Responding to Misleading Arguments Against Local Landmark Laws

By David Brown posted 07-26-2016 11:13


The headline of a recent article in Market Urbanism, a blog promoting a “free-market approach to urban land use,” caught the attention of preservationists across the country: “The Cato Institute Goes After Arbitrary Historic Preservation Laws.”

According to the article, a group of urban economists—led by Triumph of the City author Ed Glaeser and the Cato Institute, a D.C.-based libertarian research and policy organization—have concluded that preservation laws discourage development in neighborhoods where redevelopment would be the most valuable. The article, written by a Cato Institute research assistant, suggests that a petition for review recently filed in the U.S. Supreme Court provides an opportunity for the Court to clarify whether “historic preservation regulations are or are not arbitrary.” The petition was accompanied by a brief from the Cato Institute claiming that excessive application of local historic preservation laws acts as a “black death” (yes, that’s a direct quote) to affordable housing and new construction. Neither the blog nor the Cato Institute’s brief includes any mention of Penn Central Transportation Co. v. City of New York, the definitive Supreme Court decision upholding the application of New York City’s Landmarks Preservation Law as far back as 1978.

The case in question, Stahl York Co. v. City of New York, concerns the latest attempt by a major New York real estate developer to overturn a decision of the New York City Landmarks Preservation Commission (LPC) to deny a demolition permit for two historic buildings in the First Avenue Estate apartment complex, which was designated in 2006. The developer, arguing that it was entitled to demolish the buildings on hardship grounds, filed two lawsuits against the city in 2014—one on takings grounds in state court and another on due process grounds in federal court; it lost both cases. (The state court case was summarized by National Trust attorney Will Cook in Forum in March.) The National Trust  participated in the case as amicus curiae (friend of the court), joining a number of state and local preservation organizations and several elected officials.

The court filing, and the hyperbolic position taken by the Cato Institute in its brief and repeated by its staffer in his blog post, should not alarm the preservation community. The earlier court rulings upholding the LPC’s decision were sound, and there appears to be very little chance that the Supreme Court will actually hear the case. In the unlikely event that the Court grants the petition for review, the Cato Institute’s position is so extreme and exaggerated (“black death”? Seriously?) that it hardly presents a credible analysis of the impacts of local preservation laws. Should the case go forward, the National Trust and our partners will be prepared to seek amicus status to fully inform the Court of the value of preservation laws in a credible and reasoned way. In fact, the National Trust recently filed an amicus brief—on the opposite side of the Cato Institute—in a takings case in the U.S. Supreme Court.

The extremist positions of the Cato Institute and other detractors of local preservation laws should, of course, not be discounted entirely. It should be refuted with sound logic and research demonstrating that preservation provides strong economic and social benefits and that it is, in fact, not incompatible with either affordable housing or new development. Through our Preservation Green Lab and legal advocacy work and in partnership with statewide and local preservation organizations across the country, the National Trust has provided, and will continue to provide a reasoned response to anti-preservation rhetoric. 

As a side note, many of the issues surrounding historic preservation in Manhattan came up during a recent discussion between Ed Glaser and Donovan Rypkema of Place Economics at a forum hosted by The New York Times. I encourage you to watch the video to learn more about the issues at stake.

As this moves forward, we will use Forum to keep our partners informed.


David J. Brown is the executive vice president and chief preservation officer at the National Trust for Historic Preservation.

#Advocacy #Legal #Economics #takings

Get Connected

Discuss this blog post and more on Forum’s new online community. Sign up now.