Current Status of Historical Preservation Law in Regulatory Takings Jurisprudence: Has the Lucas "Missile" Dismantled Preservation Programs?




Phelan, Marilyn E.

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Fordham Environmental Law Journal


This Article addresses the conflict between governmental regulation to preserve cultural, architectural, or historical aspects of property and the Takings Clause. Part I of this Article - surveys and analyzes Supreme Court decisions spanning more than a century, from Justice Strong's 1879 opinion in Transportation Co. v. Chicago to Chief Justice Rehnquist's 1994 opinion in Dolan v. City of Tigard, to distill some principles that can be used to ascertain when a governmental regulation becomes a compensable "taking." Part II reviews lower court decisions and addresses historical protection laws as they relate to, or conflict with, the Takings Clause. Part III attempts to formulate some guidelines that preservationists and governmental officials can use in determining if, or when, historical preservation regulation will presently be deemed a compensable taking. This Article concludes that while the Supreme Court's recent takings decisions may constrain historic preservation efforts by requiring compensation in some cases, comprehensive preservation programs, such as zoning regulations, should continue to survive Takings challenges. With respect to those isolated instances in which specific properties are singled out and private use of the property is severely curtailed, a recognition that owners are entitled to compensation may cause private interests to have a more positive, and perhaps a more active, role in the preservation movement.



Government regulation, Takings clause, Property, Historical preservation


6 Fordham Envtl. L. J. 785