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Issue

Volume 8, Issue 8 — August 1978

Comment(s)

Historic Preservation and the Takings Issue: Supreme Court Upholds New York City's Landmarks Law

In a decision anxiously awaited by advocates of historic preservation and land use planners, the Supreme Court on June 26 upheld the consituationality of both New York City's Landmarks Preservation Law and the city's refusal under it to permit construction of a 50-story office building above Grand Central Terminal. The Court's ruling in Penn Central Transportation Co. v. New York City1 establishes that the imposition of developmental restrictions on individual parels of private property for the purpose of preserving buildings of historic interest lies within a municipality's police power and that "takings" challenges to such actions are to be evaluated under the legal tests traditionally applied to disputed zoning measures. By holding that historic preservation measures are analogous to traditional zoning actions rather than to governmental appropriations of private property for public use, the Court laid to rest a ghost that has deterred many municipalities which have historic preservation statutes from designating buildings as historic structures or landmarks under them.

In addition to its validation of a city's power to impose developmental restrictions on property in order to preserve historic buildings without necessarily having to compensate the owner for whatever diminution in value this action causes, the Court's opinion also indicates a hospitable attitude toward the use of transferable development rights (TDRs) as a mechanism for mitigating the economic impact of such measures on property owners.

Supreme Court Protects Snail Darter From TVA; Congress Poised to Weaken Endangered Species Act

The United States Supreme Court's recent decision to affirm an injunction preventing completion of the Tellico Dam is a classic example of judicial adherence to strict statutory construction. In Tennessee Valley Authority v. Hill,1 the High Court read the Endangered Species Act2 to require that the $100 million federal project to stopped because it would extinguish the endangered snail darter, a small fish found only in that of the Little Tennessee River to be flooded by the dam. The decision may prove a Pyrrhic victory for environmentalists, however, for it has renewed congressional efforts to amend the Act and thereby weaken the national commitment to strong environmental protection that the law embodies.

Supreme Court Voids New Jersey Ban on Waste Importation

On June 23, the United States Supreme Court, in Philadelphia v. New Jersey,1 struck down a 1974 New Jersey statute which prohibited liquid and solid waste from being transported into the state for disposal. The statute,2 designed to protect the state's rapidly diminishing landfill sites and at the same time reduce the environmental threat posed by the treatment and disposal in New Jersey of waste collected elsewhere, was declared to be an unconstitutional burden on the flow of interstate commerce.

Judges as Statesmen: U.S. Supreme Court Jumps Standing Hurdles to Uphold Price-Anderson Act

Among the flurry of decisions climaxing the last two weeks of its 1978 term, the United States Supreme Court in Duke Power Co. v. Carolina Environmental Study Group, Inc.1 affirmed the constitutionality of the Price-Anderson Act,2 which limits private liability for accidents resulting from the operation of federally licensed nuclear power plants. The Court reversed a district court's declaration that the Act was unconstitutional and void,3 finding no support for the conclusion that the Act deprived plaintiffs, a group residing in the vicinity of the defendant's4 nuclear reactor, of their Fifth Amendment rights to due process and equal protection.

In one sense, the opinion may be significant less for the actual result reached than for the road not taken: had the Act been voided, the effect might have been to add the last straw to the back of the beleaguered nuclear industry. Industry spokesmen have asserted for 20 years that without a limitation on liability for catastrophic accidents private development of nuclear energy could not survive.5 On the other hand, there is legal significance in the mere fact that the Court found plaintiffs to have standing to bring the suit. The intricate factual setting of the case required the majority to travel a lengthy and circuitous route through the foundations of the modern law of standing and federal jurisdiction in order to reach the merits. In so doing, the Court found avenues around its prior standing decisions which were not previously apparent.