Authority to Regulate Property
Preservation Books
Politics of Historic Districts: A Primer for Grassroots Preservation |
Although a relatively new form of governmental regulations, historic preservation ordinances are well-grounded legally.
In 1978, the U.S. Supreme Court in its landmark decision, Penn Central Transportation Co. v. City of New York, 438 U.S. 104 (1978), recognized that preserving historic resources is "an entirely permissible governmental goal," and that New York City's historic preservation ordinance was an "appropriate means" to securing that goal. Some states have also explicitly recognized historic preservation as a legitimate governmental function in their state constitutions.
That being said, a local government's ability to regulate historic properties is dependent upon state law. Local governments are creatures of the state and, pursuant to the U.S. Constitution, the authority to regulate private property is reserved to the states. Thus, it is important to ensure that local preservation ordinances are consistent with the authority bestowed on local governments to protect historic resources. This authority may take the shape of a broad delegation of authority (commonly referred to as home rule authority) or special grants of authority that specify what types of properties may be designated, who may designate those properties, the composition of a preservation commission, actions subject to review, and so forth.
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