Gary L. Cole AIA, ALA, Esq.
A Call for Replacing the Secretary’s Standards with a Model Historic Building Code [Author’s Note: The following article was also be published in the April 2013 print and online edition of Traditional Building Magazine.] “The Standards are neither technical nor prescriptive, but are intended to promote responsible preservation practices that help protect our Nation’s irreplaceable cultural resources. For example, they cannot, in and of themselves, be used to make essential decisions about which features of the historic building should be saved and which can be changed. But once a treatment is selected, the Standards provide philosophical consistency to the work.” Introduction to Standards and Guidelines. National Park Service. On January 25, 2013, U.S. Secretary of the Interior Ken Salazar asked the National Park Service (NPS) to conduct an internal review of the Federal Historic Preservation Tax Incentives Program (HTC) to “. . . make sure that we are doing everything we can to work in partnership with local communities, developers and other stakeholders to provide guidance and promote restoration efforts.” This is welcome news, though as a former Illinois State Historic Preservation Office (SHPO) staff architect charged with interpreting the Secretary of the Interior’s Standards for Rehabilitation (Standards) for the HTC and other historic rehabilitation tax-incentive programs and now as a private practice attorney, I temper expectations. Governmental reform is rarely a swift or revolutionary process. Many of historic preservation’s laws and programs are nearly old enough for their own historic designations and are in dire need of rehabilitation. The public would certainly benefit from a little regulatory tinkering with the HTC program, starting with eliminating application fees and the redundant SHPO and NPS review process. Many of historic preservation’s laws and programs are nearly old enough for their own historic designations and are in dire need of rehabilitation. However, meaningful reform includes reforming the way historic properties and communities are able to attract reinvestment capital for business growth, job creation and local economic stability. This should start by relegating the Standards to their intended role of simply providing philosophical consistency to historic rehabilitation efforts, and not as a de facto historic building code by historic preservation administrative entities. Hardly changed since their inception in 1977, the Standards comprise a ten-point manifesto of historic preservation’s essential rehab doctrine as enforced by federal, state and local historic preservation regulatory entities. While philosophical guidance can inform the development of federal regulations with high social and legal aspirations, the vague language of the Standards bars the public from any objective, plain meaning understanding of their text. Published “Interpretations” of the Standards by the NPS have merely transformed doctrine into dogma. Though most of the Standards have retained their relevance, some, such as the unloved Standard No. 9, is the product of an outdated 1970s Modernist architectural bias and should be eliminated. Though most of the Standards have retained their relevance, some, such as the unloved Standard No. 9, is the product of an outdated 1970s Modernist architectural bias and should be eliminated. Communities seeking to redevelop their historic properties compete with other communities for a limited pool of private reinvestment capital. When faced with choices, developers and investors will often chose the more predictable and less risky of those options. The ambiguous Standards and their unpredictable interpretations by administrative entities can decrease the former, increase the latter and discourage reinvestment in historic properties. But the solution is simple: the Secretary of the Interior should support phasing out the Standards and replacing them with a Model Historic Building Code that conforms to the Federal Plain Language Guidelines, combines the ethics of the Standards with clear performance and prescriptive rehabilitation requirements; embraces 21st century preservation technology and materials science; and . . .
[Author’s Note: The following is not a chapter of the regular “Visual Thinker’s Guide to Understanding and Communicating Construction Contract Essentials.” This is more of a side trip, a little backstory about visual thinking and visual memory as relates to certain amazing accomplishments in the sport of memorizing the unending, non-repeating numbers of Pi. Readers who would like to read The Visual Thinker’s Guide in its current evolving state, can do so in downloadable PDF form by clicking HERE.] Pi, as we learned in school, is an irrational number, a mathematical constant used to calculate the circumference and area of a circle. As an irrational number, the numbers to the right of its decimal point never repeat and never end, though Pi is often approximated as 3.14159. The current record for calculating Pi’s unending and nonrepeating digits is ten trillion. There is a hobby, a sport and a competition for everything – and so it is with Pi. Piphilology is the practice of memorizing the digits to the right of Pi’s decimal point in sequence, with the current verifiable world record at 67,890. It seems that a Mr. Chao Lu of China took the time – had the time – to memorize and repeat the first 67,890 digits of Pi without error. Actually, as the story goes, he was aiming for 100,000 numbers, but after over 24 hours of reciting Pi’s digits in sequence, he got a little loopy and slipped at a mere 67,890. The Visual Thinker’s Guide to Understanding and Communicating Construction Contract Essentials, currently being published on this website in installments, uses visual mnemonics, visual thinking and visual communication to develop a deep understanding and effortless recall of construction contracts, with the AIA B101 (2007) Owner-Architect’s Agreement as the demonstrator. On one level, construction contracts can be considered just numerically organized text. Of course, they’re much more than that, but the first step in visually understanding the provisions of their articles, sections and paragraphs is to visually memorize their numerical organizational system. Piphilology, of course, is about memorizing numbers – specifically Pi’s. So it should be no surprise that some Piphilologists rely on the same visual memory techniques taught in The Visual Thinker’s Guide to commit hundreds and sometimes thousands of Pi’s digits to memory. By comparison, visually memorizing an AIA contract’s numerical organizational system – including the hefty A201 General Conditions – wouldn’t even be a warm-up exercise for a moderately skilled Piphilologist. But many Piphilologists don’t rely on visual thinking at all. One of the most popular techniques for memorizing Pi uses a “piem,” a portmanteau of Pi and poem, in which the numbers of Pi are converted to words and assembled into a long poem. Piems are good for memorizing the digits of Pi – if you’re good at memorizing epic poems, which most people aren’t. There’s a reason a sport for memorizing Pi exists, but not one for memorizing the Iliad and the Odyssey.
Chapter 1: The Visual Thinker’s Guide to Understanding and Communicating Construction Contract Essentials [Author’s Note: This is the first part of a series of articles that will demonstrate for design, engineering and construction professionals how to better understand and communicate the substance of construction contracts and other text-heavy documents by using their existing abilities as visual thinkers. The Introduction to this series can be read by clicking HERE. Some readers have requested that I notify them by email upon my next posting of a “Visual Thinker’s Guide” installment. I’m more than happy to do so for anyone who emails me directly at firstname.lastname@example.org and simply puts “Receive Visual Thinker Updates” in the email Subject line. Thanks.] The goal of The Visual Thinker’s Guide to Understanding and Communicating Construction Contract Essentials is to allow visual thinkers – in this case design and construction professionals – to be smarter in their practices. Of course, “smarter” is a loaded term and its use always carries the risk of sounding hubristically smug. But as used here, it has nothing to do with hubris, smugness or even “IQ,” a controversial term that I’ve always understood to be a measure of potential, not of performance. For these articles, I define “smarter” as follows: “the ability to process and retain more useful information in less time and to produce something of value for a professional market.” Certainly, the term is broad and there are many ways to define and apply it; but these articles are about working smarter and more productively, not harder with less to show. The key words are “process and retain more useful information in less time.” Call it a solid Midwestern upbringing, but I’m interested in practical results. It’s not that I have anything against implausible thought experiments with no remote possibility of leading to anything useful – they can be excellent diversions. But to paraphrase Mick Jagger: “Too much intellectual posturing in the bath is not a good thing.” It’s also not a very useful thing in professional markets. More on point, and to quote someone who was not the leader of the greatest R & R band ever: “The business of business is business.” Therefore, on to business. Boiled down, the logic underlying The Visual Thinker’s Guide to Understanding and Communicating Construction Contract Essentials can be expressed almost algebraically: “To be able to communicate knowledge of something, that thing must be deeply understood. To deeply understand something, it must be fully remembered. For visual thinkers, the best way to recall something is visually.” Architects, engineers and contractors are knowledge workers. Their market value . . .
Introduction: The Visual Thinker’s Guide to Understanding and Communicating Construction Contract Essentials : Some readers have requested that I notify them by email upon my next posting of a “Visual Thinker’s Guide” installment. I’m more than happy to do so for anyone who emails me directly at email@example.com and simply puts “Receive Visual Thinker Updates” in the email Subject line. Thanks.] [Author’s Note: The following is an introduction to a series of articles that will instruct design, engineering and construction professionals how to better understand and communicate the substance of construction contracts and other text-heavy documents, by using their existing abilities as visual thinkers.] For design and construction professionals who are visual thinkers – those who best comprehend text and words by transforming them into still or animated pictures in their minds – closely reading, deeply understanding and clearly communicating the essential details of construction contracts can be a joyless and intimidating ordeal. The ape-men of 2001: A Space Odyssey huddled and gibbered at the mysterious black monolith with less trepidation than some architects I’ve known when faced with reading, or worse, being solely responsible for negotiating an American Institute of Architects form agreement. But it’s not their fault – construction contracts just aren’t written to be understood visually. Construction contracts are written by lawyers – who mostly think, speak and write in the rarefied, priestly vernacular of the law, not in the fleshy, three-dimensional visual world of design and construction. So if architects, engineers and contractors aren’t trained to communicate in the language of the law, and if the law doesn’t communicate visually, can they ever learn to embrace construction contracts as a necessary – but not necessarily evil part of their professions? Absolutely. They just have to keep reading. This is the introduction to a series of articles titled The Visual Thinker’s Guide to Understanding and Communicating Construction Contract Essentials that demonstrates for design and construction professionals, visualization techniques for organizing, understanding and communicating the essential details of seemingly impenetrable two-dimensional, text-driven construction contracts by transforming them into unique three-dimensional mental images. And once construction contracts are understood as interrelated mental images, they can be communicated visually to clients, peers or opposing parties as sketched or even PowerPointed graphics. Though The Visual Thinker’s Guide to Understanding and Communicating Construction Contract Essentials is written with design and construction industry professionals in mind, anyone can learn its lessons – even contract-writing, text-loving lawyers. All they need is a little willingness to think visually. Speaking as one, there are few things that transactional lawyers love more than settling down to read a plump, juicy contract: page after page after page of dense, finely-fonted text crammed with archaic phrasing and obscure terminology; Byzantine cross-referencing, sectioning, sub-sectioning, sub-sub-sectioning; whole pages of single paragraph run-on sentences; and crafted with a kind of visual symmetry, proportion and organization that makes Pollack look like Palladio. Also speaking as one, there are few things that architects and other construction professionals loathe more than the things lawyers love – like reading lengthy construction contracts. Vampires will sip holy water while sunning themselves in the Vatican’s piazza before many architects I’ve known will force themselves to read the AIA B101 Standard Form of Agreement Between Owner and Architect – word-for-word, from start-to-finish. Of course, I exaggerate. A little. I also generalize. A little. And I vigorously agree that exceptions to most generalizations exist. So stipulated. I stand by them anyway. A lot. But why should architects, engineers and contractors fear and loathe the well-vetted industry standard contracts of the American Institute of Architects, or the Associated General Contractors of America, or the Engineers Joint Contract Documents Committee, the very documents they depend on as business plans when projects go well – and as battle plans when they don’t? Having survived the professional metamorphosis from architect to attorney & architect – I think I understand the issue. Most design and construction professionals think, understand and communicate better in three-dimensional visuals . . .
The Visual Thinker’s Guide to Understanding Construction Contracts – Brief Overview On September 28, 2012, I posted a query on select LinkedIn groups regarding possible interest in a series of articles I’m developing under the title The Visual Thinker’s Guide to Understanding Construction Contracts. The response was surprisingly enthusiastic. Therefore, I’ll post the first article of the series shortly on my website here at http://www.garylcolelaw.com, and will announce it on my LinkedIn groups and direct contracts, Twitter, etc. Thereafter, the articles will be posted on a regular basis and in reading lengths that make them conducive to online publishing – like short chapters of a larger publication. But in response to some of the comments I received on LinkedIn, a little more about these articles: These articles teach design and construction professionals visual thinking techniques for quickly organizing, absorbing and comprehending legal documents, using as a first example the AIA B101 – 2007 Standard Form of Agreement Between Owner and Architect. But learning these techniques isn’t simply a matter of reading a few pages of instruction – it’s about developing core cognitive skills by leveraging existing ones. And it will take some practice, though I always enjoy using them because they require a vigorous visual imagination. For the motivated who learn these techniques and become proficient, I think you’ll be surprised at what you can do in a short time – I certainly was the first time I learned them. These techniques involve the higher development of several core cogitative skills involving organization, visualization, focus and memory, to commit the substance of legal documents not merely to paper as graphics – which I don’t believe would be particularly useful – but to working memory and actual knowledge. Information stored only on disc or on paper is just information – but if it’s also stored and can be readily accessed from the mind, it becomes working knowledge. Developing proficiency with these techniques will make your mind your hard drive, which, of course, you carry with you and can access anytime – though I admit there’s always the danger in our businesses of losing it. That’s a law joke. Individually, these techniques are simple – even fun – but may at first seem a little awkward, which is why I’ll break them down to their individual skill components and then build up slowly with examples and exercises, with time in between the articles for readers to develop comfort and proficiency before advancing to the next step. Anyone can learn these techniques – including lawyers, who tend not to be visual thinkers, but who do excel in organization and focus. But because design and construction professionals already visualize well, it may be particularly suited for them. These techniques also work very well for test preparation – I used them for the LEED exam study recently. I developed them during six years of architecture school, three years of law school, used them to prepare for the Architects Registration Exam – and credit them heavily for allowing me to score in the 98th percentile of the Structures portion and pass the 12-hour Design portion of that exam the first time – two state Bar exams, and more mid-and final exams that I can count. I modified them for my legal practice and continue to use them regularly. Architects and contractors are knowledge workers – their market value is strongly related to what they know and produce from their knowledge base, and what their competition doesn’t. Practical creativity springs, in part, from raw accumulated knowledge. And the more you know, the more you can know. However – and I say this from personal experience – the thinking skills that work well in design and construction do not always lend themselves to absorbing and understanding the law. That requires a different way of thinking – hence, The Visual Thinker’s Guide to Understanding Construction Contracts. And if you’re concerned that your focus and memory may not be what it once was, mastering these techniques may actually alleviate those concerns. If you enjoy developing your memory and cognitive skills for personal and professional reasons, then these techniques may be for you. But if you don’t, you probably won’t enjoy reading these articles. Though there’s a very good chance your competition will. Gary L. Cole AIA, Esq. http://www.garylcolelaw.com/ is Chicago-based Illinois and Florida-licensed attorney and Illinois-licensed architect. He practices design & construction law, real estate law, historic preservation law, accessibility law, is an arbitrator with the American Arbitration Association’s Construction Division, is a Certified Mediator, and is a consultant and an expert witness in civil construction, historic preservation and federal accessibility litigation. He can be contacted at firstname.lastname@example.org. [DISCLAIMER: This document is for informational – and sometimes entertainment – purposes only. Neither this document nor the information contained within shall be considered legal advice, nor shall its distribution or reading form an attorney-client relationship between any reader and the author Gary L. Cole AIA, Esq.]
Beyond Historic Tax Credits: Treasure Hunting for Historic and Non-Historic Rehab Financial Incentives [Author’s Note: The following lecture was presented on October 22, 2010 at the 2010 Traditional Building Exhibition and Conference in Chicago. Fair warning – it’s a bit longer than most LawArk posts. I’d originally intended to post it in parts, but instead, have decided to post the whole thing at once and also provide it as a PDF that can be downloaded by clicking here – to be chewed in bite-sized chunks at any reader’s leisure. And, as always: Nothing in the following article should be construed as legal or business advice. Readers should always consult their legal or business professionals for specific advice and information.] Gary L. Cole AIA, is Chicago-based Illinois and Florida-licensed attorney and Illinois-licensed architect. He practices design & construction law, real estate law, preservation law and accessibility law, is an arbitrator with the American Arbitration Association’s Construction Division, and is a Certified Mediator and on the roster of Mediators for the Association of Licensed Architects. He can be contacted at email@example.com. The following is a bullet-point summary of the lecture’s main points: ▪ A wide range of historic and non-historic incentives benefitting a property owner’s federal income taxes, property taxes, project equity requirements – far beyond those typically promoted by government historic preservation entities and preservation not-for-profits – may be available for historic rehabilitation projects. ▪ Development incentives that are not specifically intended for historic redevelopment may be available to historic rehabilitation projects. ▪ A comprehensive approach for discovering incentives available for historic rehabilitation projects should include a methodology for researching and analyzing both historic and non-historic incentives. ▪ The tools for discovering incentives are available to anyone. ▪ This lecture used the metaphor of “treasure hunting” to illustrate how to research and discover development financial incentives for historic rehabilitation as a way to frame the exercise in a more interesting way – hopefully. Beyond Historic Tax Credits: Treasure Hunting for Historic and Non-Historic Rehab Financial Incentives Introduction: I’d like to thank everyone for coming here today. My name is Gary Cole, and I’m an Illinois-licensed architect, and an Illinois and Florida-licensed attorney. I received a Bachelor of Architecture degree from the University of Illinois in Chicago in 1988, and a Master of Architecture degree, in its Historic Preservation option, from the Universe Illinois and Champaign-Urbana in 1992. Following graduation, I became an historical architect with the Illinois Historic Preservation Agency, during which I helped administer various historic rehab tax benefit programs, supported the National Register program, provided technical assistance in connection with state and federal preservation regulatory laws, and also worked with the National Trust and FEMA during the 1993 Mississippi floods. Also in 1993, I became . . .
[Author’s Note: The following paper was presented on October 21, 2010 at the 2010 Traditional Building Exhibition and Conference in Chicago. Fair warning – it’s a bit longer than most LawArk posts. Well, a lot longer. I’d originally intended to post it in parts, but instead, decided to post it all at once to be chewed in bite-sized chunks at a reader’s leisure. And, as always: Nothing in the following post or paper should be construed as legal or architectural advice – the contents are entirely the unsolicited opinions of the author. Parties should always consult their legal or design professionals for specific advice and information.] The following is a bullet-point summary of the paper’s main points: ▪ Local governments that have enacted historic preservation ordinances (HPOs), and, that are considering enacting green building ordinances (GBOs) which might affect local or National Register-designated historic properties, should proceed with caution because: – unlike the underlying legislation for most local HPOs – the NHPA of 1966, which was deliberated by the U. S. Congress and is well-vetted after more than four decades since its enactment – the entire premise for GBOs, i.e., “anthropogenic global warming” is becoming increasingly controversial, rendering GBOs increasingly vulnerable to legal challenges; – tying compliance with GBOs to third-party energy and resource-efficiency standards such as LEED, especially for politically motivated reasons and without proper consideration of local economic development, may subject such GBOs to legal challenges; – GBOs that fail to require prior local approval of adopting changes to third-party standards such as LEED may also subject such GBOs to legal challenges; and – GBOs that fail to balance carrots and sticks – incentives and requirements – may have a chilling effect on local development. ▪ Depending on how GBOs are drafted – with or without due consideration of HPOs – the two ordinances may impose conflicting requirements on owners and developers undertaking the rehabilitation of local historic properties as follows: – compliance with a GBO may impact the character-defining features of an historic property, thereby running afoul of an HPO and preventing permitting from a local preservation commission as well as disqualifying a project for historic tax incentives; and/or – compliance with a local HPO and the National Register may prevent a property from complying with a GBO, especially as relates to achieving any required green building ratings, thereby affecting permitting and any possible financial incentives. ▪ The paper concludes with possible mitigation strategies for dealing with conflicts between HPOs and GBOs, and suggestions for cities considering enacting GBOs. Introduction: I’d like to thank everyone for coming here today. I’m going to start by giving a brief introduction of myself, and why I think a discussion about possible frictions between green building ordinances and historic preservation laws is both timely and relevant. My name is Gary Cole, and I’m an Illinois licensed architect, and Illinois and Florida-licensed attorney. I received a Bachelor of Architecture . . .