The statute quoted says, “…”

I’m not finding that exact quote anywhere. Can you point specifically to it? Or is that meant as a paraphrase?

In any case, I don’t the argument rests on what may be recorded. I think the argument that establishment of a local historic creates an easement rests on the definition of “historic preservation easement” in the Natural Resource and Environmental Protection Act which, in paraphrased form, is along the lines of: A historic preservation easement is a limitation on land use arising from a few different circumstances, one of which is the establishment of a local historic district.

The statute quoted says, “A historic preservation easement may only be recorded on a property that is listed on the National Register or located within a local historic district.” The easement is an extra layer that may be created on a property already in a district – not something which is automatically created by the inclusion in a district. The causality can’t be run backwards to show equivalency.

This is why I think the de facto takings argument is obfuscatory nonsense. And, as David C. notes, that leaves a regulatory takings argument, and this issue has long since been settled as a valid exercise of regulatory power to advance a legitimate public interest.

Developers’ lawyers will make all kinds of arguments in hopes that someone, somewhere, will believe some of them. In reality, historic districts are perfectly proper ways of promoting the public interest.

- Creation of a historic district creates a historic preservation easement.
- A historic preservation easement is by definition of the law an interest in the property (ie. a partial ownership of the property). This occurs with or without recording the interest with the register of deeds even though the interest is recordable.
- If the City creates the interest in the property (which is conveyable) by creating the historic preservation easement, they have taken for themselves a partial ownership of the property. It is that partial ownership that they may be required to compensate the owners for.

If I follow, it goes something like,
* a historic preservation easement is a conveyance of property
* recording a historic preservation easement requires that the property be in a local historic district.
* therefore, a local historic district is a conveyance of land, and an involuntary conveyance of property is a takings.

Let’s try this in another context:
* my cat likes to scratch my dog in the face
* my cat requires feeding
* therefore, all things that require feeding like to scratch my dog in the face.

Hmmm.

Steve,

I take it you’re basing your conclusion on the following from the Uniform Condemnation Procedures Act:

(2) The general effects of a project for which property is taken, whether actual or anticipated, that in varying degrees are experienced by the general public or by property owners from whom no property is taken, shall not be considered in determining just compensation. A special effect of the project on the owner’s property that, standing alone, would constitute a taking of private property under section 2 of article X of the state constitution of 1963 shall be considered in determining just compensation. To the extent that the detrimental effects of a project are considered to determine just compensation, they may be offset by consideration of the beneficial effects of the project.

If you break down the deliberations in finer detail, a vote for Heritage Row, but against postponement makes somewhat more sense.

The initial deliberations had it 7-4 with Kunselman indicating he’d vote no — his indication of a no vote came before the mayor weighed in. It was after the remarks by the mayor [which cited the matter-of-right project that had already been approved as a possible undesirable consequence of voting against Heritage Row] that Kunselman said he’d like more information about the matter-of-right project. Kunselman noted he not sitting on the city council when that matter-of-right project had been approved.

Kunselman asked for a postponement. As an alternative, he was given a brief recess to the meeting. When the council came back from the recess, the vote on the postponement was taken, it failed, and Kunselman then voted no on the project.

For councilmembers who voted for the project but against the postponement, I think the they likely felt that if Kunselman’s inspection of the matter-of-right plans during the recess were not sufficient to change his vote from no to yes, then an additional two weeks would not have made any difference.