V.Analysis

V.Analysis

Takings jurisprudence has developed slowly. Over the course of the many community medical emergencies that have affected the United States, this jurisprudence has developed in the light of an expansive understanding of the police powers. The police power “is the chief attribute of a sovereign power, for if in its exercise there is conflict with parts of the Constitution, the police power exercised to promote its major objects will prevail[.]”102 InSection II,the government took every action to protect the health of the citizens in the town, whether it be setting up hospitals or confining sick people to homes, and no takings were ultimately upheld. In Section IV, there was government action that forced businesses to shut down, and landlords to not evict tenants,andnotakingswerefound.

As the jurisprudence of both the police power and takings developed, the police power retained its strength and courts always find an exception to takings under the police power. Throughout Section II, takings were not found due to the health officials often overreaching intheirauthority;however,itisnotstatedthathadthehealthofficials had the authority to do those actions, that they would be considered takings. In Lucas, we saw the first real limit on the police powers.103 The court in Lucas determined that when a regulation removed all economicaluseofthepropertythatitwasa taking,104 however,itstill carved out an exception for the proper use of the police powers. “The government must pay just compensation for such takings ‘except to the extent that background principles of nuisance and property law’ independentlyrestricttheowner’sintendeduseoftheproperty.”105 By granting this nuisance exception, it permitted the continued useofthe policepowerswithoutpayingjustcompensationforpropertytaken.

InthetimeofCOVID-19,thecourtin Friends doesnotexplicitlyname the normal operation of a business during a pandemic as a nuisance, which is why they did not need to rely on a Lucas analysis. However, “[a] public nuisance is an unreasonable interference with a right

102 White, 134A.at411. 103 Although regulatory takings began with Pennsylvania Coal Co. v. Mahon, 260 U.S. 393 (1922), with the determination that a regulation that goes too far could be a taking, Lucas gives us thedirectanswerastowhen‘toofar’ becomesa taking. 104 Lucas, 505U.S.1003(1992). 105 Lingle v. Chevron U.S.A., Inc., 544 U.S. 528, 537 (2005) (quoting Lucas, 505 U.S.at1032).

common to the general public . . . [w]hether the conduct involves a significant interference with the public health, the public safety, the public peace, the public comfort or the public convenience[.]”106 Therefore,thecourtcouldhavedeemedita nuisance,applieda Lucas analysis, andfoundthat this action was within the nuisance exception recognized by the court for the proper use of the police powers. Instead, the court relied on the temporary nature and applied a Tahoe analysis.107

Thequestionremainsthough,istherea limitonthepolicepowerwhen it comes to community medical emergencies and private property? Likely yes, although few courts have taken the opportunity to find it. Ina generalapplicationofthepolicepower,forsomethingpermanent asin Lucas, if the regulation takes all economical use ofthe property, then it becomes a taking, which is arguably a restriction on the police power. However, what determines loss of all economic use is something that the courts are still battling with.108 If the police power is taken for something not facially permanent, where the regulation does not have a set ending, as shown in the COVID-19 cases, it is entirelyunclearwhetherthereisa limittothepolicepower.In Friends, “themajorityrepeatedlystresse[d]thatsuchclosureistemporary,this may in fact not be so for businesses that are unable to endure the associated revenue losses. Additionally, the damage to surviving businessesmaybevast.”109 Ifa businesspermanentlyclosesasa result of these temporary regulations, is this considered a taking? No court hasaddressedthis.ThecourtinConnecticutalsoasksanotherquestion that is not answered. If the landlords “can continue to accept rental paymentsfromtenantsnotfacingfinancialhardship,”110 howarethey to go about making the determination of who is facing a financial hardshipduringthistimeandwhoisnot?

106 Machipongo Land & Coal Co. v. Dep’t of Envtl. Protection, 799 A.2d 751, 773 (Pa.2002)(citingRestatement (Second)ofTorts §821B(1965)). 107 See Tahoe, 535U.S.302(2002). 108 See generally Machipongo Land & Coal Co. v. Dep’t of Envtl. Prot., 799 A.2d 751(Pa. 2002)(wherethecourt determinedthatalthoughcoalcannotbeminedfrom parcels of property, property could still be stripped of timber or sold for residential uses). 109 Friends, 227A.3dat904(C.J. Saylor,dissenting)(internalcitationsomitted). 110 Auracle Homes, LLC, 478F.Supp.3dat221(citingElmsfordApt.Assocs.,LLC, 2020U.S.Dist.LEXISat*9).

Additionally,“theSupremeCourtoftheUnitedStateshasadmonished that the impermanent nature of a restriction ‘should not be given exclusivesignificanceonewayortheother’indeterminingwhetherit is a proper exercise of police power.”111 With no end of the Coronavirus in sight, although temporary now, there is no way of knowing if or when these regulations end. In Tahoe, the regulation in question was set at 32 months and all parties knew when the restrictionswouldbelifted.112

In fact, the Court in Tahoe held very narrowly “that regulations with built-in expiration dates generally cannot effectuate Lucas takings[.]”113 “The reasoning driving Tahoe-Sierra applies only to facially temporary regulations, not to regulations that are temporary only in retrospect. . .. The situation changes, however, when a regulation is facially unbounded.”114 These regulations restricting the use of property can last as long as the Coronavirus pandemic, which will last for an unknown period of time. The Court has also “recognized that a later amendment to a regulation or a judicial invalidation cannot erase any taking ‘for the period of time during which regulations deny a landowner all use of his land.’”115 Additionally, it has been held in lower courts that a “prospectively permanent restriction on economically viable use effect[s] a taking of theparcelasa temporalwhole,regardlessoftheintereststhatrevert[] tothelandownerupon[thestate’s]subsequentamendment.”116

Although “[p]roperty is held under the implied obligation that the owner shall use it in such way as not to be injurious to the community”117 and the definition of a public nuisance being wideranging,118 theprotectionofprivatepropertyshouldstillberespected. Thegovernmentshouldbeabletoprotectthehealth,safety,andmorals

111 Friends, 227 A.3d at 904 (C.J. Saylor, dissenting) (quoting Tahoe, 535 U.S. at 337). 112 See generally Tahoe, 535U.S.302(2002). 113 Bridge Aina Le’a, LLC v. State Land Use Comm’n, No. 11-00414 SOM-KJM, 2018U.S.Dist.LEXIS107583 at *30(D. Haw. June27,2018). 114 Id. at *35. 115 Id. (quoting FirstEnglish EvangelicalLutheran Churchv. Cnty of L.A.,482U.S. 304,318(1987)). 116 Res. Invs., Inc. v. United States, 85 Fed. Cl. 447, 481 (2009) (emphasis in original). 117 White’sAppeal, 134A.409,412(Pa.1926). 118 Machipongo Land & Coal Co. v. Dep’t of Envtl. Prot., 799 A.2d 751, 773 (Pa. 2002).

of its citizens through the police power; however, property owners should know when, if ever, they will be able to use their properties in thewaythattheydeemfit.Courtsshouldnotgivesuchwidedeference to regulations that are ‘temporary’ in nature when it comes to events that no parties can control or see an end to, like community medical emergencies. In natural disasters such as hurricanes, fires, or floods, the damage to private property can be catastrophic. Still, the time frametorebuildcanbecalculatedoranticipated.Simplyhavinga good goal,andthepowertomakethatgoala potentialreality,isnotenough toignoretheconstitutionalrightsthatprivatepropertyownershave.

[G]oodintentionstowarda laudableendarenotalone enough to uphold governmental action against a constitutional challenge. Indeed, the greatest threats to our system of constitutional liberties may arise whentheends are laudable,andtheintent is good — especially in a time of emergency. In an emergency, even a vigilant public may let downits guardover its constitutionallibertiesonlytofindthatliberties,once relinquished, are hard to recoup and that restrictions — while expedient in the face of an emergency situationmaypersistlongafterimmediatedangerhas passed.119

Courts need to address the difference between permanent, temporary, andtakingsofunknownlengthtoensureboththegovernmentandthe citizens have full access to their rights. In a situation that calls for a potential taking of unknown length, such as a community medical emergency, the government defaults to the decisions of medical officials. These medical officials make predictions on the length and effect of these medical emergencies.120 Those predictions need to be heeded and analyzed under Tahoe. The Court then needs to define what is temporary or admit that the restrictions are prospectively permanent and hold them as a taking. If the pandemic will last within the 1-year reasonableness limit suggested within Tahoe, 121 then the

119 Cty. of Butler v. Wolf, No. 2:20-CV-677, 2020 U.S. Dist. LEXIS 167544 at 3 (W.D. Pa.Sept.14, 2020)(emphasisinoriginal). 120 Megan Scudellari, How the Pandemic Might Play Out in 2021 and Beyond, Nature(Aug.5,2020), https://www.nature.com/articles/d41586-020-02278-5. 121 See Tahoe, 535 U.S. at 341(holding that “[i]t may well be true that any moratorium that lasts for more than one year should be viewed with special skepticism.”).