The Penn Central decision, in its most immediate concern, provided a legal framework within which local governments could enforce historic landmark restrictions without a regular constitutional requirement to pay "just compensation." The decision amalgamated regulatory takings analysis of historic landmark restrictions to the familiar and tolerant federal standards for reviewing zoning. Affirming the importance of the public interest goals of historic preservation, the Court directed inquiry to whether sufficient economic potential remained in the control of the property owner, given reasonable expectations at the time of her investment in the property. While the broader jurisprudential merits of Penn Central's approach to the Taking Clause have been the subject of wide debate, the constitutional question of how much of an economic burden the owner of a landmark may be required to bear has received very little attention. Ironically, it is this question that very well may have been the Court's primary concern.
This essay looks specifically at how Penn Central protects historic preservation regulation. The constitutional framework created by the decision has fostered a remarkable blossoming of historic preservation as a major tool of urban land use regulation. Preservation could never have played this role without the insulation from constitutional liability provided by the Penn Central Court, likewise, it could not have played this role if property owners had been denied all economic incentives to invest in the renovation and reuse of historic properties. Penn Central appears to have crafted a balance between local control and individual rights that has nourished preservation.
15 Fordham Envtl. L. Rev. 313-334 (2004)
Scholarly Commons Citation
Byrne, J. Peter, "Regulatory Takings Challenges to Historic Preservation Laws After Penn Central" (2004). Georgetown Law Faculty Publications and Other Works. 503.