The Wall Street Journal

Thursday, June 10, 1993
Letters to the Editor: Landmark Decisions

James Bovard's diatribe ("This Is No Way to Preserve History,"
editorial page, May 13) constitutes a distortion and a disservice to
the thousands of communities working reasonably and successfully to
protect their heritage. Contrary to his outrageous assertion that
preservationists seek to "seize control of millions of American
buildings," most preservationists do not believe that all old
buildings should be saved simply because they are old. Rather,
preserving and using old buildings is an essential part of creating
stable, livable communities for all Americans.

While preservation ordinances do require property owners to
comply with clear procedures before unnecessarily or unwittingly
destroying unique historic, cultural and architectural resources,
they also include economic hardship provisions to ensure that
owners' property rights are not unduly burdened. Even such zealous
guardians of private property rights as Justices Rehnquist and
Scalia agree that landmark laws are a valid exercise of the state's
police power and are fully constitutional.

It is a principle of jurisprudence even older than the
Constitution that an owner must not use his property to damage the
property of another. This reasoning is the basis for zoning laws
that prohibit a neighbor from converting his residentially zoned
property to industrial uses, even if the conversion would bring a
higher economic return. For more than 100 years, up to and including
last year's Lucas decision, the Supreme Court has consistently held
that government regulation that merely diminishes the value of
private property is not a violation of the Fifth Amendment's
"taking" clause or any other provision of the Bill of Rights.

Mr. Bovard claims that preservation laws violate the principle of
church-state separation. But the courts have made it clear that
churches are not exempt from the law by virtue of their religious
activities. They must comply with fire codes, for instance, as well
as landmark protection laws. This is not "trampling the Bill of
Rights" as long as churches are not singled out for any special
treatment because of their religious practices.

Preservation of historic communities helps to stabilize
neighborhoods, reverse urban blight and engender citizen pride in
home and community. In pursuit of these goals, preservationists
sometimes make mistakes. But generalizing from isolated instances of
error or misjudgment to indict the entire preservation movement is
pure demagoguery.

Richard Moe


National Trust for Historic Preservation