Penn Centrals Arg (Violation of the Fifth and Fourteenth
Filed suit in New York Supreme Court
Claiming that the application of the Landmarks Preservation Law
had "taken" their property without just compensation in
violation of the Fifth and Fourteenth Amendments and arbitrarily
deprived them of their property without due process of law in
violation of the Fourteenth Amendment.
Penn Central (sought a declaratory judgment)
Appellants sought a declaratory judgment, injunctive relief
barring the city from using the Landmarks Law to impede the
construction of any structure that might otherwise lawfully be
constructed on the Terminal site, and damages for the "temporary
The trial court granted the injunctive and declaratory relief,
but severed the question of damages for a "temporary taking."
New York Supreme Court (Appellate Division)
There was no taking since the law had not transferred control of
the property to the City, but only restricted appellants
exploitation of it.
Whether the restrictions imposed by New York City's law upon
appellants' exploitation of the Terminal site effect a "taking"
of appellants' property for a public use within the meaning of
the Fifth Amendment (nor shall private property be taken for
public use, without just compensation), which of course is
made applicable to the States through the Fourteenth Amendment?
nor shall private property be taken for public use, without just
What Constitutes a Taking?
There is not set formula.
Depends on particular circumstances.
Several Factors of particular significance
The economic impact of the regulation on the claimant.
The extent to which the regulation has interfered with distinct
The character of the governmental action.
"taking" may more readily be found when the interference with
property can be characterized as a physical invasion by
taking is not found when the interference arises from some
public program adjusting the benefits and burdens of economic
life to promote the common good
Relating to this case
In instances in which a state tribunal reasonably concluded that
"the health, safety, morals, or general welfare" would be
promoted by prohibiting particular contemplated uses of land,
this Court has upheld land-use regulations that destroyed or
adversely affected recognized real property interests.
Miller v. Schoene
Red Cedar trees were order to but down, because they harmed the
nearby apply industry.
Provided compensation to cut down trees, but not the actual loss
Although the statute provided for recovery of any expense
incurred in removing the cedars, and permitted claimants to use
the felled trees, it did not provide compensation for the value
of the standing trees or for the resulting decrease in market
value of the properties as a whole.
Omission did not make statute invalid
unanimous Court held that this latter omission did not render
the statute invalid.
The Court held that the State might properly make "a
choice between the preservation of one class of property and
that of the other" and since the apple industry was
important in the State involved.
Legislature judgment greater value to the public
The State had not exceeded "its constitutional powers by
deciding upon the destruction of one class of property [without
compensation] in order to save another which,
in the judgment of the
legislature, is of greater value to the public."
Hadacheck v. Sebastian,
239 U.S. 394 (1915) Prohibited Brickyar
Upheld a law prohibiting the claimant from continuing his
otherwise lawful business of operating a brickyard in a
particular physical community on the ground that the legislature
had reasonably concluded that the presence of the
brickyard was inconsistent with
Goldblatt v. Hempstead
Banned excavation of sand and gravel
There, a 1958 city safety ordinance banned any excavations below
the water table and effectively prohibited the claimant from
continuing a sand and gravel mining business that had been
operated on the particular parcel since 1927.
The Court assumed that the ordinance did not prevent the owner's
reasonable use of the property since the owner made no showing
of an adverse effect on the value of the land.
Served substantial public purpose
Because the restriction served a substantial public purpose, the
Court thus held no taking had occurred.
Rule - Taking
use restriction on real property may constitute a "taking" if
not reasonably necessary to the effectuation of a substantial
use restriction on real property may constitute a "taking" if it
has an unduly harsh impact upon the owner's use of the property.
Pennsylvania Coal Co. v. Mahon,
260 U.S. 393 (1922) Surface Rights
This is the leading case for the proposition that a state
statute that substantially furthers important public policies
may so frustrate distinct investment-backed expectations as to
amount to a "taking."
Sold the surface rights, reserved the right to remove the coal
There the claimant had sold the surface rights to particular
parcels of property, but expressly reserved the right to remove
the coal thereunder.
Pennsylvania statute, enacted after the transactions, forbade
any mining of coal that caused the subsidence of any house,
unless the house was the property of the owner of the underlying
coal and was more than 150 feet from the improved property of
Commercially impracticable to mine the coal
Because the statute made it commercially impracticable to mine
the coal, and thus had nearly the same effect as the complete
destruction of rights claimant had reserved from the owners of
the surface land, the Court held that the
statute was invalid as effecting a
"taking" without just compensation.
United States v. Causby,
328 U.S. 256 (1946) - overflights
In holding that direct overflights above the claimant's land,
that destroyed the present use of the land as a chicken farm,
constituted a "taking," Causby emphasized that Government
had not "merely destroyed
property [but was] using a part of it for the flight of its
Penn Central Arg
The restriction imposed pursuant to a landmark law must be
accompanied by just compensation if it is to be constitutional.
Causby Airspace Arg
The Landmark law has deprived them of any gainful use of their
air rights above the Terminal and is entitled to just
compensation measured by the fair market value of these air
You do not divide parcel into segment
Taking" jurisprudence does not divide a single parcel into
discrete segments and attempt to determine whether rights in a
particular segment have been entirely abrogated.
Focus on the nature and extend of interference with parcel as a
In deciding whether a particular governmental action has
effected a taking, this Court focuses rather both on the
character of the action and on the nature and extent of the
interference with rights in the parcel as a whole.
The city tax block designated as the "landmark site.
Diminished value of Terminal Site Arg
The law effects a taking because its operation has
significantly diminished the value of the Terminal site.
Penn Central Concedes
The law is reasonably related to the promotion of the general
welfare, and that the diminution in property value standing
alone can establish a taking.
Euclid 75% diminution in valued cause by zoning laws.
Hadacheck 87.5% diminution.
Landmark law is different than zoning Arg
New York City's regulation of individual landmarks is
fundamentally different from zoning or from historic-district
legislation because the
controls imposed by New York City's law apply only to
individuals who own selected properties.
We find not merit.
This would invalidate all comparable Landmark legislation.
Difference between Historic Zoning laws and Landmark
Historic Zoning regulates all property within a given physical
Landmark legislation applies only to selected parcels.
Landmark laws are not discriminatory
They are not reverse spot zoning a land use decision which
arbitrarily singles out a particular parcel for different, less
favorable treatment than the neighboring ones.
Landmark law embodies a comprehensive plan
The Landmark law embodies a comprehensive plan to preserve
structures of historic or aesthetic interest wherever they might
be found in the city.
400 landmarks, 31 historic districts have been designated to
Landmark Law is Arbitrary
The decision to designate the Terminal was arbitrary or at least
subjective because it is a matter of taste.
Penn Central did not seek judicial review.
Landmark Law incapable of producing fair and equitable
distribution of benefits and burdens
New York City's law is inherently incapable of producing the
fair and equitable distribution of benefits and burdens of
governmental action which is characteristic of zoning laws and
historic-district legislation and which they maintain is a
constitutional requirement if "just compensation" is not to be
This does not effect a takings.
It is, of course, true that the Landmarks Law has a more severe
impact on some landowners than on others, but that in itself
does not mean that the law effects a "taking."
Promoting the general welfare commonly burdens some more than
Legislation designed to promote the general welfare commonly
burdens some more than others.
The owners of the brickyard in Hadacheck, of the cedar trees in
Miller v. Schoene, and of the gravel and sand mine in Goldblatt
v. Hempstead, were uniquely
burdened by the legislation sustained in those cases.
Zoning laws affect some more severely than others
Similarly, zoning laws often affect some property owners more
severely than others but have not been held to be invalid on
For example, the property owner in Euclid who wished to use its
property for industrial purposes was affected far more severely
by the ordinance than its neighbors who wished to use their land
What we have established thus far
The New York City law is not rendered invalid by its failure to
provide "just compensation" whenever a landmark owner is
restricted in the exploitation of property interests, such as
air rights, to a greater extent than provided for under
applicable zoning laws.
We now must consider whether
the interference with appellants' property is of such a
magnitude that "there must be an exercise of eminent domain and
compensation to sustain [it]." Pennsylvania Coal Co . v.
Mahon, 260 U.S., at 413.
That inquiry may be narrowed to the question of the severity of
the impact of the law on appellants' parcel, and its resolution
in turn requires a careful assessment of the impact of the
regulation on the Terminal site.
Does not interfere with present use
The law does not interfere with present use of the Terminal.
The law contemplates for the continued use as a railroad
terminal, office space and concessions.
Penn Central profits from use and receives a reasonable return.
Penn exaggerates its ability to make use of air rights
The commission did reject the plan.
But the commission did not prohibit ANY construction above the
They emphasized construction would depend on harmonizing in
scale, material, and character with the Terminal.
Penn has not been denied ALL use of pre-existing AIR rights
Their rights have not been abrogated.
They are made transferrable to at least 8 parcels in the
vicinity of the Terminal.
Some parcels are suitable for office buildings.
These rights mitigate whatever financial burdens the law has
New York City's Landmarks Law has not effected a "taking" of
The restrictions imposed are
substantially related to the
promotion of the general welfare and not only
permit reasonable beneficial use
of the landmark site but also
afford appellants opportunities further to enhance
not only the Terminal site proper but also other properties