Also known as: historic preservation law · historic-preservation laws · historic preservation · preservation law
Written by attorneys — see sources below.
A regulatory ordinance prohibiting the demolition or exterior alteration of historic buildings or of all buildings in a historic district. The ordinance advances a legitimate public purpose in preserving cultural heritage while leaving the owner with economically viable uses of the property.
Hope Howard purchased an aging apartment complex with plans for luxury redevelopment based on informal zoning discussions. The city expanded a historic district to include the complex and barred demolition or major exterior changes. Hope Howard can still rent all units at a profit though below projected returns. The designation survives a takings challenge because it serves a valid preservation goal and leaves reasonable economic use intact.
Hakim Hall bought wooded land intending to build research facilities. The city then imposed historic-preservation rules that forbid all tree removal and construction to protect a designated historic woodland. The land now has no viable economic or institutional purpose. The ordinance effects a taking because it eliminates every beneficial use of the parcel.
In 1986, petitioner David H. Lucas purchased two residential lots on the Isle of Palms in Charleston County, South Carolina, for $975,000. He intended to construct single-family homes on the parcels, which at the time were zoned for such use and required no building permit for development. No portion of the lots qualified as a critical area under then-existing coastal zone legislation. Subsequently, in 1988, the South Carolina Legislature enacted the Beachfront Management Act. The legislation established a baseline and prohibited construction of occupable improvements seaward of a line drawn 20 feet landward of that baseline, directly affecting Lucas's parcels by barring any permanent habitable structures. Lucas filed an action in the Court of Common Pleas alleging that the Act's restrictions effected a taking of his property without just compensation. Following a bench trial, the court determined that the prohibition rendered the lots valueless and ordered the state to pay just compensation in the amount of $1,232,387.50. The Supreme Court of South Carolina reversed the trial court's judgment. It accepted the legislature's findings that new construction threatened public resources and concluded that a regulation designed to prevent serious public harm could not constitute a taking. The United States Supreme Court granted certiorari to review the South Carolina Supreme Court's decision.
View caseHector Huerta sought to maintain a historic cemetery site for tribal ceremonies. The state applied historic-preservation rules that closed the area to all visitors to protect cultural resources. The rules blocked the group's religious practices without physical invasion of the land. The preservation law raised questions about whether government could restrict access on public land for cultural-protection reasons.
The Chimney Rock area of the Six Rivers National Forest is located in a remote part of northwestern California. It has historically been used by members of the Yurok, Karok, and Tolowa tribes for religious worship. This includes prayer, meditation, and the collection of ceremonial herbs and materials at specific sites scattered throughout the forest. In 1977, the Forest Service prepared a final environmental impact statement for a proposal to harvest timber in the Chimney Rock area and to construct a six-mile paved road linking two existing roads. The environmental impact statement acknowledged that the proposed harvesting and road construction may have an impact on the religious practices of the tribes. This is because the proposed project will affect the sanctity of the Blue Creek area, which is considered sacred by the tribes. The statement also noted that the proposed road would be difficult to obliterate and that the timber harvesting would remove vegetation which screens the area from the road. In 1978, the Forest Service adopted a plan permitting timber harvesting in the area and construction of the road within a 200-foot right-of-way. The plan established protective buffer zones prohibiting timber harvesting and road construction within 100 feet of identified religious sites and logging roads within one-quarter mile of those sites. Respondents, who are members of the Yurok, Karok, and Tolowa tribes, the Northwest Indian Cemetery Protective Association, and others, brought suit in the United States District Court for the Northern District of California challenging the Forest Service decisions. After trial, the District Court issued a permanent injunction prohibiting construction of the road and timber harvesting in the Chimney Rock area. The Court of Appeals for the Ninth Circuit affirmed. While the appeal was pending, Congress enacted the California Wilderness Act of 1984. This designated much of the property as wilderness and thereby precluded commercial timber harvesting except for a narrow exempted strip coinciding with the proposed road route. The Supreme Court granted certiorari in 1987.
View caseHana Huang challenged a city decision to keep a historic monument in a public square. The monument had stood for decades as part of a preservation program. The display was challenged as an improper government endorsement. The preservation law was upheld because the monument's long presence reflected historical rather than religious purpose.
The Texas State Capitol grounds encompass 22 acres containing 17 monuments and 21 historical markers commemorating the people, ideals, and events that compose Texan identity. Among these stands a 6-foot-high and 3½-foot-wide granite monolith inscribed with the text of the Ten Commandments. The monument is positioned north of the Capitol building, between the Capitol and the Supreme Court building. Carved above the text are an eagle grasping the American flag, an eye inside a pyramid, and two small tablets with ancient script. Below the text appear two Stars of David and the superimposed Greek letters Chi and Rho. The base bears the inscription presented to the people and youth of Texas by the Fraternal Order of Eagles of Texas 1961. The monument was donated to the State by the Fraternal Order of Eagles, a national social, civic, and patriotic organization. After acceptance, the State selected the site based on the recommendation of the state organization responsible for maintaining the Capitol grounds. The Eagles paid the cost of erecting the monument, and its dedication was presided over by two state legislators. The legislative record of the acceptance is limited to journal entries. Thomas Van Orden, a native Texan and Austin resident who graduated from Southern Methodist Law School and was once a licensed lawyer, has encountered the monument during his frequent visits to the Capitol grounds since 1995. These visits are typically to use the law library in the Supreme Court building located northwest of the Capitol. Forty years after the monument's erection and six years after Van Orden began encountering it frequently, he filed suit against state officials under 42 U.S.C. §1983. He sought a declaration that the monument's placement violates the Establishment Clause and an injunction requiring its removal. Following a bench trial, the District Court ruled against him. The Court of Appeals for the Fifth Circuit affirmed those holdings. The Supreme Court granted certiorari to review the case.
View caseHakeem Harris objected to a large cross maintained by the city as a war memorial. The cross had stood for nearly a century under a historic-preservation designation. The city argued the display honored veterans rather than promoted religion. The preservation law allowed retention because the monument's age and context gave it secular historical meaning.
In 1918, residents of Prince George’s County, Maryland, formed a committee to erect a memorial for the county’s soldiers who fell in World War I. The committee chose a Latin cross design for the memorial, which was to stand at the terminus of the National Defense Highway connecting Washington to Annapolis. When the committee ran out of funds, the local American Legion post took over the project and completed the 32-foot concrete cross in 1925. The finished memorial displayed the American Legion emblem at its center and rested on a large pedestal bearing a bronze plaque that listed the names of 49 local soldiers who died in the war, along with the words Valor, Endurance, Courage, and Devotion. At the dedication ceremony, a Catholic priest offered an invocation and a Baptist pastor delivered a benediction. Since its dedication, the Bladensburg Cross has served as the site of patriotic events honoring veterans on Veterans Day, Memorial Day, and Independence Day. Over the following decades, additional monuments honoring veterans of later wars were added in the surrounding area, which became known as Veterans Memorial Park. As the area around the cross developed, the monument came to stand at the center of a busy intersection. In 1961, the Maryland-National Capital Park and Planning Commission acquired the cross and the land on which it sits to preserve the monument and address traffic-safety concerns, and the Commission has since spent public funds to maintain the memorial. In 2014, the American Humanist Association and several individual plaintiffs filed suit in the United States District Court for the District of Maryland against the Commission. The plaintiffs alleged that the cross’s presence on public land and the Commission’s maintenance of the memorial violated the Establishment Clause of the First Amendment. The American Legion intervened to defend the cross. The District Court granted summary judgment for the Commission and the American Legion. The United States Court of Appeals for the Fourth Circuit reversed the District Court’s decision. The Supreme Court granted certiorari, heard argument on February 27, 2019, and issued its decision on June 20, 2019.
View caseHassan Hakim owned coal rights beneath a historic district. State preservation rules required leaving pillars of coal in place to prevent surface damage to landmarks. The rules reduced the amount of coal that could be extracted. The preservation law was sustained because it served a legitimate public interest without destroying the owner's overall economic position.
Beginning well over 100 years ago, landowners in western Pennsylvania began severing title to underground coal and the right of surface support while retaining or conveying away ownership of the surface estate. Approximately 90 percent of the coal that petitioners mine or will mine was severed from the surface in the period between 1890 and 1920. When acquiring or retaining the mineral estate, petitioners or their predecessors typically acquired the right to deposit wastes, provide drainage and ventilation, erect surface facilities, and obtained waivers of claims for damages resulting from coal removal. In 1966 the Pennsylvania Legislature enacted the Bituminous Mine Subsidence and Land Conservation Act after concluding that existing subsidence legislation had failed to protect public safety, land conservation, municipal tax bases, and land development. Section 4 of the Act prohibits mining that causes subsidence damage to public buildings and noncommercial buildings used by the public, dwellings used for human habitation, and cemeteries that were in place on April 17, 1966. The Department of Environmental Resources applies a formula that generally requires 50 percent of the coal beneath protected structures to remain in place. Section 6 authorizes the Department to revoke a mining permit if removal of coal causes damage to a protected structure and the operator has not repaired the damage, satisfied any claim, or deposited security equal to the reasonable cost of repair within six months. Petitioners are an association of coal mine operators and four corporations engaged in underground mining of bituminous coal in western Pennsylvania. Their members and the corporate petitioners own, lease, or control substantial coal reserves and support estates beneath surface property affected by the Act. In 1982, petitioners filed a civil rights action in the United States District Court for the Western District of Pennsylvania seeking to enjoin officials of the DER from enforcing the Subsidence Act and its implementing regulations. The parties entered a stipulation of facts on the facial challenge and filed cross-motions for summary judgment. The District Court granted respondents' motion in 1984. The Court of Appeals affirmed in 1985. The Supreme Court granted certiorari in 1986. Stipulations established that enforcement of the 50 percent rule would require petitioners to leave approximately 27 million tons of coal in place across 13 mines containing over 1.46 billion tons total. This amount represents less than 2 percent of the coal in those mines. Petitioners did not claim that any specific mine had become unprofitable since the Act's passage.
View caseNo. Regulations that reduce property value or block the most profitable use are not takings when they leave economically viable uses. Courts apply a multi-factor test weighing economic impact, interference with investment-backed expectations, and the character of the action including historic preservation.
A per se taking occurs only when the regulation denies all economically beneficial or productive use of the land. If the owner retains any viable use such as continued rental operations or existing business activity, the multi-factor balancing test applies instead.
Expectations must be distinct and objectively reasonable. Informal zoning discussions or plans for more profitable redevelopment receive less weight than long-standing lawful uses. Continued ability to operate the property profitably under the preservation rules weighs against finding a taking.