[*] ATTORNEY QUATTRIN, JOHNSON & CAMPORA, SACRAMENTO, CALIFORNIA; FORMER FELLOW, PACIFIC LEGAL FOUNDATION COLLEGE OF PUBLIC INTEREST LAW. B.A., 1981, UNIVERSITY OF CALIFORNIA, DAVIS; J.D., 1994, MCGEORGE SCHOOL OF LAW, UNIVERSITY OF THE PACIFIC. AS A MEMBER OF PACIFIC LEGAL FOUNDATION PROPERTY RIGHTS SECTION, I PARTICIPATED IN CASES BEFORE THE CALIFORNIA, FLORIDA, MICHIGAN, AND UNITED STATES SUPREME COURTS, AND NEW YORK COURT OF APPEALS. I AM INDEBTED TO PROFESSOR RAYMOND COLETTA OF MCGEORGE SCHOOL OF LAW, PROFESSOR STEVEN EAGLE OF GEORGE MASON SCHOOL OF LAW, AS WELL AS JAMES S. BURLING, ROBIN L. RIVETT, AND M. REED HOPPER OF PLF FOR THEIR GRACIOUS COMMENTS. Return to text.

[1] See Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 1029 (1992). See discussion infra notes 33-54 and accompanying text. Return to text.

[2] Id.; see also Webb's Fabulous Pharmacies, Inc. v. Beckwith, 449 U.S. 155, 161 (1980) ("[P]roperty interests . . . are not created by the Constitution. Rather, they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law . . . .") (citation omitted). Return to text.

[3] See Lucas, 505 U.S. at 1029. Return to text.

[4] See id. at 1029-30. Return to text.

[5] Id. at 1033 (Kennedy, J., concurring). Return to text.

[6] Id. at 1035 (Kennedy, J., concurring). Return to text.

[7] See id. Return to text.

[8] In Nollan v. California Coastal Comm'n, 483 U.S. 825, 833 n.2 (1987), the Supreme Court noted that property rights are not altered because property is acquired after a restrictive policy is implemented. Return to text.

[9] See id. Return to text.

[10] For a discussion of the suggestion that courts are not following the Nollan and Lucas holdings, see Mark P. McIntyre, The Taking of Single Lots—How New York's Wetland Laws Violate the U.S. Constitution, 15 N.Y. ENVTL. L. 4, 31 (1995).

By declining, so far, to revise the procedural rules that apply to New York wetland takings cases, the Court of Appeals, like many of its sister state high courts, has not changed state law to accommodate the property rights that the U.S. Supreme Court articulated in Nollan and Lucas . . . . Many state courts have reacted with skepticism and resistance to the Supreme Court's substantive due process approach to government regulation and private property . . . . California's reaction to emerging United States Supreme Court takings doctrine suggests a balkanization of regulatory takings law.

[11] 678 N.E.2d 870 (N.Y. 1997). See discussion infra notes 173-81 and accompanying text. Return to text.

[12] 679 N.E.2d 1035 (N.Y. 1997). See discussion infra notes 182-99 and accompanying text. Return to text.

[13] 678 N.E.2d 489 (N.Y. 1997). See discussion infra notes 200-205 and accompanying text. Return to text.

[14] 90 N.Y.2d 1 (1997), forthcoming 681 N.E.2d 312 (N.Y. 1997). See discussion infra notes 206-20 and accompanying text. Return to text.

[15] See generally infra notes 169-220 and accompanying text. Return to text.

[16] See MIGUEL DE CERVANTES SAAVEDRA, DON QUIXOTE (1980 ed.). Cervantes masterfully narrates the tale of a gentleman, Don Quixote, who, driven to madness by tales of chivalry, abandons his home in search of adventure. The errant knight would charge with his lance at windmill, convinced that they were in fact giants. Return to text.

[17] Initially the property owners could make a facial challenge alleging that the ordinance, no matter how it was applied, violated the Constitution. The remedy would result in invalidating the ordinance and possibly the payment of just compensation for a temporary taking. This type of challenge is difficult, typically because of short statutes of limitations. Alternatively, after availing themselves of any administrative requirements, the property owners could bring an "as applied" challenge, alleging that the ordinance took their property without payment of just compensation. The payment of just compensation for a temporary or permanent taking, depending on whether the ordinance was invalidated or rescinded, is a possible remedy in this case. See infra notes 224-44 and accompanying text. Of course, this assumes that the claim is ripe for adjudication. For a discussion of ripeness requirements in the context of land use cases, see infra notes 237-55 and accompanying text. Return to text.

[18] For instance, could a state pass legislation defining away any use of private property or even its very ownership? Return to text.

[19] See U.S. CONST. amend. V. Return to text.

[20] For a more in depth treatment see Lucas, infra notes 33-54 and accompanying text. Return to text.

[21] These states include Iowa (Hunziker v. State, 519 N.W.2d 357 (Iowa 1994)), Massachusetts (Leonard v. Town of Brimfield, 666 N.E.2d 1300 (Mass. 1996), and New York (Anello v. Zoning Board of Appeals, 678 N.E.2d 870 (N.Y. 1997)) to name a few. Return to text.

[22] An explanation for this theory is that a property owner should not be permitted a windfall, purchasing regulated property at a bargain price and profiting when the regulation is overturned or granted compensation for the taking. See, e.g., Gazza v. New York State Dep't of Envtl. Conservation, 679 N.E.2d 1035 (N.Y. 1997) (concluding that a property owner who acquires property with a known regulation may not bring a takings claim based on the preexisting regulation). For a detailed discussion of Gazza, see infra notes 182-99 and accompanying text. Return to text.

[23] Examples of such states include New Jersey (Moroney v. Mayor Old Tappan, 633 A.2d 1045 (N.J. Super. A.D. 1993)) and Michigan (K & K Construction, Inc. v. Department of Natural Resources, 551 N.W.2d 413 (Mich. App. 1996)). Return to text.

[24] See, e.g., Lopes v. City of Peabody, 629 N.E.2d 1312 (1994) (holding that a landowner could challenge land use regulations that were imposed prior to the landowner's acquisition of the property). Return to text.

[25] See Lopes, infra notes 64-71 and accompanying text. But see Leonard v. Town of Brimfield, 666 N.E.2d 1300 (1996), infra notes 72-88 and accompanying text. Return to text.

[26] See Nollan v. California Coastal Comm'n, 483 U.S. 825, 833-34 n.2 (1987). Return to text.

[28] See id. at 828. Return to text.

[29] See id. at 829. Return to text.

[30] See id. at 837. Return to text.

[31] See id. at 856-57 (Brennan, J., dissenting). Return to text.

[32] See id. at 833 n 2. Return to text.

[34] See Preseault v. United States, 100 F.3d 1525, 1537 (1996) (rejecting the government's suggestion that property interests are defined not by original conveyances but by evolving enactment and implementation of federal law). See also Anello v. Zoning Board of Appeals of Village of Dobbs Ferry, 89 N.Y.2d 535 (1997) (adopting a rule that property owners' titles are encumbered by all existing statutory restrictions). Return to text.

[35] See, e.g., Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992) (holding that property rights are defined by state property and nuisance law). Return to text.

[36] See id. Return to text.

[37] See Preseault v. United States, 100 F.3d at 1538; Loveladies Harbor, Inc. v. United States, 28 F.3d 1171, 1179 (Fed. Cir. 1994); Healing v. California Coastal Comm'n, 27 Cal. Rptr. 2d 758, 775-76 (1994); Lopes v. City of Peabody, 629 N.E.2d 1312, 1313 (1994); K & K Construction, Inc. v. Department of Natural Resources, 551 N.W.2d 413, 417 (Mich. Ct. App. 1996); Zealy v. City of Waukesha, 534 N.W.2d 917, 921 (Wis. Ct. App.,1995). See also Jonathan E. Cohen, Comment: A Constitutional Safety Valve: The Variance in Zoning and Land-Use Based Environmental Controls, 22 B. C. ENV. AFF. L. REV 307, 326-27 (1995); Fred P. Bosselman, Limitations Inherent in the Title to Wetlands at Common Law, 15 STAN. ENVTL. L.J. 247, 253 (1996). Return to text.

[38] See Lucas, 505 U.S. at 1006-07. Return to text.

[39] S. C. CODE ANN. § 48-39-250 - § 48-39-360 (Supp. 1990). Return to text.

[40] See Lucas, 505 U.S. at 1007. Return to text.

[41] Id. Return to text.

[42] See id. at 1009 (citing App. to Pet. for Cert. 36). Return to text.

[43] See id. (citing App. to Pet. for Cert.). Return to text.

[44] See id. at 1009-10. Return to text.

[45] See id. at 1010 (citing Lucas, 404 S.E.2d at 906). Return to text.

[46] Lucas, 505 U.S. at 1027 (footnote omitted). Return to text.

[47] Id. at 1029. Return to text.

[48] Id. at 1034 (Kennedy, J., concurring).

There is an inherent tendency towards circularity in this synthesis, of course; for if the owner's reasonable expectations are shaped by what courts allow as a proper exercise of governmental authority, property tends to become what courts say it is. Some circularity must be tolerated in these matters, however, as it is in other spheres.

[49] See id. at 1016. Return to text.

[50] See Lucas, 505 U.S. at 1016-17 n.7. Return to text.

[51] See id. at 1026. Return to text.

[52] Id. at 1031. The Court responded to Justice Blackmun's dissent:

In Justice Blackmun's view, even with respect to regulations that deprive an owner of all developmental or economically beneficial land uses, the test for required compensation is whether the legislature has recited a harm-preventing justification for its action . . . . Since such a justification can be formulated in practically every case, this amounts to a test of whether the legislature has a stupid staff. We think the Takings Clause requires courts to do more than insist upon artful harm-preventing characterizations.

[53] The Court cited examples of instances where a property owner might not be entitled to compensation such as where the owner engages in land filling operations that floods another's property or where a company is forced to remove a nuclear generating plant built on a fault line. As the Court observed:

Such regulatory action may well have the effect of eliminating the land's only economically productive use, but it does not proscribe a productive use that was previously permissible under relevant property and nuisance principles. The use of these properties for what are now expressly prohibited purposes was always unlawful, and (subject to other constitutional limitations) it was open to the State at any point to make the implication of those background principles of nuisance and property law explicit.

[54] "It seems unlikely that common-law principles would have prevented the erection of any habitable or productive improvements on petitioner's land; they rarely support prohibition of the 'essential use' of land." Id. at 1031 (citing Curtin v. Benson, 222 U.S. 78, 86 (1911)). Return to text.

[55] See Hunziker v. State, 519 N.W.2d 357 (Iowa 1994); Anello v. Zoning Board of Appeals, 678 N.E.2d 870 (N.Y. 1997). Return to text.

[56] Typical of these decisions is Gazza v. New York State Dep't of Envtl. Conservation, 679 N.E.2d 1035 (N.Y. 1997). In Gazza, the New York Court of Appeals held that a property owner was not entitled to challenge a regulation where he paid a steep discount for the property, while fully knowing that the requested property use would not be approved. A discussion of Gazza appears at infra notes 182-99 and accompanying text.

Perhaps the fuel for this argument comes from the assertion that there is no taking of private property in light of the owner's "reasonable investment-backed expectations." Penn Cent. Transp. Co. v. City of New York, 438 U.S. 104, 124 (1978). See, e.g., Leonard v. Town of Brimfield, 666 N.E.2d 1300 (Mass. 1996), discussed in detail, infra notes 72-88. See also Justice Kennedy's concurring opinion in Lucas, discussed supra note 48 and accompanying text. Return to text.

[57] In Steinbergh v. City of Cambridge, 604 N.E.2d 1269 (Mass. 1992), the Supreme Judicial Court of Massachusetts observed that "if, as seems reasonably inferable, their investment expectations were based on the ultimate invalidation of the regulation in a judicial proceeding, the plaintiffs' investment expectations had to reflect the anticipated delay in the litigation process." Id. at 1274. Return to text.

[58] See, e.g., Hunziker v. State, 519 N.W.2d 367, 371 (Iowa 1994), discussed infra notes 102-120 and accompanying text. Return to text.

[59] One such proposition, advancing beyond Justice Brennan's dissent in Lucas, is to expand the background principles to avoid the possibility that property taken might require the payment of just compensation. One of the more extreme examples of this was recently raised in the Amicus Curiae brief in Gazza v. New York Dep't of Envtl. Conservation, 679 N.E.2d 1035 (N.Y. 1997), suggesting that there seems to be no reason why a state could not have among its "background principles . . . of property" a common-law rule that property ownership never includes a right to violate the laws enacted by the Legislature. If New York has such a common law "background" principle—that property owners are forbidden to violate state statutes—then New York taxpayers would never have to be saddled with the burdens of the "categorical" rule for "total" takings. Return to text.

[60] As the Court observed in Lucas, "a regulation specifically directed to land use no more acquires immunity by plundering landowners generally than does a law specifically directed at religious practice acquire immunity by prohibiting all religions." Lucas, 505 U.S. at 1027 n.14. Return to text.

[63] See Lopes v. City of Peabody, 600 N.E.2d 171 (Mass. 1992), cert. granted, vacated, and remanded, 113 S. Ct. 1574 (1993). Return to text.

[64] See Lopes, 629 N.E.2d 1312 (Mass.1994). Return to text.

[65] See id. at 1313. Return to text.

[66] See id. Return to text.

[67] Lopes sought to remove the regulatory restrictions which prevented him from building on his property but did not seek damages for a taking. See id. at 1314 n.5. Return to text.

[68] See id. at 1314. Return to text.

[69] Lopes, 113 S. Ct. 1574 (1993). Return to text.

[70] See Lopes, 629 N.E. 2d at 1314-15. Return to text.

[71] Id. at 1315. Return to text.

[72] 666 N.E.2d 1300 (Mass. 1996). Return to text.

[73] In fact, because of ambiguities in the opinion, it is unclear what remains of the Lopes opinion. Return to text.

[74] See Leonard, 666 N.E.2d at 1301. Return to text.

[75] See id. at 1302. Return to text.

[76] See id. Return to text.

[77] See id. Return to text.

[78] See id. Return to text.

[79] See id. Return to text.

[80] See Leonard, 666 N.E.2d. at 1304. Return to text.

[81] See id. at 1303. Return to text.

[82] See id.(quoting Ruckelshaus v. Monsanto Co., 467 U.S. 986, 1005 (1984)). Return to text.

[83] See id. at 1303. The court observed, "[f]urthermore, the trial judge found that the parcel at issue is a single sixteen-acre parcel, not individual lots within this parcel as the plaintiff contends, and that the plaintiff had taken no action to subdivide the property." Id. Return to text.

[84] See id. Return to text.

[85] See id. at 1303 n.3 (citation omitted). Return to text.

[86] Id. at 1303. Return to text.

[87] Id. (citation omitted). Because the court had determined that the property was not subdivided and that the land use restrictions had only diminished the value of the sixteen-acre parcel as a whole, the court did not have to decide the issue of whether Leonard was barred from claiming a taking based on the preexisting permit restriction. What is perhaps so extraordinary about the opinion is not that it focused so heavily on an issue that the court decided not to address but, rather, that having done so, the court potentially recharacterized its holding in Lopes. Return to text.

[88] See id. Return to text.

[90] See id. at 1046-47. Return to text.

[91] See id. at 1046. Return to text.

[92] See id. at 1046-47. Return to text.

[93] See id. at 1047. Return to text.

[94] Id. at 1048 (citation omitted). Return to text.

[96] See id. at 788. Return to text.

[97] See id. Return to text.

[98] See id. Return to text.

[99] See id. Return to text.

[100] See id. Return to text.

[101] See id. Return to text.

[103] See id. at 368. Return to text.

[104] See id. Return to text.

[105] Iowa Code §§.7, 305A.9 (renumbered as Iowa Code §§263B.7, 263B.9 (1993)). Return to text.

[106] See Hunziker, 519 N.W.2d at 368. Return to text.

[107] See id. at 368, 370. Return to text.

[108] See id. at 368-369. Return to text.

[109] See id. at 369. Return to text.

[110] See id. Return to text.

[111] See id. Return to text.

[112] See id. at 371. Return to text.

[113] As support for its holding that there had been no taking, the court stated that "implicit in the [Lucas] 'bundle of rights' analysis is that the right to use the land in the way contemplated is what controls. Here, when the plaintiffs acquired title, there was no right to disinter the human remains and build in the area where the remains were located." Hunziker, 519 N.W.2d at 371 (emphasis in the original). However, the dissent, relying on broad language in the Lucas opinion, argued that "[t]he law established by Lucas actually supports the claim of plaintiffs in the case at bar." Id. at 372 (Snell, J., dissenting). Return to text.

[114] See id. at 371. Return to text.

[115] See id. Return to text.

[116] See id. at 373. Return to text.

[117] See Hunziker v. State, 514 U.S. 1003 (1995). Return to text.

[118] See Hunziker v. State, 519 N.W.2d 367 (Iowa 1994). Return to text.

[119] See supra notes 105-08 and accompanying text. Return to text.

[120] See Hunziker, 519 N.W.2d at 371. The enormity of such an opinion can never be known. At least, it will be so until all of the "significant human remains" are located, a task that could potentially affect every parcel in the state, given the migratory practices of early American inhabitants. Return to text.

[122] See id. at 529. Return to text.

[123] See id. at 529-30. Return to text.

[124] See id at 530. Return to text.

[125] See id. The remaining 2.1 acres were zoned for residential (1.57 acres) and business (.57) use. See id. Return to text.

[126] See id. Return to text.

[127] See id. Return to text.

[128] See id. Return to text.

[129] Id. at 534. Return to text.

[130] 201 N.W.2d 761 (Wis. 1972). Return to text.

[131] Zealy, 548 N.W.2d at 534 (quoting Just, 201 N.W.2d at 771). Return to text.

[132] As the Court in Lucas observed, "[t]he fact that a particular use has long been engaged in by similarly situated owners ordinarily imports a lack of any common-law prohibition (though changed circumstances or new knowledge may make what was previously permissible no longer so (sic) [citation omitted]. So also does the fact that other landowners, similarly situated, are permitted to continue the use denied to the claimant." Lucas, 505 U.S. at 1031. Return to text.

[133] See Zealy, 548 N.W.2d at 534. Return to text.

[134] See supra note 18. Return to text.

[136] See id. at 415. Return to text.

[137] See id. Return to text.

[138] See id. Return to text.

[139] See id. Return to text.

[140] "Plaintiffs initially sought a declaratory ruling that the area is not wetlands and also sought injunctive relief against defendant's enforcement of the [Wetland Protection Act] and damages under the WPA." Id. at 415-16. Return to text.

[141] See id. Return to text.

[142] See id. at 416. Return to text.

[143] See id. Return to text.

[144] See id. at 417. Return to text.

[145] Id. (citing Lucas, 505 U.S. at 1030-31) (emphasis added). Return to text.

[146] See id. Return to text.

[147] See id. Return to text.

[148] See id. at 417. Return to text.

[149] See id. (citing Nollan, 483 U.S. at 833 n.2). Return to text.

[150] Id. at 417-18. Return to text.

[151] See id. at 418. Return to text.

[153] See id. at 1533. The Court observed that

[E]nactment of broad general legislation authorizing a federal agency to engage in future regulatory activity is not the type of government action that alone supports a taking claim. If Congress intended the 1920 Act to have such an effect, contrary to all established assumptions about general legislation, and with the result of directly obligating the Government to a potentially enormous liability of unknown dimensions for takings throughout the United States, there surely would have been some indication of that intent in the legislative history, if not in the legislation itself. The Government points to none, because none exists.

[154] See id. at 1531. Return to text.

[155] See id. Return to text.

[156] See id. Return to text.

[157] Pub.L.No. 98-11, 97 Stat. 48 (codified as amended at 16 U.S.C. §1247 (1994)). Congress enacted the Rails-to-Trails Act on March 28, 1983. Return to text.

[158] The purpose of the Act was to create a national network of public recreational biking and hiking trails. See Presault, 100 F.3d at 1529. Return to text.

[159] See id. at 1536. Return to text.

[160] Id. at 1537. Return to text.

[161] Id. at 1530. Return to text.

[162] See id. at 1538 Return to text.

[163] Id. at 1539. Return to text.

[164] See id. at 1537. Return to text.

[165] See id. at 1537-38. Return to text.

[166] Id. at 1538 (citing Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 415 (1992)). Return to text.

[167] Id. Return to text.

[168] See id. at 1540. "Under the governing law of the State, the Preseaults, successors in title to those who owned the property when the easements were created, owned the same title and interest as they, and are entitled to the same protections the law grants." Id. Return to text.

[169] See Basile v. Town of Southhampton, 678 N.E.2d 489 (N.Y. 1997). Return to text.

[170] See Anello v. Zoning Board of Appeals, 678 N.E.2d 870 (N.Y. 1997); Gazza v. New York State Dep't of Envtl. Conservation, 679 N.E.2d 1035 (N.Y. 1997). Return to text.

[171] See Soon Duck Kim v. City of New York, 681 N.E.2d 312 (N.Y. 1997). Return to text.

[172] For the foreseeable future, New York is free to apply its new rule. For on October 6, 1997, the United States Supreme Court declined to review these cases. See infra notes 182, 200, and 206. Return to text.

[174] See id. at 870. Return to text.

[175] See id. Return to text.

[176] See id. Return to text.

[177] See id. at 871. Return to text.

[178] See id. at 872. Return to text.

[179] Id. at 871. Return to text.

[180] See id. Return to text.

[181] See supra notes 64-71 and accompanying text. The problem of alienability is discussed infra notes 224-36 and accompanying text. Return to text.

[183] See id. at 1036. Return to text.

[184] See id. Return to text.

[185] See id. Return to text.

[186] See id. Return to text.

[187] See id. Return to text.

[188] See Gazza v. New York State Dep't of Envtl. Conservation, 605 N.Y.S.2d 642, 645 (N.Y. Sup. Ct. 1993) (finding that because Gazza knew of the limitations on the parcel, he could not have had a reasonable investment-backed expectation that he would be able to build a house there). Return to text.

[189] See Gazza v. New York Dep't of Envtl. Conservation, 634 N.Y.S. 2d 740, 744 (N.Y. App. Div. 1995). Return to text.

[190] See id. at 746. Return to text.

[191] See Gazza v. New York State Dept of Envtl. Conservation, 679 N.E.2d 1035, 1043 (N.Y. 1997). Return to text.

[192] Id. at 1039. Return to text.

[193] See id. Return to text.

[194] See id. Return to text.

[195] The New York court quoted the Lucas court for the principle that a property owner must expect the uses of property to be restricted. However, the court's reference to Lucas stopped short, omitting that portion of the Lucas opinion where the Supreme Court continued

In the case of land, however, we think the notion pressed by the Council that title is somehow held subject to the "implied limitation" that the State may subsequently eliminate all economically valuable use is inconsistent with the historical compact recorded in the Takings Clause that has become part of our constitutional culture.

[196] In an interesting note, the court of appeals observed, "[t]he entirely separate inquiry of whether an existing taking claim may be donated, sold, inherited or otherwise assigned is not before this Court." Gazza, 679 N.E.2d at 1039 n.4. For a discussion of whether the new rule would apply to noncommercial transactions, see infra notes 259-60 and accompanying text. Return to text.

[197] The problems of ripeness in the context of challenges to regulatory takings are discussed infra notes 244-49 and accompanying text. Return to text.

[198] See Gazza, 679 N.E.2d at 1043. (Wesley, J., concurring). Justice Wesley believed that the property still had value so there was not a taking. However, he disagreed with the majority which applied its broad rule precluding owners from challenging regulations as applied. See id.

[A] subsequent purchaser should also be able to challenge an otherwise valid regulation if it results in a taking without compensation. There are many reasons why a prior owner might not have pursued a taking claim. For example, a prior owner may have lacked the financial resources to develop the property or to commence an action on a taking claim. Under the reasoning of the majority, the prior owner would nonetheless have had to keep abreast of regulatory enactments and, if an enactment appeared to deprive the property of its economic value, to challenge the statute. Otherwise, the property may have been rendered worthless without the government paying any compensation for the property. By conveying the property to another party who may be willing and able to develop it or to seek compensation for the taking of its value, the prior owner has instead, under the majority's holding, ensured the destruction of the property's economic value.

[201] See id. at 489. Return to text.

[202] See id. at 490. Return to text.

[203] See id. at 489. Return to text.

[204] Id. at 490-91. Return to text.

[205] See id. at 491. Justice Wesley, concurring, disagreed with the Court's new rule preventing Basile from "claiming the value of her property without the wetlands regulations solely because she took title after the enactment of those regulations." Id. However, he noted that she nonetheless took title subject to the covenants filed by the previous owner which "substantially restrict the value and use of the property." Id. The covenants therefore made the rule redundant. Return to text.

[207] See id. Return to text.

[208] See id. at 4. Return to text.

[209] See id. Return to text.

[210] See id. Return to text.

[211] See id. Return to text.

[212] See id. Return to text.

[213] See id. Return to text.

[214] See id. Return to text.

[215] Id. Return to text.

[216] See id. Return to text.

[217] See id. Return to text.

[218] See id. at 11. In his dissent; however, Justice Smith disagreed that a rule requiring the Kims to provide lateral support to a newly raised road could ever be found in New York's common law. See id. at 17 (Smith, J., dissenting). Return to text.

[219] See id. at 17 (Smith J., dissenting) (citing Loretto v. Teleprompter Manhatten CATV, 458 U.S. 419 (1982)). In Loretto, the United States Supreme Court stated:

[W]e have long considered a physical intrusion by government to be a property restriction of an unusually serious character for purposes of the Takings Clause. Our cases further establish that when the physical intrusion reaches the extreme form of a permanent physical occupation, a taking has occurred . . . [and] [w]hen faced with a constitutional challenge to a permanent physical occupation of real property, this Court has invariably found a taking.

[220] See Soon Duck Kim, 90 N.Y.2d at 19 (citing Lucas, 505 U.S. at 1031). Return to text.

[221] In two of these cases, the United States Supreme Court already passed on the opportunity. The Court remanded Lopes without any opinion, see Lopes, 113 S.C. 1574 (1993), and denied the petition for writ of certiorari in Hunziker, see 115 S. Ct. 1313 (1995); see also Moroney v. Mayor of Old Tappan, 633 A.2d 1045 (1993); Ward v. Bennett, 592 N.E.2d 787, 788 (1992). Until recently, only K & K Const., Inc. v. Department of Natural Resources, 551 N.W.2d 413 (Mich.Ct.App. 1996), and Presault v. United States, 100 F.3d 1525 (Fed. Cir. 1996), appeared even remote candidates for addressing the questions. However, on February 18, 1997, the New York Court of Appeals presented the United States Supreme Court a golden opportunity when it created a per se rule precluding property owners from challenging regulatory and physical takings of their property without compensation. Return to text.

[222] 629 N.E.2d 1312 (Mass. 1994). Return to text.

[223] See id. at 1315. Return to text.

[224] See Robert C. Ellickson, Property in Land, 102 YALE L.J. 1315, 1376 (1993). Return to text.

[225] See id. Return to text.

[226] An entirely different result is reached where property owners willingly impose limitations upon their own use of land, such as in the case of covenants. Presumably, there is an equal or greater gain in the value of the property, else the owners would not have entered into the restrictions. See Richard A. Epstein, The Seven Deadly Sins of Takings Law: The Dissents in Lucus v. South Carolina Coastal Council, Loy L.A. L. Rev. 955, 963-64 (1993). Return to text.

[227] See STEVEN J. EAGLE, REGULATORY TAKINGS § 8-2(c), at 312 (1996). Of course, not every prospective purchaser follows this market rule. See, e.g., Florida Rock Indus., Inc. v. United States, 18 F.3d 1560 (Fed. Cir. 1994) [hereinafter Florida Rock IV].

A speculative market may exist in land that is regulated as well as in land that is not, and the precise content of regulations at any given time may not be particularly important to those active in the market. As this court observed in Florida Rock II, 791 F.2d 893 at 902-03, yesterday's Everglades swamp to be drained as a mosquito haven is today's wetland to be preserved for wildlife and aquifer recharge; who knows what tomorrow's view of public policy will bring, or how the market will respond to it.

[228] See EAGLE, supra note 227. Return to text.

[229] "The owner who is not actively planning a conversion to a newly restricted use probably would never learn of it, since he is apt to have only constructive notice, or at best, a booklet outlining changes in county zoning in dense legal prose." Id. Return to text.

[230] See infra Part V.B. Return to text.

[231] "Even assuming actual knowledge, the time for appeal is apt to be short, the difficulty and expense of litigation substantial, and the knowledge of how the change might affect the rights of a prospective buyer almost non-existent." EAGLE, supra note 227. Return to text.

[232] This reduction in price could have an effect on the entire community, a cost not typically considered when regulations are implemented. For instance, reducing valuation of property can reduce property tax revenues. Return to text.

[233] In this instance, the owner has suffered a loss as part of the larger property interest. Often referred to as part of a stick in the bundle, courts are loathe to find the owner entitled to compensation. Such was the case in Zealy v. City of Waukesha, 548 N.W.2d 528 (1996). See supra note 121-34 and accompanying text. Return to text.

[234] A question which has never been addressed is whether a regulation which is held to be unconstitutional would be applied to an acquirer of property after imposition of the regulation but prior to its challenge. Return to text.

[235] For example, a site with a spectacular view would command a greater price than one overlooking a landfill. Property with convenient access is probably more valuable than property far from principal roadways. However, neither property in these examples is be more valuable if all or most development were precluded. Return to text.

[236] See Gazza v. New York State Dept. of Envtl. Conservation, 679 N.E.2d 1035, 1040 (N.Y. 1997). Return to text.

[237] "There are two quite different ways in which a statute or ordinance may be considered invalid 'on its face'—either because it is unconstitutional in every conceivable application, or because it seeks to prohibit such a broad range of protected conduct that it is unconstitutionally 'overbroad.'" Members of the City Council v. Taxpayers for Vincent, 466 U.S. 789, 796 (1984). Return to text.

[238] See Pennell v. City of San Jose, 485 U.S. 1, 11 (1988) (finding a facial due process challenge to a rent control ordinance ripe although takings claim is not). Return to text.

[239] See Pearson v. City of Grand Blanc, 961 F. 2d 1211 (6th Cir. 1992); Eide v. Sarasota County, 908 F.2d 716 (11th Cir. 1990); Smithfield Concerned Citizens for Fair Zoning v. Town of Smithfield, 907 F.2d 239 (1st Cir. 1990) (finding that based on Village of Euclid v. Ambler Realty Co., 272 U.S. 365 (1926) ripeness is satisfied); Southern Pac. Transp. Co. v. City of Los Angeles, 922 F.2d 498 (9th Cir. 1990); Beacon Hill Farm Assoc. II Ltd. Partnership v. Loudoun County Bd. of Supervisors, 875 F. 2d 1081 (4th Cir. 1989) (deeming a facial challenge permissible whether or not a final determination as to the extent of the regulation); Greenbriar, Ltd. v. City of Alabaster, 881 F. 2d 1570 (11th Cir. 1989) (determining that substantive due process is denied the moment a governmental decision affecting property has been made in an arbitrary and capricious manner); Xikis v. City of New York, No. CV 89-2000 (ADS), 1990 WL 156155, at *1 (E.D.N.Y. Sept. 28, 1990). The purpose of the ripeness doctrine is "to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements." Abbott Lab. v. Gardner, 387 U.S. 136, 148 (1967). Return to text.

[240] See Members of the City Council, 466 U.S. at 797-98 ("[A] holding of facial invalidity expresses the conclusion that the statute could never be applied in a valid manner."). Return to text.

[241] See Hodel v. Virginia Surface Mining and Reclamation Assoc., 452 U.S. 264 (1981). A facial challenge presents no concrete controversy "concerning either application of the Act to particular surface mining operations or its effect on specific parcels of land. Thus, the only issue properly before the District Court and, in turn, this Court, is whether the 'mere enactment' of the Surface Mining Act constitutes a taking." Id. at 295.

In Keystone Bituminous Coal Association v. DeBenedictis, 480 U.S. 470 (1987), the Court described this type of challenge as an especially steep uphill battle. See id. at 495. Return to text.

[242] See Keystone, 480 U.S. at 495 (quoting Agins v. City of Tiburon, 447 U.S. 255, 260 (1980)). Return to text.

[243] See, e.g., Agins, 447 U.S. at 262 (holding regulation facially valid since it substantially advanced a legitimate government goal). Return to text.

[244] See id. "At this juncture, the appellants are free to pursue their reasonable investment expectations by submitting a development plan to local officials. Thus, it cannot be said that the impact of general land-use regulations has denied appellants the 'justice and fairness' guaranteed by the Fifth and Fourteenth Amendments." Id. at 262-63. Return to text.

[245] 473 U.S. 172 (1985). Return to text.

[246] See id. at 186. Return to text.

[247] 477 U.S. 340 (1986). Return to text.

[248] See id. at 351. Return to text.

[249] See Agins, 447 U.S. at 260 (finding no concrete controversy before the court where appellants have not submitted a plan for development of their property as the ordinances permit); MacDonald, 477 U.S. at 357. Return to text.

[250] Of course, requiring a final decision gives every incentive to government planners to "prolong the procedures as long as possible, for in delay they purchase unilateral insulation from accountability for their past conduct." Epstein, supra note 226, at 961. Return to text.

[251] In California, as in most states, land development is subject to comprehensive environmental regulations. See generally PRACTICE UNDER THE CALIFORNIA ENVIRONMENTAL QUALITY ACT (CEB Practice Guide 1996). The Environmental Impact Reports required before construction can begin cover an extraordinary number of issues. See, e.g., A Local and Regional Monitor v. City of Los Angeles (UC Land Associates), 16 Cal. App. 4th 630, 642 (Cal. App. 2 Dist. 1993) (noting that the environmental impact report for one multi-phased project "discussed the project in terms of earth (grading, drainage, geologic hazards, and seismic), air (quality, and stationary sources), animal life, noise, light/glare, circulation (transportation, access, and driveway), energy conservation, water conservation, service system (storm drain age, sewers, and solid waste disposal), aesthetics, public services (fire, police, and emergency), land use, 'risk of upset/human health,' jobs, and housing"). In Hunziker v. Iowa, 519 N.W.2d 367, 369 (Iowa 1994), the property owners were prevented from using their property because an archaeological study revealed the presence of ancient human remains on the lot. Return to text.

[252] In one recent California case, the trial court noted that the property owner's development costs were nearly $1 million to process a tentative map and prepare a final map in order to subdivide its property. Furthermore, under development regulations, the property owner was required to pay additional impact and other fees of approximately $1 million and to obtain security of approximately $9 million "to secure faithful performance and payment to laborers and materials suppliers for public improvements and grading in order to obtain its final map." Penn Pacific Properties, Inc. v. City of Oceanside, No. N 54 355 (Sup. Ct. Ca San Diego, Aug. 19, 1996). Return to text.

[253] For a discussion of the "struggle" between courts in an attempt to resolve how many applications are required before a takings challenge to a land use regulation can be brought, see Michael M. Berger, The "Ripeness" Mess in Federal Land Use Cases or How the Supreme Court Converted Federal Judges into Fruit Peddlers in INSTITUTE ON PLANNING, ZONING, AND EMINENT DOMAIN § 7.03[2] (Southwestern Legal Foundation 1991). Return to text.

[254] See Lopes, 629 N.E.2d at 1315. Return to text.

[255] The owner in Zealy appears to have been caught in this bureaucratic entanglement. He negotiated with the city to provide sewer services to his property in contemplation of future residential development. However, because he had not actually started development, the Court dismissed his challenge to the rezoning action based on reliance. See Zealy, 548 N.W.2d at 534. Return to text.

[256] See Weinberger v. Board of Public Instructions, 112 So. 253, 255 (Fla. 1927); Trust Co. v. City of Chicago, 96 N.E.2d 499, 505 (Ill. 1951); Pressman v. D'Alesandro, 125 A.2d 35, 40 (Md. 1956); Farmer v. Town of Billerica, 409 N.E.2d 762, 763 (Mass. 1980); Dearborn TP. v. Dail, 55 N.W.2d 201, 204 (Mich. 1952); Filister v. City of Minneapolis, 133 N.W.2d 500, 503 (Minn. 1964); Rathbone v. Wirth, 45 N.E. 15, 20 (N.Y. 1896); Alliance for Progress, Inc. v. New York State Div. of Hous. & Community Renewal, 532 N.Y.S.2d 821, 825 (N.Y.Sup.Ct. 1988); Hamann v. Heekin, 102 N.E. 730, 732 (Ohio 1913); Pierce v. King County, 382 P.2d 628, 634 (Wash. 1963). See also Shepherd v. San Jacinto Junior College Dist., 363 S.W.2d 742, 762 (Tex. 1962) (Calvert, J. dissenting). Return to text.

[257] See 260 U.S. at 415. Return to text.

[258] See supra notes 102-20 and accompanying text. Return to text.

[259] See Gazza, 679 N.E.2d at 1038 n.3. Return to text.

[260] Courts are unlikely to fashion a categorical rule precluding many regulatory takings challenges. However, they may permit property owners to sell the right to sue for the regulatory taking. This proposition seems all the more unlikely in light of the court's observation that

once taken, those property interests are no longer owned by the private landowner and may not be sold by such party. Rather, a promulgated regulation forms part of the title to property as a pre-existing rule of State law. While the remaining property interests may still be freely transferred by the landowner, a purchaser's title is necessarily limited to and by those property interests alone.

A reasonable interpretation of this passage is that a land use regulation as applied to property does not create a separate property interest in a takings suit that could be sold apart from the rest. It is not unreasonable to expect that had the question of whether the ability to sue for a regulatory taking could be sold were before the court, the court would have found no such right to exist. Return to text.

[261] See Lopes, 629 N.E.2d at 1315. Return to text.

[262] See Epstein, supra note 226, at 957. Return to text.