A Taking by Another Name: Challenging Historic Preservation After Cedar Point

By Matthew H. Winesett

In the 1922 case Pennsylvania Coal v. Mahon, Justice Holmes proclaimed that regulations going “too far” constituted takings under the Fifth Amendment. But over a century later, courts rarely find a land-use restriction they think fits this description. This is largely due to Penn Central Transportation Company v. City of New York, the Supreme Court’s “landmark case about landmarks” establishing the judiciary’s highly permissive stance toward historic preservation laws. Though initially employed to save beloved structures from destruction, preservation ordinances have proliferated to prevent the redevelopment of tens of thousands of buildings, worsening the country’s housing shortage.

Fortunately, there are signs that the Roberts Court is open to correcting course. In the 2021 case Cedar Point Nursery v. Hassid, the Court reinterpreted two well-established precedents governing takings challenges to favor property owners over regulators. Though so far cabined to “physical” takings, Cedar Point may signal the Court’s appetite for takings challenges to historic preservation laws as well.

Part I of this Note discusses the history of preservation in the United States and the Supreme Court’s deferential takings jurisprudence regarding such regulations. Part II explores the costs of this deference, both to individual property owners and society at large. Part III analyzes Cedar Point in light of the Court’s underused but still-extant line of property-protecting precedents to suggest that the Court’s deference to historic preservation laws may soon change. Part IV then offers several avenues that courts could take in the wake of Cedar Point to declare abusive historic preservation practices as takings necessitating compensation, and thereby clarify Takings Clause doctrine in the process.

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