Own property in a historic district? We want to talk to you!

By Dave Hunnicutt
Oregon Property Owners Association

If you own a home or business in a historic district in Oregon, we’d like to talk to you.

Oregon’s planning laws allow cities and counties to designate areas within the city and county as historic districts. Property owners with homes or businesses in those districts are often subject to land use regulations that significantly limit what the owner can do with their home or business, including requirements that the owner maintain the exterior of the building in a certain style, so that the building looks “historical”.

The worst part of many of the local regulations is that homes or businesses in historic districts are often regulated regardless of whether they have any historic value at all. The cities are indiscriminate in forming their districts, including properties that have no historical value.

It’s time to revisit the Regulatory Takings doctrine.

The United States Supreme Court has addressed the constitutionality of historic districts and ruled that most regulations imposed by state or local governments do not give rise to a requirement to compensate the property owner under the Takings Clause of the Fifth Amendment to the Constitution. But the decision making that holding (Penn Central Transp. Co. v. New York City) is 45 years old and was made during a much different era of the Court. No member of the current Court served on the Court at the that time.

In fact, the Penn Central decision was a 6-3 decision with a very strong dissent from Justice William Rehnquist. Justice Rehnquist, who would later become Chief Justice of the Court, raised many points that the Court has subsequently adopted over the years as part of its majority opinions. That means that it’s time for the Court to revisit its holding in Penn Central.

But that won’t happen unless the Court is given that opportunity. This means they need to have a case in front of them that presents facts allowing them to reconsider their decision. That’s where you come in.

The OPOA Legal Center has appeared before the US Supreme Court – better yet, we’ve won! We’re ready to do so again.

If you own property in a historic district in Oregon, please give us a call. We’re looking for the right facts and right local regulations to allow us to get your case to the Supreme Court. With your help, we may be able to get the Court to change Penn Central and provide significantly greater protection for private property owners across the United States.

Over a century ago, Justice Oliver Wendell Holmes wrote for the Court: “We are in danger of forgetting that a strong public desire to improve the public condition is not enough to warrant achieving the desire by a shorter cut than the constitutional way of paying for the change.” Pennsylvania Coal Co. v. Mahon, 260 US 393 (1922).

Historic overlay zoning is a perfect example of the type of regulation Justice Holmes was writing about. We need to give the Court another opportunity to adopt his words. Can you help? You can reach us at 503-620-0258 or [email protected].

The opinions expressed in this post are those of the author and do not represent the opinions or positions of any party represented by the OPOA Legal Center on any particular matter.