Community Rights Counsel Community Rights Counsel Community Rights Counsel Community Rights Counsel

About CRC

Legal Resources

Community Rights Report Newsletter

Support Us

Newsroom

Redefining Federalism

Warming Law Blog


Community Rights Counsel
1301 Connecticut Avenue, NW, Suite 502
Washington, DC 20036
Phone: 202-296-6889
Fax: 202-296-6895


Takings Watch Newsletter -
2002 Feature Case Archive



DECEMBER 2002

Ohio Supreme Court Trashes Parcel-as-a-Whole Rule
State ex rel. R.T.G., Inc. v. State, No. 01-748 (Ohio, Dec. 18, 2002)

We certainly expected the property rights movement to use every trick in the book to distinguish the very favorable Tahoe ruling. What we didn't expect is for judges to ignore the ruling altogether. But in a radical departure from Tahoe and decades of other precedent, the Ohio Supreme Court has ordered the state to compensate a mining company for the value of coal rights it claimed were taken to protect a village's drinking water supply. The fractured plurality opinion expressly refused to apply U.S. Supreme Court precedent on the severability of coal rights from other property interests, ruling that the Ohio Takings Clause affords takings claimants greater protection than the similarly worded federal Takings Clause.

Because surface mining threatened the sole source aquifer that supplies drinking water for the Village of Pleasant City, Ohio, the state declared 833 acres unsuitable for mining, much of which was owned by RTG in fee simple or through purchase or lease of mineral rights. RTG filed a takings challenge to compel the state to appropriate its coal interest in the restricted area.

In finding a discrete and severable property interest in coal rights, the Ohio Supreme Court rejected decades of takings precedent, including Penn Central, Keystone, and Tahoe. Without explaining why, the court held that the Ohio Constitution provides greater protection than the Fifth Amendment. The court then ruled that the mining ban worked a taking of all RTG property in the affected area regardless of whether surface rights or adjacent parcels retained value. What's more, the court basically ignored the potential effect of mining on the region's aquifer, simply holding that "mining itself is not a nuisance."

This is a stunning departure from established law that reopens debate in Ohio on the parcel-as-a-whole rule and casts into doubt whether background principles of Ohio nuisance law are broad enough to protect against environmental degradation. The State has sought reconsideration, and CRC has moved for leave to support the request. The decision can be viewed at: http://www.sconet.state.oh.us/rod/documents/0/2002/2002-Ohio-6716.doc


NOVEMBER 2002

Can Granting a Permit Cause a Taking?
Swartz v. Beach, 2002 WL 31259995 (D.Wyo. Oct. 4, 2002),
Daniels v. Area Plan Comm'n of Allen County, 306 F.3d 445 (7th Cir. 2002)

Takings case usually follow familiar patterns: the government enacts land-use controls or denies a permit to protect the community, and then an affected landowner claims the government has taken the land. A host of cases govern this common scenario. But can a taking result when the government grants a permit? It's a question two courts have recently considered.

In Swartz, a Wyoming rancher filed a takings challenge to the state's approval of a Clean Water Act discharge permit for a neighboring gas company that produces coal bed methane. The rancher contends that methane-contaminated discharge flowing through a creek on his property made his ranch unsuitable for irrigation and caused soil damage. The merits have not been decided, but the claim survived a motion to dismiss. In allowing the matter to proceed, the court likened the case to physical possession. In addition, the court cited an 1872 Supreme Court case indicating that "where water is superinduced onto private property and that water destroys the land's usefulness, it is a taking within the meaning of the Fifth Amendment." It remains to be seen whether the rancher will prove his claim at trial.

In Daniels, owners of lots within a subdivision claimed a taking when the government granted a commercial development permit and vacated covenants that restricted the lots to residential use. By allowing a private party to develop commercial properties within the subdivision, the lot owners argued, the government improperly took a property right for the benefit of a private developer. After finding that the case met ripeness and exhaustion standards, the Seventh Circuit agreed. Although the permit did not reduce the value of the plaintiffs' property, the court held that under Indiana law a restrictive covenant constitutes a constitutionally protected property interest. The court affirmed the district court's injunction prohibiting the county from vacating the covenants for a private purpose.

Swartz and Daniels are reminiscent of the 1998 ruling in Bormann v. Board of Supervisors, where the Iowa Supreme Court held that the government worked a taking of a "nuisance easement" on nearby land where it approved applications for agricultural use. Of course, a permit denial in any of these cases might have prompted a takings challenge by the applicant. These cases illustrate well that developers' claims to a "right to develop" frequently are counterbalanced by claims by neighboring landowners of a "right" to be free from the harmful spillover effects of development.


OCTOBER 2002

Oregon Supreme Court Invalidates Measure 7
League of Oregon Cities v. State of Oregon, 2002 WL 31235582 (Oct. 4, 2002)

The Oregon Supreme Court dealt property rights radicals a serious set back this month, overturning a referendum measure that required the government to pay property owners when state regulations affected their property values. The extreme proposal was a sleeper, one of 26 measures to appear on the ballot in 2000, and its unexpected passage stunned planners in Oregon and around the country.

Writing for a unanimous court, Chief Justice Wallace Carson held that the ballot measure impermissibly combined a property rights compensation proposal with another proposal that infringed First Amendment guarantees because the measure denied compensation to businesses restricted from selling sexually explicit materials.

This combination of property rights and First Amendment issues ran afoul of Oregon rules requiring that ballot measures be voted on separately unless they are closely related. "By incorporating both types of substantive changes that are not closely related, Measure 7 makes 'two or more amendments' to the Oregon Constitution that the voters were required to have voted on separately," the court held.

Had it taken effect, Measure 7 would have been the most sweeping compensation provision ever enacted by the voters of a state, requiring compensation for virtually all diminutions of value related to the state's regulatory efforts. State analysts estimated the measure could have cost Oregon governments as much as $5.4 billion. Moreover, it threatened to undermine regional planning efforts in Portland, whose urban growth boundary program is considered by many a model for the nation.

Thanks to the court's decision, Oregon planning is alive and well for now, but supporters of Measure 7 can be expected to push similar referenda in the future. Oregon's episode should serve as a reminder of the constant vigilance required to defeat radical property rights measures. Indeed, a similar referendum is on the ballot this year in Nevada County, California.


SEPTEMBER 2002

Court Rules Salmonella Protections Are A Taking:
Rose Acre Farms, Inc. v. United States, No 92-710C (Cl. Ct., August 29, 2002)

On August 29, Judge Bohdan Futey of the U.S. Court of Federal Claims dealt a shocking blow to the U.S. Department of Agriculture's efforts to protect the nation's food supply from salmonella poisoning. Ruling in favor of one of the largest egg producers in the nation, the Court held that the government's attempt to restrict the sale of contaminated eggs constituted a "taking" of private property and awarded more than $6 million in compensation, plus interest from 1990 (the total award will greatly exceed $10 million).

The Center for Disease Control receives reports of 40,000 cases of salmonellosis in the United States each year. It estimates that the bacteria afflicts 1.4 million people and is responsible for 1,000 deaths annually. Three salmonella outbreaks that sickened 450 people in 1990 were traced back to Rose Acre's egg farms. The USDA then designated hen houses on three of the plaintiff's farms as "test flocks." After tests came back positive, the agency forbade the company from selling those eggs from those houses in interstate commerce. Rose Acre was allowed, however, to sell its eggs in the pasteurization market (pasteurization kills bacteria), where eggs sold for 41 cents per dozen rather than 59 cents per dozen for table eggs. In addition, the USDA removed, killed, and tested 6,741 hens, of which about two percent tested positive for salmonellosis. The government relaxed its oversight on Rose Acre after 21 months of quarantine.

Rose Acre first challenged these protections in federal court in Indiana, claims that were forcefully rejected on appeal by the Seventh Circuit. In an opinion authored by Frank Easterbrook (a conservative appointed by President Reagan who is not noted for his sympathy for federal standards), the appeals court found that the USDA's efforts were well within the agency's authority and neither arbitrary nor capricious. See Rose Acre Farms, Inc. v. Madigan, 956 F.2d 670, 672-74 (7th Cir. 1992).

Despite this circuit court opinion upholding the USDA's conduct, Judge Futey based his taking finding in large part on his belief that the agency's actions were inefficient. Judge Futey also found a taking even though the company suffered at most only a 30 percent diminution in the value of the quarantined eggs. To our knowledge, no court has ever found a regulatory taking based on this level of economic impact.

Let's hope for a quick reversal on appeal, or else we might be forced to pass on the hollandaise sauce.


AUGUST 2002

K & K Construction and the Wayward Michigan Court of Claims

The Michigan Court of Claims seems bound and determined to find a taking in the case of K&K Construction, Inc. v. Department of Envtl. Quality, File No. 88-12120-CM (Mich. Cl. Ct. May 24, 2002). Despite a previous reversal in the Michigan Supreme Court, the Claims Court recently reaffirmed a multi-million dollar takings award against the state's top environmental agency. In a decision that will most likely be appealed, the court so ruled despite evidence that the land retained significant economic value.

In 1988, the landowners proposed a comprehensive development scheme that involved three of their four contiguous parcels. The state refused to allow the landowners to fill wetlands on one of the properties. In its first decision, the Claims Court ruled that "parcel one"- a 55-acre tract that contains some 25 acres of protected wetlands - was the only property relevant to the takings analysis, and that the state's wetland protections rendered the parcel commercially worthless and worked a taking. The trial court awarded the landowners $3.5 million for a taking of the wetland portion and another $500,000 for a temporary taking of the buildable land. On appeal, the Michigan Supreme Court rejected the trial court's analysis, ordering the court to expand the denominator to include at least three of the four parcels.

In its latest decision, the Claims Court fixed the overall value of the four parcels at $9,339,181. It then excluded "parcel four" because the claimants acquired that land after the date of the alleged taking. Although the remaining land clearly retains substantial value, the court insisted that the "loss of parcel one far overshadows parcels two and three in area and value" and concluded that the wetland protections effected a taking because they deprived the landowners of nearly two-thirds of the value of the entire parcel. The ruling contains only a one-page Penn Central analysis that fails to cite a single case in support of the decision.

It clearly will take more litigation on appeal to set the trial court straight (once again).


JULY 2002

Federal Circuit Issues Key Decision on Permanent Physical Occupations:
Boise Cascade Corp. v. United States (Fed. Cir. 2002)

On July 19, the Federal Circuit Court of Appeals handed down an important ruling limiting the scope of physical takings. In Boise Cascade Corp. v. United States, 2002 WL 1586329, the court rejected a timber company's argument that the presence of spotted owls and occasional intrusions of government biologists on Boise's timber lands constituted a taking. In so doing, the Court carefully distinguished between temporary invasions and permanent occupations, narrowing its more expansive decision in Hendler v. United States, 952 F.2d 1364 (Fed. Cir. 1991).

Since the Supreme Court's decision in Loretto v. Teleprompter Manhattan CATV, 458 U.S. 419 (1982) -- which holds that a government-authorized, permanent physical occupation of land is a per se taking -- lower courts have struggled with the concepts of "permanency" and "occupation." In Hendler, the Federal Circuit held that monitoring wells installed by the government on property neighboring a Superfund site were permanent physical occupations within the meaning of Loretto. The ruling contained sweeping language declaring that "'permanent' does not mean forever or anything like it." Rather, the court defined "permanent" as "a term of finite duration" that could extend for "less than one year." Other courts criticized Hendler's definition of permanent as "contorted" and "in clear conflict with Supreme Court precedent, particularly Loretto." E.g., Juliano v. Montgomery-Otsego-Schoharie Solid Waste Mgmt. Auth., 983 F. Supp. 319, 327-28 (N.D.N.Y. 1997).

Boise Cascade limits Hendler to its facts and relegates its troubling discussion of permanency to the status of discredited dicta. In the wake of Boise Cascade, Hendler now stands only for the proposition that "when the government enters private land, sinks 100-foot deep steel reinforced wells surrounded by gravel and concrete, and thereafter proceeds to regularly enter the land to maintain and monitor the wells over a period of years, a per se taking under Loretto has occurred." Boise Cascade reaffirms that to be successful under Loretto, a per se claim must involve a genuinely permanent occupation, one that forever denies the owner any power to control the use of the occupied land. Moreover, the court clarified that the government could not be liable for a physical taking based on endangered species protections because it "has no control over where the spotted owls nest, and it did not force the owls to occupy Boise's land."

The Boise Cascade court also reaffirmed the principle established in United States v. Riverside Bayview Homes, Inc. (U.S. 1985) that no taking occurs where the government merely requires a landowner to obtain a permit before engaging in a particular land use. The court rejected Boise Cascade's contention that normal delays in the permitting process can give rise to a taking, and its bizarre assertion that Riverside Bayview was somehow undercut by the Supreme Court's recent ruling in Tahoe-Sierra.

Government attorneys should find Boise to be very helpful precedent when defending against Loretto-styled physical occupation claims. Kudos to Kathryn Kovacs and her colleagues at the U.S. Department of Justice on this important victory.


JUNE 2002

Machipongo: Key Victory on Parcel and Nuisance Issues

Fresh on the heels of victory in the Supreme Court in Tahoe-Sierra, community rights scored another important win in the Pennsylvania Supreme Court on May 30, 2002. In Machipongo Land and Coal Co. v. Commonwealth, 2002 WL 1070113, the court unanimously reversed a lower court's ruling that mining restrictions designed to protect water quality worked a taking.

The state's environmental protection agency designated a portion of Machipongo's land "unsuitable for mining" in May 1992 to protect the Goss Run watershed. The designation was based on findings that coal mining within the watershed has a high potential to increase pollution in Goss Run, thereby impairing the use of the stream as an auxiliary water supply and habitat for trout. Machipongo owns 1,000 acres of land in the area, and the mining restrictions covered some 373 acres. Machipongo and other affected property owners claimed the regulation took their property without compensation.

A key issue in the case concerned how to define the relevant parcel. The Machipongo court noted that although Lucas and Palazzolo might have created some confusion regarding parcel definition, Tahoe-Sierra reaffirmed the validity of the parcel-as-a-whole rule. The court therefore concluded that the right to mine coal could not be separated from the surface rights. Because Machipongo's parcel as a whole retained considerable value, the court found no categorical taking of its land.

The court also overturned the lower court's ruling that coal mining could not constitute a public nuisance. The court made clear that the nuisance inquiry is flexible, stating that "[t]he rules and understanding as to the uses of land that are acceptable and unacceptable have changed over time." It held that "the public has a right not to suffer acid mine discharge into its public waters," and that "if the Commonwealth is able to show that the Property Owners' proposed use of the stream would unreasonably interfere with the public right to unpolluted water, the use, as a nuisance, may be prohibited without compensation." The ruling may be the most expansive application of nuisance principles by any court in a takings case. Indeed, the court held that the Commonwealth need not show a certainty of harm, but instead should prevail if it can show simply that there is a "high potential" that mining would harm the stream. Machipongo is a must-read for any government attorney defending environmental protections against takings attacks.

Kudos to Joe Pizarchik and his colleagues in the Pennsylvania Attorney General's office. CRC filed an amicus brief on behalf of a large coalition of municipal groups in support of the state.


MAY 2002

The Plane View On Takings:
City of Austin v. Travis County Landfill Company (Tex. 2002)

On March 28, 2002, the Texas Supreme Court issued a ruling that emphatically reaffirms the right of local communities to adopt reasonable airport zoning designed to protect public safety. In City of Austin v. Travis County Landfill Co., 2001 WL 1826849, the Texas high court reversed the lower courts' $2.95 million judgment in favor of the landowner, holding that to win an overflight takings claim, the "landowner must show that the overflight effects impacted the land directly, immediately, and substantially so that the property was unusable for its intended purpose."

Travis County Landfill owns a 133-acre tract about one-half mile south of the main runway at Bergstrom Air Force Base. After the military base closed in 1942, the property reverted to the City of Austin, which then converted it into a municipal airport and began civilian flights in 1997. Although the claimant's predecessor had granted the federal government an avigation easement for military overflights, it argued that the easement does not include the civilian overflights, which precluded vertical expansion of the landfill.

The Texas Supreme Court observed that the air is a public highway and airspace is generally part of the public domain, and thus inconveniences caused by overflights generally are not compensable. Under binding precedent, compensable overflight takings typically are limited to situations where aircraft cause severe noise, vibrations, or fumes, and thereby render the land unusable for its intended purpose. Invasions of airspace accompanied by a mere loss in value are insufficient to support an overflight claim, the court ruled.

In the February 2002 issue of Takings Watch, our "On the Horizon" column discussed County of Clark v. Tien Fu Hsu, a disturbing airport zoning ruling by a Nevada district court now on appeal to the state supreme court. In a radical extension of United States v. Causby (U.S. 1946) and other overflight precedents -- which hold that an overflight taking occurs where overflights are "so low and so frequent as to be a direct and immediate interference with the enjoyment and use of the land" -- the district court awarded the claimants more than $22 million for an overflight taking even though the challenged ordinance imposes only height restrictions and there is no evidence that a plane ever will fly over the claimants' land.

We hope the well-reasoned ruling by the Texas Supreme Court in Travis County Landfill will encourage the Nevada Supreme Court to follow suit.


APRIL 2002

Happy Earth Day, Lake Tahoe!

On April 23, the U.S. Supreme Court gave a wonderful Earth Day present to Lake Tahoe and local officials across the nation in Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency. The ruling rejects a regulatory takings challenge to a 32-month planning moratorium imposed to allow for the preparation of a regional plan to protect Lake Tahoe from pollution caused by uncontrolled development.

At long last, Tahoe breaks a string of government losses in regulatory takings rulings by the Supreme Court, and it does so in dramatic fashion. Although the opinion is narrow on the surface -- addressing only whether the moratorium worked a per se taking under Lucas v. South Carolina Coastal Council (U.S. 1992) -- it addresses key issues in a way that will be very useful to municipal lawyers in future cases. It's the best news from the Court on takings in 20 years.

Authored by Justice Stevens, the comprehensive and elegant majority opinion emphatically reaffirms the parcel-as-a-whole rule (rejecting both conceptual and physical segmentation), notwithstanding confusing dicta in Lucas and Palazzolo v. Rhode Island (U.S. 2001) suggesting that the Court might revisit the rule. Tahoe declares that both "the metes and bounds" and "the term of years" of the owner's interest must be considered under the parcel-as-a-whole rule. Tahoe should be submitted as supplemental authority in every pending appeal that involves a relevant-parcel issue.

The opinion also preserves the important analytical divide between physical and regulatory takings, rejecting strenuous efforts by the Tahoe claimants and their amici to blur the distinction. It limits the reach of the Lucas per se rule to regulations that completely eliminate all value, rejecting the oft-heard argument that Lucas recognizes a constitutional right to build and that regulations can deny all economically viable use even where land retains value. It construes First English narrowly as a remedies case. It defers to the "consensus of the planning community" regarding the importance of moratoria. It weighs concerns about "inefficient and ill-conceived growth" in its consideration of fairness. It recognizes that land-use restrictions, even severe restrictions, may enhance property values and generate a reciprocity of advantage. And unlike several prior takings opinions, which drip with skepticism about government regulation, Tahoe acknowledges the importance of thoughtful, careful planning in protecting our communities from harmful land use.

To be sure, the ruling recognizes that unreasonable moratoria are subject to challenge under the multifactor test set forth in Penn Central Transp. Co. v. New York City (U.S. 1978). It also states that, absent special circumstances, moratoria extending beyond one year might warrant careful scrutiny. At the same time, however, the Court acknowledges that several state legislatures have authorized moratoria for up to two years, and it concludes that time limits are best left to legislative bodies, not the judiciary.

The two swing Justices, Kennedy and O'Connor, fully embrace the majority's analysis without the confusing concurrences generated by earlier rulings. Indeed, one observer aptly described Tahoe as a Declaration of Independence by the Court's center on takings issues. Their separate opinions in cases including Lucas and Palazzolo were signals that they were unwilling to follow the property rights movement over the cliff, and Tahoe serves as the exclamation point on their break from the ideologues.

Kudos to John Marshall at the Tahoe Regional Planning Agency, John Roberts (who presented the Agency's case at oral argument), and the Agency's entire legal team. CRC filed an amicus brief on behalf of a large coalition of state and local officials. The opinion, briefs, argument transcript, and other information on Tahoe are available Community Rights Counsel's newly designed web site at www.communityrights.org.


March 2002

A Victory for Affordable Housing

On March 4, 2002, the California Supreme Court issued a powerful ruling in favor of affordable housing advocates, rejecting a takings challenge to efforts by San Francisco to address its low-income housing crisis through reasonable restrictions on the conversion of residential hotels to tourist use. See San Remo Hotel v. San Francisco, 117 Cal. Rptr. 2d 269.

San Francisco enacted the challenged ordinance based on findings that the City suffers a severe shortage of affordable rental housing; many elderly, disabled, and low-income persons reside in residential hotels; and available residential hotel units have decreased dramatically in recent years due to conversion to tourist use. The affordable housing ordinance requires no changes to existing property use, but instead requires owners who seek greater profits by converting their properties to tourist use to build affordable replacement units, or pay a fee based on a portion of the replacement costs.

In upholding the ordinance, the Court ruled that the law bears a reasonable relationship to the legitimate public interest in providing affordable housing. The Court refused to apply the rough proportionality test established in Dolan v. City of Tigard (U.S. 1994) because it concluded that the fee is legislative, not imposed on an individualized basis. The ruling is good news not only for cities and counties that have affordable housing shortages, but for any municipality that seeks to protect community rights through the imposition of fees on a general class of landowners.

In responding to the claimants' argument that the affordable housing law unfairly singles out hotels to bear a disproportionate burden, the Court provided this insightful analysis of reciprocity of advantage: "[T]he necessary reciprocity of advantage lies not in a precise balance of burdens and benefits accruing to property from a single law, or in an exact equality of burdens among all property owners, but in the interlocking system of benefits, economic and noneconomic, that all the participants in a democratic society may expect to receive, each also being called upon from time to time to sacrifice some advantage, economic or noneconomic, for the common good." In a bit of rhetorical flourish, the Court concluded: "If, as Justice Holmes warned, the Constitution 'does not enact Mr. Herbert Spencer's Social Statics' [citing Lochner], it just as surely does not enact the late Robert Nozick's Minimal State." CRC filed an amicus brief in support of San Francisco on behalf of 67 California Cities, the California State Association of Counties, and the International Municipal Lawyers Association.


February 2002

Does the Agins "Substantially Advance" Test Still Exist?

In a startling concurrence in the 1998 case of Eastern Enterprises v. Apfel, Justice Kennedy explained that the Takings Clause was “the wrong legal lens” to view disputes about the extent to which regulatory means advance government ends. Four other Justices in dissent concurred. Thus, a majority of the U.S. Supreme Court seemed ready and willing to abandon the Court’s cryptic assertion in Agins v. City of Tiburon (U.S. 1980) that "[t]he application of a general zoning law to particular property effects a taking if the ordinance does not substantially advance legitimate state interests * * *."

The Supreme Court of New Jersey recently acted on the U.S. Supreme Court’s invitation to revisit the Agins test in Pheasant Bridge Corp. v. Township of Warren, 777 A.2d 334 (N.J. 2001). The ordinance at issue in Pheasant Bridge increases the minimum lot size for residential development. The purpose of the ordinance is to protect wetlands, steep slopes, and other ecologically sensitive land. The trial court ruled that the ordinance, as applied to Pheasant Bridge's land, does not advance a legitimate government interest because the land does not implicate the environmental concerns underlying the ordinance. The state Supreme Court deferred to that ruling and invalidated the ordinance as applied.

The landowner then requested compensation for a temporary taking during the time the ordinance was in effect. The New Jersey Supreme Court rejected the request, quoting the assertion in First English that the Takings Clause is designed "to secure compensation in the event of otherwise proper interference [with property rights] amounting to a taking." The Court further noted that in Eastern Enterprises, a majority of U.S. Supreme Court Justices disavowed the Agins means-end inquiry as a standard of takings liability. The Pheasant Bridge court saw no meaningful difference between the delay required to seek a variance and the delay occasioned by having a court declare an ordinance invalid as applied. Moreover, the Court observed that "[t]he overwhelming weight of authority * * * requires that a plaintiff demonstrate deprivation of all or substantially all economically beneficial uses of property to sustain a claim for a temporary taking." Because the claimant retained economically viable use of the land while the ordinance was in effect, its takings claim failed.

The landowner has requested review by the U.S. Supreme Court. If the ruling stands, it will serve as very helpful precedent that limits the application of the Agins “substantially advance” test.


January 2002

Good News on Relevant Parcel and Penn Central From the Colorado Supreme Court

Two of the most important issues in takings jurisprudence concern the definition of the relevant parcel and the application of the Penn Central test for non-per se takings. The Colorado Supreme Court recently provided very useful guidance on both issues in Animas Valley Sand & Gravel, Inc. v. Board of County Comm'rs, 2001 WL 1598634 (Colo. Dec. 17, 2001), a takings challenge to restrictions imposed by the La Plata County land-use plan on a mining company.

Drawing on both Colorado and federal case law for guidance, the court ruled that to prevail under Penn Central, a claimant "must show that it falls into the rare category of a landowner whose land has a value slightly greater than de minimis but, nonetheless, given the totality of the circumstances, has had its land taken by a government regulation." The court adopted this slightly-greater-than-de-minimis standard in part because after "[r]eading Palazzolo together with the [U.S. Supreme] Court's prior precedent, it is apparent that the level of interference must be very high" for land-use regulation to constitute a taking. The court viewed Penn Central as a "safety valve to protect the landowner in the truly unusual case."

The Animas court also rejected the claimant's contention that the relevant parcel for takings analysis should be limited to the claimant’s mineral rights, or that it should look only to the geographic portion of the claimant's land affected by the challenged government action. Instead, the court held that the relevant parcel consists of the entire contiguous parcel of land owned by the mining company, citing Penn Central, Keystone, and Dolan.

Like Palazzolo, Animas states that claimants are not limited to the Lucas per se test in seeking relief under the Takings Clause. Yet Animas reaffirms that in pursuing a non-per se claim, a landowner must still show that regulation is extremely severe — the functional equivalent of an expropriation — to constitute a compensable taking.

To read Feature Cases from our 2001 issues, click here.

Back to CRC Home

If you have questions or comments about this website or
Community Rights Counsel email us!

© 2005 Community Rights Counsel. All rights reserved.