The Takings Clause

Defining a Taking

United States v. Causby (1946)

328 U.S. 256 (1946)

Decision: Reversed
Vote: 5-2
Majority: Douglas, joined by Reed, Frankfurter, Murphy, and Rutledge
Dissent: Black, joined by Burton

Justice Jackson took no part in the consideration or decision of the case.

MR. JUSTICE DOUGLAS delivered the opinion of the Court.

This is a case of first impression. The problem presented is whether respondents’ property was taken within the meaning of the Fifth Amendment by frequent and regular flights of army and navy aircraft over respondents’ land at low altitudes. The Court of Claims held that there was a taking, and entered judgment for the respondent. …

Respondents own 2.8 acres near an airport outside of Greensboro, North Carolina … The use by the United States of this airport is pursuant to a lease executed in May, 1942, for a term commencing June 1, 1942 and ending June 30, 1942, with a provision for renewals until June 30, 1967, or six months after the end of the national emergency, whichever is the earlier. …

Various aircraft of the United States use this airport bombers, transports and fighters. The direction of the prevailing wind determines when a particular runway is used. The north-west-southeast runway in question is used about four per cent of the time in taking off and about seven per cent of the time in landing. Since the United States began operations in May, 1942, its four-motored heavy bombers, other planes of the heavier type, and its fighter planes have frequently passed over respondents’ land buildings in considerable numbers and rather close together. They come close enough at times to appear barely to miss the tops of the trees and at times so close to the tops of the trees as to blow the old leaves off. The noise is startling. And at night the glare from the planes brightly lights up the place. As a result of the noise, respondents had to give up their chicken business. As many as six to ten of their chickens were killed in one day by flying into the walls from fright. The total chickens lost in that manner was about 150. Production also fell off. The result was the destruction of the use of the property as a commercial chicken farm. Respondents are frequently deprived of their sleep and the family has become nervous and frightened. Although there have been no airplane accidents on respondents’ property, there have been several accidents near the airport and close to respondents’ place. These are the essential facts found by the Court of Claims. On the basis of these facts, it found that respondents’ property had depreciated in value. It held that the United States had taken an easement over the property on June 1, 1942, and that the value of the property destroyed and the easement taken was $2,000 [this is $38,000 in 2023 dollars] …

Under those statutes [Air Commerce Act 1926 & Civil Aeronautics Act 1938] the United States has ‘complete and exclusive national sovereignty in the air space’ over this country. They grant any citizen of the United States ‘a public right of freedom of transit in air commerce through the navigable air space of the United States.’ And ‘navigable air space’ is defined as ‘airspace above the minimum safe altitudes of flight prescribed by the Civil Aeronautics Authority.’  And it is provided that ‘such navigable airspace shall be subject to a public right of freedom of interstate and foreign air navigation.’ Id. It is, therefore, argued that since these flights were within the minimum safe altitudes of flight which had been prescribed, they were an exercise of the declared right of travel through the airspace. The United States concludes that when flights are made within the navigable airspace without any physical invasion of the property of the landowners, there has been no taking of property. It says that at most there was merely incidental damage occurring as a consequence of authorized air navigation. It also argues that the landowner does not own superadjacent airspace which he has not subjected to possession by the erection of structures or other occupancy. Moreover, it is argued that even if the United States took airspace owned by respondents, no compensable damage was shown. Any damages are said to be merely consequential for which no compensation may be obtained under the Fifth Amendment.

It is ancient doctrine that at common law ownership of the land extended to the periphery of the universe — cujus est solum ejus est usque and coelum. But that doctrine has no place in the modern world. The air is a public highway, as Congress has declared. Were that not true, every transcontinental flight would subject the operator to countless trespass suits. Common sense revolts at the idea. To recognize such private claims to the airspace would clog these highways, seriously interfere with their control and development in the public interest, and transfer into private ownership that to which only the public has a just claim.

But that general principle does not control the present case. For the United States conceded on oral argument that, if the flights over respondents’ property rendered it uninhabitable, there would be a taking compensable under the Fifth Amendment. It is the owner’s loss, not the taker’s gain, which is the measure of the value of the property taken. United States v. Miller, (1939). Market value fairly determined is the normal measure of the recovery. And that value may reflect the use to which the land could readily be converted, as well as the existing use … If, by reason of the frequency and altitude of the flights, respondents could not use this land for any purpose, their loss would be complete. It would be as complete as if the United States had entered upon the surface of the land and taken exclusive possession of it …

Here, enjoyment and use of the land are not completely destroyed. But that does not seem to us to be controlling. The path of glide for airplanes might reduce a valuable factory site to grazing land, an orchard to a vegetable patch, a residential section to a wheat field. Some value would remain. But the use of the airspace immediately above the land would limit the utility of the land and cause a diminution in its value. …

We have said that the airspace is a public highway. Yet it is obvious that, if the landowner is to have full enjoyment of the land, he must have exclusive control of the immediate reaches of the enveloping atmosphere. Otherwise buildings could not be erected, trees could not be planted, and even fences could not be run. The principle is recognized when the law gives a remedy in case overhanging structures are erected on adjoining land. The landowner owns at least as much of the space above the ground as they can occupy or use in connection with the land. See Hinman v. Pacific Air Transport, (1936). The fact that he does not occupy it in a physical sense — by the erection of buildings and the like — is not material. As we have said, the flight of airplanes, which skim the surface but do not touch it, is as much an appropriation of the use of the land as a more conventional entry upon it. We would not doubt that, if the United States erected an elevated railway over respondents’ land at the precise altitude where its planes now fly, there would be a partial taking, even though none of the supports of the structure rested on the land … We think that the landowner, as an incident to his ownership, has a claim to it, and that invasions of it are in the same category as invasions of the surface.

In this case … the damages were not merely consequential. They were the product of a direct invasion of respondents’ domain. As stated in United States v. Cress, (1917), ” … it is the character of the invasion, not the amount of damage resulting from it, so long as the damage is substantial, that determines the question whether it is a taking.”

The airplane is part of the modern environment of life, and the inconveniences which it causes are normally not compensable under the Fifth Amendment. The airspace, apart from the immediate reaches above the land, is part of the public domain. We need not determine at this time what those precise limits are. Flights over private land are not a taking, unless they are so low and so frequent as to be a direct and immediate interference with the enjoyment and use of the land. We need not speculate on that phase of the present case. For the findings of the Court of Claims plainly establish that there was a diminution in value of the property, and that the frequent, low-level flights were the direct and immediate cause. We agree with the Court of Claims that a servitude has been imposed upon the land …

The judgment is reversed, and the cause is remanded to the Court of Claims so that it may make the necessary findings in conformity with this opinion.

Reversed.

MR. JUSTICE BLACK, dissenting:

… Since the effect of the Court’s decision is to limit, by the imposition of relatively absolute Constitutional barriers, possible future adjustments through legislation and regulation which might become necessary with the growth of air transportation, and since, in my view, the Constitution does not contain such barriers, I dissent …

The Court’s opinion seems to indicate that the mere flying of planes through the column of air directly above respondents’ land does not constitute a “taking.” Consequently, it appears to be noise and glare, to the extent and under the circumstances shown here, which make the government a seizer of private property. But the allegation of noise and glare resulting in damages constitutes at best, an action in tort where there might be recovery if the noise and light constituted a nuisance, a violation of a statute, or were the result of negligence. … The concept of taking property, as used in the Constitution, has heretofore never been given so sweeping a meaning. The Court’s opinion presents no case where a man who makes noise or shines light onto his neighbor’s property has been ejected from that property for wrongfully taking possession of it. Nor would anyone take seriously a claim that noisy automobiles passing on a highway are taking wrongful possession of the homes located thereon, or that a city elevated train which greatly interferes with the sleep of those who live next to it wrongfully takes their property. …

Nor do I reach a different conclusion because of the fact that the particular circumstance which under the Court’s opinion makes the tort here absolutely actionable is the passing of planes through a column of air at an elevation of eighty-three feet directly over respondents’ property. It is inconceivable to me that the Constitution guarantees that the airspace of this Nation needed for air navigation is owned by the particular persons who happen to own the land beneath to the same degree as they own the surface below … I think that the Constitution entrusts Congress with full power to control all navigable airspace. Congress has already acted under that power. … “Navigable air-space” was defined as “airspace above the minimum safe altitudes of flight prescribed by the Civil Aeronautics Authority.” 49 U.S.C. § 180. Thus, Congress has given the Civil Aeronautics Authority exclusive power to determine what is navigable airspace subject to its exclusive control. …

… Today’s opinion is, I fear, an opening wedge for an unwarranted judicial interference with the power of Congress to develop solutions for new and vital and national problems. In my opinion, this case should be reversed on the ground that there has been no “taking” in the Constitutional sense.


Armstrong v. United States (1960)

364 U.S. 40 (1960)

Decision: Reversed and remanded
Vote: 6-3
Majority: Black, joined by Whittaker, Douglas, Brennan, and Warren
Concurrence: Stewart
Dissent: Harlan, joined by Frankfurter and Clark

MR. JUSTICE BLACK delivered the opinion of the Court.

In this action petitioners assert materialmen’s liens under state law for materials furnished to a prime contractor building boats for the United States, and seek just compensation under the Fifth Amendment for the value of their liens on accumulated materials and uncompleted work which have been conveyed to the United States.

The United States entered into a contract with the Rice Shipbuilding Corporation for the construction of 11 navy personnel boats. The contract provided that, in the event of default by Rice, the Government could terminate the contract and require Rice to transfer title and deliver to the Government all completed and uncompleted work, together with all manufacturing materials acquired by Rice for building the boats … Upon Rice’s default, the Government exercised its option as to 10 of the boat hulls still under construction; Rice executed an itemized “Instrument of Transfer of Title” conveying to the United States the hulls and all manufacturing materials then on hand; and the Government removed all of these properties to out-of-state naval ship-yards for use in the completion of the boats. When the transfer occurred, petitioners had not been paid for their materials, and they have not been paid since. Petitioners therefore contended that they had liens under Maine law …

Claiming valid liens on the hulls and manufacturing materials at the time they were transferred by Rice to the United States, petitioners asserted that the Government’s action destroyed their liens by making them unenforceable and that this constituted a taking of their property without just compensation, in violation of the Fifth Amendment. The Court of Claims, relying on United States v. Ansonia Brass & Copper Co., (1910), held that petitioners never acquired valid liens on the hulls or the materials transferred to the Government, and that therefore there had been no taking of any property owned by them …

The Court of Claims reached its conclusion from the correct premise that laborers and materialmen can acquire no liens on a “public work.” … It reasoned that, because the contract between Rice and the United States contemplated that title to the vessels would eventually vest in the Government, the Government had “inchoate title” to the materials supplied by petitioners, rendering such materials “public works” immune from the outset to petitioners’ liens. We cannot agree that a mere prospect that property will later be owned by the United States renders that property immune from otherwise valid liens.

The sovereign’s immunity against materialmen’s liens has never been extended beyond property actually owned by it …

The terms of the contract between Rice and the United States show conclusively that Rice, not the United States, had title to the property when petitioners furnished their materials … That title was to remain in Rice during performance of the work, and … private liens could attach to the property while Rice owned it …

The final question is whether the Government’s action constituted a “taking” of petitioners’ property interests within the meaning of the Fifth Amendment. Before the United States compelled Rice to transfer the hulls and all materials held for future use in building the boats, petitioners had valid liens under Maine law against both the hulls and whatever unused materials which petitioners had furnished. Before transfer, these lines were enforceable by attachment against both the hulls and all materials. After transfer to the United States, the liens were still valid, United States v. Alabama, (1941), but they could not be enforced, because of the sovereign immunity of the Government and its property from suit. The result of this was a destruction of all petitioners’ property rights under their liens, although, as we have pointed out, the liens were valid and had compensable value. Petitioners contend that destruction of their liens under the circumstances here is a “taking.” The United States denies this, largely on the premise that inability of petitioners to enforce their liens because of immunity of the Government and its property from suit cannot amount to a “taking.”

We hold that there was a taking of these liens for which just compensation is due under the Fifth Amendment. It is true that not every destruction or injury to property by governmental action has been held to be a “taking” in the constitutional sense. Omnia Commercial Co. v. United States, (1923). This case and many others reveal the difficulty of trying to draw the line between what destructions of property by lawful governmental actions are compensable “takings” and what destructions are “consequential,” and therefore not compensable …

The total destruction by the Government of all value of these liens, which constitute compensable property, has every possible element of a Fifth Amendment “taking,” and is not a mere “consequential incidence” of a valid regulatory measure. Before the liens were destroyed, the lienholders admittedly had compensable property. Immediately afterwards, they had none. This was not because their property vanished into thin air. It was because the Government, for its own advantage, destroyed the value of the liens, something … which no private purchaser could have done. Since this acquisition was for a public use, however accomplished, whether with an intent and purpose of extinguishing the liens or not, the Government’s action did destroy them, and, in the circumstances of this case, did thereby take the property value of those liens within the meaning of the Fifth Amendment … [The government] was the direct, positive beneficiary.

The Fifth Amendment’s guarantee that private property shall not be taken for a public use without just compensation was designed to bar Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole. A fair interpretation of this constitutional protection entitles these lienholders to just compensation here. Cf. Thibodo v. United States, (1955).

The judgment is reversed, and the cause is remanded to the Court of Claims for further proceedings to determine the value of the property taken.

Reversed and remanded.


Penn Central Transportation Co. v. City of New York (1978)

438 U.S. 104 (1978)

Decision: Affirmed
Vote: 6-3
Majority: Brennan, joined by Stewart, White, Marshall, Blackmun, and Powell
Dissent: Rehnquist, joined by Burger and Stevens

MR. JUSTICE BRENNAN delivered the opinion of the Court.

The question presented is whether a city may, as part of a comprehensive program to preserve historic landmarks and historic districts, place restrictions on the development of individual historic landmarks — in addition to those imposed by applicable zoning ordinances — without effecting a “taking” requiring the payment of “just compensation.” Specifically, we must decide whether the application of New York City’s Landmarks Preservation Law to the parcel of land occupied by Grand Central Terminal has “taken” its owners’ property in violation of the Fifth and Fourteenth Amendments …

New York City, … acting pursuant to a New York State enabling Act, adopted its Landmarks Preservation Law in 1965 …

The primary responsibility for administering the law is vested in the Landmarks Preservation Commission (Commission), a broad-based 11-member agency assisted by a technical staff … The Commission must approve in advance any proposal to alter the exterior architectural features of the landmark or to construct any exterior improvement on the landmark site, thus ensuring … due consideration of both the public interest in the maintenance of the structure and the landowner’s interest in use of the property …

In the event an owner wishes to alter a landmark site, three separate procedures are available through which administrative approval may be obtained. First, the owner may apply to the Commission for a “certificate of no effect on protected architectural features” …

Second, the owner may apply to the Commission for a certificate of “appropriateness.” … The final procedure — seeking a certificate of appropriateness on the ground of “insufficient return,” see § 207.0 — provides special mechanisms … to ensure that designation does not cause economic hardship …

On August 2, 1967, following a public hearing, the Commission designated the Terminal a “landmark” and designated the “city tax block” it occupies a “landmark site.” …

On January 22, 1968, appellant Penn Central, to increase its income, entered into a renewable 50-year lease and sublease agreement with appellant UGP Properties, Inc. (UGP) … Under the terms of the agreement, UGP was to construct a multistory office building above the Terminal. UGP promised to pay Penn Central $1 million annually during construction and at least $3 million annually thereafter …

Appellants UGP and Penn Central then applied to the Commission for permission to construct an office building atop the Terminal … The Commission denied a certificate of no exterior effect on September 20, 1968. Appellants then applied for a certificate of “appropriateness” as to both proposals. After four days of hearings at which over 80 witnesses testified, the Commission denied this application as to both proposals …

Appellants filed suit in New York Supreme Court [In New York State, the trial courts are called Supreme Courts] … claiming, inter alia, that the application of the Landmarks Preservation Law had “taken” their property without just compensation in violation of the Fifth and Fourteenth Amendments and arbitrarily deprived them of their property without due process of law in violation of the Fourteenth Amendment …

The [New York Supreme Court] Appellate Division concluded that all appellants had succeeded in showing was that they had been deprived of the property’s most profitable use, and that this showing did not establish that appellants had been unconstitutionally deprived of their property …

The issues presented by appellants are (1) whether the restrictions imposed by New York City’s law upon appellants’ exploitation of the Terminal site effect a “taking” of appellants’ property for a public use within the meaning of the Fifth Amendment, which, of course, is made applicable to the States through the Fourteenth Amendment, see Chicago, B. & Q. R. Co. v. Chicago, (1807), and, (2), if so, whether the transferable development rights afforded appellants constitute “just compensation” within the meaning of the Fifth Amendment. We need only address the question whether a “taking” has occurred.

[Appellants] first observe that the airspace above the Terminal is a valuable property interest, citing United States v. Causby, supra. They urge that the Landmarks Law has deprived them of any gainful use of their “air rights” above the Terminal and that, irrespective of the value of the remainder of their parcel, the city has “taken” their right to this superjacent airspace, thus entitling them to “just compensation” measured by the fair market value of these air rights …

The submission that appellants may establish a “taking” simply by showing that they have been denied the ability to exploit a property interest that they heretofore had believed was available for development is quite simply untenable …

Secondly, appellants … argue that it effects a “taking” because its operation has significantly diminished the value of the Terminal site. Appellants concede that the decisions sustaining other land use regulations, which, like the New York City law, are reasonably related to the promotion of the general welfare, uniformly reject the proposition that diminution in property value, standing alone, can establish a “taking,” … Appellants, moreover, also do not dispute that a showing of diminution in property value would not establish a “taking” if the restriction had been imposed as a result of historic district legislation … but appellants argue that New York City’s regulation of individual landmarks is fundamentally different from zoning or from historic district legislation because the controls imposed by New York City’s law apply only to individuals who own selected properties.

Stated baldly, appellants’ position appears to be that the only means of ensuring that selected owners are not singled out to endure financial hardship for no reason is to hold that any restriction imposed on individual landmarks pursuant to the New York City scheme is a “taking” requiring the payment of “just compensation.” Agreement with this argument would, of course, invalidate not just New York City’s law, but all comparable landmark legislation in the Nation. We find no merit in it …

We now must consider whether the interference with appellant’s property is of such a magnitude that “there must be an exercise of eminent domain and compensation to sustain [it].” Pennsylvania Coal Co. v. Mahon, (1922) …

The New York City law does not interfere in any way with the present uses of the Terminal. Its designation as a landmark not only permits, but contemplates, that appellants may continue to use the property precisely as it has been used for the past 65 years: as a railroad terminal containing office space and concessions. So the law does not interfere with what must be regarded as Penn Central’s primary expectation concerning the use of the parcel. More importantly, on this record, we must regard the New York City law as permitting Penn Central not only to profit from the Terminal but also to obtain a “reasonable return” on its investment.

Appellants, moreover, exaggerate the effect of the law on their ability to make use of the air rights above the Terminal in two respects. First, it simply cannot be maintained, on this record, that appellants have been prohibited from occupying any portion of the airspace above the Terminal. While the Commission’s actions in denying applications to construct an office building in excess of 50 stories above the Terminal may indicate that it will refuse to issue a certificate of appropriateness for any comparably sized structure, nothing the Commission has said or done suggests an intention to prohibit any construction above the Terminal. The Commission’s report emphasized that whether any construction would be allowed depended upon whether the proposed addition “would harmonize in scale, material, and character with [the Terminal].” Since appellants have not sought approval for the construction of a smaller structure, we do not know that appellants will be denied any use of any portion of the airspace above the Terminal.

Second, to the extent appellants have been denied the right to build above the Terminal, it is not literally accurate to say that they have been denied all use of even those preexisting air rights. Their ability to use these rights has not been abrogated; they are made transferable to at least eight parcels in the vicinity of the Terminal, one or two of which have been found suitable for the construction of new office buildings. Although appellants and others have argued that New York City’s transferable development rights program is far from ideal, the New York courts here supportably found that, at least in the case of the Terminal, the rights afforded are valuable … [albeit they] may well not have constituted “just compensation” if a “taking” had occurred … On this record, we conclude that the application of New York City’s Landmarks Law has not effected a “taking” of appellants’ property.

Affirmed.


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

482 U.S. 304 (1987)

Decision: Reversed and Remanded
Vote: 6-3
Majority: Rehnquist, joined by Brennan, White, Marshall, Powell, and Scalia
Dissent: Stevens joined in part by Blackmun and O’Connor (parts I, III)

CHIEF JUSTICE REHNQUIST delivered the opinion of the Court.

In this case, the California Court of Appeal held that a landowner who claims that his property has been “taken” by a land use regulation may not recover damages for the time before it is finally determined that the regulation constitutes a “taking” of his property.

In 1957, appellant First English Evangelical Lutheran Church purchased a 21-acre parcel of land in a canyon along the banks of the Middle Fork of Mill Creek in the Angeles National Forest. The Middle Fork is the natural drainage channel for a watershed area owned by the National Forest Service. Twelve of the acres owned by the church are flat land, and contained a dining hall, two bunkhouses, a caretaker’s lodge, an outdoor chapel, and a footbridge across the creek. The church operated on the site a campground, known as “Lutherglen,” as a retreat center and a recreational area for handicapped children.

In July, 1977, a forest fire denuded the hills upstream from Lutherglen, destroying approximately 3,860 acres of the watershed area and creating a serious flood hazard. Such flooding occurred on February 9 and 10, 1978, when a storm dropped 11 inches of rain in the watershed. The runoff from the storm overflowed the banks of the Mill Creek, flooding Lutherglen and destroying its buildings.

In response to the flooding of the canyon, appellee County of Los Angeles adopted Interim Ordinance No. 11,855 in January, 1979. The ordinance provided that

“[a] person shall not construct, reconstruct, place or enlarge any building or structure, any portion of which is, or will be, located within the outer boundary lines of the interim flood protection area located in Mill Creek Canyon. … ”

The California Court of Appeal has thus held that, regardless of the correctness of appellant’s claim that the challenged ordinance denies it “all use of Lutherglen,” appellant may not recover damages until the ordinance is finally declared unconstitutional, and then only for any period after that declaration for which the county seeks to enforce it. The constitutional question pretermitted in our earlier cases is therefore squarely presented here … We now turn to the question whether the Just Compensation Clause requires the government to pay for “temporary” regulatory takings.

… “Temporary” takings which, as here, deny a landowner all use of his property, are not different in kind from permanent takings, for which the Constitution clearly requires compensation.

… The valuation of property which has been taken must be calculated as of the time of the taking, and … depreciation in value of the property by reason of preliminary activity is not chargeable to the government … It would require a considerable extension [of precedent] … to say that no compensable regulatory taking may occur until a challenged ordinance has ultimately been held invalid.

Once a court determines that a taking has occurred, the government retains the whole range of options already available — amendment of the regulation, withdrawal of the invalidated regulation, or exercise of eminent domain. Thus we do not, as the Solicitor General suggests, “permit a court, at the behest of a private person, to require the … Government to exercise the power of eminent domain. … ” We merely hold that, where the government’s activities have already worked a taking of all use of property, no subsequent action by the government can relieve it of the duty to provide compensation for the period during which the taking was effective.

Here we must assume that the Los Angeles County ordinance has denied appellant all use of its property for a considerable period of years, and we hold that invalidation of the ordinance without payment of fair value for the use of the property during this period of time would be a constitutionally insufficient remedy. The judgment of the California Court of Appeal is therefore reversed, and the case is remanded for further proceedings not inconsistent with this opinion.

It is so ordered.

JUSTICE STEVENS, joined in part by JUSTICE BLACKMUN and JUSTICE O’CONNOR, dissenting.

This Court clearly has the authority to decide this case by ruling that the complaint did not allege a taking under the Federal Constitution, and therefore to avoid the novel constitutional issue that it addresses …

“Long ago it was recognized that ‘all property in this country is held under the implied obligation that the owner’s use of it shall not be injurious to the community.'” Keystone Bituminous Coal Assn. v. DeBenedictis, (1987) … Thus, in order to protect the health and safety of the community, government … surely may restrict access to hazardous areas — for example … land in the path of a potentially life-threatening flood. When a governmental entity imposes these types of health and safety regulations, it may not be “burdened with the condition that [it] must compensate such individual owners for pecuniary losses they may sustain, by reason of their not being permitted, by a noxious use of their property, to inflict injury upon the community.”

In this case, the legitimacy of the county’s interest in the enactment of Ordinance No. 11,855 is apparent from the face of the ordinance, and has never been challenged …

Thus, although the Court uses the allegations of this complaint as a springboard for its discussion of a discrete legal issue, it does not, and could not under our precedents, hold that the allegations sufficiently alleged a taking or that the county’s effort to preserve life and property could ever constitute a taking. As far as the United States Constitution is concerned, the claim that the ordinance was a taking of Lutherglen should be summarily rejected on its merits.

There may be some situations in which even the temporary existence of a regulation has such severe consequences that invalidation or repeal will not mitigate the damage enough to remove the “taking” label. This hypothetical situation is what the Court calls a “temporary taking.” But, contrary to the Court’s implications, the fact that a regulation would constitute a taking if allowed to remain in effect permanently is by no means dispositive of the question whether the effect that the regulation has already had on the property is so severe that a taking occurred during the period before the regulation was invalidated.

A temporary interference with an owner’s use of his property may constitute a taking for which the Constitution requires that compensation be paid. At least with respect to physical takings, the Court has so held …

But our cases also make it clear that regulatory takings and physical takings are very different in this, as well as other, respects. While virtually all physical invasions are deemed takings, see, e.g., Loretto, supra; United States v. Causby, (1946), a regulatory program that adversely affects property values does not constitute a taking unless it destroys a major portion of the property’s value … This diminution of value inquiry is unique to regulatory takings. Unlike physical invasions, which are relatively rare and easily identifiable without making any economic analysis, regulatory programs constantly affect property values in countless ways, and only the most extreme regulations can constitute takings. Some dividing line must be established between everyday regulatory inconveniences and those so severe that they constitute takings. …

Until today, we have repeatedly rejected the notion that all temporary diminutions in the value of property automatically activate the compensation requirement of the Takings Clause …

In my opinion, the question whether a “temporary taking” has occurred should not be answered by simply looking at the reason a temporary interference with an owner’s use of his property is terminated. Litigation challenging the validity of a land use restriction gives rise to a delay that is just as “normal” as an administrative procedure seeking a variance or an approval of a controversial plan. Just because a plaintiff can prove that a land use restriction would constitute a taking if allowed to remain in effect permanently does not mean that he or she can also prove that its temporary application rose to the level of a constitutional taking.

I respectfully dissent.


Nollan v. California Coastal Commission (1987)

483 U.S. 825 (1987)

Vote: 5-4, reversed
Majority: Scalia, joined by Rehnquist, White, Powell and O’Conner
Dissent: Brennan, joined by Marshall
Dissent: Blackmun
Dissent: Stevens, joined by Blackmun

JUSTICE SCALIA delivered the opinion of the Court.

The Nollans own a beachfront lot in Ventura County, California …

The Nollans originally leased their property with an option to buy …

The Nollans’ option to purchase was conditioned on their promise to demolish the bungalow and replace it. In order to do so … they were required to obtain a coastal development permit from the California Coastal Commission. On February 25, 1982, they submitted a permit application to the Commission in which they proposed to demolish the existing structure and replace it with a three-bedroom house in keeping with the rest of the neighborhood.

The Nollans were informed that their application had been placed on the administrative calendar, and that the Commission staff had recommended that the permit be granted subject to the condition that they allow the public an easement to pass across a portion of their property … The Nollans protested imposition of the condition, but the Commission overruled their objections and granted the permit subject to their recordation of a deed restriction granting the easement …

Had California simply required the Nollans to make an easement across their beachfront available to the public on a permanent basis in order to increase public access to the beach, rather than conditioning their permit to rebuild their house on their agreeing to do so, we have no doubt there would have been a taking. To say that the appropriation of a public easement across a landowner’s premises does not constitute the taking of a property interest, but “a mere restriction on its use” is to use words in a manner that deprives them of all their ordinary meaning. Indeed, one of the principal uses of the eminent domain power is to assure that the government be able to require conveyance of just such interests, so long as it pays for them …

The Commission argues that a permit condition that serves the same legitimate police power purpose as a refusal to issue the permit should not be found to be a taking if the refusal to issue the permit would not constitute a taking. We agree. Thus, if the Commission attached to the permit some condition that would have protected the public’s ability to see the beach notwithstanding construction of the new house — for example, a height limitation, a width restriction, or a ban on fences — so long as the Commission could have exercised its police power (as we have assumed it could) to forbid construction of the house altogether, imposition of the condition would also be constitutional … [T]he Commission’s assumed power to forbid construction of the house in order to protect the public’s view of the beach must surely include the power to condition construction upon some concession by the owner, even a concession of property rights, that serves the same end. If a prohibition designed to accomplish that purpose would be a legitimate exercise of the police power, rather than a taking, it would be strange to conclude that providing the owner an alternative to that prohibition which accomplishes the same purpose is not.

The evident constitutional propriety disappears, however, if the condition substituted for the prohibition utterly fails to further the end advanced as the justification for the prohibition … The lack of nexus between the condition and the original purpose of the building restriction converts that purpose to something other than what it was. The purpose then becomes, quite simply, the obtaining of an easement to serve some valid governmental purpose, but without payment of compensation. Whatever may be the outer limits of “legitimate state interests” in the takings and land use context, this is not one of them. In short, unless the permit condition serves the same governmental purpose as the development ban, the building restriction is not a valid regulation of land use, but “an out-and-out plan of extortion.” J. E. D. Associates, Inc. v. Atkinson, (1981) …

The Nollans’ new house, the Commission found, will interfere with “visual access” to the beach. That in turn (along with other shorefront development) will interfere with the desire of people who drive past the Nollans’ house to use the beach, thus creating a “psychological barrier” to “access.” The Nollans’ new house will also, by a process not altogether clear from the Commission’s opinion but presumably potent enough to more than offset the effects of the psychological barrier, increase the use of the public beaches, thus creating the need for more “access.” These burdens on “access” would be alleviated by a requirement that the Nollans provide “lateral access” to the beach …

It is quite impossible to understand how a requirement that people already on the public beaches be able to walk across the Nollans’ property reduces any obstacles to viewing the beach created by the new house. It is also impossible to understand how it lowers any “psychological barrier” to using the public beaches, or how it helps to remedy any additional congestion on them caused by construction of the Nollans’ new house. We therefore find that the Commission’s imposition of the permit condition cannot be treated as an exercise of its land use power for any of these purposes …

We view the Fifth Amendment’s Property Clause to be more than a pleading requirement, and compliance with it to be more than an exercise in cleverness and imagination. As indicated earlier, our cases describe the condition for abridgment of property rights through the police power as a “substantial advanc[ing]” of a legitimate state interest. We are inclined to be particularly careful about the adjective where the actual conveyance of property is made a condition to the lifting of a land use restriction, since in that context there is heightened risk that the purpose is avoidance of the compensation requirement, rather than the stated police power objective …

The Commission may well be right that it is a good idea, but that does not establish that the Nollans (and other coastal residents) alone can be compelled to contribute to its realization. Rather, California is free to advance its “comprehensive program,” if it wishes, by using its power of eminent domain for this “public purpose,” see U.S.Const., Amdt. 5; but if it wants an easement across the Nollans’ property, it must pay for it.

Reversed.

JUSTICE BRENNAN, with whom JUSTICE MARSHALL joins, dissenting.

Even if we accept the Court’s unusual demand for a precise match between the condition imposed and the specific type of burden on access created by the appellants, the State’s action easily satisfies this requirement. First, the lateral access condition serves to dissipate the impression that the beach that lies behind the wall of homes along the shore is for private use only. It requires no exceptional imaginative powers to find plausible the Commission’s point that the average person passing along the road in front of a phalanx of imposing permanent residences, including the appellants’ new home, is likely to conclude that this particular portion of the shore is not open to the public. If, however, that person can see that numerous people are passing and repassing along the dry sand, this conveys the message that the beach is in fact open for use by the public … The burden produced by the diminution in visual access — the impression that the beach is not open to the public — is thus directly alleviated by the provision for public access over the dry sand …

The deed restriction on which permit approval was conditioned would directly address … [the] threat to the public’s access to the tidelands. It would provide a formal declaration of the public’s right of access, thereby ensuring that the shifting character of the tidelands, and the presence of private development immediately adjacent to it, would not jeopardize enjoyment of that right …

The Court is therefore simply wrong that there is no reasonable relationship between the permit condition and the specific type of burden on public access created by the appellants’ proposed development …

Finally, the character of the regulation in this case is not unilateral government action, but a condition on approval of a development request submitted by appellants. The State has not sought to interfere with any preexisting property interest, but has responded to appellants’ proposal to intensify development on the coast. Appellants themselves chose to submit a new development application, and could claim no property interest in its approval. They were aware that approval of such development would be conditioned on preservation of adequate public access to the ocean. The State has initiated no action against appellants’ property; had the Nollans’ not proposed more intensive development in the coastal zone, they would never have been subject to the provision that they challenge …

The foregoing analysis makes clear that the State has taken no property from appellants. Imposition of the permit condition in this case represents the State’s reasonable exercise of its police power. The Coastal Commission has drawn on its expertise to preserve the balance between private development and public access by requiring that any project that intensifies development on the increasingly crowded California coast must be offset by gains in public access …

State agencies therefore require considerable flexibility in responding to private desires for development in a way that guarantees the preservation of public access to the coast. They should be encouraged to regulate development in the context of the overall balance of competing uses of the shoreline. The Court today does precisely the opposite, overruling an eminently reasonable exercise of an expert state agency’s judgment, substituting its own narrow view of how this balance should be struck. Its reasoning is hardly suited to the complex reality of natural resource protection in the 20th century. I can only hope that today’s decision is an aberration, and that a broader vision ultimately prevails.

I dissent.


Lucas v. South Carolina Coastal Council (1992)

505 U.S. 1003 (1992)

Decision: Reversed
Vote: 6-2
Majority: Scalia, joined by Rehnquist, White, O’Connor and Thomas
Concurrence: Kennedy (in judgment)
Dissent: Blackmun
Dissent: Stevens
Statement: Souter

JUSTICE SCALIA delivered the opinion of the Court.

In 1986, petitioner David H. Lucas paid $975,000 for two residential lots on the Isle of Palms in Charleston County, South Carolina, on which he intended to build single-family homes. In 1988, however, the South Carolina Legislature enacted the Beachfront Management Act, which had the direct effect of barring petitioner from erecting any permanent habitable structures on his two parcels. See § 48-39-290(A). A state trial court found that this prohibition rendered Lucas’s parcels “valueless … ” This case requires us to decide whether the Act’s dramatic effect on the economic value of Lucas’s lots accomplished a taking of private property under the Fifth and Fourteenth Amendments requiring the payment of “just compensation.”

Prior to Justice Holmes’s exposition in Pennsylvania Coal Co. v. Mahon, (1922), it was generally thought that the Takings Clause reached only a “direct appropriation” of property … Justice Holmes recognized in Mahon, however, that if the protection against physical appropriations of private property was to be meaningfully enforced, the government’s power to redefine the range of interests included in the ownership of property was necessarily constrained by constitutional limits …

Nevertheless, our decision in Mahon offered little insight into when, and under what circumstances, a given regulation would be seen as going “too far” for purposes of the Fifth Amendment … We have, however, described at least two discrete categories of regulatory action as compensable without case-specific inquiry into the public interest advanced in support of the restraint. The first encompasses regulations that compel the property owner to suffer a physical “invasion” of his property …

The second situation in which we have found categorical treatment appropriate is where regulation denies all economically beneficial or productive use of land … As we have said on numerous occasions, the Fifth Amendment is violated when land-use regulation “does not substantially advance legitimate state interests or denies an owner economically viable use of his land … ”

The functional basis for permitting the government, by regulation, to affect property values without compensation-that “Government hardly could go on if to some extent values incident to property could not be diminished without paying for every such change in the general law,” [Mahon]., at 413-does not apply to the relatively rare situations where the government has deprived a landowner of all economically beneficial uses …

It is correct that many of our prior opinions have suggested that “harmful or noxious uses” of property may be proscribed by government regulation without the requirement of compensation. For a number of reasons, however, we think the South Carolina Supreme Court was too quick to conclude that that principle decides the present case. The “harmful or noxious uses” principle was the Court’s early attempt to describe in theoretical terms why government may, consistent with the Takings Clause, affect property values by regulation without incurring an obligation to compensate-a reality we nowadays acknowledge explicitly with respect to the full scope of the State’s police power … We made this very point in Penn Central Transportation Co., where, in the course of sustaining New York City’s landmarks preservation program against a takings challenge, we rejected the petitioner’s suggestion that Mugler and the cases following it were premised on, and thus limited by, some objective conception of “noxiousness” …

Whether Lucas’s construction of single-family residences on his parcels should be described as bringing “harm” to South Carolina’s adjacent ecological resources thus depends principally upon whether the describer believes that the State’s use interest in nurturing those resources is so important that any competing adjacent use must yield …

When it is understood that “prevention of harmful use” was merely our early formulation of the police power justification necessary to sustain (without compensation) any regulatory diminution in value; and that the distinction between regulation that “prevents harmful use” and that which “confers benefits” is difficult, if not impossible, to discern on an objective, value-free basis; it becomes self-evident that noxious-use logic cannot serve as a touchstone to distinguish regulatory “takings”-which require compensation-from regulatory deprivations that do not require compensation. A fortiori the legislature’s recitation of a noxious-use justification cannot be the basis for departing from our categorical rule that total regulatory takings must be compensated. If it were, departure would virtually always be allowed …

South Carolina must identify background principles of nuisance and property law that prohibit the uses he now intends in the circumstances in which the property is presently found. Only on this showing can the State fairly claim that, in proscribing all such beneficial uses, the Beachfront Management Act is taking nothing.

The judgment is reversed, and the case is remanded for proceedings not inconsistent with this opinion.

So ordered.


Horne v. Department of Agriculture (2015)

576 U.S. 350 (2015)

Decision: Reversed
Vote: 8-1
Majority: Roberts, joined by Scalia, Kennedy, Thomas, Alito; Ginsburg, Breyer, and Kagan (Parts I and II only)
Concurrence: Thomas
Concur/Dissent: Breyer,, joined by Ginsburg and Kagan
Dissent: Sotomayor

Chief Justice Roberts delivered the opinion of the Court.

Under the United States Department of Agriculture’s California Raisin Marketing Order, a percentage of a grower’s crop must be physically set aside in certain years for the account of the Government, free of charge. The Government then sells, allocates, or otherwise disposes of the raisins in ways it determines are best suited to maintaining an orderly market. The question is whether the Takings Clause of the Fifth Amendment bars the Government from imposing such a demand on the growers without just compensation. …

The first question presented asks “Whether the government’s ‘categorical duty’ under the Fifth Amendment to pay just compensation when it ‘physically takes possession of an interest in property,’ Arkansas Game & Fish Comm’n v. United States, (2012), applies only to real property and not to personal property.” The answer is no. …

Nothing in the text or history of the Takings Clause, or our precedents, suggests that the rule is any different when it comes to appropriation of personal property. The Government has a categorical duty to pay just compensation when it takes your car, just as when it takes your home …

The reserve requirement imposed by the Raisin Committee is a clear physical taking. Actual raisins are transferred from the growers to the Government. Title to the raisins passes to the Raisin Committee … The Committee’s raisins must be physically segregated from free-tonnage raisins … Reserve raisins are sometimes left on the premises of handlers, but they are held “for the account” of the Government … The Committee disposes of what become its raisins as it wishes, to promote the purposes of the raisin marketing order.

Raisin growers subject to the reserve requirement thus lose the entire “bundle” of property rights in the appropriated raisins—“the rights to possess, use and dispose of ” them, Loretto, with the exception of the speculative hope that some residual proceeds may be left when the Government is done with the raisins and has deducted the expenses of implementing all aspects of the marketing order …

The second question presented asks “Whether the government may avoid the categorical duty to pay just compensation for a physical taking of property by reserving to the property owner a contingent interest in a portion of the value of the property, set at the government’s discretion.” The answer is no …

The Government contends that because growers are entitled to these net proceeds, they retain the most important property interest in the reserve raisins, so there is no taking in the first place. The dissent agrees, arguing that this possible future revenue means there has been no taking under Loretto. …

The fact that the growers retain a contingent interest of indeterminate value does not mean there has been no physical taking, particularly since the value of the interest depends on the discretion of the taker, and may be worthless, as it was for one of the two years at issue here. …

The third question presented asks “Whether a governmental mandate to relinquish specific, identifiable property as a ‘condition’ on permission to engage in commerce effects a per se taking.” The answer, at least in this case, is yes.

The Government contends that the reserve requirement is not a taking because raisin growers voluntarily choose to participate in the raisin market. According to the Government, if raisin growers don’t like it, they can “plant different crops,” or “sell their raisin-variety grapes as table grapes or for use in juice or wine.” …

“Let them sell wine” is probably not much more comforting to the raisin growers than similar retorts have been to others throughout history. In any event, the Government is wrong as a matter of law …

The Government and dissent rely heavily on Ruckelshaus v. Monsanto Co., (1984). There we held that the Environmental Protection Agency could require companies manufacturing pesticides, fungicides, and rodenticides to disclose health, safety, and environmental information about their products as a condition to receiving a permit to sell those products … [T]hose manufacturers were not subjected to a taking because they received a “valuable Government benefit” in exchange—a license to sell dangerous chemicals.

The taking here cannot reasonably be characterized as part of a similar voluntary exchange. In one of the years at issue here, the Government insisted that the Hornes turn over 47 percent of their raisin crop, in exchange for the “benefit” of being allowed to sell the remaining 53 percent … Raisins are not dangerous pesticides; they are a healthy snack. A case about conditioning the sale of hazardous substances on disclosure of health, safety, and environmental information related to those hazards is hardly on point …

Raisins … are private property—the fruit of the growers’ labor … Any physical taking of them for public use must be accompanied by just compensation.

The judgment of the United States Court of Appeals for the Ninth Circuit is reversed.

Justice Sotomayor, dissenting.

The Hornes claim, and the Court agrees, that the Raisin Marketing Order, (hereinafter Order), effects a per se taking under our decision in Loretto v. Teleprompter Manhattan CATV Corp., (1982). But Loretto sets a high bar for such claims: It requires that each and every property right be destroyed by governmental action before that action can be said to have effected a per se taking. Because the Order does not deprive the Hornes of all of their property rights, it does not effect a per se taking …

We have held that the government effects a per se taking when it requires a property owner to suffer a “permanent physical occupation” of his or her property. Loretto. In my view, however, Loretto—when properly understood—does not encompass the circumstances of this case because it only applies where all property rights have been destroyed by governmental action. Where some property right is retained by the owner, no per se taking under Loretto has occurred …

What our jurisprudence … makes plain is that a claim of a Loretto taking is a bold accusation that carries with it a heavy burden. To qualify as a per se taking under Loretto, the governmental action must be so completely destructive to the property owner’s rights—all of them—as to render the ordinary, generally applicable protections of the Penn Central framework either a foregone conclusion or unequal to the task. Simply put, the retention of even one property right that is not destroyed is sufficient to defeat a claim of a per se taking under Loretto

The Hornes do not use the raisins that are subject to the reserve requirement—which are, again, the only raisins that have allegedly been unlawfully taken—by eating them, feeding them to farm animals, or the like. They wish to use those reserve raisins by selling them, and they value those raisins only because they are a means of acquiring money. While the Order infringes upon the amount of that potential income, it does not inexorably eliminate it. Unlike the law in Loretto, see 458 U. S., at 436, the Order therefore cannot be said to have prevented the Hornes from making any use of the relevant property.

Because a straightforward application of our precedents reveals that the Hornes have not suffered a per se taking, I would affirm the judgment of the Ninth Circuit. The Court reaches a contrary conclusion only by expanding our per se takings doctrine in a manner that is as unwarranted as it is vague. I respectfully dissent.


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