PRESERVATION: PAST AND PRESENT
Randie Kirschner
Independent Research
For: Professor Phelan
December, 1982

TABLE OF CONTENTS
Page
INTRODUCTION TO HISTORIC PRESERVATION 1
FEDERAL HISTORIC PRESERVATION LAW 2
The Antiquities Act of 1906 2
The Historic Sites Act of 1935 4
The National Historic Preservation Act of 1966 . . 7
The National Environmental Policy Act of 1969. . . 10
Executive Order No. 11,593 10
STATE PRESERVATION LAWS OF TEXAS 13
Development of Texas Preservation Law 14
State Preservation in General 15
State Protection through Police Power 15
In General 15
The Antiquities Code of 1969 17
Article 5421 Q 17
National Register 18
Official State Medallion Program 19
State Protection through Eminent Domain 20
In General 20
Acquisition through Eminent Domain 20
Private Preservation 22
In General 22
Encouragement through Tax Incentives 22
The County Historical Survey Committee. . . . 26
Conclusion to State Preservation Law 28
HISTORIC PRESERVATION CASE LAW 28
CONCLUSION 45
EPILOGUE 46
FOOTNOTES 47
A P~ e « i - 5
1

INTRODUCTION TO HISTORIC PRESERVATION
Historic preservation is the act of preserving, maintaining and restoring structures which represent the life patterns and social habits of early America.
. . . Preservation activities are educational and cultural, for old structures as nuggets of history tell stories otherwise not told. The methods of construction and finishing used centuries ago, now lost to modern craftsmen, and the life styles and social habits of Americans cannot be preserved properly by books alone, but are readily perceivable in presently existing American homes and surroundings. Any social activity which serves such meaningful purposes naturally deserves appropriate legal consideration.
There are many theories regarding the worth to be attributed to historic preservation efforts in American society today. The above excerpt, with its focus on tradition, seems to be among the most popular themes. Some theorists speak of preservation as if it is a physical link to the past-.-One that serves as a means of communication between what was and what is, while other theorists choose to emphasize the aesthetic, artistic and environmental aspects of preservation. Still there exists yet another line of reasoning that supports the preservation movement which places the spotlight on nostalgia and the ability that preservation has to promote patriotism. For the above cited reasons, the preservation of structures which represent visible historical contacts with the origins of
American tradition has become a meaningful and necessary public task, the development of which will be examined throughout the balance of this essay. c o i r s

FEDERAL HISTORIC PRESERVATION LAW
2
In the case of United States v. Gettysburg Elec. Ry, the United States Supreme Court upheld the exercise of the federal government's condemnation power to preserve the Gettysburg Battlefield. This decision provided a constitutional basis
Notwithstanding the Gettysburg decision, prior to 1900, the majority of the nation's cultural resources went unpreserved due to the "arbitrary" legislation passed by Congress in regards to this matter. Congress did, in fact, recognize that certain aspects of the federal heritage required the intervention of the federal government to ensure their preservation, but reacted to this need by passing appropriate legislation on a site-by-site basis. Thus, by so acting, Congress did establish the principle of federal action to protect significant historic sites, but unfortunately aided only those sites that they deemed worthy.
The Antiquities Act of 1906
4
The 1906 Antiquities Act represents the first major federal commitment to historic preservation. This act by Congres was enacted to supplement the previous site-by-site approach.
The Antiquities Act authorizes the President to designate as national monuments "historic landmarks, historic and prehistoric structures, and other objects of historic or scientific interest" situated on federal lands. The site, limited to "the smallest area compatible with the proper care and management of the objects to be protected" could be set aside for protection.^

3
The act provides for penalties to be inflicted upon "any person who shall appropriate, excavate, injure or destroy any historic or prehistoric ruin or monument, or any object of antiquity"^ on federal lands. It also authorized a permit system for sanctioning scientific investigation on lands owned or coatroLled g by the United States. This permit system provides general guidelines for undertaking research, submitting reports, and
9 curating collections. While much of this activity is now referred to under the Archaeological Resources Protection Act of 1 9 7 9 , ^ the Antiquities Act may still be involved for special purposes.
The penalty provision of the Antiquities Act was challenged in the 1974 case styled United States v. D i a z , ^ wherein the
Ninth Circuit Court of Appeals ruled that the statutory language was "fatally v a g u e . T h e case involved a criminal conviction based on theft of Apache religious artifacts from a reservation.
The artifacts were less than five years old. The case was argued on the basis of the antiquity of the ceremonies represented by
13 the masks rather than the age of the stolen objects. The court of appeals found that the terms "objects of antiquity," as well as "ruin" and "monument," were "undefined terms of uncommon usage" and thus held the statute "fatally vague in violation of the due process clause of the C o n s t i t u t i o n , " ^ stating that a person must be able to know, with reasonable certainty, what objects he may not t a k e . ^
In U. S. v. Smyer, the court distinguished the Diaz case and upheld a conviction of the penal provision of the o o r s

4
Antiquities Act. The Tenth Circuit Court of Appeals distinguish
1 o
Diaz on the fact that therein, the artifacts involved were
19 less than five years old, whereas in Smyer, the artifacts
20 taken were 800-900 years old. The Smyer court held that "a person of ordinary intelligence should know that it is prohibite artifacts that were 800-900 years old."
The Ant LquLl Lc\s AcL introduced an important concept that is fundamental to the current federal program of historic preservation. Prior to 1906, the designation of properties to be afforded federal protection was carried out by Congress through the enactment of their "arbitrary legislation." The Antiquities
Act changed this limiting procedure and now allotted to the executive branch the discretionary power to determine the significance of cultural properties. Unfortunately, along with this positive change which accompanied the 1906 passing of the Antiquities Act, Congress refused to go one step further and consider the much debated issuance of a check on all federal actions which might impair historic properties. While the Antiquities
Act did retain unappealing features from earlier preservation law, it nevertheless symbolized a step up in the process of federal protection for historic properties.
The Historic Sites Act of 1935
The Historic Sites Act of 1935 marked a significant change in national policy towards historic preservation. With this new policy came a changed outlook regarding the preservation
W'i., J

5 of historic buildings. The literal theme of the act is as follows: "to preserve for public use historic sites, buildings, and objects of national significance for the inspiration and ii benefit of the people of the U. S.
22
The most significant contribution of the act is found in sections 2(a) through (c), authorizing the Secretary of the Interior to:
(a) Secure, collate, and preserve drawings, plans, photographs, and other data of historic and archeologic sites, buildings, and objects.
(b) Make a survey of historic and archeologic sites, buildings, and objects for the purpose of determining which possess exceptional value as commemorating or illustrating the history of the United States.
(c) Make necessary investigations and researches in the
United States relating to particular sites, buildings, or objects to obtain true and accurate historical and archeological facts and information concerning the same.23
The act maintained the requirement of national significance found in earlier federal preservation laws, specifying that only properties judged of national significance would be the subject of federal preservation activity. The executive branch expanded the initial role given to it by the Antiquities Act of 1906 and now took upon itself the task of defining the cultural resources that would satisfy the requirement of "national significance."
The responsibility of evaluating these sites was carried out by the implementation of the program entitled the National
Survey of Historic Sites and liuildings. The actual evaluation process was grounded on themes in American history. Landmark status was achieved when the Survey decided that the property in question possessed exceptional value in commemorating American

6 history pursuant to section 2(b) of the Act. Once the owner of such a property obtains approval by the Secretary of the
Interior, it is up to him whether or not he chooses to participate in the Landmark Program. The procedure that follows is limited in regards to enforcement. If the property owner does choose to become involved, he must agree to preserve the historical integrity of the property, use the property for purposes consistent with its historic character, and allow periodic inspection. The enforcement of this agreement is limited to removal of landmark designation should it be found that the historical integrity of the property was in fact impaired, contrary to the terms of the agreement. Thus, the absence of a more severe sanction on the participant places a constraint on the extent of protection afforded by this Act.
In accordance with the purposes of the Act, the Secretary of the Interior is authorized to "acquire in the name of the
United States by gift, purchase, or otherwise any property . . ."
This provision of the Act was challenged in Barnidge v. United
25
States on the grounds that the Act does not authorize the condemnation of property to carry out its objectives. The court upheld the condemnation proceedings and as a result, the Historic
Sites Act was seen as granting to the United States the right to acquire sites of national historic significance by eminent domain, condemnation or any other related government sponsored

The National Historic Preservation Act of 1966
27
The National Historic Preservation Act of 1966 symbolized great progress when compared to previous federal efforts to preserve cultural resources. One of the most meaningful aspects of this Act was the absence of the long-established standard of "national significance," so deeply rooted in all previously related legislation. By removing this requirement, federal involvement could now be expanded to encompass not only cultural resources of national significance, but also those that constituted state and local significance as well.
Additional revisions in the scope of federal activity enumerated by the Act included the new specification of the term "cultural," regarding those aspects of the nation's heritage worthy of protection. Previous to this Act, only the terms
"historical" and "archaeological" were utilized to describe deserving resources. Generally, this Act interjects a neverbefore-seen philosophical outlook into the growing preservation movement. Previous to 1966, all legislation dealt with the importance of history in relation to preservation; now with the passing of this act, the rationale for federal involvement
2 8 became the "inspiration and benefit of the people."" Congress seems to have now come to grips with the idea that cultural tion to the American people." Also mentioned as a new policy consideration in this Act was the fundamental shift from protecting only those cultural properties in federal ownership, to now emphasizing preservation of nonfederal ownership property as well.

8
One very substantial innovation of the National Historic
Preservation Act was the expansion and maintenance of the listing
30 known as the National Register of Historic Places. This listing forms the basic inventory of cultural resources which guides the actual implementation of the entire preservation program. The Historic Sites Act initiated The Registry of
National Landmarks which then included only those properties which displayed the label attributed to resources of "national significance." The newly expanded 1966 version extends federal protection beyond the confines expressed in the original Registry, and now encompasses cultural resources which are deemed significant at the national, state or local level. To be deemed "significant," the National Park Service established the National
Register Criteria of Evaluation which is a system of surveying and nominating cultural properties for listing on the National
Register based on the following:
The quality of significance in American history, architecture, archeology, and culture is present in districts, sites, buildings, structures, and objects of State and local importance that possess integrity of location, design, setting, materials, workmanship, feeling, and association, and
1. that are associated with events that have made a significant contribution to the broad patterns of our history; or
2. that are associated with the lives of persons significant in our past; or
3. that embody the distinctive characteristics of a type, period, or method of construction or that represent the work of a master, or that possess high artistic values, or that represent a significant and distinguishable entity whose components may lack individual distinction; or
4. that have yielded, or may be likely tc^yield, information important in prehistory or history.
Once a nomination has been approved, the property is listed in

9
Che Register and is then afforded protection under the Act.
Before a property can procure federal assistance, it must be listed in the National Register. No federal restrictions are placed on one's property because of its obtaining Register status, in fact, an owner is free to do with the property as he wishes notwithstanding its newly acclaimed cultural value. The owner has but one obstacle in his way, and that is to prove that his property possesses significant cultural value; once he has satisfied that burden his position remains stationary for the remainder of his involvement with the program.
The principal agency formed to implement the expansive protection afforded by this Act was the Advisory Council on
Historic Preservation. This advisory council had the primary function of regulating the impact of federal agency actions on National Register properties. The act required any federal agency having jurisdiction over a project that could affect a property listed on the National Register, prior to approval of the project, to take into account the project's effect on the National Register property and provide the advisory council
32 with a reasonable opportunity to comment. This comment put forth by the advisory council is in reality nothing more than
"advise," and can be treated as merely an educated suggestion.
The advisory council comments must be taken into account and integrated into the decision-making process, but the final program decision rests with the agency implementing the project.
In taking into consideration the fact that the council lacks formal enforcement, the resulting compliance statistics are

10 impressive. The council's success has said to be due in large part to the cooperation found to exist with the federal agencies whose projects it reviews.
The National Environmental Policy Act of 1969
3 3
The National Environmental Policy Act of 1969 allotted a cohesiveness to the Historic Preservation Act of 1966 by adding an important check to its checks and balances process.
This newly added "check" consisted of a requirement providing that environmental and cultural values must now be considered
O / technological values. The Act called for the preparation of an environmental impact statement on any major federal action
35 that significantly affects the environment. The Act went on to emphasize that "the federal government is to use all practicable means to improve and coordinate federal plans, functions, programs, and resources to the end that the nation may preserve important historic, cultural, and natural aspects of the national heritage."
This coupling of environmental preservation and historic preservation represented a great merger in favor of the future protection of cultural resources.
Executive Order No. 11,593
On May 13, 1971, President Nixon issued Executive Order
11593 which was entitled "Protection and Enhancement of the
37
Cultural Environment." The Executive Order introduced the term "cultural environment," for the first time in federal law.
The Act purported to represent a federal commitment to assuring

11 preservation by the following language: "The Federal Government shall provide leadership in preserving, restoring and main-
10 taining the historic and cultural environment of the nation."
This presidential enactment was an attempt to cure the deficiencies that had cropped up in relation to the National
Historic Preservation Act of 1966 and the National Environmental
Policy Act of 1969. To carry out this objective, Executive
Order 11593 expanded federal authority in several areas already in existence.
The Order dealt with federally-owned historic properties
39 in Section 2. Under section 2(a), federal agencies must locate, inventory, and nominate to the National Register all eligible cultural properties under their "jurisdiction or control. In the interim, until this inventory process is completed, section 2(b) directs agencies to "exercise caution to assure that any federally owned property that might qualify for nomination is not inadvertently transferred, sold, demolished, or substantially a l t e r e d . " ^ This language of section 2(b) authorizes the Advisory Council to comment on the effects of federal undertakings on properties that are eligible but not yet actually listed on the National Register. This somewhat
"premature" evaluation greatly increased the protective measures afforded by the federal government by acting as a shortcut around the technicalities surrounding actual admission into the
Register.
Executive Order 11593 broadens the responsibilities of federal agencies Cor nonfederally-owned cultural properties m m

12 in addition to the policies enacted to aid federally-owned property as seen in section 2. Literally speaking, section
1(3) directs agencies to consult with the Advisory Council to
"institute procedures to assure that Federal plans and programs contribute to the preservation and enhancement of non-federally owned sites, structures, and objects of historical, architectural or archeological s i g n i f i c a n c e . " ^ Additionally, the Council has prescribed a similar review process as enumerated in section
2(b) of the Order, for agencies to follow when their actions affect nonfederally-owned properties that may be eligible for the National Register. This review process has made major contributions to the early consideration of cultural resources in federal project planning and has furthered the policy of federal concern for historic properties previously mentioned in earlier acts.
Furthermore, the 1971 Order also directed the Secretary of the Interior to prepare standards and provide advice concerning the identification and preservation of significant properties.
All these efforts have brought about increased awareness among federal agencies of the special needs of fragile historic properties. Thus, in summing up, Executive Order No. 11593, one would probably focus on the new opportunities afforded by its overall scope. It has increased the chances of federal compliance by shedding light on the disputed areas before the project has been substantially developed or completed. By reviewing the potential impact at the early stages of the project, the
Council has decreased its chances of being met with antagonism
C spa m rv»
V j T > £

by Che acting federal agency. This questioning of the agency's procedures at such an early stage in the planning process usually means that the Council can safely assume that the agency has not yet invested a substantial amount of time or money and thus will be less apt to fight against any potential changes. Without compliance among the parties, any federal attempt at preservation would be doomed to a short-lived life. So, in combining the procedures of the 1966 Act with the supplementary additions of the 1971 Order, the federal government has managed to save numerous important properties from destruction at the hands of self-serving federal projects.
STATE PRESERVATION LAWS OF TEXAS
The inspirational values of preservation are accepted by
Texas. The Alamo was acquired by the state in 1903 "as a sacred memorial to the heroes who immolated themselves upon that hallowed ground . . .
A recent report to the l e g i s l a t u r e ^ states that "a visit to the happening-places of hisCory leaves a deep impression in the mind which cannot be created by a text-
45 book within a four-wall classroom," and that "sites which reflect our heritage show us where we have been and where with
4 6 imagination and foresight we can go." Texas spirit as to historic preservation can best be summed up by the following quote:
By honoring past achievement and by making achievement a reality, historic sites encourage the striving for excellence. Historic sites create respect for and curiosity about the values motivating the achievement focused upon.
4

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In analyzing the above insight into Texas mentality regarding historic preservation, one can see an emphatic desire to use the state movement as a tool in both the educational and psychological senses. In terms of the psychology aspect, Texas seems to want historic preservation to serve a dual purpose, jine purpose being to help instill in a person the ambition to strive ahead and conquer the inconquerable, while on the other hand, the state also wants to instill a patriotic pride in its citizens by actually showing them the achievements of their forefathers.
Thus, in view of the worthy objectives set forth by preservation advocates of Texas, the movement has achieved great momentum since the 1950s.
Development of Texas Preservation Law
The first move toward historic preservation in Texas came in 1876 with the enactment of Article XVI of the Texas Consti-
48 tution. Not until 1953, over seventy years later, did Texas actually take a concrete stand towards establishing a state organized preservation movement. This effort came in the form of the Texas State Historical Survey Committee which was permanently established by 1956. This committee acted as a clearinghouse for all available preservation information along with being a leader and coordinator for both public and private preserva-
49 tion activity. The first concerted public preservation effort began in 1964 when the State Committee adopted "RAMPS" ("Record,
Appreciate, Mark, Preserve, and Survey"), a twenty-one-point program of goals to be reached over a five-year period. RAMPS

15 gave substantial aid in the direction of coordinating historical preservation efforts statewide. By early 1969, RAMPS was able to deliver a positive status report to the legislature concerning its overall progress. The Committee has since served as a monumental force in preservation development.
State Preservation in General
The state has generally been said to possess four great powers: war, taxation, police and eminent domain. Although taxation has been employed to encourage voluntary restoration, and the war power to justify condemnation, the powers of police and eminent domain remain the primary means of compelling preservation in a majority of the states.
State Protection through Police Power
In General
Police powers of a state extend to all matters of great public concern. These powers are usually utilized very liberally and only the due process and equal protection clauses of the fourteenth amendment provide any relevant limitations concerning their usage. Insofar as the limitation imposed by the fourteenth amendment is concerned, it provides that no state shall "deprive any person of life, liberty, or property, without due process of law.""'® Police power becomes a "taking" when a law does not have the good of the public as its objective and instead, the end is associated with a more private purpose."*^ Texas is in the minority of jurisdictions that does not favor the regulation of private property through the police power for the purpose of

16 historic preservation. In fact, such use of the police power in Texas is rare. Texas construes the use of police powers in this subject area very strictly and takes a narrow view.
An example of this strict construction is seen in Spann v. City
52 of Dallas, wherein the Texas Supreme Court struck down an ordinance as an unconstitutional exercise of the police power because the reason behind the use was not endangering the public welfare. The fact that the use was beneficial to the public was obviously overshadowed by the fact that no "danger" existed.
The court deliberately chose to interpret the situation in that way, whereas if the use had been tried in the East, the holding might have been just the opposite.
53
In United States v. Gettysburg Electric Railway, supra, the United States Supreme Court decided that condemnation of places of unusual historic interest constituted a "public use" under the fifth amendment and is thereby condoned. In Texas, the definition of "public use" as the right of the public to share in the proposed use has been implicitly rejected in favor of an interpretation that is better described as "public b e n e f i t . T h u s , in Texas what is deemed "public use" does not condone the use of police power unless it can also fit the description of "public benefit." The idea of the public sharing beauty and pride in an historic resource has not yet overcome the strong tradition of private ownership which still prevails in Texas today.
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The Antiquities Code of 1969
55
The Texas Antiquities Code serves as a very important part of the Texas preservation system by declaring that it is in the public interest of the state to locate and preserve all
5 6 sites of historic and archaeological interest. In addition to the above reading of the code, it also forbids damage, alteration and destruction of publicly owned historic sites without a p e r m i t . ^ Accordingly, all sites of historic and archaeological interest, that are part of land belonging to Texas, are deemed
State Archaeological Landmarks and require a permit from the
5 8
Antiquities Committee prior to the implementation of any changes.
Violation of the Code is a misdemeanor, punishable by a fine
59 of up to $1,000 and/or confinement of not more than thirty days.
Article 5421 Q
Article 5421 Q ^ provides that an agency or political subdivision may approve any project requiring the taking of public land used as an historic site if, after notice and public hearing, it determines that there is no feasible alternative and that the project includes all reasonable attempts to minimize harm caused
61 by the taking. If the Antiquities Code subjects all publicly owned sites of historic interest to the permit system, then it might force an addition to Article 5421 Q--the grant of a permit from the Antiquities Committee. Article 5421 Q affords to publicly owned historic sites practically all the protection of a permit system,even without the incorporation of the Antiquities Code. C MP ,M f<r*

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National Register
The state never uses its police power to coerce preservation of private property. Any involvement of private property is precipitated by the landowner, himself. The State Survey
Committee does have two incentives which they use to encourage the participation of private landowners and these include entry in the National Register and the official State Medallion.
In Texas, the Architectural Restoration Consultant of the
State Survey Committee supervises all the nominations that Texas makes concerning entries into the National Register of Historic
Places. The procedure to bee ome nominated in Texas is as follows first, a site must be recognized by the state marker program, then suggested by the State Survey Committee, and finally approve c ^ by the seven-member Professional Review Committee. If a nomination is approved by the National Park Service, it will be entered into the National Register and thereafter, the participating landowner will reap the benefits pursuant to section
106 of the A c t . ^ As discussed supra, presence on the National
Register in Texas, and all over the rest of the country, places no real legal effect upon the owners of private property or upon state agencies. In comparison to the previous discussion concerning the Register's effect on federal agencies, the present focus on state agencies depicts a mere lenient observance of the desired objectives of the Act. The most that can be said on a consistent basis is that presence on the National
Register does have a "cautionary effect" on the actions of the private landowner.

19
Official State Medallion Program
The historical marker program is directed by the State r c
Survey Committee. There are two types of markers--(1) historic subject and site markers and (2) historical building medallions and plates. Historic subject markers tell the story of places, persons and events; their purpose is purely informational, and there may be no tangible remains of the history told. Type //2, which includes labeled medallions, are "awarded to structures having historical, architectural or cultural significance to the locality, area or state, and designate a site as a Recorded
Texas Historic L a n d m a r k . T h e official State Medallion means that "the State of Texas feels the structure is historically significant and therefore is worthy of preservation, but it
6 7 has no legal effect and, at times, little influence." Thus the key distinction between the two types of markers is one of official state recognition. Although both are recognized as symbols of the past, only the medallion is deemed to possess historical "significance." The medallion system is created with the hope that it will instill a sense of pride in the owner of a structure that bears this official plate. This sense of pride is tied in with the theory that once a private property owner becomes sophisticated enough to appreciate the meaning behind the medallion he will be deterred from destroying his property.
So, in effect, both the medallion system and the National Register are alternate means of enforcement where official legal sanctions are lacking.

2 0
State Protection Through Eminent Domain
In General
"Like the police power, the power of eminent domain is an inherent sovereign power, it is a power to seize property rights
68 for a public use." Since eminent domain is a sovereign power, it is only principally limited by the fifth and fourteenth amendments and the appropriate state constitution. There are two basic limitations--the projected use must be public and just compensation must be paid the landowner for the taking.
The principal difference between eminent domain and the police power is that eminent domain may be used to acquire property
69 for historic and aesthetic purposes. This distinction is founded in the compensation allotted to landowners when acquiring property via eminent domain. This compensation imposes restraints on power and relieves the landowner of most disadvantages. Thus, this added element alleviates the strict scrutiny attributed to a "taking" and allows the preservationists a wider scope within
7 0 which they may reign.
Acquisition through Eminent Domain
In Texas, any state agency or political subdivision may approve a project requiring the taking of public land used as
71 an historic site if there is no feasible alternative. "The
State Building Commission and all incorporated cities and counties of Texas may condemn sites of state-wide historical significance, associated with historic events or personalities, or . . . sites
72 including . . . any historical feature" only if they prove such
C M 4 5

2 1 action is necessary to avoid destruction or deterioration of the site. Although Texas has allotted this privilege to its agencies and subdivisions, it has never been utilized. Among the explanations for the absence of condemnations are that other means of acquisition have been available, and that only occasionally is public acquisition of historic sites desirable.
The Texas legislature has adopted a policy of acquiring sites only if the resulting public benefit exceeds the cost of restoration and maintenance. Restoration expenses include such items as: purchase of equipment and display cases, engineering
73 surveys, landscaping and wages. Among maintenance expenses are the following: salaries of groundskeeper, wages for maintenance work, consumable supplies, materials and construction
74 of public sanitation facilities. In most cases, the decision to acquire an historic site will depend upon whether it can be put to daily use. An example of continued use is the growing practice throughout the country of using abandoned railroad depots for a variety of purposes including restaurants, museums and historical theatres. "Daily use" has been held to mean any use except mere existence as a memorial or a museum. Texas weighs acquisition against the chances of the site becoming an integral part of contemporary life. In other words, Texas will rarely acquire a site that will not mitigate its own cost.
Use is a means of lowering the total cost of acquisition. If the particular use is appropriate, regarding the character of the site, then that factor acts as a point in favor of acquisition. Even more favorable, is the element of public usage.

22
Once the use is categorized as a public one, acquisition by the state becomes more and more certain. Texas decisions have consistently cited public use as a limitation on the power of eminent domain and refuse to alter their policy in any m a n n e r . ^
Private Preservation
In General
In accordance with Texas preservation policy, acquisition by the state is a means of preservation to be used only as a last resort and instead, the state encourages careful custody by private owners as the best means of preservation. The rationale behind this policy is that, if preservation is handled privately, historic sites are more apt to be woven into the fabric of daily life and thereby become more economical to the public.
Encouragement through Tax Incentives
The method of governmental encouragement of historic preservation is through indirect subsidy in the form of favorable tax laws. The most popular form of subsidy is a straight tax
7 6 exemption for historic property. The Texas Constitution requires that all property except municipal property be taxed in proportion to its value, but exempts from this requirement property owned by "institutions of purely public c h a r i t y . " ^
In accordance with this exemption, the legislature has exempted from taxation historic sites owned by institutions of purely public
Af> ^ -f***

23 exemption and will not allow deviation readily. For example, the Texas Supreme Court denied exemption to one well-known organization on the mere fact that it was using its historic site for some noncharitable purpose along with a charitable
79 purpose, thereby illustrating the rigidity behind acquiring a charitable exemption in Texas. Since this exemption is couched in terms of an exemption for the property of certain nonprofit organizations only, it has a very limited reach. A minority of other states have straight tax exemptions for historic property per se. These statutes which exempt historic property per se are of greater potential effect than the Texas variety since the majority of historic properties remain in individual hands. Texas, by conditioning its exemption on charitable affiliations, has cut out the great bulk of historical properties concerned. The charitable exemption may be available to only a limited number of historic sites or may discourage any but memorial or museum use. One Texan perservationist criticized this narrow policy by commenting that,
Courts should recognize that the public benefits from the mere presence of historic sites in daily life, whatever they are used for, and that the public values of preservation are usually realized better if the sites are vessels for contemporary life thgg if they are isolated as dead memorials or museums.
Since property tax exemption does not benefit most privately owned property, other techniques must also be utilized for encouragement purposes. One of the most practical forms of tax relief for privately owned properties worthy of historic preservation is some form of tax credit for preservation or m m

24 restoration expenses. The Tax Reform Act of 1976, as amended by the Revenue Act of 1978, was the first major breakthrough that added new rehabilitation provisions to the Internal Revenue
Code. The 1976 Act provided major tax incentives for rehabilitation by owners or lessees of commercial or other income-producing historic structures and tax penalties for those who demolished such structures and replaced them with new buildings, or sub-
81 stantially altered them.
Any structure designated a "certified historic structure" by the Secretary of the Interior is covered by these provisions.
Tn general, a certified historic structure is one that is subject to depreciation, as defined by the Internal Revenue Code and is either listed individually in the National Register of Historic
Places or located in a registered historic district and certified by the Secretary of the Interior as being of historical signifi-
82 cance to the district. A "registered historic district" means
(1) any district listed in the National Register or (2) any district designated under a state or local statute that has been certified by the Secretary of the Interior as containing criteria substantially insuring the preservation and rehabilitation of historic buildings and also certified as substantially meeting
8 3 all criteria for National Register listing.
The Revenue AcL of 1978 added Lo the Internal Revenue Code a new provision that allowed taxpayers to take an investment tax credit for up to 10 percent of the expenses incurred in rehabilitating depreciable buildings that were at least twenty years old. This amount was credited directly against the taxes

25
00411 owed by the taxpayer. Expenses qualifying for this credit must have incurred after October 31, 1978.
The new 1982 Act went even further in promoting historic preservation by adding to the Internal Revenue Code sections
46(a)(2)(A)(iv) and 46(a)(F) which is entitled, Rehabilitation
Percentage. Prior to 1932, there was no such specified provisions, and thus the tax credit was held to only 10 percent.
Now, with the passage of this new act, in the case of qualified
84 rehabilitation expenditures, the rehabilitation percentage has substantially increased. The actual amount of the increase is calculated in accordance with the age and status of the building in question. There are three categories mentioned in section 46(a)(F), and they are as follows: (1) fifteen percent for thirty to thirty-nine year old buildings, (2) twenty percent for forty year old and older buildings, and (3) twenty-
8 5 five percent for certified historic structures.
The term 30-year building means a qualified rehabilitated building other than a 40-year building and other than a certified historic structure. The term 40-year building means any building (other than a certified historic structure) which would meet the requirements of section
48(g)(1)(B) if 40 were substituted for 30 each place it appears in paragraph (B) thereof. The term certified historic structure has the meaning given to such term by section 48(g)(3),
3 6
Section 48(g) of the Internal Revenue Code describes only generally the requirements imposed on eligible rehabilitation work. In order to qualify, seventy-five percent or more of the existing external walls of the building being rehabilitated
8 7 must be retained in place as external walls. Any expenditure for the enlargement of the building does not qualify for credit,
CCIoQ

"id. 26 nor does the actual cost of acquiring the structure. The law does provide that qualifying rehabilitation work may include
90 the reconstruction of the building. In the case of a building other than a certified historic structure, it shall not be labeled a qualified rehabilitated building unless there is a period of at least 30 years between the date the physical work on the
91 rehabilitation began and the date the building was first used.
In the 1954 Internal Revenue Code, only 20 years must have elapsed since construction or prior rehabilitation, thus, the new 1932 Act has both advantages and disadvantages when compared with the prior acts, but the advantages far outweigh the disadvantages with respect to gaining momentum for the preservation movement.
These amendments made by the 1982 Act shall not apply to any rehabilitation of a building if: (1) the physical work on such rehabilitation began before January 1, 1982 and (2) such building meets the requirements of paragraph (1) of section
48(g) of the Internal Revenue Code of 1954 (as in effect on the day before the date of enactment of this Act) but does not meet the requirements of such paragraph (1) (as amended by this
The County Historical Survey Committee
93
The County Historical Survey Committee is the primary tool used by the State Survey Committee to implement the state plan of developing the historical resources of Texas. A County
Survey Committee is appointed by the county judge for a term of it Mt±.

27 two years. Members must be "residents of the county who have exhibited interest in the history and traditions of the State
94 of Texas . . . " The size of the County Survey Committees vary because the statute only specifies that they shall consist
95 of "at least seven." The members of this committee differ in age, but the majority are elderly people characterized by their aggressive natural ability to work hard. Each county is authorized to pay the necessary expenses of the County Survey
96
Committee, but because annual budgets vary from county to county, not all programs are equally successful.
An overview of the work of the County Survey Committee leads to the conclusion that this committee successfully promotes preservation activity because of three major factors:
1. The system takes advantage of the private enthusiasm and local pride that serves as a catalyst in activating the present preservation movement. This factor carries with it a large amount of influence since preservation is largely a local matter. Opinion in support of a local focus is best described by the following quotation: "Aside from the relatively few sites of statewide significance, heritage belongs to determine what is significant to them."
2. The Committee is creating a preservation ethic that will result in continuity among the parties instead of constant conflicts between the destructive and preserving f o r c e s , ^ and

28
3. the congenial relationship that exists between local and state preservation activities. The fact that the
County Committee has ready access to the expertise and power of the state committee enables all future action to encompass both state and local interests in the planning process, thereby creating a healthy
99 atmosphere for all those involved.
Conclusion to State Preservation Law
In recent years, there has been an accelerated effort to preserve property of significant historic interest in Texas.
Existing federal and Texas legislation has been characterized by a piecemeal approach to historic preservation. A plethora of different agencies and administrative bodies share responsibility in this area, all striving towards the one ultimate goal to "preserve for public use historic sites, buildings and objects of national significance for the inspiration and benefit of the people of the United S t a t e s . E v e r y state attacks this objective with a differing degree of intensity and Texas seems to finally be gaining momentum after what could be classified as a "slow start."
HISTORIC PRESERVATION CASE LAW
Until approximately forty years ago, the courts rarely decided a case dealing with historic preservation. This drought of decision was attributable to the almost total absence of governmental action in the field of historic preservation.
CC'453

2 9
Before the government responded to this interest, protection of historic buildings and sites had been accomplished almost exclusively through the efforts of private or semi-private historic societies, art associations, and cultural organizations operated
101 by groups and individuals. Beginning in the 1930s, more federal, state and municipal interest was shown in historic preservation, and as time passed, even cities enacted laws to protect buildings and areas with historical significance. Courts began to hear a greater number of cases dealing with the subject as preservation became more of a respected national pasttime.
Government involvement went hand-in-hand with judicial involvement and so case law increased when federal and state commitment increased. Thus, in view of the trend of governmental involvement expanding with the times, the list of significant cases also expands as the hearing dates of these cases become more current.
The following is a compilation of significant cases that deal with some aspect of historic preservation. The collection begins with the oldest cases and continues until the present:
102
1. United States v. Gettysburg Electric Railway. This case was the first in which an American court held permissible the use of eminent domain to preserve property which was historic
The Court saw a direct inspirational effect on American citizens who would gaze upon the Gettysburg Battlefield in Pennsylvania.
Preserving the land would commemorate both the sacrifices made and the ideals which inspired them.

30
103
2. Roe v. Kansas ex rel. Smith. The Court stated that in view of what was said in (the Gettysburg case) . . . there is no basis for doubting the power of the State to condemn places of unusual historical interest for the use and benefit of the public. " Thus, this case upheld propriety of use of eminent domain power by state government to condemn and take historic properties.
105
3. Flaccomio v. Mayor of Baltimore. The Court upheld propriety of use of eminent domain by city government to condemn and take historic properties. The Court asserted that the condemnation was not rendered invalid because the property would be operated by a private association. The use would continue to be public, and the title to the land would be taken in the name of the city. The principle enumerated herein allows a state to acquire property for historic preservation without establishing a new agency to maintain and operate it; private organizations can fill this role adequately. Such delegation of maintenance is permissible as long as the property continues to be used for a public purpose and the ownership of the property remains in the state. Thus, property docs not have to be of historic value itself to be condemned. If it is used in connection with other property which does have historic value, the power of eminent domain may be exercised. Furthermore, property can be condemned which has no historical value whatsoever, even though the condemnation is not in connection with any historic property. If the property is acquired for purposes of building a monument or structure commemorating the past, then the condemnation is
00435

31 for historical purposes and is a valid exercise of the power of eminent domain. It is the purpose of the condemnation that is controlling.
106
4. City of New Orleans v. Levy. The Court upheld the constitutionality of an ordinance issued by a historic district which was under attack on the grounds o£ vague standards, denial of equal protection, and use of police power for aesthetic purposes only. The Court said that
Perhaps esthetic considerations alone would not warrant an imposition of the several restrictions contained in the
Vieux Carre Commission Ordinance. But . . . this legislation is in the interest of and beneficial to the inhabitants of New Orleans generally, the preserving of the
Vieux Carre section being not only for its sentimental value but also for its commercial value, and hence it constitutes a valid exercise of the police power.
Thus, the court never really answered the allegations directed towards aesthetic value alone, and instead dodged the issue by emphasizing the fact that the preservation of this particular historic district would also result in direct economic benefit to the community. The court upheld the ordinance because of the existence of commercial value and thereby avoided a direct confrontation with the aesthetics issue.
108
5. Opinion of the Justices to the Senate (Nantucket).
Herein, as in Levy, supra, the court emphasized the economic aspect of preservation. A statute was upheld creating an historic district in Nantucket, Massachusetts, as a valid exercise of the police power on the ground of serving the public welfare. The purpose advanced was said to aid the general welfare by establishing a thriving tourist trade which could

32 only be developed through the promotion of historic associations.
This theory contended that "the sedate and quaint appearance of Nantucket . . . in all probability constitutes a substantial part of the appeal which has enabled it to build up its summer
109 vacation business . . . " Thus, although the statute could not be shown to advance public safety, health or morale in the usual manner, it was still upheld through the manipulative construction this court gave to the concept of public welfare.
The trend was herein established, that although the courts would not readily uphold preservation on aesthetic grounds alone, they were beginning to accept the movement as an important one which embodied a wide variety of worthwhile public benefits.
6. Reid v. Architectural Board of Review.'*'^ This case symbolizes a progressive step towards aesthetic value gaining importance in its own right. The court herein upheld the board's denial of a building permit for a proposed residence of modern design to be constructed in a neighborhood composed of houses in traditional styles only. This decision was grounded on beauty alone and the court did not feel the necessity to tack on any additional basis for so holding. Thus, the foundation upon which the preservation movement rests here takes on a new shape, which focuses on the importance of cultural values instead of stark economics.
7. City of Santa Fe v. Gamble-Skogmo, I n c , ^ ^ Santa Fe historic district ordinance regulating window sizes and shapes was upheld as a valid exercise of police power. As in Reid, supra, the court is focusing on aesthetic grounds only. The defendant

33 herein alleges Chat the city has no right to impose its idea of beauty on the rest of its citizens but is struck down as an unconvincing argument. The court upheld on the basis that a reasonable relationship exists between the ordinance and the public-welfare purpose in historic preservation. Thus, the cour takes a rather strict view in this case, all in the name of
"public welfare." In comparison to the early 1950s cases, mentioned supra, the court herein has made a complete turnaround in policy. The earlier cases hesitated to confront the aesthetic issue, while in the instant case, they not only confront the issue, but go beyond what some advocates believed was the original scope intended.
112
8. Town of Derring ex rel. Bittenbender v. Tibbetts.
The town enacted an ordinance prohibiting the erection of any building within one-quarter mile of the Town Common unless the town selectmen approved in advance the plans for construction.
Criterion of the ordinance that "atmosphere" of town is to be considered by selectmen was held acceptable. The court held that the regulation was a valid exercise of the police power because it promoted the general economy, welfare, and prosperity of the town, including the value of private property. The preservation of the historic buildings was said to enhance the value of private homes in the area and preservation of property values
113 is held to be a proper element of the general welfare. Thus, herein, the economic theme was broadened to uphold the validity of this preservation ordinance while the aesthetic aspect was entirely ignored. Again, the court herein seems to make use of w l o a

34 the general nonspecific police power for preservation purposes as was seen in Nantucket, supra. The two cases can be distinguished on the fact that here the court probably would have upheld the regulation based on economic benefit to the residents' property without using the tourism rationale as was expressed in Nantucket.
114
9. Manhattan Club v. Landmarks Preservation Commission.
The Commission had designated as a landmark a building owned by the Manhattan Club. The Club alleged that the designation constituted a deprivation of property without due process of law and a taking of private property without compensation. The court held that the designation was not confiscatory because the Club was guaranteed a reasonable return on its investment with the option to demolish the building if no scheme to provide such reasonable return could be devised. The decision stated that use restrictions which result in lower profits, no profits, or actual loss do not render an ordinance confiscatory. In order for an ordinance to be deemed confiscatory, it must preclude use of property for any purpose for which it is reasonably adapted. Since the Club herein was free to do as it pleased with the interior of the building, the property was not "confiscated," within the meaning attributed to that word by law.
10. Trustees of Sailors' Snug Harbor v. P i a t t .
1 1 5
On appeal this case set out three requirements that must be met before landmark designation will constitute a taking when charitable property is involved. The test is as follows: (1) whether preservation of the building would seriously interfere with the

35 use of property, (2) whether the building is capable of conversion to a useful purpose without excessive cost, and (3) whether the cost of maintaining it without use would entail serious expenditure. If these three requirements are met, then the regulation is confiscatory and will be struck down.
116
11. Rebman v. City of Springfield. The city adopted a new zoning ordinance creating an historic sites district in a four-block area around a home that had been owned by Abraham
Lincoln. The city derived its power to create the historic district from a general statutory provision giving municipalities the right to enact zoning ordinances, and also from a more specific statute which granted municipalities the right to preserve areas and buildings having special historical interest. The interesting theme of this case is that the court contends that historic preservation, per se, benefits the general welfare and that there is no need to dig up any auxiliary benefits to support the validity of the ordinance. The court stated that when the legislature passed the historic sites legislation it "essentially
117 created a new concept of public welfare," one that includes the preservation of historical areas within its scope.
118
12. M & N Enterprises v. City of Springfield. Plaintiff owned some property that had been zoned as residential, but he filed a petition to rezone as commercial. The city soon thereafter created a new historic district which encompassed plaintiff's property. The historic district had the effect of classifying all properties within its confines as residential. Plaintiff contended that the new ordinance creating the historic titrili^

36 district was confiscatory because it forced residential status upon his otherwise commercial property. According to plaintiff, his property would have substantially more value if it were deemed commercial as he so desired it to be. The court disagreed with plaintiff's contentions, and to the contrary held that the property was actually enhanced by the new zoning classification.
Thus, the court concluded its findings by establishing the principle that a zoning ordinance for historic preservation, that increases value of properties because of their proximity to historic structures, cannot be held confiscatory or unreasonable if it also happens to limit properties to noncommercial status only.
119
13. Bohannon v. City of San Diego. The plaintiff herein alleges a confiscatory charge based on his construction of an ordinance creating an historic district which included his property. The plaintiff contended that this ordinance required the use of materials and architectural styles, in remodeling or repairing his structure, that were in use prior to 1871 in the San Diego area. He asserted that the effect of this requirement was to render his building valueless or at least substantially reduce its worth on the real estate market. The court denied that this ordinance amounted to a taking without just compensation because it found no such requirement existed.
Instead of requiring certain materials and styles to be used, as plaintiff contended, the court interpreted the ordinance to say only that the materials and styles be in "general accord" with the appearance of Old San Diego prior to 1871. Thus, this mm.

37 limitation set forth by the preservation related ordinance was held to be a valid exercise of police power which did not, in fact, result in rendering plaintiff's property worthless.
The Bohannon case is in support of an earlier decided
120 case styled, Hayes v. Smith. The Hayes court stated that
"general compatibility" of style and materials to be used on historic structures is as far as an historic ordinance can reach without becoming unconstitutional. Rigid adherence to prior architectural style would be beyond the allowed scope of such ordinances as would the requirement of absolute duplication of a specified style or design.
121
14. City of Dallas v. Crowrein. This case illustrates an important concept--it allowed a municipality to use its police power to withhold the issuance of a building permit pending action on designation of a proposed historic district even though the application for the permit was submitted prior to any serious consideration by the city of creating an historic district.
At the time the permit was requested, the area was zoned to allow such construction. The court upheld that withholding the permit pursuant to a city council resolution was a valid exercise of the police power. The court asserted that in the interim between the proposing and adopting of a zoning ordinance, the city could take reasonable measures temporarily to protect the public interest and welfare. Thus, this case symbolized a new addition to the preservation movement. In light of this decision, it seemed that historic preservation had become such an appealing proposition that courts would construe in its favor

38 whenever possible. This case was later appealed and the trial
122 court affirmed.
12°
15. Ely v. Velde.
J
Plaintiffs sought an injunction against the proposed funding and construction in their neighborhood of a state penal facility. The federal agency, The Law
Enforcement Assistance Administration (LEAA), was to provide the state with the funds to construct the facility. LEAA had violated the National Historic Preservation Act by not considering the effect the prison would have on certain historic properties in the general vicinity. LEAA also failed to comply with this act by not allowing the Advisory Council an opportunity to comment on the undertaking. The Fourth Circuit held that a state which had planned to use LEAA funds to construct the facility near National Register houses must either comply with both NEPA and NHPA or reimburse the federal government for the funds initially allocated for the project.
12 A
16. Lutheran Church in America v. City of New York.
The rule enumerated in this New York case is that one can raise a successful challenge to landmark designation by demonstrating economic or other hardship. The plaintiff, a religious corporation, owned a residential building used as offices, but it had become inadequate for the owner's needs. Plans had been made to demolish the existing building and replace it with a new one.
Before execution of the plans, Lhe building was designated a landmark and so demolition was prohibited. The court held that the landmark designation as applied to plaintiff was confiscating and unconstitutional because it forced plaintiff to retain

39 property that was absolutely worthless to him. As in the
Trustees case, supra, the court concluded that a landmark designation cannot seriously interfere with the carrying out of the owner's charitable purpose and still be valid. Herein, the building would have to be replaced if owner was to use the premises freely and economically, and so the designation was held an invalid exercise of the city's police power and struck down.
125
17. Maher v. City of New Orleans. The court held that an ordinance within the police power is not unconstitutionally perty does not achieve its maximum economic potential. Plaintiff complained that the ordinance made his property virtually worthless to him and thus amounted to a taking. He owned a cottage within the confines of the district and wished to replace it with rent-producing apartments. He was denied permission to destroy the building. The court held this was not a taking because plaintiff could have rented out the cottage and gotten monetary benefits in that manner. Thus, plaintiff failed to
127 able use or return from his property. The court's decision turned more on aesthetic considerations than on economic benefits.
128
This case reiterated the saying of an earlier case that deemed the concept of public welfare as one including aesthetic values
129 as well as monetary.

case emphasized the notice aspect of a property's location in an historic district. Herein, a church which acquired property within locally-designated historic district was held to have constructive notice of the property's location. Since the church is held to constructive notice, they must abide by all the regulations and limitations that accompany such historical status. The church wished to demolish the existing structure on the property and replace it with something that would better benefit them economically. The court sustained the prohibition of demolition by the city on the ground that the owner could still sell the property for reasonable value and thus not have
131 a total loss from the acquisition. On appeal, the lower court was affirmed and the demolition application submitted by the plaintiffs was again denied. The court rested on the same premise as set out in Maher, supra. The concept centers around the successful attempt by the landowner to establish that because of the status he cannot economically utilize the property. If the plaintiff fails to carry his burden of proof on this account, the demolition can be prohibited. Thus, the court further supports
Maher by following the rule that a property can be denied its maximum economic potential and still not be confiscatory.
19. Texas Antiquities Committee v. Dallas Community College
132
District. This court held that section 6 of the Texas Antiquities Code was unconstitutionally vague because it contained no standards for use by the Antiquities Committee in identifying structures of historical significance. Section 6, here in

4 1 question, was the key tool for the Antiquities Committee to use in deciding on demolition grants for buildings within historic districts. The Texas Supreme Court held that the
Committee could not go on denying people the right to do with their property as they wished, without giving a more descriptive explanation. Texas courts greatly appreciate a person's rights respecting his own private property and will not condone any limitations on this ownership unless a formal itemized rationale is submitted by the limiting agency. The Committee in charge of demolition was challenged herein on grounds of arbitrariness regarding the denial of permits. The court saw fit to alter the present standards of this decision-making process and alleviated the vagueness by requiring strict compliance with new identification procedures.
20. Hall County Historical Society v. Georgia Department
133 of Transportation. The requirements of the National Historic
Preservation Act were reemphasized by the holding of this case.
The federal government wanted to widen a highway that ran through an historic district located in Georgia. The court enjoined the highway project based on their findings that the Federal
Highway Administration delegated their responsibilities under
NHPA to state highway officials. The court decided that NHPA requires that the determinations of effect on the environment must be made by the appropriate federal agency and cannot be treated as a "rubber stamp" of the state's work. This case served as significant reinforcement for NHPA policies.

42
21. Society of Ethical Culture v. Spatt. The court struck down the trial court's holding and reinstated the Landmark
Preservation Commission's designation of the Art Noveau Meeting
House as a landmark. The appellate court reversed the holding of the trial court because it had substituted its own subjective judgment for that of the Commission's highly informed historians and architects. The court stated that the Commission was correct in preserving all types of landmarks and not just those that possessed extraordinary attributes. The court agreed that in order to capture and preserve the true historical heritage, we must preserve even those structures that do not have widespread popularity. The court said no taking existed because the society is complaining of hardship and as of the present, no hardship yet exists. In other words, the society is challenging the ordinance on the grounds of future damages. Since no complaint can be grounded on present interference caused by the ordinance, the court finds in favor of the Commission and approves of the landmark designation.
1
22. A-S-P Associates v. City of Raleigh. The police power of a North Carolina municipality was held to have the right to control the exterior appearance of private property when it relates to the advancement of state preservation. This right extended not only to existing structures but was held to also encompass any new construction in the area. The court upheld this regulation because it placed great weight on the "incongruity" that would result in the district without it. Since the district displayed the characteristics of Victorian architecture,
Clg > *
'Visir/

43 the court realized that any major deviation would be incongruous because Victorian architecture is so readily identifiable.
The court herein illustrates great thoughtfulness in coming up with their decision, and symbolizes an attempt at trying to "get the most" out of the preservation process instead of limiting it to its "bare essentials" as seen in previous case law on this subj ect.
X 3 6
23. Sleeper v. Bourne. Plaintiff owned residential property within an historic district and wanted to install a sixty-eight foot radio antenna on the roof of said property.
The preservation commission denied plaintiff a certificate of appropriateness and both the trial and appellate courts affirmed.
The court found no taking, contrary to plaintiff's allegations, because plaintiff failed to show any reduction in the value of his property as a residence. Also taken into consideration on the issue of a taking, was the fact that the commission did not make a blanket prohibition of such antennas anywhere in the region, but only did so as to plaintiff's home in particular because of its inappropriate location within the district.
The court emphasized that preservation is not the act of preserving one type of structure as an "island in and of itself," but instead, preservation is the act of preserving the cultural heritage in its entirety by prohibiting incongruous structures.
The court suggested that the commission include in its decision any findings of substantial hardship even if the plaintiff himself does not raise this issue. The court also suggested the application of a balancing process, between the wants of the ft fP* 3 ^Q

44 specific plaintiff and the right of the inhabitants of the region to have unimpaired heritage of the area. Notwithstanding these suggestions, the court still concluded that the plaintiff herein suffered no particular hardship and that the heritage should thus remain unimpaired.
137
24. Fout v. Frederick Historic District Commission.
The court herein felt the necessity to bring to the attention of the Maryland Preservation Commission the limits of its scope as an authoritative agency. This case coincides with the previously mentioned Texas Antiquities case, but flies in the face of Spatt, supra. Here, the court does, in fact, substitute its own subjective judgment for that of the highly experienced commission personnel, contrary to Spatt. The commission had denied a certificate of appropriateness to install redwood siding over the brick front of a residence in a local historic district. In its denial, the commission never explained its reasons. The court stated that the commission cannot just flatly deny a certificate of this type without first attaching the reasons for its action. This disclosure of the facts is necessary for the reviewing court to perform its duty of determining whether the commission acted arbitrarily or not. The court basically
"slapped the commission's wrist" for so acting, and tried to make sure its members would realize in the future, that their authority must be in strict compliance with appropriate Maryland legislation and not go beyond. The court further found that the decision of the commission should be a formal writing setting forth all the necessary information. Thus, the court reprimanded this

45 local preservation commission for not following the standards and guidelines that the legislature had previously set forth.
This case should not be misunderstood as a step backwards in the preservation movement, but to the contrary, should be recognized for what It is worth. The local commissions must be kept under control for the movement to prosper. If the commission w e r e allowed to go forward without criticism and review, chances are their mistakes would result in harm to the movement instead of good.
CONCLUSION iiisLoric preservation's legal future cannot be deduced from the handful of cases construing historic district ordinances. It cannot be limited by present day positivisthangover conceptions of the role of the state in controlling land use. The law of architectural controls is an infant whose potential reaches far beyond the control of the appearance of an old building. As the judicial understanding of property rights changes in accordance w i t h development in social policy, new and creative efforts in the area of civic beautification will be permissible.
One line of growth has been specifically explored by this
Note--the preservation of notable old buildings for the sake of saving America's tradition. This line of activity is by no means the only way in which architectural controls can develop; it is merely the first to be accepted by the courts as legally protectible. The goal to be realized in the use of these controls--be it the historic zoning field or another--is the elimination of existing ugliness in American structures. This ugliness must be recognized as one of the root causes for the declining attractiveness of our great cities. It cannot be protected as a constitutionally authorized way of living, nor as a right inherent in our concept of personal liberty.
However, the immediate public task to be fulfilled is not that of controlling land use. What must be first achieved in America is an understanding of the value of homogeneous community life. Until the public at large realizes the necessity for creating a psychologically tolerable environment for urban and rural living, the activities of preservationists and of public authorities w i l l be mere excursions into a morass of alienation.138
"Vi « 'J

46
EPILOGUE
"The Eagle is preserved, not for its use, but for its
,,139 beauty.

47
FOOTNOTES
1
R e e d , NOTES, 44 Notre Dame Lawyer 379, 380 (1969)
2
1 6 0 U.S. 668 (1896).
3
I d .
A
1 6 U.S.C. §§ 431-433 (1976).
5
1 6 U.S.C. § 431 (1976).
6
1 6 U.S.C. | 433 (1976).
7
1 6 U.S.C. § 433 (1976) .
8
1 6 U.S.C. § 432 (1976).
9
4 3 C.F.R. II 3.1-3.7 (1979).
1 0
1 6 U.S.C. §§ 470aa-47011 (1979).
U
4 9 9 F.2d 113 (9th Cir., 1974).
1 2
I d . at 115.
1 3
I d . at 114.
U
I d . at 115.
M. PHELAN, MUSEUMS AND THE LAW, at 110 (1982).
1 6
5 9 6 F.2d 939 (10th Cir., 1979).
1 7
4 9 9 F.2d 113 (9th Cir., 1974).
1 8
I d .
1 9
S 9 6 F.2d 939 (10th Cir., 1979).
2 0
I d .
2 1
1 , M. PHELAN, MUSEUMS AND THE LAW, at 110 (1982).
2 2
1 6 U.S.C. § 461 (1970).
2 3
1 6 U.S.C. § 462 (1970).
2 4
1 6 U.S.C. § 462(d) (1970).
2 5
1 0 1 F.2d 295 (8th Cir., 1939). i* b 'i'?

2 6
1 , M. PHELAN, MUSEUMS AND THE LAW, at 111 (1982).
2 7
1 6 U.S.C. §§ 470a-470n (1976).
2 8
1 6 U.S.C. § 470 (1970).
2 9
1 6 U.S.C. 1 470(b) (1970).
3 0
1 6 U.S.C. § 470(a)(1) (1970).
3 1
3 6 C.F.R. § 60.6 (1975) .
3 2
1 6 U.S.C. § 470(f), regulations found in 36 C.F.R. j
800.1-800.15 (1979)
3 3
4 2 U.S.C. 11 4321-4347 (1976).
3 4
1 , M . P H E L A N , M U S E U M S A N D T H E L A W , a t 1 1 2 ( 1 9 8 2 ) .
3 5
I d .
3 6
I d .
3 7
3 C.F.R. 154 (1971), reprinted in 16 U.S.C. § 470 app., at 429 (1976).
3 8
E x e c . Order No. 11,593, § 1(11, 36 Fed. Reg. 8921 (1971)
3 9
E x e c . Order No. 11,593 § 2 (1971).
4 0
I d . § 2(a).
4 1
I d . § 2(b).
4 2
E x e c . Order No. 11,593 § 1(3), 36 Fed. Reg. 8921 (1971).
4 3
T e x . Laws 1905, Ch. 7, § 3, at 7.
4 4
S E N A T E INTERIM COMMITTEE ON PARKS AND RECREATION, 61st
Legis., THIS LAND IS OUR LAND, A REPORT ON TEXAS" NATURAL ENVIRON
MENT (1969).
4 5
I d . at 19.
4 6
I d . at 23.
4 7
S c h a t z e l , PUBLIC HISTORIC PRESERVATION IN TEXAS, 49
Tex. L. Rev. 267, 268 (1971).
4 8
T E X . CONST, art. XVI, 1 39 (1876).
4 9
T E X . REV. CIV. STAT. ANN. art. 6145, § 7 (1962).

"id.
49
U.S. CONST, amend. XIV, § 1.
5 1
T H E POLICE POWER, EMINENT DOMAIN, AND THE PRESERVATION
OF HISTORIC PROPERTY, 63 Col.L.Rev. 708, 711 (1963).
5 2
2 3 5 S.W. 513 (1921).
5 3
1 6 0 U.S. 668 (1896).
5 4
S c h a t z e l , PUBLIC HISTORIC PRESERVATION IN TEXAS, 49
Tex.L.Rev. 267, 269 (1971). "
5 5
T E X . REV.CIV.STAT.ANN. art. 6145-9 (Supp. 1969).
5 6
I d § 2.
5 7
I d § 6.
5 8 i d .
5 9
TEX.REV.CIV.STAT.ANN. art. 6145-9 § 17 (supp. 1969).
60
O J
TEX.REV.CIV.STAT.ANN. art. 5421 Q (supp. 1969).
6 1
S c h a t z e l , PUBLIC HISTORIC PRESERVATION IN TEXAS, 49 Tex.
L.Rev. 267, 283 (19717:
6 2
I d .
6 3
S c h a t z e l , PUBLIC HISTORIC PRESERVATION IN TEXAS, 49
Tex.L.Rev. 267, 284 (1971).
6 4
1 6 U.S.C. § 470f (Supp. V, 1979).
6 5
TEX.REV.CIV.STAT.ANN. art. 6145 § 9 (1962).
6 6
S c h a t z e l , PUBLIC HISTORIC PRESERVATION IN TEXAS, 49
Tex.L.Rev. 267, 286 (1971).
6 7
I d .
AO
THE POLICE POWER, EMINENT DOMAIN, AND THE PRESERVATION
OF HISTORIC PROPERTY, 63 Col.L.Rev. 708, 724 (1963). ~
6 9
I d at 724-725.
7 0
N o t e , 23 Geo.Wash.L.Rev. 730, 733-34, 745 (1955).
7 1
TEX.REV.CIV.STAT.ANN. art. 5421 Q (Supp. 1969).
7 2
S c h a t z e l , PUBLIC HISTORIC PRESERVATION IN TEXAS, 49
Tex.L.Rev. 267, 283 (1971).
7 3
TEX.ATT'Y GEN. OP. No. M-219 (1968).

5 0
" i d .
7 5
B e n b o w , Public Use as a Limitation on the Power of
Eminent Domain in~Texas, 44 Tex.L.Rev. 1499, 1504 (1966).
7 6
TEX.REV.CIV.STAT, art. 7150 § 22a(3) (Supp. 1974).
7 7
TEX.CONST, art. VIII, §§ 1, 2.
7 8
T E X . R E V . C I V . S T A T . A N N . a r t . 7 1 5 0 , § 2 2 ( 3 ) ( S U P P . 1 9 6 9 ) .
7 9
R i v e r Oaks Garden Club v. City of Houston, 370 S.W.2d
S51, 854 (Tex. 1963).
80
Interview with Wayne Bell, Architectural Restoration
Consultant, Texas State Historical Survey Committee, in Austin,
Feb. 11, 1970.
81
National Trust for Hist. Pres., Tax Incentives for Hist
Pres., p. 17 (1980) . o 9
I.R.C. § 48(g)(3)(A) (1982).
8 3
I . R . C . § 48(g)(3)(B) (1982) .
8 4
I . R . C . § 48(q)(1)(A) (1982).
8 5
I . R . C . § 46(a)(F)(i) (1982).
8 6
I . R . C . § 46(a)(F)(iii) (1982).
3 7
I . R . C . § 48(q)(1)(A)(iii) (1982).
8 8
I . R . C . § 48(q)(2)(B)(iii) (1982).
RQ
I.R.C. § 48(q)(2)(B)(ii) (1982).
9 0
I . R . C . § 48(q)(1)(D) (1982) .
9 1
I . R . C . § 48(q)(1)(B) (1982).
Q ?
I.R.C. § 48(g) (transitional rule) (1982).
9 3
TEX.REV.CIV.STAT.ANN. art. 6145.1 (Supp. 1969).
9 4
I d .
9 5
I d .
9 6
I d .
9 7
S c h a t z e l , PUBLIC HISTORIC PRESERVATION IN TEXAS, 49
Tex.L.Rev. 267, 303 (1971).
I> ' JM J

5 1
9 8
I d .
99
Id at 304.
1 0 0
1 6 U.S.C. § 461 (1970).
1 0 1
J . MORRISON, HISTORIC PRESERVATION LAW 2-3 (1965).
1 0 2
1 6 0 U.S. 663 (1896).
1 0 3
2 7 8 U.S. 191 (1929).
1 0 4
I d at 193.
1 0 5
1 9 4 Md. 275, 71 A.2d 12 (1950).
1 0 6
2 2 3 La. 14, 64 So.2d 798 (1953).
1 0 7
6 4 So.2d at 802-803.
L 0 8
3 3 § Mass. 773, 128 N.E.2d 557 (1955).
I 0 9
1 2 8 N.E.2d at 562.
1 1 0
1 1 9 Ohio App.67, 192 N.E.2d 74 (1963).
U 1
7 3 N.M.410, 389 P.2d 13 (1964).
112
105 N.H. 481, 202 A.2d 232 (1964).
1 1 3
S a n t e Fe v. Gamble, 389 P.2d 13, 18 (1964).
U 4
5 1 Misc.2d 556, 273 N.Y.S.2d 848 (1966).
1 1 5
2 9 A.D.2d 376, 288 N.Y.S.2d 314 (1968).
L 1 6 l l l Ill.App.2d 430, 250 N.E.2d 282 (1969).
U 7
2 5 0 N.E.2d at 288.
1 1 8
1 1 1 Ill.App.2d 444, 250 N.E.2d 289 (1969).
1 1 9
3 0 Cal.App.3d 416, 106 Cal.Rptr. 333 (1973).
1 2 0
9 2 R.I. 173, 167 A.2d 546 (1961).
1 2 1
5 0 6 S.W.2d 654 (Tex.Civ.App. 1974).
1 2 2
N O . CA-3-76-1080-G (N.D.Tex. May 25, 1978).
1 2 3
4 9 7 F.2d 252 (4th Cir. 1974).
1 2 4
3 5 N.Y.2d 121, 316 N.E.2d 305, 359 N.Y.S.2d 7 (1974).

"id.
52
516 F.2d 1051 (5th Cir.), cert, denied, 426 U.S. 905
(1975).
1 2 6
5 1 6 F.2d 1051, 1066.
1 2 7
I d .
1 2 3
B e r m a n v. Parker, 348 U.S. 26 (1954).
1 2 9
I d at 33.
1 3 0
5 5 3 S.W.2d 536 (Ho.Ct.App. 1977).
1
J
No. 41316 (Mo.Ct.App.Apr. 29, 1980).
1 3 2
5 5 4 S.W.2d 924 (Tex. 1977).
1 3 3
4 4 7 F. Supp. 741 (N.D. Ga. 1978). l 3 4
6 3 A.D.2d 112, 416 N.Y.S.2d 246 (1979).
1 3 5
2 9 8 N.C. 207, 258 S.E.2d 444 (1979).
1 3 6
N O . 216 (Mass.App.Div. Jan. 10, 1980).
1 3 7
1980).
M i s c . No. 4005 (Frederick County Cir. Ct., Md Feb. 5,
1 3 8
R e e d , NOTES, 44 Notre Dame Lawyer 379, 408 (1969).
1 1 9
Barret v. State, 220 N.Y. 423, 423, 116 N.E. 99, 101
(1917).
'"•J'Jt 1 £