Virginia Commonwealth University VCU Scholars Compass Theses and Dissertations Graduate School 2014 To Destroy or to Preserve: Urban Renewal and the Legal Foundation of Historic District Zoning Andrew Tarne Virginia Commonwealth University Follow this and additional works at: https://scholarscompass.edu/etd Part of the Urban Studies Commons © The Author Downloaded from https://scholarscompass.edu/etd/3488 This Thesis is brought to you for free and open access by the Graduate School at VCU Scholars Compass. It has been accepted for inclusion in Theses and Dissertations by an authorized administrator of VCU Scholars Compass. For more information, please contact libcompass@vcu. © Andrew Eugene Tarne 2014 All Rights Reserved To Destroy or to Preserve: Urban Renewal and the Legal Foundation of Historic District Zoning A thesis submitted in partial fulfillment of the requirements for the degree of Master of Urban and Regional Planning at Virginia Commonwealth University.
By Andrew Eugene Tarne Juris Doctor, 2013, University of Richmond, T. Williams School of Law Bachelor of Arts, 2010, University of Virginia Director: Dr. I-Shian Suen, Chair, Urban and Regional Studies Virginia Commonwealth University Richmond, Virginia May 6, 2014 i Acknowledgments The author wishes to extend his sincerest thanks to Dr. I-Shian (Ivan) Suen, Mr.
Philip Carter Strother, Professor Aubrey Fountain, and Professor Kimberly Chen for their time, insights, and support throughout the completion of this Thesis. The author also offers heartfelt gratitude to his family and to Natalie for their encouragement during the completion of another chapter in his formal education. ii Table of Contents I. BACKGROUND AND LITERATURE REVIEW 4 A.
JURISPRUDENCE PRIOR TO BERMAN 27 A. JURISPRUDENCE FOLLOWING BERMAN 45 A. Penn Central Transportation Co. City of New York.
Overview prior to Berman. Overview following Berman. POTENTIAL ALTERNATIVES TO HISTORIC ZONING 81 A. Voluntary Preservation Associations.
CONCLUSION 91 Appendix A i Appendix B xi Appendix C xvii iv Abstract To Destroy or to Preserve: Urban Renewal and the Legal Foundation of Historic District Zoning By: Andrew Eugene Tarne, J. A thesis submitted in partial fulfillment of the requirements for the degree of Master of Urban and Regional Planning at Virginia Commonwealth University. Virginia Commonwealth University, 2014. Major Director: Dr.
I-Shian Suen, Chair, Urban and Regional Studies Historic preservation and urban renewal are often thought to be polar opposites. Where one seeks to preserve, the other generally seeks to destroy in order to rebuild. While the programs appear on the surface to be in opposition, this Thesis seeks to demonstrate that there is a fundamental connection between the underlying legal principles of historic zoning and urban renewal. To that end, the jurisprudence involving historic zoning and aesthetic regulations before and after the seminal urban renewal case of Berman v.
Parker has been collected and analyzed. This analysis revealed that courts were hesitant to support aesthetic, and by extension would have been unlikely to support historic zoning, prior to the Supreme Court’s validation of urban renewal programs in Berman. For example, in 1949 the Supreme Court of Massachusetts stated that specifically stated that a zoning regulation cannot be enacted solely to preserve the beauty of a community. In Berman, however, the United States Supreme Court justified urban renewal on the basis that governments should be able to condemn and regulate property for the creation of a more attractive community.
An analysis of the jurisprudence following Berman indicated that courts were more likely to uphold aesthetic or historic zoning ordinances. For example, in a 1955 opinion, the Supreme v Court of Massachusetts cited Berman and stated that, because construction of aesthetically or historically incompatible structures could destroy the historic character of a town, historic zoning ordinances fell within the scope of the police power. In short, the cases identified by this Thesis ultimately indicated that Berman had an impact on the acceptance of aesthetic and historic zoning. Therefore, they suggest that the programs of historic zoning and urban renewal, while seemingly in opposition, share fundamental legal roots.
vi Vita Andrew Eugene Tarne was born in May 1988. In 2006, he graduated from Osbourn High School in the City of Manassas, Virginia. In May 2010, he received a Bachelor of Arts in Classics, with a Minor in Architecture, from the University of Virginia. Thereafter, in May 2013, Andrew received a Juris Doctor from the University of Richmond, T.
Williams School of Law, where he served as the Managing Editor for Volume 47 of the University of Richmond Law Review. In October 2013, Andrew was licensed to practice law in the Commonwealth of Virginia. Having been raised and educated in one of the original Thirteen States and the site of the first permanent English colony in the New World, Andrew strongly believes in the value that history adds to contemporary life and culture. Considering himself an amateur architect, he is particularly fond of historic sites and structures throughout Virginia, from the grand Neo- Classical and Federal homes of famous statesmen to the vernacular Victorians and American Foursquares inhabited by ordinary citizens who helped to build the Commonwealth and the nation.
INTRODUCTION In 1978, the Supreme Court of the United States, in a divided decision, generally recognized the validity of historic preservation ordinances in the landmark case Penn Central Transportation Co. City of New York.1 Since 1978, the historic preservation movement in the United States has continued to grow. Currently, a number of laws, regulations, and policies at the federal, state, and local levels affect millions of properties across the nation. Government managed historic preservation began with the admirable intention of preserving “the historical and cultural foundations of the Nation.
as a living part of our community life and development in order to give a sense of orientation to the American people.”2 With a growing number of laws and designated historic districts, however, some property owners and residents have grown concerned that historic preservation efforts may harm both their individual interests and their larger communities.3 Indeed, many of those affected by historic preservation laws have reason to be concerned. Within urban environments nationwide, a multitude of neighborhoods have been designated as historic by government at all levels.4 Many residents of these neighborhoods still have very real memories of an earlier government program that sought to create better neighborhoods and cities, urban renewal. Residents fear that historic 1 438 U. The primary challenge to the New York City Landmark Ordinance was that, as applied to Plaintiff’s property, it constituted a takings requiring just compensation.
In reaching the conclusion that the ordinance did not amount to a takings, the majority generally recognized the validity of historic zoning and landmark designation. See infra notes 283-91 and accompanying text. 2 National Historic Preservation Act, 16 U. Phelps, Moving Beyond Preservation Paralysis? Evaluating Post- Regulatory Alternatives for Twenty-First Century Preservation, 37 VT., Ryan Howell, note, Throw the “Bums” Out? A Discussion of the Effects of Historic Preservation Statutes on Low-Income Households Through the Process of Urban Gentrification in Old Neighborhoods, 11 J.
GENDER RACE & JUST. 1 preservation laws will lead to the same pain of displacement felt by communities affected by Twentieth Century urban renewal programs.5 Indeed, some scholars have even noted that government managed historic preservation ultimately has its roots in mid-century urban renewal.6 Others take a different, though not inherently contradictory, approach, arguing that historic preservation, as a movement, grew from the opposition to mid-century interventionist, demolition based urban renewal tactics.7 This Thesis will expand on current scholarship regarding the links between historic preservation and urban renewal. It will begin by exploring the roots of mid-century urban renewal programs and of historic preservation programs. The focus will then turn to a direct analysis of the fundamental legal similarities of urban renewal and historic preservation as developed in case law.
Specifically, this Thesis will compare historic preservation and aesthetic regulation cases prior to the United States Supreme Court’s seminal Urban Renewal decision in Berman v. Parker to historic preservation cases following that decision. This approach will be used to help determine the effect that the Berman decision had on the legal status of historic preservation laws. This Thesis hopes to contribute to the existing scholarship by outlining in 5 See, e.
Rose, Preservation and Community: New Directions in the Law of Historic Preservation, 33 STAN. 473, 513-14 (1981) (“Low-income interest associations such as the National Urban Coalition fear that rehabilitation in historic districts, leading to steep rent increases, will force low-income tenants to leave their old neighborhoods, without even the benefit of the Uniform Relocation Act payments that once assisted those displaced by urban renewal projects. Ryberg, Historic Preservation’s Urban Renewal Roots: Preservation and Planning in Midcentury Pennsylvania, 39 J. URBAN HISTORY 193, 194 (2013) (arguing that mid-century Philadelphia planners adopted plans that preserved buildings “not based on a sense of historic value, but rather a pragmatic desire to ease plan implementation”); see also Rose, supra note 5, at 509 (“The 1950s and early 1960s urban renewal plans for preservation have a continuing influence in historic district planning.
CONFERENCE OF MAYORS, SPECIAL COMMITTEE ON HISTORIC PRESERVATION, WITH HERITAGE SO RICH (1966). 2 detail the field of historic preservation jurisprudence before and after Berman. Such an outline will aid in determining whether the legal foundations of urban renewal and historic preservation are inextricably linked. 8 Finally, this Thesis briefly suggests alternatives to traditional historic preservation zoning that could deliver similar preservationist results while protecting residents and property owners from the potential downsides of zoning based approaches.
8 As used in this Thesis, the term “urban renewal” refers specifically to the renewal programs of the mid twentieth century characterized by the condemnation and demolition of properties later redeveloped through public-private partnerships. See infra notes 14-26 and accompanying text. Such programs were upheld by the United States Supreme Court in Berman v. This Thesis is mostly concerned with the legal relationship between historic preservation and urban renewal at the local level.
That is, the primary topic discussed is the concept of the police power and general welfare as used to justify both local urban renewal programs and local historic zoning ordinances. BACKGROUND AND LITERATURE REVIEW Urban renewal and historic preservation programs are frequently considered to be polar opposites.9 One seeks to raze and rebuild while the other seeks to preserve. The traditional narrative holds that preservation movements gained traction and support as a result of “heavy- handed” urban renewal programs.10 While the historic preservation movement may have gained much ground following the implementation, and often failure, of mid-century urban renewal efforts, the traditional narrative for most parts fails to recognize the overlapping legal similarities between the programs and the fact that private historic preservation efforts began in the United States decades before the implementation of the urban renewal programs. Direct comparative analyses between the two programs, are few; however, work has been undertaken to demonstrate that the traditional narrative cannot explain the whole story.
For example, Professor Ryberg has argued that historic preservation was but one tool used by planners undertaking urban renewal.11 Her research has showed that planners in Philadelphia were faced with market constraints and so had to carefully choose when to tear down and when 9 “Traditional histories on mid-Twentieth Century urban renewal paint a relatively black- and-white picture One of the most powerful and entrenched narratives about the era is that demolition prevailed over preservation. Emanating out of this belief, many scholars and practitioners argue that the modern preservation profession developed in direct response to the destructive policies and practices of midcentury city planning.” Ryberg, supra note 6, at 193. 10 Eugenie Ladner Birch & Douglad Roby, The Planner and the Preservationist: An Uneasy Alliance, 50 J. Birch and Roby do note that there were successful collaborations between urban renewal and preservation, for example in Philadelphia, but that they “remained a minor part of the total project costs of the Philadelphia [renewal] program.
11 See Ryberg, supra note 6.12 Although their preservation of structures was not based on a sense of historic value, they consciously used historic preservation as a tool for urban renewal.