Nebraska Law Review
1995
*843 PUBLIC USE, SUBSTANTIVE DUE PROCESS AND TAKINGS -- AN INTEGRATION
Copyright © 1995 University of Nebraska; Lawrence Berger
TABLE OF
CONTENTS
I. Introduction
............................................ 843
II. The Public Use Doctrine
................................. 844
III. Substantive Due Process -- Means/Ends Review
............ 846
IV. Early Takings Law
....................................... 853
V. The Remedy for Regulatory Takings
....................... 858
VI. Early Muddling of Takings and Substantive Due
Process ... 862
VII. The Modern Merger of Takings and Due Process
............ 864
VIII. The Lucas Case and the Nuisance Doctrine
................ 871
IX. A Sound Takings Rule
.................................... 879
X. An Illustrative Hypothetical
............................ 880
XI. Clearing Up the Muddle -- Summary and
Conclusion ........ 883
I. INTRODUCTION
In differing ways the three related doctrines
of public use, substantive due process, and takings all provide landowners a
measure of protection from various unlawful impingements by government upon
their rights to own, possess, use, or transfer realty. The three sets of rules all stem from one
sentence in the Fifth Amendment to the Constitution: "No person shall be deprived of life,
liberty or property without due process of law; nor shall private property be
taken for public use without just compensation." [FN1] That sentence, inter alia, raises the
following questions that are respectively discussed here under the above three
rubrics: (1) As interpreted the Constitution permits the government to condemn
private property only when it is for a "public use." Under what
circumstances may it be said that a taking is for that purpose? (2) The Supreme Court has held that the Due
Process *844 Clause provides more than a mere guaranty that when the
government seeks to deprive a person of his life,
liberty, or property, it must do so with fair procedures; rather the protection
of the clause extends to substantive matters as well. Under what circumstances may it be said that
a government regulation is so substantively illegitimate that its
implementation would deprive a person of his property without due process? (3) In what kinds of situations, other than
the obvious one of a complete governmental seizure of the title to and
possession of property, may it be said that the government has
"taken" a person's property thus requiring that he be compensated for
its activity?
Though it is clear that the three doctrines
deal with quite different issues and should not be conflated, we shall see that
unfortunately the Court has failed to maintain clear lines of demarcation
between the substantive due process and takings rules and has introduced some
unnecessary overlap and confusion in their application. As a result it has failed to recognize that
since the two have entirely different purposes and underlying policies,
appropriately the remedies for their breach should necessarily be quite
different from each other. On the other
hand, though the substance of the Court's rules about what is a public use is
subject to criticism, [FN2] it has applied an appropriate remedy for its breach, and
there has certainly been no confusion of the doctrine with the other two.
This Article first recapitulates the often
uncertain content of the three doctrines and in the process discusses the
purposes and policies of each. It then argues the courts should keep in mind those
different purposes and policies in devising the appropriate remedies for
enforcing each of the rules in order to avoid handling functionally equivalent
land use problems in ways that are irrationally inconsistent with each
other. Finally, with the help of a
hypothetical, the Article attempts to outline an approach that integrates the
purposes and policies of the rules with the appropriate means of enforcing
them.
II. THE PUBLIC USE DOCTRINE
This doctrine prevents government from
condemning property unless it is for a "public use." Its obvious purpose is to prevent government
from seizing, even with compensation, the property of one person merely to
benefit another private person. Historically there was a fierce debate over
whether the rule required that the property seized by the government be taken
for actual use by the public or merely that the taking resulted in some benefit
to the public. [FN3] However, *845 that issue has seemingly
been finally settled at least as a federal matter by the Supreme Court's latest
opinion on the subject, Hawaii Housing Authority v. Midkiff. [FN4] In that case, a
Hawaii statute authorized a state agency to condemn realty so that it could be
resold to the tenants occupying the properties.
The purpose of the statute was to break up the land holdings of the few families that owned
almost half of the state's land in fee simple so that their properties could be
turned over to those other private parties.
Clearly no use of these lands by the public or any segment thereof was
contemplated.
In upholding the law's constitutionality, the
Court said: (1) a law authorizing realty condemnation is valid as for a public
use if it is "rationally related to a conceivable public purpose"; [FN5] (2) "[t]he
'public use' requirement is . . . coterminous with the scope of a sovereign's
police powers"; [FN6] and (3)
"[r]egulating oligopoly and the evils associated with it" [FN7] was a valid "classic exercise of a States's police
powers." [FN8]
The Court also dealt with the standard for
reviewing whether the means of condemnation was rationally directed toward
achieving the articulated public purpose.
It said that it will uphold the condemnation if the state
"rationally could have believed that the [Act] would promote its
objective" and that "[w] hen the legislature's purpose is legitimate
and its means are not irrational, [[[the] cases make clear that empirical
debates over the wisdom of takings -- no less than debates over the wisdom of
other kinds of socioeconomic legislation -- are not to be carried out in the
federal courts." [FN9]
Broad as the Court saw the eminent domain
power to be, still it recognized that there remain some limits to the purpose
that government can lawfully have as its
reason for a taking. In the same opinion
the Court noted that, "[t]o be sure, the Court's cases have repeatedly
stated that 'one person's property may not be taken for the benefit of another
private person without a justifying public purpose even though compensation be
paid,' " [FN10] and
that a statute authorizing condemnation would be invalid if it were passed
"for no reason other than to confer a private benefit on a particular
private party." [FN11]
In other cases, courts have upheld, inter
alia, the condemnation of an entire neighborhood consisting of private homes,
churches, and places of business, for the purpose of turning the properties
over to a private manufacturer who would employ many persons in the area [FN12] and even rights
of way to a public road for owners of landlocked realty. [FN13]
In summary, it can be said that as the law
has developed, the public use doctrine looks to the purposes or ends of direct
condemnations and upholds those that have a conceivable public purpose while it
generally forbids only those which are done for strictly private purposes. The standard is a loose one and if a
particular condemnation benefits both a private party and an important segment
of the general public, the tendency of the courts is to uphold the right of the
government to condemn the property (with, of course the concomitant duty to pay
compensation). [FN14] The remedy where there is a breach, however,
is crucial. When a condemnation is held
to violate the public use doctrine, it is not
enough for the government to pay the owner compensation; rather the court
completely forbids the taking. And
properly so, for it is perfectly appropriate for the courts to wholly prevent
the government from engaging in a particular activity when its purposes are
wholly illegitimate and outside the scope of its delegated powers.
III. SUBSTANTIVE DUE PROCESS -- MEANS/ENDS
REVIEW
Unlike public use inquiries, substantive due
process reviews do not scrutinize direct condemnations but deal only with the
validity of government regulations and regulatory activities. But like public use, substantive due process
scrutinizes the legitimacy of the government's ends and the rationality of the
means chosen to achieve them.
The history of the development of substantive
due process has been recounted many times [FN15] and there is no point in making a complete recitation of
it here; a sketch of the major developments will suffice. From the very beginnings of the Union, judges
debated whether they had the power to invalidate the substance of legislation
on the basis of a higher or natural law or whether they could do so only on the
basis *847 of a particular clause in the Constitution. [FN16] While the latter
view has prevailed formally, certainly the Court has asserted extremely broad
powers to review the validity of state and
federal legislation. One of the provisions
that the courts early relied on for this purpose was the Due Process Clauses of
the state constitutions [FN17] and the Fifth
Amendment to the U.S. Constitution. [FN18]
It was not until after the Civil War,
however, that the Supreme Court began to take a serious interest in using the
Due Process Clauses of the Fifth Amendment and the recently ratified Fourteenth
Amendment for the purpose of reviewing the substance of various federal and
state regulations. Starting with the
cases examining the reasonableness of utility rate regulation, [FN19] the Court over time expanded the reach of its substantive
reviews to all manner of government regulations. This expansion was first foreshadowed in the
case of Mugler v. Kansas. [FN20] In that decision, the Court upheld the
constitutionality of a statute that completely destroyed the value of a
preexisting brewery by outlawing statewide the manufacture and sale of
intoxicating beverages. Nevertheless it
noted that, "If . . . a statute purporting to have been enacted to protect
the public health, the public morals, or the public safety, has no real or
substantial relation to those objects, or is a palpable invasion of rights
secured by the fundamental law, it is the duty of the courts to so adjudge, and
thereby give effect to the constitution." [FN21] And the Court said
it would not necessarily accept the lawmakers' mere assertion of the required
relationship to public ends *848 but
in judging would look beyond "mere pretenses" [FN22] to the "substance of things." [FN23]
After Mugler there were a number of cases
that struck down purported exercises of the police power as violations of
substantive due process, [FN24] but what became
the archetypal case was Lochner v. New York. [FN25] In Lochner, the
U.S. Supreme Court was reviewing the affirmance by the New York Court of
Appeals of an employer's conviction for violating a state statute which had
made it a misdemeanor for bakery employees to be required or permitted to work
more than sixty hours per week or ten hours per day. In what proved to be one of the most
controversial decisions in its history, the Court, in a far-ranging opinion by
Mr. Justice Peckham, reversed the conviction on substantive due process
grounds. To do so it first had to
distinguish the case from its earlier decision in Holden v. Hardy, [FN26] where it had upheld as a valid exercise of the police
power a Utah statute which limited to eight hours per day the amount of time
underground miners could work. The
Lochner Court justified its striking down the bakery statute and its failure to
follow Holden by distinguishing mining from bakery work, apparently on the
basis of the hazardous and dangerous nature of the former.
The Court stated that under the police power
a state could put "reasonable
conditions" on the liberty or property rights of its citizens, including
the liberty to enter into certain kinds of immoral or unlawful contracts.
As the Court saw it, the issue was whether the statute was "a fair,
reasonable, and appropriate exercise of the police power of the state, or . . .
an unreasonable, unnecessary, and arbitrary interference with the right of the
individual to his personal liberty, or to enter into those contracts in
relation to labor which may seem to him appropriate or necessary for the
support of himself and his family." [FN27] It eschewed any
notion that a labor law to protect bakers was a valid exercise of the police
power, because, as it saw the matter, the law did not involve "the safety,
the morals, nor the welfare, of the public," [FN28] and indeed it felt that "the interest of the public
[was] not in the *849 slightest degree affected by [the] act." [FN29] To be valid an act must have a "direct
relation, as a means to an end, and the end itself must be appropriate and
legitimate, before one can constitutionally interfere with the "right of
an individual to be free in his person and in his power to contract in relation
to his own labor." [FN30] The law could be
upheld, if at all, only as a measure to protect the health of individual bakers
and in this it failed as "there can be no fair doubt that the trade of a
baker, in and of itself, is not an unhealthy one to that degree which would authorize
the legislature to interfere with the right to labor, and with the right of
free contract on the part of the individual, either as employer or
employee." [FN31]
It is impossible for us to shut our eyes to
the fact that many of the laws of this
character, while passed under what is claimed to be the police power for the
purpose of protecting the public health or welfare, are, in reality, passed
from other motives. We are justified in
saying so when, from the character of the law and subject upon which it
legislates, it is apparent that the public health or welfare bears but the most
remote relation to the law. The purpose
of a statute must be determined from the natural and legal effect of the
language employed; and whether it is or is not repugnant to the Constitution of
the United States must be determined from the natural effect of such statutes
when put into operation, and not from their proclaimed purpose. . . . The court
looks beyond the mere letter of the law in such cases.
It is manifest to us that the limitation of
the hours of labor as provided for in this section of the statute under which
the indictment was found, and the plaintiff in error convicted, has no such
substantial effect upon, the health of the employee, as to justify us in
regarding the section as really a health law.
It seems to us that the real object and purpose were simply to regulate
the hours of labor between the master and his employees (all being men, sui
juris), in a private business, not dangerous in any degree to morals, or in any
real and substantial degree to the health of the employees. Under such circumstance the freedom of master
and employee to contract with each other in relation to their employment, and
in defining the same, cannot be prohibited or interfered with without violating
the Federal Constitution. [FN32]
In his famous dissent to Lochner, Mr. Justice
Holmes argued that the Court was attempting to import its economic theories
into the Constitution.
The 14th Amendment does not enact Mr. Herbert
Spencer's Social Statics . . . . [A] Constitution is not intended to embody a
particular economic theory, whether of paternalism and the organic relation of
the citizen to the state or of laissez faire.
It is made for people of fundamentally differing views, and the accident
of our finding certain opinions natural and familiar, or novel, and even
shocking, ought not to conclude our judgment upon the question whether statutes
embodying them conflict with the Constitution of the United States. . . .
I think that the word 'liberty,' in the 14th
Amendment, is perverted when it is held to prevent the natural outcome of a
dominant opinion, unless it can *850 be said that a rational and fair
man necessarily would admit that the statute proposed would infringe fundamental
principles as they have been understood by the traditions of our people and our
law. It does not need research to show
that no such sweeping condemnation can be passed upon the statute before us. A reasonable man might think it a proper
measure on the score of health. Men whom
I certainly could not pronounce unreasonable would uphold it as a first
installment of a general regulation of the hours of work. Whether in the latter
aspect it would be open to the charge of inequality I think it unnecessary to discuss. [FN33]
Despite the protestations of Holmes and
Harlan (who also dissented), the Court in Lochner effectively reserved unto
itself the power to decide whether: (1) the proclaimed end of the statute under
review was legitimate; (2) the proclaimed end was "really" the end of
the legislature at all or there was perhaps another illegitimate purpose
animating the law-making body; and (3) even if the end was a legitimate one,
the means selected were truly directed toward reaching it.
Over the next thirty years, the Court reached
inconsistent results in the application of substantive due process to various
economic regulations, [FN34] while the theory
itself was under violent attack by the commentators. [FN35] By the 1930s the
Court, manned with different personnel and facing the economic disaster of the
Great Depression, was ready to give government much broader latitude in
attacking the problems of the day. In a series of cases beginning with Nebbia
v. New York [FN36] and Home Building and Loan Association v. Blaisdell [FN37] and ending with Ferguson v. Skrupa [FN38], the Court turned completely away from substantive reviews
of economic regulation. In Ferguson, the
Court was called upon to review a Kansas statute which made it a misdemeanor to
engage in the business of debt adjustment except as incident to the practice of
law. The Court in refusing to strike
down the regulation said:
The doctrine that prevailed in Lochner, Coppage, Adkins, Burns, and like
cases -- that due process authorizes courts to hold laws unconstitutional when
they believe the legislature has acted unwisely -- has long since been
discarded. We have returned to the
original constitutional proposition that courts do not substitute their social
and economic beliefs for the judgment of legislative bodies, who are elected to
pass laws. As this Court stated in a *851
unanimous opinion in 1941, 'We are not concerned * * * with the wisdom, need,
or appropriateness of the legislation.'
Legislative bodies have broad scope to experiment with economic
problems, and this Court does not sit to 'subject the state to an intolerable
supervision hostile to the basic principles of our government and wholly beyond
the protection, which the general clause of the Fourteenth Amendment was
intended to secure.' It is now settled
that States 'have power to legislate against what are found to be injurious
practices in their internal commercial and business affairs, so long as their
laws do not run afoul of some specific federal constitutional prohibition, or
of some valid federal law. . . .
We conclude that the Kansas Legislature was
free to decide for itself that legislation was needed to deal with the business
of debt adjusting. Unquestionably there are arguments showing that the business
of debt adjusting has social utility, but such arguments are properly addressed
to the Legislature not to us. We refuse
to sit as a 'superlegislature to weigh the wisdom
of legislation,' and we emphatically refuse to go back to the time when courts
used the Due Process Clause 'to strike down state laws, regulatory of business
and industrial conditions, because they may be unwise, improvident, or out of
harmony with a particular school of thought.'
Nor are we able or willing to draw lines by calling a law 'prohibitory'
or 'regulatory.' Whether the legislature
takes for its textbook Adam Smith, Herbert Spencer, Lord Keynes, or some other
is no concern of ours. The Kansas debt
adjusting statute may be wise or unwise.
But relief, if any be needed, lies not with us but with the body
constituted to pass laws for the State of Kansas. [FN39]
Ferguson represented the definitive end (at
least for this period in our history) of the Court's substantive reviews of the
legitimacy of ends and effectiveness of means with respect to what it called
"economic legislation." However, the Court has continued to this day
to make such reviews with respect to land use regulation [FN40] and has felt
forced to resurrect substantive due process to protect certain
"fundamental rights" [FN41] such as the right
to privacy [FN42] and freedom of association. [FN43]
One can reasonably argue that the Court is
justified in giving special substantive due process protection to certain
defined fundamental rights. But its
decisions, wherein it continues to act as a "superlegislature" in
land use cases but not in other kinds of economic regulation *852 cases,
have never been satisfactorily explained.
The truth of the matter, of course, is that the Court has never given up its power to make this
kind of a review when it wishes to. At
the moment it chooses not to do so as to most economic regulation, while it
does so in various other kinds of cases.
But is there any doubt that it would resurrect substantive due process
-- either by that name or another -- in an economic regulation case, if the
facts were egregious enough? Take for
example, a statewide statute that forbade all but the XYZ Corporation from
operating supermarkets in the state. If
the statute survived state constitutional review, would the U.S. Supreme Court
refuse to "act as a superlegislature" in such a case? I believe the question answers itself.
In addition to those cases of the Supreme
Court already mentioned, [FN44] there has been a voluminous number of modern U.S. Court of
Appeals cases involving substantive due process reviews of land use
regulations. [FN45] These have typically involved suits under s 1983 of the
Civil Rights Act [FN46] seeking damages and injunction for arbitrary and
capricious denials of such things as building permits, [FN47] subdivision approvals, [FN48] or certificates
of occupancy [FN49] or for unreasonably impeding the development of property. [FN50]
It should be emphasized, however, that the
remedy available in all of these substantive due process cases, like the remedy
in the case of the public use doctrine, has been to grant specific relief -- in
this case to void the regulation or regulatory activity at the option of the
person harmed by it. In addition damages under s 1983 have been
available for the harm done while the government imposition has been in effect.
[FN51]
We turn next to a
historical review of the development of takings doctrine.
*853 IV.
EARLY TAKINGS LAW
Unlike the doctrines of public use, which
deals with direct government condemnations, and substantive due process, which
deals with the validity of government regulations, takings doctrine, as it has
evolved, deals with the validity of governmental ongoing activities and regulations. Though, as we shall see, the Court has
recently said that takings rules, like those of substantive due process, are
aimed at making sure that the means used by government in its regulatory
activities are directed toward a legitimate public purpose, that was not their
function as originally conceived. The
rules were historically designed to make sure that compensation was given for
what were regarded as implicit takeovers of property by the government. Thus, early on, the Court took the position
that a taking would occur when the government authorized the physical invasion
of a person's property. For example, in
Pumpelly v. Green Bay Co. [FN52] the Court held that when a state statute authorized the
permanent flooding of a landowner's property so that it was unusable, this
constituted a taking for which compensation had to be paid. The Court
said:
The argument of the defendant is that there
is no taking of the land within the meaning of the constitutional provision,
and that the damage is a consequential result of such use of a navigable stream
as the government had a right to for the improvement of its navigation.
It would be a very curious and unsatisfactory
result, if in construing a provision of constitutional law, always understood
to have been adopted for protection and security to the rights of the
individual as against the government, and which has received the commendation
of jurists, statesmen, and commentators as placing the just principles of the
common law on that subject beyond the power of ordinary legislation to change
or control them, it shall be held that if the government refrains from the
absolute conversion of real property to the uses of the public it can destroy
its value entirely, can inflict irreparable and permanent injury to any extent,
can, in effect, subject it to total destruction without making any
compensation, because, in the narrowest sense of that word, it is not taken for
the public use. Such a construction
would pervert the constitutional provision into a restriction upon the rights
of the citizen, as those rights stood at the common law, instead of the government,
and make it an authority for invasion of private right under the pretext of the
public good, which had no warrant in the laws or practices of our ancestors. [FN53] Since Pumpelly,
the Court has made it abundantly clear that
government activities involving a physical invasion of a person's land are ipso
facto takings requiring that compensation be paid to its owner. [FN54]
When it came to losses caused by government
regulation, however, the matter was less clear.
Some of the Court's early cases could be read to hold that when the
challenge was to a state regulation that *854 completely destroyed the
value of the owner's property, this could not be a taking because there was no
physical invasion of the owner's property. [FN55] In Mugler v.
Kansas, [FN56] for example, the Court took the position that the Takings
Clause did not apply at all to a statute, which outlawed the manufacture or
sale of intoxicating beverages, thus destroying the value of the defendant's
brewery. The Court said:
It is supposed by the defendants that the
doctrine for which they contend is sustained by Pumpelly
v. Green Bay Co., 13 Wall. 168. But in that view we do not concur. . . .
These principles have no application to the
case under consideration. The question
in Pumpelly v. Green Bay Co., arose under the state's power of eminent domain;
while the question now before us arises under what are, strictly, the police
powers of the state, exerted for the protection of the health, morals, and
safety of the people. . . . [Pumpelly] was a case in which there was a
'permanent flooding of private property,' a 'physical invasion of the real estate of the private owner, and a practical
ouster of his possession.' His property
was, in effect, required to be devoted to the use of the public, and,
consequently, he was entitled to compensation.
As already stated, the present case must be
governed by principles that do not involve the power of eminent domain, in the
exercise of which property may not be taken for public use without
compensation. A prohibition simply upon
the use of property for purposes that are declared, by valid legislation, to be
injurious to the health, morals, or safety of the community, cannot, in any
just sense, be deemed a taking or an appropriation of property for the public
benefit. Such legislation does not
disturb the owner in the control or use of his property for lawful purposes,
nor restrict his right to dispose of it, but is only a declaration by the state
that its use by any one, for certain forbidden purposes, is prejudicial to the
public interests. Nor can legislation of
that character come within the fourteenth amendment, in any case, unless it is
apparent that its real object is not to protect the community, or to promote
the general well-being, but, under the guise of police regulation, to deprive
the owner of his liberty and property, without due process of law. The power which the states have of
prohibiting such use by individuals of their property, as will be prejudicial
to the health, the morals, or the safety of the public, is not, and,
consistently with the existence and safety of organized society, cannot be,
burdened with the condition that the state
must compensate such individual owners for pecuniary losses they may sustain,
by reason of their not being permitted, by a noxious use of their property, to
inflict injury upon the community. The
exercise of the police power by the destruction of property which is itself a
public nuisance, or the prohibition of its use in a particular way, whereby its
value becomes depreciated, is very different from taking property for public
use, or from depriving a person of his property without due process of
law. In the one case, a nuisance only is
abated; in the other, unoffending property is taken away from an innocent
owner. [FN57]
Thus Mugler stood for the proposition that
though a value-destroying regulation could not be a taking requiring
compensation, it could be a deprivation of property without due process of law
if it did not *855 have a legitimate police power objective, such as the
suppression of a nuisance. However, with respect to the takings point, some
commentators have read Mugler to stand for a somewhat different principle known
as the "noxious use doctrine." [FN58] Under that view the
Court did not take the position that no land use regulation could be a taking,
but rather the more limited view that a regulation aimed at prohibiting harmful
activities could not be deemed a taking.
According to that notion, if the nature of the use adversely affected by
the government regulation was found to be noxious, wrongful, harmful, or
prejudicial to the health, safety, or morals of the public, then government might validly regulate it and thereby decrease
its value without the necessity of paying compensation to the owner. [FN59]
In support of the more limited "noxious
use" reading of the Mugler case and its progeny, it should be pointed out
that at the same time that the Court was seemingly proclaiming that regulations
of land use could not be a taking, it was reaching the opposite result with
respect to the regulation of utility rates.
If the rates were "confiscatory" then they could be stricken
down as a taking or perhaps a denial of due process. For example in Stone v. Farmer's Loan and
Trust, [FN60] the Court said:
From what has thus been said, it is not to be
inferred that this power of limitation or regulation [of rates] is itself
without limit. This power to regulate is
not a power to destroy, and limitation is not the equivalent of
confiscation. Under pretense of
regulating fares and freights, the state cannot require a railroad corporation
to carry persons or property without reward; neither can it do that which in
law amounts to a taking of private property for public use without just
compensation, or without due process of law.
What would have this effect we need not now say, because no tariff has
yet been fixed by the Commission, and the statute of Mississippi expressly
provides that in all trials of cases brought for a violation of any tariff of
charges, as fixed by the commission, it may be shown in defense that such
tariff so fixed is unjust. [FN61]
There are two matters particularly noteworthy in the above
quotation. First, the Court, as it has
done in a number of cases, lumped together the two concepts of substantive due
process and takings without purporting to distinguish between them. Second, arguably opposite *856 to its
contemporaneous position in Mugler, it opined that a too onerous regulation
could be a "taking."
In Lawton v. Steele, [FN62] the Court
indicated for the first time that a confiscatory land use regulation, that is,
one "unduly oppressive upon individuals" [FN63] might be unconstitutional.
However, it did not make clear whether it considered this to be a taking
or a deprivation of due process. On the
other hand, in Hudson County Water v. McCarter, [FN64] the Court in a dictum by Mr. Justice Holmes said that if a
land use ordinance regulating the height of buildings was so onerous as to
render the land "totally useless," [FN65] this would
require that the state pay "compensation and [use] the power of eminent
domain," [FN66] a clear
statement that the regulation would be a taking.
Finally in Pennsylvania Coal Co. v. Mahon, [FN67] the Court, again
in an opinion by Justice Holmes, but this time in a definitive holding, made it
absolutely clear that it rejected any notion that an onerous land use
regulation could not be a taking. In
that case, the Court struck down a state statute upheld by the state courts,
that, with certain exceptions not relevant, prohibited
the mining of anthracite coal in such a way as to cause the subsidence of
structures used for human habitation.
The suit was an action brought by a superadjacent individual private
homeowner to enjoin the defendant Coal Company from violating the statute by
mining in a way that would cause the collapse of his house. Defendant Coal Company's defense was that the
plaintiff 's title stemmed from a deed made by it, which granted to the
plaintiff surface rights, while reserving to the defendant the right to mine
the subsurface coal, with the plaintiff also agreeing to waive all right to
damages which might occur from such mining.
Under the law of Pennsylvania, this gave the plaintiff a surface estate,
while the Coal Company had the subsurface estate and a separate support
estate. The Court viewed the matter as
an unconstitutional taking of the entire separate support estate. It said:
Government hardly could go on if to some
extent values incident to property could not be diminished without paying for
every such change in the general law. As
long recognized, 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 contract and due process
clauses are gone. One fact for
consideration in determining such limits is the extent of the diminution. When
it reaches a certain magnitude, in most if not in all cases there must be an
exercise of eminent domain and compensation to sustain the act. So the question depends upon the particular
facts. The greatest weight is given to the judgment of the legislature, but it always
is open to interested *857 parties to contend that the legislature has
gone beyond its constitutional power. . . .
The general rule at least is, that while
property may be regulated to a certain extent, if regulation goes too far it
will be recognized as a taking. [FN68]
In Pennsylvania Coal the Court laid down the
doctrine, known as the diminution in value test, that a land use regulation
that was too onerous could in certain circumstances be a taking. This obviously left open the question of when
the regulation might be said to go "too far." Certainly it does not happen too often, for
it is interesting to note that in the seventy year period from 1922, the date
of Pennsylvania Coal, until 1992, when it finally issued the opinion finding a
taking in Lucas v. South Carolina Coastal Council, [FN69] the Court never
found a regulation that went "too far." And though the cases are relatively
infrequent, state courts have on occasion used the doctrine to strike down
various individual land use control regulations that they deemed too onerous,
such as industrial zoning and various development prohibitions. [FN70]
The policy of the Takings Clause was made
clear by Pennsylvania Coal, however. It
was later best, if cryptically, expressed in an opinion by Mr. Justice Black in
Armstrong v. United States. [FN71] Armstrong was an otherwise obscure case involving a
subcontractor materialman having a lien under state law for supplying materials
for construction of boats under a contract between a contractor boat builder
and the United States. The latter
agreement required the contractor to transfer to the United States the title to
uncompleted boat hulls upon his default of performance. When the contractor defaulted, title to the
hulls was accordingly transferred.
Though under state law, the materialman could have enforced his lien
against any other person taking title under these circumstances, the United
States claimed that he could not enforce his lien against it because it had
sovereign immunity. The Court held that
the acquisition was for a public use and totally destroyed the value of the
lienholder's property interest and was therefore a taking.
The case is not notable for what it held, but
is often cited for Justice Black's delineation of the basic policy underlying
the takings rules, hereinafter designated as the Armstrong Policy: "The Fifth *858 Amendment's
guarantee that private property shall not be taken for a public use without
just compensation was designed to bar Government from forcing some people alone
to bear public burdens which, in all fairness and justice, should be borne by
the public as a whole." [FN72] Solving the riddle
of when "fairness and justice" require that society rather than the
individual should bear the cost of government impositions has proved to be one
of the most difficult questions the Court has ever had to face. We will address that problem further in a later Part of the Article. [FN73]
V. THE REMEDY FOR REGULATORY TAKINGS
It is important to note the remedy that the
Court used in Pennsylvania Coal when it held the statute was an
unconstitutional taking of the Coal Company's support estate, viz., to refuse
to enforce the statute, thus effectively voiding it and enjoining its
enforcement. The unfortunate result of
that was to allow the Company to continue its mining operations unhampered and
consequently to destroy the homes of the superadjacent landowners.
If it had been available, a different remedy
would have reached a result much sounder and fairer to both sides, while still
leaving intact the basic taking decision.
The remedy follows logically from the Armstrong Policy which underlies
all takings rules -- that of preventing the state from imposing upon an
individual those burdens which in fairness ought to be borne by the general
public. That better approach would be to
give the regulator the option of compensating the Company and allowing the
regulation to go into effect, thereby protecting the homes from collapse, or,
in the alternative, acquiescing in the Court's voiding of the regulation,
thereby, of course, imperiling them. If the regulator chose the former option,
both sides would be protected by a procedure that allowed the homeowners to
keep their homes and the Coal Company to be compensated
for the taking of its property. The
remedy was not available in Pennsylvania Coal because the regulator (in this
case the state) was not a party to the suit.
But in most cases challenges to regulations do involve the regulator as
a party (or it can be made one), and it should be available.
The history of the compensation remedy for
governmental acts deemed a taking is rather a complicated one and will only be
briefly described here. [FN74] First of all, compensation has always been
available *859 when the government act involved a physical takeover of
the owner's property. [FN75] The appropriate
action was (and is) a suit in "inverse condemnation" where the
plaintiff injured landowner sued the government wrongdoer for damages.
The real controversy has always been whether
an owner who was the victim of a "regulatory taking" had a similar
remedy in inverse condemnation, or the courts were limited to a declaration
that the regulation was void and therefore unenforceable. In a number of states, [FN76] including
California, [FN77] the courts held that the only appropriate remedy was the
voiding of the regulation and that an action in inverse condemnation was
unavailable, on the ground that the remedy would unduly inhibit planners in the
execution of their functions. In other
states, [FN78] the courts allowed the compensation remedy in addition to
the traditional voiding remedy.
Although there were hints in some of its
cases [FN79] that the U.S. Supreme Court approved the inverse condemnation
remedy for regulatory takings, many felt that its position on the issue was not
clear. The Court had an opportunity to
clarify its position in a series of land use cases [FN80] in the early 1980s but for various technical reasons
didn't reach the merits of the question.
In a famous dissenting opinion in the San Diego case, [FN81] Mr. Justice Brennan argued strongly for the existence of
the compensation remedy.
Finally in First English Evangelical Lutheran
Church v. County of Los Angeles, [FN82] the Court faced the issue head-on and ruled in favor of *860
the remedy. In that case, the Church
operated a campground with various buildings which were destroyed in a flood
resulting from heavy rains after a fire had denuded the hills upstream from the
area. Defendant County then adopted an
ordinance that designated the area a flood plain and forbade reconstruction
within it. The Church immediately
brought an action in state court in inverse condemnation for damages for the
loss of use resulting from the taking of its property. The California courts, following the holding
of their Supreme Court in an earlier case, [FN83] ruled that an
action in inverse condemnation was not available for a regulatory taking and
that the only relief the courts could give was to void the regulation.
On appeal, the U.S. Supreme Court held that
the Just Compensation Clause of the Fifth Amendment as carried over to the
states by the Fourteenth Amendment requires
that government pay for temporary regulatory takings. "[The] basic understanding of the
Amendment makes clear that it is designed not to limit the governmental
interference with property rights per se, but rather to secure compensation in
the event of otherwise proper interference amounting to a taking." [FN84] The right to compensation is not based on any
statute but arises from a right "guaranteed by the Constitution." [FN85] "While the
typical taking occurs when the government acts to condemn property in the exercise
of its power of eminent domain, the entire doctrine of inverse condemnation is
predicated on the proposition that a taking may occur without such formal
proceedings." [FN86] In the past various temporary seizures have
been held to require compensation for a temporary taking. "These cases
reflect the fact that 'temporary' takings which, as here, deny a landowner all
use of his property, are not different in kind from permanent takings, for
which the Constitution clearly requires compensation." [FN87] Here the ordinance
forbidding the use of the property was passed in 1979, and though plaintiff
filed its suit within one month thereafter, it wasn't until 1985, six years
later, that the Supreme Court of California denied a hearing on the claim. The merits of plaintiff 's case are yet to be
determined. "Invalidation of the ordinance or its successor ordinance
after this period of time, though converting the taking into a 'temporary' one,
is not a sufficient remedy to meet the demands of the Just Compensation
Clause." [FN88]
"Nothing we say today is intended to abrogate the principle that
the decision to exercise the power of eminent domain is a legislative function
'for Congress and Congress alone to determine.' . . . Once a court determines
that a *861 taking has occurred, the government retains the whole range
of options already available -- amendment of the regulation, withdrawal of the
invalidated regulation, or exercise of the power of eminent domain. Thus we do not, as the Solicitor General
suggests, 'permit a court, at the behest of a private person, to require the .
. . Government to exercise the power of eminent domain . . . .' We merely hold that where the government's
activities have already worked a taking of all use of property. no subsequent
action by the government can relieve it of the duty to provide compensation for
the period during which the taking was effective." [FN89] The Court then
pointed out that its doctrine of temporary takings was a limited one and did
"not deal with the quite different questions that would arise in the case
of normal delays in obtaining building permits, changes in zoning ordinances,
variances, and the like which are not before us." [FN90]
Finally the Court recognized that its
decision would "undoubtedly lessen to some extent the freedom and
flexibility of land-use planners and governing bodies of municipal corporations
when enacting land-use regulations. But
such consequences necessarily flow from any decision upholding a claim of
constitutional right; many of the provisions of the Constitution are designed to limit the flexibility and freedom of
governmental authorities, and the Just Compensation Clause of the Fifth
Amendment is one of them." [FN91] In the procedural
posture of the case, the Court had assumed that the regulation would deprive
plaintiff of all use of its property and that it therefore was a taking. It reversed and remanded the case to state
court for further proceedings. On remand
the California courts held that under the circumstances, plaintiff had not been
deprived of all use of its property and therefore there was no taking. [FN92]
The importance of the First English case lies
in its establishment, conclusively for the first time, of a right to
compensation for temporary regulatory takings.
But there is perhaps greater significance in what the Court had to say
about damages for permanent takings. In
two places in the opinion, it indicated that where a regulation is held to be a
taking, the government has the option of continuing to enforce it permanently
upon payment of damages or to acquiesce in its being voided. [FN93] This is a perfectly appropriate result. If the regulation has *862 a
legitimate public purpose, the government should be allowed to continue it in
effect, as long as it is willing to pay those people who, in the words of
Armstrong, should not be forced "alone to bear public burdens which, in
all fairness and justice, should be borne by the public as a whole." [FN94]
The rule has some other virtues as well. Importantly, it will force regulators to take into account the costs and
benefits of the regulations they put into effect. Finally it will help put to an end the
pernicious practice of some municipal regulators of what might be called serial
regulation. For example, a developer
wants to put in a shopping center on his property, and the city to forestall
that passes an ordinance zoning the property as single family residential. When the state supreme court after four years
of litigation voids the regulation, the city passes another ordinance zoning
the property for multi-family residential.
Other ordinances can be passed as needed to prevent the desired
development. In the end no landowner is
able to win a battle in which the city passes one law after another to
frustrate his purposes. The inverse
condemnation rule will help to end that kind of abuse. [FN95]
VI. EARLY MUDDLING OF TAKINGS AND
SUBSTANTIVE DUE PROCESS [FN96]
It has been forcefully argued that the
concept of substantive due process deriving from the Magna Carta and the
English doctrine of the "law of the land" was historically directed
toward the prevention of monopoly and of the expropriation of private property
without compensation. [FN97] Under that view
takings are one species of a deprivation of substantive due process. And certainly since there is no clause in the
Fourteenth Amendment expressly prohibiting the states from taking property
without just compensation, it is the Due
Process Clause that incorporates the taking prohibition against them. [FN98] Be that as it *863 may, as the law has
developed over time, the very different ideas underlying substantive due
process and takings have become quite clear to the modern lawyer. In pure form, due process now questions the
legitimacy of the government impositions -- does the regulation have a lawful
objective and are the means utilized directed to reaching it? In contrast, takings rules deal with the
weight of government impositions -- even though in a particular case the
government has a lawful objective and its means are directed to reaching it, is
it fair under the circumstances for one person to bear all the costs of the
imposition or would it be more just to require society to bear them?
It is perfectly obvious that it makes little
difference what labels one puts on these very different concepts as long as
sound rules are applied to each. The problem has been that historically the
Court often neither carefully distinguished between the basic concepts nor
consistently applied the same labels to them. [FN99] Often it has tended
to put the two doctrines together in an unintelligible muddle. A good example of an early case which did
that was noted earlier, Stone v. Farmer's Loan and Trust. [FN100] In that case in
dealing with the problem of what the Court should do with confiscatory rate
regulation, it said that such would be "a taking of private property for
public use without just compensation, or without due process of law" [FN101] -- a studied
refusal to deal with the difference between the two concepts. Indeed it seems quite clear that confiscatory
rate regulations are better analyzed as takings rather than as due process
deprivations. Monopoly rate regulation has a valid purpose, but where it is
confiscatory, it would seem that government should bear the expense of
requiring the utility to charge its customers a price below its costs, and if government
does not want to do so, then the regulation should be voided as a taking.
In the land use area, the Court also failed
to distinguish between the two concepts.
In the two cases that purported to deal with the constitutional limits
upon zoning, Village of Euclid v. Ambler Realty Co. [FN102] and Nectow v.
City of Cambridge, [FN103] the Court
dealt with the issue as a matter of substantive due process. In the first it upheld generally the power of
government to zone, holding that separation of land uses was a legitimate end
and that zoning was a rational means of getting there. In the second, it struck down as a violation
of substantive due process a particular regulation that the master below felt *864
was irrational under the circumstances. Neither case discussed takings
jurisprudence though they both involved substantial decreases in value as a
result of the zoning regulation, and they both came after Justice Holmes'
decision in Pennsylvania Coal.
VII. THE MODERN MERGER OF TAKINGS AND DUE
PROCESS
After Pennsylvania Coal, Euclid and Nectow,
the Court, with very few exceptions, [FN104] pretty much ignored local land use control problems for
the next fifty years. In 1978, however,
with the case of Penn Central Transportation Co. v. City of New York [FN105], it initiated a new period of intensive work in the area
and also began what now seems to be an irreversible and unfortunate merger of
the due process and takings concepts. In
that case, plaintiff, owner of the Grand Central Terminal in New York City, brought
suit seeking injunctive relief against the defendant Landmarks Preservation
Commission after the latter had designated the building as a
"landmark" under the landmark preservation statute and refused to
approve plans for construction of a 50 -story office building to be
cantilevered over the Terminal.
Plaintiff contended that defendant's refusal constituted a taking of its
property without just compensation.
In holding it was not a taking and denying
relief to the plaintiffs, the Court, in an opinion by Mr. Justice Brennan,
attempted to summarize the takings jurisprudence of the last hundred
years. First quoting Armstrong v. United
States [FN106] Brennan stated
that the basic underlying policy of the takings rules was to prevent government
from imposing on one party those burdens that fairly ought to be borne by
society in general. [FN107] Then he conceded that the Court had been
unable to develop any "set formula" for determining how to apply that policy and that
the jurisprudence of the area has been one of "engaging in . . .
essentially ad hoc factual inquiries." [FN108] Nevertheless the "decisions have identified several
factors that have particular significance." [FN109]
Brennan noted that one factor was the
"economic impact of the regulation on the claimant and, particularly, the
extent to which the *865 regulation has interfered with distinct
investment-backed expectations." [FN110] -- a clear reference to Holmes' diminution in value
test. Another consideration was the
"character of the government action;" [FN111] more specifically a taking may occur when the government
interference involves a "physical invasion" [FN112] of the owner's
property. And "[m]ore importantly
for the present case, in instances in which a state tribunal reasonably
concluded that 'the health, safety, morals, or general welfare' would be
promoted by prohibiting particular contemplated uses of land, this Court has
upheld land-use regulations that destroyed or adversely affected recognized
real property interests." [FN113] And this would even include cases where there
is a prohibition of "a beneficial use to which individual parcels had
previously been devoted." [FN114]
Mr Justice Brennan's last point needs to be
more thoroughly examined; it really involves a merging of the concepts of due
process and takings. Under Brennan's
analysis, the legitimacy of government ends and means becomes a takings as well as a due process question. But many of the citations he gives in support
of the argument that where the public health, safety, morals, or welfare is served
by a value-destroying regulation, this would not be a taking, are cases that
had been thought by many to be illustrations of the so-called "noxious use
doctrine" traditionally used in takings analysis. Those cases upheld such regulations as a
government mandated destruction of cedar trees to prevent cedar rust to apple
trees, [FN115] the
prohibition of the continued operation of a preexisting brickyard after the
surrounding area became residential, [FN116] and the
prohibition of the continued operation of a long established sand and gravel
mining business below the water table. [FN117]
The Penn Central case was an opening wedge in
what became the final rejection of the noxious use doctrine by the Court and
its replacement in takings analysis by what is very difficult to distinguish
from a substantive due process standard in Agins v. City of Tiburon, [FN118] Nollan v.
California Coastal Commission, [FN119] and Lucas v.
South Carolina Coastal Council. [FN120] The noxious use
doctrine had allowed the destruction of property values by regulation as long
as its purpose was to prevent *866 some "public harm." But the shift to a rule permitting the
justification of a regulation by a showing that it serves the public health,
safety, welfare, or morals allowed a much broader compass for regulation.
Though the early cases stood for no such proposition, [FN121] Professor
Ernst Freund, in analyzing takings jurisprudence, had stated the noxious use
principle in the alternative: "[I]t
may be said that the state takes property by eminent domain because it is
useful to the public and under the police power because it is harmful." [FN122] In other words,
Freund held that if the result of the governmental regulation was to achieve a
benefit for the community, compensation must be paid; but if it was to
terminate a harmful activity, no compensation was necessary.
In Penn Central the dichotomy posed by
Professor Freund between a regulation that terminates a harm to the public and
one that secures a benefit to it was rejected as posing a false choice; rather,
a regulation that seeks to do either is to be upheld as against a taking
challenge. On that narrow point the
Court's approach seems appropriate, for, as has been pointed out many times, [FN123] ending a harm also inevitably involves benefiting the
public, and one cannot really distinguish one from the other. On the other hand, more importantly and
ominously, the use in Penn Central of a means/public ends review in a takings
analysis marks the beginning of the unfortunate merger of such reviews under
both takings and due process rubrics in the modern cases.
In Penn Central Mr. Justice Brennan had
stated that a regulation that advanced the public welfare was not a
taking. A few years later in Agins v.
City of Tiburon [FN124] the
Court, in upholding the validity of a zoning ordinance
limiting plaintiff 's land to residential use against a taking challenge,
stated in dictum the converse proposition that a regulation*867 that did
not advance the public welfare was a taking.
"The application of a general zoning law to particular property
effects a taking if the ordinance does not substantially advance legitimate
state interests . . ., or denies an owner economically viable use of his
land." [FN125] The Court agreed with the state supreme
court's view that the ordinance advanced a legitimate public interest by
discouraging the "premature and unnecessary conversion of open-space land
to urban uses." [FN126]
In Nollan v. California Coastal Commission, [FN127] the Court, in
the first modern case to do so, actually struck down as a taking, rather than
as a denial of substantive due process, a regulation that flunked a means/ends
nexus review. Stated more precisely, the
Court held to be a taking a regulation, wherein, though the ends sought by the
regulators were legitimate, the means selected were not fairly directed toward
those ends. In the case, the Nollans
sought a permit to tear down their small beachfront dwelling and replace it
with a modern larger home. The Nollan
property lay between two public beaches.
The California Coastal Commission agreed to grant a permit if the
Nollans gave the public an easement to pass across their beach from one
abutting public beach to the other. The
easement was to be along the shoreline between the mean high tide line and the
seawall protecting the Nollan's property. The justification for the condition advanced
by the Commission was that the new house would tend to decrease the public's
ability to view the ocean. The Court
held that the easement requirement constituted a taking of the Nollans'
property. In support of that ruling it
said that a "land use regulation does not effect a taking if it
'substantially advance[s] legitimate state interests' and does not 'den[y] an
owner economically viable use of his land.' " [FN128] And conversely
" '[a] use restriction may constitute a "taking" if not
reasonably necessary to the effectuation of a substantial government purpose.'
" [FN129] The Court felt that
the condition did not advance the Commission's objective of protecting the
public's view of the ocean since it is "quite impossible to understand how
a requirement that people already on the public beaches be able to walk across
the Nollans' property reduces any obstacles to viewing the beach created by the
new house." [FN130] Therefore since
there was no nexus between the easement attempted to be exacted (the means) and
improvement of the public view (the end supposedly advanced), the attempt to
impose the condition was an unconstitutional taking and void. The Court went on to *868 say that if
the State really wanted an easement across the property, it would have to
condemn and pay for it.
The Commission also advanced the argument, as
justification for demanding the easement, that a second nexus also was
present. This was the nexus -- traditionally required by the state
court cases concerning the constitutionality of subdivision exactions, [FN131] -- between the
proposed private acts and community needs.
The argument was that construction of the Nollans' new house would
create a need that previously did not exist and that this would justify the
State in requiring them to help relieve that need as a condition for allowing
them to proceed with their construction plans.
More specifically, it was argued that the new house would create a need
for public view, which need would be satisfied by the proposed easement. Factually, of course, this was not true,
because, as Justice Scalia pointed out, a new easement along the beach could
not possibly solve the supposed problem of obstruction of view caused by the
new larger house, which, after all, was well inland of the easement's
location. The real reason the Commission
wanted the easement was undoubtedly to give the public an uninterrupted right
of way to various unconnected beach areas open to the public, and its purported
justification was a mere pretext to acquire at no cost to the State, something
for which it would ordinarily have to pay the applicant owners.
Although Justice Scalia purported to accept
the Commission's private acts/public needs nexus for "purposes of
discussion" [FN132] only, his statement, quoted above, that an easement along
the water could not possibly reduce any obstacles to beach view "created
by the new house," [FN133] indicated his
acceptance of the notion that the second nexus was also a requirement for a valid regulatory
exaction. In other words, the Nollan
opinion stands for the propositions that, for such a regulatory exaction to be
valid: 1) the owner's proposed activity must create or contribute to the
creation of a public need; and 2) the exaction must tend toward the
satisfaction of that same need.
In the recent case of Dolan v. City of
Tigard, [FN134] the Court made
more clear exactly what a regulatory body has to show under the first point to
justify the exactions that it requires in exchange for permission to develop.
It borrowed from state cases in the subdivision exaction area that required a
"reasonable relationship" between the exaction and the need created
by the proposed development, but the *869 Court modified that rule by
substituting for it the standard that there must be a "rough
proportionality" [FN135] between the
two factors.
The Nollan opinion was notable in at least
two respects. First, it established with
finality, if the question was still in doubt, the dubious notion that judicial
review of the nexus between means and ends, which was traditionally viewed as
an issue of substantive due process, was a takings question as well. The Court was apparently enshrining as a permanent
fixture in constitutional law a heedless merger of the very different concepts
and policies involved in substantive due process and takings rules. Second, although the Court held that
basically the same issue was involved in both the takings and due process inquiries, it carefully
distinguished the burden of proof required under each, requiring heightened
judicial scrutiny (similar to that given sex discrimination under the Equal
Protection Clause) in reviews under the Takings Clause but mere rational basis
scrutiny in reviews under substantive due process. [FN136] Thus, under Nollan, the same regulation might
fail a means-ends test as a takings matter but pass it as a due process
one. As a practical matter, then, the
takings review, being the stricter one, would henceforth control the
determination of whether a land use regulation would be held to be
constitutional or unconstitutional in a means-ends review.
Though Justice Scalia did not purport to
limit the application of his doctrine that it is a taking if the means are not
reasonably directed toward reaching the regulator's articulated end, that
doctrine must clearly be confined to cases involving regulatory exactions. For Nollan does not really answer the
question of what the result should be when a regulatory prohibition is argued
to be unconstitutional as a taking or deprivation of due process, on the ground
that the means are not rationally directed toward the regulator's admittedly
lawful purpose. To illustrate the
problem, take the Nollan facts and suppose the regulation of the Commission was
not an attempted easement exaction but a broad-gauged prohibition against any
new construction on the property. Again
suppose the purpose advanced for the regulation was that the Commission was
seeking to preserve the view of those persons already on the beach -- an obvious subterfuge. If the Commission had no other lawful purpose
in mind, or if it had an unlawful purpose, (e.g. to succumb to the whimsical
obsession of an influential next-door neighbor that he have the largest house
in the neighborhood), then it is submitted that the regulation should be voided
as a violation of substantive *870 due process, and that the government
should not have the option of enforcing the regulation even upon payment of
full compensation. The reason is that
the government's exercise of power to pass legislation having only a private
purpose is illegitimate, and just as in the case of a condemnation having a
private purpose in violation of the public use doctrine, the government should
be completely prevented from so acting.
On the other hand, a different problem is
raised if the Commission in reality had an arguably lawful purpose in mind
while falsely suggesting it had the purpose of view preservation. For example, suppose that it could rationally
believe that construction of larger buildings could contribute to beach erosion
and its real purpose was to alleviate that problem. Ostensibly under the rule in Nollan, the
Court would hold the regulation to be a taking because it "failed to
further the end advanced as justification for [it]." [FN137] I do not believe for one moment that the
Court would reach that result, however. In Nollan the Court was dealing with
the question of the constitutionality of an easement exaction required by a
regulator using two pretextual, demonstrably false grounds: first, that construction of the Nollan's new
home would block the view of those persons
already on the beach; and second, that the easement would somehow solve that
problem. The Court merely held that
since the real motive for the regulation was to acquire civic passageway
between two public beaches without paying compensation for it -- something the
Commission could surely lawfully accomplish by condemning and paying for the
privilege -- it should be required to use its eminent domain power and pay
compensation if it really wanted to get that access for the public. But in the case where the Commission is not seeking
to get something for nothing but is merely trying to accomplish another lawful
purpose, for which it would not ordinarily have to pay compensation, e.g., to
make a reasonable regulation to prevent beach erosion, the fact that it
articulated a demonstrably false purpose in justification for the regulation
should not invalidate it if it really had that other perfectly lawful purpose
in mind. In such circumstances, the
regulation would neither be a taking nor a denial of due process but rather a
constitutional exercise of the state's regulatory power. The statement in Nollan that the regulation
must "further the end advanced as justification for [[[it]" [FN138] must be read in the context of a regulatory exaction and
not in that of a regulatory prohibition where it properly has no application.
Admittedly such a problem should not arise very often, for why should the state
allege a purpose which is obviously not served by its regulations when it has
another lawful purpose in mind that is so served? It is only where it is *871 seeking an exaction for which it
would ordinarily have to pay compensation that it would be motivated to so
dissemble.
VIII. THE LUCAS CASE AND THE NUISANCE
DOCTRINE
When the Court decided to review the case of
Lucas v. South Carolina Coastal Council, [FN139] it was expected that, with the changes in the composition
of the Court, some radical remodeling of the the law might occur. Change there
has been, but it is not yet clear that it could be properly called
"radical." In Lucas, plaintiff
landowner sued in inverse condemnation for damages alleging that defendant
state agency had by its regulation effected a taking of his property. In 1986 Lucas had bought for $975,000 two
oceanfront lots on a barrier island off the South Carolina coast intending to
use them to build two expensive homes in an area that had many such homes
already built. Although there had been some regulation of beachfront areas
since 1977, at the time he purchased there was none forbidding the construction
of residences on the lots. In 1988 the
state legislature, for the purpose of preventing beach erosion, enacted the
Beachfront Management Act, which, as effectuated by a regulation of defendant
agency, had the effect of preventing Lucas from erecting any permanent
"occupable improvements" on the premises. Lucas promptly sued and argued that the
complete extinguishment of the value of his property
effected a taking of his property for which he was entitled to just
compensation notwithstanding that the Act was concededly a lawful exercise of
the police power. The trial court held
that the regulation left the properties valueless and ruled in his favor
granting him $1.2 million in compensation. The South Carolina Supreme Court
reversed. It held that it was bound to
accept the legislature's findings that new construction threatened serious
beach erosion because Lucas failed to contest them, and that under the noxious
use doctrine, when a regulation is designed to prevent such a serious public
harm, no compensation is owed, even if the value of the property is completely
destroyed by the regulation.
In an opinion by Justice Scalia, the U.S.
Supreme Court reversed and remanded the case to the state courts for further
proceedings. In what the dissenters
regarded as a gross misreading of the precedents, Justice Scalia stated that
there are two situations in which the Court has had what he called categorical
rules -- rules where the usual case by case balancing process to determine
whether there is a taking is dispensed with. [FN140] The first is where
the regulation authorizes the physical invasion of the property by some third
party, and the second *872 "where [the] regulation denies all
economically beneficial or productive use of land." [FN141] As justification
for the absoluteness of the second rule, Scalia argued that where there is a
total deprivation of beneficial use, this is really the functional equivalent
of an outright physical invasion which
concededly is always a taking, and, in addition, that such takings "carry
with them a heightened risk that private property is being pressed into some
form of public service under the guise of mitigating serious public harm."
[FN142]
Scalia then took issue with the South
Carolina Supreme Court's view that under the noxious use doctrine, if a law is
aimed at preventing a serious harm to the public -- in this case, the possible
erosion and destruction of the coastline -- that regulation is not a taking,
even though it effects a total deprivation of the beneficial use of the
property. The noxious use doctrine, said
Scalia, was just an early assay at saying something quite different:
It is correct that many of our prior opinions
have suggested that "harmful or noxious uses" of property may be
proscribed by government regulation without the requirement of compensation. For a number of reasons, however, we think
the South Carolina Supreme Court was too quick to conclude that that principle
decides the present case. The
"harmful or noxious uses" principle was the Court's early attempt to
describe in theoretical terms why government may, consistent with the Takings
Clause, affect property values by regulation without incurring an obligation to
compensate -- a reality we nowadays acknowledge explicitly with respect to the
full scope of the State's police power. . . . "Harmful or noxious
use" analysis was, in other words, simply the progenitor of our more
contemporary statements that land use regulation does not effect a taking if it substantially
advance[s] legitimate state interests. [FN143]
Scalia then went on to demonstrate that the
traditional distinction of the noxious use doctrine between harm-preventing and
benefit-conferring regulations -- in which it was said that the former were
valid and the latter invalid under the Takings Clause -- was impossible to
apply. The regulation in Lucas, for
example, could be said to have the purpose of preventing harm to the coastline
or of securing ecological benefits.
Therefore, noxious use cannot serve as the "touchstone" to
determine which regulations require compensation and which not. Rather, when involved with a regulation that
deprives the owner of all economically beneficial use, one must look to whether
the "proscribed use interests were not part of his title to begin
with." [FN144] If those interests were part of his title at
the common law then they cannot be completely confiscated without paying the
owner compensation. The government is
permitted to accomplish by regulation only what a court would already have
allowed under the preexisting law of nuisance, *873 so that the rights
of the landowner are not unexpectedly destroyed by the regulation.
Any limitation so severe cannot be newly
legislated or decreed (without compensation), but must inhere in the title
itself, in the restrictions that background principles of the State's law of
property and nuisance already place upon land ownership. A law or decree with such an effect must, in
other words, do no more than duplicate the
result that could have been achieved in the courts -- by adjacent landowners
(or other uniquely affected persons) under the State's law of private nuisance,
or by the State under its complementary power to abate nuisances that affect
the public generally, or otherwise. . . .
Such regulatory action may well have the
effect of eliminating the land's only economically productive use, but it does
not proscribe a productive use that was previously permissible under relevant
property and nuisance principles. The use
of these properties for what are now expressly prohibited purposes was always
unlawful, and (subject to other constitutional limitations) it was open to the
State at any point to make the implication of those background principles of
nuisance and property law explicit. [FN145]
In Scalia's formulation if Lucas's
construction of homes on his lots would not have been a nuisance at the common
law, a regulation that attempted to prohibit such would be a taking for which
compensation would necessarily have to be paid.
The Court therefore reversed and remanded the case to the state courts
for further proceedings to determine whether Lucas was already prevented from
building by the state's "background principles of nuisance and property
law." [FN146] If so prevented, the Act did not effect a
taking, but if not, then this would constitute a taking for which compensation
would be required if the state did not rescind the regulation. And even if the state were to rescind the
regulation, Lucas would be entitled to damages for the temporary taking of his property. On remand the South Carolina Supreme Court
held that there were no background common law principles that forbade Lucas's
proposed use of the property and sent the case back to the trial court for the
assessment of Lucas's damages by reason of the temporary taking. [FN147]
An important part of the opinion deals with
the Court's rejection of the noxious use doctrine and its replacement with the
background principles of nuisance rule.
One might ask what difference the change will make in the actual
decision of cases and indeed, when the matter is carefully analyzed, whether
the Court has really made a substantive change at all. First of all there is an obvious similarity
between the two rules: the conventional (though as we shall see, historically
inaccurate) statement of the noxious use doctrine is that the challenged
regulation is not a taking when its purpose is to forbid a use which is
"harmful" to society, but is a taking when its purpose is to *874
secure a benefit for the community. The
rule applies to all regulations adversely affecting value, even those
completely reducing it to zero. On the
other hand, the nuisance rule holds that when a regulation wreaks a total
decrease in value, it is categorically a taking, except where common law
principles of private and public nuisance indicate "that the proscribed
use interests were not part of [the landowner's] title to begin with." [FN148] An ostensible
difference between the two rules is that the noxious use doctrine exempts from
takings challenges any regulatorily-caused diminution in value, while the nuisance rule applies only as an exception
to the rule that total diminutions in value are categorical takings. But that difference is illusory, for if the
nuisance rule insulates cases of total diminution from takings challenges, then
a fortiori it would serve to exempt cases of lesser decreases in value.
There are some other important points to be
made about Justice Scalia's rejection of the noxious use rule as well. A problem lies with his statement that the
doctrine hinged on the distinction between harm prevention and benefit extraction. If one examines the classic cases in this
area, involving prohibition of brickyards, [FN149] fertilizer manufacturing plants, [FN150] breweries [FN151] and cedar
trees [FN152] one can look long and hard to find any statement
contrasting those two factors. The
complete emphasis of these landmark cases was upon the nuisance or at least the
harmful nature of the proscribed uses.
The benefit extraction part of the rule seems to have arisen from the
statement made by Professor Ernst Freund in his book on the police power. [FN153]
If one grants that the noxious use doctrine
as originally formulated looked only at the nuisance or harmful aspect of the
activity, that doctrine and Justice Scalia's nuisance rule become strikingly
similar. Both rules, it appears, are
seeking to allow the government great latitude in dealing with the problems of
harmful or damaging land use *875 activity without having to pay compensation.
But Justice Scalia's criticism of the noxious use doctrine as useless
because of the impossibility of distinguishing between harm-preventing and
benefit-conferring regulations, does seem disingenuous when one considers what
the original noxious use doctrine really said.
And while his critique would seem fair enough if one were to accept his
assertion of what that doctrine held, still his argument rings a little hollow
when one considers that the common law of nuisance itself has always been
considered notably amorphous and uncertain. [FN154]
Still the question remains: what can one
authoritatively say about the effect of this new rule upon the decision of
actual cases? To answer that, it would
be well to examine the famous above-described U.S. Supreme Court noxious use
cases of the past involving prohibitions upon pre-existing breweries, [FN155] brickyards, [FN156] fertilizer
manufacturing plants, [FN157] and cedar trees.
[FN158] In each the Supreme
Court upheld the constitutionality of the proscribing regulations based upon
the notion that the government had the right under the police power to regulate
those noxious activities to promote the public welfare. And in each the Court mentioned the nuisance
nature of the regulated party's activities but without purporting to refer to
the state's common law as such. Thus, it
would appear that under the old noxious use doctrine, the courts were left
completely free to use "general principles" in deciding questions of
harm and nuisance, while they would apparently
be tied to the state's common law of nuisance, with all of its variables and
uncertainties, in deciding similar issues under the new rule. Each one of the
above activities involved might or might not be a nuisance at the common law
depending upon a number of circumstances, including, of course, the suitability
of the plaintiff 's use and of the defendant's allegedly wrongful use to the
locality involved, the priority in time issue considered below, as well as
other factors. [FN159] Justice Blackmun asserted in his dissent in
Lucas, that the brewery in Mugler (as well as the brickyard in Hadacheck, the
cedar trees in Miller, and the gravel pit in Goldblatt) were not common law
nuisances; [FN160] that undoubtedly was true at least at the time that the
parties *876 started using their property in what later became an
offending way.
It should also be emphasized that the full
strength of the nuisance rule applies only where there is a complete
destruction of value. Under Lucas, where
there is such and there is no nuisance, that would categorically be a taking,
but where the diminution is less than total -- overwhelmingly the most common
situation -- the Court would be relegated once again to deciding the taking
question by the admittedly uncertain method of balancing various factors and
"engaging in . . . essentially ad hoc factual inquiries." [FN161] It is not clear whether any of the above
cases would fit into the total destruction category, with the possible
exception of Mugler, the liquor prohibition case. If they did not, and the courts held, as
Justice Blackmun asserted, that the uses were not common law nuisances, then
the question of whether the regulation was a taking would depend upon the
uncertainties of that ad hoc balancing process.
The most difficult problem raised by the
Lucas nuisance test, however, arises with respect to matters of timing. Take as an example the Hadacheck case, which
involved the mandated shutdown of an existing brickyard, and assume that the regulation
completely destroyed the value of the property. [FN162] When first used for that purpose, the
property was out in the country. Over
time the city grew into the area and the brickyard became surrounded by
residences whose owners thought it offensive.
Certainly at the time of its construction the brickyard was not a
common-law nuisance, but arguably it became such as other inconsistent uses
came to surround it. [FN163] Even so under Justice Scalia's nuisance test,
it would appear that the brickyard could not be forced to close down without
compensation for the reason that the "background principles of the State's
property and nuisance law" [FN164] fail to
indicate "that the proscribed use interests were not part of [the owner's]
title to begin with." [FN165] In other words it would be arguable that if
the use was lawful at the time of construction, it could not be prohibited
without compensation at some later time, because the owner had a right to rely
upon the state of the law at the time of his expenditure of funds for acquisition and construction of his property. [FN166] On the other hand,
the Court could hold under the nuisance doctrine that a landowner is presumed
to know that under tort law, his activity, though not tortious in its present
surroundings, might *877 later be regarded as a nuisance as conditions
change, and therefore he is not entitled to compensation when his use is
forbidden in the light of new facts.
Still, Lucas directs the courts to apply the
common law of nuisance to the taking problem, and if one were to apply the
modern law of torts to the timing question in takings law, a good argument can
be made that, contrary to the original holding, compensation should be given in
a case such as Hadacheck. The problem arose in the famous case of Spur
Industries, Inc. v. Del E. Webb Development Co. [FN167] which blazed
some new paths in the law of nuisance. In that case the Supreme Court of
Arizona held that the plaintiff developer of residences, who came into an area
well after defendant had established a cattle feedlot in what was then open
rural country, was entitled to get an injunction for nuisance against the
defendant's operation of the feedlot, but only upon payment to the defendant of
the reasonable costs of moving or shutting down. The court felt that defendant
was not at fault in establishing its feedlot in open country and it would be
unfair to impose upon it the costs of later arising conflicting uses.
Thus, analogously, it would appear that even
if one could argue that the brickyard in
Hadacheck had become a nuisance at the time of the passage of the prohibitory
regulation, it should be protected because it was not a nuisance at the time of
the investment in the operation. This
would give effect to the Supreme Court's oft expressed policy consideration in
the takings area of protecting "investment backed expectations." [FN168] There seems to be no justification for
treating a tort suit differently from a regulation. Why should a land user,
whose activity has only recently become a nuisance, be entitled to compensation
from his complaining neighbors if they get a court order terminating his
activity in a tort suit for an injunction, but be entitled to nothing if they
use their political clout to induce a municipality to pass a proscribing
ordinance? If "justice"
requires compensation in the one case, it surely requires it in the other. The Armstrong Policy seems particularly
applicable: An innocent person should not be forced to bear those "public
burdens which in all fairness and justice, should be borne by the public as a
whole." [FN169] Needless to say, if the Court were to follow
this line of argument, the rule of Hadacheck would not be followed in those
cases where there was a complete destruction of value.
Hadacheck involved the prohibition of one
particular land use for the protection of other conflicting ones; a second kind
of regulation involves a universal prohibition for the general good of society. The *878 timing problem also occurs
with regulations of the latter kind. A
good example of such a case is Mugler v.
Kansas, [FN170] which involved
the prohibition of the manufacture of intoxicating beverages in the entire
state, effecting a complete destruction in value of the defendant's
brewery. The Court pointed to the public
nuisance nature of breweries as a ground for upholding their statewide abolition. But a public nuisance is a crime whose
definition [FN171] must necessarily depend, inter alia, upon what the state
legislature says is a criminal act at a particular point in time. Breweries had been perfectly lawful in Kansas
until the legislature outlawed them, at which point they became a public
nuisance. Again, it could therefore be
argued that the "background principles of the State's property and
nuisance law" fail to indicate "that the proscribed use interests
were not part of [the owner's] title to begin with" and that under the
Lucas test if breweries were lawful at the time of their construction, no law
could totally destroy their value without compensation. Thus would Mugler be sub silentio overruled.
Only time will tell whether this change to a
takings law more protective of the landowner will occur. It may be that, sooner or later, the Court
will feel impelled to pull back from a full-blown application of its nuisance
doctrine. Whether it should or not is another question. It would seem that if at the time Mr. Mugler
constructed his brewery he had no expectation that the legislature would
prohibit his activity, and there was no reason for him to have such, those
"investment-backed expectations" should be protected by the courts.
Again the Armstrong Policy seems apposite.
In summary, it appears that the net result of
the change to the common law nuisance standard will be a tendency for the
courts, in the very few cases where there has been a complete destruction of
value, to strike down more regulations than they would have under the old
noxious use doctrine, as they feel somewhat constrained by the admittedly
uncertain contours of traditional nuisance law.
That certainly was the effect in the Lucas case itself, where the South
Carolina courts upheld the regulation under the noxious use doctrine but were
forced to strike it down when they were held to be bound by the state's common
law of nuisance. But because the rule in
Lucas only applies to those rare cases where the decrease in value is total,
the overall effect of the case will undoubtedly be much less than conservative
takings reformers hoped for before the opinion was handed down.
*879 IX. A
SOUND TAKINGS RULE
The Armstrong Policy should be the touchstone
used in devising a sound takings jurisprudence.
Takings rules deal with the fairness of imposing upon one person or a
small group of persons burdens that benefit a large segment of society. In a sense, then, they have an equal
protection component; they attempt to decide whether when government bears down
harder on one person than the rest of
society, there is some valid justification for its doing so. Such justification might be the wrongful or
tortious conduct of the person, which the nuisance rule addresses, or that any
detriments visited upon the person are de minimis or offset by a corresponding
benefit to him. The latter point is what
Justice Holmes meant in his discussion in Pennsylvania Coal of the
"average reciprocity of advantage." [FN172] It would not be a justification, however,
that imposing a substantial burden results in great public benefit, if the
person is without fault and fortuitously in the position where it becomes
cheaper and easier to have him rather than society to bear the cost.
This, of course, raises the question of what
is meant by "without fault."
By that I mean, not fault in the sense of moral culpability, but in the
sense that the person exercised the care normally employed by a reasonable
person to prevent economic loss to himself.
Thus if the burden was reasonably expectable at the time of the owner's
purchase of the property, no compensation should be due him, because presumably
the price he paid would reflect that expectation. And if at such time, he made
a property improvement which later suffered in value as a result of those
reasonably predictable governmental acts, no recompense should be payable for
such diminution in value. [FN173]
The real weakness of takings rules in general
and the Lucas case in particular lies in the requirement that the challenged
regulation cause a total decrease in value
before an owner is afforded full takings law protection against a governmental
imposition. Lucas holds that if the
decrease is 100 percent, a categorical takings rule applies, but if it is only
98 percent, a different set of rules -- involving the balancing of a number of
factors -- applies. The case can be
fairly criticized for making so much rest on so little. Would it really be fair in a case like Mr.
Lucas' to say that he would be entitled to a $975,000 recovery if his property
was rendered worthless by the regulation but he would be entitled to nothing if
its value was reduced a mere $965,000 to $10,000? [FN174] In another article I have suggested a first
in time rule as *880 to takings that protects private parties from all
unexpected and unexpectable onerous government impositions. [FN175]
X. AN ILLUSTRATIVE HYPOTHETICAL
The following hypothetical is offered to show
the horrendous results that can occur with the careless failure to distinguish
carefully between public use, substantive due process, and takings
notions. Rich is a wealthy landowner
whose estate, Opulence, lies near but does not abut a beautiful lake. Pauper, Rich's impecunious neighbor, owns
Shambles, the property lying between Opulence and the lake. Shambles is an acreage upon which lies an
ugly, deteriorating shack and some old decaying autos and other junk, all of
which ruins Rich's view of the lake. Shambles is worth $200,000 as is and $210,000
as an empty lot. Opulence is worth
$1,000,000 with its present uninspiring view of the lake, and would be worth
$1,300,000 with Shambles vacant except for a large lawn. On the other hand, if Rich could acquire
Shambles with its direct access to the lake and thus could appropriately
landscape it, Opulence and Shambles together would be worth $1,650,000. In tabular form:
As is Shambles Vacant Both Owned by Rich
Opulence $1,000,000
$1,300,000 $1,650,000
Shambles 200,000
210,000
Total $1,200,000
$1,510,000 $1,650,000
Rich has a great deal of political power,
both locally and statewide and thus has the ability to procure any of the
following governmental acts. First, City
might condemn Shambles and pay Pauper $200,000 therefor and then sell it to
Rich for the same price. Second, City
might *881 condemn it and open it as a public park. Third, City might enact an ordinance
forbidding any use on Shambles except a large lawn.
Obviously Rich would prefer to own both
properties under alternative one above, with private access to the lake and a
total value of $1,650,000. Of course
this would not be costless to him; he would have to pay $200,000 for the benefits.
But for that $200,000 cost he would reap an increase in value of
$650,000 ($1,650,000 minus the $1,000,000 original value of Opulence) for a net
increase in his net worth of $450,000.
If alternative two were used (City condemns
Shambles and turns it into public park) Rich would reap a $300,000 increase in
net worth, as the value of Opulence would increase from $1,000,000 to
$1,300,000 at no cost to him. Rich would
gain a view of lawn and landscaping, and, as a member of the public, access to
the lake. But, of course, he would share
those benefits with the public, and from his standpoint, this would not be as
advantageous as the first alternative.
A similar $300,000 increase would occur under
alternative three where the city zones out all construction on Shambles. Under it, Rich can gain many, but not all, of
the advantages of ownership, for, unless he gets an easement over Shambles, he
will have no access to the lake. But he
still reaps the benefit of a $300,000 increase in value to his property
stemming from the more desirable view at no cost to him.
If Rich were an "economic man," he
clearly would opt for the first alternative, as it would result in the greatest
net benefit to him over cost. Indeed if one assumes that the parties would
value their properties at their market value and that society would benefit the
most from that allocation having the greatest value, that would also be the
most "efficient" result. [FN176]
It is interesting to recall what the law has
to say about the various alternatives.
First, no matter what economists might have to say about the question,
it seems clear that any court, state or federal, would hold that the City's
condemnation for the purpose of reselling to Rich is unconstitutional because
not for a "public use". As
mentioned earlier, though it is true that the U.S. Supreme Court has given
great deference to legislation authorizing the exercise of the eminent domain
power, still, there are limits to what the Court is willing to permit
government to do, as the dictum in Hawaii Housing Authority v. Midkiff [FN177] shows. In that case the Court stated that a statute
authorizing condemnation would be invalid if it were passed "for no reason
other than to confer a private benefit on a particular private party." [FN178] *882 It seems quite clear that a
condemnation just to benefit Rich in his private aesthetic preferences would
surely be enjoined.
Of course, there is absolutely no question of
the legal validity of alternative two, the condemnation of private land for use
as a park that is truly open to the public.
The interesting comparison is between alternatives one and three. If it is clearly unconstitutional to take the
property and sell it to Rich, what about an ordinance that for all practical
purposes requires Pauper to keep it for the sole benefit of Rich while
presumably he is still obligated to pay realty taxes for the privilege?
Under Lucas, [FN179] it would appear as if the regulation prohibited all
economically beneficial or productive use of the land and therefore categorical
treatment of the issue would be appropriate.
The only inquiry necessary therefore would be whether under preexisting
principles of nuisance law, the government could forbid the offending use. Depending upon how deplorable were the
conditions of the property, Pauper might be said to have maintained a nuisance,
and a court might be justified in ordering it abated in a private tort suit
brought by his neighbors. But assuming
that is true, that would still not warrant ordering Pauper to confine his
activities to the cultivation of a bluegrass lawn. The remedy would be limited to forbidding the
violation, leaving the owner free to use his property in any way that did not
continue the nuisance. Therefore
analogously, it would seem that the only remedy a government regulation could
validly require, would be a rule requiring Pauper to remove the offending,
nuisance-creating property. And any
regulation having the more onerous remedy of requiring that Pauper confine his
activities to lawn-growing would trigger Lucas and therefore be a taking
requiring the payment of compensation if the government did not withdraw the
regulation.
Justice Scalia's opinion doesn't expressly
deal with Pauper's situation of the excessive regulation of what is concededly
a nuisance. He was thinking of cases
where the "land [was required] to be left substantially in its natural
state" [FN180] and
any use of the property at all would be a nuisance to society, thus fully justifying a government
regulation that forbids any beneficial use of it. He gave as examples of situations which he
said were not takings because of their nuisance character: 1) the owner of a lake bed who is denied
permission to fill it in because it would flood a neighbor's land; and 2) the
owner of a nuclear power plant who is ordered to dismantle it when it is
discovered that it is located on an earthquake fault. [FN181] In our hypothetical
there is no public purpose justification for completely forbidding the
construction of buildings on the property.
The nuisance is not in the fact *883 that the structures exist
but in the fact that they are of substandard quality; therefore any regulation
that did more than to forbid that which was the nuisance would be invalid as a
taking.
Note under this analysis the difference in
legal results between alternatives one and three. Under the public use doctrine, it is not
enough merely to pay Pauper for condemning his property and reselling it to
Rich; rather that rule completely forbids such a condemnation because it is for
a private purpose. But if the City
enacts an ordinance forbidding any use on Shambles except a large lawn, the
public use doctrine does not apply.
Rather under Nollan and Lucas this case could be analyzed as a taking
for the reason that the regulation had no public purpose, in which case the
government, by payment of compensation, could keep in effect, a regulation
whose sole purpose is to advance a private interest. The point of this is obvious: if the government is absolutely prevented from
condemning Shambles for a proscribed purely private purpose, it should (at
plaintiff 's option) be similarly prevented from enacting an ordinance having
that same purpose. The proper way to
deal with the ordinance is to allow the plaintiff to have specific injunctive
relief as a matter of right if he wishes it.
The government should not have the option of deciding whether to
withdraw the ordinance or to keep it in force and pay compensation for it as
the Court has held is the government's right in regulatory taking cases. [FN182] The appropriate cause of action for the
plaintiff would be under a substantive due process rather than a taking rubric,
the theory being that the means are directed to the illegitimate end of
assisting one private person in realizing his frivolous desires to the great
detriment of another person. In a due
process case, the plaintiff would have the option of deciding between: 1) specific relief voiding the regulation, as
well as damages under s 1983 of the Civil Rights Act for the temporary harm he
suffered during the period he was bound; or 2) damages under s 1983 for the
permanent harm done by the regulation. [FN183] The government should not be allowed to
validate its acts having an illegal purpose by forcing compensation upon an
unwilling party, whether it is attempting to take over his property or merely
to onerously regulate it.
XI. CLEARING UP THE MUDDLE -- SUMMARY AND
CONCLUSION
The above hypothetical shows how the recent
merger of substantive due process and takings rules has resulted in an
unfortunate muddle. Properly, due
process analysis -- looking to whether there is a *884 valid public
purpose for a challenged regulation or regulatory activity, and/or whether the
means are fairly directed to reaching it -- should decide the question of
whether the government's imposition is legitimate and therefore whether it has
the power to so act. This is the same
kind of an issue as is addressed by the public use doctrine which outlaws
outright government condemnations that are illegitimate because they are
strictly for the benefit of a private party.
That doctrine grants specific relief against the governmental seizure;
the payment of compensation does not cure the defect. Similarly when a regulation fails a
substantive due process means/ends nexus test, the exercise of governmental
law-making power is illegitimate and the law should, at the option of the party
harmed, be completely voided; even payment of full compensation should not be
sufficient to sustain it. And of course,
compensation should be paid under s 1983 of the Civil Rights Act for the
temporary injustice visited upon the owner for the period until the regulation
is invalidated. [FN184]
On the other hand, takings analysis --
properly analyzed, looking to whether it is fair to impose the burden of a
regulation, having a valid public purpose, upon one person rather than upon
society in general, [FN185] -- should decide the
question of whether upon the exercise of the regulatory power, government must
pay compensation to sustain it. It
follows that when a law is fairly directed to a public purpose but unjustly
bears upon an owner in such a way as to constitute a taking, the law should be
upheld as long as the government is willing to pay compensation to validate it,
but if it is not so willing, it should be voided. And when the government decides not to pay
compensation but rather to acquiesce in the voiding of a regulation, damages
for the temporary taking should be available under the First English case. [FN186]
Using the above analysis, not only does the
means/public ends test bear upon the legitimacy of the exercise of law-making
power, but takings tests that purport to examine the purpose of regulations
should be viewed as involving similar questions. Thus the former noxious use test and the
Lucas nuisance test logically go not only to the takings issue but also to the
question of whether there is a valid public purpose for a regulation. And the consequence of there not being such a
nuisance or noxious use -- assuming there is no other valid purpose for the
regulation -- should be unconditionally to strike the law down as an
illegitimate exercise of governmental power.
This, of course, is just another illustration of the notion that, if a
regulation has a private rather than a public purpose, even paying full
compensation should be *885 insufficient to sustain it; the regulation
should be stricken down as an improper
usurpation by government.
It is unfortunate that in the recent
jurisprudence of the Supreme Court in cases such as Nollan and Lucas the
Justices have failed to make the basic distinction between illegitimate
governmental impositions and unfairly onerous ones. The result of this will be a failure to
achieve sound results in a fair number of cases where government regulations
lack a legitimate public purpose.
[FNa]. Robert J. Kutak Professor of Law, University of
Nebraska-Lincoln.
[FN1]. U.S.
Const. amend. V.
Though there is no express provision in the Fourteenth Amendment
prohibiting the states from taking property without just compensation, the U.S.
Supreme Court held that the Amendment's due process clause incorporated the
taking prohibition and made it binding upon the states as well. Chicago,
B. & Q. R.R. v. Chicago, 166 U.S. 226 (1897).
[FN2]. See, e.g., Lawrence Berger, The Public Use Doctrine in
Eminent Domain, 57 Or. L. Rev. 203 (1978); Thomas W. Merrill, The Economics of
Public Use, 72 Corn. L. Rev. 61 (1986).
[FN3]. For a review of the history of the doctrine, see Berger,
supra note 2, at 203.
[FN8]. Id.
[FN9]. Id. at 242- 43.
[FN10]. Id. at 241.
[FN11]. Id. at 245.
[FN12]. Poletown
Neighborhood Council v. City of Detroit, 304 N.W.2d 455 (1981).
[FN13]. For a compilation of the cases see, 2A Philip Nichols,
Eminent Domain s 7.07[4][i] (Julius L.
Sackman and Patrick J. Rohan eds., 3d ed. rev. 1995). The justification for this was that the
"roads were private only in name.
The public had the opportunity to use them as if they were public
highways and, hence, they formed part of the public highway and commerce system
in the state necessary for people to travel to discharge public duties."
Id.
A number of states have enacted state
constitutional provisions specifically authorizing these condemnations. Id. at s 7.07[4][i][ ii].
[FN14]. Poletown
Neighborhood Council v. City of Detroit, 304 N.W.2d 455 (Mich. 1981).
[FN15]. See, e.g., Gerald Gunther, Constitutional Law 432 (12th
ed. 1991); Ronald D. Rotunda & John E. Nowak, Treatise on Constitutional
Law: Substance and Procedure ss 15.1-15.4 (2d ed. 1992); Frank R. Strong,
Substantive Due Process of Law: A Dichotomy of Sense and Nonsense (1986).
Dean Strong's volume on substantive due
process traces the origins of the doctrine to the Magna Carta and the English
concept of the "law of the land."
His thesis is that the proper historical role of the doctrine is
twofold: to prevent monopoly and to prohibit the expropriation of private
property.
[FN16]. See, for
example, the debates between Justice Chase and Justice Iredell in Calder
v. Bull, 3 U.S. (3 Dall.) 386 (1798).
[FN17]. See, for example, Wynehamer
v. People, 13 N.Y. 378 (1856), where the court
held that a state liquor prohibition statute violated the Due Process Clause of
the New York Constitution to the extent it forbade sale of beverages owned
prior to the enactment of the law.
[FN18]. In Dred
Scott v. Sandford, 60 U.S. (19 How.) 393 (1857),
the Court used substantive due process as one of the grounds for holding that
the Missouri Compromise was unconstitutional, the theory being that it
interfered with slaveowners' vested property rights in their slaves.
The Court also construed a Congressional
statute so as to avoid what it said would surely violate substantive due
process in Bloomer
v. McQuewan, 55 U.S. (14 How.) 539, 553 -54 (1852).
[FN19]. Stone
v. Farmer's Loan and Trust, 116 U.S. 307 (1886); Munn
v. Illinois, 94 U.S. 113 (1877). In both cases the court upheld the regulation
but intimated that judicial review was appropriate in extreme cases.
In later cases, the Court struck down rate
regulation that failed to give the utility a reasonable rate of return. Smyth
v. Ames, 169 U.S. 466 (1898); Chicago,
M. & St. P. Ry. Co. v. Minnesota, 134 U.S. 418 (1890). These utility rate
cases should properly be read as involving takings rather than due process
issues, though in the last two cases mentioned the Court used the language of
due process in its opinions.
[FN22]. Id.
[FN23]. Id.
[FN24]. See, e.g., Coppage
v. Kansas, 236 U.S. 1 (1915)(state statute
prohibiting employers from requiring as condition of employment that employees
not join a union); Adair
v. United States, 208 U.S. 161 (1908)(federal
statute prohibiting interstate railroad employers from requiring as condition
of employment that employees not join a union); Lochner
v. New York, 198 U.S. 45 (1905)(statute
prohibiting bakery employees from working more than 10 hours per day or 60
hours per week); Allgeyer
v. Louisiana, 165 U.S. 578 (1897)(statute
prohibiting purchase of insurance from company not complying with state law).
[FN27]. Lochner
v. New York, 198 U.S. 45, 56 (1905).
[FN29]. Id.
[FN30]. Id. at 58.
[FN31]. Id. at 59.
[FN32]. Id. at 64.
[FN33]. Id. at 75 -76 (Holmes, J., dissenting).
[FN34]. For example, though Lochner struck down a maximum hour
law for bakery employees, the Court upheld a
similar statute regarding female factory employees in Muller
v. Oregon, 208 U.S. 412 (1908), and a statute
requiring overtime pay for factory workers working more than 10 hours per day
in Bunting
v. Oregon, 243 U.S. 426 (1917).
[FN35]. See, e.g., Fletcher Dobyns, Justice Holmes and the
Fourteenth Amendment, 13 Ill. L. Rev. 71 (1918); Charles M. Hough, Due Process
of Law -- Today, 32 Harv. L. Rev. 218 (1919); Robert P. Reeder, Due Process
Clauses and the "Substance of Individual Rights", 58 U. Pa. L. Rev.
191 (1910).
[FN39]. Id. at 730 -32.
[FN40]. Nollan
v. California Coastal Comm'n, 423 U.S. 825 (1987); Agins
v. City of Tiburon, 447 U.S. 255 (1980); Penn
Central Transportation Co. v. City of New York, 438 U.S. 104 (1978); Goldblatt
v. Hempstead,
369 U.S. 590 (1962); Nectow
v. City of Cambridge, 277 U.S. 183 (1928)(striking
down as a violation of substantive due process a zoning ordinance that did not
bear a substantial relation to the public health, safety, morals, or general welfare);
Village
of Euclid v. Ambler Realty Co., 272 U.S. 365 (1926)(upholding
the power of municipalities to zone).
[FN41]. In United
States v. Carolene Products Co., 304 U.S. 144 (1938), Justice Stone in his famous footnote 4 foreshadowed the fact that the
Court would exercise strict scrutiny in reviewing laws that infringe on
fundamental rights specifically guaranteed by the first ten amendments while
giving much greater deference to laws that merely involved economic legislation.
[FN42]. Roe
v. Wade, 410 U.S. 113 (1973).
[FN43]. NAACP
v. Alabama ex rel. Patterson, 357 U.S. 449 (1958).
[FN44]. See supra note 40.
[FN45]. See, e.g., Sinaloa
Lake Owners Ass'n v. City of Simi Valley, 864 F.2d 1475 (9th Cir. 1989); Bateson
v. Geisse, 857 F.2d 1300 (9th Cir. 1988); Herrington
v. County of Sonoma, 834 F.2d 1488 (9th Cir. 1987);
Littlefield
v. City of Afton, 785 F.2d 596 (8th Cir. 1986); Scott
v. Greenville County, 716 F.2d 1409 (4th Cir. 1983).
[FN46]. 42
U.S.C. s 1983 (1988).
[FN47]. See, e.g., Littlefield
v. City of Afton, 785 F.2d 596 (8th Cir. 1986); Scott
v. Greenville County, 716 F.2d 1409 (4th Cir. 1983).
[FN48]. See, e.g., Herrington
v. County of Sonoma, 834 F.2d 1488 (9th Cir. 1987).
[FN49]. See, e.g., Sullivan
v. Town of Salem, 805 F.2d 81 (2nd Cir. 1986).
[FN50]. See, e.g., Urbanizadora
Versalles, Inc. v. Rios, 701 F.2d 993
(1st Cir. 1983).
[FN51]. For a full discussion of the remedies in land use cases
under s
1983 of the Civil Rights Act, see Michael M.
Berger, The Civil Rights Act: An Alternative Remedy for Property Owners Which
Avoids Some of the Procedural Traps and Pitfalls in Traditional
"Takings" Litigation, 12 Zoning and Plan. L. Rep. 121 (1989).
[FN52]. 80
U.S. (13 Wall.) 166 (1872).
[FN54]. Loretto
v. Teleprompter Manhattan CATV Corp., 458 U.S. 419 (1982); U.S.
v. Causby, 328 U.S. 256 (1946).
[FN55]. New
Orleans Gas Light Co. v. Drainage Comm'n, 197 U.S. 453 (1905); Chicago,
B. & Q. R.R. v. Chicago, 166 U.S. 226 (1897);
Mugler
v. Kansas, 123 U.S. 623 (1887).
[FN58]. See, e.g., Joseph L. Sax, Takings and the Police Power,
74 Yale L.J. 36 (1964).
[FN59]. Though the early cases stood for no such proposition,
Professor Ernst Freund stated the principle
in the alternative: "[I]t may be
said that the state takes property by eminent domain because it is useful to the
public and under the police power because it is harmful." Ernst Freund, The Police Power 546 - 47
(1904).
In other words, Freund held that if the
result of the governmental regulation was to achieve a benefit for the
community, compensation must be paid; but if it was to terminate a harmful
activity, no compensation was necessary.
The original noxious use cases stood only for the second of the two
propositions, but as we shall see, the courts later accepted Freund's
formulation.
[FN61]. Id. at 331 (emphasis added).
[FN66]. Id.
[FN69]. 112
S. Ct. 2886 (1992).
[FN70]. Salamar
Builders Corp. v. Tuttle, 275 N.E.2d 585, (N.Y. 1971) (regulation
preventing building on buildable small lot); State
v. Johnson, 265 A.2d 711 (Me. 1970)(regulation
preventing filling of wetland); Dooley
v. Town Plan & Zoning Comm'n, 197 A.2d 770 (Conn. 1964)(regulation preventing construction on floodplain); LaSalle
Nat'l Bank v. County of Cook, 145 N.E.2d 65 (Ill. 1957)(residential zoning).
See also 3 R. Anderson, American Law of
Zoning s 3.28 nn.32-39 (3d ed. 1986) and cases therein cited.
[FN73]. See infra text
accompanying notes 172-75.
[FN74]. For discussions of the pros and cons of the compensation
remedy, see Michael M. Berger & Gideon Kanner, Thoughts on The White River
Junction Manifesto: A Reply to the
"Gang of Five's" Views on Just Compensation for Regulatory Taking of
Property, 19 Loy. L.A. L. Rev. 685 (1986); Theodore M. Cooperstein, Sensing
Leave for One's Takings: Interim Damages and Land Use Regulation, 7 Stan.
Envtl. L.J. 49 (1988); Norman Williams, Jr. et
al., The White River Junction Manifesto, 9 Vt. L. Rev. 193 (1984).
[FN75]. See, e.g., Loretto
v. Teleprompter Manhattan CATV Corp., 458 U.S. 419 (1982); United
States v. Causby, 328 U.S. 256 (1946); Pumpelly
v. Green Bay Co., 80 U.S. 166 (1872).
[FN76]. See, e.g., Hamilton
v. Conservation Comm'n, 425 N.E.2d 358, 365 n.13 (Mass. App. Ct. 1981); Fred
F. French Inv. Co. v. City of New York, 350 N.E.2d 381 (N.Y.), cert. denied and app. dismissed, 429
U.S. 990 (1976).
See also Gene R. Rankin, The First Bite at
the Apple: State Supreme Court Takings Jurisprudence Antedating First English,
22 Urb. Law. 417 (1990).
[FN77]. Agins
v. City of Tiburon, 598 P.2d 25 (Cal. 1979), aff
'd on other grounds, 447
U.S. 255 (1980).
[FN78]. See, e.g., Annicelli
v. Town of South Kingstown, 463 A.2d 133
(R.I. 1983); City
of Austin v. Teague, 570 S.W.2d 389 (Tex. 1978); Washington
Market Enterprises, Inc. v. City of Trenton, 343 A.2d 408 (N.J. 1975).
[FN79]. United
States v. Riverside Bayview Homes, Inc., 474 U.S. 121 (1985); Ruckelshaus
v. Monsanto Co., 467 U.S. 986 (1984); Hurley
v. Kincaid, 285 U.S. 95 (1932). See discussion in Berger & Kanner, supra
note 74, at 704 - 07.
[FN80]. MacDonald,
Sommer, & Frates v. County of Yolo, 477 U.S. 340 (1986); Williamson
County Regional Planning Comm'n v. Hamilton Bank, 473 U.S. 172 (1985); San
Diego Gas & Electric Co. v. City of San Diego, 450 U.S 621 (1981); Agins
v. Tiburon, 447 U.S. 255 (1980).
[FN81]. San
Diego Gas & Electric Co. v. City of San Diego, 450 U.S 621, 636 (1981).
[FN83]. Agins
v. Tiburon, 598 P.2d 25 (Cal. 1979).
[FN84]. First
English Evangelical Lutheran Church v. County of Los Angeles, 482 U.S. 304, 315
(1987).
[FN85]. Id.
[FN86]. Id. at 316.
[FN87]. Id. at 318.
[FN88]. Id. at 319.
[FN89]. Id. at 321 (internal citations omitted).
[FN90]. Id.
[FN91]. Id.
[FN92]. First
English Evangelical Lutheran Church v. County of Los Angeles, 258 Cal. Rptr.
893 (Cal. Ct. App. 1989), cert. denied, 393
U.S. 1056 (1990).
[FN93]. "Once a court determines that a taking has occurred,
the government retains the whole range of options already available --
amendment of the regulation, withdrawal of the invalidated regulation, or
exercise of eminent domain." First
English Evangelical Lutheran Church v. County of Los Angeles, 482 U.S. 304, 321
(1987).
"The Court has recognized in more than
one case the the government may elect to abandon its intrusion or discontinue
regulations.... Similarly, a governmental body may acquiesce in a judicial
dclaration that one of its ordinances has effected an unconstitutional taking
of property; the landowner has no right under the Just Compensation Clause to
insist that a 'temporary' taking be deemed a permanent taking...." Id.
at 317.
[FN94]. Armstrong
v. United States, 364 U.S. 40, 49 (1960).
[FN95]. For a good summary of the arguments concerning inverse
condemnation, see Cooperstein, supra note 74, at 49.
[FN96]. For a thorough
review of the history of the Court's treatment of the relationship between the
two doctrines, see Michael L. Davis and Robert L. Glicksman, To the Promised
Land: A Century of Wandering and a Final Homeland for the Due Process and
Taking Clauses, 68 Or. L. Rev. 393 (1989).
For the view that the taking doctrine is
really a part of substantive due process, see Strong, supra note 15.
[FN97]. Strong, supra note 15.
[FN98]. Chicago,
B. & Q. R.R. v. Chicago, 166 U.S. 226 (1897).
[FN99]. See, for example, Chicago,
B.& Q. Ry. Co. v. Illinois ex rel. Drainage Comm'r, 200 U.S. 561 (1906), where the Court said, "The constitutional
requirement of due process of law which embraces compensation for private
property taken for public use, applies in every case of the exertion of
governmental power." Id.
at 593.
See also Stone
v. Farmer's Loan and Trust, 116 U.S. 307 (1886).
[FN101]. Id. at 331.
[FN104]. E.g., Goldblatt
v. Town of Hempstead, 369 U.S. 590 (1962).
[FN107]. "The Fifth Amendment's guarantee that private
property shall not be taken for a public use without just compensation was
designed to bar Government from forcing some people alone to bear public
burdens which, in all fairness and justice, should be borne by the public as a
whole." Penn
Central Transportation Co. v. City of New York, 438 U.S. 104, 123 (1978).
[FN109]. Id.
[FN110]. Id.
[FN111]. Id.
[FN112]. Id.
[FN113]. Id. at 125.
[FN114]. Id.
[FN115]. Miller
v. Schoene, 276 U.S. 272 (1928).
[FN116]. Hadacheck
v. Sebastian, 239 U.S. 394 (1915).
[FN117]. Goldblatt
v. Town of Hempstead, 369 U.S. 590 (1962).
[FN120]. 112
S. Ct. 2886 (1992).
[FN121]. The early
noxious use cases did not distinguish between harm prevention and benefit
extraction. They looked only to the
former as a factor for decision. Miller
v. Schoene, 276 U.S. 272 (1928); Hadacheck
v. Sebastian, 239 U.S. 394 (1915); Mugler
v. Kansas, 123 U.S. 623 (1887); Fertilizing
Co. v. Hyde Park, 97 U.S. 659 (1878).
[FN122]. Freund, supra note 59, at 546 - 47.
[FN123]. "The transition from our early focus on control of
'noxious' uses to our contemporary understanding of the broad realm within
which government may regulate without compensation was an easy one, since the
distinction between 'harm-preventing' and 'benefit conferring' regulation is
often in the eye of the beholder. It is
quite possible, for example, to describe in either fashion the ecological,
economic, and aesthetic concerns that inspired the South Carolina legislature
in the present case. One could say that
imposing the servitude on Lucas's land is necesssary in order to prevent his
use of it from 'harming' South Caraolina's ecological resources; or, instead in
order to achieve the 'benefits' of an ecological preserve...." Lucas
v. South Carolina Coastal Council, 112 S. Ct. 2886 (1992).
See also Lawrence Berger, A Policy Analysis
of the Taking Problem, 49 N.Y.U. L. Rev.
165, 174 n.34 (1974).
[FN129]. Id.
[FN130]. Id. at 838.
[FN131]. See, e.g., Holmdel
Builders Ass'n v. Township of Holmdel, 583 A.2d 277 (N.J. 1990); Jenad,
Inc. v. Village of Scarsdale, 218 N.E.2d 673 (N.Y. 1966); Jordan
v. Village of Menominee Falls, 137 N.W.2d 442 (Wis. 1965).
[FN132]. Nollan
v. California Coastal Comm'n, 483 U.S. 825, 838 (1987).
[FN133]. Id.
[FN134]. 114
S. Ct. 2309 (1994).
[FN135]. Id.
at 2319.
In the case the Court held that the burden of demonstrating the required
nexus was upon the regulator. The Court
said, "No precise mathematical calculation is required, but the city must
make some sort of individualized determination that the required dedication is
related both in nature and extent to the impact of the proposed
development." Id. at 2319 - 20.
[FN136]. Nollan
v. California Coastal Comm'n, 483 U.S. 825, 834 (1987).
[FN138]. Id.
[FN139]. 112
S. Ct. 2886 (1992).
[FN140]. The balancing
process was described in the Penn Central case.
See supra notes 105 -14 and accompanying text.
[FN141]. Lucas
v. South Carolina Coastal Council, 112 S. Ct. 2886, 2893 (1992).
[FN145]. Id. at 2900 - 01.
[FN146]. Id. at 2901- 02.
[FN147]. Lucas
v. South Carolina Coastal Council, 424 S.E.2d 484 (S.C. 1992).
[FN148]. Lucas
v. South Carolina Coastal Council, 112 S. Ct. 2886, 2899 (1992).
[FN149]. Hadacheck
v. Sebastian, 239 U.S. 394 (1915).
[FN150]. Fertilizing
Co. v. Hyde Park, 97 U.S. 659 (1878).
[FN151]. Mugler
v. Kansas, 123 U.S. 623 (1887).
[FN152]. Miller
v. Schoene, 276 U.S. 272 (1928).
[FN153]. If we differentiate eminent domain and police power as
distinct powers of government, the difference lies neither in the form nor in
the purpose of taking, but in the relation which the property affected bears to
the danger or evil which is to provided against.
Under the police power, rights of property
are impaired not because they become useful or necessary to the public, or
because some public advantage can be gained by disregarding them but because
their free exercise is believed to be detrimental to public interests; it may
be said that the state take property by eminent domain because it is useful to
the public, and under the police power because it is harmful, or as Justice
Bradley put it, because "the property itself is the cause of the public
detriment." Freund, supra note 59, at 546 - 47.
[FN154]. "There
is perhaps no more impenetrable jungle in the entire law than that which
surrounds the word 'nuisance.' It has
meant all things to all people, and has been applied indiscriminately to
everything from an alarming advertisement to a cockroach baked in a pie. There is general agreement that it is
incapable of any exact or comprehensive definition." W. Page Keeton et al., Prosser and Keeton on
the Law of Torts 616 (5th ed. 1984).
[FN155]. Mugler
v. Kansas, 123 U.S. 623 (1887).
[FN156]. Hadacheck
v. Sebastian, 239 U.S. 394 (1915).
[FN157]. Fertilizing
Co. v. Hyde Park, 97 U.S. 659 (1878).
[FN158]. Miller
v. Schoene, 276 U.S. 272 (1928).
[FN159]. See Keeton, et al., supra note 154, at 616.
[FN160]. Lucas
v. South Carolina Coastal Council, 112 S. Ct. 2886, 2913 (1992)(Blackmun,
J., dissenting).
[FN161]. Penn
Central Transportation Co. v. City of New York, 438 U.S. 104, 124 (1978).
[FN162]. Actually the reduction in value was from around $800,000
to around $60,000, a 92.5% decrease.
[FN163]. See Restatement
(Second) of Torts, s 840D (1979) for a discussion
of coming to a nuisance.
[FN164]. Lucas
v. South Carolina Coastal Council, 112 S. Ct. 2886, 2900 (1992).
[FN165]. Id.
at 2899 (emphasis added).
[FN166]. With respect to a first in time rule see Berger, supra
note 123, at 165.
[FN167]. 494
P.2d 700 (Ariz. 1972).
[FN168]. See, e.g., Penn
Central Transportation Co. v. City of New York, 438 U.S. 104, 124 (1978).
[FN169]. Armstrong
v. United States, 364 U.S. 40, 49 (1960).
[FN171]. See Restatement
(Second) of Torts s 821B (1979) for a discussion
of public nuisance.
[FN172]. Pennsylvania
Coal Co. v. Mahon, 260 U.S. 393, 414 (1922).
[FN173]. I have discussed this reasonable expectations theory in
great detail elsewhere. See Berger,
supra note 123, at 165.
[FN174]. Mr. Justice Stevens made this point but from the opposing
standpoint in his dissenting opinion in Lucas.
His point was that not even total decreases in value should be
automatically compensated for when he said:
In addition to lacking support in past
decisions, the Court's new rule is wholly arbitrary. A landowner whose property is diminished in
value 95% recovers nothing, while an owner whose property is diminished 100%
recovers the land's full value. The case
at hand illustrates this arbitrariness well.
The Beachfront Management Act not only prohibited the building of new dwellings in certain areas, it also prohibited
the rebuilding of houses that were "destroyed beyond repair by natural
causes or by fire." 1988 S.C. Acts
634, s 3; see also Esposito
v. South Carolina Coastal Council, 939 F.2d 165, 167 (CA4 1991).[ ] Thus, if the
homes adjacent to Lucas' lot were destroyed by a hurricane one day after the
Act took effect, the owners would not be able to rebuild, nor would they be
assured recovery. Under the Court's
categorical approach, Lucas (who has lost the opportunity to build) recovers,
while his neighbors (who have lost both the opportunity to build and their
homes) do not recover. The arbitrariness
of such a rule is palpable. Lucas
v. South Carolina Coastal Council, 112 S. Ct. 2886, 2919 (1992)(Stevens, J., dissenting).
[FN175]. See Berger, supra note 123, at 165.
[FN176]. Richard A. Posner, Economic Analysis of Law 11-16 (4th
ed. 1992).
[FN179]. Lucas
v. South Carolina Coastal Council, 112 S. Ct. 2886 (1992).
[FN182]. First
English Evangelical Lutheran Church v. County of Los Angeles, 482 U.S. 304
(1987).
[FN183]. 42
U.S.C. s 1983.
See supra notes 44 -51 and accompanying text.
[FN184]. See supra notes 44 -51 and accompanying text.
[FN185]. Armstrong
v. United States, 364 U.S. 40, 49 (1960).
[FN186]. First
English Evangelical Lutheran Church v. County of Los Angeles, 482 U.S. 304
(1987).
END OF DOCUMENT