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
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
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:
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
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.
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.
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
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
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.
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
It clearly will take more litigation on appeal to set the
trial court straight (once again).
Federal Circuit Issues Key Decision on Permanent Physical
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.
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.
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
Machipongo: Key Victory on Parcel and Nuisance
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
The Plane View On Takings:
City of Austin v. Travis County Landfill Company (Tex.
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
We hope the well-reasoned ruling by the Texas Supreme Court
in Travis County Landfill will encourage the Nevada Supreme
Court to follow suit.
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
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.
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.
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.
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