The Building That Stood in the Way
Imagine a six-story brick warehouse on the edge of a city’s downtown core. It is not architecturally spectacular. It has no famous former occupants. But it is more than a century old, sits in a neighborhood that has been home to immigrant communities for generations, and anchors a block of small businesses. A developer wants to demolish it for a mixed-use tower. The community wants it saved. Whether it survives depends not on public opinion but on a legal and administrative process that most Americans have never heard of, governed by a patchwork of federal, state, and local rules that carry enormous consequences.
This scenario plays out in cities across the country, week after week. The outcome hinges on historic preservation law, a field that is simultaneously more powerful and more limited than its name suggests.
The Foundational Law and What It Actually Does
The National Historic Preservation Act, passed by Congress in 1966, is the bedrock of American preservation policy. The law created the National Register of Historic Places, established State Historic Preservation Offices in every state and territory, and set up a federal review process known as Section 106. It was a direct response to the destruction of the previous two decades, during which urban renewal programs and highway construction had demolished thousands of buildings, often in low-income and minority neighborhoods.
What the law does not do is often as important as what it does. Listing a property on the National Register does not prevent its demolition. It does not stop a private owner from doing whatever they want with their building. What it does do is trigger a federal review process whenever a federal agency is involved, through funding, permits, or direct action, in a project that might affect a listed or eligible property. Under Section 106, federal agencies must consult with the Advisory Council on Historic Preservation and with relevant state and local offices before approving actions that could harm historic resources. They must consider alternatives. They must document what will be lost. But at the end of that process, they can still say yes to demolition.
The law is fundamentally procedural rather than prohibitive at the federal level. Its real bite comes from the friction it creates and from state and local laws that add teeth. New York City’s Landmarks Preservation Commission, created in 1965 partly in response to the demolition of the original Penn Station in 1963, can block demolition of designated landmarks outright. Chicago, New Orleans, and San Francisco have their own strong local ordinances. Many smaller cities and towns have little or nothing beyond what federal law provides.
The National Register itself has listed more than 100,000 properties, districts, and objects. These range from individual buildings to entire rural landscapes. A property can be nominated by a state historic preservation office, a federal agency, or a member of the public, but the final determination rests with the National Park Service, which administers the register under the Department of the Interior.
The Criteria and Their Consequences
To be eligible for the National Register, a property must meet at least one of four criteria: association with significant events in history, association with significant persons, distinctive architectural characteristics, or the potential to yield important historical or archaeological information. Properties must also generally be more than 50 years old, though that threshold can be waived for properties of exceptional importance.
These criteria sound straightforward. In practice, they involve substantial interpretive judgment, and that judgment has historically reflected the values of the people doing the evaluating.
For much of the 20th century, the people making those decisions were predominantly white, predominantly male, and predominantly focused on European-American architectural traditions and political history. The result was a register weighted toward grand courthouses, antebellum plantation houses, Victorian commercial blocks, and the homes of presidents and generals. The vernacular buildings of working-class communities, the sacred sites of Native American tribes, the commercial strips of Latino neighborhoods, the juke joints and shotgun houses of Black Southern communities, these were systematically underrepresented.
The National Park Service has acknowledged this pattern and has made efforts to address it through thematic studies and targeted nominations. The agency published multiple context studies intended to identify and nominate sites associated with underrepresented communities. Progress has been real but uneven. Civil rights sites, for instance, have received significant attention, and properties associated with the labor movement, LGBTQ history, and Asian American history have been nominated in growing numbers. But advocates in many communities argue that the pace remains too slow and that the nomination process remains technically demanding in ways that disadvantage communities with fewer resources.
Who Gets a Seat at the Table
Section 106 requires federal agencies to consult with a defined set of stakeholders, including State Historic Preservation Offices, the Advisory Council on Historic Preservation, Indian tribes and Native Hawaiian organizations with cultural or religious interests in the affected property, and local governments. It also requires agencies to invite participation from the public and from other parties with a demonstrated interest.
In practice, the quality of that consultation varies enormously. Large infrastructure projects with dedicated environmental review teams may engage stakeholders early and substantively. Smaller projects may treat consultation as a box-checking exercise, distributing notices to parties that have little capacity to respond meaningfully.
Tribal consultation has been a particular area of tension. Federal law requires agencies to consult with tribes on a government-to-government basis, and the National Historic Preservation Act was amended in 1992 to strengthen tribal participation and to recognize the concept of traditional cultural properties, places that may have no standing structure but that hold deep significance for a living community. But tribes frequently report that consultation is initiated too late, that the process is structured around bureaucratic timelines rather than tribal decision-making practices, and that agencies proceed with projects over tribal objections. The conflict over the Dakota Access Pipeline in 2016, which involved challenges under multiple federal statutes including Section 106, became a highly visible example of these tensions, though the legal and procedural specifics were disputed by parties on multiple sides.
Local residents who are not formally recognized stakeholders often find the process opaque. Historic preservation reviews are not typically structured as democratic votes. They are administrative proceedings, and while public comment is accepted, the weight given to that comment is at the discretion of the reviewing agency.
The Development Pressure and the Housing Dilemma
Few tensions in preservation law are more contested today than the conflict between historic designation and housing production. As housing costs have risen sharply in many American cities over the past decade, a growing body of researchers and housing advocates has argued that historic preservation regulations, particularly broad historic district designations, can constrain housing supply by limiting what can be built on or near protected properties.
The argument runs roughly as follows: when large swaths of urban neighborhoods are designated as historic districts, local review processes can delay or prevent infill development and densification. Because many of the most desirable neighborhoods in high-cost cities carry historic designations, the effect can be to lock in low-density development patterns in places where demand for housing is highest.
Research suggests a relationship between historic district designation and reduced housing production, though the strength and direction of that relationship depend heavily on local regulatory context. Some studies have found that properties in historic districts appreciate more quickly than comparable undesignated properties, raising concerns that designation can accelerate gentrification and displacement of lower-income residents even as it is sometimes justified in the name of community preservation.
Preservation advocates push back on this framing in several ways. They argue that many historic districts permit sensitive new construction and that the real barriers to housing production are zoning rules, parking minimums, and construction costs rather than preservation review. They point out that demolishing older, cheaper buildings to make way for new construction typically produces more expensive units, at least in the short term, and that older building stock serves as naturally occurring affordable housing in many cities. They also argue that blaming preservation for the housing crisis lets other, more powerful obstacles off the hook.
Both arguments contain genuine merit, and the honest answer is that the relationship between preservation and housing production is highly context-dependent. A historic district in a shrinking Rust Belt city has very different effects from one in a supply-constrained coastal metro.
Tax Incentives, Private Capital, and Unintended Outcomes
Federal law provides a significant financial tool for preservation in the form of a tax credit for the rehabilitation of certified historic structures. Property owners who undertake qualified rehabilitation work on income-producing historic properties can claim a credit against their federal tax liability. This incentive has driven billions of dollars of private investment into historic buildings since it was established, transforming vacant factories, department stores, and schools into apartments, offices, and hotels.
The credit has genuine success stories. Neglected industrial corridors in cities like Cleveland, Baltimore, and Detroit have been revitalized in part through rehabilitation tax credit projects. Buildings that might otherwise have been demolished have been preserved and returned to productive use.
But the program also has critics. Because the credit applies to income-producing properties and is structured around complex partnership financing, it has historically been most accessible to large developers with sophisticated tax equity investors. Smaller nonprofits and community development organizations have sometimes struggled to use it effectively without expensive intermediaries. The types of uses that qualify, primarily commercial and market-rate rental housing, do not always align with community needs. And the requirement that rehabilitation work meet the Secretary of the Interior’s Standards for Rehabilitation, a detailed set of federal guidelines governing how historic buildings may be altered, can increase construction costs in ways that make some projects financially marginal.
State historic tax credit programs, which exist in many but not all states, often fill gaps that the federal program leaves open, including eligibility for owner-occupied residential properties in some cases.
The Road Ahead
Historic preservation law is at an inflection point shaped by several converging pressures. The housing crisis has given new urgency to debates about whether preservation regulations serve the public interest or entrench privilege. Climate advocates have begun arguing more forcefully that preserving existing buildings is itself a climate strategy, since demolition and new construction consume enormous amounts of embodied energy and generate significant carbon emissions. This argument has given preservationists a new and powerful framing that was largely absent from earlier debates.
At the same time, the movement to broaden preservation to include a more representative range of places and stories continues to gain momentum. The Freedmen’s Bureau records digitization projects, the growing recognition of sites associated with racial violence and resistance, and renewed attention to indigenous sacred landscapes all represent an expansion of what the preservation community considers worth saving. Whether the legal and administrative apparatus can keep pace with that expanded vision remains an open question.
The fundamental tension at the heart of preservation law has not changed since 1966: the law gives communities a voice in what happens to places they value, but it does not give them a veto. Federal review creates friction, and friction can protect significant places. But it can also protect the interests of those with enough resources and organization to navigate the process, while the places valued by less powerful communities receive less attention.
The balance is also being contested at the federal level. In July 2026 the Advisory Council on Historic Preservation voted to advance a proposed rewrite of the Section 106 regulations, which would stress that the process is procedural and does not require particular preservation outcomes; the National Trust for Historic Preservation and tribal historic preservation officers have opposed the draft. Reformers on multiple fronts are pushing to change this balance: housing advocates want streamlined review processes and narrower historic district boundaries; community preservation advocates want stronger protections and more inclusive criteria; tribal nations want genuine consultation rather than procedural compliance. Reconciling these demands within a single legal framework is not a technical problem. It is a political one, and it reflects a larger argument the country continues to have about whose history counts, whose neighborhoods matter, and who gets to decide.