The Legal Framework for Historic Preservation Law: The Big Picture

1. The Legal Framework for Historic Preservation Law: The Big Picture Georgia Historic Preservation (HPC) Training Columbus, Georgia November 4, 2016 Melvin B. Hill, Jr., Esq.

2. Chicken coops • Funeral homes • Rendering plants • Sexy Suz’ Lingerie Why Planning?

3. Why Historic Preservation?

4. We will never bring disgrace on this our City, by an act of dishonesty or cowardice. We will fight for the ideals and Sacred Things of the City, both alone and with many. We will revere and obey the City’s laws and will do our best to incite a like reverence and respect in those above us who are prone to annul them or set them at naught. We will strive increasingly to quicken the public’s sense of civic duty. Thus in all these ways we will transmit this City not only not less, but greater and more beautiful than it was transmitted to us. The Athenian Oath(taken by the youth of ancient Athens when they reached the age of 17)

5. Leave me alone! • Get off my back! • “Live Free or Die” Values Americans Share(generally!)

6. A presumption of freedom

7. Key Constitutional Protections

8. Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. U.S. Constitution:First Amendment

9. 5th Amendment “No person shall be . . . deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.” 14th Amendment “. . . Nor shall any state deprive any person of life, liberty, or property without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” U.S. Constitution:5th and 14th Amendments

10. 10th Amendment “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” U.S. Constitution:10th Amendment James Madison

11. The importance of contracts and the freedom of association

12. U. S. ConstitutionArticle I, Section 10 “No state shall …pass any bill of attainder, ex post facto law, or law impairing the obligation of contracts …”

13. The Institutional Framework for Preserving these Values and Rights

16. Article I. Section I. Paragraph I. Life, liberty, and property. No person shall be deprived of life, liberty, or property except by due process of law. Paragraph II.Protection to person and property;equal protection. Protection to person and property is the paramount duty of government and shall be impartial and complete. No person shall be denied the equal protection of the laws Georgia Constitution

17. Section III. Paragraph I. Eminent domain. (a) . . . private property shall not be taken or damaged for public purposes without just and adequate compensation being first paid. Georgia Constitution, cont’d

20. The authority reserved to the states by the Tenth Amendment and, in turn, delegated to local governments, that enables states to regulate the activity of the individual, particularly in his or her use of property. • Examples include: public health and building regulations, zoning ordinances, subdivision regulations, sign ordinances, traffic laws, and environmental controls. Police Power

21. This power may be exercised,provided it : • is intended for the public good; • is not aimed to affect only one individual or only one parcel of land; • is not clearly arbitrary and unreasonable; and • has a reasonable relation to the public health, safety, morals, peace and quiet or general welfare. Police Power

22. Eminent Domain • The legal process by which a public body (and certain private bodies) are given the legal power to acquire private property for a use that has been declared to be public by constitution, statute or ordinance Takings

23. The court has interpreted "public use" to include not only such traditional projects as bridges or highways but also slum clearance and land redistribution. Justice Stephens concluded that a "public purpose" such as creating jobs in a depressed city can also satisfy the Fifth Amendment. • The court should not "second-guess" local governments, Stevens added, noting that "[p]romoting economic development is a traditional and long accepted function of government." Kelo v. City of New London Eminent Domain and the U.S. Supreme Court Suzette Kelo

24. Regulatory Taking “The general rule, is that while property may be regulated to a certain extent, if regulation goes too far it will be recognized as a taking. Pennsylvania Coal Co. v. Mahon (1922)Justice Oliver Wendell Holmes Takings

25. “Government hardly could go on if to some extent values incident to property could not be diminished without paying for every such change in the general law. As long recognized, some values are enjoyed under an implied limitation and must yield to the police power.” Pennsylvania Coal Co. v. Mahon (1922) Takings

26. “In 70-odd years [since Mahon], we have generally eschewed any set formula for determining how far is too far, preferring to engage in essentially ad hoc, factual inquiries.” Lucas v. South Carolina Coastal Council How Far Is Too Far? Photo by William A. Fischel

27. Penn Central is the controlling U.S. Supreme Court case for analyzing takings claims. • Communities have the authority to adopt laws and regulations that are designed to protect and enhance the quality of life of their citizens Penn Central Transportation Co.v. New York (1978)

28. The regulation of private property will not constitute a taking, as long as the regulation advances a legitimate governmental interest and the property owner retains some viable use of the property • Property owners may not 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.” Penn Central

29. The economic impact of the regulation on the property; • The extent to which the regulation interferes with distinct legitimate, investment-backed expectations; • The character of the government action—does it result in the equivalent of a physical invasion of the property or is it more a “public program adjusting the benefits and burdens of economic life to promote the common good.”   Penn Central’s 3-Pronged Taking Analysis

30. The application of an ordinance “does not exceed the police power simply because it restricts the use of property, diminishes the value of property, or imposes costs in connection with the property.” Gradous v. Bd. Of Commrs. 256 Ga. 469 (1986) Parking Assn of GA264 Ga.764 (1994) What is “detriment”?

31. Substantive Due Process • Regulation is unconstitutional if it is arbitrary and unreasonable and has no substantial relationship to the public health, safety, morals, or general welfare. (Village of Euclid v. Ambler Realty) • But a land use ordinance is presumed valid without clear and convincing evidence that it violates this principle. Due Process

32. “If the board’s decision is unwise but does not violate substantive due process, plaintiff’s remedy lies in the political arena; simply put, if unhappy, plaintiffs may campaign to throws the rascals out.” The People ex rel. Klaeren v. The Village of Lisle, 316 Ill. App. 3d 770, 786 (2000)

33. “The history of liberty has largely been the history of the observance of procedural safeguards.” Justice Felix Frankfurter McNabb v. United States Procedural Due Process

34. Government Proceedings Must Be: • orderly • fundamentally fair • judicious • impartial What Process is Due?

35. Requirements found in state enabling laws and in local zoning, subdivision and preservation ordinances • Notice to property owner/applicant, neighbors, general public • Failure to comply may invalidate actions Adequate Notice

36. Commission members must be free from conflicts of interest and bias • Financial • Other interests • Consequences: • Invalidation of Actions • Lack of confidence in Commission Unbiased Decision Maker

37. All parties must be allowed a fair and reasonable opportunity to present arguments and evidence supporting their positions • Reasonable time restrictions • Rebuttal of others’ arguments and evidence • Cross-examination may be required Opportunity to Be Heard

38. Outside the public hearing process • With a party involved or potentially involved in a matter before your commission • Reveal inadvertent ex-parte contacts before you vote • Open meetings law Ex-Parte Contacts

39. Procedural due process means notice and an opportunity for affected parties to be heard. • The purpose of the hearing is to permit interested persons to furnish information that will assist the board in deciding whether a variance should be granted. • To that end, the chairperson may conduct the hearing informally; strict adherence to the rules of evidence is not required. The goal is a fair hearing. Jackson v. Spalding Co. 265 Ga. 792, 462 S.E.2d 361(1995). Procedural Due Process in Georgia

40. Decisions made in a reasonable time in light of substantial financial and personal capital expended by all sides • Within time limits of enabling legislation and local ordinances Prompt Decision Making

41. Prohibits discrimination in application of laws • Similarly situated property should be treated similarly under the law • Different treatment of similar property will be upheld if reasonable grounds exist for the disparity. Equal Protection

42. Can decisions of the preservation commission be appealed? Yes. The Georgia Historic Preservation Act (§ 44-10-28) provides that: “Any person adversely affected by any determination made by the commission relative to the issuance or denial of a certificate of appropriateness may appeal such determination to the governing body of the county or municipality in whose historic preservation jurisdiction the property in question is located;” Appeals

43. What action can the governing body take? “. . . such governing body may approve, modify, and approve or reject the determination made by the commission . . .” They may also remand the matter to the preservation commission with further instructions. Appeals

44. Can the governing body overrule the preservation commission just because they don’t like the decision? No. They may take action only “if the governing body finds the COMMISSION ABUSED ITS DISCRETION in reaching its decision.”

45. Abuse of discretion is more than just substituting the judgment of the governing body for that of the preservation commission. • The preservation commission’s determination should only be overturned if it is arbitrary, unjustifiable, or clearly unreasonable. • Preservation commissions are given discretion by the Historic Preservation Act so they can make fair decisions in a specific case instead of being locked into a formula that may not suit every situation. That is also why commission members should have expertise in historic preservation. Abuse of Discretion

46. They look at the RECORD of the case before the preservation commission including the commission’s findings and decision. An abuse of discretion can be found where the record contains no evidence to support the decision of the preservation commission. While the decision, by law, was left to the preservation commission in the first place, that discretion must be exercised fairly and impartially or it may be reversed. Determining Abuse of Discretion