Hamilton Bank of Johnson City v. Williamson County Regional Planning Commission

BANK OF JOHNSON HAMILTON

CITY, Plaintiff-Appellant, COUNTY REGIONAL

WILLIAMSON COMMISSION, al., et

PLANNING

Defendants-Appellees.

No. 82-5388. Appeals,

United States Court

Sixth Circuit.

Argued Aug. 1983.

Decided March 1984. Rehearing En Banc

Rehearing and April

Denied Bass, Sims, interpretation. There was also some Nebel, Berry nate argued, & G.T. to used in Tenn., disagreement over the method be Nashville, plaintiff-appellant. for calculating slopes in order to determine Donnell, Jr., Estes, M. Thomas L. Robert development would violate the Stewart, argued, Estes Sweeney, M. Milton placed requirement lots be Tenn., Nashville, defend- Donnell, for & slopes greater than The total number 25%. ants-appellees. planning commis- approved of units dispute. Hamilton introduced at KEITH, and WELL- sion is KENNEDY Before (a signed by letter six members FORD, Judges. trial a Circuit planning the 1973 commission majority) of KENNEDY, Circuit G. CORNELIA approved. had stating that 736 units been Judge. began. The Development project City appeals of Johnson Hamilton Bank open an easement of developers dedicated a matter of law that as judgment from county covering about 245 space to the damages for a to is not entitled acres, which to be used as a most of was the fifth and under of its course, roads, they they in- golf built Hamilton’s amendments. fourteenth utility to accommo- stalled sufficient lines appellee Williamson from arise claims development. Before con- date the entire Planning Commission’s Regional County actually commenced on struction was complete to con- Hamilton to allow refusal section, plat a final for sec- particular subdivision. a residential struction approval for tion was submitted Between 1973 and planning commission. approved plats final the commission in interest plat is the successor preliminary Hamilton sections. The for several a tract of land William- developers of times between reapproved was also several In William- County, Tennessee. Hamilton son 1979. A witness for 1973 and changed its ordinances County spent son three to developers that the testified developments. residential permit cluster to the improvements dollars for five million houses be development cluster Under during this time. than would otherwise smaller lots

built on zoning regulations were In allowed, that suffi- upon the condition be contin- changed. planning commission development left as cient land within to Tem- regulations the 1973 apply ued to planning com- In 1973 the “open space.” Hills, however, project had since ple plat for a approved preliminary mission those stan- approved under originally been covering development cluster proposed policy changed when dards. This Country acres, Temple Hills to be known to con- planning commission decided approved on the A notation Estates. Club under the plats submitted for renewal sider of al- the total number plat indicated that in effect rather than those regulations then the tract was dwelling units on lowable approval had been in effect when initial only However, were drawn lot lines August plat was given. On units; in which the re- the areas for 469 regulations. the 1979 under renewed placed to be maining 267 units were again plat was sub- In October par- “this the notation and bore left blank ap- for planning to the commission mitted approved by developed until not to be cel disap- plat This time the was proval. planning planning commission.” non-compliance reasons: proved, for two plat minutes reflect placed density requirements, and lots with discussion approved after considerable was greater than November slopes 25%. density complied plat of whether through foreclosure ac- Hamilton apparently in plat requirements. was that had not been quired interpretation of the under one compliance Hamilton submitted developed and sold. alter- not under an zoning regulations, but apparently jury’s finding that the com- included the preliminary plat, which remaining of the 258 plans development estopped applying mission from cur- by building dwelling undeveloped regulations. acres rent The court reasoned that: development’s total to bring the units to Any damages plaintiff re- suffered disapproved planning commission 688. The attempt by sulted from an the local 18, 1981, listing eight plat this on June government apply regulations in a objections. impermissible manner under state law. prevents Because the state law itself con- brought this action Hamilton then . application regulations, planning commission under five tinued of those against the (1) compensa- taking just taking property pro- without there can be no theories: tion; (2) procedural pro- Compensation due violation hibited the Just Clause cess; (3) pro- due of substantive the Fifth violation Amendment. (5) cess; (4) equal protection; and denial perma- The District Court also modified its allowing from not estoppel under state law injunction merely enjoin plan- nent to the proceed. project

the to ning applying post-1973 commission from trial, granted regulations Temple Hills, the District Court After a to and denied a di- planning commission’s motion for attorney the Hamilton’s motion for fees. pro- due rected verdict on the substantive appeals judgment Hamilton from the not- equal protection claims. The case cess and withstanding the verdict and asks' this jury remaining on the to submitted judgment Court to order on the based jury theories. The returned a verdict with jury’s damage Alternatively, award. Ham- special interrogatories to to the answers argues ilton that the directed verdict on the effect that Hamilton had not been denied process equal protec- substantive due procedural process, due but had been de- requests tion claims was in error and economically nied viable use of its remand for trial on those issues. Hamilton just compensation clause violation of argues attorney also that it is entitled to its amendment, plan- of the fifth and that the fees. ning estopped under state commission was requiring comply law from Hamilton to II regulations present zoning op- This Court posed regulations. to the 1973 The has held that: damages against planning assessed judgment On motion for n.o.v. as on $350,000 the amount verdict, a motion for a directed the dis- taking proper- of Hamilton’s trict court must determine whether there ty period disapproval for the from the presented was sufficient evidence to plat to the time of trial. raise a material issue of fact for the Furthermore, jury.... the standard re- permanent The District Court issued mains the same when the trial court’s injunction required planning appeal. decision reviewed on apply regulations commission to the 1973 Temple consistently prior its to Hills with (6th Kiledjian, 511 F.2d O’Neill decisions, approve plat submitted in to Cir.1975). We must view the evidence comply specific ten re- and to Hamilton, light most to draw favorable governing quirements its future actions to- ing from that evidence all reasonable infer Temple ward Hills. ences in Hamilton’s favor. Pike v. Bench Co., (6th Mfg. F.2d master Cir. granted judg-

The District Court then 1982); Polymer Borg- National Prods. v. notwithstanding ment the verdict in favor (6th Corp., 660 F.2d Cir. Warner taking commission on the .of 1981). judgment The District Court’s issue. The court found the evidence suffi- must, therefore, taking be re support issue cient to the verdict that there had taking, judgment supports versed if the evidence an award been a but held that taking issue would be inconsistent with for a of Hamilton’s without explicitly The clause was more meaning of compensation within just applicable zoning regulation to that We thus turn held fifth amendment. Tiburon, 255, 100 Agins City question. 2138, 65 L.Ed.2d 106 has not set forth Supreme Court there held that: to determine by which clear standard amounts to particular conduct general application law fifth amendment.”1 “taking” under particular property effects a if requires question generally Resolving this substantially does not ad- the ordinance inquiry. Loretto v. Tele hoc, ad factual an interests, Nec- legitimate see vance state Corp., prompter Manhattan CATV Cambridge, tow v. 3164, 3171, (1928), or 72 L.Ed. 842] States, Aetna v. United Kaiser an use denies owner viable 174-175, 389- Transp. land, Penn Central see his Penn Central (1979); 390, 332 62 L.Ed.2d City, 438 104, v. New York 138 Co. U.S. City, York Transp. v. New 438 U.S. Co. 36, 2646, n. 36 2666 n. 57 S.Ct. 2646, 2659, 98 S.Ct. (1978). L.Ed.2d 631] (1978). 631 260, 100 S.Ct. at 2141. The 447 U.S. require an actu A does not restricting in that Court also held or occupation property of the physical al legitimate spread of urbanization was a proceedings. Amen formal condemnation governmental purpose. purpose Since this Dearborn, 718 F.2d 789 (6th v. planning commission’s was served Cir.1983). The Court established dispute,3 inquiry now in our must actions Mahon, 260 Co. v. Pennsylvania Coal in upon Hamilton has de- focus been 393, 158, 67 L.Ed. 322 43 S.Ct. U.S. economically use of its land. nied viable affecting an regulation governmental that It is well established that there is may constitute property of his owner’s use taking merely the owner’s best no because Coal, a stat Pennsylvania taking.2 a profitable property of the has or most use way mining in a prohibited coal such ute Transp. Co. v. denied. Penn Central been subside, where the a residence to to cause 104, 2646, City, New York 438 U.S. 98 S.Ct. rights underground mining owner (1978). similarly It true L.Ed.2d 631 57 of the surface habita not the owner property value alone that diminution practi rights. employed The Court tion Penn Cen taking. does not constitute ap analysis to determine that economic cal Co., tral, Realty supra; v. Ambler Euclid taking, statute effected a plication of the 114, L.Ed. 303 71 272 U.S. right to mine makes the saying: “What Sebastian, v. (1926); Hadacheck it can be exercised valuable is that coal (1915). 143, The 60 L.Ed. 348 36 S.Ct. im commercially profit. To make it with jury concern District Court instructed very has mine certain coal practicable to jury that ing points, these and also told the constitutional the same effect for nearly impermissible with “there can be no destroying appropriating or purposes as if meaning of the Fifth Amendment in the 43 S.Ct. at 160. it.” 260 U.S. at (1979); v. Central ap- L.Ed.2d United States amendment 210 clause of the fifth 1. The Co., through Mining 2 plies the fourteenth to the states Eureka Chicago, Chicago, (1958). Q. Co. v. B. & R. amendment. L.Ed.2d 1228 41 L.Ed. 979 U.S. 17 S.Ct. planning does not claim that The recog- consistently Supreme Court has 2. The necessary prevent an imme- its actions were nized, governmental reg- implicitly, that at least safety property diate serious hazard to occupation physical effect without ulation may require community. destruc- The state Shopping Center v. PruneYard See poses with- property such a hazard tion of Robins, 64 L.Ed.2d States, U.S. 100 S.Ct. Schoene, paying compensation. Miller out (1980); Aetna v. United Kaiser L.Ed. 568 Allard, Andrus sion, therefore, had no was that land applied permit economi- regulations as remaining significant value.4 As there was Tr. at property.” cally use of viable convincing offered to contra- no evidence Central, supra. Penn 2015. See sup- expert opinion, dict this the evidence question in this case The ports finding that the had no portion of a resi undeveloped is the as remaining economically viable use.5 as a The subdivision dential subdivision. planning primary commission’s con- farm, but the land originally whole was however, appeal, is not that the tention rocky except for very hilly and generally property retains an viable use golf being for the used presently the land but rather that Hamilton has never sub- at trial that testified appraiser An course. plat complies mitted a with either any farming the land is not suitable regulations, 1973 or the and thus nev- development, than subdivision use other rights developing proper- acquired er zoning laws would applicable and that ty away by that could have taken been any In permit other use. any event commission. in the record deed, suggestion no there is argument commission’s alternative, eco parties of or from the premises on factual fails. It is based proper for Hamilton’s nomically viable use jury’s findings are inconsistent with ap The same ty residential. other than regarding estoppel claim. the state law that, if the praiser also testified District instructed the developed in accordance estoppel the issue as follows: planning by the eight objections listed the you good approval of find it denied commission when [I]f [Hamilton] change posi- plan, only 67 sites faith made a substantial development Hamilton’s residences, forcing obligations or incurred extensive and thus tion used for could be upon previous potential expenses reliance the eliminate 409 build Hamilton to by approval Temple project the Hills proposal develop to ing sites from its [planning so that to com the units. Were Hamilton additional commission] inequitable unjust to de- plete development and be able to sell would be the Temple sites, stroy right develop the to Hills net losses of only 67 it would sustain acquired, you then of the cost which had one million dollars because over [Hamilton] [planning find that the com- planning commission’s should ... satisfying prevented from estopped mission objections. appraiser’s conclu- eight was] 4. Since the evidence only develop- ning commission's restriction on is that the land owned ment, remaining significant apparently Hamilton would have been Hamilton was left with no value, distinguishable free build 336 units in addition to the 212 from those to this case is bring development's have extant to total to 548. diminutions in value cases in which mere (The incorrectly juxtaposes takings a because eco- dissent number to constitute been held not referring to the total number of units in the nomically viable uses remained. (548) development entire with the number of (409) planning re- units commission’s paragraph second seems to 5. The dissent in its plan from Hamilton’s to strictions eliminated testimony planning imply that the com- that the undeveloped portion develop 476 units on only objections would allow Hamilton mission’s Hamilton.) If 336 additional now owned incredible: units is to construct 67 additional very permitted, the land units had been applying virtually conceded that even was ”[I]t use. well have retained an viable ap- 548 units would be 1979 standards a total However, planning commission also listed property. proved Thus elimination on the objections proposal. to Hamilton’s seven other potential leave a substan- even 409 units would eight appraiser all restrictions considered developed.” We have tial to be number they at most 67 and concluded that allowed understanding difficulty use of the dissent's property. There is no evi- units on Hamilton's density requirements these numbers. The 1979 appraiser's reason- dence inconsistent permit most 548 units on which would conclusion, testimony ing suffi- and his (212 units) (of part development which a entire eight jury to find that with the cient to allow the already developed and not owned Hamil- property had no remain- restrictions Hamilton’s ton) only commis- one of ing economically viable use. plan- eight objections. Had this been sion’s investment in land regulatory powers in backed considerable

exercising [its] improvements. way deprive to a such [Hamilton] Temple project. develop the Hills right to found that The District Court there “significant” interference had been a a verdict in favor returned expectations, but never investment-backed estoppel issue. It on the of Hamilton sup theless held that the evidence did not therefore, must, have found that Hamilton port because it considered the develop Temple acquired right had estop taking verdict inconsistent with the according plats that had been Hills to the opinion pel verdict. its memorandum evidence in is sufficient submitted. There finding reasons for the court discussed two finding. The support such a the record to jury’s taking unsupported. verdict approved plans planning First, estoppel the court reasoned that the occasions, development on numerous property only verdict made the denial of considerable evidence that and there is one, temporary could not constitute to and did intended planning commission fifth amendment A units. a maximum of 736 approve however, deprivation of can be a had not had a vested Even if Hamilton analyzed according and “should be develop to finish the right under state law applied perma to the same framework ” ment, occurred its claim that ‘takings.’ Diego nent irreversible San In necessarily be foreclosed. would not Diego, Electric Co. v. San Gas & “rights” looking to see whether stead of 1287, 1307, destroyed, (1981) (Brennan, J., have been L.Ed.2d 551 dissent engaged in an economic ing). cases has Laundry See also Kimball Co. v. States, degree of interference with analysis of the United (1949); L.Ed. 1765 expectations.” “The United States v. Caus “investment-backed 90 L.Ed. by, regulation, especial impact of the economic Petty United States v. Motor ly degree of interference with invest Co., 327 U.S. 90 L.Ed. 729 expectations, particular is of ment-backed States v. General Motors United Teleprompter v. Loretto significance.” 373, 357, Corp., 323 U.S. 89 L.Ed. 419, Corp., 458 U.S. 102 Manhattan CATV (1945). 311 (1982). 73 L.Ed.2d 868 S.Ct. Transp. Co. v. New See also Penn Central Second, apparent the District Court 104, 27, n. City, 438 U.S. 130 & 98 York the ly concluded as a matter of law that n. 57 L.Ed.2d 631 S. Ct. 2662 & regulations in application zoning a man The was entitled to find that law, impermissible under state as es ner predecessor in interest Hamilton and its verdict, by estoppel the could not tablished expectation that the de had a reasonable taking.6 argument by This belied completed, light in velopment could be consistently indicate that the cases which approved the evidence that the laws, zoning of the rather application the plats on numerous occa preliminary the zoning the mere existence of a valid than knowledge that a total of sions with the ordinance, may taking. effect a v. intended. This the 736 units were was Tiburon, S.Ct. 447 U.S. City of expectation (1980)(“The concern developers’ “primary ap Central, particu ing parcel,” general zoning use of the Penn law to the plication taking (emphasis at and was effect a property” 438 U.S. at lar 6. Carried to vation of with state law be a tion of the fifth amendment. the result in most states without its cannot be a extreme, just compensation in viola- in a manner that there never could holding Since most state that a inconsistent would have depri- constitutions main pensation, such state law in those states. takings § 6.1 see list at 2 Nichols on Eminent Do- ^[3] would prohibit nn. always be & 29 takings (1982 without inconsistent & Supp.1983), just com- City Lafayette, v. Hernandez added).);7 633-34, 1294-95; 450 U.S. at 101 S.Ct. at denied, (5th Cir.1981), cert. majority opinion 643 F.2d itself noted that L.Ed.2d constitutional merits of the claim were remand, (1982), id. at lightly,” 699 F.2d 734 “not to be cast aside after a ff'd (1983) application it is the of the S.Ct. 1294. Since .. regulations which effectuates laws or dissent, repre therefore for taking, it makes no difference fifth sented the of majority views of the Court purposes particular amendment issue, language this reasoned that application consistent with state law.8 prohibits taking of the fifth amendment Although application an unlawful of zon- just compensation, without and so a consti ing regulations taking, can constitute a tutional violation has occurred as soon as damages question uncompensated taking remains whether are an an is effected. The government’s appropriate remedy. question duty pay compensation This was Supreme then arises from San presented to the the constitutional viola tion, Diego any implied from Gas & Electric Co. San promise agreement. Diego, dissenting opinion also purposes just compen looked to the of the L.Ed.2d 551 There the Court was clause, stating: sation provide asked to rule that a state must damages to a who landowner has suffered unaccompanied by payment Invalidation regulatory taking. damages The California court hardly compensate would only injunctive had held that relief was landowner economic loss suf- Although question during available. this fered was not the time his was majority Court, answered of the taken. non-justiciable

which held the case for lack Moreover, mere invalidation would fall order, of a final it was discussed Justice fulfilling far short of the fundamental Brennan his dissent. The dissent was purpose Compensation Just joined justices. four Justice Rehn- guarantee Clause. That designed quist, concurring majority, said government forcing bar the from some specifically that he “would have which, little diffi- individuals to bear burdens all culty agreeing fairness, with much of what is said in public should be borne whole____ dissenting opinion Brennan,” of Justice If regulation denies the Tiburon, Agins City plans constructing improve his common plaintiffs condominiums, part ments and of the because zoning claimed that the enactment ordi restrictively laws had been amended. plaintiffs' nances which restricted use of their court, suit, separate A state in a had declared constituted a application amendments invalid. yet Court held that there had as been no appeal The' of the state court suit had not plaintiffs because the had not submitted a devel Although decided. been the Third Circuit held opment plan and the ordinances therefore had taking proper that no had occurred because the plaintiffs. applied plaintiffs not been to the The value, ty having retained considerable its value pursue were thus "free to their reasonable in zoning been reduced the amendments from expectations by submitting develop vestment a about three million dollars to about two million plan ment to local officials.” 447 U.S. at dollars, possibility it did not consider the that 100 S.Ct. at 2142. Hamilton is in a different invalidity applying the the amend position, having plan submitted a which was preclude finding ments would that a disapproved imply disapprov for reasons which had occurred. See also Amen v. Dear any plan al of which would fulfill Hamilton’s born, (6th Cir.1983) (redevelop F.2d expectations. reasonable investment-backed plan by authority ment undertaken of state Re irrelevancy taking’s validity 8. The of the Act, act, under habilitation but in violation of that by Rogin state law is illustrated v. Bensalem compensable takings effected under fifth (3d Cir.1980), Township, F.2d cert. de amendment); Versalles, Inc. v. Urbanizadora nied, Rios, (1st Cir.1983) (tempo Rivera 701 F.2d 993 case, developer In that the of a rary "freezing” in violation of state project condominium claimed that his taking). held a law permission had been taken when he was denied project, obtaining approval to finish the after arguments as an to its the use and en- alternative private property owner beyond for that his is found to effect claim and asks no relief joyment of land and light public requested the under the claim. In “taking,” only fair that during taking question, received of our decision the cost benefits bear therefore, need period application of we not reach these issues. interim between government enti- regulation and the Hamilton also appeals the District just payment of it. The ty’s recission attorney Court’s denial of fees under 42 place the land- compensation serves to § 1988. That terms U.S.C. statute its monetarily as position in the same owner attorney an provides that award of fees is occupied have if his he would a matter for the discretion of the court. been taken. had not must, therefore, We remand the case so 655-57, at 1305-07 at the District Court exercise its deleted). Brennan there- (footnotes Justice determining Hamilton discretion thought that: fore to attorney is now entitled fees. that there was a court establishes [O]nce Accordingly, judgment District “taking,” the Constitution de regulatory pro- Court is reversed and remanded for government entity pay mands that ceedings opinion. consistent with this period com compensation for the just first regulation mencing WELLFORD, date Judge, dissenting. Circuit ending on the “taking,” and effected agree majority’s conclu- would government entity chooses date that “the has not set sion regula amend or otherwise rescind .the to deter- forth a clear standard tion. particular conduct amounts mine whether (footnotes at 1305 ‘taking’ under the fifth amendment.”1 deleted). agree Brennan’s We Justice agree conclusion that I would also with its compensation must reasoning and hold that Planning purpose served Com- “the taking. temporary regulatory paid for a dispute actions now in ... ... mission’s [is] public purpose.” It seems legitimate plan jury’s finding most depriving the owner of the clear taking of Ham ning commission effected a use of and the fact that profitable land supported by property was therefore ilton’s planning or action governmental evidence, judgment and notwithstand substantially of land diminishes the value improper. was ing the verdict to a Penn does not amount Cen- question of correctly instructed on the was City, Transp. Co. New York tral theory damages under $350,000 damages. taking and awarded Co., 272 Realty Euclid Ambler expert testi supported by amount This L.Ed. 303 jury’s to the mony, so Hamilton is entitled judgment testimony expert, be entered Bank’s should verdict $350,000. Hunt, Planning in this case that if the its favor actions, interpreted by the Commission’s

Ill employee would admit (Ragsdale) Bank’s building on the con- only ver- 67 additional sites directed granted The District Court would eliminate commission tested in favor of the dicts building develop- sites from process potential and Hamilton’s substantive due a loss in excess plan, Hamil- ment there would be appeal, equal protection claims. On $1,000,000 Hunt was rulings developer. in to argues that these ton now assumption, However, opinion, based on this presents these of the Hamilton error. Teleprompter Manhattan in Loretto determine where dissent "There is no set formula to 3164, 3179, 419, begins.” regulation Corp., Goldblatt v. U.S. S.Ct. ends and CATV 458 102 (1982). Hempstead, Town 73 L.Ed.2d 868 by the cited 8 L.Ed.2d 130 significant property, acquired Bank which property would have no that the than some- application “other notice of the market value of these ordi that open space.” Examina- pay one would regulations by nances and made defend however, us, indi- tion of the record before Tiburon, Agins City ants. virtually it conceded that cates that was standards a total 548 applying even agree judge’s I with the trial conclusion property. approved on the units would be any taking requir that there has not been potential Thus, of 409 units the elimination ing judgment under the Fifth Amendment. a substantial number to be leave would appellants’ ability Even if the to their sell was no developed. There evidence property during penden was limited request by appellant for a variance formal cy proceeding, of the condemnation many as as 267 additional allowa- permit to appellants develop were free to sell or development dwelling units for future ble proceedings their when end original preliminary out on the as set during ed. Mere fluctuations value Planning plat approved and Commis- process governmental decision- occasions; rather, appellant sion on later making, extraordinary delay, absent are rights develop insisted that it had vested ownership. They “incidents of cannot be (or sum, more) potential units. evi- ‘taking’ considered as a in the constitu clearly dence in the case does not indicate tional sense.” v. United Danforth economically viable use of the to me States, [60 property was denied. 84 L.Ed. See Thomas 240] if in this did Even verdict case Garland, Louis, Inc. v. W. St. temporary deprivation and a establish a (CA 8), denied, 596 F.2d cert. part denial of viable use of a 444 U.S. 899 apparently of the the district (1979); Reservation Eleven Associ 135] did, judge agree concluded that would Columbia, ates v. District holding with his ultimate that “... App.D.C. 315-316, 420 F.2d temporary plaintiff’s interference with the (1969); Virgin 157-158 Islands v. 50.05 development expectations backed Land, (V.I. F.Supp. Acres temporary prop- dimunition value of the 1960); Rohan, 2 J. Sackman & P. Nich erty, styled ‘temporary as a tak- § ols’ Law of Eminent Domain 6.13[3] otherwise, ing’ essentially ques- or ... (3d 1979). ed. tion of law.” He concluded that under the plaintiff circumstances was not entitled to Agins, n. 9 at n. 9 100 S.Ct. at 2143. damages as a matter of law since it could judgment Supreme of the California proceed zoning regulations by under 1973 Court in the sole remedies avail- Defendants, moreover, estoppel. reason of claim, able in an inverse condemnation aris- along plaintiff insisted all have has ing zoning activity out of similar to that compliance never been in with the 1973 here, made the Bank were mandamus regulations pertaining laws and declaratory judgment, was not dis- slope (building allowable on a lot in excess turbed the United States degree slope permitted) of 25 and with Court. respect to some reduction of allowable physical There has no been invasion units on the because of elimina- plaintiff’s property, defendants of either acreage by tion of some of the reason of its acquisition by public authority permanent. “taking” for other A purposes. readily can be less found un der these circumstances. Penn Central really quarrel This case is over to what 2659; Transp., 438 U.S. at development extent a “cluster” of residen- Teleprompter, supra. Loretto v. permitted tial parcel units on a of land. case, regulations importantly present ordinances More for the their face do not amount to a instances which a state tribunal health, though temporary that severe restric- “the reasonably concluded that l morals, justified on use of the mines was safety, genera or welfare” tion partic promoted by prohibiting be would land, contemplated of this uses ular- at 102 S.Ct. 3174. regulations upheld land-use has Court imply Supreme Court seems to that rec adversely affected destroyed that taking where temporary in a there is no interests. See ognized real invasion, physical occupation, or “seizure Cambridge, 277 U.S. 183, 188

Nectow v. and direction” the state of the landown- (1928). Zon 447, 448, 72 L.Ed. S.Ct. 842] [48 compensation is mandat- er’s no are, course, exam the classic ing laws Eureka Central cited, apparently ed. as Co., Realty ple, see Euclid v. Ambler Teleprompter, good still law in S.Ct. at 114, 71 L.Ed. S.Ct. 272 U.S. 303] [47 Sebastian, Hadacheck v. In 3174. 239 U.S. use); (1926) (prohibition industrial (1915), 60 L.Ed. 348 S.Ct. Fox, Gorieb of value was taken an where V2% (1927) (require 675, 677, 71 L.Ed. 1228] existing use, precluding no com- ordinance left un portions parcels ment that pensation was found due. ____ built) judge if the trial reached his deci- Even Co., Transp. Penn Central at 98 S.Ct. compensatory damages were not sion 2659. at on the rationale that allowable not de Supreme in did Court being applied in regulations were a manner (or in the state defendants cide whether law, Tennessee I inconsistent with would state) acting agents as this case nevertheless, he, conclude that reached the damages when pay to a landowner must considered, right Properly decision. there claiming regulatory under a ordi case, questionable evidence this at in nance, no had been because found best, that all viable uses San in That same issue arose established. temporarily even had been San Diego & Elec. Co. v. Gas taken, reasonable “investment- Diego, 101 S.Ct. arbitrarily had been expectations” backed Blackmun, and Justice L.Ed.2d succeeded, moreover, eliminated. Plaintiff stated, majority, again writing for the “we declaratory judgment obtaining in must leave the issue undecided.” that 1973 ordinances injunction requiring and see n. 9 at 101 S.Ct. at develop- regulations apply to future I inter n. 9 at 1292. do not 101 S.Ct. property. I would not disturb ment of its Rehnquist’s concurring opinion pret Justice respect. in that court’s decision the district reasoning of Diego adopting in San case, minority summary, four in that I conclude that Justices would regulatory by reason of actions did not “com- effects of defendants’ pursuant ordinances deprive actions the owner of all or most of pletely Diego, San as a in the same fashion property.” should be viewed interest [its] See, Rehnquist permanent Justice at 1304. 450 U.S. at have little Hempstead, difficulty only: “I v. Town Goldblatt would states with much of what is said agreeing opinion of Brennan.” dissenting Justice tempo- conclude further that even would (emphasis at 1294 450 U.S. at the Bank’s “invest- rary deprivation also, Tele Loretto added). See cir- expectations” under ments-backed supra, wherein prompter, majority2 an en- cumstances here does not establish pointed damages. out: I do compensatory titlement United States Brennan’s dissent agree that Justice The court concluded [in Co., Diego Mining major- 357 U.S. San views of a represents Eureka

v. Central on this issue. (1958) ity ] Brennan, majority. Rehnquist dissenting; Justice Justice 412 single cited a case majority municipality’s has not does not occur until damages in compensatory a case allowing governing body given oppor- a realistic temporary interfer- where there has been tunity and reasonable time within which develop right ence with a landowner’s zoning legislation to review its vis-a-vis economically property his in some viable particular property and to correct the actions, zoning of fashion reason inequity. property, occu- involving an invasion During pendency proceed of such it, pation pos- or seizure and of ings zoning to review and correct a clas session it. of sification that denies an owner eco not, majority my do Cases cited nomically viable use of his view, they support the result which reach. during fluctuations in value “[m]ere Versalles, Inc. v. Rivera Urbanizadora process governmental decisionmaking, of

Rios, (1st Cir.1983), for exam- 701 F.2d 993 extraordinary delay, absent are ‘incidents ple, property whose held that a landowner ownership. They cannot be con completely zoning frozen state had been “taking” sidered as a in the constitution actions, was regulatory and entitled to de- ” City Tiburon, al sense.’ relief, claratory injunctive but not to 9, 447 U.S. 262-63 n. 100 S.Ct. at compensatory damages. Rogin v. Bensa- v. Unit (quoting 2142-43 n. 9 Township, lem (3d Cir.1980), 616 F.2d 680 Danforth States, ed 231, 308 U.S. 60 S.Ct. held that no at all had occurred. 236, States, Accord, 84 L.Ed. Laundry Kimball Co. v. United Thom 240 Garland, 1, 1434, 93 L.Ed. City Louis, as W. Inc. v. 338 U.S. 69 S.Ct. 1765 St. (1949); United States General Motors denied, 784, (8th Cir.), cert. 596 F.2d 787 373, 357, Corp., 323 65 S.Ct. 89 L.Ed. U.S. 444 62 L.Ed.2d (1945), Petty States v. United Mo- 311 Reservation Eleven Associ Co., tor 90 L.Ed. Columbia, ates v. District 420 F.2d (1946), all involved condemnation ac- (D.C.Cir.1969). government tions the federal for com- (5th Cir.1981), denied, cert. F.2d 1188 fee, plete temporary taking of a or a lease- hold, part inappo- of a leasehold. All are remand, 699 F.2d 734 (1982), aff'd after United States v. Causby, here. site (1983) . 90 L.Ed. 1206 setting involved the aside of a Court footnote, In a the court further stated: of Claims award for a because of We believe that such a rule is consistent airplane overflights. pertinent holding “weight authority ... that in City Lafayette, Hernandez v. order to constitute a taking, the con follows: demnor must have an intention appro However, in cases such as the one be- ____” States, priate Porter v. United us, fore application gener- where the (5th Cir.1973). 473 F.2d Ac particular per- al ordinance to a cord, Henry J.J. City Co. v. State [188 initially deny son’s does not 39], Ct.Cl. 411 F.2d owner an viable use of his City Lafayette under the circum land, but thereafter does come to a result stances of this case would lack an inten changing such a denial due to circum- deny plaintiff tion to an economically via stances, or where a classification ble use of put his until it was initially denies a owner an eco- zoning regulations notice that its land, nomically use of his viable but the effecting such a denial. But see San delays timely owner or fails to seek relief Diego Gas & Electric v.Co. San classification, [by from such a petitioning Diego, for rezoning, contesting initial

general (1981) (Brennan, J., zoning regulation prior to its 551] passage] conclude “taking” dissenting). we that a stated, respect- Thus, for the reasons opinion majori-

fully from the dissent decision of the affirm the

ty and would judge.

district AND COM EXCHANGE

SECURITIES

MISSION, Plaintiff-Appellant, YOUMANS, et Rountree

Neal Defendants,

al., Holliday,

Thomas Wendell

Defendant-Appellee.

No. 83-5054. Appeals, States Court

United

Sixth Circuit.

Argued 1984. Jan.

Decided March 1984.

Rehearing Rehearing En Banc April

Denied

Case Details

Case Name: Hamilton Bank of Johnson City v. Williamson County Regional Planning Commission

Court Name: Court of Appeals for the Sixth Circuit

Date Published: Mar 7, 1984

Citation: 729 F.2d 402

Docket Number: 82-5388

Court Abbreviation: 6th Cir.