9.5 Particular Actions Challenged as Takings

• Library: Eminent Domain Law in Virginia (Virginia CLE) (2017 Ed.)

9.5 PARTICULAR ACTIONS CHALLENGED AS TAKINGS

9.501 Generally. Exhaustive treatment of each and every case is beyond the scope of this chapter. Instead, this section will provide examples of some of the broader categories where regulatory takings arise.

9.502 Physical Invasion. If government action results in an actual physical invasion of property, no matter how minute, courts have generally awarded compensation. The three types of circumstances in paragraphs A, B, and C below were cited by Justice Scalia in Lucas. ¹⁹⁵ The remaining paragraphs have been included because they fit Justice Scalia's analysis in Lucas. Many of the decisions cited below, however, did not specifically analyze whether a physical invasion had occurred.

A. Right to Exclude Others. In Loretto v. Teleprompter Manhattan CATV Corp., ¹⁹⁶ the Court held that a regulation requiring apartment owners to permit a cable company to attach connections to their buildings was a permanent physical invasion of property requiring compensation, no matter how small an area is invaded. In Federal Communications Commission v. Florida Power Corp., ¹⁹⁷ however, the Court found that regulation of the amount that utility companies could charge to cable companies was not a taking, because the regulation did not require the utility companies to grant the right to use their utility poles to cable companies.

Nollan v. California Coastal Commission¹⁹⁸ held that conditioning the approval of a permit to an oceanfront homeowner to rebuild his house on the dedication of an easement along the property's beach frontage was a taking. The Court noted that the requested easement amounted to "a permanent physical occupation" of Nollan's property. ¹⁹⁹

B. Physical Invasion of Airspace. In United States v. Causby, ²⁰⁰ the Court held that airplane overflights within 64 feet of a chicken farm, which rendered the farm useless as a commercial farm (150 chickens

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died from flying into walls after being frightened by the aircraft noise), amounted to a taking without just compensation.

In Griggs v. Allegheny County, ²⁰¹ a municipality that owned and maintained an airport required, pursuant to safety regulations, that airplanes use a low altitude flight pattern which resulted in noise, excessive vibration, and physical danger. The Court found that the municipality had imposed an overflight easement and was required to pay just compensation to the owners.

C. Navigational Servitude. In Kaiser Aetna v. United States, ²⁰² the Court equated a regulation that required a private marina to grant access to the public to a physical invasion of the owner's property.

In United States v. Cherokee Nation of Oklahoma, ²⁰³ however, the Court held that damage to riverbed mineral deposits caused by navigation improvements was not compensable.

In Scranton v. Wheeler, ²⁰⁴ the interest of riparian owners in submerged lands bordering on public navigable waters was deemed to be held subject to the public's navigational servitude.

D. Rent Control. In Board of Supervisors v. DeGroff Enterprises, Inc., ²⁰⁵ the court found that an ordinance which required rental or sale of 15 percent of units to low- and moderate-income families at set prices was a taking.

In Yee v. City of Escondido, ²⁰⁶ an ordinance prohibiting any rent increase beyond 1986 levels without city approval was constitutional, because the landowners were neither compelled to rent property nor perpetually restrained from terminating a tenancy.

E. Discharge of Water. Permitting an unreasonable discharge of water onto private property from a public project or from a county owned

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and maintained drainage system may constitute a physical invasion and, therefore, a taking under the Fifth Amendment. ²⁰⁷ In Livingston v. Virginia Department of Transportation, ²⁰⁸ the Virginia Supreme Court expanded inverse condemnation to include the government's failure to maintain property. The court held that VDOT's failure to maintain Cameron Run, which resulted in severe flooding, was actionable even though there was no physical invasion. The court held that it was only necessary that the failure to maintain adversely affect the property owner's ability to exercise a right connected with the property. Furthermore, the court held that a single act of flooding was sufficient to support an inverse condemnation claim.

9.503 Denial of All Economically Beneficial Use. The second situation in which Justice Scalia found categorical treatment to be appropriate is where government regulation denies all economically beneficial or productive use of land. The remaining cases under this paragraph fit the Lucas analysis.

A. Activities Characterized as Nuisances. It is important to recall that, in Lucas, the Court held that a regulation does not constitute a taking if the harm may have been prevented under the state's law of nuisance. In Reinman v. Little Rock, ²⁰⁹ the Court upheld a municipal ordinance prohibiting livery stables in certain areas of the city because that operation was characterized as a nuisance.

B. Mining and Regulation of Extraction of Subsurface Minerals.

1. Whitney Benefits, Inc. v. United States.²¹⁰ In addition to Mahon²¹¹ and Keystone, ²¹² the case of Whitney Benefits v. United States held that when the plaintiff purchased property for the sole purpose of mining coal and subsequent regulation prohibited such use, alternative uses were not economically viable.

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2. Florida Rock Industries, Inc. v. United States.²¹³ In Florida Rock Industries, Inc. v. United States, The court held that it was improper to deny a mining permit on the grounds that the proposed operation was a polluting, noxious use, especially since the government did not seek to close existing quarries similarly situated in the vicinity.

3. Hodel v. Virginia Surface Mining & Reclamation Ass'n.²¹⁴ In Hodel v. Virginia Surface Mining & Reclamation Ass'n, the Court rejected an attack on a statute limiting mining based on the Court's view that the statute was too hypothetical with no specific impact on the property.

C. Land Use Cases. A number of land use cases also may be characterized as a denial of all beneficial or productive use. Since a majority of those cases follow the traditional balancing test, they will be discussed in the following paragraph.

9.504 Regulations That Go "Too Far" ("Balancing Test" Cases). Even if there is no physical invasion of property or denial of all beneficial or productive use, a regulation that goes "too far" may still be recognized as a taking. The general analysis of whether a regulation goes "too far" includes a number of cases that could be classified as either a physical taking or a deprivation of all economic use.

A. Zoning. The basic law regarding the validity of zoning ordinances is set out in Euclid v. Ambler Realty Co., ²¹⁵ in which the Court upheld a zoning ordinance that substantially diminished property values and in Nectow v. Cambridge, ²¹⁶ in which the Court held that failure to rezone a parcel rendered the property useless and, therefore, amounted to a taking. ²¹⁷

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More recent Supreme Court holdings generally have upheld a municipality's zoning power against Fifth Amendment attacks. ²¹⁸

In Boggs v. Board of Supervisors, ²¹⁹ the court granted a declaratory judgment that the zoning of the property was invalid because it had the effect of "completely depriving the owner of the beneficial use of his property."

In A.A. Profiles, Inc. v. Fort Lauderdale, ²²⁰ after first approving a wood chipping operation, the city changed the zoning to prohibit the operation because of public opposition. The court held that the rezoning had no legitimate public purpose and was a taking.

B. Subdivision Regulations. Courts generally will uphold subdivision regulations controlling the manner of providing utilities, the location of roads, and lot configuration when there is any rational basis for the conditions imposed. ²²¹

In Board of Supervisors v. Greengael, L.L.C., ²²² the Supreme Court of Virginia found that a taking had not occurred where a subdivision ordinance required that proof of an agreement to provide public water and sewer accompany the request for preliminary subdivision approval. The court declined to examine the economic impact or character of the government regulation, finding lack of interference with Greengael's reasonable investment backed expectations dispositive.

In Helmick v. Town of Warrenton, the court held that refusal to vacate a subdivision plan so the landowner could build an apartment complex instead of townhouses was not a taking because the government's action failed to deprive the landowner of "all economic use of the land." ²²³ The court further found no violation of substantive or procedural due process even

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though actual construction was delayed for more than a decade after the planning board approved the project. ²²⁴

In Sunrise Corp. v. City of Myrtle Beach, ²²⁵ the Fourth Circuit held that "delay in obtaining a building permit is not a taking" ²²⁶ and '[m]ere fluctuations in value during the process of governmental decision making, absent extraordinary delay, are 'incidents of ownership.'" ²²⁷

C. Mandatory Dedications. In Virginia, exactions or mandatory dedications will be upheld only when...