Now that we have a greater understanding of Historic preservation and landmarks, let us discuss the constitutional issues that arise as a result of historic preservation. Constitutionality of Historic Preservation

Although the federal government has established laws that provide guidelines to states as it relates to the preservation of historic sites, there have still been some challenges to such preservation as it relates to the constitutionality of the laws. According to Ross (2005) the constitutionality of historic preservation ordinances can be challenged under the First Amendment when a plaintiff asserts that a governmental endeavor infringed upon Free Exercise rights or debased the Establishment Clause.

An article found in William and Mary law review asserts that the Supreme Court's contribution to the land-use concepts of quality of life and the balance between the majority and the individual traces well into the last century and covers a host of provisions. Several early Court cases addressed the challenge of a changing society by outlining when the state's "police power" could be used to restrict what had come to be seen as "obnoxious" uses (Brookshire, pg 1090)."

In many cases, courts have upheld the importance and legitimacy of the laws associated with historic preservation. The conflicts associated with preserving sites started with of a few cases that established certain precedence to make legal government authorization of historic preservation.

One of the primary cases came in 1976 with Figarsky v. Historic District Commission [171 Conn. 198, 368 a.2d 163 (1976)], which deals with unconstitutional deprivation of property without compensation. In this particular case the plaintiff was the owner of a building in a historic district but the property had little historic significance. Figarski asked for permission to destroy the building but the application was denied (Benhamou, 2003). The plaintiff believed that the denial was capricious, because it was dependent upon "a vague aesthetic legislation," and the owner asked to be compensated for the costs associated with the repairs (Benhamou, 2003). However the court sided with the Commission asserting that the denial was not confiscatory nor was it an abuse of power (Benhamou, 2003).

In this particular case, the owner of the property could not prove that the actions of the government were depriving him of his right to his property. Instead the court decided that the commission was simply attempting to ensure the preservation of an historic sight and they had every right to do this.

In addition, the owner could still use the property but would have to refurbish the property based on the original design and materials. This type of situation would seem problematic because it probably would have been less expensive for the owner to tear the property down and rebuild as opposed to simply repairing the building.

Another landmark case involving historic preservation was Penn Central

Transportation Co. v. City of New York [438 U.S. 104 (1978). This served as the leading takings case, dealing with the constitutional issue and objections based on substantive due process, takings of property, and equal protection. An article published in Journal of the American Planning Association asserts that in Penn Central Transportation Company v. New York City, which upheld the landmark protection of Grand Central Terminal, the Court expressed two central principles.

To determine whether a taking has transpired, a court must take into consideration the effect of the guideline on the complete property, not just on a specified segment. The court also must ensure that the owner was deprived of all reasonable use (Kelly et al.). This principle was also reiterated as it relates to taking test being applied to the entire property in Keystone Bituminous Coal Association v. DeBenedictis. In this case the court found that a law shielding property owners from surface subsidence by demanding retention of roof pillars did not deny coal mine owners of all "economically viable use" of their property (Kelly et al.).

The second principle expressed in Penn Central v. New York City is an all-inclusive test for the takings clause. This tests necessitates the balancing of three factors: the nature of the governmental action, the economic effect on the landowner, and the presence or absence of "reasonable, investment-backed expectations (Kelly et al.)."

According to a book entitled the American Mosaic the Supreme Courts decision in this case played an instrumental role in supplying guidelines for local historic preservation regulations. The authors assert that "This decision settled many legal issues that had previously haunted preservationists, since the validity of preservation regulations were never reviewed by the U.S. Supreme Court. The Penn Central Case in addition...

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These decisions have assisted in forging the boundaries associated with historic preservation and the rights of property owners. Through these cases the courts clarifies what is expected from property owners and government as it relates to the preservation of historic sites. These cases have been the benchmark for the types of laws that states and locales create as it pertains to historic preservation.

Transfer of Development Rights

As with many of the aforementioned laws, Transfer of development rights differ from state to state. In the state of Tennessee Code 13-7-402, asserts that counties and municipalities may institute a voluntary transfer of development rights program for the purposes of preserving historic districts, of for important environmental or agricultural sites. In addition, according to Tennessee Code Annotated 13-7-101(a)(2) only those counties with a metropolitan government can manage a TDR program (Transfer of Development Rights). Regulations associated with TDR programs in Tennessee also asserts that Historic zoning is established to promote the educational, cultural, and economic welfare of the people of the state. 13-7-401. The legislative body of any county or municipality may establish special historic districts or zones, and to regulate the construction, repair, alteration, rehabilitation, relocation and demolition of any building located within the bounds of any historic district or zone. 13-7-402(a). Historic districts or zones may be superimposed on other districts or zones, including zoning maps, established by any other zoning ordinance or regulation. 13-7-402(b) (Tennessee).

Overall the Transfer of development rights makes it possible for cities to define zoning restrictions. In the state of Tennessee restrictions can serve the purpose of preserving historic sites, the environment, and agricultural sites.

Discussion and Conclusion

The purpose of this discussion was to examine "historic preservation" as a major land use program -reviewing historic district regulations & historic landmark protection (which are the 2 major local regulatory programs), as well as the use of 'development rights transfers' as an historic preservation technique.

There research indicates a plethora of laws that govern historic sites. Although these laws are governed by certain federal standards, state and local governments also yield a great deal of authority concerning land use and the preservation of historic sites. As such historic district regulations differ from district to district. However because of the federal regulations that govern historic preservation there are certain similarities that can be found from district to district as it relates to regulations. For instance the site must be of historical value as it relates to a specific event taking place on the site or a historic figure being born in a particular home. For instance the Church where Martin Luther King was pastor and the home he was born in are both historic sites that are part of a historic district in the city of Atlanta. With these things being understood there are certain regulations that govern the changes that can be made to historic sites. One of the primary regulations is the use of original material to refurbish historic sites. In addition sites are expected to display similar architecture as other structures within the historic district.

As it relates to the National Historic Landmark program, the research indicates that there are less than 3000 sites that carry this particular distinction. As such it can be concluded that it is more difficult for a site to become a landmark. The research indicates that although there is some protection for these landmarks property owners also have some protections.

The research also focused on the constitutionality of historic preservation. The research found two landmark cases that have assisted greatly in the forging of federal, state and local laws that govern the preservation of historic sites. The first case Figarsky v. Historic District Commission took place in 1976. This particular case involved the issue of unconstitutional deprivation of property without compensation. In this the plaintiff asked for permission to destroy the building but the application was denied, even though the building in question had very little historical significance. The plaintiff asserted that he should be compensated for the costs of having to repair the building but the court sided with the Commission asserting that the denial was not confiscatory nor was it an abuse of power and as such the property owner did not have to be compensated.

In addition to Figarsky v. Historic District Commission, another important decision came two years later in the…