De Facto Takings in Pennsylvania

August 2014Articles In the Zone

In the recent case of Cross v. Solebury Township, the Bucks County Court of Common Pleas, in Pennsylvania, dismissed an applicant’s claim that the enforcement of the Solebury Township Zoning Ordinance resulted in a “defacto” taking of their property. By way of brief background, the applicant owned a parcel of approximately 17 acres of undeveloped, wooded land located along River Road in Solebury Township, Bucks County. The property was located in a residential district, which permitted the use of a property by right for single family homes, but was also located within the Township’s flood plain overlay district.

The applicant filed an application for variances from the flood plains restrictions, a wetland buffer requirement and special setback restrictions in order to construct one single family home on the property. The ZHB denied this relief and such denial was then affirmed by the Court of Common Pleas and the Commonwealth Court. While the appeals were pending, given the ZHB’s denial of the requested relief in order to construct one single family home on the property, the applicant commenced a defacto taking claim alleging that the Township, by virtue of its enforcement of the zoning regulations at issue, essentially “took” his property and, accordingly, the applicant was entitled to just compensation resulting from the taking.

The Township filed preliminary objections to the application’s petition for the appointment of a board review and, after a hearing on the subject, dismissed the taking petition. In analyzing the taking claim, the court noted the following:

There are two different types of condemnations that are classified as regulatory takings. A de jure condemnation is a taking initiated by a regulatory body in full compliance with the regulatory process. A de facto condemnation occurs when an entity, clothed with the power of eminent domain, exercises their power and substantially deprives the owner of all beneficial use of their property.

There are two different types of de facto takings. The first is a “Lucas” taking. This type of taking is rare and occurs when a landowner is deprived of all use of his or her property. The second is a “Penn Central” taking. This is the more common type of de facto taking. It occurs when a taking falls short of a “Lucas” taking but still “goes too far.” A “Penn Central” taking is one which forces some people to bear public burdens which should be borne by the public as a whole.

A property owner must show three elements in order to establish a de facto taking. First, the alleged condemnation party must have the authority to condemn. Second, there must be proof that there are exceptional circumstances that substantially deprive the property owner of the enjoyment and beneficial use of the property. Third, it must be shown that the deprivation is the direct, necessary and unavoidable result of the exercise of the power to condemn. There is no bright line test to determine whether such a taking has occurred; each case must be decided according to its own facts.

In summary, the court noted that these regulations were valid under the Township’s police power and that, if the applicant thought that the regulations “went too far,” then the applicant should have challenged the validity of such regulations as part of their application to the ZHB. For further information on this subject, see this author’s article dated February, 2003. In the Zone, February 2003 .

In this case, the applicant would have been better served by filing for the requested variances and, in the alternative, challenging the validity of the zoning regulations at issue.

View the entire issue of In the Zone (pdf)