In Muscarello v. Ogle County Board of Commissioners, No. 08-2464 (June 24, 2010), the U.S. Court of Appeals dismissed as unripe a claim the county’s grant of a special use permit to a neighboring property owner allowing it to construct windmills on its land was a taking.
Ogle County granted Baileyville Wind Farms a special use permit to allow the construction of 40 windmills on its property. Muscarello owns the adjoining property and brought suit in federal court for a variety of federal and state law claims. See pages 4-5 of the slip opinion for the details of the “laundry list” (in the court’s words) of allegations of harm (“We glean from all this, taking it in the light most favorable to Muscarello, that she believes that the preconstruction of windmills will have uncompensated adverse consequences for her and her fellow nonresidential property owners. Muscarello sued to stop the construction of the windmills and to require the Board to revoke the permit.”). The district court dismissed without reaching the merits.
The Seventh Circuit affirmed. The court’s ripeness analysis begins on page 10 of the slip opinion. Nothing surprising there really; the court concludes that the takings claims are not ripe in federal court under Williamson County since the plaintiff conceded she did not seek compensation through available state procedures and she was not excused from exhausting those procedures.
Given the existing state of ripeness law, the court’s analysis appears correct. Its discussion of the substantive regulatory takings law, however, is not as on the mark:
Muscarello asserts that Ogle County’s decision to grant a permit to Baileyville constituted a taking without just compensation.
In order to invoke the protections of the Takings Clause, Muscarello must allege a taking of private property. Her complaint fails to meet that requirement. Muscarello does not allege any physical invasion of her property, a quintessential taking. See Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 427 (1982) (“When faced with a constitutional challenge to a permanent physical occupation of real property, this Court has invariably found a taking.”). Instead, she relies on the more elusive concept of the regulatory taking. See Lucas v. S.C. Coastal Council, 505 U.S. 1003 (1992) (finding a regulatory taking only where “all economically beneficial or productive use of land” is denied). But here, the alleged economic effects are a far cry from the denial of all economically beneficial or productive use of the land. The Lucas Court was careful not to create the impression that all zoning decisions that may diminish an owner’s potential uses of her property, or compel a less valuable use, are takings. See Covington Court v. Vill. of Oak Brook, 77 F.3d 177, 179 (7th Cir. 1996) (“We frequently have reminded litigants that federal courts are not boards of zoning appeals.”). In order to qualify as a regulatory taking, the measure must place such onerous restrictions on land as to render it useless.
Muscarello would have us turn land-use law on its head by accepting the proposition that a regulatory taking occurs whenever a governmental entity lifts a restriction on someone’s use of land. We see no warrant for such a step. See Gagliardi v. Vill. of Pawling, 18 F.3d 188, 191-93 (2d Cir. 1994) (holding that residential landowners had no property interest in the enforcement of zoning laws on adjacent property).
Slip op. at 9-10.
First, the court sees a false distinction between a Loretto-type physical invasion regulatory taking and “the more elusive concept of the regulatory taking.” However, Loretto and other physical invasion cases (Kaiser Aetna v. United States, 444 U.S. 164 (1979), for example) are “regulatory takings” cases. There is a difference, of course, between a regulation that requires or allows a physical invasion and other regulations that have an economic impact, but per se regulatory takings are “regulatory takings.”
Second, the court discusses only the per se classes of regulatory takings (physical invasion and Lucas economic “wipeouts”) and appears to assume that as long as no physical invasion or denial of “all economically beneficial or productive use of land” results from regulation, there can be no regulatory taking. This is only half of the analysis because even if not a per se taking, a regulation can result in a taking if, after balancing the three Penn Central factors, it can be said the regulation disproportionately imposes the burdens of a public benefit on a single property owner.
Dicta for sure, but worth pointing out.