NYU Law Review
(c) 1985 New York University Law Review.
New York University Law Review
60 N.Y.U.L. Rev. 64
LENGTH: 26134 words
NOTE: HISTORIC DISTRICTS: PRESERVING CITY NEIGHBORHOODS FOR THE PRIVILEGED.
David B. Fein
... Over the past fifty years, zoning has been the predominant method of land
use control, employed first in cities but now used primarily in suburbs.
Recently, historic preservation laws, especially historic district regulations,
have begun to rival zoning regulations as the most important land use tools in
urban areas. ... Historic districting therefore enables a preservation
commission to control the development of an entire neighborhood, much as zoning
laws enable a suburban planning board to direct the development of a
municipality. ... After designation, each district lost a significant number
of housing units, and real estate values rose sharply. ... Historic
preservation activities, however, caused a revitalization that brought
expensive homes, fashionable shops, and an affluent, homogeneous resident
population. ... Residents of urban neighborhoods look to the historic
preservation commission to play a planning role; they view district designation
as a substitute for zoning or as a corrective for what they regard as zoning's
failures. ... The Historic Savannah Foundation, a private preservation
organization, played a major role in obtaining designation of the Savannah
Historic District and actively participated in the neighborhood's
revitalization. ... The objective of historic preservation tax policy should
be to encourage neighborhood-based ownership and management of housing. ...
Since the early 1900's, municipalities have relied extensively on various land
use controls to regulate the use and development of real property.
n1 Over the past fifty years, zoning
n2 has been the predominant method of land use control, employed first in cities
but now used primarily in suburbs.
n3 Recently, historic preservation laws, especially historic district
regulations, have begun to rival zoning regulations as the most important land
use tools in urban areas.
n4 Unlike landmark regulations, which protect individual buildings, historic
district regulations protect entire areas of aesthetic, architectural, or
n5 by restricting development and alteration within designated areas.
[*65] This Note examines historic districting, focusing on its tendency to displace
or exclude low-income and minority residents from urban neighborhoods. Part I
traces the development of zoning and historic preservation laws; it identifies
three stages in the development of zoning and shows how preservation law has
passed through only two of the three stages. Part II examines two adverse
effects of historic districting: the displacement of the poor and minorities
from neighborhoods undergoing revitalization and the exclusion of these groups
from affluent residential areas. Part III argues that legislative action and
greater judicial scrutiny are needed to minimize the displacement and exclusion
caused by historic districting, without sacrificing its legitimate goals.
ZONING AND HISTORIC PRESERVATION LAWS
This Part shows that the development of zoning laws has evolved through three
stages: first, zoning laws were used for limited health and safety purposes;
second, zoning laws served to improve the quality of life in suburban
communities; and third, zoning laws were used to exclude minorities and the
poor from the suburbs, but then were attacked by some legislatures and courts
to ensure zoning's proper use. This Part then demonstrates that historic
preservation laws have passed through two of those three stages: first,
preservation efforts occured primarily at the private level to protect areas of
historic significance; and second, federal and state governments enacted
preservation laws that served aesthetic goals.
1. The Initial Stage
When the concentration of population in urban areas increased in the early
twentieth century, government extended the regulation of land use beyond the
restriction of noxious uses of property.
n7 As cities grew and building heights increased,
n8 industrial activity interfered with residential living.
n9 Boston's regulations, which applied lower height limits to
[*66] residential buildings than to commercial ones, typified the earliest zoning
n10 The United States Supreme Court upheld Boston's restrictions as proper
exercises of the state's police power
Welch v. Swasey,
n12 finding them reasonably related to the public welfare, especially to the
prevention of fire.
Legislators also enacted zoning ordinances to regulate specific uses of
property, primarily the location and concentration of industrial activities.
n14 In 1916, New York City passed the first comprehensive zoning ordinance.
n15 The ordinance, which served as a model for the many ordinances enacted in the
n16 divided the city into three types of use districts -- residential, business,
and unrestricted -- and also established bulk and height districts.
At the federal level, the Advisory Committee on Zoning, appointed by Secretary
of Commerce Herbert Hoover, issued the Standard State Zoning Enabling Act in
the early 1920's.
n18 The Act provided state governments with a procedure to delegate the state's
police power to municipalities for zoning purposes.
n19 The Act was immediately popular
[*67] because it bore the imprint of federal legitimacy and spared state legislators
the task of drafting their own statutory language.
2. Zoning's Prime
The New York City ordinance and the Standard State Zoning Enabling Act
triggered the rapid promulgation of municipal zoning ordinances that regulated
the purposes for which property could be used.
n22 The Supreme Court first considered the constitutionality of these use
Village of Euclid v. Ambler Realty Co.
n23 At issue was whether a Cleveland suburb's zoning ordinance that prohibited a
realty company from using its property for commercial purposes exceeded the
state's police power.
n24 The Court upheld the ordinance, finding it use restrictions sufficiently
related to the public welfare.
n25 The Court noted that although the general public interest may at times
outweigh a municipality's interest in promoting police power objectives through
zoning regulations, this concern was not compelling in
Although zoning measures became more numerous and sophisticated after
n27 the Supreme Court has rarely decided zoning cases.
Village of Belle Terre v. Boraas,
n29 the Court's first zoning case in over forty years, the Court upheld a zoning
ordinance that prohibited more than two unrelated persons from living in the
same house. Relying upon
Berman v. Parker,
n30 the Court extended its notion of the proper use of the police power:
"The police power is not confined to elimination of filth, stench, and unhealthy
places. It is ample to lay out zones where family values, youth values, and
the blessings of quiet seclusion and clean air make the area a sanctuary for
3. The Adverse Effects of Zoning and Government's Response
In response to the migration to the suburbs following World War II, suburban
municipalities amended their zoning laws to preserve the quality of life.
n32 Some municipalities passed zoning laws requiring larger minimum lost sizes.
n33 Other towns restricted the number of builing permits issued and the areas and
type of development allowed,
n34 and excluded entirely certain residential uses such as mobile homes,
apartments, and row houses.
n35 These land use controls frequently precluded the construction of low cost
housing and consequently excluded poor and minority residents from the suburbs.
This practice has become known as exclusionary zoning.
n37 The exclusion of minorities and the poor from the suburbs traps them in
deteriorating urban neighborhoods and denies them equal access to employment,
decent housing, and adequate education.
n38 Because suburban communities do not have formal responsibilities to the
metropolitan areas in which they are located, they are able to perpetuate class
and racial segregation through the use of exclusionary zoning.
Most state courts have upheld exclusionary zoning ordinances,
[*69] on the Supreme Court's broad construction of a local government's police power
to enact land use controls.
n41 For example, courts have upheld ordinances mandating large minimum lot sizes,
n42 as well as ordinances banning apartment buildings.
Several efforts have been initiated at the state, regional, and federal levels
to curb exclusionary zoning. The Massachusetts legislature has created a state
review procedure to ensure that suburban communities provide adequate low- and
n44 Municipal communities in the Dayton, Ohio metropolitan region agreed to
provide 14,000 units of federally subsidized low- and moderate-income housing
under a formula prepared by a regional planning commission.
n45 To eliminate the discriminatory uses and effects of zoning, several
presidential commissions have recommended various zoning reforms,
n46 especially greater federal control over local zoning practices that prevent
the construction of low- and moderate-income housing.
Judicial scrutiny of zoning ordinances has increased in the past decade,
[*70] but only in the states where the exclusionary effects of zoning are most
n48 Although the specific formulations vary, the courts have recognized that local
zoning ordinances have a broad extraterritorial impact,
n49 and therefore the courts have converged on the principle that each community
must provide its share of the region's housing needs.
n50 State courts in New Jersey,
n51 New York,
n52 and Pennsylvania,
n53 relying on state constitutional provisions, require municipal land use
regulations to promote the
"general welfare," which they have defined as the welfare of the entire region.
The clearest articulation of this
"fair share" principle is
Southern Burlington County NAACP v. Township of Mount Laurel,
n54 in which the New Jersey Supreme Court held that a municipal zoning ordinance
[*71] limited residential construction to single family homes on lots of at least
one acre violated the state constitution.
n55 The court found that because low- and moderate-income housing was scarce
throughout the region, Mount Laurel must provide its fair share of such
n56 In light of
Mount Laurel I, a developing municipality in New Jersey is not just prohibited from adopting
regulations that preclude the provision of adequate housing for all categories
of people; it is obligated affirmatively to provide a
"reasonable opportunity" for housing to all those
"who may desire to live within its boundaries."
n57 Eight years after
Mount Laurel I, in
Mount Laurel II,
n58 the New Jersey Supreme Court attempted to strengthen, clarify, and facilitate
the application of the
Mount Laurel doctrine, in order to assure that the housing that had been expected would
result from its decision.
B. Historic Preservation
1. The Initial Stage
The development of a historic preservation movement in mid-nineteenth-century
America stemmed from the emergence of a national consciousness
n60 and an interest in civic education.
n61 The preservation of buildings for their aesthetic merit was not a primary
motivation, as it is
n62 Reflecting preservationists' preoccupation with imparting a sense of history
and stability to American society,
n63 early preservation activities focused on inspiring the viewer with a sense of
patriotism and on protecting buildings associated with famous individuals or
Early historic preservation efforts were propelled by individuals and private
organizations, not by the government.
n65 Preservationists saved structures threatened with demolition by purchasing
them with private funds.
n66 Although local and state governments occasionally purchased and maintained
n67 the federal government did not participate, perhaps because the preservation
of property was thought to be beyond its power.
The federal government began its first major preservation efforts in the late
nineteenth century when it purchased Civil War battlefields as memorials.
n69 Congress' condemnation of private property to establish a national memorial at
the Gettysburg battlefield site led to the first significant preservation
United States v. Gettysburg Electric Railway Co.,
n71 the Supreme Court concluded that the preservation of this historic site served
a public purpose
n72 -- recognizing, for the first time,
[*73] that such preservation could be within the government's condemnation power.
After local governments began to extend their police power reach to land uses
that were not inherently noxious,
n74 preservation efforts in the 1920's broadened to protect buildings of
architectural as well as historical significance,
n75 and to protect groups of buildings as well as individual landmarks.
n76 In response to significant private preservation initiatives around the
n77 local and state governments amended their zoning ordinances to protect famous
n78 The first cities to enact such regulations were New Orleans,
n80 and San Antonio.
These early preservation ordinances, which were upheld by state courts,
n82 shared several characteristics. First, the ordinances imposed architectural
controls on landowners, requiring them to maintain their buildings or
prohibiting them from demolishing or altering their buildings without approval.
n83 Second, the statutes applied the benefits and
[*74] burdens of preservation regulations to entire neighborhoods and not to
individual buildings, thereby averting claims of discrimination against
individual property owners.
n84 Third, because land use regulations based solely on aesthetic considerations
were struck down by state courts,
n85 local and state governments relied on an economic rationale, tourism, as the
primary basis for the legislation.
2. Historic Preservation's Prime
The Supreme Court's 1965 decision in
Berman v. Parker
n87 strongly supported land use controls based on aesthetic considerations.
n88 In approving the destruction of a building located in the District of
Columbia's urban renewal area, the Court emphasized the government's power to
regulate for aesthetic ends. Justice Douglas wrote for a unanimous Court in
"[i]t 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."
Berman triggered the most active period in historic preservation. Many local
governments enacted preservation ordinances, often without waiting for state
n90 State governments began playing a more active role;
n91 by 1964, almost every state had enacted a preservation program.
In 1965, pursuant to a state enabling act,
n93 New York became the
[*75] first major city to pass a comprehensive landmarks and historic districts
n94 New York City enacted its preservation ordinance and established the Landmarks
Preservation Commission, with the purpose of
"preserving sites and districts special to the city's cultural, social,
economic, political, and architectural history."
n95 Designation of property as a landmark
n96 or a historic district
n97 imposes significant limitations on its owner's use. Before altering,
reconstructing, or destroying the exterior of an existing structure, or
erecting a new structure on a designated site, the landowner must obtain
n98 The Commission will approve the request if it finds that the proposed work
would not affect any exterior architectural feature, would not be
inappropriate, or that the denial of the request would result in insufficient
n99 The ordinance provides interested and affected people with the opportunity to
comment on designation proposals and with procedures to obtain modification,
disapproval, or rescission of designations.
An influential 1965 report by the United States Conference of Mayors propelled
the federal government to take an active role in preservation.
n101 The report found that nearly half the buildings identified by the 1935 federal
Historic American Buildings Survey had been destroyed.
n102 The federal government followed most of the report's detailed recommendations
[*76] over the next fifteen years. The most important result of the report was the
passage of the National Historic Preservation Act of 1966 (NHPA),
n104 which remains the basic federal preservation statute. The NHPA established
the Advisory Council on Historic Preservation
n105 to advise the President and Congress on historic preservation and to develop
preservation guidelines and policies.
n106 It also established the National Register of Historic Places, an official
listing of the nation's historic properties,
n107 and provided for matching grants-in-aid to states and to the National Trust
for Historic Preservation.
There were two major developments in historic preservation in the 1970's.
First, in the most significant preservation decision to date,
Penn Central Transportation Co. v. New York City,
n110 the Supreme Court upheld restrictions imposed by the New York City Landmarks
Law on the alteration of designated buildings.
n111 In upholding the New York City Landmarks Commission's designation of Grand
Central Terminal as a landmark, the Court enthusiastically endorsed municipal
n112 The Court held explicitly that governments may exercise their police power
solely on the basis of aesthetic considerations.
Second, local, state, and federal governments began to provide benefits and
direct financial assistance to developers of, and investors in, properties
designated for preservation. At the local and state levels, property tax
provisions are the most common incentives.
n114 In some states, owners of landmarks or properties in historic districts may be
[*77] for freezes on the assessed value of their property or for property tax
abatements or exemptions, whether or not they renovate the property.
n115 In other states, expenditures for renovation and other improvements of
designated landmarks may result in preferential property tax treatment.
At the federal level significant preservation incentives were first introduced
into the Internal Revenue Code by the Tax Reform Act of 1976.
n117 In 1978, Congress created additional incentives for the renovation and
restoration of designated properties, including a modification that expanded
the kinds of rehabilitation projects that qualified for investment tax credits.
n118 Finally, in 1981, Congress replaced the 1976 Act's five-year amortization and
accelerated depreciation incentives with generous investment tax credits of up
to twenty-five percent for certified historic structures.
[*78] The twenty-five percent credit is the most beneficial tax treatment available
for real estate investment under federal law.
n120 According to a recent study, over eighty percent of the property owners using
the twenty-five percent credit said that it was an important factor in their
decision to preserve a historic building.
n121 Since the tax credit was instituted in 1981, the number of rehabilitation
projects stimulated by these incentives has risen dramatically.
Local, state, and federal governments have also established a variety of
financing programs to facilitate preservation in the private sector. The
largest of these initiatives, the Urban Development Action Grant (UDAG)
n123 combines federal subsidies with private investment.
n124 Other financial incentives provided by governments include subsidies for the
purchase of unrenovated historic properties, reductions in interest rates for
construction loans and mortgages, and reduced property taxes.
THE ADVERSE EFFECTS OF HISTORIC DISTRICTING
These numerous tax and other financial incentives, in combination
[*79] with the legal principles established in
Berman and strengthened in
n126 have created an atmosphere conducive to preservation activity.
n127 Historic preservation contributes to the general welfare of the community,
offers educational and cultural opportunities for the public, and enhances the
general economic environment within a municipality by encouraging tourism and
Especially in the form of historic districting, however, historic preservation
can have undesirable consequences that outweigh its positive contributions.
Historic districting may displace and exclude minorities and the poor from
A. Why Focus on Historic Districting?
Historic preservation law encompasses the regulation of both individual
landmarks and historic districts. Although these two types of regulations
involve similar review procedures for designation and permits, three features
unique to historic districting make it more likely to displace and exclude
minorities and the poor.
First, historic district regulations have a greater effect on urban
neighborhoods. In contrast to the limited impact designation of one landmark
has on a neighborhood,
n130 a district designation in effect confers landmark status on every building
within its boundaries.
n131 Historic districting therefore enables a preservation commission to control
the development of an entire neighborhood, much as zoning laws enable a
suburban planning board to direct the development of a municipality.
Second, district designation, unlike landmark designation, typically
[*80] is not hindered by conflict among neighborhood residents.
n133 Unlike landmark regulations, which burden only landmark owners, the strict
controls imposed by historic district regulations benefit and burden all
district landowners in an essentially comparable manner.
n134 Because property owners know that change in the neighborhood can be controlled
by subjecting all property owners to similar restrictions, they often initiate
district designation. In contrast, landmark owners usually contest landmark
designation, generating conflicts with community residents, who often favor the
Third, under the broad standards of most preservation ordinances, virtually any
neighborhood can be designated a historic district.
n136 To support a finding that a district is historic, the designating authority
can refer to an entire neighborhood, not just to a single structure. Indeed, a
historic district need not contain a single landmark building, as long as the
designating authority finds some historic, aesthetic, or architectural
significance to the area as a whole.
n137 In effect, any district is historic if it
"is, in some fashion or another, not run-of-the-mill."
B. Districting and Displacement
Historic districts are often old residential areas of cities occupied primarily
by poor and minority residents.
n139 District designation attracts
[*81] developers and investors to these neighborhoods. Competition among those
interested in profiting from designation inflates property prices, thereby
initiating or accelerating the process of
Gentrification in the cities exacerbates an already severe national housing shortage that
most harshly affects minorities and the poor. Two recent presidential
commissions have addressed the state of the nation's housing. The 1982
Presidential Commission on Housing found that roughly 1.1 million low-income
renters had inadequate housing and spent an inordinate portion of their income
-- over thirty percent -- for rent.
n141 The Commission found that most of these renters were minorities, particularly
blacks, and lived in older, larger cities.
n142 Three years earlier, the National Commission on Neighborhoods also identified
the national housing problem:
"For the low and moderate income family, their housing stock is shrinking while
their housing costs are increasing."
The Commission on Neighborhoods believed, moreover, that the surge in
neighborhood preservation exacerbated housing problems. Despite its
"important and proper role,"
n144 neighborhood preservation
"initiates a process known as 'gentrification,' which displaces the elderly, blue-collar workers, and the unemployed in favor
of professionals and white-collar workers."
n145 A handbook on fighting displacement emphasized that
"historic preservation laws are far more protective of buildings
[*82] than of the tenants inside them" and that
"efforts to conserve our historical heritage may wind up imposing severe
displacement costs on the lower-income people to whom these buildings have
n146 Thus, the displaced
n147 minorities and poor are the casualties of the reverse migration of the
affluent back to the cities.
Designation of older, economically depressed urban neighborhoods as historic
districts can revitalize those communities or accelerate neighborhood
revitalization begun before designation.
n148 Revitalization is spurred by the tangible and intangible economic benefits
that accompany district designation. As discussed above, local, state, and
federal governments provide tangible economic incentives in the forms of
property tax benefits, income tax benefits, and financial assistance.
n149 These tangible benefits also create greater awareness in cities for the
potential of revitalization.
Intangible economic benefits of district designation also help to create a
favorable climate for investment.
n151 The architectural controls imposed by district designation assure investors,
developers, rehabilitators, and residents that alterations and new construction
in the district will follow strictly enforced architectural patterns.
n152 Uses of property and architectural styles that might alter the character of
the neighborhood typically are restricted or prohibited.
n153 By calling attention to the underlying
[*83] qualities of the buildings in the area and the general character of the
neighborhood, district designation signals that a neighborhood is safe for
Several recent studies have documented the ability of historic districting to
help revitalize urban neighborhoods. A study of the effects of historic
districting in twenty-six cities conducted for the Urban Institute concluded:
[I]n many cases, designation did help to create a more favorable climate for
"aesthetic value" of historic designation may, to some extent, stimulate the interest of
existing property owners in rehabilitating their structures. And it appears
that designation often serves to direct the attention of outsiders, looking for
an old home in the city, to the designated area.
A study conducted for the Advisory Council of Historic Preservation found that
each of the four urban historic districts examined experienced significant
revitalization after designation.
n156 The study concluded that
"[h]istoric preservation activity in urban historic districts has contributed
significantly to the revitalization of those districts and [has] encouraged a
n157 In each district, the revitalization process began as preservation-related
n158 which attracted
"middle and upper income families and individuals" to the neighborhoods.
Neighborhoods in several cities, including Washington, D.C.,
n160 San Francisco,
n162 and Boston,
n163 as well as neighborhoods in Cincinnati,
n165 and Seattle
n166 have all experienced revitalization after district designation. In Seattle,
the establishment of the Pioneer Square Historic District spurred extensive
private redevelopment of buildings
n167 and attracted thousands of additional visitors to the area.
n168 A study of the Park Slope Historic District in Brooklyn found that
"the intangible or subjective benefits of historic designation appear to be real."
District designation, which helps to revitalize urban neighborhoods, may also
result in a decrease in the housing supply and an increase in housing costs.
As a result of rehabilitation activities, historic districts lose significant
amounts of housing,
n170 as much as one-third to one-half of their housing stock.
n171 The demand for housing in historic districts
[*85] also increases,
n172 causing property values to increase significantly.
The displacement of the many renters who inhabit historic districts is the most
common hardship imposed by revitalization.
n174 Landlords may evict their tenants directly or may sell their buildings to
people who will convert them to single-family use.
n175 Additionally, rehabilitation may lead to steep rent increases, which in turn
may force low-income tenants to leave their homes.
n176 As one report makes clear,
"[r]enters are much more vulnerable to uncompensated displacement than
owner-occupants since rent can rise a percentage of income faster than property
Low-income homeowners, who ordinarily constitute a small percentage of district
n178 may also be displaced by
n179 Although homeowners are not subject to eviction, many may be unable to pay the
higher property taxes that result from reinvestment
n180 and the cost of the repairs that are required by the preservation code.
n181 Some homeowners may also leave the neighborhood because of high offers from
buyers. The departure of renters and homeowners, involuntarily or voluntarily,
transforms low-income and minority neighborhoods into
"someone else's 'turf.'"
Various studies connect displacement of the poor and minorities with district
n183 One study found that displacement had occurred in the four districts examined.
n184 Each district was a poor neighborhood with overcrowded housing conditions.
n185 After designation, each district lost a significant number of housing units,
n186 and real estate values rose sharply.
n187 For example, property values in portions of the Strand Historic District in
Galveston increased an average of 84.9% in the first three years of
n188 Before designation, Alexandria's Old Town contained predominantly
working-class residents. Historic preservation activities, however, caused a
revitalization that brought expensive homes, fashionable shops, and an
affluent, homogeneous resident population.
n189 As property values rose, speculation increased and poor and minority residents
were displaced from the historic district and from areas immediately outside
Individual case studies of historic districts in Washington, D.C., San
Francisco, Atlanta, Boston, Cincinnati, and Brooklyn revealed that significant
demographic changes coincided with residential rehabilitation and rising
n191 The Park Slope study, for example, found that revitalization contributed to
the displacement of low-income residents.
n192 In a study of sixty-five urban neighborhoods undergoing rehabilitation in
1976-1977, the National Urban Coalition found that fifty percent of the
neighborhoods experienced a decrease in the number of
[*87] minority residents.
n193 The National Commission on Neighborhoods also recognized the displacement
associated with historic districting.
n194 It found that historic district restoration
"has often come at the expense of low and moderate income residents of those
newly discovered historic neighborhoods, many of whom have been displaced by
more affluent homeowners."
Preservationists generally deny that historic districting causes low-income and
minority residents to be ousted from their neighborhoods.
n196 They argue that districting is a result, not a cause, of
n197 This claim, however, conflicts with preservationists' boasts that districting
revitalizes urban neighborhoods.
n198 Moreover, even if district designation follows revitalization, it can still be
used to preserve the status quo and to exclude the poor and minorities.
C. Districting and Exclusion
The current reverse migration of the affluent from the suburbs to the cities
has created distinctive urban land use conflicts.
n199 The new urban residents fear that rapid, uncontrolled growth will spoil their
n200 much as new development threatened to transform suburban neighborhoods in the
1950's and 1960's.
n201 Thus, like their suburban
[*88] counterparts, some urban neighborhoods have responded to pressures from
outsiders who seek to enter their community by exhibiting a
"country club" attitude.
n202 By using land use controls to upgrade their
"membership" requirements, the residents hope to maintain their already vital urban
Zoning, however, is an ineffective tool to shield urban neighborhoods from the
changes associated with explosive growth.
n204 Suburban zoning devices such as large lot zoning or prohibitions on apartment
buildings are generally impractical in cities. Moreover, unlike suburban
municipalities, urban neighborhoods do not enact their own zoning ordinances.
Urban neighborhoods are regulated by city planning authorities who, anxious to
attract new businesses and residents to the city, resist growth controls.
Urban residents exercise greater control over the composition of their
neighborhood by using historic district regulations.
[*89] designation imposes new costs on residents and heavily restricts further
change in the neighborhood.
n207 The result is often to exclude low-income housing and therefore to exclude or
displace poor and minority individuals. Historic districting frequently serves
the same function in cities that exclusionary zoning serves in the suburbs.
n208 By controlling development, districting permits urban neighborhoods to
perpetuate and in some instances to aggravate patterns of class and racial
Residents of urban neighborhoods look to the historic preservation commission
to play a planning role; they view district designation as a substitute for
zoning or as a corrective for what they regard as zoning's failures.
n210 Most preservation commissions, however, are explicitly denied the power to
perform zoning functions. Historic preservation commissions are authorized to
protect landmarks and historic districts, not to address general concerns about
density, height, and use.
n211 A former chairperson of the New York City Landmarks Preservation Commission
has warned against the efforts of residents to seek historic designation for
[*90] It is becoming increasingly apparent that there is a growing tendency to use
designation for purposes outside the jurisdiction of the law and even at times
explicitly denied to the Landmarks Preservation Commission by the law. . . .
[L]andmarking is being used to stop demolition, to prevent development and
change, to prevent a high-rise with change in use, bulk, scale, etc. These are
planning issues reserved for the City Planning Commission . . . .
Other commentators have complained that designation is sought for purposes
other than the preservation of historic areas.
n213 One study found that the New York City Landmarks Preservation Commission had
"'willingly accommodated local groups in abusing the [landmarks] law by
employing it for zoning purposes rather than for its lawful purpose of
The Upper East Side in New York City is a prime example of the designation of a
historic district to exclude the poor and minorities.
n215 All thirty-three speakers who testified before the city's Board of Estimate in
favor of designation were concerned that rapacious developers would
[*91] ruin their neighborhood.
n216 Only fifteen people mentioned the need to preserve the Upper East Side's
Two debates following the designation of the Upper East Side provide additional
evidence that preservationists were motivated by zoning concerns. In response
to a request by a developer of a twenty-story apartment tower for a waiver of
the restrictions, preservationists argued that the designation . . . was
intended to prevent tall buildings, not to permit them. . . . They further
contend[ed] that the project would destroy the gentle nature of the [block on
which it would be located], now one of the few full city blocks on the Upper
East Side to contain no tall buildings, and that it represents another attempt
to shoehorn development into tight Manhattan sites.
More recently, a proposal to extend the Upper East Side Historic District from
fewer than sixty blocks to more than ninety-five has engendered debate.
n219 Even though the residents were warned that they
"should not think of historic districts as a way to halt development,"
n220 the proposal was offered as a way of relieving
"powerful developmental pressures."
Despite the misuse of preservation by urban residents who seek to maintain
their neighborhoods, the displacement and exclusion of minorities and the poor
are not necessary byproducts of historic districting. If the problems
associated with historic districting are to be solved, however, courts,
legislatures, and preservationists must scrutinize more closely and control
more tightly the designation and administration of historic districts.
THE PROPER USE OF HISTORIC DISTRICTING
Historic district regulations contribute to the general welfare of the
n222 Despite its virtues, however, current historic districting
[*92] regulation displaces
n223 and excludes
n224 poor and minority residents from designated neighborhoods. By displacing
residents, historic districting aggravates an already severe national housing
n225 By enabling wealthier residents in effect to preclude minorities and the poor
from living in designated neighborhoods, historic districting serves an
In order to prevent the displacement and exclusion of the poor, preservation
proponents, legislators, and judges must use historic district regulations more
self-consciously. First, proponents of preservation must recognize that
historic district designations may have undesirable consequences. Second,
legislatures should implement innovative controls to prevent the misuse of
historic districting. Third, courts should more closely scrutinize
preservation commission decisions to ensure that they comply with the enabling
legislation and state and federal constitutions.
A. Preservationists' Awareness of Displacement and Exclusion
Initially, private and public advocates of preservation must recognize that
historic districting displaces and excludes the poor. Although
preservationists usually focus on the advantages of historic districting, they
are beginning to acknowledge the problems associated with these regulations.
At a national preservation conference in 1979, a preservationist spoke of a new
direction for historic preservation:
In urban preservation and conservation, we need to stabilize neighborhoods in
order to prevent displacement and to keep real estate prices at levels that
will enable people of different incomes to live in rehabilitated communities. .
. . [Developers] must recognize that all properties need not be sold at a
profit; some properties must have lower prices. It may be easier to fix up
property and rent it. . . . In such cases, organizations may have to interfere
in the marketplace to prevent displacement.
Additionally, in its 1979 report to the President, the National Commission on
Neighborhoods asserted that
all levels of government must develop strong policies which insure that
historic preservation programs do not contribute to the displacement of low and
moderate income and minority residents of the designated areas. These policies
must include a monitoring system which will consistently and effectively review
preservation programs throughout
[*93] their implementation phase.
Despite these occasional voices, however, most proponents of preservation have
ignored the problems of displacement and exclusion.
n229 For example, the Conservation Foundation and the National Center for
Preservation Law, in their recent handbook on historic preservation law,
devoted only one equivocal sentence to the problems of historic districting:
"Neighborhood revitalization will raise cries of low-income displacement."
n230 In addition, although the President's Commission on Housing recognized in 1982
that land use laws cause severe displacement and exclusion, it did not
associate these problems with historic districting.
n231 Until proponents of preservation acknowledge the link between historic
districting and the displacement or exclusion of minorities and the poor, it
will be difficult to remedy the problem through legislative and other
B. Legislative Control and Innovation
Local, state, and federal legislatures should ensure that historic districting
legislation preserves historic neighborhoods without displacing or excluding
n232 For several reasons, legislatures rather than courts should undertake the task
of reforming historic districting laws to ensure that they are not used to harm
minorities and the poor. In exercising their police powers, legislatures are
required to enact measures that serve the general welfare of the entire
n233 Legislators should alter preservation ordinances that disadvantage portions of
the community. In addition, historic districts are legislative creations;
n234 consequently, legislators should ensure that they are used properly. Finally,
[*94] under most enabling legislation, legislatures are not granted authority to
promulgate historic districting regulations that achieve objectives other than
the preservation of buildings or districts of historic significance.
n235 Legislatures can remedy the current problems with historic districting while
still achieving its legitimate goals through the two methods discussed below.
1. Amendments to Preserving Legislation
Local and state legislatures should amend their preservation laws in order to
minimize the displacement and exclusion of the poor and minorities from
historic districts. Several amendments to the state and local preservation
legislation would limit the improper use of preservation. Preservation laws
should contain provisions that require the regulatory authority to place
preservation in the context of other community needs. At both the designation
and permit stages, the commission should be required to balance the community's
interest in preserving a historic district against those social needs, such as
housing for the poor, that would be better served by alteration, destruction,
or construction of buildings and other structures in the proposed district.
n236 Had preservation commissions weighed the social costs of completely preserving
a historic district against the benefits, they might not have blocked the
construction of low-income housing projects, nursing home facilities, and mass
One municipality, the District of Columbia, has enacted historic preservation
laws that reflect the need to balance the social costs and benefits of such
measures. Under the District of Columbia's 1978 Historical
[*95] Landmark and Historic District Protection Act,
n238 the mayor may approve the demolition of an otherwise protected structure if
the demolition is necessary to effectuate a
"project of special merit."
n239 Under the Act,
"special merit" is defined as a
"plan or building having significant benefits to the District of Columbia or to
the community by virtue of exemplary architecture, specific features of land
planning, or social or other benefits having a high priority for community
n240 The District of Columbia Court of Appeals has upheld demolition permits issued
pursuant to this provision.
Preservation laws should also be amended to facilitate challenges to
districting by those who are displaced or excluded.
n242 Preservation laws place significant restrictions on residents' property
interests. Because these laws interfere with residents' right to use and enjoy
their property, procedural due process protections should be provided.
Preservation laws, which generally contain few procedural safeguards, should be
amended to include procedural safeguards similar to those found in a
municipality's other land use laws, such as its zoning laws.
n244 The New York City preservation ordinance is a good example of
[*96] a preservation law with inadequate procedural safeguards.
n245 Decisions by the Preservation Commission become effective upon passage,
n246 unless repealed by the Board of Estimate within ninety days.
n247 In contrast, zoning decisions by the City Planning Commission receive more
n248 In addition, although the preservation law expressly provides for the
Preservation Commission to promulgate procedures to carry out its functions,
n249 no procedures have been adopted. Although the Preservation Commission must
give notice to all affected landowners prior to designation or to action on a
permit request, failure to give notice does not invalidate the proceeding.
n250 Such procedural protections would ensure that potential victims of
displacement have a meaningful opportunity to be heard before a district is
Finally, the composition of preservation commissions should better reflect the
communities they serve. The composition of Washington, D.C.'s Historic
Preservation Review Board is tailored to achieve this goal. The ordinance
requires appointments to the board to
"be made with a view toward having its membership represent to the greatest
practicable extent the composition of the adult population of the District of
Columbia with regard to race, sex, geographic distribution and other
n251 In contrast, the New York Landmarks Preservation Commission must be composed
of at least three architects, one historian, one city planner or landscape
architect, one realtor, and at
[*97] least one resident from each of the city's five boroughs.
2. Restructure Financial Incentives
Federal, state, and local governments should encourage preservation initiatives
designed to minimize the displacement that results from historic districting.
n253 Legislators should also deny tax incentives to rehabilitators who displace and
exclude minorities and the poor.
n254 Not all historic preservation activity need be income-producing; preservation
laws should complement other policy goals, such as improving the housing stock
for minorities and the poor.
n255 Like the affluent, poor and minority residents should benefit from historic
Federal, state, and local governments should establish and strengthen financial
incentives for preservation rehabilitation that enable minority and poor
residents to remain in improving neighborhoods. At the federal level,
financial assistance programs such as Community Development Block Grants
n257 Urban Development Action Grants (UDAG),
n258 Section 312 rehabilitation loans,
n259 urban homesteading,
[*98] Section 8 payments,
n261 and the Neighborhood Strategy Area (NSA) program
n262 can help achieve this objective.
n263 Under the largest of these programs, the UDAG program, the Department of
Housing and Urban Development is authorized to make grants to areas that
"are experiencing severe economic distress to help stimulate economic
development activity needed to aid in economic recovery."
n264 To receive a grant, local governments must obtain from private investors a
financial commitment several times the size of the grant.
Using federal incentives, many localities already have implemented programs
designed to achieve the valid goals of historic districting without causing
displacement of a neighborhood's poor and minority residents.
n266 The Savannah Historic District and the adjacent Victorian
[*99] District are the most notable examples.
n267 Savannah succeeded through private sector activity aided by public sector
n268 The Historic Savannah Foundation, a private preservation organization, played
a major role in obtaining designation of the Savannah Historic District and
actively participated in the neighborhood's revitalization.
The foundation subsidized low-income renters through two programs of the United
States Department of Housing and Urban Development: Section 8 housing
assistance and Section 312 investment rehabilitation loans.
n270 This program has enabled the Savannah Historic District to achieve dramatic
revitalization with minimal displacement.
n271 Although some displacement occurred as a result of the district designation,
the neighborhood retains an economically and racially diverse population.
The neighboring Victorian District is currently being restored with the
assistance of the Savannah Landmarks Rehabilitation Project, an offshoot of the
Historic Savannah Foundation.
n273 The population of the Victorian District is eighty-nine percent black and
n274 Savannah Landmarks, relying on public subsidies and private grants, is trying
to make at least half of any rehabilitated units available to current
n275 Without these subsidies and grants, the rent and mortgage increases that
result from rehabilitation costs would probably displace most residents.
n276 Although some
gentrification activity is occurring in
[*100] the Victorian District,
n277 the early results suggest that the revitalization has not significantly
altered the economic and racial composition of the neighborhood.
Similar programs to provide assistance for housing rehabilitation exist at the
n279 and local
n280 levels, where the majority of public funds for preservation are currently
n281 Low-interest rehabilitation loans, for example, can be made available to
low-income owners of historic properties through revolving funds.
n282 In Norfolk, Virginia, a Private Loan Program provides rehabilitation loans,
secured by second mortgages, to homeowners of low and moderate income.
n283 In Detroit, a neighborhood organization purchased or acquired options on
Victorian homes in a local historic district and created a 109-unit
rehabilitation project for low-income residents.
n284 Similar efforts have been undertaken in Saint Louis, Dallas, Pittsburgh, and
[*101] Tax breaks should not be offered to rehabilitators who prevent poor and
minority residents from remaining in their communities.
n286 If the government fails to support preservation through tax incentives,
reinvestment in older urban neighborhoods will still continue, albeit perhaps
more slowly. Because historic rehabilitation is profitable on its own terms,
developers will undertake many preservation projects without tax incentives.
To reduce the risk that support for, and interest in, preservation will decline
with the withdrawal of tax breaks, governments could offer tax incentives for
projects designed to minimize the adverse effects of districting.
n288 In addition, tax breaks could be offered in conjunction with existing or
proposed federal low-income housing programs. The objective of historic
preservation tax policy should be to encourage neighborhood-based ownership and
management of housing.
[*102] individual, cooperative, and condominium ownership and through resident
landlords and investors, communities can free themselves from the absentee
control that tends to displace poor and minority residents.
n290 Neighborhood-based ownership and control of housing will be responsive to
residents' wishes for the maintenance and improvement of a decent urban living
C. Judicial Scrutiny
Greater scrutiny of preservation schemes should be exercised by the judiciary.
For many years, courts were hostile to claims that the police power encompassed
n292 Now that aesthetics is an accepted goal for the police power, courts subject
preservation laws to a lower level of scrutiny than other land use regulations.
As one commentator has noted about historic preservation law,
"[i]n no other area of planning law has the change in judicial attitudes been so
n293 The courts explain their deference to preservation laws as an unwillingness to
evaluate legislative aesthetic judgments.
n294 It is the subjective nature of aesthetic judgments that should lead courts to
scrutinize the procedural aspects of preservation laws more closely.
Courts should undertake several inquiries to assure that historic districting
will not cause displacement or exclusion. First, if legislatures fail to
impose procedural due process protections, courts should do so when they are
absent from districting laws
n296 and should strike down those laws that violate procedural due process. In
Historic Green Springs, Inc. v. Bergland,
n297 a landmark designation was set aside on procedural due process grounds.
n298 Although other courts have subjected preservation
[*103] laws to procedural due process review, most have upheld the laws despite the
inadequacy of the ordinances' procedural safeguards.
Courts should also ensure that historic preservation laws are not being used to
further zoning objectives. Although state preservation enabling statutes
prohibit historic preservation commissions from engaging in zoning
determinations, many district designations and permit review decisions achieve
the same effect. Courts should therefore require preservation authorities to
remain within their legislative mandate.
Finally, courts should review historic district designations that are, in
effect, exclusionary zoning ordinances. Courts have begun to scrutinize
large-lot zoning schemes; similarly, they should critically review historic
district designations. Several state courts have ruled that certain land use
controls should not undermine the opportunity of all citizens to obtain decent
housing. Historic districting, which is merely another form of land use
control, should be subject to the same scrutiny applied to exclusionary zoning.
When historic district designations or permit review decisions are found to
restrict the access of minorities and the poor to decent housing, only the most
compelling state interest should sustain them. Mere legislative determinations
of aesthetic significance do not justify the displacement and exclusion of
minorities and the poor from historic districts.
n1 See text accompanying notes 7-21 infra. See generally J. Delafons, Land-Use
Controls in the United States 19-27 (2d ed. 1969) (discussing early land use
controls in American cities); S. Toll, Zoned American 143-210 (1969)
(describing the creation and early operation of zoning in New York City).
"Zoning is the division of [a] jurisdiction into districts ("zones") within which permissible uses are prescribed and restrictions on building
height, bulk, layout, and other requirements are defined." J. Delafons, supra note 1, at 41.
n3 See C. Weaver
& R. Babcock, City Zoning: The Once and Future Frontier 13-14 (1979).
n4 In a recently published guide to historic preservation law, the editor
"there are over 1,000 local preservation ordinances; every state has at least
some preservation-related laws; and there are more than a dozen federal
statutes and literally hundreds of pages in the Code of Federal Regulations
pertaining to preservation programs." Duerksen, Preface to A Handbook on Historic Preservation Law xxi (C. Duerksen
n5 The historic district approach looks beyond individual buildings to a larger
setting. Designation is based on the district having a preponderance of
buildings of historical or architectural significance where the relationship of
one building to another creates a whole which is greater than its parts. Some
districts are characterized by a predominant uniform architectural style . . .
while others derive their charm from the variety of styles and uses.
J. Pyke, Landmark Preservation 12 (2d ed. 1972).
n6 Historic district ordinances prescribe regulations for the alteration,
demolition, and construction of buildings within the designated area without
controlling their use or ownership. Id. The typical historic district
ordinance requires landowners to submit their architectural plans to an
administrative preservation commission which must issue a permit -- known as a
certificate of appropriateness -- before any building exterior may be changed.
See id. Before the commission may issue a permit, it is usually required to
find that the proposed change will result in no significant exterior effect and
will be appropriate to the district, or that denial of the permit would cause
economic hardship to the property owner. See, e.g., New York, N.Y., Charter
& Ad. Code Ann. ch. 8-A,
§§ 207-6.0, 207-8.0 (Williams 1976). For a survey of methods by which
preservation ordinances regulate architectural changes, see Dennis, Recommended
Model Provisions for a Preservation Ordinance, with Annotations, in A Handbook
on Historic Preservation Law A65-A95 (C. Duerksen ed. 1983).
Village of Euclid v. Ambler Realty Co., 272 U.S. 365, 386-87 (1926); Developments in the Law -- Zoning,
91 Harv. L. Rev. 1427, 1433-34 (1978) [hereinafter Developments].
n8 The invention of the elevator and the use of steel rather than concrete
construction facilitated the erection of taller buildings. Coon
& Damsky, Zoning: As a Means and Not an End, 4 Zoning
& Planning L. Rep. 121, 122 (1981).
n9 See J. Delafons, supra note 1, at 21; Developments, supra note 7, at 1434.
n10 1904 Mass. Acts ch. 333,
§§ 1-4; 1905 Mass. Acts ch. 383,
§§ 1-5 (quoted in
Welch v. Swasey, 214 U.S. 91, 92-95 n.1 (1909)).
"The police power, briefly, is the power of government to enact regulations
affecting private actions in order to protect the public health, safety, and
general welfare." Coon
& Damsky, supra note 8, at 122. The zoning authority is usually exercised by
municipalities pursuant to an express delegation of the state's police power.
See Developments, supra note 7, at 1429.
214 U.S. 91 (1909).
Id. at 107-08. The Court asserted that the lower height limitation on residential buildings
was reasonable because
"taller buildings in the commercial section of the city might be less dangerous
in case of fire than in the residential portion."
Id. at 107. Commercial buildings may be built
"of fireproof construction," may be located closer to fire departments, and may contain fewer people at
night. Id. The Court added:
"That in addition to these sufficient facts, considerations of an aesthetic
nature also entered into the reasons for their passage, would not invalidate
Id. at 108.
n14 See Developments, supra note 7, at 1434.
n15 See J. Delafons, supra note 1, at 20.
n16 See id. at 20-21.
n17 Id. at 23; S. Toll, supra note 1, at 183-84. As one commentator has
emphasized, the New York ordinance failed to achieve its objective of
preventing incompatible land uses, because it was
"too much concerned with conserving existing values, and too little concerned
with guiding future growth and development." J. Delafons, supra note 1, at 23; see also S. Toll, supra note 1, at 183 ("zoning's first objective was to solidify a very particular
status quo"). Delafons suggests that
"[t]he authors of the ordinance were handicapped by uncertainty over what the
courts would approve." J. Delafons, supra note 1, at 23. For a detailed description of the drafting,
enactment, and effect of this ordinance, see S. Toll, supra note 1, at 172-210.
n18 See J. Delafons, supra note 1, at 25; S. Toll, supra note 1, at 201. For a
published version of the Act, see 4 R. Anderson, American Law of Zoning
§ 30.01 (2d ed. 1976).
n19 S. Toll, supra note 1, at 201; 1 R. Anderson, American Law of Zoning
§ 1.13, at 19-20 (2d ed. 1976).
n20 Within one year of the Act's first printed edition, nearly one-quarter of the
states had passed enabling acts that were modeled on the Standard Act. S.
Toll, supra note 1, at 201.
n21 Id. at 202.
n22 By 1930, 1100 cities had enacted zoning ordinances; 15 years earlier, only
five cities had zoning ordinances. J. Delafons, supra note 1, at 25.
272 U.S. 365 (1926).
Id. at 384-85.
Id. at 391. The Court stated that by excluding commercial buildings from residential
districts, the legislature, inter alia, promoted the health of children,
increased safety from fires, and facilitated the enforcement of traffic and
general welfare regulations.
Id. at 391.
Id. at 390.
n27 See Developments, supra note 7, at 1437.
n28 Id. at 1436.
416 U.S. 1 (1974).
348 U.S. 26 (1954). In
Berman, a case that involved land use laws but not zoning in particular, the Court
broadened the legitimate aims of land use laws by holding that the public
"values [that] are spiritual as well as physical, aesthetic as well as monetary."
Id. at 33 (quoted in
Village of Belle Terre v. Boraas, 416 U.S. at 6). See text accompanying notes 87-92 infra.
416 U.S. at 9.
n32 See Developments, supra note 7, at 1437, 1624-26.
n33 See E. Bergman, Eliminating Exclusionary Zoning 5 (1974).
n34 These zoning devices, generally categorized as phased zoning or timing
controls, regulate the pace of development, particularly residential
development, and are often justified by a desire to facilitate provision of
adequate public services. See Note, Phased Zoning: Regulation of the Tempo and
Sequence of Land Development,
26 Stan. L. Rev. 585, 591 (1974); see, e.g.,
Golden v. Planning Bd., 30 N.Y.2d 359, 285 N.E.2d 291, 334 N.Y.S.2d 138 (upholding phased zoning as a reasonable exercise of the police power), appeal
dismissed sub nom.
Rockland County Builders Ass'n v. McAlevey, 409 U.S. 1003 (1972). Although the effect of these ordinances may not be exclusionary in the long
run, their short-term effect is to restrict severely new development. See
generally Note, supra.
n35 See E. Bergman, supra note 33, at 5; Babcock
& Bosselman, Suburban Zoning and the Apartment Boom,
111 U. Pa. L. Rev. 1040, 1059-61 (1963).
n36 See Note, Exclusionary Zoning and Equal Protection,
84 Harv. L. Rev. 1645, 1646-47 (1971). Despite an abundance of federal housing programs in the 1960's,
"[t]he amount of low and lower middle income housing contructed in the suburbs
since World War II has been minimal."
Id. at 1647. In some suburban areas, the total dwelling unit capacity has been drastically
reduced by exclusionary zoning practices. See Note, Snob Zoning: Developments
in Massachusetts and New Jersey, 7 Harv. J. on Legis. 246, 248-49 (1970).
n37 See E. Bergman, supra note 33, at 4. Bergman distinguishes between
"the legitimate purpose of exclusion in
separating uses within a municipality and the exclusionary purpose of
banning uses from the municipality." Id. (emphasis in original).
n38 Developments, supra note 7, at 1438. For a discussion of the particular
problems facing racial minorities in urban neighborhoods, see National Comm'n
on Neighborhoods, People, Building Neighborhoods 251-66 (1979) [hereinafter
People, Building Neighborhoods]; see also United States Commission on Civil
Rights, Equal Opportunity in Suburbia 7 (1974) ("This economic-racial exclusion may well be called the racism of the seventies.
. . . [It is] an image of a suburban 'white noose' encircling a black inner
n39 See Developments, supra note 7, at 1438.
n40 See, e.g.,
County Comm'rs v. Miles, 246 Md. 355, 228 A.2d 450 (1967) (five-acre zoning);
Golden v. Planning Bd., 30 N.Y.2d 359, 285 N.E.2d 291, 334 N.Y.S.2d 138 (phased zoning), appeal dismissed sub nom.
Rockland County Builders Ass'n v. McAlevey, 409 U.S. 1003 (1972).
n41 See discussions of Village of Euclid v. Ambler Realty Co., text accompanying
notes 22-26 supra; Village of Belle Terre v. Boraas, text accompanying notes
29-31 supra; Berman v. Parker, text accompanying notes 87-89 infra.
n42 See, e.g.,
County Comm'rs v. Miles, 246 Md. 355, 228 A.2d 450 (1967) (five-acre zoning);
Simon v. Town of Needham, 311 Mass. 560, 42 N.E.2d 516 (1942) (one-acre zoning);
Flora Realty & Inv. Co. v. City of Ladue, 362 Mo. 1025, 246 S.W.2d 771 (en banc) (three-acre zoning), appeal dismissed,
344 U.S. 802 (1952) (per curiam).
n43 The practice of zoning an entire community for single family use was upheld in
Valley View Village, Inc. v. Proffitt, 221 F.2d 412 (6th Cir. 1955). See Babcock
& Bosselman, supra note 35, at 1060
& n.144. Communities that permit apartments frequently zone them in or near
commercial districts. See id. at 1060-61.
n44 Mass. Gen. Laws Ann. ch. 40B,
§§ 20-23 (West 1979). This so-called Anti-Snob Zoning Law allows nonprofit
sponsors of low- and moderate-income housing to appeal local zoning decisions
to a housing appeals committee, which determines whether a community has met
its obligation to provide lower-cost housing. See R. Nelson, Zoning and
Property Rights 37 (1977).
n45 See R. Nelson, supra note 44, at 36.
n46 See generally National Commission on Urban Problems, Building The American
City (1968) [hereinafter Building The American City]; President's Committee on
Urban Housing, The Report of the President's Committee on Urban Housing, A
Decent Home (1968) [herein-after A Decent Home]. These commissions are
commonly known as the Douglas commission and the Kaiser committee respectively.
n47 The Kaiser committee on urban housing recommended that the Department of
Housing and Urban Development be granted the power to override local zoning
decisions that prevent the construction of federally subsidized low- and
moderate-income housing. A Decent Home, supra note 46, at 143-44. The Douglas
commission, in its effort to break the
"regulatory conspiracy against low-income housing," Building The American City, supra note 46, at 243, suggested greater federal,
state, and regional control over local zoning. See generally id. at 235-53.
Despite the recommendations of these national commissions, little reform
occurred. R. Nelson, supra note 44, at 36.
n48 See Developments, supra note 7, at 1635. Lower federal courts have also
addressed the exclusionary effects of zoning. See, e.g.,
Metropolitan Hous. Dev. Corp. v. Village of Arlington Heights, 558 F.2d 1283 (7th Cir.) (municipality had obligation under Fair Housing Act
"to refrain from zoning policies that effectively foreclose the construction of
any low-cost housing within its corporate boundaries"), on remand from
429 U.S. 252 (1977), cert. denied,
434 U.S. 1025 (1978);
Dailey v. City of Lawton, 425 F.2d 1037 (10th Cir. 1970) (actions of planning commission and city council in denying building permit
and zoning change to low-income housing project found to be racially motivated,
arbitrary, and unreasonable);
Kennedy Park Homes Ass'n v. City of Lackawanna, 318 F. Supp. 669 (W.D.N.Y.) (city council's actions in amending zoning ordinance to prevent
construction of low-income housing subdivision violated Fair Housing Act and
Equal Protection Clause), aff'd,
436 F.2d 108 (2d Cir. 1970), cert. denied,
401 U.S. 1010 (1971). Cases invalidating exclusionary zoning practices usually are brought under the
Fair Housing Act,
42 U.S.C. §§ 3601-3619 (1982), which is intended to protect individuals from private
discrimination and to free the housing market from regulations that perpetuate
segregated housing patterns. See, e.g., 114 Cong. Rec. 3421-22 (1968) (remarks
of Senator Mondale, sponsor of the amendment). The act has not been limited by
Warth v. Seldin, 422 U.S. 490 (1975), which restricts the standing of nonresidents to bring federal constitutional
challenges to zoning ordinances. See Sager, Insular Majorities Unabated:
Warth v. Seldin and
City of Eastlake v. Forest City Enterprises, Inc.,
91 Harv. L. Rev. 1373, 1376-1402 (1978). Nor has the Act been limited by
Village of Arlington Heights v. Metropolitan Hous. Dev. Corp., 429 U.S. 252 (1977), which requires plaintiffs to prove a racially discriminatory purpose or intent
in such cases; cf.
Washington v. Davis, 426 U.S. 229 (1976) (proof of racially discriminatory purpose or intent required in equal
protection challenge to land use law). See R. Schwemm, Housing Discrimination
& n.62 (1983); Developments, supra note 7, at 1683-94.
n49 See Developments, supra note 7, at 1636.
n50 See id. at 1635-41 for a discussion of the development of the concept of
Southern Burlington County NAACP v. Township of Mount Laurel, 67 N.J. 151, 336 A.2d 713, appeal dismissed,
423 U.S. 808 (1975) (commonly known as
Mount Laurel I);
Southern Burlington County NAACP v. Township of Mount Laurel, 92 N.J. 158, 456 A.2d 390 (1983) (commonly known as
Mount Laurel II); see text accompanying notes 54-59 infra.
Berenson v. Town of New Castle, 38 N.Y.2d 102, 341 N.E.2d 236, 378 N.Y.S.2d 672 (1975); see note 57 infra.
Surrick v. Zoning Hearing Bd., 476 Pa. 182, 382 A.2d 105 (1977) (ordinance unconstitutionally excluded multifamily dwellings);
In re Girsh, 437 Pa. 237, 263 A.2d 395 (1970) (failure of ordinance to provide for apartments was unconstitutional);
Camp Hill Dev. Co. v. Zoning Bd. of Adjustment, 13 Pa. Commw. 519, 319 A.2d 197 (1974) (failure of ordinance to provide for townhouses was unconstitutional).
Mount Laurel I, 67 N.J. 151, 336 A.2d 713, appeal dismissed,
423 U.S. 808 (1975).
Id. at 185, 336 A.2d at 730.
"[T]he universal and constant need for such housing is so important and of such
broad public interest that the general welfare which developing municipalities
like Mount Laurel must consider extends beyond their boundaries and cannot be
parochially confined to the claimed good of the particular municipality."
Id. at 179, 336 A.2d at 727-28.
n57 Id. The New York Court of Appeals articulated a similar
"fair share" doctrine in
Berenson v. Town of New Castle, 38 N.Y.2d 102, 341 N.E.2d 236, 378 N.Y.S.2d 672 (1975), ruling that the constitutionality of a zoning scheme excluding multifamily
dwellings should be measured by whether the ordinance provides for regional
needs. The court wrote:
There must be a balancing of the local desire to maintain the
status quo within the community and the greater public interest that regional needs be
met. . . .
. . . While the people of New Castle may fervently desire to be left alone by
the forces of change, the ultimate determination is not solely theirs. . . .
Until the day comes when regional, rather than local, governmental units can
make such determinations, the courts must assess the reasonableness of what the
locality has done.
Id. at 110-11, 341 N.E.2d at 242-43, 378 N.Y.S.2d at 681-82.
Southern Burlington County NAACP v. Township of Mount Laurel, 92 N.J. 158, 456 A.2d 390 (1983).
Id. at 160 ("This Court is more firmly committed to the original Mount Laurel doctrine than
ever, and we are determined, within appropriate judicial bounds, to make it
n60 See C. Hosmer, Presence of the Past 22 (1965). By this period, many historic
structures had already been lost to fire, urban growth, and changing taste.
See C. Lockwood, Bricks
& Brownstone: The New York Row House, 1783-1929, An Architectural
& Social History 25 (1972) ("Fire was a constant threat to all eighteenth- and nineteenth-century cities.").
n61 See Rose, Preservation and Community: New Directions in the Law of Historic
33 Stan. L. Rev. 473, 481-84 (1981).
n62 See Duerksen
& Bonderman, Preservation Law: Where It's Been, Where It's Going, in A Handbook
in Historic Preservation Law 1 (C. Duerksen ed. 1983); Rose, supra note 61, at
n63 Many preservations believed that reminders of a common past could reunite
America after the Civil War. See Rose, supra note 61, at 482. Others hoped
that preservation efforts would make good citizens of recent immigrants. Id.
n64 Rose, supra note 61, at 479-80; Weidl, Historic District Ordinances,
8 Conn. L. Rev. 209, 209 (1976).
& Bonderman, supra note 62, at 1; J. Morrison, Historic Preservation Law 2-3
n66 For example, despite its rich collection of historic structures, Virginia did
not protect historic monuments during the late nineteenth and early twentieth
centuries. After appeals to the state and federal governments to save Mount
Vernon failed, the Mount Vernon Ladies Association purchased the structure with
private funds in 1858. J. Pyke, supra note 5, at 7-8; see also J. Morrison,
supra note 65, at 3; Duerksen
& Bonderman, supra note 62, at 1-2.
n67 In 1816, Philadelphia spent $ 70,000 to prevent the sale of the old state
capital and its grounds to developers. See Duerksen
& Bonderman, supra note 62, at 2. The state of New York paid off the mortgage
on the Hasbrouck House, a building closely associated with George Washington,
to assure its protection. Id.; J. Pyke, supra note 5, at 7.
n68 See Duerksen
& Bonderman, supra note 62, at 2.
n69 See id.
n70 See id.
160 U.S. 668 (1896).
n72 The Court stated:
The battle of Gettysburg was one of the great battles of the world. . . . The
existence of the government itself and the perpetuity of our institutions
depended upon the result. . . . Such a use seems necessarily not only a public
use, but one so closely connected with the welfare of the republic itself as to
be within the powers granted Congress by the Constitution of the purpose of
protecting and preserving the whole country.
Id. at 681-82.
n73 See Duerksen
& Bonderman, supra note 62, at 2. A commentator has noted that the
Gettysburg decision illustrates two important elements in historic preservation law: that
preservation can foster a sense of community and that
place can convey this sense of community, or . . . that visual surroundings work a
political effect on our consciousness." Rose, supra note 61, at 483.
n74 See Duerksen
& Bonderman, supra note 62, at 3. The Supreme Court validated such regulations
Welch v. Swasey, 214 U.S. 91 (1909). See text accompanying notes 10-13 supra. See also
Cochran v. Preston, 108 Md. 220, 70 A. 113 (1908) (upholding maximum height restrictions).
n75 See Rose, supra note 61, at 484.
n76 Weidl, supra note 64, at 209.
n77 Major preservation efforts were undertaken by John D. Rockefeller, Jr. at
Colonial Williamburg and by Henry Ford at Greenfield Village, Michigan. See J.
Pyke, supra note 5, at 8.
n78 Rose, supra note 61, at 505-06.
n79 See C. Hosmer, supra note 60, at 290-306; J. Morrison, supra note 65, at 12,
38-39, 57-58; Forman, Historic Preservation and Urban Development Law in
21 La. B.J. 197 (1973). In 1924, New Orleans enacted but did not put into effect the nation's first
historic district ordinance. The Commission Council of New Orleans passed the
Vieux Carre regulatory ordinance in 1937, preserving the city's Old French
Quarter. See J. Morrison, supra note 65, at 17 n.11; Duerksen
& Bonderman, supra note 62, at 6; Rose, supra note 61, at 505 n.139.
n80 See C. Hosmer, supra note 60, at 238-74. Charleston was the first city that
actually zoned a historic district, the city's antebellum section. See
& Bonderman, supra note 62, at 6; Rose, supra note 61, at 505. Charleston's
preservation regulations, enacted in 1931 as part of a new zoning ordinance,
were a hybrid of district and use regulations. See J. Morrison, supra note 65,
at 133-34 (digest of ordinance).
n81 See C. Hosmer, supra note 60, at 275-90; J. Morrison, supra note 65, at
& Bonderman, supra note 62, at 6. By the 1950's, however, only a few other
cities had enacted preservation laws. See Duerksen
& Bonderman, supra note 62, at 6.
n82 Legal challenges to early preservation ordinances were usually rejected. See
& Bonderman, supra note 62, at 7; see, e.g.,
City of New Orleans v. Impastato, 198 La. 206, 3 So. 2d 559 (1941) (upholding the New Orleans Vieux Carre ordinance);
Opinion of the Justices, 333 Mass. 773, 128 N.E.2d 557 (1955) (upholding state legislation creating local historic district commissions in
Boston and Nantucket).
n83 J. Codman, Preservation of Historic District by Architectural Control 1
(American Society of Planning Officials 1956); Duerksen
& Bonderman, supra note 62, at 6.
n84 See id.
n85 See J. Morrison, supra note 65, at 21; Duerksen
& Bonderman, supra note 62, at 7. The courts believed that such regulations
were not proper exercises of the police power. see, e.g.,
Curran Bill Posting & Distrib. Co. v. City of Denver, 47 Colo. 221, 227, 107 P. 261, 264 (1910);
City of Passaic v. Paterson Bill Posting, Advertising & Sign Painting Co., 72 N.J.L. 285, 287, 62 A. 267, 268 (1905);
City of Youngstown v. Kahn Bros. Bldg. Co., 112 Ohio St. 654, 661-62, 148 N.E. 842, 844 (1925);
White's Appeal, 287 Pa. 266, 134 A. 409 (1926). Representative cases are collected in 1 N. Williams, American Planning Law:
Land Use and the Police Power
§§ 11.04-.06 (1974).
n86 See Duerksen
& Bonderman, supra note 62, at 6.
348 U.S. 26 (1954).
n88 See Duerksen
& Bonderman, supra note 62, at 7. The Supreme Court did not settle the question
of regulating for aesthetic purposes alone until its decision in
Penn Cent. Transp. Co. v. New York City, 438 U.S. 104 (1978). See text accompanying notes 109-13 infra; Duerksen
& Bonderman, supra note 62, at 4.
Berman, 348 U.S. at 33.
& Bonderman, supra note 62, at 8; see also J. Morrison, supra note 65, at 15-17
(discussing city-adopted ordinances in general).
& Bonderman, supra note 62, at 8.
n92 R. Montague
& T. Wrenn, Planning for Preservation 4 (American Society of Planning Officials
1964) (reporting that 42 of 47 states responding to a survey conducted by the
Kentucky Attorney General's Office had preservation programs).
n93 In 1965, the state of New York enacted the Historic Preservation Enabling Act
of 1965, N.Y. Gen. Mun. Law
§ 96-a (McKinney 1977), which empowered state municipalities to protect and
preserve buildings and places of
"special historical or aesthetic interest or value." Id.
n94 New York, N.Y., Charter
& Ad. Code Ann. vol. 2, ch. 8-A,
§§ 205-1.0, 207-1.0 to -21 (Williams 1976
& Supp. 1984).
n95 The ordinance, like most local historic preservation ordinances, also was
dedicated to other purposes, such as safeguarding the city's heritage,
stabilizing and improving property values, fostering civic pride in past
accomplishments, encouraging tourism, strengthening the city's economy, and
promoting the use of preserved sites and districts for the education, pleasure,
and welfare of the people of the city. Id.
§ 205-1.0(b). The law expressly prohibits the Commission from performing zoning
functions such as regulating the height and bulk of buildings, the area of open
spaces, the density of population, or the location of trades, industries, or
buildings designed for specific uses. Id.
n96 The New York City law defines a landmark as
"[a]ny improvement," meaning
"any building, structure, place, work of art or other object constituting a
physical betterment of real property, or any part of such betterment," id.
"any part of which is thirty years old or older, which has a special character
or special historical or aesthetic interest or value as part of the
development, heritage or cultural characteristics of the city, state, or nation." Id.
n97 A historic district is defined as:
Any area which . . . contains improvements which: (a) have a special character
or special historical or aesthetic interest or value; and (b) represent one or
more periods or styles of architecture typical of one or more eras in the
history of the city; and (c) cause such area, by reason of such factors, to
constitute a distinct section of the city.
§§ 207-6.0, 207-8.0.
n101 The report was published the following year. United States Conference of
Mayors, With Heritage So Rich (1966).
n102 Id. at 205.
n103 Id. at 208.
n104 Pub. L. No. 89-665,
§ 1, 80 Stat. 915 (1966) (current version at
16 U.S.C. §§ 470 to 470w-6 (1982)).
16 U.S.C. § 470i(a) (1982).
16 U.S.C. § 470j(a) (1982).
16 U.S.C. § 470(a) (1982).
16 U.S.C. § 470a(d) (1982). For a description of the role of the National Trust for Historic
Preservation, see J. Pyke, supra note 5, at 10.
n109 The decision remains the Supreme Court's only direct examination of the merits
of historic preservation.
438 U.S. 104 (1978).
n111 The restrictions imposed by New York's landmark preservation scheme are
described in text accompanying notes 93-100 supra.
n112 For discussions of
Penn Central's impact on historic preservation, see sources cited in note 127 infra.
n113 Justice Brennan pointed out that
"this Court has recognized, in a number of settings, that 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."
Penn Central, 438 U.S. at 129 (citations omitted).
n114 For a summary and analysis of various state property tax incentives, see
& Bonderman, supra note 62, at 448-56; Powers, Tax Incentives for Historic
Preservation: A Survey, Case Studies and Analysis,
12 Urb. Law. 103, 104-16, 119-33 (1980); Stipe, State and Local Tax Incentives for Historic Preservation, in Tax
Incentives for Historic Preservation 91 (G. Andrews rev. ed. 1981).
n115 See Roddewig, Preservation Law and Economics: Government Incentives to
Encourage For-Profit Preservation, in A Handbook on Historic Preservation Law
449 (C. Duerksen ed. 1983).
n116 See id.
n117 Pub. L. No. 94-455,
§ 2124, 90 Stat. 1520, 1916-19 (1976). The 1976 Act deterred demolition of
designated landmarks by denying to property owners deductions for demolition
expenses, Pub. L. No. 94-455,
§ 2124(b), 90 Stat. 1520, 1918 (1976) (codified as amended at I.R.C.
§ 280B (West Supp. 1985)), and accelerated depreciation for replacement
structures, Pub. L. No. 94-455,
§ 2124(c), 90 Stat. 1520, 1918 (1976) (codified at I.R.C.
§ 167(n)), repealed by Economic Recovery Tax Act of 1981, Pub. L. No. 97-34,
§ 212(d)(1), 95 Stat. 172, 239 (1981). See Duerksen
& Bonderman, supra note 62, at 18. In addition, the Act authorized owners of
historic buildings used in a trade or business or held for investment to
amortize their rehabilitation expenditures over five years rather than the life
of the improvements, typically twenty years. Pub. L. No. 94-455,
§ 2124(a), 90 Stat. 1520, 1916-18 (1976) (codified at I.R.C.
§ 191), repealed by Economic Recovery Tax Act of 1981, Pub. L. No. 97-34,
§ 212(d)(1), 95 Stat. 172, 239 (1981). See Roddewig, supra note 115, at 461.
"substantially rehabilitated historic property" could choose to use the accelerated depreciation rates available to owners or
developers or new comparable construction projects. Pub. L. No. 94-455,
§ 2124(d), 90 Stat. 1520, 1918-19 (1976) (codified at I.R.C.
§ 167(o)), repealed by Economic Recovery Tax Act of 1981, Pub. L. No. 97-34,
§ 212(d)(1), 95 Stat. 172, 239 (1981). See Roddewig, supra note 115, at 461.
Thus, for example, a developer who rehabilitated an apartment building in a
historic district could use a more accelerated form of depreciation than an
owner of a used residential building not located in a historic district. See
id. at 461. The effectiveness of the 1976 provisions is evaluated in id. at
n118 Revenue Act of 1978, Pub. L. No. 95-600,
§ 315(b), 92 Stat. 2763, 2828-29 (1978) (codified as amended at I.R.C.
§ 48(g) (West 1984
& Supp. 1985)); see Roddewig, supra note 115, at 464. Although the 1978 Act
permitted the taxpayer to use the investment tax credit in combination with
accelerated depreciation, it prohibited the taxpayer from using the credit in
combination with five-year amortization. See Roddewig, supra note 115, at 464.
The significance of the investment tax credits and the other 1978 provisions
is discussed in id. at 464-66.
n119 Economic Recovery Tax Act of 1981, Pub. L. No. 97-34,
§ 212(a), 95 Stat. 172, 235-36 (1981) (codified as amended at I.R.C.
§§ 46, 48 (West 1984
& Supp. 1985)); see Roddewig, supra note 115, at 467. In contrast, thirty- and
forty-year-old buildings, as defined in I.R.C.
§§ 46(b)(4)(C), 48(g)(1) (West 1984
& Supp. 1985), are eligible for investment tax credits of only 15% and 20%,
respectively. If an investment tax credit is allowed under
§ 46, the depreciable basis of the property is reduced by only one-half of the
amount of the credit, rather than by the full amount of the credit, as is
generally the case, see I.R.C.
§ 48(g)(1), (3) (West 1984
& Supp. 1985). Thus, owners of historic properties are able to depreciate 87.5%
of their rehabilitation expenditures on historic structures, in addition to
receiving the 25% investment tax credit. One commentator noted that the Tax
Reform Act of 1984, Pub. L. No. 98-369, 98 Stat. 494 (1984), retained most of
the 1981 Act's tax incentives for historic rehabilitation projects. See Seal,
Old Buildings Attract New Investment Money, Nat'l L.J., Oct. 22, 1984, at 42,
n120 See National Trust for Historic Preservation, Information Sheet No. 30,
Federal Tax Incentives for the Rehabilitation of Historic Buildings 7 (1984).
As the National Trust has noted,
"[t]he margin of incentive for certified historic structures over other
rehabilitations is substantial because of the additional five percent credit,
the requirement of only a half adjustment to basis and the availability of the
credit for income-producing residential projects." Id.
n121 See Nolon, Using Tax Credits to Save Historic Buildings: An Update, Planning,
Jan. 1984, at 24.
n122 See id. at 24-26. According to the National Park Service, 2600 properties,
representing a private investment of $ 2.16 billion, were certified for the
credit in 1983. This was an increase of 43% over 1982 and 87% over 1981. See
id. at 26.
42 U.S.C. § 5318 (1982).
n124 See United States Dep't of Hous.
& Urban Dev., Urban Development Action Grant Program: Second Annual Report 1
(1980); see also Dworsky, McVarish, Perry
& Robinson, Federal Law, in A Handbook on Historic Preservation Law 324-26 (C.
Duerksen ed. 1983); Roddewig, supra note 115, at 499-500. The UDAG program is
discussed in greater detail at text accompanying notes 264-65 infra.
n125 See Roddewig, supra note 115, at 508-13; see generally D. Listokon, Landmarks
Preservation and the Property Tax (1982); National Trust for Historic
Preservation, Changes in Federal Tax Incentives for Historic Preservation
(1982); National Trust for Historic Preservation, Summary of Preservation Tax
Incentives and the Economic Recovery Tax Act of 1981 (1981); J. Reynolds,
Historic Properties: Preservation and the Valuation Process (1982); Coughlin,
Preservation Easements: Statutory and Tax Planning Issues, 1 Preservation L.
Rep. 2011 (1982).
n126 See text accompanying notes 109-13 supra.
n127 For a discussion of
Penn Central's impact on historic preservation, see Hershman, Critical Legal Issues in
12 Urb. Law. 19 (1980); Scott, Alas in Wonderland: The Impact of
Penn Central v. New York City Upon Historic Preservation Law and Policy,
7 B.C. Envtl. Aff. L. Rev. 317 (1978); Siedl, Landmarks Preservation After
Penn Central, 17 Real Prop., Prob.
& Trust J. 340 (1982). For a discussion of the impact of tax and financial
incentives, see Holubowich, Landmark Preservation: Battleground for the 80's,
68 A.B.A. J. 19 (Jan. 1982); Schulman, The Certified Historic Structure: An Aid to Neighborhood
Conservation and Low Income Housing,
14 Urb. Law. 765 (1982).
Bohannan v. City of San Diego, 30 Cal. App. 3d 416, 422, 106 Cal. Rptr. 333, 336-37 (Ct. App. 1973);
City of New Orleans v. Pergament, 198 La. 852, 858, 5 So. 2d 129, 131 (1941);
Opinion of the Justices, 333 Mass. 773, 778-81, 128 N.E.2d 557, 561-62 (1955);
City of Santa Fe v. Gamble-Skogmo, Inc., 73 N.M. 410, 414-15, 389 P.2d 13, 17-18 (1964).
n129 See text accompanying notes 139-221 infra.
n130 Individual landmarks may have some general effect on a community. See K.
Lynch, The Image of the City 2-3, 9-10, 78-86 (1960) (examining the
contribution of singular landmarks to a city's
"imageability"); Rose, supra note 61, at 497 ("A landmark does . . . help foster community cohesion.").
n131 See N.Y. Times, May 20, 1981, at 1, col. 5; see also J. Pyke, supra note 5, at
n132 See Spatt, Letter to the Editor, N.Y. Times, July 8, 1980, at 16, col. 4.
n133 See Rose, supra note 61, at 504. For a brief discussion of an instance in
which the possible designation of a landmark raised exclusionary concerns, see
note 215 infra.
n134 Rose, supra note 61, at 504.
n135 Interview with Frank Gilbert, General Counsel, National Trust for Historic
Preservation, in Washington, D.C. (Nov. 8, 1983); Interview with Marjorie
Pearson, Research Director, New York City Landmarks Preservation Commission, in
New York City (Nov. 3, 1983).
n136 See Costonis, Law and Aesthetics: A Critique and Reformulation of the
80 Mich. L. Rev. 355, 364 (1982).
n137 Under the New York City Landmarks Law, for example, a
"historic district" is any area containing improvements that
have a special character or special historical or aesthetic interest or value;
and represent one or more periods or styles of architecture typical of one or
more eras in the history of the city; and cause such area, by reason of such
factors, to constitute a distinct section of the city.
New York, N.Y., Charter
& Ad. Code Ann. ch. 8-A,
§ 207-1.0(h) (Williams 1976
& Supp. 1984).
n138 C. Weaver
& R. Babcock, supra note 3, at 35. Norman Williams adds:
To the extent that a designation for historic preservation becomes a symbol of
prestige, it is likely to be sought by and on behalf of all sorts of
neighborhoods/communities with no historic value whatsoever -- in which case it
becomes not much more than a vehicle for local real estate promotion.
3 N. Williams, American Planning Law: Land Use And The Police Power 191 (Supp.
n139 See The Effect on the Poor and Minorities, in Readings in Historic
Preservation 291 (N. Williams, E. Kellogg
& F. Gilbert eds. 1983). The editors note that these areas are often run down
and in need of substantial repairs, historically valuable, and occupied by
minority residents. These factors combine to displace residents, unless care
is taken to avoid this result. Id. Statistics compiled by the Annual Housing
Survey indicate that
"the median income of households living in older units in [sic] lower than the
median for all households." National Trust for Historic Preservation, The Economic and Social Benefits of
Historic Preservation IV-5 (Aug. 1982) (citing the Annual Housing Survey) (on
file at New York University Law Review) [hereinafter Economic and Social
Benefits]. See also id., Table IV-4, at IV-14 (financial characteristics of
households living in older housing units).
People, Building Neighborhoods, supra note 38, at 12. The term
"gentrification," first used by the British, refers to the influx to urban areas of the
modern-day counterparts of the landed gentry. The National Commission on
Neighborhoods explained the
gentrification process and its effects:
As City Hall makes overdue physical improvements, as banks free up mortgage
money for a formerly redlined neighborhood, as insurance companies write
homeowners' policies in that neighborhood, the prime beneficiaries are often
real-estate developers who renovate deteriorated housing units for new middle
and upper middle class residents. . . . [R]esidents can no longer afford to
remain in their own neighborhood. They are displaced to another deteriorating
section of the city.
People, Building Neighborhoods, supra note 38 at 12. One observer describes the process by comparing neighborhoods
to wine bottles:
"the poorer, working-class populations are 'decanted' and the historic container
is filled with a new, upper-class population." J. Fitch, Historic Preservation 66 (1982).
n141 President's Commission on Housing, The Report of the President's Commission on
Housing xxiv (1982) [hereinafter Housing Report].
n142 Id. at 7-9.
People, Building Neighborhoods, supra note 38, at 261.
n144 Id. at 11.
"This commission would consider neighborhood redevelopment worse than a failure
if bricks and mortar were revitalized at the expense of the people in the
neighborhoods." Id. at 12. See also id. at 289-91 ("In most instances to date, [historic preservation] has contributed to the
n146 C. Hartman, D. Keating
& R. LeGates, Displacement: How to Fight It 162 (1982) [hereinafter
n147 The broad definition of displacement advocated by George and Eunice Grier has
been widely accepted:
Displacement occurs when any household is forced to move from its residence by
conditions which affect the dwelling or its immediate surroundings and which:
1. are beyond the household's reasonable ability to control or prevent; 2.
occur despite the household's having met all previously-imposed conditions of
occupancy; and 3. made continued occupancy by that household impossible,
hazardous, or unaffordable.
& E. Grier, Urban Displacement -- A Reconaissance 10-11 (1978).
n148 See Advisory Council on Historic Preservation, The Contribution of Historic
Preservation to Urban Revitalization 1, 18 (1979) [hereinafter Advisory
Council]; Rose, supra note 61, at 512-13; see generally Economic and Social
Benefits, supra note 139, at IV-1 to -15, IV-39 to -48.
n149 See text accompanying notes 114-25 supra.
n150 M. Schill
& R. Nathan, Revitalizing American Cities: Neighborhood Reinvestment and
Displacement 25 (1983) (citing a recent Heritage Conservation and Recreation
n151 See id. (revitalization of inner-city historic neighborhoods results as much
from cultural or emotional as from economic incentives).
n152 See Rose, supra note 61, at 508-12.
n153 Chapman, The Growing Public Stake in Urban Conservation, in Economic Benefits
of Preserving Old Buildings 10 (National Trust for Historic Preservation,
1976). This drive for uniformity concerns one commentator, who argues that
"districts sometimes share with urban renewal projects an overplanned quality
and an imperious suppression of variety that may ruin the liveliness and
diversity of an urban neighborhood." Rose, supra note 61, at 509.
n154 D. Swift, An Evaluation of the Local Use of Historic Districts to Stimulate
Housing Rehabilitation 70 (1979) (draft) (available at the Urban Institute,
n156 Advisory Council, supra note 148, at 4. The Advisory Council examined Old
Town in Alexandria, the Strand in Galveston, the Savannah Historic District,
and Pioneer Square in Seattle.
n157 Id. at 1.
n159 Id. at 15.
n160 See Gale, Middle Class Resettlement in Older Urban Neighborhoods: The Evidence
and the Implications, 45 J. Am. Plan. A. 293, 297-301 (1979) (discussing
revitalization in Mount Pleasant and Capitol Hill); Newsom, Blacks and Historic
Preservation, 36 Law
& Contemp. Probs. 423, 423-26 (1971) (discussing revitalization in Georgetown
and the resulting displacement of a large black community).
n161 See National Institute for Advanced Studies, Market-Generated Displacement: A
Single City Case Study (1980).
n162 See J. Franklin, Back to the City: Case Studies of Neighborhood Revitalization
in Eight Major Metroplitan Areas (1977).
n163 See J. Gordon, Neighborhood Change in Jamaica Plain: A Case Study of the
Revitalization Process (1981); Auger, The Politics of Revitalization in
Gentrifying Neighborhoods: The Case of Boston's South End, 45 J. Am. Plan. A.
515 (1979); Gergen, Renewal in the Ghetto: A Study of Residential
Rehabilitation in Boston's Washington Park,
3 Harv. C.R.-C.L. L. Rev. 243, 293-300 (1968).
n164 See K. Costello, An Analysis and Evaluation of Local Preservation Efforts in
Cincinnati, Ohio: The Dayton Street Historic District (1982) (unpublished
thesis) (available at National Trust for Historic Preservation); P. Myers
& G. Binder, Neighborhood Conservation: Lessons from Three Cities 11-30 (1977).
n165 See Raymond, Parish, Pine
& Weiner, Inc., The Impacts of Historic District Designation (1977) (available
at the New York Landmarks Conservancy). This study analyzed the effects of
district designation on the Park Slope area near Prospect Park in Brooklyn, New
York. The study concluded that
"historic district designation has a useful role to play in drawing a community
together, attracting new families, promoting stability, and creating a sense of
pride." Id. at 104. But see Dowd, Park Slope -- New Faces, New Shops and New Worries
Over Its Growth, N.Y. Times, May 7, 1984, at B1, col. 1.
n166 See Advisory Council, supra note 148, at D-17 to -43. Prior to district
designation in 1970, preservation activity in Seattle's Pioneer Square was
"speculative." Id. at D-17. After designation,
"the scope of the restoration activity broadened considerably and the City
became more actively involved." Id. at D-19. See also Uhlman, Economics Aside, in Economic Benefits of
Preserving Old Buildings 5-31 (National Trust for Historic Preservation, 1976).
n167 See Advisory Council, supra note 148, at D-21, D-30.
n168 Id. at D-26 to -27; Chapman, supra note 153, at 9. Chapman asserted that
"it is hard to imagine any federally financed renewal plan that could have
revived the area as quickly as historic preservation techniques did." Id. at 11.
n169 Raymond, Parish, Pine
& Weiner, Inc., supra note 165, at 104. This study found that
"[a]ny attempt to ascribe a simple, quantifiable economic effect to . . .
historic district designation appears doomed to failure," id. at 95, but
"[f]rom the point of view of residents within or adjacent to the district, the
designation is clearly perceived as having . . . benefits," including stabilization, increased property values, and the attraction of new
residents. Id. at 100 (emphasis in original).
n170 See Advisory Council, supra note 148, attachments A-9, B-7, C-8, D-7 (tables
detailing the change in the housing supply from 1960 to 1970 after designation
in four historic districts); see also Economic and Social Benefits, supra note
139, at IV-2, IV-6. The Advisory Council study found that although the overall
housing stock decreased in the four districts, in three of those four districts
"supply of convenient, sound downtown housing had been augmented." Advisory Council, supra note 148, at 20.
n171 See Advisory Council, supra note 148, attachment B-7 (over one-third reduction
in housing stock in the Strand Historic District, Galveston, from 1960 to
1970), attachment C-8 (approximately one-third reduction in housing stock in
Savannah Historic District from 1960 to 1970), attachment D-7 (over one-half
reduction in housing in Pioneer Square Historic District, Seattle, from 1960 to
1970). But see Economic and Social Benefits, supra note 139, at IV-6, table
IV-5 (58% increase in housing stock in Society Hill, Philadelphia, from 1960 to
n172 One study found that
"the market demand for good, varied, convenient, urban housing" has been strong in each of the four historic districts surveyed. Advisory
Council, supra note 148, at 20.
n173 Id. at 10. The appraised value of sample properties rose from 11.4% to 34.4%
annually in the four historic districts studied by the Advisory Council. Id.
at 11, exhibit 3. The study noted that
"[s]ignificant increases in the real estate value of renovated properties in the
historic districts have occurred [that] reflect a direct link between location
in a historic district . . . and a higher value." Id. at 10.
n174 M. Schill
& R. Nathan, supra note 150, at 48. From two-thirds to all of the housing units
located in the districts studied by the Advisory Council were renter occupied.
See Advisory Council, supra note 148, at A-9, B-7, C-8, D-7.
n175 See M. Schill
& R. Nathan, supra note 150, at 48.
n176 See Economic and Social Benefits, supra note 139, at IV-5, IV-6. Tenants on
fixed or limited incomes usually cannot afford a substantial rent increase. M.
& R. Nathan, supra note 150, at 48. Low-income interest groups have expressed
their concern for the displacement of renters, see Rose, supra note 61, at
513-14, and the Department of Housing and Urban Development has recommended
that steps be taken to minimize the displacement of people in connection with
federally assisted activities, Displacement Potential to be Considered in All
HUD Funding Decisions,  7 Hous.
& Dev. Rep. (BNA) 541.
n177 Economic and Social Benefits, supra note 139, at IV-6. The report added that
"[t]he elderly are also more likely to be adversely affected by higher rents and
dislocation since many live on fixed incomes and rely on neighbors to help them
with shopping and errands." Id.
n178 See note 174 supra.
People, Building Neighborhoods, supra note 38, at 12; R. Montague
& T. Wrenn, supra note 92, at 13; Rose, supra note 61, at 514.
People, Building Neighborhoods, supra note 38, at 12; Rose, supra note 61, at 514. When high-income individuals
rehabilitate homes in deteriorated neighborhoods, property values rise. When
the city reassesses the property values, higher property taxes result. See M.
& R. Nathan, supra note 150, at 47.
n181 See M. Schill
& R. Nathan, supra note 150, at 47 ("owner-occupants are also affected by an increased strictness in code enforcement"); Rose, supra note 61, at 514.
n182 M. Schill
& R. Nathan, supra note 150, at 47.
n183 According to several social scientists,
"[d]isplacement is the most difficult aspect of revitalization to examine
systematically." Sumka, Neighborhood Revitalization and Displacement: A Review of the Evidence,
45 J. Am. Plan. A. 480, 483 (1979); see also M. Schill
& R. Nathan, supra note 150, at 53.
n184 Although the study recognized the problem of displacement, it found that more
study was required before preservation could be linked
"per se with social displacement." Advisory Council, supra note 148, at 15.
n185 Id. at 4, 24.
n186 See note 171 supra.
n187 See note 173 supra.
n188 Advisory Council, supra note 148, at B-29, exhibit B-5; see also id. at B-26
n189 Id. at 15; see also id. at A-9 to -10.
n190 See id. at 15. The study also found:
All of the historic districts had both a concentration of low-income
individuals and blighted properties prior to historic preservation activities.
Today, the deteriorating buildings have been renovated or plans have been made
for their revitalization. Unfortunately, poverty has not been as easy to
eliminate as decay to a building. What has occurred, however, is that the
pockets of poverty that were once concentrated in the historic district areas
have mainly been diluted and spread into other areas.
Id. at 24.
n191 Economic and Social Benefits, supra note 139, at IV-6.
n192 See Raymond, Parish, Pine
& Weiner, Inc., supra note 165, at 97.
n193 National Urban Coalition, Displacement: City Neighborhoods in Transition 36
People, Building Neighborhoods, supra note 38, at 290 ("In most instances to date, [historic preservation] has contributed to the
n195 Id. at 191 (referring to historic districting encouraged by tax incentives).
n196 See Benenson, Historic Preservation, 1984 Editorial Research Rep. 105, 121
(quoting Mary Means of the National Trust as saying,
"I'm getting tired of preservation taking it on the nose as the great displacer"); Rose, supra note 61, at 514.
n197 See Raymond, Parish, Pine
& Weiner, Inc., supra note 165, at 97 ("changing social composition brought about the historic designation"); Rose, supra note 61, at 514.
n198 For studies supporting the use of districting for neighborhood revitalization,
see generally Economic and Social Benefits, supra note 139, at IV-1 to -7; R.
& T. Wrenn, supra note 92, at 8-15. As one commentator stated:
[W]hether one landmark or an entire district of buildings is preserved, the
community can realize significant dollars-and-cents benefits. Its treasured
old buildings are rehabilitated and its neighborhoods revitalized. As a
neighborhood becomes a more attractive place to live or work, property values
and tax revenues increase. . . . From the point of view of the city and the
citizen, preservation can make a great deal of economic sense.
J. Pyke, supra note 5, at 4-5.
n199 See C. Weaver
& R. Babcock, supra note 3, at 29-52. The authors observe that
"the new demand for in-city living is moving only half a step ahead of the new
interest in urban zoning." Id. at 52.
n200 See id. at 38.
n201 Those who arrive first create an environment that is pleasing to themselves
and immediately march on city hall to have that pattern of development cast
into the permanent stone of the zoning ordinance. In this respect, the
rediscoverers of the city are no different than their predecessors, that
intrepid band which, two or three decades before, set out to settle the suburbs
and to produce a generation that is now flirting with a return to the cities.
Id. at 37.
n202 See E. Bergman, supra note 33, at 5 ("As the community level became the area of concern, communities began to exhibit
a 'country club' approach to decisions about the nature and pace of their
membership expansion. When pressures to join increased, communities
dramatically upgraded their membership requirements by rezoning residential
uses to larger and larger lot sizes."); cf. C. Weaver
& R. Babcock, supra note 3, at 5 ("In cities, as everywhere else, the importance of zoning is most clearly
recognized by those citizens who view it as an understandable, workable, and
controllable device for protecting their homes and neighborhoods from whatever
they define as a deteriorating influence."). At issue is whether we want our cities to mirror our suburbs. One
philosopher drew the comparison:
As if orchestrated by a master plan, suburbanization produced carefully
differentiated enclaves. . . . This left society so divided by socioeconomic
factors and political jurisdictions that we were morally and politically
handicapped in responding to the forces of social change that confronted all
cities in the 1960s. . . .
There is a genuine danger that the current back-to-the-city movement will
merely reproduce that error. It could happen that the ideal suburb, as
understood a generation ago, and the ideal restored urban neighborhood in 1980
will have two things in common: isolation and sterility. What a hollow victory
it will be if preservation succeeds in restoring everything about our cities
except their livingness.
French, On Preserving America: Some Philosophical Observations, in
Preservation: Toward an Ethic in the 1980s 190 (1980).
n203 See C. Weaver
& R. Babcock, supra note 3, at 37-38, 52.
n204 According to Weaver and Babcock, zoning can more easily prevent change in
suburban than in urban settings.
"Prevention of change [by zoning] may well be easy in a suburban community where
most of the development is new and nearly all of it monolithic. Neither of
those factors is present in the average city neighborhood." Id. at 29.
n205 See id. at 40-41 (discussing opposition of city officials to
"downzoning," which is rezoning for less intensive and varied uses than previously
n206 See R. Nelson, supra note 44, at 20 ("The beginnings of a response to demands for greater collective control and
discretion over neighborhood quality can be seen in a rapidly spreading use of
historic-district regulation."); Benenson, supra note 196, at 110-11 ("[P]reservation is now regarded as a legitimate and, in many cities, a key
element in urban planning."). District designation is, among other things,
"a convenient way of drawing a line around an area and saying that is somehow
different than the squalor across the back alley." C. Weaver
& R. Babcock, supra note 3, at 35.
n207 See text accompanying notes 151-54 and 170-73 supra.
People, Building Neighborhoods, supra note 38, at 55, 191, 197; Displacement, supra note 146, at 162, 164.
n209 Preservationists have expressed concern for
"the prospect of a 'Johannesburgization' of major American cities -- i.e., the
young, wealthy, white professionals in the central city surrounded by
suburbanized minorities." National Trust for Historic Preservation, Preservation: Toward an Ethic in the
1980s 194 (1980) [hereinafter Preservation: Toward an Ethic] (from comments
made at the National Trust 1979 Annual Meeting and Preservation Conference).
Norman Marcus, counsel to the New York City Department of City Planning,
discussed the use of historic preservation laws to maintain patterns of
neighborhood segregation in the cities:
The passing of the conventional wisdom torch from urban renewal . . . to
landmark preservation gave impetus and a certain legitimacy to the
gentrification phenomenon even though its consequences were often direct displacement of low-
and moderate-income families and jobs.
Gentrification, in turn, sharpened a perception of the cities as divided into areas of
"halves" [sic] and
"have nots"; the gentrifying of better areas got even better, but the areas where the
private sector was disinvesting continued to decline.
Marcus, Zoning Exactions Employed to Solve Housing Problems, N.Y.L.J., Oct. 5,
1983, at 6, col. 2.
Both the 1979 and the 1982 presidential reports emphasized the need for state
and federal governments to fully enforce fair housing legislation.
People, Building Neighborhoods, supra note 38, at 23, 265-66; Housing Report, supra note 141, at 25. Title VIII of
the Civil Rights Act of 1964 bans discrimination on the basis of race, color,
religion, national origin, and sex in virtually all transactions related to
42 U.S.C. §§ 3601-3619 (1982).
n210 See Costonis, supra note 136, at 364.
n211 See, e.g., New York, N.Y., Charter
& Ad. Code Ann. vol. 2, ch. 8-A,
§ 207-3.0(a) (Williams 1976). The statute states that [n]othing contained in
this [ordinance] shall be construed as authorizing the commission, in acting
with respect to any historic district . . . to regulate or limit the height and
bulk of buildings, to regulate and determine the area of . . . open spaces, to
regulate density of population or to regulate and restrict the location of
trades and industries or location of buildings designed for specific uses or to
create districts for any such purpose.
Spatt, supra note 132.
n213 See R. Nelson, supra note 44, at 20-21 (noting that historic designation
"may make loans easier to get . . . gives nostalgia buffs a warm glow [and] says
in a very affirmative way that there is something worth preserving about the
style and character of many inner-city neighborhoods"); C. Weaver
& R. Babcock, supra note 3, at 35 (describing use of historic districting to
achieve control over
"neighborhood quality"); Bender, Preserving Our City's History, N.Y. Times, Feb. 20, 1981, at A27,
col. 3 (stating that
"[t]he task of the Landmarks Preservation Commission, then, is not
obstructionist, nor is it that of a surrogate city-planning commission"); Goldberger, Landmarks Commission Survives A Decade, but Road Ahead Is Rocky,
N.Y. Times, Apr. 19, 1975, at 62, col. 3 (asserting that district designation
"generally increases real-estate values and as a result, many neighborhoods of
no real architectural quality have been demanding it as a social stabilizer, a
function that falls within the City Planning Commission's purview, not the
Landmarks Commission's"); Rose, Designation? Certainly, How Much? The Debate, N.Y. Times, May 4,
§ 8 (Real Estate) at 6, col. 5 (stating that if existing restrictions permit the
development of undesirable structures,
"the City Planning Commission (and not the Landmarks Commission) is the logical
forum in which the possibilities of down-zoning or development limitations
should be explored").
n214 Interfaith Group Assails City's Landmarks Law, N.Y. Times, Mar. 4, 1982, at
B3, col. 5 (quoting study completed under the auspices of the Committee of
Religious Leaders in the City of New York).
n215 As the recent fight over the landmark designation of the Isaac L. Rice Mansion
in New York City illustrates, landmark designation proceedings occasionally
generate the discrimination concerns more often associated with historic
districting. Neighboring residents sought designation for the mansion when
Yeshiva Chofetz Chaim, the owner, proposed to sell it to a developer who
planned to build a thirty-story building that would include modern facilities
for the Yeshiva. The many political issues that lurked beneath the designation
decision included the local residents' apprehension that the tower might change
the West Side's land use and socioeconomic character and the Yeshiva's
insistence that its religious, cultural, and financial needs were more
important than its neighbors' desires. One rabbi emphasized the discrimination
"A vote against the Yeshiva is literally a vote against the Jewish religious
community on the West Side." Haberman, Yeshiva Tries to Void Status as Landmark, N.Y. Times, May 30, 1980,
at B2, col. 4. See generally Costonis, supra note 136, at 386-91.
n216 See Costonis, supra note 136, at 364-65
& n.25 (citing Transcript of the Stenographic Record of the Discussion on
Calendar Number 96: Held at the Meeting of the Board of Estimate on Sept. 10,
1981, New York City).
n217 See id.
n218 Goldberger, Debate Over Proposed 71st St. Tower, N.Y. Times, Nov. 10, 1981, at
B8, col. 5.
n219 Bigger East Side Historic Area Pondered, N.Y. Times, Feb. 6, 1984, at B5, col.
1. Residents suggested extending the three-year-old historic district from its
current edge at 79th Street to new boundary at 96th Street. Id. at B5, col. 2.
n220 Id. at B5, col. 1 (quoting Gene A. Norman, chairperson of the Landmarks
n221 Id. at B5, col. 2 (quoting Andrew J. Stein, Manhattan Borough President).
n222 See note 128 and accompanying text supra.
n223 See text accompanying notes 139-98 supra.
n224 See text accompanying notes 199-221 supra.
n225 See text accompanying notes 141-47 supra.
n226 See text accompanying notes 139-221 supra.
n227 Yarn, Preserving Our National Identity: A Federal Agency View, in
Preservation: Toward an Ethic in the 1980s 67-68 (1980) (from a presentation at
the 1979 National Preservation Conference).
People, Building Neighborhoods, supra note 38, at 55.
n229 See, e.g., Biddle, Historic Preservation: The Citizen's Quiet Revolution,
8 Conn. L. Rev. 202 (1976) (written by president of the National Trust for Historic Preservation); Note,
39 Alb. L. Rev. 521 (1975); Note, Zoning -- Historic District Zoning in North Carolina,
16 Wake Forest L. Rev. 495 (1980); Comment, Historic District Zoning: A Texas Overview,
14 St. Mary's L.J. 709 (1983).
n230 Duerksen, supra note 4, at xix.
n231 See generally Housing Report, supra note 141.
People, Building Neighborhoods, supra note 38, at 55-56; Costonis, supra note 136, at 434-38; Pulliam, Brandeis Brief
for Decontrol of Land Use: A Plea for Constitutional Reform,
13 Sw. U.L. Rev. 435, 436-37 (1983); Rose, supra note 61, at 515-16; Comment, Beyond the Taking Issue: Emerging
Procedural Due Process Issues in Local Landmark Preservation Programs,
10 Fordham Urb. L.J. 441, 456-67 (1982). Preservation regulations may have other adverse effects and uses. See, e.g.,
Note, First Amendment Challenges to Landmark Preservation Statutes,
11 Fordham Urb. L.J. 115 (1982) (discussing the constitutional conflict between the free exercise of religion
and the application of landmark preservation statutes to religious properties).
n233 See text accompanying notes 49-59.
n234 In general, local commissions, established by municipal law pursuant to state
enabling legislation, designate historic districts. See, e.g., text
accompanying notes 93-100 supra.
n235 See note 211 supra and accompanying text.
n236 See Rose, supra note 61, at 491 ("[A] community-building rationale should place preservation -- and the physical
surroundings generally -- in a larger perspective of community needs."). Preservationists have begun to recognize
"the need . . . for forming alliances with other causes such as housing,
transportation, energy and education." Preservation:
Toward an Ethic, supra note 209, at 209 (from issue papers prepared for the 1979 National Preservation
n237 The following citations indicate appeals taken from preservation commission
decisions. No subsequent history is available. See La Comision Central de
Cuidadanos de Alcalde v. Harris, Civ. No. 77-386P (D.N.M., filed July 6, 1977)
(low-income housing project), noted in National Trust for Historic
Preservation, Oct. 1977 Historic Preservation Litigation Chart 12; Geriatric
Care, Inc. v. Capitol Zoning Dist. Comm'n, No. 78-3952 (Pulaski County Cir.
Ct., Ark., filed July 21, 1978) (nursing home facility), noted in National
Trust for Historic Preservation, Sept. 1978 Historic Preservation Litigation
Chart 1; Rangel v. Association Residence Nursing Homes, Inc., Civ. No. 75-1540
(S.D.N.Y., filed March 1975) (nursing home facility), noted in National Trust
for Historic Preservation, Sept. 1975 Historic Preservation Litigation Chart
Inman Park Restoration, Inc. v. Urban Mass Transp. Admin., 414 F. Supp. 99, 121 (N.D. Ga.) (first order 1975, supplemental order 1976) (mass transit
facility), aff'd sub nom.
Save Our Sycamore v. Metropolitan Atlanta Rapid Transit Auth., 576 F.2d 573 (5th Cir. 1978).
n238 D.C. Code Ann.
§§ 5-1001 to -1015 (1981).
§ 5-1004(e). The mayor may issue a permit to demolish a landmark or a structure
within a historic district if demolition is
"necessary in the public interest." Necessary in the public interest" is defined as consistent with the Act or
"necessary to allow the construction of a project of special merit." Id.
Citizens Comm. to Save Historic Rhodes Tavern v. District of Columbia Dep't of Hous. & Community Dev., 432 A.2d 710 (D.C. 1981) (upholding demolition permit issued to allow construction of an office and
retail complex of
"exemplary architecture"), cert. denied,
454 U.S. 1054 (1981);
Don't Tear It Down, Inc. v. District of Columbia Dep't of Hous. & Community Dev., 428 A.2d 369 (D.C. 1981) (upholding demolition permit issued to public utility to build an electric
n242 See generally Comment, supra note 232, at 456-67.
Historic Green Springs, Inc. v. Bergland, 497 F. Supp. 839, 852-53 (E.D. Va. 1980).
Historic Green Springs is discussed at text accompanying notes 296-99 and note 298 infra.
The argument of property owners that preservation laws effect a taking of
private property has not prevailed. See, e.g.,
Penn Cent. Transp. Co. v. New York City, 438 U.S. 104 (1978). Historic districting is particularly immune from takings challenges. Although
districting does restrict development of private property, it also generates
increases in property value. See Advisory Council, supra note 148, at 10-11;
note 173 supra and accompanying text. For a discussion of preservation laws
and the takings issue, see Bonderman, Constitutional Law, in A Handbook on
Historic Preservation Law 350-68 (C. Duerksen ed. 1983).
n244 The similarities between zoning and historic preservation for purposes of
developing appropriate due process standards are discussed in Comment, supra
note 232, at 459-61.
Zoning ordinances should be improved to ensure that urban zoning authorities
fulfill their function of regulating growth and development, including the
height and bulk of buildings, the amount of open space, the density of
population, and the location of trades and industries. See J. Delafons, supra
note 1, at 30-31. Developers can often obtain zoning variances because cities
are intent on attracting development and the opposition is often too weak to
defeat the zoning change. When zoning authorities fail to fulfill their role,
preservation commissions may be pressured by neighborhood groups and
politicians to perform zoning-type functions. See Costonis, supra note 136, at
364-65. Because preservation commissions are prohibited from performing zoning
functions, see text accompanying notes 211-214 supra, they should not succumb
to these pressures.
n245 New York, N.Y., Charter
& Ad. Code Ann. vol. 2, ch. 8-A,
§§ 205-1.0, 207-1.0 to -21 (Williams 1976
& Supp. 1984). New York's preservation scheme is described in text accompanying
notes 93-100 supra.
n246 New York, N.Y., Charter
& Ad. Code Ann. vol. 2, ch. 8-A,
§ 207-2.0(e) (Williams Supp. 1984).
§ 207-2.0(g). A former Corporation Counsel for New York City has attacked the
designation process, particularly the failure of the City's Board of Estimate
to review landmark designations adequately. Richland, The Case for Tightening
Reins on Landmarking, N.Y. Times, Feb. 21, 1982,
§ 8 (Real Estate), at 1, col. 3.
"The protesting property owner has a nearly hopeless task when he appears before
the [Board of Estimate] to ask for repeal of the Landmarks Commission's
decision. The commission enjoys sacred-cow status with the board, whose
elected members seem to be intimidated by the mystique of 'art' and
'architecture.'" Id. at 1, col. 6. As a result of the board's
"the commission entered upon a veritable landmarking binge." Id.
n248 If twenty percent of the potentially affected property owners object to a
zoning regulation, it must be adopted by a three-fourths vote of the Board of
Estimate. New York, N.Y., Charter
& Ad. Code Ann. vol. 1, ch. 8,
§ 200.3 (Williams Supp. 1984). Unlike preservation decisions, which become
effective upon passage, zoning decisions that do not meet with objection do not
become effective for sixty days. Id.
n249 New York, N.Y., Charter
& Ad. Code Ann. vol. 2, ch. 8-A,
§ 207-18.0(c) (Williams 1976).
n251 D.C. Code Ann.
§ 5-1003(b) (1981).
Penn. Cent. Transp. Co. v. New York City, 438 U.S. 104, 110 n.8 (1978) (citing N.Y.C. Charter
§ 534 (1976)).
National Urban Coalition, supra note 193, at 23. The coalition recommended that all levels of government
"devise strategies to minimize the adverse effects of private market housing
rehabilitation." Id. It concluded that
"[t]his obligation exists not only because of this nation's announced commitment
to decent housing for every American, but because government, as well as the
private sector, must take cognizance of the social and political strains
created by displacement caused by reinvestment and historic preservation." Id.
n254 See text accompanying notes 286-91 infra.
n255 During a 1979 preservation symposium, the relationship between historic
preservation and neighborhood conservation was discussed and the following
If [preservation and conservation] are allied, should preservationists become
concerned with the entire spectrum of issues that affect urban neighborhoods,
such as schools, crime prevention, job opportunities, etc.? . . . Should
preservation add to its other objectives the goal of maintaining neighborhood
diversity -- a mix of incomes, races, ethnic groups and ages? . . . Is it
advisable for preservationists to undertake government-assisted projects to aid
low and moderate-income families while also achieving physical preservation
Toward an Ethic, supra note 202, at 205 (from issue papers prepared for the 1979 National Preservation
People, Building Neighborhoods, supra note 38, at 55-56, 320-22. The Commission recommended that
"all levels of government must develop strong policies which insure that
historic preservation programs do not contribute to displacement of low and
moderate income and minority residents of the designated areas." Id. at 55.
n257 This program, designed to assist community development and benefit low- and
moderate-income people, has been used to encourage historic preservation
through neighborhood revitalization projects. Although the program originally
was administered through the United States Department of Housing and Urban
Development, it is now run directly by the states. See National Trust for
Historic Preservation, Information Sheet No. 12, Public Funds for Historic
Preservation 5 (1983) [hereinafter Information Sheet No. 12].
n258 UDAG grants are authorized by
42 U.S.C. § 5318 (1982). See text accompanying notes 123-24 supra and notes 264-65 infra.
n259 These loans are available to rehabilitate property in federally assisted
areas. The program, which funds multifamily projects, gives priority to
projects designed for low- to moderate-income families. See Information Sheet
No. 12, supra note 257, at 6.
n260 Through urban homesteading, vacant federally owned properties are transferred
to local governments, which then sell these properties to individuals for a
nominal fee. Id.
n261 These funds are used to provide housing for low-income families through
supplementary rent payments. Id. Although the funds do not finance
rehabilitation, they make it possible by assuring the developer of income
through payment of rent subsidies. Id.
n262 Under the NSA program, rent subsidies are distributed to tenants of low- or
moderate-income housing the rehabilitation of which is made possible by Section
8 assistance. The program is intended
"to avoid displacing the poor in the name of revitalization," by providing the difference between what residents can afford and the market
rates for renovated housing. The Effect on the Poor and Minorities, supra note
139, at 310.
n263 There are many other potential financial assistance programs. For example,
the National Trust for Historic Preservation, in conjunction with a
corporation, established a $ 1 million mortgage program designed for
rehabilitating low- and moderate-income housing in urban historic districts.
The program is an extension of the Trust's $ 1 million Inner City Ventures
Fund, which provides low-cost financing to nonprofit neighborhood groups
involved in housing rehabilitation activity. Long-Term Mortgage Program for
Historic Preservation Projects Established for Cities,  11 Hous.
& Dev. Rep. (BNA) 534 (Nov. 21, 1983).
42 U.S.C. § 5318(a) (1982). Funds are provided upon a showing that the project will directly
benefit the area's low- and moderate-income residents.  12 Hous.
& Dev. Rep. (BNA) 5-7 [sic].
n265 See United States Dep't of Hous.
& Urban Dev., supra note 124, at 1; see also Dworsky, McVarish, Perry,
& Robinson, supra note 124, at 324-26 (C. Duerksen ed. 1983); Roddewig, supra
note 115, at 499-500. The program disbursed approximately $ 1.3 billion in
federal assistance from its inception in 1977 to the middle of 1980, with
approximately 43% of the projects involving some rehabilitation activity. See
P. Myers, Urban Conservation and Urban Economic Development: Collision and
Convergence 1-5 (1980).
n266 Four neighborhood organizations in Denver, Dallas, and Philadelphia have
initiated programs to develop low-income rental housing, based primarily on
grants and funds provided by the Inner City Ventures Fund, described in note
263 supra. In Denver, the Del Norte Neighborhood Development Corporation will
rehabilitate a low- and moderate-income apartment building using Inner City
Ventures Fund awards, in addition to CDBG and Section 8 assistance. [Current
& Dev. Rep. [BNA] 265-66 (Aug. 27, 1984). In Dallas, a community development
corporation will rehabilitate Victorian cottages originally slated for
high-rise development, creating an inner-city neighborhood for low- or
moderate-income families. Id. at 265. In North Philadelphia, a community
corporation will purchase, rehabilitate, and sell or rent seven townhouses to
low - or moderate-income residents. Id. Using Venture Fund monies, equity
syndication, and local foundation grants, another Philadelphia group will
create a boarding house for senior citizens by purchasing and rehabilitating a
vacant 18th century house. Id.
n267 The Savannah Historic District was established in 1973. The district, at
approximately 2.5 miles square, is the largest historic district in any major
city in the nation. Advisory Council, supra note 148, at C-11; see generally
id. at C-1 to -38; Displacement, supra note 146, at 164.
n268 Advisory Council, supra note 148, at C-1, C-14 to -15, C-30; Displacement,
supra note 146, at 164.
n269 See Advisory Council, supra note 148, at C-8 to -20.
n270 See id. at C-16; McMillan, Staying Home in Savannah, in Historic Preservation,
Mar.-Apr. 1980, at 15, 17; Rose, supra note 61, at 515; State of Maine,
Savannah, Ga. Receive CD Innovative Grants,  5 Hous.
& Dev. Rep. (BNA) 1302.
n271 See Advisory Council, supra note 148, at C-21; see also Displacement, supra
note 146, at 164 (discussing similar efforts in Savannah's Victorian District);
McMillan, supra note 270, at 15-17 (same).
n272 See Advisory Council, supra note 148, at C-20 to -21.
n273 Twelve hundred housing units are being renovated in the Victorian District, a
45-block area south of the Historic District. Displacement, supra note 146, at
164. For a description of the efforts in the Victorian District, see Advisory
Council, supra note 148, at C-19 to -20, C-34 to -37; McMillan, supra note 270.
n274 See Displacement, supra note 146, at 164.
n277 B. Reiter, R. Jones, L. Adler
& C. Adler, Preservation for People in Savannah 24 (1983).
n278 See id. at 26. From 1977 to 1982, the percentage of the population on fixed
incomes fell only slightly, from 55.2% to 54.0%. Id. at 24.
n279 At the state level, funds are often provided through economic or business
development agencies, housing finance agencies, and quasi-public organizations.
Information Sheet No. 12, supra note 257, at 9.
n280 At the local level, planning, community development, housing, urban
conservation or preservation, and downtown revitalization agencies usually
administer the programs. Id.
n282 A revolving fund, owned and administered by a nonprofit organization, uses a
source of money to make loans for the express purpose of purchasing and
restoring architecturally significant structures. All proceeds from
restoration are returned to the fund. See Galbreath, Conservation: The New
Word for Old Neighborhoods,
8 Conn. L. Rev. 312, 317 (1976) (describing Seattle revolving fund). San Francisco, Savannah, Seattle, and
other cities have established such funds, financing them with general revenue
sharing (Seattle), community development allocation (San Francisco), or
privately raised funds (Savannah). See
id. at 317-22 (discussing Seattle and San Francisco); Advisory Council, supra note 148, at
C-10 to -11 (discussing Savannah).
n283 See Galbreath, supra note 282, at 313-14. The program, designed to supersede
HUD's Section 312 and 115 rehabilitation loan and grant programs, was a model
for programs in Seattle and Pittsburgh, leading innovators in the field of
neighborhood preservation. Id. at 313. Section 312 loans are described in
note 259 supra. Section 115 grants are earmarked for rehabilitation.
Galbreath, supra note 282, at 314 n.3.
n284 See Galbreath, supra note 282, at 324-25; Osman, Designing the Renaissance of
a Proud But Decayed Neighborhood in Detroit, 63 J. Am. Inst. Architects 18,
19-20 (May 1975).
n285 See T. Conley, Lafayette Square: An Urban Renaissance (1974) (discussing a St.
Louis historic district); L. Dunsavage
& V. Talkington, The Making of a Historic District: Swiss Avenue, Dallas, Texas
(National Trust for Historic Preservation Case Studies in Preservation, 1975);
A. Ziegler, Historic Preservation in Inner City Areas: A Manual of Practice
34-35 (1971) (available at National Trust for Historic Preservation);
Galbreath, supra note 282, at 314-16, 322-28; The New Look of Cincinnati's Mt.
Auburn, Historic Preservation, Apr.-June 1972, at 31.
Arthur Ziegler, head of a Pittsburgh organization that restored historic
districts with minimal displacement, reported on previous preservation
activities in Pittsburgh:
[P]reservationists have been as indifferent (perhaps even more indifferent) to
community self-determination as have redevelopment authorities. Historic
preservation groups across the country from the 1930's up until today
remorselessly removed neighborhood residents regardless of their longevity in
the proposed historic district or their commitment to that area. They simply
replaced them with well-to-do residents who could understand the value of the
structure and who could afford to restore and maintain them [sic].
A. Ziegler, supra, at 22.
n286 Several groups have advocated the repeal of federal tax incentives. The
National Commission on Neighborhoods
"does not believe that the Federal Tax Code should give special benefits to
those who eject the poor from their neighborhoods under the banner of historic
People, Building Neighborhoods, supra note 38, at 197. Accordingly, the Commission recommended to Congress that
federal tax incentives
"be allowed to expire. . . . Removal of this special tax benefit for
restoration by the affluent would not put an end to displacement but it would
at least put an end to an important incentive to that displacement presently in
the Tax Code." Id.
The National Urban Coalition also has urged Congress to repeal its preservation
tax incentives. The Coalition warned that uncontrolled rehabilitation leads to
rent increases, which force poor tenants to leave their neighborhoods. See
Repeal of Historic Preservation Tax Incentives Urged by Urban Coalition, 
& Dev. Rep. (BNA) 844.
n287 See Developers Discuss Historic Preservation, Urban Land, Nov. 1983, at 12.
Wayne Ratkovich, president of Ratkovich-Bowers, Inc. of Los Angeles, said that
his company was involved in historic rehabilitation before the tax credit was
available, so that was not our reason for undertaking these projects. We have
always felt there was a good market for rehabilitated properties and that,
though the tax credit is important, historic rehabilitation is still profitable
on its own.
Id. Brad Griffith, executive vice president of Leggatt McCall
& Werner, Inc., of Boston, said that for his company,
"the 25 percent investment tax credit is an added extra. A development deal
must fly on its own, before the tax credit, to be considered. And the benefits
of historic renovation are generally good enough by themselves for us to get
involved." Id. at 13.
n288 Federal preservation officials have urged state and local officials involved
in grants of federal tax benefits
"to evaluate the social implications of improvements in [historic] districts to
assure that the residents in these districts are provided for." Additional Interim Procedures for Historic Preservation Certifications
Pursuant to the Tax Reform Act of 1976,
42 Fed. Reg. 40,437 (1977).
People, Building Neighborhoods, supra note 38, at 191-96. The National Commission on Neighborhoods suggests that
neighborhood control of housing should be enhanced by greater use of
neighborhood improvement corporations and real estate investment trusts, and by
tax code changes to deter fast turnover tax shelters and to encourage major
investments in repairs. Id.
n290 See id. at 191.
n291 See id. at 192.
n292 See note 85 supra and accompanying text.
n293 1 N. Williams, supra note 85,
§ 11.02, at 245.
n294 See, e.g.,
Maher v. City of New Orleans, 516 F.2d 1051, 1059-61 (5th Cir. 1975), cert. denied,
426 U.S. 905 (1976);
City of Santa Fe v. Gamble-Skogmo, Inc., 73 N.M. 410, 415-16, 389 P.2d 13, 17 (1964).
n295 Rose, supra note 61, at 487.
n296 See Comment, supra note 232, at 456-67 (advocating interest-balancing and
administrative standards approaches).
497 F. Supp. 839 (E.D. Va. 1980).
Green Springs, the Department of the Interior's designation of a 14,000-acre area as a
historic landmark was challenged as improper. The court held the designation
"invalid based on the Department's failure to promulgate substantive standards
for national historic significance and its failure to prepare and publish rules
of procedure to govern the designation process."
497 F. Supp. at 856. Although the Green Springs area was designated a landmark, the designation of
"roughly the size of Manhattan Island,"
id. at 842, is more akin to districting than to landmarking. See
id. at 844.
n299 See, e.g.,
Maher v. City of New Orleans, 516 F.2d 1051, 1058-64 (5th Cir. 1975), cert. denied,
426 U.S. 905 (1976);
Young v. Mellon, 93 Cal. App. 3d 1001, 156 Cal. Rptr. 165 (Ct. App. 1979) (deleted from official reporter on direction of California Supreme Court by
order dated Aug. 29, 1979);
Society for Ethical Culture v. Spatt, 51 N.Y.2d 449, 415 N.E.2d 922, 434 N.Y.S.2d 932 (1980);
Manhattan Club v. Landmarks Preservation Comm'n, 51 Misc. 2d 556, 273 N.Y.S.2d 848 (1966).
Prepared: January 24, 2003 - 5:02:29 PM
Edited and Updated, January 25, 2003
Kristen A. Stelljes