The Tragedy of the Commons and Local Historic Commissions

In “The Tragedy of the Commons,” Garrett Hardin argues that because the world is overpopulated, society should regulate individuals who breed freely, because in doing so, they jeopardize communal resources for their personal gain. “It is a mistake,” he writes, “to think that we can control the breeding of mankind in the long run by an appeal to conscience.” He instead proposes the use of “taxes and other coercive devices” to slow the pace of reproduction.

Applied to reproductive rights, this notion remains a radical one. However, regulating the environmental commons has become commonplace in our society in the 50 years since Hardin’s article first appeared. Modern examples include regulations on pollutants (administered by the EPA), required hiking and camping permits in certain at-risk national parks (administered by the NPS), and local historic commission regulations. The Pennsylvania Supreme Court and the Supreme Court of the United States have both decreed that local historic commissions have the right to regulate private property for public benefit, so long as that regulation does not impose an undue financial hardship. (Please see United Artists Theatre Circuit v. the City of Philadelphia & Penn Central Transportation Co. v. New York City).

The Philadelphia Historic Commission was established by the city’s Historic Preservation Ordinance, which in turn was born from Article 1, Section 27 in the Pennsylvania Constitution. This states:

“The people have a right to clean air, pure water, and to the preservation of the natural scenic, historic, and esthetic values of the environment. Pennsylvania’s natural resources are the common property of all the people, including generations to come. As trustee of these resources, the Commonwealth shall conserve and maintain them for the benefit of all the people.”

According to this text and the above judicial opinions, the exteriors of privately owned, locally designated historic properties and neighborhoods are actually a part of the “commons,” and therefore subject to governmental regulation for public benefit. In the eyes of the historic commission, a neighbor who swaps their historic wood windows for cheap vinyl substitutes has devalued not only their own home but the entire neighborhood. An appeal to the consciences of homeowners will not ensure the preservation of built heritage; as Hardin notes, too many people value personal benefits above a perceived public benefit. Incentivizing the preservation of historic buildings (through historic rehabilitation tax credits or easement donations) does provide some protection to individual buildings. However, incentives do not protect a contiguous streetscape in the same way that disincentives do. While an individual is not legally required to take advantage of a financial benefit, they cannot dodge a fine. Local historic commissions do what Hardin prescribed for the nation: they require private individuals to sacrifice a little personal freedom for the greater benefit of the public.

http://www.legis.state.pa.us/WU01/LI/LI/CT/HTM/00/00.001..HTM

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