It is not unusual for an article about the tension between property rights and historic preservation to begin with a gloomy scenario. One day, you, the private property owner, receive a knock at the door. Upon opening the door, you discover an ominous government official who demands that you immediately stop construction on the addition to your home.
Flabbergasted, you begin to protest, naming the many reasons why the addition must be built. But, the official does not care that the quintuplets have outgrown your present home. Neither is he sympathetic when you tell him that you paid fair market value for fee simple ownership in the property. And, he appears bored when you protest that this is America, where private property rights are the foundation for the entire society. Because, after all, he reminds you, your property has been legally designated as a historic landmark. And, this designation gives the government power to prevent you from altering the historic character of your home. But, what about your quintuplets? What about your fee simple interest in the property? What about your sacred rights as a private property owner?
And, so it goes. The story conveniently sets up a critique of the current historic preservation system, which, through either legislative decree or judicial decision, deprives owners of their full property rights. A remedy is proposed; property rights are vindicated.
This paper takes a different approach. Instead of arguing that historic preservation has gone too far in impinging on personal property rights, it will argue that, in some cases, historic preservation law affords too much protection to personal property rights. In particular, this paper will focus on the overprotection of property rights provided by the owner consent provisions of the National Historic Preservation Act Amendments of 1980 (the "Amendments").
Theodore, Jess, "Over My Dead Property! Why the Owner Consent Provisions of the National Historic Preservation Act Strike the Wrong Balance Between Private Property and Preservation" (2008). Georgetown Law Historic Preservation Papers Series. Paper 30.