Historic Resources Committee

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Olga Bogdan AIA
Dewberry Architects Inc.
Washington DC
bogdan.olga@dol.gov
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Can anybody offer advice in relation to the issue explained below?
A Federal agency leased a NRHP listed building. The purpose was to house a federal sponsored program. Over the years, the building underwent several changes, without regard to its historic character. The operating contractor did not seek advice from either the local government, SHPO or the lessee (Federal Agency); instead, changes were made without consulting with other parties. No Federal funds were used to directly finance these enterprises. However, operational funds might have been used to cover some of the expenses. At present, the Federal Agency wants to renounce the lease and return the property to its owner. 
Does anybody know or believe that the Federal Agency is responsible to convert the building back to its initial state? Do you think that an undertaking(s) took place, therefore making the Government responsible? 

Dear Olga,

This is to suggest that you check the legal instrument through which the building was offered by the Federal Government and if there are specific conditions for the use, renovation, construction, etc. and in particular if there is a clause with reference to bringing the building to its original condition.

With best regards.

Vassilina Dikidjieva,
Facilities Services Specialist
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Vassilina Dikidjieva Assoc. AIA
North Bergen NJ
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Hi Olga,
  It seems to me that the property in question may have been subject to Section 106; here's a link where you can research more in depth: http://www.achp.gov/book/sectionIV.html
Section 106 is a process though, it doesn't recommend actions/ appropriateness of the undertaking.  The recommendations typically come through the SHPO.  Let me know how your situation develops, this sort of scenario isn't uncommon.

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Crystal Gosine Assoc. AIA, LEED AP
Swanke Hayden Connell Architects
New York NY
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Original Message:
Sent: 01-24-2012 09:43
From: Vassilina Dikidjieva
Subject: Is this an undertaking?

Dear Olga,

This is to suggest that you check the legal instrument through which the building was offered by the Federal Government and if there are specific conditions for the use, renovation, construction, etc. and in particular if there is a clause with reference to bringing the building to its original condition.

With best regards.

Vassilina Dikidjieva,
Facilities Services Specialist
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Vassilina Dikidjieva Assoc. AIA
North Bergen NJ
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Olga:

I agree with Mr. Johnson.  Start by consulting the local State Historic Preservation Officer and provide the information needed to make judgments.  Your original question left many questions unanswered.  If ANY of the changes to the building were made at the Federal Agency's request, regardless of whether they directly paid for them, they are in direct violation of Section 106.  The question of whether, and to what extent, the building may have to be restored to an earlier state would be decided based on information about specific changes, who authorized them, paid for them and what was in the lease.
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Glenn Mason AIA
Architect
Mason Architects, Inc.
Honolulu HI
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Original Message:
Sent: 01-24-2012 12:52
From: Crystal Gosine
Subject: Is this an undertaking?


Hi Olga,
  It seems to me that the property in question may have been subject to Section 106; here's a link where you can research more in depth: http://www.achp.gov/book/sectionIV.html
Section 106 is a process though, it doesn't recommend actions/ appropriateness of the undertaking.  The recommendations typically come through the SHPO.  Let me know how your situation develops, this sort of scenario isn't uncommon.

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Crystal Gosine Assoc. AIA, LEED AP
Swanke Hayden Connell Architects
New York NY
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Marsha Levy AIA
Warwick RI
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I think the case for calling this situation an "undertaking" is tenuous.  If the "operating contractor" was employed by the owner of a private property, I don't think the Federal agency itself is responsible for the Lessor's activities.  It is up to the owner of a private property to maintain the defining characteristics of a National Register property - and of course any local regulations or tax credit obligations would apply. 
It also depends on the language in the lease, and whether the changes were made at the request of the Federal agency or part of tenant improvements.  The lease may require compliance with NEPA and other laws that would in turn require the Lessor to consult with the SHPO.  The SHPO or the ACHP may be able to give you a definitive opinion; I recommend that you consult with both.







Original Message:
Sent: 01-24-2012 09:43
From: Vassilina Dikidjieva
Subject: Is this an undertaking?

Dear Olga,

This is to suggest that you check the legal instrument through which the building was offered by the Federal Government and if there are specific conditions for the use, renovation, construction, etc. and in particular if there is a clause with reference to bringing the building to its original condition.

With best regards.

Vassilina Dikidjieva,
Facilities Services Specialist
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Vassilina Dikidjieva Assoc. AIA
North Bergen NJ
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In my opinion an "undertaking" occurred, but since the federal agency was non-compliant with federal Section 106, as well as not allowing the Advisory Council an opportunity to comment, foreclosure has also occurred leaving the agency vulnerable to litigation. I suggest that the SHPO and Advisory Council be formally notified prior to initiating civil action.

See:

http://www.achp.gov/book/sectionIV.html , 2 Section 106 applies to Federal undertakings.

http://www.achp.gov/106q&a.html "When an Agency Official determines....


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Larry Johnson AIA
The Johnson Partnership
Seattle WA
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