Why ‘wrongful taking’ does not apply
July 21, 2011 —
One of the biggest bugbears that has haunted the efforts of local towns to craft ordinances restricting high-impact industrial uses within their borders is the threat of lawsuits. Specifically, opponents of such ordinances maintain that if a town zones some property owners’ land so that industrial operations like hydro-fracking are not permitted, it amounts to a “wrongful taking:” that is, a government action has deprived property owners of the value of their land, and they must be compensated accordingly.
The idea is based on the Fifth Amendment, which concludes with the words, “nor shall private property be taken for public use, without just compensation.” The most obvious example is eminent domain, in which the government seizes private land outright but must pay the owner the market price for it.
Would zoning that prohibited activities like hydro-fracking fall into this category? A review of court rulings on this issue suggests that the answer is “no.”
Historically, the two chief criteria that establish a case as a wrongful taking have been whether the land in question will actually be occupied by a party other than the current owner; and whether the government action so reduces the value of the land as to leave at most “but a bare residue” of its value. Also material is whether the plaintiff has been singled out to bear disproportionately the costs of a government action deemed to be for the general good.
The occupation condition is obviously not applicable to the case of restrictions on high-impact industrial activities such as gas drilling. Zoning is not actual physical occupation.