1. Finding Historic Preservation in the Constitution Judicial Impact on Preservation

2. The Power Preservation in the United States stems from three broad powers granted under the Constitution.Constitution The power to tax and to use the proceeds for the general welfare The police power, which is the authority to regulate the conduct of individuals and their use of property without compensation for the rights they give up. The power of eminent domain, a power to acquire, hold, manage and dispose of property and to enter into legal agreements allowed to private citizens, to sue and be sued.

3. Property rights Property rights are a bundle of rights held in fee simple. These rights include: 1.Right to sell 2.Air rights 3.Right to build 4.Surface and ground water rights 5.Mineral rights 6.Right to harvest crops, trees, wildlife Severing individual rights from fee simple produces less-than- fee simple property sales. Revolving funds use the reservation of rights to protect property with historic value.

4. Court responded to finding historic preservation of non-public buildings and memorials in the Constitution A. 1896 United States v Gettysburg Electric Railway. Decided that eminent domain could be used for a national memorial. Relied on historic association, not aesthetic criteria. B. 1908 Welch vs. Swasey. Supreme court found height restrictions in zoning for residential areas they were constitutional for fire and public safety. Sidestepped whether government could regulate on the basis of aesthetics alone. C. 1926 Village of Euclid vs Ambler Realty Co. Zoning found constitutional that restricted the unlimited use of property. The mutuality of benefits [better light, less noise, etc] and burdens imposed by these ordinances made them fair to the owners when shared by all the owners.United States v Gettysburg Electric RailwayVillage of Euclid vs Ambler Realty Co

5. More specifically preservation D. 1953 Merritt vs Peters. City of Miami sought to bar certain size and location of sign boards. The Supreme Court agreed that it was not questions of morals, health or safety but that the restriction could be upheld on aesthetic grounds. The court held “that attractiveness of a community like Miami Beach was a prime concern of the whole people and therefore affected the welfare of all. E. 1954 Berman vs. Parker. Government can condemn under eminent domain property that was then resold. It is within the power of the legislature to determine that the community should be beautiful as well as healthy, spacious as well as clean, well balanced as well as carefully patrolled. F. 1978 Penn Central Transportation Co. vs City of New York. The Grand Central terminal was slated for remodeling that would have added a 500 foot tower. ARB rejected design. Court agreed. States and Cities may enact land use restrictions or controls to enhance the quality of life by preserving the character and desirable aesthetic features of a city. Historic preservation is a form of land use regulation. Owner would need to show that the taking denied all reasonable economic use of the property.Penn Central Transportation Co. vs City of New York

6. Refining the Penn Central Precedent What did the Penn Central decision establish 1976 The Court established factors to be looked at in examining this issue a. The economic impact on the owner b. Owner's "investment-backed expectations" c. The character of the government's action d. Whether the action authorized a physical invasion by the government. e. The court must examine the economic value of the parcel as a whole, not merely some distinctive aspect of it, such as air rights, that might be diminished by the regulation. 1980 the Court restated Penn Central's three-part inquiry into a two-part test: a regulation will constitute a taking if it fails to substantially advance legitimate state interests b. or denies the claimant the economically viable use of his property. 1985 a court will not review a takings claim until the regulatory agency, such as a historic preservation commission, has reached a final decision. 1987 a court considering a takings claim must look at the parcel as a whole, not just the part of the property that was regulated.

7. Going too far Lucas v. South Carolina Coastal Council The case involved the application of state coastal zone regulations to an unimproved beach front lot that prevented the owner from building a house. a. The Court held that where the application of a regulation denies the property owner all economically viable use of his or her property, the regulation would constitute a taking unless there was a basis for the regulation in underlying state nuisance law. In other cases, the Supreme Court has limited the manner in which local governments may require monetary or financial contributions from property owners requesting a permit. It has held that the exaction must bear a proportional relationship to the requested permit itself, and that if the local government attempts to impose an exaction that is more than proportional to the impact of the development, the regulation may result in a taking under the Fifth Amendment.

8. What areas of law seem likely to adversely impact preservation Exceeds proper bounds of government 1. Excess can be general (an improper subject of regulation) 2. Excess in particulars (an improper application of law) Does legislation advance a legitimate state interest? 1. This has been very difficult to establish a standard, that does not open up a "slippery slope" of applying the standard. Takings issue revisited. 1. no right of further development standard. 2. However, unlikely that the courts would force an owner to retain a property which is not able to meet the mission of the organization. Sax means here that the owner prior to the establishment of the regulation. A company could not buy an historic property, declare it insufficient for its uses and then destroy it, in violation of a local ordinance.

9. St. Bartholomew's vs New York Landmarks Preservation Commission (1990). Supreme Court refused to hear.

10. City of Boerne V. `Flores

11. Separation of Church and State The Archbishop of San Antonio sued local zoning authorities for violating his rights under the 1993 Religious Freedom Restoration Act (RFRA). More recent judicial view of the separation of powers of government The "congruence and proportionality" requirement. There must be a similarity likeness and a balanced parallel between the injury to be prevented or remedied and the means adopted. Under RFRA, an otherwise neutral state law—such as zoning, or historic preservation ordinances—needed to be scrutinized if its enforcement involved a religious group or individual. Therefore, by declaring RFRA unconstitutional, the ability of the states to establish and maintain historic preservation ordinances was made easier

12. Separation of Church and State Constitutionality of the Religious Freedom Restoration Act of 1993. What is Congress's power to enforce the Fourteenth amendment? Congress’ power under Section 5 extends only to enforcing the Fourteenth Amendment. Legislation which deters or remedies its constitutional violations can fall within the suite of Congress’ enforcement power. However, Congress does not have the power to decree the substance of the Fourteenth Amendment’s restrictions on the states. While the line between measures that remedy and prevent unconstitutional actions, and measures that make substantive change in the governing law is not easy to determine, and Congress must have a wide latitude in determining where it lies. The current court has insisted that the distinction exists and it must be observed. It must be congruent in proportionality between the injury to be prevented or remedied in the means adopted to that end.

13. Separation of Church and State The Fourteenth Amendment’s history and our case will confirm the remedial rather than substantive nature of the Enforcement Clause. RFRA is not a proper exercise of Congress’ remedial or preventive power. In this regard, a comparison between RFRA and the Voting Rights Act is instructive. In contrast to the record which confronted Congress and the judiciary in the Voting Rights cases, RFRA’s legislative record lacks examples of modern influences of generally applicable laws passed because of religious bigotry. Moreover, RFRA’s coverage is sweeping. It applies to every level of government and to all rules regardless of subject matter. It's requirement of "least restrictive means" compelling governmental interest test is the most demanding known to the constitutional law. This is a considerable congressional intrusion into the states' traditional prerogative and general authority to regulate for the health and welfare of their citizens. The substantial cause RFRA exacts far exceed any pattern or practice of unconstitutional conduct under the Free Exercise Clause of as interpreted in Smith. When Congress acts within its fair power and responsibility, it has not just the right but the duty to make its own informed judgment on the meaning and force of the Constitution. On the other hand, when the court has interpreted the Constitution, it has acted within the province of the Judicial Branch which embraces the duty to say what the law is. When the political branches of the government act against a background of a judicial interpretation of the constitutional already issued, it must be understood that in later cases and controversies, the court will treat its precedents with the respect due them under settled principles including stare decisis. Contrary expectations must be disappointed. RFRA was designed to control cases and controversies such as the one before us, but as the provisions of the federal statute here invoked are beyond congressional authority, it is this Court’s president and not RFRA which must control.