Land Use Challenges Showcase What’s There for the ‘Taking’

The Fifth Amendment of the U.S. Constitution provides that “No person shall be… deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.” Nearly 100 years later, the Constitution was amended after the Civil War to include the Fourteenth Amendment, which created a private right of action for individuals against the state (and its subsidiaries) for violations of the Constitution, including violations of the Fifth Amendment. Prior to the Fourteenth Amendment, individuals had extremely limited recourse if the taking was commenced by the state government.

Though our Constitution is clear that if the government wishes to obtain private property for public use that it must pay just compensation, our Supreme Court has recognized several categories of takings which fall short of an outright taking, but which may constitute action that triggers the government’s requirement to provide just compensation. These categories have been established through the Supreme Court over the years and include 1) permanent physical invasion; 2) total takings; 3) forced entry exactions; and 4) regulatory takings.

In the land use context, regulatory takings tend to be the most common category of takings challenges. These takings are divided into two subcategories: 1) permanent physical invasions, where the government invades a property owner’s exclusive right of possession in some manner; and 2) deprivation of all economic beneficial use, where a government regulation deprives a property owner of all economic beneficial use of their property or interferes substantially with their reasonable expectations. These categories of regulatory takings are “per se” takings and violate the Fifth Amendment in most cases.

The most common form of regulatory taking that falls outside of either of the first two defined categories requires application of the case established in Penn Central Transp. Co. v. New York City, (the “Penn Central Test”). This inquiry looks to the character of the government regulation and whether it interferes with the economic impact on the owner or interferes with investment-backed expectations. The important thing to note about Penn Central Test challenges is that the regulation challenged will either be determined to be a taking requiring just compensation, or it will be determined to be a valid exercise of governmental police powers which do not warrant just compensation.

What other safeguards can help you challenge and/or defend the constitutionality of zoning and land use actions? We look at three more topics below.

Due Process Challenges

Constitutional challenges to the validity of land use regulations may be generally categorized as substantive due process claims (which allege the regulation is arbitrary or irrational, and has no substantial relation to public health, safety or general welfare), or procedural due process claims, alleging flaws in the process of enacting or applying land use regulations, such as inadequate notice or opportunity to be heard. The general principle is that all land use regulations must conform to the Fifth Amendment. If they do not, they are not valid if they deprive an individual of due process.

Due process is another safeguard afforded against state actors by the Fourteenth Amendment. The first test of this concept in the Supreme Court occurred through the case of Euclid v. Ambler Realty, where the plaintiff claimed that zoning, on its face (i.e. a substantive due process claim) did not accomplish a legitimate governmental purpose. The Supreme Court disagreed, finding that the government had a sufficient relationship to public, health, safety, morals, and general welfare in enacting zoning controls. Subsequently, almost 85 years later, the Court in Lingle v. Chevron, U.S.A., Inc. expanded the test of whether land use regulation exceeds governmental authority, finding a means to an end test is appropriate. That test asks whether the regulation affecting private property is effective in achieving some legitimate public purpose, or whether a regulation which serves to meet any legitimate governmental objective may be so arbitrary or irrational that it runs afoul of process.

Several sub-forms of substantive due process challenges to land use exist, such as the void for vagueness doctrine, which essentially prohibits the enactment of laws that encourage arbitrary and discriminatory enforcement. Void for vagueness is not concerned with the actual notice, but rather the requirement that lawmakers establish minimum guidelines to govern law enforcement. It requires that the law must have sufficient definition that ordinary people can understand what conduct is prohibited and does not encourage arbitrary or unreasonable enforcement.

Equal Protection

The equal protection clause also comes from the Fourteenth Amendment, which creates a right against state actors against denial of equal protection of its governing laws, requiring equal treatment for individuals in similar conditions and circumstances.

Equal protection is an interesting topic in that many think all discrimination is unwarranted, but that is not always true. The equal protection clause focuses on impermissible discrimination but allows permissible discrimination. For example, a land use regulation which is subject to rational basis review (i.e. any regulation which does not apply to race, ethnicity or national origin) requires that the government may impose such discrimination so long as it is rationally related to serving a legitimate state interest. These challenges can be very difficult because the burden is on the challenger to show that there is no legitimate state interest to be met through the challenged regulation.

One particular form of equal protection challenge that is common to land use regulation is known as the “class of one” challenge. The class of one challenge essentially asserts that selective enforcement has taken place compared to others in the same situation. To establish, the claimant must show how he/she compared with others similarly situated, was selectively treated, and that such selective treatment was based on impermissible consideration of factors such as race, religion, intent to inhibit, or, in the land use context most often, a showing of mere rationality.

Government Police Powers

Government police powers are the fundamental ability of a government to enact laws to coerce its citizenry for the public good. Police powers (are supposed to) ensure public safety, health, morality and general welfare. While states have broad authority to compel obedience to these laws, they must do so within constitutional limits. Controversies can arise when state actions infringe upon these rights or are deemed unreasonable or oppressive. Police power serves as the basis for land use planning authority in the United States. State governments typically delegate this authority to local governments, such as counties and municipalities, which regulate land use matters in accordance with public welfare objectives. Unlike eminent domain, where compensation may be required for taking private property, regulations under police power often do not entitle property owners to compensation.

When a land use regulation is challenged on the Fifth Amendment’s taking clause, it will either fall into one of the three primary categories of takings claims, or, it will fall under the Penn Central Test. The challenger carries a high burden under the Penn Central framework, and if the challenger has not met that burden, in most instances the regulation affecting private property will be considered an act of the state’s police powers, and thus permissible.

Examples of land use controls which fall outside of the Fifth Amendment and are instead justifiable under the government’s police powers include: zoning, land development and subdivision regulations; matters of “statewide concern” — as in, matters which the legislature intended to thoroughly occupy the field; use and dimensional regulations which are reasonably necessary to protect the public health and safety provided they are not arbitrary, destructive, or confiscatory; and regulation which results in a diminution of value — not considered a taking and within the police powers, as a property owner does not have a vested right in maximizing the value of his property.

The important principle to note in land use challenges when speaking to whether a regulation violates the Fifth Amendment, versus when it is considered a valid exercise of police powers, is that Fifth Amendment violations always require just compensation, and police power regulations do not.

Conclusion

In conclusion, all topics referenced herein (takings, due process, equal protection, and government police powers) as applied to land use challenges stem from the Fifth and Fourteenth Amendments of the U.S. Constitution. They all draw very similar parallels to each other, and, in many cases, are used in conjunction when challenging land use decisions and/or regulations. As such, it is important to understand the inner workings of each amendment and how they apply to federal and state law. Additionally, it is important to understand the genesis of the Fourteenth Amendment and the reasons why it has been codified to our Constitution. Particularly, it is important to understand that the Fourteenth Amendment provides vehicles for these forms of constitutional challenges to be applied to state and municipal actions, as it provides uniformity of rights and establishment of precedent in a consistent manner throughout every state.

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