Due Process

Due Process and Equal Protection

Two basic constitutional requirements apply to all regulatory laws in the United States, including any effort to protect historic property – fairness and equal treatment. Known in legal terminology as "due process" and "equal protection," they insist that restrictions imposed on individual rights be free from arbitrary or discriminatory treatment, and that the individual receives sufficient notice and an opportunity to be heard.

Procedural Due Process in Plain English

This booklet explains procedural due process and provides guidance on topics that commonly arise in the context of local ordinance granting regulatory powers to historic preservation commissions.


Due Process

The Fifth and Fourteenth Amendments to the U.S. Constitution require that no person be deprived of "life, liberty or property" without due process of law. Because historic resources are often privately owned, compliance with due process is an essential component of historic preservation law – especially in matters involving the regulation of historic properties under local preservation ordinances.

Courts recognize two distinct forms of due process. "Substantive due process" insists that governmental actions affecting an individual's constitutionally protected interests be rational or reasonable. "Procedural due process" requires that the means used by government officials in making and carrying out decisions affecting such interests be fair.

The standard for establishing substantive due process violations is difficult to meet. A claimant must show that the government acted in a truly irrational or egregious manner. It is not sufficient to show that a governmental decision was arbitrary and capricious, because otherwise every state law violation would be converted into a constitutional action.

In comparison, procedural due process violations are more readily found. Courts have and continue to protect individuals from arbitrary governmental action by ensuring that the process of making, applying and enforcing laws is fair. The amount of protection afforded usually depends upon the type of action being taken, the interest of the individual involved, the extent to which the governmental action affects the interest at stake, and to a lesser extent, the government's need to work efficiently and expeditiously.

The most fundamental requirement of procedural due process is the opportunity to be heard. The U.S. Supreme Court has made clear that a trial-type hearing is not required in every case. A hearing will be deemed sufficient if it provides all interested persons sufficient opportunity to present their cases fairly in a meeting open to the public.

In preservation cases, a hearing is generally held before property is designated for protection under a local preservation ordinance and in considering an application to alter or demolish property once designated. Such hearings are usually "informal," meaning that witnesses are not sworn in and cross examination is not required. Many jurisdictions, however, follow specific statutory procedures relating to the timing and process for conducting hearings that address such issues as the presentation of the staff report, the presentation of the applicant and expert witnesses, and consideration of testimony of other interested persons or organizations.

Embraced within the hearing requirement are a number of other individual rights. In the regulation of historic properties under historic preservation ordinances, for example, a property owner has the right to fair notice of a proposed action, such as the designation of his or her property as a historic resource, as well as the factors under consideration. The owner should be given an opportunity to present reasons in favor of or opposed to the proposed action as well as witnesses and relevant evidence. Finally, a record of the proceedings should be made, and a formal decision based on the factors prescribed should be issued.

Notice must be both timely and sufficiently clear so that affected individuals will be able to appear and contest issues in a meaningful way. The type of notice given generally depends on the interest at stake. Notice is generally provided in one of three forms: individual mailed notice, published notice (usually through a local newspaper), and posted notice (usually a sign on the property at issue).

With local preservation matters, notice is generally provided in advance of hearings regarding the designation of historic property or consideration of an application to alter or demolish such property. Property owners or occupants of property directly affected by a proposed designation of property or by decisions relating to an application for a certificate of appropriateness are generally entitled to individual notice by mail. Although not necessarily a constitutional requirement, many communities also mail individual notices to nearby property owners. Notice requirements, however, may vary depending on the law of a particular state.

The right to be heard also includes the right to an impartial proceeding. Historic preservation board or commission members must be unbiased. They must avoid prejudging a case or exhibiting personal animosity against any particular individual. When a conflict of interest exists, the board member should remove himself or herself from the decision-making process. Members must also avoid ex parte contacts, including any oral or written communications that are not part of the public record and which other interested parties have not been given reasonable notice.

While allegations have been made that historic preservation boards, as a whole, are institutionally biased in favor of preservation, this argument has generally failed in recognition that the specialized backgrounds of many individual board members actually help to ensure fair and informed decision making.

A number of preservation ordinances have been challenged under the due process clause as unconstitutionally vague (i.e. they are too vague to give fair notice of the laws being imposed). Courts, however, have uniformly rejected these challenges. Historic preservation ordinances have been and should continue to be upheld, both "facially" and "as applied," so long as procedural safeguards have been enacted to control a preservation commission's discretion and so long as the meaning of general criteria and standards is discernible from the facts and circumstances.

For example, a requirement that any new construction in a historic district be consistent in scale and design with existing historic structures should be able to withstand constitutional attack since that requirement will not be considered in a vacuum but rather in the context of nearby properties and the character of the district as a whole.

It is important to recognize that federal and state constitutions set forth only the minimum requirements that must be met in adopting and implementing historic preservation laws. State and local laws governing procedural requirements as well as any court decisions interpreting specific constitutional or statutory requirements may provide greater protection to the individual. Laws that generally impose procedural requirements, in addition to those required under the constitution, include state enabling laws; state sunshine laws; federal or state administrative procedure acts; local land use laws including preservation ordinances; implementing regulations including any rules of procedures; or others.

Equal Protection

The Fourteenth Amendment to the U.S. Constitution, among other things, protects individuals against any state action that would "deny to any person within its jurisdiction the equal protection of the laws." This means that similarly situated property should be treated similarly under the law. Different treatment, however, of similar property will be upheld if reasonable grounds exist for the disparity.

Equal protection claims rarely succeed in historic preservation cases. In Penn Central Transportation Co. v. City of New York, the U.S. Supreme Court ruled that a landmarks ordinance that singled out selected properties for landmark designation was not discriminatory since the ordinance "embodie[d] a comprehensive plan to preserve structures of historic or aesthetic interest wherever they might be found in the city." The Supreme Court found it significant that more than 400 other landmarks and 31 historic districts had been designated under the city's overall plan.

Nonetheless, the uniform application of written criteria and standards is critical to the integrity of governmental actions. While courts have consistently ruled that criteria governing the designation and review of proposed actions affecting historic resources need not be precise to pass constitutional muster, it is clear that they must be fairly and uniformly applied.