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Preserving Public Interests and Property Rights 

06-10-2019 14:53

The property-rights controversy at Antietam was launched with gusto on June 12, 1989, when the Advisory Council on Historic Preservation paid a visit to the Antietam National Battlefield in Washington County, Maryland. Antietam National Battlefield was established in 1890 by an act of Congress to commemorate the ferocious clash between the armies of the North and South that began at dawn on September 17, 1862, in the Valley of Antietam Creek. The day proved to be the bloodiest of the war: By day's end 23,110 men and boys lay dead or wounded.

Historical sources estimate that the area on which fighting took place encompassed roughly 8,000 acres. The congressionally authorized boundary encompasses 3,250 acres-1,046 owned in fee by the federal government, 700 acres privately owned, and 1,434 acres in private ownership circumscribed by scenic easements held by the Department of the Interior.

Now, more than 130 years after the battle that wrote the tiny town of Sharpsburg into history books, Antietam finds itself at the forefront of a preservation controversy. A philosophical dispute over how to preserve the historic rural context of Antietam-which is seen as threatened by residential development has polarized the community, and at times the controversy has become so vociferous that the press has dubbed it "the second Battle of Antietam." This article does not present the entire preservation story of Antietam; only the part that relates to a strategy to resolve conflicts between preservation and property rights. Many individuals and organizations have contributed significantly to preserving Antietam.

Private landowners have long constituted one of the uncelebrated groups protecting Antietam's rich history. Thanks to limited development pressure in the past the region is, in fact, so well preserved that some historians describe it as a time-capsule battlefield. In contrast to Gettysburg, Fredericksburg, and many others, Antietam remains relatively unchanged from the time of the war. Visitors can walk the fields imagining the events of the battle unfolding around them without the distractions of fast-food franchises, observation towers, or other modem structures at the borders. The historic town of Sharpsburg retains much of its historic integrity, although there are a few minor intrusions.

Despite the good intentions of most of Antietam's landowners, however, the specter of suburban sprawl from the Washington-Baltimore metropolitan area has thrust the community of Sharpsburg, an incorporated town of 900 residents, into the national limelight. In 1989 and 1990 the National Trust for Historic Preservation listed Antietam on its list of America's Eleven Most Endangered Historic Places. The area is endangered because local agricultural zoning permits densities of one residence per acre and a long list of land uses that could prove to be incompatible with the historical scene. Farms west of the battlefield are being subdivided and developed for high-priced homes located on prominent hilltops or behind stone fences built prior to the Battle of Antietam.


When members of the Advisory Council arrived at Antietam's visitors' center they were greeted by a demonstration of placard-carrying citizens, a long line of farmers on tractors bearing signs through the parking lot, and representatives of the media. Sharpsburg residents and owners of farms in and around the battlefield had organized under the name of Save Historic Antietam with Responsible Policies (SHARP) and had enlisted the support of Charles Cushman, the executive director of the National Inholders Association1, to convey their opposition to certain proposals put forth by the county-appointed South County Citizens Advisory Committee and to a new management plan under development by the NPS for the battlefield.

Prompted by public controversy over the commercial rezoning of the portion of historic Grove Farm where President Lincoln visited wounded Union troops shortly after the battle, Washington County established the citizens advisory committee following discussions with Maryland Governor William Donald Schaefer, an ardent advocate of Civil War site preservation. The committee's members included representatives of the Department of State Planning, the NPS, Washington County's planning commission and historic district commission, the farm bureau, the Hagerstown Civil War Round Table, the Greater Hagerstown Board of Realtors, the Town of Sharpsburg, and two members at large from the southern Washington County area. The group was asked by the county commissioners to develop a strategy by which to prevent incompatible development on the private lands surrounding the battlefield and to explore the potential of tourism development. Meeting regularly for a year, the committee evaluated several options for protecting the land visible from the battlefield, including:

  • the downzoning of certain farmland within proximity to the battlefield to protect agricultural uses and views,
  • the establishment of historic-overlay zoning requiring design review of new structures along the approaches to the battlefield,
  • the placement of timbering restrictions on a prominent topographic feature near the battlefield, Red Hill, and
  • efforts to increase tourism in the Sharpsburg area as an alternative to economic development that could damage the historic scene of the Civil War conflict.

Local opposition to these proposals centered on the reduction of allowable zoning density adjacent to the battlefield from one home per acre to one home per three acres, the establishment of a historic-overlay district, and the tourism recommendations of a consultant. The state had engaged a consulting firm to study the demand for commercial recreation facilities in south Washington County. (Although the study determined a need for a Civil War/Heritage convention center complete with shops for tourists and restaurants and recommended a preferable siting "north of and visually buffered from the battlefield," the recommendations of this study were never adopted because few people on the committee or within the community supported intense tourism development near Sharpsburg.

NPS plans to update the battlefield's general management plan, which included alternatives to expand the battlefield boundaries, were also of' concern to some of the demonstrators. Key properties within and beyond the federal boundary had recently been purchased by The Conservation Fund with Richard King Mellon Foundation funds, and were intended to be donated to the NPS2, raising the possibility that a major boundary expansion was planned.

Since that demonstration Washington County commissioners have rejected proposals to downzone agricultural land, have enacted a historic-overlay zoning district, 'and have adopted limited protection for trees on Red Hill. The NPS has completed the general management plan for the battlefield that calls for expansion of the boundary and a return of part of the battlefield to its appearance during the Civil War.

The property-rights movement at Antietam is similar to advocacy planning movements of the 1960s and 1970s that influenced city planning and urban development. Both movements attempted to empower the "little-guy" or the disadvantaged citizen and protect them from government programs administered from the top down.

In fact, the historic preservation movement itself gained maturity and legal status in the 1960s through grassroots citizen efforts to protect individual property owners and local community interests from government plans to destroy historic resources or from actions of developers facilitated or encouraged by government. The core support for SHARP's efforts at Antietam was based on many of the same concerns for fairness, control over change, due process, and community quality that were at the heart of support for the earlier advocacy planning and preservation movements.


Law professor Joseph Sax has written that "the theoretical right to use your land as you wish, provided only that you do no direct harm to others, has given way in practice to a recognition that the public itself has rights, in its cultural heritage as well as in the protection of its landscape and natural resources."3 How the public exercises these rights in a rural farming community, however, may be different than it is in urban or suburban areas. The approach evolving at Antietam is a pragmatic one, tailored to the economics, politics, and public attitudes of this unique community.

Many believe that local governments need to take a stronger role in guiding growth to appropriate areas for development and away from farmland or open space that serves important economic values and preserves community character. Local governments invite eventual conflicts over land use when they zone all farmland to accommodate residential subdivisions or other nonfarm uses. Development rights established by government can be taken away by changing zoning and land-use regulations to prevent uses that compete with agriculture, as several counties in Maryland have done. However, in rural communities like Washington County it is not easy to lower property-owner expectations of the value of their land.

Downzoning for farmland preservation tends to be more achievable in communities in transition-e.g., predominantly rural communities that change to predominantly residential or bedroom communities on the edge of urbanized areas. In such areas commuters often gain majority representation on elected boards to "raise the drawbridge" after they have moved in, slowing the rate of change through enactment of more restrictive ordinances. In predominantly rural communities preservation of farmland or historic landscapes through zoning or regulation is more difficult.

Any successful rural-preservation strategy will need to carefully diagnose the political and economic climates for success using alternative methods. Each community is different. Preservationists should not try to import methods or approaches that may not match the local situation. Overlay zoning, downzoning, historic-district regulation, or National Register nominations may not be implementable in some rural areas and may occasionally cause a community backlash that will defeat efforts to try other means. For example, the Brandy Station, Virginia, experience has had a backlash that may affect not only the ultimate preservation of this Civil War site, but all future preservation efforts in Virginia. The public backlash resulted in legislation by Virginia's General Assembly to nullify the state's designation of the Brandy Station historic district and require that future designations have the support of a majority of the property owners.


Most of the land around Sharpsburg has been protected for more than 130 years by private property owners, aided until the mid1980s by stagnant economic conditions and distance from major population centers. Many of these farmers feel a sense of pride for having preserved the farmland intact with minimal physical change from the time of the war. They share the goals of preservationists and the government to keep the Sharpsburg area as it is, and oppose major new development in the area. But they also share a sense of frustration over the increasing national attention on Civil War battlefield preservation and the inferences in some national media that these families are not good stewards of their historic properties.

Because most area farmers do not have alternate sources of income, the economic value of their land is their primary asset. The fair market value of their land is often the collateral for mortgage loans used for new agricultural buildings or home improvements, farm implements, college educations for their children, or, in years of drought or poor farm-product markets, the basic expenses needed to continue farming. Many of these farmers, by necessity, consider the economic value of their farms their only means of retirement. This value is directly influenced by zoning or other land-use restrictions.

Faced with mandatory zoning statutes, seen as an uncompensated loss of equity in their land, some property owners feel compelled to oppose preservation measures in order to protect their single largest investment-their land. They may appreciate history, but may not believe they can afford it if this means sacrificing the value of their primary investment.

Preservation and property rights do not have to be mutually exclusive of each other. To the contrary; they are compatible when landowner interests are respected, when their participation in the process is encouraged, and when possible, they are compensated for the property rights they choose to relinquish.


In early 1989, following the endeavors of the Save Historic Antietam Foundation (SHAF), The Conservation Fund, the county's agricultural easement program, and other local preservation groups, the Maryland Environmental Trust (MET) became involved in preserving the land around Antietam through the Rural Historic Village Protection Program, funded by a Critical Issues Fund (ClF) grant from the National Trust for Historic Preservation.4 This was a collaborative interagency program designed to protect farmland and rural open space surrounding ten small historic villages in Maryland with donated or purchased conservation easements. It offered a menu of voluntary land-conservation techniques to property owners around each village-a menu based on Maryland's three highly successful state-sponsored easement programs: the MET, the Maryland Agricultural Land Preservation Foundation and the Maryland Historical Trust. Because the state easement programs have protected more than 140,000 acres of farmland and open space though voluntary easements, with little or no public opposition, easements became the preferred preservation method for the program. The agencies steered clear of the heated controversy over the historic-overlay zone in order to maintain good relations with the landowners.

Advocating voluntary measures to preserve the historic scene, SHARP came up with its own preservation plan in 1989, garnering the signatures of the owners of a dozen properties surrounding the battlefield who pledged to sell perpetual easements on 2,000 acres of farmland to the state at a cost of $4 per acre.

In January 1990 Governor Schaefer met at Antietam with local community leaders, property owners, and the NPS and offered to enhance the state's budget for purchasing easements around the battlefield by $500,000. Schaefer challenged the local government and private sector to match this amount. He tried to dispel the conspiracy theories of state support for major tourist facilities while praising the county's efforts to control incompatible development around the battlefield and the formation of a new local land trust, the Washington County Land Quality Foundation. Unfortunately, before significant progress could be made on negotiating easement purchases the state and the nation experienced a major recession. More than $120 million in Program Open Space funds from real estate transfer-tax revenues (the source of the governor's pledge), and all of the state's funds for the purchase of agricultural easements by the Maryland Agricultural Land Preservation Foundation, were diverted to balance the general fund budget, a state constitutional requirement. In spite of the state's funding situation, significant progress toward the goal of preserving the Antietam area was made in the three years following the governor's visit:

  • Washington County enacted new property-tax incentives for farmers to enroll their property in agricultural preservation districts, and obtained state certification for their county-run preservation program, allowing the county to retain seventy-five percent of the agricultural transfer taxes from the county to purchase easements;
  • Several property owners in the Sharpsburg area enrolled in agricultural preservation districts, limiting the use of their land to agriculture with ten-year deed covenants;
  • The Save Historic Antietam Foundation, a Civil War advocacy group and land trust with a track record of persuading property owners to sell easements to the NPS and of protecting endangered structures in and fighting commercial rezoning near Sharpsburg, acquired forty acres of the historic Grove Farm west of Sharpsburg with $100,000 in grants from the MET and The Civil War Trust and smaller contributions from the Association for the Preservation of Civil War Sites, Maryland's Civil War Roundtable, and individuals;
  • The historic "Cornfield" and "West Woods" totaling 296 acres were donated to the battlefield by the Richard King Mellon Foundation assisted by The Conservation Fund-a gift that exceeded $1 million; and
  • A new multicounty land trust, the Western Maryland Conservancy, was formed with the assistance of the MET and a grant of $20,000 from the Maryland Historical Trust and the J.M. Kaplan Fund to assist in soliciting easements around Sharpsburg.


Following five years of contention over how Antietam will be preserved, a solution is emerging that could put an end to the raging public debate. In January 1993 property-rights advocates convened a group of Antietam's landowners to meet with representatives of the state and the Civil War Trust to discuss purchase of their development rights under an innovative funding mechanism. This meeting represented the first real response to SHARP's early efforts to enlist property owners around the battlefield to sell easements. It ended with several farmers speaking in favor of selling easements to the state on a voluntary basis, keeping the land in private ownership. No one objected to the strategy.

The Intennodal Surface Transportation Efficiency Act of 1991 (ISTEA) authorizes federal surface transportation assistance for a six-year period that began October 1, 1991. One of the legislation's principal features is the Transportation Enhancement Program under which each state is required to use ten percent of its federal transportation funds on such enhancement projects as greenways, archaeological planning and research, roadside beautification, scenic easements, and historic preservation, among others. At Antietam, enhancement funds will be matched with funds from the Department of Natural Resources' (DNR) Program Open Space and the private sector to purchase conservation easements on private lands. The easements will be crafted to restrict development to preserve the historic agricultural scene.

In February 1992, shortly after the ISTEA was enacted. Governor Schaefer established by executive order a Maryland Civil War Heritage Commission, the first of its kind in the nation. The commission is chaired by Maryland Secretary of Transportation O. James Lighthizer, a former Anne Arundel County Executive and former adjunct professor of Civil War history. Secretary Torrey Brown of the Department of Natural Resources, State Historic Preservation Officer Rodney Little, and representatives of the Maryland General Assembly, local government, and several Civil War preservation groups are members of the Commission. A committee was established to pursue preservation alternatives around the Antietam and Monocacy battlefields, building on the experience of the MET's Rural Historic Village Protection program. Representatives of this committee, local land trusts, and various Civil War experts identified properties outside of the Antietam National Battlefield boundary that were of the highest significance because of the activities that took place on or near them in 1862, the degree to which they are threatened by private incompatible development, or the potential impact of new development on the overall character of Sharpsburg if not protected.

In fiscal year 1993 the Maryland General Assembly began restoring funding for Program Open Space. In fiscal year 1994, $20.9 million will be available for state land and easement acquisition through a combination of real estate transfer -tax revenues and bond authority. Based on the committee's list of properties, The Civil War Trust pledged to participate in matching state funds with private and corporate contributions and became a full partner in the commission's fund-raising efforts.

The first jointly funded easement purchases were expected to be completed this summer. Approximately 835 acres of land is targeted for protection in the first round of ISTEA/POS projects. Another 500 to 1,000 acres of land will be submitted for consideration in future cycles, assuming success in the first round and willing sellers.

The first of the ISTEA-assisted acquisitions, a five-acre parcel of Grove Farm, has been purchased by the State Highway Administration. The parcel is contiguous to the forty-acre parcel of land acquired by the Save Historic Antietam Foundation and immediately in front of Mount Airy, the former headquarters of Major General Fitz-John Porter and later a field hospital. This farm was used by President Lincoln for his meeting with General George McClellan on October 3, 1862. The property was purchased with the assistance of The Conservation Fund from the local American Legion chapter, wpich had planned to construct a new legion hall on the site. It is also adjacent to the site that sparked the controversy that led to Washington County's intergovernmental effort to control development around the battlefield, the rezoning for commercial use of another subdivided part of Grove Fann challenged b SHAF unsuccessfully in court. This commercial site is on the ISTEA/POS acquisition priority list.


The purchase of development rights to preserve historic sites, agricultural land, or other natural resources in rural areas may provide a common ground for cooperation between property rights and historic preservation advocates in the 1990s. Some will argue that too much land needs to be preserved for Civil War site protection and' interpretation to purchase the development rights on all of it. There just isn't enough money, they will say. Others will argue that governments don't need to buy development rights when they can simply zone them away. Still others are philosophically opposed to purchasing development rights for preservation because it would set a precedent for compensatory zoning that could inhibit future public efforts to limit development through the police power.

Actual experience in the use of easements would seem to refute some of the arguments against easements as a primary preservation strategy if practical results weigh more than lofty arguments of philosophy. The purchase of conservation easements on private land has a long and successful track record as a preservation strategy. Maryland has the most successful PDR program in the nation for preserving agricultural land. The Maryland Agricultural Land Preservation Foundation has protected approximately 100,000 acres of prime farmland with perpetual easements for a total cost of $98.6 million, or less than $1,000 per acre. The foundation has temporarily protected more than 131,000 additional acres of land in voluntary agricultural-district agreements preventing development for five or more years. Participating in an agricultural district is a prerequisite for offering agricultural easements for sale to the state.

Additionally, the MET has preserved roughly 40,000 acres of natural, scenic, historical, and agricultural land by receiving conservation easements donated by private property owners who want to see their land preserved in perpetuity. These donors receive income and estate- and property-tax benefits under federal and state laws encouraging land conservation. The Maryland Historical Trust has preserved more than 7,000 acres of land with easements.

Several other states-including the following-have PDR or conservation easement donation programs that result in permanent land preservation:5

Even more impressive is the extensive federal use of purchased conservation easements for protecting natural areas and wildlife habitat. This demonstrates that nationally significant resources can be protected on a large scale with easements-a potential model for Civil War site preservation. The Migratory Bird Conservation Fund and The North American Waterfowl Management Plan are two prime examples. With funds from the sale of duck stamps, import duties on arms and ammunition, wildlife refuge admission permits, rights-of-way fees, and direct federal appropriations through the Department of the Interior, these programs have preserved more than 10.6 million acres of migratory bird and waterfowl production areas in the lower United States at a cost of $446.3 million. The U.S. Fish and Wildlife Service has protected more than one million acres of habitat in North Dakota alone, largely through purchased conservation easements.

Congress has recently spent more than $130 million to prevent the development of one 540-acre parcel at the Manassas National Battlefield in Virginia. This action demonstrated the commitment of Congress to the preservation of important Civil War sites that are threatened. At the current rate that conservation easements are being purchased for protecting prime agricultural land in Maryland, this amount of money could preserve more than 100,000 acres of threatened Civil War sites.

Maryland land prices are probably equal to or higher than the average land costs in and around the 380 "major" Civil War conflict sites identified by the editors of the Official Records of the Civil War. The Shenandoah Valley sites in Virginia comprise fifteen battlefields totaling 85,909 acres according to a "Facts and Figures" memorandum presented to a March 4, 1992, NPS workshop.

If easement prices in Maryland were com arable to those in the Shenandoah Valley all of these 85,909 acres and more hypothetically could be protected in perpetuity for the same price as the one Manassas property the United States acquired from Til Hazel. And it could be accomplished with minimum property-owner or local-government opposition or litigation expense.


Conservation easement purchases or donations have many advantages over other preservation techniques in rural areas, especially for Civil War site preservation. In granting an easement the owner retains all of his/her interest in the property except such forfeited rights as subdivision, demolition or alteration of existing historic structures, construction of incompatible structures, etc.-that are set forth in the easement contract. The restrictions become part of the deed and, therefore, bind future owners.

Purchasing easements rather than purchasing fee title to the land makes good economic sense: Easements can be purchased at lower cost, the property owner retains responsibility for the land's upkeep, the land stays on property-tax rolls, and remains in agricultural use. Additionally, conservation easements:

  • acknowledge and reward the conservation ethic of many private property owners, especially farmers seeking to protect their industrial base, way of life, and community;
  • provide a new source of income to the property owner, to preserve and make liquid the speculative value of their land, to reinvest in farm improvements, building rehabilitation, or other needs to continue farming, or to pay estate taxes enabling their children to inherit the farm intact;
  • are perpetual, running with the title to the land for all future owners. In contrast with the temporary nature of most land-use regulations;
  • are tailored to the conservation features of the individual property and the needs of the individual landowner;
  • can be negotiated on a voluntary basis one parcel at a time, compared to the "blanket" or uniform coverage of most land-use or historic regulations;
  • allow property to stay on the tax roles in private management, in contrast to land purchased in fee for public use that needs to be managed by government;
  • avoid conflicts with property owners over the uncertain effects of National Register listing, or perceived reductions in property values caused by uncompensated regulation of private land; and
  • are quicker than regulation, because they are typically direct willing-seller, willing-buyer transactions and do not require law changes.


The degree of enthusiasm shown by landowners at Antietam to consider selling easements on their land confirms that if there is any common ground between property-rights advocates and Civil War heritage groups in preserving battlefields, it lies in the easement approach. Ten owners of land around Antietam are currently considering easement sales to the state.

Nearly everyone sees the benefit of preserving our past; the debate is over how it will be accomplished. When we recognize the invaluable role of private landowners and seize upon the mutuality of their goals, the rural landscape that is an integral part of our Civil War battlefield legacy will be preserved for the enjoyment and enrichment of future generations.

The historic preservation movement will continue to defend the public's right to control the private use of land to ensure that rural historic resources are preserved. However, it also needs to recognize the point that private property owners are often the best stewards of historic resources. Effective preservation will be based on an understanding of and empathy for the needs and motivations of those who are primarily affected by a preservation strategy. Attempts to find common goals or a fair exchange of values will often produce longer-lasting results. We should seek to act fairly and cooperatively with property owners and with empathy for their needs.

Property-rights activists should avoid treating all who want to preserve history alike. Preservationists should also be cautious about oversimplifying the so-called property-rights movement as the "wise-use" movement. Most property owners we have worked with directly in the past five years are simply trying to maintain personal control over their own communities and assets, they are not organizing to oppose environmental regulation in general.

However, the expectation that all farmers must be free to sell their land for development when they need to retire or repay loans collateralized with the speculative value of farmland zoned for houses represents a major public-policy dilemma. It implies that all such farmland should be developable regardless of the impact on the local community or the interests of other farmers to continue farming.

In many rural communities the purchase of development rights on farmland or historic property, resulting in permanent conservation easements, may be one of the most effective ways of reaching common ground with property owners and their advocates. The states and the federal government have solid track records of protecting wildlife and agricultural resources with this technique. Congress and the new administration should provide a similar financial commitment to protecting the nation's endangered Civil War sites.

However, in the absence of federal help not every state or local community will be able to come up with the large financial resources needed to purchase all of the development rights sufficient to protect their rural or Civil War resources with easements. Some communities will continue to rely on comprehensive planning, zoning, and historic regulation if they care for their heritage. In many cases easements may not be sufficient preservation techniques in instances in which public access and historical interpretation may be needed on the property. Most private-property owners are reluctant to include public-access provisions in easement deeds or to open up their land for public interpretation activities. In these cases fee-simple acquisition is the most appropriate preservation tool.



1 Now part of the American Land Rights Association, which also includes the Multiple-Use Land Alliance.

2 January 5, 1989, letter to Patrick Noonan from William Penn Mott, Jr., National Park Service, stating" ... the Service will most gratefully accept these properties as part of our national heritage at such time as you determine to donate them for purposes of the Antietam National Battlefield."

3 Joseph L. Sax, "Property Rights and Public Benefits," in Past Meets Future, Saving America's Historic Environments, National Trust for Historic Preservation, The Preservation Press, Washington, D.C., 1992, pp. 137-144,

4  H. Grant Dehart, Rural Historic Village Protection in Maryland, National Trust for Historic Preservation, Public Policy Series, October 1990.

5 AFT Update: Officials Share Successes, Disappointments at AFT"s Fifth Annual PDR Conference, American Farmland, American Farmland Trust, Summer 1990, page 10, Washington. D.C.


Publication date: July/August 1993


Author(s):H. Grant Dehart and Jo Ann Frobouck

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