Takings Law in Plain English - The International … Law in Plain English ... weapon against efforts to conserve what is special about ... there has never been a shortage of misinformation

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Takings Law in Plain Englishby Christopher J. Duerksen and Richard J. Roddewig

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An Overview of Takings Law

“... nor shall private propertybe taken for public use, with-out just compensation.”

With these few words, theframers of the United StatesConstitution enshrined in theFifth Amendment one of themost fundamental of individualrights to own property free of thethreat of seizure by government,unless the government pays forit. This basic property right was

derived from 17th- and 18th-century English legal traditionthat prohibited the king fromtaking a subject’s property exceptby a duly enacted law of the landand with full indemnification.

Historical records show thatwhat the drafters of the Bill ofRights had in mind when theyadopted the “just compensation”or “takings” clause was to permitthe government to take privateproperty for public use—forexample, land needed for apublic highway—but only uponpayment of compensation. Today,we call this government action

exercising the right of eminentdomain or condemnation. Thusonce again, the framers demon-strated their genius in balancingthe rights of the individual withthe clear need of the people—government—to undertake pub-lic projects for everyone’s benefit.It is hard to imagine how thenation could have grown orsociety would have functionedwithout the ability to judiciouslyexercise the power of eminentdomain to build roads, dams,parks, and other projects. Indeed,hardly any reasonable personwould quarrel with that notion.

Cover: Americans who are

committed to building

better communities must

understand the role of law

and the takings clause of

the Fifth Amendment if they

are to be effective builders.

— Photo: National Trust for

Historic Preservation.

Takings Law in Plain English

by Christopher J. Duerksen and Richard J. Roddewig

Foreword

At the very beginning of our nation, Americans decided that the enjoyment of our property was among the most important rightspossessed by citizens.

Just as the Declaration of Independence announced that life, liberty, and the pursuit of happiness were the birthright of us all, the Bill ofRights guaranteed us freedom of speech, freedom of religion, and, yes, freedom from interference with our homes and neighborhoods. TheFifth Amendment in the Bill of Rights promises that government may not take our land for public purposes without paying for it.

Over the generations, Americans have joined forces time and time again to build clean, safe, and prosperous communities and to pro-tect our enjoyment of them. The fishermen who seek to save a river full of great bass, the neighborhood association that works to revital-ize the area’s historic homes, and the activists who strive to give us cleaner air—all have the need and the right to use the legal tools whichcan keep our nation a decent and healthy place.

In modern times, these common efforts at building better communities are often under assault from those who seek only individual advan-tage. Most Americans see the Fifth Amendment as a shield protecting us from government overreaching. Others seek to use it as a sword–aweapon against efforts to conserve what is special about this land.

Americans who are committed to building better communities must understand the role of law and the takings clause of the Fifth Amendmentif they are to be effective builders. Unfortunately, the legal thicket of explanations by the U.S. Supreme Court and other courts is difficultto access and harder to master. Moreover, there has never been a shortage of misinformation about the meaning of this critical piece ofour legal history.

Christopher Duerksen and Richard Roddewig, two of the most able people in this field, provide in this book the keys to understandingthe legal history and its import for modern Americans. People who take the time to absorb this straightforward explanation of the law oftakings will assuredly be better prepared to protect what is special in our nation.

Randall T. ShepardChief Justice, Indiana Supreme CourtTrustee Emeritus, National Trust forHistoric Preservation

How then has the just com-pensation clause of the FifthAmendment become the centerof a controversy that lawyers liketo call the “takings” issue—whichhas little to do with the actualseizure of property or exercise ofthe power of eminent domain asour forefathers understood it?

Historically, a corollary of theright to hold property has been aduty to refrain from using it in amanner that would cause harm orinjury to neighboring landownersor the general public. Becausethe use of land invariably affectsneighbors and the communityhealth and welfare, absolute usehas never been considered a pro-tected property right.

This principle is exemplified innumerous decisions of the U.S.Supreme Court and the highcourts of the individual states. Tocite just one example, in 1908the Maine legislature asked theMaine Supreme Court whetherthe state could regulate the cuttingor destruction of trees on privateland for a variety of environmen-tal purposes, including erosioncontrol, without paying compen-sation. Focusing on the goal ofthe legislation to prevent use ofprivate property that would beinjurious to citizens generally, thecourt affirmed the authority ofthe state to adopt the law, quot-ing the following language fromearlier decisions of the U.S.Supreme Court:

We think it a settled principle,growing out of the nature ofwell-ordered civil society, thatevery holder of property, how-ever absolute and unqualifiedmay be his title, holds it underthe implied liability that useof it may be so regulated thatit shall not be injurious... tothe rights of the community.In re Opinion of the Justices(Maine 1908).

These types of enactmentsraised the question to whatextent government can regulatethe unbridled use of private prop-erty to protect the public healthand the investment of neighborsand the community without hav-ing to pay a landowner to refrainfrom certain undesirable activities.By judicial decision in the early1920s, the U.S. Supreme Courtexpanded the scope of the FifthAmendment property clause fromaddressing the narrow circumstanceof the actual seizure or physicaltaking of land into a more far-reaching provision that confinesthe permissible reach of land-useand environmental regulations.

Courts in recent years havestruggled to find an equitablebalance between the rights of thepublic to a healthy environmentand livable communities and therights of landowners. Because ofthe enormous stakes involved,this constitutional quarrel is farmore than an intellectual exercise.The health of our environmentand quality of our communitiesare at stake.

The Courts Reshape theConstitution Interestingly, early experiencefrom England and ColonialAmerica does not suggest that bysimply regulating, the govern-ment could “take” someone’sproperty. Indeed, there are manyexamples of strict governmentregulation of land during thisperiod where there is no hintthat anyone expected compensa-tion to be paid. These casesreflect the American traditionof landowner responsibility touse property prudently. For exam-ple, after the great fire in Bostonin the late 17th century, a seriesof laws were enacted directingthe use of brick or stone in build-ings. No dwelling house could be

constructed otherwise upon threatof serious fine. A later actdeclared that any building thatdid not meet these standards wasa nuisance subject to demolition.

Where landowners soughtcompensation, courts typicallywere unsympathetic. For exam-ple, in Hadacheck v. Sebastian(1915), the City of Los Angelesbanned brick making—an indus-trial operation that spewed“fumes, gases, smoke, soot, steamand dust” into the air—from cer-tain areas of the city to protectsurrounding residential neigh-borhoods, even though theplaintiff ’s brickyard was builtbefore people moved into thearea. The factory owner sued,arguing a taking had resultedbecause the value of his propertywas reduced from $800,000 to$60,000. The U.S. SupremeCourt rejected this argument,balancing the needs of the publicagainst the harmful or inappro-priate use of land. The city waspromoting a legitimate publicneed, and the property ownercould still use the parcel, even iffor a different purpose.

The general rule was that “actsdone in the proper exercise ofgovernmental powers, and notdirectly encroaching upon privateproperty, though their conse-quences may impair its use, areuniversally held not to be a takingwithin the meaning of the con-stitutional provision.”

The clear line between actualphysical takings and regulatorytakings began to blur in the1920s. In a case calledPennsylvania Coal Company v.Mahon (1922), the U.S. SupremeCourt accepted the notion thatregulations can cause a takingeven if there is no actual physicalinvasion of the property in ques-tion. The State of Pennsylvaniahad passed a law forbidding coal

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mining that would cause build-ings or streets on the surface tosubside, or sink, into the mineshafts—even though the coalmining companies retained thatright when they sold the surfacerights to individual landowners.

While the Supreme Courtfound that the law served a validpublic purpose, the only consti-tutionally acceptable method toaccomplish that goal was for thegovernment to buy the propertyinterest held by the coal company.Since the state law did notauthorize compensation, only reg-ulatory control, the Court struckdown the legislation, and JusticeOliver Wendall Holmes said:

The general rule is that whileproperty may be regulated to acertain extent, if regulationgoes too far it will be recog-nized as a taking.

Just how far was too far? Thecases that provided the setting toaddress that key questionrevolved around the then-novelidea of zoning.

At the behest of the businesscommunity, which was concernedabout the disorderly develop-ment of the nation’s cities andthe need to protect economicinvestments, the U.S. Departmentof Commerce promulgated amodel zoning act which wasadopted by many communities.In Village of Euclid v. AmblerRealty Co., (1926), the SupremeCourt gave its approval to anearly zoning ordinance in aCleveland suburb—despite anargument by the plaintifflandowner that the governmentshould have to pay for prohibit-ing industrial development onhis land, which reduced its valueby 75 percent (from $10,000 to$2,500 per acre).

Shortly thereafter, however, ina case titled Nectow v. Cambridge(1928), the Supreme Courtmade it clear that under certaincircumstances zoning ordinancesmay in fact go “too far.” In thatcase the Court struck down azoning ordinance that allowedonly residential use for propertythat was under contract to besold for industrial use. This timethe Court said that, under theparticular facts of the case, “nopractical use [could] be made ofthe land in question for residen-tial purposes,” since “there wouldnot be adequate return on theamount of any investment forthe development of the property.”

The Court went on the sameyear to uphold a Virginia lawrequiring the destruction ofdisease-carrying red cedar treesbecause of potential damage tonearby apple orchards—all withoutcompensation. Having estab-lished the principle of consider-ing both the economic impact ofa regulation on a landowner andthe need to protect or benefit thepublic, the Supreme Court thenretired from the “takings” fieldfor the next 50 years or so, leav-ing it to the lower federal andstate courts to work out the ruleson a case-by-case basis.

The Takings Inquiry In literally thousands of casesover the ensuing decades, stateand federal courts were calledupon to determine whether a par-ticular environmental or zoningregulation was overly burden-some and violated the takingsclause. Judges considering thesecases had considerable difficultyin establishing hard and fastrules—largely because each situ-ation involving the use of land isunique, both as to the economicimpact of regulation, and theimpact of unregulated use on

neighboring property owners andthe public generally. Nonetheless,these various court cases haveoutlined several broad factors tobe considered on a case-by-casebasis in determining if a takinghas occurred:

1. What is the economicimpact of the regulation onthe property owner? The economic impact of a par-ticular regulation is obviously anextremely important factor indetermining whether the regula-tion has resulted in a taking. Attimes, courts have focused on thedecrease or diminution in prop-erty value before and after theregulation is applied. At othertimes, courts have focused onwhether the owner is left withany “reasonable economic use”of the property. (As discussedbelow, this latter formulation hasbeen used by the U.S. SupremeCourt in its most recent deci-sions in the takings area.)Regardless of approach, however,the decisions of the courts makeit clear that economic impactmust be extreme in order to resultin a taking.

Those courts that have focusedon the reduction in value causedby a governmental regulationhave typically required an almosttotal elimination of value beforethey find a regulatory taking. Asthe Supreme Court has observed,“the cases are legion that sus-tained zoning against serious eco-nomic damage.” More recently,courts have shown an increasinginclination to reject challengesdespite large reductions in value.For example, in William C. Haas& Co. v. City and County of SanFrancisco (1979), a Californiafederal court approved a localregulation that reduced theallowable height for a future resi-dential high-rise building on the


plaintiff’s property from 300 to40 feet, despite a reduction in thespeculative value of the propertyfrom $2 million to $100,000. Inso ruling the court cited the sub-stantial public benefit of reducingcongestion in the neighborhood,preserving light and air availableto neighbors, and serving estheticvalues of the city as a whole.

It is clear that there are nohard and fast numerical formulasto determine when a regulatorytaking has occurred—it is aquestion that must be decidedon a case-by-case basis dependingon the facts of each situation.Indeed, several studies thatattempted to identify a mathe-matical formula for the amountof loss in land value that courtswill accept have proved unsuc-cessful and inconclusive.

Most courts in recent yearshave assessed the economicimpact of a land-use regulationby determining whether the

owner is left with a reasonableeconomic use of the property.Simply denying the so-called“highest and best use” of a prop-erty does not give rise to a taking.For example, if a historic build-ing can be rented out profitably,then denying the landowner theability to demolish it to makeway for a high-rise office build-ing, thereby reducing the parcel’sspeculative value, does not giverise to a taking.

What constitutes a reasonableeconomic use is determined on acase-by-case basis. Many courtshave upheld strict floodplain andwetlands regulations because anowner is still able to pursue farm-ing and recreational uses thatcould produce a reasonable eco-nomic return. A few courts havestruck down regulations in simi-lar circumstances. The outcomewill depend on specific facts:When were the regulationsadopted? Did the owner know of

the regulations when the prop-erty was purchased? Is the lossclaimed by the owner the specu-lative value of future develop-ment? Could the owner make areasonable return under the prop-erty’s current use, or some otherallowed use?

2. Does the regulation pro-mote a valid public purpose? In reviewing a health and safety,land-use, environmental, or sim-ilar regulation under the takingsclause, courts pay heed not onlyto the economic impact on theowner but also to the public pur-poses being served by the regula-tion. In fact, a few courts havecombined these two inquiriesinto a single examination, oftenreferred to as “balancing of pub-lic benefit against private loss.”

Typically, courts grant greatdeference to elected officialsin determining what is a validpublic purpose for regulation.Attempts by property owners tohold governments to a moreonerous standard or burden ofproof have been almost uniformlyrejected in a regulatory context(as opposed to instances of actualseizures of property).

Recent cases from the SupremeCourt and the states show a con-tinuing expansion of what areconsidered permissible publicgoals for land-use and environ-mental regulations. These goalsinclude open-space and agricul-tural land protection, landmarkpreservation and design controls,and protection of environmen-tally sensitive areas such as wet-lands and floodplains, all ofwhich reflect society’s growingconcern about the impact of peo-ple’s activities on our air, water,and land—and a determinationto bequeath a healthy, livableenvironment to our children.Only in special instances, such as


As long as a historic building

can be rented out profitably,

denying the owner the ability

to demolish it for a high-rise

office building does not give

rise to a takings claim.



where land-use regulations areused to exclude from a commu-nity special groups like the men-tally handicapped or grouphomes, have the courts insistedon a higher standard of proof.

3. What is the character ofthe government action? Courts have been particularlysensitive to government regula-tions or actions that can be char-acterized as efforts to obtainpublic access to private property.For example, in Allingham v. Cityof Seattle (1988), the WashingtonSupreme Court struck down alocal greenbelt protection ordi-nance, heavily influenced by thefact that when the city ran out offunds for greenbelt acquisition, itresorted to a regulatory program

to accomplish the same ends.Similarly, in Kaiser Aetna v. UnitedStates (1979), the Supreme Courtheld the government’s attempt torequire the property owner toallow public access to a privatepond to be a taking.

In 1994, the nationally acceptedpractice of requiring developersand landowners to provide publicopen space and trails on theirproperty came under close scrutinyby the U.S. Supreme Court. Inmany cases, these conditions ondevelopment have characteristicscomparable to a physical “taking,”that is, by allowing public accessto private land. In Dolan v. City ofTigard (1994), the Court recog-nized that conditions on devel-opment are legal so long as there isa sufficient relationship between

the needs created by a projectand the amount of land or type ofaccess the developer is requiredto provide. The Court, however,invalidated a land dedicationrequirement for public access,because the dedication was dis-proportionate to the need foraccess generated by the project.

The 1978 Penn Central Decision In the late 1970s, the SupremeCourt agreed to consider anothermajor land-use takings case. Bythat time, the proper steps in thetakings balancing act, while notalways uniformly applied by thelower courts, were generallyunderstood by governments andproperty owners alike.


In 1978 the U.S. Supreme

Court upheld New York City's

denial of peromission to

construct a 55-story office

tower on Grand Central

Terminal in the landmark

decision, Penn Central

Transportation Co. v. City of

New York.



Moreover, of the thousands ofland-use cases heard by thecourts, only a relatively small per-centage raised the takings issue(perhaps reflecting the difficultyin succeeding on that theory).Many more of these cases weredecided on other grounds, such asfailure to follow required proce-dures for hearings.

In 1978, in Penn CentralTransportation Company v. NewYork City, the Supreme Courtreaffirmed the accepted takingsanalysis that an owner must bedenied all reasonable use of aproperty for a taking to occur.The Court also set forth basicprinciples to guide communities,property owners, and reviewingcourts in evaluating the constitu-tionality of regulatory acts in spe-cific situations. What are theseprinciples? Briefly, that—

• Communities clearly have theauthority to adopt laws andregulations that are designedto protect and enhance thequality of life of their citizens.

• The regulation of privateproperty will not constitute ataking, as long as: (1) the reg-ulation advances a legitimategovernmental interest; and (2)the property owner retainssome viable use of the property(particularly as measured bythe owner’s reasonable invest-ment-backed expectations).

• Property owners may notestablish a taking “simply byshowing that they have beendenied the ability to exploit aproperty interest that theyheretofore had believed wasavailable for development.”

• In deciding whether a particu-lar governmental action hascaused a taking, a reviewingcourt must examine the effectof the regulation on the entireproperty, and not focus on anyone specific segment or interest.

The Penn Central decisionplaced the regulation of historicstructures on firm legal ground,by upholding local historicpreservation ordinances as avalid government tool. Evenmore importantly, the decisionestablished the framework forevaluating takings challenges inall types of land-use actions. Inaddition to historic preservation,the Penn Central principles havebeen applied to a variety of publicinterest laws, including envi-ronmental controls, wetlandsand natural habitat protections,health and safety regulations,and a variety of land-use andzoning regulations.

The Takings Issue in theFollowing Decades Historians are already character-izing the 1980s as the decadewhen profit took precedenceover people. The guiding philos-ophy seemed to be “live fortoday; tomorrow will take care ofitself.” Fueled by easy moneyfrom savings and loan institu-tions and generous federal taxbenefits, real estate developmentboomed in many places. Publiclands were increasingly drilled,logged, and mined. That boomran head on into growing publicconcern over the need to protectthe public health, the environ-ment, and the character of ourcommunities. Industry and realestate developers chafed underlaws that had been put in placein many communities and statesduring the 1970s designed to guardthe public against health risksfrom air and water pollution andto preserve wildlife habitats andother sensitive natural areas andcultural resources. Not surpris-ingly, real estate developers andresource development companiesfought in the courts to weakenresource protection laws andland-use planning.

The major thrust of these chal-lenges revolved around the tak-ings issue. Frustrated by theirgeneral lack of success in winningtakings claims, representatives oflanded interests—real estatedevelopers, mining companies,forest and timber firms, and kin-dred businesses—attempted topersuade a newly realignedSupreme Court to change thepainstakingly developed balanc-ing rules and move the takingsline in their favor. A close exam-ination of the Supreme Court’stakings decisions over the past 25years or so, however, shows thatthe general principles of takings


The Supreme Court has identified three factors for deter-mining whether governmental regulation has resulted in an

unconstitutional taking. This case-by-case inquiry examines:1. the character of the governmental action;

2. the economic impact of the regulatory action on theclaimant; and

3. the effect of the contested action on the claimant’s distinctinvestment-backed expectations.

The first prong focuses on whether the action merelyrestricts development or constitutes a physical invasion ofproperty. The second prong considers whether the claimant isleft with a reasonable use of or return on the property. Thethird prong factors in the claimant’s actual investment in theproperty, his or her expectations at the time of the investment,and the reasonableness of those expectations in view of theeconomic circumstances and “regulatory regime in place” atthe time of the investment. Governments cannot be requiredto compensate property owners for speculative investmentsgone sour.

The Penn Central Test

law, as reflected in the PennCentral decision, remain essen-tially unchanged. During thatperiod, however, the Courtdefined some important rules onthe fringes of the takings issue—most notably related to remedies.

The first major takings case ofthe 1980s in which the SupremeCourt actually reached a decisionon the merits of a takings claimwas Keystone Bituminous CoalAssociation v. DeBenedictis (1987).In that case, the Court rejected atakings claim brought by a con-sortium of coal companies in afact situation remarkably similarto the Pennsylvania Coal casedecided in the 1920s. The state ofPennsylvania had again enacted amining safety act to protect thepublic against the environmentaland economic damage from sur-face subsidence that occurs whencompanies removed coal fromsubsurface seams. The law inquestion required that coal oper-ators leave in place 50 percent ofcoal beneath public buildings,homes, and cemeteries to providesurface support. Several coalcompanies sued, claiming therestrictions amounted to a tak-ing. The Court rejected thatargument, pointing out that themining regulations did not denythe mine operators all “economi-cally viable use” of their land.

Importantly, the Court alsorejected the mining companies’argument that it should focusonly on the restricted portion oftheir property—the coal theyhad to leave in the ground andtheir “support estates” (a distinctproperty interest recognized underPennsylvania law)—and findthat all viable economic use ofthose restricted portions hadbeen taken by the act. Instead,the majority reaffirmed the rulelaid down in Penn Central:

“Takings jurisprudence doesnot divide a single parcel intodiscrete segments and attemptto determine whether rights ina particular segment have beenentirely abrogated. In decidingwhether a particular govern-mental action has effected ataking, this Court focuses bothon the character of the actionand on the nature of the inter-ference with the rights in theparcel as a whole.” (Emphasisadded by the Court.)

Not to be deterred, industryand real estate developmentadvocates took a different tack—they argued that if a takingoccurred, simply invalidating theoffending regulation was notenough. They maintained thatthe regulating authority had topay money damages for the fullvalue of the property—in effect,“you overregulated my property,so you bought it.” Part of thestrategy was to discourage govern-ments from regulatory activities

because of the potential forlarge compensation awards fromtakings claims.

Again, the Supreme Courtrejected this extreme position,although it did crack the dooropen a bit by holding that if ataking can be proved, damagesmight be due for a temporary tak-ing during the time when theoffending regulations were inplace. In First English EvangelicalLutheran Church v. County of LosAngeles (1987), the plaintiffchurch argued that interimfloodplain development restric-tions imposed by Los AngelesCounty amounted to a taking forwhich payment was due. (Thefloodplain regulations in ques-tion prohibited reconstruction ofbuildings in a church-ownedcampground for handicappedchildren that had been earlierswept by killer floods.) TheCalifornia Supreme Courtdenied the church’s takingsclaim, relying on its earlier deci-sions that only invalidation, not


During the real estate

development boom at the

end of the 20th century,

landowners repeatedly

challenged laws designed to

limit development in

environmentally-sensitive

areas as unlawful takings.



money damages, is availablewhen a regulation goes too far.On appeal, the U.S. SupremeCourt did not determinewhether a taking had occurred inthe case, but agreed with theprinciple that the remedy for ataking includes compensation forthe period the taking is in effect:

“We merely hold that, wheregovernment’s activities havealready worked a taking of alluse of property, no subsequentaction by the government canrelieve it of the duty to providecompensation for the periodduring which the taking waseffective.” (Emphasis added.)

It is important to be clear thatthe First English decision onlyaddressed the question of avail-able remedies, and not whetherthe regulation at issue actually

resulted in a taking—a point thatis often misunderstood about thecase. Indeed, on remand to thelower courts to decide whether ataking had actually occurred, thechurch lost and never recoveredany money damages, because thepublic necessity of keepinghandicapped children out ofharm’s way was found to out-weigh the alleged economicimpact on the landowner.

It is particularly important toemphasize that the Court in FirstEnglish rejected the notion thatthe sole remedy for a taking is pay-ment of the full value of the prop-erty affected. Where a taking istemporary—for example wherethe regulation causing the taking islater withdrawn or invalidated—only temporary damages are due.

Finally, the Court stated thatits focus on “temporary takings”was not intended to refer to

“normal delays in obtainingbuilding permits, changes in zoningordinances, variances and thelike.” The Supreme Court clarifiedthis position in a later caseinvolving a development mora-torium, Tahoe-Sierra PreservationCouncil, Inc. v. Tahoe RegionalPlanning Agency (2002), explain-ing that First English “surely did notapprove, and implicitly rejected,”the view that a regulation thattemporarily denies an owner alluse of his or her property is auto-matically a taking.

Since First English, theSupreme Court has handed downa steady procession of takingsdecisions, some of which havebeen claimed as significant vic-tories for real estate developmentinterests. A close analysis reveals,however, that the decisions con-tinue to reflect a balancedapproach by the Court on thetakings issue, favoring PennCentral’s ad hoc, three-factorframework for addressing takingsclaims, (rather than per se rules)namely, an examination of thecharacter of the government’saction, the owner’s distinctinvestment-backed expectationsregarding the property, and theeconomic impact of the govern-ment’s action on the owner.

In the first of these post-FirstEnglish cases, Nollan v. CaliforniaCoastal Commission (1987), theCourt addressed the growingpractice by local governments ofrequiring land or other contribu-tions from developers to offsetthe cost of public facilities createdby their projects. In this case, thestate demanded that the plain-tiffs allow public access acrosstheir private beach in return for abuilding permit for a three-bed-room vacation home.

In considering the matter, theSupreme Court made it clearthat such development conditions


Regulations aimed at

protecting the environment

and the public from serious

harm, such as regulating

shorefront development after

a destructive hurricane,

serve a valid public purpose.

— Photo: U.S.D.A Soil

Conservation Service.

(or “exactions”) will be upheld—even if they amount to a perma-nent physical occupation ofland—so long as they furthervalid governmental interests,and are adopted to respond tothe burdens or needs created bythe development. The Court,however, struck down the specificexaction in the case as not beingreasonably related to the burdenimposed by the development,finding it “impossible to under-stand” how public access alongthe beach could help to remedythe burden imposed by the pro-posed development upon accessto the beach.

In Nollan, the Court againfocused on the relationshipbetween public needs and privateeconomic impact. Thus, if adevelopment creates a need for atwo-lane road to connect to anearby highway, the local gov-ernment can fairly require thatthe developer pay for such animprovement. However, thelocal government cannot insistthat the developer build at hissole expense a four-lane parkwaythat would serve other develop-ments as well.

A second highly publicizeddecision of the Court involvedthe regulation of development ina coastal hazard zone, in a caseentitled Lucas v. South CarolinaCoastal Council (1992). This caseinvolved the adoption of strictshoreline development regula-tions by the state in the wake ofdevastating hurricanes. The regu-lations made building on theplaintiff’s beachfront lots very dif-ficult if not impossible, despitethe fact that surrounding propertyowners had built homes on theirland before the regulations wentinto effect. (When Lucas acquiredthe land, residential developmentwas allowed.) In addition, therewere no provisions in the law

when it was first adopted to pro-vide relief if the balancing testshowed too significant of anadverse economic impact on anyparticular property owner.

In Lucas, there was no disputethat the regulations served avalid public purpose or that theeconomic impact was severe—ifnot a complete “wipe-out” of thedeveloper’s financial interest inthe property (as was concludedby the lower court in the case).However, the state argued thatwhen a regulation is aimed atprotecting against extraordinarilyserious harm to the environmentor the public (in this case, by pre-venting construction of buildingsthat might be destroyed in astorm along with their owners, orthat might wreak havoc by beingtossed by waves into otherhomes), then it can never give riseto a taking. Legal scholars referto this theory as the “nuisanceexception” to the takings clause.

The Supreme Court refused tocompletely dismantle the nuisanceexception, recognizing that usesof property that amount to a nui-sance may be forbidden despite acomplete deprivation of eco-nomic use. The Court, however,limited the rule somewhat, bysaying that in the “relatively rare”instance where a regulation goesso far as to deny all economic useof property, it will generally beconsidered a taking unless theprohibited use is “barred by exist-ing rules or understandings”derived from background princi-ples of property law or nuisance.This reformulation of the “nuisanceexception,” however, is not likelyto have much effect in practicalterms, particularly in light of theCourt’s express recognition that atotal economic wipe-out is an“extraordinary circumstance.”

Indeed, just one year later, inConcrete Pipe and Products ofCalifornia, Inc. v. ConstructionLaborers Pension Trust (1993), a


In Washington, D.C., a

federal appeals court

rejected an attempt to obtain

compensation for the denial

of permission to develop the

newly subdivided lawn of a

historic apartment building

under a “total taking” theory.



case involving application of theMultiemployer Pension PlanAmendments of 1980, theSupreme Court unanimouslyrejected an attempt to “shoehorn”a takings claim into a “total”taking of economic use underLucas, explaining that propertycannot be separated into parcelsfor purposes of artificially charac-terizing regulation affecting theuse of some portion of the prop-erty as the unlawful taking of anentire parcel. Rather, theSupreme Court applied PennCentral’s three-part test for analyz-ing takings claims and ultimatelyconcluded that an unconstitu-tional taking had not resulted.

Indeed, in Tahoe-SierraPreservation Council, Inc. v. TahoeRegional Planning Agency (2002),the Supreme Court characterizedLucas as a “narrow exception torules governing regulatory takingsfor the ‘extraordinary circum-stance’ of a permanent depriva-tion of all beneficial use.” In

both Tahoe-Sierra PreservationCouncil, Inc., and Palazzolo v.Rhode Island, (decided in 2001and discussed later in this book-let), the Supreme Court rejectedinvitations to expand Lucasbeyond the very narrow circum-stances of that case.

Other courts have also resistedattempts by property owners toobtain compensation for “totaltakings.” The U.S. Court ofAppeals for the D.C. Circuit inDistrict Intown Properties Ltd.Partnership. v. District of Columbia(1999), for example, rejected anattempt to obtain compensationfor the denial of permission todevelop the newly subdividedlawn of a historic apartmentbuilding under Lucas. Adheringto Penn Central’s “parcel as awhole” rule, the court refused toseparate the undeveloped portionof the property from the devel-oped portion and thus concludedthat a “total wipe-out” had notoccurred. Ultimately, the court

also rejected the owner’s takingsclaim under Penn Central, sincethe apartment building providedthe owner with a reasonable useof his property. In the end, mostcommentators expect that theLucas decision will affect only atiny number of land-use and envi-ronmental regulatory actions.

In Dolan v. City of Tigard(1994), the Supreme Court againaddressed the practice of devel-opment conditions or exactions,this time focusing on the commonpractice of requiring a public ded-ication of land in return fordevelopment approval. In thiscase, the plaintiff had applied fora permit to expand her hardwarebusiness. The city, as a condition ofpermit approval, required dedica-tion of a floodplain area to handleincreased storm water runoff.

The Supreme Court had noproblem with this exaction, find-ing it was reasonably related to aneed created by the development.The Court balked, however, atthe city’s additional requirementthat the property owner open thefloodplain corridor to publicaccess for a bicycle and pedes-trian trail. The Court ruled thatthe city had failed to show thateither the floodplain or trans-portation impact of theexpanded business was reason-ably related in “rough propor-tion” to the requirement ofpublic access.

The Dolan decision, while notaltering the basic takings analysisused by the Court, did place agreater burden on local govern-ments to justify land dedicationrequirements—imposed on an adhoc basis and not as part of acomprehensive legislative pro-gram—especially those requiringpublic access.

In the five years that followed,developers pressed hard for anexpansion of the Supreme Court’s


In the Tahoe case, a group of

property owners affected by

a series of moratoria on

development in the Lake

Tahoe Basin argued unsuc-

cessfully that compensation

was due for the 32-month

period in which the

moratoria were in effect.

— Photo courtesy of USGS.

ruling in Dolan, arguing that theincreased evidentiary burdenplaced on local governmentswhen imposing land dedicationconditions on property ownersshould also apply to standard per-mitting cases. This notion wassquarely addressed, and rejected,by the Court in City of Montereyv. Del Monte Dunes at MontereyLtd. (1999).

In Del Monte Dunes, aCalifornia jury had awarded adeveloper $1.45 million in dam-ages in a takings lawsuit broughtagainst the City of Montereyunder 42 U.S.C. § 1983 for itsrefusal to grant a permit todevelop a portion of a largeoceanfront site, despite thedeveloper’s submission of 19 dif-ferent site plans to address thevarious concerns raised by the cityregarding, among other things,the need to preserve and restorethe area’s natural habitat for theendangered Smith Blue Butterfly.The Supreme Court upheld theNinth Circuit’s affirmation of thejury verdict as well as the devel-oper’s right to a jury trial underthe Seventh Amendment. But indoing so, the Court relied on thespecific instructions given to thejury, rather than the higher stan-dard of review based on con-cepts of “rough proportionality.”Indeed, the Court firmly statedthat Dolan’s “rough proportional-ity” test does not extend to situ-ations involving the “denial ofdevelopment.”

Two years after Del MonteDunes, the Supreme Court inPalazzolo v. Rhode Island (2001),clarified that the “categorical tak-ings” concept of Lucas applies onlyin the extreme situation where a“total wipe-out” has occurred andreaffirmed Penn Central as the con-trolling case for analyzing takingsclaims. Property owner, AnthonyPalazzolo, had sued the state of

Rhode Island because of its refusalto authorize the development of18 acres of state-protected saltmarshes under its coastalresources act. The ownerdemanded compensation for the“total taking” of his property eventhough the state would allow theconstruction of at least one houseon his land. Uncon-vinced byPalazzolo’s argument that theremaining value of the land was sonominal that a Lucas-type takinghad occurred, the Court statedthat “a regulation permitting alandowner to build a substantialresidence on an 18-acre parceldoes not leave the property ‘eco-nomically idle.’”

The Palazzolo Court did, how-ever, provide some degree ofclarification regarding the issueof whether takings claims can bedefeated by the presence of lawsor restrictions on development inplace when the property wasacquired. The Court, in a highlysplintered ruling, concluded thata landowner’s right to assert thata regulation amounts to a takingsclaim does not disappear simplybecause the regulation predatedthe owner’s acquisition of title.This does not mean, however,that the presence of restrictionson development at the time ofacquisition has no bearing onwhether a taking has occurred.Under Penn Central, the timingof a regulation’s enactment is ger-mane to the owner’s “distinctinvestment-backed expectations.”Thus, a pre-existing legal restric-tion may be a relevant, but notdeterminative, factor in estab-lishing a takings claim.

The following year, theSupreme Court underscored itsruling in Palazzolo, once againstating that, outside of theexceptional “wipe-out” situation,takings claims must be analyzedunder Penn Central’s ad hoc,


The Supreme Court’s affirmation of the right of localgovernments to landmark and regulate changes to historic

structures has had a profound effect on the field of historicpreservation. Statistics alone give some indication of this: Beforethe Court’s decision, the number of local preservation ordi-nances numbered fewer than 500 across the country. Today,there are well over 2,000 communities in the United States thatregulate to protect historic properties. And this number does nottell the story completely, since the most recent trend is the incor-poration of landmark protections into comprehensive land-useregulations at the state and local levels.

The effect of Penn Central on the field of preservation is notjust the result of the essential holding of the case—that NewYork City’s refusal to permit construction of an office tower atopGrand Central Terminal did not amount to a taking withoutcompensation. It is a result of the principles that can be drawnfrom Justice Brennan’s opinion: • Historic preservation is a valid basis for exercising the

police power.

• A preservation ordinance may affect properties differently, butthis does mean that it is unconstitutional.

• The diminution of property values—even if substantial—isnot equivalent to a taking.

• The effect of a preservation regulation must be measured interms of the entire parcel, and not just one property interest.

• The availability of incentives that offset regulatory burdensresulting from landmarks laws can be an important factor inevaluating takings claims.

Penn Central’s enduring legacy—it remains as valid today as itdid in 1978—underscores the soundness of these principles andassures the continued viability of preservation protection pro-grams in communities today as well as the future.

Paul Edmondson, Vice President and General CounselNational Trust for Historic Preservation

Penn Central’s Preservation Legacy

multi-factored framework. Indoing so, the Court declined toexpand Lucas to create a cate-gorical rule requiring compensa-tion whenever the governmentimposes a moratorium on devel-opment. Instead, in Tahoe-SierraPreservation Council, Inc. v.Tahoe Regional Planning Agency(2002), the Court reiterated thegeneral rule that land-useactions, including moratoria, are“best analyzed” by looking at“the landowner’s investment-backed expectations, the actualimpact of the regulation on anyindividual, the importance ofpublic interest served by the regu-lation, [and] the reasons for impos-ing the temporary restriction.”

In the Tahoe case, a group ofproperty owners affected by aseries of moratoria on developmentin the Lake Tahoe Basin soughtcompensation for a per se regula-tory taking under Lucas v. SouthCarolina Coastal Council. Relyingon First English EvangelicalLutheran Church v. County of LosAngeles (1987), for the positionthat compensation is required fortemporary takings, the propertyowners had argued that compen-sation was due for the 32-monthperiod in which the moratoriawere in effect.

In deciding the case, theSupreme Court found that theowners’ attempt to carve out the32-month period of the morato-ria from the remainder of theirfee simple estates for purposes ofestablishing a Lucas-type taking“ignore[d] Penn Central’s admoni-tion that in regulatory takingscases we must focus on ‘the par-cel as a whole.’” Once again, theCourt declared that the impact ofa governmental action must beexamined by looking at theentire parcel of property interests,rather than discrete segments(including temporal segments),

for purposes of determiningwhether a taking has occurred.

In the end, the Tahoe Courtreaffirmed Penn Central as the“polestar” for evaluating takingsclaims. Despite all the mediaattention and misunderstandingsurrounding the First English,Nollan, Lucas, Dolan, Del MonteDunes, and Palazzolo decisions,the rules of the balancing actarticulated by the Court in 1978,when it decided the Penn Centralcase continue to apply today.

In addition to the decisionsdiscussed above, the Court alsodecided a series of less celebrated,but extremely important, land-usetakings cases, which are provingto have equal if not more rele-vance in day-to-day circum-stances. These cases, Agins v. Cityof Tiburon (1980), San Diego Gas& Electric v. City of San Diego(1981), Williamson Co. RegionalPlanning Commission v. HamiltonBank (1985), and MacDonald,Sommer & Frates v. County ofYolo (1986), establish important“ripeness” standards that must bemet before an aggrieved party canpursue a takings claim in court.The requirements derived fromthese 1980s cases have continuedto be expounded on by the Court,for example, in Suitum v. TahoeRegional Planning Agency (1997),and Palazzolo v. Rhode Island(2001) (discussed below).

The ripeness standards laid outby the Supreme Court make clearthat if a restriction on develop-ment is being challenged, anactual development plan mustfirst be filed; no theoretical chal-lenges are allowed except inunusual circumstances. Second,if the development proposal isrejected, the project proponentmust pursue available avenues ofadministrative relief such as seek-ing a variance in the regulations.(A case may be considered ripe,

however, if the governmentalagency charged with reviewingthe application is without discre-tion to issue the permit; or “thepermissible uses of the propertyare known to a reasonable degreeof certainty.”) In other words,reviewing courts will not enter-tain a takings claim unless thegovernment has reached a finaldecision regarding (1) the appli-cation of the regulations at issueand (2) the extent to whichdevelopment of the land willotherwise be permitted under thelaws that apply.

In Agins, the plaintiffs, whoowned extremely valuable landin upscale Marin County, Calif.,challenged a zoning change oftheir property that limited thenumber of residential structuresthat could be built on theirfive-acre lot. The landownersclaimed that they were entitledto money damages for a taking;however, the Court refused toaddress the damage issue, becauseit found that no taking hadoccurred. The landowners jumpedthe gun—they had not filed adevelopment plan, and the ordi-nance on its face allowed someresidential use that might beprofitable. As discussed later,Agins and others in this line ofcases have been often embracedby many lower courts in rejectingtakings claims.

Apart from the basic rule thatthe availability of variances, spe-cial exceptions, state inversecondemnation actions, and othertypes of discretionary relief mustbe exhausted before a takingsclaim may be pursued, a courtmay allow a case to go forwardin certain circumstances. If alandowner’s ability to develop asite is completely denied, as inthe Lucas case, a reviewing courtis likely to determine that theripeness requirement has been


met, even if some continued usemay be made of the propertythrough, for example, transfer-able development rights (TDRs).Moreover, as the Supreme Courtexplained in Suitum v. TahoeRegional Planning Agency (1997),a case may be considered ripe insituations where no discretionaryaction remains. Thus, the SuitumCourt concluded that a land-owner’s failure to sell TDRsavailable from her non-devel-opable lot did not prevent herfrom asserting a takings claim,since the value of the TDRs was“simply an issue of fact aboutpossible market prices,” which areviewing court could consider inits evaluation of that claim. TheSuitum situation, however, doesnot change the basic rule that theavailability of variances, specialexceptions, and other types ofdiscretionary relief must beexhausted before a takings claimmay be pursued in court.

Most recently, the Court rec-ognized in Palazzolo v. RhodeIsland that a takings case is likelyto have ripened “once it becomesclear that the permissible uses ofthe property are known to a rea-sonable degree of certainty.” Inthat case the Rhode IslandCoastal Resources ManagementCouncil had made it clear thatthe coastal regulations barredPalazzolo from filling in or devel-oping wetland areas. Therefore,the Court reasoned that furtherpermit applications would not benecessary since there was no ambi-guity about the extent of develop-ment that would be permitted.

Real Estate Economicsand the Takings Issue

In considering specific takingsclaims, and in applying the judicialprecedents described in the previ-ous chapter, a growing number of

courts in recent years haveapplied standard principles of realestate analysis in handling andanalyzing takings cases, particu-larly in measuring the economicimpact of land-use or environ-mental regulation. Application ofthese principles is useful inanswering three of the centralquestions of the takings inquiry: • What is the property interest

alleged to be affected by theregulation?

• What is a reasonable use of orreturn on property?

• In the rare event that a takinghas occurred, how should dam-ages be measured?

What Property InterestHas Been Affected? First-year law students learn thatowning real estate is like owninga bundle of sticks. The “sticks” inthe bundle are the various rightsthat accompany property owner-ship. For example, on the sim-plest level, a property owner maypersonally “use” it, let familymembers “use” it, “lease” it,“mortgage” it, join with othersto “develop” it, “bequeath” it toheirs, or “sell” it. Each of thosesimple uses can be accomplishedin an endless variety of ways.

For obvious reasons, real estateand other development interestswant the courts to focus on theindividual sticks rather than theentire bundle. However, one of themost basic rules of takings law isthat the focus of the inquiry mustbe on the entire “bundle,” not theindividual sticks. If a regulationdestroys the opportunity to useone or more of the sticks, but theremaining sticks give value to thebundle as a whole, no taking hasoccurred. This rule was set forthby the U.S. Supreme Court inPenn Central (1978) (“‘[t]aking’jurisprudence does not divide a

single parcel into discrete seg-ments and attempt to determinewhether rights in a particularsegment have been entirely abro-gated...”). It was later reaffirmedin Keystone Bituminous Coal(1987), Concrete Pipe and Productsv. Construction Laborers PensionTrust (1993), Palazzolo v. RhodeIsland (2001), and again inTahoe-Sierra Preservation Council,Inc. v. Tahoe Regional PlanningAgency (2002).

The only exception to the ruleis where a governmental actionamounts to a compelled physicaloccupation of land, in which casea court will look at the specificimpact, no matter how small.

The Supreme Court hasrepeatedly resisted efforts tomodify the “parcel as a whole”rule since its annunciation in1978. In Penn Central, theSupreme Court examined theentire tax parcel owned by thedeveloper, not only the air rightsthat had allegedly been taken. Inthe 1987 Keystone case, theSupreme Court focused on thetotal coal owned by the company,not simply the portion of the coalrequired to be left in the groundby the regulation. Then in 1993,the Supreme Court in ConcretePipe and Products, a non-land usecase, stated that “the claimant’sparcel of property could not firstbe divided into what was takenand what was left for the purposeof demonstrating the taking.”

Standing by its “parcel as awhole” rule in the 2001 Palazzolocase, the Supreme Court refusedto focus solely on the portion ofthe parcel on which developmenthad been denied in applying itstakings analysis. More recently, inTahoe-Sierra Preservation Council,Inc. (2002), the Supreme Courtstated that the 32-month periodduring which no developmentwas allowed under the planning


agency’s moratoria on develop-ment, could not be severed “fromthe remainder of each landowner’sfee simple estate” for purposes ofestablishing a categorical taking.

In identifying the relevant“property interest” for purposes ofestablishing a takings claim, it isimportant to understand that onlylegally recognized property interestswill be considered to be protectedby the Constitution. In addition,a reviewing court is unlikely tofind a taking where the assertedproperty interest is speculative, orit is but one of many intereststhat give value to the property asa whole. Thus, in Tahoe-SierraPreservation Council, Inc., theSupreme Court explained that “apermanent deprivation of theowner’s use of the entire [geo-graphic] area is a taking of ‘theparcel as a whole,’ whereas a tem-porary restriction that merelycauses a diminution in value isnot.” “Logically,” the Court stated,

“a fee simple estate cannot berendered valueless by a temporaryprohibition on economic use,because the property will recovervalue as soon as the prohibitionis lifted.”

What Is a ReasonableUse or Return? As discussed above, one of thekey factors considered by thecourts to determine if a takinghas occurred is whether the owneris left with a reasonable use of orreturn on the property. The mostcomplete discussion of this part ofthe takings inquiry can be foundin various decisions by formerJustice William Brennan. In the1978 Penn Central decision,Justice Brennan, writing for themajority, focused on the abilityof landowners to enjoy “both a‘reasonable return’ on theirinvestment and maximum lati-tude to use their parcels for pur-poses not inconsistent” with the

public interest. Justice Brennanalso included among the rele-vant factors in reviewing takingsclaims “[t]he economic impact ofthe regulation on the claimantand, particularly, the extent towhich the regulation has inter-fered with distinct investment-backed expectations....” ButBrennan also warned that propertyowners may not establish a taking“simply by showing that theyhave been denied the ability toexploit a property interest thatthey heretofore had believed wasavailable for development.”

This economic theory of takingsas explained in Penn Central andelsewhere thus focuses on the fol-lowing key questions: • Can the property owner con-

tinue to use the property pro-ductively even after enactmentof the challenged regulation?

• If there has been an “invest-ment” in the property, can theowner still obtain a reasonablereturn on that investment afterenactment of the challengedregulation?

In some takings cases, such asPenn Central, reviewing courtssimply analyze the past use or usesof the property to see if any or allsuch uses can continue unaffectedby the regulation. In other takingscases, the courts engage in a morecomplicated economic analysis ofthe impact of the regulation.Typically, the starting point is tocompare the value of the propertybefore the challenged regulationwas adopted to the value of theproperty after the regulation wasadopted. The court may factor inthe owner’s actual investment inthe property, and consider theowner’s reasonable expectations inlight of the broader economicenvironment and the comparativerisk of the investment. In anyevent, as discussed above, the


A basic rule of takings law is

that the focus of any takings

inquiry is on the entire

property interest, not just

one portion of the property

or ownership interest.



economic impact must beextremely high before the “tak-ings” threshold is crossed.

Nothing in the SupremeCourt’s 1992 Lucas decisionchanged any of the economicprinciples of takings analysis.Justice Antonin Scalia, writingfor the majority in Lucas, statedthat a categorical taking mayexist “where regulation denies alleconomically beneficial or pro-ductive use of land,” and thencontinued by paraphrasing theBrennan takings formulation asstating that “total deprivation ofbeneficial use” is a taking. In fact,the case only reaffirms a conclu-sion reached by most legal ana-lysts long ago—if a regulationtotally deprives an owner of alluse of a property, it will morethan likely be found to be a taking.

Indeed, since Lucas, the Courthas twice adhered to the strictboundaries established by its “totaltaking” rule, refusing to adopt acategorical rule in cases involvingpartial takings. In both Palazzolov. Rhode Island (2001) and Tahoe-Sierra Preservation Council, Inc. v.Tahoe Regional Planning Agency(2002), the Court declared thatvirtually all takings claims mustbe resolved on a case-by-casebasis under the multi-factor testset forth in Penn Central.

Finally, in Concrete Pipe andProducts v. Construction LaborersPension Trust (1993), the SupremeCourt provided some additionalguidance on the issue of “reason-ableness,” in the context of aclaim that a regulation amountsto an “interference with reasonableinvestment-backed expectations.”The Court noted that “our caseshave long established that merediminution in the value of prop-erty, however serious, is insuffi-cient to demonstrate a taking.” Itwent on, quoting from several ear-lier decisions, to say that “those

who do business in [a] regulatedfield cannot object if the legisla-tive scheme is buttressed by subse-quent amendments to achieve thelegislative end.” According to theCourt, “legislation readjustingrights and burdens is not unlawfulsolely because it upsets otherwisesettled expectations....”

In the Rare Event that aTaking Occurs, What isthe Measure of Damages? There is little or nothing in theland-use decisions of the U.S.Supreme Court that helps inunderstanding how to measuredamages should a taking actuallyoccur. The issue, however, is asignificant one: If the amount ofpotential liability is great—evenif the risk that a court will find ataking is relatively small—therewill be a natural tendency on thepart of communities to refrainfrom any type of activity thatcould invoke a takings claim. Asexplained below, however, thepotential liability is generallysmaller than most people associatewith the concept of “takings.”

In examining this issue, it isimportant to understand the dif-ference between a temporary anda permanent taking. If a regula-tory taking is “permanent,” thatis, the regulations are not tempo-rary, or cannot be undone—thenthe appropriate compensation tothe property owner would be thefull value of the property, asdetermined by well-accepted realestate valuation principles. If aregulatory taking is “temporary”—that is, the regulation is subse-quently lifted by a court’s actionin striking it down, or if it is with-drawn by the government—compensation would only be duefor the period the regulation wasin place, and will be far less. Thesignificance of this difference isthat, while any type of regulatory

taking is rare, in most such casesthe offending regulation mayeither be withdrawn by the courtor by the government itself—limiting the taking to a tempo-rary period. The correspondingliability for temporary damages isconsiderably smaller than that ofa permanent “taking.”

How, then, are damages mea-sured in the case of a regulatorytaking? Although the few courtsthat have addressed this issuehave taken no consistent approach,two main alternative methodshave emerged from two federalappeals court decisions. Underthe first, based on Nemmers v.City of Dubuque (1985), the gov-ernment is required to pay apercentage (reflecting a reason-able annual rate of return) of theloss of value of the property forthe period of time that it wascovered by the regulation. Underthe second, based on Wheeler v.City of Pleasant Grove (1990),the government is required topay a percentage (again, reflect-ing a reasonable rate of return) ofthe amount of investment thelandowner would have put intothe property had developmentnot been prohibited by theregulation—but, again, only forthe period the regulation wasactually in effect.

Most analysts favor the Nemmerstest, since Wheeler has beensubject to criticism that it over-states the true economic impacton a piece of property. In eithercase, the entire loss of value orinvestment is not required to berepaid, since both value andinvestment potential are restoredto the owner once the regulationis lifted.

An example of how these dam-ages principles apply in a givencase can be found under Principle8. For a more detailed discussionof this issue, see R. Roddewig &


C. Duerksen, “Measuring Damagesin Takings Cases: The NextFrontier,” 15 Zoning & PlanningLaw Report 49 (Clark BoardmanCallaghan, New York 1992).

Takings Law in Summarywith Examples

Given the flurry of SupremeCourt land-use cases over thepast quarter century, what are theFifth Amendment rules thathave been established to strike afair balance between public need,as embodied in governmental,environmental, and land-userestrictions, and private eco-nomic interests?

Here is a plain English sum-mary, with some illustrations:

Example: The owner of a petro-leum refinery, once located farfrom any city or town, haswatched over the years as devel-opment from the nearest metro-politan area has crept closer andcloser. The refinery was once sur-rounded by open fields, but isnow surrounded by residentialsubdivisions, shopping centers,and schools. The local commu-nity has grown concerned thatsmoke and other pollutantsfrom the factory are having anadverse effect on the health oflocal residents, as well as theeconomic health of the commu-nity as a whole. The county coun-cil finally decides enough isenough, and adopts a law that

prohibits emission levels abovecertain amounts. The owner saysthat he cannot afford the neces-sary emission controls, and willbe forced to close the plant ifrequired to comply with the law.He claims that the result wouldbe a taking.

Analysis: Communities have theright to stop harmful activitiesof individual landowners. This isthe case even for activities thathave been carried out for manyyears, since changes in circum-stances will permit changes in thegeneral law to protect the publicinterest. In almost every instance,the property in question may beput to other uses, including—as inthis case—property developed forresidential or other low-impactuses. Even where no other useis possible, however, compensa-tion will not be due if the prohi-bition is based on establishedprinciples of the law of propertyand nuisance.

Courts continue to insist on ahigh threshold for takings claims.All or virtually all reasonable useor return must be denied theproperty owner before a courtwill find a taking. A significantreduction in value does not nec-essarily give rise to a taking. Agovernmental action that restrictsthe value (or valuable uses) of landis not a taking, so long as it


The practice of requiring developers and landowners to provide

public open space and trails on their property has been upheld under

the U.S. Constitution as long as there is a sufficient relationship

between the needs created by the project and the amount of land or

type of access required.

— Photo: National Trust for Historic Preservation.

PRINCIPLE No. 2:Reasonable Return or Use Property owners have a rightto a reasonable return or useof their land, but the U.S.Constitution does not guaran-tee that the most profitable usewill be allowed.

PRINCIPLE No. 1 NoAbsolute Right of Use No one has an absolute rightto use his or her property in amanner that may harm thepublic health or welfare, ordamage the interests of neigh-boring landowners or the com-munity as a whole.

advances a legitimate public inter-est, and so long as some reasonableuse of the property remains.

Example: A dilapidated buildingin a large city is designated as alocal historic landmark, due bothto its architectural significance andits historic importance as the earlyresidence of an internationally-known author. Current zoning ofthe area permits a wide variety oflow- and high-density uses, and anumber of properties adjacent tothe landmark have been devel-oped as high-rise office towers.However, the local landmark lawprohibits demolition or majorchanges to the building except asapproved by a local landmarkscommission, under very strict cri-teria. The landmark is purchasedby a developer, who seeks per-mission to demolish it in order todevelop another office tower. Atthe hearing, the developer sub-mits uncontroverted evidencethat the current value of theproperty is about $100,000, butthat it would be worth over $2million if it could be developed toits “highest and best” use. Thelandmarks commission nonethe-less denies the demolition appli-cation; the developer claims thatthe severe diminution of valueamounts to a taking. Is he right?

Analysis: No. The U.S. SupremeCourt has repeatedly held that themere diminution of property val-ues is insufficient to demonstratea taking. This principle goes backto the early zoning cases thatupheld the imposition of newzoning regulations that instantlydecreased property values becauseof the loss of developmentpotential. In this case, there arelikely to be a number of other,lower-density uses to which theproperty can be put, and whichwould not necessitate the demoli-tion of the existing structure.

Natural resource protection,agricultural land preservation,historic preservation, scenic viewordinances, design controls, pro-tection of environmentally sensi-tive areas such as wetlands andfloodplains—all these are validpurposes for land-use regulation.Importantly, basing regulationsupon a well-thought-out com-prehensive plan helps to clarifythe reasons for citizens and pro-tect government actions againsttakings claims.


PRINCIPLE 4: Considerthe Parcel as a Whole The focus of a takingsinquiry continues to be onthe entire property interest.

PRINCIPLE No. 3:Furthering the PublicInterest Courts have and are continu-ing to sustain a wide variety ofpurposes as valid reasons forenacting environmental andland-use regulations.

The Supreme Court has ruled that local governments can require

developers to pay for improvements, such as roads, that are needed

for the new development.

— Photo by James Lindberg.

Example: A coastal state is con-cerned about the continuing lossof life and property that occurswhenever a major hurricanestrikes. After an extensive periodof study, the state enacts a com-prehensive package of laws torestrict the type and place ofdevelopment along the state’sbeaches and barrier islands. Thelaw effectively zones developmentin coastal areas, requires stricterbuilding codes in certain high-danger areas, and limits new con-struction within a set-back zonealong the beach. A series of permitrequirements are set in place, withappropriate variance measurescomparable to those under zoninglaw. A property owner, who wouldlike to build a vacation homewithin the set-back zone, claimsthat the Supreme Court struckdown this type of law in the Lucascase. Will he win?

Analysis. It is unlikely. TheSupreme Court did not strikedown the coastal zone law at issue

in Lucas. In fact, the Court recog-nized that the government hasbroad authority to regulate the useof land both to confer benefits onthe public and to prevent harm.Coastal zone laws, like numerousother environmental and land-uselaws, have been upheld as a validbasis for regulation.

The issue in Lucas was whetherthe law, even as a valid exerciseof regulatory power, wouldrequire compensation if it denieda property owner all use of hisproperty. (The Court said it would,unless the ban was justified byprinciples of nuisance and prop-erty law.) In the example above,the incorporation of a varianceprovision makes it less likely thata taking will arise in any givencase. The law in Lucas did notinclude a variance provisionuntil one was added after theproperty owner had initially beendenied the right to build; heapplied for permits under theamended law (and receivedthem) only after the SupremeCourt had issued its opinion.

A severe adverse impact of a reg-ulation on one portion of a prop-erty or ownership interest is notenough to constitute a taking, ifthe property as a whole continuesto have a reasonable economic use.

Example: A county in a westernstate has had a water shortage fora number of years and needsadditional sources to providedrinking water to its residents. Alake in one part of the county hasnever been tapped for drinkingwater because of high pollutionlevels, primarily from run-offfrom adjacent development. Thecounty decides that, in order toensure the availability of the lakeas a source of drinking water, itwill establish a 100-foot bufferzone around the lake shore,within which no new construc-tion or ground-disturbing activitywill be permitted. A lakesideproperty owner, who had hopedone day to develop his rusticcampground into a commercialmarina complex, claims thatthe government has effectivelycondemned a 100-foot swath ofhis property.

Analysis: Assuming that thecounty can demonstrate that the100-foot buffer is necessary toachieve the legitimate publicneed for a pure water source, thereal issue here is the residual useof the parcel affected by this reg-ulation. Contrary to popularbelief, takings law does not lookprimarily at the portion of theland that is restricted, but ratheron the remaining use of theentire parcel. If the landowner


PRINCIPLE 4: Considerthe Parcel as a Whole The focus of a takings inquirycontinues to be on the entireproperty interest.

A variety of public interest

laws, such as environmental

controls and wetlands and

natural habitat protections,

have been upheld under Penn

Central principles.

— Photo: National Trust

for Historic Preservation


As discussed in further detail in this publication, the courts have laid out a number of general principles that should be keptin mind by those wishing to understand the law of takings:

Points to Remember

• No one has an absolute right to use his land in a way thatmay harm the public health or welfare, or that damages thequality of life of neighboring landowners, or of the com-munity as a whole.

• Historical precedent and recent case law make clear thatreasonable land-use and environmental regulations willhave little trouble withstanding constitutional scrutiny inthe vast majority of cases. Only in rare instances will suchregulations be deemed so onerous as to effect a “taking”under the Fifth Amendment to the U.S. Constitution,which holds that private property shall not be taken forpublic use without just compensation.

• Courts have outlined several broad factors to be consid-ered on a case-by-case basis in determining if a takinghas occurred, including: the economic impact of the reg-ulation on the property owner; the public purpose forwhich the regulation was adopted; and the character ofthe government action. Generally, a regulation will beupheld if it (1) furthers a valid public purpose; and (2)leaves a property owner with some viable economic useof the property.

• Property owners have a right to a reasonable return or useof their land, but the U.S. Constitution does not guaran-tee the most profitable use.

• Courts have upheld a wide variety of purposes as validreasons for enacting environmental and land-useregulations—including pollution prevention, resourceprotection, historic preservation, design controls, andscenic view protection.

• Communities can legitimately insist that development payits own way. Land dedications or mandatory exactions arevalid, assuming that they are adopted to respond to thedemands created by the project.

• Before a landowner or developer can bring a lawsuit toclaim a taking, a development plan must be submitted forreview and all administrative avenues of relief must beexhausted.

• The focus of the takings inquiry is the entire propertyinterest. A severe adverse impact of a regulation on oneportion of the property or ownership interest will notamount to a taking if the property as a whole continues tohave a reasonable economic use.

• On the rare occasion that a taking is found to haveoccurred, the community does not have to buy the entireproperty. Damages are payable only for a temporary takingfor the period in which the regulations were in effect.Generally, the measure of damages will take intoaccount the difference in value of the property withoutthe offending regulations in place and with them, anappropriate interest rate to be applied for the temporaryloss of value, and the length of time the regulations werein effect.

• As part of legislation, lawmakers should include an admin-istrative process that allows those who administer the lawto consider the specific effect of the law on an individuallandowner, and—consistent with the interest of the pub-lic being protected—afford an administrative relief processfor undue economic hardship.


retains a reasonable use of theproperty—here the continuationof a valid existing use or thedevelopment of some other por-tion of the property—the lot as awhole can continue to be viablyused, and there is no taking.

It is worth noting, however,that a variance or hardship pro-cedure would protect the countyagainst takings claims by providinga means to alleviate any hardshipthat might exist on a case-by-case

basis due to unusual topography orother circumstances. It is also worthnoting that, as explained below inPrinciple 9, the justification for adevelopment ban in this case, ifsupported by background principlesof nuisance law, may cause therestriction to be upheld even if alluse of the parcel is prohibited.

A takings claim cannot beasserted over a speculative devel-opment concept. In addition,government officials must begiven a chance to provide reliefto an aggrieved property ownerthrough the regular administra-tive process.

Example: A developer purchasesa 20-acre tract on the outskirts ofa metropolitan area in theNorthwest with the intent ofbuilding a large residential devel-opment. The land is mountain-ous, and each house will have a

large deck with mountain viewsas a selling point. During theperiod in which the developer isdrawing up plans and beginningto arrange financing, a compre-hensive state study is issued thatconcludes that steep slope devel-opment has a devastating effecton the environment, and sub-stantially contributes to mud-slides. The local governmentresponds by amending the applic-able zoning law to limit develop-ment in certain steep slope zones,including much of the developer’sland. While some amount of con-struction would be permitted, thedeveloper does not bother tryingto devise a plan that would com-ply, since he contends that theeffect on his total investment inthe property is so severe that itamounts to a taking.

Analysis: Until the developeractually files a development planthat is considered and rejected bythe local municipality, any claimthat his property has been takenis not ready for judicial review. Abasic rule in takings law is thatthe controversy must be “ripe” orready to be reviewed. To under-stand the rule, think about thecourt’s dilemma: How can itdetermine exactly what use canbe made of the property, andhence determine the effect of theregulation, if a development planhas not been submitted and actedupon? To permit judicial reviewat this point would preclude thelocal government from consider-ing the actual application of thelaw to the property—includingany available variance, specialexception, or administrativeappeals process. Courts are highlyreluctant to dream up alternatedevelopment plans and then sec-ond guess whether a local bodywould approve them.

Temporary controls or delays

on proposed development

projects enacted for discrete

periods of time and necessitated

by environmental concerns

are constitutionally valid


Historic Preservation

PRINCIPLE 5: No Speculative Plans A developer must actuallysubmit a development planand pursue all administrativeremedies after denial of thatplan before filing a takingsclaim in court.

Also, temporary moratoriathat limit development while acommunity formulates laws andpolicies to protect the public inter-est will be upheld in most instances.

Example: A rural county in theSouth is encountering majordevelopment pressures, largelydue to the completion of a newhighway through the area. Newrequests for development ap-provals are overwhelming theplanning staff. The community,however, is growing more andmore concerned about the effectsof sprawling development. Inaddition, state and federal offi-cials have identified potentialwetland sites, and a preservationgroup claims that important CivilWar trenches exist in the vicinity.

The county commissionersagree that new controls are nec-essary, but estimate that it wouldtake six months for an environ-mental consultant to complete areview of the county’s needs, andanother six months to write andadopt new laws. Accordingly, thecommissioners enact a one-yearinterim moratorium during whichthe county will not consider anynew development plan. This isnot good news for one localdeveloper, who was in the processof completing plans to obtain thenecessary county permits for alarge commercial project. He filesa lawsuit claiming damages for theone-year period during which hewill not be permitted to develophis property. Will he prevail?

Analysis: No. There is a commonmisconception that the FirstEnglish case ruled that damages aredue whenever total use is prohib-ited during any temporary period inwhich development is restricted.This misconception was dispelledby the U.S. Supreme Court inTahoe-Sierra Preservation Council,Inc. v. Tahoe Regional PlanningAgency (2002). Not only did theCourt clarify that temporaryrestrictions on development arenot automatic takings, it under-scored the validity of moratoriaand normal delays in obtainingbuilding permits and variances aspermissible exercises of the policepower. While a taking could beestablished in extreme situations,courts are cognizant of the needfor governments to maintain thestatus quo pending study and res-olution of important land-useissues. Temporary controls or delaysenacted for discrete periods oftime and necessitated by soundplanning or environmental con-cerns are constitutionally valid.

Mandatory dedications or exac-tions are permissible, so long asthey respond to the specific bur-dens imposed by a development.

Example: A county on the out-skirts of a major mid-Atlantic cityhas recently been approached by asports and entertainment promoterwith a proposal: the creation of alarge new stadium in the county,which would bring millions oftourist dollars annually, andthousands of jobs. The county’sinfrastructure, however, cannot

currently support the project; inparticular, the main highwaythrough the county is alreadyover capacity, and the watertreatment plant can barely meetexisting demands. In addition,neighbors have objected to thevisual and noise impacts of theproposed development.

The county decides that itcannot permit the developmentwithout major public improve-ments, including a highwayextension and interchange to jointhe stadium to the main highway,and lane additions to the existinghighway to meet increased trafficflow. The county will also need toupgrade its water treatment plantto meet the demands of the thou-sands of tourists who will come tothe facility. Can it require thedeveloper to pay for theseimprovements as a condition ofdevelopment? The developercontends that these are publicfunctions, and it would be a tak-ing to make the corporation pay.

Analysis: Assuming that thecounty can demonstrate thatthese improvements are necessaryto meet public needs caused bythe stadium—for examplethrough traffic and environmentalstudies—than requiring thedeveloper to pay for all or por-tions of them as a condition ofbuilding the stadium will notamount to a taking. The countymay also require the developer toset aside open space to leave awooded buffer between the stadiumand adjacent residential areas.Where the condition or exactionbecomes more speculative orwhere public access is required,however, a court can be expectedto scrutinize the justification moreclosely. For example, the countymay find it harder to justify arequirement that the open spacebuffer be accessible to the generalpublic for recreational use.


PRINCIPLE 7: HavingDevelopment Pay Its WayLocal communities can insistthat developments pay theirown way.

PRINCIPLE 6: OrdinaryDelays Not Considered Normal delays in the reviewof applications for environ-mental and zoning permits,or in adopting changes to thelaw, do not create tempo-rary takings.

In the extremely rare case thata regulation amounts to a taking,the government may be liable fordamages—but only for the actualtime the regulations were ineffect. If the regulation is invali-dated, withdrawn, or amended topermit use of the property, onlytemporary damages will be due.

Example: A builder has obtaineda permit for a commercial develop-ment and has started construction,only to have the local government,in a large-scale rezoning, restrictthe use of his property to agricul-tural uses only. The builderrequests a variance, but therequest is rejected. Evidenceproves that the rezoning has effec-tively decreased the value of theproperty from $500,000 to$25,000. Assume also that, in thisparticular case, a reviewing courtdecides that the destruction of theowner’s investment-back expecta-tions, based on his reliance on theexisting permit and his reasonableassumptions about the property’sworth, is enough to cross thethreshold and create a taking.

Analysis: The court, in finding ataking, will not force the localgovernment to buy the land,and thus will not require thegovernment to compensate thelandowner for the entire decreasein value. Instead, the taking islikely to be rendered temporary,either by the court’s action ininvalidating the rezoning, or bythe local government’s ownaction in restoring the originalzoning in response to the court’s

decision. In either case, the com-pensation due is for the owner’stemporary loss, between the timehis original permit was finallydenied and the time that his useof the property was restored.

Under the principles set out inNemmers v. City of Dubuque(1985), this temporary taking ismeasured in the following way:the temporary decrease in value($475,000) is multiplied by anappropriate annual rate of returnon lost value as set by the court(assume in this case that the rateis 10 percent). If there was aone-year period between thetime that the development per-mit was finally denied and thedate when the court invalidatedthe rezoning and found a taking,the local government owes com-pensation to the owner in theamount of $47,500 (10 percenttimes $475,000).

As is the case with lesserrestrictions, tough laws designedto prevent serious harm to theenvironment or public health willgenerally be upheld, except in “rel-atively rare” circumstances whenthey deny an owner all economicuse of his property. Even then, how-ever, a total ban may be justifiedif the harmful use may be prohib-ited under background principlesof nuisance and property law.

Example: A church owns a tractof land alongside a river in theMidwest, which it uses for a

campground for underprivilegedchildren. The land, however, islocated entirely in a floodplain,and the adjacent river in this areais susceptible to flash floods. Oneyear, a flood wipes out the camp-ground, killing a child anddestroying several camp buildings.The following year, the countyin which the campground islocated adopts a new land-uselaw that designates certain areasas “flood danger zones,” and pro-hibits all permanent constructionin those areas. Most of thechurch’s land is within one suchdanger zone, and the church iseffectively prohibited from rebuild-ing its campground. The churchclaims that the county’s actionsamount to a taking of all eco-nomic use of its property, andseeks compensation.

Analysis: The church will lose.Laws that are reasonably designedto address valid public health andsafety concerns or serious envi-ronmental conditions will beupheld against takings claims inalmost every instance. In thiscase, a reviewing court is likely tofind that the church retains someviable use of the property, even ifno permanent structure is per-mitted—for example, for tentencampments, or even for agri-cultural uses. However, even if acourt were to agree that the floodcontrol law denies the church alleconomic use of the land, publicsafety is likely to be considered avalid basis under underlying prin-ciples of the law of property tojustify an outright ban. Otherpublic concerns (for example,flooding of neighboring prop-erty) may also justify a ban ondevelopment under nuisance lawprinciples, even if no publicsafety issue exists.


PRINCIPLE 9: Protectionfrom Serious Harm If a proposed use amounts to apublic nuisance, then it may beforbidden without compensa-tion—despite a completeelimination of use or value.

PRINCIPLE 8: HowMuch Is Due? If a government entity doesoverregulate, it will not haveto buy the entire property.


1. Establish a sound basis for land-use, preservation, and environ-mental regulations through comprehensive planning and back-ground studies. A thoughtful comprehensive plan or programthat sets forth overall community goals and objectives andwhich establishes a rational basis for land-use regulations helpslay the foundation for a strong defense against any takingsclaim. Likewise, background studies of a community’s historicresources, and how new development and pollution would affectthese resources, can build a strong foundation for historicpreservation or environmental protection measures.

2. Ensure that zoning, subdivision, and historic preservation lawsare in sync with one another as well as the comprehensive plan.Potential lawsuits can be avoided by eliminating the possibilitythat property could be developed in a way that is inconsistentwith other land-use programs. For example, a property ownermay be far less likely to assert a takings claim if the land withina designated historic district is zoned in a manner consistentwith that of existing historic buildings.

3. Institute an administrative process that gives decision-makersadequate information to apply the takings balancing test byrequiring property owners to produce evidence of undue eco-nomic impact on the subject property prior to filing a legalaction. Much of the guesswork and risk for both the public offi-cial and the private landowner can be eliminated from the tak-ings arena, by establishing administrative procedures forhandling takings claims and other landowner concerns beforethey go to court. These administrative procedures shouldrequire property owners to support claims by producing relevantinformation, including an explanation of the property owner’sinterest in the property, price paid or option price, terms of pur-chase or sale, all appraisals of the property, assessed value, tax onthe property, offers to purchase or rent, income and expensestatements for income-producing property, and the like.Historic preservation ordinances, for example, frequentlyinclude “economic hardship” provisions that allow takingsclaims to be addressed administratively.

4. Establish an economic hardship variance and similar adminis-trative relief provisions that allow the possibility of some legiti-mate economically beneficial use of the property in situationswhere regulations may have an extreme result. These procedureshelp to avoid conflicts in the first place by allowing for earlyconsideration of alternatives that may be satisfactory to all

concerned. However, relief should be granted only upon a posi-tive showing by the owner or applicant that there is no reason-able economic use of the property, as witnessed by producing thetypes of evidence outlined in No. 3 above. Remember that thelandowner has the burden of proof on hardship and takings issues.

5. Take steps to prevent the subdivision of land in a way that maycreate economically unusable, substandard, or unbuildableparcels. Subdivision controls and zoning ordinances should becarefully reviewed, and should be revised if they permit divisionof land into small parcels or districts that make developmentvery difficult or impossible—for example by severing sensitiveenvironmental areas or partial property rights (such as mineralrights) from an otherwise usable parcel. Such self-created hard-ships should not be allowed to develop into a takings claim.

6. Make development pay its fair share, but establish a rational,equitable basis for calculating the type of any exaction, or theamount of any impact fee. The U.S. Supreme Court hasexpressly approved the use of development conditions andexactions, so long as they are tied to specific needs created by aproposed development. The use of nationally accepted standardsor studies of actual local government costs attributable to a pro-ject, supplemented by a determination of the actual impact of aproject in certain circumstances, may help to estab-lish the needfor and appropriateness of such exactions.

7. Avoid any government incentives, subsidies, or insurance pro-grams that encourage development in sensitive areas such assteep slopes, floodplains, and other high-hazard areas. Noth-ingin the Fifth Amendment requires a government entity to pro-mote the maximum development of a site at the expense of thepublic purse or to the detriment of the public interest. Taxpayersneed not subsidize unwise development.

8. Provide relief from regulatory action through the use of taxincentives and other programs. In some situations, regulatoryapproaches alone cannot achieve necessary objectives with-out severe economic impact in individual situations. While nota legal requirement, administrative relief programs can help takethe sting out of tough, but necessary, preservation or land-usecontrols. Transferable development right programs and prop-erty tax programs, for example, are commonly used measuresthat provide relief in individual cases yet allow communities tobenefit by having good land-use programs overall.

There are a number of different ways in which communities concerned about fairness and balance for all citizens in addressing thetakings issue can protect themselves against potential takings claims. These include the following:

A Practical Guide for Responding to the Takings Issue

Acknowledgments

This publication was originallyproduced by the National Trustfor Historic Preservation for theAmerican Resources InformationNetwork, a cooperative projectof more than 100 organizationsinterested in ensuring that the pub-lic is provided with accurate andbalanced information on the rela-tionship between private propertyrights and the public interest.

The following organizationsparticipated in the AmericanResources Information Network’ssteering committee:

American Planning AssociationChesapeake Bay FoundationIzaak Walton League of AmericaLeague of Conservation VotersNational Audubon SocietyNational Trust for Historic

PreservationNational Wildlife FederationNatural Resources Defense

Council Trust for Public Land

Further information on thetakings issue can be obtaineddirectly from these organizations.

The National Trust gratefullyacknowledges the financialassistance of the Surdna Founda-tion and the George GundFoundation in the production ofthis publication.

Christopher J. Duerksen andRichard J. Roddewig are princi-pals of Clarion Associates, Inc., anational real estate and commu-nity development services firm,with affiliated offices in Chicago,Denver, Philadelphia, andCincinnati. Both are attorneyswho have written and lecturedextensively on the issue of takingslaw, and who provide advice andassistance on the issue to govern-ment agencies, corporate realestate development clients, andindividual property owners. RobertL. Zoeckler, an attorney withMaddox, Nix, Bowman andZoeckler, P.C, Georgia, and for-merly assistant city attorney for thecity of Atlanta, also contributed tothis publication. Edited by Paul W.Edmondson, vice president andgeneral counsel of the NationalTrust for Historic Preservation.Updated by Julia H. Miller, editor,Preservation Law Reporter (NationalTrust for Historic Preservation).

Copyright © 1994, 1998, 2002Clarion Associates, Inc.

Fourth Edition


The official citations to cases cited in the text are listed below:

U.S. SUPREME COURT DECISIONS Hadacheck v. Sebastian, 239 U.S. 394 (1915). Pennsylvania Coal Co. v. Mahon, 260 U.S. 393 (1922). Village of Euclid v. Ambler Realty Co., 272 U.S. 365 (1926). Nectow v. Cambridge, 277 U.S. 183 (1928). Penn Central Transportation Co. v. New York City, 438 U.S. 104 (1978).Kaiser Aetna v. United States, 444 U.S. 164 (1979). Agins v. City of Tiburon, 447 U.S. 255 (1980). San Diego Gas & Electric v. City of San Diego, 450 U.S. 621 (1981). Williamson County Regional Planning Commission v. Hamilton Bank, 473

U.S. 172 (1985). MacDonald, Sommer & Frates v. County of Yolo, 477 U.S. 340 (1986).Keystone Bituminous Coal Association v. DeBenedictis 480 U.S. 470

(1987).First English Evangelical Lutheran Church v. County of Los Angeles, 482

U.S. 304 (1987). Nollan v. California Coastal Commission, 483 U.S. 825 (1987). Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992). Concrete Pipe and Products of California, Inc. v. Construction Laborers

Pension Trust for Southern California, 508 U.S. 602 (1993). Dolan v. City of Tigard, 512 U.S. 374 (1994). Suitum v. Tahoe Regional Planning Agency, 520 U.S. 725 (1997). City of Monterey v. Del Monte Dunes at Monterey, Ltd., 526

U.S. 687 (1999). Palazzolo v. Rhode Island, 533 U.S. 606 (2001). Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning

Agency, 122 S. Ct. 1465, ___U.S. ___ (2002).

OTHER FEDERAL AND STATE COURT DECISIONS District Intown Properties Ltd. Partnership v. District of Columbia, 198 F.3d

874 (D.C. Cir. 1999), cert. denied, 531 U.S. 812 (2000). In re Opinion of the Justices, 103 Me. 506, 69 A. 627 (1908). William C. Haas & Co. v. City and County of San Francisco, 605 F.2d

1117 (9th Cir. 1979), cert. denied, 445 U.S. 928 (1980). Nemmers v. City of Dubuque, 764 F. 2d 502 (8th Cir. 1985). Allingham v. City of Seattle, 109 Wa. 2d. 947, 757 P.2d 533 (1988). Wheeler v. City of Pleasant Grove, 896 F. 2d. 1347 (11th Cir. 1990).

Case Citations

Documents

Takings Law in Plain English - The International … Law in Plain English ... weapon against efforts to conserve what is special about ... there has never been a shortage of misinformation