Preservation_and_Community___New_Directions_in_the_Law_of_Historic_Preservation
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Preservation_and_Community___New_Directions_in_the_Law_of_Historic_Preservation
Preservation and Community: New Directions in the Law of HistoricPreservation*Carol M. RosefOn a summer day in 1979, Washington fluttered with green b Preservation_and_Community___New_Directions_in_the_Law_of_Historic_Preservationbanners, each embellishing a stately old structure and proclaiming its bearer to exemplify the city’s “Buildings Reborn . . . New Uses, Old Places.” At the same time, the Smithsonian’s Renwick Gallery was sponsoring a photography exhibit extolling the “adaptive reuse” of old buildings; the American Preservation_and_Community___New_Directions_in_the_Law_of_Historic_PreservationInstitute of Architects’ Octagon House (itself a recycled eighteenth-century residence) housed “Capital Losses,” a photographic exhibit of the city’sPreservation_and_Community___New_Directions_in_the_Law_of_Historic_Preservation
demolished or threatened old landmark buildings; and renovations were underway in the cavernous interior of the Pension Building, another reclaimed arPreservation and Community: New Directions in the Law of HistoricPreservation*Carol M. RosefOn a summer day in 1979, Washington fluttered with green b Preservation_and_Community___New_Directions_in_the_Law_of_Historic_Preservationctures has become a vogue.The volume of preservationist statutes, grant programs, regulations, and lawsuits over the past few years attests the major role of federal, state, and local governments in contributing to historic preservation’s new stature. With the arrival of budget cutters in Washington Preservation_and_Community___New_Directions_in_the_Law_of_Historic_Preservation, however, the preservationist flags may soon come down;* Many friends and colleagues have helped me to prepare this article. I cannot name them all hPreservation_and_Community___New_Directions_in_the_Law_of_Historic_Preservation
ere, but I owe special thanks, for their reading and comments, to Phyllis Palmer, of George Washington University; J.T. Easley, of the Washington CollPreservation and Community: New Directions in the Law of HistoricPreservation*Carol M. RosefOn a summer day in 1979, Washington fluttered with green b Preservation_and_Community___New_Directions_in_the_Law_of_Historic_Preservation, moral support, and good cheer, my Stanford secretary, Pat Regon, was a godsend. Preservation department staff members all over the country and at ail levels of government were uniformly helpful. Any mistakes are of course my own.Note that this article cites a number of local ordinances. I used ver Preservation_and_Community___New_Directions_in_the_Law_of_Historic_Preservationsions sent to me by local preservation offices during 1979 and 1980, but I warn the reader that amendments may have been made in the interim.t B.A. 19Preservation_and_Community___New_Directions_in_the_Law_of_Historic_Preservation
62, Antioch College; M.A. 1963, University of Chicago; Ph.D. 1969, Cornell University; J.D. 1977, University of Chicago Law School. Acting Professor oPreservation and Community: New Directions in the Law of HistoricPreservation*Carol M. RosefOn a summer day in 1979, Washington fluttered with green b Preservation_and_Community___New_Directions_in_the_Law_of_Historic_Preservationn has already begun.1 The potential retrenchment in Washington pointedly raises the question whether current programs serve the public well-being. Why should our public institutions take an interest in preserving the nation’s architectural heritage?Until the recent past that interest was slight. The Preservation_and_Community___New_Directions_in_the_Law_of_Historic_Preservation initial confrontation with a new continent required flexibility and openness to novelty rather than attention to tradition,2 and the nation was longPreservation_and_Community___New_Directions_in_the_Law_of_Historic_Preservation
preoccupied with expansion and development. Consequently, American governments at all levels were slow to attend to the conservation of historic archiPreservation and Community: New Directions in the Law of HistoricPreservation*Carol M. RosefOn a summer day in 1979, Washington fluttered with green b Preservation_and_Community___New_Directions_in_the_Law_of_Historic_Preservationport was almost nonexistent then, and very modest for decades thereafter. It consisted chiefly of the acquisition of a few individual park sites5 and “landmarks” of national significance;6 the protection of “antiquities” on federal property;7 a Depression-era survey of historically and architectural Preservation_and_Community___New_Directions_in_the_Law_of_Historic_Preservationly significant structures;8 the founding of a nonprofit “National Trust” to encourage private preservation;9 and the creation of an historic1.See N.Y.Preservation_and_Community___New_Directions_in_the_Law_of_Historic_Preservation
Times, Feb. 20, 1981, at 14, col. 2 (western ed.) (proposed cuts in federal assistance to cultural programs); id. at 9, col. 6 (proposed cuts in the Preservation and Community: New Directions in the Law of HistoricPreservation*Carol M. RosefOn a summer day in 1979, Washington fluttered with green b Preservation_and_Community___New_Directions_in_the_Law_of_Historic_Preservationich administered several federal preservation programs. See S.F. Chronicle, Feb. 20, 1981, at 1, col. 3.2.See B. Bailyn, Education in the Forming of American Society 22 (1960).3.See J. Morrison, Historic Preservation Law 4, 11, 16 (2d ed. 1965). Morrison noted this country’s slow start in preservati Preservation_and_Community___New_Directions_in_the_Law_of_Historic_Preservationon as well as the great increase in preservation measures between 1957 and 1965.4.See c. Hosmer, The Presence of the Past 29-62 (1965). For a more recPreservation_and_Community___New_Directions_in_the_Law_of_Historic_Preservation
ent brief history of historic preservation, see N. Weinberg, Historic Preservation in American Towns and Cities 20-27 (1979).5.See, e.g., Act of Dec. Preservation and Community: New Directions in the Law of HistoricPreservation*Carol M. RosefOn a summer day in 1979, Washington fluttered with green b Preservation_and_Community___New_Directions_in_the_Law_of_Historic_Preservation No. 72-409, 47 Stat. 1421 (current version at 16 Ư.S.C. § 409 (1976)) (establishing Morristown Historical Park).6.Historic Sites, Buildings, and Antiquities Act of 1935, §§ 1-7, 16 Ư.S.C. §§ 461-467 (1976). Historic landmark designation of private property under this act actually began in 1960. G. Preservation_and_Community___New_Directions_in_the_Law_of_Historic_PreservationGammage, p. Jones & s. Jones, Historic Preservation in California 22 (1975).7.Act of June 8, 1906, Pub. L. No. 59-209, 34 Stat. 225 (current version aPreservation_and_Community___New_Directions_in_the_Law_of_Historic_Preservation
t 16 Ư.S.C.§§ 431-433 (1976 & Supp. Ill 1979)).8.The Historic American Buildings Survey was created in 1933 without specific statutory authorization aPreservation and Community: New Directions in the Law of HistoricPreservation*Carol M. RosefOn a summer day in 1979, Washington fluttered with green b Preservation_and_Community___New_Directions_in_the_Law_of_Historic_PreservationL. No. 81-408, 63 Stat. 927 (current version at 16 u.s.c.§§ 468-468d (1976)) (establishing the National Trust for Historic Preservation).February' 1981]HISTORIC PRES ER VA TION475district in Washington’s Georgetown.10 During the 1950s, federal, state, and local governments embarked on urban renewal Preservation_and_Community___New_Directions_in_the_Law_of_Historic_Preservationand highway projects that chewed up aging neighborhoods and distinctive old buildings, leading one commentator to remark that there “appear to be goodPreservation_and_Community___New_Directions_in_the_Law_of_Historic_Preservation
reasons why preservation-minded individuals and groups often regard the government ... as the major enemy.”11But in the last 15 years the situation hPreservation and Community: New Directions in the Law of HistoricPreservation*Carol M. RosefOn a summer day in 1979, Washington fluttered with green b Preservation_and_Community___New_Directions_in_the_Law_of_Historic_Preservationric places, imposed elaborate review-and-comment procedures on federally assisted projects. Since that time, federal grants have encouraged states to participate in surveys and conservation of historic properties,12 and federal tax laws have been changed to induce private preservation and rehabilita Preservation_and_Community___New_Directions_in_the_Law_of_Historic_Preservationtion of historic properties.13 The states have responded with expanded preservation programs;14 many have altered common law rules that once inhibitedPreservation_and_Community___New_Directions_in_the_Law_of_Historic_Preservation
the creation and enforcement of preservation easements or covenants and have enacted enabling legislation for local preservation controls,15 resultinPreservation and Community: New Directions in the Law of HistoricPreservation*Carol M. RosefOn a summer day in 1979, Washington fluttered with green b Preservation_and_Community___New_Directions_in_the_Law_of_Historic_Preservationic organizations and academic architecture buffs, now attracts the interest of local governments seeking to stave off suburban flight,17 neighbor10.Act of Sept. 22, 1950, Pub. L. No. 81-808, 64 Stat. 903 (current version at D.c. Code Ann. §§ 5-801 to -807 (1973)).11.Jacobs, Governmental Experience i Preservation_and_Community___New_Directions_in_the_Law_of_Historic_Preservationn the United States, in Historic Preservation Today 104 (1966) (Nati Trust for Historic Preservation seminar).12.16 u.s.c. §§ 470-470t (1976), as amenPreservation_and_Community___New_Directions_in_the_Law_of_Historic_Preservation
ded by National Historic Preservation Act Amendments of 1980, Pub. L. No. 96-515, 94 Stat. 2987.13.Eg., I.R.C. §§ 38, 48(g), 167(o), 191, 280B.14.See Preservation and Community: New Directions in the Law of HistoricPreservation*Carol M. RosefOn a summer day in 1979, Washington fluttered with green b Preservation_and_Community___New_Directions_in_the_Law_of_Historic_Preservatione legislative efforts in historic preservation, see National Trust for Historic Preservation, Significant State Historic Preservation Statutes (1979) (Information Sheet No. 21) [hereinafter cited as Significant State Statutes].15.See Brenneman, Historic Preservation Restrictions: A Sampling of Slate Preservation_and_Community___New_Directions_in_the_Law_of_Historic_Preservation Statutes, 8 Conn. L. Rev. 231 (1976); Brenneman, Techniques for Controlling the Surroundings of Historic Sites, 36 Law & Contemp. Prob. 416, 420-22 (Preservation_and_Community___New_Directions_in_the_Law_of_Historic_Preservation
1971); Note, Conservation Restrictions: A Survey, 8 Conn. L. Rev. 383 (1976); see note 102 infra.16.The complex “transfer of development rights” schemPreservation and Community: New Directions in the Law of HistoricPreservation*Carol M. RosefOn a summer day in 1979, Washington fluttered with green b Preservation_and_Community___New_Directions_in_the_Law_of_Historic_Preservationelopment Rights Transfer, 83 Yale L.J. 75 (1973); Costonis, The Chicago Plan: Incentive Zoning and the Preservation of Urban Landmarks, 85 Harv. L. Rev. 574 (1972); note 115 infra.17.See Galbreath, Conservation: The Hew Word for Old Neighborhoods, 8 Conn. L. Rev. 312 (1976). Preservation_and_Community___New_Directions_in_the_Law_of_Historic_PreservationGọi ngay
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