Forum Journal & Forum Focus

Property Rights and Historic Preservation 

12-09-2015 17:35

In recent years, few subjects have been more hotly debated, and less understood, than that of "property rights." This special issue of Forum takes a close look at property rights within the context of historic preservation and examines the implications for our movement.

What are commonly referred to as "property rights" are based on the Just Compensation Clause, or Takings Clause, of the Fifth Amendment to the Constitution, which provides ". . . nor shall private property be taken for public use without just compensation."

These twelve words have been the subject of thousands of pages of judicial decisions in hundreds of cases before the United States Supreme Court and lower courts over the course of the past century.

For historic preservation, the Takings Clause has had special significance, ever since the Supreme Court decision in the Penn Central case in 1978.1 In that landmark decision, in every sense, the high court upheld the constitutionality of municipal landmarks ordinances as a proper exercise of the police power. The Court also ruled that the application of the landmarks ordinance, which had the effect of denying a property owner the maximum profit on real estate (e.g., the building of a fifty-five-story high-rise on the air rights over the landmarked Grand Central Terminal), was not an unconstitutional taking, provided a property owner retains the reasonable economic use of the property. That opinion was authored by Justice William Brennan, one of the most influential judicial thinkers in the field of land-use law.2

Despite a vigorous dissent by then Associate Justice--now Chief Justice-- William Rehnquist, and the replacement of six of the nine members of the Penn Central Court, that decision has never been seriously challenged. It stands for the proposition that the rights incident to property ownership are not absolute, but are subject to reasonable regulation for the benefit of the community without the necessity of requiring the public to pay monetary compensation.

The courts continue to fine-tune the judicial interpretation of takings, most recently in the cases of Lucas v. South Carolina3 and Concrete Pipe v. Construction Laborers,4 decided by the Supreme Court in June 1992 and June 1993, respectively. However, debate over the proper balance between private property rights and the public interest is increasingly shifting to the political arena--within the halls of Congress and the statehouses, government agencies, city halls, and even the media and academia.

For example, in 1988 President Reagan issued a federal executive order on takings that requires a complicated takings implications analysis of all federal actions which "substantially affect" the value or use of private property, or portions thereof. This approach to takings is much broader than that developed by the Supreme Court. In 1989 Interior Secretary Donald Hodel used the Executive Takings Order to justify a decision to deny listing of the John Jay property in Rye, New York, as a National Historic Landmark. In 1992 Secretary Manuel Lujan, Jr., was influenced by property-rights arguments to revoke the eligibility of Brandy Station Battlefield in Virginia for listing in the National Register.

Since 1990 some members of Congress have attempted to codify the Executive Takings Order in federal statutes, arguing that environmental and other federal regulations are too costly and complicated for private property owners. While these efforts have so far failed to become law, the Senate this session debated yet another Private Property Rights Act, this one introduced by Senate Minority Leader Bob Dole, and it may be considered again later this session. Similar legislation is pending in the House.

Perhaps even more significantly, some thirty state legislatures have considered some form of takings analysis or private property rights legislation within the past two years, and six states have actually adopted some form of such laws. Whatever happens in Congress, the proponents of these state bills, well-organized and well-financed, are sure to launch another major offensive in the upcoming state legislative sessions across the country.

On a practical level lawyers for developers and other private property owners routinely argue unconstitutional takings to oppose the designation of historic properties or the denial of demolition permits. These arguments occasionally prevail, even when the government action in question is clearly within the holding of Penn Central, often through simple misunderstanding by city officials and their lawyers of the intricacies of takings law. On one occasion opponents of designation persuaded a state supreme court to reach a conclusion contrary to Penn Central based on its interpretation of state law on takings.5

But perhaps the most challenging issue to which preservationists must respond is the emotional appeal of property rights to elected officials. Witness the hearing held by a committee of the Virginia legislature in February 1992 on the repeal of designation of the Brandy Station Battlefield by the state division of historic resources. A respected constitutional scholar from the University of Virginia Law School carefully and lucidly explained to the lawmakers why the designation at issue was clearly supported by both the federal and state constitutions. When he had finished the legislator proposing the law overturning the designation replied, in effect, "Professor, it may be constitutional, but it ain`t right." The committee and then the entire state legislature proceeded to undo the designation. Not incidental to this result was the obvious presence of several busloads of elderly farmers and other property owners brought to the hearing by the lobbyists for the developer, wearing buttons reading "Protect Our Property Rights."

The National Trust and historic preservationists across the nation have long been among the most effective champions of private property rights. When we stop a highway, or prevent the thoughtless demolition of a cultural treasure, or work within the land-use system to advocate compatible, well designed new development, we protect a multitude of property owners whose rights are in jeopardy. We must continually explain to the public and the press how critical this citizen advocacy to protect cultural and natural resources is to American life.

During the past year preservationists and our allies in conservation and other public interest groups have worked together--in courts, in legislatures, and in the media--to counter challenges by those who would weaken our laws. I am pleased to say that the National Trust has taken a leadership role in that effort. But preservationists must do more.

We must effectively speak to the hearts and minds of millions of middle-of-the-road citizens who own property and want to protect its value. We need to play a major role in the public-policy debate in the media and academia. Perhaps most of all, we need to assure that preservation is seen as a positive and not a negative impact on private property, assuring that the regulatory process is balanced and fair.

Where possible we must support such financial incentives for property owners as tax incentives and the use of easements. The excellent article included in this issue on the preservation of the Antietam Battlefield cites an example of how that technique was instrumental in enlisting the cooperation of rural Maryland property owners who initially opposed preservation efforts.

Americans zealously guard their rights of all kinds--civil rights, voting rights, privacy rights. Property rights, too, are deeply imbedded in our national traditions. On the other side of the ledger, however, is the need for reasonable regulation to protect public health and safety, the environment, and historic resources.

In the articles that follow, Forum presents a broad range of perspectives and analysis of these critical issues within the context of historic preservation. Hopefully, they will contribute to a better understanding of how to balance the vital and often conflicting considerations of private property rights and common benefits and responsibilities--issues that will fuel public-policy debate and impact preservation for years to come.


  1. Penn Central Transportation Co. v. New York City, 438 U.S. 104 (1978).
  2. See Landmark Justice, The Influence of William J. Brennan on America`s Communities, Charles M. Haar and Jerold S. Kayden, The Preservation Press, 1989.
  3. Lucas v. South Carolina Coastal Council, 112 S.Ct. 2886 (1992).
  4. Concrete Pipe Products v. Construction Laborers Pension Trust, 113 S.Ct. 2264 (1993).
  5. In July 1991 the Pennsylvania Supreme Court held that the mere historic designation of a theater building by the City of Philadelphia, even though there was no application pending for any change in the use of the building, was an unconstitutional taking under the Pennsylvania constitution. That court later agreed to rehear the case and heard oral argument in October 1991. To date there has been no decision on the rehearing.

Publication Date: July/August 1993


Author(s):David A. Doheny

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