9.7 Defenses

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

9.7 DEFENSES

9.701 Substantive Defenses. Depending on the nature of the attack on the regulation, the governing body may assert certain substantive defenses.

If the attack is based upon a physical taking, defenses could include either that there is no physical contact or that the physical contact does not infringe upon the bundle of rights owned by the property owner.

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In a case in which an owner alleges denial of all economically beneficial or productive use, defenses may include an analysis of the uses remaining to the landowner. ²⁷⁷ The government may also defend on the basis that the proposed limitation did not infringe on reasonable investment-backed expectations. ²⁷⁸

Finally, if the allegation is that the regulation goes too far, the government may defend its regulation as a reasonable means to promote public health, safety, and welfare. ²⁷⁹

9.702 Procedural Defenses.

A. Sovereign Immunity. The Supreme Court of Virginia has held an inverse condemnation claim "'is not a tort action; rather, it is a contract action and, therefore, is not barred by the doctrine of sovereign immunity.'" ²⁸⁰

B. Ripeness of Claim. If the possibility exists that further administrative action will obviate the takings claim, the claim may not be ripe for adjudication: "A court cannot know if a regulation goes too far, unless it knows how far the regulation goes." ²⁸¹

In Williamson County Regional Planning Commission v. Hamilton Bank, ²⁸² the Court found that a federal inverse condemnation action was not ripe, because the landowner had not sought variances that would have cured some of the reasons for denying the subdivision plat. This requirement is generally known as "prong one" of the Williamson ripeness test. The Court also held that the action was not ripe, because the landowner had not pursued its adequate state remedy and been denied relief. This requirement is

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generally known as "prong two" of the Williamson ripeness test. The rationale of prong two is that there is no requirement for pre-deprivation compensation; therefore, the Fifth Amendment is satisfied if the state has a meaningful post-deprivation procedure, such as the Virginia inverse condemnation procedure contained in sections 8.01-184 and 8.01-187 of the Virginia Code. ²⁸³

In Suitum v. Tahoe Regional Planning Agency, ²⁸⁴ the Supreme Court narrowed prong one of the Williamson ripeness test. The Court held that the landowners did not have to apply for Transferrable Development Rights (TDRs) to mature their claim, since that was not "the type of 'final decision' required by our Williamson County precedents." ²⁸⁵ The Court noted that "[t]hose precedents addressed the virtual impossibility of determining what development will be permitted on a particular lot of land when its use is subject to the decision of a regulatory body invested with great discretion, which it has not yet even been asked to exercise." By contrast, the Court held that the agency in question in Suitum had determined that the land could not be developed and that there was no dispute about what TDRs to which the landowner was entitled.

Similarly, in Palazzolo v. Rhode Island, ²⁸⁶ the Court rejected a ripeness defense based on prong one of Williamson because it was clear, based on the record, that the regulatory authority lacked discretion to approve an application to fill wetlands. The Court reasoned that:

[w]hile a landowner must give a land-use authority an opportunity to exercise its discretion, once it becomes clear that the agency lacks the discretion to permit any development, or the permissible uses of the property are known to a reasonable degree of certainty, a takings claim is likely to have ripened. ²⁸⁷

Based on this reasoning, the Court distinguished the facts in MacDonald, Sommer & Frates v. County of Yolo, ²⁸⁸ which involved the denial

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of a 476 unit subdivision, and Agins v. City of Tiburon, ²⁸⁹ in which the Court determined that a downzoning attack on a rezoning action was not ripe, because the landowners had not submitted a plan of development before instituting suit.

In Palazzolo, the Court also rejected a prong one ripeness defense with respect to the landowner's failure to seek permission for development of only a portion of his property (as opposed to seeking development of the entire parcel which the landowner had sought). In determining that a landowner need not seek approval when denial by the government is certain, the Court reasoned:

In assessing the significance of petitioner's failure to submit applications to develop the upland area it is important to bear in mind the purpose that the final decision requirement serves. Our ripeness jurisprudence imposes obligations on landowners because "[a] court cannot determine whether a regulation goes 'too far' unless it knows how far the regulation goes." MacDonald, 477 U.S. at 348. Ripeness doctrine does not require a landowner to submit applications for their own sake. Petitioner is required to explore development opportunities on his upland parcel only if there is uncertainty as to the land's permitted use. ²⁹⁰

Since Palazzolo and Suitum, therefore, if the facts of a...