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The Property Rights Debate: A Preservationist's Guide 

12-09-2015 17:35

One far-reaching impact of last November`s election has been its effect on the strident "property rights" debate that is gripping the country. Senators Dole and Gramm are allies in pushing their Omnibus Property Rights Act, and the House has passed legislation mandating compensation for a twenty percent reduction in property value resulting from federal regulation.

The states have also been active. Arizona voters considered the issue last fall in the first public referendum on state "takings" legislation, Proposition 300. Despite the state`s conservatism, they resoundingly defeated the proposal, which mandated a takings impact analysis for any pertinent state regulation. The electorate apparently foresaw a costly and unnecessary bureaucracy had the proposal passed.

A few months earlier, in June 1994, the Supreme Court weighed in, issuing its decision in Dolan v. City of Tigard, which holds that a city may not add a condition to a building permit unless there is "rough proportionality" between the impact of the new construction and the condition being imposed. Justice Rehnquist explained, "We see no reason why the takings clause of the Fifth Amendment, as much a part of the Bill of Rights as the First Amendment or Fourth Amendment, should be relegated to the status of a poor relation."

Planners, local officials, and environmental activists feel under siege from all directions. What`s going on? Is there a genuine crisis in private property that has led to all this attention? Or is it all just the work of a nefarious and well-financed cabal of right-wing nuts? Does the property rights movement bode disaster for environmental protection and land use planning? And what about historic preservation? How should preservationists react: try to hide from the attack, hoping that our popularity with traditionally Republican constituencies will protect us, or stand shoulder to shoulder with our brothers and sisters in the Sierra Club?

The reality is that the property rights movement is cause for serious concern. Many bills being considered at both federal and state levels are ill considered and poorly drafted and represent a serious misconstruction of what the Constitution and case law say about balancing private rights and public needs. But the self-styled "wise use" movement is dismissed too often as a wacky conglomeration of western farmers, survivalists, religious zealots, and anti-environmentalists. The attractiveness of their message to a mainstream audience has surprising strength. In fact, a major reason for the often positive reaction to the call for additional property rights protections is that there is truth to the criticism that government sometimes flagrantly disregards private property rights.

Anyone who deals routinely with land development is likely to have encountered a local official with the attitude that constitutional and statutory restrictions don`t really apply to him or her and that it is perfectly acceptable to place demands on a land owner that are legally insupportable. It happens when a city requires a "percent for the arts" in a private development without attempting to justify the reasonableness of its demands. It happens when a property owner is asked to "dedicate" a portion of his or her land to street widening in an amount far in excess of what the new project requires.

Recognizing that the lament of the overregulated property owner has some validity is the first step toward figuring out how the historic preservation community should respond and where the movement should position itself in the property rights debate. The second step is analyzing the nearly unique political position occupied by historic preservation advocates, the reasons for that position, and the ways we can capitalize on it.

Historic preservation is generally viewed as a positive, mainstream force. It frequently enjoys greater bipartisan support than do many environmental causes. Sometimes this support runs no deeper than an interest in house museums touting an area`s upper-crust heritage. But there are more important reasons for historic preservation`s acceptance among conservative and business-oriented groups.

Historic preservation as practiced in the United States has embraced acceptable real estate development and has tried to recognize that the profit motive can contribute to saving significant structures. Preservationists have sought to channel development in desirable directions, not prohibit it altogether, and have understood the need to justify preservation activity by explaining its economic benefits. This stands in marked contrast to the frequent position of environmental groups, which are at least perceived as (and often actually are) dedicated to stopping development and allowing no profit-oriented use of resources even when those resources are privately owned.

Today historic preservation also offers a range of benefits to widely divergent social and cultural groups. The broad applications of preservation include stabilizing decaying downtowns, enhancing the desirability of beleaguered inner-city neighborhoods, and recognizing the significance of minority cultural contributions to American life, as well as preserving patrician house museums and mansions. This appeal has brought citizens of all political persuasions and ethnic backgrounds into the preservation fold.

There are also legal and economic reasons why preservation law treats property owners more fairly than many parallel environmental statutes and ordinances. One reason is that historic preservation regulation is less likely to take a property owner by surprise.

Resource protection legislation has tended to fall into two broad categories. One type is resource based: it seeks to identity threatened resources and afford them a measure of legal protection. The other is threat based: it focuses on governmental actions which could potentially harm a resource. The National Historic Preservation Act is an example of the former; the National Environmental Policy Act, of the latter.

Resource-based measures tend to be fairer from a property owner`s perspective. You probably know when you buy a property that it either is categorized as historic or might be. But if you find out about a resource on your property that must be protected only when you are told you cannot do something, you are far more likely to be angry. Discovering an archeological site you aren`t allowed to disturb only after you have begun digging the footings for your house is an unpleasant example of protection by surprise.

In devising a fair way of protecting resources for the community while respecting private property, one principle ought to be that whenever possible there should be a list or map of the protected resources. That list should be as public as possible and should be based on standards and principles which are uniformly and fairly applied. Resources should not suddenly be added just because new development is proposed at their location. The underlying principle is that the government should assume the burden of identifying what it wants to protect and then telling citizens about it.

The National Register and most state and local historic designations are predicated upon exactly this criterion. They prioritize what is worth saving and offer guidance as to how it should be treated. That treatment provides a significant degree of flexibility in managing the resource.

A second positive aspect of the historic preservation system is that it balances compensation and regulation. For those who deal with preservation on a routine basis, it may be hard to imagine that the confusing morass of procedures for obtaining certificates of appropriateness or economic hardship and stays of demolition represents a coherent means of dealing with the interface between compensation and regulation. But this process is a better-developed and fairer approach to allocating the benefits and burdens of preserving historic structures than often exists in the parallel universe of natural resources. The ordinances which affect the potential uses of historic properties almost always include some mechanism for evaluating economic hardship. And because preservation deals with preserving an existing structure rather than preserving open space, it presents a circumstance in which some economic use may almost always be made of the protected property.

When it asks someone to preserve a historic structure, government exercises three different powers. First are the purely regulatory controls afforded by local landmark designation. Second are the incentives available to a private property owner, such as tax credits or preferential assessments, local revolving funds, loans, and grants. Third is the ultimate power of government to take by eminent domain all or part of the property and compensate the owners. All three of these powers may be used in a single historic district or even applied to a single structure. The availability of these different mechanisms makes historic preservation a balanced means of protecting a property with the costs shared by the property owner and society as a whole.

Finally, while historic preservation presents a far from perfect structural framework, it is distinct from most environmental measures in having federal, state, and local components that fit together in a relatively coherent pattern. The federal government identifies major resources and protects them against federal action. There is also a system of federal tax credits and incentives for preservation activity. The Secretary of the Interior sets federal standards and provides an overall communication network. Many of these federal programs are implemented through the state historic preservation offices.

State and local mechanisms, on the other hand, feed preservation directly into the planning, zoning, and development process through the use of historic overlays, monument and landmark designations, and historic districts. Economic incentives may also exist, but the point is that this approach involves the direct use of the regulatory process on behalf of preservation goals.

The federal, state, and local levels of preservation can sometimes be confusing, but at least there are relationships at each level and a definition of roles. With natural resource protection, the different levels of government are often at odds, even about the ultimate objective. Land use decisions are usually made at the local level, often with the primary intent of economic development, which may be directly contrary to state or federal goals of conservation and protection. Only a few states have made any effort to reconcile local land use decisions with an overall state framework, and there is no such federal overview.

The property rights legislation being proposed in Congress and most of the states is a bad idea. Bad because it would create a needless new bureaucracy of "takings analysis;" bad because it would shift the focus of analysis from the impact of regulations on individual properties to the potential impact of regulations on hypothetical properties; bad because it would create different and inappropriate standards for "takings" than those that have evolved over the last 200 years; bad because we as a society cannot afford to compensate for every action that cuts a property`s value; bad because we do not recoup for the things society does that enhance the value of the same property; bad, ultimately, because it misses the central point of a democracy. We must balance private rights and public needs to achieve a consensus of social justice.

The preservation community should continue to oppose this ill-conceived legislation and to support others who oppose it. But preservationists also should work to improve the system that balances private rights and public needs. We should use our experience to stake out a vigorous middle ground of reason, where property owners are treated fairly and respectfully and government is given enough tools and authority to protect endangered resources adequately. Compromises in this battle will occur, and preservationists should seize the opportunity to shape them.

Publication Date: May/June 1995

#ForumNews #Legal

Author(s):Grady Gammage, Jr.