The Due Process Issue In Zoning For Historic Preservation PDF Download

Historic preservation and urban renewal are often thought to be polar opposites. Where one seeks to preserve, the other generally seeks to destroy in order to rebuild. While the programs appear on the surface to be in opposition, this Thesis seeks to demonstrate that there is a fundamental connection between the underlying legal principles of historic zoning and urban renewal. To that end, the jurisprudence involving historic zoning and aesthetic regulations before and after the seminal urban renewal case of Berman v. Parker has been collected and analyzed. This analysis revealed that courts were hesitant to support aesthetic, and by extension would have been unlikely to support historic zoning, prior to the Supreme Court's validation of urban renewal programs in Berman. For example, in 1949 the Supreme Court of Massachusetts stated that specifically stated that a zoning regulation cannot be enacted solely to preserve the beauty of a community. In Berman, however, the United States Supreme Court justified urban renewal on the basis that governments should be able to condemn and regulate property for the creation of a more attractive community. An analysis of the jurisprudence following Berman indicated that courts were more likely to uphold aesthetic or historic zoning ordinances. For example, in a 1955 opinion, the Supreme Court of Massachusetts cited Berman and stated that, because construction of aesthetically or historically incompatible structures could destroy the historic character of a town, historic zoning ordinances fell within the scope of the police power. In short, the cases identified by this Thesis ultimately indicated that Berman had an impact on the acceptance of aesthetic and historic zoning. Therefore, they suggest that the programs of historic zoning and urban renewal, while seemingly in opposition, share fundamental legal roots.