Aesthetics for the Public Good: The Fifth Amendment’s Takings Clause and Development Restriction Policies

Introduction

As stated by the Takings Clause of the Fifth Amendment, it is not permissible that “private property be taken for public use, without just compensation” [1], [2]. The Fourteenth Amendment extends these rights from the federal government to the states, establishing that it is likewise impermissible for “any State to deprive any person of life, liberty, or property, without due process of law” [3]. The Takings Clause specifies that one whose property is taken by the government for public use is entitled to just compensation, but it fails to specify further details regarding its implementation or capacities [4], [5]. Chief among concerns of policymakers and property owners alike, the Takings Clause also fails to specify how to determine whether an imposition by the government on one’s private property might constitute a compensable taking.

In Penn Central Transportation Company v. City of New York and Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency, arguments for the unconstitutionality of policies restricting development by the Fifth and Fourteenth Amendments were made [6], [7]. In each case, it was found that no taking was committed by the government in imposing these restrictions. These cases feature the creation and implementation of policy evaluation criteria, which would be situationally applied to find that legitimate public interest to preserve a distinct aesthetic outweighed the utility of economic development in cases deemed worthy by legislation [8].

Penn Central Transportation Company v. City of New York

In 1978, the Court of Appeals of New York ruled on a case in which the Penn Central Transportation Company appealed a decision by New York City to restrict development atop a site which had been designated a “landmark” [9]. This case, Penn Central Transportation Company v. City of New York, challenged whether the city’s restrictions on development atop Penn Central’s property, Grand Central Terminal, constituted a compensable taking as guaranteed by the Fifth and Fourteenth Amendments.

The Grand Central Terminal was designated a landmark by the New York City Landmarks Preservation Committee on August 2, 1967 [10]. This action followed the adoption of the Landmarks Preservation Law in 1965, also known as the “Landmarks Law”. The Landmarks Law sought to foster “civic pride in the beauty and noble accomplishments of the past” through the protection of important cultural and historical landmarks in the city [11]. This law would require that the owner of a landmark keep the building’s exterior in “good repair,” and alterations to their exterior must be approved by the Landmarks Preservation Commission. The law’s creation and adoption were based upon widespread agreement among the city’s residents and leaders that implementing such a program would yield greater economic benefits to New York than the development it would restrict [12]. A 1968 ordinance gave owners of landmark sites opportunities for transferring development rights to nearby parcels, thus mitigating damages to property owners caused by the Landmarks Law [13].

In January 1968, Penn Central entered into a 50-year lease with UGP Properties, Inc. Under the terms of the lease, UGP was to construct a large office building above the Grand Central Terminal [14]. UGP was to pay a substantial lease fee to Penn Central annually during and after construction of the building. Two building plans, one being a 55-story office building to be built atop the terminal, and another 53-story building which required significant alterations to the building’s facades for construction atop the terminal, were submitted to the Landmarks Preservation Commission. In September 1968, the Commission denied a certificate of no exterior effect [15]. Appellants applied for certificates of appropriateness for the two proposed plans, which resulted in four days of hearings with over 80 witnesses; these applications were also denied.

Penn Central did not pursue a judicial review of these denied certificate applications, nor did they attempt to develop an alternative to the proposed building plans which might have been deemed a more suitable alteration to the Grand Central Terminal. Instead, they filed suit in the New York Supreme Court. The appellants asserted that the city had taken their property with neither just compensation nor due process, thus violating rights guaranteed to them by the Fifth and Fourteenth Amendments.

In considering the appellants’ assertion that they had been denied due process, the Court considered several conditions. Due process would not be violated if use of property as it had been before the government’s imposition was still permitted; the appellants had failed to prove that they were unable to earn a reasonable return on their investment in a property as-is; if the property in question was unable to make a reasonable return on investment, the appellants’ profits from nearby holdings could be partially attributed to a property; and if the transferrable nature of lost development rights above a property provided just compensation for the appellants’ loss of said development rights. After an ad hoc evaluation of each condition, the Court ruled that Penn Central was not denied due process as prohibited by the Fourteenth Amendment. The lack of interference with existing business operations and viability of continued return on real estate investment led them to conclude that due process had not been violated. The Court also made a pertinent assertion that Penn Central was provided with viable alternatives for earning the financial returns projected from their proposed development at the Grand Central Terminal. These included creating a different design to build atop the terminal or appealing the commission’s decision, but Penn Central did not pursue these alternatives.

In considering the appellants’ assertion that the city had committed a compensable taking without just compensation in violation of the Fifth Amendment, the Court considered several other conditions. First, not all government actions that restrict economic values constitute a taking. As such, an understanding of the circumstances around an alleged taking is required to determine whether a compensable taking has occurred. Diminution in property value resulting from zoning laws cannot, on its own, establish a taking. A zoning law which exclusively restricts modification of existing property features does not restrict airspace above the property, nor does it restrict gainful development of other portions of the property. If a zoning law does not interfere with continued operation or revenue gains from a property, and allows for development rights to be transferred to other properties, then such a law reasonably mitigates financial burdens imposed upon a property owner by said zoning law. The New York Court of Appeals ruled that the city’s application of its Landmarks Law did not constitute a compensable taking. As such, the Court held that the application of the Landmarks Law to the Penn Central Transportation Company’s Grand Central Terminal did not constitute an unjust taking of the company’s property as prohibited by the Fifth Amendment.

This ruling established the precedent that laws restricting the alteration of existing property do not, on their own, constitute a compensable taking of property. If continued operation and monetary return on investment following development restrictions on a property are unaffected by said restrictions, it is permissible for a government to impose these restrictions without compensation afforded to property owners. Two years after this ruling, in 1980, the state of New York passed its State Historic Preservation Act and established the State Register of Historic Places.

Penn Central v. City of New York set forth a procedure which established a precedent for ad hoc policy evaluation, demonstrating that unique circumstances around a policy’s enactment ought to be evaluated in comparable cases [16]. Seawall Associates v. City of New York used a similar approach to Penn Central to determine that the city had gone beyond its legal limits to restrict development of single-room occupancy properties [17]. Society for Ethical Culture v. Spatt applied the Penn Central v. City of New York method to determine that a religious building’s designation under the Landmarks Law was valid so long as the free exercise of religion was not impeded, thus reversing a previous ruling [18].

Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency

In January 2002, the Supreme Court heard arguments on the case of Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency [19]. The arguments presented by the Tahoe-Sierra Preservation Council, representing roughly 2,000 landowners near Lake Tahoe in Nevada and California, asserted that a compensable taking had been committed by the bi-state Tahoe Regional Planning Agency, and that they had not been justly compensated for such a taking. The alleged taking came as a result of temporary moratoria restricting property development in the agency’s jurisdiction was temporarily halted [20].

Lake Tahoe, nestled in the Sierra Nevada Mountains along the border between Nevada and California, is known worldwide as a major tourist destination due to its natural beauty. In addition to the alpine scenery surrounding the lake, the water in Lake Tahoe has been noted for being extraordinarily clear and blue [21], [22]. However, land development beginning in roughly 1960 throughout the Lake Tahoe Basin had led to deterioration of the picturesque water noted in earlier accounts of the lake. In response to elevated levels of algae and pollution in the lake, Nevada and California gained approval from Congress and the President to enact the 1980 Tahoe Regional Planning Compact [23].

The Compact required the Tahoe Regional Planning Agency (TRPA) to adopt new standards for air quality, water quality, soil conservation, vegetation preservation, and noise. The Compact prohibited the development of new subdivisions, condominiums, and apartment buildings; all cities and counties within the Lake Tahoe Basin were also subject to restricted quantities of building permits from 1981 to 1983 [24]. The first moratorium, Ordinance 81-5, would become effective in the summer of 1981, but the region would fail to meet the thresholds required by the Compact. An additional resolution in 1983, Resolution 83-21, would impose another 8-month moratorium on all construction on sensitive lands in the Basin [25]. In 1984 and 1987, again, construction on sensitive lands in the Basin would be temporarily prohibited [26], [27].

Following the adoption of the 1984 plan, petitioners filed parallel actions in federal courts in Nevada and California. These would be consolidated and tried in Nevada. The group of petitioners was comprised of the Tahoe-Sierra Preservation Council, representing roughly 2,000 landowners and more than 400 individual owners of vacant lots throughout the impacted region. The individual owners in the class had purchased properties prior to the effective date of the 1980 Compact. Following litigation spanning multiple decades, the Supreme Court heard an appeal of the case following hearings by the District Court and, subsequently, the Court of Appeals. At each level, the precedent set by Penn Central was referenced for its circumstantial and adaptable approach to evaluating whether a governmental action constituted a taking.

The District Court, imitating Penn Central’s approach, evaluated the intent and circumstances surrounding the TRPA’s temporary moratoria [28]. According to Penn Central’s precedent, a combination of factors must be considered, namely the interference imposed by regulations on “reasonable investment-backed expectations” [29]. The Court concluded that land purchasers “did not have reasonable, investment-backed expectations that they would be able to build single-family homes on their land within the six-year period involved in this lawsuit” given that the “average holding time of a lot in the Tahoe area between lot purchase and home construction [was] twenty-five years.” As such, it was illogical to conclude that the average individual represented by the Council had intentions and expectations of achieving the development they claimed would have taken place upon their property in the relatively short time where moratoria restricted development in the basin. The District Court also considered Lucas v. South Carolina Coastal Council, concluding that a taking was committed under the categorical rule used in the case [30]. Lucas entailed a legal battle over the construction of a luxurious beach home near Charleston. The construction was halted by coastal development regulations, and the Supreme Court deemed South Carolina’s actions unconstitutional.

However, an appeal by the TRPA to the Ninth Circuit Court challenged whether Lucas’ rule applied [31]. The Ninth Circuit Court would rule that Lucas applied only in the event that a regulation permanently denies all economically productive use of a tract of land. Instead, the moratoria in Penn Central denied development only temporarily. The Court also ruled that another case that was cited, First English Evangelical Lutheran Church v. Los Angeles County, only concerned whether monetary compensation was a proper remedy for a taking, and that it did not concern whether or not a taking had occurred [32]. The Court ruled that petitioners could not make a claim of a taking under the Lucas approach. Instead, Penn Central’s ad hoc approach to analyzing whether a taking had occurred was the proper framework for such a case.

The Supreme Court heard the case after a further appeal by the petitioners and held that the “moratoria ordered by TRPA are not per se takings of property requiring compensation under the Takings Clause.” Per se takings involve a physical taking of property by the government, and just compensation is required when the government executes such a physical intrusion onto private property [33]. In an evaluation of the case in the style of Penn Central, similar to that of Palazzolo v. Rhode Island, the Court found that a permanent deprivation of economic use had not occurred [34]. The Court found that “‘fairness and justice’ will not be better served by a categorical rule that any deprivation of economic use, no matter how brief, constitutes a compensable taking.” Essentially, it was determined that the moratoria were justified and fair due to their distribution of burden on many parties and the temporary nature of the moratoria. Moreover, the Supreme Court wished to avoid the precedent of any temporary development restrictions being ruled a compensable taking, therefore requiring substantial financial resources to be distributed to any affected parties in the future. To set such a precedent would incentivize policymakers to avoid such development restrictions entirely, and this would likely lead to a lack of regulations advocating for the public interest in development restrictions. This could result in negative and unexpected consequences as motivated parties would have a legal precedent to halt any development limitation policies. Negative externalities could proliferate as litigious actors could easily oppose and halt initiatives serving the public good, such as preventing conservation easements [35].

The conclusion in Tahoe-Sierra applied rules and criteria developed to ascertain whether a taking had been committed in Penn Central. The Tahoe-Sierra case purposely avoided establishing a new precedent for hearing similar cases in the future, unlike the preceding Penn Central or Kelo v. New London [36]. The latter case set a controversial precedent in establishing that the government could take property and sell it to private developers while still serving the “public good,” opposing many contemporary ideas about usage under eminent domain. Tahoe-Sierra continues to be cited by analyses of modern legal and political issues, such as the government’s response to the COVID-19 pandemic, but its strategic avoidance of setting a radical new precedent has lent itself to fewer citations in case law than many contemporary cases [37].

Combined Analysis

Penn Central finds that the government can restrict economic development in order to maintain aesthetic value integral to a locale’s major attraction. Additionally, it determines that legislature which deems such aesthetic appearance more valuable than economic development was sufficient for legal permissibility of economic development restrictions. The case deals with preserving Grand Central Terminal’s aesthetic beauty, attracting visitors and tourists due to its ornate craftsmanship and distinctive architecture. Legislation enacted by New York City determined that the appearance and attractive qualities of Grand Central Terminal outweighed the value of economic development atop the structure. The Court upheld the constitutionality of the legislation due to the specific circumstances of the legal dispute, and their decision was made strategically so as to ensure that the result would provide beneficial guidance on deciding future cases of a similar nature.

Similarly, Tahoe-Sierra finds that the government can restrict economic development in order to maintain aesthetic value integral to a locale’s major attraction. Additionally, it determines that moratoria deeming such aesthetic appearance more valuable than economic development served a purpose sufficient for legal permissibility of economic development restrictions. The case deals with the preservation of aesthetic beauty, attracting visitors and tourists due to its uniquely beautiful water and grandiose alpine surroundings. Temporary development moratoria enacted in the Lake Tahoe Basin were based on a determination that the appearance and attractive qualities of Lake Tahoe outweighed the value of economic development atop the land surrounding the lake. Like in Penn Central, the Court upheld the constitutionality of the legislation, and their decision was made strategically so as to ensure that the result would avoid potential harm caused by the precedent of overcompensation for temporary restrictions.

Penn Central sought to maintain an aesthetic of man-made grandeur, and Tahoe-Sierra sought to maintain a natural landscape which purposely lacks man-made objects. Despite the opposite settings of each case, their respective rulings jointly find that preservation of either man-made or natural beauty can be of such great value that they are worth halting economic development which might diminish them. Moreover, the Court defers to the decision-making capacity of legislators and policymakers in each case, saying of the Landmarks Law in Penn Central it was “enacted on the basis of legislative judgment that the preservation of landmarks benefits the citizenry both economically and by improving the overall quality of life.” This sentiment is mirrored by the Court in Tahoe-Sierra, contending that “such an important change in the law should be the product of legislative rulemaking rather than adjudication.”

By analyzing both cases in parallel, we can ascertain a broad series of specific circumstances and attitudes that could be useful in determining the constitutionality of uncompensated protection of aesthetic beauty through economic restrictions.

1. If economic development restrictions are temporary in nature, do not conflict with pre existing economic functions, and do not actively alter the behavior of the average property owner affected, they are likely not to constitute a compensable taking.
2. If aesthetic appearance benefits the public by generating economic, cultural, and tourism value, it is likely that economic development restrictions which protect this aesthetic value serve the public interest and are thus within the government’s capacity to enact.
3. When a legislature determines that the aforementioned aesthetic appearance is worthy of enacting broad economic development restrictions, the Court is often deferential towards this policy judgment.
4. The unique economic and cultural circumstances regarding an alleged unconstitutional taking are the most important factors in determining the constitutionality of the policy action. This may involve evaluating the diminution of value or alteration of intended use.

It is noteworthy, however, that these rules are made to apply in cases where aesthetic appearance, not environmental conservation or some other end, are the basis for legal action. This list of conditions may not be exhaustive. Additionally, the subjective and circumstantial nature of evaluating an alleged unconstitutional taking makes it impossible to create a perfect test of factors used to determine the constitutionality of economic development policy. Inverse condemnation, a remedy for property owners from whom property is taken without substantial government interests, or wherein economic value from property is deprived, may be granted in opposition to the conditions above should the individual members of a particular court disagree with the methodology used in previous cases [37], [38].

It is likely that cases of this ilk will be seen in the coming years. In exclusive suburban areas of the United States facing skyrocketing housing costs and mounting political pressure, such as Marin County, CA; Oakland County, MI; and Fairfax County, VA, construction restrictions have been enacted to preserve exclusivity while often citing aesthetic appearance as a justification for such actions [39], [40], [41]. Minimum lot sizes, for example, are often implemented with the express purpose of restricting housing supply [42]. It has long been known that “income clustering,” wherein housing restrictions group people of similar incomes near one another, originated from strict rules on housing development [43]. Directly resulting from these restrictions, socioeconomically disadvantaged individuals have often been priced out of purchasing or renting homes in these counties and others like them.

However, the tides of progressive political thought through the college educated upper-middle class and beyond have brought such restrictions under fire. The state of Washington, for example, recently eased its strict housing construction restrictions [44]. Suffering from rapidly increasing housing costs throughout the state, Washington deemed that construction restrictions had needlessly prevented construction of housing for low-and-middle-earning individuals which could provide a higher quality of life to the state’s residents. Washington has long held its natural beauty and cleanliness in high regard, but the value of equitable housing policies for its residents had begun to outweigh the relative value of protecting the vistas in and around their metropolitan areas. Of course, this leads to the conclusion that aesthetic beauty may be protected by restrictions put forth by the legislature, but restrictions may be loosened at the expense of aesthetic beauty, according to the needs of a constituency. Minneapolis, Minnesota eliminated single-family zoning restrictions, but saw success hampered by other housing restrictions even as new apartment buildings sprung up throughout the city [45]. As such, it is most accurate to view aesthetic beauty as an economic good itself, with its own level of value subject to the needs and desires of stakeholders.

Given that aesthetic appearance can be thought of as an economic good, implying that it has some sort of quantifiable value, it is presumable that further legal challenges could arise as prospective builders and property managers will challenge economic restrictions on their development projects similar to those of Penn Central or Tahoe-Sierra. If the value of economic development to a community or region outweighs the costs of such activity, including the loss of preexisting aesthetic beauty, we can expect that stakeholders may take legal action to loosen restrictions. In these situations, the reasonableness of investment-backed expectations and the validity of building restrictions as an item in the public’s interest will come into question. Though these hypothetical cases may often deal with neither breathtaking natural beauty nor world-renowned architecture, the conditions and principles ascertained from rulings in these cases should serve as a very broad guide for legal challenges moving forward.

Conclusion

Penn Central Transportation Company v. City of New York and Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency set precedents and methodologies for evaluating economic development restrictions for the purpose of preserving valuable aesthetic appearances. The methods created and implemented in these cases will likely continue to provide a road map for evaluating a broad swath of ever-evolving property law rulings, policies, and legislation through the lens of the Fifth and Fourteenth Amendments [46]. Cases such as Tyler v. Hennepin County continue to build upon the methods set forth in Penn Central and Tahoe-Sierra [47]. Further evolution of legal thought around economic development and inverse condemnation ought to be guided by precedent set by Penn Central and Tahoe-Sierra, especially regarding sociopolitical issues such as the ongoing US housing crisis [48]. Though not limited to this issue, it is possible that these two cases hold the key to unlocking a proper legal basis upon which more equitable housing policies can be enacted throughout the United States in the near future.

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