Penn Central in Retrospect: The Past and Future of Historic Preservation Regulation

• Author: J. Peter Byrne
• Position: Baumgartner Chair in Real Property Law, Georgetown University Law Center
• Pages: 399-442

Penn Central in Retrospect: The Past and Future of

Historic Preservation Regulation

J. PETER BYRNE*

TABLE OF CONTENTS

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 399

I. The Saga of Penn Central. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 402

A. “No Ordinary Landmark”. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 402

B. Making No New Law. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 413

II. How Penn Central Became a Legal Landmark . . . . . . . . . . . . . . . . . . . . 422

A. The Constitutional Scope For Historic Preservation . . . . . . . . . . . . 422

B. Penn Central: A Creation of Its Time . . . . . . . . . . . . . . . . . . . . . . 428

III. Land Use Law for a New Urban Era . . . . . . . . . . . . . . . . . . . . . . . . . . . 435

A. The Post-Modern City . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 435

B. Adapting Preservation Law For Today’s Cities . . . . . . . . . . . . . . . 440

Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 442

INTRODUCTION

The U.S. Supreme Court’s 1978 decision in Penn Central Transportation Co.

v. City of New York

1

is one of the best known cases in the Property Law canon.

The Court there held that the refusal of the New York City Landmarks

Preservation Commission to permit the owner to erect a 50-storey tower on top of

Grand Central Terminal did not effect a taking of private property requiring the

payment of compensation. The decision now is more than forty years old. Taught

since then in most first-year Property classes,

2

Penn Central endures as the foun-

dation of the modern application of the Takings Clause of the Fifth Amendment to

* Baumgartner Chair in Real Property Law, Georgetown University Law Center. © 2021, J. Peter

Byrne. Thanks for helpful comments go to Sara Bronin, Bill Buzbee, Mike Seidman, and participants in

a virtual faculty workshop at Georgetown Law. Thanks also to Luke Stegman and Aileen Kim for

research help. This paper began as the keynote address at a symposium at the University of Virginia

School of Law on Historic Preservation in the 21st Century in November 2018.

1. 438 U.S. 104 (1978).

2. See, e.g., JESSE DUKEMINIER ET AL., PROPERTY 1050 (9th ed. 2018); THOMAS W. MERRILL &

HENRY E. SMITH, PROPERTY: PRINCIPLES AND POLICIES 1237 (3d ed. 2017); JOSEPH W. SINGER ET AL.,

PROPERTY LAW: RULES, POLICIES, AND PRACTICES 1192 (7th ed. 2017).

399

public regulation of land use.

3

Of course, the academic literature on the rationale

for and the propriety of the regulatory takings doctrine is massive; scholars have

sifted its doctrinal innovations and shortcomings.

4

Not surprisingly, academic

commentators have found Justice Brennan’s opinion for the Court lacking in doc-

trinal clarity and theoretic depth.

5

Nonetheless, the Court has returned to Penn

Central repeatedly because it reflects the enduring center of the Court’s conflict-

ing views about imposing constitutional limits on the regulation of property use.

6

The context of the litigation as it came to the Supreme Court helps explain that

paradox: it was written to hold a diverse, tenuous majority of the Court.

7

But all this attention still understates the continuing significance of the deci-

sion. Penn Central is the most important decision on historic preservation law

ever rendered in the United States.

8

By validating stringent preservation restric-

tions on an addition to an individual landmark in the heart of the most voracious

real estate market in the nation, the decision opened the way for a massive growth

in the scope and intensity of municipal historic preservation law. Preservation in

turn has shaped leading U.S. cities, as they have taken on new identities in a post-

industrial society. The case is at least as important for its liberation of historic

preservation law and the effect of that on U.S. cities, as for its statement of the

regulatory takings doctrine. A reconsideration of Penn Central both highlights

the growth of historic preservation regulation in urban land use law and clarifies

the acceptable interpretive scope of the takings clause.

3. James E. Krier & Stewart E. Sterk, An Empirical Study of Implicit Takings, 58 WM. & MARY L.

REV. 35, 52 (identifying Penn Central as “the rst of the modern takings cases, and the rst to make clear

that regulatory measures could result in implicit takings” as opposed to explicit takings of property

through eminent domain).

4. See, e.g., Andrea L. Peterson, The Takings Clause: In Search of Underlying Principles Part I: A

Critique of Current Takings Clause Doctrine, 77 CALIF. L. REV. 1299 (1989); Gregory S. Alexander,

Takings, Narratives, and Power, 88 COLUM. L. REV. 1752, 1772–73 (1988); Carol M. Rose, Mahon

Reconstructed: Why the Takings Clause is still a Muddle, 57 SO. CALIF. L. REV. 561, 562 n.6 (1984).

5. See, e.g., John D. Echeverria, Is the Penn Central Three-Factor Test Ready for History’s Dustbin?,

52 LAND USE L. & ZONING DIG. 3, 5–6 (2000).

6. See Murr v. Wisconsin, 137 S. Ct. 1933, 1944 (2017); Lingle v. Chevron USA, Inc., 544 U.S. 528,

538–39 (2005); Tahoe-Sierra Preservation Council v. Tahoe Regional Planning Agency, 535 U.S. 302,

331 (2002). Justice O’Connor described Penn Central as “the judicial ‘polestar’ of regulatory takings

law.” Palazzolo v. Rhode Island, 533 U.S. 606, 633 (2001) (O’’Connor, J., concurring).

7. See infra at 22–24.

8. The nearest competitor surely must be United States v. Gettysburg Electric Railway Co., 160 U.S.

668 (1896), where the Court held that the federal condemnation of land to preserve and protect the

Gettysburg battlefield constituted a “public use” within the meaning of the Fifth Amendment. See also

Roe v. Kansas ex rel Smith, 278 U.S. 191 (1928) (“[T]here is no basis for doubting the power of the state

to condemn places of unusual historical interest for the use and benefit of the public.”). More broadly,

Gettysburg Railway established the constitutional legitimacy of the federal government acting to

conserve cultural resources in order to foster virtuous civic attitudes in the public. See SANFORD

LEVINSON, WRITTEN IN STONE: PUBLIC MONUMENTS IN CHANGING SOCIETIES 76–77 (Duke Univ. Press

rev. ed. 2018); J. Peter Byrne, Hallowed Ground: The Gettysburg Battlefield in Historic Preservation

Law, 22 TUL. ENVT’L. L.J. 203, 234–35 (2009).

400 THE GEORGETOWN ENV’T LAW REVIEW [Vol. 33:399

Penn Central was decided at a nadir in urban prospects, as deindustrialization

and White flight had brought many U.S. cities to points of chaos and insolvency.

But at the same time, a new urban economy based on technology, media, and

knowledge had begun to grow. For industries based on sophisticated services and

creativity, recruiting talented and educated workers became more critical than

legally protected spaces for industrial production and shipping. Land use laws

based on separating competing uses of land became less important, while foster-

ing an urban environment with cultural and aesthetic appeal to highly mobile and

educated workers became paramount. Urban renewal and highway construction

were largely abandoned; cities used planning and regulation to encourage mixed

use, walkable, culturally dense neighborhoods.

9

In this context, historic preserva-

tion offered a legal means to encourage a lively urban environment.

This paper aims to explain how the Penn Central decision marks a crucial ful-

crum in the evolution of land use law. The Court faced a new form of land use regu-

lation—the historic preservation of a privately-owned landmark building in the

urban center. The owners framed their challenge under the still inchoate regulatory

takings doctrine, a decade before an increasingly conservative court sought to refa-

shion it as a tool to restrain innovations in environmental law. The paper argues that

what was intended as a modest opinion holding together a skittish majority to sustain

the protection of a beloved train station by amalgamating landmark regulation to the

traditional deference afforded zoning laws, resulted in a broad constitutional permis-

sion for historic preservation and other emerging land use regulatory tools.

To make this case, it will first present a narrative account of the litigation, illu-

minated by historic context and examination of the internal deliberation of the

justices as shown in the papers of Justices Lewis Powell and Harry Blackmun.

10

The paper will then discuss the elements that combined to produce a decision

apparently modest but of broad consequence. It then argues that Penn Central

created the constitutional foundation for a new era in land use law, characterized

by new forms of historic preservation and, more broadly, by urbanistic attention

to physical and cultural context rather than by separation of uses. The paper also

recognizes, however, that the continuing evolution of cities present issues and

challenges for historic preservation law not anticipated in 1978: economic in-

equality, persistent racial segregation, and climate change suggest that historic

preservation law must evolve to adapt to present urban realities.

9. See J. Peter Byrne, The Rebirth of the Neighborhood, 40 FORDHAM URB. L.J. 1595, 1601–03

(2013).

10. The Lewis F. Powell, Jr., Papers are held at the Law Library of The School of Law at Washington

and Lee University. They are now available for download. Lewis F. Powell Jr., “Penn Central

Transportation Company v. New York City” (Dec. 2, 1977). (https://scholarlycommons.law.wlu.edu/

casefiles/595). The Powell papers regarding Penn Central will be cited hereinafter as Powell Papers.

Harry A. Blackmun, The Harry A. Blackmun Papers (unpublished manuscript) (The Harry A. Blackmun

Papers are held at the Library of Congress and must be viewed in person) (https://www.loc.gov/rr/mss/

blackmun/). Blackmun’s paper were less illuminating than Powell’s.

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