Balancing Private and Public Interests in Historic Preservation: It May Be Constitutional, But Is It Right?

• Author: Camryn McGinnis
• Position: J.D., Georgetown University Law Center (expected May 2023); B.B.A., Southern Methodist University (2018)
• Pages: 933-951

Balancing Private and Public Interests in Historic

Preservation: It May Be Constitutional, But Is It

Right?

CAMRYN MCGINNIS*

INTRODUCTION

Historic preservation, as we know it, began in the eighteenth century as a pri-

vate movement.

1

Today, historic preservation has transformed into a “publicly-

supported movement” that encourages the protection and preservation of resour-

ces that are of historic significance.

2

These include buildings, landscapes, objects,

and other resources that have significance and integrity.

3

To be considered signifi-

cant, a resource must have one of the following qualities: relation to American

history, significant architecture, archeology, engineering, or cultural impact.

4

In

short, historic preservation tells important stories of the past. It tells stories of pre-

vious events, eras, and people; protects the history of diverse communities;

5

and

provides a way to connect the past to the present.

Some claim historic preservation is ruining cities.

6

See generally Adam A. Millsap, Historic Designations Are Ruining Cities, FORBES (Dec. 23, 2019),

https://www.forbes.com [https://perma.cc/6ZGW-Z4PB].

Others argue it is a great

benefit to society.

7

See generally Twenty-Four Reasons Historic Preservation Is Good for Your Community, PLACEECONOMICS,

https://www.placeeconomics.com [https://perma.cc/G6HF-URKJ] [hereinafter Twenty-Four Reasons] (last visited

Apr 26, 2022).

This juxtaposition presents the fundamental question of

whether the field of historic preservation properly balances the rights of private

property owners and the public’s rights to preserve historic properties.

8

See David A. Doheny, Property Rights and Historic Preservation, THE Preservation LEADERSHIP FORUM

OF THE NATIONAL TRUST FOR HISTORIC Preservation (Dec. 9, 2015), at 1, https://forum.savingplaces.org

[https://perma.cc/YQ2A-SCU5].

Is it ethi-

cal to take away certain property owners’ rights regarding their historically desig-

nated property for the benefit of the public? While preservation may be

constitutional, is it right?

9

* J.D., Georgetown University Law Center (expected May 2023); B.B.A., Southern Methodist University

(2018). © 2022, Camryn McGinnis.

1. SARA C. BRONIN & J. PETER BYRNE, HISTORIC PRESERVATION LAW 1–2 (Saul Levmore et al. eds., 2d ed.

2021) (citing NORMAN TYLER, ILENE R. TYLER & TED J. LIGIBEL, HISTORIC PRESERVATION: AN INTRODUCTION

TO ITS HISTORY, PRINCIPLES, AND PRACTICE (3d ed. 2018)).

2. Id. at 1.

3. Id. at 67, 69.

4. Id. at 69.

5. See id. at 1.

6.

7.

8.

9. See id.

933

This Note will argue that historic preservation does favor the public’s interest.

While this is the ethically right choice because it benefits the general welfare, it is

not equitable. Some homeowners are still disadvantaged as a result. However,

there are ways in which the legal profession can help improve the practice of his-

toric preservation law to strike a better balance between public and private inter-

ests, such as altering lawyer behavior through the Model Rules of Professional

Conduct (“Model Rules”).

Part I of this Note will provide the necessary background of historic preserva-

tion and ethics. Part II will present historic preservation’s benefits and drawbacks

to the general public, while Part III will outline historic preservation’s benefits

and drawbacks to private property owners. Finally, Part IV will provide an analy-

sis about ethics in historic preservation and how it affects the legal profession

through the Model Rules.

I. BACKGROUND: HISTORIC PRESERVATION AND ETHICS

A. TAKINGS

Historic preservation affects all Americans.

10

See Patrice Frey, Why Historic Preservation Needs a New Approach, BLOOMBERG (Feb. 8, 2019), at 1,

https://www.bloomberg.com [https://perma.cc/HD23-QQG5].

As Patrice Frey, former “director

of sustainability at the National Trust for Historic Preservation,”

11

Patrice Frey, GOVERNING, at 1, https://www.governing.com [https://perma.cc/3P4W-8ULP] (last visited

Apr. 26, 2022).

said, “[E]ver-

yone who cares about quality of place and values our collective story as

Americans has a stake in this conversation.”

12

The Fifth Amendment of the

United States Constitution states, “nor shall private property be taken for pub-

lic use, without just compensation.”

13

This is known as the Takings Clause and

Just Compensation Clause.

14

Not only does the Fifth Amendment apply to the

federal government, but it also applies to the states through the Fourteenth

Amendment.

15

The Takings Clause is important to historic preservation

because it was created to bar the “[g]overnment from forcing some people

alone to bear public burdens which, in all fairness and justice, should be borne

by the public as a whole.”

16

10.

11.

12. Frey, supra note 10, at 1.

13. U.S. CONST. amend. V.

14. Ann K. Wooster, Annotation, What Constitutes Taking of Property Requiring Compensation Under

Takings Clause of Fifth Amendment to United States Constitution–Supreme Court Cases, 10 A.L.R. FED. 2D

231 § 2 (2006).

15. Id.

16. Armstrong v. United States, 364 U.S. 40, 49 (1960).

934 THE GEORGETOWN JOURNAL OF LEGAL ETHICS [Vol. 35:933