November 1988 - Laserfiche WebLink

Home Browse Search

distinctions from prior case law, where affirmative maintenance provisions have been upheld, deserve attention. In Rebman_v__Ci tY_of_Seri. ngf i el d, 11 Ill. App. 2d 430, 250 N.E.2d 282 (Ct. App. Ind. 1969), an affirmative maintenance provision was upheld that required landowners in the vicinity of the Abraham Lincoln home to maintain their premises. Moreover, the ordinance at state contained explicit provisions for alteration, demolition and use of property in historic districts. Similarly in Maher v_ City of New Orleans, 516 F.2d 1051 (1975) and City_of_Upw_Qrleans_v__ Permagent, __ La. __, 5 So.2d 129 (1941), the courts held that an ordinance for the preservation and maintenance of buildings in the historic Vieux Carre section of New Orleans was within the scope of police power. These cases should be noted for their factual distinctions. Not only did they involve historic districts of clear national importance, often encompassing large sections of land, but the ordinances contained specific provisions authorizing upkeep within historic districts, and this authority was in the original ordinance. Although the historic districts of South Bend ought not be trivialized in comparison to the above decisions, an arguable difference in degree does exist; the historic districts of South Bend hold less status than the French Quarter. The rights of private landowners in South Bend should be considered in light of the more recent constitutional tests of the Nollan decision. Moreover, the SBMC did not contain an explicit provision authorizing a city to compel a landowner to maintain his premises when the petition to create the historic districts were filed with the Common Council pursuant to SBMC 21-117.2. Fundamental fairness may require a new vote of historic district property owners to allow an amendment creating maitenance authority. D. Relev_ant_Indiana_Statutes Sections 36-7-11-2, 5 of the Indiana Code are likely to be open to debate as authority in the case at hand. Although section 36-7-11-2 states that because South Bend established an Historic Preservation Commission prior to the date of the Indiana law, our commission may continue to operate, regardless of whether it is inconsistent with the state law. However, opponents of an affirmative maintenance provision would point out that I.C. 36-7-11-5 sets out the only powers an historic commission may have and affirmative maintenance is not listed. CONCLUSION Early case law reveals that, in the absence of extreme circumstances, affirmative maintenance provisions traditionally withstand constitutional attacks. These cases demonstrate the courts use of various tests in evaluating the taking issue. However, these cases involve unique factual situations, and more recent case law exemplifies the heightened level of judicial scrutiny in analyzing 2