Federal Historic Preservation's "Place" in Property Theory

Abstract

Progressive Property Theory scholars often point to historic preservation as an example of how property, itself, imposes an obligatory use. A historic structure’s public benefit justifies restrictions in available uses. To date, however, Progressive Property Theory has considered historic preservation only as it is applied in state and local regimes, forgoing an analysis of the federal structure under the National Historic Preservation Act. This article establishes a synergy between the underlying principles of Progressive Property Theory and federal historic preservation and suggests that federal historic preservation’s identification and incentivization structures model a process that could move Progressive Property Theory toward wider applications. Part I of this article explains the similarities between Progressive Property Theory and federal historic preservation. Using explicit textual comparisons between the foundational article on progressive theory (“A Statement of Progressive Property”) and the “purpose” section of the National Historic Preservation Act, this section demonstrates that federal historic preservation provides a model for putting progressive theory into practice. Part II differentiates state law and local historic preservation ordinances from federal law. Federal and local preservation regimes are commonly misunderstood to imply similar property restrictions. * Mr. Gieryn is an Attorney-Advisor with the U.S. Department of Housing and Urban Development (HUD). The views expressed in this writing do not reflect the views of HUD or the U.S. government. The research and information in this article reflect only the opinion of the author and do not reflect those of the U.S. government, HUD, or any other federal agency.