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.
Through an explanation of legal differences between programs, the discussion highlights the limitations of focusing Progressive Property Theory on local preservation. Lastly, Part III considers the implications of federal historic preservation structures for diverse social justice outcomes as part of an argument for more frequent applications of Progressive Property Theory in conflicts over property. As a case in point, this final part describes an identification and incentivization regime found in federal historic preservation structures—one that mirrors the principles of Progressive Property Theory — and shows how it may usefully be applied to issues of affordable housing or open space conservation.
Recommended CitationSam W. Gieryn, Federal Historic Preservation's "Place" in Property Theory, 39 Pace Envtl. L. Rev. 56 (2022)
Available at: https://digitalcommons.pace.edu/pelr/vol39/iss1/4