Historic Preservation and the Law

Few preservation projects avoid debate. Most often, the tensions stem from disagreement about historical merit or resistance to increased property restrictions. To sift through the controversy, embattled preservation causes often look to the courts. Key legislation and judicial decisions are as follows:

An Act for the Preservation of American Antiquities (1906): This was the country's first legislative response to fears that "historic landmarks, historic or prehistoric structures, and other objects of historic or scientific interest" were threatened by development and westward expansion. The act empowers the President to designate National Monuments from federal lands, posing the threat of fines and imprisonment if their protections are violated. In 1916, President Woodrow Wilson created the National Park Service (NPS), a special bureau of the Department of the Interior to supervise all national parks and monuments. Primarily used to preserve sites of natural, geological or archeological significance, the Antiquities Act has counted sites like Wyoming's Devil's Tower, Arizona's Grand Canyon and California's Death Valley as National Monuments (www.nps.gov).

Historic Sites Act (1935): This enacted the first national preservation policy that pertained to all lands, public and private. It also established the National Historic Landmarks Program, and commissioned a national building survey (and decades later, an engineering record) under the aegis of the National Park Service. The HSA also authorizes the federal government to perform preservation work on historic sites.

Department of Transportation Act (1966): This is widely considered the strongest federal preservation law on the books. Its Section 4(f) requires that the U.S. Department of Transportation avoid any project that may compromise a recreational, historic or wildlife area unless there is "no feasible or prudent alternative" (www.nps.gov).

National Historic Preservation Act (1966): This legislation created the National Register of Historic Places and the Advisory Council on Historic Preservation (ACHP), whose federal responsibilities are delegated to State Historic Preservation Officers (SHPOs). Each state has a SHPO, which evaluates nominations to the National Register and oversees many of the regulations named in the NHPA. While the SHPOs make recommendations and often work as mediators in contentious preservation projects, the National Park Service sets the criteria for National Register listings and manages most of the financial incentives linked to this designation (Stipe, 2003).

The National Register is maintained by the NPS and serves as a continuation of the Registry of National Historic Landmarks established under the Historic Sites Act. A listing on the Register qualifies the property for preservation grants and tax benefits. It also subjects the site to Section 106 protections. Section 106 requires that projects on National Register properties that are funded, approved, or undertaken by a federal agency account for the impact of their actions, and allow for the appropriate SHPO to comment (Stipe, 2003). It should be noted that a National Register listing alone does not prevent demolition or restrict rehab, but the Section 106 review can provide political leverage if a federal project is considered too invasive for a site. National Register designations are almost always 50 years old or older, and subject to the Secretary of the Interior's Standards for the Treatment of Historic Properties, commonly called the "Secretary's Standards." Owner consent became required in 1980 (Listokin, 1998).

City of Chicago Landmark Ordinance (1968): Though three years behind New York's, the Chicago ordinance was a strong early example of local preservation legislation in a major city. Unlike the largely honorific distinction of the National Register, properties protected by Chicago's (and most cities') local ordinance are legally bound to criteria uniquely outlined during that landmark's designation (e.g. the ivy-clad walls of Wrigley Field are strictly off-limits, while approved changes to other parts of the stadium are permissible). Though the Chicago ordinance does not explicitly prohibit demolition or major aesthetic changes to landmarked properties, it does require any proposed alteration be reviewed and approved by the Commission on Chicago Historical and Architectural Landmarks (City of Chicago).

The Tax Reform Act (1976): This established the first in a series of federal tax incentives to preserve historic commercial structures. Its most recent iteration provides a 20 percent federal tax credit to rehabilitations of commercial, agricultural, industrial and rental buildings (www.wvculture.org).

Penn Central Transportation Co. v. New York City (1978): This decision by the U.S. Supreme Court gave legitimacy to local preservation laws and denied that they pose a regulatory "takings" as defined in the 5th Amendment. Among other rights, the 5th amendment holds that "…nor shall private property be taken for public use, without just compensation." This "takings clause" is the primary legal fulcrum on which eminent domain and property rights litigation rests. In this case, the Penn Central Transportation Company proposed a 55-story office tower to sit atop Grand Central Station, a New York City landmark. The city denied the project and Penn Central demanded "just compensation" for its loss of development rights. The debate rose to the U.S. Supreme Court, which ruled that because the property still benefited Penn Central through its initial intended purpose (a rail station), the preservation restrictions were not a takings, and Penn Central was due no compensation. This case, though still evolving in judicial interpretation, recognizes the authority of local landmark ordinances and essentially considers any "reasonable" beneficial use of a landmark property to be a nullifying factor in takings complaints (Stipe, 2003).