Posted by: bridget | 5 October 2006

Historical Preservation & Takings?

Random question: in light of the Kelo v. New London opinion, which radically expanded the Takings Clause to include any conceivable public use, can historical landmarks be appropriated for takings? (Most historical landmark/takings jurisprudence revolves around the issue of whether or not designating an area as a historical landmark is a “taking,” and courts have held that it is not.)

Before this, takings were limited to blighted areas or huge public projects, like highways – i.e. historical landmarks were safe, unless the feds needed to run a highway through it; it is illogical to deem something both too blighted to survive and in need of preservation. Now, an area that happens to have a historical landmark could be O’Connnor’s “Motel 6,” and razed for a higher-revenue project. Historical designations are made on the state or city level; if there is a conflict with state law, a state could presumably change its laws or regulations to allow declassification of the landmark, although, with Kelo, that probably won’t be necessary. Should the federal government want to commandeer the property, the Supremacy Clause will let it override any state/local historical designation… and probably over that state’s objections. This leads to the odd assymetry of the gov’t telling an individual that he may not even make aesthetic modifications to his property for historical purposes, but giving the gov’t the right to destroy the property in its entirety. As the Court has stated that it will not weigh the public value of the new projects (nor, presumably, the loss to the public of the property to be seized), what is the deterrent to seizing historically significant property?

The other issue is one of “just compensation.” As stated before, designating a property as a historical landmark, although it may devalue the property or decrease its commercial potential, is not a taking. When property is seized, the “just compensation” is usually market value. So, in theory, someone could buy a $500,000 property; it could be designated as historical, which would bring down the value to, say, $300,000; and the gov’t could then seize it and pay only $300,000 for it. Might actually be a nice way of bringing down the cost of compensating those whose property has been taken.

If any of you blog-stalkers have heard/seen/read any info re: this issue let me know… just something I thought of as I was looking at the old Cali missions. (The Oenophile probably needs a hobby… at least one in keeping with her name.)


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