Americans have begun to recognize the importance of historically significant structures and places. Historic districts are being restored in many parts of the nation. This recognition has spawned the creation of a social value which places emphasis upon the preservation of historic properties. Historic places provide a physical link to society's cultural history — a unique and irreplaceable connection to the past. More specifically, the protection of cultural resources has social importance since it encourages increased understanding and respect for the past and provides a source of architectural beauty for the future. Governmental promotion of protective policies for historic properties, therefore, satisfies intergenerational responsibilities both to the past and to the future. On a more pragmatic level, the preservation of historic districts has been shown to revitalize urban neighborhoods and bolster local economic conditions.
Although historic resources command increasing respect in society, they are exceptionally vulnerable to “public and private interests, natural forces and a concept of progress oriented toward physical expansion and alteration of the environment.” The growing awareness of this fragility has resulted in the development of a number of legal techniques and governmental programs intended to protect historic properties. One such device is the historic preservation restriction. By legislative act, many states have sought to achieve a preservation policy by encouraging the use of conservation and historic preservation easements. These statutes authorize the creation of a new form of private property right which employs traditional property law concepts to accomplish a new purpose. This new right is a less-than-fee interest in land. By legislative action, the common law limitations associated with real covenants and easements have been eliminated, thereby producing a “novel interest in land that is freely assignable and enforceable against subsequent takers.” This interest, often termed a “preservation restriction,” permits a landowner to segment ownership rights and to convey the right to modify the physical appearance and use of lands and structures. By recognizing the existence of an alienable property right to preserve the physical appearance of buildings and places, states authorizing preservation restrictions have established a voluntary, nongovernmental technique for the conservation of cultural resources. This presents an attractive alternative or supplement to the traditional methods of public land use control which compel preservation through the exercise of the police power. In 1980 the Ohio Legislature enacted a statute recognizing “conservation easements” limited to the purpose of preserving open space and agricultural lands. It did not provide any protection for historically significant properties. It is argued that Ohio legislation should be expanded to allow the conservation easement technique to accommodate historic preservation objectives.
This article will examine the sufficiency of existing Ohio law to allow the use of the preservation restrictions device for historic preservation purposes. First, public and private land use controls for the preservation of the cultural environment will be critically discussed. Second, there will be a brief exploration of the federal law pertaining to the preservation of historic properties. Third, the legislation of numerous other states9 which have authorized preservation restrictions will be examined in order to isolate the essential characteristics of an effective preservation restriction system. Fourth, the present Ohio historic preservation law will be described with special attention given to the limited way in which the preservation restriction concept has been incorporated into state law. Finally, recommendations for legislative amendment will be provided to improve the statutory framework thereby making preservation restrictions available for the protection of historic properties in the State of Ohio.
Rosenberg, Ronald H. and Jacobstein, Pamela G.
"Historic Preservation Easements: A Proposal for Ohio,"
University of Dayton Law Review: Vol. 7:
2, Article 2.
Available at: https://ecommons.udayton.edu/udlr/vol7/iss2/2
Ronald H. Rosenberg is an Associate Professor of Law at Marshall-Wythe School of Law, College of William and Mary, Williamsburg, Virginia. B.A., 1971, Columbia University; Master of Regional Planning, 1974 and J.D., 1975, University of North Carolina at Chapel Hill.
Pamela G. Jacobstein is an Associate at Squire, Sanders and Dempsey, Cleveland, Ohio. B.A. 1975, Kent State University; J.D. Cleveland State University.