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14 cussed in Section C.6, supra, which are evaluated and owner would have to show in respect to his or her prop- balanced to determine the effect of a regulation on spe- erty that the disclosure law denies him or her any cific property, would not be relevant in a facial chal- "`economically viable use of [the] land....'"134 lenge.125 In contrast to a facial challenge, in an "as ap- One of the provisions of the Typical Airport Fair plied" challenge an owner "is disputing...the Disclosure Act, discussed in Section VI, requires, inter constitutionality of the regulation to a specific tract of alia, that a seller disclose when a property offered for property."126 sale is within an AICUZ as shown on a map prepared Because facial challenges are less likely to succeed, for a military airport or air installation, the map being most challenges are "as applied" challenges. However, the result of an AICUZ study. In Branning v. United an as applied challenge to an airport disclosure law States,135 the court held that intensive military likely would be unsuccessful. First, a disclosure statute flight training in navigable airspace more than 500 ft is not an actual appropriation of private property nor above the plaintiff's property had resulted in a tak- a physical i n v a s i o n o f an owner's real property.127 ing.136 However, the court rejected the plaintiff's argu- Second, neither requiring a disclosure statement nor ment that there had been a taking of all property that requiring the recording of one would "den[y] all eco- was within two delineated AICUZ zones simply because nomically beneficial or productive use" of a prospective they were plotted on an AICUZ map. seller's land.128 For there to be a taking, the diminution The evidence in this case clearly establishes that the in value of a property "must be near total."129 With an CNR Zone 3 and CNR Zone 2 "footprints" include por- airport disclosure law, an "owner of real property [is tions of plaintiff's property on Lady's Island. This is not being] called upon to sacrifice all economically not, in and of itself, sufficient to establish a taking of beneficial uses in the name of the common good, plaintiff's property by the defendant. It does, however, that is, to leave his property economically idle...."130 constitute valuable evidence of the impact of defendant's Arguably, the owner is not being required to sacrifice aircraft operations on that part of plaintiff's prop- anything--only to disclose a condition, the proximity of erty....137 an airport to the property, that may affect a prospective In Branning there was a taking because the noise buyer's use and enjoyment of property that is offered level suffered by the landowner was "peculiarly bur- for sale. densome,"138 not because the government had con- As for whether a statute requiring the delivery ducted a study to determine where noise in relation to and/or recording of an airport disclosure statement property was "`normally unacceptable' for residential would constitute a taking, once again it appears use."139 Thus, although a taking may occur when the unlikely based on the Penn Central factors that such a government imposes regulations "that seek to restrict disclosure requirement would result in a taking of an the use of property after title has been taken,"140 there owner's property. One reason is that "even severe is no per se taking unless a regulation denies an owner economic loss is not, at least by itself, sufficient to all economically viable use of the owner's property. An give rise to a taking."131 For example, even zoning airport disclosure law would not restrict a present or regulations that affect the value of real estate usually prospective owner's use or enjoyment of his or her prop- do not implicate the Takings Clause.132 erty. In a challenge to an airport disclosure law, a prop- erty owner would have to identify property taken, not E. Summary just an interest or right in property. Regardless of whether a taking is a categorical or noncategorical one, An airport disclosure act does not come within any of an alleged taking must damage all of the owner's rights the categories of possible regulatory takings. An airport in his or her parcel of property.133 In other words, an disclosure act would not be a "classic taking,"141 nor would it be one that is "functionally equivalent to [a] 125 See 8 NICHOLS ON EMINENT DOMAIN G14E.03[3][b][ii], at G14E-2527 and nn. 3839 (citations omitted). 134 Hodel v. Va. Surface Mining & Reclamation Ass'n, 452 126 Id. G14E.04[3], at G14E-45. U.S. 264, 296, 101 S. Ct. 2352, 2370, 69 L. Ed. 2d 1, 28 (1981) 127 Lucas, 505 U.S. at 1015, 112 S. Ct. at 2893, 120 L. Ed. (citations omitted). 135 2d at 812. 228 Ct. Cl. 240, 654 F.2d 88 (1981). 128 136 Id., 505 U.S. at 1016, 112 S. Ct. at 2894, 120 L. Ed. 2d at Id. at 257, 654 F.2d at 99 (stating that "it is clear that 813 (citations omitted). the Government's liability for a taking is not precluded merely 129 8 NICHOLS ON EMINENT DOMAIN G14E.03[3][b][ii], at because the flights of Government aircraft are in what Con- G14E-25 and n.37 (citations omitted). gress has declared to be navigable airspace and subject to its 130 Lucas, 505 U.S. at 1019, 112 S. Ct. at 2895, 120 L. Ed. regulation"). 137 2d at 815. Id. at 252, 654 F.2d at 96 (emphasis supplied). 138 131 2A NICHOLS ON EMINENT DOMAIN 6.01[13][c] at 6-36. Id. at 242, 654 F.2d at 90. 139 132 Id. Id. at 245, 654 F.2d at 92. 140 133 Wild Rice River Estates, Inc. v. City of Fargo, 2005 N.D. A2 NICHOLS ON EMINENT DOMAIN 6.01[13][f]. 141 193, 705 N.W.2d 850 (2005) (upholding a 21-month morato- Stop the Beach Renourishment, Inc., 130 S. Ct. at 2601, rium on the issuance of building permits). 177 L. Ed. 2d at 195.