Forum Journal & Forum Focus

Widening Influence of Growth Management Strategies on Historic Preservation 

04-23-2019 14:52

At a conference last March, 43 persons - lawyers, planners, preservationists, city officials - offered their learned views on the correlation of growth management and preservation. Topics included zoning tools, integrating preservation values into local growth management efforts, and economic incentives to guide growth. Preservation Forum chose to highlight (in adapted form) the comments of eight speakers: Jerold S. Kayden, H. Grant Dehart, Lisa Purdy, William R. Klein, Henry R. Richmond, John Sibley, Helen G. Boosalis, and Pamela P. Plumb. They offer excellent insight into how preservationists can benefit from growth management strategies. – Ed.


Anytime we talk about the Nantucket Land Bank program, some people think we're suggesting that the purchase of open space is the solution to suburban sprawl. Clearly, there's not enough money in heaven to buy all those sensitive lands we know are at risk between our urban centers.

On Nantucket, however, people are beginning to look at land conservation as an important historic preservation tool. In addition to its value in protecting sensitive natural resources, public and private land saving action can protect the integrity of individual historic sites and districts. It can also help to promote a settlement pattern that is consistent with the tightly knit villages and hamlets of the past. The land bank concept is based on the notion that, at some point, it makes sense to add cash to this land-saving effort.

Nantucket is a dramatic illustration of a community that thought it could never come to an agreement about what kind of a place it wanted to be and which suddenly reached agreement on a very bold notion.

By the time we acknowledged our growth problem, 25 percent of Nantucket had already been preserved by a number of land trust actions. We began to realize that even with this great land-saving effort and the existence of conventional police power tools, such as zoning, subdivision control, health regulation, and complete architectural control island-wide, we were not going to get the kind of community that we all aspired to. Mainly it was a question of land ownership. The public sector owned only a mile and a half of the island's 80 miles of beachfront property, for example. It was also a question of settlement patterns. A red-hot real-estate market was fueling suburban low-density sprawl between the island's historic villages. To many, the location of growth was much more alarming than the actual rate of growth.

So in the early 1980s, we began a two-year-long consensus-building effort, which led to a 446-to-one vote by Town Meeting to submit a special bill to the state legislature to establish a land bank. We thought it was possible to preserve half of the island. The price tag would be $100 million.

It was about this time that the idea of a transfer tax hit us. The Planning Commission began to talk about it. Massachusetts had no such tax on the books, aside from its minuscule deeds excise tax. And the notion that Nantucket's wild real-estate economy, which was causing pressures on the land to begin with, would feed a land preservation fund seemed a perfectly logical idea. It seemed to be self-regulating: the hotter the market got, the more money this tax would generate.

The land bank concept was simple to understand. A two percent real estate transfer tax is paid to a Land Bank Commission by the purchaser at a time the deed is recorded. The Land Bank Commission was given broad authority to act quickly with this money. Funds can be used for professional services. The commission can enter into life-estate agreements, conservation restrictions, and scenic easements, or it can buy the land outright. It can purchase rural landscapes, urban parks, rolling moors and heaths, wetlands and estuary systems, beaches, dunes, their adjoining back lands, barrier beaches, aquifer protection areas, areas that are known as endangered species habitats, farmlands, lands for active recreation in town.

We had convinced Nantucket citizens and the legislature that this was not an attempt by Nantucket to be exclusionary; this was an inclusionary program. If we weren't given the tools to lock up some of these beaches and heathlands, future generations would be foreclosed from having access to these important resources.

Since then, revenues have averaged about $65,000 a week over the six-year period. Of course, this sounds like a lot of money, until you begin to pay Nantucket's real estate prices. It's enabled us to preserve a very, very important 1,059.2 acres. Thirty-five percent of the island's 50 square miles has been preserved so far. We hope that by the time the dust settles, we will have reached our open space target of 50 percent.

On Nantucket the land bank concept has proven to be a powerful and effective tool to be used along with other growth management strategies.


The creation of Denver's historic district was a six-year process. The likelihood of its adoption was enhanced significantly when preservation of that downtown historic district became one of the priorities in Denver's Downtown Area Plan. Lisa Purdy was a leading advocate for establishing the historic district. From her experience she offers what she calls, "Purdy's Points for Pushing Preservation Programs" or how to get an historic district created and an ordinance passed.

(1) Build credibility. I spent a year talking about things other than preservation with most of the people on the committee for the downtown plan. Preservation was a very small piece of the downtown plan, but became one of the critical issues of the plan.... Be realistic and practical. Do not ask for more than is in the realm of possibility.

(2) Speak to those people you are trying to influence. When we talked to property owners, we would call the historic district plan a revitalization plan. When we talked to city officials, we would call it a strategy for tourism. When we talked to architects, planners, and landscape architects, it became an urban design plan. When we talked to neighborhood groups, it became a lively pedestrian environment.

(3) Build a broad base of alliances. If Historic Denver had gone by itself as an organization to city council to create this downtown historic district, we would never have gotten it passed. It was absolutely critical that preservation was mainstreamed into the planning process. We had a very broad base of groups supporting the district including city administrators, the business community, neighborhood groups, the design community, the League of Women Voters, etc.

(4) Try not to polarize the situation right off the bat. Sometimes anger can be effective, but unmitigated anger quite often can be ineffective. "Rotate the whiners" so you don't have the same people out there in front of city council every time.

(5) Do not forget to deal with the media. Get to know them as people-not just journalists. Keep them informed. Explain the issues before they become volatile. Be mindful of their deadlines. Learn when the best time is to hold a press conference. Keep the issues simple.

(6) Use visuals. Once while we were trying to save an historic building, an historic photograph helped people realize how beautiful the building could be.

(7) Know the limits of your situation. Sometimes the political climate or the support you need just isn't there.

(8) Keep people focused on the big picture, instead of the details. Talk about the city 50 years from now. What will make the area distinctive?

(9) Be aware of the fear factor. It's risky to do something different. We were able to allay such fears by suggesting a biannual review by the city council of the situation in the historic district.

(10) Compromise when necessary, but don't if you're going to lose the guts of what you're trying to accomplish.

(11) There is nothing more important than patience, persistence, and perspective.... The payoffs can be great.


Policies for preserving historic resources are now being woven into the very fabric of comprehensive plans. Nowhere is that more clear than in San Francisco's downtown plan.

Adopted in October 1985, the San Francisco plan represents a major shift away from single purpose, independent preservation programs toward an integration of preservation into the mainstream of environmental, as well as economic, planning.

It was one of the first downtown plans to integrate historic preservation directly into a comprehensive rezoning for a central business district, along with protection for sunlight, open space, public art, and urban design. And it gives these environmental values equal or greater weight than economic growth.

Here, the burden of proof has shifted from preservation advocates, who have had to conclusively document that historic buildings are worthy of protection in the context of preferred new development, to developers of new buildings, who need to show that their proposals will fit into the context of historical structures and will contribute to the beauty of the city as a whole.

Prior to the adoption of the plan, San Francisco was losing an average of eight landmark-quality buildings a year to demolition while an average of only two and one-third downtown buildings per year were being designated as landmarks.

The comprehensive downtown plan was enacted in 1985; the 1986 passage of Proposition M set a citywide limit on the total amount of new office space that could be developed in anyone year at 475,000 square feet - or roughly about two new buildings a year.

If you want to protect historic buildings as San Francisco does, you would first down zone, reducing the height and bulk limits for new development on historic building sites, thus removing the economic incentives to demolish the historic buildings. You would designate all important buildings in the zoning ordinance at one time based upon a comprehensive and comparative survey. You would prohibit demolition of the most significant buildings and you'd shift new development away from historic areas, by establishing conservation districts and allowing allow transfer of development rights from protected buildings. You would then review alterations and new infill development, following specific design guidelines; limit the amount of new development that can take place in any one year; and continue to designate additional landmarks, when new information on their significance is obtained.

It may come as a surprise to some of you to hear that landmark designation is the last on my list of significant tools now used in San Francisco's plan. If the comprehensive plan and zoning ordinance provides equal or greater protection for historic resources, the traditional tools may not be as important. I'm not suggesting that traditional landmark ordinances be supplanted by planning and zoning, only that they be made to function as a part of a more comprehensive package of policies and controls.

San Francisco's experience may not be directly transferable to many other places where jobs, tax revenue, and economic issues are the overriding concerns. While these were also important concerns in San Francisco, the city's primary industry - tourism - and the citizens demand high environmental quality. Many cities will avoid giving as much weight to historic or environmental concerns as San Francisco has, arguing that they need new development of any kind in their older downtown districts.

For cities seeking to balance these various concerns, however, the San Francisco process represents another promising way of making historic preservation an integral part of public policies. This integration should reduce the amount of conflict and controversy over the retention of important buildings and make protection of the architectural heritage much more predictable.


Political leadership, particularly at the local level, can play an enormously significant role in shaping our cities and towns and in determining whether preservation will be a major player. It's pretty tough, particularly in times of economic insecurity and dwindling resources, to make the case for preservation before city councils and county boards when the buzzwords in politics are job and economic development.

Nowhere was that clearer to me than in Omaha, Neb., two years ago when almost the entire political leadership of that city yielded to the pressure of a major corporation that did not want to put its new headquarters building next to some "big, red, ugly buildings just because they're historic." And so the 22 buildings of that historic district [Jobber's Canyon] were demolished and replaced by the cold, gray concrete of a parking lot.

It is tough. As elected supporters of any rational growth management policies will tell you, too often growth management policies are twisted into controlled growth and anti-business postures by the growth-at-any-cost advocates-and used against you in a re-election campaign.

Fortunately, we do have political leaders with vision and courage who will stand up to those kinds of pressures and make the right decision, not just the politically expedient one….

There is also the need to build a broader consensus, a broader base to support our goals. [At this conference] I was struck almost immediately with the relative youth of this group. It's commendable. And we need to have more of you. But it also struck me that we should be drawing many, many more from the ranks of the elderly. Preservation and the elderly form a natural alliance, one that hasn't been fully tapped by historic preservationists.

...One way to lessen the resistance of so many elected officials to preservation goals is to become an elected official yourself. Don't laugh.... And even if you have no such aspirations or inclination, surely you can persuade others to run....

In Lincoln, I was aware of no formal public preservation policy or broad constituency until one preservationist-and a supporter of mine, incidentally-came into my office when I was mayor and said, "Isn't it time Lincoln got into preservation?" That awakened a latent interest in me. Just one person got the ball rolling.

At that time we had a major recession and accompanying budget restraints. In the end, we managed to start a new program, appoint a preservation commission, hire a preservation planner, pass a preservation ordinance, and gain broad community acceptance where little was shown before.


Pamela Plumb spent 10 years in Portland, Maine, working in the historic preservation field and then spearheading an effort to get an historic district ordinance passed by city government. In the end, she was elected to the city council an was on the council when the ordinance finally passed. She offers the following views on preservation politics.


They won't be exactly the same in every community, but there are some generic issues that more than likely will be raised.

Number one: economic and business development. Will preservation stop all growth? Will, in fact, your chamber of commerce come out and fight for preservation? Will your downtown business people come out and fight it? You need to know those things in advance. They will want to know what’s going to happen the market value of the community when historic preservation plays a larger role. What's going to happen to jobs in the community? There are good answers to all those questions. You'd better be prepared with them.

Second: gentrification and low-income housing. Displacement is seen as the flip side of revitalization.

Third: overregulation. Will it be too much trouble for the people who need to go through the process? Will it be too expensive?...

Fourth: the use of public funds. Will the preservation activities be an appropriate use of scarce public funds?

In addition, know your own council and the issues in your own community. Is there an historic building that went down our years ago which is a good emotional handle in your community? Is there an example where preservation organizations stood in the way of what the community deemed to be progress? Diffuse the major issues in advance by providing information and by building alliances.

Plumb offered the following as "tools" that can be used at the local level:

  • An historic district ordinance acknowledges the community's interest in the history of the city and therefore the community's right to have some control over that.
  • Design control is another tool not to be overlooked. The question of design compatibility can make a big difference in a community. Work to instill this concept of compatibility throughout zoning ordinances and subdivision and site plan reviews.
  • Be sure your city is looking at incentives. It is very helpful to balance regulation with incentive.

How to get an historic district ordinance passed? Educated yourself about your council and about your mayor's individual and collective issues. Know what those are before you go into the process. Do you [sic] homework in advance. Be prepared. Identify potential support. Identify potential roadblocks. Begin well in advance. And if you can't beat city council, join it.


In 1975, 1,000 Friends of Oregon was founded by former Governor Tom McCall and others to watchdog the implementation of the state's land-use program, one of the first in the nation to mandate planning on local and regional levels.

While the question of how, where, and when development occurs has become a national issue, it cannot be addressed by the U.S. Congress or federal administrative agencies. The U.S. Constitution at this time simply does not give authority to the Congress to pass legislation restricting the use of private property. That's a power reserved for the states.

The heart of the growth management or land-use reform movement over the past 25 years has been actions by state legislatures to reconsider the delegation of power that they gave to localities six to-nine decades ago-basically, the power to zone.

Yet zoning is really a pre-automobile invention that is simply designed to separate "bad" land uses from "good" uses. Zoning doesn't have any sense of timing. It is not based on any kind of date or analysis. It doesn't look at land use from a community-wide perspective. Its focus is on a specific piece of property that someone wants to do something with at a given time.

In the late 1960s and early 1970s, state legislatures started to say, "Wait a minute. Maybe half a century ago we shouldn't have given away all that power to regulate how land is used to local jurisdictions. Look what we're getting. How can we take some of that authority back? How can we create a statewide partnership so that we, as a board of directors of this corporation, can hold local governments to a higher level of performance?"

During the early 1970s protecting lands for their environmental quality proved inadequate in controlling growth near those lands. If you've just protected the Hackensack Meadows or the Everglades, and everything outside those boundaries is getting worse, you haven't accomplished very much.

The new focus-called growth management-is a means for states to insist that planning occur on a jurisdiction-wide basis with some sort of review process by the state. Minimum standards are set. Zoning ultimately must conform to the plan.

What have been the results of this Oregon plan? Now urban growth boundaries surround each of the state's 241 cities. To develop an urban growth boundary, a city projects its urban population growth requirements and documents that projection. Those figures are then converted into acreage figures, based on some assumptions about density and employment types. In other words, only as much land as the local governments can show they need for urban development will be available in a 15- or 20-year time frame.

This is not a slow-growth or no-growth plan. It is a recognition that the State of Oregon is not very rich and does not have a lot of money coming from Washington to help pay for sewers and roads. It's a way of saying, look, if we only need 1,000 acres for expansion over the next 10 or 15 years, why are we allowing that much acreage to be gradually put into low-density, urban uses, and thus committing the taxpayers in our state to providing twice as many urban services as we really will need.

It's not an environmental angle. It's a tax-reduction or tax-minimization angle.


The smart money says that Georgia is a bad bet for any kind of growth management. We're a pro-business bastion. We're probably home rule heaven. Nevertheless, in under two years, a new growth management strategy went from the gleam in some dreamer's eye to the law of our state. The state's Growth Strategies Commission was at work from June 1987 to November 1988. In April 1989 Gov. Joe Frank Harris signed a new comprehensive state, local, and regional planning process into law.

In some areas of Georgia, such as Atlanta, there are intense pressures for growth. In the metro Atlanta area, we're going to add 1,000 people per square mile in the next couple of decades. But already we are feeling the effects of growth. In 1987, we had 30 communities under sewer mortoria. In 1988, we had water shortages in a massive state-wide drought.

In many of the state's 700 cities and counties growth is slow. Less than half have engaged in any planning.

In that context, the Growth Strategies Commission decided the issue was not just environmental protection or economic development. It's how we govern ourselves. We decided we had to do that better, to think ahead more.

A new partnership was established in which each community has the responsibility to develop its own local growth strategy. The state fosters that effort by providing guidelines and tools to assist the local community. But the plan goes beyond this and establishes a regional partnership that revolves around the activities of 18 regional development centers. In many cases, the first vision of what a community wants to be, in terms of land use, but also economic development, housing, infrastructure, and historic and natural resources, is being formulated. Conflicts between local visions are to be sorted out at the regional level.

Basically, the growth management program is just a planning process. The state, however, is going to make investments in communities willing to plan their future in cooperation with their neighbors. But by the same token, the state's not going to pay for local infrastructure in those communities that aren't willing to plan for their needs.

The growth strategies process calls on every community to account for its historic assets. This is a whole new era for historic preservation. When the Villa Ricas of this world realize that their historic assets need attention, as do their water mains and water meters, a new day has dawned.

How the Georgia Growth Management Plan Enhances Local Preservation
Villa Rica, Ga., is a town of 17 square miles and 7,700 people. In the 1970s, it was a typical textile mill town on the wane, losing population and economic resources. In the '80s a new interstate highway put Villa Rica within commuting distance of Atlanta. The population grew rapidly. The town had no history of planning or of interest in its past.
The city has just completed its first round of comprehensive planning under the growth strategies process. It learned it will have to restrict development in some places due to geological makeup (e.g., wetlands, poor soil conditions).
But Villa Rica discovered that even if it adopted an infill kind of strategy, allowing for greater density where there are already water and sewer systems, it would have enough land served by these systems to accommodate any population growth that can reasonably be predicted to the year 2010. For a community that's never paid attention to any such analysis, those are some pretty striking kinds of things to discover through a planning process.
Villa Rica discovered something else-its history. And the town declared its intentions for historic preservation: The historic resources will be surveyed in detail and a long-term historic preservation plan will he developed. A public awareness campaign to encourage both the public and private sectors to participate in preservation activities was recommended.
John Sibley

In Georgia, every community has a new duty to declare its intentions for the preservation of its historic resources. And every citizen of Georgia who cares about historic resources has a new forum, a new point of attack, to be sure that something is done.

Though the Georgia growth management process is nothing but a planning process, I believe that a planning process done in an appropriate and adequate way is an enormously powerful tool. And I don't believe this is clearer anywhere than in the area of historic preservation.



Benchmark Takings Litigation
Agins v. City of Tiburon, 447 C.S. 255 (1980)
First English Evangelical Lutheran Church v. County of Los Angeles, 482 LB. 304 (1987), 107 S. Ct. 2378 (1987)
Keystone Bituminous Coal Association v. DeBenedictis, 480 U.S. 470. 107 S. Ct. 1232 (1987)
MacDonald, Sommer and Frates v. County of Yolo (California), 477 L.S. 340 (1986).106 S. Ct. 2561 (1986)
Nollan v. California Coastal Commission, i83 U.S. 825, 107 S. Ct. 3141 (1987)
Penn Central Transportation Co. v. New York City, 438 U.S. 104 (1978)
San Diego Gas and Electric Co. v. City of San Diego, 450 C.S. 621 (1981)
Williamson County Regional Planning Commission v. Hamilton Bank, 473 U.S. 172 (1985)

The Impact of Supreme Court Takings Decillions on Land-Use Techniques

Historic preservation
. Historic preservation is as constitutional now as it always was. The court is not going to overturn Penn Central.
Down zoning. No change in the law on down zoning. You still have to guarantee an economically viable use if you down zone. but you certainly can down zone.
Moratoria or interim development controls. Just as constitutional or unconstitutional as they were before.... [You should] put a time limit that is specified on the face of the ordinance. The shorter the time the better. Indicate how the moratorium will contribute to a public purpose. Allow some residual use. Have a safety valve (such as the ability for landowners to apply for special discretionary action).
Growth controls. What are growth controls? Moratoria. Growth caps. Concurrency plans. Florida requires that adequate infrastructure must be in place concurrent with development.... No problem with these growth controls. Key is fairness and proportionality.
Linkage and inclusionary zoning. Linkage is probably a little more suspect now after Nollan. We don't know how broadly Nollan will apply. Don’t know about inclusionary zoning. Don't know about incentive zoning.
Transfer of development rights. Who complains most about transfer of development rights? The person who's the neighbor to the receiving site.

The Supreme Court of the United States has behaved a bit like Rip Van Winkle in the area of government regulation of private property and the use of land. Following a brief, but furious, stint of activity in the late 1920s during which the Court issued no less than five decisions on the basic constitutionality of local zoning controls - the Court virtually absented itself from the scene for the next 50 years. With but a few forays peripherally affecting land-use regulatory efforts, the Court was quiescent.

But suddenly, without warning, and with a vengeance that surprised even the most seasoned Court watchers, the U.S. Supreme Court awoke from its lengthy slumber in 1978, with the literally historic landmark decision in Penn Central Transportation Co. v. New York City - an opinion that not only saved Grand Central Terminal from the indignity of having a 55story skyscraper above it, but upheld the basic constitutionality of historic preservation efforts in cities across the country.

Since then, the Court has barely had time to catch its breath, issuing no fewer than seven major opinions involving the constitutionality of various land-use regulatory efforts. The cases have become the guideposts against which land-use lawyers and planners assess whether public actions have adequately towed the constitutional line.

Penn Central is the bellweather case involving the constitutionality of land-use regulations under the just compensation cause. It validated all the historic preservation efforts with which we're familiar today. It is a benchmark on analyzing the key constitutional clause that we all must know about-the just compensation clause of the Fifth Amendment, which states "nor shall private property be taken for public use, without just compensation.

The Penn Central Transportation Co. owned Grand Central Terminal, a designated landmark in New York City. The company wanted to build a 55-story tower above it. The scheme was turned down by the New York City Landmarks Commission as inappropriate.... The U.S. Supreme Court, in a six-to-three decision in 1978 (authored by Justice Brennan), upheld the basic constitutionality of the landmark law.

The Court was very honest. It said – and this continues to be the rule today – there is no formula for what constitutes a taking within the meaning of the just compensation clause.

The Court offered a three-part test: 1) look at the economic impact on the claimant of the regulation; 2) look at the extent to which that regulation interferes with what the Court called distinct investment-backed expectations; and 3) look at the character of the government's action.

The Court's decision meant that no property owner is entitled to the highest and best use of his or her property. One is entitled to a reasonable economic use but is not guaranteed a profit. The just compensation clause only guarantees the opportunity to have an economically viable use.

...Penn Central had argued that all of its air rights were being taken - all of the buildable space about the terminal was now sterilized from development. The Court said you're looking at the wrong thing. You must look not only at those unused air rights, but you also have to look at the existing terminal itself and judge whether it alone is economically feasible.

The Court, however, noted that the law's transfer of development rights provision provided some help for assuring that there was a reasonable use of the property.

The issue of the comprehensiveness of the landmarks law created the big dispute between the majority opinion (by Justice Brennan) and the dissent (by the now Chief Justice Rehnquist). Justice Brennan said there are lots of landmarks in the city. Even though the landowner is burdened, a lot of other people are burdened too, and life isn't totally fair. We're not guaranteed exact equality, only rough equality.

Justice Rehnquist determined that something like 1/100 of 1 percent of all the buildings in New York City were designated landmarks. In his dissent, he said that doesn't really sound too equal or too average to him.

At the guts of the just compensation clause is this concern that government should not ask one individual, or a group of selected individuals, to bear burdens more properly borne by society at large.

...The next five cases of the U.S. Supreme Court conjured up the myth of Sisyphus. No less than five times the Court marched up the hill, pushing that constitutional rock called just compensation, only to have it roll back down just before reaching the top.... Are landowners entitled to just compensation if a regulation does go too far and actually effects a taking? What if Penn Central had proved its case - that the landmarks law effected a taking of its property. Would it be entitled to money?

Cities argued, we can admit that regulations can go too far and be unconstitutional. But all that a landowner is then entitled to is judicial invalidation of the ordinance. The landowners said, if a regulation goes too far and affects a taking, the owner is entitled to fair market value of the property.

In the process of not deciding this issue in the first four cases, the Court nonetheless made new law on the predicate issue of when a taking has occurred. And incidentally, those four cases make it more difficult for landowners to prevail in the takings area, not less difficult. The fifth case, however, which the cities were not too happy about, finally said, yes, compensation must be paid.

Agins v. City of Tiburon. 1980. The Agins owned five acres of vacant land in the village of Tiburon, Calif., across the bay from San Francisco. The village had zoned the Agins property to allow one-tofive units to be built. Rather than seek special approval to more fully develop the property, the Agins sued for $2 million in damages, alleging that the zoning destroyed all value of the property. The California Supreme Court decided the Agins could never sue for money, but only to invalidate the zoning law.... It might be unconstitutional, but you never get just compensation. You only get invalidation.

The U.S. Supreme Court never reached the just compensation issue. It said the zoning does not effect a taking of property, because the Agins can build between one and five units. There is no economic information to determine that the economic impact of building five units is such that it deprives the Agins of economically viable use of their property. So there is no need to address the compensation issue. The Court also ruled that protection of open space is a legitimate government purpose.

The Agins ruling offered what I refer to as the disjunctive test - a two-part test to determine whether a regulation affects the taking of private property. A taking occurs if an ordinance - or a regulation - denies an owner economically viable use of property. The Agins ruling also said that even if you had an economically viable use, if an ordinance does not substantially advance a legitimate state interest, then it's a taking. This proved important later in the Nollan case, because it suggested that in that context, compensation in fact may be awarded, even though there's been no economic deprivation to the private property owner.

San Diego Gas and Electric Co. v. City of San Diego. San Diego Gas owned some coastline acreage north of the city and wanted to build a nuclear power plant. The city, however, down zoned much of the property to open space and was considering a bond issue to acquire all or part of the property for open space. The company sued for damages, and the case went all the way to U.S. Supreme Court.

Once again, no judgment from the Court on the compensation issue. The majority in the five-to-four decision said it's too confusing in terms of what the lower courts did and dismissed the case on technical jurisdictional grounds.

The case, however, is known for its dissent (written by Justice Brennan).... If a regulation effects a taking of private property - and Justice Brennan doesn't say what that means - then compensation must be paid for the period of time that the regulation effected a taking.... Invalidation, as argued by the city, solves the problem for the future, but it doesn't deal with the period of time that the regulation affected a taking. You should be able to get compensation for that period.

At the same time, Justice Brennan said there is no reason to require cities to own the property and pay fair-market value compensation when they can rescind the regulation or modify it. If they continue it, they'll pay for it. But we shouldn't obligate the city to pay for the land, as the landowner wanted.

(Justice Brennan also penned what is probably the most famous line, I think, in the land-use law literature - and one which caused much consternation in the planning field. "After all, if a policeman must know the Constitution, then why not a planner? II Planners really resented that.)

...The bottom line is that Justice Brennan was saying, you violate the Constitution, you've got to pay for it. Where there are violations of the Constitution without a monetary remedy, the Constitution becomes a meaningless document. If you attach a monetary remedy, you will discourage unconstitutional activity.

Remember, though, Justice Brennan's words were just a dissent.

Williamson County Regional Planning Commission v. Hamilton Bank. Developer had attained preliminary approval for a subdivision. Then the county amended the zoning plan, reducing the density that was going to be allowed. The bank [the property was foreclosed] sued for monetary damages.

...This time everybody said, we're finally going to have it [a decision on just compensation]. Third time, they can't not reach it again. But that's exactly what the Court did.

The Court ruled that the bank's claim for dollars was premature. The court said it would only review takings claims when it knew for sure that no development is allowed or that the government has finally acted and said what will be allowed.

Neither the developer nor the bank had applied for a variance. Maybe they could have gotten a variance that would have allowed the development....

Even if not legally entitled to a variance, I always recommend that developers still apply for one. Without that, the court will say, we don't know whether or not you could have an economically viable use.

In the Williamson County case, the Court also said that if a state has an inverse condemnation remedy - a procedure through which landowners can sue the government and inversely get them to condemn their property - then you must use it.

The Court was saying, we know that the just compensation clause says you've got to get just compensation. But it doesn't say you have to get it before the taking occurs or even contemporaneously with the taking... as long as you can go into court and ask for compensation afterwards. There may have been a taking, but there's been no violation of the just compensation clause yet.

  1. MacDonald, Sommer and Frates v. Yolo County. A developer in California applied for subdivision map approval to subdivide the property into plots for 159 single- and multi-family units.

Yolo County rejected the submitted plan, for very good reasons. It said the subdivision plan didn't have adequate street access to the public streets. It wasn't adequately served by sewers or by police. And there would be water problems.

All very good reasons, one would think, to turn down the plan. The developer, however, did not go back and say, what will you allow me to do? Let me submit another plan and apply for a variance. Instead, the developer rushed to court, sued, and lost. The Supreme Court once again emphasized the prerequisite to determine whether or not a taking has occurred, we must have a final and authoritative determination of the type and density of development legally permitted.

...Well all good myths must come to an end. In 1987 that's exactly what happened....

First English Evangelical Lutheran Church v. County of Los Angeles. (This case made front-page news in newspapers across the country.) The church owned a 21-acre campground for handicapped children north of Los Angeles. A fire in 1977 denuded much of the watershed area above the campground. In 1978 a flash flood occurred: 11 inches of rain swept away all the wooden buildings on the campground. The County of Los Angeles enacted what it called an interim ordinance, followed subsequently by a permanent ordinance, that prevented any reconstruction of buildings in the flood plain.

Isn't that exactly what the government should do if there's a flood? Shouldn't the government take its responsibilities to protect public health and safety seriously?

The church sued, alleging that all use of its property had been taken, which was essentially accurate. The U.S. Supreme Court reached the compensation issue in a six-to-three vote and adopted Justice Brennan's rule from the San Diego Gas & Electric Co. dissent: compensation must be paid if you prove a regulatory taking for the period of time that the regulation affected the taking.

It is called the temporary takings concept and has created some confusion. A taking is temporary because the government might rescind the regulation, thereby ending the regulatory taking, or because the court might announce that the taking is unconstitutional.

There are, however, two misconceptions that existed before - but also after - First English. Some people argued that temporary regulations that deny all use are not automatically takings. And that's absolutely true. There's a core of people who argue the opposite, that what First English now does is transmute all temporary ordinances that ban all uses of your property into takings. They're automatically takings. And that's absolutely untrue.

Nollan v. California Coastal Commission. A couple owned a 521-square-foot, beach-front bungalow on the California coast in Ventura County. They wanted to replace it with a new, three-bedroom house with an attached garage. The property was located in the California Coastal Commission jurisdiction where overlay zoning overrides all local zoning. As a consequence, the Nollans could not construct a new house without a permit.

Nollan is a very opaque decision that has a lot of careless language and some bombshell footnotes in it. We still don't know what it really means and don't know how it's going to be applied.

The Coastal Commission said yes to the Nollans under one condition: that they give to the public a lateral-access easement, allowing the public to walk beyond the mean, high-tide level of the beach. In California, the public owns the property to the mean high-tide line, so the easement would allow people to walk up and down the beach without trespassing on anybody's property.

In a five-to-four decision (authored by Justice Scalia with Justice Brennan writing the principal dissent), the Court said this was a violation of the just compensation clause. There was no discussion in the opinion about the economic impact of the easement on the Nollans. Nollan is a just compensation clause/takings case in which the Court found, for the first time in recent history, a regulatory taking.

The Court said the commission could not have outright required the easement on the property with the existing bungalow. That would be as if government came in to you, an existing private property owner, and said, you see your backyard? You thought it was yours, but now people are going to be able to walk though [sic] it. That would be a taking....

Can you require an easement on a current application for new development? The Court determined that if the government can say no to your proposed development, then surely it can say yes to your proposed development dependent upon certain conditions. Those conditions must serve a legitimate public interest.

Want to preserve the public's visual access to the coast? Ban fences, Justice Scalia said. Height and setback limitations. In a shocking answer Scalia said the commission could have required the Nollans to have a viewing spot on their property so that people could see the Pacific Ocean.... I have in mind a little spot on their front lawn with one of those oversized steel binoculars in which you put a quarter.

Bombshell footnote of Nollan. Footnote Three. When we, the Court, say substantial, we mean something different than reasonable or rational. We mean something very important.

That's very surprising to land-use lawyers who had always thought that all government had to do was come up with some conceivably idiotic reason to justify its regulation, and it would automatically be sustained - not if it deprives economically viable use, but in terms of the reasoning underlying government regulations.

There has been a test for presumption of validity: if it's fairly debatable, we go with the government, if there's any conceivable basis, we go with the government.

Final case. Keystone Bituminous Coal Association v. DeBenedictis. A coal company in Philadelphia wanted to tap its resources underneath public and private land and sued to gain access.

The Court in a five-to-four decision said no. First of all, removing the coal would be akin to a public nuisance because you'd be harming other private property owners. Second, there was no denial of all economically viable use. You could still make a profit on the existing coal that was there. And finally, you need to look at the parcel as a whole. You look at all your coal properties, not just what's been taken. That case was viewed as a victory for the government.

...Final thoughts. The Court is swinging in the property-owner direction and the playing field has been leveled by the Court. You now see it in negotiations between property owners and cities, where cities are much more careful. However, it's still exceedingly hard to win a takings case. Remember that the only successful Supreme Court case was Nollan, and it had nothing to do with economic viability. If a regulatory program redistributes - takes from one group and gives to another - that program is now more suspect.

Some free legal advice - approach lawyers with caution. This area of law has ideological, extremist lawyers of all political stripes, who read the law as they want it to be read, frequently without regard to what it actually says. And so, on both sides - property owner and public sector - these lawyers can mischaracterize the law.

‘Planning for Preservation: Managing Growth in Urban Areas' was held March 22-23 in Pittsburgh and sponsored by the National Trust in cooperation with the Institute for Environmental Negotiation, University of Virginia; the Section of Urban, State, and Local Government Law of the American Bar Association; the Pittsburgh History and Landmarks Foundation; the Pennsylvania Historical and Museum Commission; the Preservation Fund of Pennsylvania, Inc.; and the Department of Planning, City of Pittsburgh. It was made possible with assistance from the National Endowment for the Arts, the Geraldine R. Dodge Foundation, the Henry M. Jackson Foundation, and the Mellon Bank., N.A., in Pittsburgh.


Publication date: Summer 1990


Author(s):William R. Klein, Lisa Purdy, H. Grant Dehart, Pamela Plumb, Henry R. Richmond, John Sibley, and Jerold S. Kayden

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