Amicus Curiae Brief — Murr v. Wisconsin, 136 S. Ct. 890 (2016) (No. 15-214)

No. 15-214

IN THE

Supreme Court of the United States

JOSEPH P. MURR, et al.,

Petitioners,

v.

STATE OF WISCONSIN AND ST. CROIX COUNTY,

Respondents.

On Writ of Certiorari

to the Wisconsin Court of Appeals

BRIEF OF AMICUS CURIAE NATIONAL

TRUST FOR HISTORIC PRESERVATION

IN SUPPORT OF RESPONDENTS

PAUL W. EDMONDSON RYAN C. MORRIS*

ELIZABETH S. MERRITT TOBIAS S. LOSS-EATON

WILLIAM J. COOK SIDLEY AUSTIN LLP

NATIONAL TRUST FOR 1501 K Street, N.W.

HISTORIC PRESERVATION Washington, D.C. 20005

2600 Virginia Ave. N.W. (202) 736-8000

Suite 1100 rmorris@sidley.com

Washington, D.C. 20037

(202) 588-6283

Counsel for Amicus Curiae

National Trust for Historic Preservation

June 17, 2016 * Counsel of Record

EE ei os RE eT ee

WILSON-EPES PRINTING CO , INC. — (202) 789-0096 -— WASHINGTON, D.C. 20002

QUESTION PRESENTED

In a regulatory taking case, does the “parcel as a

whole” concept as described in Penn Central Trans-

portation Co. v. City of New York, 438 U.S. 104, 130—

31 (1978), establish a rule that two legally distinct,

but commonly owned contiguous parcels, must be

combined for takings analysis purposes?

(i)

TABLE OF CONTENTS

Page

QUESTION PRESENTED ................2....0...0.....0... i

ee Be I yoo vccncaccccocssececsesscesesee iv

INTERESTS OF AMICUS CURIAE.................... 1

SUMMARY OF ARGUMENT ..............................

FARE Se ISS ee

TAKINGS JURISPRUDENCE SHOULD CON-

TINUE TO ENCOURAGE REASONABLE

LAND USE REGULATION, WHICH PRO-

TECTS HISTORIC PROPERTIES ................... 5

A. Historic Preservation Provides An Im-

portant Link To Our National Heritage

And Offers Significant Economic And

Environmental Benefits............................ 6

B. Local Governments, The States, And

Congress Have Recognized The Value Of

Historic Preservation...................-....-..0..-. 12

C. Penn Central Reaffirmed The Legitima-

cy Of Historic Preservation And Struck

A Successful Balance Between Regula-

tion And Property Rights.......................... 18

D. Petitioners’ Rule Would Disrupt The

Post-Penn Central Balance And Enable

(iit)

lv

TABLE OF AUTHORITIES

CASES Page

Agins v. City of Tiburon, 447 U.S. 255

(1980), abrogated on other grounds by

Lingle v. Chevron USA, Inc., 544 US.

EES EE cae nee es aE 2

Berman v. Parker, 348 U.S. 26 (1954).......... 17

Ciampitti v. United States, 22 Cl. Ct. 310

SERS Sea FB eRe a 23

City of Monterey v. Del Monte Dunes at

Monterey, Ltd., 526 U.S. 687 (1999).......... 2

City of Santa Fe v. Gamble-Skogmo, Inc.,

389 P.2d 13 (N.M. 1964) .............--:cceeeeeeeees 17

Dist. Intown Props. Ltd. P’ship v. Dist. of

Columbia, 198 F.3d 874 (D.C. Cir.

ERC CAE a cea dele 5, 23, 25, 26

Dunes W. Golf Club, LLC v. Town of Mount

Pleasant, 737 S.E.2d 601 (S.C. 2013)....... 23, 24

First English Evangelical Lutheran Church

v. Cty. of L.A., 482 U.S. 304 (1987)............ 2

Forest Props., Inc. v. United States, 177

F.3d 1360 (Fed. Cir. 1999)......................... 23

Giovanella v. Conservation Comm’n, 857

N.E.2d 451 (Mass. 2006)....................200008 24, 26

Keystone Bituminous Coal Ass'n _v.

DeBenedictis, 480 U.S. 470 (1987)............. 23

Koontz v. St. Johns River Water Mgmi.

Dist., 133 S. Ct. 2586 (2013).................2206. 2

LaSalle Natl Bank v. City of Highland

Park, 799 N.E.2d 781 (Ill. App. Ct. 2003),

as modified on denial of reh’g (Oct. 31,

SEER a er aaa 23

Lucas v. S.C. Coastal Council, 505 U.S.

EER CORRE REE CSE On 2, 26

MacDonald, Sommer & Frates v. Cty. of

Yolo, 477 U.S. 340 (1986)................c00000000+- 2

Vv

TABLE OF AUTHORITIES—continued

Page

Maher v. City of New Orleans, 371 F. Supp.

653 (E.D. La. 1974), affd, 516 F.2d 1051

LP a re eee ERE Das ID 17

Opinion of the Justices to the Senate, 128

N.E.2d 557 (Maas. 1965).............ccccscccssseees 17

Palazzolo v. Rhode Island, 533 U.S. 606

IIIT sith saa ceds biden inainaniabammnicasdanaaianiamaanians 2

Penn Cent. Transp. Co. v. City of N.Y., 438

ee BT icsdsieniccenctncsesenbipenibanebectietn passim

Preseault v. ICC, 494 U.S. 1 (1990).............. 2

San Diego Gas & Elec. Co. v. City of San

Diego, 450 U.S. 621 (1981)...............cce0e0-0 2

Tahoe-Sierra Pres. Council, Inc. v. Tahoe

Regl Planning Agency, 535 U.S. 302

EE TREO A SSL se Same ONS: 2, 24, 25

United Artists Theater Circuit, Inc. v. City

of Phila., 635 A.2d 612 (Pa. 1993) ............. 22

Yee v. City of Escondido, 503 U.S. 519

TE AEE IA Et SER A ETE SS ate 2

STATUTES

Antiquities Act of 1906, ch. 3060, 34 Stat.

SES AR ae CSIRO RN Ma Ayes a 12

National Historic Preservation Act of 1966,

Pub. L. No. 89-665, 80 Stat. 915............... 13, 14

OG Fe riliccncisnecscciiccctncnhvedesncosserss 14

AEE Riana wer 1

SERS ar ee 1

EERE SER Rn fen 1

D.C. Code § 6-1101 et seq. ..............c.cceeccsceeeee 25

N.Y.C. Admin. Code § 25-301 et seq. ............ 16

EE 16

§§ 25-306 to -312......... 16

vl

TABLE OF AUTHORITIES—continued

SCHOLARLY AUTHORITIES Page

J. Peter Byrne, Regulatory Takings

Challenges to Historic Preservation Laws

After Penn Central, 15 Fordham Envtl. L.

TTT 4, 5, 21, 22

Megan M. Carpenter, Preserving A Place

for the Past in Our Future: A Survey of

Historic Preservation in West Virginia,

100 W. Va. L. Rev. 423 (1997) ................... 11

Hunter S. Edwards, The Guide for Future

Preservation in Historic Districts Using A

Creative Approach: Charleston, South

Carolina’s Contextual Approach to

Historic Preservation, 20 U. Fla. J.L. &

a nccscssccnsnnnnne 10, 11

Sara C. Galvan, Rehabilitating Rehab

Through State Building Codes, 115 Yale

TTT TTC 7,11, 12

Frank B. Gilbert, Landmarks and City

Hall: How Historic Preservation

Contributes to Municipal Government, 11

J. Nat. Resources & Envtl. L. 211 (1996)... 16

Oscar S. Gray, The Response of Federal

Legislation to Historic Preservation, 36

Law & Contemp. Probs. 314 (1971)........... 13

David A. Lewis, Identifying and Avoiding

Conflicts Between Historic Preservation

and the Development of Renewable

Energy, 22 N.Y.U. Envtl. L.J. 274 (2015).. 8,9

Randall Mason, Economics and Historic

Preservation: a Guide and Review of the

Literature (Sept. 2005)................... 9, 10, 11, 12

vii

TABLE OF AUTHORITIES—continued

Page

Carol M. Rose, Preservation and Commun-

ity: New Directions in the Law of Historic

Preservation, 33 Stan. L. Rev. 473

3 Patricia E. Salkin, American Law of

Se A TART LT ATED 15, 16

OTHER AUTHORITIES

Main Street Am., Welcome to Main Street

America, http://)www.preservationnation.

org/main-street/ (last visited June 15,

SRI 11

Thompson Mayes, Introduction: Why Do

Old Places Matter?, 29 Forum J. 7 (2015). 8

Nat'l Park Serv., Federal Tax Incentives for

Rehabilitating Historic Buildings: Annu-

al Report for Fiscal Year 2015 (Mar.

2016), https://www.nps.gov/tps/tax-

incentives/taxdocs/tax-incentives-2015

i ticencssenbintcisuitisnctinmmmengacsinitninn 12

Natl Trust for Historic Pres., State

Historic Preservation Acts, http://www.

preservationnation.org/information-

center/law-and-policy/legal-resources/

preservation-law-101/state-law/

historic-preservation-acts.html (last

ae 15

Natl Trust for Historic Pres., With

Heritage So Rich (Preservation Books

TES SETA SCR passim

Natl Trust for Historic Pres., Pres. Green

Lab, The Greenest Building: Quantifying

the Environmental Value ll —

Reuse (2011) ... pnsdenttinlihais . 89

TABLE OF AUTHORITIES—continued

Nat'l Trust for Historic Pres., Pres. Green

Lab, Older, Smaller, Better: Measuring

how the character of buildings and blocks

influences urban vitality (May 2014).........

Donovan D. Rypkema, The Economics of

Historic Preservation: A Community

Leader’s Guide (3d ed. 2014)......................

Donovan R. Rypkema & Caroline Cheong,

Measuring Economic Impacts of Historic

Preservation (2d ed. 2013)...........-..........00+-

S. Cathedral Mansions, History, http://

www.southcathedralmansions.com

/history/ (last visited June 15, 2016).........

Page

10

INTERESTS OF AMICUS CURIAE'

The National Trust for Historic Preservation in the

United States (“National Trust” or “Trust”) is a fed-

erally-chartered charitable and educational organiza-

tion. The Trust was established by Congress in 1949

to further the historic preservation policies of the

United States and “to facilitate public participation in

the preservation of sites, buildings, and objects of na-

tional significance or interest.” 54 U.S.C. § 312102.

The National Trust’s mission is to provide leadership,

education, and advocacy to protect America’s diverse

historic places and revitalize its communities.

The Trust works closely with hundreds of inde-

pendent nonprofit preservation organizations at the

state and local levels. The Attorney General, the Sec-

retary of the Interior, and the Director of the Nation-

al Gallery of Art are statutory ex officio members of

the Trust’s Board of Trustees. Jd. § 312104(a). In

turn, the Chair of the National Trust is an ex officio

member of the Advisory Council on Historic Preser-

vation, an independent federal agency that promotes

the preservation, enhancement, and productive use of

our nation’s historic resources, and advises the Presi-

dent and Congress on national historic preservation

policy. Id. § 304102(a).

! Pursuant to Supreme Court Rule 37.6, amicus curiae states

that no counsel for any party authored this brief in whole or in

part and that no entity or person, aside from amicus curiae and

its counsel, made any monetary contribution towards the prepa-

ration or submission of this brief. All parties have filed with the

Court written consent to the filing of amicus curiae briefs in

support of either party or neither party.

2

With some 750,000 members and supporters na-

tionwide, the National Trust carries out a wide range

of programs and activities to advance the public’s in-

terest in historic preservation. These activities in-

clude the promotion of public policies, legal tools, and

tax incentives that support the preservation of Amer-

ica’s heritage. The National Trust frequently partici-

pates, both as a party and as amicus curiae, in legal

proceedings that involve the enforcement and appli-

cation of laws that promote the preservation of histor-

ic places. Regulatory takings cases are a prime exam-

ple, as takings jurisprudence can directly affect

preservation efforts. Indeed, the trust participated as

an amicus in Penn Central Transportation Co. v. City

of New York, 438 U.S. 104 (1978), and numerous oth-

er takings cases in this Court.? The Trust brings a

vital perspective to regulatory takings issues and has

a strong interest in ensuring that takings jurispru-

dence remains appropriately tailored so that it does

not undermine legitimate planning activities and

other community protections.

SUMMARY OF ARGUMENT

The Court should not disturb the balance that has

prevailed in takings jurisprudence since Penn Central

2 Koontz v. St. Johns River Water Mgmt. Dist., 133 S. Ct. 2586

(2013); Tahoe-Sierra Pres. Council, Inc. v. Tahoe Reg’l Planning

Agency, 536 U.S. 302 (2002); Palazzolo v. Rhode Island, 533 U.S.

606 (2001); City of Monterey v. Del Monte Dunes at Monterey,

Ltd., 526 U.S. 687 (1999); Lucas v. S.C. Coastal Council, 505

U.S. 1003 (1992); Yee v. City of Escondido, 503 U.S. 519 (1992);

Preseault v. ICC, 494 U.S. 1 (1990); First English Evangelical

Lutheran Church v. Cty. of L.A., 482 U.S. 304 (1987); MacDon-

ald, Sommer & Frates v. Yolo Cty., 477 U.S. 340 (1986); San Di-

ego Gas & Elec. Co. v. City of San Diego, 450 U.S. 621 (1981);

and Agins v. City of Tiburon, 447 U.S. 255 (1980).

3

Transportation Co. v. City of New York, 438 U.S. 104

(1978). Thousands of local governments have enacted

historic preservation ordinances in reliance on that

decision and its progeny. Adopting Petitioners’ posi-

tion would disrupt those settled regimes, which have

allowed historic preservation to thrive, and would

give landowners incentives to manipulate lot lines to

impact the takings analysis.

A. The preservation of America’s historic sites,

buildings, and neighborhoods is essential to main-

taining the Nation’s connection to our shared history

and fostering our local and national senses of com-

munity. Historic preservation safeguards the physical

manifestations of America’s history, allowing us to

share the spaces and environments in which the gen-

erations before us lived. Further, preservation en-

hances our quality of life by allowing us to live or

work among buildings that are unique, distinctive, or

simply beautiful. Preservation also offers environ-

mental benefits, by conserving existing structures

and resources and by using less energy than demoli-

tion and reconstruction. And it offers economic bene-

fits, by maintaining or increasing property values,

boosting investment and job creation, and driving

tourist or consumer activity in historic districts.

B. Cities and towns across the country have adopt-

ed landmark preservation laws and have established

historic districts. These laws, and other efforts by lo-

cal, state, and national groups, have given a new

lease on life to countless irreplaceable buildings over

the past half-century.

C. It is vitally important for state and local gov-

ernments to be able to pursue reasonable regulatory

measures to ensure the preservation of historically

significant buildings and places. As illustrated by this

4

Court’s seminal decision in Penn Central, those ef-

forts occasionally raise questions under the Takings

Clause, if property owners contend that a historic

preservation measure amounts to a regulatory tak-

ing. In Penn Central, this Court rejected the property

owner's attempt to “divide” its property interest in

Grand Central Terminal “into discrete segments and

attempt to determine whether rights in a particular

segment have been entirely abrogated.” 438 U.S. at

130. On that basis, the Court held that New York

City had not committed a taking by barring the own-

er from building an office tower in the air space above

the Terminal pursuant to the City’s “comprehensive

plan to preserve structures of historic or aesthetic in-

terest.” Id. at 132.

In the decades since Penn Central, historic preser-

vation efforts have flourished across the Nation, in

large part because the Court’s approach in that case

struck a proper “balance between local control and

individual rights that has nourished preservation.” J.

Peter Byrne, Regulatory Takings Challenges to His-

toric Preservation Laws After Penn Central, 15 Ford-

ham Envtl. L. Rev. 313, 314 (2004). To be sure, Penn

Central left some questions unanswered—including

the precise application of the parcel-as-a-whole test to

contiguous, jointly owned plots of land. But the lower

courts, guided by Penn Central, have largely reached

appropriate results by considering a variety of factors

in such cases, without applying the rigid rules (or

near-dispositive presumptions) urged by Petitioners

here. Thousands of local governments have adopted

historic preservation laws, relying on Penn Central

and the cases applying it, and local historic preserva-

tion regulations have been repeatedly upheld by the

courts in response to constitutional challenges.

5

D. The Court should not disrupt the equilibrium

that has prevailed since Penn Central. It should

therefore reject Petitioners’ attempt to treat their

jointly owned, contiguous parcels of land as separate.

Adopting a rule—or even a strong presumption—that

each separately recorded plot of land is a discrete

“parcel” for takings purposes will skew the balance

struck in Penn Central and its progeny against efforts

to protect and preserve historic places. Accepting Pe-

titioners’ position would also encourage property

owners to manipulate the takings analysis by subdi-

viding their existing property into separate parcels,

artificially increasing the likelihood that a court

would find a taking as a result of a regulatory land

use law. Cf. Dist. Intown Props. Ltd. P’ship v. Dist. of

Columbia, 198 F.3d 874 (D.C. Cir. 1999).

Although the Court need not adopt a rule that sep-

arately recorded contiguous parcels should always be

aggregated, it should reject Petitioners’ effort to upset

the “pragmatic workable constitutional context for

landmark preservation” that has existed for almost

four decades. See Byrne, supra, at 334.

ARGUMENT

TAKINGS JURISPRUDENCE SHOULD CON-

TINUE TO ENCOURAGE REASONABLE LAND

USE REGULATION, WHICH PROTECTS HIS-

TORIC PROPERTIES.

Historic preservation offers significant benefits,

from the communal, to the aesthetic, to the environ-

mental, to the economic. Over the past five decades,

Congress, the States, and municipalities across the

Nation have recognized the value of, and encouraged,

historic preservation efforts. And Takings Clause ju-

6

risprudence, as developed in this Court and applied

in the lower courts, has permitted those efforts to

flourish. The Court should not disrupt that balance.

And it should not adopt the rule urged by Petitioners,

which would enable property owners to manipulate

the takings analysis to subvert land use regulation.

Part A explains the aims, goals, and benefits of his-

toric preservation and how regulatory takings affect

historic preservation. Part B outlines the growth of

historic preservation efforts by the Federal Govern-

ment and State and local governments. Part C ex-

plains how Penn Central conclusively settled that his-

toric preservation advances an important public in-

terest and set forth an appropriate test for analyzing

regulatory takings challenges as they affect preserva-

tion. Part D demonstrates that Petitioners’ presump-

tion would disrupt the balance struck by Penn Cen-

tral and disrupt historic preservation efforts and its

associated benefits.

A. Historic Preservation Provides An Im-

portant Link To Our National Heritage

And Offers Significant Economic And

Environmental Benefits.

1. In the Takings Clause context, the most relevant

aspect of historic preservation is the regulation of

private land use, in particular to protect older build-

ings and neighborhoods. In this arena, historic

preservation focuses on “keeping buildings in current

use (with adequate safeguards against damaging

change), ... rather than isolating them as objects of

inspirational and antiquarian veneration.” Nat’

Trust for Historic Pres., With Heritage So Rich 143

(Preservation Books 1999) (1966) (hereinafter “Herit-

age’). Consequently, the goal of most modern preser-

7

vation efforts is to give old buildings and places a new

lease on life by providing them continued purpose.

To be worthy of protection, a building or neighbor-

hood need not be “historically significant,” in the

sense that a major historical event occurred there or

a famous person lived there: “the age and fame of a

structure are only two among several elements, in-

cluding scale, distinctiveness of design, and location,

that should be considered in assessing a building's

importance to the community.” Carol M. Rose,

Preservation and Community: New Directions in the

Law of Historic Preservation, 33 Stan. L. Rev. 473,

491 (1981); see also Heritage, supra, at 143, 193.

This aspect of preservation is perhaps most visible

in the historic districts that were established in the

mid-to-late Twentieth Century. Historic districts stop

“the construction of incompatible new buildings, or

alterations to existing ones, that would detract from

the esthetic values of an area in which a large propor-

tion of the buildings were constructed during a signif-

icant architectural period or have important associa-

tions with the history of the community, state or na-

tion.” Heritage, supra, at 149.

2. Historic preservation activities—and particular-

ly the state and local legislative efforts that are rele-

vant in takings cases—offer a number of important

benefits.

First, preservation serves important communal and

aesthetic purposes. Most obviously, old buildings are

“physical manifestations of a shared history.” Sara C.

Galvan, Rehabilitating Rehab Through State Build-

ing Codes, 115 Yale L.J. 1744, 1749 (2006) (arguing

that older buildings are a public good). Whether that

history is our national history, our local history, or

8

our personal history, old buildings maintain our links

to it. Indeed, old places create a sense of continuity

that contributes to a sense of balance and stability;

they embody our civic, state, and national sense of

identity; they anchor individual memories and con-

nect us with our heritage; they offer a first-hand view

into our history; inspire creativity and entrepreneur-

ship; and they create a shared sense of community.

Thompson Mayes, Introduction: Why Do Old Places

Matter?, 29 Forum J. 7, 8 (2015); see Penn Cent., 438

U.S. at 108 (noting the “widely shared belief that

structures with special historic, cultural, or architec-

tural significance enhance the quality of life for all”).

Old buildings also are often more human-scaled

and made with more natural materials than is mod-

ern construction, and their designs reflect the usage

patterns (and the daily lives) of the generations be-

fore us. As this Court has aptly observed, “[n]ot only

do these buildings and their workmanship represent

the lessons of the past and embody precious features

of our heritage, they serve as examples of quality for

today.” Penn Cent., 438 U.S. at 108.

Second, historic preservation offers environmental

benefits. See Nat'l Trust for Historic Pres., Pres.

Green Lab, The Greenest Building: Quantifying the

Environmental Value of Building Reuse vii—xi, 61

(2011) (hereinafter “Greenest Building”) (“[T]Jhe reno-

vation and reuse of existing buildings of comparable

functionality and size, and equivalent energy efficien-

cy levels, consistently yield fewer environmental im-

pacts than demolition and new construction ....”). By

definition, preserving an existing structure is a con-

servationist act, because it “prevents the demolition

and waste of existing construction materials” used to

build the original structure. See David A. Lewis,

9

Identifying and Avoiding Conflicts Between Historic

Preservation and the Development of Renewable En-

ergy, 22 N.Y.U. Envtl. L.J. 274, 290 (2015). In the

same way, preservation “avoids destroying the ‘em-

bodied energy’ of existing buildings”—that is, “the to-

tal of all energy necessary to construct an existing

building (including the energy expended to create the

building materials), which is lost when a building is

destroyed rather than preserved.” Id. at 290 & n.41;

Greenest Building, supra, at 20. Further, preserving

old buildings “capitalizes on traditional energy-

efficient building materials and techniques.” Lewis,

supra, at 290 n.43 (“traditional building methods and

styles are often environmentally superior and fre-

quently should be revived because [they] account for

local environmental issues, use local materials, and

avoid wasting resources’). Finally, “[p]reservation al-

so takes advantage of historic structures often being

located in existing urban, walkable areas and not in

far-flung, sprawling, auto-dependent ‘greenfields.”

Id. at 290—91; see Greenest Building, supra, at 91.

Third, historic preservation offers concrete econom-

ic benefits:

Designating a landmark or district as historical

typically maintains if not boosts the value of the

property, and as an economic development tool,

historic preservation has proved its worth. Near-

ly any way the effects are measured, be they di-

rect or indirect, historic preservation tends to

yield significant benefits to the economy.

Randall Mason, Economics and Historic Preservation:

a Guide and Review of the Literature executive sum-

mary (Sept. 2005); see generally Nat'l Trust for His-

toric Pres., Pres. Green Lab, Older, Smaller, Better:

Measuring how the character of buildings and blocks

10

influences urban vitality (May 2014) (“hereinafter

“Older, Smaller, Better”); Donovan D. Rypkema, The

Economics of Historic Preservation: A Community

Leader’s Guide (3d ed. 2014); Donovan R. Rypkema &

Caroline Cheong, Measuring Economic Impacts of

Historic Preservation (2d ed. 2013).

To begin with, the “economics literature clearly

comes down in favor of a positive effect of historic dis-

tricting on property values.” Mason, supra, at 7. In-

deed, numerous studies have “demonstrated that lo-

cal preservation measures provided an economic

stimulus through increased property values.” Hunter

S. Edwards, The Guide for Future Preservation in

Historic Districts Using A Creative Approach:

Charleston, South Carolina’s Contextual Approach to

Historic Preservation, 20 U. Fla. J.L. & Pub. Pol'y

221, 224 (2009). For example, a study in New York

City “found evidence of a statistically significant price

premium associated with inclusion [of a property] in

an historic district. The extent of the premium varied

from year to year, ranging from 22.6% ... to 71.8%.”

Mason, supra, at 7 (alteration and omission in origi-

nal). Likewise, a different study found a positive ef-

fect on property values in seven of nine Texas cities’

historic districts (the other two were inconclusive),

“increas[ing] property values in the range of 5—20

percent.” Id.

The benefits of preservation go well beyond indi-

vidual properties, however. Scholars have conducted

a “significant number” of economic impact studies

seeking to determine “what effect investment in his-

toric preservation activity has on the economy of a

particular region”—in other words, “Does preserva-

tion pay[] on more than a project-by-project basis”?

Id. And “the answer to this question is a resounding

11

‘yes —historic preservation yields significant benefits

to the economy.” Jd.; see also id. at 8-10 (collecting

studies establishing “the overwhelmingly positive

economic impacts that have been reported for historic

preservation”).

These “[o]ther economic benefits of local preserva-

tion ordinances include the protection of historic

property owners’ investments in these properties

through an ordinance’s maintenance of the communi-

ty, the ‘fiscal benefits’ of reusing existing infrastruc-

ture, and an increase in tourism dollars spent within

the community.” Edwards, supra, at 224-25 (foot-

notes omitted); see also Megan M. Carpenter, Pre-

serving A Place for the Past in Our Future: A Survey

of Historic Preservation in West Virginia, 100 W. Va.

L. Rev. 423, 432-33 (1997) (describing similar stud-

ies); Galvan, supra, at 1754 (noting the “economic

benefits from the tourists [preservation] attracts, so-

cial benefits from a more heterogeneous population

seeking a broader range of living environments, and

cultural benefits from its enhanced setting of artistic

activity.”).

Many of the economic benefits of preservation can

be seen in the National Trust’s own Main Street

America program, a national network of over 2,000

historic downtowns and neighborhood commercial

districts. Main Street America “aims to revitalize

communities through the rehabilitation and adaptive

reuse of older structures.” Galvan, supra, at 1753.

“Program data consistently report positive economic

impacts in their communities.” Mason, supra, at 10.

3 Main Street Am., Welcome to Main Street America, http://

www.preservationnation.org/main-street/ (last visited June 16,

2016).

12

Indeed, between the early 1980s and 2005, Main

Street America produced $17 billion in public and

private reinvestment, averaging $9.5 million per

community; a net gain of 57,470 businesses; a net

gain of 231,682 jobs; and a total of 93,734 buildings

rehabilitated. Id.; see also Galvan, supra, at 1753—54

& n.38 (reporting even higher figures from the Na-

tional Trust’s subsequent annual report). “All in all,

the ‘reinvestment ratio’ (average number of dollars

generated in a community per dollar used to operate

the local Main Street program) is documented as

$40.35 for every $1 spent.” Mason, supra, at 10.

In short, historic preservation offers a bounty of

significant cultural, aesthetic, environmental, and

economic benefits.

B. Local Governments, The States, And

Congress Have Recognized The Value Of

Historic Preservation.

Until the mid-Twentieth Century, formal historic

preservation efforts in the United States were mini-

mal, and focused largely on property already owned

by the federal government.® See Antiquities Act of

‘ Tax credits are yet another form of economically productive

preservation measure. See Nat'] Park Serv., Federal Tax Incen-

tives for Rehabilitating Historic Buildings: Annual Report for

Fiscal Year 2015, at 1 (Mar. 2016), https://www-.nps.gov/tpa/tax-

incentives/taxdocs/tax-incentives-2015annual.pdf (report-

ing over 41,250 completed projects since the Federal Historic

Preservation Tax Incentives Program’s inception in 1976, gener-

ating over $78 billion in the rehabilitation of income-producing

historic properties).

5 There were some exceptions, including sporadic preservation

efforts undertaken by private groups—most notably, the preser-

vation of Mount Vernon by the Mount Vernon Ladies’ Associa-

13

1906, ch. 3060, §§ 1-2, 34 Stat. 225, 225 (prohibiting

unauthorized removal or destruction of “any historic

or prehistoric ruin or monument, or any object of an-

tiquity” from, and authorizing the President to de-

clare national monuments on, government land); Os-

car S. Gray, The Response of Federal Legislation to

Historic Preservation, 36 Law & Contemp. Probs. 314,

314-15 (1971). Over time, these programs expanded

to allow the government to acquire historic and ar-

chaeological sites it did not already own, but “they

did little to protect privately-owned properties from

destruction in cases where the owners or governmen-

tal authorities desired to put the subjacent lands to

other uses.” Gray, supra, at 314. In fact, these laws

did not even “restrain such destruction by the United

States government itself.” Jd. at 315.

That changed with the passage of the National His-

toric Preservation Act of 1966, Pub. L. No. 89-665, 80

Stat. 915 (NHPA or Act). In the Act, Congress de-

clared that “the spirit and direction of the Nation are

founded upon and reflected in its historic past,” and

that “the historical and cultural foundations of the

Nation should be preserved as a living part of our

community life and development.” Jd. at 915. In par-

ticular, Congress expressed concern that, “in the face

of ever-increasing extensions of urban centers, high-

ways, and residential, commercial, and industrial de-

velopments, the present governmental and nongov-

ernmental historic preservation programs and activi-

ties are inadequate to insure future generations a

genuine opportunity to appreciate and enjoy the rich

heritage of our Nation.” Jd. Thus, Congress deemed it

“necessary and appropriate” to “give maximum en-

tion in 1852, after both the federal and Virginia governments

declined to purchase the estate. Heritage, supra, at 132.

14

couragement to agencies and individuals undertaking

preservation by private means, and to assist State

and local governments and the National Trust for

Historic Preservation in the United States to expand

and accelerate their historic preservation programs

and activities.” Id.6

Congress’s concerns were prompted by the Nation’s

unprecedented post-World War II growth, which saw

the demolition of many historic structures. The de-

velopment of the interstate highway system, subur-

ban sprawl, and the proliferation of urban renewal

programs in the 1950s and 1960s all contributed to

the rapid destruction of historic buildings and even

entire neighborhoods. See Heritage, supra, at 11;

Rose, supra, at 475 (“During the 1950s, federal, state,

and local governments embarked on urban renewal

and highway projects that chewed up aging neigh-

borhoods and distinctive old buildings ....”).

Many of these issues were brought to the fore by

With Heritage So Rich, a book released by the Special

Committee on Historic Preservation of the U.S. Con-

® This statement was updated in 2014. It now declares the

government's policy to: “foster conditions under which our mod-

ern society and our historic property can exist in productive

of present and future generations”; “provide leadership in the

preservation of the historic property”; “administer federally

owned, administered, or controlled historic property in a spirit of

stewardship”; “contribute to the preservation of nonfederally

owned historic property and give maximum encouragement to

organizations and individuals undertaking preservatior by pri-

vate means’; “encourage the public and private preservation and

utilization of all usable elements of the Nation’s historic built

environment”; and “assist State and local governments, Indian

tribes and Native Hawaiian organizations, and the National

Trust” with their preservation activities. 54 U.S.C. § 300101.

15

ference of Mayors and the National Trust in early

1966. The book vividly illustrated the variety and

beauty of America’s culturally valuable buildings and

places—and the rate at which they were being demol-

ished. As Lady Bird Johnson wrote in the foreword,

“almost half of the twelve thousand structures” in the

National Park Service’s Historic American Buildings

Survey had “already been destroyed.” Heritage, su-

pra, at 17; see id. at 115-21. Heritage closed by rec-

ommending a “comprehensive national plan of ac-

tion.” Id. at 194.

Most of the measures recommended in Heritage

were adopted in the NHPA later in 1966. In all, the

Act “represented an unprecedented codification of the

government's commitment—expressed in law and

eventually backed up with procedures and regula-

tions—to historic preservation as a matter of federal

policy.” Id. at 7.

Today, all fifty States participate in preservation

efforts under the NHPA, such as by nominating prop-

erties for inclusion in the National Register of Histor-

ic Places or consulting with federal agencies, and

many have their own preservation laws as well, often

patterned after the Act. See 3 Patricia E. Salkin,

American Law of Zoning § 27:5 (5th ed. 2016); Nat'l

Trust for Historic Pres., State Historic Preservation

Acts, http://www.preservationnation.org/information-

center/law-and-policy/legal-resources/preservation-

law-101/state-law/historic-preservation-acts.html

(last visited June 14, 2016).

As awareness of historic preservation’s importance

was growing at the national and state level, local

governments began to take action as well. “Starting

with Beacon Hill in Boston in the early 1950s, the in-

terest in creating historic districts and landmarks

16

commissions grew steadily in all parts of the coun-

try.” Heritage, supra, at 10. That interest was further

spurred by the 1965 demolition of New York City’s

Beaux-Arts-style Penn Station, built in 1910—“a

building unmatched in grandeur by any in the coun-

try,” id. at 114. Penn Station’s demolition was a sig-

nificant factor in the adoption of the New York City

landmark law whose application was upheld by this

Court in Penn Central. Now, “[ljocal historic commis-

sions and the regulations that they oversee often

comprise the most important level of government in

historic preservation law.” 3 Salkin, supra, § 27:5; see

id. § 27:6 (describing local preservation programs);

see also Penn Cent., 438 U.S. at 107 & n.1 (noting

that, by 1978, over 500 municipalities had “enacted

laws to encourage or require the preservation of

buildings and areas with historic or aesthetic im-

portance”).

Some municipal preservation laws permit the des-

ignation of specific buildings as landmarks, some fo-

cus on the creation of historic districts encompassing

multiple buildings or even entire neighborhoods, and

many (like New York City’s) do both. See, e.g., N.Y.C.

Admin. Code § 25-301 et seq. Such laws typically in-

clude restrictions on alteration, construction, or dem-

olition that are designed to preserve the building’s, or

district's, historic character, e.g., id. § 25-305, along

with procedures to permit changes that are appropri-

ate for the building or necessary for safety or finan-

cial reasons, e.g., id. §§ 25-306 to -312. Overall, local

preservation laws “demonstrate[] the effectiveness

of ... municipal program[s] that involve[] cooperation

and support from both state governments and the

Federal Government.” Frank B. Gilbert, Landmarks

and City Hall: How Historic Preservation Contributes

to Municipal Government, 11 J. Nat. Resources &

17

Envtl. L. 211, 227 (1996) (lauding local preservation

programs “educational features,” “the accountability

to the public,” and “the involvement of concerned citi-

zens’).

This Court recognized the fundamental legitimacy

of these laws in Berman v. Parker, 348 U.S. 26

(1954), which rejected a constitutional challenge to

the condemnation of a commercial building by the

District of Columbia Redevelopment Land Agency.

See id. at 28-29. The plaintiff argued that “devel-

op[ing] a better balanced, more attractive communi-

ty” in a blighted area was not a valid public use. Id.

at 31. The Court disagreed, explaining that the “con-

cept of the public welfare is broad and inclusive, and

the “values it represents are spiritual as well as phys-

ical, aesthetic as well as monetary. It is within the

power of the legislature to determine that the com-

munity should be beautiful as well as healthy, spa-

cious as well as clean, well-balanced as well as care-

fully patrolled.” Id. at 33. Berman’s holding “is basic

to the present wide acceptance of the preservation of

historic districts by architectural control as a legiti-

mate function of government.” Heritage, supra, at

149.7

— —-.

7 See also City of Santa Fe v. Gamble-Skogmo, Inc., 389 P.2d

13, 18 (N.M. 1964) (citing Berman and holding that regulation of

architecture in Santa Fe’s historic area was permissible); Opin-

ion of the Justices to the Senate, 128 N.E.2d 557, 562 (Mass.

1955) (same, as to creation of historic districts in Nantucket);

Maher v. City of New Orleans, 371 F. Supp. 653, 661 (£.D. La.

1974) (collecting cases “sustain[ing] the validity of architectural

control ordinances as police power regulation, especially when

historic or touristic districts ... are concerned”), aff'd, 516 F.2d

1051 (5th Cir. 1975).

18

C. Penn Central Reaffirmed The Legitima-

cy Of Historic Preservation And Struck

A Successful Balance Between Regula-

tion And Property Rights.

1. The conclusion that historic preservation laws

are permissible exercises of the police power, howev-

er, does not resolve whether the application of such a

law in a particular case constitutes a taking. That

was the question presented in Penn Central. There,

Penn Central Transportation Co., which owned

Grand Central Terminal—‘a magnificent example of

the French beaux-arts style” and “an ingenious engi-

neering solution to the problems presented by urban

railroad stations”—sought to build a fifty-plus-story

office tower in the air space atop the Terminal build-

ing. See 438 U.S. at 115-17. However, the Terminal

had been designated as a landmark under New York

City’s landmark law. Jd. at 115—16. The City’s land-

mark commission denied Penn Central's proposals,

explaining:

The Terminal, in its setting, is a great example

of urban design. Such examples are not so plenti-

ful in New York City that we can afford to lose

any of the few we have. And we must preserve

them in a meaningful way—with alterations and

additions of such character, scale, materials and

mass as will p: tect, enhance and perpetuate the

original design rather than overwhelm it.

Id. at 118. Penn Central then filed suit, alleging an

uncompensated taking. Jd. at 119.

This Court rejected the claim. It began by review-

ing the development of historic preservation laws, ex-

plaining that “[t]hese nationwide legislative efforts

have been precipitated by two concerns”: First, “large

19

numbers of historic structures, landmarks, and areas

have been destroyed without adequate consideration

of either the values represented therein or the possi-

bility of preserving the destroyed properties for use in

economically productive ways.” Jd. at 107—08 (foot-

notes omitted). Second, there is “a widely shared be-

lief that structures with special historic, cultural, or

architectural significance enhance the quality of life

for all.” Id. at 108. Thus, “[h]istoric conservation is

but one aspect of the much larger problem, basically

an environmental one, of enhancing—or perhaps de-

veloping for the first time—the quality of life for peo-

ple.” Id. The Court then explained that New York’s

landmark law “is typical of many urban landmark

laws in that its primary method of achieving its goals

is ... by involving public entities in land-use decisions

affecting [historic] properties and providing services,

standards, controls, and incentives that will encour-

age preservation by private owners and users.” Id. at

109-10, 110—13 (detailing the operation of the law).

The Court next explained that its analysis of

whether a government regulation required compensa-

tion under the Fifth Amendment was necessarily a

case-by-case one, but “several factors ... have particu-

lar significance,” including “the extent to which the

regulation has interfered with distinct investment-

backed expectations” and “the character of the gov-

ernmental action.” Jd. at 124. Turning to the merits

of Penn Central’s claim, the Court noted that it had

“recognized, in a number of settings, that States and

cities may enact land-use restrictions or controls to

enhance the quality of life by preserving the charac-

ter and desirable aesthetic features of a city,” id. at

129 (collecting cases), and observed that there was no

dispute that Penn Central was “capable of earning a

20

reasonable return” from the Terminal regardless of

the landmark law’s restrictions, id.

Penn Central nevertheless contended that the

landmark commission’s denial constituted a taking

because it “deprived [the company] of any gainful use

of the[] ‘air rights’ above the Terminal.” Jd. at 130.

The Court disagreed:

[T]he submission that appellants may establish a

‘taking’ simply by showing that they have been

denied the ability to exploit a property interest

that they heretofore had believed was available

for development is quite simply untenable. ...

“Taking” jurisprudence does not divide a single

parcel into discrete segments and attempt to de-

termine whether rights in a particular segment

have been entirely abrogated. In deciding wheth-

er a particular governmental action has effected

a taking, this Court focuses rather both on the

character of the action and on the nature and ex-

tent of the interference with rights in the parcel

as a whole—here, the city tax block designated

as the “landmark site.”

Id. at 130-31 (emphases added). Because the permit

denial restricted only the development of the air

space above the Terminal, and not the use of the

Terminal itself, it did not result in a taking.

Finally, the Court dispensed with Penn Central's

argument that the landmark law “effect[ed] a ‘taking’

because its operation has significantly diminished the

value of the Terminal site.” Id. at 131. Prior cases

had rejecting takings claims premised on mere “dim-

inution[s] in property value,” and the Court was un-

persuaded by Penn Central’s effort to distinguish

those cases on the ground that landmark laws (unlike

21

zoning or historic-district legislation) “apply only to

selected parcels” and are “inevitably arbitrary or at

least subjective.” Id. at 131-33. The Court pointed

out that the landmark law was neither discriminato-

ry nor arbitrary; instead, it “embodies a comprehen-

sive plan to preserve structures of historic or aesthet-

ic interest wherever they might be found in the city.”

Id. at 132. And the Court concluded that the land-

mark law’s restrictions were not sufficiently severe to

require compensation, because they “not only permit

reasonable beneficial use of the landmark site but al-

so afford appellants opportunities further to enhance

not only the Terminal site proper but also other prop-

erties.” Id. at 136-38.

2. By reaffirming that “States and cities may enact

land-use restrictions or controls to enhance the quali-

ty of life by preserving the character and desirable

aesthetic features of a city,” id. at 129, “Penn Central

settled conclusively that historic preservation ad-

vances ... an important public interest and thus

fall[s] within the police power,” Byrne, supra, at 317.

And the Court’s flexible, fact-specific analysis, fo-

cused on the impact of government regulations on the

“parcel as a whole,” 438 U.S. at 131, has permitted

historic preservation ordinances like New York City’s

landmark law to thrive. “Penn Central was under-

stood at all times to be a crucial constitutional test for

historic landmark protection laws and for historic

preservation as land regulation more generally,” and

thus the Court’s decision “constituted a great victory

for historic preservation.” Byrne, supra, at 314—15.

Most importantly, “it provided courts a basic ap-

proach to regulatory takings claims,” which has al-

lowed “historic preservation law [to] come of age in

many cities, providing a strong and pervasive regula-

22

tory system for knitting together existing buildings

and new development.” Jd. at 315.8

Penn Central has not only produced a doctrinal en-

vironment that has well-served preservation efforts,

but also crafted the incentives for the drafters of his-

toric preservation laws and the regulators who en-

force them. In reliance on the Court’s approach in

Penn Central (and the subsequent cases applying it),

cities and towns have structured their preservation

laws “to find a compromise that preserves the essen-

tials of a historic resource while permitting adapta-

tion for a remunerative use.” Jd. at 330. Under these

regimes, “developers interested in developing land-

marks have an incentive to propose developments

that have some chance of approval,” whereas munici-

palities “have an incentive to approve responsible

proposals, because doing so enhances the political ac-

ceptability of preservation review, eases opposition to

expansion of the system from additional designations,

and allows the municipality to avoid costly and em-

barrassing takings losses.” Jd. at 333. “Historic

preservation law has matured under these conditions

to provide significant control over design and scale for

much urban development.” Id. at 334.

8 That is true not only because the Court set the federal con-

stitutional standard, but also because Penn Central has proven

highly influential in state courts’ interpretations of their own

constitutions. Byrne, supra, at 315; e.g., United Artists Theater

Circuit, Inc. v. City of Phila., 635 A.2d 612, 619 (Pa. 1993) (not-

ing Penn Central's “widespread acceptance” among state high

courts as a reason to follow its analysis).

23

D. Petitioners’ Rule Would Disrupt The

Post-Penn Central Balance And Enable

Property Owners To Manipulate The

Takings Analysis.

1. The Court should not disrupt the balance that

has prevailed in takings jurisprudence since Penn

Central. That balance has permitted historic preser-

vation efforts to thrive while ensuring compensation

to landowners where such measures go too far. To be

sure, Penn Central (and other decisions applying it)

left certain questions unanswered, including the “de-

nominator” question in the “parcel as a whole” in-

quiry. See Keystone Bituminous Coal Assn v.

DeBenedictis, 480 U.S. 470, 497 (1987); Dunes W. Golf

Club, LLC v. Town of Mount Pleasant, 737 S.E.2d

601, 614—15 (S.C. 2013). But, even in the absence of

guidance from this Court on that question, many low-

er courts have maintained the appropriate balance

struck in Penn Central by resolving the “denomina-

tor” issue with “a flexible approach, designed to ac-

count for factual nuances.” Forest Props., Inc. v. Unit-

ed States, 177 F.3d 1360, 1365 (Fed. Cir. 1999); see

also Dist. Intown Props., 198 F.3d at 880 (considering

“the degree of contiguity, the dates of acquisition, the

extent to which the parcel has been treated as a sin-

gle unit, and the extent to which the restricted lots

benefit the unregulated lot”); Ciampitti v. United

States, 22 Cl. Ct. 310, 318-19 (1991) (similar);

LaSalle Natl Bank v. City of Highland Park, 799

N.E.2d 781, 793 (ill. App. Ct. 2003), as modified on

denial of reh’g (Oct. 31, 2003) (similar).®

8 Although the approach applied in these cases differs from

Respondent Wisconsin’s proposed rule, which focuses on a land-

owner's objectively reasonable expectations, see Br. for Re-

spondent State of Wisconsin 27—37, the Trust believes that the

24

These courts attempt to “identify the parcel as real-

istically and fairly as possible, given the entire factu-

al and regulatory environment,” Giovanella v. Con-

servation Comm’n of Ashland, 857 N.E.2d 451, 457

(Mass. 2006) (quoting Ciampitti, 22 Cl. Ct. at 318—

19), in accord with Penn Central's admonition that

the broader takings analysis involves “essentially ad

hoc, factual inquiries,” 438 U.S. at 124. This Court

should likewise decline to adopt a categorical rule (or

an effectively categorical presumption) that would

disrupt the existing balance and depart from the

Court’s prior focus on “the interest in ‘fairness and

justice.” Tahoe-Sierra Pres. Council, Inc. v. Tahoe

Regi Planning Agency, 535 U.S. 302, 342 (2002) (ap-

plying “the familiar Penn Central approach” because

a “new categorical rule” would be “too blunt an in-

strument”); see also Dunes W. Golf Club, 737 S.E.2d

at 616-17 (noting this Court’s practice of “eschewing

a ‘set formula’ for determining when compensation is

due” and suggesting that this “flexibility [could] ex-

tend[] to the process of determining the relevant par-

cel”). This approach not only would be consistent with

the Court’s analysis in prior regulatory takings cases,

but also would recognize that cities, towns, and states

have drafted their historic preservation laws in reli-

ance on the current doctrinal environment. See supra

pp. 21—23. Disrupting that status quo by adopting a

categorical rule of the sort the Court has previously

two approaches will often lead to similar results, as the factors

considered by the lower courts in these cases will also impact

whether a certain expected use is objectively reasonable, cf. id.

at 43-47. In this inquiry, it is the Trust’s view that state law,

while surely relevant, is not dispositive of the federal constitu-

tional question. The point for present purposes, however, is that

the Court should not disrupt settled expectations by departing

too far from the prevailing approach.

25

avoided, see Tahoe-Sierra Pres. Council, 535 U.S. at

342, could upend settled expectations in unpredicta-

ble ways.

2. Adopting a rigid rule (or a strong presumption),

as urged by Petitioners, would also permit landown-

ers to manipulate the takings analysis. The D.C. Cir-

cuit’s decision in District Intown Properties, 198 F.3d

874, aptly illustrate : the importance of the “parcel as

a whole” question in this regard. District Intown in-

volved an apartment complex across Connecticut Av-

enue from the National Zoo. Id. at 876. The apart-

ment building was originally built in 1922,!° with a

large landscaped lawn between the building and

Connecticut Avenue. For several decades, the entire

property occupied one undivided parcel. In 1998,

however, the property owner, District Intown, subdi-

vided the property into nine contiguous lots: one for

the apartment building, and eight parcels that divid-

ed the lawn into roughly even slices. Id. at 877. The

company planned to build a row of townhouses on the

eight lawn parcels, see id., destroying the landscape

and blocking portions of the historic building from

view. At the same time, however, local residents peti-

tioned to designate the entire property as a historic

landmark under the District of Columbia’s historic

preservation laws. Id.; see D.C. Code § 6-1101 et seq.

The petition was granted, and the District denied

construction permits for the townhouses, explaining

that “any construction destroying the lawn’ would be

incompatible with its landmark status.” 198 F.3d at

878.

10S. Cathedral Mansions, History, http://www.southcathedral

mansions.com/history/ (last visited June 15, 2016).

26

District Intown sued the District, claiming an un-

compensated taking. Id. at 876. The district court and

the court of appeals both held that no taking had oc-

curred. The court of appeals recognized that, as in

this case, “[t]he definition of the relevant parcel pro-

foundly influences the outcome of a takings analysis.”

Id. at 880. There, the (ultimately dispositive) ques-

tion was whether “the relevant parcel consistied] of

the property as a whole”—including the apartment

building—or each of “the eight lots for which con-

struction permits were denied.” Jd. at 879. After con-

sidering a number of factors, including that all of the

lots were “spatially and functionally contiguous,” the

court held that the relevant parcel was the property

as a whole. Jd. at 880-82. On that basis, the court

found that no taking had occurred, because the parcel

as a whole was not rendered valueless (as required by

Lucas vy. S.C. Coastal Council, 505 U.S. 1003 (1992))

and the owner could not show a sufficient intrusion

on its economic interests and reasonable investment-

backed expectations (under Penn Centrals ad hoc

test).

District Intown illustrates the risks posed by Peti-

tioners’ position. If the Court were to adopt an iron-

clad rule—or even just a strong presumption, see Pe-

titioners’ Br. 24—29—that the takings denominator is

each separately recorded “parcel,” a landowner in

District Intown’s position would be able to manipu-

late the takings analysis by subdividing existing lots

in an effort to ensure that the portions of their prop-

erty subject to historic preservation laws or other

land use restrictions are “completely taken,” requir-

ing compensation. Cf. Giovanella, 857 N.E.2d at 459

(a flexible approach properly “minimizes the signifi-

cance of lot lines in defining the boundaries of the de-

nominator’).

27

CONCLUSION

Since Penn Central, takings jurisprudence has

struck an appropriate balance between individual

property rights and the historic preservation policies

of state and local governments. The Court should de-

cline Petitioners’ attempt to disrupt this balance with

a categorical rule (or presumption) that contiguously

owned parcels are always analyzed separately for

takings purposes.

Respectfully submitted,

PAUL W. EDMONDSON RYAN C. MORRIS*

ELIZABETH S. MERRITT TOBIAS S. LOSS-EATON

WILLIAM J. COOK SIDLEY AUSTIN LLP

NATIONAL TRUST FOR 1501 K Street, N.W.

HISTORIC PRESERVATION Washington, D.C. 20005

2600 Virginia Ave.N.W. (202) 736-8000

Suite 1100 rmorris@sidley.com

Washington, D.C. 20037

(202) 588-6283

Counsel for Amicus Curiae

National Trust for Historic Preservation

June 17, 2016 * Counsel of Record