Pennsylvania Coal Co. v. Mahon: Brandeis, in dissent

Previously, I wrote about the majority opinion in Mahon, authored by Justice Oliver Wendell Holmes, Jr. In short, Justice Holmes wrote that private property could be regulated to a “certain extent”, but that if that regulation went “too far” it would constitute a taking. Subsequent history has taught us that the Supreme Court has read this to mean that all value has to be taken through regulation in order for a taking to exist. We’ll revisit this point when we move into later twentieth century regulatory takings cases. Today, though, I will discuss Justice Brandeis’s response to Justice Holmes’s opinion.

Brandeis was the lone dissenter in this case. His decision has two elements that I find particularly interesting: first, instead of discussing specific “estates” in the land (an “estate” meaning, a legal interest), Brandeis was interested in the way owners “use” the land and how those uses could be regulated; and second, he was interested in the way the state’s police powers should apply in the case. The two go hand-in-hand in his view.

Use of land, he points out, is something the government (in this case, the Commonwealth of Pennsylvania) has always been able to regulate. Use by an owner is never absolute. That is to say, because you own land does not mean you can use it however you want. For example, an owner may not create a public nuisance with his land. An example of this would be someone placing a ton of scrap metal on their land or dumping chemicals on it so that the water table is poisoned, and all the land adjacent to their tract was devalued or damaged because of their activities. Brandeis also notes that “uses, once harmless, may, owing to changed conditions, seriously threaten the public welfare.” I think contemporary examples of this would include believing that a chemical was harmless and then learning that it is linked to cancer or some other disease. Brandeis argues, in essence, that when new information (including new science) comes to light the government can step in for the good of the public and create regulations addressing the problems.

Now, keep in mind that this is a case about a state level statute, so Justice Brandeis’s remarks are focused on the state police power. His argument is that if the state is legitimately exercising its powers to legislate on behalf of the health, safety and morals of its citizen (which are powers given the states in the federal constitution), then they do so without having to pay compensation. The only time they would be required to compensate is if the state were to exercise their power in such an arbitrary manner as to violate the 14th Amendment’s due process clause and, through it, the Takings Clause of the Fifth Amendment. Brandeis explains that all restrictions on the use of property ultimately deprive an owner of something he or she may have enjoyed before the restriction was written. He writes,

“deprives the owner of some right theretofore enjoyed, and is, in that sense, an abridgment of the State of rights in property without making compensation. But restriction imposed to protect the public health, safety or morals from dangers threatened is not a taking. The restriction here in question is merely the prohibition of a noxious use…”

Such a restriction must have the purpose of protecting the public for it to be a legitimate exercise of police powers, wrote Justice Brandeis. This point is important because the statute that was in question in Mahon had included provisions that restricted undermining in areas used by the public even though this case involved private owners. Brandeis believed that just became the Mahons were private owners, the statute should apply to their land just as it did to public lands.

Justice Holmes, in his majority opinion, seems to have mostly ignored the portions of the statutes that dealt with public areas, paying more attention to the fact that in this specific case the land was privately held and not used by the public. Moreover, the Mahons had been given notice by Pennsylvania Coal to expect their land to be undermined. Holmes believed that, because of the terms of the deed, notice was all that was necessary for the company to do if it wanted to mine the coal. If more needed to occur, in Holmes’s view the state should have exercise eminent domain and acquired the land rather than regulating it in such a way that caused the diminution of its value.

Brandeis, however, argued that “…a restriction imposed through exercise of the police power [is not] inappropriate as a means, merely because the same end might be affected through exercise of the power of eminent domain, or otherwise at public expense.” In his view, if this were the case, every restriction placed on property would be unconstitutional. Later in the opinion, he points out that Holmes’s theory that notice by the coal company was all that was required to ensure the safety of the Mahons (or anyone else living or working not the surface of land being undermined) was problematic. Brandeis believed that the state legislature, which possessed local knowledge concerning local conditions, had determined that such notice was not adequate to the protect the public safety. It was because local decision makers and tribunals would possess local knowledge that the police powers reside in the states, he said. Had they believed that notice by the coal company was enough, there would have been no need for the statute at all and the state supreme court would not have decided in favor of the Mahons.

On the issue of diminution of value, Justice Brandeis also disagreed with Justice Holmes. He explained that “values are relative”.  Relative to what? To whatever you’re comparing it to, he said. Brandeis argued that Justice Holmes had compared the value of what was lost (i.e., enough coal left in place to keep the surface from collapsing) by the Company against the wrong thing: “If we are to consider the value of the coal kept in place by the restriction, we should compare it with the value of all the parts of the land. That is, with the value not of the coal alone, but with the value of the whole property. The rights of an owner as against the public are not increased by dividing the interests in his property into surface and subsoil. The sum of the rights in the parts cannot be greater than the rights in the whole.” Here he points out that state governments were already regulating what occurred above ground to protect adjacent property owners. For example, buildings could not be higher than a certain number of stories in some cities so that those in lower buildings still had access to sunlight and fresh air. Brandeis, rather pointedly inquires why, given the constitutionality of such restrictions, should rights underground bar the State’s power to set regulations for public safety purposes?

In many ways, the disagreement between these two justices had to do with whether they trusted states to exercise their police power. For Brandeis, regulations for the health, safety and morality of the citizens were not only acceptable, but required in order for a society to evolve and function well. In 1922, Holmes’s skepticism of state regulation predominated his thinking. His view that eminent domain was the appropriate vehicle for accomplishing the goals of the state meant that Pennsylvania would have to condemn all the land that the mining companies wanted to undermine in order to accomplish the protection of individuals living on the surface. Even if the state could afford to do so, Holmes’s intention was to make the decision to end land subsidence a purely economic calculation rather than an issue of morality and safety.

Despite this disagreement, these two justices would, eventually, be united in many of their views, joining one another in dissent after dissent when their colleagues struck down federal level regulations in the 1930s. That said, in 1922, their arguments in Mahon — and the confusing tension in Holmes’s majority opinion — was indicative of the changing perspectives during the early part of the the century concerning police powers and regulation that would eventually lead to the 1930s battles between the US Supreme Court and President Roosevelt concerning New Deal legislation.

Today, this case may well be at the heart of the tension in regulatory takings cases, or at least its indicative of how that tension developed. The questions regulatory cases pose again and again include what land use regulations can government create without compensation, when must they compensate, and when should they use eminent domain to accomplish their goals? The answers the Court gives have never been fully satisfactory to anyone, but that may partly be due to the very different regulatory situations in which takings cases occur and the way a case-by-case analysis can make consistency in the law (and we like law to be consistent internally) all but impossible. In that regard, the most important insight in this case may well have been Justice Brandeis’s observation that regulation depends upon context and what was once viewed as a safe use may become unsafe (and therefore open to regulation), depending upon changing conditions. The value of the land, in other words, may not be the only thing that is relative.

Reading Pennsylvania Coal Company v. Mahon reminded me that building skyscrapers was not only a technologically awe-inspiring when they were first constructed, but also one that had ramifications for owners of property adjacent to the skyscrapers. One of these days, I will write a post about those cases and the connection between regulatory takings and public nuisance law.

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.