How Preservation Law Lays the Groundwork for a “Movement of Yes”

As an attorney in the Law Division of the National Trust for Historic Preservation for the past five years, I have had the privilege of working with a team of colleagues who have dedicated their careers to protecting historic places across the United States. Our projects reflect the diversity of the country’s history and geography, and the fragile landscapes deeply connected to both. As advocates, we develop and respond to an array of legal claims that arise from historic preservation statutes, regulations, court decisions, state laws and local ordinances. This work ranges from fighting the unregulated cruise ship tourism that is overwhelming the National Historic Landmark District in Charleston, South Carolina, to opposing the threat of uranium mining in the scenic and sacred landscapes of Mount Taylor, New Mexico. We supported a coalition that took on and won a legal battle that stopped an office tower from spoiling the pristine views of the Hudson River Palisades in Englewood Cliffs, New Jersey. We are working to save the James River and its landscapes in Virginia from the visual threat of giant power lines and are still fighting to block commercial development near the South Rim of the Grand Canyon in Arizona. We continue to oppose a planned wind farm that would mar historic views of Nantucket Sound and are fighting “takings” challenges in urban areas like New York City. My experience has shown me that, notwithstanding their significance, historic places continue to confront increasing risk of loss. To make our work even more challenging, the laws designed to protect these places from harm attract a level of criticism that other areas of land use or environmental regulation manage to escape.

Despite the commonly touted benefits of preservation—opportunities for place-based learning, tourism, community revitalization, local job creation and property value enhancement—some critics like to refer to any whiff of historic preservation as the “Movement of No.”¹ Although there is some modicum of truth to that perception, the basic supposition is wrong. Historic preservation is not a “Movement of No.” Historic preservation is a movement designed to protect places that are valued by communities and that preserve our sense of place as individuals and as a nation. This movement is supported by protective laws on which these places depend for their survival so that current and later generations can appreciate and enjoy them into the future—much like other environmental laws designed to protect the public’s welfare.²

The National Trust argued before the New Mexico Supreme Court to help reinstate the listing of Mount Taylor, New Mexico, on that state’s Register of Cultural Properties, after a lower court improperly delisted it during litigation brought by mining companies. Mount Taylor is a sacred site to a number of Native American tribes and pueblos. rust is also participating as a consulting party in the Section 106 review process under the National Historic Preservation Act to help avoid or minimize adverse effects of proposed uranium mining on Mount Taylor.

PHOTO BY THERESA PASQUAL.

In his essay series, “Why Do Old Places Matter?,” Rome Prize recipient and National Trust attorney Tom Mayes identified myriad reasons in addition to those already listed here, which include but are not limited to history, memory, beauty, economics, architecture, learning, continuity, creativity, sustainability, identity and spirituality. All of these reasons inform the purpose and policy of historic preservation. But as those who advocate for these values know, preserving historic places depends on more than just the good intentions of property owners, the eager efforts of advocates or the persuasiveness of social media campaigns. The ability to say “no” under certain circumstances is critical—because saying “no” to inappropriate property use and development is saying “yes” to the survival of meaningful historic and cultural places and the values they embody. Without the ability to say “no,” places like the iconic Beaux Arts Grand Central Terminal in New York City or vernacular shotgun houses in the Campground Historic District of Mobile, Alabama, would probably no longer stand.^3...