Fifth Amendment

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Retaking Mecca: Healing Harlem through Restorative Just Compensation

Issues Volume 51, Issue 2

By Meron Werkneh

Neighborhood redevelopment often brings about major cultural shifts. The Fifth Amendment‟s Takings Clause allows for the taking of private property only when it is for public use, and requires just compensation. Courts have expanded the “public use” requirement to allow “urban renewal projects” where the economic development of the area stands as the public purpose. The consequent influx of private developers in the name of economic revitalization has led to the displacement of many communities — particularly those made up of low-income people of color.

This displacement has been extremely visible in Harlem. Harlem was once considered the Mecca of black art and culture, but the last few decades have brought changes that may cost it this title. Rampant land condemnations and redevelopment efforts incited a noticeable socioeconomic shift in the historic neighborhood. Residents and small business owners pushed against these eminent domain actions, but to no avail — Harlem‟s gentrification continued. Rising rents and institutional barriers compelled the slow exodus of longtime African American residents and business owners unable to afford the increasing costs.

This Note explores the expansion of “public use” after Kelo v. City of New London, noting how it encouraged gentrification, particularly in Harlem. It argues that the current compensation scheme does not meet the constitutional standard of being “just” because it does not account for the loss of the community as a unit, or the dignitary harm suffered due to forcible displacement in the name of “revitalization.” Finally, it proposes Community Benefits Agreements as the vehicles through which gentrifying communities can receive restorative compensation, offering recommendations for creating a CBA that could begin to heal Harlem.

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

Issues Volume 57, Issue 2

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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