Regulatory Takings: Annicelli v. Town of South Kingstown

Rhode Island

Rhode Island, our littlest state.

A couple of weeks ago I mentioned that I would be writing about Annicelli v. South Kingstown. Not a lot of people have heard of this case, except those of us geeky enough to spend our time reading regulatory takings law. Yet it’s an interesting case to think about today because, over thirty years ago, the state of Rhode Island grappled with issues concerning barrier beaches and flood zones that remain with us today. Ultimately, I think the case is a reminder that the very specific circumstances an owner finds himself or herself in determines whether a regulatory taking has occurred. Not all regulations result in takings, after all.

What, you might ask, is a “regulatory taking”? Maybe we should back up… What is a “taking”?

In its most basic form, a taking occurs when the government takes possession of privately owned land for public use. Under the Fifth Amendment of the US Constitution, such an event can occur, but the government is required to provide just compensation for the taking. Many states have similar property protections written into their constitutions.

A regulatory taking happens when a regulation (zoning ordinance, for example, or some other ordinance or law) takes the value of privately owned property even if the property itself remains physically in the possession of the owner. The regulatory taking is a legal category that, while the concept existed earlier, really emerged during the twentieth century. Moreover, in the late twentieth century, several different property rights movements developed the category in the law through litigation.

We’ve had several important US Supreme Court cases involving the definition of a regulatory taking and how to determine when property has been taken through regulation. One of the most famous regulatory takings cases, Lucas v. South Carolina Coastal Council, involved the issue of how far a regulation could go in decreasing the value of private property before a taking had occurred. The U.S. Supreme Court found that, essentially, if a regulation takes away all economic viability, the courts will find a taking.

At some point, I’ll write more about this. For the moment keep in mind that at the time it was decided, many thought it would be mobilized (i.e., used by activists) to deregulate land in many communities throughout the US. However, over the years Lucas has posed a special challenge to anyone who attempts to use it: it requires that the regulation totally wipes out the economic viability of the land. There can be no beneficial use left to the owner. It is rare that a regulation does this, but when one does Lucas does provide that plaintiff an opportunity to recover losses as a result.

Buried inside the Lucas decision is a reference to Annicelli, which is really the topic of today’s post. When I began studying regulatory takings, I read right past it in the case (on that snowy, cold day I wrote about recently). Then, while living in Rhode Island, an environmental lawyer pointed it out to me. I went and hunted down the case, and quickly realized something that really should have been obvious to me already: state-level regulatory takings issues were both very widespread in the middle of the twentieth century and had long been an issue for state courts. In fact, reading through Annicelli, I realized that the Lucas doctrine had been a part of state law for quite some time.

At the state level, however, the issue seemed a little more complicated because states have police powers to regulate for the health and safety of their citizens. The question, then, was where the line between a regulation for the public good and a regulation designed to prevent a public harm? This line matters greatly. For states, it is the line between a constitutional exercise of state police powers (which do not require compensation and are designed to prevent public harms) and an exercise of eminent domain (that do require just compensation as the property is being taken for the public use to advance the public good).

This question became more complex in the twentieth century as scientific evidence mounted indicating both that the sea level was rising and that the coast was eroding. As state officials struggled with the realities of what this meant for the land, they began to experiment with state and local ordinances designed to protect what we now call wetlands and barrier beaches in the hopes of slowing down erosion, protecting property inland from sea surges, and providing protection from serious storms. In theory, these ordinances are generally designed to protect the public from a harm — in this case, storm surges and beach erosion. That states have the powers to enact such ordinances has always been true. But at what point does such an ordinance cross the line into the realm of eminent domain taking?

Rhode Island is a little state — it’s about 37 miles wide and 48 miles long. Yet if you look closely at it (see the photo from Google Earth), you’ll see that relatively speaking, it has a lot of coastline: 400 miles, in fact. And, if you look at the maps you can locate here you’ll see that it is mostly watershed to one river or another. The maintenance of its coastline has long been an issue for this little state. After all, if its coast erodes it not only loses economic development possibilities, it loses land — that is, beach erosion means its territory is diminishing… And a state can’t exist without a territory to govern. Well, I suppose, in one’s imagination it could exist… But it won’t exist as a state in the United States. So the state does what it can to maintain that land as best it can both to protect its residents and to maintain its identity; and the communities along the 400 miles of coastline tend to make how that land is developed and what it is used for a priority in their policymaking in order to both advance economic development and protect their communities.

In 1975, Ida Annicelli signed a purchase-and-sale agreement with the owner of real estate in Green Hill Beach. Her plan was to construct a single-family dwelling there. There are a lot of vacation homes in the area, and Mrs. Annicelli was, in fact, an out-of-state resident. The agreement she signed, according to court documents, stipulated that she would “relieve the seller of any responsibility toward successfully obtaining ‘all necessary buildings, sanitation, and coastal resources permits.’” Mrs. Annicelli did, in fact, file for the requisite permits to build a single-family dwelling. The purchase price for the land was $16,750.

Green Hill Beach with Roads

A map (with roads) of Green Hill Beach today — note that Annicelli purchased her land in 1975. The area would have looked different, but there would have been development in the area even then.

Three weeks after she signed the purchase-and-sale agreement and before she could actually take title and possession of the land, the town passed a zoning ordinance creating a “High Flood Danger” zone (HFD). The ordinance in part provided, “No residential dwelling designed or used for overnight human occupancy shall be constructed within the HFD Zoning District as defined herein. This prohibition shall apply even if the land within said HFD Zoning District is above the base flood elevation.”

In other words, the classification of the land as an HFD zone meant that Mrs. Annicelli would not be able to construct a single-family dwelling. In fact, the uses that were left available to Mrs. Annicelli included several possibilities such as “a horticultural nursery or greenhouse, a park or playground, a wildlife area or nature preserve, or a golf course or marina… raising of crops or animals, the storing of commercial vehicles, and the repairing of boats” (p. 4).

Importantly, all these potential uses would have required a much larger tract of land that she had agreed to purchase. Also, there were 30 other homes in the area already. She was joining a small community, not attempting to build in an undeveloped area.

The court noted that none of the uses the ordinance allowed were available to Mrs. Annicelli because the lot size was too small to make use of the land in these ways. Annicelli’s appraiser testified that he believed the land was worth very little because none of these uses were practical. The RI court quoted him as stating that, “the most anyone would pay…for a spot to sit on the beach to go swimming” was $1,000. And sitting on the beach, he strongly suggested, was the only use available to Mrs. Annicelli given the language of the ordinance.

The town’s appraiser figured the land was worth about $8,500. According to the court, “he conceded that several of the uses were impractical while denying that Annicelli was deprived of all reasonable or beneficial use of her property.” There’s no indication that he had other ideas for her, so we don’t know whether he made other suggestions. However, given the court’s careful parsing of his testimony in their decision, I would guess that he simply did not want to concede that all reasonable or beneficial use of her property was gone because, under Rhode Island law, Mrs. Annicelli would have a valid claim of a taking.

The aim of the HFD designation was to protect the barrier beach in the area. The Green Hill Beach, which is a barrier beach, stretches along the coast. Like all barrier beaches, it is a narrow strip of unconsolidated material made up of sand or cobble. It runs mostly parallel to the shoreline, extending to it and a little below it. Barrier beaches are formed through wave and current action. They are generally separated from the mainland by a swampy area or a a salt pond (sometimes a freshwater pond).

Again, looking at the Google Map of Green Hill Beach, you can see that there is, indeed, a pond behind that strip of sandy land. In fact, if you look at the Google Earth Map of Rhode Island (above), you’ll see that there are swampy salt ponds all along the south coast of the state. The Rhode Island court commended South Kingstown for its efforts and recognized the scientific findings that barrier beaches needed to be managed to protect inland areas. However, ultimately, they determined that the circumstances here resulted in a taking of Mrs. Annicelli’s land.

As mentioned earlier, at the time that Mrs. Annicelli signed the agreement to purchase the land, there were already 30 houses built in the area. This mattered to the Rhode Island court because it meant the barrier beach had already been compromised. They also found that, in fact, the regulation had wiped all value from her land because the parcel was so small she would not be able to put it to any of the uses available in the ordinances. She had signed the agreement before the ordinance was passed, and thus she did not know she had purchased land that would be zoned in a way that would not allow her to fulfill her purpose. For these reasons, the Rhode Island court felt that an unconstitutional taking had occurred — unconstitutional in Rhode Island law as well as under the federal constitution.

Note that the final decision was handed down in July of 1983. In all, it took 8 years before Mrs. Annicelli was told that either she could build her house or she would have to be fully compensated for her losses. Though I could not find documentation of it, my understanding is that Mrs. Annicelli finally built her house. Regardless, years later when I was working on research related to Palazzolo v. Rhode Island (another regulatory takings case that occurred along the south coast), I learned that Mrs. Annicelli’s case was well-known to Mr. Palazzolo. This connection has always intrigued me given that Mr. Palazzolo began his litigation odyssey while her’s was underway. Unlike her’s, his case made it all the way to the US Supreme Court — and that means his story will be another blog post on some future day.

Reading Property Cases

“It’s time,” I said to myself over the weekend… Time to start writing about specific property cases here at the blog. No, not cases the Supreme Court is hearing, but rather historically important ones, or those that are important to contemporary policy. Logan is working away on a pile of case law, and I’ve been gathering my notes together to give you another approach to them… We have been planning this for a while, talking about it for longer. Yet dragging our feet just a bit.

Part of my trepidation comes from knowing what it’s like to tackle this case law and thinking about my readers and how to present them to you. See, when I was a graduate student, I told my soon to be dissertation advisor (Professor John Brigham of UMass-Amherst — a great and wonderful dissertation advisor) that I wanted to do work in environmental law and policy. Because of the structure of my discipline (Political Science), he suggested that I should “look for the environment” in constitutional law and see where I could find it in the realm of constitutional politics. It was 1997, and I had just moved to Massachusetts from Utah, where I had spent some time as a temporary worker in the financial reporting section of a major mining company. Between that experience and the poking around I did to see what hot topics were “out there” involving constitutional politics, it did not take me long to decide to study property rights and takings litigation. At the time, the property rights movement was well into it’s second decade (depending upon how you want to count, maybe it’s third), and litigation mobilizations to advance private property rights were springing up all over the place. However, before I could really look into those politics, I had to read property law, specifically that dealing with land use and environmental regulation.

I tackled it for the first time during the quiet and snowy January break between semesters my first year of graduate school. I was living in western Massachusetts, so when I tell you it was snowy, it was very very snowy. I grew up in Minnesota, so I look on snowy days as excellent study and reading time. Thus, bright and early one morning I trudged over to my office and I got out the cases I had collected over the few weeks before in preparation for this immersion into case law. I remember looking forward to spending a day reading and taking notes. I imagined finishing up in the late afternoon with a sense of accomplishment and a pile of finished cases on the corner of my desk where I kept the “done” work.

Within two hours I was in tears.

Four hours later, I was weeping.

I could not understand anything I was reading.

I thought I was a complete idiot.

I had spent the entire day struggling with regulatory takings doctrine and though I had attempted to read more than one case, really and truly, none were read well enough that I could have told you what I’d read. I went home, leaving everything on my desk at the office in heaps and piles — a habit I developed in grad school and still maintain when I’m in the midst of a writing or research project — because when quitting time comes, I make a note about what to do the next day and then I quit. That evening I had a nice dinner, took a hot bath and watched television. I climbed into bed feeling exhausted. All I could think was how ridiculous I was to think I could do this thing — get a Ph.D.! Focus on the politics of property rights! It would never happen! And surely I shouldn’t be reading about regulatory takings cases because my brain simply did not function on a level required for this work.

Still, the next morning, I put on my snow boots and heavy coat, but instead of going to my office I trudged into town, which was a little over a mile walk through the neighborhood Robert Frost lived in while in Amherst. It’s filled with beautiful old, huge trees and pretty old houses, and a foot and a half of snow. It was quiet, and I made a list of what I was going to hunt down. My first stop was at the drugstore — I purchased a large bottle of aspirin (my students will attest that I still keep a bottle in my office). Next I headed to the bookstores. I bought a Black’s Law Dictionary, an old property case law book, an environmental case law book, and anything at the used bookstore involving the words “property”, “takings”, and “land”. It was a sizable purchase of heavy books. Oh, and property books are not thin little volumes. They are usually thick, massive tomes. I lugged them through the snow back to my office, enjoying the fresh air and knowing I was getting a decent workout.

Once I’d settled back in at my desk with a strong cup of tea, I grabbed the first of the property cases in the pile on my desk I’d left the day before, and got started.

I would figure this out.

I would.

Watch me.

I learned quickly that I needed to begin by doing a very quick skim of the case, locating what I thought were key words. I used a pencil and circled them — sometimes, later, I would realize I’d missed important concepts, or had circled things that weren’t all that important. I’d erase or mark anew. Then, one by one I looked the words up in Black’s. By looking at the words and letting myself explore the other (incomprehensible) words in the definitions, I gained a sense of the network of words that went together in the case. Next, I looked to see if there was any commentary on the case in any of my “new” used books…

Why not just Google it, you ask? Well, it was January of 1998. Google wasn’t then what it is now… This was old school learning: skim, terms, commentary, then back to the case, more careful reading, take it a paragraph at a time, figure out what had happened and why the case was important, outline the facts, figure out how they fit together. Repeat for each case. If I had to spend a whole day or even two on one case, that’s what I would do.

Very soon I had to make another trip into town. This time, I bought an atlas. I still keep an atlas or maps nearby when reading land use and environmental cases because I invariably need to see *where* the case occurred. In grad school, more detailed maps were available at the library — and I realized sometimes my best bet for understanding a property case was in the map room. I learned to read all kinds of maps. Finally, after a lot of work, those cases started to fit together.

By the time school started the first week of February, I reported to my dissertation advisor that I had, in fact, found my topic.

I decided to write this story to give you a bit of a head’s up…  Logan and I are going to be doing a series of posts this year on property cases. I will post the first one in the next couple of days. The case is Annicelli v. South Kingstown (463 A.2d 133, 1983). The law scholars in the crowd may remember it buried in the citations of Lucas v. South Carolina Coastal Commission (505 U.S. 1003, 1992). It’s an interesting case in part because it involves zoning ordinances designed to protect against high flood danger and changes to flood plain maps. It’s also a nice reminder that a lot of the federal regulatory takings cases begin in the states and often involve this sort of issue. Indeed, if we take seriously the idea that we can learn from the past, then cases like Annicelli may be instructive in many ways in our discussions about flood plain maps and NFIP reform. And also, it’s just an interesting case.

Watch for it in a couple of days — for anyone who wants to review Lucas, a link to a version of the case is here.  And Annicelli can be found here.