Finding Historic Preservation in the
Constitution
Judicial Impact on Preservation
The Power
Preservation in the United States stems from three broad powers
granted under the Constitution.
The power to tax and to use the proceeds for the general welfare
The police power, which is the authority to regulate the conduct
of individuals and their use of property without compensation
for the rights they give up.
The power of eminent domain, a power to acquire, hold, manage
and dispose of property and to enter into legal agreements
allowed to private citizens, to sue and be sued.
Property rights
Property rights are a bundle of rights held in fee simple. These rights include:
1.
Right to sell
2.
Air rights
3.
Right to build
4.
Surface and ground water rights
5.
Mineral rights
6.
Right to harvest crops, trees, wildlife
Severing individual rights from fee simple produces less-than- fee simple property sales.
Revolving funds use the reservation of rights to protect property with historic value.
Court responded to finding historic preservation of
non-public buildings and memorials in the
Constitution
A. 1896 United States v Gettysburg Electric Railway. Decided that
eminent domain could be used for a national memorial. Relied on
historic association, not aesthetic criteria.
B. 1908 Welch vs. Swasey. Supreme court found height restrictions
in zoning for residential areas they were constitutional for fire and
public safety. Sidestepped whether government could regulate on the
basis of aesthetics alone.
C. 1926 Village of Euclid vs Ambler Realty Co. Zoning found
constitutional that restricted the unlimited use of property. The
mutuality of benefits [better light, less noise, etc] and burdens
imposed by these ordinances made them fair to the owners when
shared by all the owners.
More specifically preservation
D. 1953 Merritt vs Peters. City of Miami sought to bar certain size and location
of sign boards. The Supreme Court agreed that it was not questions of morals,
health or safety but that the restriction could be upheld on aesthetic grounds.
The court held “that attractiveness of a community like Miami Beach was a
prime concern of the whole people and therefore affected the welfare of all.
E. 1954 Berman vs. Parker. Government can condemn under eminent domain
property that was then resold. It is within the power of the legislature to
determine that the community should be beautiful as well as healthy, spacious
as well as clean, well balanced as well as carefully patrolled.
F. 1978 Penn Central Transportation Co. vs City of New York . The Grand
Central terminal was slated for remodeling that would have added a 500 foot
tower. ARB rejected design. Court agreed. States and Cities may enact land
use restrictions or controls to enhance the quality of life by preserving the
character and desirable aesthetic features of a city. Historic preservation is a
form of land use regulation. Owner would need to show that the taking
denied all reasonable economic use of the property.
Refining the Penn Central Precedent
What did the Penn Central decision establish
1976 The Court established factors to be looked at in examining this issue
a. The economic impact on the owner
b. Owner's "investment-backed expectations"
c. The character of the government's action
d. Whether the action authorized a physical invasion by the government.
e. The court must examine the economic value of the parcel as a whole, not merely some
distinctive aspect of it, such as air rights, that might be diminished by the regulation.
1980 the Court restated Penn Central's three-part inquiry into a two-part test:
a regulation will constitute a taking if it fails to substantially advance legitimate state
interests
b. or denies the claimant the economically viable use of his property.
1985 a court will not review a takings claim until the regulatory agency, such as a historic
preservation commission, has reached a final decision.
1987 a court considering a takings claim must look at the parcel as a whole, not just the part
of the property that was regulated.
Going too far
Lucas v. South Carolina Coastal Council
The case involved the application of state coastal zone regulations to an
unimproved beach front lot that prevented the owner from building a house.
a. The Court held that where the application of a regulation denies the property
owner all economically viable use of his or her property, the regulation would
constitute a taking unless there was a basis for the regulation in underlying state
nuisance law.
In other cases, the Supreme Court has limited the manner in which local
governments may require monetary or financial contributions from property
owners requesting a permit.
It has held that the exaction must bear a proportional relationship to the requested
permit itself, and that if the local government attempts to impose an exaction
that is more than proportional to the impact of the development, the regulation
may result in a taking under the Fifth Amendment.
What areas of law seem likely to adversely
impact preservation
Exceeds proper bounds of government
1. Excess can be general (an improper subject of regulation)
2. Excess in particulars (an improper application of law)
Does legislation advance a legitimate state interest?
1. This has been very difficult to establish a standard, that does not open up
a "slippery slope" of applying the standard.
Takings issue revisited.
1. no right of further development standard.
2. However, unlikely that the courts would force an owner to retain a
property which is not able to meet the mission of the organization. Sax
means here that the owner prior to the establishment of the regulation. A
company could not buy an historic property, declare it insufficient for its
uses and then destroy it, in violation of a local ordinance.
St. Bartholomew's vs New York Landmarks Preservation
Commission (1990). Supreme Court refused to hear.
City of Boerne V. `Flores
Separation of Church and State
The Archbishop of San Antonio sued local zoning authorities for
violating his rights under the 1993 Religious Freedom Restoration Act
(RFRA).
More recent judicial view of the separation of powers of government
The "congruence and proportionality" requirement. There must be a
similarity likeness and a balanced parallel between the injury to be
prevented or remedied and the means adopted.
Under RFRA, an otherwise neutral state law—such as zoning, or historic
preservation ordinances—needed to be scrutinized if its enforcement
involved a religious group or individual. Therefore, by declaring
RFRA unconstitutional, the ability of the states to establish and
maintain historic preservation ordinances was made easier
Separation of Church and State
Constitutionality of the Religious Freedom Restoration Act of 1993.
What is Congress's power to enforce the Fourteenth amendment?
Congress’ power under Section 5 extends only to enforcing the
Fourteenth Amendment.
Legislation which deters or remedies its constitutional violations can
fall within the suite of Congress’ enforcement power.
However, Congress does not have the power to decree the substance of
the Fourteenth Amendment’s restrictions on the states.
While the line between measures that remedy and prevent
unconstitutional actions, and measures that make substantive change
in the governing law is not easy to determine, and Congress must have
a wide latitude in determining where it lies.
The current court has insisted that the distinction exists and it must be
observed.
It must be congruent in proportionality between the injury to be
prevented or remedied in the means adopted to that end.
Separation of Church and State
The Fourteenth Amendment’s history and our case will confirm the remedial
rather than substantive nature of the Enforcement Clause.
RFRA is not a proper exercise of Congress’ remedial or preventive power.
In this regard, a comparison between RFRA and the Voting Rights Act is
instructive.
In contrast to the record which confronted Congress and the judiciary in the
Voting Rights cases, RFRA’s legislative record lacks examples of modern
influences of generally applicable laws passed because of religious bigotry.
Moreover, RFRA’s coverage is sweeping.
It applies to every level of government and to all rules regardless of subject
matter.
It's requirement of "least restrictive means" compelling governmental interest
test is the most demanding known to the constitutional law.
This is a considerable congressional intrusion into the states' traditional
prerogative and general authority to regulate for the health and welfare of
their citizens.