Amicus Brief — Penn Central Transp. Co. v. New York City

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_’ IN THE

Supreme Cout of the United States

Octoser Term, 1977

No. 77-444

Prenn CentraL Transportation Co., et al.,

Appellants,

Tue City or New York, et al.,

Appellees.

ON APPEAL FROM THE COURT OF APPEALS

OF THE STATE OF NEW YORE

MOTION FOR LEAVE TO FILE AND BRIEF OF

THE NATIONAL TRUST FOR HISTORIC PRESERVATION,

CITY OF NEW ORLEANS, CITY OF BOSTON, CITY OF SAN

ANTONIO, NATIONAL CONFERENCE OF STATE HISTORIC

PRESERVATION OFFICERS, DON’T TEAR IT DOWN,

NATIONAL INSTITUTE OF MUNICIPAL LAW OFFICERS,

NATIONAL LEAGUE OF CITIES AND SIERRA CLUB

AS AMICI CURIAE IN SUPPORT OF APPELLEES

Davin BonDERMAN

Rosert A. GARRETT

ArnoLtp & PorTER

1229 Nineteenth Street, N.W.

- Washington, D.C. 20036

Attorneys for Amici Curiae

Of Counsel:

Frank B. GiLBert

SrepHen N. Dennis

Grecory E. ANDREWS

740-48 Jackson Place, N.W.

Washington, D.C. 20006

March, 1978

IN THE

Supreme Court of the United States

OcroserR Term, 1977

No. 77-444

Penn CentraL TRANSPORTATION Co., et al.,

Appellants,

THe City or New York, e¢ al.,

Appellees.

ON APPEAL FROM THE COURT OF APPEALS

OF THE STATE OF NEW YORK

MOTION FOR LEAVE TO FILE BRIEF ON BEHALF OF

THE NATIONAL TRUST FOR HISTORIC PRESERVATION,

CITY OF NEW ORLEANS, CITY OF BOSTON, CITY OF SAN

ANTONIO, NATIONAL CONFERENCE OF STATE HISTORIC

PRESERVATION OFFICERS, DON’T TEAR IT DOWN,

NATIONAL INSTITUTE OF MUNICIPAL LAW OFFICERS,

NATIONAL LEAGUE OF CITIES AND SIERRA CLUB

AS AMICI CURIAE IN SUPPORT OF APPELLEES

Pursuant to Supreme Court Rule 42(3), the National

Trust for Historie Preservation, City of New Orleans, City

of Boston, City of San Antonio, National Conference of

State Historic Preservation Officers, Don’t Tear It Down,

National Institute of Municipal Law Officers, National

League of Cities and Sierra Club hereby respectfully move

for leave to file the attached brief as amici curiae in sup-

port of appellees. Counsel for appellees have consented to

the filing of this brief. Counsel for appellants have not

consented.

The interests of Amici are as follows:

1. The National Trust for Historic Preservation is the

leading national organization in the field of historic preser-

vation. It was chartered by Congress in 1949 as a “chari-

table, educational, and nonprofit” corporation “to facilitate

public participation in the preservation of sites, buildings,

and objects of national significance or interest,” and to

preserve and administer historical properties significant in

American history and culture for the public benefit. 16

U.S.C. § 468. The National Trust has more than 121,000

contributing members, including approximately 1,500 mem-

ber organizations involved in local and regional historic

preservation activities. In addition to owning and main-

taining historic properties, the National Trust furthers

historic preservation through extensive advisory and edu-

cational services. It has worked closely with many of the

500 municipalities which have enacted landmark and his-

torie district ordinances.

2-4. Cities of New Orleans, Boston and San Antonio.

Numerous individual landmarks and several districts of his-

toric and architectural importance are located within these

cities. To protect its distinctive character, each city has in-

stituted historic preservation programs comparable to that

of the City of New York. New Orleans, for example, has

had a municipal historie preservation program since 1936,

when the Vieux Carre Commission was created to protect

the French Quarter. And in 1975 New Orleans established

the Historic District/Landmarks Commission, with the

power to designate landmarks and historic districts in the

remainder of the City. The Massachusetts Legislature has

declared two areas within Boston, Beacon Hill and the

Back Bay, to be historic districts, and has recently estab-

lished the Boston Landmarks Commission with the power

to designate landmarks and landmark districts. In 1967

the City of San Antonio enacted an ordinance providing

for the designation of historic property and the creation of

a Board of Review for historic districts and landmarks.

And in 1974 it established an Office for Historic Preserva-

tion that helps ensure that city programs and expenditures

aid historic preservation activities.

5. National Conference of State Historic Preservation

Officers is an association which facilitates the administra-

tion of State and Federal programs for the preservation

of America’s historic, architectural and cultural heritage.

The National Conference membership consists of the offi-

cially designated State Historic Preservation Officer in

each of the fifty states, the District of Columbia and five

territories. Among the responsibilities of these officers

are: the compilation of statewide surveys of historic re-

sourees including districts, sites, buildings, structures and

objects significant in American history, architecture,

archeology and culture; nominations of inventoried prop-

erties to the National Register of Historic Places; and the

administration of the National Historic Preservation Act

grants-in-aid program which makes Federal funds avail-

able to private groups, individuals and local governments

for the preservation, stabilization, rehabilitation and res-

toration of buildings, sites, structures and objects.

6. Don’t Tear It Down is a non-profit membership

organization in the City of Washington dedicated to pre-

serving those features of the built environment which have

made the capital one of the most beautiful urban areas in

the world and a pleasant city in which to live and work.

Don’t Tear It Down has played a central role in preserving

and revitalizing the Old Post Office, the Willard Hotel and

other well-known Washington landmarks, and in encour-

aging continued use and adaptive reuse of older buildings

and structures.

7. National Institute of Municipal Law Officers

(NIMLO), a non-profit organization established in 1935, is

composed of and funded by over 1,400 municipal corpora-

tions and government units in all of the fifty states, the Dis-

trict of Columbia and Puerto Rico. Member municipalities

participate in the organization through their approximately

6,000 chief legal officers, who have authored or enforced

many of the 500 landmark and historic district ordinances

that have been enacted nationwide. As Americans have

developed an increasing awareness and appreciation of the

historic and architectural heritage that surrounds them,

they have turned for assistance in preserving these historic

landmarks and districts to municipal government, the entity

with the greatest stake in maintaining the quality of local

life.

8. National League of Cities (NLC) represents more

than 700 municipalities directly and over 15,000 cities in-

directly through state municipal leagues. Known until 1964

as the American Municipal Association, the League was

founded in 1924 by and for reform-minded state municipal

leagues. The 27 United States cities with populations

greater than 500,000 are all NLC direct members. In recent

years considerable emphasis has been placed on revitaliza-

tion of municipalities that have experienced deterioration

and blight. While many tools are needed to accomplish this

goal, one of the most important has been historic preserva-

tion. The League has been especially concerned with ensur-

ing the right of municipalities to protect the well-being of

their citizens through historic preservation.

9. Sierra Club, a non-profit corporation, is an interna-

tional environmental and conservation organization with

approximately 180,000 members in the United States. A

)

purpose of the Sierra Club is “To enhance and protect by

all lawful means the natural resources and human environ-

ment of the United States and the earth in general.” This

includes not only the natural environment, but the urban

environment as well. The Sierra Club has recently reaf-

firmed its commitment to protecting for present and future

generations a safe, healthy and congenial urban environ-

ment in which to live. Historic landmarks are an integral

and inseparable part of this urban environment.

Amici have examined the issues presented in this case

from a national perspective. They believe that historic

preservation is vital to the welfare of this Nation and that

the decision in this case will have a significant impact on

the future of historic preservation generally and their pro-

grams specifically. Amici are particularly concerned be-

cause the briefs filed in this case have presupposed that

land use regulations for purposes of historic preservation

are different from, and less justifiable than, other land

use regulations, such as zoning; concentrating solely on

questions of compensation, they have therefore ignored the

traditional tests which this Court has consistently applied

in evaluating land use restrictions. Accordingly, Amici re-

quest that this Court grant leave to file the attached brief.

Respectfully submitted,

Davin BonpERMAN

Rosert A. GarrettT

Attorneys for Amici Curiae

Of Counsel:

Frank B. GrtBert

STEPHEN N. Dennis

Grecory EK. ANDREWS

TABLE OF CONTENTS

PAGE

I TT ceccstensntscnnnscibessiniinuntunintasuniiuemavaniomeipuicians 1

ID IIIS cerniteriserceneccescencnsinaniomnitecnnnienniannnianetinasin 3

SESUIIINIIIEY nitdinisutsicinrceaheiainnseniehanininitnitanitiivictniniatamtninmiiieass 3

I GE ID accsditicenscisinpnsneciiceriennsiagneitevissnlciaiianiinie 7

ARGUMENT

I. Historic Preservation Is a Legitimate Use of

Se Fe UD siinsniscisciniscnitnctaensiaritiiciinniaiiaidandiiapeteney 13

A. The State Authorities’ Conclusion that His-

toric Preservation Promotes the General

Welfare Is Virtually Conclusive ...................... 14

B. The Decisions of this Court Make It Clear

that Historic Preservation Promotes the

I. CII « scicricercticcisiucicsstaisnidieeinsnmninninioniasei 19

II. Regulation of Individual Landmarks Is Not Dis-

I temncsnctiianininaneieprdinniinmiceeiens 23

III. There Has Been No Taking in This Case .............. 28

EE Ae Ma RT Re AE ee TE Roe om 35

TABLE OF AUTHORITIES

PAGE

CasEs:

Benenson vy. United States, 548 F.2d 939 (Ct. Cl

SUPT succinic acai aeeacclasida al 33, 34

Berman v. Parker, 348 U.S. 26 (1954) -..0..0........ 9, 10, 16, 20

Bohannan v. City of San Diego, 30 Cal. App. 3d 416,

ee Se SE. GD, UD. eeccnniiviiectieictennannnn 22

Candlestick Properties, Inc. v. San Francisco Bay

Conservation and Development Commission, 11 Cal.

App. 3d 557, 89 Cal. Rptr. 897 (1970) ........0............. 33

City of Eastlake v. Forest City Enterprises, Inc., 426

pe Ce ID ietcerntcsccienistnpcccpachigniiitiaiabitidchiaiatiohitianiiitietanniiante 29

City of New Orleans v. Dukes, 427 U.S. 297 (1976) ..9, 10, 19,

23, 25, 26, 27, 28

City of Santa Fe v. Gamble-Skogmo, Inc., 73 N.M. 410,

Be ne Be CR seccieciemcniituiiitiinbmainninien 22

City of St. Paul v. Chicago, St. Paul, Minneapolis and

Omaha Ry., 413 F.2d 762 (Sth Cir.), cert. denied,

Se Sees RD NE checetecnatasitartinetcpcesnniintieninnnteniiinadanss 33

Consolidated Rock Products Co. v. City of Los Angeles,

57 Cal. 2d 515, 20 Cal. Rptr. 638, 370 P.2d 342, ap-

peal dismissed, 371 U.S. 36 (1962) 2.2. eeteeeeeeeeeee 15

Construction Industry Association v. City of Peta-

luma, 522 F.2d 897 (9th Cir. 1975), cert. denied,

GS Te Gee CD citreinitienseeonicttateniccstieiencnetisiniinnininniinnnin 33

Dandridge v. Williams, 397 U.S. 471 (1970) -......0..2.... 24

Day-Brite Lighting, Inc. v. Missouri, 342 U.S. 421

ee sscsiaiiaiabiniioddoaicinihacisiiaialion 14

Figarsky v. Historie District Commission, 171 Conn.

oe Fe 8 8 ee 22, 33

PAGE

First Presbyterian Church y. City Council, 360 A.2d

257 (Pa. Commonwealth 1976) -.......2..0002...0.........--eeee 33

Fleming v. Rhodes, 331 U.S. 100 (1947) _000 15

Goldblatt v. Town of Hempstead, 369 U.S. 590 (1962) ..8, 11,

13, 16, 28, 29, 30

Gorieb v. Fox, 274 U.S. 603 (1927) -........... 12, 13, 15-16, 32, 33

Griggs v. Allegheny County, 369 U.S. 84 (1962) —.......... 31

HFH, Ltd. v. Superior Court, 15 Cal. 3d 508, 125 Cal.

ae SE BS Gh | 29

Hadacheck v. Sebastian, 239 U.S. 394 (1915) ....11, 26, 29, 30

Hudson County Water Co. v. McCarter, 209 U.S. 349

IPPEUIED , “sicetesbeetskactpeichpleihpiitehinatitapnsitidinnalinatuielabindabaies 11, 12, 29, 32, 34

Katzenbach v. Morgan, 384 U.S. 641 (1966) ........0000....... 26

Lafayette Park Baptist Church v. Scott, 553 S.W.2d

Be Ce A. TOD eivntcsscestcnictnes ai 22

License Cases, 46 U.S. (5 How.) 504 (1847) ..020.. 21

C. F. Lytle Co. v. Clark, 491 F.2d 834 (10th Cir. 1974) .. 29

Maher v. City of New Orleans, 516 F.2d 1051 (5th Cir.

1975), cert. denied, 426 U.S. 905 (1976) ....17, 18, 22, 29, 33

Manhattan Club v. Landmarks Preservation Commis-

sion, 51 Mise. 2d 556, 273 N.Y.S. 2d 848 (1966) ... 22

Moviematie Indus., Corp. v. Board of County Commis-

sioners, 349 So.2d 667 (Fla. App. Ct. 1977) ................ 33

Moore v. City of East Cleveland, 431 U.S. 494 (1977) .. 15

Morey v. Doud, 354 U.S. 457 (1957) 200. eee eeee ee 23

Mugler v. Kansas, 123 U.S. 623 (1887) ......0.0000002... 29

Munn v. Illinois, 94 U.S. 113 (1877) 00 14

i? ? Y

ee iv

PAGE

Opinion of the Justices to the Senate, 333 Mass. 773, 128

Se EE ITED iscchiincniesiadisicleescethlemnpiipidicenptensinetantietnnd 22

Opinion of the Justices to the Senate, 333 Mass. 783,

OPS niliaieentainients 22

Paris Adult Theatre I v. Slaton, 413 U.S. 49 (1973) .... 21

Pennsylvania Coal Co. v. Mahon, 260 U.S. 393 (1922) .. 34

Police Dep’t of Chicago v. Mosley, 408 U.S. 92 (1972) ..10, 23

Pope v. City of Atlanta, 418 F. Supp. 665 (N.D. Ga.

TESTED sdenichsicitestidsteindyniateesteaiiiintelbaiitadsdie bi lebaininialdaitinaemsanisupiiivicty 29

Powell v. Pennsylvania, 127 U.S. 678 (1888) -..020000.. 15

Queenside Hills Realty Co. v. Saxl, 328 U.S. 80

(1946) ....... — soieastnigeneamtniineiel 8, 10, 14, 15, 25

Rebman vy. City of Springfield, 111 Ill. App. 2d 430, 250

IIE TEE TITS -cectetssdttsiediceatdninisdiaibidcenessnicieininiidiiaiaoeneadit 22

Regional Rail Reorganization Act Cases, 419 U.S. 102

SEPT \nesicsnuesscceinsanniceshcnenstesspiasidatineepsedaastuanpnmntataniattddundanccimiainiane 12

Roe v. Kansas, 278 U. S, ee ID cechsihicciicipiiniatnineanianne 10, 20

Royster Guano Co. v. Virginia, 253 U.S. 412 (1920) .... 23

South Terminal Corp. v. Environmental Protection

Agency, 504 F.2d GAG (1974) ............eccceceecsecsecesecseesecsees 29

Sproles v. Binford, 286 U.S. 374 (1932) 20000... 16

Steel Hill Development, Inc. v. Town of Sanbornton,

ee Lt ene 29

Town of Deering ex rel. Bittenbender v. Tibbetts, 104

(Gee 22

United States v. Causby, 328 U.S. 256 (1946) -........... 12, 31

United States v. Fuller, 409 U.S. 488 (1973) -.............. 12, 31

PAGE

United States v. Gettysburg Electric Ry., 160 U.S. 668

CORIO . <cneusteniariccnsssensetsiitteininuannateciimampndanaininiatia 10, 19, 20

United States Dep’t of Agriculture v. Moreno, 413 U.S.

BD CIID wcinsisnerssssntonstnnisiciuienntmtinneninennminineniiciicaenie 24

Universal Interpretive Shuttle Corp. v. Washington

Metropolitan Area Transit Commission, 393 U.S. 186

CTREITD acsnsisscisnnicecenipimasitanaiasnnaiinneginadasibaiigpaniaiaeiaiiediiaiinibiie 14

Vieux Carre Property Owners & Assoc., Inc. v. City of

New Orleans, 246 La. 788, 167 So.2d 367 (1964) ........ 22

Village of Belle Terre v. Boraas, 416 U.S. 1 (1974) .8, 10,

20, 23, 28

Village of Euclid v. Ambler Realty Co., 272 U.S. 365

CTU <esiesiteninsssehcinpsstesiteianiiitasantoagtaanisedian 8, 9, 13, 14, 15, 16, 29, 30

Walls v. Midland Carbon Co., 254 U.S. 300 (1920) ........ 14

Welch v. Swasey, 214 U.S. 91 (1909) 0002. 16, 20, 32

Williamson v. Lee Optical Co., 348 U.S. 483 (1955) ... 26

Young v. American Mini Theatres, Inc., 427 U.S. 50

CRED cccnemccesmansimnninnncimiantenenninannatanial 8, 13, 21, 30

Zahn v. Board of Public Works, 274 U.S. 325 (1927) ..15, 30

STATUTES:

Federal

Amtrak Improvement Act of 1974, 49 U.S.C. § 1653 19

Historical and Archeological Sites Preservation

Py 2 BS eR eee 19

National Historic Preservation Act of 1966, 16

SURI UTE sehssiicciarnbdnaceiinatbdnisatahecnenecsiebendicadanidens 4,18, 19

en Se 18

Municipal Statutes and Ordinances

RL a ee eee een eee 8

New York City Landmarks Preservation Law

(N.Y.C. Charter & Admin. Code, Ch. 8-A) .... passim

N.Y.C. Admin. Code § 205-1.0 ............................ 2,17

N.Y.C. Admin. Code § 207-2.0 ..........................-. 2, 25

N.Y.C. Admin. Code §§ 207-4.0 to -9.0 ............. 2

N.Y.C. Zoning Resolution § 74-711 —........2......... 27

N.Y. Sess. Laws Ch. 216 (McKinney 1956),

amended and reenacted as N.Y. Gen. Mun. Law

$96a (McKinney Supp. 1974-75) -000022 16

Miscellaneous

Biddle, Historic Preservation: The Citizens Quiet

Revolution, 8 Conn. L. Rev. 202 (1976) ................ 3

Costonis, The Disparity Issue: A Context for the

Grand Central Terminal Decision, 91 Harv. L.

I ces caebeal 14, 25, 26

ID I I i arccnltataceasiicagienetenies 18

Landmarks Preservation Commission of the City

of New York, Landmarks and Historic Districts

EE eee Or eT ee eee ee 4

Loflin, Zoning and Historie Districts in New York

City, 36 Law and Contemp. Prob. 363 (1971) .... 25

National Trust for Historie Preservation, Direc-

tory of Landmark and Historie District Com-

a a lee 3

National Trust for Historic Preservation, A Guide

to State Historic Preservation Programs (1976) 18

Note, Use of Zoning Restrictions to Restrain Prop-

erty Owners from Altering or Destroying His-

toric Landmarks, 1975 Duke L.J. 999 ................ 34

a \ A IN THE \ \ ain \

Supreme Court of the United States r

Ocvoser Term, 1977

No. 77444

Penn CentraL Transportation Co., et ai.,

Appellants,

Tue Criry or New York, et al.,

Appellees.

ON APPEAL FROM THE COURT OF APPEALS

\ OF THE STATE OF NEW YORK \

BRIEF OF

THE NATIONAL TRUST FOR HISTORIC PRESERVATION,

CITY OF NEW ORLEANS, CITY OF BOSTON, CITY OF SAN

ANTONIO, NATIONAL CONFERENCE OF STATE HISTORIC

PRESERVATION OFFICERS, DON'T TEAR IT DOWN,

NATIONAL INSTITUTE OF MUNICIPAL LAW OFFICERS,

NATIONAL LEAGUE OF CITIES AND SIERRA CLUB

AS AMICI CURIAE IN SUPPORT OF APPELLEES

Statutes Involved

The relevant portions of the New York City Landmarks

Preservation Law (N.Y.C. Charter & Admin. Code, ch. 8-A)

and Zoning Resolutions are reprinted in the Appendix to

the Jurisdictional Statement. (J.S. App. 76a-118a)?

’ References to the Appendix filed with the Jurisdictional State-

ment are designated as “J.S. App.” References to the Appendix

are designated as “App.”

When the New York City Council enacted this law, it de-

termined that

improvements and landscape features of special char-

acter or special historical or aesthetic interest or vale

is a public necessity and is required in the interest

of the health, prosperity, safety and welfare of the

people.” N.Y.C. Administrative Code § 205-1.0b. (J.S.

App. 76a)

‘the protection, enhancement, perpetuation and eh

Specifically, the Council concluded that landmark preser-

vation is necessary to safeguard the city’s historic, aes-

thetic and cultural heritage, to protect and to enhance the

city’s attractions to tourists, and to strengthen the city’s

economy. N.Y.C. Administrative Code 4 205-1.0b. (J.S.

App. 76a-77a)

The City of New York established a statutory plan pur-

suant to which its Landmarks Preservation Commission is

empowered, after a public hearing, to designate qualifying

structures of significant historic or aesthetic merit as land-

marks. N.Y.C. Administrative Code § 207-2.0. (J.S. App.

84a-87a) Once such a designation has been considered by

the City Planning Commission and approved by the Board

of Estimate, construction, reconstruction, alteration and

demolition are regulated by the Landmarks Preservation

Commission. A proposed modification of a landmark will

not be allowed unless the Commission finds that it will have

no effect on the protected architectural features, is other-

wise consistent with the purposes of the landmarks law, or

is required to avoid economic hardship to the owner. N.Y.C.

Administrative Code §§ 207-4.0 to -9.0. (J.S. App. 88a-104a)

Questions Presented

1. Whether the begutation of land use for purposes of _

historic preservation is a permissible exercise of the state’s

police power, in the same manner as zoning and other urban

land use re tions?

2. Whether the regulation of individual landmarks, as

part of a general plan to protect and enhance such struc-

tures, is discriminatory and therefore violative of the

Fourteenth Amendment?

3. Whether a limitation on the use of air rights pursu-

ant to a historic preservation regulation is a “taking” for

which compensation must be paid, even though it is conceded

that the landowner can obtain a reasonable return on its

investment without the use of the air rights?

Statement

In recent years, historic preservation—the protection,

rehabilitation and reuse of older buildings whose aesthetic

or historic merit significantly contributes to the American

landscape and culture, and to the maintenance of Amer-

ican cities and towns as livable places—has become a mat-

ter of great public interest and concern.’ Congress, for

example, has established a National Register of Historic

Places and has specifically determined that

“Organizations active in historic preservation work have more

than doubled since 1966, growing from fewer than 2,500 to more

than 6,000 as of June, 1975.” Biddle, Historic Preservation:

The Citizens Quiet Revolution, 8 Conn. L. Rev. 202 (1976). There

are currently over 500 municipal commissions with responsibility

for historic preservation. Sce National Trust for Historic Preser-

vation, Directory of Landmark and Historic District Commissions

(1976).

Fal

—

“the historical and cultural foundations of the Nation

should be preserved as a living part of our community

life and development in order to give a sense of orien-

tation to the American people.” National Historic

Preservation Act of 1966, 16 U.S.C. § 470(b).”

Similarly, all fifty states and over five hundred munici-——

palities have enacted statutes and ordinances in one form

or another, as part of land use regulations, to encourage

or require the preservation and maintenance of historic

places.*

The New York City ordinance at issuejin this case is

simply one example of the now-widespreatl movement to

protect landmarks as part of land use legislation. And

the Grand Central Terminal, the subject of this litigation,

is but one of approximately 500 individual sites and 31

districts designated by the New York City Landmarks

Preservation Commission pursuant to the city’s general

plan to preserve sites of special historic or aesthetic merit.°

The Grand Central Terminal itself was built after a

nationwide competition to design a replacement for Cor-

nelius Vanderbilt’s 1871 Grand Central Depot. Pursuant

to a special grant from the city, the Terminal was built in

the middle of Park Avenue, a city street. The Terminal

was opened to the public in 1913 and immediately attracted

international acclaim, not only because of the imaginative

architectural solution to the difficult engineering problem

posed by having to construct the station over underground

tracks, but because of the architectural design and scale

of the building, and its fine Beaux Arts facade, attractive

8 See also notes 25-27 infra and accompanying text.

* See note 24 infra.

° Landmarks Preservation Commission of the City of New York,

Landmarks and Historie Districts (1977).

sculptured details and imposing statues of Mercury, Her-

cules and Minerva atop the Forty-Second Street facade.*

Indeed, as the New York Supreme Court, Appellate Divi-

sion, found in this case:

“Grand Central Terminal is an important and irre-

placeable ¢ of the special uniqueness of New

York City. It is &nquestionably one of| New York

City’s best known buildings. Along with the Empire

State Building and|the Statue of Liberty, the image

of its facade symbolizes New York City for millions

of visitors and residents.” (J.S. App. 47a)

On August 2, 1967, pursuant to the landmafks law and

after several public hearings, the New York/City Land-

marks Preservation Commission designated thq Grand Cen-

traf Terminal as both ajlandmark and a wre site. \(R

2240-41) The Commfsion’s designation of the Terminal

and the confirmation on September 21, 1967 of that deSig-

nation by the New York City Board of Estimate were never

challenged and are not at issue here.

On January 22, 1968, well after the designation of the

Terminal as a landmark, the Penn Central Transportation

Company, certain of its subsidiaries and UGP Properties,

Inc., appellants in this case,’ entered into a lease and sub-

lease arrangement for the purpose of constructing a 56-

story office builging atop the Terminal. In accordance

with the landmdrks law, Penn Central submitted to the

Landmarks Pregervation Commission several designs for

the office tower} one of which would have preserved the

Terminal’s facade underneath the 56-story tower and two

others which would have demolished the facade. After a

* Photographs of the Terminal appear at pages 2232, 2234, 2236

and 2238 of the Record on Appeal to the New York Court of Ap-

peals (hereinafter “R’”).

* Appellants are sometimes jointly referred to as “Penn Central.”

hearing, the Landmarks Preservation Commission con-

cluded that the proposed office tower would not be appro-

priate to, or consistent with, the effectuation of the pur-

poses of the landmarks law and would have a harmful effect

on the Terminal. (R 2242-55). The Commission refused to

issue the necessary certification, thus precluding Penn Cen-

tral from constructing its proposed addition.

___S CS Pen rental did not administratively appeal the Land-

marks Preservation Commission’s action. Instead, it ini-

tiated this lawsuit, claiming that the landmarks law is un-

‘constitutional| on its face and as applied, and seeking

compensation |for a “taking” of its property.

The New York Supreme Court, Trial Term, ruled in ap-

pellants’ fawof, at least in part on the thebry that landmark

preservatign fs not within the state’s police power. (J.S.

App. 7la he New York Supreme Court, Appellate

Division, revprsed and, with two dissents, concluded that

andi eservation regulations, like other land use

regulations, are an appropriate exercise @f the police power.

(J.S. App. 268)

Pursuant to New York procedure, the Appellate Division

also made de novo findings of fact, which are not challenged

before this Court. The Appellate Division found, inter alia,

that Penn Central failed to prove that it cannot obtain a

reasonable return on its investment in the Grand Central

Terminal, or that it has no reasonable use of its property

without the construction of the proposed office tower.’ (J.S.

App. 48a-50a) Accordingly, applying traditional tests

adopted by this Court, the Appellate Division found that

* This opinion is not officially reported but is reprinted at J.S.

App. 5la-73a.

®* The Terminal was designed as, and continues to function as, a

railroad station. In addition, it has numerous shops, stores and

there has been no taking. (J.S. App. 24a-28a)*® A unani-

mous New York Court of Appeals affirmed.”

This Court then noted probable jurisdiction.

Summary of Argument

Penn Central’s argument to this Court is simple. The

City of New York, through application of its landmarks

law, has prevented Penn Central from constructing a 56-

story office tower in the air space over the Terminal,

thereby depriving Penn Central of the use of its air rights

and, consequently, of considerable income. IJpso facto,

Penn Central argues, the city’s action constitutes a “tak-

ing” for which just compensation must be paid. Penn Cen-

tral’s claim is, in essence, that whenever a landmark statute

prevents a property owner from using air space in a way

which would maximize his profits, he is entitled to just

compensation. (Penn Central Brief at 9-11)

Acceptance of Penn Central’s claim would make historic

preservation a virtual impossibility because any limita-

tion on property use for aesthetic or historic purposes

could be accomplished only by eminent domain. Indeed,

eating facilities, from fast food operations to a well-known restau-

rant, the Oyster Bar. Thus, the station produces over a million

dollars each year in rental income. In addition, the Penn Central

has had the use of the tracks for its railway business. Moreover,

the City of New York has provided tax relief amounting to some

$11 million from property taxes attributable to the portion of the

Terminal used for transportation purposes. (R 2088, 2090, 2213-18

(Exhibit 41) and 2225 (Exhibit T) )

1 The opinion of the Appellate Division is reported at 50 A.D.2d

265, 377 N.Y.S.2d 20 (1975), and is reprinted at J.S. App. 16a-

50a.

11 The Court of Appeals opinion is reported at 42 N.Y.2d 324, 397

N.Y.S.2d 914, 366 N.E.2d 1271 (1977), and is reprinted at J.S.

App. la-l5a.

under the argument urged by Penn Central, the Federal

Government would be liable to every landowner in the

City of Washington because, to protect the beauty of the

capital, it has enacted a height limitation precluding any

person from building a 56-story office tower on his prop-

erty."* Moreover, while the present case involves a limi-

tation imposed for landmark purposes, the logic of much

of Penn Central’s argument would apply equally to any

land use regulation.

Penn Central’s absolutist view entirely ignores the long

line ses from this Court which uniformly hold that a

_ state _may use late land use, and

in to Yocom limit an owner’s use of hiproperty, with-

out exercising its powers of eminent domaih. E.g., Village

of Belle Terre v. Boraas, 416 U.S. 1 (1974); Goldblatt v.

Town of Hempstead, 369 U.S. 590 (1962); Queenside Hills

Realty Co. v. Saxl, 328 U.S. 80 (1946); Village of Euclid

v. Ambler Realty Co., 272 U.S. 365 (1926); see Young v.

American Mini Theatres, Inc., 427 U.S. 5), 73-84 (1976)

(Powell, J., concurring). As this authority makes clear, no

compensation is necessary provided the régulation is for

a permissible public purpose, is not disqriminatory and

does not deprive the landowner of all refsonable use of

the regulated property. The New York /City landmarks

law as applied to the Grand Central

nicets these requirements.

First, historic preservation is a legitimate use of the

police power. An important premise which underlies all of

Penn Central’s arguments is the notion that governmental

regulation of land use for historic preservation purposes

is in some way different from, and less justifiable than,

#2 D.C. Code § 5-405.

land use regulation for other purposes, such as zoning,

fire protection and the like. Thus, without quite saying

so, Penn Central assumes that the New York City land-

marks law is not a proper use of the police power and

must be tested as an exercise of eminent domain. There is

no authority for such an assertion.

The fact that historic preservation laws are a relatively

recent development does not make them beyond the use of

the police power. These regulations, which are not signifi-

cantly different from zoning laws, are merely another ex-

ample of land use regulation. As this Court noted long

ago, “problems have developed, and constantly are develop-

ing, which require, and will continue to require, additional

restrictions in respect of the use and occupation of private

lands in urban communities.” Village of Euclid vy. Ambler

Realty Co.,\supra, 272 U.S. at 386-87. |

Moreover, the legislature is the main guardian pf public

32 (1954). In this case, pursuant to enabling legislation

enacted by the State of New York, the New York City Coun-

cil has specifically determined that the public welfare re-

quires historic preservation, for both aesthetic and economic

reasons. This judgment, in accord with that of numerous

other states and municipalities, is certainly permissible.

Indeed, this Court so held in City of New Orleans v.

Dukes, 427 U.S. 297 (1976). In Dukes, New Orleans had

enacted an ordinance “‘to preserve the appearance and

custom valued by the [French] Quarter’s residents and

attractive to tourists.’” The Court concluded that the

legitimacy of the use of the police power for such an ob-

jective was “obvious.” 427 U.S. at 304. See also Village

of Belle Terre v. Boraas, supra, 416 U.S. at 9; Berman v.

Parker, supra, 348 U.S. at 33; Roe v. Kansas, 278 U.S.

191 (1929); United States v. Gettysburg Electric Ry.,

160 U.S. 668 (1896). Thus, there can be no doubt that the

enactment of landmark regulations is well within the scope

of a state’s police power.

Second, single landmark designation is not discrimina-

tory. Penn Central suggests that, even if limitations on

development imposed by historic preservation legislation

are valid for districts, legislation which designates and

attempts to preserve single landmarks is discriminatory

and unconstitutional. (Penn Central Brief at 23) Penn

Central’s argument apparently is that such designations

are discriminatory because they treat the Grand Central

Terminal differently from non-landmark property located

nearby.

But as this Court noted in Police Department of Chicago

v. Mosley, 408 U.S. 92, 95 (1972), the “erucial question is

whether there is an appropriate governmental interest

suitably furthered by the differential treatment.” Differ-

ent treatment of similarly located buildings, one of which

has great historical or architectural significance, and one

of which has none, is precisely within the rule of Mosley.

As previously discussed, preservation of historic build-

ings is a legitimate governmental goal. The differential

treatment of landmarks and non-landmarks is obviously

central to this goal. There is, therefore, a rational basis

for the different treatment and no impermissible disecrimi-

nation. City of New Orleans v. Dukes, supra, 427 U.S. at

303-04; Queenside Hills Realty Co. v. Saal, supra, 328 U.S.

at 83-85. |

Third, under the standards consistently applied by this

Court, there has been no taking and compensation is

not required. Every regulation which prevents a land-

owner from making the most beneficial use of property

and precludes maximizing profits deprives that owner of

revenue he might have had under other circumstances.

But this Court has repeatedly held that where the regu-

lation is “otherwise a valid exercise of the . . . police

[power],” no compensation need be paid unless the regu-

lation so interferes with the property as to deprive the

owner of all reasonable use. Goldblatt vy. Town of Hemp-

stead, supra, 369 U.S. at 592; Hadacheck v. Sebastian,

239 U.S. 394 (1915) ; Hudson County Water Co. v. McCar-

ter, 209 U.S. 349, 355 (1908).

In the present case, the New York Supreme Court, Appel-

late Division, has found as a matter of fact that Penn Cen-

tral failed to establish that the landmark regulation de-

rived it of all reasonable use of the Terminal or, indeed,

limited its ability to make a reasonable return on its invest-

ment. (J.S. App. 48a-50a) Penn Central concedes that point

in this Court. (Jurisdictional Statement 7, n.7) Accord-

ingly, there has simply been no taking.”

Appeals concluded that there wag no taking because, inter alia, only

that portion of the property value which was created by “the efforts

of the property owner” need be'considered. (J.S. App. ia-2a, 9a)

On the facts of this case, where the property involved is a railway

station, built on a city street by special grant, subsidized for many

years by property tax deductions and subject to a complicated

interlocking scheme of Federal, State and local subsidies, such a

rule may well be appropriate. However, Amici have not relied

upon the grounds set forth by the New York Court of Appeals

because they believe that the traditional analysis adhered to by

this Court without exception over the past seventy-five years re-

quires affirmance of the result reached below.

Similarly, a number of other briefs have dealt at length with

issues related to the New York City transfer of development rights

'S As other briefs have in} at length, the New York Court of

Penn Central, attempting to avoid the dilemma which the

lower court’s findings pose, claims that its air rights have

been entirely eliminated and that the making of a reason-

able return on the Terminal itself is immaterial. (Penn

Central Brief at 26) Air rights, however, are not separate

property. Rather, it is always the case, when a landowner

has built to a maximum height limitation, that his use of fur-

ther air space is necessarily precluded. Similarly, a set-back

or side lot regulation prevents a landowner from building

on those portions of his property. Yet imposing a height

limitation or requiring open space has never been thought

to require compensation. Indeed, this Court faced and

resolved these questions several years ago when it con-

cluded that “the police power may limit the height of

buildings, in a city, without compensation,” Hudson

County Water Co. v. McCarter, supra, 209 U.S. at 355, and

that limiting an owner to the use of only a portion of his

property is unobjectionable. Gorieb v. Fox, 274 U.S. 603

(1927).**

as applied to the Terminal. Amici have not discussed these

rights in detail because they believe that, while the city has been

generous by rewriting its laws specially to provide additional bene-

fits to Penn Central (App. 68-69), there is no taking in the pres-

ent case whether or not any transfer of development rights are pro-

vided to Penn Central, It is worth noting, however, should this

Court reach the issue, that it is hardly novel to suggest, as did

the New York Court of Appeals, that the transfer of development

rights would themselves be full compensation to Penn Central if

any compensation were due. As this Court held in the Regional

Rail Reorganization Act Cases, 419 U.S. 102, 150-51 (1974), a

property owner may be required to accept other interests in

kind, such as realty, as compensation where a taking does occur.

‘* Consequently, the various eminent domain cases cited by Penn

Central throughout its brief are irrelevant. Each of those cases

involved a situation where the governmental authority either ap-

propriated property for its own use, precluded the landowner from

any reasonable use of the property, or both. See, e.g., United States

v. Fuller, 409 U.S, 488 (1973); United States v. Causby, 328 U.S.

256 (1946).

For all these reasons, the result reached by the New York

Court of Appeals is correct and its decision should be af-

firmed.

ARGUMENT

I. Historic Preservation Is a Legitimate Use of the

Police Power.

Over fifty years ago, in Village of Euclid v. Ambler

Realty Co., 272 U.S. 365 (1926), this Court held that a mu-

nicipality could place restrictions on land use without pro-

viding compensation. The Court observed:

“(P]roblems have developed, and constantly are de-

veloping, which require, and will continue to require,

additional restrictions in respect of the use and occu-

pation of private lands in urban communities. Regu-

lations, the wisdom, necessity and validity of which,

as applied to existing conditions, are so apparent that

they are now uniformly sustained, a century ago, or

even half a century ago, probably would have been

rejected as arbitrary and oppressive.” 272 U.S. at

386-87.

The threshold question in each case is whether the particu-

lar restrictions on land use constitute a valid exercise of the

police power. As the Court in Euclid also noted, such re-

strictions must be considered a valid exercise unless they

are “clearly arbitrary and unreasonable, having no substan-

tial relation to the public health, safety, morals, or general

welfare.” 272 U.S. at 395."

Accord, Young v. American Mini Theatres, Inc., 427 U.S. 50,

73-74 (1976) (Powell, J., concurring); Goldblatt v. Town of

Hempstead, 369 U.S. 590, 594-95 (1962) ; Gorieb v. Fox, 274 US.

603, 610 (1927).

This Court, as well as several state and federal courts,

Congress and numerous state and municipal legislative bod-

ies, has concluded that the preservation of historic sites

and districts substantially promotes the general welfare

of the public. Consequently, historic preservation, as em-

bodied in New York’s Landmarks Preservation Law, is a

valid exercise of the police power.”*

A. The State Authorities’ Conclusion that Historic Preserva-

tion Promotes the General Welfare is Virtually Conclusive.

This Court has repeatedly noted that the police power

“embraces an almost infinite variety of subjects,” ' and that

it extends to all matters of public concern. Day-Brite Light-

ing, Inc. v. Missouri, 342 U.S, 421, 424 (1952). For example,

in Queenside Hills Realty Co. v. Saal, 328 U.S. 80 (1946),

the Court pointed out that:

“Many types of social legislation diminish the value

of the property which is regulated .... But in no

‘* Penn Central does not consider the question of whether land-

mark preservation laws are a legitimate use of a state’s police

power. Rather, stating that “this is not a zoning case,” Penn

Central simply ignores Euclid and assumes that the police power

is unavailable. (Penn Central Brief at 20-23)

Penn Central wholly misconceives the nature and purpose of

landmark preservation laws. See pages 25-26 infra. In any case,

these supposed distinctions are irrelevant. The threshold question

before this Court is not whether landmark preservation laws re-

semble other valid exercises of the police power. Rather, it is

whether such laws are themselves a valid exercise of this power.

See Costoenis, The Disparity Issue: A Context for the Grand

Central Terminal Decision, 91 Harv. L. Rev. 402, 415 (1977). Zon-

ing ordinances, for example, are different than regulations which

preserve the nation’s natural resources. Yet, such regulations are

as valid an exercise of the police power as zoning ordinances. See

Walls v. Midland Carbon Co., 254 U.S. 300, 324 (1920) (natural

gas). See also note 28 infra.

''E.g.. Universal Interpretive Shuttle Corp. v. Washington

Metropolitan Arca Transit Commission, 393 U.S, 186, 192 n5

(1968); Munn v. lilinois, 94 U.S. 113, 145 (1877).

ease does the owner of property acquire immunity

against exercise of the police power because he con-

structed it in full compliance with the existing laws

. The police power is one of the least limitable

of governmental powers, and in its operation often

cuts down property rights.” 328 U.S. at 83."*

And in Moore v. City of East Cleveland, 431 U.S. 494, 498

n.6 (1977), Justice Powell noted that: “[C]Jases [subse-

quent to Village of Euclid vy. Ambler Realty Co., supra]

have emphasized that the general welfare is not to be nar-

rowly understood; it embraces a broad range of govern-

mental purposes.” See also Consolidated Rock Products

Co. v. City of Los Angeles, 57 Cal. 2d 515, 20 Cal. Rptr. 638,

370 P.2d 342, appeal dismissed, 371 U.S. 36 (1962).

The primary responsibility for determining which meas-

ures will promote the public welfare lies with the state, and

substantial deference must be paid to the state’s judgment.

“| TJhe settled rule of this court is that it will not substitute

its judgment for that of the legislative body charged with

the primary duty and responsibility of determining the ques-

tion.” Zahn v. Board of Public Works, 274 U.S. 325, 328

(1927)."* In fact, as long as the legislative determination

‘The fact that Penn Central acquired its air rights in Grand

Central Terminal prior to the enactment of the Landmarks Pres-

ervation Law is, of course, irrelevant. As this Court concluded

in Fleming v. Rhodes, 331 U.S. 100, 107 (1947), “regulation of

future action based upon rights previously acquired by the person

regulated is not prohibited by the Constitution. So long as the

Constitution authorizes the subsequently enacted legislation, the

fact that its provisions limit or interfere with previously ac-

quired rights does not condemn it.”

“The statement of the rule in Zahn remains viable today.”

Moore v. City of East Cleveland, supra, 431 U.S. at 514 nl

(Stevens, J., concurring). See also Powell v. Pennsylvania, 127

U.S. 678, 685 (1888) (legislature has wide power to determine what

the public welfare demands). In Gorieb v. For, supra, the Court,

is “fairly debatable the legislative judgment must be al-

lowed to control.” Village of Euclid vy. Ambler Realty Co.,

supra, 272 U.S. at 388." The state’s legislative declaration

of what the public interest requires is, in short, “well-nigh

conclusive.” Berman v. Parker, 348 U.S. 26, 32 (1954).™

The landmarks law at issue here was passed under the

New York State Historic Preservation Enabling Act of

1956." The State law declared the preservation of land-

marks to be publie policy of the state, and granted munici-

referring specifically to land use restrictions and the Village of

Euclid decision, explained :

“State legislatures and city councils, who deal with the situa-

tion from a practical standpoint, are better qualified than the

courts to determine the necessity, character and degree of

regulation which these new and perplexing conditions re-

quire; and their conclusions should not be disturbed by the

yo unless clearly arbitrary and unreasonable.” 274 U.S.

at .

*® See also Goldblatt v. Town of Hempstead, supra, 369 U.S. at

595, quoting Sproles v. Binford, 286 U.S. 374, 388 (1932) (“de-

batable questions as to reasonableness are not for the courts but

for the legislature ...”’).

“This same deference must be paid to the determinations of

the state courts. For example, in Welch v. Swasey, 214 U.S. 91

(1909), the appellant attacked an ordinance which limited the

height of buildings in certain areas of Boston. The Massachu-

setts courts upheld the ordinance as a valid exercise of the police

power and this Court affirmed, noting that whether the ordinance

will “promote the general and public welfare .. . [is a matter]

which the state court is familiar with, but a like familiarity can-

not be ascribed to this Court.” 214 U.S. at 105. Consequently, the

Court concluded it has

“the greatest reluctance in interfering with the well-considered

judgments of the courts of a State whose ple are to be

affected by the operation of the law. . . . [The State court

determination] will only be interfered with . . . where the

decision is, in our judgment, plainly wrong.” 214 U.S. at 106.

"N.Y. Sess. Laws ch. 216 ayy ay, 1956), amended and re-

enacted as N.Y. Gen. Mun. Law § 96a (McKinney Supp. 1974-75).

palities the ‘authority to use the police power to provide

for the protection and preservation of buildings and places

of “special historical or aesthetic interest or value.” When

the City of New York enacted its landmarks law, it de-

termined specifically that historic preservation was within

its police power, declaring that the landmarks law was

“required in the interest of the health, prosperity, safety

and welfare of the people.” N.Y.C, Administrative Code

§ 205-1.0b. (J.S. App. 76a)**

In sustaining the landmarks law, the New York Su-

preme Court, Appellate Division, concluded that the law

served the economic and aesthetic purposes set forth

above. (J.S. App. 18a, 23a-24a) Indeed, the court spe-

cifically found that the “preservation of landmarks in

urban areas is of special importance” and that the “need

to preserve structures worthy of landmark status is be-

yond dispute.” (J.S8, App. 47a)

The New York City legislative and judicial authorities

are not alone in their judgment that historic preservation

promotes the general welfare of the public. As the Fifth

Circuit observed in Maher v. City of New Orleans, 516 F.2d

1051 (5th Cir. 1975), cert. denied, 426 U.S. 905 (1976) :

** This general declaration is followed by a more explicit state-

ment of the purposes which the law was designed to foster. Ac-

vording to the City Council, the law is intended to “effect and

accomplish the protection, enhancement and perpetuation of. . .

improvements and landscape features and of . . . districts which

represent or reflect elements of the city’s cultural, social, economic,

political and architectural history ;” “safeguard the city’s historic,

aesthetic and cultural heritage ;” “stabilize and improve property

values; “foster civic pride in the beauty and noble accomplish-

ments of the past;” “protect and enhance the city’s attractions to

tourists and visitors and the support and stimulus to business and

industry thereby provided ;” “strengthen the economy of the city ;”

and “promote the use of historic districts, landmarks, interior land-

marks and scenic landmarks for the education, pleasure and welfare

of the people of the city.” N.Y.C. Administrative Code § 205-1.0b.

(J.S. App. 76a)

“Throughout the country, there appears to be a

burgeoning awareness that our heritage and culture

are treasured national assets. Many locales endowed

with historic sites have enacted protective measures

for them.” 516 F.2d at 1060,

In fact, as previously noted, all fifty states and over five

hundred municipalities have enacted historic preservation

statutes or ordinances in one form or another.” And, as

discussed below, the state courts have uniformly concluded

that historic preservation is: a legitimate exercise of the

police power. See page 22 infra.

The Federal Government has likewise recognized that

the preservation of landmarks and other historical sites

is a matter of vital public importance. The executive

agencies of the Federal Government have been directed

by presidential order to consider landmark preservation in

effecting their responsibilities. See Executive Order No.

11593, Protection and Enhancement of the Cultural Envi-

ronment, 3 C.F.R. § 154. Moreover, when Congress en-

acted the National Historic Preservation Act of 1966, 16

U.S.C. § 470,” it declared

** See National Trust for Historic Preservation, A Guide to

State Historic Preservation Programs (1976). A number of state

statutes and municipal ordinances are cited in the Jurisdictional

Statement at 9, n.9. See also note 2 supra.

* Executive Order No. 11593 provides in part:

“The Federal Government shall provide leade ip in pre-

serving, restoring and maintaining the historic and cultural

environment of the Nation. Agencies of the executive branch

of the Government ... shall . . . in consultation with the

Advisory Council on Historic Preservation . . . institute pro-

cedures to assure that Federal plans and programs contribute

to the preservation and enhancement of non-federally owned

sites, structures and objects of historical, architectural or

archaeological significance.”

* See also 42 U.S.C. § 1460(b) (federal support for local his-

toric preservation in urban renewal programs); Historical and

“that the historical and cultural foundations of the

Nation should be preserved as a living part of our

community life and development in order to give a

sense of orientation to the American people... .”*

It is thus plain that legislative and judicial authorities,

at both the federal and state levels, have uniformly con-

cluded that the police powers may properly be used for

historic preservation purposes. And, as this Court has

consistently held, substantial deference must be accorded

these determinations.

B. The Decisions of this Court Make It Clear that Historic

Preservation Promotes the General Welfare.

The decisions of this Court make it clear that historic

preservation promotes the general welfare of the public

and is thus a legitimate use of the police power. If there

were any doubt about the matter, it was resolved recently

in City of New Orleans v. Dukes, 427 U.S. 297 (1976).

There, a New Orleans ordinance barred most pushcart

vendors from the historic French Quarter. The purpose

of the ordinance was “‘to preserve the appearance and

custom valued by the Quarter’s residents and attractive

to tourists.’” The Court concluded that the propriety of

the use of the police power to further such an objective was

“obvious.” 427 U.S. at 304.

The result in Dukes was foreshadowed by the decisions

in United States v. Gettysburg Electric Ry., 160 U.S. 668

Archeological Sites Preservation Act of 1974, 16 U.S.C. § 469;

Amtrak Improvement Act of 1974, 49 U.S.C. § 1653 (specifically

encouraging the preservation of railway terminals).

7716 U.S.C. § 470(b). Pursuant to this Act, an Advisory Council

on Historic Preservation was established, and a National Register

of Historic Places developed. The Grand Central Terminal was

placed on the Register on January 17, 1975.

(1896), and Roe v. Kansas, 278 U.S. 191 (1929). In each

case, the Court sustained the government’s authority to

condemn particular historic property, concluding that such

action was “closely connected with the welfare of the re-

public itself ....” 160 U.S. at 682. While these cases

involved eminent domain, the concept of publie welfare

does not vary depending upon the manner in which the

government chooses to preserve the landmark. This was

made clear in Berman v. Parker, 348 U.S. 26 (1954), where

the Court used the public welfare concept, interchange-

ably, in its police power and eminent domain discussions.

Moreover, the Court has consistently held that those

values promoted by historic preservation, see note 23

supra, are within the public welfare. As long ago as Welch

v. Swasey, supra, the Court, in sustaining Boston’s ordi-

nance limiting building heights, held that it was appropri-

ate to regulate property for aesthetic, as well as safety,

purposes. 214 U.S. at 108. And, in Village of Belle Terre

v. Boraas, 416 U.S. 1 (1974), the Court sustained an ordi-

nance which restricted land use to “one-family” dwellings.

The Court concluded that “‘property rights may be cut

down, and to that extent taken, without pay’” where the

considerations involved are “family values, youth values,

and the blessings of quiet seclusion and clean air... .”

416 U.S. at 9-10. In reaching this conclusion, the Court

relied upon Berman vy. Parker, supra, where it was held:

“The concept of the public welfare is broad and inclu-

sive. ... The values it represents are spiritual as

well as physical, aesthetic as well as monetary. It is

within the power of the legislature to determine that

the community should be beautiful as well as healthy,

spacious as well as clean, well-balanced as well as

carefully patrolled.” 348 U.S. at 33.

See also Paris Adult Theatre I vy. Slaton, 413 U.S. 49, 57-

58, 62 (1973) (“there are legitimate state interests ... in

the quality of life and the total community environment”;

legislative directive valid notwithstanding claim that it in-

volved “imponderable aesthetic assumptions”); Young v.

American Mini Theatres, Inc., supra, 427 U.S. at 73-84

(1976) (Powell, J., concurring).”

** The Real Estate Board of New York, in its amicus curiae brief

(at 21-26), agrees that the police power extends to the protection

of aesthetic interests. It suggests, however, that the police power

is at a “greatly reduced level” where considerations of “aesthetic

appearance or historic places” are involved. This is so, argues

the Board, because aesthetic matters “involve considerations of sub-

jective judgment and taste.’ The Board cites no authority, and

Amici are aware of none, sustaining that proposition. Indeed,

over a century ago in the License Cases, 46 U.S. (5 How.) 504, 583

(1847), where the concept of police power was first explicated,

the Court indicated the exact opposite:

“{The police powers] are nothing more or less than the powers

of government inherent in every sovereignty to the extent

of its dominions. And whether a State passes a quarantine

law, or a law to punish offences, or to establish courts of justice,

or requiring certain instruments to be recorded, or to regulate

commerce within its own limits, in every case it exercises the

same power; that is to say, the power of sovereignty, the power

to govern men and things within the limits of its dominion. .. .

[I]ts authority to make regulations of commerce is as absolute

as its power to pass health laws, except in so far as it has been

restricted by the constitution of the United States.” (Taney,

C.J., coneurring) (Emphasis supplied).

If anything, where subjective judgments are involved, legislative

determinations of the propriety of the use of the police power are

given particular deference. See Paris Adult Theatre I v. Slaton,

supra, 413 U.S. at 62; Young v. American Mini Theatres, Inc.,

supra, 427 U.S. at 71 (1976) (opinion of Stevens, J.) (the “city’s

interest in attempting to preserve the quality of urban life is one

that must be accorded high respect”) ; id. at 80 (Powell, J., con-

curring) (it is “undeniable that zoning, when used to preserve

the character of specific areas of a city, is perhaps ‘the most es-

sential function performed by local government, for it is one of the

primary means by which we protect that sometimes difficult to

define concept of quality of life.’”). See also note 16 supra.

Relying in part upon the above-cited authority the

courts have uniformly concluded that historic preservation

is a legitimate exercise of the police power. For example,

in Figarsky v. Historic District Commission, 171 Conn.

198, 368 A.2d 163 (1976), the court upheld a municipal

historic district ordinance, noting:

“In a number of recent cases, it has been held that the

preservation of a historical area or landmark as it

was in the past falls within the meaning of general

welfare and, consequently, the police power.” 171

Conn. at, 368 A.2d at 170.

And in Maher v. City of New Orleans, supra, the Fifth

Cireuit similarly observed that there exists “substantial

[judicial] support . . . for a legislative determination to

preserve historic landmarks and districts.” 516 F.2d at

1059.”°

In short, historic preservation promotes the general wel-

fare and is thus a legitimate exercise of the police power. Ac-

cordingly, the impact of New York City’s landmarks law

upon the Grand Central terminal must be analyzed, not

as an exercise of eminent domain, but under the tests

applied to valid exercises of the police power, such as

zoning and other land use regulations.

** E.g., Lafayette Park Baptist Church v. Scott, 553 8.W.2d 856

(Mo. Ct. App. 1977) ; Bohannan v. City of San Diego, 30 Cal. App.

3d 416, 106 Cal. Rptr. 333 (1973) ; Rebman v. City of Springfield,

111 Ill. App.2d 430, 250 N.E.2d 282 (1969); Manhattan Club v.

Landmarks Preservation Comm’n, 51 Mise. 2d 556, 273 N.Y.S.

2d 848 (1966); Town of Deering ex rel. Bittenbender v. Tibbetts,

104 N.H. 481, 202 A.2d 232 (1964); Vieux Carre Property Owners

d Assoc., Inc. v. City of New Orleans, 246 La. 788, 167 So.2d 367

(1964) ; City of Santa Fe v. Gamble-Skogmo, Inc., 73 N.M. 410, 389

P.2d 13 (1964); Opinion of the Justices to the Senate, 333 Mass.

783, 128 N.E.2d 563 (1955) ; Opinion of the Justices to the Senate,

333 Mass. 773, 128 N.E.2d 557 (1955).

II. Regulation of Individual Landmarks Is Not Dis-

criminatory.

Where regulatory legislation involves economic and

social issues, different treatment of persons or property

is entirely permissible if there is some rational basis for

distinction.” As this Court said in Village of Belle Terre

v. Boraas, supra:

“We deal with economic and social legislation where

legislatures have historically Grawn lines which we

respect against the charge of . . . [discrimination if

the law] bears ‘a rational] relationship to a [permis-

sible] state objective.’” 416 U.S. at 8.

Thus, ali that is required to sustain a regulation such as

New York City’s landmarks law against a charge of dis-

crimination is that there be an “appropriate governmental

interest suitably furthered by the differential treatment.”

Police Dep’t of Chicago v. Mosley, 408 U.S. 92, 95 (1972);

Royster Guano Co. v. Virginia, 253 U.S. 412, 415 (1920).

See also Morey v. Doud, 354 U.S. 457, 463-64 (1957).

It seems clear that differential treatment of similarly

located buildings, one of which has great historical

or architectural significance and one of which has none,

is rationally related to the city’s legitimate plan" to

protect structures of particular historic or aesthetic merit.

Consequently, the different treatment of landmarks and

°° There is no claim in the present case that the regulation in-

volves any invidious classification, such as race, or impacts upon

any specially protected right, such as freedom of speech. Accord-

ingly, claims of discrimination in this instance are subject to the

rational basis test. City of New Orleans v. Dukes, supra, 427 U.S.

at 303; Village of Belle Terre v. Boraas, supra, 416 U.S. at 7.

* As discussed above, the preservation of sites of historic and

aesthetic merit is a legitimate governmental interest.

non-landmarks has a reasonable basis and is perfectly

acceptable. United States Dep't of Agriculture v. Moreno,

413 U.S. 528, 533 (1973); Dandridge v. Williams, 397 U.S.

471, 485-86 (1970).

Nevertheless, Penn Central claims that the application

of New York City’s landmarks law to the Grand Central

Terminal should be struck down as discriminatory. In

support of this proposition, Penn Central makes several

claims, each of which is both without factual basis and

incorrect as a matter of law.

First, quoting from a portion of the New York Court

of Appeals decision, Penn Central claims that subjecting

the Grand Centra] Terminal to more rigorous restrictions

than nearby non-landmark properties is tantamount to

“ ‘discriminatory’ zoning restrictions, properly condemned,

affecting properties singled out in a zoning district for

more restrictive or more liberal zoning limitations.” (Penn

Central Brief at 23) But, as the New York Court of Ap-

peals observed in the remainder of the paragraph, which

Penn Central omitted from its brief:

“There is, however, a significant difference. Discrimi-

natory zoning is condemned because there is no ac-

ceptable reason for singling out one particular parcel

for different and less favorable treatment. When land-

mark regulation is involved, there is such a reason:

the cultural, architectural, historical, or social signifi-

cance attached to the affected parcel.” (J.S. App. 6a)

This Court has already recognized that a city can rea-

sonably make distinctions based upon architectural ap-

8? While Penn Central refers to the ordinance as “discrimina-

tory,’ and argues that the law should therefore be held uncon-

stitutional, it never explicitly makes an argument in terms of the

Equai Protection Clause of the Fourteenth Amendment. (Penn

Central Brief at 23)

‘

pearance, charm and beauty, and historic merit of build-

ings and areas. City of New Orleans v. Dukes, supra, 427

U.S. at 303-04. See also Queenside Hills Realty Co. v. Saal,

supra (upholding restrictions imposed on buildings con-

structed prior to 1944). That is precisely what is done

under the New York City landmarks law.

Second, Penn Central claims that the landmarks law is

discriminatory because the designation of individual land-

marks, such as the Terminal, is not part of a compre-

hensive plan. (Penn Central Brief at 23) In fact, the New

York City landmarks laws is a part of the City’s general

urban planning and land use regulations.“ As one com-

mentator explained, New York City’s landmarks program is

simply “a component of ... a [general community plan] one

of whose goals includes the maintenance of the desirable

features of the existing urban fabric.” J. Costonis, The

Disparity Issue: A Context for the Grand Central Termi-

°° The landmark process has been established in conjunction with

New York City’s zoning regulations, as Penn Central has recog-

nized by advising this Court that both the landmarks law and the

zoning regulations are affected by this litigation. (Penn Central

Brief at 2) Indeed, the landmark designation process goes through

a review and comment procedure that is designed to make land-

mark regulations a part of the City’s general land use regulations.

Thus, while the landmarks law was being prepared and considered

by the city government, the staff of the Landmarks Preservation

Commission surveyed the entire city for over two years to identify

landmarks. The Commission held an initial series of public hear-

ings over an eighteen-month period at which proposed landmarks

and historie districts were considered. After the hearings and fur-

ther study of the buildings, landmarks and historic districts were

designated by the Commission and these designations sent to the

Board of iistimate for approval. Before acting, the Board received

from the City Planning Commission a report on each designation

and its relation “to the master plan, the zoning resolution, pro-

jected public improvements and any plans for the renewal of the

area involved.” N.Y.C. Administrative Code § 207-2.0 g (1). (J.S.

App. 85a) See Loflin, Zoning and Historic Districts in New York

City, 36 Law and Contemp. Prob. 363, 365 (1971).

nal Decision, 91 Harv. L. Rev. 402, 415 (1977). And while

it is one of the three or four most important buildings in

New York, the Grand Central Terminal has not been

singled out for designation as a landmark. Rather, as pre-

viously noted, New York has designated 31 historic dis-

tricts and some 500 individual landmarks. See page 4

supra.

More importantly, there is no principle which re-

quires that to be valid a legislative enactment must be

pursuant to a comprehensive plan. On the contrary, this

Court has uniformly held that:

“Legislatures may implement their program step by

step, ... in such economic areas, adopting regulations

that only partially ameliorate a perceived evil and

deferring complete elimination of the evil to future

regulations.” City of New Orleans v. Dukes, supra,

427 U.S. at 303.

See also Katzenbach v. Morgan, 384 U.S. 641, 657 (1966) ;

Williamson v. Lee Optical Co., 348 U.S, 483, 488-89 (1955)."*

Finally, Penn Central argues that, unlike other land use

regulations that have been held to be non-discriminatory,

the burden of the landmark regulations in this case is borne

entirely by Penn Central, which receives no benefit from the

preservation of the Terminal. (Penn Central Brief at 23)

This is simply wrong as a factual matter. Penn Central

obtains the same benefits from preservation of the Terminal

as do the city’s other citizens—the protection of the city’s

“In Hadacheck v. Sebastian, 239 U.S, 394 (1915), this Court

concluded :

“It may be that brick yards in other localities within the cit

where the same conditions exist are not regulated or prohibited,

but it does not follow that they will not be. That petitioner's

business was first in time to be prohibited does not make its

prohibition unlawful.” 239 U.S, at 413.

appearance, charm and beauty and economy, which the city

properly determined to be of prime importance in passing

the landmarks law. City of New Orleans v. Dukes, supra,

427 U.S. at 303-04. And Penn Central receives unique ben-

efits as well, transferable development rights*® and the

modification of normal use restrictions.”

Furthermore, as a legal matter, Penn Central’s entire

benefits and burdens argument simply has no place in a

determination of whether the landmarks law is discrimina-

tory. For example, in City of New Orleans v. Dukes, supra,

this Court sustained a New Orleans city ordinance which,

in order to protect the historic and aesthetic qualities of the

French Quarter, and to protect the city’s economy and tour-

ist industry, prohibited pushcart vendors from operating

in the Quarter. Two of the three vendors previously operat-

ing in the area were exempted from the operation of the

ordinance by a grandfather clause. Obviously, the burden

of the ordinance fell entirely on Dukes, the vendor who was

driven out of business, and the benefits flowed to the popula-

tion of the city as a whole. This Court, however, unani-

mously upheld the ordinance against a claim of discrimina-

* Tt is undisputed that because of the Terminal’s status as a

landmark, Penn Central has certain transferable development

rights not applicable to non-landmark properties. (J.S. App. lla-

14a, 113a-18a) Penn Central claims that these rights are “uncer-

tain” and “speculative,” but does not argue that they are worthless.

(Penn Central Brief at 38) The city says that these rights are

worth millions of dollars, and points to the fact that Penn Central

was offered $3.5 million in 1971 in each of two separate bids by ap-

pellant UGP for the air rights. (Motion to Dismiss 27, App. 47-49)

Other evidence demonstrates a significant rental value for these

rights, (App, 80-82) Whatever the merit of the parties’ respective

positions on this point, it seems apparent that the transferable de-

velopment rights have some value and hence are a benefit to Penn

Central to at least some extent. The New York Court of Appeals so

held. (J.8. App. lla-1a)

** Uses may be permitted in a designated landmark that are not

allowed in aiicowi. non-landmark buildings. N.Y.C. Zoning Reso-

lution § 74-711.

tion by Dukes, without so much as considering who was

burdened and who was benefited. To the same effect is Gold-

blatt v. Town of Hempstead, supra, in which this Court up-

held a zoning ordinance that was designed to and did pro-

hibit the operation of a quarry, although it was obvious that

the burden of the ordinance fell entirely upon the quarry

owner and the benefits flowed to the town’s entire populace.

In sum, nondiscrimination in the context of the present

regulation means only that the distinctions drawn between

properties must be rationally related to the furtherance of

a legitimate state purpose. City of New Orleans v. Dukes,

supra; Village of Belle Terre v. Boraas, supra. The desig-

nation and preservation of single landmarks is directly and

obviously related to the legitimate goals established by the

city in its historic preservation law. Accordingly, the ap-

plication of the law to single landmarks such as Grand

Central Terminal is not discriminatory.

lll. There Has Been No Taking in This Case.

The previous sections of this brief have demonstrated

that New York City’s landmarks law is a proper exercise

of the police power and that its application to individual

landmarks is not discriminatory. The sole remaining ques-

tion, then, is whether application of the regulation to the

Grand Central Terminal amounts to a taking for which com-

pensation is required, Since Penn Central may make rea-

sonable use of the Terminal, no such taking has occurred.

This Court long ago held that:

“A prohibition simply upon the use of property for

purposes that are declared, by valid legislation, to be

injurious to the health, morals, or safety of the com-

munity, cannot, in any just sense, be deemed a taking

or an appropriation of property for the public benefit.

... The power which the States have of prohibiting

such use by individuals of their property as will be

prejudicial to the health, the morals, or the safety of

the public, is not—and, consistently with the existence

and safety of organized society, cannot be—burdened

with the condition that the State must compensate

such individual owners for pecuniary losses they may

sustain. ...” Mugler v. Kansas, 123 U.S. 623, 668-

69 (1887), quoted with approval in Goldblatt v. Town

of Hempstead, supra, 369 U.S. at 593.

The rule has developed in this Court and elsewhere

that a valid regulatory scheme pursuant to the police power

does not amount to a taking unless the owner is left with

no reasonable use of his property. Hadacheck vy. Sebastian,

supra; Hudson County Water Co. v. McCarter, supra, 209

U.S. at 355 (Holmes, J.); Maher v. City of New Orleans,

supra, 516 F.2d at 1066; C.F. Lytle Co. v. Clark, 491 F.2d

834, 838 (10th Cir. 1974); Steel Hill Development, Ine. v.

Town of Sanbornton, 469 F.2d 956, 963 (1st Cir. 1972) ; Pope

v. City of Atlanta, 418 F. Supp. 665, 669 (N.D. Ga. 1976).

See also City of Eastlake v. Forest City Enterprises, Inc.,

426 U.S. 668, 674 n.8 (1976); HFH, Ltd. v. Superior Court,

15 Cal. 3d 508, 125 Cal. Rptr. 365, 542 P.2d 237 (1975).""

Thus, in Village of Euclid v. Ambler Realty Co., supra,

272 U.S. at 384, this Court sustained, as a reasonable exer-

cise of the police power not requiring compensation, a zon-

* As the First Circuit concluded in South Terminal Corp. v.

Environmental Protection Agency, 504 F.2d 646 (1974);

“Three situations must be distinguished. First, a particular

use of a parcel of property may be regulated or forbidden.

Second, all uses of a parcel may be forbidden. Third, a right

to use or burden property in a particular and permitted way

may be transferred from the original owner to another per-

son, or to a governmental body. Only the second and third

situations are thought of as takings today.” 504 F.2d at 679.

ing ordinance which reduced plaintiff’s property value by

75%. And in Hadacheck v. Sebastian, supra, 239 U.S. at

405, this Court approved a limitation, without compensa-

tion, which reduced the value of the property over 90%.

“The cases are legion that sustained zoning against claims

of serious economic damage.” Young v. American Mini

Theatres, Inc., supra, 427 U.S. at 78 (Powell, J., coneur-

ring). See also Zahn y. Board of Public Works, supra, 274

U.S. at 327 (fact that without restrictive zoning market

value of property would be “greatly enhanced” does not

make zoning ordinance a taking).

More recently, this Court in Goldblatt v. Town of Hemp-

stead, supra, cited the Hadacheck case with approval in

upholding an ordinance which precluded a quarry owner

from continuing his business. The Court noted that:

“Concededly the ordinance completely prohibits a bene-

ficial use to which the property has previously been

devoted. However, such a characterization does not

tell us whether or not the ordinance is unconstitu-

tional. It is an oft-repeated truism that every regu-

lation necessarily speaks as a prohibition. If this

ordinance is otherwise a valid exercise of the town’s

police powers, the fact that it deprives the property

of its most beneficial use does not render it unconsti-

tutional.” 369 U.S. at 592.

In the present case, the New York Supreme Court, Appel-

late Division, found as a factual matter that the landmark

designation and the refusal to permit construction of the

office tower in no way interfered with the Terminal’s con-

tinued use. The court also found that Penn Central had

not proven under the traditional taking tests that the use

of its property was unreasonably limited or that it could

not earn a reasonable return on its investment. (J.S. App.

48a-50a) Penn Central admits that these findings are final

and not disputed in this Court. (Jurisdictional Statement

7,n.7) Under the authorities cited above, these factual find-

ings conclusively establish that there has been no taking and

that no compensation need be paid.

Penn Central attempts to avoid the lower court’s findings

by claiming that its air rights over the Terminal have been

entirely eliminated. Penn Central then cites a series of

eminent domain cases, such as Griggs v. Allegheny County,

369 U.S. 84 (1962), and United States v. Causby, 328 U.S.

256 (1946), for the proposition that it must be compen-

sated for this “taking” of its air rights. (Penn Central

Brief at 25-26)

But these cases are plainly irrelevant in the present situa-

tion. First, in Griggs and Causby the governmental au-

thority appropriated to its own use the space above plain-

tiff’s property for the transit of aircraft. Second, in those

cases there was a clear interference with the pre-existing

use of the property—that is, the noise and vibration from

low-flying aircraft made the existing habitation and conduct

of business on the property impossible. Griggs v. Allegheny

County, supra, 369 U.S. at 86-87; United States v. Causby,

supra, 328 U.S. at 259, 262 n.7."

The City of New York’s regulations do not prohibit

Penn Central’s use of the Terminal, nor has the City built

its own office building in the air space over the Terminal.

Rather, a limitation on the use of air rights by the Penn

Central has been imposed absent both interference with

“For the same reasons, the other cases relied upon by Penn

Central are inapposite to this case. For example, United States v.

Fuller, 409 U.S, 488 (1973), involved a condemnation of more than

nine hundred acres of land by the Government, which not only

prevented the former owner from continuing to use the land, but

took the right and title to the land for itself. 409 U.S. at 489.

the property below and the physical use of the air rights

by the Government.

Whenever a landowner has previously built to a maxi-

mum height limitation, the further use of air space is neces-

sarily precluded. If, as Penn Central claims, air rights are

to be treated as separate property and their elimination

is automatically a taking, there can be no valid height limi-

tations. That notion, however, was rejected by this Court

more than 70 years ago when it concluded that “the police

power may limit the height of buildings, in a city, without

compensation ... [so long as it does not make the] build-

ing lot wholly useless.” Hudson County Water Co. v. Mc-

Carter, supra, 209 U.S. at 355. Indeed, that was the precise

holding of this Court in Welch v. Swasey, supra, where the

City of Boston’s height limitations were sustained as a rea-

sonable exercise of the police power against a challenge

virtually identical to that advanced by Penn Central.

The difficulty with Penn Central’s argument is its insis-

tence that a property owner has the absolute right to use

every inch of his property and that any limitation of that

right is a taking. This Court held otherwise in upholding

the validity of setback regulations which required an owner

to leave a portion of his property unbuilt:

“The remaining contention is that the ordinance, by

compelling petitioner to set his building back from

the street line of his lot, deprives him of his property

without due process of law. ... It is hard to see any

controlling difference between regulations which re-

quire the lot-owner to leave open areas at the sides

and rear of his house and limit the extent of his use

of the space above his lot and a regulation which re-

quires him to set his building a reasonable distance

back from the street. Each interferes in the same

way, if not the same extent, with the owner’s general

right of dominion over his property. All rest for

their justification upon the same reasons which have

arisen in recent times as a result of the great increase

and concentration of population in urban communities

and the vast changes in the extent and complexity of

the problems of modern city life.” Gorieb v. Foz,

supra, 274 U.S. at 608.

These principles have been repeatedly applied by the

lower courts in historic preservation and similar cases.

Thus, in Maher v. City of New Orleans, supra, the

Fifth Circuit sustained the New Orleans French Quarter

preservation ordinance against a challenge by a landowner

who had been refused permission to demolish a small cottage

to erect an apartment building. Because the owner failed

to demonstrate that he could make no reasonable use of the

cottage, the court found that the ordinance as applied did

not constitute a taking. 516 F.2d at 1066."

Particularly illustrative of the defects of Penn Central’s

argument is Benenson v. United States, 548 F.2d 939 (Ct.

Cl. 1977). Benenson involved restrictions by the United

States under the Pennsylvania Avenue Development Corpo-

ration Act which prohibited the owners of the Willard

% See also Construction Industry Association v. City of Peta-

iuma, 522 F.2d 897 (9th Cir. 1975), cert. denied, 424 U.S. 934

(1976) (zoning plan which precluded any development of certain

properties for a period of time held not a taking) ; City of St. Paul

v. Chicago, St. Paul, Minneapolis and Omaha Ry., 413 F.2d 762

(8th Cir.), cert. denied, 396 U.S. 985 (1969) (ordinance im-

posing special height restrictions on property owned the rail-

road in order to preserve the view from a citv park and from down-

town areas behind the park held permissi:,le under the police

power); Moviematic Indus., Corp. v. Board of County Commis-

sioners, 349 So.2d 667, 670-71 (Fla. App. Ct. 1977); Figarsky v.

Historic District Commission, 171 Conn. 198, 368 A.2d 163, 171-72

(1976) ; First Presbyterian Church v. City Council, 360 A.2d 257,

261 (Pa. Commonwealth 1976); Candlestick Properties, Inc. v.

San Francisco Bay Conservation and Development Commission,

11 Cal. App. 3d 557, 89 Cal. Rptr. 897 (1970).

Hotel in Washington from demolishing the building. Be-

cause the Willard had been gutted and could neither be

used in its existing condition nor economically renovated,

the effect of the regulation was to prohibit any use of the

property. 548 F.2d at 947-48. Accordingly, the Court held

that a taking had occurred. Of course, it is precisely this

factual showing that the New York courts found that Penn

Central did not make.

Thus, there is simply no taking in the present case.

The rule that regulatory legislative schemes grounded in

the public health, safety and welfare do not require com-

pensation in the absence of the elimination of all reasonable

use of a property is based on the rule of necessity. As this

Court has recognized, if every such regulatory plan which

diminished the value of an owner’s property required com-

pensation, the Federal, State and local governments would

be powerless to regulate property and land use regulation

would be impossible. Pennsylvania Coal Co. v. Mahon, 260

U.S. 393, 413 (1922); Hudson County Water Co. v. McCar-

ter, supra, 209 U.S. at 355. See also Note, Use of Zoning

Restrictions to Restrain Property Owners from Altering or

Destroying Historic Landmarks, 1975 Duke L.J. 999, 1019.

The same is true in the field of historic preservation.

The result sought by Penn Central would, in essence, find

a taking and require compensation for every property

owner whose maximum potential use of his property was

limited by a landmarks law. Such a rule would treat his-

toric preservation differently from every other type of

land use regulation and would, as a practical matter,

eliminate historic preservation in this country. Thus, the

result urged by Penn Central is not only contrary to an

unbroken line of decisions by this Court, contrary to the

determination of the public welfare by the legislatures of

every State and the municipal authorities of some five hun-

dred cities and towns, but contrary to common sense and

the common weal.

CONCLUSION

For the foregoing reasons, Amici urge this Court to

affirm the decision of the Court of Appeals of the State of

New York.

Respectfully submitted,

Davin BonDERMAN

Rospert A. GARRETT

Arnotp & PorTER

1229 Nineteenth Street, N.W.

Washington, D.C. 20036

Attorneys for Amici Curiae

Of Counsel:

Frank B. GILBERT

StrepHEN N. Dennis

Grecory E. ANDREWS

740-48 Jackson Place, N.W.

Washington, D.C. 20006

March, 1978

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