Petition for Writ of Certiorari — St. Charles Associates v. Lujan

Supreme Court brief1990

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|, Bupreme Court, U.S

IN THE

Supreme Court of the Gnited States

October Term, 1989

ST CHARLES ASSOCIATES,

Petitioner,

MANUEL LUJAN, SECRETARY,

DEPARTMENT OF THE INTERIOR,

Respondent.

PETITION FOR WRIT OF CERTIORARI

ON PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

John C. Murphy

Counsel of Record

516 North Charles Street

Baltimore, MD 21201

(301) 625-4828

Attorney for Petitioner

Appeliate Printing Gervices * Merttage Buliding * Guite 908 © Richmond, VA 23219 * (800) 642-7780

QUESTION PRESENTED FOR REVIEW

1. Under the authority of 26 U.S.C.

48(¢g)(2)(C), is the Department of the

Interior authorized to disapprove a.

rehabilitation of an historic structure

because of related new construction which

affects the setting of the historic

structure?

TABLE OF CONTENTS

Question Presented For Review.....++++ee1

Table of ContentS..c.ccececccevevesesveveeil

Table of Authorities....ccccccccccseceeeail

Reference to Official Reporteccccccccccel

Statement of Jurisdictional Grounds.....l

Statutes and OrdinancesS.....eeeeeeeevecel

Statement of the Case....crcceeeeveeeeeelD

AP QGuMENt..cccccccccsccesscesescsesesesesne

APPENGIx..cccccccsccccccecessecscscesanee

Opinion of the Court of Appeals.......l

Opinisn of the District Court.........2

Order of the District Court.......+++.28

Remand Opinion of the District Court..29

Remand Order of the District Court....32

Administrative decisSion....cerceeeeeeee 34

TABLE OF AUTHORITIES

Cases

Board of Governors v. Dimension Fin,

Corp., 474 ScBe 361 + » Sages TS 7

K. Mart Corp. v. Cartier, Inc., 486

U.S. 281 PS 53% 636 Wbb 00's 000 beedccecké

Kaiser Aluminum and Chemical Corporation,

v. Bonjorno, 58 U.S.L.W. 4421(1990)....14

Mallard v. U.S.Dist.Ct., 109 S.Ct. 1814

i.) Cpe ie oS eid 00a a 14

Statutes

De emate ME CMOT RICE). cccceccscvcsbe 12 .

Weems MM CERES ccc cc ccccccecs Torre f

iii

REPORTS OF OPINIONS

The opinion of the Court of Appeals,

Appendix, infra, p. 1, is unreported. The

opinion of the District Court, Appendix,

infra, p. 2, is reported at 672 F. Supp.

1074. The opinion of the District Court on

remand, Appendix, infra, p. 29, is

unreported. The administrative decision of

the Department of the Interior, Appendix,

infra, p. 34, is unreported.

STATEMENT OF JURISDICTIONAL GROUNDS

The order of the Court of Appeals for

the Fourth Circuit is dated June 8, 1990.

Jurisdiction of the Supreme Court to

review the judgment by writ of certiorari

ie 28 U.S.C. 1254 (2).

STATUTES AND REGULATIONS

The Internal Revenue Code provided a

25% investment tax credit for the

rehabilitation of a certified historic

structure where the rehabilitation was

approved by the Department of the

Interior.

The relevant provisions of the

Internal Revenue Code provided in

pertinent part as follows:

26 U.S.C. 46(a)(2)(F)(i):

"(F) Rehabilitation Percentage.--For

purposes of this paragraph--

(i) In general--

In the case of The rehabilitation

qualified rehabili- percentage is:

tation expenditures

with respect to a

30-year ee rie ro 15

40-year building... eeceeeeeeseces 20

Certified historic structure......+..25

26 U.S.C. 48(¢)(g)(2)(A):

"(g) Special Rules For Qualified

Rehabilitated buildings.--

For purposes of this subpart--

(1) Qualified Rehabilitated Building

Defined.--

(A) In General.--The term “qualified

rehabilitated building" means any building

(and its structural components)--

einai iti

(i) which has been substantially

rehabilitated,

(ii) which was placed in service

before the beginning of the

rehabilitation, and

(iii) 75 percent or more of the

existing external walls of which are

retained in place as external walls in the

rehabilitation process."

26 U.S.C. Section 48(g)(2)(c):

"(C) Certified rehabilitation.--For

purposes of subparagraph (B), the term

‘certified rehabilitation’ means any

rehabilitation of a certified historic

Structure which the Secretary of the

Interior has certified to the Secretary as

being consistent with the historic

character of such property or the district

in which such property is located.

26 U.S.C. 48(g)(3):

Certified historic structure defined.--

(A) In general.--The term ‘certified

histcric structure’ means any building

(and its structural components) which--

ox (i) is listed in the National

(ii) is located in a registered

historic district and is certified by the

Secretary of the Interior to the Secretary

as being of historic significance to the

district".

The Department of the Interior issued

regulations to implement the authority

given to approve rehabilitations of

certified historic structures. The 1981

regulations provided in pertinent part as

follows:

36 C.F.R. 67.6 (1981), "Standards for

Rehabilitation":

(a) The following "Standards for

Rehabilitation", a section of the

Secretary's "Standards for Historic |

Preservation Projects", shall be used te

determine if rehabilitation of a certified

historic structure qualifies as “certified

rehabilitation". The Standards shall be

caieanaiineieemmmiemeéstiaii

applied taking into account the economic

and technical feasibility of each project;

in the final analysis, however, the

rehabilitaton must be consistent with the

historic character of the structure and/or

the district in which it is located.

(1) Every reasonable effort shall be

made to provide a compatible use for a

property which requires minimal

alterations of the building, structure, or

site and its environment, or to use a

property for its originally intended

purpose.

(2) The distinguishing original

qualities or character of a building,

structure, or site and its environment,

shall not be destroyed. The removal or

alteration of any historic material or

distinctive architectural features should

be avoided when possible.

(3) All buildings, structures, and

sites shall be recognized as products of

their own time. Alterations that have no

| ————

— 2 : wre Set Re Oe

—e - and which seek to create

an earlier appearance whall be

discouraged.

(4) Changes which may have taken

place in the course of time are evidence

of the history and development of a

building, structure, or site and its

environment. These changes may have

acquired significance in their own right,

and this significance shall be respected.

(5) Distinctive stylistic features

or examples of skilled craftsmanship which

characterize a building, structure, or

site shall be treated with sensitivity.

(6) Deteriorated architectural

features shall be repaired rather than

replaced, wherever possible. In the event

replacement is necessary, the new material

should match the material being replaced

in composition, design, color, texture,

and other visual qualities. Repair or

replacement of missing architectural

features should be based on accurate

duplications rather than on conjectural

designs or the availability of different

architectural elements from other

buildings or structures.

(7) The surface cleaning of

Structures shall be undertaken with the

gentlest means possible. Sandblasting and

other cleaning methods that will damage

the historic building materials shall not

be undertaken.

(8) Every reasonable effort shall mn

made to protect and preserve archeological

resources affected by, or adjacent to any

rehabilitation project.

(9) Contemporary design for

alterations and additions to existing

properties shall not be discouraged when

such alterations and additions do not

destroy significant historical,

architectural, or cultural material, and

such design is compatible with the size,

scale, color, material, and character of

the property, neighborhood or environment.

(10) Wherever possible, new additions

or alterations to structures shall be done

in such a manner that if such additions or

alterations were to be removed in the

future, the essential form and integrity

of the structure would be unimpaired.

(b) Guidelines and other technical

information to help property owners

formulate plans for the rehabilitation,

preservation, and continued use of

historic properties consistent with the

intent of the Secretary's "Standards for

Rehabilitation” are available from the

National Park Service, U.S. Department of

the Interior, 440 G. St., N.W.,

Washington, D.C. 20243.

+ + + * *

In 1984 the Department of the

Interior issued amended regulations which

included the following relevant additions

to the 1981 regulations:

36 CFR 67.6(b)(1984):

"(A) rehabilitation project for

ition purposes encompasses all

: —

the significant interior and

features of the certified

structure(s) and its setting and

ent, as determined by the

y, and related demolition,

tion or rehabilitation work which

2>ct the historic qualities,

ty or setting of the certified

structure(s).

R 67.6(e):

) Completed projects may be

ed by an authorized representative

Secretary to determine if the work

-he "Standards for Rehabilitation".

tretary reserves the right to make

tions at any time up to five years

completion of the rehabilitation and

oke a certification, after giving

ner 30 days to comment on the

, if it is determined that the

litation project was not undertaken

ssented by the owner in his or her

rrr aaa

application and supporting documentation,

or the owner, upon obtaining

certification, undertook unapproved

further alterations as part of the

rehabilitation project inconsistent with

the Secretary's "Standards for

Rehabilitation". The tax consequences of a

revocation of certification will be

determined by the Secretary of the

Treasury.

STATEMENT OF THE CASE

This is a declaratory judgment action

instituted to review a decision of the

Department of the Interior denying

approval of the rehabilitation of a

certified historic structure. The District

Court rendered a judgment for the

Respondent Department of the Interior.

Petitioner appealed to the United States

Court of Appeals for the Fourth Judicial

Circuit and that Court affirmed the

District Court. The basis for Federal

jurisdiction in the District Court was 28

U.S.C. 1331; 5 U.S.C. 701; 28 U.S.C.

2201.

Petitioner St. Charles Associates,

LTD., a partnership, undertook the

rehabilitation of a structure and sought

the tax credit authorized by the Federal

tax law for the rehabilitation of a

certified historic structure. Under that

law the Department of the Interior is

charged with determining whether the

rehabilitation of an historic structure is

consistent with its historic character.

In this case, Interior denied the approval

because Petitioner constructed three new

buildings adjacent to the historic

structure and obscured the view of the

historic structure. See the decision of

the Department of Interior in the

Appendix, infra, pp. 47-48. The question

which Petitioner raises is whether under

the authority of the law, Interior may

deny the rehabilitation of a structure

because of new construction which affects

the setting of the structure.

st aaettniaietnnateine emer

ARGUMENT

The tax credit provisions of the

Internal Revenue Code charge Interior with

approving the “rehabilitation of a

certified historic structure". 26 U.S.C.

48 (g)(2)(c). Congress defined

"certified historic structure” as "any

building (and its structural

" which meets certain

components)...

historic criteria. 26 U.S.C. 48(g)(3).

What occurred here was that Interior

reviewed and disapproved not the

rehabilitation of a certified historic

structure but the placement of three new

buildings, which impaired the view of the

historic structure. See the administrative

decision in the Appendix, infra, at p. 48.

The authority to review anything

other than the rehabilitation of an

existing building is not contained in the

law. However, the lower court found the

necessary authority in the purpose of the

law--encouraging the investment in and

redevelopment of older properties while

retaining their historic character.

Appendix, infra, p. 27. In reaching this

conclusion, the lower court (and the Court

of Appeals, which affirmed on the basis of

the District Court decision) ignored the

plain language of the statute to achieve

the broader purpose of the law. This

approach results in an expansion of the

statute beyond the purpose manifested by

the language. See Board of Governors v.

Dimension Fin. Corp., 474 U.S. 361 (1986):

"The "plain purpose" of legislation,

however, is determined in the first

instance with reference to the plain

language of the statute itself. Richards

v. United States, 369 U.S. 1, 9, 82 S.Ct.

585, 590, 7 L.Ed. 2d 492 (1962).

Application of "broad purposes" of

legislation at the expense of specific

provisions ignores the complexity of the

problems Congress is called upon to

address and the dynamics of legislative

action. Congress may be unanimous in its

intent to stamp out some vague social or

economic evil; however, because its

Members may differ sharply on the means

for effectuating that intent, the final

language of the legislation may reflect

hard-fought compromises. Invocation of the

"plain purpose" of legislation at the

expense of the terms of the statute itself

takes no account of the processes of

compromise and, in the end, prevents the

effectuation of congressional intent.

In addition to lack of adherence to

legislative intent, there is a real

question whether expansion of Interior's

authority to include the setting and

environment of a structure does achieve

the purpose of encouraging the

rehabilitation of historic structures. It

may do just the opposite. Investors may be

reluctant to grant Interior jurisdiction

over any related new construction. This

may be why Congress chose to limit

Interior's authority to the structure

itself.

Recent cases setting forth the plain

language rule are Mallard v.

U.S.Dist.Ct., 109 S.Ct. 1814 (1989); K.

Mart Corp. v. Cartier, Inc., 486 U.S. 281

(1988); Kaiser Aluminum and Chemical

Corporation v. Bonjorno, 58 U.S.L.W. 4421

(Nos. 88-1595 and 88-1771, decided April

17, 1990).

This is an important question of

Federal law for several reasons. The issue

presented is one of basic

jurisdiction--does the statute cover

simply rehabilitation of an existing

building, or does it extend to new

construction as well which affects the

setting or the environment of an historic

building? One can hardly understand the

meaning of the statute without knowing the

answer to this question. Second, this is

an important program for historic

preservation. At the time of the hearing

in the lower court, over 17,000 projects

had been reviewed by Interior. The law

has broad application to historic

properties and to owners who undertake to

rehabilitate them.

CONCLUSION

For the reasons stated, Petitioner

requests the Court to issue its writ of

certiorari to review the decision in the

above case.

Respectfully suhmitted,

John C. Murphy

Attorney for Petitioner

APPENDIX

Opinion of the United States Court of

Appeals for the Fourth Judicial Circuit,

Case No. 89-2751, June 8, 1990:

PER CURIAM:

Plaintiff St. Charles Associates,

Ltd., has appealed the district court's

affirmance of the Department of the

Interior's denial of the plaintiff's

application for a tax credit for its

restoration of an historic building. We.

find convincing the district court's

thorough examination of the issues and

adopt its reasoning as our own. St.

Charles Associates, Ltd. v. United States,

671 F. Supp. 1074 (D.Md. 1987). The

judgment of the district court is

accordingly affirmed.

*We note that we previously ordered remand

of the case for resolution of some factual

ambiguities. Our affirmance today is of

the original district court judgment as

well as the judgment on remand.

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MARYLAND

ST. CHARLES ASSOCIATES, LTD.:

V. : Civil

N-86-3818

UNITED STATES OF AMERICA :

MEMORANDUM

Under the inspiration and ownership

of St. Charles Associates, Ltd., a former

Catholic seminary, St. Charles College was

converted into a retirement community

called Charlestown. Following completion

of the project, plaintiff sought final

approval of the rehabilitation work done

on the College from the National Park

Service in order to qualify for a tax

credit for the rehabilitation of certified

historic structures established by the Tax

Reform Act of 1976, Pub.L.No.94-455, 92

Stat. 1519, and Revenue Act of 1978,

Pub.L.No. 95-900, 92 Stat. 2828 (current

version at 26 U.S.C. 48(g)(1986). By

letter of October 20, 1986, the Chief

Appeals Officer for defendant, the

Department of the Interior("DOI"), denied

approval for one portion of the project, a

former dormitory known as the "College

Building". Plaintiff instituted this suti

to appeal that determination.

Presently before the Court: are cross

motions for summary judgment. After

careful consideration of the pleadings

filed by the parties, the Court finds that

no hearing is necessary. Local Rule 6. For

the reasons stated herein, the defendant's

motion for summary judgment will be

granted and plaintiff's motion denied.

The relevant facts are not in

dispute. Plaintiff, St. Charles

Associates, Ltd., owned a former Catholic

seminary, St. Charles College, which

consisted of seven structures located on a

site of over 100 acres in Catonsville,

Maryland. Among the buildings in the

complex was a church, an administration

building, a convent, a dining hall and

most importantly for purposes of this

case, a dormitory built in 1961 known as

the "College building".

In 1982, plaintiff formulated plans

to convert the former seminary into a

modern retirement community. As part of

this project, John Erickson, President of

Retirement Health Services Corporation, a

general partner in St. Charles Associates,

investigated the possiblity of obtaining a

federal tax credit which provided a

percentage credit for certain

rehabilitation costs of “certified

historic structures". (Erickson

affidavit). Section 48 (g) of the Internal

Revenue Code charged the Secretary of the

Interior ("Secretary"), under the aegis of

the National Park Service ("NPS"), with

making two classes of "certifications"

precondition to eligibility for the tax

credit. Thus, the Secretary was to

ascertain whether a renovation was

performed upon a "certified historic

structure” ("Part I certification") and

4 .

whether the work performed qualified as a

"certified rehabilitation"("Part II

certification"). Regulations for the

issuance of these certifications were

codified at 36 CFR Part 67.

In accordance with these

regulations, in 1982, plaintiff submitted

Part I and II applications, accompanied by

detailed architectural drawings, for each

of the seven buildings on the Charles

College campus to the Maryland Historical

Trust ("MHT"). No mention was made in

these applications of long range plans for

possible additional construction on the

Charles College site. The documents were

reviewed by MHT and forwarded to DOI with

a recommendation that they be approved.

On July 21, 1983, DOI issued a

determination that each of the seven

buildings, including the College Building,

qualified as a “certified historic

structure", In addition, the department

gave preliminary approval to plaintiff's

rehabilitation plans cautioning, however,

that "(i)f changes to the approved plans

are necessary as you proceed with the

work, we caution you to to obtain in

writing from the National Park Service a

determination where such changes would

enable the project to continue to meet the

standards for Rehabilitation....any

substantive change in the work as

described in the application should be

brought to our attention prior to

execution to insure continued conformance

to the Standards."(Defendant's Exhibit F).

Rehabilitation of the College

Building began shortly after receipt of

DOI approval. On November 23, 1983,

however, plaintiff was informed that Phase

One approval of the College Building had

been mistakenly granted due to a "clerical

error", that the building was not a

historic structure, and that the July 21

approval was revoked. ((Defendant's

Exhibit 4). Substantial work had by this

time been performed on the College

Building. Despite the revocation,

plaintiff completed the renovation of the

College Building in accordance with the

plans previously submitted to DOI and

began to assemble historical documentation

to substantiate the contention that the

College Building did in fact merit

certification as an historic structure. By

November 1984, rehabilitation of all seven

buildings in original complex was

complete.

By application dated December 5, 1984,

plaintiff requested NPS certification of

the completed rehabilitations of the seven

buildings. (Defendant's Exhibit G). While

this application was pending, plaintiff

decided to initiate a second phase of

construction on the Charles College site.

In March 1985, SSaSABEEE beeen work on

"Phase Two" of the new retirement

community, consisting of three buildings

located contiguous to the College

Building. No information was ptovided te

DOI about the new work.

Later that month, during the course

of conducting an investigation of the

Charles College site for the purpose of

reviewing the application for

certification, an official of the MHT

learned of the phase two construction and

notified the National Park Service of the

new activity. (Defendant's Exhibit H). NPS

then advised plaintiff that the

certification requests for the original

buildings could not be acted upon until

additional information regarding the full

scope of construction planned within the

boundaries of St. Charles College was

provided. (Defendant Exhibit 5). Plaintiff

subsequently furnished NPS with the

requested information.

On January 10, 1986, DOI issued a

determination that the College Building

was historic. Simultaneously with that

ruling, however, the department also held

that the College Building had lost its

character because of the rehabilitation

performed upon it and the new construction

adjacent to it. Shortly thereafter, on

February 10, 1986, the NPS denied

certification approval for the

rehabilitation of all seven buildings.

(Defendant's Exhibit A). Plaintiff

immediately appealed this decision. After

an inspection of the Charles College site,

the Chief Appeals Officer, Dr. Ernest .

Connelly, issued a new decision on October

20, 1986 in which certification was

granted for six of the structures, but

denied for the College building. Dr.

Connelly explained his action, in

pertinent part, as follows:

My conclusion that the rehabilitation

of the College Building does not meet the

Secretary of the Interior's "Standards for

Rehabilitation" and cannot be certified is

based primarily on the fact that the

historic character and identity of the

building, as it existed before the

rehabilitation, have been lost by the

building's envelopment in the new

construction of the additions to St.

Charles College....

The new addition on the side of the

College Building and the enlargement of

the link between this structure and the

Old Dormitory have re-oriented the

structure away from the front of the

campus. Furthermore, in the conversion of

the St. Charles College campus into an

extended care retirement community,

several new buildings were constructed in

front of the College Building. This new

construction figured largely in the

February 10, 1986, determination by the

National Park Service that the entire

development project failed the test of the

"Standards for Rehabilitation". While

disagreeing with this evaluation of the

new construction as it affects the entire

historic district, I concur that the new

buildings have overwhelmed the College

Building, visually severing its connection

to the row of historic buildings of which

it was consciously designed to provide one

terminus. From the crucial point of view

on the terrace in front of the Chapel,

Administration Building and Old Dormitory,

the College Building can be scarcely seen

at all; it has been engulfed by the new

buildings. Defendant's Exhibit C.).

Plaintiff filed the action at bar

challenging the final administrative

decision on the grounds that defendant

improperly based its denial of

rehabilitation certification upon the

effect of adjacent new construction upon

the College Building. In opposition to

plaintiff's motion, and in support of its

own motion for summary judgment, defendant

argues that the regulations governing

plaintiff's application clearly indicated

that the impact of new construction would

be considered in determining whether to

issue a certificate of rehabilitation. The

primary issue, therefore, which faces the

court is whether the regulations in effect

at the time plaintiff detntcced its

certification application identifed

adjacent new construction as a factor that

might be considered by DOI in determining

whether to grant rehabilitation

certification. As an alternate ground,

Plaintiff contends that even if the

regulations did encompass new

construction, consideration of such

construction is beyond the scope of

authority granted to defendant by statute.

The Tax Reform Act of 1976, Pub.L.

94-455, 90 Stat. 1519, and the Revenue Act

of 1978, Pub. L.95-600, 92 Stat. 2828

created tax incentives for certain

historic preservation work. Under 28 USC

Section 48(g)(2), incentives were

available for rehabilitation work done

upon a "certified historic structure"

where such renovation was certified as

being consistent with the historic

character" of the propeerty. The Act

delegated responsiblity for making the

requisite certification of rehabilitation

work to the Secretary of the Interior.

Pursuant to this grant of authority,

DOI promulgated regulations specifying

procedures and standards to be used in

considering certification requests.

Regulations were first published in 1977,

and then amended in 1981 at 36 C.F.R.

Section 67. These regulations defined a

"certified rehabilitation" as "any

rehabilitation of a certified historic

structure...which the Secretary has

certified to the Secretary of the Treasury

as being consistent with the historic

character of such property, and where

applicable, with the district in which

such property is located". 36 C.F.R

Section 67.2 (1981).

An applicant seeking rehabilitation

certification for a planned rehabilitation

project was directed to submit a

description of the proposed project and

any work in progress. Such plan would then

be reviewed for conformity to the

"Standards for Rehabilitation" established

by the regulation. 36 C.F.R. Section

67.6(c)(1981). If the proposal comported

with these regulations, a conditional

approval would be issued which could be

made final upon completion of the project

if, as finished, it continued to meet the

standards for rehabilitation. 36 C.F.R.

Section 67.6(e)-(g)(1981). Responsibility

was placed upon the applicant to keep DOI

informed of any substantive changes to the

plan made during the course of the

rehabilitation. 36 C.F.R. Section

67.6(d)(1981). 1./

17 Section 67.6 set forth the procedures

for certification appplication, in

pertinent part as follows:

Property owners desirous of having

rehabilitations of certified historic

structures certified by the Secretary as

being consistent with the historic

character of the structure or district in

which the structure is located, thus

qualifying as "certified rehabilitations",

shall comply with the following

procedures:

(a) Complete Part 2 of the "Historic

Preservation Certification Application"

and submit it to the SHPO. The application

may describe a proposed rehabiltation

project, work in progress, or a completed

rehabilitation. In all cases, however,

photographs showing the appearance of the

structure prior to rehabilitation, both on

the exterior and on the interior, must

accompany the application. Other

documentation, such as sketch plans and

elevation drawings, may be necessary to

evaluate certain rehabilitation projects.

Where such documentation is not provided,

review and evaluation cannot in some cases

be completed. Owners who undertake

rehabilitation projects without prior

approval from the secretary do so at their

own risk.

(b) If the work described in Part 2

of the application form is not completed,

the appropriate SHPO shall review the

proposed project as to whether or not the

project is likely to meet the Secretary of

the Interior's "Standards for

Rehabilitation" and forward the

application and written (sic ) within 45

days of receipt of documentation detailed

eared |

in paragraph (a) of this section.

describing the proposed project and the

recommendation of the SHPO, the Secretary

shall determine, normally within 45 days,

if the proposed project does not meet the

"Standards for Rehabilitation". If the

proposed project is consistent with the

"Standards for Rehabilitation", the owner

shall be advised of necessary revisions to

meet such standards and be encouraged to

work with the SHPO to bring the project

into conformance. These notifications -will

be made in writing.

(d) Once a prooject has been approved,

substantive changes in the work described

in the application should be promptly

brought to the attention of the secretary

by letter to insure continued conformance

to the standards: such changes do not

require a new "Historic Preservation

Certification Application”.

(e) When the rehabilitation project

has been completed, the owner shall notify

the appropriate SHPO in writing of the

project completion date and shall sign a

statement that, in the owner's opinion,

the completed rehabilitation meets the

Secretary's "Standards for Rehabilitation"

and is consistent with the work described

in Part 2 of the "Historic Preservation

Certification Application". At this time

the owner will be requested to provide

ptotographs of the completed

rehabilitation project; other

documentation that the SHPO believes is

necessary to make a recommendation to the

secretary; and his social security or

taxpayer identification number.

certifications will be issued to

rehabilitations which have been carried

out in accordance with the proposed plans

previously approved by the Secretary.

(f) The SHPO shall forward his

recommendations as to certification to the

Secretary within 45 days of receipt of the

project completion date and documentation

described in paragraph (e) of this

Section.

(g) The completed project may be

inspected by an authorized representative

of the Secretrary to determine if the work

meets the "Standards for Rehabilitation".

The Secretary reserves the right to make

inspections at any time after completion

of the rehalbilitation and to withdraw

certification of the rehabilitation

project upon determining that the project

does not meet or no longer meets the

Secretary's "Standards for Rehabilitation"

as completed. 36 C.F.R. 67.6(1981).

Section 67.7 set forth the standards

by which a rehabilitation would be

evaluated to determine whether

certification should issue. Applicants

were advised,-in pertinent part, that:

(1) Every reasonable effort shall be

made to provide a compatible use for a

property which requires minimal

alterations of the building structure, or

site and its environment, or to use a

property for its originally intended

purpose.

(2) The distinguishing original

qualities or character of a building,

structure, or site and its environment,

shall not be destroyed. The removal or

alteration of any historic material or

distinctive architectural features should

be avoided when possible....

(4) Changes which have may have taken

place in the course of time are evidence

of the history and development of a

building, structure, or site and its

environment. These changes may have

acquired significance in their own right,

and this significance shali be recognized

and respected. ...

(9¥ Contemporary design for

alteration and additions to existing

properties shall not be discouraged when

such alterations and additions do not

destroy significant historical,

architectural, or cultural material, and

such design is compatible with the size,

scale, color, material, and character of

the property, neighborhood or environment.

(10) Whenever possible, new

additions or alterations to structures

shall be done in such a manner that if

such additions or alterations were to be

removed in the future, the essential form

and intégrity of the structure would be

unimpaired.

The regulations offered insight into

how the standards would be used: "(they)

shall be applied taking into consideration

the economic and technical feasiblity of

each project: in the final analysis,

however, the rehabilitation must be

consistent with the historic character of

the structure and/or the district in which

it is located". 36 C.F.R. Section 67.7(a)

(1981).

In moving for summary judgment,

plaintiff asserts that defendant invalidly

employed a criterion not encompassed by

these standards to deny certification for

the College Building, namely, the effect

of adjacent new construction upon a

certified historic property. Pointing to

language used in various standards,

defendant argues that the standards

clearly encompass not only the

rehabilitation of a historic structure per

se but also its site and environment. For

example, standard two provides: "(t)he

distinguishing original qualities or

character of a building, structure, or

site and its environment, shall not be

destroyed...."(emphasis added). Defendant

asserts that use of this phrase, which is

reiterated in many of the standards,

demonstrates that DOI intended to examine

areas beyond the structure itself in

determining the acceptability of a

rehabilitation project. Review would thus

extend to a building's site and

environment.

In response, plaintiff contends that

the words building, structure and site are

used as terms of art, the definitions of

which are found in other regulations

issued by the Department of the Interior,

specifically those dealing with the |

National Register Program established by

the National Historic Preservation Act of

1966, 80 Stat. 915, 16 U.S.C. Section

470a. The National Historic Preservation

Act authorizes the Secretary of the

Interior to "maintain a National Register

of Historic Places composed of districts,

Sites, building, structures, and objects

significant in American history...." 16

U.S.C. Section 470a(1)(A). Pursuant to

this authorization, DOI promulgated

regulations implementing the statute.

Relying upon the principle that statutes

and regulations promulgated by the same

authority and relating to the same subject

matter are to be read together with

consistent meanings, see Sutherland Stat.

Const. Section 51.02 (4th Ed.), plaintiff

urges that the word "site" in the

regulations at issue should be given the

same meaning assigned to that term in the

National Register regulation. The Court

disagrees. While later versions of the

National Register regulations do contain a

specific definition for the term "site",

see e.g. 36 C.F.R. Section 60.3 (1984),

the regulations in effect in 198]

contained no such definition. 36 CFR

Section 60 et seq. Hence, the Court

adheres to the maxim that words in a

Statue are generally to be accorded their

ordinary meaning. Reed v. Health and Human

Services, 774 F.2d 1270, 1274 (4th Cir.,

1985).

Thus, the Court must examine the

import of the oft repeated phrase

"building, structure, or site and its

environment” to determine whether it was

intended to encompass new construction

adjacent to, or connected with, a

certified historic structure. After a

close reading of the regulations, the

Court finds that this phrase to be

ambiguous. As punctuated, it appears that .

the word “environment” refers only to

"site" and not to “building”

or"structure”. DOI's decision in the case

at bar, as ewell as the affidavit of a

National Park Service official, reveal

that the agency itself has, however,

consistently interpreted its regulations

as embracing new construction in the

immediate vicinity of an historic

structure. See Declaration of H. Ward.

Jandl. In light of the well established

principle that courts should defer to an

agency's interpretation of its own

regulations, if that interpretation is

reasonaable, Monger v. Bowen, 817 F.2d 15,

18 (4th Cir., 1987), Hunter v. Director

Office of Workers's Compensation, 803 F.2d

800 (4th Cir., 1986), the Court declines

to construe the statute on the basis of an

errant comma, but instead looks to the

reasonableness of the agency's

interpretation to determine the meaning of

the contested regulations.

Upon reviewing the regulations and

the material referenced therein as a

whole, the Court finds the agency's

interpretation is not only reasonable, but

inescapable. While the wording of the

standards may leave some doubt as to the

scope of the rehabilitation review, any

ambiguity is dispelled by consulting an

additional publication referenced in, and

recommmended for use by the regulations.

Section 67.7(b) notes that "Guidelines and

other technical informaticn to help

property owners formulate plans for the

rehabilitation, preservation and continued

use of historic properties consistent with

the intent of the Secretary's ‘Standards

for Rehabilitation’ are available from the

National Park Service...." The version of

this publication available to plaintiff at

the time the Charles College project was

launched stated specifically,

The following guidelines are designed

to help individual property owners

formulate plans for the rehabilitation,

preservation, and continued use of

historic buildings consistent with the

intent of the Secretary of the Interior's

"Standards for Rehabilitation". The

guidelines pertain to buildings of all

occupancy and construction types, sizes

and material. They apply to permanent aud

temporary construction on the exterior and

interior of historic buildings as well as

new attached or adjacent construction.

(Defendant's Exhibit I).

The Guidelines contain a direct

discussion of the perils of undertaking

new construction without DOI approval.

Under the heading "new construction" on

page ll, the Guidlelines recommend

"keeping new additions and adjacent new

construction to a minimum, making them

compatible in scale, building materials

and texture". (empahsis added). Thus, the

guidelines lend weighty support to the

agency's interpretation of its

regulations.

Subsequent amendments to the 1981

regulations also bolster this

interpretation. In 1984, DOI issued

revisions to Section 67.6(b) in order to

"clarify the scope” of rehabiltation

review for certification purposes. 49 Fed

Reg. 9303 (1984). These revisions made

explicit what has formerly been impicit by

stating that:

(A) rehabilitation project for

certification purposes encompasses all

work on the significant interior and

exterior features of the certified

historic structure(s) and its setting and

environment, as determined by the

Secretary, and related demolition,

construction or rehabilitation work which

may affect the historic qualities ,

integrity or setting of the certified

historic structure(s). 36 CFR section

67.6(b)( 1984).

The standards for review under the

1984 regulations remained unchanged. Thus,

ee ee a a ee

after viewing the regulatory scheme as a

whole, the Court finds that the 198]

regulations did encompass new

construction. 2

2. Plaintiff asserts that, even if

new construction was included in the 1981]

regulations, due to the ambiguity of those

rules, defendant ought to be estopped from

denying certification based upon new

construction. Estoppel, however, requires

the making of a definite misrepresentation

of fact with reason to believe another

will rely upon it. When a party seeks to

assert estoppel against the government,

this misrepresentation must amount to

""affirmative misconduct'', and "more than

a mistake". Furcon v. United States, 626

F.Supp. 320, 323 (D.Md. 1986). Plaintiff

has alleged no such facts upon which

estoppel may be based in this case.

Next, the Court turns to Plaintiff's

final argument that, in enacting

regulations encompassing new construction,

defendant exceeded its statutory grant of

authority. As described above, 26 U.S.C.

Section 48(g)(C) charges the Secretary of

the interior with certifying the

rehabilitation of a certified historic

Structure "as heing consistent with the

historic character of such property...." A

"certified historic structure" is in turn

defined as "any bulding (and its

" which meets

structural components)...

certain historic criteria. 26 U.S.C.

Section 48 (g)(3). Plaintiff argues that

this statute restricts DOI inquiry to the

actual historic structure, i.@s, tae

building and its structural components.

Where a statute authorizes an agency

to implement rules or regulations as may

be necessary to carry out a delegated

duty, "such regulations are to be

sustained so long as they are ‘reasonably

related to the purposes of the enabling

legislation’, and are to to be given

consideration by a reviewing court. United

Hospital Center, Inc. v. Richardson, 757

F.2d 1445, 1451 (4th Cir. 1985), quoting

Mourning v. Family Publications Service,

Inc., 411 U.S. 356, 369, 93 &.Ct. -3652

(1973). “Moreover, in determining whether

the regulations are within the purpose of

the enabling legislation, the courts give

great deference to the interpretation

given the statute by the officers or

agency charged with its administration.'"

Richardson, 757 F.2d at 1451, quoting

Udall v. Taliman, 380 U.S. 1, 16, 85 S.Ct.

792, 801 (1965).

In this case the Court finds the

regulations at issue fit neatly within the

scope of the law's surpene @? encouraging

investment and redevelopment of older

properties while retaining their historic

character. Thus, the Court holds that

these regulations, as they apply to

rehabilitation certification, are within

the Secretary of the Interior's

pevauarite granted authority.

For all of the above stated reasons,

defendant's Motion for Summary Judgment

will be granted.

Edward S. Northrop

Senior United States District Judge

Dated: 14 October 1987

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MARYLAND

ST. CHARLES ASSOCIATES,

LTD.

V. :Civil No.

N-86-3818

UNITED STATES OF AMERICA:

ORDER

In accordance with the foregoing

Memorandum, and for the reasons stated

therein, IT IS this 14 day of October,

1987, by the United States District Court

of the District of Maryland, ORDERED:

1) That Defendant's Motion for

Summary Judgment Be and the same hereby is

GRANTED;

2) That Plaintiff's Motion for

Summary Judgment BE and the same is hereby

DENIED, and

3) That the Clerk shall mail ccpies

of this Order to counsel in the case.

Edward S. Northrop

Senior United States District Judge

ne hed

Bal hee ta Ee NR OIA A PAD a Ne

ae a aa Na

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MARYLAND

ST. CHARLES ASSOCIATES, LTD. : CIVIL

Plaintiff : DOCKET

wtBe : N-86-3818

SECRETARY, UNITED STATES

DEPARTMENT OF THE INTERIOR

DEFENDANTS

BALTIMORE, MARYLAND

June 16, 1989

THE ABOVE ENTITLED MATTER CAME ON

FOR A REMAND HEARING IN THE UNITED STATES

DISTRICT COURT BEFORE THE HONORABLE EDWARD

S. NORTHROP, BEGINNING AT 10:000'CLOCK

A.M.

(EXERPT OF PROCEEDINGS CONTAINING RULING)

The Court: Now you have before you

all of the material that was in and that

will have to be determined at that time. lI

do find that it seems to me that

whether--it doesn't make any difference,

but it seems to me that the concept, at

least, was existent prior to--it certainly

P 29

aas existent in ‘84.

th Mr. Murphy: Excuse me?

The Court: And it existed--and the

concept was--became more--became clearer

with the filing of the --of certain papers

and by the testimony, and that during the

period of time when the determination as

to the historic position of the so-called

College Building was being considered by

the department, and that is admitted by

ur. Erickson, or I will reiterate it

again, as I have done 3 or 4 times, that

during that period of time that, while

this was at least pending there, there

were 6 or 7 herarings to attempt to obtain

approval of the Department of the

Interior, and reverse the original

decision that it was not historical.

And it would appear to me that there

was certainly an obligation to make at

that time as it was as I ruled originally

to make an obligation--that there was an

obligation that all surrounding buildings

or settings of the historical building or

any change thereto should certainly be

submitted under the circumstances.

And I feel it seems to me that it was

their obligation to do so and because of

the fact that, certainly after April of

'84, there was a specific and explicit

regulation setting that forth. And as I

ruled, and as I stated in my opinion, that

there was an obligation to disclose

anything of that nature prior to that

time, it was implicit wnereas it wasn't

rererred to in the regulation directly, it

was set forth in various pamphlets and so

forth given to the applicant for

historical exemption.

So it would appear to me and I do

find as a fact, under the circumstances,

that it was their obligation to indicate

the three buildings which were new

construction and which enguifed the

nistoric so-called Colleve ‘uilding. Okay.

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MARYLAND

ST. CHARLES ASSOCIATES

Vv. : Civil Action

UNITED STATES OF AMERICA : No. N-86-3818

ORDER

In accordance with the decision of

the United States Court of Appeals for the

Fourth Circuit remanding this case for

further proceedings, a hearing was held in

open court on June 16, 1989. At that time,

testimony was taken, exhibits entered,

oral argument heard and an oral opinion

rendered.

For the reasons stated in open

court, IT IS this 19th day of June, 1989,

by the United States District Court for

the District of Maryland, ORDERED:

1. That the Court's original order

of October 14, 1987 BE and the same is

hereby, AFFIRMED;

2. That the Charlestown development

is found by this Court to have been

conceived as one project constructed in

phases;

3. That the Clerk of Court shall

enter this case as CLOSED on this Court's

docket; and

4. That the Clerk of Court shall

mail copies of this Order to counsel in

this case.

Edward S. Northrop

Senior United States District Judge

UNITED STATES DEPARTMENT OF THE INTERIOR

NATIONAL PARK SERVICE

P.O. Box 3127

Washington, D.C. 20013-7127

October 20, 1985

Mr. John C. Erickson

President

Investment Planning Services

711 Maiden Choice Lane

Baltimore, Md. 21228 ~~

Re: St. Charles College Historic District,

711 Maiden Choice Lane, Baltimore,

Maryland

Properties: Project Numbers:

Power House MD-83-0341

College Dormitory MD-83-0342

Old Dormitory MD-83-0343

Convent MD-83-0344

Dining Hall MD-83-0345

Administration MD-83-0347

Taxpayer Indentification Number:

59-1920843

Dear Mr. Erickson:

My review of your appeal of the decision

of the Preservation Assistance Division,

National Park Service, denying

certification for the rehabilitation work

on the properties cited above has been

concluded. The appeal was made in

accordance with the Department of the

Interior regulations (30 CFR Part 67)

governing historic preservation

certifications for Federal income tax

incentives provided in Section 212 of kia

Economic Recovery Tax act of 1981.

I wish to thank you and your associates

for meeting with me in Washington on April

30, 1986, and for providing a complete

account of the factors in the project. In

order to give full consideration to the

facts and circumstances particular to this

cuse, including the points raised in our

meeting, I made a site inspection of the

proyerty on May 21, 1586, and I appreciate

that yeur staff architect was available to

answer questions on that occasion. Also, I

acknowledge your letter of May 21, 1986,

offering the donation of an easement to

afford better protection for the forefront

of the college ensemble. By my letter of

June 24, 1986, such proposal for the

restriction of future development was

accepted as an additional part of the

project for which certification was

souyht, and these were further discussed

in our meeting in Washington on July 8,

19.6. I have recieved a letter dated

September 9, 1986, from the Director of

the Maryland Jiistorical Trust transmitting

a copy of your deed of easement dated

September 9, 19 6, which I am assured is

now in full legal effect.

Vith thou, htful attention to all the

foregoing, I have determined that the

reliavilitations of the Power House, the

Convent, the Dining tall, the Old

Dormitory, and the Administration Building

are consistent with the historic character

of the subject properties and the district

in which they are located, and that these

projects meet the Secretary of the

Interior's "Standards for Rehabilitation".

Therefore, the denial issued on February

10, 1986, by the National Sank keeedas

with respect to these structures is hereby

reversed. I have further determined that

the rehabilitation of the College Building

is not in conformance with the historic

character of the property, and the

historic district in which it is located,

and that this project does not meet the

Secretary of the Interior's "Standards for

Rehabilitation". Therefore, the February

10, 1986, decision of the Preservation

Assistance Division is affirmed in this

instance.

The work undertaken on the buildings

comprising the St. Charles College

Historic District is but a portion of a

large and complex project involving both

rehabilitation and new construction. The

involvement of the National Park Service

has been extensive, reaching back to 1983

and including several appeals on the

composition of the historic district, on

the demolition of a non-contributing

building, and other matters. It became

apparent during this process’ that the

total development should properly have

been evaluated as a single project, rather

than a collection of individual

rehabilitations. This approach was adopted

by the Preservation Assistance Division in

its letter of February 10, 1986, denying

certification of the entire project. Yet

the history of the project does not admit

to so reductive an approach; indéividual

project applications were reviewed for the

separate buildings, and unique project

numbers assigned to each building.

Therefore, in fairness to you, I have

reviewed the matter both as a collection

of individual projects and overall as the

development of a single entitiy known as

the St. Charles College Historic District.

Built in stages from 1911 to 1961, St.

Charles College functioned as a seminary

for the education of priests in the Roman

Catholic church and was historically

important as such an institution in the

United States. The principal physical

manifestation of that historical

importance, as it has survived, rests in

the architectural primacy of the historic

fronts of the college buildings across the

forisal, terraced platform upon which the

classically conceived buildings stand.

This arranveirent denotes the character of

the structures as an organized grouping of

buiidinyzs in a colleze campus. The

configuration of these structures in an

uniroken iine looking out over the terrace

and extensive playing fields in front

vOolcly co:.veys the ‘doubtless intended

architectural impression of an imposing

institution ,recl iiiing its presence to

the worl:., while retaininy a certain

detachment from it. The preservation of

this setting, so important to the overall

character of the St. Charles College

Historic District, has been ensured

through the enlargement of the historic

district boundaries, to include the

terrace and playing fields, and through

the accompanying donation to the Maryland

Listorical Trust of an easement

encompassiny the area in front of the

principal buildings. As a result of these

developments, the overriding character of

this historic resource has been

appropriately emphasized and maintained in

the rehahilitation of the separate

Structures, with the sole exception of the

1961 College -u lding. “he rexsons behind

this conclusion pertaining to each

Structure are ,iven below.

In the reiuabilitatioi: of the Power House

tiie larye smo estac: that for:erly stood

at the side of this building was

acemolisied. The reservation Assistance

Division noted in its letter that this

feature was "characteristic of structures

of this type", which is true, and "should

have been preserved". Nevertheless, the

building retains its relationship to the

other structures in the historic district.

The Power House still apears as a

utilitarian outbuilding serving the

complex of larger structures behind which

it stands. Consequently, in this case, the

loss of the smokestack from the power

plant it served has not adversely affected

the historic district. The windows and

door changes cited by the Preservation

Assistance Division are in themselves

slight chanyes to the building. They

playea no part in our extended meeting of

April 30, 19356, and did not enter into my

deliberations on this building.

she construction of a pedestrian bridge

linkin, the Power House and the Dining

all also cCi,yured in the previous lhational

Park Service determination regarding these

structures, and also the Convent, which

stands between them. Pedestrian walkways

are never recommended, as they are

generally out of character with the

historic buildings to which they are

attached, and they tend to reduce the

independent structures to subordinate

elements of a larger scheme. They also

frequently block important views within

historic districts. Moreover, construction

of such features involves the removal of

large amounts of historic fabric.

In this case, however, the deleterious

effects normally produced by attaching

such walkways to historic buildings are

absent. The walkway links structures

standing behind the larger buildings at

the front of the complex. The visual

prominence of the Chapel and pendant

Adminmistration Building and Old Dormitory

is maintained from the front of the

campus. My visit to the site confirmed

that the historic subordination of Power

House, Convent and Dining Hall to these

larger buildings is maintained. The back

of the complex is still perceived as such;

it would not be confused with the imposing

front. Furthermore, with respect to the

effect of the walkway on each of these

three buildings, the historic prominence

of the south elevation is maintained in

each case. The bridge is constructed on

the secondary north elevation. The primary

south elevations of the Power House,

Dining Hall, and Convent retain both their

historic appearance and their prominence.

As visitors entering the complex follow

the main entrance road as it winds in

front of the main buildings and continues

behind them, they encounter the main

facades of these three structures, before

they approach the bridge, under which the

road now passes. The sequence of buildings

presented by the entrance road used

historically is still maintained, as is

the appearance of the buildings from that

road. Fianlly, I note that the loss of

building fabric involved in the. attachment

of the bridge is virtually nil; in fact,

it does not touch the convent at all.

considering the circumstances, unique to

thiis project, I find the walkway is

accpetable.

Also cited in the decision of Fobrucsy 10,

1986, was the placement of ductwork on the

exterior of the Convent and Dining Hail. I

agree with the determination that such

work has a negative effect on the

appearance of the structures, and I accept

your assurances that it will be screened.

While the ductwork would not be grounds

for denial of certification to the work

done on these buildings, I appreciate your

commitment to reduce the impact these

unsightly elements have on the appearance

of these two buildings.

Aspects of the rehabilitation of the 1961

College Buflding (classroom and dormitory)

found not to meet the "Standards for

Rehabilitation" include extensive interior

demolition, the replacement of the

original windows with new ones deemed

incompatible with the character of the

building, and the construction of a new

and larger addition linking this building

to the old dormitory. Figuring largely in

the decision of the Preservation

Assistance Division regarding the work on

this structure, as with the work

undertaken on ail three buildings,

considered as a single project, was the

construction of three new buildings in

front of the campus.

My conclusion that the rehabilitation of

the College Building does net meet the

Secretary of the Interior's "Standards for

Rehablilitation" and cannot be certified

is based primarily on the fact that the

historic character and identity of the

building, as it existed before the

rehabilitation, have been lost by the

building's envelopment in the new

construction of the additions to St.

Charles College, rather than on the other

issues cited in the previous decision by

the National Park Service. In regard to

the interior work, I note that it was

described in the initial application for

the project submitted in advance of the

start of work, and approved by the

National Park Service in its letter of

July 21, 1983. You stated in our meeting

that demolition work had been largely

completed by the time you received a

letter dated November 23, 1983, from the

National Park Service, noting that

inclusion of the 1961 building in the list

of projects aproved by the July 21 letter

was a clerical error. Consequently, I

accept your statement that you undertook

the interior demolition work in good

faith, relying on the written approval of

the National Park Service. The loss of the

interior room arrangement in this building

is reyrettable, and would otherwise itself

be grounds for denial of certification. As

it is, however, the interior demolition

must be considered as approved by the July

21, 1983, letter. I note your willingness

to install horizontal bars on the windows

in an effort to recapture the appearance

of the original windows if doing so would

gain certification of the rehabilitation

of this structure. Considering the degree

of alteration occasioned by the new

construction, however, such a treatment

would not be sufficient to overcome the

larger effct on this structure brought

about by the new work.

The new addition on the side of the

College Building and the enlargement of

the link between this structure and the

Old Dormitory have re-oriented the

structure away from the front of the

campus. Furthermore, in the conversion of

the St. Charles College Campus into an

entended-care retirement community,

several new buildings were constructed in

front of the College Building. This new

construction figured largely in the

February 10, 1986, determination by the

National Park Service that the entire

development failed the test of the

"Standards for Rehabilitation”. While

disagreeing with this evaluation of the

new construction as it affects the entire

historic district, I concur that the new

buildings have overwhelmed the College

Building, visually severing its connection

to the row of historic buildings of which

it was consciously designed to provide one

terminus. From the crucial point of view

on the terrace in front of the Chapel,

Administration Building and Old Dormitory,

the College Building can be scarcely seen

at all; it has been engulfed by the new

buildings.

With the exception of its effect on the

College Building, however, the new

construction is otherwise wholly

accetable. The new buildings do not change

or interfere with the important

architectural front of St. Charles

College. Their construction has not

destroyed any of the terrace that forms

the socle for the principal buildings. The

new buildings are situated off to one side

of the dominant group and are fitted into

the natural fall of the land. I note that

the grade level of the new construction is

aproximately eleven feet lower than the

wall height of the Old Dormitory and

Administration Building. A conscious

intention to design the new buildings to

be subordinate to the old ones and to

avoid confuusion with them is obvious in

the concept and result. Furthermore, it is

equally evident that the new construction

was carefully designed to be compatible in

size, scale, color, texture, and detail.

It reflects the style of the older

Structures without imitating it too

closely. The materials of the new

buildings harmonize with those of the

historic structures. On the whole, I find

the added buildings to be quite

sensitively done and consistent with the

historic character of St. Charles College.

Finally, with regard to the Administration

Building and Old Dormitory, the previous

determination by the National Park Service

that these rehabilitations did not meet

the Standards was not based on work

performed on these structures, but on the

effects of the new construction on the

college campus as a whole. Since I find

that the new buildings do not adversely

affect any structure other than the

College Building, the previous finding is

hereby set aside. I wish to note, however,

that I find the apartment in the main

entrance of the Administration Building

to be incongrous with the axial quality of

the architecture and the importance of the

terrace and its foreground.

Effective the date of this letter, the

rehabiligecions of the Power House,

Convent, Dining Hall, Administration

Building and Old Dormitory are declared

certified rehabilitations. The

rehabilitation of the College Building is

determined not to meet the Secretary of

the Saterter*s "Standard's for

Rehabilitation". As Department of the

Interior regulations provide, my decision

is the final administrative decision on

certification. Questions concerning

specific tax consequences of this decision

or interpretations of the Internal Revenue

Code of 1954 should be addressed to the

appropriate Internal Revenue Service

office.

Sincerely,

Ernest Allen Connelly

Chief Appeals Officer.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.