Can the Act of Designating a Property as a Historical Landmark Qualify as a Taking?

An interesting battle is raging in the Santa Ynez Valley.  Mattei's Tavern, a "landmark" in Los Olivos for more than 100 years, is slated for a redevelopment plan by its owner.  A local activist group, known as the Valley Alliance, wants to stop the owner's plans.  And one arrow in their quiver has been to nominate the tavern for listing as a historical landmark. 

According to an April 29 article by Kathy Cleary in the Santa Ynez Valley Journal Valley Alliance Historic Landmark Nomination:  Eminent Domain Takeover?, the purpose of the nomination is to give the Historic Landmark Advisory Commission (HLAC) the power to approve (or deny) plans to alter the building.  And (at least according to Ms. Cleary), at least one member of the HLAC has expressed sympathy with the Valley Alliance's goal of stopping the owner's plans. 

What does this have to do with eminent domain?  Maybe nothing.  But the possible designation and assertion of control by the HLAC raises the specter of a regulatory takings claim pursuant to the Supreme Court's seminal decision in Penn Central Transportation Co. v. New York City, 438 U.S. 104 (1978).  That decision established a key, three-part test for analyzing regulatory takings claims: the economic impact of the regulation on the claimant; the extent to which the regulation has interfered with investment-backed expectations; and the character of the governmental action.  

If the owner can prove that the designation and, more particularly, the level of control the designation might place in the hands of the HLAC, meets the three-part Penn Central test, a court may hold that the act constitutes a compensable taking of the owner's property.  Indeed, deciding whether restraints imposed by designation as a historical landmark was the whole point of the Penn Central case (though the court ultimately found that the designation at issue there did not meet the very test established by the case). 

That the owner might assert a claim under Penn Central if the HLAC accepts the property's nomination has not been lost on government officials.  According to Ms. Cleary:

County Counsel has said that decisions on historic landmarking of property without the owners’ consent will be considered in light of the Penn Central eminent domain case.

What happens next?  At the owner's request, the HLAC continued the April 12 hearing on the nomination to its May 10 meeting.  In the meantime, the owner appears to be moving forward with its plans, which are described in more detail in a February 10 article in the Lompoc Record, Debate rages over Mattei’s Tavern future, and a January 19 article in the Santa Ynez Valley News, Landmark protection sought for Mattei’s Tavern,  

Finally, if you're looking for more about the building's history, take a look at a 1974 pamphlet, Mattei's Tavern.

  • Rick E. Rayl

    Rick Rayl is an experienced litigator on a broad range of complex civil litigation issues.  His practice is concentrated primarily on eminent domain, inverse condemnation, and other real-estate-valuation disputes.  His public ...

California Eminent Domain Report is a one-stop resource for everything new and noteworthy in eminent domain. We cover all aspects of eminent domain, including condemnation, inverse condemnation and regulatory takings. We also keep track of current cases, project announcements, budget issues, legislative reform efforts and report on all major eminent domain conferences and seminars in the Western United States.

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