Elisabeth Haub Law School of Law
Pace University
Land Use Law Center
Supervisor: John R. Nolon, Distinguished Professor
Blog No. 4 of the Land Use, Human Health, and Equity Project
Editors: Jessica Roberts, Jillian Aicher, Colt Watkiss
Contributing Researcher: Jillian Aicher[*]

New legal challenges to COVID-19-related government actions, including mask mandates and business closures, address old questions: How far can the police power be stretched to protect the public against dangers? To what extent do property rights limit governmental actions? When does diminution of existing property rights require compensation? Do localities have implied emergency powers, do they need specific authorization, and can they supplement state orders? What rights do property owners, landlords, and tenants have during crises?

Common law principles and a century’s worth of U.S. Supreme Court opinions balancing property rights and public interests contribute to a better understanding.

Blackstone’s Commentaries demonstrate that even under early common law, government regulation could limit personal liberties and property rights.  Many Supreme Court cases build on this concept through Due Process and Takings jurisprudence.

1922, Penn Coal v. Mahon: In this seminal Supreme Court case, a property owner sought to enjoin mining under his house based on a Pennsylvania statute regulating coal mining. The Court denied the injunction, finding the statute may have constituted a taking. Before this case, we did not know police power regulations could constitute “regulatory takings.” Pre-1922 challenges to property regulations were based on Fifth and Fourteenth Amendment Due Process claims that laws did not reasonably protect the public interest. Property “takings” are different. As Justice Holmes declared in Penn Coal, when a regulation goes too far, it can constitute the equivalent of a physical taking, which the Fifth and Fourteenth Amendments prevent unless implemented for a public purpose and accompanied by just compensation. The Penn Coal Court held Pennsylvania’s mining restriction law could not be sustained as a police power exercise.

1906, Strickley v. Highland Boy Gold Mining Co.: 16 years before Penn Coal, Justice Holmes wrote Strickley, limiting a property owner’s ability to enjoin a Utah police power law. The plaintiff challenged the state’s action condemning an easement over the plaintiff’s property and conveying it to a private mining company. Justice Holmes upheld the challenged legislation, finding that the state’s action taking private property and conveying it to another private party was not unconstitutional.

1915, Hadacheck v. Sebastian and Rienman v. Little Rock: These cases address the legitimacy of using police power to prevent property use that constitutes a nuisance or causes injury. The Supreme Court validated property restrictions of a brick kiln and livery stable, land uses it found injurious to the public health and safety.

1928, Miller v. Schoene: The Miller Court found the Takings Clause did not require Virginia to compensate an owner of cedar trees after the state ordered them destroyed to prevent disease to nearby apple orchards. The Court upheld the state’s action as “controlled by considerations of social policy which are not unreasonable.”

1926, Euclid v. Ambler Realty: The famous Euclid decision rejected another Due Process claim and upheld zoning as constitutional. The Euclid Court presumed the validity of police power enactments and imposed a heavy burden of proof on challengers. Euclid demonstrates that the scope of Constitutional principles expands and contracts in a changing world.

1988, Pennell v. San Jose: Plaintiffs challenged the City of San Jose’s rent-control ordinance, enacted to alleviate elevated rents during a housing shortage. The Court held the ordinance did not violate Due Process but was rationally crafted to protect landlords’ investments and prevent tenants’ rent increases. The ordinance – with its purpose to prevent unreasonable rent increases – legitimately exercised police power.

2002, Tahoe-Sierra Preservation Council v. Tahoe Regional Planning Agency: This case demonstrates that temporarily suspending land development rights is not a taking. SCOTUS held a 32-month moratorium on development (issued to allow the Agency time to adopt measures to mitigate environmental impacts to Lake Tahoe) was not a regulatory taking.

These cases do not offer much hope for takings claims’ success against public health emergency regulations. As for the seminal takings doctrines – Loretto, Lucas, Nollan, Dolan, and Penn Centrala study of 2,000 takings cases establishes that SCOTUS’s categorical rules govern almost no state takings cases and regulatory takings claims almost invariably fail. Public health protection laws accomplish valid public objectives; they are likely to be valid under Due Process jurisprudence.

These cases also illustrate the role that local governments can play during public health crises, which can vary depending on the power granted in local charters, home rule provisions in state constitutions or state laws, or special and general enabling acts.

[*] Jessica Roberts is a second year student at the Elisabeth Haub School of Law and Research Assistant to Professor Nolon.
Jillian Aicher is a second year student at the Elisabeth Haub School of Law and Research Assistant to Professor Nolon.
Colt Watkiss is a first year student at the Elisabeth Haub School of Law and Land Use Law Center Volunteer.