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The Taking Issue


The Taking Issue Lecture Series 3 John Keller Plan 752 Planning Law – PowerPoint PPT presentation

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Title: The Taking Issue

The Taking Issue
  • Lecture Series 3
  • John Keller Plan 752 Planning Law

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

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

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

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

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

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.

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

Pumpelly v Green Bay
  • A Physical Invasion
  • In 1871 the U.S. Army Engineers erected a dyke
    along a one side of a 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

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

Alcohol and Kansas
  • Mugler v Kansas
  • In 1880 Kansas passed a constitutional amendment
    that forbade the manufacture of alcohol. Mugler
    owned a distillery in Salina, Kansas constructed
    in 1887and 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

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.

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

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.

Mugler After the Trial Muglers Granddaughter
Justice Harlans Dictum
  • The State takes property for the public good and
    for public use through eminent domain after
  • The State protects the public health and safety
    through the police power
  • No compensation can arise from a mere police
    power regulation

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

The Act
Centralia 1983 Centralia
Centralia Today - 2002
National Fuel in 1922
Support Estate
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

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
  • 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

The Impact
  • Penn. Coal makes the end of an era of judicial
  • 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

Must Compensation Be in the Same Coin?
  • Penn. Central Trans-
  • portation Company

  • 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

Grand Central A National Masterpiece in the
French Beaux Arts
  • 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

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

Other Buildings By the Architect
Taipei 101 in Taiwan
The Concept
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
  • Penn. Central files suit alleging that the
    Landmarks ruling the 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

At This Point Things Start To Get Ugly Real Ugly
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.

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.

TDR Ruling
  • Although appellants and others have argued 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.

  • 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.

How Big Is A Taking?
  • Loretto v.Teleprompter
  • Manhattan CATV Corp.

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

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

The Tenants Were Pleased
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

  • 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

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
  • Even though the interference is insubstantial a
    physical invasion is still compensable
  • And the courted noted that there are three
    distinctions tat should be considered

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

  • 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

  • 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,
    completely occupying space immediately above and
    upon the roof and along the building's exterior
    wall. In light of our analysis, we find no
    constitutional difference between a crossover and
    a noncrossover installation. The portions of the
    installation necessary for both crossovers and
    noncrossovers permanently appropriate appellant's
    property. Accordingly, each type of installation
    is a taking.

The Swamp Case Series Parsippany-Troy Hills
  • 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
  • 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

The Controversy
  • In 954 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

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

  • 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

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

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.

Just v Marinette County 1972
Lake Noquebay
The Justs Tract 36.4 acres
No Fill Area
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
  • All county shore land ordinances must be approved
    by the state of the state will adopt an ordinance
    foe them

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

The Justs Land
366 feet
Lake Noquebay
5 parcels sold
Land retained by the Justs
Marshes and Swamp Land
The Next Act
  • Without a permit the Justs begin filling the
    marshes with sand a fill dirt
  • County issues a stop work order and fines the
  • The Justs file suit in district court alleging
    that the ordinance constitutes a taking without

Legal Test
  • The trial court finds for the State and fines the
  • 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

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

  • 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 swamp
    is a reasonable use of the land

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

The Justs Were Not Happy and Bought a Portable
Sign To Place On Their Property
Sibson v State
To be Filled
Sibson House
Filled portion
Wetland 6 acres tract
  • 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
  • They then applied to fill the remaining 4 acres

The Application
  • The NH Board of Water Resources denied the permit
    and cited irreparable harm to the ecology of the
  • 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

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
  • 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

First English
  • 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.

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.

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

I hope God strikes all the planners and
Commies dead for what you have done to
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.

Cloud Seeding
Members of our church always wear their
seatbelts so aliens cant suck them out of the
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

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

Open 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
    approximately 1,800 ft to the south of the
    property. An 8ft 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

Next Round
  • Nollans originally leased the lot with the option
    to buy. Nollans wanted to buy 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.

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

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

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

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
  • Nollans take case to Superior Court claiming the
    condition is in violation of the taking clause of
    the 5th Amendment. Court sides with Nollans.

Next Step
  • California Coastal Commission appeals to the
    California Court of Appeals. Court of appeals
    finds in favor of the California Coastal
    Commission sighting 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.

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.

  • In a sense there was not found to be a nexus
    between the California Coastal Commissions
    arguments and the intended purpose of the
  • 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.

In Other Words
  • There was a touching
  • The State could not raise the need to such a
    level that it would justify a physical
    interference with the Nollans property

Only Known Picture of the Nollans
David H. Lucas v. South Carolina Coastal
Council U.S. Supreme Court 505 U.S. 1003 June 29,
  • 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
  • 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.

Lucas v Carolina Coastal Commission
Merrick Road
Beach Line 1986
Beach Line 1956
Beach Line 1902
Lot 2
Lot 1
  • 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

Trial Court
  • Lucas contended 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

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

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

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
  • 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

US Supreme Court
  • Prior decision was overturned based on two
  • The court decided that the case was ripe because
    it was filed before the amendment to the Act in
  • 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

  • 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

The Widow Mrs. Dolan
The Place
The Ditch
The Background
  • Dolan v Tigard
  • Mrs Dolan applies to redevelop her site
  • Plan 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

Main Street
Existing Plumbing and Electrical Supply Store
Gravel Parking Lot
Fanno Creek
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)

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.

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

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, but
    challenges the showing made by the city to
    justify these exactions. 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.

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.

So Is the Exaction Fair?
  • The second part of our analysis requires us to
    deter-mine 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

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

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
  • 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.

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

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

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

Of Butterflies and Buckwheat
Del Monte Dunes
  • Section 1983 action for an uncompensated taking
  • 37 acres of oceanfront located on an old fuel
    tank farm
  • Zoned for HD Residential and would permit 1,000
    units at full density
  • In 1981 The developer submits a site plan to
    develop 344 units

The First Hearing
The First Few Rounds
  • Planning Commission rejects and says it would
    favor 264 units
  • Late 1983 the developer returns with a plan for
    264 units but once again is rejected and the
    request is now for 224 units
  • Developer returns with a plan for 224 units and
    is rejected and the request is now for 190 units
    (late 1984)

The Developer Is Angry
And Then Along Came
  • In the continuing review concern is shown over
    Smiths Blue Butterfly and the Dune Buckwheat
  • SBB lives for one week, flies 200 feet, and must
    land on a mature Buckwheat stalk
  • NO SBB found on this site after four years of
    searching - limited Buckwheat is found in the

The SBB Itself
The Next Hearing The Charge of the Light Brigade
Into the Valley of Death Rode the 500
  • Developer devotes 17.9 acres to open space
  • Uses 190 units on only 5.1 of the 37.6 acres
  • BUT, concern over the adjacent public beach, SBB
    and the Buckwheat cause the Planning Commission
    to reject the proposal

Sorrow And Anger
  • After five years, five rejected proposals and 19
    different site plans the developer sues for
    relief as an uncompensated taking
  • Developer argues that the final outcome was to
    force all development into the bowl this
    contained the sensitive buckwheat stands

A Jury Trial
  • Case is dismissed by the District Court but
    reversed by the Appeal Ct. and returned for
  • District Court grants JURY trial How could the
    City ask for 2/3 of the tract to be set aside for
    literally public purposes and then turn around
    and deny the application because of the outcome
    of its own actions?

The Outcome
  • Jury finds for Del Monte Dunes on taking and
    equal protection
  • Jury awards 1.45 million - 1994
  • Appeals Court affirms 1996
  • U.S. Supreme Court affirms in May of 1999 by
    smelling a rat

The Developers Attitude
The Citys Attitude
But Who Is Laughing Out Loud?
A Little More Salt March
Palazzalo v Rhode Island
SGI Tract 18 acres
16 acres
2 acres
Salt Marsh
Upland Beach
Site Picture
Credits to Dan Mandelker for this picture
  • Palazzalo v Rhode Island
  • Palazzalo and associated formed Shore Gardens
    Enterprises in 1959
  • Within a year Palazzalo bought out his associates
    and became sole owner
  • For six years Palazzalo 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

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 Palazzalo files and application to fill
    the entire marsh area and construct a seawall
    bulkhead. The application is denied.
  • In 1985 he files and 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

The 1985 Application
SGI Tract 18 acres
11 acres
2 acres
Salt Marsh
Upland Beach
The Legal Challenge
  • Palazzalo files suit in state court alleging that
    the Coastal Management Council had 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
  • He still retained about 200,000 in value in the
    upland parcel

The Supreme Court Decision The Ripeness Claim
  • Although 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.

The Remaining Value
  • The State Supreme Court did not err in finding
    that petitioner failed to establish a deprivation
    of all economic use, for 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 an 18-acre parcel does
    not leave the property economically idle.

He Figures Out How To Use His Property
Tahoe-Sierra Preservation v Tahoe Regional
  • 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

  • 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

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

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

Many Landowners Express Their Disappointment
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

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

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

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

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

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
  • Chief Justice Rehquist in a big, dumb idiot

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
  • Diminution and value alone cannot not establish
    a taking
  • Extent to which the state can show a compelling
    interest for the regulation

City of Glenn Heights Texas v Sheffield
Development Co. 2001
Time Periods of the Case
  • Prior to the agreement
  • Involves 194 acres of a 240 acre tract zoned PD
  • PD 10 was granted in 1968 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

  • 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.

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

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
  • Moratorium is to run for 30 days

How Many Days
  • The moratorium should have lapsed in March of
  • 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

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

Temper - Temper
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
  • Finds that the down zoning but not the moratorium
    constituted a taking

Sheffield and Glenn Heights Both Appeal to Texas
Sp. Ct
  • Glenn Heights says no way is this down zoning a
    taking and we only reduced the property by 38
  • Sheffield says yes it was a taking and the
    district court should have found that the
    moratorium was also a taking

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

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

So, Thats One For the City
  • Reducing population density is a legitimate state

The Planning Staff Dons Toga and Has An Orgy of
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 of all economic value
  • But, did the City unreasonably interfere with
    Sheffields investment back expectations and
    property rights

  • 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

Comes Now the Evil of Density
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

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
  • Sheffield our appraiser says that we have a 90
  • City no way, its more like 35

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

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

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

Now Its Sheffield Turn
They Are Elated
Diminution of Land Value
Resort Hotel
2.5 million
Range of Speculative Value
1 million
Large Housing Development
Range of police power regulation
1 du/acre
Compelling government reasons
Agri Use Only
Natural Resource Use Only
Limit of taking immunity
Taking Basic Tests
  • Touching Invasion
  • Size is not an issue
  • Creating a Nexus
  • Roughly proportionate to the impact of
  • Investment backed expectation
  • Categorical taking
  • I smell a rat

Triggering Points
  • Does the regulation or action result in a
    temporary or permanent invasion of private
  • Does the regulation or action require the owner
    to dedicate a portion of their property to public
    use? Roughly Proportional!!!!!
  • Does the regulation deprive the owner of all or
    nearly all economic viability?
  • Does it appear the government is jerking the land
    owners chain?

When Its All Over
Do You sometimes feel like this