Local preservation ordinances: A one size fits all approach to social injustice

In a recent study, Avrami et al. (2018), found 86% of the local historic preservation ordinances sampled across the United States are nearly 100% derivative of the standards for significance and historical integrity found in the federal National Register (NR) of Historic Places guidelines. In my own work, I’ve also found this to be the case; the remaining 15% or so are basically paraphrasing the NR standards with very few exceptions. In addition, I’ve found that more than 95% of local preservation ordinances either directly reference the federal Secretary of the Interior’s Standards, copy the standards verbatim, or paraphrase them in some way. Lastly, a random sample of historic preservation ordinances shows that nearly all of these ordinances do exactly the same thing, which are to:

  1. State a purpose for the existence of the ordinance, largely based on economic justifications;
  2. Create an historic preservation commission consisting of appointed volunteers;
  3. Define criteria for designation (again, derivative of NR standards)
  4. Define the procedure to nominate and designate (list) buildings and districts;
  5. Define the scope of the design review authority of the commission;
  6. State the criteria the commission uses for design review (derivative of the US Secretary of the Interior’s Standards);
  7. State the process for an applicant who wishes to claim economic hardship;
  8. State the process used to appeal the commission’s decision;
  9. State how the ordinance is enforced.

If these look familiar, they should, because Richard Roddewig prepared a guideline for “how to create an historic preservation ordinance” for the American Planning Association back in 1983 with exactly this content. There’s never been an update to this document, and it’s still referenced in practice, to this day, when new preservation ordinances are being proposed.

This situation — the homogeneity of preservation ordinances across the United States that have varied little in substantial content for decades — is another example of a doctrine (i.e., Roddewig’s guidelines) being uncritically accepted into practice and then duplicated in perpetuity from one municipality to the next. We’ve seen this over and over again in US historic preservation practice; once the first law or regulation goes into place, it doesn’t change to any substantial degree. For instance, look at the National Historic Preservation Act, which other than having minor changes in the early ’80s to accommodate World Heritage listing, is much as it was in its 1966 creation; the National Register of Historic Places, unchanged since it was first posted to the Federal Register in the early 1970s; and the Secretary of the Interior’s Standards, also largely unchanged since it was posted to the Federal Register in the early 1980s. (There was one small change to the Standards in the mid 1990s to change “should” to “shall” in some of the guidelines, but this is rather minor, although arguably, makes the Standards even more authoritarian.)

But, this situation never had to be this way at the local level. The 10th Amendment to the US Constitution states that the powers not officially claimed in the Constitution by the federal government are passed to the states. Otherwise known as “police power,” this is the primary reason why the federal government cannot regulate private property. This power is delegated to the states, which then delegate this power to local municipalities. Thus, there has never been any legally-grounded reason why a local municipality couldn’t implement a preservation ordinance any way it wants, as long as this regulation remains constitutional. For municipalities that don’t operate under a home-rule charter, they would have to get approval from their state, but no approval — at all — would be needed from the federal government.

It’s important to point out that the way the federal government gets state and local governments to comply with actions that would normally not be constitutional is to threaten withholding federal money or permits. This is how, for instance, the National Park Service’s Certified Local Government (CLG) program requires local municipalities to adopt NR criteria and the Standards. If a municipality fails to comply, then the municipality will not be able to get the very small amount of funding available from the National Park Service (a few thousand US dollars). This is otherwise known as “voluntary” compliance, and it is widespread across the US.

But, the CLG program, alone, does not explain why so many local municipalities voluntary chose to uncritically adopt federal preservation standards. The US has a long tradition of state and local government rejecting federal standards and relying on their own home-brew solutions. Yet, even the most conservative parts of the US with deeply entrenched suspicion of federal power adopted federal preservation standards unquestioningly. Why? For the historians reading this blog, this question needs to be answered, especially in light of its relationship to social justice.

Without any empirical evidence for the reason for this situation, I can offer a theory, which I call “preservation in a vacuum.” A method for choosing which buildings and places are “historic” and “not historic” is not intuitive or simple; this problem remains a largely unacknowledged, but thorny social science issue to this day. Preservation doctrine (e.g., SPAB Manifesto, Venice Charter) short-circuited the discussion on the relationship between people and older places, instead relying on the deeply unscientific principle that the significance of historic places is innately contained in the fabric of buildings (Salvador Muñoz Vinas [2005] has one of the most detailed explanations of this “material fetish” in preservation practice). In this kind of a vacuum, any kind of standards are perceived as better than none, even with all of their innate flaws. So the federal guidelines, in essence, filled this social science vacuum and helped shut down any critical discussion on the matter. Rather than being an opportunity to involve more community-based approaches to preservation at the local level, this decision to adopt federal standards disempowered communities and introduced inherent social justice issues in hundreds of municipalities across the US.

As I’ve written about in this blog before, one of these social justice issues revolves around the need for “historical integrity,” otherwise known as material authenticity, and a well-documented, written historical record. Buildings and places associated with rich, white men are much more likely to change less over time and to have more written documentation on the lives and activities associated with these places. The built heritage of the members of African American, Latinx, and LGBTQ communities, for instance, is much more likely to have changed quite a bit over time; there is also much less likely to be any written, archival record for these people. And, State Historic Preservation Offices and the NPS don’t really like NR nominations to rely solely on oral history, because it is not sufficiently “objective.” So places with insufficient integrity and without a large written historical record are unintentionally excluded across the entire preservation enterprise. The driver for this injustice are federal preservation guidelines that unintentionally favor the history and places of wealthy, white people and have been adopted, universally, at every government level in the US. We even have a name for this phenomenon: Andrea Roberts (2019) calls this the “white gaze” of historic preservation.

This basic question — why did local municipalities uncritically accept federal preservation guidelines when they weren’t legally required to do so — has never been discussed in either a significant or meaningful way by either preservation scholars or practitioners. But, in a sign that this might be changing, Jim Lindberg, Senior Policy Director for the National Trust for Historic Preservation, broached the subject of tailoring local preservation ordinances to local needs in a recent podcast. While not addressing social justice or designation/design review criteria per se, even opening this subject in this context provides hope that this dialog might increase and broaden in the future among preservation leaders.

All it would take to upend this status quo is for one home-rule municipality or a state to be at the forefront of addressing these social injustices and create a new kind of preservation ordinance that is responsive to the heritage and places of the long marginalized peoples in the United States. We’ve seen this kind of thing happen elsewhere: for instance, Ballarat, Australia totally re-wrote its heritage conservation policies and regulations to respond to UNESCO’s Historic Urban Landscape (HUL) approach. So, yes, it can be done. The US should also be a leader in this space: Visionary state and local politicians and heads of local planning offices are essential in this endeavor. It is our responsibility, as preservationists/conservationists, to engage them in this social justice dialog.

References:
Avrami, E., Leo, C.-N., & Sanchez, A. S. (2018). Confronting exclusion: Redefining the intended outcomes of historic preservation. Change Over Time: International Journal of Conservation and the Built Environment, 8(1), 102–120.

Muñoz Viñas, S. (2005). Contemporary theory of conservation. Amsterdam: Elsevier.

Roberts, A. R. (2019). “Until the Lord come get me, burn it down, or the next storm blow it away”: The aesthetics of freedom in African American vernacular homestead preservation. Buildings & Landscapes: Journal of the Vernacular Architecture Forum, 26(2), 73–97.

Roddewig, R. J. (1983). Preparing a historic preservation ordinance. Chicago, IL: American Planning Association.

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