a portion as well while the benefits 

7

are shared by citizens. A 1976 amendment to the NHPA created the Historic Preservation Fund so that revenues from Outer Continental Shelf extraction could pay the 

Federal share in the protection of our nation’s prehistoric and historic treasures. 

The Historic Preservation Fund is highly cost-effective and remains an important 

cornerstone in this national program. The fund has always had strong bipartisan 

support and has been reauthorized three times since its creation. 

State governor-appointed State Historic Preservation Officers in 56 States and 

Territories assist citizens, units of local government, and public and private organizations to carry out their part of the national preservation program. Activities include locating and documenting prehistoric and historic properties, assisting citizens 

to nominate properties to the National Register, assisting local governments and 

Federal agencies in meeting historic preservation statutes, and assessing the impact 

of Federal projects on historic places. Last year, states reviewed over 100,000 

Federal projects to minimize their impacts on our nation’s heritage and historic 

places. The work of state governments in this program is invaluable. 

The Historic Preservation Tax Incentives Program, jointly administered by the 

National Park Service and State Historic Preservation Officers, is the nation’s largest program to stimulate the preservation and reuse of income-producing historic 

properties. Since its inception in 1976, it has generated over $28 billion in historic 

preservation activity; in Fiscal Year 2002 alone, a record-setting $3.2 billion in private investment was leveraged using Federal historic preservation tax credits rehabilitating over 1,200 historic properties listed on the National Register and creating 

over 50,000 jobs and 14,000 housing units. 

Local governments received a formal role in the national preservation program in 

the 1980 amendments to the NHPA. These important partners assist local citizens 

to preserve their neighborhoods and local historic district values, to work with local 

schools to ensure the next generation recognizes and values their local history, and 

to work hand-in-hand with state governments to ensure the national historic preservation program meets local needs in the best manner possible. 

The 1992 amendments to the law brought a more inclusive and formal role for 

tribal governments in the national program, and we are pleased to report that as 

of today, 37 tribal governments have formally joined the national program. Tribal 

participation in the national program has brought an energy and different way of 

thinking about heritage, history, preservation and sense of place. 

The nation’s understanding of what is worthy of preservation has also changed 

since the 1960’s. As an example, where once we focused on the grand houses of the 

Founding Fathers, battlefields, and homes of the rich and famous, we now include 

the record of everyday lives, farmsteads, vernacular architecture, and, the recent 

past. Now that the 20th century itself is history, the field of historic places worthy 

of preservation now gives way to ‘‘modern’’ American stories like World War II, Rock 

and Roll, the Cold War, and the Civil Rights struggle. As the nation changes in diversity and complexity, we must ensure that the history of all Americans is identified, honored, and preserved. Fortunately, the law passed in 1966 was flexible 

enough to accommodate a nation’s changing sense of what is historic and worthy 

of preservation. 

The 1966 NHPA also created the Advisory Council on Historic Preservation as 

part of this national partnership. An independent Federal agency dedicated to historic preservation, the Council is the major policy advisor to Federal agencies on historic preservation. The Council is comprised of 20 members, including Federal agencies, private citizens and experts in the field of historic preservation. Its mission is 

to advocate full consideration of historic values in Federal decision making; to oversee the Section 106 process which requires Federal agencies to consider the impact 

of their programs and projects on places of historic value; to review Federal programs and policies to further preservation efforts; to provide training, guidance, and 

information to the public and Federal entities; and to recommend administrative 

and legislative improvements for protecting the nation’s heritage. 

For more than 30 years, the Department of the Interior and the Advisory Council 

have worked together to enhance historic preservation efforts across the nation. The 

Department looks forward to continuing this relationship with the Council as we implement one of the most far-reaching and important Federal policies on historic 

preservation in the past 20 years. The Department supports reauthorization of the 

Advisory Council on Historic Preservation. 

On March 3, President Bush launched the Preserve America Initiative by the 

signing of Executive Order 13281. This Executive Order focuses on the sound public 

policy that historic preservation makes good economic sense. The Federal Government can play an important role in assisting local and state governments to realize 

this potential through such efforts as heritage tourism, which can bring economic 

benefits to communities throughout the nation. 

8

Mr. Chairman, this concludes my prepared remarks. I would be pleased to answer 

any questions you or members of the committee may have. 

Mr. RADANOVICH. Mr. John Nau, welcome to the Subcommittee. 

If you would like to begin your testimony, that would be great. 

STATEMENT OF JOHN NAU, CHAIRMAN, ADVISORY COUNCIL 

ON HISTORIC PRESERVATION, WASHINGTON, D.C. 

Mr. NAU. Thank you, Mr. Chairman. 

Chairman Radanovich and members of the Subcommittee, it is a 

pleasure to testify before you this afternoon. I thank you for this 

opportunity to discuss the vital importance of the Federal Historic 

Preservation Program to our Nation and the essential role of the 

Advisory Council on Historic Preservation in that effort. 

The National Historic Preservation Act, which created the 

ACHP, is a strong demonstration of the collective wisdom of the 

U.S. Congress in three vital regards: the importance of preserving 

America’s heritage; the necessity of building upon the foundation 

of our past to create a better future for the Nation; and the 

strength of linking the Federal, State and local efforts in partnerships with the private sector in order to accomplish these goals. 

The ACHP is actively involved in pursuing these goals on behalf 

of the Congress, the President, and, most importantly, the American people. It has been actively involved in changing itself to better meet these needs through wise stewardship of the Federal Government’s historic assets that can stimulate economic development 

through activities such as heritage tourism. 

To this end, the ACHP has focused its energies on reestablishing 

the leadership role that the framers of the 1966 Act envisioned. As 

part of that effort, on March 2nd, 2003, President Bush signed Executive Order 13287, Preserve America. 

The same day, our First Lady, Laura Bush, announced the Administration’s Preserve America Initiative, a governmentwide effort 

to recognize and celebrate our heritage. This step will guide our efforts into the foreseeable future. The underpinnings of the Preserve 

America Initiative are found in the policy statement of the Executive Order. 

This policy also articulates the approach of the ACHP’s work 

over the coming years. I have taken steps to recast the ACHP to 

more efficiently accomplish its mission in accordance with this Executive Order. 

We are leveraging our resources and, most importantly, building 

partnerships to promote the benefits of preservation across our Nation. We know that the Federal Government works best when it 

works in partnership with States, counties, communities, tribes, in 

short, when it works in partnership with the constituents that you 

all represent. 

The Preserve America Initiative promotes such activity, and the 

Executive Order directs Federal agencies to actively engage in 

these partnerships. Our job is to encourage the integration of the 

historic resources that are managed at the Federal, State and local 

level with community development opportunities. We are building 

successful partnerships with a number of other Federal agencies, 

9

and it is our commitment that we will continue to build on those 

relationships to maximize our efficiency and effectiveness. 

Might I add that, as a businessman, I would not be here if I 

didn’t believe on a clear return on this investment; and in my experience as Chairman of the Texas Historical Commission, I know 

that this approach will work. I have seen it work, and I have experience in making it work. I know with your support we can make 

it work on a national basis. 

We are before the Committee today because your assistance is 

essential to allow us to realize our expanded role. ACHP members 

have carefully examined our current legislative authorities, which 

include the administration of Section 106. Section 106 is a very important and significant responsibility. However, we believe our mission is broader and have adopted several proposed changes for 

which we seek your support. 

These changes are: amend the current time limit and authorization and replace it with permanent appropriations authorization; 

authorize the President to add the heads of three additional Federal agencies to our membership; provide us with the authority and 

direction to work cooperatively with Federal funding agencies to assist them in using their existing grants programs more effectively 

for advancing the purpose of the NHPA; and authorize several 

technical amendments that would allow us to function more rationally and efficiently. 

You have also asked us in our appearance today to discuss our 

views on the adequacy of protections for private property owners 

during the process of evaluating and listing properties on the 

National Register. 

The Register is the keystone of the National Historic Preservation Program. In my judgment, the overall process works well on 

the national level, especially in regard to the Section 106 process 

that we oversee. 

I believe that as a function of Federal law and Federal administrative practice there are adequate protections for the rights of private property owners within this process. I do, however, share concerns with some unintended consequences that the National Register process may have at State and local levels. 

A determination of eligibility for nomination to the National Register should not, by itself, automatically trigger or link to a State 

or local review process without due process and additional protections for private property owner’s rights. 

I look forward to the questions and having an opportunity to expand on my comments. Thank you, Mr. Chairman. 

Mr. RADANOVICH. Thank you, Mr. Nau. 

[The prepared statement of Mr. Nau follows:]

Statement of John L. Nau, III, Chairman,

Advisory Council on Historic Preservation 

SUMMARY STATEMENT 

An independent Federal agency, the Advisory Council on Historic Preservation 

(ACHP) promotes historic preservation nationally by providing a forum for influencing Federal activities, programs, and policies that impact historic properties. In 

furtherance of this objective, the ACHP seeks reauthorization of its appropriations 

in accordance with the provisions of the National Historic Preservation Act of 1966, 

as amended (16 U.S.C. 470 et seq.) (NHPA). 

10

The ACHP offers amendments to its authorities that we believe will strengthen 

our ability to meet our responsibilities under NHPA, and to provide leadership and 

coordination in the Federal historic preservation program. As part of that responsibility, and as requested by the Subcommittee, the ACHP also provides its views on 

the adequacy of protections for private property owners in the process of evaluating 

properties for inclusion in the National Register of Historic Places. 

BACKGROUND 

The ACHP was established by Title II of the NHPA. NHPA charges the ACHP 

with advising the President and the Congress on historic preservation matters and 

entrusts the ACHP with the unique mission of advancing historic preservation within the Federal Government and the National Historic Preservation Program. In 

Fiscal Year 2002, the ACHP adopted the following mission statement: 

The Advisory Council on Historic Preservation promotes the preservation, 

enhancement, and productive use of our Nation’s historic resources, and 

advises the President and Congress on national historic preservation policy. 

The ACHP’s authority and responsibilities are principally derived from NHPA. 

General duties of the ACHP are detailed in Section 202 (16 U.S.C. 470j) and include: • advising the President and Congress on matters relating to historic preservation; • encouraging public interest and participation in historic preservation; 

• recommending policy and tax studies as they affect historic preservation; 

• advising State and local governments on historic preservation legislation; 

• encouraging training and education in historic preservation; 

• reviewing Federal policies and programs and recommending improvements; and 

• informing and educating others about the ACHP’s activities. 

Under Section 106 of NHPA (16 U.S.C. 470f), the ACHP reviews Federal actions 

affecting historic properties to ensure that historic preservation needs are considered and balanced with Federal project requirements. It achieves this balance 

through the ‘‘Section 106 review process,’’ which applies whenever a Federal action 

has the potential to impact historic properties. As administered by the ACHP, the 

process guarantees that State and local governments, Indian tribes, businesses and 

organizations, and private citizens will have an effective opportunity to participate 

in Federal project planning when historic properties they value may be affected. 

Under Section 211 of NHPA (16 U.S.C. 470s) the ACHP is granted rulemaking 

authority for Section 106. The ACHP also has consultative and other responsibilities 

under Sections 101, 110, 111, 203, and 214 of NHPA, and in accordance with the 

National Environmental Policy Act (42 U.S.C. 4321 et seq.) is considered an agency 

with ‘‘special expertise’’ to comment on environmental impacts involving historic 

properties and other cultural resources. 

The ACHP plays a pivotal role in the National Historic Preservation Program. 

Founded as a unique partnership among Federal, State, and local governments, Indian tribes, and the public to advance the preservation of America’s heritage while 

recognizing contemporary needs, the partnership has matured and expanded over 

time. The Secretary of the Interior and the ACHP have distinct but complementary 

responsibilities for managing the National Historic Preservation Program. The Secretary, acting through the Director of the National Park Service, maintains the national inventory of historic properties, sets standards for historic preservation, administers financial assistance and programs for tribal, State, and local participation, 

and provides technical preservation assistance. 

The ACHP also plays a key role in shaping historic preservation policy and programs at the highest levels of the Administration. It coordinates the national program, assisting Federal agencies in meeting their preservation responsibilities. 

Through its administration of Section 106, the ACHP works with Federal agencies, 

States, tribes, local governments, applicants for Federal assistance, and other affected parties to ensure that their interests are considered in the process. It helps 

parties reach agreement on measures to avoid or resolve conflicts that may arise 

between development needs and preservation objectives, including mitigation of 

harmful impacts. 

The ACHP is uniquely suited to its task. As an independent agency, it brings together through its membership Federal agency heads, representatives of State and 

local governments, historic preservation leaders and experts, Native American representatives, and private citizens to shape national policies and programs dealing 

with historic preservation. The ACHP’s diverse membership is reflected in its efforts 

to seek sensible, cost-effective ways to mesh preservation goals with other public 

needs. Unlike other Federal agencies or private preservation organizations, the 

ACHP incorporates a variety of interests and viewpoints in fulfilling its statutory 

11

duties, broadly reflecting the public interest. Recommended solutions are reached 

that reflect both the impacts on irreplaceable historic properties and the needs of 

today’s society. 

New Directions. Since assuming the Chairmanship in November 2002, I have 

tried to ensure that the ACHP takes the leadership role envisioned for it in NHPA. 

NHPA established a national policy to ‘‘foster conditions under which our modern 

society and our prehistoric and historic resources can exist in productive harmony 

and fulfill the social, economic and other requirements of present and future generations.’’ Among other things, the statute directed Federal agencies to foster conditions 

that help attain the national goal of historic preservation; to act as faithful stewards 

of Federally owned, administered, or controlled historic resources for present and future generations; and to offer maximum encouragement and assistance to other public and private preservation efforts through a variety of means. 

In creating the ACHP, Congress recognized the value of having an independent 

entity to provide advice, coordination, and oversight of NHPA’s implementation by 

Federal agencies. The ACHP remains the only Federal entity created solely to address historic preservation issues, and helps to bridge differences in this area among 

Federal agencies, and between the Federal Government and States, Indian tribes, 

local governments, and citizens. While the administration of the historic preservation review process established by Section 106 of NHPA is very important and a significant ACHP responsibility, we believe that the ACHP’s mission is broader than 

simply managing that process. 

With the new direction, the ACHP members are committed to promoting the preservation and appreciation of historic properties across the Nation by undertaking 

new initiatives that include: 

• developing an Executive order (Executive Order 13287, ‘‘Preserve America,’’ 

signed by the President March 3, 2003) to promote the benefits of preservation, 

to improve Federal stewardship of historic properties, and to foster recognition 

of such properties as national assets to be used for economic, educational, and 

other purposes; 

• creating an initiative for the White House (‘‘Preserve America,’’ announced by 

First Lady Laura Bush March 3, 2003) to stimulate creative partnerships 

among all levels of government and the private sector to preserve and actively 

use historic resources to stimulate a better appreciation of America’s history 

and diversity; 

• using Council meetings to learn from local government and citizens how the 

Federal Government can effectively participate in local heritage tourism initiatives and promote these strategies to Federal agencies and tourism professionals; 

• effectively communicating its mission and activities to its stakeholders as well 

as the general public; 

• pursuing partnerships with Federal agencies to streamline and increase the effectiveness of the Federal historic preservation review process; and 

• improving the Native American program, which the ACHP has identified as a 

critical element in the implementation of an effective Federal historic preservation program and review process. 

The ACHP’s 20 statutorily designated members address policy issues, direct program initiatives, and make recommendations regarding historic preservation to the 

President, Congress, and heads of other Federal agencies. The Council members 

meet four times per year to conduct business, holding two meetings in Washington, 

D.C., and two in other communities where relevant preservation issues can be explored. 

In 2002 we reorganized the ACHP membership and staff to expand the members’ 

role and to enhance work efficiencies as well as member-staff interaction. To best 

use the talents and energy of the 20 Council members and ensure that they fully 

participate in advancing the ACHP’s goals and programs, three member program 

committees were created: Federal Agency Programs; Preservation Initiatives; and 

Communications, Education, and Outreach. 

In addition, we created an Executive Committee comprised of myself and the vice 

chairman of the ACHP and the chairman of each of the other committees to assist 

in the governance of the ACHP. Several times a year, we appoint panels of members 

to formulate comments on Section 106 cases. Member task forces and committees 

are also formed to pursue specific tasks, such as policy development or regulatory 

reform oversight. On average, three such subgroups are at work at any given time 

during the year. Each meets about five to six times in the course of its existence, 

is served by one to three staff members, and produces reports, comments, and policy 

recommendations. 

12

The staff carries out the day-to-day work of the ACHP and provides all support 

services for Council members. To reflect and support the work of the committees, 

the Executive Director reorganized the ACHP staff into three program offices to 

mirror the committee structure. Staff components are under the supervision of the 

Executive Director, who is based in the Washington, DC, office; there is also a small 

field office in Lakewood, Colorado. 

PROPOSED AMENDMENTS TO THE NATIONAL HISTORIC PRESERVATION 

ACT 

Background to Reauthorization. The ACHP has traditionally had its appropriations authorized on a multi-year cycle in Title II of NHPA (Section 212, 16 U.S.C. 

470t). The current cycle runs through Fiscal Year 2005 and authorizes $4 million 

annually. These funds are provided to support the programs and operations of the 

ACHP. Title II of NHPA also sets forth the general authorities and structure of the 

ACHP. 

For Fiscal Year 2004, the President’s budget seeks $4.1 million for the ACHP. Because this is over the authorization limit, the Executive Office of the President directed the ACHP to propose any legislation required to modify its authorization to 

be consistent with the President’s Budget. The ACHP is therefore seeking amendments to the authorizing legislation at this time. At its February and May 2003 

meetings, the ACHP endorsed an approach to the reauthorization issue. The approach addresses the immediate appropriations authority issue and also seeks 

amendments to the ACHP’s composition and authorities to better enable the ACHP 

to achieve its mission goals. The changes proposed by the ACHP are explained in 

this overview; specific statutory language will be provided to the Subcommittee at 

a later date. 

Appropriations Authorization. This section would amend the current time-limited 

authorization and replace it with a permanent appropriations authorization. When 

the ACHP was created in 1966, its functions were exclusively advisory and limited 

and the agency was lodged administratively in the Department of the Interior. Since 

then, the Congress has amended the NHPA to establish the ACHP as an independent Federal agency and give it a range of program authorities crucial to the 

success of the National Historic Preservation Program. 

Not unlike the Commission of Fine Arts (CFA) and the National Capital Planning 

Commission (NCPC), the ACHP now functions as a small but important Federal 

agency, carrying out both advisory and substantive program duties. Specific language creating a permanent appropriations authorization would draw upon the 

similar statutory authorities of the CFA and NCPC. No ceiling to the annual appropriations authorization would be included in the authorizing legislation, but rather 

the appropriate funding limits would be established through the annual appropriations process. 

Expansion of Membership. This section would expand the membership of the 

ACHP by directing the President to designate the heads of three additional Federal 

agencies as members of the ACHP. The ACHP has been aggressively pursuing partnerships with Federal agencies in recent years and has found the results to be 

greatly beneficial to meeting both Federal agency historic preservation responsibilities and the ACHP’s own mission goals. Experience has shown that these partnerships are fostered and enhanced by having the agency participate as a full-fledged 

member of the ACHP, giving it both a voice and a stake in the ACHP’s actions. The 

amendment would bring the total number of Federal ACHP members to nine and 

expand the ACHP membership to 23, an administratively manageable number that 

preserves the current majority of non–Federal members. A technical amendment to 

adjust quorum requirements would also be included. 

Authority and Direction to Improve Coordination with Federal Funding Agencies. 

This section would give the ACHP the authority and direction to work cooperatively 

with Federal funding agencies to assist them in determining appropriate uses of 

their existing grants programs for advancing the purposes of NHPA. For example, 

it is our experience that programs such as the Historic Preservation Fund (HPF) 

administered through the States by the Department of the Interior have the flexibility to provide matching seed money to a local non-profit organization to support 

a heritage tourism program. 

The ACHP would work with agencies and grant recipients to examine the effectiveness of existing grant programs, evaluate the adequacy of funding levels, and 

help the agencies determine whether changes in the programs would better meet 

preservation and other needs. Any recommendations would be developed in close cooperation with the Federal funding agencies themselves, many of whom sit as 

ACHP members, and with the States. The proposed amendment would also allow 

13

the ACHP to work cooperatively with Federal funding agencies in the administration of their grant programs. 

Technical Amendments. This section would provide four technical changes that 

would improve ACHP operations: 

1. Authorize the Governor, who is a presidentially appointed member of the 

ACHP, to designate a voting representative to participate in the ACHP activities in the Governor’s absence. Currently this authority is extended to Federal 

agencies and other organizational members. The amendment would recognize 

that the personal participation of a Governor cannot always be assumed, much 

like that of a Cabinet secretary. 

2. Authorize the ACHP to engage administrative support services from sources 

other than the Department of the Interior. The current law requires the 

ACHP’s administrative services to be provided by the Department of the Interior on a reimbursable basis. The amendment would authorize the ACHP to 

obtain any or all of those services from other Federal agencies or the private 

sector. The amendment would further the goals of the FAIR Act and improve 

ACHP efficiency by allowing the ACHP to obtain necessary services on the 

most beneficial terms. 

3. Clarify that the ACHP’s donation authority (16 U.S.C. 470m(g)) includes the 

ability of the ACHP to actively solicit such donations. 

4. Adjust the quorum requirements to accommodate expanded ACHP membership. 

VIEWS ON THE ADEQUACY OF PRIVATE PROPERTY PROTECTIONS IN THE 

NATIONAL REGISTER PROCESS 

The Committee has requested our views on the adequacy of protections for private 

property owners during the process for evaluating and registering properties for inclusion in the National Register of Historic Places. 

The National Register is the keystone of the National Historic Preservation Program. Through the professional application of objective criteria, a comprehensive 

listing of what is truly important in American history has been systematically compiled. The ACHP has direct experience with the National Register review and evaluation process through its administration of Section 106 of NHPA. As part of planning, unless properties are already listed in the National Register of Historic Places, 

determinations of eligibility for inclusion in the National Register must be made 

when such properties may be impacted by Federal or Federally assisted actions. 

We are unaware of problems with the protection of the rights of private property 

owners in the Section 106 process, since the determination is made for planning 

purposes only and for consideration by Federal agencies in taking into account the 

effects of their actions. 

We do believe it is important to distinguish between actual listing in the National 

Register, which may result in tax and other benefits and legally must include opportunities for property owners to object to such listing, and determinations of eligibility which are used for Federal planning. It is our understanding that in rare instances, some States’ legislation and some local ordinances include ‘‘eligibility for inclusion in the National Register’’ to trigger the State or local review process. It is 

our opinion that determinations of eligibility should not by themselves automatically 

trigger or link to a State or local review process without due process and additional 

protections of private property owners’ rights. It is also our understanding that 

State Historic Preservation Offices, such as Texas, are generally discouraging eligibility from being included in State laws and local ordinances to ensure adequate private property protections. 

States have varying approaches to dealing with the overall issue of notification 

and objection. Public notices, hearings, and other mechanisms are used when large 

historic districts are being considered. In the case of smaller districts or individual 

properties, written notification is provided. In Texas, notifications are sent out to 

the property owner, the county judge, the chief elected official, and the local preservation board chair of pending listings in the National Register with an opportunity 

for making their views known. In New York, if an objection to a nomination is received from an owner, that nomination does not proceed. An official representative 

from the New York State Historic Preservation Office will speak with the property 

owner and explain the effects of listing in the National Register. In many instances, 

owners will withdraw their objections once they understand the implication of such 

listing. 

In summary, we think that as a function of Federal law and Federal administrative practice there are generally adequate protections for the rights of private property owners in the National Register process. 

14

CONCLUSION 

The ACHP has reached a level of maturity as an independent Federal agency and 

as a key partner in the National Historic Preservation Program to warrant continued support from the Congress. We believe that reauthorization, coupled with periodic oversight by this Subcommittee and the annual review provided by the Appropriations Committees, is fully justified by our record of accomplishment. We hope 

that the Subcommittee will favorably consider this request, including our recommended technical amendments. 

We appreciate the Subcommittee’s interest in these issues, and thank you for your 

consideration and the opportunity to present our views. 

Mr. RADANOVICH. Next is Mr. Edward Sanderson. 

Mr. Sanderson, welcome to the Committee; and you may begin 

your testimony. 

STATEMENT OF EDWARD SANDERSON, PRESIDENT, NATIONAL 

CONFERENCE OF STATE HISTORIC PRESERVATION 

OFFICERS, WASHINGTON, D.C. 

Mr. SANDERSON. Thank you, Mr. Chairman. I am pleased to represent the National Conference of State Historic Preservation Officers at this hearing. 

As you know, the SHPOs are the State officials appointed by 

their Governors who actually carry out the National Historic Preservation Act on behalf of the Secretary of the Department of the 

Interior and the Advisory Council on Historic Preservation. 

You have asked us to address the reauthorization of the Advisory 

Council and to report to you on our sense of the status of the 

National Historic Preservation Act. 

In regard to the Advisory Council, our report is brief. We are 

wholehearted supporters of the Advisory Council. We think they 

are doing an excellent job. We strongly support their reauthorization with the modest expansion of authority that they have requested. 

In regards to the National Historic Preservation Act, we are 

pleased with the leadership that President Bush and Mrs. Bush 

have exercised just this year in establishing the Preserve America 

Program, and we believe that carries forward the work of the 

National Historic Preservation Act begun in 1966. 

As has been described, the Act created a program that is carried 

out by States on behalf of the Federal Government. Through the 

National Register of Historic Places the program records the history of America as a nation and as individual communities, and 

more than a million properties are currently so designated. 

Through the program, historic preservation works with local 

communities. Today more than 1,400 communities are working as 

partners with SHPOs. I expect more will choose to join with the 

Presidents new initiative. And perhaps most important, the program is putting historic sites back to work. It is saving them and 

putting them to productive use. 

For example, working with the Advisory Council, more than 

100,000 projects a year are successfully resolved at the State level 

to make sure that Federal projects avoid unnecessary impacts to 

historic properties; and working with the private sector since 1976, 

more than 30,000 private property owners have rehabilitated their 

historic properties and have enjoyed the incentives of Federal tax 

15

credits. Private investment through this program has totaled $29 

billion and has helped to create needed housing as well as ongoing 

creation of jobs and places of business. 

The National Historic Preservation Act has not succeeded in 

every area. I like to think of the preservation program as a highperformance car manufactured by the wise authorizing committees 

of Congress. But we can’t win the race without higher octane fuel 

provided by the appropriators. In the last 25 years, only one-third 

of the total authorized revenue in the Federal Historic Preservation 

Fund has ever been appropriated, and underfunding means that 

many areas still lack a reliable inventory of their historic resources. We can’t preserve America’s heritage if we don’t know 

where it is. Underfunding means that local landmarks in town centers need preservation grants. Save America’s Treasures Grants 

have successfully helped to restore some of our greatest national 

treasures, but properties that are important at the local level are 

going without. 

And underfunding means that Federal costs are transferred to 

the private sector, as uncompleted work and program review delays 

inevitably impact private development projects. 

Let me turn now for a moment to your request about how the 

National Register affects private property owners. 

Respect for private owners is a fundamental principle of the 

National Register and certainly of State Historic Preservation Offices. As has been noted, listing on the National Register does not 

place Federal restrictions on how private property owners use their 

property. Only Federal actions are restricted or reviewed by 

National Register listing; and over the last 10 years, less than 1 

percent of the total number of nominations listed on the National 

Register have involved an owner objection at all. Ninety-nine out 

of one hundred owners are satisfied customers with the program as 

it is. 

The National Register process is defined in Federal regulations 

that all SHPOs are required to follow. The process includes checks 

and balances that protect property owners rights. SHPOs are required to follow this process, and a SHPO may not refuse to consider a properly documented nomination that is presented to him 

or her. 

The National Register information is checked three different 

times, by the professional review of the SHPO and its staff, it is 

checked by the independent expert State review board, and then it 

is checked a third time here in Washington by the Keeper of the 

National Register and her staff at the National Park Service. 

Private property rights are explicitly recognized in the regulations. Owners are notified of the process and given an opportunity 

to comment on nominations. They routinely provide information to 

the SHPO to consider in the process of reviewing nominations and 

provide information both to the Keeper and to the State review 

board. 

If an owner objects to the listing, the property may not be listed 

on the Register, although the Keeper may go through a determination of eligibility process. Throughout the system, there is a series 

of checks and balances to make sure that no one authority, particuVerDate 0ct 09 2002 09:58 Aug 06, 2003 Jkt 087420 PO 00000 Frm 00021 Fmt 6633 Sfmt 6602 J:\DOCS\87420.TXT HRESOUR1 PsN: KATHY
16

1The Act authorizes Indian tribes to choose to assume the responsibilities of State Historic 

Preservation Officers on tribal lands. The National Conference supports tribal involvement in 

the national preservation program; SHPOs work closely with tribes in their States. The National 

Conference respects the government-to-government relationship of tribes to the Federal Government. Therefore, our remarks represent the opinions of SHPOs only. The NCSHPO encourages 

the Committee to seek tribal views on the Act. 2The SHPOs conduct 99% of the preservation consultation work required by the ACHP regulations. Every year SHPOs review 100,000 Federal undertakings for their potential impact on 

historic properties. In working with Federal agencies, SHPOs agree that 90,000 of those undertakings have no effect on historic properties. Federal agencies and the SHPOs resolve the effects 

on historic properties in the remaining 10,000 projects. The Council staff, under the current regulations will be involved in a few hundred projects. The Presidentially appointed Council members consider approximately ten cases a year. 

larly at the State level, can run roughshod over the rights of the 

property owner or the accuracy of the information presented. 

In preparing for this hearing, I spoke with my colleagues around 

the country. Most SHPOs report they almost never have owners object to National Register listing, primarily because property owners 

want to get on the Register, and SHPOs spend limited resources 

working on the nomination of properties that are supported rather 

than opposed. 

I believe the National Register is working well. I would be glad 

to work with the Committee, with property owners and other partners to investigate any potential improvements that might be 

needed. 

Mr. RADANOVICH. Thank you, Mr. Sanderson for your testimony. 

[The prepared statement of Mr. Sanderson follows:]

Statement of Edward Sanderson, President, National Conference of State 

Historic Preservation Officers, and Executive Director, Rhode Island 

Historical Preservation and Heritage Commission 

I. Introduction 

The Subcommittee on National Parks, Recreation and Public Lands has asked the 

National Conference of State Historic Preservation Officers (NCSHPO) to testify on 

the following topics. 

1. Reauthorization of the Advisory Council on Historic Preservation 

2. Implementation of the National Historic Preservation Act 

The National Conference of State Historic Preservation Officers is the professional 

association of the gubernatorially appointed State officials who carry out the 

National Historic Preservation Act (Act, 16 U.S.C. 470) for the Secretary of the Interior and the Advisory Council on Historic Preservation (ACHP). States pay for half 

of the cost of carrying out this Federal program. State Historic Preservation Offices 

(SHPOs) have a direct, hands-on, daily involvement with the Act and are well suited 

to inform the Committee. 1

II. Reauthorization of the Advisory Council on Historic Preservation 

In general, the National Conference supports the reauthorization of the Advisory 

Council on Historic Preservation. As a statutory member of the ACHP, the National 

Conference was a part of the February 2003 meeting when the Council voted to propose legislative changes. We supported the amendments: chiefly, a permanent authorization with no appropriations ceiling and increasing the Federal agency membership on the Council. We believe these changes are needed so that the ACHP can 

continue its excellent work and carry out the mandates of the President’s Preserve 

America program and Executive Order 13278. However, since the National Conference of State Historic Preservation Officers has not seen the bill language, we 

are unable to comment on it specifically. 

The National Conference has direct experience with the activities of the ACHP 

through the role of the SHPOs and the National Conference’s seat on the Council. 

The ACHP regulations implementing Section 106 of the National Historic Preservation Act (36 CFR Part 800) set up a process for Federal agencies to identify areas 

that may be potentially impacted by Federal projects, find the historic properties in 

those areas, and, should adverse impacts to historic properties exist, consider eliminating or mitigating those impacts. Federal agencies, under the ACHP regulations, 

must consult with State Historic Preservation Officers in making those decisions. 2

17

3 University of Rhode Island Intergovernmental Analysis Program, Economic Effects of the 

Rhode Island Historical Preservation Commission Program Expenditures from 1971 to 1993. 

III. Implementation of the National Historic Preservation Act 

Secondly, the Committee has asked the National Conference of State Historic 

Preservation Officers to comment on the implementation of the National Historic 

Preservation Act. The following discusses the priority of historic preservation in the 

Administration, the successes of the program, the failures, and the relationship of 

private property rights and the National Register. 

A. Historic Preservation: a Priority for the Bush Administration 

Historic preservation is a national priority of the Bush Administration. On March 

3, 2003, the President and the First Lady launched Preserve America, a multi-component program to improve Federal stewardship of historic places (Executive Order 

13287), to recognize achievement in historic preservation, to acknowledge and 

celebrate the historic preservation activities of communities across the country 

(Preserve America Communities ), and to facilitate economic development through 

heritage tourism. 

* * * * *

PRESERVE AMERICA

The First Lady reiterated what every preservationist has long believed in her Preserve America speech on March 3, 2003, as is illustrated by the following quotes. 

‘‘Our land is the foundation upon which the American story is written. 

Our history is rooted in our buildings, parks and towns. 

‘‘The second goal of Preserve America is to support community efforts to 

restore cultural resources for heritage tourism. 

‘‘Preserve America. . . will provide. . .greater support to protect and restore our nation’s culture. . . from monuments and buildings to landscapes 

and main streets. 

‘‘Preserve America will promote historic and cultural preservation and 

encourage greater public appreciation of our national treasures. 

* * * * *

B. The Role of the State Historic Preservation Officers 

The National Historic Preservation Act sets up the national historic preservation 

program. The Act charges the State Historic Preservation Officers with the following 

tasks. 

1. find historic places and maintain information about them for future research 

and analysis, 

2. working with private property owners, nominate significant places to the 

National Register, 

3. work with local governments who are interested in historic preservation and 

help them receive the Secretary’s certification, 

4. help private owners seeking a Federal rehabilitation tax credit, 

5. consult with Federal agencies on Federal activities that may affect historic 

places, and 

6. conduct planning and educational activities on historic preservation for interested parties in the private and public sectors. 

C. Historic Preservation a National Success Story 

1. Historic preservation stimulates the economy 

The national historic preservation program, run by the SHPOs, stimulates the 

economy. The rehabilitation of National Register properties using the Federal investment tax credit recently is generating $3 billion in private investment annually. 

The owners of the 1,202 rehab tax credit projects undertaken in 2002 believe in and 

have benefitted economically from historic preservation and the National Register. 

In 1993, the University of Rhode Island calculated that one dollar of Historic 

Preservation Fund expenditure generated $63 dollars of investment. 3 Ten years 

later, the University of Florida and Rutgers University demonstrated that in Florida 

historic preservation created more than 123,000 jobs during 2002, spending on historic preservation activities generated more than $657 million in state and local 

18

4 Center for Governmental Responsibility, University of Florida Levin College of Law, and 

Center for Urban Policy Research, Rutgers University, Executive Summary Economic Impacts 

of Historic Preservation in Florida. The foundation of the activities analyzed in the University 

of Florida report is the National Register process administered by the Florida State Historic 

Preservation Officer and the 1400 National Register listings (cumulative) and the over 135,000 

historic structures and archeological sites in the Florida Master Site File inventory of historic 

sites. 5 Clarion Associates of Colorado, LLC, Economic Benefits of Historic Preservation in Colorado, 

Denver, January 2002. 6Susan West Montgomery, ‘‘The Historic Preservation Fund and Why it Matters,’’ Forum 

News, January/February 2003. This article outlines the history of the Historic Preservation 

Fund, how SHPOs match it and use it, and the effects of appropriations shortfalls. 

taxes in 2000, and, tourists who visited Florida’s historic sites spent more than $3.7 

billion. The total annual impact of historic preservation in Florida is $4.2 billion. 4

In Colorado, the dollar value of Federal investment tax credit rehabilitation 

projects certified in 1999 was $28,265,017 more than Georgia’s $24,993,209 but not 

as much as Texas’ $89,622,748. Historic building rehabilitation creates 32 new jobs 

per $1 million of direct impact, where as the figure for computer and data processing is 31, trucking is 30, manufacturing semiconductors is 20 and mining for petroleum and natural gas is 12. Heritage tourism in Colorado generated $1.4 billion 

in direct tourist expenditures, generated $1.0 billion in total household earnings and 

55,300 jobs. After Denver’s LoDo became a historic district the number of housing 

units increased by 1,260%, the average rental cost per square foot increased from 

$7 to $20/$30, and the parking meter revenues increased from $141,200 in 1989 to 

$1,497,070 in 2000. Interestingly, the Colorado study looked closely at two residential historic districts, Potter Highlands in Denver and Fort Collins Midtown District 

and found that while quality of life and property values were increasing, the economic mix of the residents did not change dramatically. 5

2. Historic preservation celebrates our history 

In addition to being good for the economy, the historic preservation program also 

boasts successes in helping owners and residents seek recognition for the historic 

places where they live and work through the National Register nomination process. 

Nationally, in 2002, the Keeper of the National Register (Department of the Interior, National Park Service) made 1456 listings which include a total of 40,141 individual properties (one National Register historic district contains multiple individual, historic properties). 

3. Historic preservation partners in local governments 

The national historic preservation program has also ‘‘sold’’ well with local governments who have sought the Secretary of the Interior’s designation as Certified Local 

Governments, formal partners with the SHPOs. In 2002, 58 city and county governments decided to enact a historic preservation ordinance and establish a historic 

preservation commission. As a CLG, the local government is eligible to apply for 

passthrough funding (10% of the State’s Historic Preservation Fund allocation) from 

the SHPOs. In total, 1,384 local governments have opted to become Certified Local 

Governments. Each State establishes its own criteria for certification which allows 

for variation to reflect State by state differences. 

4. Historic preservation is a ‘‘bargain’’ for the Federal government 

Finally, the national historic preservation program is a great value for the 

Federal investment—States pay half the cost. 

D. Historic Preservation Needs 

The authorizing committees of the Congress have established a well-designed vehicle to deliver the national historic preservation program. Unfortunately, Administrations and Congresses have failed to provide the funding—the gas—necessary for 

the vehicle to operate. 6 The under funding of the national preservation program has 

several implications. 

1. Where are the Nation’s historic places? 

The survey of historic sites across America is not finished. The nation lacks the 

base line data about where historic places are located. This lack of basic information 

makes it difficult to evaluate comprehensively the significance of an individual property. Further, without full information on historic places, Federal agencies planning 

projects have no alternative but to conduct ad hoc historic site surveys for the potential impact area. If the inventory were complete and the information readily 

available by computer, Federal agency planning would be substantially facilitated. 

19

Agencies would have the historic property information on hand at the earliest stages 

of project planning. 

2. Lack of restoration grants 

Second, two decades of ‘‘bare bones’’ funding have eliminated SHPOs ability to 

offer restoration matching grants to help restore threatened National Register properties. In the 1970’s the State Historic Preservation Officers used half of their annual allocation to help owners restore National Register properties. These matching 

grants helped owners restore significant places and insured that state-of-the-art construction techniques were used. Further, the SHPOs’ HPF grants were usually a 

small percentage of the total project cost. The Federal funds were a catalyst for a 

larger private investment as well as a commitment from the owner to insure future 

maintenance. SHPOs made many small grants stretching the Federal dollars further. Those financial incentives need to be reinstated by increased appropriations. 

3. Federal costs transferred to the private sector 

Third, continued reductions of Historic Preservation Fund appropriations to State 

Historic Preservation Offices is adversely affecting the private sector, specifically applicants for Federal assistance. If the SHPO comment process is a funnel, ongoing 

reductions have constricted that funnel opening slowing project response times from 

a stream to a trickle. North Carolina has kept records of the effect of Federal budget 

cuts on response times. With fewer resources from the HPF available and an increasing work load, response times have doubled, not only in consultation in the 

Section 106 process but also in response to private sector requests related to 

National Register nominations and rehabilitation tax credits. 

E. The National Register and Private Property Owners 

The fundamental principle of the National Register and its implementation by 

SHPOs is cooperation and respect for and with private property owners. 

The National Historic Preservation Act begins with the National Register. This 

is the Secretary of the Interior’s list of America’s historic properties. In the past 35 

years more than 75,000 nominations have been listed on the National Register. 

Those listings represent over 1,000,000 private property owners: one nomination 

may cover a historic district with multiple owners. In Fiscal Year 2002, 1456 nominations were listed. In the last ten years less than one per cent of the total nominations submitted were the subject of owner objections. 

National Register listing occurs only after notifying the private property owner 

and after a careful review of the background research on and the significance of the 

property. National Register listing conveys the honor of the Secretary’s recognition, 

eligibility for Federal benefits matching restoration grants (when sufficient funds 

are available) and for the 20% rehabilitation tax credit for work on commercial property, and consideration if a Federal project might affect the property. 

Listing places no restrictions on private property owners. Private owners may 

make any changes they wish to their property and may even demolish or destroy 

National Register listed places. (Subject, of course, to any locally enacted laws and 

restrictions.) Listing places controls only on the actions of the Federal 

Government—the Federal Government must consider the impacts of its actions on 

National Register listed and eligible property and look for ways to minimize any adverse effects. 

SHPOs carry out the National Register nomination process following the Act and 

the Interior regulations (36 CFR Part 60). The regulations are clear on the role of 

private property owners in the nomination process. Property owners are notified 

about nominations. Property owners have the right to file an objection directly with 

the Keeper of the National Register who is a Federal employee of the National Park 

Service. In addition, the Federal regulations set forth a uniform nomination process 

that all SHPOs must follow. The process offers little administrative discretion and 

requires that every nomination be evaluated and approved by an independent expert review board in addition to approval by the SHPO. Owners may appeal a 

SHPO’s decision to the Keeper. Finally, the process provides Federal oversight of 

the State’s nomination process; nominations are subject to substantiative and procedural review by the Keeper. 

Most nominations come from property owners seeking the national recognition. 

Notice is provided to all owners prior to consideration of the nomination. Many 

States, for example, Georgia, Michigan, Ohio and Tennessee, have not seen any proposed nominations that lack the owner’s knowledge and involvement. 

If the owner objects, the property may not be listed on the National Register. 

State Historic Preservation Officers often do more than the regulations require to 

involve private property owners in the nomination process. The New York State Historic Preservation Officer works with local communities in face-to-face meetings and 

20

7Triad Guest Guide 2002–2003,Vol. XII, Raleigh: Lone Wolf Publishing, Inc., 2002, p. 8–9. 

discussions to insure that owners’ questions are fully considered and addressed. In 

most States—Arizona, Idaho, Maryland, Mississippi and Montana, for example—potential nomination proposals are not pursued if the owner objects. 

The National Register program remains popular across the country. Register listing is sought for various reasons. Register listing is needed for developers to receive 

the 20% rehabilitation tax credit. Individuals and communities look to the National 

Register as official recognition of the historic significance of their home or neighborhood. Register listing is often an important catalyst for community pride leading to 

neighborhood revitalization. Convention and visitor bureaus see National Register 

sites as an attraction for visitors and new businesses. In North Carolina’s Triad 

(Greensboro, High Point, Winston–Salem) the Welcome section of the Guest Guide 

in hotel rooms prominently displays National Register sites—Mendenhall Plantation, the Greensboro Woolworth’s, and the Alamance County Historical Museum—

to promote the area. 7

IV. Conclusion 

The National Historic Preservation Act and the National Register have been operational for more than 30 years. Private property rights are respected and protected 

within its provisions. The National Conference of State Historic Preservation Officers offers to work with the Chairman and the Committee, private property owners, 

Federal preservation partners, and private sector partners on improving the 

Nation’s historic preservation program in a way that respects the needs of this generation and bequeaths a proud legacy of America’s heritage to the future. 

Mr. RADANOVICH. Next is Mr. Robert Bisno, owner of Lincoln 

Place Apartments in Venice, California. 

Mr. Bisno, welcome to the Committee. We will appreciate your 

insights here and your testimony. You may begin. 

STATEMENT OF ROBERT BISNO, OWNER, LINCOLN PLACE 

APARTMENTS, VENICE, CALIFORNIA 

Mr. BISNO. Thank you, and good afternoon, Mr. Chairman, Committee members. 

My experience is different than one which you may have heard 

from listening to those who spoke before me. I am here today as 

the owner or major owner of the Lincoln Place Apartments, a large 

apartment community in Venice, California. 

I am here because I believe it is crucial that we protect the importance and the integrity of the National Register process from 

those who are seeking to exploit it to present or promote their own 

self-serving agenda. 

In my case, that agenda belongs to the tenants of my property 

who were seeking to block redevelopment so they wouldn’t have to 

move. This agenda had nothing to do with historic preservation. In 

fact, I actually proposed a plan 2 or 3 years ago that all existing 

buildings be preserved. The tenants fought that as well, because 

under the rent stabilization ordinance of Los Angeles I would have 

been allowed to raise the rents. 

I see the abuse of the National Register process as the No. 1 tool 

today to stop economic development unless you take steps to stop 

it. 

The Lincoln Place Apartments, our project, was built in 1950, 

using off-the-shelf plans. For the past 9 years, we have gone 

through the arduous permitting process to allow us to build 144 

low- and moderate-income apartments for rent, 50 low- and moderate-income townhomes for sale, and 650 at-market townhomes 

for sale. 

21

Before SHPO got involved, the Los Angeles Planning Department, the Los Angeles Planning Commission, the Los Angeles Cultural Heritage Commission, the Planning Land Use Management 

Subcommittee of, and the Los Angeles City Council reviewed our 

project. 

Our project was also reviewed by Mr. Robert Chattel, a nationally recognized expert qualified under the Secretary of Interior’s 

professional qualifications. 

At each and every stage and in the City Council, that was two 

times, the national—pardon me, the determination was that our 

project was not locally significant. Having lost at the local levels, 

the applicants then identified the National Register as a soft spot 

that they might exploit, and they filed an application. Bear in 

mind, we had done nothing. 

On February 7th of this year, California SHPO voted to recommend to the Keeper that Lincoln Place be considered as a locally 

significant resource. They came to their conclusion without 

verifying claims made in the application. They also failed to even 

contact the city of Los Angeles for their input, as required by the 

regulation. And you will recall, as I testified earlier, every single 

agency within the city of Los Angeles had determined that this was 

not a locally significant resource. I am being told that the National 

Register does not have an impact on our property rights. I am 

living proof that it does. Our rights are being trampled by this 

process. 

Even before SHPO cast its vote, lawyers for the applicant challenged the city’s permits, permits they had granted to us in court. 

The city lined up with us. But our ability to move forward came 

to a stretching halt. Well, this is a halt of a project which would 

generate more than $150 million in local goods and services, provide low- and moderate-income living for almost 200 families and 

market-rate living for 650 families. 

To make matters worse, we asked SHPO to write a letter. SHPO 

did. SHPO wrote a letter stating that our property has been or 

would shortly be listed on the National Register. Even the Keeper 

herself could not clear up the confusion created by SHPO, and the 

City Attorney of Los Angeles still refused to issue our permits. 

On April 24th, the Keeper returned the application to SHPO declaring that the application was significantly inadequate. Even 

though the National Register application has been effectively terminated, our problems continued. Since the application has been 

terminated, the applicants, the Lincoln Place Tenants Association 

and those aligned with them, have filed two lawsuits based solely 

on submission to the National Register. 

Those who oppose property rights have carefully designed the 

system to strangle development activities by the mere filing of an 

application. Even today, as we speak, the Lincoln Place Tenants 

Association are asserting in a city procedure that our property is 

a local resource because of the actions by SHPO and we should be 

denied demolition permits, which are a condition precedent to our 

redevelopment. 

Mr. Chairman and members, I believe the answer to this is easy. 

Federal law should not allow being listed on the National Register 

without a property owner’s consent. I am of the belief that 167 of 

22

170 property owners have objected to and have had the properties 

rubber stamped. I believe it is time to change the law, because private property rights are being impacted, and to the bad. 

Mr. RADANOVICH. Thank you. 

[The prepared statement of Mr. Bisno follows:]

Statement of Robert Bisno, Owner, Lincoln Place Apartments,

Venice, California 

Good Morning Mr. Chairman and members. 

My name is Bob Bisno, and I’m a principal in the Lincoln Place Apartment Redevelopment Project located in Venice, California. 

I’m here today because it’s important, that we protect the importance and integrity of the National Register process from those who are seeking to exploit it to promote their own self-serving agenda. 

In my case, that agenda belonged to the tenants of my property who were seeking 

to block the redevelopment of my property so that they would not be obliged to relocate. Their true agenda has nothing to do with historic preservation. Indeed, several 

years ago I actually proposed a plan to renovate all of the existing buildings that 

would have preserved them, but the tenants fought and blocked that effort because 

they were opposed to the increased rents that would have been necessary to make 

such a program feasible. 

Abuse of the National Register process and other ‘‘preservation’’ mechanisms will 

become the number one tool to stop economic development in the coming decade unless you take immediate steps to stop it. 

We purchased Lincoln Place Apartments in 1986, and for the past nine years, 

we’ve been through the arduous permitting process to allow us to carry out our redevelopment plan. Our plan includes the construction of 144 low-income apartments 

without any governmental subsidy, even though the City of Los Angeles does not 

require affordable housing in new projects. 

Our redevelopment process started in 1994 with an Environmental Impact Report 

that considered the historic preservation arguments made later by the applicants for 

the National Register. 

The Lincoln Place Apartments were built in 1950, basically using off-the-shelf 

plans made available by the FHA, which had been issuing mortgage insurance for 

thousands of project nation-wide since 1937. 

After a full public hearing, the Planning Department of the City of Los Angeles 

voted to certify the EIR that found that Lincoln Place was NOT a significant local 

resource. See Exhibit A (excerpts from City EIR). 

The following year, the full City Planning Commission, after a full public hearing 

and consideration of the same EIR, found that Lincoln Place was NOT a significant 

local resource. 

Dissatisfied with the decision of the City’s Planning Department, the applicants 

then filed an application to the City’s Cultural Heritage Commission; a board concerned only with historic preservation, to have Lincoln Place declared a City monument. 

The Cultural Heritage Commission independently reviewed the evidence cited by 

the proponents of the National Register application. They also reviewed the analysis 

of Robert Chattel, a nationally recognized expert qualified under the Secretary of 

the Interior’s Professional qualifications. 

After an extensive review of the facts, the commission determined that Lincoln 

Place should NOT be designated a Cultural Historic Landmark as it did not represent significant architecture and was a later example of the many projects involving FHA mortgage insurance found in the region. 

And just last year, after considering the National Register application filed by the 

applicants, the Los Angeles City Council reviewed that application and UNANIMOUSLY voted that Lincoln Place was NOT a locally significant resource. See Exhibit B (Findings of City of Los Angeles). 

Having lost locally, the applicants then identified the National Register process 

as a tool they might exploit, and filed an application to have these commonplace 

structure listed on the National Register of Historic Places. Under current law, anyone can file a National Register application, even if the owner objects. 

The preliminary steps in the National Register process are administered by State 

officials with final decision-making reserved to the Keeper of the Register. 

On February 7th of this year, by a vote of 7 to 1, the California State Historical 

Resources Commission voted to recommend to the Keeper of the National Register 

that Lincoln Place be considered a ‘‘locally significant’’ resource notwithstanding the 

23

City’s repeated findings that Lincoln Place was NOT a significant local resource. 

Ironically, according to supporters of the application in a published article, attempting to have Lincoln Place designated as a historic site was a last-ditch desperate 

effort since the applicants had lost everywhere else they had tried. See, e.g., ‘‘Sad 

Story Unfolding in Venice’’ Santa Monica Mirror, July 11–17, 2001. Mr. Chairman, 

I ask unanimous consent to submit a copy of this article for the record. 

Although those administering the National Register process told us that the application would not have an impact on our property rights, even before the State Commission cast its vote, the City’s permits were challenged in court, and after the 

Commission’s vote, the City refused to issue any more permits. Our ability to move 

forward was instantly stopped. 

Moreover, the State Historic Preservation Officer, who had essentially ‘‘rubberstamped’’ the application without any independent review went out of his way to 

assist those trying to block our activities by writing letters to suggest that the property had been, or would be shortly, listed on the National Register. 

The Keeper herself had to intervene to clear up the confusion. On March 28, 2003, 

the Keeper wrote that neither the February 7, 2003 action of the State Historic 

Preservation Commission nor the March 3, 2003 transmittal of State Historic Preservation Officer regarding the Petitioners’ application constituted a formal ‘‘determination of eligibility’’ for the Lincoln Place Apartments, and that only she could 

make such an official determination. 

However, despite her letter and her intention to clarify the problem created by 

the State SHPO, the City Attorney still refused to release our permits. 

Later, on April 24, 2003, the Keeper of the National Register returned the application to the State Historic Preservation Officer with her findings that the application was significantly inadequate. Basically, the actions of the State Historic Preservation Commission and Officer’s recommendations were overturned. See Exhibit C 

(April 24, 2003 Keeper action). 

On May 12, 2003, the State Historic Preservation Officer returned the application 

in a letter stating that if the applicants wished to persist in their efforts, a wholly 

new application would be required. 

However, even though the National Register application has been effectively terminated, our problems resulting from the National Register application have continued unabated. 

As of today, the applicants have filed not one, but two, lawsuits before different 

courts to block our redevelopment based only on their National Register application. In terms of personal costs, I have spent over $ 500,000.00 in the past seven 

months alone just to respond to this application, to respond to the related lawsuits, 

and to allow my objections to be heard. 

Since this soap opera started, I keep hearing some people say that an application 

for the National Register does not affect a property owner’s rights. Moreover, some 

tell me that I should feel it is an honor to have my property considered for the 

National Register. 

Those are naive and misguided views. The truth is that those who oppose property rights have carefully designed the National Register system so that it can be 

used to effectively strangle an owner’s activities without any express prohibition on 

the owner’s activities being invoked. 

I’m living proof that the rights of property owners are trampled in the National 

Register process, as it currently exists. 

That is what has happened, and is continuing to happen to me. 

The National Register process needs to be reformed to prevent this type of abuse. 

The regulations are vague and not understood even by cities like Los Angeles, the 

second largest city in this country. The evaluation criteria are so subjective as to 

be non-existent. There is a lack of rigor on the part of professional staff in screening 

applications. In our case, the SHPO conducted no independent review of the application, and didn’t even request that the applicants submit their bibliography so that 

the SHPO could check that any of the claims made were accurate. 

But most of all, properties should not be declared eligible for the National Register if the owner does not request it. If I want my property honored by the National 

Register, I will myself make the application. On the other hand, if I believe being 

listed on the National Register is not in my interest as a property owner, I should 

be left alone. 

There are other laws on the books that give the Federal Government the right 

to preserve property that is a significant historic resource where necessary. 

If the Federal Government believes that a property must be preserved, it can buy 

the property or condemn it. If the Federal Government is unwilling to acquire the 

property for preservation purposes, it should leave matters to local government and 

property owners. 

24

Mr. Chairman and members, the solution to this problem is rather an easy one. 

Federal law having to do with preservation must be changed to require approval of 

property owners before any application is accepted by any state SHPO. Only then 

can the Federal Government take pride in knowing that it’s protecting private property rights rather than have those right trampled as mine have been. 

I thank you Mr. Chairman and this committee for giving me a chance to bring 

this travesty to your attention and the attention of this Congress. 

[NOTE: Attachments to Mr. Bisno’s statement have been retained in the 

Committee’s official files.] 

Mr. RADANOVICH. I will go ahead and begin. Then we will ask 

other members if they would like to ask questions. 

I want to start out by saying that I am a big fan of the Historic 

Preservation Act and the work that is done by the societies at the 

State levels all across the country. 

As I mentioned in my opening statement, I think the goal is to 

find out whether the process that Mr. Bisno has been subject to is 

indeed an anomaly or is this something that might not happen 

again or, if it does happen again, is it a threat to the integrity of 

the process of identifying historic places all across the country. So 

that is going to be what I would like to find out I think from this 

hearing. 

In my review of Lincoln Place and the application, it seems to 

me that this was an application that never should have been approved at the State SHPO level. This was clearly—and I may ask 

someone on the panel, if you are familiar with the application packet, how could they expect something like that that was so poorly 

done and had so many holes in it could have been possibly approved by a State SHPO director? 

Mr. Tiller, are you familiar with the content of that application? 

Mr. TILLER. Mr. Chairman, only to the extent that, after it arrived in our office and we reviewed it, as Mr. Bisno related, it was 

returned by the Keeper of the National Register for a number of 

substantive purposes, both on procedural error as well as substantive and research errors. 

So I concur with Mr. Bisno and with your inquiry. It got to us 

in a state that it had not be appropriate to go ahead and submit 

it to the Keeper at that time. 

At the moment, it is back in the court of the folks in Sacramento, 

and Mr. Bisno. We await it. But, right now, we have no issue with 

this whatsoever. 

Mr. RADANOVICH. Again, I may ask the Keeper to come up and 

comment on this, what was left out of the package. But, given the 

inadequacy of the package, why was it sent back and why was it 

not rejected by the Keeper? 

Mr. TILLER. It was sent back, and in a form it was rejected. We 

gave them a long list of the work that had to be done on it. We 

closed the case on it. So it is, I guess in a term, rejected. If they 

choose to resubmit it, they can. But they now know all of the work 

that has to be done on it, both historic research and contextual research, information up-to-date on its current condition; and it is a 

fairly tall order that we have sent back to them. 

So, as I said, the case is closed as far as the Park Service is concerned. It is up to the State of California whether they want to resubmit it again. 

25

Mr. RADANOVICH. There is a difference between sent back and 

rejected, I would State in Mr. Bisno’s defense. Because one would 

allow—if indeed the application was sent back with a statement of 

what was missing in the application and what needed to be done 

in order for the Keeper to hear the case again, that didn’t relieve 

Mr. Bisno of any problems he had with the development of his 

property. 

Where, had it been rejected, the folks at Lincoln Place would 

have had to start the thing all over again; and there wouldn’t have 

been a cloud over the development process that Mr. Bisno did have. 

So there is a distinct difference between being sent back and being 

rejected. 

Mr. TILLER. There is, Mr. Chairman. The Keeper of the Register 

is asked to make a binary choice: It is eligible for the National Register or it is not eligible for the National Register. In sending it 

back, the Keeper determined and stated, we have insufficient information to make that call one way or another. So it is not rejected. 

It is only rejected at the time we have enough information to make 

the call, and then she will make the call on whether it is eligible 

or not. At this time, we have issued no opinion one way or the 

other. 

Mr. RADANOVICH. I would like to ask if Carol Shull, the Keeper, 

would come up and comment on the content of that particular application, with the idea of how did the State approve something 

like it. 

Ms. SHULL. Thank you, Mr. Chairman. 

Mr. RADANOVICH. Thanks, Carol, for being here. 

I would just start out by saying, I know you are familiar with 

the case, and thanks for being here today. 

Carol, would you state your name and title before you comment 

on the content of the application. 

Ms. SHULL. Thank you. I am Carol Shull. I am the Keeper of the 

National Register of Historic Places for the National Park Service. 

Would you prefer to ask me a question or should I comment on 

our review? 

Mr. RADANOVICH. That would be perfect. If you would give us an 

idea of what was left out and how—I don’t want to put words in 

your mouth, but whether a SHPO should have approved it and 

send forward a document that was in the condition that it was. 

Ms. SHULL. Well, as you know, owners are given an opportunity 

to comment and local officials and anyone else during the nomination process. We received quite a stack of comments on the nomination, many of them from Mr. Bisno. 

We carefully reviewed the nomination, and there were substantial questions raised as to whether or not the nomination had followed all of the appropriate procedures as required by the law and 

regulations. So there were so many concerns raised in the procedural aspects of the nomination that what we always do in a case 

like that, in respect to a State, is ask them, when we return something, to review any allegations that there have been irregularities 

in the process. So we asked the State to look at the comments that 

had been received during the comment period and whether or not 

the procedures had been followed. 

26

There were also many comments raised about the substance of 

the nomination, and we ourselves had comments as we reviewed 

the nomination. 

Our standard procedure is that when we have questions about 

documentation or questions are raised by commenters or in our 

own review is that we return the nomination to the State, raising 

the questions that need to be raised if we do not think the documentation is adequate. 

We generally—in fact, don’t out and out reject nominations on 

the first submittal if there are questions that we think that the 

State, as the nominating authority, should have the opportunity to 

review because—as a matter of respect to the State and also because the information in the nomination may be what is inadequate, rather than the property itself. 

We always return the nomination unless it is very, very clear 

from the documentation that the property does not meet the criteria. But we had very substantial questions on the adequacy of 

this nomination; and I think that was clear in the return comments, as well as the procedures that were followed. 

Mr. RADANOVICH. Thank you, Mrs. Shull. 

With respect to the rest of the Committee, I think if I may just 

ask one more question, then I will go ahead and pass time to somebody else. 

I wanted to get Mr. Bisno to react to Mr. Tiller’s comment about 

the idea of sending back applications to the State and the difference between that and not just rejecting them and how that 

keeps you in limbo still, with the type of—in progressing with your 

development. 

Can you comment on that for me, Mr. Bisno? 

Mr. BISNO. First of all, we would like to thank Mrs. Shull, the 

Keeper. We think that she has done her job just like she should 

do the job. We think the procedure is broken, the procedure which 

allowed the State SHPO, over the objection of the owner, by a 7-

to-1 vote to forward to the Federal Government a property that at 

every step of the way on the local level had not be determined eligible. We think in and of itself that is a reason for the Keeper to reject such an application. 

Mr. RADANOVICH. Thank you, Mr. Bisno. 

I recognize Mrs. Christensen. Donna. 

Mrs. CHRISTENSEN. Thank you, Mr. Chairman. 

I guess I would ask my question to Mr. Nau, or I guess the first 

three panelists, this one question: Could you give the Committee 

some idea of how common it is for a State or locality to pass laws 

limiting a private property owner’s ability to alter the character of 

that property during consideration for listing? Is that a common — 

Mr. SANDERSON. Let me try that one from the perspective of the 

State Historic Preservation Officers. I think it is very unusual. 

There certainly are some local and State jurisdictions around the 

country that in one way or another tie a State or local program or 

law to National Register listing. But for that to be held up during 

the consideration of the National Register nomination is not something that, frankly, I am aware of occurring anywhere, other than 

the case that has just been described. 

27

Most States and most local jurisdictions that have developed 

these kinds of programs maintain their own list of historic properties, and even the reliance on National Register listing is a very 

small fraction of what most States do. I think what we are hearing 

is quite an unusual situation. 

Mrs. CHRISTENSEN. Mr. Bisno, since the application is essentially 

closed, and I realize you have been—seems like you have been in 

and out of court a lot. As you said, there is something being filed 

now. Is that, what is being filed now, related to the application? 

Because the application is closed. It would seem to me that, that 

being the case, that that should not be an issue anymore unless 

they reapplied? 

Mr. BISNO. Your question, in my view, points out why this Act 

is flawed. Everyone in this room would think that, with the application being returned, that that would be the end of it. But it is 

not. While the city of Los Angeles agrees with us at every little 

juncture, the Lincoln Place Tenants Association, since the Keeper 

returned the application—that is since—has filed two lawsuits 

standing for the proposition that the State SHPO in forwarding the 

application recognized the local significance. Two times we will 

have to appear in court to defeat that allegation. 

Additionally, today the Lincoln Place Tenants Association and 

those aligned with them are contesting that the State SHPO’s action was an official action and therefore the demolition permits 

which have previously been granted to us should be withdrawn. 

So the problem that we face isn’t one that those in this room 

would see, but we have a matrix which allows those who wish to 

create mischief to create just that, the type of mischief that stops 

$150 million from going into the community, that stops low-income 

housing and that stops market-rate housing. 

The solution that we suggest, requiring the property owner to 

consent to property put on the National Register, shouldn’t burden 

anyone whose motives are pure. 

Mrs. CHRISTENSEN. But as far as the Federal legislation is concerned, it is my understanding that as far as the Federal—the Act 

that we are having this hearing on, if the private property owner 

objects to the nomination the property cannot be listed on the 

National Register. So what we have is a State issue or a county 

or city issue. How would anyone propose that we would fix that in 

this legislation? 

Mr. BISNO. I don’t think your assessment is correct. We all agree 

that the Federal issue shouldn’t apply here. However, back in State 

court in California, using the matrix of this law, the Lincoln Place 

Tenants Association, again, using this matrix, is contending that 

the State SHPO has, under Federal law, determined this property 

to be locally significant. And we don’t believe there is a place for 

that. 

With respect to owners consenting, 170 owners in the last 10 

years have objected to inclusion on the Federal Register; 167 of 

those properties, over the owner’s objections, have been listed. 

That does not speak to thorough consideration of the merits, but, 

rather, a process that simply puts through the process applications 

of SHPO. 

28

Finally, we have asked our State SHPO for a letter confirming 

that no official State action took place, and we still have not received that. We have asked for it better than a month ago. 

Mrs. CHRISTENSEN. Well, my time is up. But I am concerned 

about your last statement, about the 170 objections and 167 being 

on. But I will withhold my comment until maybe another round. 

It probably will be answered. 

Mr. RADANOVICH. OK. Thank you, Donna. 

Too, I think I want to correct something. I think it might have 

been mentioned that 167 applications were listed. But I think that 

those were applications that qualified for listing or were made eligible. I think it is a distinction that needs to be made. 

Mr. Gibbons, did you have any questions? 

Mr. GIBBONS. I do, Mr. Chairman. Thank you very much. And I 

would address my first question to Mr. Tiller. 

Listening to these individuals and the obvious knowledge that 

the Service must have of the secondary impact of the eligibility 

process that you have heard about today, has the Service undertaken any effort to remedy or address these problems that—to either Mr. Bisno or others in this process listing them? 167 out of 

170 applicants. Has the Service undertaken any activity to address 

that problem? 

Mr. TILLER. Congressman, the short answer is no. The 160-some 

cases to which we are referring—let me correct the record first, 

please. None of those has been listed. It was just a finding of eligibility, but none has been listed on the National Register of Historic 

Places. 

Secondly, the larger context of these 160-some findings of eligibility have been made over the last 10 years. Let’s understand that 

in the overall reality that we are talking about 1.2 million properties that are now listed on the National Register of Historic 

Places. So what we are talking about statistically is a fraction of 

a fraction of 1 percent of the properties that are now listed on the 

National Register of Historic Places. 

Mr. GIBBONS. I apologize for interrupting you, but my time is 

very short. I want to get to two major points that I want to make. 

If the fact the Service agrees that a property merits eligibility 

and recognition as a historical place and there is an owner’s objection to that listing and there is a secondary effect to that listing 

and yet the Service believes that it should go forward with the listing regardless of the owner’s objection, isn’t due process, as you 

heard earlier, a fundamental right of the property owner and 

shouldn’t the Service then utilize its condemnation authority or 

some type of condemnation authority and compensation of an 

owner for the loss of the property right or the validation due to listing if it is objected to by the owner? 

Mr. TILLER. Complex question. Again, with respect, Congressman, none of these properties has been listed on the National Register. 

Mr. GIBBONS. No. But I am just saying if there were. 

Mr. TILLER. I understand, sir. 

Secondly, and I think importantly, conferring or listing a property on the National Register of Historic Places in the United 

29

States as we have stated confers no control on behalf of the Federal 

Government and little or none anywhere else. 

I have been in this business 25 years, and the Keeper has I suspect that or maybe a little bit more, also. This is the first time that 

we have come up with a situation like this throughout 1.2 million 

properties listed on the Register. 

In answer to your question, sir, the fact that a property is listed 

on the National Register of Historic Places or determined eligible 

for it conveys—the creation of the National Register was, first and 

foremost, honorific these 30-some years that it has been in existence. 

Secondly, it is viewed as a planning tool to indicate to State and 

local planners and people in the city there in which it exists that 

we have an important property here that you should consider as 

you think about the preservation and long-term effects of the business that you do. 

Thirdly, it conveys also and creates an opportunity for it to receive grant or tax projects, as you have heard from Ted Sanderson. 

There was an never an intent of putting a property on the Register 

or listing it as significant, that this leads to absolute preservation 

for all time forward. 

There are many ways to preserve. You can document before you 

demolish it. There is not necessarily an iterative line between on 

the National Register, and it must be preserved. 

The National Park Service, we have 388 units in the National 

System. The 1.2 million number of properties on the National Register, under no circumstances would we, the Park Service, consider 

these for condemning and making units of the National Park System. They are strictly there for honorific and planning purposes. 

Mr. GIBBONS. Let me ask one final question before my time runs 

out. And I want to flip the coin. 

Because, at Lake Tahoe there is a place called the Dreyfus Estate, Thunderbird Lodge, built in the turn of the century, 20th century, beautiful, magnificent artwork, in the rock construction, listed as a historic place, owned and—sits on property owned by the 

Forest Service which was transferred to the Forest Service subsequent to the construction of the property. 

The estate is still there run by a non-profit for tours. However, 

the Forest Service indicated that because of the liability it would 

like to get the property back, and its intent in getting the property 

back would be to tear down the Dreyfus Estate or the Thunderbird 

Lodge. 

There is nothing in the law which prevents the Federal Government from going in and tearing down a place, even though it is registered as a historic place. So it should not impose a private citizen’s right to go in and tear something down simply because it is 

a historically registered place. Would you agree with that presumption or not? 

Mr. TILLER. I agree with that, and nothing in the finding of eligibility in Federal law prevents Mr. Bisno from tearing down the 

Lincoln Place Apartments. Where he has been snagged is municipal law, not the Federal law. 

Mr. GIBBONS. Thank you, Mr. Chairman. 

Mr. RADANOVICH. Thank you Mr. Gibbons. 

30

Mr. Udall, Mr. Tom Udall, did you have any questions? 

Mr. UDALL OF NEW MEXICO. Thank you, Mr. Chairman. 

I wanted to ask Mr. Nau about the activities of his Advisory 

Council with regard to—there is a recent ruling in the Circuit 

Court of the District of Columbia called National Mining Association versus John Fowler. Are you familiar with that case? 

Mr. NAU. I came in as chairman right in the middle of that, Congressman. I have a little bit of knowledge, which makes me dangerous. Mr. Fowler is here, so he is a little bit more on point. 

Mr. UDALL OF NEW MEXICO. Why don’t you share with me a little bit of your knowledge as it relates to your Council on that decision? 

Mr. NAU. I am serious. I came in right at the absolute end of it. 

May I refer to Mr. Fowler? 

Mr. UDALL OF NEW MEXICO. I don’t know if the Chairman wants 

another witness or not. 

Mr. NAU. I think he would be the right person to answer the 

question, Mr. Chairman. 

Mr. RADANOVICH. That would be fine. 

Mr. Fowler, if you would state your name and title before you answer the question, that would be fine. 

Mr. FOWLER. My name is John Fowler. I am the Executive Director of the Advisory Council on Historic Preservation and the defendant in the case of National Mining Association versus Fowler, 

which I would note was previously National Mining Association 

versus Nau, but they gave me the dubious distinction of naming 

the appellate case for me. 

The case goes back to a challenge that was made by the National 

Mining Association 2 years ago, 3 years ago, to new regulations 

that were issued by the Advisory Council on Historic Preservation 

to implement Section 106 of the National Historic Preservation Act. 

To state it very simply, the district court dismissed the challenge 

to the Council regulations on most counts. There were two minor 

points where they ruled in favor of the Mining Association. The 

Mining Association appealed on the issue of whether the definition 

of undertaking, under Section 106 of the National Historic Preservation Act, included permits that are issued by State or local authorities under color of Federal law, such as a permit under the 

Surface Mining Control and Reclamation Act that is issued by a 

State under Federal delegation. 

The Mining Association, which obviously is very concerned about 

the application of Section 106 to State-issued mining permits, took 

that as their one issue on appeal. The appellate court, in a decision 

that was handed down on April 15th, ruled in favor of the Mining 

Association, citing a previous case that the full D.C. Court of Appeals had ruled on several years ago. They said they were bound 

by the precedent of that case and, under that precedent, if there 

was no direct Federal involvement in an undertaking, Section 106 

of the National Historic Preservation Act would not apply. 

So that ruling was handed down by a panel of the D.C. Circuit. 

The period for determining whether a rehearing en banc will be 

filed has been extended to June 30th. The Council is currently in 

discussions with the Justice Department regarding the government’s position on a petition for rehearing. 

31

Mr. UDALL OF NEW MEXICO. Is it fair to say, Mr. Fowler, that 

the ruling would impact historic preservation pretty severely? 

Mr. FOWLER. The ruling would directly impact the application of 

Federal protections to such things as permits for surface mining 

issued under the Service Mining—under SMCRA and several other 

statutes. 

Mr. UDALL OF NEW MEXICO. Mr. Fowler, you and Mr. Nau serve 

together on the Advisory Council? 

Mr. FOWLER. I am the head of the staff. Mr. Nau is the head of 

the agency appointed by the president. 

Mr. UDALL OF NEW MEXICO. Is the Council itself urging the Justice Department to ask for an en banc review by the D.C. Circuit 

Court or willing to ask for a further Supreme Court review of this? 

Mr. FOWLER. I will defer to my Chairman. 

Mr. NAU. The answer is yes. 

Mr. UDALL OF NEW MEXICO. OK. And the time period is still for 

June 30th? It has been extended? 

Mr. NAU. Yes. 

Mr. UDALL OF NEW MEXICO. So your Council is weighing in on 

this? 

Looking at your responsibilities that are laid out in the statute, 

it seems to me that that is a prudent thing to do; and I would urge 

you to do that. I hope that you may be successful on this, because 

it directly impacts my State of New Mexico. It may well impact a 

lot of the other States of members on this Committee, and obviously ones that aren’t on the Committee. 

Thank you. I see my time is up. 

Mr. RADANOVICH. Mr. Duncan, did you have any questions? 

Mr. DUNCAN. Well, I have got a few. I apologize. I was at another 

hearing, so I didn’t get to hear all of the testimony, so I won’t have 

many questions. 

But let me ask, can any of the witnesses tell me roughly how 

many properties are on the National Register at this point? 

Mr. TILLER. At the moment, there are a little in excess of 1.2 million properties and 76-some thousand listings. 

Mr. DUNCAN. I don’t understand the difference between a property and a listing. 

Mr. TILLER. In Charleston, South Carolina, the Charleston Historic District is one listing, but it may contain 500 properties. So 

some of the listings in the National Register are one house, Mt. 

Vernon, and that is the one. Charleston Historic District may have 

500 properties. 

Mr. DUNCAN. 1.2 million you say? 

Mr. TILLER. Yes, sir. RPTS BRYANDCMN HERZFELD[3 p.m.] 

Mr. DUNCAN. And how many requests roughly do you get each 

year for new listings or new properties? 

Mr. TILLER. As I mentioned—Carol, do you off the top of your 

head remember what last year’s listing was? 

Mr. RADANOVICH. You are going to need to repeat that for the 

record. 

Mr. TILLER. Mr. Chairman, 1,454 nominations, including 40,141 

properties. 

Mr. DUNCAN. And what was the first year the list was set up? 

32

Mr. TILLER. The late 1960’s. It was authorized in the 1966 act, 

and I think—well, automatically a lot of the national park properties got added to it, so that came almost automatically in 1966. 

Mr. DUNCAN. So the late 1960’s, is that what you said? 

Mr. TILLER. Yes, sir. 

Mr. DUNCAN. What I am getting at, about how many listings did 

you have each year back in, say, the late 1960’s and early 1970’s? 

In other words, what I am wondering about, is this something that 

is increasing every year, or are we listing or having a lot more 

properties listed? In other words, if I asked you for the statistics, 

say, 20 years ago, what would that 1.2 million figure have been 10 

years ago or 20 years ago? 

Mr. TILLER. Sir, I don’t have those trends. I know in recent history it has been fairly constant each year. We certainly can get you 

that information over the life of the program. 

Mr. DUNCAN. I would be interested in seeing that. And I understand, and I didn’t get to hear his testimony, but I understand 

that, Mr. Bisno, that your property—that the Los Angeles City 

Council or the city of Los Angeles found that your property was not 

historic, but then later on the State came in and found that it was? 

Or what was the situation there? 

Mr. BISNO. The planning staff, the planning commission, Cultural Heritage, Planning, Land Use Management Subcommittee of, 

and the City Council of Los Angeles found that we were not locally 

significant. Acting pursuant to the Federal law, SHPO forwarded 

our application to the Keeper, and that started a world of problems 

for us. It has stopped commercial development, has trampled our 

rights. And Mr. Tiller would suggest that the Federal law didn’t 

snag us, and I just can’t agree with that, sir. The city of Los Angeles is on the same side as we are. The Federal law is supposed to 

be neutral, and the Federal law is not neutral if, over the owner’s 

objection, we are going to be eligible for listing, because that triggers, even if the city is on our side, litigation in the hands of third 

parties, which suggests the result that we have encountered. And 

I would suggest that if the Federal legislation is intended not to 

interfere with property owners’ rights, then we can alleviate, ameliorate our problem by simply changing the legislation to have it 

not be in effect when a property owner objects. 

Mr. DUNCAN. Well, it seems to me that if we already have 1.2 

million properties on the list now, and if a person is truly willing 

to more than just pay lip service to a belief in private property, 

that this process shouldn’t be able to be done over the objection of 

a private property owner. One of the foundation stones of our freedom and our prosperity is private property, and I am sure that everybody here today would say they believe in private property, but 

you really don’t if you believe that this type of thing should be done 

over the objections of the property owner. 

Thank you very much, Mr. Chairman. 

Mr. RADANOVICH. Thank you, Mr. Duncan. 

Mr. Mark Udall. 

Mr. UDALL OF COLORADO. Thank you, Mr. Chairman. I want to 

recognize the panel. Thank you for taking time out of your day for 

joining us. It has been very helpful to me to hear this debate and 

discussion. 

33

As a preface, I would just say that I think we would all agree 

that the historic preservation program has been very successful 

across a broad range of cities and towns in America, and that the 

discussion by Mr. Bisno, about a particular difficult situation. I 

hope I will have enough time to hear a little bit more from Mr. 

Bisno. 

But I want to just do what I can with Mr. Tiller, to understand 

that it is the difference between eligibility and listing. 

Now, Mr. Tiller, under the Federal law, can a private property 

be listed on a Federal register if the owner objects? 

Mr. TILLER. No, sir, it cannot. 

Mr. MARK UDALL. It cannot. And as a matter of Federal law, 

what is the significance of a listing, and how does that differ from 

a finding of eligibility for listing? 

Mr. TILLER. Congressman, there is actually—there are three 

things sort of cutting back and forth here. What we call a formal 

listing on the National Register of Historic Places is when the property owner or a nomination is submitted to the national register, 

and the form is filled out, and it is located on the map, and there 

are photographs provided and submitted to and through the 

State—Governor-appointed State historic preservation office, and 

then if the review board of the State passes on it, it comes to the 

Keeper of the National Register of Historic Places, and her staff reviews it for technical sufficiency and also the scholarship. If it 

passes all of those hurdles, it is entered into the National Register 

of Historic Places. It becomes officially part of the list. 

The second area is within the 106 arena with our colleagues and 

friends on the advisory council who co-administer this part of the 

process. In the 106 process, when a Federal agency is undertaking 

a project anywhere in the United States, the question is asked, are 

there historic properties in the impact area? And the first question 

is, are there any on the national register, and that is answered. 

But then the other question is asked, are there other properties we 

may not know anything about? And the State and the Federal 

agencies work to identify those. Those are called opinions on eligibility or sometimes consensus determinations. They do not—they 

are not listed on the national register, but they are at least determined if there is something that appears to meet national register 

criteria in the area, and neither the advisory council nor the 

National Park Service gets involved in this. This is just a finding 

of fact between the Federal agencies. 

The third category is what brings us here today, which is called 

the determination of eligibility, or the owner object determination 

of eligibility. In those rare instances, and, as I said, it is less than 

1 percent every year of these sorts of activities, there is a citizen 

that submits a nomination to the Keeper of the national register 

through that same process I described, but the owner objects to it. 

And the Keeper nonetheless makes a determination whether he or 

she believes it is eligible for the register, but it is not listed, and 

it brings no Federal restrictions on what happens to that. It is, in 

fact, never listed. 

So there are really three types of categories we are talking about 

here. 

34

Mr. UDALL OF COLORADO. Mr. Bisno, you had some recommendations, and I want to make sure you have a fair hearing here and 

that we have a chance to review what you suggest. My understanding right now is that, in effect, you have become caught in a 

web that is more the making of local and State law than it is the 

Federal law, and that what you are requesting us to do would perhaps be better done at the local or the State level. Do you—would 

you like to comment on that and edify me further or give me a little more insight into the situation in which you find yourself? 

Mr. BISNO. Well, the city of Los Angeles and the Lincoln Place 

Apartment owners don’t have any disagreement, so we are not 

caught in city law. The city of Los Angeles has consistently taken 

the position that this property has no historical significance worth 

protecting. And so I can’t really agree that we are caught in city 

law, because we and the city of L.A. are lined up on the same side. 

On the other side is the Lincoln Place Tenants Association, and 

their position is, they are able to assert this in court, that the 

starting of this procedure, through SHPO, which is part of the Federal process, and I am not suggesting that this is the right position, 

but this is the position they are contending— 

Mr. UDALL OF COLORADO. Sure. 

Mr. BISNO. It has brought our project to a halt, and it has been 

a detriment to the community down there, but their position is the 

starting of this procedure, SHPO forwarding the application to the 

Keeper, is sufficient official action that we should not be given 

demolition permits or the right to redevelop our property. 

Now, if we are only talking about 167 properties over the course 

of thousands or tens of thousands, it would seem to be a relatively 

easy loophole for Congress to fix, modifying the current matrix to 

provide that, over an owner’s objection, you just don’t get on this 

list. You don’t start the process. That is my suggestion. 

Mr. UDALL OF COLORADO. I see my time has expired, but I would 

say that I understand what you are pointing out. We have had 

some 99 percent of the application process work out fine for everybody involved. We have the 1 percent that maybe you are in, or an 

even much smaller percentage of the 1 percent, but that doesn’t reduce the headache and the heartache that you have experienced. 

But we have to be careful, I think, in looking at changing the law 

that we would have unintended consequences on the 99 percent of 

the processes that seem to unfold successfully. 

So I thank the panel, and I thank the Chairman for his indulgence. 

Mr. RADANOVICH. Thank you, Mr. Udall. 

Mr. Bishop, did you have any questions? 

Mr. BISHOP. No. 

Mr. RADANOVICH. None now? Thank you. 

I do have a couple of questions that I want to make sure that 

get asked and into the record here, not the national record, but just 

a reminder, this is a hearing on the reauthorization of the advisory 

council. 

Mr. Nau, I wanted to ask you to comment on this. You mentioned as one of your recommendations to expand membership by 

directing the President to designate the heads of three additional 

35

Federal agencies to the Commission. Can you tell me which agencies you think should be added and why? 

Mr. NAU. Mr. Chairman, let me take the why first and then come 

back to the three. 

The original intent was to have various agencies sit on the council that have programs that impact historic properties throughout 

the country. There are four that are Presidentially designated. As 

we went through working with the Administration and creating the 

Preserve America Program, it became clear to those of us on the 

council that there are other departments, other agencies that clearly have an impact on aspects of historic preservation as historic 

preservation exists today and into the future. There are clearly economic development benefits through heritage tourism and other 

programs. The only agency that traditionally deals in that arena is 

obviously the Commerce Department, and particularly the Economic Development Administration. 

Secondly, one of the long-term benefits of heritage tourism and 

preservation is the education of the youth of America and, quite 

honestly, foreign visitors to the American values. The only place 

that you can touch American values is in these locations. So obviously, it is the Department of Education and that should be added. 

The third is an agency whose programs impact thousands of historic properties all over the country every year—the Department of 

Housing and Urban Development. 

So I don’t want to presuppose, this is up to the President to 

nominate these agencies, but the three that we would recommend 

to him would be Commerce, Education, and HUD. 

Mr. RADANOVICH. Very good. Thank you. 

Mr. Nau, I want to get your comment on the issue at hand here 

with Mr. Bisno. And to lead into that, I understand that the State 

of New York and, I think, the State of Texas typically do not make 

eligible, and correct me if I am wrong, any particular property unless if the private property owner objects to it. It seems to me it 

is decided differently State by State on how these things are handled. Do you think, given what you have heard here, that it would 

just be a flat-out requirement that every State could not do this, 

and if so, can you tell me why? 

Mr. NAU. Well, you have heard Mr. Tiller identify the three different classifications. I would like to zero in on one, because there 

is a clear difference between listing and eligibility. 

Mr. RADANOVICH. Correct. 

Mr. NAU. And the question to me, when I heard of this— and I 

agree, Mr. Bisno, he has obviously been a victim, or the process has 

been abused, there is no question, from my perspective—but why 

would we have a system that would allow an eligibility level without the owner’s consent? 

Go back to 1966 and why Act this was created in the first place. 

Take the building of the Interstate Highway System. There were 

hundreds, if not thousands, of historic properties where these interstates were cutting through. The question became how can the 

preservation community engage or be engaged in the process when 

the U.S. Transportation Department does something, or HUD does 

something? So the system of eligibility simply allows that property, 

if it is going to be impacted by a Federal undertaking, to come 

36

under the Section 106 process review, as Mr. Tiller said. It does not 

require owner consent, and as we have all identified in 99 percent 

of these projects, there is no adverse impact from the eligibility status of the property; it simply allows it to engage a Federal process 

through the 106. I would say that that is a good outcome. 

I also would suggest that there is a gatekeeper issue here from 

my perspective, and I think from the Council’s; the Keeper is a 

gatekeeper and the SHPO is the gatekeeper, and if there is a disconnect, it is somewhere not at the Federal side of this, it is a disconnect at the—in this particular case it would appear at the State 

level. 

But I would again point out that there is a logical reason for having an eligibility level in here that does not require an owner’s consent. If we were to go to that, because there is no adverse effect 

at the Federal level, I am absolutely convinced of that—if we were 

to go to that and require owner consent, or at least owner awareness, it would, from an efficiency standpoint, slow down an awful 

lot of the Section 106 reviews, because in most cases, the owner 

doesn’t need to know that there is a review going on on a 106 basis. 

In most cases they are ultimately involved anyway, but there is no 

adverse effect. 

So I would point out that there was a reason for it. The reason 

still exists. We have to figure out how to fix the gatekeeper, and 

I would say that the Council would love to be part of the process 

of addressing this particular issue, because Mr. Bisno has clearly 

shown that there is a break. I don’t think it is completely broken, 

but there is a break in the process in this case. Thank you. 

Mr. RADANOVICH. Thank you, Mr. Nau. 

A couple of wrap-up questions, I think. 

Mr. Tiller, I would like you to comment on this. You mentioned 

in your testimony that under the National Historic Preservation 

Act, a property owner is under no obligation to protect the historic 

property following a determination of eligibility. Thus, a determination of eligibility by the Keeper is not intended to adversely impact 

a property owner’s right. That is correct, isn’t it? 

Mr. TILLER. Yes, Mr. Chairman. 

Mr. RADANOVICH. If the Federal Government is not intending to 

affect a private property owner’s rights by determination of eligibility, what is the point of the Federal Government making such 

a determination against an owner’s wishes? 

Mr. TILLER. When this piece of policy was created, when this was 

written into the law, which was before my time in this business, 

but my understanding was that the Congress had intended largely 

three things: one, to create some record of what was there for future generations if the property is demolished or so denatured; second, to create information for local and regional and statewide 

planning purposes, to put a dot on the map and say, there is something here that we need to pay attention to now and in future generations; and I think third, although of less weight, is if there is 

a new property owner, that he or she can go ahead and get the 

property listed and get tax and grant benefits that are offered 

under the aegis of these SWITA programs. But I know the policy 

intent at the time was to impose no punitive and no restrictive 

rights on the—controls on the private property owner. 

37

Mr. RADANOVICH. Thank you, sir. 

Mr. Sanderson, I do have a question of you. A determination of 

eligibility is an official determination that can be made only by the 

Keeper of the national register; that is correct, is it not? It cannot 

be made by the SHPO; is that true? 

Mr. SANDERSON. That is correct. Actually a determination of eligibility, as I understand it, can be made by the Keeper, by the Secretary of the Interior, or by the Congress itself. 

Mr. RADANOVICH. But not by the SHPO. 

Mr. SANDERSON. Not by the SHPO. 

Mr. RADANOVICH. Do you know why the California SHPO is unwilling to send a letter to Mr. Bisno confirming that the California 

SHPO had not made a determination for Mr. Bisno’s property? 

Mr. SANDERSON. I am not aware of that particular situation at 

all. I am not aware that a request has been made or what action 

the SHPO may have taken on that. I would note that the SHPO 

and the State review board are both part of a multi-tier process. 

We have talked about the national register process this afternoon, 

and they do have an involvement in that process. 

So I think in Rhode Island where I run the preservation program, if I received a request like that, I think I probably would 

write a letter. I would probably begin that letter by explaining the 

role of the Keeper and the fact that only the Keeper can make an 

official Federal determination of eligibility, and then I would probably report on whatever action the State review board had taken, 

if it had looked at the property simply as a matter of fact, whether 

they had looked at the property and what conclusions they had 

reached, and I would probably report on whether I and my professional staff had looked at the property and whether we had developed any professional opinion about its significance or in relation 

to criteria. 

Mr. RADANOVICH. Thank you, Mr. Sanderson. I appreciate that 

comment. 

Mr. Bisno, did you want to react to that? 

Mr. BISNO. Mr. Chairman, I would like to comment first to what 

Mr. Sanderson just said and then to what Mr. Tiller said, and to 

put on the record that we have asked SHPO in California two or 

three times as recently as last week to write a letter to us telling 

us that no official action had been taken. We would find that letter 

valuable in our litigation against the Lincoln Place Tenants Association. The first request was 3, 4 weeks ago. We have received no 

letter for whatever reason. The keeper has refused—pardon me, 

SHPO has refused to write such a letter. It is surprising to us. 

Second, the matrix here is not to impact private property rights. 

That is the overall theory. Federal law allows the government to 

buy or condemn a property if the Federal Government believes it 

should be preserved. If the government does not believe the property is sufficiently important to acquire it, it should leave the matter to local government. But in this case SHPO is acting as an 

agent of the Federal Government. It is not performing an independent State government function, and therein we find the problem that we have arrived at today. 

Mr. RADANOVICH. Thank you very much. 

38

Mr. Bisno, if the national register process is not intended to affect your rights, why do you think that the application—that the 

applicants have fought so hard to make sure that your property is 

determined eligible? 

Mr. BISNO. The actions of the Lincoln Place Tenants Association 

speak volume as to their view that the national process does affect 

our rights. 

Mr. RADANOVICH. Right. Thank you. 

Any other questions, Mr. Duncan or Mr. Bishop? 

Ms. CHRISTENSEN. If I could just follow up on that. But it is the 

States or the city of Los Angeles really that has determined that 

their—part of their criteria is the eligibility. It is not what we are 

doing through the Federal law, it is through what Los Angeles does 

and what they decide. They decided that part of their criteria 

would be the eligibility, and that is what is creating the problem 

for you, isn’t it? 

Mr. BISNO. The current litigation with the Lincoln Place Tenants 

Association has the city of Los Angeles and our company on the 

same side, so, no, I do not see this as a dispute with the city of 

Los Angeles. 

Ms. CHRISTENSEN. OK. Who issued the demolition permit? 

Mr. BISNO. The city of Los Angeles. 

Ms. CHRISTENSEN. But they are refusing to do it based on the 

eligibility? 

Mr. BISNO. No. The Lincoln Place Tenants Association has now 

filed a proceeding within the city of Los Angeles which has temporarily stopped the demolition permit. The city of Los Angeles in 

this case will be the arbiter of the third party. 

Mr. RADANOVICH. Thank you. 

Mr. Nau, in your capacity as chairman of the advisory council, 

is it within the purview of the advisory council to take up issues 

like this and make recommendations? The reason I ask that was 

that there seemed to be some openness to want to work, or at least 

to review the Bisno situation to see if there were changes that 

could be made. 

Mr. NAU. We would—Mr. Sanderson sits as a member of the 

council, and we could play, I think, a catalytic role, but we would 

have no formal role. That is why I wanted to understand the question. But if this came to our attention, we would then be able to 

carry that back through the particular SHPO office to Mr. 

Sanderson and his organization, yes. 

Mr. RADANOVICH. Is there a way that the Committee could hear 

back the results of something like that? 

Mr. NAU. Certainly. Absolutely. 

Mr. RADANOVICH. OK. All right. Well, thank you. 

Gentlemen, thank you so much for again taking time out of your 

day to be here and to discuss this topic. I appreciate your being 

here and the information you provided. 

With that, this hearing is adjourned. 

[Whereupon, at 3:30 p.m., the Subcommittee was adjourned.]

Æ