RE-EXAMINING THE TAKINGS DOCTRINE IN THE CONTEXT OF CULTURAL PRESERVATION AND ASSESSING ITS EFFECT'S ON REPUBLIC ACT NO. 10066

Camille Maria L. Castolo (JD'13)
ABSTRACT

Cultural bankruptcy. Cultural degradation. Cultural destruction. These are the words that spurred the passage of Republic Act No. 10066 or the National Cultural Heritage Act of 2009. With its passage came the sighs of relief of conservationists and heritage watchers everywhere. However, private art collectors and owners raised their eyebrows at some of the novel provisions of the law. Thus, the law once again sparked the debate between property rights and cultural preservation. One of the most controversial points of the law is Section 5, which provides for a presumption of cultural value for certain types of property. For example, a 50-year-old-and-above building is automatically presumed to be an Important Cultural Property; to overturn such presumption, the owner would have to go through the delisting procedure in the law. After this, there are the declaration and post-declaration stages. This last stage is the most problematic since this is where a property is finally and definitively declared to be culturally significant and is thus, subject to State control. Its primary effect is that any plans of demolition, modification, or alteration involving the property must be approved by the relevant cultural agency. Failure to procure such consent shall subject the owner to penal sanctions. While the exercise of property rights is not absolute, the exercise of the State of its police power and power of eminent domain must also comply with due process requirements in order to be valid intrusions into property rights. At first glance, the restrictions imposed by the law may seem merely regulatory since possession and legal title remains with the owner; his rights are just restricted However, the expanded concept of taking, particularly regulatory taking, must be taken into account. When an application for demolition or modification of the cultural property is denied and such denial results into the deprivation of all or substantially all economic use of the property, a taking occurs and payment of just compensation is triggered To determine such, a factual, casespecific inquiry must be done. A variety of factors shall be relevant: the kind of owner, their primary purposes and expectations, the costs of renovation and upkeep, the state of deterioration of the property, the prior notice rule, the location of the property, and the kind of renovation being applied for. All of these shall aid in analyzing the economic impact of the regulation.

The current legal framework does not recognize the possibility of regulatory taking. There is no provision which provides for the payment of compensation should a taking occur. This is dangerous for both cultural preservation and private property rights on two aspects: one, the private property owner may be deprived of their property without compensation; and two, constant takings claims may impede preservation efforts. Thus, the Proponent recommends a two-step framework to statutorily safeguard both interests. First, upon application for any proposed changes in the property, the owner and agency shall attempt to negotiate an economically feasible plan to retain the structure as it is. If unsuccessful, the application shall be granted on two grounds: either the proposed change will not materially impair the property's cultural integrity or the denial of the permit shall result into unreasonable economic hardship. The latter shall be taken to mean the deprivation of all or substantially all economic use of the property which shall be proved by the owner. This framework assures that the National Cultural Heritage Act can accomplishes what it sets out to do and at the same time not trample upon the rights of property owners.