Preservation’s Supreme Authority

Abstract

Preservation’s Supreme Authority Paul Goldberger Editor’s Note: This article was originally pub­ lishedon September 16,1990, in TheNew York Times. Copyright 1990 by The New York Times Company. Reprinted bypermission. 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 WarrenCourt,theactivistwho mergedanideal­ istic outlook with a rigorous respect for the Constitution. But there was another part ofJustice Bren­ nan’s legacy, one that may turn out to have everybit 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 atown to createzoning that had the effect of excluding certain minority groups, JusticeBrennanwas inthe forefront. Through­ out his long career, he made the questions of how land could be used, and how the rights of private propertyowners couldbe balanced against the public good, a constant theme. There are many important Brennan deci­ sions 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 moneyfrom the structure by putting a 55-story office building designed by Marcel Breuer on its roof. The plan was roundly rejected by the NewYork City Landmarks Preservation Com­ mission,which called the design “nothingmore than an estheticjoke.” Penn Central promptly sued, and the New York State Supreme Court decided in favor of therailroad. That courtbelieved that the trade­ offdidn’t work-that in designating Grand Central an officiallandmark, the cityhad so diminished the potential ofPenn 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 onto theSupreme Court. Advocates of landmark preservation were equally eager to have the Supreme Court settle the matter: the preservation movement, which had been gain­ ing steam rapidly through the 1960s and 1970s, hadneverhad itsunderlyingprinciplestested in the arena of the Supreme Court, and preserva­ tionists felt that in Grand Central they had found as strong a case as they would ever come up with. After all, ifGrand CentralTerminalwasnot a landmark, what was? And given that New York Cityhad allowed Penn Central the option ofselling offthe air rights above the terminalto adjacent sites, thecompany’ssuggestion that its financial hands were tied by landmarkdesigna­ tion could well be called into question. Penn Central could obviously make moneyfrom Grand 10 JOURNAL 1991 In his 1978 Supreme Court decision,Penn Central Transportation Co.v. New York City, Justice Brennan held that the city had the right to declare Grand Central Terminal (interior pictured above in 1931) a landmark and preserve it for the public good. Central: just not as much as ifthe Breuer build­ ing were built. Justice Brennan agreed. His opinion bril­ liantly 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...