Preservation's Supreme Authority

PAUL GOLDBERGER


Editor's Note: This article was originally published on September16, 1990, in The New York Times. Copyright 1990 by The New York Times Company. Reprinted by permission.

Mention the name William J. Brennan, Jr. to a legal scholar, and you are likely to hear encomiums for the retiring Supreme Court Justice's reputation as one of the century's great defenders of individual liberties. Justice Brennan was the intellectual anchor of the Warren Court, the activist who merged an idealistic outlook with a rigorous respect for the Constitution.

But there was another part of Justice Brennan's legacy, one that may turn out to have every bit as much effect on American society as his decisions on civil liberties. Justice Brennan had more impact on the look and feel of the American landscape than any other Justice of the Supreme Court--perhaps more than any architect, city planner, or public official. On issues ranging from whether a community was within its rights to ban billboards to whether it was fair for a town to create zoning that had the effect of excluding certain minority groups, Justice Brennan was in the forefront. Throughout his long career, he made the questions of how land could be used, and how the rights of private property owners could be balanced against the public good, a constant theme.

There are many important Brennan decisions on land use, but none so celebrated as his 1978 decision in Penn Central Transportation Co. v. New York City--better known as the Grand Central case, in which the Supreme Court upheld for the first time the principle on which landmark preservation laws are based. When a city declares a building like Grand Central to be a landmark, Justice Brennan declared, it is acting for the public good. The burden that landmark designation places on an owner must be balanced against the public benefits that can come from saving a building like Grand Central Terminal.

The case goes back to the attempt by Penn Central, the bankrupt railroad that was (and still is) the terminal's owner, to make more money from the structure by putting a 55-story office building designed by Marcel Breuer on its roof. The plan was roundly rejected by the New York City Landmarks Preservation Commission, which called the design "nothing more than an esthetic joke."

Penn Central promptly sued, and the New York State Supreme Court decided in favor of the railroad. That court believed that the tradeoff didn't work--that in designating Grand Central an official landmark, the city had so diminished the potential of Penn Central to profit from the structure that it amounted to a virtual taking of private property without compensation. State appellate courts disagreed, but the railroad pressed on to the Supreme Court. Advocates of landmark preservation were equally eager to have the Supreme Court settle the matter: the preservation movement, which had been gaining steam rapidly through the 1960s and 1970s, had never had its underlying principles tested in the arena of the Supreme Court, and preservationists felt that in Grand Central they had found as strong a case as they would ever come up with.

After all, if Grand Central Terminal was not a landmark, what was? And given that New York City had allowed Penn Central the option of selling off the air rights above the terminal to adjacent sites, the company's suggestion that its financial hands were tied by landmark designation could well be called into question. Penn Central could obviously make money from Grand Central: just not as much as if the Breuer building were built.

Justice Brennan agreed. His opinion brilliantly balances esthetic and political concerns, never losing sight of the overriding presence of the Constitution, which keeps his work on course like a gyroscope. Justice Brennan did not attempt to evolve a simple formula for testing whether a community had been excessive, and therefore illegal, in its application of landmarks laws; it was not in his nature to apply simplistic tests. Instead, he looked to the particulars of the Grand Central case, examining this history of New York City's landmarks law and the saga of Grand Central Terminal in detail, and analyzing them so eloquently that a principle emerged, subtly but firmly, from his words.

If that principle could be summarized, it would be this: a community has the right to declare that certain important pieces of private property have a public role to play, so long as it safeguards the rights of the owners of those properties. Private property rights are not absolute--but a community must show the real public benefit, as well as the inherent fairness, of a restriction like landmark designation for the restriction to be legal. The real goal is to achieve a balance between the public good and the private right, a balance that maybe different in each case.

It is hard not to come back again and again to the idea of balance, of equilibrium, in Justice Brennan's thinking in all his land-use decisions-

-in those involving a community's right to use zoning laws to ban certain kinds of buildings, to restrict the size and types of housing lots, to make esthetic judgments about what kinds of new buildings can be built, or to determine who can occupy housing within its borders. In their book Landmark Justice, which thoughtfully and sensitively analyzes Justice Brennan's contributions in the area of land use, Charles Haar and Jerold S. Kayden said this of the Justice's opinions: "In his careful balancing of interests, thoroughly explained and justified for all to see, a hallmark of a civilized democracy is magnified." They called Justice Brennan "a humane jurist, frequently imbuing the U.S. Constitution's vision for a just and free society in ideas and language transcending technical legal prose."

So it should come as no surprise that for all his careful analysis of the financial options presented to Penn Central in the Grand Central situation, Justice Brennan in his opinion also made some more sweeping observations: "In recent years large numbers of historic structures, landmarks and areas have been destroyed without adequate consideration of either the values represented therein or the possibility of preserving the destroyed properties for use in economically productive ways." He wrote approvingly of the "widely shared belief that structures with special historic, cultural or architectural significance enhance the quality of life for all."

The Grand Central decision had the effect of upholding not only New York's trailblazing landmarks laws but also literally hundreds of similar efforts in communities around the country. Yet it would be a mistake to think of Justice Brennan as in any way cool or indifferent to the rights of property owners. In another of his famous land-use cases, his 1981 dissent in San Diego Gas & Electric Co. v. The City of San Diego, he took a much more sympathetic attitude toward property owners than many of his fellow Justices. He argued that the Constitution required that communities compensate property owners when certain regulations placed on their properties, even if otherwise reasonable, were nonetheless so restrictive as to amount to a taking of the property.

"If a policeman must know the Constitution, why not a planner?" Justice Brennan asked.

There is no better reminder of Justice Brennan's wisdom.