Facts: Bank purchased a lot in Big Red, Nebraska in 1994 for the purpose of eventually building a new main office of the bank. When the lot was purchased, there was an old building on the lot in an “almost falling down” condition. Big Red Bank had the building razed in the Spring of 1995. The bank made application with the FDIC in July for permission to move the main office to a new location. Construction of the new office would commence in September, 1995.
In July, the FDIC responded that the application could not be approved due to a 1992 federal law. The FDIC advised that the bank “would have to first contact the State Historical Society for clearance” prior to building on a site with a potential historical landmark. Since the building had already been torn down prior to application with the FDIC, the agency could not receive the appropriate clearance. As a result, the FDIC would have to obtain clearance before granting its own approval for the bank to build with another federal agency – the “Advisory Council on Historical Preservation.” The bank was advised such clearance could take months, since the advisory council did not meet on a regular basis.
The bank has employed architects, a general contractor and legal counsel to accomplish this potential community improvement and had anticipated the project’s completion in the Spring of 1996. The entire project’s completion could be delayed for another six months or longer.
Discussion: On October 30, 1992, the President signed the National Historic Preservation Amendments of 1992 (Title XL of P.L. 102-575; also known as the “Fowler Bill”) into law. This legislation made significant changes to the National Historic Preservation Act and strengthening many of its provisions. The new law enhanced the requirements of §106, the federal review process for considering adverse impacts on historic resources, including licensing activities. The amendments penalize the intentional demolition of historic properties prior to federal involvement for purposes of avoiding federal historic preservation review. Also, the law revises the definition of federal “undertaking” clarifying that federal agencies which delegate responsibilities to states remain responsible for complying with §106. The definition of undertaking means “a project, activity, or program funded in whole or in part under the direct or indirect jurisdiction of a Federal agency, including – *** (C) those requiring a Federal permit, license, or approval . . .” All federal agency procedures for compliance with §106 must be “consistent” with the regulations of the Advisory Council on Historic Preservation.
Section 4012(3) of the Act discourages what is termed “anticipatory demolition” by prohibiting federal permits to any applicant who intentionally destroys historic properties in order to avoid compliance with §106. The section states:
Each Federal agency shall ensure that the agency will not grant a loan, loan guarantee, permit, license, or other assistance to an applicant who, with intent to avoid the requirements of section 106, has intentionally significantly adversely affected a historic property to which the grant would relate, or having legal power to prevent it, allowed such significant adverse effect to occur, unless the agency, after consultation with the Council, determines that circumstances justify granting such assistance despite the adverse effect created or permitted by the applicant.
The FDIC amended its application and publication requirements for the moving of the main office of the bank or the establishment and relocation of remote service facilities in order to comply with the Act. Section 303.2 of the FDIC rules provide that a state nonmember bank that desires to establish and operate or relocate a new branch, to move its main office, or relocate a branch must file a letter with the appropriate regional director. The letter shall contain the exact location of the proposed site, including street address (unless one has not been assigned to the location), and a statement as to whether or not the site is included in or eligible for inclusion in the National Register of Historic Places, including evidence that clearance has been obtained from the State Historic Preservation Officer.
A state nonmember bank that desires to establish and operate or relocate a remote service facility (RSF) must file a letter with the appropriate regional director. The letter shall contain the exact location of the proposed or relocated RSF, including street address (unless one has not been assigned to the location), and either a representation that the site of the proposed or relocated RSF is not included in or eligible for inclusion in the National Register of Historic Places or written verification that in the opinion of the appropriate state historic preservation officer the establishment or relocation of the RSF will have no adverse effect on a historic site. Unless the bank is notified otherwise by the FDIC within seven days of receipt of the letter, the bank may establish and operate or relocate the RSF. In the event that the bank cannot represent in good faith that the site of the proposed or relocated RSF is not included in or eligible for inclusion in the National Register of Historic Places or evidence that written verification has been obtained from the appropriate state historic preservation officer, the bank shall proceed by filing the letter with the FDIC and post the appropriate notices required by § 303.6 of FDIC regulations regarding moving a main officer or relocating a branch office. Unless the bank then is notified otherwise by the FDIC within 15 days after completion of processing of the letter, the bank may proceed to establish and operate or relocate the RSF or move the main office, unless a protest is filed with the FDIC or other objection is taken prior to completion of processing the letter. The bank may proceed once the FDIC provides written notice of its approval.