Chapter Four

A Little Law for the Layperson
(from Grassroots Historic Preservation, Written by Anita P. Miller, Attorney at Law, for the New Mexico Historic Preservation Division)

• Private Property Rights
• Procedural Due Process
• Substantive Due Process
• Equal Protection
• Freedom of Speech
• Freedomof Religion
• Appeals of Local Government Land Use Decisions

Private Property Rights

When government regulation deprives a landowner of all economically viable use of his or her land, it is a "taking" and requires payment of compensation to the owner under the Fifth Amendment of the US Constitution and Article II, Section 20 of the NM Constitution. The Fifth Amendment also prohibits the federal government from "depriving any person of life, liberty or property" without due process of law. The Fourteenth Amendment extends this prohibition to the States: "Nor shall any state deprive any person of life, liberty or property without due process of the law." Since local governments are created by the state, the Fourteenth Amendment applies to them as well. A "due process" clause is also included in the NM Constitution (Article II, Section 18).

Procedural Due Process

Government must follow certain procedures when it enforces a police power such as the regulation of property, which includes historic preservation.

Most historic preservation ordinances involve some limitation of private property use. For example, to renovate a building locally designated as a landmark, the owner must obtain a certificate of appropriateness from a local historic preservation commission. Whether or not the certificate is obtained will have an impact on the owner's use of the property and thus affect private property rights. A local ordinance might also require maintenance of the property.

Whenever a historic review board makes a decision to apply a specific regulation to an individual piece of property or historic district, it must comply with the following procedures:

1. Notice
   Notice must be given to the affected property owner and others that a public hearing will be held concerning the actions proposed by the government concerning the property. The notice must be in writing and published in a newspaper of record. It may also have to be sent to affected property owners.

   The notice requirements for historic preservation by local NM governments are governed by NMSA 1978 (Section 3-21-6 (B), 1965) of the State's Zoning Enabling Act. The notice must be published within 15 days of the scheduled hearing. There must also be notification by mail of the owner and other property owners within a specific distance of the subject property. Municipalities and counties may enact more extensive notice requirements, such as requiring that a sign be posted on the property for which a decision is being made, and requiring that notice be given to more people than required by the state law.

2. Public Hearing
   Affected property owners must have the right to be heard before the decision making body in a public meeting, which has been subject to notice as described above, also pursuant to Section 3-21-6 (B).
3. Sworn Witnesses
   Witnesses before a legislative or administrative hearing must swear to tell the truth, and are considered to be "under oath," just like in a courtroom.
4. Right to Cross Examine Witnesses
   A person appearing before a legislative or administrative hearing has the right to cross examine witnesses who oppose his position.
5. Findings of Fact
   Due process requires that the decision-making body in government make written findings, giving the reasons why it has made its decision after evidence at a public hearing. These findings must be based on a record of the evidence submitted. Usually the record is made by tape recording. In some communities, only summary minutes are kept. Often persons appearing before a quasi-judicial body will bring a court reporter to record the meeting, to ensure that there is an accurate record.

   A court may reverse a governing body decision if no findings were made or if it determines the findings were inadequate, based on the evidence presented at the hearing. Usually, however, the court will send the case back to the decision-making body requesting that it make written findings, which can then be appealed again by the losing party.

6. Unbiased Decision
   To assure that a quasi-judicial decision is unbiased, individual members of the body hearing the case should not be contacted by any of the parties. Such individual contact is called "ex parte." If ex parte contact has occurred, then the decision-maker contacted has an obligation to make a written record of the contact and put it into the record of the proceeding. Of course, it is permissible for an applicant to do a "show and tell" presentation before the entire decision making body, taking them to the site in question.

   If due process has not been followed, a decision may be reversed when the losing party appeals the case to court. For a detailed discussion of Procedural Due Process, see Bradford White and Paul W. Edmondson, Procedural Due Process in Plain English (Washington: National Trust For Historic Preservation, 1994).

Substantive Due Process
Although local governments have the authority to regulate the health, safety and general welfare—their police powers, there are limits to such authority. Most land use regulatory laws and ordinances actually say that their purpose is to "protect the public health, morals or safety." If an ordinance or regulation has no real or substantial relation to those purposes, or is an invasion of a property owner's rights, the court can invalidate the law, determining it to be a violation of "substantive due process."

To make a substantive due process claim, the federal courts have generally required that a property owner have an "entitlement." Thus the owner must show that all requirements of a law, ordinance or regulation have been met, but approval has still been denied.

Equal Protection
The Fourteenth Amendment to the US Constitution provides that "no state shall . . . deny to any person within its jurisdiction equal protection of the laws." This amendment was originally intended to protect the rights of the freed slaves after the Civil War, but Congress wrote it to cover the rights of all persons. The federal government is also held to the same standard of equal protection as state governments.

A historic preservation ordinance could be challenged on the ground that it violates equal protection, because it may not allow the owner of a designated historic property to renovate the property in the same manner as the owner of a non-historic property. Unless the ordinance infringes on a fundamental right, such as freedom of religion or speech, or is based on a suspect class, such as race, the government need only show that there is a rational relationship between the classification and a legitimate governmental objective, and the rational relationship need not be a strict one.

Freedom of Speech
The First Amendment to the US Constitution protects "freedom of speech." The Supreme Court has determined that this guarantee protects forms of activity that communicate a message, such as books and newspapers, as well as signs, and some types of artistic expression, including design, painting and sculpture as well as drama and dance. Some speech is not protected, such as defamation of character, obscenity and inciting to riot. Even protected speech may be regulated as to time, place, and manner if the government has a legitimate reason for doing so (Hudgens v. NLRB, 424 U.S. 507, 520 [1976]).

Freedom of speech becomes a historic preservation issue when architecture, as a form of expressive speech, is regulated. When courts determine whether protected speech is being unconstitutionally restricted or denied, they balance the interests of the speaker against the interest of the government. Historic preservation is a valid government objective, while freedom of speech is a guaranteed right. As long as the regulation addresses the time, place and manner of presentation of the speech, it will usually be upheld. Most historic preservation ordinances restrict construction, alteration and demolition in defined districts. If the architect can find unrestricted expression elsewhere in the community, the architectural restrictions in the historic district will most likely be upheld.

Freedom of Religion
The First Amendment of the US Constitution also prohibits Congress from making any law "respecting the establishment of religion, or prohibiting the free exercise thereof." The NM Constitution contains an equivalent provision at Article II, Section 11.

The First Amendment clauses relating to religion are known as the "Establishment" and "Free Exercise" clauses. Since Spanish missionaries followed the Conquistadors to New Mexico in the l6th century, their churches are among the earliest and most significant historic structures in the State. Historic preservation of churches sometimes comes into conflict with freedom of religion when local historic preservation ordinances, which may restrict how renovation may be done or prohibit demolition, conflict with the wishes of a congregation as to the expansion, design or use of the church premises.

In recent years, many courts found that designating a church as a historic landmark violated the First Amendment right to free exercise of religion. For example, the Supreme Court of the State of Washington upheld the designation of a church as a historic landmark, but prohibited enforcement of preservation regulations until the building was no longer used primarily for religious purposes (First United Methodist Church v. Seattle Landmarks Preservation Board, 887 P. 2d 473 [Wash. 1995]). The Washington Supreme Court also found that designating the exterior of a church as a historic landmark violated its state constitution (First Covenant Church v. City of Seattle, 787 P. 2d 1252 [Wash. 1990]). The Massachusetts Supreme Court had no objection to the designation of the exterior of a church as a historic landmark, but found that the application of a historic preservation ordinance to the interior of the church violated free exercise of religion (Society of Jesus v. Boston Landmarks Commission, 564 N.E. 2d 571 [Mass. 1990]). The less impact a regulation has on the actual practice of a religion, the more likely it is to be upheld, as long as the intent of the regulation is not to inhibit religion.

In New York City, the officials of a church in a high rent commercial area, which had been designated a historic landmark, wanted to demolish the church's community building, replacing it with a skyscraper office building. They justified the proposed demolition by saying that the congregation had dwindled, and that the church no longer had the financial resources to conduct its charitable activities, which were part of its religious mission. It therefore needed to replace the community building with an office building to obtain needed revenue. The U.S. District Court for the Southern District of New York refused to allow the demolition, stating that the designation of a religious facility as a landmark "creates no more than an incidental burden on the practice of religion that does not require the state to come forward with a compelling reason justifying its action" (Rectors, Wardens and Members of the Vestry of St. Bartholomew's Church v. City of New York, 728 F. Supp. 958, 963)[SDNY 1989], affirmed 914 F.2d 348 [2d Cir. 1990]).

Soon after the St. Bartholomew opinion, the US Supreme Court issued an opinion which reinforced the application of historic preservation ordinances to church buildings, even though it had nothing to do with either historic preservation or church buildings. In Employment Division of Oregon v. Smith, 494 U.S. 872 (1990), the Supreme Court strengthened the principle that "neutral laws of general application" can curtail religious activities without triggering strict scrutiny. Historic preservation ordinances, which are characterized as zoning, are laws of neutral application since they are not specifically intended to interfere with religious practice. They apply to all historic sites that meet their criteria, regardless of whether the site has a religious connection.

In response to the Smith case, Congress enacted the Religious Freedom Restoration Act (RFRA), 42 U.S.C.A. Section 2000bb et seq. RFRA required a government to accommodate religious conduct unless it could prove that:

1. it had a "compelling interest" to justify a law or regulation; and
2. the law was the "least restrictive means" to achieving its compelling interest.

RFRA was invalidated by the US Supreme Court in Flores v. City of Boerne (Texas 117 S. Ct. 2157, 1997), a case that did involve historic preservation. A Catholic mission style church in a historic district sought a building permit to enlarge the church building. The City denied the permit on historic preservation grounds. The church filed a lawsuit, asking a U.S. District Court in Texas to declare that the City's denial of the permit was a violation of RFRA.

The US Supreme Court declared RFRA unconstitutional as a violation of the constitutional doctrine of "separation of powers" and restored the law in the Smith case. The Supreme Court also stated that RFRA required state and local governments to accommodate religion more than was required by the Constitution. The courts never reached the issue of whether Boerne's historic preservation ordinance resulted in a substantial burden on the church's free exercise of religion.

Appeals of Local Government Land Use Decisions
Each local government provides for appeals of decisions of planning or zoning officials and planning commissions, to the local governing body — the city, town or village council or the county commission. (NMSA 1978, Section 3-21-8, 1965). Decisions of the local governing body may be appealed to the State District Court (NMSA 1978, Section 3-21-9, 1965). The District Court may only review whether the governing body acted fraudulently, arbitrarily or capriciously, whether the order (decision) was, supported by substantial evidence, and generally, whether the action was within the scope of its authority. The District Court may not substitute its judgment for that of the governing body (Singleterry v. City of Albuquerque, 96 NM 468, 632 P. 2d. 345 [1981] and Downtown Neighborhoods Association v. City of Albuquerque, 109 NM 186, 783 P2d. 962 [Ct. App. 1989]).

Appeals of land use decisions are brought under NMSA 1978 (Rule 1-074, 1995). Although the Court will generally limit its review to the entire record made before the local agencies and governing body, it may ask for additional evidence from the parties. This is why it is important for the local government to keep extensive written records of all information submitted to it by an applicant for a zoning, amendment, subdivision, conditional use, special use, variance, certificate of appropriateness or building or demolition permit. Tape recordings of public meetings, which can be transcribed later, are advisable. "Findings of Fact," the reasons why a decision was made, are an essential part of the record reviewed by the Court.

Although, the Court may not substitute its judgment for that of the governing body, citizens often win appeals when there has been denial of due process of law, an inadequate record of all proceeding or failure of the local governing body to make findings of fact to justify its decision.