Save Our Environment
A MOST TREASURED RIGHT: THE RIGHT TO DENY ACCESS AND THE FIFTH AMENDMENT By John R. Embick, Esquire John R. Embick, PLLC Chair of the CCBA Environmental Law Section
The Fifth Amendment to the U.S. Constitution provides, in part, as follows: o person shall … be deprived of life, liberty, or N property, without due process of law; nor shall private property be taken for public use, without just compensation. The Pennsylvania Constitution has a similar provision, and it is set forth in Art. 1, Section 10, Further, Fourteenth Amendment of the U.S. Constitution extends the provisions of the Fifth Amendment to states and local governments. The field of law that has evolved over disputes involving this portion of the Fifth Amendment is known as “takings clause law,” and has seen many twists and turns down through the years. Takings clause law is of interest to environmental law practitioners because takings issues arise frequently in connection with environmental regulatory programs and land use controls. See, e.g., Pennsylvania Coal v. Mahon, 260 U.S. 393 (1922) (Pennsylvania law improperly restricted mining of coal under streets, houses and places of public assembly); Village of Euclid v. Ambler Realty Co., 272 U.S. 365 (1926) (a general zoning ordinance was upheld); Penn Central Transportation Co. v. New York City, 438 U.S. 104 (1978) (New York City properly restricted construction above Grand Central Station, and the long-standing “Penn Central” test was developed); Agins v. City of Tiburon, 447 U.S. 255 (1980) (if land use regulations substantially advance legitimate government interest, and as long as the regulations do not prevent a property owner from making economically viable use of private property, then no compensation is required); Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992) (governmental use regulations which deny a landowner of all economically beneficial use must be compensated); Nollan v. California Coastal Commission, 483 U.S. 825 (1987) (requirement that 24 | New Matter
private land owner grant public easement as a condition of land development approval was a taking); Dolan v. City of Tigard, 512 U.S. 374 (1994) (requirement that private land owner dedicate land for public greenway as a condition of land development approval was unconstitutional); Palazzolo v. State of Rhode Island, 533 U.S. 606 (2001) (denial of permission to place fill on coastal wetlands not a taking); Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency, 535 U.S. 302 (2002) (32 month development moratorium was not a taking, and the planning agency was represented by the future Chief Justice Roberts); Kelo v. City of New London, 125 S. Ct. 2655 (2005) (use of eminent domain power to take private property for economic development purposes is a valid public use); and Lingle v. Chevron U.S.A. Inc., 544 U.S. 528 (2005) (the High Court overturned the Agins test, and addressed the question of whether a law establishing a rent cap was constitutional under the Fifth Amendment). There are a number of different categories of a taking of private property, but two main “flavors” are: (1) physical takings, in which the government physically appropriates private property, and (2) de facto or regulatory takings, in which the government takes regulatory action which affects the use of private property. For decades, “use” restrictions of private property were evaluated using a flexible test presented in the Penn Central Transportation Co. case (using factors such as: (1) economic impact of the regulation; (2) degree of interference with reasonable investment-backed expectations; and (3) the character of the governmental action). Two recent U.S. Supreme Court cases appear to have provided significant new protections to land-owners facing governmental restrictions affecting private property. The first is Knick v. Township of Scott, Pennsylvania, 588 U.S. __, 139 S. Ct. 2162 (2019). This case was authored by Chief Justice Roberts (in a 5 to 4 decision), and the decision stands for the principle that landowners complaining about state or local action which takes or restricts their property may immediately invoke federal
