Historic Preservation Law: The Metes & (and) Bounds of a New Field

Historic Preservation Law has come to mean that combination of regulations, common-law property principles, tax incentives, and adjective law in administrative proceedings, governing historic sites and property within the United States. Although Congress first recognized a need to conserve the nation\u27s wealth of historic amenities in 1906 when it adopted The Antiquities Act, it was only with the nation\u27s bicentennial that the volume and diversity of laws designed to maintain, protect and preserve historic America grew to the point where it could be said that a new field of law had emerged. The symposium which follows this essay represents the first attempt to comprehensively delineate the elements of this new field. The conference entitled Historic Preservation and the Law: The Metes & Bounds of a New Field gathered 500 persons for two days at the House of the Association of the Bar of the City of New York in September of 1978.s Organized by the Association and the New York Landmarks Conservancy, this conference traversed the entire range of preservation legal issues, from asking what is historic? to identifying the need for law reform already apparent in this new field. The proceedings of this conference comprise this symposium. By way of introduction, this essay provides background and a conceptual framework for the presentations which follow. This essay can best introduce the symposium by delineating first the scope of regulation by exercise of the police power and the definitions for what resources are historic, then the elements of real property law which transect these regulations, and thereafter the operation of municipal ordinances and federal procedural statutes which are the body of historic preservation law. The essay will then raise several of the thorny issues currently in dispute within this evolving field

Historic Preservation Law: The Metes & Bounds of a New Field

Historic Preservation Law has come to mean that combination of regulations, common-law property principles, tax incentives, and adjective law in administrative proceedings, governing historic sites and property within the United States. Although Congress first recognized a need to conserve the nation\u27s wealth of historic amenities in 1906 when it adopted The Antiquities Act, it was only with the nation\u27s bicentennial that the volume and diversity of laws designed to maintain, protect and preserve historic America grew to the point where it could be said that a new field of law had emerged. The symposium which follows this essay represents the first attempt to comprehensively delineate the elements of this new field. The conference entitled Historic Preservation and the Law: The Metes & Bounds of a New Field gathered 500 persons for two days at the House of the Association of the Bar of the City of New York in September of 1978.s Organized by the Association and the New York Landmarks Conservancy, this conference traversed the entire range of preservation legal issues, from asking what is historic? to identifying the need for law reform already apparent in this new field. The proceedings of this conference comprise this symposium. By way of introduction, this essay provides background and a conceptual framework for the presentations which follow. This essay can best introduce the symposium by delineating first the scope of regulation by exercise of the police power and the definitions for what resources are historic, then the elements of real property law which transect these regulations, and thereafter the operation of municipal ordinances and federal procedural statutes which are the body of historic preservation law. The essay will then raise several of the thorny issues currently in dispute within this evolving field

Historic Preservation Easements: A Proposal for Ohio

Americans have begun to recognize the importance of historically significant structures and places. Historic districts are being restored in many parts of the nation. This recognition has spawned the creation of a social value which places emphasis upon the preservation of historic properties. Historic places provide a physical link to society\u27s cultural history — a unique and irreplaceable connection to the past. More specifically, the protection of cultural resources has social importance since it encourages increased understanding and respect for the past and provides a source of architectural beauty for the future. Governmental promotion of protective policies for historic properties, therefore, satisfies intergenerational responsibilities both to the past and to the future. On a more pragmatic level, the preservation of historic districts has been shown to revitalize urban neighborhoods and bolster local economic conditions. Although historic resources command increasing respect in society, they are exceptionally vulnerable to “public and private interests, natural forces and a concept of progress oriented toward physical expansion and alteration of the environment.” The growing awareness of this fragility has resulted in the development of a number of legal techniques and governmental programs intended to protect historic properties. One such device is the historic preservation restriction. By legislative act, many states have sought to achieve a preservation policy by encouraging the use of conservation and historic preservation easements. These statutes authorize the creation of a new form of private property right which employs traditional property law concepts to accomplish a new purpose. This new right is a less-than-fee interest in land. By legislative action, the common law limitations associated with real covenants and easements have been eliminated, thereby producing a “novel interest in land that is freely assignable and enforceable against subsequent takers.” This interest, often termed a “preservation restriction,” permits a landowner to segment ownership rights and to convey the right to modify the physical appearance and use of lands and structures. By recognizing the existence of an alienable property right to preserve the physical appearance of buildings and places, states authorizing preservation restrictions have established a voluntary, nongovernmental technique for the conservation of cultural resources. This presents an attractive alternative or supplement to the traditional methods of public land use control which compel preservation through the exercise of the police power. In 1980 the Ohio Legislature enacted a statute recognizing “conservation easements” limited to the purpose of preserving open space and agricultural lands. It did not provide any protection for historically significant properties. It is argued that Ohio legislation should be expanded to allow the conservation easement technique to accommodate historic preservation objectives. This article will examine the sufficiency of existing Ohio law to allow the use of the preservation restrictions device for historic preservation purposes. First, public and private land use controls for the preservation of the cultural environment will be critically discussed. Second, there will be a brief exploration of the federal law pertaining to the preservation of historic properties. Third, the legislation of numerous other states9 which have authorized preservation restrictions will be examined in order to isolate the essential characteristics of an effective preservation restriction system. Fourth, the present Ohio historic preservation law will be described with special attention given to the limited way in which the preservation restriction concept has been incorporated into state law. Finally, recommendations for legislative amendment will be provided to improve the statutory framework thereby making preservation restrictions available for the protection of historic properties in the State of Ohio

Historic Preservation Easements: A Proposal for Ohio

Americans have begun to recognize the importance of historically significant structures and places. Historic districts are being restored in many parts of the nation. This recognition has spawned the creation of a social value which places emphasis upon the preservation of historic properties. Historic places provide a physical link to society\u27s cultural history — a unique and irreplaceable connection to the past. More specifically, the protection of cultural resources has social importance since it encourages increased understanding and respect for the past and provides a source of architectural beauty for the future. Governmental promotion of protective policies for historic properties, therefore, satisfies intergenerational responsibilities both to the past and to the future. On a more pragmatic level, the preservation of historic districts has been shown to revitalize urban neighborhoods and bolster local economic conditions. Although historic resources command increasing respect in society, they are exceptionally vulnerable to “public and private interests, natural forces and a concept of progress oriented toward physical expansion and alteration of the environment.” The growing awareness of this fragility has resulted in the development of a number of legal techniques and governmental programs intended to protect historic properties. One such device is the historic preservation restriction. By legislative act, many states have sought to achieve a preservation policy by encouraging the use of conservation and historic preservation easements. These statutes authorize the creation of a new form of private property right which employs traditional property law concepts to accomplish a new purpose. This new right is a less-than-fee interest in land. By legislative action, the common law limitations associated with real covenants and easements have been eliminated, thereby producing a “novel interest in land that is freely assignable and enforceable against subsequent takers.” This interest, often termed a “preservation restriction,” permits a landowner to segment ownership rights and to convey the right to modify the physical appearance and use of lands and structures. By recognizing the existence of an alienable property right to preserve the physical appearance of buildings and places, states authorizing preservation restrictions have established a voluntary, nongovernmental technique for the conservation of cultural resources. This presents an attractive alternative or supplement to the traditional methods of public land use control which compel preservation through the exercise of the police power. In 1980 the Ohio Legislature enacted a statute recognizing “conservation easements” limited to the purpose of preserving open space and agricultural lands. It did not provide any protection for historically significant properties. It is argued that Ohio legislation should be expanded to allow the conservation easement technique to accommodate historic preservation objectives. This article will examine the sufficiency of existing Ohio law to allow the use of the preservation restrictions device for historic preservation purposes. First, public and private land use controls for the preservation of the cultural environment will be critically discussed. Second, there will be a brief exploration of the federal law pertaining to the preservation of historic properties. Third, the legislation of numerous other states9 which have authorized preservation restrictions will be examined in order to isolate the essential characteristics of an effective preservation restriction system. Fourth, the present Ohio historic preservation law will be described with special attention given to the limited way in which the preservation restriction concept has been incorporated into state law. Finally, recommendations for legislative amendment will be provided to improve the statutory framework thereby making preservation restrictions available for the protection of historic properties in the State of Ohio