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THE SUPREME COURT AND THE TAKING ISSUE

From Euclid v. Ambler in 1926 until the 1980s the U.S. Supreme Court heard only one significant case involving land-use controls: the Penn Central case discussed earlier in this chapter. Then, beginning in 1987, the Court heard seven cases all concerned with the taking issue.9

None of the following are as sweeping as Euclid v. Ambler or even the Penn Central decision. All pertain to the matter of exactly what constitutes a taking. Their net effect has probably been to produce a small expansion of the definition of taking.

In Nollan v. California Coastal Commission (1987) the Court prevented the Commission from requiring Nollan to provide public beach access as a condition of enlarging his house on the grounds that there was no "essential nexus" (connection) between house enlargement and beach access.

In Lucas v. South Carolina Coastal Council (1992) the Court ruled in favor of the plaintiff, Lucas. The state had blocked any further development on the seaward side of a setback line. That prevented Lucas from developing on two beachfront building lots. The Court ruled the state's action a taking and ordered it to provide Lucas with $1.6 million in damages.

In Dolan v. City of Tigard (1994) the Court again ruled in favor of the plaintiffs, preventing the municipality from requiring that the plaintiffs dedicate land for public purposes in return for a variance that would permit enlargement of their store's parking lot. As in Nollan, the

Court's position was that there was not a sufficient nexus to justify the municipality's demand.

In Palazzolo v. Rhode Island (2001) the Court again found for the plaintiff. Here, the Court blocked the state from preventing Palazzolo from filling in coastal wetland to build a 74-unit housing development. The Court found for the plaintiff on the grounds of reasonable "investment backed" expectations despite the fact that the regulations against such development were in place at the time that Palazzolo bought the property.

The five justices finding for Palazzolo were Rehnquist, O'Conner, Kennedy, Scalia, and Thomas, all appointed by Republican presidents. The four voting against him were Ginsburg, Breyer, Souter, and Stevens, all appointed by Democratic presidents. In fact, the lineup was exactly the same as in the Bush v. Gore decision of 2000. Again, the link between planning and ideology seems evident.

Planners were not happy with any of these decisions, since by expanding the definition of what constituted a taking they all limited the public power to effect the use of privately owned land. In the next two cases they got some relief. In Tahoe-Sierra Preservation Council et al. v. Tahoe Regional Planning Agency et al. (2002) the question was whether a 32-month development moratorium on development to allow for the making of a regional plan constituted a taking (which would require compensation to the plaintiff). The Court rejected the plaintiff's "time is money" argument, taking the position that when the moratorium was up the owners could then recoup the value of their investments. Had the decision gone the other way, just taking the time to go through a thorough planning process might expose a municipality to considerable financial risk. The moratorium had been imposed in the early 1980s; the case was decided two decades later. The wheels of justice can grind slowly.

In Stop the Beach Renourishment v. Florida Department of Environmental Protection et al. (2010) the U.S. Supreme Court ruled for the defendants in a decision that very much pleased the planners. In the case that came up through the Florida Court of Appeals and then the Florida Supreme Court, a group of beachfront property owners sued to prevent the state from replenishing beachfront that had eroded in front of their houses. That sounds counterintuitive, but their suit had a certain logic to it. If the state replenished the beach that had eroded in front of their homes, any newly created beach beyond the old high watermark would now be state property and that, they claimed, might block their access to or view of the ocean. The U.S. Supreme Court upheld the Florida Supreme Court (which had overruled the Florida Court of Appeals) and denied the homeowners' claims. Had the homeowners won, it would have called into question the state's right to restore many miles of beachfront without having to pay compensation, a very serious matter in a state with as much beachfront as Florida. More generally it pushed the ever-changing boundary between public and private rights a bit in the public direction.

In Koontz v. St. Johns River Water Management Agency the plaintiff, Kootz, sought to develop part of his property in a riparian area under the jurisdiction of the St. Johns River Water Management District. The agency refused Koontz a permit unless he accepted one of two options. The first was to deed most of the property as a conservation area (meaning that neither he nor a future buyer could develop it) and do some off-site mitigation several miles from his property. The second option was to develop on an even smaller part of his property (approximately one acre out of 13.9 acres) and deed restrict the remainder. Koontz turned down both offers and, instead, brought suit claiming that the choice offered to him constituted a taking. The case worked its way up through the Florida courts to the U.S. Supreme Court. The federal government and the American Planning Association filed amicus briefs supporting the district. A variety of property rights groups filed on behalf of Koontz. On July 29, 2013 the Court found in favor in a five- to-four decision. Unlike some other decisions the split was not entirely on ideological lines, since the conservative Antonin Scalia joined three of the Court's liberals in the dissent. The net effect of the decision was to reaffirm or perhaps expand the "essential nexus" argument of Nollan v. California Coastal Commission and Dolan v. City of Tigard. To those who backed Koontz, the decision seemed like an admirable restraint upon what they see as the almost unlimited leverage that regulatory agencies would otherwise have over property owners.

In March 2014 the Supreme Court ruled on a case that, while not literally a takings case, was very close in that it dealt with the issue of how much control government could exercise over private land without paying compensation. In the late nineteenth century the State of Wyoming had granted a right-of-way for a rail line across privately held land in the town of Fox Park. In due time the railroad failed and ultimately the company removed the tracks. The-right-of-way was subsequently converted into a bicycle and hiking path, a so-called "rails to trails"conversion, by the state. The property owner, Marvin M. Brandt, took the position that when the rail line was terminated the state's easement was terminated as well and all rights reverted to him. By an eight-to-one decision Marvin M. Brandt Revocable Trust v United States the Supreme Court found in his favor. Advocates of outdoor recreation were distressed by the ruling. There are thousands of miles of such rails in the United States and this precedent could pose a threat to many of them by giving a few property owners the power to chop a trail into a number of disconnected pieces. The Court's legal reasoning may be impeccable, but the decision strikes many as unfortunate.

 
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