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8 Analysis for Single Family One- to Four-Unit Dwellings B. Whether an Airport Disclosure Law Is an includes guidelines for appraisals of Federal Housing Exercise of the Police Power Administration (FHA)-insured mortgages.53 Because A governmental authority's exercise of its police property near an airport may be subjected to the noise power in the form of a statute, regulation, or ordinance and hazards of low-flying aircraft, "[a]ppraisers must may give rise to a claim that a landowner has suffered a identify affected properties, review airport contour diminution in value and therefore that the statute, maps and condition the appraisal accordingly."54 How- regulation, or ordinance is a de facto taking of his or ever, appraisers are cautioned not to reject "existing her property. Nevertheless, it appears that a statute properties only because of airport influences if there is requiring the delivery of an airport disclosure state- evidence of acceptance within the market and if use of ment, as well as requiring that a deed contain an air- the dwelling is expected to continue."55 Although an port disclosure provision or that a disclosure statement appraisal may reveal the presence of an airport, unless be recorded as part of a deed, would not be a taking of an appraisal's valuation results in the property not an owner's real property. qualifying for a buyer's required financing, thereby Under the police power the government has an in- causing a cancellation of the contract, a buyer still will herent regulatory power to protect the health, safety, have agreed to purchase property subject to airport morals, and general welfare of the community. The noise. burdens of such regulation do not amount to takings of In Section VI of this digest, which contains the typi- property unless the burdens manifest themselves "in cal airport disclosure act provisions, Part VI.B.7. is certain, enumerated ways."56 The legislature may au- more specific in that it provides that "[o]n receipt of an thorize or delegate the authority to a particular admin- Airport Disclosure Statement in compliance with this istrative agency, such as a transportation department, Act, a buyer shall have a duty to investigate the current to make reasonable rules and regulations to carry out or future impact of an airport on the property that is the the police power.57 The police power is broad and pro- subject of the Airport Disclosure Statement" [emphasis vides the government with an effective tool for gov- supplied]. As stated in the Comment to Part VI.B.7., erning, but the government may not use its police however, the nature of a buyer's investigation is in the power "to infringe upon or invade rights safeguarded by buyer's discretion but could include a review of the land constitutional provisions."58 records in the county where a property is located, the As long as a regulation is merely an exercise of the use of an appraiser or other expert, and/or the buyer's police power and is not a taking, the government is not own reconnaissance of the area. required to pay just compensation to a property owner affected by the regulation. As Justice Holmes stated in III. AN AIRPORT DISCLOSURE ACT: AN Pennsylvania Coal Co. v. Mahon,59 although "property EXERCISE OF THE STATE'S POLICE POWER OR A may be regulated to a certain extent, if regulation REGULATORY TAKING? goes too far it will be recognized as a taking."60 Fre- 56 A. Introduction Eggleston v. Pierce County, 148 Wash. 2d 760, 767, 64 P.3d 618, 62223 (2003) (citations omitted). See also Lincoln Among the issues to be considered is whether airport Fed. Labor Union v. Nw. I. & M. Co., 149 Neb. 507, 31 N.W.2d disclosure legislation would be merely an exercise of a 477, 487 (1948) (stating that the term "police power" is used government's police power or would constitute a regu- "`to denote those inherent governmental powers which, under latory taking of real property requiring the payment of the federal system established by the constitution of the just compensation. Parts B and C in this section dis- United States, are reserved to the several states'") (citation cuss whether an airport disclosure act is a noncom- omitted). 57 pensable exercise of the government's police powers Dep't of Highways v. Sw. Elec. Power Co., 243 La. 564, with respect to real property or would be sufficiently 145 So. 2d 312 (1962); State Roads Comm'n v. Jones, 241 Md. burdensome to constitute a taking. An airport disclo- 246, 249, 216 A.2d 563, 565 (1966). 58 sure act likely would be a reasonable exercise of the Colman v. Utah State Land Bd. 795 P.2d 622, 627 police power, not a regulatory taking. Part D discusses (Utah 1990) (citation omitted). On the difference between the difference between a facial and an "as applied" chal- eminent domain and the police power, see 1 NICHOLS ON EMINENT DOMAIN § 1.42. lenge to an airport disclosure act but concludes that 59 under either approach an airport disclosure act proba- 260 U.S. 393, 43 S. Ct. 158, 67 L. Ed. 322 (1922). 60 bly would be constitutional. Id. at 415, 43 S. Ct. at 160, 67 L. Ed. at 326. More re- cently, according to the Supreme Court of Texas, "[w]hen the 53 benefits to be gained by the public are not commensurate with Department of Housing and Urban Development, Valua- the burdens imposed upon private persons, the law will not be tion Analysis for Single Family One- to Four-Unit Dwellings, permitted to stand." State of Tex. v. City of Austin, 160 HUD Directive 4150.2 § 2-2(G), available at Tex. 348, 356, 331 S.W.2d 737, 743 (1960) (citations omit- http://portal.hud.gov/hudportal/HUD?src=/program_offices/ ted) (holding that a state statute based on a federal statute administration/hudclips/handbooks/hsgh/4150.2, last accessed providing for compensation for relocation of public utilities was on July 7, 2011. 54 constitutional). Nevertheless, "[o]ur fundamental law does not Id. contemplate or require that every private injury and loss which 55 Id. may be necessary to protect or promote the public health,
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9 quently, the police power is exercised by regulatory its police power by prohibiting certain activities such measures, such as by requiring a permit before an as construction in areas prone to flooding.67 In New owner builds on his or her property.61 Although the po- York, a town planning board's conditioning of its ap- lice power is broad and comprehensive,62 the courts proval for a proposed building site on the owner's ac- have found it difficult to fix the boundaries of the po- ceptance of a conservation restriction on development lice power in a definitive way,63 in part because the was held not to be a taking.68 In a Wisconsin case it scope of the police power changes from time to time to was held that the transportation department's enact- meet society's changing conditions.64 ment of set-back restrictions was not a taking.69 Various regulations or restrictions have been held to On the other hand, with respect to airport zon- be incidents of the exercise of the police power and to be ing and real property near airports, a property of negligible loss to an individual property owner when owner could bring a claim in inverse condemnation compared to the benefits accruing to the community as based on restrictive airport zoning.70 Airport zoning a whole.65 In numerous cases in which landowners ordinances that restrict land use in order to permit safe have challenged various kinds of land-use regula- flight approaches may result in a de facto taking of tions, the courts have held that there was not a property.71 Some courts have held that ordinances re- regulatory taking.66 For example, a state may exercise stricting heights of structures and objects in the vicin- ity of an airport constitute a taking with regard to an safety, comfort and convenience must always be borne by in- owner's property.72 However, other courts have held dividuals and corporations." Id., 160 Tex. at 357, 331 S.W.2d that airport zoning ordinances restricting land use may at 743. be a reasonable exercise of the police power.73 An Illi- 61 Viacom Outdoor, Inc. v. City of Arcata, 140 Cal. App. nois appellate court held that height-restriction ordi- 4th 230, 44 Cal. Rptr. 3d 300 (Cal. Ct. App. 2006) (rebuild- nances near an airport are a proper use of the police ing of a billboard). power to protect the public from aircraft hazards.74 62 Robinson v. Crown Cork & Seal Co., 54 Tex. Sup. J. 71, Although the statutory restrictions were much 335 S.W.3d 126, 2010 Tex. LEXIS 796, at *99 (2010) (concur. greater than would be true with an airport disclosure op). act, Davis v. Brown75 is one case suggesting that an 63 First Nat'l Benefit Soc'y v. Garrison, 58 F. Supp. 972, airport disclosure law is a noncompensable exercise of 98182 (C.D. Cal. 1945). the police power. In Davis, an Illinois statute allowed 64 Consol. Rock Prod. Co. v. City of L.A., 57 Cal. 2d 515, the state transportation agency to prepare and record 370 P.2d 342, 20 Cal. Rptr. 638 (1962). maps setting forth a right-of-way for a proposed high- 65 Schmidt v. Bd. of Adjustment of the City of Newark, 9 way. The statute also required property owners N.J. 405, 88 A.2d 607 (1952); see also Graybeal v McNevin, within the proposed right-of-way to give notice if they 439 S.W.2d 323 (Ky. 1969). planned to develop their property so that the depart- 66 Allegretti v. County of Imperial, 138 Cal. App. 4th 1261, 127980, 42 Cal. Rptr. 3d 122, 136 (Cal. Ct. App. 2006) (hold- 67 City of Dover v. City of Russellville, 363 Ark. 458, 215 ing that the imposition of a condition on a property owner's S.W.3d 623 (Ark. 2005). request to activate a well that limited the amount of water 68 that the owner could extract from the aquifer beneath the Smith v. Town of Mendon, 4 N.Y.3d 1, 14, 822 N.E.2d owner's property was not a taking); Herzberg v. County of 1214, 1221, 789 N.Y.S.2d 696, 703 (2004). 69 Plumas, 133 Cal. App. 4th 1, 17, 34 Cal. Rptr. 3d 588, 599 Wis. Builders Ass'n v. Wis. Dep't of Transp., 285 Wis. 2d (Cal. Ct. App. 2005) (county range ordinance that forced prop- 472, 505, 702 N.W.2d 433, 448 (2005). 70 erty owners to accept the physical invasion of their property by Katsos v Salt Lake City Corp., 634 F. Supp. 100, 104 their neighbors' cattle held not to be a taking when the owners (Utah 1986); Cheyenne Airport Bd. v. Rogers, 707 P.2d 717, had the right to keep cattle off their property with a law- 72930 (Wyo. 1985). ful fence); Tahoe-Sierra Pres. Council v. Tahoe Reg'l Plan- 71 Osborne Enters. Inc. v. Chattanooga, 561 S.W.2d 160, ning Agency, 535 U.S. 302, 122 S. Ct. 1465, 152 L. Ed. 2d 517 16465 (Tenn. App. 1977). (2002) (moratorium to maintain the status quo of property 72 See McCarran Int'l Airport v. Sisolak, 122 Nev. 645, 137 surrounding Lake Tahoe to permit environmental research to P.3d 1110 (2006) (affirming district court's holding and a jury be included in a future growth plan held a valid exercise of the award of compensatory damages of $6.5 million in connection police power); McElmurray v. Augusta-Richmond County, 274 with a county height restriction ordinance that limited the Ga. App. 605, 607, 618 S.E.2d 59, 62 (Ga. Ct. App. 2005) (no development of Sisolak's airspace because the ordinance ef- regulatory taking when a property owner consented to the fected a "per se" taking of the airspace above Sisolak's property deposit of sludge on his property without knowing that the located within the "departure critical area" of an airport ap- county also w a s depositing toxic waste on the property); proach zone); Ind. Toll Road Com. v. Jankovich, 244 Ind. 574, Miskowiec v. City of Oak Grove, 2004 Minn. App. LEXIS 582, 193 N.E.2d 237, 242 (1963); Yara Eng'g Corp. v. Newark, 1236, at *16 (Mich. Ct. App. 2004) (Unpub.) (no unconstitu- 132 N.J.L. 370, 40 A.2d 559 (1945). tional taking because of the enactment of land-use regulations 73 Kimberlin v. Topeka, 238 Kan. 299, 710 P.2d 682 (1985); classifying wetlands near property as a natural environment La Salle Nat'l Bank v. County of Cook, 34 Ill. App. 3d 264, lake or because of the imposition of a temporary moratorium 340 N.E.2d 79 (1975). on construction in a 100-year flood plain); Wild Rice River 74 Estates, Inc., 2005 N.D. 193, at *P14, 705 N.W.2d 850, 855 La Salle Nat'l Bank, 34 Ill. App. 3d at 276, 340 N.E.2d at (2005) (21-month moratorium on building permits held not to 88. 75 be a taking). 221 Ill. 2d 435, 851 N.E.2d 1198 (2006).