Note: Landmark Preservation: The Problem of the Tax-Exempt Owner

This Note examines the effectiveness of the 1965 New York City Landmark Preservation Act with respect to its ability to confront the conflict between the desire to preserve the city\u27s history and the individual\u27s constitutional right to use and control her own property, with particular attention to the unprotected status of the tax-exempt property owner. The author argues that the legislation fails to mesh the two conflicting goals of preservation and just compensation to property owners. She suggests that in order to do so, perhaps a different standard of value should be placed on landmark preservation that focuses on non-economic measures, such as aesthetics and historical value. Finally, she concludes that the Landmarks Act will never work unless the community and the courts decide that the community is being served by preservation

Historic Preservation Law: The Metes & Bounds of a New Field

Historic Preservation Law has come to mean that combination of regulations, common-law property principles, tax incentives, and adjective law in administrative proceedings, governing historic sites and property within the United States. Although Congress first recognized a need to conserve the nation\u27s wealth of historic amenities in 1906 when it adopted The Antiquities Act, it was only with the nation\u27s bicentennial that the volume and diversity of laws designed to maintain, protect and preserve historic America grew to the point where it could be said that a new field of law had emerged. The symposium which follows this essay represents the first attempt to comprehensively delineate the elements of this new field. The conference entitled Historic Preservation and the Law: The Metes & Bounds of a New Field gathered 500 persons for two days at the House of the Association of the Bar of the City of New York in September of 1978.s Organized by the Association and the New York Landmarks Conservancy, this conference traversed the entire range of preservation legal issues, from asking what is historic? to identifying the need for law reform already apparent in this new field. The proceedings of this conference comprise this symposium. By way of introduction, this essay provides background and a conceptual framework for the presentations which follow. This essay can best introduce the symposium by delineating first the scope of regulation by exercise of the police power and the definitions for what resources are historic, then the elements of real property law which transect these regulations, and thereafter the operation of municipal ordinances and federal procedural statutes which are the body of historic preservation law. The essay will then raise several of the thorny issues currently in dispute within this evolving field

Regulatory Takings Challenges to Historic Preservation Laws After Penn Central

The Penn Central decision, in its most immediate concern, provided a legal framework within which local governments could enforce historic landmark restrictions without a regular constitutional requirement to pay just compensation. The decision amalgamated regulatory takings analysis of historic landmark restrictions to the familiar and tolerant federal standards for reviewing zoning. Affirming the importance of the public interest goals of historic preservation, the Court directed inquiry to whether sufficient economic potential remained in the control of the property owner, given reasonable expectations at the time of her investment in the property. While the broader jurisprudential merits of Penn Central\u27s approach to the Taking Clause have been the subject of wide debate, the constitutional question of how much of an economic burden the owner of a landmark may be required to bear has received very little attention. Ironically, it is this question that very well may have been the Court\u27s primary concern. This essay looks specifically at how Penn Central protects historic preservation regulation. The constitutional framework created by the decision has fostered a remarkable blossoming of historic preservation as a major tool of urban land use regulation. Preservation could never have played this role without the insulation from constitutional liability provided by the Penn Central Court, likewise, it could not have played this role if property owners had been denied all economic incentives to invest in the renovation and reuse of historic properties. Penn Central appears to have crafted a balance between local control and individual rights that has nourished preservation