CORNELL UNIVERSITY
COLLEGE OF ARCHITECTURE, ART & PLANNING
GRADUATE PROGRAM IN HISTORIC PRESERVATION
FALL TERM, 2015
CRP 6630
HISTORIC PRESERVATION LAW
MONDAYS 11:40AM - 12:55PM
SIBLEY HALL 211
SYLLABUS
August 28, 2015
The value of a Cornell planning education is secured by a rich history of students and faculty applying their talents
to address seemingly intractable problems. Following in their footsteps, your success as a planner will in no small
measure be found not just in your ability to counter challenges with solutions but more broadly to facilitate within
our society the connection between people and the resources they need to lead meaningful, productive lives. As a
preservation planner, your leadership will guide the processes of transformation by which economic growth and
cultural and social change enable individuals to realize their full potential. Understanding the basic principles of
historic preservation law will assist you in this leadership role.
COURSE OBJECTIVE
To understand both statutory and case law protecting historic resources; to understand the system that creates,
interprets, and enforces those laws; to understand basic principles of legal research and case briefing.
The goal of this course is to assist non-lawyers in understanding the laws, policies, and procedures that impact
historic preservation and related fields. This will enable you to identify potential legal issues before they become
problems requiring crisis management. Further, should a situation arise where professional help is required, a
basic understanding of the subject matter will facilitate interactions with attorneys by providing a background and
basic vocabulary to enable you to ask the right questions.
A NOTE ABOUT LAW, ADVOCACY, AND PUBLIC POLICY IN PRESERVATION
We may think of the law as a set of rules and guidelines produced, interpreted, and enforced by social institutions
to govern behavior—a widely accepted if banal definition. The shared if tacit assumption that for all aspects
human interaction there is among the variety of options some optimal behavioral choice underlies the validity of
all lawmaking. This choice—let us call it “good behavior”-- is determined by our social institutions to be somehow
morally, socially, or economically superior to other options. This good behavior, and the standards and practices
associated with achieving and maintaining it, is the essence of our public policy. Our public policy and the laws and
regulations that implement it determine everything from which side of the road we drive on, who can vote, how
we spend our money, where we live, who we can marry, where we can travel, our ability to kill, to procreate, and
to die by our own hand. Our laws are but the means to the end of the “good behavior” public policy goals we
establish. Our laws shepherd our social activity toward that good behavior by means of rewards for compliance or
punishments for violations.
A cynical view holds that a legal system based on institutionally-defined concepts of the morally, socially, and
economically-acceptable, does little more than codify the status quo. Particularly to the extent that change within
the law is neither a clean, nor easy, nor fast process, this would seem to be true. However, as the world changes,
so does the status quo, and so must the law.
A legal system that does not allow for change because it is unresponsive to public sentiment is doomed, as it will
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not be understood by those governed by it to be fair, equitable, and just. The result is catastrophic for the social
institutions formerly ensconced in positions of power. A functioning legal system provides a mechanism for the
law to evolve as the definition of morally, socially, and economically-acceptable “good behavior” changes from
generation to generation. Ideally, if the social institutions empowered within the government are representative
of a constituent public, as the majority public sentiment about a particular issue changes, public policy and law in
service to that public policy will change accordingly.
In the United States, public advocacy and education have always been priorities within the field of historic
preservation. Preservationists attribute the creation of laws protecting historic resources to a rise in public
acceptance of the social and economic benefits of historic preservation. That is, preservationists attribute passage
of laws like the National Historic Preservation Act of 1966 (“NHPA”) to a critical mass within the public accepting
that preservation was “good behavior,” thereby mandating a change in public policy and the laws in service to it.
However, as the seemingly unending battles over climate change and gun control highlight, a change in public
consciousness about a particular issue may be necessary to change the law, but it is rarely in and of itself sufficient
to do the job. Changes to the law always require changes within the social institutions that create, interpret, and
enforce it. Laws like the NHPA came about because those who believed in preservation came to understand the
power structures within and the influences at work upon the social institutions that create, interpret, and enforce
it. Public sentiment, absent institutional change, is rarely enough to re-orient public policy and law.
In part, this in intentional. Putting aside the fact that most legal systems are bureaucracies with all the lethargy and
inefficiencies that generally inhere to bureaucracies, there is a degree to which the protection of individual rights
and freedoms requires insulation from public whim. While a good legal system needs to be responsive to broad
patterns of change in public sentiment, history has shown the best legal systems are not reactive to passing
passions or mass hysteria. They have some measure of insulation from fringe or radical influence.
Thus, some take-away points. Preservation law exists as a tool because preservation advocates once established
preservation as a “good behavior,” meaning that both public sentiment and our social institutions adopted
preservation into the framework of accepted social policy. Each generation will need to re-affirm preservation’s
place within public policy so that preservation law is supported not just by the public but also by legislative
institutions, that it is understood and properly interpreted by judicial institutions, and that is it enforced by the
executive institutions.
If you intend to work in the preservation field, it is your duty to be an advocate. Your work in this class to
understand both statutory and case law protecting historic resources, to understand the system that creates,
interprets and enforces them, to know the context in which they arose, and to evaluate the interpretations of
them over time, will serve you well into the future in that advocacy role.
INSTRUCTOR
Nathaniel C. Guest, Esq.
ncg1@cornell.edu
610-724-9611
Office Hours: 10:40-11:40 AM Mondays and by appointment
GRADUATE ASSISTANT
John Southern
js2948@cornell.edu
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COURSE EXPECTATIONS AND GRADING
Attendance/Participation (5% of grade). You will be allowed two absences during the course of the semester for
occasional illness, family reasons, etc. It is your responsibility to gather class notes for any class you miss and to
complete assignments due or assigned during the classes you missed. Arrive on-time to class and be prepared to
participate. Any class to which you are more than 30 mintues late or for which you are unprepared will count as
an absence. Please complete all required readings prior to class and be prepared to discuss them.
Assignments (10% of grade). Assignments must be turned in to TA by the start of class on the day they are due.
Late assignments will not be accepted.
Mid-Term Exam (25% of grade). The mid-term exam will be in-class and open book. You may use any materials
you have prepared yourself or in collaboration with other classmates enrolled in the course. You may use a
computer but you may not use the internet during the exam.
Final Exam (30% of grade). This will be a take-home exam covering the entirety of the class topics. It will be due at
12 Noon on the date scheduled by the University for the final exam for the course. Late papers will be penalized
by one letter grade if received after Noon, and one additional letter grade for each day beyond the due date.
Papers may be submitted early.
Course Outline (30% of grade): It is my intention that through the course of the semester that you develop a
document that you will refer back to after graduation. You will use this outline both for your midterm and for your
cumulative final exam, though you need not submit it until the end of the semester. I expect your outline to be
organized effectively, with headings, and that it summarize and analyze key points from lecture and the readings.
It need not be organized in the same fashion as the readings and lectures, but its organization should be logical.
Academic Honesty: All students are expected to comply with the University Code of Academic Integrity. All work
submitted by a student must be the student's own work.
MODIFICATION AND CLASS INPUT
Class topics, dates presented, due dates for assignments, and the assignments themselves are subject to
modification based on our progress throughout the semester. I am open to including additional topics based on
class interest. I welcome your suggestions and feedback.
RECORDING OF LECTURE
Recording of the lectures in any format, including video and audio, other than by your own notes taken by hand is
prohibited without the prior, written permission of the instructor.
ACCOMODATION POLICY
In compliance with University policy and equal access laws, I am available to discuss appropriate accommodations
required for students with disabilities. Requests for academic accommodations should be made during the first
two weeks of the semester, except for unusual circumstances.
ACKNOWLEDGMENT
I am greatly indebted to Emily Bergeron, J.D., ABD Ph.D., a fellow Cornellian, who taught me preservation law. I
am also greatly indebted to the staff of the National Trust for Historic Preservation’s Legal Department, who first
introduced me to this fascinating field. Betsy Merritt, Tom Mayes, Anita Canovas, Ross Bradford, Julia Miller, and
Paul Edmondson—also a Cornell grad—are the best in their field. This course draws greatly from that learned with
Emily and the folks from the NTHP.
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Basic References for this Class:
1. List of All Federal Historic Preservation Laws U.S. Department of the Interior, National Park
Service. Federal Historic Preservation Laws: The Official Compilation of U.S. Cultural Heritage
Statutes. Washington, DC: National Center for Cultural Resources, National Park Service. (Also
available at http://www.nps.gov/history/local-law/fhpl.htm) (2008).
2. Thoughts on Reading and Briefing Cases (Instructor provided).
3. How to Research a Legal Problem: A Guide for Non-Lawyers.
http://www.aallnet.org/main-menu/Publications/products/How-To-Research-A-LegalProblem/howtoresearchlegalproblem.pdf
4. Phelan, M. A Synopsis of the Laws Protecting Our Cultural Heritage. New ENGLAND LAW
REVIEW, Volume 28, pp. 63-127 (1993).
5. King, T. CULTURAL RESOURCE LAWS AND PRACTICE, AltaMira (2008).
6. Tomlan, M.A., (2015). The Legal Framework In M.A. Tomlan, Historic Preservation: Caring for
Our Expanding Legacy (97-137). New York, New York, Springer.
Unit 1:
Introduction to Preservation Law and Basic Tools for Research and Case Breifing (SEPT 9)
Welcome and introduction
Review of course objectives and expectations.
Review of grading
A roadmap for our lectures this semester
The National Trust for Historic Preservation’s analytical framework for historic preservation law
Sources of Law in the United States. Executive, Legislative, and Judicial roles at federal, state,
local levels.
Sources of preservation law
Some tools:
How to brief a case: Facts; Question Presented (Issue); Analysis; Holding; Rule
How to conduct basic legal research
Readings: (Complete before the mid-term exam)
Mayes ,Thompson, Preservation Law and Policy: Balancing Priorities and Public Policy,
A RICHER HERITAGE (2003).
Unit 2:
Federal Historic Preservation Laws Protecting from Government Action:
Legal basis of federal preservation law—some history.
American Antiquities Act of 1906, 16 U.S.C. §§431-433
Historic Sites, Buildings, and Antiquities Act of 1935, 16 U.S.C. §§461-467
NHPA: National Historic Preservation Act of 1966, 16 U.S.C §470, et. seq.
National Register Nomination Process
NHPA Section 106
NHPA Section 110
Other Federal preservation laws: see http://www.nps.gov/history/local-law/fhpl.htm
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Other Federal Laws impacting preservation:
Housing Act of 1949
Reservoir Act of 1960
Readings:
Miller, J. A Layperson's Guide to Historic Preservation Law: A Survey of Federal, State, and
Local Laws Governing Historic Resource Protection, (NTHP 2004).
Jackson (2004). Federal Historic Preservation Law: A Research Pathfinder for Legal Practitioners
(online)
Ferris v. Secretary of the United States Department of Transportation, No. 89-C-779-C (W.D.
Wis. July 30, 1990)
Olana, Scenic Hudson sue to block 190-foot communications tower in view of historic site, Daily
Freeman.com (PDF provided)
Optional Reading:
Mallory, B. Counseling the Client in the National Historic Preservation Act. THE
PRACTICAL REAL ESTATE LAWYER, Volume 13, No. 6, pp. 9-22 (Nov. 1997).
King, T., Federal Planning and Historic Places: The Section 106 Process, AltaMira (2000).
Assignment due this class: Case brief for the Ferris case.
Unit 3:
Federal Historic Preservation Laws Protecting from Government Action:
NEPA: National Environmental Policy Act of 1969, 42 U.S.C. §§4321-4327
The NEPA Process and Environmental Impact Statements
Department of Transportation Act of 1966, 49 U.S.C. § 303
Review of the Big Three Federal Historic Preservation Laws: NHPA, NEPA, DOTA 4(f)
Readings:
Preservation Coalition, Inc. v. Pierce, 667 F.2d 851 (9th Cir. 1982).
Council on Environmental Quality Executive Office of the President (December 2007). A Citizen’s
Guide to the NEPA: Having Your Voice Heard. Washington, DC: General Printing Office.
Ayres, M. (1997). The NHPA/NEPA Interface. ARMY LAWYER, Department of the Army Pamphlet,
No. 27-50-301 USALSA Report, Environmental Law Division.
Hardwick, J. (1984). National Environmental Policy Act: Destruction of Buildings on the National
Register. NATURAL RESOURCE JOURNAL, Volume 24, No. 1, pp. 235-245.
Assignment due this class: Case brief for the Pierce case.
Unit 4:
State Historic Preservation Laws Protecting from State Government Action;
State Policies Encouraging Historic Preservation
Policy
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Enabling Laws/Home Rule Charters
Laws requiring “Consideration of Historic Property”: Mini 106’s, Mini NEPA’s, Mini 4(f)s’s
Tax Incentives
Smart Growth and Transportation Policies that are Preservation Friendly
Encouraging State-Use of Historic Properties
Direct Funding
Main Street, Heritage Tourism, and Scenic Roads/Rivers/Byways Programs
Educational Programs
Building and Access Codes
See Mayes, Thompson, A Menu of Historic Preservation Laws and Policies at the State Level
(NTHP 2005).
Readings:
National Historic Preservation Act (Sections 61.1, 61.4, 61.5, and 61.6)
State Laws to Consider Historic Resources, SMART STATES, BETTER COMMUNITIES (NTHP 1996)
Massachusetts Constitution, Article L1; Alaska Constitution, Article VII, Section 7; Pennsylvania
Constitution, Article 1, Section 27
Commonwealth v. National Gettysburg Tower, Inc., 311 A.2d 588 (1973) (Note—rather than read
the case itself, we will read the excerpted version of the case AND BE PREPARED TO ANSWER
THE QUESTIONS AT THE END OF this document:
http://www.aspenlawschool.com/books/plater_environmentallaw/updates/20_Commonwealth
_v_National_Gettysburg_Tower.pdf
Latschar, J. The Taking of the Gettysburg Tower, http://www.georgewright.org/181latschar.pdf
New York Environmental Quality Review Act, NY CLS §§8-0101 et. seq.
Town of Bedford v. White, 587 N.Y.S. 2d 72 (1993).
Sample Enabling Statute: Md. Ann Code, Art. 66B §§ 8.01-8.17
Assignment:
1. Go to the National Conference of State Historic Preservation Officers webpage:
www.ncshpo.org. Refer to the page of your state of choice to see the relevant preservation laws,
policies and incentives. Prepare a brief summary of what you found.
2. Prepare a case brief of the Bedford case
Unit 5:
Local Historic Preservation Protections from Private Action
From a policy standpoint, why are they the most effective place for preservation protection?
Legal basis for local preservation protections
Local interaction with NHPA. Certified Local Governments
Local interaction with NEPA
Drafting a good local ordinance
Special Challenges to Local Protections: Economic Hardship and Demolition by Neglect
Readings:
City of Philadelphia Preservation Ordinance, Section 14-1000 of the Philadelphia Code
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Macgill, M., Local Historic Preservation Measures as an Alternative to Federal Preservation
Efforts. VIRGINIA JOURNAL OF NATURAL RESOURCES LAW, Volume 3, No. 2 pp. 263-283 (1984).
National Park Service (2010). “Working on the Past in Local Historic Districts,”
www.nps.gov/hps/workingonthepast/definehd.htm (please skim through the information on this
site. Print it out, bring it to class, and be prepared to discuss).
Faulkner v. Town of Chestertown, 428 A.2d 879 (Md. 1981)
Miller, Julia, Providing for Economic Hardship Relief in the Regulation of Historic Properties, 15
PLR 1129 (1996).
Miller, Julia, Assessing Economic Hardship Claims Under Historic Preservation Ordinances, PLR
EDUCATIONAL MATERIALS (2005).
Demolition by Neglect, PLR EDUCATIONAL MATERIALS (2005).
Osborne, Rebecca, Balancing Act: Preventing Demolition by Neglect (2005)
Assignment: Brief Faulkner.
Unit 6:
Protecting Against Private Action Through Private Action
Restrictive Covenants
Liens
Licenses
Easements:
Types of easements: Appurtenant, Easement-in-Gross
Types of easements: Affirmative, Negative
How easements are created
Tax Implications for Easements
Common types of easements impacting historic property
Access
Light and air
Natural support
Conservation or Preservation Easements
Readings:
Mayes, Thompson and Miller, Julia, Easements That Protect the Built Environment, THE
CONSERVATION EASEMENT HANDBOOK (2005).
Sample Preservation Easement Agreement
Sample State Enabling Legislation for Preservation Easements
Optional Readings:
Diehl, J. & Barrett, T. THE CONSERVATION EASEMENT HANDBOOK: MANAGING LAND CONSERVATION AND
HISTORIC PRESERVATION EASEMENT PROGRAMS. San Francisco, CA: Trust for Public Land (1988)..
Unit 7:
The Protection of Archeological Resources
Significance of Archeological Sites
Archeological Sites and the National Register
Archeological Resources Protection Act
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Federal Laws Impacting Archeology
International Laws Relating to Archeology
Readings:
U.S. v. Diaz, 499 F.2d 113 (9th Cir. 1974)
U.S. v. Smyer, 596F.2d 939 (10th Cir. 1979)
U.S. v. Gerber, 999 F.2d 1112 (7th Cir. 1993), cert. denied 114 S. Ct. 878 (1994)
D’Innocenzo, P. Not In My Backyard! Protecting Archaeological Sites on Private Lands. AMERICAN
INDIAN LAW REVIEW, Volume 21, pp. 131-155 (1996).
Henry, S. Protecting Archeological Sites on Private Land. Washington, DC: National Park Service,
Preservation Planning Branch, Inter-agency Resources Division (1993).
Preservation Law Reporter Special Report, Archeological Assistance Study, No. 3. Washington,
DC: National Trust for Historic Preservation.
Carnett, C. A Survey of State Statutes Protecting Archaeological Resources. (August 1995).
International Cultural Property Protection, U.S. State Department, Bureau of Educational and
Cultural Affairs. http://culturalheritage.state.gov/cultural.html.
Assignment: Do a short brief of each of the cases above. Facts-Reasoning-Holding.
Optional Reading:
Ragsdale, J. Some Philosophical, Political and Legal Implications of American Archeological and
Anthropological Theory. University of Missouri at Kansas City Law Review Volume 70, pp. 1-53
(2001).
Antiquities Act of 1906, 43 U.S.C. §§ 2101-2106.
Archaeological and Historic Preservation Act of 1974, 16 U.S.C. §§469-469c-2.
Archaeological Resources Protection Act of 1979, 16 U.S.C. §470aa-mm.
Preservation of American Antiquities, 43 C.F.R. 3
Protection of Archaeological Resources, 43 C.F.R. 7
Archaeology Laws: A Guide for Professionals. Available at
http://www.nps.gov/history/archeology/tools/laws/index.htm
Unit 8
The Protection of Native American Resources
Early protections
American Indian Religious Freedom Act
Native American Graves Protection and Repatriation Act
Readings:
U.S. v. Corrow, 119 F.3d 729 796 (10th Cir. 1997)
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Bonnischsen v. United States, 357 F.3d 962 (9th Cir. 2004)
SKIM Indian Arts and Crafts Act, 25 U.S.C. §§305-305e
SKIM American Indian Religious Freedom Act, 42 U.S.C. 1996
SKIM Native American Graves Protection and Repatriation Act, 25 U.S.C. §§3000-3013.
SKIM National Museum of the American Indian Act, 20 U.S.C. §80.
SKIM Indian Sacred Sites (1996) Executive Order No. 13007, 61 Fed. Reg. 20771
Trope, J. & Echo-Hawk, W. The Native American Graves Protection and Repatriation Act
Background and Legislative History. In D. Mihesuah (Ed.), REPATRIATION READER: WHO OWNS
AMERICAN INDIAN REMAINS. Lincoln, NE: University of Nebraska Press (2000).
Yalung, C. & Wala, L., Survey of State Repatriation and Burial Protection Statutes. ARIZONA STATE
LAW JOURNAL, Volume 24, pp. 419 (1992).
Iraola, R., Special Feature: A Primer On The Criminal Penalty Provisions Of The Native
American Graves Protection And Repatriation Act. AMERICAN INDIAN LAW REVIEW, Volume 26, pp.
431-445 (2004).
Downer, A. & Roberts, A., The Navajo Experience with the Federal Historic Preservation Program,
NATURAL RESOURCES AND THE ENVIRONMENT (ABA), Volume 10, No. 3, pp. 39-42, 78-79 (1996).
Comparison of NAGPRA, ARPA, NHPA Section 106 (NPS 2007)
Unit 9:
Constitutional Issues Related to Historic Preservation
Takings:
Two Types of Takings
A History of Regulatory Takings Law
The Takings Analysis
The Penn Central Case’s Multiple Preservation Points
Readings:
U.S. Constitution, Fifth and Fourteenth Amendment
Duerkson, Christopher J. and Roddewig, Richard J., Takings Law in Plain English (NTHP
2004)
“Supreme Court Takings at a Glance,” PLR Educational Materials (2007).
Maher v. City of New Orleans, 516 F.2d 1051 (5th Cir. 1975).
Penn Central Transportation Co. v. City of New York, 438 U.S. 104 (1978).
Kelo v. City of New London, 545 U.S. 469 (2005)
Cavarello, D. From Penn Central to United Artists’ I & II: The Rise to Immunity of Historic
Preservation Designation from Successful Takings Challenges. BOSTON COLLEGE (1995).
Bartochowski, N. Takings, Archaeological Sites, and Artifacts. ALBANY LAW REVIEW, Volume
8, pp. 134-171 (2002).
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Optional Readings:
Strong, A. & Mandelker, D. Property Rights and Takings. JOURNAL OF THE AMERICAN
PLANNING ASSOCIATION, Volume 62, Issue 1, pp. 5-16 (1996).
ENVIRONMENTAL AFFAIRS REVIEW, Volume 22, No. 3, pp. 593-622.
Eagle, S., Kelo v. City of New London: A Tale of Pragmatism Betrayed. In Merriam, D. &
Ross, M. (Eds.) EMINENT DOMAIN USE AND ABUSE: KELO IN CONTEXT. Chicago, IL: American Bar
Association (2007).
Assignment: Brief Penn Central.
Due Process
Procedural Due Process
Substantive Due Process
What are Due Process Requirements?
Readings
U.S. Constitution, Fifth and Fourteenth Amendment
White, Bradford J. and Edmondson, Paul E., Procedural Due Process in Plain English
(NTHP 2003)
Religious Issues
Separationist versus Accommodation Approaches
Resistance to landmarking
Constitutionality of federal, state, and local grants for religious building preservation
Tax Exempt status of Religious Organizations
Religious Land Use Zoning
Emergency Assistance provided to religious sites after disasters
Chronology of Cases
Readings:
U.S. Constitution, First Amendment
St. Bartholomew’s Church v. City of New York, 914 F. 2d 348 (2nd Cir. 1990).
Sheehy, J. (1991). Religious Landmark Preservation Under the First and Fifth
Amendments: St. Bartholomew’s Church v. City of New York. ST. JOHN’S LAW REVIEW,
VOLUME 65, No. 2, pp. 553-576.
Religious Land Use and Institutionalized Persons Act (RLUIPA), 42 U.S.C. §§2000cc, et
seq.
Miller, J. Regulating Historic Religious Properties Under the Religious Land Use and
Institutionalized Persons Act (NTHP)
Weinstein, A. (March 2008). How to Avoid a “Holy War”—Dealing with Potential RLUIPA
Claims. American Planning Association, PLANNING & ENVIRONMENTAL LAW, Volume 60, No.
3, pp.3-9.
Wills, T. (1992). Religious Landmarks, Guidelines for Analysis: Free Exercise, Takings, and
Least Restrictive Means. OHIO STATE LAW JOURNAL, Volume 53, No. 1, pp. 211-238.
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Assignment: Prepare your course outline for a preliminary review.
Unit 10:
Laws Encouraging Preservation Activity
Federal Tax Credits
State Tax Credits
Readings:
TBD
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