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10 ment would be able to exercise its option to commence court may determine that a regulation is a noncategori- eminent domain proceedings. After a landowner's re- cal taking because of the regulation's economic impact quired notification to the department, the department and its interference with a property owner's invest- had up to 165 days to decide whether to acquire the ment-backed expectations. owner's property by purchase or condemnation.76 Dur- ing the statutory period allowed for the department to C.2. No Physical Invasion of Private Property by an make its decision, a landowner was not allowed to pur- Airport Disclosure Act sue development.77 The most recognizable form of a taking is when there Nevertheless, the court ruled that the statutory is an actual appropriation of private property by a con- procedure was not a regulatory taking.78 Unlike the demning authority. A categorical, or per se, taking81 statute at issue in Davis, an airport disclosure act occurs when there is a permanent, physical invasion of does not restrict an owner's use or development of his an owner's real property,82 no matter how minor.83 or her property. In Loretto v. Teleprompter Manhattan CATV A case that was thought would provide guidance on Corp.84 the United States Supreme Court held that a whether an airport disclosure act would be a regula- requirement that television cables be installed on a tory taking is Stop the Beach Renourishment, Inc. v. landowner's property without compensation pursuant Florida Department of Environmental Protection, de- to a statute permitting such installations was a taking. cided in 2010 by the United States Supreme Court.79 There is a taking when governmental action results in a Although Justice Scalia's opinion summarizes the types permanent, physical occupation of private property.85 of regulatory takings, the Court did not undertake a regulatory takings analysis and decided the case nar- 81 Lingle v. Chevron U.S.A. Inc., 544 U.S. 528, 537, 125 S. rowly based on Florida property law.80 Ct. 2074, 2081, 161 L. Ed. 2d 876, 887 (2005) (discussing cate- gorical or per se takings and noncategorical takings). C. Judicial Tests for Determining When 82 Loretto v. Teleprompter Manhattan CATV Corp., 458 Government Action Amounts to a Regulatory U.S. 419, 432, 102 S. Ct. 3164, 73 L. Ed. 2d 868, 880 (1982). Taking However, in cases of emergency (e.g., a fire or flood) private property may be used temporarily or damaged or even de- C.1. Overview stroyed to prevent injury or loss of life or to protect the remain- There are several bases used by the courts to de- ing property in a community. In Thousand Trails, Inc. v. Cal. termine when a regulation has gone too far and Reclamation Dist. No. 17, 124 Cal. App. 4th 450, 21 Cal. Rptr. 3d 196 (2004), a California appellate court held that it was amounts to a compensable taking of private property a valid exercise of the police power for the public authority to for public use. The first issue is based on whether cut a levee to prevent potentially massive flooding without a there has been an actual physical invasion of an preexisting flood prevention plan even though the act re- owner's property. Unless there is another basis for a sulted in the flooding of the property owner's campground. taking, if there has been no physical invasion of the 83 Lingle, 544 U.S. at 538, 125 S. Ct. at 2081, 161 L. property, then there has not been a governmental tak- Ed. 2d at 887 (citing Loretto v. Teleprompter Manhattan ing. Second, even when there has not been an actual, CATV Corp., 458 U.S. 419, 102 S. Ct. 3164, 73 L. Ed. 2d 868 physical invasion of an owner's property, there may (1982)). See also Allegretti, 42 Cal. Rptr. 3d at 128 (quoting have been under the circumstances a "categorical tak- Lingle v. Chevron USA, Inc., 544 U.S. at 537, 125 S. Ct. at ing." One type of categorical taking occurs when a gov- 2081, 161 L. Ed. 2d at 887). In First English Evangelical Lu- ernment regulation completely deprives an owner of all theran Church of Glendale v. County of L.A., 482 U.S. 304, economically beneficial use of his or her property. A 318, 107 S. Ct. 2378, 96 L. Ed. 2d 250 (1987), the Court held, inter alia, that "`temporary takings' which, as here, deny a categorical taking occurs as well when the government landowner all use of his property, are not different in kind from uses its own property without justification to destroy permanent takings for which the Constitution clearly requires private property. A land-use exaction is another form compensation." Id. at 318, 107 S. Ct. at 2388, 96 L. Ed. 2d at of a categorical taking and occurs when the govern- 266 (citation omitted). ment requires a property owner to dedicate real prop- 84 458 U.S. 419, 431, 102 S. Ct. 3164, 3173, 73 L. Ed. 2d erty for public use; for example, as a condition to grant- 868, 879 (1982); on remand, see 58 N.Y.2d 143, 446 N.E.2d ing a permit. Finally, based on the character of a 428, 459 N.Y.S.2d 743 (1983) (Although not determining the regulation and an evaluation of case-specific factors, a measure of damages (see id., 446 N.Y.2d at 431), the New York Court of Appeals observed that "so far as the record 76 discloses...the amount recoverable by any single owner is Id., 221 Ill. 2d at 446, 851 N.E.2d at 1205. 77 small...." Id. at 434). Id. 85 78 Loretto, 458 U.S. at 428, 437, 125 S. Ct. at 3172, 3177, Id. at 447, 851 N.E.2d at 1206. 161 L. Ed. 2d at 877, 88384. Other courts have held that if a 79 130 S. Ct. 2592, 177 L. Ed. 2d 184 (2010). government entity either directly or indirectly physically in- 80 J. Peter Byrne, Rising Seas and Common Law Baselines: trudes upon private property without compensation, there is a A Comment on Regulatory Takings Discourse Concerning Cli- physical taking of property. Town of Clinton v. Schrempp, 2005 mate Change, 11 VT. J. ENVTL. L. 625, 629 (2010) (discussing Conn. Super. LEXIS 92, at *78 (2005) (Unrpt.) (citing the Florida Supreme Court decision in SBR) (footnotes omit- Eamiello v. Liberty Mobile Home Sales, Inc., 208 Conn. 620, ted). 640, 546 A.2d 805 (1988).

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11 In Lingle v. Chrevon USA Inc.,86 the Court held "determinative factor" is whether there has been a that whether a regulation "substantially advances le- "complete elimination of a property's value."93 (empha- gitimate state interests" is no longer a valid method of sis supplied). discerning whether private property has been taken.87 The seminal case is Lucas v. South Carolina Coun- The Court explained that "[t]he paradigmatic taking cil.94 In Lucas a landowner challenged regulations in- requiring just compensation is a direct government ap- tended to prevent erosion that restricted private de- propriation or physical invasion of private property."88 velopment on state beaches. The landowner purchased An airport disclosure act, as described in Section VI, two lots in 1986 on a South Carolina barrier island would be neither an actual appropriation of private with the intention of building single-family homes. property nor a physical invasion, even minimally, of an Thereafter, in 1988, the state legislature enacted the owner's property. Beachfront Management Act that barred the landowner from erecting any habitable structures on the land.95 C.3. No Deprivation of "All Economically Beneficial The purpose of the legislation was to protect the Use" of Property by an Airport Disclosure Act beaches from erosion from the ocean, wind, and vari- Even in the absence of an actual, physical taking of ous other causes.96 The landowner filed an inverse property, a categorical taking may occur when govern- condemnation action, claiming that the state's action ment regulations completely deprive an owner of "all was a taking because it deprived the owner of all eco- economically beneficial use" of his or her property.89 As nomic use of the property. The United States Supreme one court has observed, "[a]lmost all of the Supreme Court held that compensation could be required "if, on Court' holdings on regulatory takings involve the adop- remand, the state court found that the development tion of ordinances, regulations, or other legislation that regulations were restrictive enough to amount to a tak- limit development or regulate land use."90 The Su- ing of the beachfront property."97 The Court held that preme Court of Idaho stated that "courts have long no matter how "weighty the asserted `public interests' held that governmental conduct not involving the involved" are, the government may not deprive an physical appropriation of property may so interfere owner of "all economically beneficial use of land...."98 with private interests in property as to constitute a Nevertheless, it should be noted that a regulation taking."91 Because a claim for a regulatory taking fails that diminishes, even destroys, the value of a business when land retains "substantial economic value,"92 the operated on an owner's property typically is not a taking within the meaning of Lucas: "the categorical 86 544 U.S. 528, 125 S. Ct. 2074, 161 L. Ed. 2d 876 (2005) taking rule applies only to claimed takings of land."99 (involving a challenge to a state-imposed cap on rent that oil An airport disclosure law is not a Lucas-type, categori- companies in Hawaii could charge dealers leasing company- cal taking of a landowner's property; an airport disclo- owned service stations). sure law would not deprive the owner of all beneficial 87 Id. at 542, 125 S. Ct. at 208384, 161 L. Ed. 2d at 890 use of the property. It could be argued, moreover, that a 91 (rejecting the test applied in Agins v. City of Tiburon, 447 disclosure law would not diminish the value of an U.S. 255, 260, 100 S. Ct. 2138, 65 L. Ed. 2d 106 (1980)). owner's property that obviously is located near an air- 88 Id. at 537, 125 S. Ct. at 2081, 161 L. Ed. 2d at 887. port. Even if the law were to have a deleterious effect 89 Lucas v. S.C. Coastal Council, 505 U.S. 1003, 1016, 112 on a landowner's business located on his or her prop- S. Ct. 2886, 2894, 120 L. Ed. 2d 798, 813 (1992). The Lucas erty (assuming an airport disclosure act applied to such Court held that the government must pay just compensation for such "total regulatory takings," except to the extent S. Ct. 1465, 152 L. Ed. 2d 517 (2002) (quoting Lucas, 505 that "background principles of nuisance and property law" U.S. at 1019, 122 S. Ct. 1465, 152 L. Ed. 2d 517)); see independently restrict the owner's intended use of the prop- Palazzolo v. Rhode Island, 533 U.S. 606, 631, 121 S. Ct. 2448, erty. I d . at 1030, 125 S. Ct. at 2901, 161 L. Ed. 2d at 823. 2464, 150 L. Ed. 2d 592, 616 (2001) ("A regulation permitting See also Allegretti, 138 Cal. App. 4th at 1270, 42 Cal. Rptr. 3d a landowner to build a substantial residence on an 18-acre at 128 (emphasis in original) (quoting Lingle, 544 U.S. at 538, parcel does not leave the property economically idle."). 125 S. Ct. at 2081, 161 L. Ed. 2d at 888 (quoting Lucas, 505 93 Lingle, 544 U.S. at 539, 125 S. Ct. at 2082, 161 L. Ed. 2d U.S. at 1019, 112 S. Ct. at 2895, 120 L. Ed. 2d 814) (some in- at 888 (citing Lucas, 505 U.S. 1003, 1017, 112 S. Ct. 2886, 120 ternal quotation marks omitted)). L. Ed. 2d 798). 90 STS/BAC Joint Venture v. City of Mt. Juliet, Tenn., 94 505 U.S. 1003, 112 S. Ct. 2886, 120 L. Ed. 2d 798 (1992). 2004 Tenn. App. LEXIS 821, at *1516 (Tenn. App. 2004); 95 Id. at 1006, 112 S. Ct. at 2889, 120 L. Ed. 2d at 808. City of Coeur d'Alene v. Simpson, 142 Idaho 839, 846, 136 P.3d 96 310, 318 (2006) (observing that "courts have long held that Id. at 1022, 112 S. Ct. at 2897, 120 L. Ed. 2d at 817. 97 governmental conduct not involving the physical appropriation See Manning v. Mining and Minerals Div., 140 N.M. of property may so interfere with private interests in property 528, 2006 NMSC 27, at *12, 144 P.3d 87, 90 (N.M. 2006) (cit- as to constitute a taking") (citation omitted). ing Lucas, 505 U.S. at 102730, 112 S. Ct. 2886, 120 L. Ed. 2d 91 City of Coeur d'Alene, 142 Idaho at 846, 136 P.3d at 318 798). 98 (citing Pa. Coal Co. v. Mahon, 260 U.S. 393, 41415, 43 S. Ct. Lucas, 505 U.S. at 102829, 112 S. Ct. at 2900, 120 L. Ed. 158, 67 L. Ed. 322 (1922). 2d at 821 (citations omitted). 99 92 Kafka v. Mont. Dep't of Fish, Wildlife and Parks, 2005 Kafka, 2005 Mont. Dist. LEXIS 729, at *5455 (citing ML 241, 2005 Mont. Dist. LEXIS 729, at *1, 57 (Mont. Dist. Unity Real Estate Co. v. Hudson, 178 F.3d 649, 674 (3d Cir. 2005) (citing Tahoe Sierra Pres. Council, 535 U.S. at 330, 122 1999).

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12 property), any alleged loss likely would be noncom- for a permit to expand a store and parking lot was pensable under present law. conditioned improperly on the dedication of the prop- erty for a "greenway," including a bike/pedestrian path. C.4. No Use by the Government of Its Own Property to In Nollan a permit to build a larger residence on Cause a Taking beachfront property was conditioned improperly on As the Supreme Court stated in SBR, "when the gov- the landowner's dedication of an easement allowing ernment uses its own property in such a way that it the public to cross part of the property.106 destroys private property, it has taken that property. In Wisconsin Builders Association v. Wisconsin De- Similarly, our doctrine of regulatory takings "aims to partment of Transportation107 the Wisconsin Court of identify regulatory actions that are functionally equiva- Appeals held that the Wisconsin Department of Trans- lent to the classic taking."100 However, an airport dis- portation's (DOT) set-back restrictions were not ease- closure requirement imposed on a seller of property is ments in the Nollan and Dolan sense. The set-back re- not a use by the government of its own property to de- strictions did not deprive the landowners of the right stroy private property resulting in a taking. to exclude others and thus were not a taking.108 Simi- larly, in Smith v. City of Mahon the New York Court of C.5 No "Exaction" by an Airport Disclosure Act Appeals declined "to extend the concept of exaction [to a Another form of a categorical taking is when the situation] where there is no dedication of property to government requires a dedication of real property public use and the restriction merely places conditions known as a land-use exaction.101 As discussed briefly on development."109 The Smith court held that the gov- herein, an airport disclosure law is not an exaction. ernment's requirement in that case was "a modest en- An exaction is a per se taking that occurs when a vironmental advancement at a negligible cost to the landowner must give up a constitutional right to just landowner [that] does not amount to a regulatory tak- compensation when property (e.g., an easement) is ing."110 taken "`in exchange for a discretionary benefit by the An airport disclosure act neither would involve a government where the benefit has little or no rela- dedication of property to public use nor would it place tionship to the property.'"102 Exactions are defined as conditions on the use or development of property. "land-use decisions conditioning approval of develop- ment on the dedication of property to public use."103 An C.6. No Taking of Private Property by an Airport exaction is a forced dedication of property, usually by Disclosure Act Under a Penn Central Analysis a developer who is required to dedicate some of the A taking described by the courts as a noncategorical land to acquire a permit or to gain approval of a devel- taking is "case-specific," one that involves a "considera- opment plan. tion of the economic impact of the regulation, the [regu- In Dolan v. City of Tigard104 and Nollan v. Califor- lation's] interference with reasonable investment- nia Coastal Commission105 the United States Supreme backed expectations, and the character of the regula- Court established a two-pronged "nexus" and "rough tion."111 To establish a taking by reason of an air- proportionality" test in determining whether there has port disclosure law's effects on an owner's property, a been a regulatory taking resulting from an exaction. In landowner would have to establish that there had been the Dolan case the granting of a landowner's request a taking based on an evaluation and balancing of the factors (the "Penn Central factors") enumerated by the 100 Stop the Beach Renourishment, Inc., 130 S. Ct. 2592, United States Supreme Court in Penn Central Trans- 2601, 177 L. Ed. 2d 184,196 (2010) (quoting United States v. portation Co. v. City of New York.112 The Lingle Court Causby, 328 U.S. 256, 26162, 66 S. Ct. 1062, 90 L. Ed. reaffirmed that noncategorical takings are governed 1206, 106 Ct. Cl. 854 (1946); Pumpelly v. Green Bay Co., 80 by the standards set forth in Penn Central.113 Indeed, U.S. 166, 13 Wall. 166, 17778, 20 L. Ed. 557 (1872). 101 Nollan v. Cal. Coastal Comm'n, 483 U.S. 825, 107 S. Ct. 106 See discussion in Lingle, 544 U.S. at 54647, 125 S. Ct. 3141, 97 L. Ed. 2d 677 (1987); Dolan v. City of Tigard, 512 at 2086, 161 L. Ed. 2d at 89293. U.S. 374, 114 S. Ct. 2309, 129 L. Ed. 2d 304 (1994). 107 102 285 Wis. 2d 472, 702 N.W.2d 433 (2005). Lingle, 544 U.S. at 547, 125 S. Ct. at 2087, 57 L. Ed. 2d 108 at 894 (citation omitted). Id. at 505. 109 103 City of Monterey, Ltd. v. Del Monte Dunes, 526 U.S. Smith v. Town of Mendon, 4 N.Y.3d 1, 12, 822 N.E.2d 687, 702, 119 S. Ct. 1624, 1635, 143 L. Ed. 2d 882, 900 1214, 1219, 789 N.Y.S.2d 696, 701 (2004). 110 (1999). Id. at 15, 822 N.E.2d at 1221, 789 N.Y.S.2d at 703. 111 104 512 U.S. 374, 385, 114 S. Ct. 2309, 129 L. Ed. 2d 304 Miskowiec, 2004 Minn. App. LEXIS 1236, at *8 (citing (1994) (reversing the Oregon Supreme Court's ruling that the Penn Central Co. v. City of N.Y., 438 U.S. 104, 124, 98 S. Ct. city's decision to grant a permit to the landowner conditioned 2646, 2659, 57 L. Ed. 2d 631 (1978)); see also Agins v. City of on the owner's dedication of her land was not a taking). Tiburon, 447 U.S. 255, 26162, 100 S. Ct. 2138, 214142, 65 L. 105 483 U.S. 825, 107 S. Ct. 3141, 97 L. Ed. 2d 677 Ed. 2d 106 (1980). 112 (1987) (reversing California, the appellate court's ruling that 438 U.S. 104, 124, 98 S. Ct. 2646, 2659, 57 L. Ed. 2d 631 the Coastal Commission could condition the grant of a building (1978); see discussion in Wis. Builders Ass'n v. Wis. Dep't of permit on the owner's transfer of an easement across its beach- Transp., 285 Wis. 2d 472, 702 N.W.2d 433 (2005). 113 front property). The Court stated: