Public Use Versus Eminent Domain

The concept of public use, while initially a great concept, has deteriorated to bureaucratic debacles. Progressive thought, especially from the 1920s has inadvertently provided governments (local, state and federal) with powers that can be manipulated for the good or the detriment of the people these laws were written to help. It is dependent upon the outlook, interpretation, and ideology of those enforcing or citing these laws. The initial concept of the laws were good, while the unseen consequences have been mixed. While trying to maintain an order and preservation of historic sites, sometimes the bigger picture is completely overlooked.

The concept of eminent domain has been abused by politicians and developers alike. The designation of certain properties and sites as historic resources has also come into question due to the underlying ideology and motive of those involved in fighting for or against such designations. What constitutes a historic designation? Does the fact that the building is over a certain age deem it historic alone? Should there not be some significant event tied to the property or the site if it 50 years or older before it can be deemed appropriate?

The federal government was forced to step in and set up standards to preserve certain areas, sites and buildings to keep them from being destroyed. They also helped organize funding to aid in defraying expenses incurred in restoring and preserving these historic monuments. This was done through standards set forth and encouraged to be adopted by state and local governments to preserve these sites. Most individuals were not able financially to preserve or rehabilitate historic site, nor did they have the knowledge of what they had to do and avoid. Through the laws of 1906 through present day, the federal government has been able to help state and municipal governments understand and direct restoration, preservation and conservation of these various sites.

While some states were ahead of the federal government, in their pursuit to maintain historic sites, most were not and had to be guided by standards to which everyone could adhere. Tax laws have been implemented to encourage preservation initiatives, which has helped many individuals wanting to preserve the past.

The concept of public use has changed drastically through its inception to present day. In many instances this has been for the good, but as with a blanket coverage, instances can be cited to show this can be abusive, as was the case of Kelo versus the City of New London (Connecticut). It was ruled appropriate for the government to use eminent domain to seize land from a private owner for the sale to a private developer, as the government claimed this would increase the tax base of the town. The proof in this particular instance has not yet born out and a family’s property was inappropriately seized – not for the sake of the community, but for the sake of the developer.

Other instances have arisen, such as St. Bartholomew’s Church in New York City, whose congregation applied to construct a high-rise office tower on property they owned, in order to provide an income to handle expenses of the church. The ruling of the New York City Landmark’s Preservation Commission was to deny such a building permit because of its inappropriate scale. The church, designated a historic landmark in 1967, wanted to build a 57 story office complex with a reflective glass façade to provide an income that would fund various church projects including the restoration and maintenance of the church. While it is agreed that this 57 story building would be inappropriate for such a site, there was no alternative offered by either side. The public use concept was appropriately incorporated in the denial of this permit.

The concept of public use has changed greatly throughout the years and though there have been some major hiccups along the way, for the most part the laws and organizations formed have helped historic preservation move forward. There is no absolute ruling with regards to preservation, it is a case by case situation, and every case must be explored and reviewed before any headway is given. The good thing about having previous cases, laws and ruled of enforcement is that we can learn and draw from them as preservation advances and learn how to work with them or challenge them when necessary.