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National Historic Preservation Act 106 Exemption For General Plan & Zone Changes

  • 1.  National Historic Preservation Act 106 Exemption For General Plan & Zone Changes

    Posted 04-19-2018 09:20
    The City of Salem, Oregon ("City"), was awarded a $289,950 grant from the Oregon Department of Transportation ("ODOT") which acted as a pass-through for dispensing monies from the Federal Highway Administration.  These $289,950 of federal monies funded a local project to "revitalize" a blighted area.  I'm not certain, but believe the City of Salem contributed $25,000 bringing the amount allocated to this project to be at least $315,000.  The monies have been used to pay for expert studies and presumably staff time to create new zoning districts, amending zoning maps, and amending comprehensive plans.  This effort represents a several year effort to revitalize State Street which is contiguous to the National Register Court-Chemeketa Residential Historic District.

    Section 106 (recodified to § 306108)  of the National Historic Preservation Act provides:

    § 306108. Effect of undertaking on historic property
    The head of any Federal agency having direct or indirect jurisdiction over a proposed Federal or federally
    assisted undertaking in any State and the head of any Federal department or independent agency having
    authority to license any undertaking, prior to the approval of the expenditure of any Federal funds on the
    undertaking or prior to the issuance of any license, shall take into account the effect of the undertaking
    on any historic property. The head of the Federal agency shall afford the Council a reasonable opportunity
    to comment with regard to the undertaking.

    No 106 review was performed, much less no determination was made whether this federally funded planning was an "undertaking" of the Federal Government and then an analysis of whether an exemption applied.

    We have been in contact with the City, ODOT, The State Historic Office, and the Council for Historic Preservation, along with some preservation organizations and the response so far has been this:

    • "[I]t is a planning process and does not require a mitigation process." [a statewide nonprofit preservation organization]
    • "Planning activities are exempt from Section 106 review because these desk-top exercises themselves do not result in an actual physical, auditory, or visual impact." [ODOT]
    • "Section 106 is intended to review brick and mortar projects that are federally funded.
      This planning project is a study and not a project to develop a property. A Section 106
      review cannot be requested without a federal nexus within a development project. In
      addition, ODOT has a programmatic agreement with the State Historic Preservation
      Office (SHPO) that specifically exempts planning studies/projects from Section 106
      review." [City]
    I researched the published federal decisions under Section 106 (codified as 54 U.S.C. 306108) and those interpreting PART 800-PROTECTION OF HISTORIC PROPERTIES (36 CFR Part 800) and nowhere was I able to find any exemption for planning.  I'm wondering if there are unpublished decisions everyone seems to be relying on, but not sharing.

    1) Does anyone know of any authorities that support the above interpretations?

    2) Has anyone had any experience with federally funded grants for local planning that impact historic structures and were Section 106 determinations exempted?

    John Poole
    Salem OR

  • 2.  RE: National Historic Preservation Act 106 Exemption For General Plan & Zone Changes

    Posted 04-19-2018 11:49
    John, I think you are missing the whole point here.  Planning and analysis are not undertakings in the meaning construed by either 36 CFR <g class="gr_ gr_102 gr-alert gr_gramm gr_inline_cards gr_run_anim Punctuation only-del replaceWithoutSep" id="102" data-gr-id="102">800,</g> or intended to be considered having a physical impact under Section 106.  Wrestling paper about (regardless of how much that paper is worth) in studies changes or impacts nothing about the fabric of the built environment--nor the character of a landscape containing cultural resources.  All of us in community planning have had literally yards of these lining the walls--and often little done with them...

    A well-executed study SHOULD contain an enumeration of existing or potential NRHP sites/properties--as well as properties that might fall under Section 4f of the FHWA of 1966 (now recodified under 49 USC 303 & 23 CFR Part 774) if federal highway dollars are directly used or funneled through your state highway department.  But to "talk" about the use for the old Mercantile Block" (a hypothetical example) changes nothing--therefore no qualification exists for formal inclusion in a broader NEPA study.

    There has been a tendency for a long time now to break up planning studies--and consider any historic or archaeological analysis as a separate subject matter--and written as RFP's when certain stages of a project near 'bricks & mortar' funding stages.  Often, these will be conducted or sub-contracted by the engineering firm heading up the overall project.

    All answers you were given are correct.

    Patrick Thrush
    Bath NY

  • 3.  RE: National Historic Preservation Act 106 Exemption For General Plan & Zone Changes

    Posted 04-19-2018 12:48
    I apologize for the ampersand characters in front of the code sections.  I used a "section mark" or "section sign" characters,  Unicode U+00A7,which is outside of the ASCII character set and apparently my characters were converted into the ampersand character when processed by this forums scripts.

    John Poole
    Salem OR

  • 4.  RE: National Historic Preservation Act 106 Exemption For General Plan & Zone Changes

    Posted 04-19-2018 13:07
    For posterity, the project entitled "State Street Refinement Plan" as its SUMMARY DESCRIPTION OF PROJECT:

    This project aims to revitalize State Street into a vibrant, attractive, walkable mixed-use corridor through coordinated land use and transportation improvements. It will result in street cross sections that illustrate how State Street can be transformed within its constrained right-of-way into a welcoming environment for all transportation modes. Zoning regulations and design standards will also be developed to encourage pedestrian-friendly redevelopment and mixed-use development.

    Given this description, is it an accurate to state that Federal dollars were spent to modify local planning laws and zoning?

    John Poole
    Salem OR

  • 5.  RE: National Historic Preservation Act 106 Exemption For General Plan & Zone Changes

    Posted 04-20-2018 09:05
    No, it would not be accurate to say that. A study or a survey is simply a gathering of information. What people do with that information after the close of the study has nothing to do with the study itself. There are many such planning studies/surveys in our office from past years that did not ultimately result in any action.

    A survey is a tool used in Section 106 as well as in community planning, but is not the undertaking itself. Section 106 governs federal monies, licenses, or permits used in projects that have the potential to affect historic properties eligible for or listed in the National Register either directly or indirectly in a physical, aural, or visual sense. The survey work itself simply informs what needs to be taken into consideration and how based on the effects of the project on the characteristics that qualify a property for inclusion in the National Register.

    For planning purposes, completing a survey is simply best practice and is strongly encouraged by the National Park Service. This survey will most likely outline property types, character-defining features, historic context, potentially individually eligible properties, and potential historic districts. It is important to know what you have in order to plan to protect it.

    The summary description of the project is perhaps poorly worded in the use of the phrase "It will result..." A study or survey results in nothing but information.

    Laura Sadowsky

    State Historian and National Register Coordinator | 515.281.3989 |

    Iowa Arts Council | Produce Iowa | State Historical Society of Iowa

    Iowa Department of Cultural Affairs

    Share your stories using #IowaCulture and #NotToBrag

  • 6.  RE: National Historic Preservation Act 106 Exemption For General Plan & Zone Changes

    Posted 04-20-2018 09:04
    Interesting question.  The involvement of federal dollars from FHWA makes it an undertaking, no question ("a project, activity,or program funded in whole or in part under the direct or indirect jurisdiction of a Federal agency..."). There is no requirement that the project must have a physical impact in order to be an undertaking.

    The crux of your question, John, is whether or not the undertaking is the type of activity that has the potential to cause effects on historic properties. Planning, even when limited to studies and reports, can definitely have an effect on historic resources. For example, a plan that recommends demolishing a block of historic houses and building a new expressway could result in these actions being carried out in the future, under the guise of having been recommended and approved by the federal agency that funded the plan.

    To ensure that historic and archaeological resources are given proper consideration in the planning process, you can ask that a historic preservation consultant/archaeologist be included on the project team that is conducting the planning study. By doing so, you should be able to give a "no historic properties affected" or "no adverse effect" determination for the undertaking.

    Historic preservation needs to be part of the discussion from the very start, not set aside as something to be dealt with later; such an approach only perpetuates the view of preservationists as being obstructionist and against progress/change. Too often we're presented with fully-developed plans to review and then criticized for requesting changes to protect historic resources. Had we been at the table from the start, many issues could most likely have been avoided or dealt with appropriately early on.

    Devin Colman
    State Architectural Historian
    Vermont Division for Historic Preservation
    Montpelier VT

  • 7.  RE: National Historic Preservation Act 106 Exemption For General Plan & Zone Changes

    Posted 04-20-2018 10:08
    ​I agree, Devin.

    Complying with the spirit of Section 106 public outreach from the beginning will most likely result in a better understanding of the study issues, and (dare we hope?) consensus later on when it comes to implementation.

    I would be interested to see what the FHWA, SHPO and ODOT agreed to in the noted Programmatic Agreement.  That is a document that needs a public review and comment period when it is created or renewed.

    Debbie Martin
    City of Wilmington
    Wilmington DE

  • 8.  RE: National Historic Preservation Act 106 Exemption For General Plan & Zone Changes

    Posted 04-20-2018 10:26

    It's always wise to check the basics. So I appreciate your want for thoroughness, John. In my mind the key is in the definition of "Effect" in the 800.3 directive.

    Sec. 800.3 Initiation of the section 106 process.
    (a)Establish undertaking. The agency official shall determine whether the proposed Federal action is an undertaking as defined in § 800.16(y) and, if so, whether it is a type of activity that has the potential to cause effects on historic properties.

    "Effect" means alteration to the characteristics of a historic property qualifying it for inclusion in or eligibility for the National Register.

    The zoning classification or the plan recommendations have no bearing on whether or not a building is placed on the National Register. So I would say a Sec. 106 is not needed.

    Good Luck – sounds like a wonderful project.

    Forum Contact
    City of Paducah Planning Dept
    Paducah KY

  • 9.  RE: National Historic Preservation Act 106 Exemption For General Plan & Zone Changes

    Posted 04-20-2018 11:59

    A Housekeeping Tip

    This may be helpful to those prepared to dive into the Code of Federal Regulations.

    The Government Printing Office seems to enjoy 3 column format, the PDF of Title 800 of the Code of Federal Regulations they offer is in 3 column format and extremely difficult to read.

    Here's a link to a PDF version I created that is much more readable.  It is 25 pages:

    The source XML is located from the GPO at:

    and you can import the XML into LibreOffice for formatting. 

    John Poole
    Salem OR