Appendix A Case Law Development of the Just Compensation Clause Federal just compensation clause jurisprudence was essentially undeveloped before the Civil War. The Supreme Court declined to uphold just compensation clause claims filed against the states after Barron v. Mayor and City Council of Baltimore, 32 U.S. (7 Pet.) 243, 250-51 (1833) (just compensation clause does not apply to state takings because Bill of Rights does not apply to state governments). Just compensation clause claims against the federal government were rarely heard. The Court held that the federal government had taken property without just compensation on only one occasion: in the infamous Dred Scott decision. Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1857). The enactment of the Fourteenth Amendment, however, changed the situation. In Fallbrook Irrigation District v. Bradley, 164 U.S. 112 (1896), and in Missouri Pac. Ry. Co. v. Nebraska, 164 U.S. 403 (1896), the Supreme Court held that the Fourteenth Amendment's due process clause required that land taken by a state be used for a public purpose. Finally, in 1897, the Court held that Fourteenth Amendment due process required that a state's taking of property must be for a public use and must involve the payment of just compensation. Chicago, Burlington & Quincy R.R. Co. v. Chicago, 166 U.S. 226 (1897). Although strictly speaking this holding indicated that the public use and just compensation requirements were elements of due process, the Court subsequently cited Chicago, Burlington as incorporating the just compensation clause into the Fourteenth Amendment. See Webb's Fabulous Pharmacies, Inc. v. Beckwith, 449 U.S. 155, 159 (1980). The Supreme Court has entertained a large number of just compensation clause claims (against state and federal governments) since Chicago, Burlington. Three types of questions have been addressed in just compensation clause cases: (1) is there a taking?; (2) is the taking for a public use?; and (3) how much compensation must be paid? 'This interpretation is questionable, inasmuch as Congress could have but chose not to include the just compensation clause's language when it enacted the Fourteenth Amendment. As a practical matter, however, this fact may not be terribly significant; 49 of the 50 states have enacted their own just compensation clauses, many of which closely track the wording of the federal clause. I. Is There a Taking? The threshold question for just compensation clause analysis is whether a particular government action constitutes a "taking." Supreme Court holdings as to whether a "taking" exists appear to turn on the degree of loss to an individual and the reasonableness of the government's actions in relation to the private property affected. This "reasonableness" approach yields ad hoc decisionmaking. Moreover, it appears to ignore the principle that (consistent with original meaning) property is taken whenever government action measurably diminishes value by interfering with legally protected property rights. In Pumpelly v. Green Bay Co., 80 U.S. (13 Wall.) 166 (1871), the Supreme Court, interpreting the "taking" clause of the Wisconsin state constitution, found that a serious inter ruption in the use of property here, the flooding of land by a government dam -- constituted a taking under state law.2 In Peabody v. United States, 231 U.S. 530 (1913), the Supreme Court found no taking when the federal government merely placed a battery in the vicinity of claimant's resort hotel. The battery apparently fired rounds of ammunition sufficiently close to the hotel's property to disturb the hotel's guests. The Court stated in dicta, however, that a compensable taking would have occurred had the government installed the battery in order to fire over the hotel property and thereby deprive the owner of this profitable use. Relying on the Peabody dicta, the Supreme Court in Portsmouth Harbor Land & Hotel Co. v. United States, 250 U.S. 1 (1919), ordered that evidence be heard to determine whether continued gun firings were sufficient to prove an intent to create a servitude on the hotel property at issue in Peabody. In United States v. Causby, 328 U.S. (1946), the Court applied the Peabody and Portsmouth rationale in holding that regular flights of government planes over plaintiffs' chicken farm resulted in a taking because it imposed a servitude on the farm. Viewed as a whole, these cases indicate the Court's position that there may be a compensable taking when a governmentally-caused physical invasion impairs a landowner's use and enjoyment of his property. The physical invasion need not be extensive. For example, in Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419 (1982), the Supreme Court held that a city ordinance requiring a building owner 2 See R. Rotunda, J. Nowak, & J. Young, Treatise on Constitutional Law: Substance and Procedure §15.9, at 106 (1986) (citing cases). to allow installation of a cable television receiver on his apartment house constituted a compensable de facto taking. The Court noted that the ordinance allowed for "permanent physical occupation" of a small part of the building, but only allowed for nominal (one dollar) compensation, on the ground that the owner had suffered no measurable diminution in property value. According to the Court, governmental regulatory action that does not involve physical invasion may also constitute a taking if it substantially destroys the value of property. In Pennsylvania Coal Co. v. Mahon, 260 U.S. 393 (1922), a state statute prohibited the mining of coal in such a manner as to cause the subsidence of certain types of improved property. (That statute prevented Pennsylvania Coal from mining on specified property in which it retained mineral rights; the company had transferred its surface rights to that property to residential housing developers. Mining operations threatened subsidence of the residential properties.) The Supreme Court held that the rights of the coal company could not be so diminished without payment of just compensation. As Justice Holmes stated: The general rule at least is, that while property may be regulated to a certain extent, if the regulation goes too far it will be recognized as a taking. 260 U.S. at 416. The Court's indication in Pennsylvania Coal that a governmentallyinduced destruction of property values constitutes a taking is consistent with the original meaning of the just compensation clause. When regulation measurably reduces property values, it takes a legallyprotected property right. The law in Pennsylvania Coal prohibiting the extraction of coal diminished the coal companys' rights as thoroughly as if the land in question had been taken through eminent domain. Accordingly, the logic of Pennsylvania Coal appears to be fully in keeping with the original meaning of the just compensation clause. Where Pennsylvania Coal arguably fell short was in not recognizing explicitly that a property right is taken even when regulation merely diminishes (rather than totally destroys) property values. In Miller v. Schoene, 276 U.S. 272 (1928), the Court upheld a Virginia statute requiring owners of diseased red cedar trees to cut them down without receiving compensation from the state because the contagion might spread to neighboring apple orchards. Despite the substantial reduction in property values occasioned by the statute, the Court justified its holding on the ground that the "public" interest required that the state act to prevent contagion from spreading. Miller v. Schoene may be read as being consistent with original meaning if the growing of diseased trees is recognized as an "unprotected use" of property that imposes harm on others. In Village of Euclid v. Ambler Realty Co., 272 U.S. 365 (1926), the Supreme Court upheld the constitutionality of a comprehensive zoning ordinance, despite a 75 percent loss of value to the landowner. The Court found that the law was a valid police power regulation because there was a sufficient public interest in segregating incompatible land uses to justily the reduction in property values. While the Court left open the possibility that burdensome zoning regulations could rise to the level of takings, it has generally deferred to the zoning power since Euclid. This holding ignored the absence of a police power limitation on the just compensation clause, as well as the fact that diminutions in the value of legallyprotected property rights are takings. - In Goldblatt v. Town of Hampstead, 369 U.S. 590 (1962), the Supreme Court held constitutional a zoning ordinance that prevented the owner of a sand and gravel quarry from excavating below the water line a limitation that effectively prohibited all quarry activities. (The ordinance was designed to prevent the further growth of an unfenced lake created by previous quarrying activities -- a lake which, the Supreme Court speculated, might pose safety hazards to children.) The Court reasoned that the statute was valid because the "public interest" required interference in quarry activities and the ordinance was "reasonably necessary" to achieve this public interest goal. Although the Court purported to take into account the loss suffered by the property owner (the ordinance was deemed not "unduly oppressive"), it was plain that the law in question had substantially diminished (if not destroyed) the quarry's value. Goldblatt comports with original meaning only if the prohibited quarrying activities would have imposed harm on third parties. In Penn Central Transportation Co. v. New York, 438 U.S. 104 (1978), rehearing denied 439 U.S. 883 (1978), the New York City Landmark Preservation Commission, applying the City's Landmark Preservation Law, denied the owner of Grand Central Station permission to build a multi-story office building above the station. Rather than abandoning this project and transferring its building rights to its other adjacent property (as permitted by local law), the owner sought review of the Commission's decision. The Supreme Court found that there had been no taking of property; it applied an ad hoc balancing test and determined that New York's landmark preservation regulations were a reasonable means of promoting "general welfare" interests in environmental control and historic preservation. The Penn Central balancing test appears to ignore original meaning; it fails to explain how a legallyprotected property right (air space) could be taken without the payment of just compensation. The Court next turned to zoning in Agins v. City of Tiburon, 447 U.S. 255 (1980). In that case, the California Supreme Court rejected an "inverse condemnation" challenge to an "open space" zoning ordinance that required owners of a five acre tract to build no more than five singlefamily residences on their property. It held that while the landowner could have attempted (through declaratory relief or mandamus) to have the ordinance invalidated as excessive regulation in violation of the Fifth Amendment's just compensation clause, he could not "elect to sue in inverse condemnation and thereby transmute an excessive use of the police power into a lawful taking for which compensation in eminent domain must be paid." 598 P.2d 25 (Cal. 1979), aff'd on other grounds, 447 U.S. 255 (1980). The United States Supreme Court affirmed on the basis that no ripe taking claim was presented, because the landowner challenged the zoning regulation on its face without ever submitting an actual land development plan. In short, Agins prevented an individual whose property interest (the right to build on one's property) arguably had been taken from receiving just compensation -- a result seemingly at odds with the just compensation clause's original meaning. The next Term, the Court noted probable jurisdiction in San Diego Gas & Electric Co. v. City of San Diego, 450 U.S. 621 (1981). There the California Court of Appeals again applied the “Agins rule” and held that a utility could not receive damages for inverse condemnation when San Diego's open space zoning plan had destroyed the value of the utility's property. The majority of the Supreme Court dismissed on jurisdictional grounds, finding that no final judgment had been rendered by the California courts. In dissent, however, Justice Brennan rejected the jurisdictional holding and went on to take issue with the Agins rule: In my view, once a court establishes that there was a regulatory "taking," the Constitution demands that the gov |