Preservation Law 101
Historic preservation laws are important tools that can help you shape your community's future. By having a basic understanding of these laws, you can identify the full range of options available to protect an endangered historic building, cultural site, or even an entire neighborhood. Familiarity with preservation laws can also help you to respond effectively to individual threats as they arise and to develop strategies on how best to avoid or reduce the likelihood for such threats in the future. You will also be able to evaluate the strengths of existing laws in your community and their shortcomings when fully implemented.
The primary laws governing governmental acts include the National Historic Preservation Act, the National Environmental Policy Act, and Section 4(f) of the Department of Transportation Act. Together, these laws embrace a strong preservation policy that requires federal agencies to fully consider the impacts of their actions on historic resources – whether maintaining their own historic sites or funding a highway project that would encroach upon or destroy a historic resource. The Keeper of the National Park Service maintains the National Register of Historic Places, which is a comprehensive list of significant historic, architectural, archaeological and cultural sites in the United States. The National Register is a planning tool used by federal, state and local governments in identifying properties eligible for funding, tax incentives and protection.
States are uniquely situated to implement federal preservation programs and to assist local governments in protecting important historic resources. As such, every state has established a State Historic Preservation Office that both assists the federal government with the identification of properties for listing in the National Register of Historic Places and undertaking reviews under the National Historic Preservation Act and other federal laws, and helps local governments with the implementation of their own preservation programs. Many states also maintain a state historic register and operate their own historic programs, which can range from preserving an historic or archaeological site to implementing tax incentive programs that encourage the rehabilitation of historic resources.
As the adage goes – all of preservation is local. While federal and state programs and policies are undeniably important, historic resources are most appreciated and hence preserved at the local level. The primary vehicle for protecting historic properties is the historic preservation ordinance, which typically establishes a historic preservation board. The board, in turn, designates or recommends for designation historic landmarks and districts, and then reviews applications to alter, add on to, demolish or move a landmark or properties within a historic district. Comprehensive plans, zoning, subdivision, and other land use laws can also be instrumental in supporting historic preservation and neighborhood conservation programs.
The United States Constitution contains several provisions that protect the individual from the state. Included in the Bill of Rights are important restrictions on governmental actions that are relevant to historic preservation such as a prohibition on the "taking" of property without just compensation and restrictions on religious exercise and free speech. These constitutional protections are made applicable to the states through the Fourteenth Amendment. In addition, the Fourteenth Amendment guarantees "equal protection" under the law. Challenges to historic preservation laws have been made under the Takings, Due Process and Equal Protection Clauses of the Fifth and Fourteenth Amendments, and the Religious Protection Clauses and the Free Speech Clause of the First Amendment.
Layperson's Guide to Preservation Law: Federal, State and Local Laws Governing Historic Resources: First published in 1997, this booklet provides a concise and comprehensible guide to federal, state and local laws governing historic resource protection. The 2008 edition includes updated information on transportation issues, eminent domain, easements, the American's with Disabilities Act, and the regulation of historic religious properties.