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Navigating the Tension Between Preservation and Development Pressure: Cities’ Imperative to Save Independent Music Landmarks While Simultaneously Providing for Growth

Posted by on Tuesday, November 28, 2023 in Notes, Volume 26, Volume 26, Issue 1.

Mary-Michael Robertson | 26 Vand. J. Ent. & Tech. L. 211 (2023)

While cities can use their power to enact zoning ordinances and create historic preservation districts, these preservation ordinances vary widely across the United States, from allowing almost any type of development to strictly limiting any new development that does not match existing height, density, and use patterns. Within this framework, state legislatures have often limited the types of regulatory actions cities may take, as cities are merely political subdivisions of the state. Some states—known as “Dillon’s Rule” states—restrict cities from taking novel legislative approaches to existing policy issues, such as affordable housing, unless those powers are expressly provided to the municipalities by the state legislature. “Home rule” states, on the other hand, grant broad legislative authority to cities to act on any local issues not preempted or foreclosed by the state legislature. The current affordable housing and homelessness crises in cities across the United States cause some scholars to argue against traditional historic preservation broadly, as it often results in overinclusive or unnecessary preservation that hinders efforts to develop more densely.

In fast-growing places like Nashville, Tennessee, with strong music and entertainment scenes, there is a tension between preserving notable music landmarks and the pressure to develop housing in higher densities. These cities need the power and means to generate innovative methods of determining which sites to preserve while upzoning surrounding areas. Cities tend to over-prioritize either preservation or new development without creating a logical method for preserving only those sites with continued relevance and use while facilitating new development on other sites. Where applicable, states should legislate to make it easier for Dillon’s Rule and partial or limited home rule cities to create innovative preservation schemes prioritizing sites of importance without preserving entire swaths of neighborhoods or districts unnecessarily and for aesthetic reasons alone. Cities should use existing means to develop zoning schemes with a more individual site analysis approach, allowing for the preservation of individual buildings while increasing density around them with incentives for housing development.

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