What’s It to You? Citizen Challenges to Landmark Preservation Decisions and the Special Damage Requirements

By:  Matt Dulak

The special damage rule—a component of standing doctrine requiring a plaintiff’s alleged injury to differ somehow from that of the general public—has long thwarted citizen challenges to inaction by government regulators, particularly in environmental suits. While courts in many jurisdictions have trended toward relaxing the special damage rule in environmental cases, the requirement has not been similarly adjusted in other areas of law. In particular, it remains a major obstacle for citizens seeking to challenge government actions relating to landmark preservation, decisions that can have monumental effects on a community’s cultural and historical identity. As the rule stands in most jurisdictions, unless the citizen-plaintiff owns the property under consideration for landmark preservation, or perhaps owns property in close proximity with direct views of the site, it is likely that the special damage requirement will block her from challenging a landmark preservation decision. This Note argues that courts have applied the special damage test too narrowly in landmark preservation cases, distorting the incentives of the local bodies charged with implementing landmark preservation laws by encouraging them to pay disproportionate attention to the concerns of the few parties who can haul them into court. This Note also suggests modest but game-changing modifications to the special damage requirement and argues that more judicial review of landmark preservation is desirable.

 

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