Module 2 Readings: Chapters 4 & 6 by Tyler/Ligibel

The most common legal issues within historic preservation are those related to property rights (5th and 14th amendments) and regulatory issues related to specific laws, such as Section 106 of the National Historic Preservation Act of 1966 and other regulations of the National Environmental Policy Act (yes, historic properties are legally considered part of the environment). Furthermore, through the U.S. Supreme Court rulings of Euclid v. Ambler Realty Company (1926) and Penn Central Transportation Company v. City of New York (1978), land use ordinances (“Euclidean” zoning comes from this), as well as ordinances that regulate historic properties, have been upheld as valid as long as they are within reason (defining “reasonable” regulation is where litigation takes place). Try to remember this as best as you can, for this information is paramount.

The rest of the material is important, such as the other laws and court cases, but really only necessary if you are anticipating a future career in law. Also, be mindful that the country’s first local historic districts were established in Charleston, South Carolina, and New Orleans, Louisiana in the 1930s. When these ordinances were made the ruling of Euclid v. Ambler Realty Company was consulted. Because of this many cities around the United States have modeled their historic preservation district ordinance off of what Charleston first created. For instance, in Charleston, the Board of Architectural Review (BAR) oversees preservation in the district. Many other cities have a BAR, though sometimes they have changed the name (Historic District Commission, etc.) but they function similarly.

Historic Preservation Court Rulings

1926, Village of Euclid v. Ambler Realty

  • Ruled in favor of the Village of Euclid, and legalized local zoning and land-use ordinances – thus historic preservation ordinances.

1954, Berman v. Parker

  • Upheld that local ordinances could regulate the aesthetics of buildings (ugly and beautiful).

1976, Figarsky v. Historic District Commission, Connecticut State Supreme Court

  • Ruled that a city not allowing the demolition of a structure needing substantial repairs was neither confiscatory nor an abuse of the commission’s power, and upheld that the Commission’s denial of a demolition permit was legal.

1978, Penn Central Transportation Co. v. New York City

  • The Court held that the restrictions imposed did not prevent Penn Central from ever constructing above the terminal in the future. New York's objection was to the nature of the proposed construction and not to construction in general implemented to "enhance" Grand Central Station. Preventing the construction of a 50-story addition above the station was a reasonable restriction substantially related to the general welfare of the city.

1990, St. Bartholomew v. New York City

  • Religious organizations are subject to historic preservation ordinances of local government, and that such regulations are not violations of Freedom of Religion.

Historic Preservation Legislation

1906 Antiquities Act

  • Provides for the protection of historic, prehistoric, and scientific features located on federal lands. It authorizes the President to designate as National Monuments historic and natural resources of national significance located on federally owned or controlled land.

1916 National Park Service Act

  • Created the National Park Service, which manages natural and historic resources.

1931 Charleston, City of South Carolina Old and Historic District Ordinance

  • Established the first local historic district and ordinances dealing with historic preservation.

1935 Historic Sites Act

  • Established a policy to preserve for public use buildings and sites of national significance. This Act led to the creation of HABS, HAER, and the National Landmarks program.

1950 Federal Records Act

  • Requires government Agencies to manage records in their possession to maintain historical value.

1960 Archaeological Recovery/Reservoir Salvage Act

  • Gives the Department of the Interior the major responsibility for preserving archaeological data that might be lost through Federal dam construction.

1966 National Historic Preservation Act

  • Established preservation roles of Federal, State, and Local governments
    • Section 106 – Review of Federally owned historic properties (or potentially) before alterations in order to consider mitigation of changes to plans.
    • Section 110 - Sets out broad federal agency responsibilities with respect to historic properties. It is a proactive mechanism with emphasis on the ongoing management of historic preservation sites and activities related to them at federal facilities. It calls for federal agencies to establish preservation programs that provide for careful consideration of historic properties and to designate qualified
      Federal Preservation Officers to coordinate their historic preservation activities.
    • Section 211 – Gives Advisory Council rule-making authority for Section 106.

1966 Department of Transportation Act

  • Created the Department of Transportation to assure the coordinated, effective administration of the transportation programs of the Federal Government.
    • Section 4(f) – Has the Secretary of Transportation coordinate programs and projects in order to include all possible planning to minimize harm to parks, recreation areas, wildlife and waterfowl refuges, or historic sites.

1969 National Environmental Policy Act

  • Requires that Federal Agencies evaluate the environmental impacts of their proposed actions.

1974 Archaeological and Historic Preservation Act

  • Requires government Agencies to report their impacts on archaeological, historical, and scientific data

1976 Tax Reform Act

  • Removed financial incentive to demolish older buildings

1976 National Forest Management Act

  • Requires the Bureau of Land Management to consider and protect cultural resources

1978 Revenue Act

  • Established investment tax credits for building rehabilitation

1978 American Indian Religious Freedom Act

  • Established that the U.S. government will respect the rights of tribes to exercise traditional practices, including locations

1979 Archaeological Resources Protection Act

  • Provides a comprehensive framework for protecting and regulating the use of archaeological resources on public and Native American Indian lands protected by the Antiquities Act of 1906. The act requires that a permit must be received from the federal land manager for the excavation and removal of archaeological resources on public land

1981 Economic Recovery Act

  • 25% (lowered to 20% in 1986) tax credits for rehabilitation of historically designated buildings. Revised in 2018.

1987 Federal Abandoned Shipwrecks Act

  • Authorized State management of significant shipwrecks

1990 Native American Graves Protection and Repatriation Act

  • Gives ownership and control of Native American human remains, funerary objects, sacred objects, and objects of cultural patrimony that are excavated or discovered on federal land to federally recognized American Indian tribes or Native Hawaiian organizations.

1992 Amendments to the National Historic Preservation Act

  • Allows Federally recognized Native American Indian tribes to take on more formal responsibility for the preservation of significant historic properties on tribal lands
    • Section 101(d)(2) – Creation of Tribal Historic Preservation Offices