The Taking Issue

1
The Taking Issue

• Lecture Series 3
• John Keller Plan 752 Planning Law

2
Nor shall private property be taken except for a
public purpose and then on payment of just
compensation

• The Takings Clause the 5th Amendment to the
  Constitution of the United States

3
Introduction to Takings

• The First Period Pre 1856
• The general legal conception is that no taking
  can occur without a touching
• A touching is a physical invasion on to private
  property by the government

4
Examples of Touching

• Brick Presbyterian Church v City of NY
• In 1843 NYC passed a law that prohibited dead
  bodies from being buried within the city limits
• Brick Presbyterian Church purchased a plot of
  ground next to the church for cemetery purposes
• They brought suit against NYC on the theory that
  their property had been taken since it could no
  longer be used for burial purposes

5
Brick Continued

• Bricks Argument
• A regulation so severe as to deprive an owner of
  all ppractical use of the property is a taking
  and due compensation
• Courts Decision
• No reason can be advanced for providing
  compensation for an injury arising from a mere
  regulation. No property was entered and none was
  taken

6
The Wharf Case

• Commonwealth v Alger
• City of Boston passes a law in 1847 that
  prohibits the erection of a wharf into the Boston
  harbor unless it is less than 100 feet. The
  harbor was nearly impassible by this time because
  of wharfs projecting far out into the navigation
  area

7
Alger - Continued

• The Allegation
• Alger brings suit under the theory that this
  constitutes a restraint of free trade and
  deprives them of the opportunity to use their
  property to the fullest. Their allegation is that
  a restraint of trade is the same thing as the
  government divesting them of all or part of the
  title to their property

8
Alger - Decision

• The Court Finds
• This is a just restraint of an injurious use.
  Government uses eminent domain to appropriate
  property to a private use and the police power to
  prevent injury to the public interest. This is
  not an appropriation of property but a restraint.

9
Second Period

• Civil War to Mugler
• Judicial thinking remain much the same until
  after the turn of the Century
• In order to find a taking government must
  constitute some sort of physical invasion of
  private property. If government enacted a
  regulation to protect the public from an
  injurious use it was not more than a mere
  regulation.

10
Pumpelly v Green Bay

• A Physical Invasion
• In 1871 the U.S. Army Engineers erected a dyke
  along a one side of a river.to protect a fort
  from flooding. This caused the adjacent field to
  flood more often than was normal. Pumpelly sued
  under the theory that the government had taken
  his land as a water storage basin

11
The Decision

• The Interpretation
• The court found that in the strict sense of the
  law the property was not taken by the government.
  However, the floodwater, which normally inundated
  the fort was diverted to the owners land and
  this, in reality constitutes a physical invasion
  or a touching and thus a taking that must be
  compensated

12
Alcohol and Kansas

• Mugler v Kansas - 1887
• In 1880 Kansas passed a constitutional amendment
  that forbade the manufacture of alcohol. Mugler
  owned a distillery in Salina, KS. In 1885 he was
  ordered to cease operations. Mugler sued under
  the theory that the State had deprived him of all
  value of his land and the 10,000 he had paid for
  the manufacturing operation

13
Supreme Court Reasoning

• The Rationale
• The prohibition by the State of Kansas, in its
  Constitution and laws, of the manufacture or sale
  within the limits of the State of intoxicating
  liquors for general use there as a beverage, is
  fairly adapted to the end of protecting the
  community against the evils which result from
  excessive use of ardent spirits and is not
  subject to the objection that, under the guise of
  police regulations, the State is aiming to
  deprive the citizen of his constitutional rights.

14
Mugler - Continued

• The Findings
• A prohibition 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, is not an appropriation of
  property for the public benefit, in the sense in
  which a taking of property by the exercise of the
  State's power of eminent domain is such a taking
  or appropriation.
• AND

15
Mugler - Continued

• The destruction of a property right, in the
  exercise of the police power of the State,in
  violation of law,is not a taking of property for
  public use, and does not deprive the owner of it
  without due process of law.

16
Mugler After the Trial Muglers Granddaughter
Today
17
Justice Harlans Dictum

• The State takes property for the public good and
  for public use through eminent domain after
  compensation
• The State protects the public health and safety
  through the police power
• No compensation can arise from a mere police
  power regulation

18
The Modern Era

• Penn. Coal Company v Mahon
• A Penn statute forbids the removal of the coal
  support estate under any land used for a
  residence, cemetery, school, public building,
  town, or factory
• Mahon had purchased the home from an individual
  who had sold the mineral and supports rights to
  Penn Coal. Mahon purchased the property with full
  knowledge that the support right had passed to
  Penn Coal

19
The Act
Centralia 1983 Centralia
1999
20
Centralia Today - 2002
21
National Fuel in 1922
                              
22
Support Estate
23
Justice Holmes

• Government could hardly go on if to some extent
  values incidental to property could not be
  diminished without paying for every such change.
  Some values are enjoyed under an implied
  limitation and must yield to the police power.
  But obviously,the implied limitation must have
  its limits or the right of contract and the due
  process clause are gone

24
Holmes Continues

• One fact for consideration in determining such
  limits is the extent of diminution. When it
  reaches a certain magnitude, in most if not in
  all cases, there must be an exercise of eminent
  domain
• The right to coal consists in the right to mine
  it. This coal is the property of the Penn Coal
  Company. In this sense all value of the property
  has been destroyed

25
The Impact

• Penn. Coal makes the end of an era of judicial
  thinking.
• The impact is that a regulatory taking was
  possible when the magnitude of the diminution
  passed a certain point
• In the Penn Coal was this magnitude reach the
  categorical level where all value of the resource
  was destroyed

26
Agins v Tiburon 1980

• After appellants acquire five acres of unimproved
  land in Tiburon for residential development
• The city was required by California law to
  prepare a general plan governing land use and the
  development of open-space land.
• In response, the city adopted zoning ordinances
  that placed appellants' property in a zone in
  which property may be devoted to one-family
  dwellings

27
Restrictions

• Sliding scale densities allowed between 1 5
  dwellings on the 5 acre tract
• Agins sues for a taking
• Claims damages of 2 million and that the
  ordinance is facially invalid

28
Findinsg

• In this case, the zoning ordinance substantially
  advances legitimate governmental goals. The State
  of California has determined that the development
  of local open-space plans will discourage the
  "premature and unnecessary conversion of
  open-space land to urban uses."

29
Must Compensation Be in the Same Coin?

• Penn. Central Transportation Company

30
Background

• The New York City Landmarks Designation Law is
  administered by the Landmark Review Committee of
  11 members with a staff
• They are charged with approving any changes or
  modification to a Landmark Property
• Grand Central Station was completed in 1913 by
  Reed , Stern and Warren and was designated as a
  landmark site in 1968

31
Grand Central A National Masterpiece in the
French Beaux Arts
32
Controversy

• Penn. Central Railroad gave a 50 year lease to a
  U.K. Corp. who intended to build a complex of
  office buildings above the terminal
• Two plans were submitted the first for 55
  stories and the other for 53 stories. One plan
  would have stripped the façade from the building

33
Commissions Review

• A 55 story office building above a flamboyant
  Beaux-Arts façade cannot be divorced from the
  setting. The Landmarks Commission designates a
  number of other properties owned by Penn. Central
  as receiving zones

34
Other Buildings By the Architect
Taipei 101 in Taiwan
35
The Concept
36
Transfer Rights Scheme

• Under the TDR concept, the owner may transfer the
  development rights from the sending to a
  designated receiving zone

Sending District
Receiving Zones
37
Response

• Penn. Central files suit alleging that the
  Landmarks ruling and transfer law constitute a
  taking is that just compensation was not given to
  them
• Landmarks Commission responds by noting that
  Penn. Central owns numerous properties in the
  nearby vicinity suitable to accept this type of
  density

38
And Further

• Penn. Central argues that they are losing money
  on the operation of the terminal and need to
  income from the lease to turn a profit.
• The Terminal is a valuable property interest,
  They urge that the Landmarks Law has deprived
  them of any gainful use of their "air rights"
  above the Terminal and that, irrespective of the
  value of the remainder of their parcel, the city
  has "taken" their right to this superjacent
  airspace, thus entitling them to "just
  compensation" measured by the fair market value
  of these air rights.

39
Supreme Court Decision

• Nothing the Commission has said or done suggests
  an intention to prohibit ay construction above
  the Terminal.
• The Commission's report emphasized that whether
  any construction would be allowed depended upon
  whether the proposed addition "would harmonize in
  scale, material, and character with the
  terminal.
• Since appellants have not sought approval for
  the construction of a smaller structure, we do
  not know that appellants will be denied any use
  of any portion of the airspace above the Terminal.

40
TDR Ruling

• Although appellants and others argue that New
  York City's transferable development rights
  program is far from ideal, The New York courts
  here supportably found that, at least in the case
  of the Terminal, the rights afforded are
  valuable.
• While these rights may well not have constituted
  "just compensation" if a "taking" had occurred,
  the rights nevertheless undoubtedly mitigate
  whatever financial burdens the law has imposed on
  appellants and, for that reason, are to be taken
  into account in considering the impact of
  regulation.

41
Conclusion

• On this record, we conclude that the application
  of New York City's Landmarks Law has not effected
  a "taking" of appellants' property. The
  restrictions imposed are substantially related to
  the promotion of the general welfare, and not
  only permit reasonable beneficial use of the
  landmark site, but also afford appellants
  opportunities further to enhance not only the
  Terminal site proper but also other properties.

42
How Big Is A Taking?

• Loretto v.Teleprompter
• Manhattan CATV Corp.

43
The Controversy

• Mrs Loretto purchases a 5 story apartment
  building in NYC
• The previous owner of the building granted CATV
  the right to install TV cable lines and
  connectors on the outside of the building. The
  buildings tenants themselves were not connected
  to the cable

44
And Then

• Two years after Mrs. Loretto purchases the
  building the CTAV runs a line to the tenants in
  the building
• The CTAV did not ask permission
• A NYC Law forbade interference by a landlord and
  just grants them a flat one dollar compensation.
  Tenants had to pay for the actual cost of hookup

45
The Tenants Were Pleased
46
Mrs Loretto Was Not Pleased

• She discovers the installation
• Claims a taking and a trespass
• The district court rejects the claim that a
  physical occupation always constitutes a taking
  

47
Analysis

• On appeal the court determined that the law
  requires that a landlord allow both crossover and
  non-crossover connection. The owner would be
  compensated for non-crossover connections only.
  The court did not determine if 1 was adequate
  compensation. They said the law was necessary in
  a era of rapidly growing communications

48
Supreme Court Decision

• There is no exact set formula of what constitutes
  a taking
• A taking is more easily found where they is a
  direct physical invasion rather than a public
  regulation
• Even though the interference is insubstantial a
  physical invasion is still compensable
• And the courted noted that there are three
  distinctions that should be considered

49
Distinctions

• A permanent physical invasion
• A physical invasion of short duration
• And a regulation that merely restricts the use of
  property

Regulatory
Permanent
Temporary
50
Conclusions

• In short, when the "character of the governmental
  action," is a permanent physical occupation of
  property, our cases uniformly have found a taking
  to the extent of the occupation, without regard
  to whether the action achieves an important
  public benefit or has only minimum economic
  impact on the owner

51
Result

• Teleprompter's cable installation on appellant's
  building constitutes a taking under the
  traditional test.
• The installation involved a direct physical
  attachment of plates, boxes, wires, bolts, and
  screws to the building
• We find no constitutional difference between a
  crossover and a non-crossover installation. The
  portions of the installation necessary for both
  crossovers and non-crossovers permanently
  appropriate appellant's property. Accordingly,
  each type of installation is a taking.

52
The Swamp Case Series Parsippany-Troy Hills
53
The Area
54
Background

• This involves the use of a wetlands area of about
  1,500 acres know as Troy Meadows
• There are practically no uses in this area and
  about 75 is owned by a private conservation
  trust
• The plaintiff owns and operates a sand and gravel
  extraction business on a large tract zoned
  industrial. This company has filled a large
  portion of their land

55
The Controversy

• In 1954 the township passes a zoning amendment
  that forbids the establishment of any new use, or
  the expansion of an existing use, in the Troy
  Meadows except for an agricultural type use. The
  law also forbade the filling of the wetlands

56
The Actions

• Later, a new Meadowlands Development Zone was
  added that allowed hunting and fishing,
  communications towers, wildlife parks, and sewage
  plants and public water facilities

57
Response

• The sand and gravel business ignored the new
  amendments and continued to fill their portion of
  the wetlands.
• Finally the business file suit saying that the
  government had appropriated the property to
  public use
• They were allowed under a special permit to fill
  within 300 feet of the road

58
The Case

• New Jersey Supreme Court
• the two main and practical effect of retaining
  the meadows in their natural interrelated aspects
  are
• first, a detention basin in aid of flood
  control in the lower reaches of the Passaic
  Valley far beyond this municipality
• and second, preservation of the land as open
  space for the benefits which would accrue to the
  local public from an undeveloped use such as that
  of a nature refuge by the Wildlife Preserve This
  prime public, rather than private, utilization
  can be clearly implied from the purpose sections
  of the zone regulations

59
The Decision

• We are in danger of forgetting that a strong
  public desire to improve is not enough to
  warrant achieving the desire by a shorter cut
  than the constitutional way of paying for the
  change.
• While the issue of regulation as against taking
  is always a matter of degree, there can be no
  question but that the line has been crossed where
  the purpose and practical effect of the
  regulation is to appropriate private property for
  a flood water detention basin or open space.

60
Just v Marinette County 1972
The Justs Tract 36.4 acres
Lake Noquebay
No Fill Area
61
The Statute

• Wisconsin passes a shore lands ordinance
• Shore lands are defined as land within 1,000 feet
  of the normal high water elevation of navigable
  lakes
• All county shore land ordinances must be approved
  by the state or the state will adopt an ordinance
  for them

62
Now Comes the Justs

• The Justs buy a tract of 36 acres along a
  navigable lakes
• It has a frontage of 1266 along the lake
• Over the next few years the Just sell 5 lots with
  lake frontage that extend back 600 feet it has
  a frontage of 366

63
The Justs Land
366 feet
Lake Noquebay
5 parcels sold
Land retained by the Justs
Marshes and Swamp Land
64
The Next Act

• Without a permit the Justs begin filling the
  marshes with sand and fill dirt
• County issues a stop work order and fines the
  Justs
• The Justs file suit in district court alleging
  that the ordinance constitutes a taking without
  compensation

65
Legal Test

• The trial court finds for the State and fines the
  Justs
• The Justs appeal and demand money damages
• The State contends that it is a conflict between
  the right of the property owner to alter land
  versus the authority of the State to prevent
  environmental destruction

66
The Courts Questions

• Is an owners right to alter land so absolute
  that it can be changed to any purpose?
• Is this case is an owners right so absolute that
  they can change the essential character to an use
  that is unsuitable and damaging to the rights of
  others?

67
Rulings

• This is not a case where an owner is prohibited
  for using land for natural or indigenous uses
• Altering and filling are not always prohibited
  just when they pose harm
• Nothing in law indicates that destroying a
  wetland is a reasonable use of the land

68
Final Decision

• The Justs say that the value of their land has
  been severely depreciated
• This depreciation is only based on what the land
  would be worth if it were filled for housing
  not its natural state

69
The Justs Were Not Happy and Bought a Portable
Sign To Place On Their Property
70
Sibson v State
To be Filled
Sibson House
Wetland 6 acres tract
71
Background

• Sibson owns a 6 acre tract of wetland near
  Portsmouth NH.
• The Sibsons filled 2 acres of the wetland,
  constructed a house, and later sold it for
  75,000
• They then applied to fill the remaining 4 acres

72
The Application

• The NH Board of Water Resources denied the permit
  and cited irreparable harm to the ecology of the
  marsh.
• The Sibsons claimed a taking and filed suit to
  force compensation
• They relied on the Penn Coal case citing that
  when all or substantially all of the value of
  land is taken through regulation that the owner
  is due just compensation

73
NH Supreme Court

• The court found that clearly the police power is
  sufficient to prevent the filling of the marsh
  and that the power was properly exercised by the
  state
• The action of the State Board did not depreciate
  the value of the wetland. Its value was the same
  after the denial of the permit. All traditional
  uses of the wetland remain. In other words, if
  you pay swamp prices you get swamp uses. The
  owner has no absolute right to change the
  essential character of the land for a purpose to
  which it is unsuited

74
Agins v Tiburon
75
Agins v Tiburon 1980

• California requires all cities to prepare a
  general land use and open space plan
• Agins, a developer, acquires 5 acres in Tiburon.
• Tiburon is nearly 100 developed
• A new zoning amendment is passed which placed
  Agins land in a district that allowed between 1
  5 homes discretionary on review by the city

76
Agins Issues

• Agins claims a regulatory taking in that they
  could not recoup the value of the land with just
  one home
• Tiburon claims the issue is not ripe because the
  rule was not tested as applied
• Does the amendment deny Agins all use of the
  land without just compensation

77
Supreme Court Decsion

• Since no development plan was submitted, the
  court had to answer the question of a facial
  taking
• A ordinance such as this cannot be a taking as
  long as the state advances a legitimate interest
  or denies all economically viable uses of the
  property
• The legitimate state interest in this case is the
  value of open space and urban conversion

78
First English
79
Angeles Nt. Forest
80
Background

• In 1957 the First Evangelical Lutheran Church
  purchases21-acre parcel of land in a canyon along
  the banks of the Middle Fork of Mill creek in the
  Angeles National Forest. This land is a natural
  drainage channel for the watershed area owned by
  the National Forest service.

81
The Use

• A summer camp for handicapped children
• July 1977, a forest fire destroys approximately
  3,860 acres of the watershed area, creating a
  serious flood hazard. February 1978 a flood
  occurs and the runoff from the storm floods the
  land where Lutherglen sits and destroys all of
  its buildings.

82
After the Flood
Its hard to make something foolproof when there
are so many clever fools
83
Enter the County

• L. A. County passes an ordinance that forbids
  building anywhere in the interim flood zone.
• If course Lutherglen is right in the middle of
  the flood zone
• And, of course First Lutheran files suit against
  Los Angeles County

84
Case and Appeals

• The district court dismisses the suit for damages
  by First Lutheran for a taking of there property.
• The appeals court upholds the trial court citing
  Agins v Tiburon.
• There is also a snicker or two about L.A. County
  participating in cloud seeding and causing the
  whole thing.

85
Cloud Seeding?
Members of our church always wear their
seatbelts so aliens cant suck them out of the
car
86
More Courts

• Eight years after the initial hearing the case is
  passed to the Supreme Court
• The question now does not relate to Lutherglen
  itself, but whether a taking can be characterized
  as temporary
• The Sp. Ct. finds that the proper remedy is
  monetary damages if the ordinance is found to
  constitute a taking

87
Bottom Line

• As Justice Holmes aptly noted more than 50 years
  ago, "a strong public desire to improve the
  public condition is not enough to warrant
  achieving the desire by a shorter cut than the
  constitutional way of paying for the change
• Remand the case to Calif. Courts to determine if
  a taking occurred

88
Opening Shots - Nollan

• The Nollans own a beachfront property in Ventura
  County California.
• ¼ mile north of the property is the Faria County
  Park (an Oceanside public beach and recreation
  area). Another public beach known locally as the
  Cove is located approx. 1,800 ft to the south
  of the property.

89
Facts

• An 8 high sea wall divides the lot from the
  beach portion of the lot. At the time a 504 sq.
  ft. bungalow existed on the property and was used
  to rent out to vacationers

90
Regional Location
91
Closer View
92
Here It IS!
93
Seawall
94
Next Round

• Nollans originally leased the lot with the option
  to buy. Nollans wanted to buy the lot and could
  do so under the following conditions
• Existing bungalow must be demolished and a single
  family structure (remaining consistent with
  neighboring structures) would replace it.
• In order to replace structure Nollans needed
  coastal development permit from the California
  Coastal Commission. A permit of application was
  submitted on Feb. 25, 1982.

95
Controversy Begins

• Commission recommended permit upon the condition
  that they allow a public easement on the portion
  of their property bordered on one side by the 8ft
  sea wall and on the other by the mean high tide
  line. Essentially allowing a lateral easement for
  the public to pass through their property.
• Nollans protested the condition but the
  California Coastal Commission overruled and
  granted the permit pending the Nollans obtain
  recordation of a deed restriction granting the
  easement

96
The Arguments

• Nollans Argument
• Condition could not be imposed unless the
  proposed development had a direct adverse impact
  on the public access to the beach
• The California Coastal Commission condition was
  essentially a taking and in violation of the
  property clauses in the Constitutions 5th and
  14th Amendments

97
The Contra Arguments

• California Coastal Commissions Argument
• Protecting the Publics ability to see the beach
• Assisting the public in overcoming the
  psychological barrier to using the beach
  created by a developed shorefront
• Preventing congestion on public beaches
• Commission had similar conditions on 43 of the 60
  properties in that tract

98
The Court History

• Court History
• June 3, 1982-Nollans appeal to the Ventura
  California Superior Court to invalidate the
  access condition. Court agrees and sends case
  back to California Coastal Commission.
• California Coastal Commission holds public
  hearing and reaffirms its position on the
  condition.
• Nollans take case to Superior Court claiming the
  condition is in violation of the taking clause of
  the 5th Amendment. Court sides with Nollans.

99
Next Step

• California Coastal Commission appeals to the
  California Court of Appeals. Court of appeals
  finds in favor of the California Coastal
  Commission citing that if the project creates a
  need for public access and condition was related
  to burdens created by the project the condition
  would be constitutional.
• Case is taken to U.S. Supreme Court and argued
  March 30, 1987.

100
Enter the Supreme Court

• U.S. Supreme Court Decision and Implications
• Court found that a permit condition is not a
  taking if it serves the same legitimate
  governmental purpose that a refusal to issue the
  permit would serve (Mandelker 2003).
• However, it is unclear how allowing a lateral
  access will lower the psychological barrier
  imposed by the new development and or how it
  helps to alleviate congestion in the two near by
  public beaches. It is further unclear as to how
  the access will help reduce the viewing of the
  public beach.

101
Conclusions

• In a sense there was not found to be a nexus
  between the California Coastal Commissions
  arguments and the intended purpose of the
  condition.
• Court agrees with the commission that the
  comprehensive coastal access proposed by the
  California Coastal Commission is a good idea,
  however they will have to compensate the Nollans
  if they want the easement.
• Court finds in favor of the Nollans.

102
In Other Words

• There was a touching (permit condition)
• The State could not raise the need to such a
  level that it would justify a physical
  interference with the Nollans property

103
David H. Lucas v. South Carolina Coastal
CouncilU.S. Supreme Court505 U.S. 1003June 29,
1992
104
(No Transcript)
105
Background

• 1972 Federal Coastal Zone Management Act
• 1977 South Carolina Coastal Zone Management Act
• Based on federal Act to require permits to be
  obtained before development in critical areas
  along beachfronts
• Late 70s Lucas and others developed Isle of
  Palms
• 1986 Lucas purchased two lots in Beachwood East
  Subdivision for 975,000
• 1988 Beachfront Management Act
• Construction of habitable improvements was
  prohibited seaward of a line drawn 20 ft.
  landward and parallel to the baseline.

106
Background
107
Context
108
Lucas v Carolina Coastal Commission
Merrick Road
Beach Line 1986
Beach Line 1956
Beach Line 1902
Lot 1
Lot 2
109
Controversy

• Lucas bought two beachfront lots zoned for
  single-family residential development in 1986
  with no restrictions imposed upon the use of the
  property by the state, county, or town
• In 1988, the Beachfront Management Act made a
  permanent ban on construction on Lucass lots

110
Trial Court

• Lucas contends that the construction of the
  Beachfront Management Act caused a taking of his
  property without just compensation
• The Trial Court agreed and found that the Act
  deprived Lucas of any reasonable economic use of
  the lots,eliminated the unrestricted right of
  use, and rendered them valueless

111
Change in Beachfront Management Act

• In 1990, while the issue was in front of the
  South Carolina Supreme Court and before issuance
  of the courts opinion, the Act was amended to
  allow for special permits to be issued
• The State Supreme Court determined that that case
  was unripe

112
Supreme Court of South Carolina

• The State Supreme Court reversed the decision
• The courts reasoning was that when a regulation
  respecting the use of property is designed to
  prevent serious public harm, no compensation is
  owing under the Takings Clause regardless of the
  regulations effect on the propertys value

113
Dissent of State Supreme Court

• Two justices dissented because they would not
  have characterized the Beachfront Management
  Acts primary purpose as the prevention of a
  nuisance
• To the dissenters, the chief purposes of the
  legislation, among them the promotion of tourism
  and the creation of a habitat for indigenous
  flora and fauna, could not fairly be compared to
  nuisance abatement

114
US Supreme Court

• Prior decision was overturned based on two
  principles
• The court decided that the case was ripe because
  it was filed before the amendment to the Act in
  1990
• The State Supreme Court erred in applying the
  noxious uses principle
• Tie in to previous case law
• In Pennsylvania Coal v. Mahon, 260 U.S. 413, if
  the protection against physical appropriations of
  private property was to be meaningfully enforced,
  the governments power to redefine the range of
  interests included in the ownership of property
  was necessarily constrained by constitutional
  limits

115
Reasoning

• Lucas sacrificed all economically beneficial uses
  in the name of common good, so it is a
  categorical taking
• Creating a distinction between regulation that
  prevents harmful uses and that which confers
  benefits is next to impossible
• Background principles of nuisance and property
  law must be defined

116
After The Case
After the case was reversed and remanded to the
trial court in South Carolina, both parties
wisely agreed to settle rather than expose
themselves to the whims of a jury. The settlement
amounted to 1.575 million. Lucas got his
investment back, was able to pay off his lawyers
and pocketed 100,000 for his 4 years of
trouble. He also agreed to convey title to the
state.
So what did the state do with the property?With
the Beachfront Management Act now amended, the
Coastal Council was empowered to issue a special
permit allowing the state to sell Lucas' property
to developers! The attorney representing the
state explained lamely that it needed to recoup
some of the monies paid in the settlement. And
the state may as well have done so since the two
lots have been described as standing out like
missing teeth in a row of million-dollar
homesfronting the Atlantic Ocean
117
Guess Whats on the Lot Now?
118
The Widow Mrs. Dolan
The Place
The Ditch
119
(No Transcript)
120
The Background

• Dolan v Tigard
• Mrs Dolan applies to redevelop her site
• Plans to expand from 9,700 sq. ft. to 17,600 sq.
  ft and to pave a 39 space car parking lot
• This is in the form of an additional building to
  the Northeast and a new parking lot

121
Main Street
Existing Plumbing and Electrical Supply Store
Gravel Parking Lot
Fanno Creek
122
The City

• After a comprehensive study the City adopted and
  plan to enhance the drainage of the town and to
  relieve congestion in the main part of town by
  connecting new bike paths
• The City requires that new development in the CBD
  dedicate space for the new bike/walkway and also
  contribute to the drainage system (and also
  enhance the appearance of Fanno Creek and as
  greenway system)

123
The Exaction

• The Commission required that Dolan dedicate the
  portion of her property lying within the 100 year
  floodplain for improvement of a storm drainage
  system along Fanno Creek and that she dedicate an
  additional 15 foot strip of land adjacent to the
  floodplain as a pedestrian/bicycle pathway. The
  dedication required by that condition encompasses
  approximately 7,000 square feet, or roughly 10
  of the property. In accordance with city
  practice, petitioner could rely on the dedicated
  property to meet the 15 open space and
  landscaping requirement mandated by the city's
  zoning scheme.

124
Mrs Dolan Replies

• Dolan appealed to the Land Use Board of Appeals
  (LUBA) on the ground that the city's dedication
  requirements were not related to the proposed
  development, and, therefore, those requirements
  constituted an uncompensated taking of their
  property under the Fifth Amendment. In evaluating
  the federal taking claim, LUBA assumed that the
  city's findings about the impacts of the proposed
  development were supported by substantial
  evidence.

125
Supreme Court Findings

• Without question, had the city simply required
  petitioner to dedicate a strip of land along
  Fanno Creek for public use, rather than
  conditioning the grant of her permit to redevelop
  her property on such a dedication, a taking would
  have occurred.
• Petitioner does not quarrel with the city's
  authority to exact some forms of dedication as a
  condition for the grant of a building permit.
• She argues that the city has identified no
  special benefits conferred on her, and has not
  identified any special quantifiable burdens
  created by her new store that would justify the
  particular dedications required from her which
  are not required from the public at large.

126
Nexus The Two Tests

• Undoubtedly, the prevention of flooding along
  Fanno Creek and the reduction of traffic
  congestion in the Central Business District
  qualify as the type of legitimate public purposes
  we have upheld
• It seems equally obvious that a nexus exists
  between preventing flooding along Fanno Creek and
  limiting development within the creek's 100year
  floodplain. Petitioner proposes to double the
  size of her retail store and to pave her new
  gravel parking lot, thereby expanding the
  impervious surface on the property and increasing
  the amount of storm water runoff into Fanno Creek.

127
So Is the Exaction Fair?

• The second part of our analysis requires us to
  determine whether the degree of the exactions
  demanded by the city's permit conditions bear the
  required relationship to the projected impact of
  petitioner's proposed development.
• We conclude that the findings upon which the city
  relies do not show the required reasonable
  relationship between the required floodplain and
  the petitioners new building. The same may be
  said for the need for the bike path

128
Bottom Line

• Government must be able to demonstrate a rough
  proportionality between the need for the exaction
  and the impact of development

129
Battle Ground WA
130
City of Battleground v Benchmark Land Devel.

• As a condition of development approval, the City
  of Battleground required Benchmark Land Company
  to improve an existing street adjacent to
  Benchmarks proposed subdivision. The street is
  congested.
• The City based its condition upon a generally
  applicable ordinance requiring developers to
  construct half-width road improvements to
  adjoining access streets as a prerequisite to
  permit approval.

131
The Contention
Half Street Improvement
Benchmark challenged the condition with and
sought damages from the City for a taking. The
trial court ruled that studies conclusively
showed that there was no substantial impact from
the new subdivision on traffic that would warrant
the new half street improvement
                       
132
More Studies

• After the trial both Benchmark and the City
  conduct traffic studies.
• Guess what Benchmarks expert says no impact
  and the Citys expert says that there will be
  impact.
• Also, the City says that it does not have to do a
  specific Dolan study ever time that have to
  improve a new half street

133
Wash. Sp. Ct. 4 Part Test

• What must the government establish
• A Public Problem
• A development that impacts the public problem
• Governmental approval of a set of conditions that
  tends to alleviate the problem
• Rough proportionality between the conditions and
  the solution to the problem

134
The Courts Analysis

• A Dolan style analysis is required when the
  developer is likely to incur significant costs
  arising from improvements
• Battleground fails the essential nexus test the
  proposed solution does not tend to alleviate the
  public problem

135
A Little Salt Marsh
136
Palazzolo v Rhode Island
SGI Tract 18 acres
16 acres
Shoreline
2 acres
Salt Marsh
Upland Beach
137
Site Picture
Credits to Dan Mandelker for this picture
138
Location
139
Background

• Palazzolo v Rhode Island
• Palazzolo and associated formed Shore Gardens
  Enterprises in 1959 for 8,000
• Within a year Palazzolo bought out his associates
  and became sole owner
• For six years Palazzolo filed various
  applications to fill 11 acres of the salt marsh
  and all were rejected
• After 1966 no further applications were filed for
  over a decade

140
Into The 1970s

• In 1971 Rhode Island creates the Coastal
  Management Council
• The Council adopts rules that severely restrict
  the filling of salt marshes
• In 1983 Palazzolo files an application to fill
  the entire marsh area and construct a seawall
  bulkhead. The application is denied.
• In 1985 he files an application to fill 11 of the
  18 acres of salt marsh for a 75 unit subdivision
  this is denied in that it did not meet the
  standards for a special exception

141
The 1985 Application
SGI Tract 18 acres
11 acres
2 acres
Salt Marsh
Upland Beach
Here
142
The Legal Challenge

• Palazzolo files suit in state court alleging that
  the Coastal Management Council deprived him of
  all economic value of his property
• He seeks 3,150,000 in damages
• The trial court and the State Supreme Court deny
  him any relief for several reasons
• His claim was not ripe
• He took title with full knowledge of the
  regulations
• He still retained about 200,000 in value in the
  upland parcel

143
Summary Brief Questions
Question 1

• Whether the Supreme Court of Rhode Island
  permissibly treated petitioner's takings claim as
  unripe, where that takings claim was based on the
  State's purported refusal to allow large-scale
  residential development on petitioner's property
  and petitioner had never sought permission from
  the appropriate state officials to construct
  residences

144
Summary Brief Questions
2

• Whether petitioner can establish a taking of
  property through proof that his land would
  dramatically increase in value if longstanding
  development restrictions were removed, even
  though the restrictions were in effect at the
  time petitioner acquired the property and the
  land retains substantial value notwithstanding
  the restrictions

145
The Supreme Court Decision The Ripeness Claim

• A landowner may not establish a taking before the
  land-use authority has the opportunity, using its
  own reasonable procedures, to decide and explain
  the reach of a challenged regulation
• Once it becomes clear that the permissible uses
  of the property are known to a reasonable degree
  of certainty, a takings claim is likely to have
  ripened. Here, the Councils decisions make plain
  that it interpreted its regulations to bar
  petitioner from engaging in any filling or
  development on the wetlands. Further permit
  applications were not necessary to establish this
  point.

146
The Remaining Value

• The State Supreme Court did not err in finding
  that petitioner failed to establish a deprivation
  of all economic use
• It is undisputed that his parcel retains
  significant development value
• Petitioner is correct that, assuming a taking is
  otherwise established, a State may not evade the
  duty to compensate on the premise that the
  landowner is left with a token interest.
• This is not the situation in this case, however.
  A regulation permitting a landowner to build a
  substantial residence on a parcel does not leave
  the property economically idle.

147
He Figures Out How To Use His Property
148
Tahoe-Sierra Preservation v Tahoe Regional
Planning
OCTOBER 2001
149
Lake Tahoe Region
150
Background

• Tahoe is the highest largest alpine lake in the
  U.S. 22 X 12 miles
• Maximum depth 1,645
• Water purity at 99 percent in1960
• Permanent residents 34,000 with 38,000 temporary
  residents in seasons

151
Factoids

• Considered a national treasure only two lakes in
  the world are comparable Glacier Lake and Lake
  Baikal in Russia
• World class amenity value
• Tahoe began its environmental deterioration about
  40 years ago
• Significant increase in the lack of clarity
  because of algae growth

152
The Big Conclusion

• Unless the rate of runoff from impervious cover
  is reduced or eliminated the great blue lake
  will go green from lack of clarity within this
  decade and cannot recover under any know natural
  process

153
Early Efforts

• In the 1960s and 70s Nevada, California, seven
  different counties, 11 municipalities, and the
  Federal government sign a compact to protect the
  drainage basin of Lake Tahoe
• Restrictions on development are significant but
  the problem increases
• Land owners who purchased lots before 1972 could
  build at a later time as long as they observed
  reasonable construction regulations

154
Many Landowners Express Their Disappointment
155
Problems Continued

• By 1982 it was obvious that Lake Tahoe was losing
  ground and that development would have to cease
• Stringent regulations were them placed on
  property according to the potential for harm if
  the vacant land was developed
• Thus, the two moratoria were adopted starting in
  1983. In addition to the 32 months, the real
  delay lasted about 6 years before people could
  building again

156
So, The Planners Act

• Lake Tahoe Regional Planning Association imposes
  two moratoria on development in order to prepare
  a revised comprehensive plan and devise
  strategies for sound environmental growth
• This totals 32 months
• Sierra-Tahoe Preservation Association claims a
  temporary taking during the 32 months

157
District Court

• Hearing court says that a partial taking did
  not occur under a Penn. Central Analysis.
• BUT, a categorical taking did occur during the 32
  months under the moratorium because of the Lucas
  analysis owners were temporarily deprived of
  all value for the 32 months

158
Finally, The Supreme Court

• As already noted the Supreme Court refused to
  declare the moratorium a per se categorical
  taking. It will depend on the moves and counter
  moves of the parties and a Penn. Central Style
  Analysis will be used
• The lot owners are going to be ticked off because
  they wanted a fairness and justice analysis
  like Del Monte Dunes

159
Observations Some Good Things to Say

• It appears that moratoria are essential planning
  tools to protect the public at large
• Moratoria a not that much different than other
  delays caused by normal administrative review
• Moratoria prevent hastily enacted regulations
• Moratoria foster informed decision making and per
  se taking rules do not

160
Repeating The Big Picture

• Flexible analysis of regulation takings is
  required Penn Central becomes the touchstone
  case for takings
• Moratoria may be categorical takings when they
  are in force but not all categorical takings are
  compensable.

161
The Penn Central Analysis

• To characterize a governmental action as a
  taking, the court must
• Examine the character of the action
• Extent of interference with an investment backed
  expectation
• Diminution and value alone cannot not establish
  a taking
• Extent to which the state can show a compelling
  interest for the regulation

162
Wild Rice River v City of Fargo 2005
163
Basic Facts
Land is purchased in 1947 Platted in 1993 to 38
lots Sixteen lots located on a Oxbow of Rice
River 1994 provides water and service with 10
year agreement with Fargo to provide
services Spends 500,000 in initial development
costs Sold first lot in 1994 to Rutten for
24,000
164
And Then .. Fargo Round One
165
The Aftermath
1997 All undeveloped lots are flooded and
Ruttens house ruined 1998 FEMA issues
preliminary flood rate map and this shows several
lots in the floodway Fargo enacts MORATORIUM for
the time necessary for FEMA to issue final map It
actually runs for 21 months 1999 Ruttens
daughter applies for building permit and is
denied as are other applicants
166
The Suit
2000 Wild Rice sues Fargo Claims inverse
condemnation Tortuous interference with
contract In late 2000 Fargo ends moratorium Wild
Rice sells several lot is 2002 And 2005 for 39 -
59,000 The trail court dismisses all claims for
inverse condemnation, interference and bad faith
delay. Also denies a temporary takings claim
under the First Lutheran Church theory.
167
Sp. Ct. of ND Appeals

• The court reviews a large cross section of
  takings cases including Penn Central and the Lake
  Tahoe cases
• Concludes that
• The moratorium was system wide and did not
  single out Wild Rice
• Fargo was doing was it was required to do
  preventing an injury
• There was no extraordinary delay in government
  decision making no bad faith
• There was no taking the land was worth more
  after the moratorium than before

168
City of Glenn Heights Texas v Sheffield
Development Co. 2001
169
Glenn Heights TX
170
Facts

• 20 miles south of Dallas
• Population of 7,000 in 2008
• 10,470 persons estimated in 2010
• Glenn Heights is a pleasant residential
  community with low cost of living just minutes
  from Dallas. Ideal for those who want the quiet
  life with the amenities of a nearby metropolitan
  area. Website

171
Time Periods of the Case

• Prior to the agreement
• Involves 194 acres of a 240 acre tract zoned PD
  10
• PD 10 was granted in 1988 for single family
  residence on 6,500 sq. ft lots some larger lots
  were included in later phases
• Phase 1 of PD 10 (43 acres) has already been
  fully developed under this concept

172
However

• In 1995 Glen Heights adopts a new code
• 14 of the existing PDs were not rezoned and they
  were allowed to continue unchanged. This included
  PD 10.

173
Due Diligence Phase

• Sheffield conducts a due diligence
• They concluded that the zoning was secure.
• Sheffield purchased the property in 1996

174
The Moratorium

• Glenn Heights enacts a moratorium on the approval
  of development applications
• If Sheffield (et al) were allowed to file an
  application he would lock in his development
  rights
• Moratorium is to run for 30 days

175
How Many Days

• The moratorium should have lapsed in March of
  1997
• Sheffield tries to file a final plan
• Staff says NO because the city manager extended
  the moratorium
• The City Council officially extends the
  moratorium until April 27, 1998

176
To Finish It Off

• On the day the moratorium lapses the City Council
  down zones the remaining 194 acres to 10,000 sq.
  ft a loss of 4,400 sq. ft per lot
• Sheffield is torqued

177
Temper - Temper
178
Sheffield Goes to District Court

• Sheffield files suit for a taking and requests
  compensatory damages
• The district court finds for Sheffield and the
  jury awards damages 485,000 a reduction from
  970,000
• Finds that the down zoning but not the moratorium
  constituted a taking

179
Sheffield and Glenn Heights Both Appeal to Texas
Sp. Ct

• Sheffield says yes it was a taking and the
  district court should have found that the
  moratorium was also a taking
• Glenn Heights says no way is this down zoning a
  taking and we only reduced the property by 38
  289,920

180
Texas Sp. Ct. Begins Their Anlaysis

• Uses a very traditional takings analysis
• Two types of taking physical and regulatory
• Courts should not act as a super zoning board
  but give discretion to the legislature
• If Glenn Heights advances a legitimate state
  interest then the down zoning is not a taking

181
The Court Partially Saves Glenn Heights Butte

• What is the legitimate state interest?
• Glen Heights did not make any findings of fact
• The trial court really did not address several
  important issues
• However, the testimony at the trial says the down
  zoning was beneficial because of less density
  (less crowing, urbanization, less traffic, more
  open space)
• The number of DUs was reduced from 1,030 to 521
  and pop from 3,000 to 1,500

182
So, Thats One For the City

• Reducing population density is a legitimate state
  interest

183
The Planning Staff Dons Toga and Has An Orgy of
Celebrations
184
However, Let Just Hold On For a Minute

• Sheffield still has substantial value in the land
  after the down zoning so it cannot be a Lucas
  style taking (categorical) of all economic value
• But, did the City unreasonably interfere with
  Sheffields investment back expectations and
  property rights

185
Analysis

• If you only had a small brain in their head you
  knew that Sheffield intended to develop the
  property at the same density for which it was
  originally zoned
• Even the trial court found that the utilities
  were properly sized to permit 4 5 units per
  acre everything in the completed Phase 1 points
  to the same development patterns in the following
  units

186
Comes Now the Evil of Density
187
The Court Ponders

• When Sheffield undertook their due diligence no
  one ever mentioned anything about down zoning
• Is there a bigger picture here that we are
  missing?

188
The Contesta DeUrninationa Begins

• Sheffield There is no demand for large lots
• City Bull, you just want every ounce of density
  you can get. You are just in business to make
  money
• Sheffield our appraiser says that we have a 90
  loss
• City no way, its more like 35

189
The Court Puts a Stop to the Argument

• The Citys argument is weak
• There is plenty of good infrastructure to handle
  this density
• The City blind-sided Sheffield. They could have
  let them know that the rezoning was being
  considered

190
But Wait Is the Moratorium a Taking Also

• A moratorium , like a down zoning, must advance a
  legitimate state interest
• City Council admits it had a meeting in secret
• Admits that they passed the moratorium to
  increase their bargaining power
• Admits that Council discussed the actual rezoning
  of the property

191
Reverses The Trial Court

• The moratorium was improperly used
• In this case it constitutes a taking as an
  unreasonable interference with an investment
  backed expectation
• Awards Sheffield 280,000 damages for the period
  of the temporary taking

192
Now Its Sheffield Turn
193
Ripening - Introduction
Inset Williamson Reg. Plng/Hamilton National Bank
194
Regional Context
NASHVILLE
195
Zoning UGB
196
Case Location
197
Franklin Williamson County
198
Nashville TN 1985

• In 1973 a developer obtained preliminary
  permission to develop his tract under a set of
  cluster provisions
• The zoning was changed in 1977 under a down
  zoning scheme
• The developer was allowed to continue with the
  original zoning provisions
• In 1979 the developer applied for a final plat on
  a new phase of his development
• The Planning Commission applied the 1977 rules
  and denied his application

199
A Takings Claim

• The developer claim a right to the 1973
  regulations
• The District court ruled that the developer was
  entitled to the 1973 density regulations
• But, not taking occurred for the temporary
  deprivation of the economic use of his/her
  property
• The Appeals Court reverse saying that the permit
  denial did constitute a taking and was entitled
  to monetary relief

200
The Supreme Court

• The Supreme Court reversed the Appeals Ct.
• Court notes that the developer did not seek any
  variances or even apply for variances that would
  have allowed full development of the property
• The claim was not ripe
• The developer did not exhaust available
  administrative remedies
• The developer offered not proof that there was
  substantial interference with