Professions in Preservation: Preservation Law
Preservation Law is one of the key tools that can strengthen a preservation program. On every level (federal, state, and local) there are laws that either require or encourage preservation. For this issue of Professions in Preservation we interviewed Anne Nelson, Brian Turner, and David Schon.
1. State your name and title(s).
AN: My name is Anne Nelson, and I am the full-time general counsel of the Pittsburgh History & Landmarks Foundation (PHLF) and its subsidiaries, Landmarks Development Corporation (a for-profit real estate development subsidiary), Landmarks Community Capital Corporation (a nonprofit lending subsidiary), and various limited partnerships. I have been with PHLF for 3 years.
BT: Brian Turner, Regional Attorney, Western Office
DS: David Schon, Partner, Nixon Peabody, LLP
2. Describe your typical day as a preservation lawyer.
AN: My work varies from day-to-day and is largely driven by the events of the week whether it is a board meeting, a public hearing, or a closing on a preservation easement donation, a real estate acquisition, a loan, or financing for one of our development projects.
The constant throughout my day, though, is working closely with and advising staff on legal aspects of their projects and programs. PHLF is chartered to work within a 250-mile radius of Pittsburgh and, in that area, it manages Main Street programs in three counties, extends loans, offers educational programs and tours, publishes books, accepts and monitors preservation easements, and rehabilitates historic properties using an array of funding sources and tax credits. These projects and programs require many legal documents that I draft and/or review.
I also advocate for the preservation and reuse of historic buildings by testifying in front of the historic review commission and city council, and by representing PHLF as a consulting party in Section 106 reviews. I speak frequently with concerned citizens, developers, government officials, and property owners on matters concerning historic properties, such as National Register-listing vs. local historic designations, federal preservation tax incentives, and the applicability and processes of Section 106 among other things.
BT: I coordinate the legal advocacy of the Western Regional office, which covers an enormous and culturally-rich landscape incorporating eight states and the Pacific territories. My work commonly involves advocating for preservation solutions for important historic properties in our region through the administrative process, participating in Section 106 consultations, gathering information from our Partners and other alliances in the field, and, occasionally, participating in litigation in coordination with the Law Department.
DS: My practice focuses on tax credit financing for historic rehabilitation. On a typical day I'm talking and corresponding with people about projects that are already in the process of securing equity investment that will help pay for a building's rehabilitation. I'm also working with people who are at an earlier stage, helping them figure out what kind of transaction they can or want to do and how best to finance the project they have. I do a lot of reading and writing too, reviewing real estate and corporate documents, financial projections, term sheets, and legal opinions. I prepare operating agreements and various other documents for the partnerships that will own and operate the completed building.
3. What special training did you need in order to do this job?
AN: Law school was obviously a necessity. I was fortunate to have a professor who was passionate about historic preservation and who serves on the PHLF board of trustees. She advised me on which classes to take, oversaw my independent research paper on preservation easements, and connected me with PHLF, where I volunteered for two of my three years of law school.
As a young attorney, though, my most important training has been on the job at PHLF and at the National Trust’s Legal Department where I worked as a summer intern during law school. At the Trust, I was exposed to the National Historic Preservation Act, the National Environmental Policy Act, and a range of other issues that nonprofit organizations encounter. At PHLF, I have and continue to learn preservation from the organization’s president and co-founder, Arthur Ziegler, and am guided, when necessary, by experienced outside counsel.
BT: I have a JD from Vermont Law School and am a member of the California State Bar. I also worked as an intern with the Law Department in 2005 where I was first inspired to advance preservation as a solution for community building and growing tolerance for our nation’s diversity.
DS: Understanding the economic development power, sense of place, sustainability and good urban planning inherent in historic preservation is helpful. The special training needed to put that knowledge into practice is more prosaic—real estate finance, analyzing financial projections, the law of real estate, partnerships and federal income tax, and federal and state incentive programs whether tax credits, loan programs, property tax related incentives or other components of the transactions we close. I find opportunities to use a little architectural history and history of city planning in the United States too!
4. What range of projects would/has typified the work you do?
AN: PHLF is a very innovative and results-driven organization, and, as such, I have had the opportunity to work on the legal end of a broad range of projects. The largest projects that I have worked on are two rehabilitation tax credit developments––Market at Fifth (completed in 2009) and the Crescent Apartments and Wilson House development (commenced in 2010). Both projects use the federal 20 percent rehabilitation tax credit, and each required the formation of two new limited partnerships to syndicate the tax credits to the investor.
A smaller, yet rewarding, project began in 2007, when, at the behest of a concerned group of citizens, PHLF purchased a significant historic building and held it for a year while the group formed a nonprofit corporation and raised funds to purchase the building back from PHLF and restore it as a community arts center. The building is protected with a preservation easement and restoration work is currently underway.
BT: The 11 Most Endangered Sites program has been a great tool to clearly define the why and how of what I do. I have been extensively involved in the controversies surrounding the Minidoka National Historic Site in Idaho, Hangar One in Santa Clara County, Calif., and the ancient village of Pagat in Guam. I am a strong believer in the strength of Section 106 as a tool to negotiate positive preservation outcomes for highly significant historic resources and am excited by recent successes in the Pearl Harbor and Presidio National Historic Landmark Districts. As a liaison to the Public Lands Program from the Western Office, I have also been involved in the controversial and challenging issue of renewable energy development on public lands.
DS: Typically I get involved in projects when total development costs exceed $3 million where there are institutional investors bringing tax credit equity to help pay for the building's rehabilitation. I've worked on some great buildings, from Detroit's Inn on Ferry Street, the Argonaut Building, and the David Broderick Tower to the City Opera House in Traverse City, Mich., the Durant Hotel in Flint and many commercial, industrial, and residential buildings large and small from coast to coast. Can you tell I'm an enthusiastic Detroiter?
5. What personal qualities and skills would be useful for a person in this kind of role?
AN: This role requires flexibility, focus, and the ability to multi-task to keep all projects moving forward and staff members content.
BT: They must be socially-oriented and able to work with a diverse range of perspectives and styles of advocacy. They must be tolerant of opposing views, and be a good listener in order to effectively convey the most relevant information to agency decision-makers in a clear, concise manner.
DS: Personal qualities useful for a tax credit lawyer include listening and other interpersonal skills—after all, this is a service business and responding to people's needs is the key. I also think a passion for what you do and an appreciation for the outcome of the transaction really helps. For project sponsors it’s so often more than just another deal, but rather the culmination of years of dreams and hard work. When the deal lawyers reflect that in how they approach the closing process, it can make a real difference.
6. Any other thoughts on the preservation field or the work you do?
AN: As a preservation lawyer it is important to know the law, but, in making your case, it is also important to know and appreciate the history and architectural significance of one’s city and its buildings.
BT: When advocates speak of the “preservation” of a place, we all bring a different attitude as to what is a success, or a “save.” Very rarely is there a perfect outcome. And our biggest challenge is that a preservation issue generally only arises when another, sometimes very compelling, policy goal is advanced. I think it is extremely important that we recognize that our intervention policies do not contain any exemptions no matter how compelling that goal. No agency is above the law.
One of the most challenging preservation issues we currently face is responding to the President’s directive to develop potentially millions of acres of the nation’s public lands for renewable energy. Thousands of archeological sites will be destroyed, and the integrity of historic trails and parks will be diminished. The tribes that once depended on these lands for survival are objecting, some fiercely through litigation. And even though the policy goal is the protection of our planet (a tough one to argue with), the National Trust must be at the table to make sure the development is done responsibly and that the best technologies are used to avoid impacts.
The simple matter of our involvement should not suggest that we are opposed to efforts to combat climate change; it should indicate, however, that at this extraordinarily important moment of our nation’s history, we were there to encourage cautious and deliberate decision-making on our limited public lands.
DS: Historic preservation has never been more relevant to our country's prosperity and quality of life. There is still so much work to be done to create the kinds of places we want to live in. Finding common ground with others working toward allied goals is essential if we're going to make re-use of historic and other existing buildings much more the norm than it is now.
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