Regulating History

Abstract

America’s local historic commissions collectively wield tremendous influence over millions of privately-owned parcels of land. By reviewing rehab proposals, blocking demolitions, and mandating property maintenance, these commissions have helped to protect many of America’s most beloved neighborhoods. They fill a vacuum left by federal and state governments, which have declined to offer robust legal protections to private historic sites.

Litigation challenging local historic decisions and press vilifying commissions for their alleged elitism, anti-environmental decisions, and general obstruction of progress have put preservation in the contemporary crosshairs. While we align with those who believe that clear-thinking commissions can successfully mediate between the past and the present, for the sake of the future, we decline to wade deeply into these debates. Instead, we expose an uncomfortable truth: neither opponents nor supporters have a full grasp of historic preservation law.

This Article peels back the curtain, revealing for the first time its broad reach and deep control over private property and by extension our built heritage. The Article offers a meticulous census of over 3,500 local ordinances, comprehensively analyzes enabling authorities across all fifty states, explores the extent to which demographic and political factors correlate with local adoption, and delves deeply into the content of over 300 local ordinances. Just as importantly as this comprehensive analysis, this Article fills a gap in the sparse literature on local administrative law, using new empirical data to illuminate the commonality of particular procedural and substantive regulatory levers; the complicated dynamics between federal, state, and local governments; and the ambition and motives of local regulators.

This Article provides the first nationwide empirical basis for current debates about local historic district commissions, proving that these commissions are both surprisingly common and surprisingly influential over private property. It also offers insights with practical implications for the preservation field and theoretical implications for administrative legal theory.

Keywords: Historic preservation, regulation, local government law, municipal law, data, statistical analysis, public law, empirical data, administrative law