The ‘Takings Clause’ of the U.S. Constitution might seem–at first glance–to be an arcane issue beyond the scope of the land surveyor. However, situations that result in uncompensated takings often crop up at the local level, entangling land use professionals who unwittingly tumble down this particular rabbit hole.

Some situations associated with possible Takings Clause violations are fairly obvious, as may be the case in construction disputes for major gas lines. In these situations, the energy company often has the power of eminent domain, and is generally operating under federal authority that is broad, but not unlimited. An associated right of entry for authorized surveying professionals often exists, but that right is subject to specific standards.

Condemnation of private land that is immediately transferred to a developer for a supposed economic benefit also may be an apparent ‘red flag.’

On the other hand, many less spectacular–and therefore less obvious–situations could result in a Takings Clause conflict, including:

  • Mis-application of riparian title principles, or related regulations.
  • Poorly drafted or improperly applied state, city or county ordinances and codes.
  • Zoning standards.
  • Unreasonable conditions attached to a construction project review/approval process.
  • Poorly designed diversion of storm water, wastewater.
  • Changes to existing street grades that eliminate legitimate access.
  • Condemnation of more land than is needed for an otherwise legitimate public project.


Early Development

Early U.S. Supreme Court decisions include several interesting examples where landowners were forbidden to produce and sell liquors after state-level prohibition statutes were established in some jurisdictions. As seen in Mugler v. Kansas: 123 U.S. 623 (1887), the claimants in these cases were generally unsuccessful in arguing unconstitutional takings because buildings and land formerly used for breweries and distilleries could still be used for other lawful purposes. Though the Volstead Act since has been repealed, early courts routinely upheld bans against “intoxicating liquors” as legitimate exercises of police power.

One of the first decisions to consider regulation (or other diminishment of land value by the government) as a ‘taking’ is Pennsylvania Coal v. Mahon: 260 U.S. 393 (1922). Justice Holmes observes: “Government hardly could go on if to some extent values incident to property could not be diminished without paying for every such change in the general law. As long recognized, some values are enjoyed under an implied limitation and must yield to the police power. But obviously the implied limitation must have its limits, or the contract and due process clauses are gone. 

One fact for consideration in determining such limits is the extent of the diminution. When it reaches a certain magnitude, in most if not in all cases there must be an exercise of eminent domain and compensation to sustain the act. So the question depends upon the particular facts. The greatest weight is given to the judgment of the legislature, but it always is open to interested parties to contend that the legislature has gone beyond its constitutional power.”

It is ironic that the statute struck down in this case was written to protect surface structures from damage or destruction due to subsidence caused by coal mining. The court concluded that the statute could not operate in a retroactive manner so as to deprive coal companies of legitimate vested property rights in the coal seams.


Some Problems Are Less Obvious

One of the more difficult aspects of dealing with the Takings Clause is identifying situations where government actions might go beyond a reasonable exercise of police power. Furthermore, unconstitutional takings are not limited to situations where the government actually states an intent to condemn rights to real property. A taking can occur either as the result of innocent mistake or from a conscious intent to circumvent the law. Takings ultimately are judged by the results of government actions, not by their stated intent.

An excellent example of an inadvertent problem is described in Hughes v. Washington: 389 U.S. 290 (1967). In a 1966 dispute over a privately-owned oceanfront lot, the Washington State Supreme Court had ruled that the shoreline accretions belonged to the state, thus effectively depriving the littoral owner of rights incident—including the right to build a wharf and title to accreted lands.

In a unanimous decision, the U.S. Supreme court overturned the Washington decision. In his concurring opinion, Justice Stewart observes: “As is so often the case when a State exercises its power to make law, or to regulate, or to pursue a public project, pre-existing property interests were impaired here without any calculated decision to deprive anyone of what he once owned. 

But the Constitution measures a taking of property not by what a State says, or by what it intends, but by what it does. Although the State in this case made no attempt to take the accreted lands by eminent domain, it achieved the same result by effecting a retroactive transformation of private into public property—without paying for the privilege of doing so.” 


Local Ordinances vs. Takings Clause

Several subsequent decisions have attempted to clarify the line between legitimate actions by a local unit of government as opposed to unfairly burdening a small group with a public problem. One significant benchmark ruling is Penn Central Trans. v. New York City: 438 U.S. 104 (1978). Justice Brennan observes that the intent of the Takings Clause is to forbid government from placing what should be a shared public burden on the shoulders of a small group. As is often the case, the court declines to provide a “cookie-cutter” list of parameters, but does include several guidelines to help courts determine when this amorphous line is crossed.

Clear conflicts occur when landowners are physically ousted from their land, but less obvious indicators could also justify the application of the Takings Clause, including:

  • Restrictions that do not serve a substantial public purpose.
  • Capricious takings that are unnecessary for any public purpose.
  • Some zoning restrictions or historic site designations.

It is clear—based on numerous decisions from many states—that most zoning restrictions are not considered unconstitutional takings, despite the inconvenience that they may cause.

A California decision highlights how conditions placed on construction projects can violate the Takings Clause. Nollan v. California Coastal Commission (CCC): 483 U.S. 825 (1987) describes an owner of oceanfront property attempting to obtain a building permit for a residential home. The parcel was located between two public beaches. The CCC claimed that the proposed house would restrict beach use by ‘psychologically discouraging’ beach-goers on the two public beaches from recognizing those existing public rights. Further, it was claimed that the private home would “burden the public’s ability to traverse to and along the shorefront.” In order to mitigate this purported problem, the CCC required the owner to dedicate a public easement over their land as a condition for building permit approval.

In rejecting this requirement, the court observed: “Given, then, that requiring uncompensated conveyance of the easement outright would violate the Fourteenth Amendment, the question becomes whether requiring it to be conveyed as a condition for issuing a land-use permit alters the outcome. We have long recognized that land-use regulation does not effect a taking if it “substantially advance[s] legitimate state interests” and does not “den[y] an owner economically viable use of his land,””

The majority concluded that the requirement for a permanent public easement was not directly related to the problem the building would create and would do nothing to solve any obstruction of the ocean from the landward side.      

Part of a local ordinance in Seattle Washington relating to houseboat mooring sites was declared unconstitutional in Kennedy v. Seattle.: 617 P.2d 713 (1980). The effect of ordinance No. 107012 was to make it a practical impossibility to terminate a lease for a mooring site once a contract was finalized. Because the statute gave a paying renter broad immunity from eviction, the court concluded that it was “confiscatory” and therefore a violation of the Takings Clause.

Flawed engineering designs can also fall afoul of state constitutions. In Jenkins v. Shenandoah County: 436 S.E.2d 607 (1993), the Virginia court found that a taking resulted from the intersection of state laws relating to storm drainage with a poorly designed city drain system that flooded the same parcels after each heavy rain.

The County argued that it had no responsibility to maintain the function of the storm drains, but the drainage easements had been dedicated to the Board of Supervisors of Shenandoah County. Furthermore, the structures in place were at variance with the design approved by the Virginia Department of Transportation. As a result of the substandard drainage structures, the lots adjacent to the drainage easement were unmarketable. In this instance, the result was found to be a violation of the Virginia Constitution Article 1, 11.

While the Takings Clause often seems merely an interesting political problem found in the daily newspaper, the examples above make clear that this is an issue that can affect Land Surveyors, Engineers, and other land use professionals.