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From page 7... ... Nevertheless, it appears that a statute requiring the delivery of an airport disclosure statement, as well as requiring that a deed contain an airport disclosure provision or that a disclosure statement be recorded as part of a deed, would not be a taking of an owner's real property. Under the police power the government has an inherent regulatory power to protect the health, safety, morals, and general welfare of the community. Read the entire page →
From page 8... ... . its police power by prohibiting certain activities such as construction in areas prone to flooding.67 In New York, a town planning board's conditioning of its approval for a proposed building site on the owner's acceptance of a conservation restriction on development was held not to be a taking.68 In a Wisconsin case it was held that the transportation department's enactment of set-back restrictions was not a taking.69 On the other hand, with respect to airport zoning and real property near airports, a property owner could bring a claim in inverse condemnation based on restrictive airport zoning.70 Airport zoning ordinances that restrict land use in order to permit safe flight approaches may result in a de facto taking of property.71 Some courts have held that ordinances restricting heights of structures and objects in the vicinity of an airport constitute a taking with regard to an owner's property.72 However, other courts have held that airport zoning ordinances restricting land use may be a reasonable exercise of the police power.73 An Illinois appellate court held that height-restriction ordinances near an airport are a proper use of the police power to protect the public from aircraft hazards.74 Although the statutory restrictions were much greater than would be true with an airport disclosure act, Davis v. Read the entire page →
From page 9... ... A categorical, or per se, taking81 occurs when there is a permanent, physical invasion of an owner's real property,82 no matter how minor.83 In Loretto v. Teleprompter Manhattan CATV Corp.84 the United States Supreme Court held that a requirement that television cables be installed on a landowner's property without compensation pursuant to a statute permitting such installations was a taking. Read the entire page →
From page 10... ... Thereafter, in 1988, the state legislature enacted the Beachfront Management Act that barred the landowner from erecting any habitable structures on the land.95 The purpose of the legislation was to protect the beaches from erosion from the ocean, wind, and various other causes.96 The landowner filed an inverse condemnation action, claiming that the state's action was a taking because it deprived the owner of all economic use of the property. The United States Supreme Court held that compensation could be required "if, on remand, the state court found that the development regulations were restrictive enough to amount to a taking of the beachfront property."97 The Court held that no matter how "weighty the asserted ‘public interests' involved" are, the government may not deprive an owner of "all economically beneficial use of land…."98 Nevertheless, it should be noted that a regulation that diminishes, even destroys, the value of a business operated on an owner's property typically is not a taking within the meaning of Lucas: "the categorical taking rule applies only to claimed takings of land."99 An airport disclosure law is not a Lucas-type, categorical taking of a landowner's property; an airport disclosure law would not deprive the owner of all beneficial use of the property. Read the entire page →
From page 11... ... Similarly, our doctrine of regulatory takings "aims to identify regulatory actions that are functionally equivalent to the classic taking."100 However, an airport disclosure requirement imposed on a seller of property is not a use by the government of its own property to destroy private property resulting in a taking. C.5 No "Exaction" by an Airport Disclosure Act Another form of a categorical taking is when the government requires a dedication of real property known as a land-use exaction.101 As discussed briefly herein, an airport disclosure law is not an exaction. Read the entire page →
From page 12... ... n individualized assessment of the impact of the regulation on a particular parcel of property and its relation to a legitimate state interest….'"119 In Penn Central the Court emphasized three factors: the economic impact of the regulation on the claimant; the extent to which the regulation has interfered with distinct investment-backed expectations; and the character of the governmental action. The California Supreme Court has identified other nonexclusive factors based on Penn Central and other United States Supreme Court cases that may be relevant considerations in an alleged Penn Central-type regulatory taking analysis.120 The purpose of Penn Central balancing is "to prevent the government from ‘forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole.'"121 Under a Penn Central "ad hoc factual inquiry," a court may find "that a particular regulation ‘goes too far' and constitutes a taking."122 It does not appear that under the Penn Central factors a statute requiring the delivery of an airport disclosure statement or even the recording of one in the land records would constitute a taking. Read the entire page →
From page 13... ... First, a disclosure statute is not an actual appropriation of private property nor a physical invasion of an owner's real property.127 Second, neither requiring a disclosure statement nor requiring the recording of one would "den[y] all economically beneficial or productive use" of a prospective seller's land.128 For there to be a taking, the diminution in value of a property "must be near total."129 With an airport disclosure law, an "owner of real property [is not being] Read the entire page →

From page 7...

... Nevertheless, it appears that a statute requiring the delivery of an airport disclosure statement, as well as requiring that a deed contain an airport disclosure provision or that a disclosure statement be recorded as part of a deed, would not be a taking of an owner's real property. Under the police power the government has an inherent regulatory power to protect the health, safety, morals, and general welfare of the community.

Read the entire page →

From page 8...

... . its police power by prohibiting certain activities such as construction in areas prone to flooding.67 In New York, a town planning board's conditioning of its approval for a proposed building site on the owner's acceptance of a conservation restriction on development was held not to be a taking.68 In a Wisconsin case it was held that the transportation department's enactment of set-back restrictions was not a taking.69 On the other hand, with respect to airport zoning and real property near airports, a property owner could bring a claim in inverse condemnation based on restrictive airport zoning.70 Airport zoning ordinances that restrict land use in order to permit safe flight approaches may result in a de facto taking of property.71 Some courts have held that ordinances restricting heights of structures and objects in the vicinity of an airport constitute a taking with regard to an owner's property.72 However, other courts have held that airport zoning ordinances restricting land use may be a reasonable exercise of the police power.73 An Illinois appellate court held that height-restriction ordinances near an airport are a proper use of the police power to protect the public from aircraft hazards.74 Although the statutory restrictions were much greater than would be true with an airport disclosure act, Davis v.

Read the entire page →

From page 9...

... A categorical, or per se, taking81 occurs when there is a permanent, physical invasion of an owner's real property,82 no matter how minor.83 In Loretto v. Teleprompter Manhattan CATV Corp.84 the United States Supreme Court held that a requirement that television cables be installed on a landowner's property without compensation pursuant to a statute permitting such installations was a taking.

Read the entire page →

From page 10...

... Thereafter, in 1988, the state legislature enacted the Beachfront Management Act that barred the landowner from erecting any habitable structures on the land.95 The purpose of the legislation was to protect the beaches from erosion from the ocean, wind, and various other causes.96 The landowner filed an inverse condemnation action, claiming that the state's action was a taking because it deprived the owner of all economic use of the property. The United States Supreme Court held that compensation could be required "if, on remand, the state court found that the development regulations were restrictive enough to amount to a taking of the beachfront property."97 The Court held that no matter how "weighty the asserted ‘public interests' involved" are, the government may not deprive an owner of "all economically beneficial use of land…."98 Nevertheless, it should be noted that a regulation that diminishes, even destroys, the value of a business operated on an owner's property typically is not a taking within the meaning of Lucas: "the categorical taking rule applies only to claimed takings of land."99 An airport disclosure law is not a Lucas-type, categorical taking of a landowner's property; an airport disclosure law would not deprive the owner of all beneficial use of the property.

Read the entire page →

From page 11...

... Similarly, our doctrine of regulatory takings "aims to identify regulatory actions that are functionally equivalent to the classic taking."100 However, an airport disclosure requirement imposed on a seller of property is not a use by the government of its own property to destroy private property resulting in a taking. C.5 No "Exaction" by an Airport Disclosure Act Another form of a categorical taking is when the government requires a dedication of real property known as a land-use exaction.101 As discussed briefly herein, an airport disclosure law is not an exaction.

Read the entire page →

From page 12...

... n individualized assessment of the impact of the regulation on a particular parcel of property and its relation to a legitimate state interest….'"119 In Penn Central the Court emphasized three factors: the economic impact of the regulation on the claimant; the extent to which the regulation has interfered with distinct investment-backed expectations; and the character of the governmental action. The California Supreme Court has identified other nonexclusive factors based on Penn Central and other United States Supreme Court cases that may be relevant considerations in an alleged Penn Central-type regulatory taking analysis.120 The purpose of Penn Central balancing is "to prevent the government from ‘forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole.'"121 Under a Penn Central "ad hoc factual inquiry," a court may find "that a particular regulation ‘goes too far' and constitutes a taking."122 It does not appear that under the Penn Central factors a statute requiring the delivery of an airport disclosure statement or even the recording of one in the land records would constitute a taking.

Read the entire page →

From page 13...

... First, a disclosure statute is not an actual appropriation of private property nor a physical invasion of an owner's real property.127 Second, neither requiring a disclosure statement nor requiring the recording of one would "den[y] all economically beneficial or productive use" of a prospective seller's land.128 For there to be a taking, the diminution in value of a property "must be near total."129 With an airport disclosure law, an "owner of real property [is not being]

Read the entire page →

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