[MassHistPres] CPC funds prevailing wage and volunteers on town owned building
Tucker, Jonathan
tuckerj at amherstma.gov
Thu Apr 21 17:12:04 EDT 2016
Sara et al:
Actually, I went where I was led by the DOI website when I asked it for 36 C.F.R. Part 68, but I stand corrected in terms of what is Part 67 and what is Part 68.
When we are parsing what the CPA statute requires, however, I think that in requiring rehabilitation (as defined in the CPA statute) to comply with the Part 68 standards, the CPA statute is referring to how eligible rehabilitation activities proceed once they have been approved, rather than trying to use Part 68 to define what rehabilitation is in advance. The CPA statute already defines rehabilitation for the purpose of MA communities, and my point in citing Part 68 was to provide some of the long-established context of historic preservation practice that gives meaning to (or should give meaning to) the implementation of the Community Preservation Act with respect to the preservation of local historic resources.
Here's how DOI defines "preservation":
"Preservation is defined as the act or process of applying measures necessary to sustain the existing form, integrity, and materials of an historic property. Work, including preliminary measures to protect and stabilize the property, generally focuses upon the ongoing maintenance and repair of historic materials and features rather than extensive replacement and new construction. New exterior additions are not within the scope of this treatment; however, the limited and sensitive upgrading of mechanical, electrical, and plumbing systems and other code-required work to make properties functional is appropriate within a preservation project."
If we were going solely by DOI's definition, the eligibility of repainting an historic building wouldn't even be a question. Any action "necessary to sustain . . . protect and stabilize" the building would qualify.
How does the CPA statute define preservation? With extraordinary brevity and breadth (again, because it's trying to cover what preservation might mean for open space, housing, and recreation, as well as historic preservation):
'''Preservation'', protection of personal or real property from injury, harm or destruction."
Which then gives meaning to the definition of "'Community preservation' . . . the acquisition, creation [!] and preservation of historic resources."
Well, then how is repainting an historic building not preservation--not the "protection of . . . real property from . . . harm or destruction, etc."? How is it not a "capital improvement" constituting rehabilitation under the CPA Statute that "materially adds to the value of the real property or appreciably prolongs [its] useful life"?
In short, the limitations being placed on interpretations of CPA eligibility have nothing to do with existing CPA statutory "standards that have to be followed". The statute speaks for itself, and says something different. The "standards" in question are instead interpretations developed by DOR which, with all respect for those doing a very difficult job, represent an overly-simplistic, context-less implementation of the CPA that has nothing to do with--and effectively obstructs--the practice of historic preservation and its needs at the local level.
I understand the importance of trying to make limited CPA funds go as far as they can, but creating interpretations that essentially say that historic preservation cannot include the most basic and most critical aspects of preserving local historic resources--keeping historic buildings from deteriorating in New England weather, conducting studies so that a community knows what historic resources it has to preserve, creating new interpretive materials so that a community can know enough about its historic resources to care about preserving them, etc., etc.--those limitations seem to me both nonsensical and utterly contrary to the purposes of the Act. And the lack of clarity about this is creating significantly different and sometimes contradictory uses of CPA funds across the state. It doesn't make sense.
Maybe we do need to amend the Act. But let's see if we can't enlist the help of MHC first, and see where it goes from there.
Jonathan Tucker
Senior Planner
Amherst Planning Department
4 Boltwood Avenue, Town Hall
Amherst, MA 01002
(413) 259-3040
tuckerj at amherstma.gov
-----Original Message-----
From: masshistpres-bounces at cs.umb.edu [mailto:masshistpres-bounces at cs.umb.edu] On Behalf Of Sara Wermiel
Sent: Wednesday, April 20, 2016 4:00 PM
To: 'MA Historic Preservation'
Subject: Re: [MassHistPres] CPC funds prevailing wage and volunteers on town owned building
A few thoughts on this:
1. Regarding Jonathan's comments: Jonathan quotes 36 C.F.R. Part 67, but the CPA required rehabilitation to comply with 36 C.F.R. Part 68. The standards for rehab in both parts are very similar, but Part 67 is applicable to the Federal 20% historic rehabilitation tax credit program specifically.
2. Considering the tax credit program, rehab work -- to qualify -- must be "substantial:" to quote the NPS website, "In brief, this means that the cost of rehabilitation must exceed the pre-rehabilitation cost of the building."
Depends on the building, but it's unlikely painting only would qualify for tax credits, if that was the entirety of a rehab project.
3. It's possible that volunteer or not-so-volunteer workers could do work according to the Secretary of the Interior's Standards, but if CPA funds are used, according to the law, the standards have to be followed.
Sara Wermiel
Jamaica Plain, MA
-----Original Message-----
From: masshistpres-bounces at cs.umb.edu
[mailto:masshistpres-bounces at cs.umb.edu] On Behalf Of Roughan, Michael
Sent: Wednesday, April 20, 2016 11:51 AM
To: Tucker, Jonathan <tuckerj at amherstma.gov>; Dennis Sears <HDennisSears at verizon.net>; 'sally urbano' <urbanosally at yahoo.com>; 'MA Historic Preservation' <masshistpres at cs.umb.edu>
Subject: Re: [MassHistPres] CPC funds prevailing wage and volunteers on town owned building
Jonathan,
Once again I appreciate your due diligence. With your permission, I would like to forward your "Brief" to my associates in the Town Building Department and CPC to see if I can get consensus on this reinterpretation of painting as rehabilitation instead of maintenance.
....Mike
Michael Roughan, AIA, EDAC, LEED AP
D +1.617.357.7725 M +1.617.784.6463
-----Original Message-----
From: Tucker, Jonathan [mailto:tuckerj at amherstma.gov]
Sent: Wednesday, April 20, 2016 11:40 AM
To: Roughan, Michael; Dennis Sears; 'sally urbano'; 'MA Historic Preservation'
Subject: RE: [MassHistPres] CPC funds prevailing wage and volunteers on town owned building
Well, here's a shot at refutation.
The CPA statute (MGL Ch. 44B, Sec. 2) includes the following definitions:
''Capital improvement'', reconstruction or alteration of real property that:
(1) materially adds to the value of the real property or appreciably prolongs the useful life of the real property; (2) becomes part of the real property or is permanently affixed to the real property so that removal would cause material damage to the property or article itself; and (3) is intended to become a permanent installation or is intended to remain there for an indefinite period of time.
"Rehabilitation", capital improvements, or the making of extraordinary repairs, to historic resources, . . . with respect to historic resources, ''rehabilitation'' shall comply with the Standards for Rehabilitation stated in the United States Secretary of the Interior's Standards for the Treatment of Historic Properties codified in 36 C.P.R. Part 68 . . . ."
And here are the Secretary of the Interior's Standards (36 C.P.R. Part 68):
"Rehabilitation projects must meet the following Standards to qualify as "certified rehabilitations" eligible for the 20% tax credit for historic preservation.
The Standards are applied to projects in a reasonable manner, taking into consideration economic and technical feasibility.
1. A property shall be used for its historic purpose or be placed in a
new use that requires minimal change to the defining characteristics of the building and its site and environment.
2. The historic character of a property shall be retained and
preserved. The removal of historic materials or alteration of features and spaces that characterize a property shall be avoided.
3. Each property shall be recognized as a physical record of its time,
place, and use. Changes that create a false sense of historical development, such as adding conjectural features or architectural elements from other buildings, shall not be undertaken.
4. Most properties change over time; those changes that have acquired
historic significance in their own right shall be retained and preserved.
5. Distinctive features, finishes, and construction techniques or
examples of craftsmanship that characterize a historic property shall be preserved.
6. Deteriorated historic features shall be repaired rather than
replaced. Where the severity of deterioration requires replacement of a distinctive feature, the new feature shall match the old in design, color, texture, and other visual qualities and, where possible, materials.
Replacement of missing features shall be substantiated by documentary, physical, or pictorial evidence.
7. Chemical or physical treatments, such as sandblasting, that cause
damage to historic materials shall not be used. The surface cleaning of structures, if appropriate, shall be undertaken using the gentlest means possible.
8. Significant archeological resources affected by a project shall be
protected and preserved. If such resources must be disturbed, mitigation measures shall be undertaken.
9. New additions, exterior alterations, or related new construction
shall not destroy historic materials that characterize the property. The new work shall be differentiated from the old and shall be compatible with the massing, size, scale, and architectural features to protect the historic integrity of the property and its environment.
10. New additions and adjacent or related new construction shall be
undertaken in such a manner that if removed in the future, the essential form and integrity of the historic property and its environment would be unimpaired."
So, under CPA, any capital improvement of an historic resource specifically includes actions "which appreciably prolong[s] the useful life of the real property" and "is intended to remain there for an indefinite period of time." I'd like to see someone try to argue that repainting an historic building to ensure its long-term survival, or even to restore its original color scheme (where that has significant historical meaning) does not meet those standards.
For those unfamiliar with historic preservation practice, it is understandable that they might think this is just "maintenance." But it is not maintenance. Under nearly a century of national, state and local practice of historic preservation, doing ANYTHING that physically sustains, prolongs, and protects an historic resource, including repainting or repairing an historic structure, is "preservation." Technically, in most cases, it qualifies as the form of preservation referred to as rehabilitation, something that is explicitly allowed for under CPA. The Secretary of the Interior's standards explicitly presume that such changes will include actions which require maintaining consistency in "design, color, texture, and other visual qualities." Certainly repainting an historic structure to--for instance--maintain its historic appearance (much less keep it safe from weather) is anticipated by those federal standards.
This is, again, where communities need MHC to step up and help DOR and the CPC understand what their responsibilities entail with respect to implementing the historic preservation aspects of the Community Preservation Act. Failing that, it might be necessary to ask the courts to resolve this question. It might also be useful to approach the National Park Service for help, as well.
Jonathan Tucker
Senior Planner
Amherst Planning Department
4 Boltwood Avenue, Town Hall
Amherst, MA 01002
(413) 259-3040
tuckerj at amherstma.gov
-----Original Message-----
From: masshistpres-bounces at cs.umb.edu
[mailto:masshistpres-bounces at cs.umb.edu] On Behalf Of Roughan, Michael
Sent: Tuesday, April 19, 2016 3:14 PM
To: Dennis Sears; 'sally urbano'; 'MA Historic Preservation'
Subject: Re: [MassHistPres] CPC funds prevailing wage and volunteers on town owned building
Dennis,
Apparently this is a legal counsel interpretation that I would like to rebuke but I haven't been able to find any definitive ammunition.
....Mike
Michael Roughan, AIA, EDAC, LEED AP
D +1.617.357.7725 M +1.617.784.6463
-----Original Message-----
From: Dennis Sears [mailto:HDennisSears at verizon.net]
Sent: Tuesday, April 19, 2016 1:13 PM
To: Roughan, Michael; 'sally urbano'; 'MA Historic Preservation'
Subject: RE: [MassHistPres] CPC funds prevailing wage and volunteers on town owned building
Michael, are you telling me the Town defines "painting" as maintenance? I'm not sure about Mass, but in most cases and I think the Feds, "painting" when you are doing it as a restoration or to increase the value of property and the amount is beyond what most people would consider "touch up"; ie those nicks in the paint along side of the stairs where you carried things in and out, would consider this a "capital" item that could and should be covered under CPA. I'd be interested in getting an answer in case we ever run into this in our Town. Dennis Sears, Chair Town of Sheffield Historical Commission.
-----Original Message-----
From: masshistpres-bounces at cs.umb.edu
[mailto:masshistpres-bounces at cs.umb.edu] On Behalf Of Roughan, Michael
Sent: Tuesday, April 19, 2016 9:50 AM
To: sally urbano <urbanosally at yahoo.com>; MA Historic Preservation <masshistpres at cs.umb.edu>
Subject: Re: [MassHistPres] CPC funds prevailing wage and volunteers on town owned building
Sally,
As previously stated on this group listserv, Hopkinton is struggling with the same issues you are. Since the "official" town interpretation is we can't use CPA funds for maintenance, we've asked the town to paint the exterior of one of the historic homes (McFarland Sanger) while we secure additional CPA funds to reconstruct the front (south) side from sill to roof. Unfortunately, once the funds are secured we will have to bid the work out, but we are hopeful that we can work with a North Bennett St School / Keefe Tech to have the work done by a faculty / student program. The only dilemma is you need the funds secured first and the group needs to have the availability.
The HHC's intent is to restore the house to the point where it can serve beneficial use but we have not yet secured a tenant and may end up selling it with a deed restriction. This is something we recently did with a historic farmstead (Elmwood Farms) and the owner is doing a fabulous job of restoration of both the house and barn. As you know, your challenge will be, once you've renovated the schoolhouse, how do you maintain it?
As for the volunteer approach, we have another historic building (Train
Depot) that has been kept up primarily by volunteer labor from the HHC so we are cautious about taking on too many volunteer projects.
....Mike
Michael Roughan, AIA, EDAC, LEED AP
D +1.617.357.7725 M +1.617.784.6463
-----Original Message-----
From: masshistpres-bounces at cs.umb.edu
[mailto:masshistpres-bounces at cs.umb.edu] On Behalf Of sally urbano
Sent: Monday, April 18, 2016 11:02 AM
To: MA Historic Preservation
Subject: [MassHistPres] CPC funds prevailing wage and volunteers on town owned building
When i need help i have always found members of this group to be generous with their time.
Our volunteer group applied and received CPC support for the rehab and reuse of a Historic schoolhouse 1871. There has been an incredible amount of obstacles thrown in our path.
CPC wanted us to Have oversight through the town and apply for a smaller amount of money, which we did . We then applied for a matching grant.(outcome not yet known) The finance committee feels we haven't asked for enough money and because the town owns the building expects that we should bid out for prevailing wage. We leveraged the CPC money and were going to use the sheriffs program as well as the local Tech School. Not together of course.
We are being held to standards others are not as the library several years ago used the Sheriffs program and the town hall had them do some painting.
This scenario is similar to an orphaned historic building that sat for years unpainted. CPC said it was maintenance to paint, the town didn't have the money and so it sat until a volunteer group painted it.
I would love to hear your thoughts on this matter,
Thank You,
Sally Urbano Volunteer group
Harwich,mass
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