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LSS240:2015 Student Guide: Law

Created by students in LSS240 - Spring 2015

Introduction

Welcome! This page explores the legal aspect of cultural landscapes and historic preservation. Beyond the stakeholders, the physical space, cultural history, and other relevant details, cultural landscapes must go through a bureaucratic process from the beginning of designation to the end, as well as throughout the evolution of the site.  This process is complicated and can be confusing, but is an integral part of the study of cultural landscapes and historic preservation. This page highlights and explains several preservation laws that exemplify the legislation surrounding these places of significance.

We begin by looking at two pieces of national legislation that govern the historic preservation movement as a whole, and then explore further on a smaller scale through examples of a piece of local legislation in Massachusetts.

~Originally published May, 2015~

National Legislation: Section 106

Section 106 is a portion of the National Historic Preservation Act of 1966, which requires Federal Agencies to consider historically significant properties that could be affected through their endeavors, and requires the Advisory Council on Historic Preservation to be given an opportunity to review and comment.

What is the Advisory Council on Historic Preservation (ACHP)? It is responsible for overseeing and encouraging the preservation and use of historically significant resources, as well as advising Congress and the President. It enforces preservation laws and reviews federal programs to ensure that they comply with preservation policies, as is stated in Section 106.

This information and more is available here.

Section 106 4-Step Process as outlined by the U.S. General Services Administration:

  1. Notify relevant parties to begin consultation. This involves the appropriate federal agency, the State Historic Preservation Officer (SHPO) or the Tribal Historic Preservation Officer (THPO), and any other relevant parties: the ACHP, local governments, and other stakeholders within the public.
  2. Identify properties that could be affected by the project; determine if any of those properties are listed on the National Register of Historic Places.
  3. Consult with SHPO or THPO to determine the effects of any project on the properties in question, and determine if they are harmful. This determination is based on a standard set of criteria set by the ACHP.
  4. If the effects are deemed harmful, steps are taken to consider alternatives that could avoid or reduce impacts on historically significant sites. A Memorandum of Agreement (MOA) or a Programmatic Agreement (PA) is created, which legally binds the agency to comply with Section 106 and records the results of the consultation process.

*A flow chart that describes this process can be found here.

*As you can see, this law protects historic properties by ensuring that the government considers them before engaging in a possibly detrimental project. However, this law cannot prevent the destruction of or save a significant property or building, it can only assure that a conversation between governmental members will occur, hopefully minimizing damage on a historic/cultural resource.

Title 54: The National Park Service

undefinedCultural Landscapes include parks and wilderness areas which, in the United States, are often governmentally owned and operated by the National Park Service. In December 2014, Congress passed Title 54, which compiled laws relating to the National Park Service that were previously separate pieces of legislation. A description of this can be found on the National Park Service website.

Additionally, the Title in its entirety can be found here.

"National Park Service logo". Licensed under Public Domain via Wikimedia Commons - http://commons.wikimedia.org/wiki/File:National_Park_Service_logo.png#/media/File:National_Park_Service_logo.png

Local Example: CPA

Signed into law by Governor Paul Cellucci and Lieutenant Governor Jane Swift in September of 2000, the Community Preservation Act is a piece of Massachusetts legislation that helps towns and cities set up a Community Preservation Fund for the protection of historic preservation and open spaces, and for the creation of outdoor recreation spaces and affordable housing. Money is raised locally, through a surcharge. In order to adopt the CPA, communities must pass it via ballot referendum. Communities that adopt the CPA also receive yearly disbursements through a statewide Community Preservation trust fund, creating incentives for towns and cities to join. Projects funded by the CPA not only help to improve communities themselves by providing public spaces and ensuring public housing is available, but also serve to increase tourism by preserving history and historically significant areas.

Read the actual legislation text of the CPA here.

CPA Self-Described Accomplishments (via their website):

  • 158 communities have adopted CPA (45% of the Commonwealth’s cities and towns)
  • Close to $1.4 billion has been raised to date for community preservation funding statewide
  • Over 7,500 projects have been approved by local legislative bodies
  • Over 8,500 affordable housing units have been created or supported
  • 21,838 acres of open space have been preserved
  • Over 3,600 appropriations have been made for historic preservation projects
  • Nearly 1,250 outdoor recreation projects have been initiated


Read More About it here.

Massachusetts Communities that have Adopted CPA

Academic Resources

Nonprofit Involvement

Here are some links to non-profit involvement in the historic preservation/cultural landscapes lawmaking process. As these organizations are unrelated to the government, they provide a unique perspective and approach to preservation processes.

Media

Video of a forum on the Community Preservation Act in Northampton, where panelists voice their opinions on the CPA. This forum was sponsored by the Northampton Area League of Women Voters. Learn more at http://www.northassoc.org,

(Recorded by Adam Cohen)

 

 

Video that summarizes the cultural resource management in relation to Section 106 of the National Historic Preservation Act.

Created by students in the graduate seminar in Cultural Resource Management at the University of Montana, 2012.