J. Peter Byrne

Historic Preservation and its Cultured Despisers: Reflections on the Contemporary Role of Preservation Law in Urban Development

The past years have seen widely noticed critiques of historic preservation by “one of our leading urban economists,” Edward Glaeser, and by star architect Rem Koolhaas. Glaeser, an academic economist specializing in urban development, admits that preservation has value. But he argues in his invigorating book, Triumph of the City, and in a contemporaneous article, Preservation Follies, that historic preservation restricts too much development, raises prices, and undermines the vitality of the cities. Koolhaas is a Pritzker Prize-winning architect and oracular theorist of the relation between architecture and culture. In his New York exhibit, Cronocaos, he argued that preservation lacks an organizing theory, imposes inauthentic consumer-friendly glosses on older structures, and inhibits architectural creativity. Although these critiques are as different as the cultural spaces inhabited by their authors (although both are professors at Harvard), both seemed to strike nerves, suggesting an underlying unease about how large a role preservation has come to play in urban development. This article assesses these critiques as part of an ongoing effort to make sense of historic preservation law.This article proceeds as follows: First, it presents Glaeser’s critique in detail, placing it within the context of his larger argument about what makes cities attractive and dynamic. Grappling with the strengths and weaknesses of Glaeser’s critique leads to a discussion of how preservation regulation actually works and clarification of some of the benefits it confers. Second, this Article will attempt to specify Koolhaas’s critique, connecting it to similar complaints about preservation by more linear thinkers. Weighing objections to the coherence or authenticity of preservation leads to further discussion of the role that preservation plays in the larger culture. This article concludes with a call for future research.

Due Process Land Use Claims after Lingle

The Supreme Court held in Lingle v. Chevron U.S.A., Inc., 125 S. Ct. 2074 (2005), that challenges to the validity of land use regulations for failing to advance governmental interests must be brought under the Due Process Clause, rather than the Takings Clause, and must be evaluated under a deferential standard. In this paper, Professor Byrne analyzes and evaluates the probable course of such judicial review. He concludes that federal courts will resist due process review of land use decisions for good reasons but not always with an adequate doctrinal explanation. He recognizes, however, a role for state courts using due process to provide state level supervision of local land use decisions in the absence of other legislative or administrative checks on local discretion. He argues that such judicial review should focus on decisions reflecting distortions in the local political process.