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Annotation 16 - Fifth Amendment

  When Property Is Taken

The issue whether one's property has been ''taken'' with the consequent requirement of just compensation can hardly arise when government institutes condemnation proceedings directed to it. Where, however, physical damage results to property because of government action, or where regulatory action limits activity on the property or otherwise deprives it of value, whether there has been a taking in the Fifth Amendment sense becomes critical.

  Government Activity Not Directed at the Property .--The older cases proceeded on the basis that the requirement of just compensation for property taken for public use referred only to ''direct appropriation, and not to consequential injuries resulting from the exercise of lawful power.'' 236 Accordingly, a variety of consequential injuries were held not to constitute takings: damage to abutting property resulting from the authorization of a railroad to erect tracts, sheds, and fences over a street; 237 similar deprivations, lessening the circulation of light and air and impairing access to premises, resulting from the erection of an elevated viaduct over a street, or resulting from the changing of a grade in the street. 238 Nor was government held liable for the extra expense which the property owner must obligate in order to ward off the consequence of the governmental action, such as the expenses incurred by a railroad in planking an area condemned for a crossing, constructing gates, and posting gatemen, 239 or by a landowner in raising the height of the dikes around his land to prevent their partial flooding consequent to private construction of a dam under public licensing. 240  

But the Court also decided long ago that land can be ''taken'' in the constitutional sense by physical invasion or occupation by the government, as occurs when government floods land. 241 A later formulation was that ''[p]roperty is taken in the constitutional sense when inroads are made upon an owner's use of it to an extent that, as between private parties, a servitude has been acquired either by agreement or in course of time.'' 242 It was thus held that the government had imposed a servitude for which it must compensate the owner on land adjoining its fort when it repeatedly fired the guns at the fort across the land and had established a fire control service there. 243 In two major cases, the Court held that the lessees or operators of airports were required to compensate the owners of adjacent land when the noise, glare, and fear of injury occasioned by the low altitude overflights during takeoffs and landings made the land unfit for the use to which the owners had applied it. 244 Eventually, the term ''inverse condemnation'' came to be used to refer to such cases where the government has not instituted formal condemnation proceedings, but instead the property owner has sued for just compensation, claiming that governmental action or regulation has ''taken'' his property. 245  

  Navigable Waters .--The repeated holdings that riparian ownership is subject to the power of Congress to regulate commerce constitute an important reservation to the developing law of liability in the taking area. When damage results consequentially from an improvement to a river's navigable capacity, or from an improvement on a nonnavigable river designed to affect navigability elsewhere, it is generally not a taking of property but merely an exercise of a servitude to which the property is always subject. 246 This exception does not apply to lands above the ordinary high-water mark of a stream, 247 hence is inapplicable to the damage the Government may do to such ''fast lands'' by causing overflows, by erosion, and otherwise, consequent on erection of dams or other improvements. 248 And, when previously nonnavigable waters are made navigable by private investment, government may not, without paying compensation, simply assert a navigation servitude and direct the property owners to afford public access. 249  

  Regulatory Takings .--While it is established that government may take private property, with compensation, to promote the public interest, that interest also may be served by regulation of property use pursuant to the police power, and for years there was broad dicta that no one may claim damages due to a police regulation designed to secure the common welfare, especially in the area of health and safety regulations. 250 ''The distinguishing characteristic between eminent domain and the police power is that the former involves the taking of property because of its need for the public use while the latter involves the regulation of such property to prevent the use thereof in a manner that is detrimental to the public interest.'' 251 But regulation may deprive an owner of most or all beneficial use of his property and may destroy the values of the property for the purposes to which it is suited. 252 The older cases flatly denied the possibility of compensation for this diminution of property values, 253 but the Court in 1922 established as a general principle that ''if regulation goes too far it will be recognized as a taking.'' 254  

In the Mahon case, Justice Holmes for the Court, over Justice Brandeis' vigorous dissent, held unconstitutional a state statute prohibiting subsurface mining in regions where it presented a danger of subsidence for homeowners. The homeowners had purchased by deeds which reserved to the coal companies ownership of subsurface mining rights and which held the companies harmless for damage caused by subsurface mining operations. The statute thus gave the homeowners more than they had been able to obtain through contracting, and at the same time deprived the coal companies of the entire value of their subsurface estates. The Court observed that ''[f]or practical purposes, the right to coal consists in the right to mine,'' and that the statute, by making it ''commercially impracticable to mine certain coal,'' had essentially ''the same effect for constitutional purposes as appropriating or destroying it.'' 255 The regulation, therefore, in precluding the companies from exercising any mining rights whatever, went ''too far.'' 256 However, when presented 65 years later with a very similar restriction on coal mining, the Court upheld it in Keystone Bituminous Coal Ass'n v. DeBenedictis. 257 Unlike its precursor, the Court explained, the newer law ''does not merely involve a balancing of the private economic interests of coal companies against the private interests of the surface owners.'' 258 Instead, the state had identified ''important public interests'' (e.g., conservation, protection of water supplies, preservation of land values for taxation) and had broadened the law to apply regardless of whether the surface and mineral estates were in separate ownership. A second factor distinguishing Keystone from Mahon, the Court explained, was the absence of proof that the new subsidence law made it ''commercially impracticable'' for the coal companies to continue mining. 259 The Court rejected efforts to define separate segments of property for taking purposes--either the coal in place under protected structures, or the ''support estate'' recognized under Pennsylvania law. 260 Economic impact is measured by reference to the property as a whole; consideration of the coal placed off limits to mining as merely part of a larger estate and not as a separate estate undermined the commercial impracticability argument.

The Court had been early concerned with the imposition upon one or a few individuals of the costs of furthering the public interest. 261 But it was with respect to zoning that the Court first experienced some difficulty in this regard. The Court's first zoning case involved a real estate company's challenge to a comprehensive municipal zoning ordinance, alleging that the ordinance prevented development of its land for industrial purposes and thereby reduced its value from $10,000 an acre to $2,500 an acre. 262 Acknowledging that zoning was of recent origin, the Court observed that it must find its justification in the police power and be evaluated by the constitutional standards applied to exercises of the police power. After considering traditional nuisance law, the Court determined that the public interest was served by segregation of incompatible land uses and the ordinance was thus valid on its face; whether its application to diminish property values in any particular case was also valid would depend, the Court said, upon a finding that it was not ''clearly arbitrary and unreasonable, having no substantial relation to the public health, safety, morals, or general welfare.'' 263 A few years later the Court, again relying on due process rather than taking law, did invalidate the application of a zoning ordinance to a tract of land, finding that the tract would be rendered nearly worthless and that to exempt the tract would impair no substantial municipal interest. 264 But then the Court withdrew from the land-use scene for about 50 years, leaving the States and their municipalities mostly free to develop increasingly more comprehensive zoning techniques. 265  

As governmental regulation of property has expanded over the years--in terms of zoning and land use controls, environmental regulations, and the like--the Court never developed, as it admitted, a ''set formula to determine where regulation ends and taking begins.'' 266 Rather, as one commentator remarked, its decisions constitute a ''crazy quilt pattern'' of judgments. 267 Nonetheless, the Court has now formulated general principles that guide many of its decisions in the area.

In Penn Central Transportation Co. v. City of New York, 268 the Court, while cautioning that regulatory takings cases require ''essentially ad hoc, factual inquiries,'' nonetheless laid out general guidance for determining whether a regulatory taking has occurred. ''The economic impact of the regulation on the claimant and, particularly, the extent to which the regulation has interfered with reasonable investment-backed expectations are . . . relevant considerations. So too, is the character of the governmental action. A 'taking' may more readily be found when the interference with property can be characterized as a physical invasion by government than when interference arises from some public program adjusting the benefits and burdens of economic life to promote the common good.'' 269  

At issue in Penn Central was the City's landmarks preservation law, as applied to deny approval to construct a 53-story office building atop Grand Central Terminal. The Court upheld the landmarks law against Penn Central's takings claim through application of the principles set forth above. The economic impact on Penn Central was considered: the Company could still make a ''reasonable return'' on its investment by continuing to use the facility as a rail terminal with office rentals and concessions, and the City specifically permitted owners of landmark sites to transfer to other sites the right to develop those sites beyond the otherwise permissible zoning restrictions, a valuable right which mitigated the burden otherwise to be suffered by the owner. As for the character of the governmental regulation, the Court found the landmarks law to be an economic regulation rather than a governmental appropriation of property, the preservation of historic sites being a permissible goal and one which served the public interest. 270  

Justice Holmes began his analysis in Mahon with the observation that ''[g]overnment hardly could go on if to some extent values incident to property could not be diminished without paying for every . . . change in the general law,'' 271 and Penn Central's economic impact standard also leaves ample room for recognition of this principle. Thus, the Court can easily hold that a mere permit requirement does not amount to a taking, 272 nor does a simple rec ordation requirement. 273 The tests become more useful, however, when compliance with regulation becomes more onerous.

Several times the Court has relied on the concept of ''distinct (or ''reasonable'') investment-backed expectations'' first introduced in Penn Central. In Ruckelshaus v. Monsanto Co., 274 the Court used the concept to determine whether a taking had resulted from the government's disclosure of trade secret information submitted with applications for pesticide registrations. Disclosure of data that had been submitted from 1972 to 1978, a period when the statute guaranteed confidentiality and thus ''formed the basis of a reasonable investment-backed expectation,'' would have destroyed the property value of the trade secret and constituted a taking. 275 Following 1978 amendments setting forth conditions of data disclosure, however, applicants voluntarily submitting data in exchange for the economic benefits of registration had no reasonable expectation of additional protections of confidentiality. 276 Relying less heavily on the concept but rejecting an assertion that reasonable investment backed-expectations had been upset, the Court in Connolly v. Pension Benefit Guaranty Corp. 277 upheld retroactive imposition of liability for pension plan withdrawal on the basis that employers had at least constructive notice that Congress might buttress the legislative scheme to accomplish its legislative aim that employees receive promised benefits. On the other hand, a federal ban on the sale of artifacts made from eagle feathers was sustained as applied to the existing inventory of a commercial dealer in such artifacts, the Court not directly addressing the ban's obvious interference with investment-backed expectations. 278 The Court merely noted that the ban served a substantial public purpose in protecting the eagle from extinction, that the owner still had viable economic uses for his holdings, such as displaying them in a museum and charging admission, and that he still had the value of possession. 279  

In the course of its opinion in Penn Central the Court rejected the principle that no compensation is required when regulation bans a noxious or harmful effect of land use. 280 The principle, it had been contended, followed from several earlier cases, including Goldblatt v. Town of Hempstead. 281 In that case, after the town had expanded around an excavation used by a company for mining sand and gravel, the town enacted an ordinance that in effect terminated further mining at the site. Declaring that no compensation was owed, the Court stated that ''[a] prohibition simply upon the use of property for purposes that are declared, by valid legislation, to be injurious to the health, morals, or safety of the community, cannot, in any just sense, be deemed a taking or an appropriation of property for the public benefit. Such legislation does not disturb the owner in the control or use of his property for lawful purposes, nor restrict his right to dispose of it, but is only a declaration by the State that its use by any one, for certain forbidden purposes, is prejudicial to the public interests.'' 282 In Penn Central, however, the Court denied that there was any such test and that prior cases had turned on the concept. ''These cases are better understood as resting not on any supposed 'noxious' quality of the prohibited uses but rather on the ground that the restrictions were reasonably related to the implementation of a policy--not unlike historic preservation--expected to produce a widespread public benefit and applicable to all similarly situated property.'' 283 More recently, in Lucas v. South Carolina Coastal Council, 284 the Court explained ''noxious use'' analysis as merely an early characterization of police power measures that do not require compensation. ''[N]oxious use logic cannot serve as a touchstone to distinguish regulatory 'takings'--which require compensation--from regulatory deprivations that do not require compensation.'' 285  

Penn Central is not the only guide to when a regulatory taking has occurred; other criteria have emerged from other cases before and after Penn Central. The Court has long recognized a per se takings rule for physical invasions: when government permanently 286 occupies or authorizes someone else to occupy property, the action constitutes a taking and compensation must be paid regardless of the public interests served by the occupation or the extent of damage to the parcel as a whole. 287 The modern case dealt with a law that required landlords to permit a cable television company to install its cable facilities upon their buildings; although the equipment occupied only about 1 1/2 cubic feet of space on the exterior of each building and had only de minimis economic impact, a divided Court held that the regulation authorized a permanent physical occupation of the property and thus constituted a taking. 288  

A second per se taking rule is of more recent vintage. Land use controls constitute takings, the Court stated in Agins v. City of Tiburon, if they do not ''substantially advance legitimate govern mental interests,'' 289 or if they deny a property owner ''economically viable use of his land.'' 290 This second Agins criterion creates a categorical rule: ''when the owner of real property has been called upon to sacrifice all economically beneficial uses in the name of the common good, that is, to leave his property economically idle, he has suffered a taking.'' 291 The only exceptions, the Court explained in Lucas, are for those restrictions that come with the property as title encumbrances or other legally enforceable limitations. Regulations ''so severe'' as to prohibit all economically beneficial use of land ''cannot be newly legislated or decreed (without compensation), but must inhere in the title itself, in the restrictions that background principles of the State's law of property and nuisance already place upon land ownership. A law or decree with such an effect must, in other words, do no more than duplicate the result that could have been achieved in the courts-- by adjacent land owners (or other uniquely affected persons) under the State's law of private nuisance, or by the State under its complementary power to abate [public] nuisances . . . , or otherwise.'' 292 Thus, while there is no broad ''noxious use'' exception separating police power regulations from takings, there is a much narrower exception based on the law of nuisance and related principles.

The ''or otherwise'' reference, the Court explained in Lucas, 293 was principally directed to cases holding that in times of great public peril, such as war, spreading municipal fires, and the like, property may be taken and destroyed without necessitating compensation. Thus, in United States v. Caltex, 294 the owners of property de stroyed by retreating United States armies in Manila during World War II were held not entitled to compensation, and in United States v. Central Eureka Mining Co., 295 the Court held that a federal order suspending the operations of a nonessential gold mine for the duration of the war in order to redistribute the miners, unaccompanied by governmental possession and use or a forced sale of the facility, was not a taking entitling the owner to compensation for loss of profits. Finally, the Court held that when federal troops occupied several buildings during a riot in order to dislodge rioters and looters who had already invaded the buildings, the action was taken as much for the owners' benefit as for the general public benefit and the owners must bear the costs of the damage inflicted on the buildings subsequent to the occupation. 296  

The first prong of the Agins test, 297 focusing on whether land use controls ''substantially advance legitimate governmental interests,'' was applied in Nollan v. California Coastal Commission. 298 There the Court held that extraction of a public access easement across a strip of beach as a condition for a permit to enlarge a beachfront home did not ''substantially advance'' the state's legitimate interest in preserving public view of the beach from the street in front of the lot. The easement instead was designed to allow the public to walk back and forth along the beach between two public beaches. ''[U]nless the permit condition serves the same governmental purpose as the development ban,'' the Court concluded, ''the building restriction is not a valid regulation of land use but 'an out-and-out plan of extortion.' '' 299 ''If [the government] wants an easement across the Nollans' property, it must pay for it.'' Supp.19 Because the Nollan Court found no essential nexus between the permit condition and the asserted government interest, it did not address whether there is any additional requirement when such a nexus does exist, as is often the case with land dedications and other permit conditions. Supp.20 Seven years later, however, the Court announced in Dolan v. City of Tigard Supp.21 that conditions attached to development permits must be related to the impact of the proposed development not only in nature but also in degree. Government must establish a ''rough proportionality'' between permit conditions and the developmental impacts at which they are aimed. Supp.22 The Court ruled in Dolan that the city's conditioning of a building permit for expansion of a hardware store on the store owner's dedication of a portion of her land for a floodplain/recreational easement and for an adjacent pedestrian/bicycle pathway amounted to a taking. In general, the requisite nexus existed between the city's interest in flood control and imposition of an easement restricting development in the floodplain, and between the city's interest in minimizing traffic congestion and the required bike path dedication. The floodplain easement, however, went beyond a mere building restriction; it also contained a recreational component that deprived the property owner of the right to exclude others from her land. Because the city had not said ''why a public greenway, as opposed to a private one, was required in the interest of flood control,'' Supp.23 the Court concluded that the city had failed to establish ''the required reasonable relationship'' for this component of the easement. Supp.24 Similarly, the city had not adequately demonstrated a reasonable relationship between the bikepath dedication requirement and the additional vehicle and bicycle trips that would be generated by the applicant's development. Supp.25  

Following the Penn Central decision, the Court grappled with the issue of the appropriate remedy property owners should pursue in objecting to land use regulations. 304 The remedy question arises because there are two possible constitutional objections to be made to regulations that go ''too far'' in reducing the value of property or which do not substantially advance a legitimate governmental interest. The regulation may be invalidated as a denial of due process, or may be deemed a taking requiring compensation, at least for the period in which the regulation was in effect. The Court finally resolved the issue in First English Evangelical Lutheran Church v. County of Los Angeles, holding that, when land use regulation is held to be a taking, compensation is due for the period of implementation prior to the holding. 305 The Court recognized that, even though government may elect in such circumstances to discontinue regulation and thereby avoid compensation for a permanent property deprivation, ''no subsequent action by the government can relieve it of the duty to provide compensation for the period during which the taking was effective.'' 306  

The process of describing general criteria to guide resolution of regulatory taking claims, begun in Penn Central, has reduced to some extent the ad hoc character of takings law. It is nonetheless true that not all cases fit neatly into the categories delimited to date, and that still other cases that might be so categorized are explained in different terms by the Court. The overriding objective, the Court frequently reminds us, is to vitalize the Fifth Amendment's protection against government ''forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole.'' 307 Thus a taking may be found if the effect of regulation is enrichment of the government itself rather than adjustment of the benefits and burdens of economic life in promotion of the public good. 308 Similarly, the Court looks askance at governmental efforts to secure public benefits at a landowner's expense--''government actions that may be characterized as acquisitions of resources to permit or facilitate uniquely public functions.'' 309  

On the other side of the coin, the nature as well as the extent of property interests affected by governmental regulation sometimes takes on importance. The Court emphasizes that the taking of one ''strand'' or ''stick'' in the ''bundle'' of property rights does not necessarily constitute a taking as long as the property as a whole retains economic viability, 310 but some strands are more important than others. The right to exclude others from one's land is so basic to ownership that extinguishment of this right ordinarily constitutes a taking. 311 Similarly valued is the right to pass on property to one's heirs. 312  

Even though takings were found or assumed in the recent decisions in First English, Nollan, and Lucas, considerable obstacles remain for future litigants challenging regulatory restrictions on land use. As suggested above, regulatory takings will most likely remain difficult to establish in spite of Nollan. The Lucas fact situation, in which governmental regulation rendered property ''valueless,'' may prove to be relatively rare (although how the ''segmentation'' issue 313 is handled may prove pivotal in this regard). And even if a taking can be established, the Court cautioned in First English that its holding was limited ''to the facts presented [a taking was assumed] and [did] not deal with the quite different questions that would arise in the case of normal delays in obtaining building per mits, changes in zoning ordinances, variances, and the like.'' 314 Failure to incur such delays can result in dismissal of an as-applied taking claim on ripeness grounds. In Williamson County Regional Planning Comm'n v. Hamilton Bank, 315 for example, the landowner had failed to seek a variance following a planning commission's rejection of a subdivision plat, and had failed to pursue state inverse condemnation procedures. Similarly, in MacDonald, Sommer & Frates v. County of Yolo, 316 the landowner had failed to obtain a ''final and authoritative determination of the type and intensity of development legally permitted on the . . . property.'' As the Court explained, ''[a] court cannot determine whether a regulation has gone 'too far' unless it knows how far the regulation goes.'' 317 The landowner had been denied approval for one subdivision plan calling for intense development, but that one denial had not foreclosed ''the possibility that some deveopment [would] be permitted.'' 318 So too, a challenge to a municipal rent control ordinance was considered ''premature'' in the absence of evidence that a tenant hardship provision had in fact ever been applied to reduce what would otherwise be considered to be a reasonable rent increase. 319 Facial challenges present the same difficulties--without pursuing administrative remedies, a claimant often lacks evidence that a statute's effect is to deny all economically viable uses of property. 320  

Footnotes

[Footnote 236] Legal Tender Cases, 79 U.S. (12 Wall.) 457, 551 (1871). The Fifth Amendment ''has never been supposed to have any bearing upon, or to inhibit laws that indirectly work harm and loss to individuals,'' the Court explained.

[Footnote 237] Meyer v. City of Richmond, 172 U.S. 82 (1898).

[Footnote 238] Sauer v. City of New York, 206 U.S. 536 (1907). But see the litigation in the state courts cited by Justice Cardozo in Roberts v. City of New York, 295 U.S. 264, 278 -82 (1935).

[Footnote 239] Chicago, B. & Q. R.R. v. City of Chicago, 166 U.S. 226 (1897).

[Footnote 240] Manigault v. Springs, 199 U.S. 473 (1905).

[Footnote 241] Pumpelly v. Green Bay Co., 80 U.S. (13 Wall.) 166, 177 -78 (1872).

[Footnote 242] United States v. Dickinson, 331 U.S. 745, 748 (1947).

[Footnote 243] Portsmouth Harbor Land & Hotel Co. v. United States, 260 U.S. 327 (1922). Cf. Portsmouth Harbor Land & Hotel Co. v. United States, 250 U.S. 1 (1919); Peabody v. United States, 231 U.S. 530 (1913).

[Footnote 244] United States v. Causby, 328 U.S. 256 (1946); Griggs v. Allegheny County, 369 U.S. 84 (1962). A corporation chartered by Congress to construct a tunnel and operate railway trains therein was held liable for damages in a suit by one whose property was so injured by smoke and gas forced from the tunnel as to amount to a taking. Richards v. Washington Terminal Co., 233 U.S. 546 (1914).

[Footnote 245] ''The phrase 'inverse condemnation' generally describes a cause of action against a government defendant in which a landowner may recover just compensation for a 'taking' of his property under the Fifth Amendment, even though formal condemnation proceedings in exercise of the sovereign's power of eminent domain have not been instituted by the government entity.'' San Diego Gas & Electric Co. v. City of San Diego, 450 U.S. 621, 638 n.2 (1981) (Justice Brennan dissenting). See also United States v. Clarke, 445 U.S. 253, 257 (1980); Agins v. City of Tiburon, 447 U.S. 255, 258 n.2 (1980).

[Footnote 246] Gibson v. United States, 166 U.S. 269 (1897); Lewis Blue Point Oyster Co. v. Briggs, 229 U.S. 82 (1913); United States v. Chandler-Dunbar Water Power Co., 229 U.S. 53 (1913); United States v. Appalachian Power Co., 311 U.S. 377 (1940); United States v. Commodore Park, Inc., 324 U.S. 386 (1945); United States v. Willow River Power Co., 324 U.S. 499 (1945); United States v. Twin City Power Co., 350 U.S. 222 (1956); United States v. Rands, 389 U.S. 121 (1967).

[Footnote 247] United States v. Virginia Elec. & Power Co., 365 U.S. 624, 628 (1961).

[Footnote 248] United States v. Lynah, 188 U.S. 445 (1903); United States v. Cress, 243 U.S. 316 (1917); Jacobs v. United States, 290 U.S. 13 (1933); United States v. Dickinson, 331 U.S. 745 (1947); United States v. Kansas City Ins. Co., 339 U.S. 799 (1950); United States v. Virginia Electric & Power Co., 365 U.S. 624 (1961).

[Footnote 249] Kaiser Aetna v. United States, 444 U.S. 164 (1979); Vaughn v. Vermillion Corp., 444 U.S. 206 (1979).

[Footnote 250] Mugler v. Kansas, 123 U.S. 623, 668 -69 (1887). See also The Legal Tender Cases, 79 U.S. (12 Wall.) 457, 551 (1871); Chicago, B. & Q. R.R. v. City of Chicago, 166 U.S. 226, 255 (1897); Omnia Commercial Co. v. United States, 261 U.S. 502 (1923); Norman v. Baltimore & Ohio R.R., 294 U.S. 240 (1935).

[Footnote 251] 1 Nichols' The Law of Eminent Domain Sec. 1.42 (J. Sackman, 3d rev. ed. 1973).

[Footnote 252] E.g., Hadacheck v. Sebastian, 239 U.S. 394 (1915) (ordinance upheld restricting owner of brick factory from continuing his use after residential growth surrounding factory made use noxious, even though value of property was reduced by more than 90%); Miller v. Schoene, 276 U.S. 272 (1928) (no compensation due owner's loss of red cedar trees ordered destroyed because they were infected with rust that threatened contamination of neighboring apple orchards: preferment of public interest in saving cash crop to property interest in ornamental trees was rational).

[Footnote 253] Mugler v. Kansas, 123 U.S. 623, 668 -69 (1887) (ban on manufacture of liquor greatly devalued plaintiff's plant and machinery; no taking possible simply because of legislation deeming a use injurious to public health and welfare).

[Footnote 254] Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 415 (1922). See also Lucas v. South Carolina Coastal Council, 112 S. Ct. 2886, 2895 (1992) (a regulation that deprives a property owner of all beneficial use of his property requires compensation, unless the owner's proposed use is one prohibited by background principles of property or nuisance law existing at the time the property was acquired).

[Footnote 255]   260 U.S. at 414 -15.

[Footnote 256] Id. at 415. In dissent, Justice Brandeis argued that a restriction imposed to abridge the owner's exercise of his rights in order to prohibit a noxious use or to protect the public health and safety simply could not be a taking, because the owner retained his interest and his possession. Id. at 416.

[Footnote 257]   480 U.S. 470 (1987). The decision was 5-4. Justice Stevens' opinion of the Court was joined by Justices Brennan, White, Marshall, and Blackmun; Chief Justice Rehnquist's dissent was joined by Justices Powell, O'Connor, and Scalia.

[Footnote 258]   480 U.S. at 485 .

[Footnote 259] Id. at 495-96.

[Footnote 260] Id. at 498-502. How to define the property interest to be measured for diminution in value or economic impact remains largely unresolved. Recent dictum suggests that the answer to segmentation ''may lie in how the owner's reasonable expectations have been shaped by the State's law of property--i.e., whether and to what degree the State's law has accorded legal recognition and protection to the particular interest in land. . . .'' Lucas v. South Carolina Coastal Council, 112 S. Ct. 2886, 2894 n.7 (1992). Application of this test could have led to invalidation in Keystone, inasmuch as Pennsylvania law recognized a support estate allegedly totally eliminated by the mining restriction.

[Footnote 261] Nashville, C. & St. L. Ry. v. Walters, 294 U.S. 405 (1935) (government may not require railroad at its own expense to separate the grade of a railroad track from that of an interstate highway). See also Panhandle Eastern Pipe Line Co. v. State Comm'n, 294 U.S. 613 (1935); Atchison, T. & S. F. Ry. v. Public Utility Comm'n, 346 U.S. 346 (1953), and compare the Court's two decisions in Georgia Ry. & Electric Co. v. City of Decatur, 295 U.S. 165 (1935), and 297 U.S. 620 (1936).

[Footnote 262] Village of Euclid v. Ambler Realty Co., 272 U.S. 365 (1926).

[Footnote 263] Id. at 395. See also Zahn v. Board of Public Works, 274 U.S. 325 (1927).

[Footnote 264] Nectow v. City of Cambridge, 277 U.S. 183 (1928).

[Footnote 265] But see Village of Belle Terre v. Boraas, 416 U.S. 1 (1974) (considering and sustaining single-family zoning as applied to group of college students sharing a house), and Moore v. City of East Cleveland, 431 U.S. 494 (1977) (considering and voiding single-family zoning so strictly construed as to bar a grandmother from living with two grandchildren of different children). Some due process cases were also considered. Eubank v. City of Richmond, 226 U.S. 137 (1912); Washington ex rel. Seattle Trust Co. v. Roberge, 278 U.S. 116 (1928); City of Eastlake v. Forest City Enterprises, 426 U.S. 668 (1976).

[Footnote 266] Penn Central Transp. Co. v. City of New York, 438 U.S. 104, 124 (1978). The phrase appeared first in Goldblatt v. Town of Hempstead, 369 U.S. 590, 594 (1962).

[Footnote 267] Dunham, Griggs v. Allegheny County in Perspective: Thirty Years of Supreme Court Expropriation Law, 1962 Sup. Ct. Rev. 63. For an effort to ground taking jurisprudence in its philosophical precepts, see Michelman, Property, Utility, and Fairness: Comments on the Ethical Foundations of 'Just Compensation' Law, 80 Harv. L. Rev. 1165 (1967). A comprehensive analysis of the law in context is Developments in the Law- Zoning, 91 Harv. L. Rev. 1427 (1978).

[Footnote 268]   438 U.S. 104 (1978). Justices Rehnquist and Stevens and Chief Justice Burger dissented. Id. at 138.

[Footnote 269] Id. at 124 (citations omitted).

[Footnote 270] Id. at 124-28, 135-38.

[Footnote 271]   260 U.S. at 413 .

[Footnote 272] United States v. Riverside Bayview Homes, 474 U.S. 121 (1985) (requirement that permit be obtained for filling privately-owned wetlands is not a taking, although permit denial resulting in prevention of economically viable use of land may be).

[Footnote 273] Texaco v. Short, 454 U.S. 516 (1982) (state statute deeming mineral claims lapsed upon failure of putative owners to take prescribed steps is not a taking); United States v. Locke, 471 U.S. 84 (1984) (reasonable regulation of recordation of mining claim is not a taking).

[Footnote 274]   467 U.S. 986 (1984).

[Footnote 275]   467 U.S. at 1011 .

[Footnote 276]   467 U.S. at 1006 -07. Similarly, disclosure of data submitted before the confidentiality guarantee was placed in the law did not frustrate reasonable expectations, the Trade Secrets Act merely protecting against ''unauthorized'' disclosure. Id. at 1008-10.

[Footnote 277]   475 U.S. 211 (1986). Accord, Concrete Pipe & Products v. Construction Laborers Pension Trust, 508 U.S. 602, 645-46 (1993). In addition, see Kaiser Aetna v. United States, 444 U.S. 164, 179 (1979) (involving frustration of ''expectancies'' developed through improvements to private land and governmental approval of permits), and PruneYard Shopping Center v. Robins, 447 U.S. 74, 84 (1980) (characterizing and distinguishing Kaiser Aetna as involving interference with ''reasonable investment backed expectations'').

[Footnote 278] Andrus v. Allard, 444 U.S. 51 (1979).

[Footnote 279] Similarly, the Court in Goldblatt had pointed out that the record contained no indication that the mining prohibition would reduce the value of the property in question. 369 U.S. at 594 . Contrast Hodel v. Irving, 481 U.S. 704 (1987), where the Court found insufficient justification for a complete abrogation of the right to pass on to heirs interests in certain fractionated property. Note as well the differing views expressed in Irving as to whether that case limits Andrus v. Allard to its facts. Id. at 718 (Justice Brennan concurring, 719 (Justice Scalia concurring). And see the suggestion in Lucas v. South Carolina Coastal Council, 112 S. Ct. 2886, 2899-900 (1992), that Allard may rest on a distinction between permissible regulation of personal property, on the one hand, and real property, on the other.

[Footnote 280] The dissent was based upon this test. 438 U.S. at 144 -46.

[Footnote 281]   369 U.S. 590 (1962). Hadacheck v. Sebastian, 239 U.S. 394 (1915), and, perhaps, Miller v. Schoene, 276 U.S. 272 (1928), also fall under this heading, although Schoene may also be assigned to the public peril line of cases.

[Footnote 282] Id. at 593 (quoting Mugler v. Kansas, 123 U.S. 623, 668 -69 (1887). The Court posited a two-part test. First, the interests of the public required the interference, and, second, the means were reasonably necessary for the accomplishment of the purpose and were not unduly oppressive of the individual. Id. at 595. The test was derived from Lawton v. Steele, 152 U.S. 133, 137 (1894) (holding that state officers properly destroyed fish nets that were banned by state law in order to preserve certain fisheries from extinction).

[Footnote 283]   438 U.S. at 133 -34 n.30.

[Footnote 284] 112 S. Ct. 2886 (1992).

[Footnote 285] Id. at 2899. The Penn Central majority also rejected the dissent's contention, 438 U.S. at 147 -50, that regulation of property use constitutes a taking unless it spreads its distribution of benefits and burdens broadly so that each person burdened has at the same time the enjoyment of the benefit of the restraint upon his neighbors. The Court deemed it immaterial that the landmarks law has a more severe impact on some landowners than on others: ''Legislation designed to promote the general welfare commonly burdens some more than others.'' Id. at 133-34.

[Footnote 286] By contrast, the per se rule is inapplicable to temporary physical occupations of land. Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 428 , 434 (1982); PruneYard Shopping Center v. Robins, 447 U.S. 74, 84 (1980).

[Footnote 287] The rule emerged from cases involving flooding of lands and erection of poles for telegraph lines, e.g., Pumpelly v. Green Bay Co., 80 U.S. (13 Wall.) 166 (1872); City of St. Louis v. Western Union Telegraph Co., 148 U.S. 92 (1893); Western Union Telegraph Co. v. Pennsylvania R.R., 195 U.S. 540 (1904).

[Footnote 288] Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419 (1982). Loretto was distinguished in FCC v. Florida Power Corp., 480 U.S. 245 (1987); regulation of the rates that utilities may charge cable companies for pole attachments does not constitute a taking in the absence of any requirement that utilities allow attachment and acquiesce in physical occupation of their property. See also Yee v. City of Escondido, 112 S. Ct. 1522 (1992) (no physical occupation was occasioned by regulations in effect preventing mobile home park owners from setting rents or determining who their tenants would be; owners could still determine whether their land would be used for a trailer park and could evict tenants in order to change the use of their land).

[Footnote 289] This test was derived from Nectow v. City of Cambridge, 277 U.S. 183 (1928), a due process case.

[Footnote 290]   447 U.S. 255, 260 (1980).

[Footnote 291] Lucas v. South Carolina Coastal Council, 112 S. Ct. 2886, 2895 (1992). The Agins/Lucas total deprivation rule does not create an all-or-nothing situation, since ''the landowner whose deprivation is one step short of complete'' may still be able to recover through application of the Penn Central economic impact and ''distinct [or reasonable] investment-backed expectations'' criteria. Id. at 2895 n.8 (1992).

[Footnote 292] Id. at 2900. The emphasis on title suggests that the timing of governmental regulation in relation to title transfer may be important. But there are apparently limits to how far this principle may be carried. In Nollan v. California Coastal Comm'n, 483 U.S. 825 (1987), in which Justice Scalia also authored the Court's opinion, the Court rejected the suggestion that title was encumbered by an easement imposed by a regulation that antedated property transfer. ''So long as the Commission could not have deprived the prior owners of the [beach access] easement without compensating them, the prior owners must be understood to have transferred their full property rights in conveying the lot.'' Id. at 834 n.2.

[Footnote 293] 112 S. Ct. at 2900 n.16.

[Footnote 294]   344 U.S. 149 (1952). In dissent, Justices Black and Douglas advocated the applicability of a test formulated by Justice Brandeis in Nashville, C. & St. L. Ry. v. Walters, 294 U.S. 405, 429 (1935), a regulation case, to the effect that ''when particular individuals are singled out to bear the cost of advancing the public convenience, that imposition must bear some reasonable relation to the evils to be eradicated or the advantages to be secured.''

[Footnote 295]   357 U.S. 155 (1958). In dissent, Justice Harlan argued for the test stated above. Id. at 179. See supra, n.6.

[Footnote 296] National Bd. of YMCA v. United States, 395 U.S. 85 (1969). ''An undertaking by the Government to reduce the menace from flood damages which were inevitable but for the Government's work does not constitute the Government a taker of all lands not fully and wholly protected. When undertaking to safeguard a large area from existing flood hazards, the Government does not owe compensation under the Fifth Amendment to every landowner which it fails to or cannot protect.'' United States v. Sponenbarger, 308 U.S. 256, 265 (1939).

[Footnote 297] Agins v. City of Tiburon, 447 U.S. 255, 260 (1980).

[Footnote 298]   483 U.S. 825 (1987).

[Footnote 299] Id. at 837.

[Footnote 19 (1996 Supplement)] 483 U.S. at 842.

[Footnote 20 (1996 Supplement)] Justice Scalia, author of the Court's opinion in Nollan, amplified his views in a concurring and dissenting opinion in Pennell v. City of San Jose, 485 U.S. 1 (1988), explaining that ''common zoning regulations requiring subdividers to observe lot-size and set-back restrictions, and to dedicate certain areas to public streets, are in accord with [constitutional requirements] because the proposed property use would otherwise be the cause of'' the social evil (e.g., congestion) that the regulation seeks to remedy. By contrast, the Justice asserted, a rent control restriction pegged to individual tenant hardship lacks such cause-and-effect relationship and is in reality an attempt to impose on a few individuals public burdens that ''should be borne by the public as a whole.'' 485 U.S. at 20, 22.

[Footnote 21 (1996 Supplement)] 114 S. Ct. 2309 (1994). This was a 5-4 decision. Chief Justice Rehnquist's opinion of the Court was joined by Justices O'Connor, Scalia, Kennedy, and Thomas. Justices Blackmun and Ginsburg joined Justice Stevens' dissenting opinion, and Justice Souter added a dissenting opinion.

[Footnote 22 (1996 Supplement)] Id. at 2319-20. Justice Stevens' dissent criticized the Court's ''abandon[ment of] the traditional presumption of constitutionality and imposi[tion of] a novel burden of proof on [the] city.'' Id. at 2326. The Court responded by distinguishing between challenges to generally applicable zoning regulations, where the burden appropriately rests on the challenging party, and imposition of property exactions through adjudicative proceedings, where ''the burden properly rests on the city.'' Id. at 2320 n.8. As for the standard of proof, the Court looked to state law and rejected the two extremes--a generalized statement of connection deemed ''too lax'' to protect the Fifth Amendment right to just compensation, and a ''specific and uniquely attributable'' test deemed too exacting. Instead, the Court chose an ''intermediate position'' requiring a showing of ''reasonable relationship,'' but recharacterized it as ''rough proportionality'' in order to avoid confusion with ''rational basis.'' Id. at 2319. Note, however, that the Court stated its holdings in terms of lack of ''reasonable relationship,'' rather than lack of ''rough proportionality.''

[Footnote 23 (1996 Supplement)] Id. at 2320.

[Footnote 24 (1996 Supplement)] Id. at 2321. This conclusion, Justice Souter pointed out in dissent, sounds very much like ''an application of Nollan's nexus analysis.'' Id. at 2330.

[Footnote 25 (1996 Supplement)] The city had quantified the traffic increases that could be expected from the development, but had merely speculated that construction of the bike path ''could offset'' some of that increase. While ''[n]o precise mathematical calculation is required,'' the Court concluded, ''the city must make some effort to quantify its findings in support of the dedication.'' Id. at 2322.

[Footnotes 300-303] Deleted in 1996 Supplement.

[Footnote 304] See, e.g., Agins v. City of Tiburon, 447 U.S. 255 (1980) (issue not reached because property owners challenging development density restrictions had not submitted a development plan); Hodel v. Virginia Surface Mining & Reclamation Ass'n, 452 U.S. 264, 293 -97 (1981), and Hodel v. Indiana, 452 U.S. 314, 333 -36 (1981) (rejecting facial taking challenges to federal strip mining law).

[Footnote 305]   482 U.S. 304 (1987). The decision was 6-3, Chief Justice Rehnquist's opinion of the Court being joined by Justices Brennan, White, Marshall, Powell, and Scalia, and Justice Stevens' dissent being joined in part by Justices Blackmun and O'Connor. The position the Court adopted had been advocated by Justice Brennan in a dissenting opinion in San Diego Gas & Elec. Co. v. City of San Diego, 450 U.S. 621, 636 (1981) (dissenting from Court's holding that state court decision was not ''final judgment'' under 28 U.S.C. Sec. 1257).

[Footnote 306]   482 U.S. at 321 .

[Footnote 307] Armstrong v. United States, 364 U.S. 40, 49 (1960). For other incantations of this fairness principle, see Penn Central, 438 U.S. at 123 -24; and Andrus v. Allard, 444 U.S. 51, 65 (1979).

[Footnote 308] Webb's Fabulous Pharmacies v. Beckwith, 449 U.S. 155 (1980) (government retained the interest derived from funds it required to be deposited with the clerk of the county court as a precondition to certain suits; the interest earned was not reasonably related to the costs of using the courts, since a separate statute required payment for the clerk's services). By contrast, a charge for governmental services ''not so clearly excessive as to belie [its] purported character as [a] user fee'' does not qualify as a taking. United States v. Sperry Corp., 493 U.S. 52, 62 (1989).

[Footnote 309] Penn Central Transp. Co. v. New York City, 438 U.S. 104, 128 (1978). In addition to the cases cited there, see also Kaiser Aetna v. United States, 444 U.S. 164, 180 (1979) (viewed as governmental effort to turn private pond into ''public aquatic park''); Nollan v. California Coastal Comm'n, 483 U.S. 825 (1987) (''extortion'' of beachfront easement for public as permit condition unrelated to purpose of permit).

[Footnote 310] Andrus v. Allard, 444 U.S. 51, 65 -66 (1979) (denial of most profitable use of artifacts--the right to sell them--does not constitute a taking, since rights to possession, transportation, display, donation, and devise were retained).

[Footnote 311] Nollan v. California Coastal Comm'n, 483 U.S. 825, 831 -32 (1987) (physical occupation occurs with public easement that eliminates right to exclude others); Kaiser Aetna v. United States, 444 U.S. 164 (1979) (imposition of navigation servitude requiring public access to a privately-owned pond was a taking under the circumstances; owner's commercially valuable right to exclude others was taken, and requirement amounted to ''an actual physical invasion''). But see PruneYard Shopping Center v. Robins, 447 U.S. 74, 84 (1980) (requiring shopping center to permit individuals to exercise free expression rights on property onto which public had been invited was not destructive of right to exclude others or ''so essential to the use or economic value of [the] property'' as to constitute a taking).

[Footnote 312] Hodel v. Irving, 481 U.S. 704 (1987) (complete abrogation of the right to pass on to heirs fractionated interests in lands constitutes a taking).

[Footnote 313] See n.260, supra.

[Footnote 314]   482 U.S. at 321 .

[Footnote 315]   473 U.S. 172 (1985).

[Footnote 316]   477 U.S. 340 (1986).

[Footnote 317] Id. at 348.

[Footnote 318] Id. at 352.

[Footnote 319] Pennell v. City of San Jose, 485 U.S. 1 (1988).

[Footnote 320] See, e.g., Hodel v. Virginia Surface Mining & Reclamation Ass'n, 452 U.S. 264, 295 -97 (1981) (facial challenge to surface mining law rejected); United States v. Riverside Bayview Homes, 474 U.S. 121, 127 (1985) (mere permit requirement does not itself take property).



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