The Legal Framework for Historic
Preservation Law: The Big Picture
Georgia Historic Preservation (HPC)
Training
Thomasville, Georgia
November 5, 2015
Melvin B. Hill, Jr., Esq.
Why Planning?
• Chicken coops
• Funeral homes
• Rendering plants
• Sexy Suz’ Lingerie
Why Historic
Preservation?
The Athenian Oath
(taken by the youth of ancient Athens when they reached
the age of 17)
We will never bring disgrace on this our City, by an act of dishonesty or cowardice.
We will fight for the ideals and Sacred Things of the City, both alone and with many.
We will revere and obey the City’s laws and will do our best to incite a like reverence and respect in
those above us who are prone to annul them or set them at naught.
We will strive increasingly to quicken the public’s sense of civic duty.
Thus in all these ways we will transmit this City not only not less, but greater and more beautiful
than it was transmitted to us.
• Leave me alone!
• Get off my back!
• “Live Free or Die”
Values Americans Share
(generally!)
A presumption of
freedom
Key Constitutional
Protections
U.S. Constitution:
First Amendment
Congress shall make no law respecting an
establishment of religion, or prohibiting
the free exercise thereof; or abridging the
freedom of speech, or of the press; or the
right of the people peaceably to assemble,
and to petition the Government for a
redress of grievances.
U.S. Constitution:
5th and 14th Amendments
5th Amendment
“No person shall be . . . deprived of
life, liberty, or property, without
due process of law; nor shall private
property be taken for public use,
without just compensation.”
14th Amendment
“. . . Nor shall any state deprive any person of life, liberty, or
property without due process of law; nor deny to any person
within its jurisdiction the equal protection of the laws.”
10th Amendment
“The powers not delegated to the United States by the
Constitution, nor prohibited by it to the States, are reserved to
the States respectively, or to the people.”
U.S. Constitution:
th
10 Amendment
James Madison
The importance of contracts and the freedom
of association
U. S. Constitution
Article I, Section 10
“No state shall …pass any bill of attainder, ex
post facto law, or law impairing the obligation
of contracts …”
The Institutional Framework for Preserving
these Values and Rights
Georgia Constitution
Article I. Section I.
Paragraph I. Life, liberty, and property.
No person shall be deprived of life, liberty, or
property except by due process of law.
Paragraph II. Protection to person and property;
equal protection.
Protection to person and property is the
paramount duty of government and shall be
impartial and complete. No person shall be denied
the equal protection of the laws
Georgia Constitution, cont’d
Section III.
Paragraph I. Eminent domain.
(a) . . . private property shall not be taken or damaged
for public purposes without just and adequate
compensation being first paid.
Police Power
• The authority reserved to the states by the Tenth
Amendment and, in turn, delegated to local
governments, that enables states to regulate the
activity of the individual, particularly in his or her use
of property.
• Examples include: public
health and building regulations, zoning
ordinances, subdivision regulations,
sign ordinances, traffic laws, and
environmental controls.
Police Power
This power may be exercised,
provided it :
• is intended for the public good;
• is not aimed to affect only one individual or only one
parcel of land;
• is not clearly arbitrary and unreasonable; and
• has a reasonable relation to the public health, safety,
morals, peace and quiet or general welfare.
Takings
Eminent Domain
• The legal process by which a public body (and certain
private bodies) are given the legal power to acquire
private property for a use that has been declared to be
public by constitution, statute or ordinance
Eminent Domain and the U.S. Supreme Court
Suzette Kelo
• The court has interpreted "public use" to include not
only such traditional projects as bridges or
highways but also slum clearance and land
redistribution. Justice Stephens concluded that a
"public purpose" such as creating jobs in a
depressed city can also satisfy the Fifth
Amendment.
• The court should not "second-guess" local
governments, Stevens added, noting that
"[p]romoting economic development is a traditional
and long accepted function of government."
Kelo v. City of New London
Regulatory Taking
“The general rule, is that while property may
be regulated to a certain extent, if regulation
goes too far it will be recognized as a
taking.
Pennsylvania Coal Co. v. Mahon (1922)
Justice Oliver Wendell Holmes
Takings
Takings
“Government hardly could go on if to some extent values
incident to property could not be diminished without
paying for every such change in the general law. As long
recognized, some values are enjoyed under an implied
limitation and must yield to the police power.”
Pennsylvania Coal Co. v. Mahon (1922)
How Far Is Too Far?
“In 70-odd years [since Mahon], we have generally
eschewed any set formula for determining how far is
too far, preferring to engage in essentially ad hoc,
factual inquiries.”
Lucas v. South Carolina Coastal Council
Photo by
William A.
Fischel
Penn Central Transportation Co.
v. New York (1978)
Penn Central is the controlling U.S.
Supreme Court case for analyzing
takings claims.
• Communities have the authority to
adopt laws and regulations that are
designed to protect and enhance the
quality of life of their citizens
• The regulation of private property will not constitute a
taking, as long as the regulation advances a legitimate
governmental interest and the property owner retains
some viable use of the property
• Property owners may not establish a taking “simply by
showing that they have been denied the ability to
exploit a property interest that they heretofore had
believed was available for development.”
Penn Central
1. The economic impact of the
regulation on the property;
2. The extent to which the
regulation interferes with
distinct legitimate,
investment-backed expectations;
3. The character of the government action—
does it result in the equivalent of a physical
invasion of the property or is it more a
“public program adjusting the benefits and
burdens of economic life to promote the
common good.”
Penn Central’s 3-Pronged Taking
Analysis
• The application of an ordinance “does not exceed the
police power simply because it restricts the use of
property, diminishes the value of property, or imposes
costs in connection with the property.”
Gradous v. Bd. Of Commrs. 256 Ga. 469 (1986)
Parking Assn of GA 264 Ga. 764 (1994)
What is “detriment”?
Substantive Due Process
• Regulation is unconstitutional if it is arbitrary and
unreasonable and has no substantial relationship to the
public health, safety, morals, or general welfare. (Village of
Euclid v. Ambler Realty)
• But a land use ordinance is presumed valid without clear
and convincing evidence that it violates this principle.
Due Process
“If the board’s decision is
unwise but does not violate
substantive due process,
plaintiff’s remedy lies in the
political arena; simply put,
if unhappy, plaintiffs may
campaign to throws the
rascals out.”
The People ex rel. Klaeren v. The Village of
Lisle, 316 Ill. App. 3d 770, 786 (2000)
“The history of liberty has largely been the history of the
observance of procedural safeguards.”
Justice Felix Frankfurter
McNabb v. United States
Procedural Due Process
What Process is Due?
Government Proceedings Must Be:
• orderly
• fundamentally fair
• judicious
• impartial
Adequate Notice
• Requirements found in state enabling laws and in local
zoning, subdivision and preservation ordinances
• Notice to property
owner/applicant,
neighbors, general public
• Failure to comply may invalidate
actions
Unbiased Decision Maker
• Commission members must be free from conflicts of
interest and bias
• Financial
• Other interests
• Consequences:
• Invalidation of Actions
• Lack of confidence in Commission
Opportunity to Be Heard
• All parties must be allowed a fair and
reasonable opportunity to present arguments
and evidence supporting their positions
• Reasonable time restrictions
• Rebuttal of others’
arguments and evidence
• Cross-examination may be
required
Ex-Parte Contacts
• Outside the public hearing process
• With a party involved or potentially involved in a
matter before your commission
• Reveal inadvertent ex-parte contacts before you vote
• Open meetings law
Procedural Due Process in Georgia
•
Procedural due process means notice and an
opportunity for affected parties to be heard.
•
The purpose of the hearing is to permit
interested persons to furnish information that
will assist the board in deciding whether a
variance should be granted.
•
To that end, the chairperson may conduct the
hearing informally; strict adherence to the rules
of evidence is not required. The goal is a fair
hearing.
Jackson v. Spalding Co.
265 Ga. 792, 462 S.E.2d 361 (1995).
Prompt Decision Making
• Decisions made in a reasonable time
in light of substantial financial and
personal capital expended by all sides
• Within time limits of enabling
legislation and local ordinances
• Prohibits discrimination in
application of laws
• Similarly situated property should be treated
similarly under the law
• Different treatment of similar property will be
upheld if reasonable grounds exist for the
disparity.
Equal Protection
• Can decisions of the preservation commission be appealed?
Yes. The Georgia Historic Preservation Act (§ 44-10-28)
provides that:
“Any person adversely affected by any determination made by the
commission relative to the issuance or denial of a certificate of
appropriateness may appeal such determination to the
governing body of the county or municipality in whose historic
preservation jurisdiction the property in question is located;”
Appeals
• What action can the governing body take?
“. . . such governing body may approve, modify, and
approve or reject the determination made by the
commission . . .” They may also remand the matter to the
preservation commission with further instructions.
Appeals
• Can the governing body overrule the
preservation commission just because they
don’t like the decision?
No. They may take action only “if the
governing body finds the COMMISSION
ABUSED ITS DISCRETION in reaching
its decision.”
• Abuse of discretion is more than just substituting the judgment of
the governing body for that of the preservation commission.
• The preservation commission’s determination should only be
overturned if it is arbitrary, unjustifiable, or clearly unreasonable.
• Preservation commissions are given discretion by the Historic
Preservation Act so they can make fair decisions in a specific case
instead of being locked into a formula that may not suit every
situation. That is also why commission members should have
expertise in historic preservation.
Abuse of Discretion
They look at the RECORD of the case before the preservation
commission including the commission’s findings and decision.
An abuse of discretion can be found where the record contains no
evidence to support the decision of the preservation commission.
While the decision, by law, was left to the preservation
commission in the first place, that discretion must be exercised
fairly and impartially or it may be reversed.
Determining Abuse of
Discretion