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Chapter One
How Can a Citizen Preserve a Historic Residence, Building or Archaeological Site?
(from Grassroots Historic Preservation, Written by Anita P. Miller, Attorney at Law, for the New Mexico Historic Preservation Division)
Say you have purchased an old home—a "handyman's special," or perhaps an old commercial building in a neighborhood filled with buildings of similar design.
It has been added onto and renovated over the years. You would like to restore it, yet you want modern conveniences. Where do you begin?
Your first step is to visit your city or county planning office. The planners can tell you if there has been a survey of historic properties in the community, if your residence has been identified in the survey and if it is in a designated "historic district." They can give you further information concerning any ordinances or procedures required for homes in that district. If there is no planning office or no local ordinances affecting your property, contact the Historic Preservation Division. Tell the staff person about the location of your property and provide photographs of the exterior and interior of the building, as well as other properties in the neighborhood. The staff person might visit the property. Possibly it can be rehabilitated in a manner consistent with the Secretary of Interior's Standards for the Treatment of Historic Properties. HPD might suggest that you register the property on the National Register of Historic Places and/or the State Register of Cultural Properties. Even if your property does not meet the criteria for listing on the Registers, there are many worthwhile things which you, your community or association can do to preserve it.
Listing a Property In the National and State Registers
Historic preservation became a national priority in the United States with the passage of the National Historic Preservation Act of 1966 (16 U.S.C. Section 470) usually referred to as NHPA. The enactment of NHPA was supplemented by the enactment of similar statutes by state and local governments. The Act esta_blished the position of the State Historic Preservation Officer, known as the SHPO. In NM the SHPO is the Director of the Historic Preservation Division of the NM Office of Cultural Affairs.
The NHPA gives the federal government direct responsibility for the identification of historic resources and establishes the National Register of Historic Places. It is the official list of districts, sites, buildings, structures and objects significant in American history, architecture, archaeology, engineering and culture that have been deemed worthy of preservation.
New Mexico has over 1000 listings in the National Register. Some districts include only a few contributing buildings. The largest district, the Santa Fe Historic District, has 1240 contributing buildings.
National Register of Historic Places—Criteria for Eligibility
The National Park Service has published the following criteria for listing in the National Register of Historic Places:
The quality of significance in American history, architecture, archaeology or culture is present in the district, sites, buildings, structures and objects that possess integrity of location, design, setting, materials, workmanship, feeling and association, and that:
- are associated with events that have made a significant contribution to the broad patterns of our history; or
- are associated with the lives of persons significant in our past; or
- embody the distinctive characteristics of a type, period or method of construction or that represent the work of a master, or that possess high artistic values, or that represent a significant and distinguishable entity whose components may lack individual distinction; or
- have yielded, or may be likely to yield, information important in prehistory or history.
Other criteria are also considered. Ordinarily cemeteries, birthplaces or graves of historical figures, properties owned by religious institutions or used for religious purposes, resources that have been moved from their original locations, reconstructed historic buildings, properties primarily commemorative in nature and properties that have achieved significance within the past 50 years are not normally considered eligible for the National Register. Such properties will qualify if they are integral parts of districts that do meet the criteria or if they are considered to be of exceptional significance. For further information about criteria for listing on the National Register, refer to the forms for listing and the guidelines for completing these forms, known as Bulletin 16, published by the National Park Service, which is available from HPD.
State Register of Cultural Properties
The New Mexico Cultural Properties Act (NMSA 1978, Sections 18-6-3 to 18-6-16, 1969) declared that the "historic and cultural heritage of the state is one of the state's most valued and important assets." It set forth policies for preservation, protection and enhancement of structures, sites and objects of historical significance within the state, in a manner conforming with, but not limited by, the National Historic Preservation Act of 1966. The Cultural Properties Act created a Cultural Properties Review Committee (CPRC) to review proposals for preservation of cultural properties, to determine what constitutes historical, archaeological, scientific, architectural and other cultural significance for the purpose of identifying cultural properties, and to prepare and keep up to date the official register, among other functions.
Trinity Site on White Sands Missile Range is the location of our nation's first atomic tests. The site is open to the public twice a year.
The official register is the State Register of Cultural Properties, maintained by the HPD. It includes historic, archaeological, architectural, scientific and other culturally significant properties that have been identified and documented in New Mexico. Identification may be made by the land owner, by a community, or by HPD surveys. Although the State Register requirements and benefits are similar to those of the National Register, they differ in emphasizing state and local significance. Also, collections of objects are included on the State Register.
The HPD helps New Mexicans identify, evaluate, register and protect the state's prehistoric and historic properties. One of its most significant activities is nominating and facilitating the nomination of non-federal NM properties to the National Register. Federal agencies recommend the nomination of historic prop_erties on federally owned land, such as on National Forests, and state agencies in cooperation with the HPD recommend the nomination of historic properties on state land.
A combined procedure for listing on both the State and National registers can be obtained from the HPD.
Procedures for listing resources on either the State or National registers can be obtained from the HPD. Both listings involve research, filling out standardized forms, and preparing documentation.
Q. What are the benefits of listing my house in the National Register of Historic Places?
- Your house will be recognized for its historic, architectural, and/or cultural significance.
- Your house will receive individual consideration prior to implementation of a federal or federally funded project.
- Income-producing properties may qualify for federal tax incentives for substantial, certified rehabilitation. If your house is in a district, it must be "contributing" to be eligible for tax credits. (A "contributing" property adds to the historic significance of the district.)
- Your house will be eligible for a National Register plaque. (You must pay for the plaque.)
Q. What are the benefits of listing my house in the State Register of Cultural Properties?
- Your house will be recognized for its state or local significance.
- Your house will receive individual consideration prior to the implementation of state-funded projects.
- Your house should qualify for state tax credits for certified rehabilitation. If your house is in a registered district, it must be "contributing" to be eligible for tax credits.
- Your house will be eligible for a State Register plaque. (You must pay for the plaque.)
- Listing will not restrict the rights of private property owners in the use, development, or sale of private historic property, nor require that properties be maintained, repaired, or restored.
- Individual properties will not be listed if the owner objects, nor will historic districts be listed if a majority of the property owners object.
- Listing will not automatically invoke local historic district zoning or local landmarks designation.
- Listing will not stop federally or state funded, licensed, or permitted projects which may affect historic properties, although listed properties must be considered individually to avoid or minimize adverse project effects.
The Secretary of the Interior's Standards for the Treatment of Historic Properties, codified as 36 CFR 67, along with Guidelines for Rehabilitating Historic Buildings, were developed by the Department of the Interior to assist in the long_term preservation of a property's significance through the preservation of historic materials and features. These two publications are compiled in a single booklet available from the HPD. The Standards pertain to historic buildings of all materials, construction types, sizes and occupancy and include both the exterior and interior of the building. They also include related landscaping, the building's site and environment, and attached, adjacent, or related new construction. To be eligible to receive the financial benefits of listing your property in the National Register, you must plan to rehabilitate your property following the Standards and Guidelines.
Q. How can listing of my property on the National and State registers protect it?
Listing of a historic property on the National and State registers does not assure its preservation, nor does it restrict the use of private property by its owner. It merely assures that the impact of federal and state agency actions will be ascertained and mitigated as much as possible. Federal and state actions include federal and state agency projects, federal and state funded projects and projects that require federal or state licenses.Construction of a new federal courthouse on the same block as a registered commercial or residential building is an example of a federal action that could affect a private property listed or eligible for listing in the National Register. Section 106 of the NHPA requires federal agencies to determine whether properties listed or eligible for listing in the National Register will be affected by this project. The proposed project is reviewed by the HPD, which determines the project's impact on the properties and consults with the agency to develop a mitigation strategy to reduce that impact. The courthouse can still be built.
Section 106 applies only to properties listed in or eligible for listing in the National Register. The New Mexico Cultural Properties Act, (NMSA 1978, at Section 18-6-8.1 [added to the Act in 1986]), requires that the head of any state agency or department with jurisdiction over a land or structure modification that will affect a cultural property gives the HPD an opportunity to participate in the planning of the project so as to preserve and protect, and to avoid and minimize adverse effects on the registered property.
The NM Prehistoric and Historic Sites Preservation Act (NMSA 1978, Sections 18-8-1 to 18-8-7, 1989) offers protection to properties listed on both the State Register and the National Register from projects funded by state agencies or political subdivisions of the state, which includes local governments. It is stronger than the protection offered by Section 106 of the NHPA. These state funds shall not be spent "on any program or project that requires the use of any portion of or any land from a significant [registered] prehistoric or historic site unless there is no feasible and prudent alternative to such use, and unless the program or project includes all possible planning to preserve and protect and to minimize harm to the . . . site resulting from such use" (NMSA 1978, Section 18-8-7, 1989).
Financial Benefits of National or State Register Listing
State Tax Credits
If your property is listed on the State Register, there is also a tax credit benefit available. The NM State Income Tax Credit Income Tax Act and Corporate Income Tax Act (NMSA 1978, Section 7-2-18.2 and 7-2A-8.6, 1984) provides credits on state income tax due from owners of sites or structures listed in the State Register either individually or as a significant or contributing structure in a listed State Register Historic District.Revolving Loans
The Historic Preservation Loan Act of 1987 (NMSA 1978, Sections 18-6-19 to 18-6-23, 1987) created the New Mexico Historic Preservation Loan Fund, which makes loans available to owners or lessees of properties listed in the National or State registers at low interest rates for a maximum of five years. You may apply for this program at the Historic Preservation Division and if approved, HPD will work with your local lending institution as a partner in the loan. The loans come from the NM Historic Preservation Loan fund, with money allocated by the State Legislature and funding from a local lending institution (a commercial bank, savings and loan, or credit union).The loans may only be used for certain "eligible" purposes, including architectural, engineering and rehabilitation/repair costs, and the costs of meeting building codes. Ineligible costs include acquisition, legal costs or fiscal agents' fees. Your loan repayments replenish the fund."
Federal Tax Credits
If your commercial, industrial, agricultural or residential property is used to produce income, for example, in rental to persons other than the owner, (i.e., is "depreciable" property); it qualifies for listing on the National Register; and you plan to rehabilitate it according to the Standards for Rehabilitation, you may qualify for a Federal Investment Tax Credit under Section 251(a) of the Tax Reform Act of 1986, (Section 47 of the Internal Revenue Code of 1986).A tax credit differs from a tax deduction (which lowers the amount of income subject to taxation); a tax credit lowers the amount of tax owed. Two types of tax credits are allowed:
A "certified historic structure" is a building listed in the National Register of Historic Places or located within a registered historic district and certified by the US Secretary of the Interior as "contributing" to the historic significance of that district. The planned rehabilitation must meet the Standards for Rehabilitation. An amount equal to or more than the adjusted basis of the property or $5000, whichever is greater, must be invested in qualified rehabilitation benefits. The "adjusted basis" is the cost of the property, minus the cost of the land, plus capital improvements already made, minus any depreciation already taken by the taxpayer.
- The 20% rehabilitation tax credit equals 20% of the amount spent in a certified rehabilitation of a certified historic structure.
- The 10% rehabilitation tax credit equals 10% of the amount spent to rehabilitate a non-historic building built before 1936.
If your building is not listed in the National Register individually or as contributing to the district, the building must be certified as non-historic by NPS. You may qualify for the 10% tax credit if the building was built before 1936. This credit applies only to non-residential uses, so rental housing is not eligible, but hotels (i.e., commercial uses,) qualify. The rehabilitation must be substantial, exceeding either $5000 or the adjusted basis of the property. There are specific tests for retention of external walls and internal structural framework that must be met to qualify.
Federal Grants
The Department of the Interior, through the National Park Service, makes historic preservation block grants to the states. Some of these funds are used by HPD to cover administrative costs. Other funds are passed through to individuals, nonprofit entities, corporations, businesses and certified local governments, which will be discussed later in this booklet. Although these funds are not available to individuals for actual restoration projects (bricks and mortar), they may be available to pay for archaeological and historical surveys, restoration plans and other preservation activities. Thus if your historic or archaeological property is deemed significant, you may qualify for a grant.
A Success Story!
A savvy individual property owner, after listing her property on the National and/or State registers, might be able to qualify for a grant to study the restoration of the property, receive a revolving loan to do the rehabilitation work, and then qualify for federal and state tax credits based on the costs incurred in restoration. One such owner in Albuquerque has utilized these benefits to list and restore several residential properties and one commercial property, and is about to restore a family oratorio (chapel) in Taos!
Financial incentive: USDA Community Development Funds
You may qualify for a grant from the USDA Community Development Program and receive up to $75,000 per house. Grants are available to individuals to retrofit historic homes so that they are energy efficient and remain in use. You may be required to consult with HPD on your planned activities. Contact the Community Development Officer, US Department of Agriculture (505 Gold SW, Albuquerque, NM 87102; (505) 761-4973)
Archaeological Finds on Private Property
There may be more than one million archaeological sites in New Mexico, many of these on private property. All archaeological sites and artifacts found on private property belong to the owner of the land, with the exception of unmarked human burials and any funerary objects associated with such burials. If someone other than the owner goes on the land without the owner's permission or if artifacts are taken without permission, then that person is subject to civil and criminal penalties for trespass or theft or both.
If someone, perhaps from a university, approaches you about excavating an archaeological site on your property or making surface collections of artifacts, it is necessary first to obtain your written permission. When any person, other than the owner of the land on which an archaeological site is located, wishes to excavate an archaeological site with the use of "mechanical earth-moving equipment" such as a backhoe, front-end loader or other machinery, it is necessary to obtain a permit for the use of such equipment from the Cultural Properties Review Committee. Information about the permitting requirements for archaeological excavations can be found in the Cultural Properties Act (NMSA 1978, Sections 18-6-1 to 18-6-17, 1969) and from HPD. If you are the owner of the property, you do not have to obtain this permit if you intend to excavate the site yourself, provided that this site was not bought or sold to evade the permitting requirements of the law and preamble to the Cultural Properties Act.
Q. What if I find an unmarked burial?
Unmarked human burials located on state or private land, including associated funerary objects and artifacts interred with the burial, may not be excavated, removed, or destroyed by any person, including the land owner, without a permit issued or by the Cultural Properties Review Committee. Removing pottery from a burial and leaving the bones behind, for example, is also illegal.Each human burial interred in any unmarked burial ground located in NM is accorded the protection of the law (Section 18-6-11.2 of the Cultural Properties Act) and shall receive appropriate and respectful treatment and disposition. Any person who knowingly, willingly, and intentionally excavates, removes, disturbs, or destroys an unmarked human burial without the necessary permits and approvals, is guilty of a fourth degree felony, and shall be punished by a fine of up to $5000, or by imprisonment for 18 months, or both. If convicted, the offender must forfeit to the state all objects, artifacts, and burials excavated or removed from the un_marked burial ground and all proceeds from any sale of these objects. If the offense occurs on state land, the offender is subject to forfeiture of the instruments (including machinery) used or intended to be used to commit the crime.
If you find bones that might be an unmarked human burial, leave the site undisturbed and the bones and other objects and artifacts in place. Call the local police, the Office of Medical Investigator, and the NM State Archaeologist and ask them to investigate pursuant to NMSA 1978 Section 18-6-11.2.
Q. What about marked cemeteries?
State law also protects cemeteries, as detailed in Disturbing a marked burial ground (NMSA 1978 Section 30-12-12, 19, 1963). A marked burial ground means "any interment visibly marked according to traditional or customary practice," which includes rocks, shells, headstones, and crosses. In addition, a separate statute, Defacing tombs (NMSA 1978 30-12-13, 1963), protects any tomb, monument, gravestone, memento, memorial or marker, any ornamental plant, tree or shrub, any fence, post, rail or wall within a cemetery. If you see someone disturbing a marked burial or cemetery, call the local police immediately.
Q. How can I protect an archaeological site on my property?
You can leave it alone. You also can protect an important archaeological site through use of a conservation easement, which is a legal agreement in which the owner of a property voluntarily restricts the type and amount of development that may take place on the property in the future. The property owner still owns the land and can sell it or pass it on to his/her heirs. Conservation easements are discussed in more detail in Chapter 3.The Prehistoric and Historic Sites Preservation Act (NMSA 1978, Sections 18-8-1 to 19-8-9, 1989) offers another way to preserve a registered property. If your property is listed on the National or State register, the state and a nonprofit tax-exempt corporation created specifically to preserve significant historic sites may acquire, stabilize, restore or protect it. The state may pay up to 90% of these costs. The title to the property will vest in the state or a "political subdivision of the state" (any local government or state agency) or may be held jointly with the nonprofit corporation if it has put up 10% of the acquisition costs.
Located in Albuquerque, the Archeological Conservancy, a national nonprofit corporation, acquires and preserves archaeological sites. Some sites have been donated to the Conservancy by their owners who receive tax benefits for a charitable donation. In NM, the Archeological Conservancy owns and preserves several properties, including Pueblo ruins and Spanish colonial sites. It also has purchased Fort Craig and Chacoan outliers and turned these sites over to federal agencies to manage. Contact SW Regional Director, Archeological Conservancy (5301 Central Avenue NE, Albuquerque, NM 87108; (505) 266-1540).
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