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13 "[m]ost regulatory takings claims are of the non- tion constitutes a compensable taking necessitates `[a]n categorical type...."114 individualized assessment of the impact of the regula- In Penn Central the Landmarks Preservation Com- tion on a particular parcel of property and its relation mission denied Penn Central's application to build an to a legitimate state interest....'"119 office atop its property--Grand Central Terminal in In Penn Central the Court emphasized three factors: New York City--by reason of the city's Landmark Pres- the economic impact of the regulation on the claimant; ervation Law. Previously, the terminal and location had the extent to which the regulation has interfered with been designated as a landmark and as a landmark site, distinct investment-backed expectations; and the respectively, under the applicable New York City character of the governmental action. The California laws.115 Penn Central challenged the denial in the Supreme Court has identified other nonexclusive fac- courts, but the United States Supreme Court held that tors based on Penn Central and other United States Penn Central's property had not been taken without Supreme Court cases that may be relevant considera- just compensation. tions in an alleged Penn Central-type regulatory taking In part, the Court held that analysis.120 The purpose of Penn Central balancing is New York City law does not interfere in any way "to prevent the government from `forcing some people with the present uses of the Terminal.... alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole.'"121 [T]o the extent appellants have been denied the right to Under a Penn Central "ad hoc factual inquiry," a court build above the Terminal, it is not literally accurate to may find "that a particular regulation `goes too far' and say that they have been denied all use of even those pre- constitutes a taking."122 It does not appear that under existing air rights.... the Penn Central factors a statute requiring the deliv- [T]he application of New York City's Landmarks Law has ery of an airport disclosure statement or even the re- not effected a "taking" of appellants' property. The re- cording of one in the land records would constitute a strictions imposed are substantially related to the pro- taking. An airport disclosure statement would not alter motion of the general welfare and not only permit rea- the character of property, restrict its use or develop- sonable beneficial use of the landmark site but also afford ment, or have any bearing on whether and to what appellants opportunities further to enhance not only the extent aircraft noise affected the property. Terminal site proper but also other properties.116 D. The Difference Between a Facial and an "As Thus, in light of Penn Central and its progeny, for Applied" Challenge to an Airport Disclosure Act a noncategorical taking to succeed, the owner must Because an airport disclosure act could be chal- show "the magnitude" of a regulation's economic lenged on constitutional grounds, it is important to con- impact and the degree to which it interferes with le- sider the difference between a facial and an "as applied" gitimate property interests.117 There is "no precise rule" challenge to such a statute. A facial claim is a challenge in cases involving land-use regulations; "a weighing of to a law's constitutionality without showing the law's private and public interests" is required to determine effect on or application to a claimant's property.123 As whether a regulatory taking has occurred.118 A deter- the Ninth Circuit has stated, a property owner "may mination of whether a "challenged regulatory restric- challenge [a] zoning restriction on the basis that the `mere enactment' of the restriction constitutes a tak- Primary among [the Penn Central] factors are "the economic ing of its property."124 The Penn Central factors, dis- impact of the regulation on the claimant and, particularly, the extent to which the regulation has interfered with distinct in- 119 Id. at 566, 34 Cal. Rptr. 3d at 900 (emphasis in original) vestment-backed expectations." In addition, the "character of (citations omitted). See also MacDonald, Sommer & Frates v. the governmental action"--for instance whether it amounts to a Yolo County, 477 U.S. 340, 348, 106 S. Ct. 2561, 2566, 91 L. physical invasion or instead merely affects property interests Ed. 2d 285, 294 (1986) (noting that the Court has no "set for- through "some public program adjusting the benefits and bur- dens of economic life to promote the common good"--may be mula" to determine where regulation ends and a taking be- relevant in discerning whether a taking has occurred. The Penn gins). 120 Central factors--though each has given rise to vexing subsidiary Herzberg, 133 Cal. App. 4th at 14, 34 Cal. Rptr. 3d at questions--have served as the principal guidelines for resolving 597. regulatory takings claims that do not fall within the physical 121 Id., 133 Cal. App. 4th at 15, 34 Cal. Rptr. 3d at 598 (cita- takings or Lucas rules. tions omitted). Lingle, 544 U.S. at 53839, 125 S. Ct. at 208182, 57 L. Ed. 122 Kafka, 2005 Mont. Dist. LEXIS 729, at *58. 2d at 888 (citations omitted). 123 114 8 NICHOLS ON EMINENT DOMAIN G14E.04[3], at G14E- City of Coeur d'Alene, 142 Idaho at 847, 136 P.3d at 318. 45. See also 8 NICHOLS ON EMINENT DOMAIN G14E.04[4]. 124 115 Lake Nacimiento Ranch Co. v. County of San Luis Penn Central, 438 U.S. at 115, 98 S. Ct. at 2655, 57 L. Obispo, 841 F.2d 872, 877 (9th Cir. 1987) (holding, inter alia, Ed. 2d at 645. 116 that a county ordinance reducing the allowed residential densi- Id. at 13638, 98 S. Ct. at 2666, 57 L. Ed. 2d at 657. ties and reclassifying most of the remaining privately owned, 117 City of Coeur d'Alene, 142 Idaho at 853, 136 P.3d at 324. undeveloped land around the lake from a "Recreation" zone to 118 County of Alameda v. Superior Court, 133 Cal. App. 4th a more restrictive "Rural Lands" zone was not facially uncon- 558, 566, 34 Cal. Rptr. 3d 895, 900 (2005) (citations omitted). stitutional).