In the past several decades, Americans have become increasingly
aware of the importance of the nation's historic structures and
sites. A general interest in the preservation of these sites and
structures arose in the 1960s, a time when preservationists and
the public at large became concerned about the destruction of
both buildings and natural features caused by urban renewal, the
interstate highway system, and other massive public works projects.
1 Many of them turned to the law as a means to
ensure the protection of their architectural heritage.
Historic preservation law has its roots in the basic land-use-planning
notion of zoning. Zoning is "the division of land into
districts having different regulations." 2
The concept is a relatively new one. New York City adopted
the nation's first zoning ordinance in 1916. 3
New York's plan stemmed from nuisance law, the earliest form of
land use control. 4 At its base, the doctrine
of nuisance affords an individual remedies for any unreasonable
interferences with the use and enjoyment of his or her land. 5
Most nuisance cases historically involved the establishment of
a commercial or industrial use within a residential area. 6 Over
time, judges came to realize that, while not inherently injurious,
some uses, like factories and refineries, were nuisances per
se in certain neighborhoods. 7 In other
words, even before zoning, courts were comfortable concluding
that because of their geography or pattern of development, particular
localities are "properly and primarily devoted to certain
activities and that the introduction of incompatible activities
must be deemed unreasonable." 8 A comprehensive
set of regulatory ordinances like New York City's, then, merely
codifies this notion by dividing the city into three use districts:
residential, commercial, and industrial. 9 Indeed,
"[z]oning is recognizing through law and ordinance the fact
that all parts of a city are not alike and that for the purpose
of health, morals or the general welfare of the community, they
should not be alike." 10
Historic preservationists saw an opportunity in the fact that
government may regulate land use "for the purpose of health,
morals or the general welfare of the community." They began
to push legislatures to regulate the alteration of historic properties,
because they believed that their integrity benefited the "general
welfare" of communities. But as historic preservation
ordinances became commonplace, owners of historic property —
many of whom felt that they were no longer able to use their property
in the most profitable way possible — began to question
whether the government must subsidize the preservation of historic
In Penn Central Transportation v. City of New York 11,
the Supreme Court answered the subsidization question in the negative,
thereby providing legal justification necessary for the vast majority
of the country's historic preservation ordinances. Penn
Central Transportation Company (Penn) brought suit to overturn
a decision by the Landmarks Preservation Commission of the City
of New York (Commission) denying a permit to build an office building
above New York's famed Grand Central Station (Grand Central).
The company based its argument on the Fifth Amendment of the United
States Constitution, which provides that "private property
[shall not] be taken for public use, without just compensation."
12 Specifically, Penn maintained that by designating
Grand Central a public landmark, New York was regulating the station
to such an extent that it was as if the city "took"
part its property.
The Court began by framing the issues at hand: First, was there
a "taking" as understood by the Fifth Amendment?; second,
if there was a "taking," was there "just compensation"?
13 The first issue was viewed as dispositive,
and as such, there was no need to address the second. 14
In order to place Penn's concerns in context, the Court started
its analysis with a review of relevant Fifth Amendment jurisprudence
— or, stated another way, what the Court has thought constituted
a "taking" in the past. 15 The
Court defined the "taking" clause as a guarantee "designed
to bar Government from forcing some people alone to bear public
burdens which, in all fairness and justice, should be borne by
the public as a whole." 16 But it noted
that over the years, the Court has not been able to develop any
"set formula" to determine the exact nature of —
all fairness and justice. 17 Instead, the Court's
"taking" decisions have been extremely fact driven.
There is a recurrent theme, however, in many of these individual
cases. The Court pointed out that it has long condoned land use
regulations that adversely affect property interests as long as
the regulations have "the health, safety, morals, or general
welfare" of society in mind. 19 Zoning laws,
like those discussed above, are the classic example; 20
a "taking" does not result when an individual property
owner cannot build a factory in her backyard (which would probably
be economically advantageous), because society as a whole is benefited
by the opportunity to live in safe and stable residential areas.
But does historic preservation further such general societal interests?
Fortunately for this analysis, the Court, only two years before,
recognized that a local government may enact land use restriction
to preserve the "character and desirable aesthetic features
of a city." because it "enhance[s] the quality of life."
The Court continued that a regulation, despite the presence of
an acceptable governmental purpose, might create a "taking"
if it "so frustrate[s]" an "investment-backed'
economic expectation." 22 To illustrate
this proposition, the court cited Pennsylvania Coal v. Mahon.
23 In that case, the plaintiff-mining company
sold a house (at a discount, no doubt) on the condition that it
could forever mine the coal underneath the property. 24
After the sale, the State of Pennsylvania passed an ordinance
prohibiting the mining of land under inhabitable structures. 25
While the Court found the Pennsylvania statue to further an important
public policy — to minimize the possibility that homes will
collapse on their inhabitants — it concluded that the regulation
amounted to a "taking," because it had the same effect
as a complete destruction of the company's rights; without being
able to mine, the company could not expect any return on its investment.
Penn's primary "taking" argument rested on this line
of reasoning. 27 Penn did not object to the benefits
of landmarking a property, but the company did contend that maintaining
Grand Central's landmark status "so frustrates" its
ability raise revenue from the station that the applicable regulations
amount to a "taking." 28 The
airspace above Grand Central is an extremely valuable property
interest. Like the mining company's rights in Pennsylvania
Coal, above, Penn reasoned that, since its two proposals
to build office space over the station were denied, the "gainful
use" of its "air rights" has been effectively destroyed.
29 The Court did not agree. In a bold move, the
Court stated "'[t]aking' jurisprudence does not divide a
single parcel into discrete segments and attempt to determine
whether rights in a particular segment have been entirely abrogated."
30 Rather, to determine whether a regulation
amounts to a "taking," the Court concluded that it is
necessary to look at the "parcel as a whole," meaning,
for Grand Central, the entire city tax block that had been designated
as a landmark site. 31 Viewed from this angle,
it was clear to the Court that Penn's "taking" claim
was invalid, because the company's ability to operate a railroad
terminal — as it had done for the last sixty-five years
— had not been affected by the regulations accompanying
its landmark designation. 32
The importance of the Court's decision that the restrictions
imposed did not curb the reasonable beneficial use of Grand Central
cannot be overstated; 33 it was this decision
that helped spur considerable growth in the adoption of preservation
ordinances by cities and towns throughout the United States. 34
- NORMAN TYLER, 44 HISTORIC PRESERVATION (W. W. Norton 2000).
- EDWARD M. BASSET, ZONING 9 (Russel Sage Found., 1940) (1936).
- Id. at 20-21. The City, driven by an understanding that, among
other things, “the conformation of Manhattan island tended
to produce buildings of great height and to cause congestion
of housing and street traffic,” id. at 23, knew that regulating
only the height of buildings could only solve so many problems.
City officials were also concerned with the introduction of
“improper uses” into otherwise homogeneous areas,
which generally resulted in the “premature depreciation
of settled localities.” Id. at The officials began, then,
to explore the possibility of a more comprehensive plan that
would, under state police power, regulate the use of buildings
and land, in addition to height. Id. at 23-27. The novelty of
this plan was that it provided for different regulations in
different districts. Id. at 26.
- See DANIEL R. MANDELKER, LAND USE LAW § 1.04 (4th ed.
- DANIEL R. MANDELKER & JOHN M. PAYNE, PLANNING AND CONTROL
OF LAND DEVELOPMENT: CASES AND MATERIALS 58 (5th ed. 2001) (citing
- MANDELKER, supra note 4, § 1.04.
- MANDELKER & PAYNE, supra note 5, at 59-60.
- Id. at 60.
- See MANDELKER, supra note 4, § 1.04.
- CIVIC DEVELOPMENT DEPARTMENT, CHAMBER OF COMMERCE OF THE UNITED
STATES, ZONING: A STATEMENT OF PRINCIPLES AND PROCEDURE 11 (1929)
- 483 U.S. 104 (1978).
- U.S. CONST. amend V.
- Penn Central, 438 U.S. at 122.
- See id. at 123-128.
- Id. at 123 (quoting Armstrong v. United States, 364 U.S.
40, 49 (1960)).
- Id. at 124.
- See id. at 125.
- Id. at 129 (citing New Orleans v. Duke, 427 U.S. 297 (1976)).
- Id. at 127.
- 260 U.S. 393 (1922).
- Penn Central, 438 U.S. at 127.
- Penn’s other arguments are beyond the scope of this
- See id. at 129.
- See id. at 130.
- See id. at 136.
- See NORMAN TYLER, 84 HISTORIC PRESERVATION (W. W. Norton 2000).
- See National Trust for Historic Preservation, A Layperson’s
Guide to Historic Preservation Law, SG040
- ALI-ABA 1, 24 (2001) (stating that there were only 500 preservation
ordinances in 1978; today, there are more than 2,300).