De Facto Takings

Fordham Law Review
Volume 48 | Issue 3 Article 4
1979
De Facto Takings and the Pursuit of Just

Compensation
Thomas S. Szatkowski
Recommended Citation
Thomas S. Szatkowski, De Facto Takings and the Pursuit of Just Compensation, 48 Fordham L. Rev. 334 (1979).
Available at: http://ir.lawnet.fordham.edu/flr/vol48/iss3/4
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NOTES
DE FACTO TAKINGS AND THE PURSUIT OF JUST COMPENSATION
INTRODUCTION
When urban renewal or other public land use projects are announced and
preparations begin, predictable changes occur in the affected property and in
the surrounding areas. The property owner may be forbidden to make
improvements and the property inevitably begins to deteriorate. Tenants
move and businesses disintegrate. Mortgage money disappears and insurance
rates soar. Accordingly, the value of the property diminishes rapidly. I In
these circumstances, controversial legal issues arise concerning whether gov-
ernment action commenced for the public benefit results in an appropriation
of private property without just compensation in violation of the fifth
amendment. 2 Specifically, during the course of formal eminent domain pro-
ceedings, an aggrieved property owner may attempt to establish a de facto
taking by demonstrating that governmental activity in furtherance of an
impending condemnation has altered the character of the property and
interfered with the owner's use to the extent there has been a confiscation by
the government prior to actual passage of title. 3 In addition, a claim that a de
facto taking has occurred may arise when there has been no initiation of
eminent domain proceedings, but the operation of a statute, regulation, or
some other governmental activity has so restricted the use of property and
reduced its value that the private property is rendered unsuitable for any
economically beneficial purpose. 4
1. See, e.g., Richmond Elks Hall Ass'n v. Richmond Redev. Agency, 561 F.2d 1327 (9th Cir.
1977); Amen v. City of Dearborn, 363 F. Supp. 1267 (E.D. Mich. 1973), rev'd on other grounds,
532 F.2d 554 (6th Cir. 1976); Madison Realty Co. v. City of Detroit, 315 F. Supp. 367 (ED.
Mich. 1970); Foster v. City of Detroit, 254 F. Supp. 655 (E.D. Mich. 1966), qffd, 405 F.2d 138
(6th Cir. 1968); City of Detroit v. Cassese, 376 Mich. 311, 136 N.W.2d 896 (1965); City of Buffalo
v. J.W. Clement Co., 28 N.Y.2d 241, 269 N.E.2d 895, 321 N.Y.S.2d 345 (1971).
2. "No person shall ... be deprived of life, liberty, or property, without due process of law;
nor shall private property be taken for public use, without just compensation." U.S. Const.
amend. V.
3. Vesting of title may occur at different times depending upon the statutory scheme
established by the particular jurisdiction. For example, New York requires that the condemning
authority conduct a public hearing prior to acquisition. N.Y. Em. Domain Proc. Law § 201
(McKinney 1979). After the hearing, the condemning authority may acquire title to the property
by filing an acquisition map in the county clerk or registrar's office of the county in which the
property is located. Id. § 402. The acquisition is complete and title is vested in the state as of the
filing of the acquisition map. Id. § 402(A)(3). Michigan. on the other hand, uses two different
procedures. First, the condemnor may file a petition in court describing the land to be taken and
the person or persons having an interest in the land. Mich. Comp. Laws Ann. § 213.2 (1967). A
hearing is then held and a jury determines the compensation that is to be awarded to the
condemnee. Id. § 213.3. The court then enters a judgment vesting title in the state. Id. § 213.4.
The second procedure, called a "quick take," permits the condemnor to file a declaration of
taking. Id. § 213.367. If the condemnee does not make a motion to review the petition, title
immediately vests in the condemnor and the right to just compensation vests in the condemnee.
Id. § 213.369.
4. See Nectow v. City of Cambridge, 277 U.S. 183 (1928) (residential zoning ordinance);
DE FACTO TAKINGS
Resolution of these issues requires a delicate balancing of the legitimate

interests of private individuals with those of the general public. Thus, the
courts must distinguish between the government's "police power" to regulate
property for the benefit of the public health, safety and welfare without
payment of compensation,' and its "eminent domain power" to appropriate
private property for public use by payment of just compensation according to
the property's highest and best use. 6 To reduce the hardships that the
government may inflict upon property owners, and yet to avoid prohibitive
costs of public projects, the courts have followed two divergent theories of
establishing a de facto taking. The formal definition, applied by New York
courts, permits a property owner to receive just compensation only when
there has been "physical invasion" of property or "direct legal restraint" on its
use. 7 In contrast, a more flexible definition, employed by Michigan courts and
expressly rejected by the New York courts, requires the government to pay
just compensation whenever its deliberate action results in a substantial
diminution in private property values. 8 These approaches produce sig-
nificantly varying legal results that lead to different allocations of the financial
burdens of public projects to the government and the affected property
owner.
This Note contends that the approach developed by the Michigan courts to
fulfill the mandate of the fifth amendment represents a more equitable
resolution of the de facto taking issue. The constitutional background and the
general theories that guide state court decisions are introduced in Part I. Part
II analyzes the New York test of de facto taking and demonstrates that the
physical invasion and direct legal restraint requirements do not provide
practical or ethical standards to enable the courts to protect both private and
public interests. Part IlI examines the Michigan approach and shows that
courts applying more pragmatic standards to determine whether a de facto
taking has occurred will be more successful in accomodating private rights
and public order within the existing legal framework.
Miller v. Schoene, 276 U.S. 272 (1928) (statute); Village of Euclid v. Ambler Realty Co., 272 U.S.
365 (1926) (zoning ordinance); notes 91-93 infra and accompanying text.
5. The police power is the sovereign power of the states, not surrendered to the federal
government, to enact legislation and promulgate regulations to promote the general welfare of the
public. E. Freund, The Police Power § 3, at 3 (1904); L. Tribe, American Constitutional Law 323
(1978). Thus, the police power is capable of change as social, economic, and political conditions
evolve. "[Tihe range of public interests comprehended by the public welfare is exceedingly
broad." Sixth Camden Corp. v. Township of Evesham, 420 F. Supp. 709, 723 (D.N.J. 1976).
"The values it represents are spiritual as well as physical, aesthetic as well as monetary. It is
within the power of the legislature to determine that the community should be beautiful as well as
healthy, spacious as well as clean, well-balanced as well as carefully patrolled." Berman v.
Parker, 348 U.S. 26, 33 (1954); accord, Village of Belle Terre v. Boraas, 416 U.S. 1, 9 (1974).
6. See, e.g., United States v. Fuller, 409 U.S. 488, 490-92 (1973); Almota Farmers Elevator &
Warehouse Co. v. United States, 409 U.S. 470, 473-74 (1973); United States v. Reynolds, 397
U.S. 14, 16-19 (1970).
7. City of Buffalo v. J.W. Clement Co., 28 N.Y.2d 241, 269 N.E.2d 895, 321 N.Y.S.2d 34S
(1971); see pt. U(A)-(B) infra.
8. City of Detroit v. Cassese, 376 Mich. 311, 136 N.W.2d 896 (1965); see pt. lMl infra and
accompanying text.
FORDHAM LAW REVIEW [Vol. 48
I. CONSTITUTIONAL MANDATE OF THE TAKING CLAUSE

Despite years of litigation, the fifth amendment's prohibition against taking
private property for public use without the payment of just compensation
continues to be "murky and confused." 9 One reason for the lack of certainty is
that the precise theoretical basis' 0 of the provision and the motivation for
including it in the Bill of Rights are not clear."t Furthermore, neither the
language of the provision, nor its legislative history, 12 provide a definition of
the terms "property,"'1 3 "taking," or "just compensation." In addition, legisla-
9. Kanner, CondemnationBlight: Just How Just Is Just Compensation? 48 Notre Dame Law.
765, 766 (1973). The courts admit that this area of the law is a difficult one. E.g., Penn Cent.
Transp. Co. v. New York City, 438 U.S. 104, 123 (1978) ("The question of what constitutes a
'taking' for purposes of the Fifth Amendment has proved to be a problem of considerable
difficulty."); Armstrong v. United States, 364 U.S. 40, 48 (1960) ("difficulty of trying to draw the
line"); United States v. Catex, Inc., 344 U.S. 149, 156 (1952) ("No rigid rules can be laid
down."). Many commentators have attempted to develop a workable rule of law out of tile
confusing and apparently incompatible court decisions. See, e.g., Costonis, "Fair"Compensation
and the Accommodation Power: Antidotes for the Taking Impasse in Land Use Controversies, 75
Colum. L. Rev. 1021 (1975); Dunham, Griggs v. Allegheny County in Perspective: Thirty Years of
Supreme Court Expropriation Law, 1962 Sup. Ct. Rev. 63; Kratovil & Harrison, Eminent
Domain-Policy and Concept, 42 Calif. L. Rev. 596 (1954); Mandelker, Inverse Condemnation:
The ConstitutionalLimits of Public Responsibility, 1960 Wis. L. Rev. 3; Michelman, Property,
Utility, and Fairness:Comments on the Ethical Foundations of "Just Compensation" Law, 80
Harv. L. Rev. 1165 (1967); Tomain, Eliminationof the Highest and Best Use Principle:Another
Path Through the Middle Way, 47 Fordham L. Rev. 307 (1978).
10. Several common law concepts and political theories appear to have influenced the
drafting of the fifth amendment's taking clause. F. Bosselman, D. Callies & J. Banta, Tile
Taking Issue 100 (1973) [hereinafter cited as The Taking Issue]; Stoebuck, A General Theory of
Eminent Domain, 47 Wash. L. Rev. 553, 572-73 (1972). These include the Magna Carta, the
writings of Blackstone and Grotius, and the concepts of natural law. The Magna Carta provided
that the sovereign should not be permitted to seize arbitraily the lands of free men. Magna Carta
39; see The Taking Issue, supra, at 53-60, 79-80, 103; Hazeltine, The Itfluence of Magna Carta
on American Constitutional Development, 17 Colum. L. Rev. 1, 10 (1917). Blackstone and
Grotius asserted that if the sovereign acquired property from an individual, the individual should
be indemnified for any loss suffered. 1 W. Blackstone, Commentaries *138-39; Grotius on the
Rights of War and Peace 179 (W. Whewell trans. 1853); see The Taking Issue, supra, at 88-92;
Sax, Takings and the Police Power, 74 Yale L.J. 36, 54-57 (1964) [hereinafter cited as Sax I].
Common to these writings is the theory that the individual's private property rights should be
protected against arbitrary or uncompensated seizure by the government.
11. "There is a conspicuous absence of historical data that might enable one to determine why
Madison added the just compensation language of the Fifth Amendment." The Taking Issue,
supra note 10, at 99-100. It has been suggested, however, that the provision was intended to
prevent the military seizure of food and supplies from citizens as had occurred during the
Revolutionary War. Id. at 103-104; Sax I, supra note 10, at 56-57.
12. See generally 2 B. Schwartz, The Bill of Rights: A Documentary History 983-1167 (1971).
13. The definition of the term "property" as used in the taking clause is a subject of
controversy. "[T]he concept of property never has been, is not, and never can be of definite
content." Philbrick, Changing Conceptions of Property in Law, 86 U. Pa, L. Rev. 691, 696 (1938).
"[P]roperty jurisprudence stubbornly resists the best efforts of courts, legislators, and scholars to
etch the concept's dimensions in stone." Costonis, The Disparity Issue: A Context for the Grand
Central Terminal Decision, 91 Harv. L. Rev. 402, 402 (1977). In some cases the Supreme Court
has formulated a very expansive definition of property. For example, in United States v. General
Motors Corp., 323 U.S. 373 (1945), the Court defined property to include the entire "group of
1979] DE FACTO TAKINGS
tures have generally ignored the problem, and courts have been reluctant to
complicate further the legal issues by 4incorporating economic evidence and
political attitudes into their analyses.'
Although its legislative foundations are not certain, the policy underlying
the taking clause is the necessity of protecting an individual's right to private
property from an uncompensated seizure by the government for public use.
Thus, any interpretation of the taking clause must accomodate both private
property interests and the necessity for public programs.Is Recognizing the
formidability of this task the Supreme Court has recently stated: "[T]his
Court, quite simply, has been unable to develop any 'set formula' for
determining when 'justice and fairness' require that economic injuries caused
by public action be compensated by the government, 16
rather than remain
disproportionately concentrated on a few persons."'
Despite its hesitance to define the precise constitutional meaning of the term
"taking," the Supreme Court has developed several approaches to determine
whether just compensation must be paid to an aggrieved property owner.
Most commonly used by the courts 17 are the "physical invasion" theory and
rights inhering in the citizen's relation to the physical thing, as the right to possess, use and
dispose of it." Id. at 378. One commentator suggested that property includes every species of
interest in land and things that an owner can transfer to another person. Stoebuck, supra note 10,
at 606. See also Cormack, Legal Concepts in Cases of Eminent Domain, 41 Yale L.J. 221, 240
(1931). The Supreme Court, however, has dismissed claims that alleged the occurrence of a taking
on the ground that the private interests interfered with by government action were not
"property." United States v. Willow River Power Co., 324 U.S. 499 (1945) (no property interest
in maintaining high water level); United States v. Chandler-Dunbar Water Power Co., 229 U.S.
53 (1913) (no private property interest can exist on navigable waters); see Kratovil & Harrison,
supra note 9, at 602-03; Sax, Takings, Private Property and Public Rights, 81 Yale L.J. 149, 152
& n.8 (1971) [hereinafter cited as Sax I]; Sax I, supra note 10, at 51-52.
14. See, e.g., Costonis, The disparity Issue: A Context for the Grand Central Terminal
Decision, 91 Harv. L. Rev. 402, 408-09 (1977); Costonis, supra note 9, at 1047-49.
15. "The law of eminent domain is fashioned out of the conflict between the people's interest
in public projects and the principle of indemnity to the landowner." United States ex rel TVA v.
Powelson, 319 U.S. 266, 280 (1943). While the government has paramount rights to appropriate
private property, the fifth amendment requires that just compensation be paid whenever this
right is exercised. United States v. Lynah, 188 U.S. 445, 465 (1903). Compensation must be
"just," however, "not merely to the individual whose property is taken, but to the public which is
to pay for it." Searl v. School Dist. No. 2, 133 U.S. 553, 562 (1890). "In a variety of ingenious
ways, courts have narrowed the principle of 'just compensation' in order to reduce the costs of
economic development with the effect of subsidizing growth." Miller v. United States, 583 F.2d
857, 862 (6th Cir. 1978).
16. Penn Cent. Transp. Co. v. New York City, 438 U.S. 104, 124 (1978); see Goldblatt v.
Town of Hempstead, 369 U.S. 590, 594 (1962); Armstrong v. United States, 364 U.S. 40, 49
(1960).
17. The "noxious use abatement" and "balancing social gains against private losses" theories
have also been suggested. The noxious use abatement theory focuses on "whether the claimant
has sustained any loss apart from restriction of his liberty to conduct some activity considered
harmful to other people." Michelman, supra note 9, at 1184; see, e.g., Goldblatt v. Town of
Hempstead, 369 U.S. 590 (1962); Village of Euclid v. Ambler Realty Co., 272 U.S. 365 (1926);
Hadacheck v. Sebastian, 239 U.S. 394 (1915); Reinman v. City of Little Rock, 237 U.S. 171
(1915); Bacon v. Walker, 204 U.S. 311 (1907). The rationale underlying the noxious use theory is
that compensation is not required "when the public simply requires one of its members to stop
FORDHAM LAW .REVIEW [Vol. 48
the "diminution in value" theory. Because the physical invasion theory

emphasizes the form of the challenged governmental activity, and the di-
minution in value theory stresses its economic impact, courts that apply these
theories frequently attain contradictory results. 18
A. The Physical Invasion Theory
Central to the physical invasion theory is the determination "whether or not
the public or its agents have physically used or occupied something belonging
to the claimant."' 9 For example, the Supreme Court characterized the gov-
ernment's activity as physical invasion in Pumpelly v. Green Bay Co., 20 in
making a nuisance of himself." Michelman, supra note 9, at 1196. The theory originated In
Mugler v. Kansas, 123 U.S. 623 (1887), a case involving the validity of a statute that prohibited
the manufacture and sale of intoxicating liquor. Mugler complained that the prohibition on
the use of his brewery rendered it worthless and was, in effect, a taking of property for
public use without compensation and a deprivation of property without due process of law. Id. at
664. The Court disagreed, stating that: "[Tihe destruction of property which is itself a public
nuisance, or the prohibition of its use in a particular way, whereby its value becomes depreciated,
is very different from taking property for public use, or from depriving a person of his property
without due process of law. In the one case, a nuisance only is abated; in the other, unoffending
property is taken away from an innocent owner." Id. at 669. A shortcoming of the noxious use
theory is illustrated in Hadacheck v. Sebastian, 239 U.S. 394 (1915), in which the plaintiff's brick
factory was located on the outskirts of a city, but it later became surrounded by a residential
development. Because brick manufacturing involves the firing of the bricks in kilns which emit
fumes, gases, and soot detrimental to the health of those living in the vicinity, the city enacted an
ordinance prohibiting the manufacture of brick within the city limits. The plaintiff challenged the
validity of the ordinance under the fourteenth amendment. The Court upheld the ordinance on
the ground that it was directed merely to prevent a nuisance. Id. at 411. The owner of tile
brickyard, however, was free from any wrongdoing. His use of the property was not noxious
when he assumed ownership. Rather, the use became noxious as the residential community
developed. Thus, the problem is one of public policy, in choosing between two lawful uses of
land: manufacturing and residential. By characterizing brick manufacturing as noxious, however,
the test presupposes that the residential uses are to be preferred. Thus, the noxious use test
appears to encourage rigid characterization rather than analysis of the competing public policy.
See Sax I, supra note 10, at 49. The balancing test, on the other hand, is rarely used by the
courts. The key to determining the occurrence of a compensable taking according to this test is
"whether the claimant's loss is or is not outweighed by the public's concomitant gain." Michel-
man, supra note 9, at 1184; see Kratovil & Harrison, supra note 9, at 609, 626. If the individual's
losses are found to be "outweighed" by the social gains, there is no taking. See, e.g., Rochester
Business Inst. v. City of Rochester, 25 A.D.2d 97, 267 N.Y.S.2d 274 (4th Dep't 1966);
Comment, Balancing PrivateLoss Against Public Gain To Test ForA Violation of Due Process or
A Taking Without Just Compensation, 54 Wash. L. Rev. 315 (1979). The problem with such a
theory is the difficulty of weighing the individual's loss; and the public's gain. These interests
cannot be accurately defined, measured or compared on a standard scale. Michelman, supra note
9, at 1193-96.
18. Sax I, supra note 10, at 46; see Berger, A Policy Analysis of the Taking Problem, 49
N.Y.U. L. Rev. 165 (1974); Michelman, supra note 9, at 1191.
19. Michelman, supra note 9, at 1184; see, e.g., United States v. Pewee Coal Co., 341 U.S.
114 (1951); United States v. Kansas City Life Ins. Co., 339 U.S. 799 (1950); United States v.
Causby, 328 U.S. 256 (1946); United States v. Cress, 243 U.S. 316 (1917); United States v.
Welch, 217 U.S. 333 (1910); United States v. Lynah, 188 U.S. 445 (1903); Transportation Co. v.
Chicago, 99 U.S. 635 (1878); Pumpelly v. Green Bay Co., 80 U.S. (13 Wall.) 166 (1871).
20. 80 U.S. (13 Wall.) 166 (1871).
which the state authorized the construction of a dam which caused the
flooding of the plaintiff's land. The Court stated that "where real estate is
actually invaded by superinduced additions of water, earth, sand, or other
material, or by having any artificial structure placed on it, so as to effectually
destroy or impair
' 21
its usefulness, it is a taking, within the meaning of the
Constitution."
Although the Supreme Court recently expressed its preference for the
theory, stating that "[a] 'taking' may more readily be found when the
interference with property can be characterized as a physical invasion by
government, '22 the physical invasion requirement often depends upon a
"purely fortuitous circumstance. " 23 For example, in airplane overflight cases
in which the plaintiffs claim that frequent and regular flights by government
airplanes constitute a taking, courts applying the physical invasion theory
have held that only those owners whose property was located directly below
the flight path could receive compensation. 24 Thus, while the physical inva-
sion theory may furnish an expeditious standard for distinguishing between
compensable and noncompensable interferences with private property, recov-
ery can be dependent upon an inquiry "as irrelevant as whether the wing tip
of the aircraft passes through' 25
some fraction of an inch of the airspace directly
above the plaintiffs land.
Moreover, by making a tresspassory-type invasion the threshold for a taking,
a court applying the physical invasion test does not take into account the
deleterious effects on property value caused by government action involving
adjacent property. For example, in Transportation Co. v. Chicago,2 6 the
government's construction of a tunnel left the plaintiff's property landlocked
so that boats were unable to approach its docks. In addition, excavation of an
adjacent street blocked the doors of the plaintiff's warehouse. Utilizing the
physical invasion test, the Supreme Court refused to award the plaintiff
compensation because government acts "not directly encroaching upon pri-
vate property, though their consequences may impair its use, are ... not...
a taking within the meaning of the constitutional provision." 2 7 Thus, under
the physical invasion test, government activities that occur outside the
boundaries of private property may be insufficient to constitute a taking
despite the substantial losses suffered by the private owner.
21. Id. at 181.

22. Penn Cent. Transp. Co. v. New York City, 438 U.S. 104, 124 (1978). The Court noted,
however, that it did not "embrace the proposition that a 'taking' can never occur unless
government has transferred physical control over a portion of a parcel." Id. at 123 n.25.
23. Michelman, supra note 9, at 1226.
24. Batten v. United States 306 F.2d 580, 583 (10th Cir. 1962), cert. denied, 371 U.S. 955
(1963); Neher v. United States, 265 F. Supp. 210, 216 (D. Minn. 1967); Bellamy v. United States,
235 F. Supp. 139, 140 (E.D.S.C. 1964); Leavell v. United States 234 F. Supp. 734, 739
(E.D.S.C. 1964); Avery v. United States, 330 F.2d 640, 645 (Ct. Cl. 1964).
25. Martin v. Port of Seattle, 64 Wash. 2d 309, 316, 391 P.2d 540, 545 (1964), cerl. denied,
379 U.S. 989 (1965).
26. 99 U.S. 635 (1878).
27. Id. at 642.
B. The Diminution in Value Theory

Perhaps in direct contrast to the physical invasion theory, is the diminution
in value theory, which emphasizes the "size of the harm sustained by the
claimant or the degree to which his affected property has been devalued"2 8 in
determining whether government action has resulted in a taking. This theory
was derived from Justice Holmes's opinion in Pennsylvania Coal Co. v.
Mahon, 29 which involved the validity of a state statute that prohibited any
coal mining that would cause the collapse or subsidence of a public building,
road, or dwelling. The coal company, which possessed the right to mine
subsurface coal, attacked the statute on the ground that it completely de-
stroyed the coal company's rights in the property in violation of the fifth
amendment.30 In holding that the statute unconstitutionally effected a "tak-
ing" of private property without just compensation, Justice Holmes articu-
lated the basis of the diminution in value theory:
As long recognized, some [property] values are enjoyed under an implied limitation
and must yield to the police power. When [the extent of diminution] reaches a certain
magnitude, [however,] in most if not all cases there must be an exercise of eminent
domain and compensation to sustain the act ...
.. '[Wihile property may be regulated

3
to a certain extent, if regulation goes too far
it will be recognized as a taking. '
Although Justice Holmes labeled the effect of the statute in Pennsylvania Coal
as a "taking," the Court only decided that the statute was an invalid exercise
of the police power, not that an actual appropriation of property occurred.
The remedy for an "overregulation" is to declare it unconstitutional; in
contrast, when the government actually "takes" private property for public
32
use, just compensation must be paid.
Justice Holmes's statement of the law in Pennsylvania Coal has been a
constant source of frustration for courts that must decide whether government
action has actually resulted in a taking requiring just compensation. 33 As one
court stated, "[t]he distinction, although definable, between a compensable
taking and a noncompensable regulation is not always susceptible of precise
demarcation." 34 The dichotomy is particularly unclear when the predicate of
28. Michelman, supra note 9, at 1184; see, e.g., Armstrong v. United States, 364 U.S. 40
(1960); Pennsylvania Coal Co. v. Mahon, 260 U.S. 393 (1922); Hudson County Water Co. v.
McCarter, 209 U.S. 349, 355 (1908).
29. 260 U.S. 393 (1922).
30. Id. at 395-96.
31. Id. at 413-15.
32. See Goldblatt v. Town of Hempstead, 369 U.S. 590, 593 (1962); Miller v. Schoene, 276
U.S. 272, 280 (1928); Village of Euclid v. Ambler Realty Co., 272 U.S. 365, 395 (1926); Welch v.
Swasey, 214 U.S. 91, 105 (1909).
33. The Taking Issue, supra note 10, at 124-38; Costonis, supra note 9, at 1040-42; Kratovil &
Harrison, supra note 9, at 608-11; Michelman, supra note 9, at 1229-34; Sax I, supra note 10, at
40-43; Tomain, supra note 9, at 307-11; Kiniec, Book Review, 13 Val. L. Rev. 589 (1979). See
generally Berger, supra note 18; Netherton, Implementation of Land Use Policy: Police
Power vs. Eminent Domain, 3 Land & Water L. Rev. 33 (1968).
34. Fred F. French Investing Co. v. City of N.Y., 39 N.Y.2d 587, 593, 350 N.E.2d 381, 384,
385 N.Y.S.2d 5, 8, cert. denied, 429 U.S. 990 (1976).
either concept is the extent of diminution in value of private property caused

by the challenged governmental activity. The vagueness of the diminution in
value test is due, in part, to the absence of guidance as to -the degree of
diminution in value sufficient to constitute a compensable taking. 3s As a
result, the theory is not applied in many
36
cases despite evidence of a substan-
tial diminution in property values.
The jurisprudence of the taking clause at the federal level, characterized by
an absence of "satisfactory rules, standards, and criteria" 37 affords little
guidance to the states which are required by the fourteenth amendment to
guarantee just compensation for a governmental appropriation of private
property. 38 Nevertheless, in attempting to reconcile the traditional legal
theories with the actual effects of governmental activity upon private
property, the state courts have developed two conceptual types of takings: de
jure and de facto. The legal, political, and practical problems associated with
de jure and de facto takings, however, are more complex than the definitional
distinctions might suggest.
C. De Jure Takings
De jure taking refers to government acquisition of legal title to property or
property rights during a formal condemnation proceeding. The power of
eminent domain permits the government to effect a de jure taking of private
property for public use despite protest by the owner. 39 The fifth amendment's
taking clause, however, limits the eminent domain power by requiring the
payment of just compensation whenever there is a formalized transfer of title
to the government. 40 Because the state legislature prescribes the procedures
for exercises of eminent domain, only two constitutional problems must be
resolved during condemnation proceedings: first, a determination of whether
35. Michelman, supra note 9, at 1229-34; Sax I, supra note 10, at 50, 60; Comment, De Facto
Taking and Municipal Clearance Projects: City Plan or City Scheme?, 9 Urb. L. Ann. 317, 320
(1975).
36. See, e.g., Goldblatt v. Town of Hempstead, 369 U.S. 590 (1962); Village of Euclid v.
Ambler Realty Co., 272 U.S. 365 (1926); Hadacheck v. Sebastian, 239 U.S. 394 (1915); Reinman
v. City of Little Rock, 237 U.S. 171 (1915). These cases applied the noxious use prevention
theory. Prof. Michelman suggests that the diminution in value theory is used only in cases
involving neither a physical invasion nor a restriction of the noxious use. Michelman, supra note
9, at 1191.
37. Magavern, The Evolution and Extension of the New York Law of Inverse Condemnation,
24 Buffalo L. Rev. 273, 275 (1974); see Penn Cent. Transp. Co. v. New York City, 438 U.S. 104,
123-24 (1977); Armstrong v. United States, 364 U.S. 40, 48 (1960); United States v. Caltex, Inc.,
344 U.S. 149, 156 (1952).
38. West v. Chesapeake & Potomac Tel. Co., 295 U.S. 662, 671 (1935); Chicago B. & Q.
RR. v. Chicago, 166 U.S. 226, 239 (1897).
39. See N.Y. Em. Domain Proc. Law § 101 (McKinney 1979); 1 P. Nichols, The Law of
Eminent Domain § 1.11, at 1-5 (rev. 3d ed. J. Sackman 1974).
40. U.S. Const. amends. V, XIV; Mich. Const. art. 10, § 2; N.Y. Const. art. I, § 7. The
eminent domain power is an inherent and necessary power of government to guard its indepen-
dent existence and to promote the welfare of the public. See United States v. Jones, 109 U.S. S13
(1883); Boom Co. v. Patterson, 98 U.S. 403 (1878); Kohl v. United States, 91 U.S. 367 (1875); 1
P. Nichols, supra note 39, § 1.3 at 1-78; Kratovil & Harrison, supra note 9, at 596; Stoebuck,
supra note 10, at 556, 568.
FORDHAM LAW .REVIEW [Vol. 48
the government has appropriated the property for "public use,"'4 1 and second, a
computation of the owner's "just compensation" as of the date of transfer of
title to the government. 4 2
The determination of just compensation is often difficult because govern-
ment action in connection with an impending condemnation may adversely
affect property values. 43 To prevent the government from taking advantage
of such adverse effects by acquiring the property at a depreciated price, the
41. The "public use" requirement of the fifth amendment has been considered a limitation on
the power of eminent domain. See Nichols, The Meaning of Public Use in the Law of Eminent
Domain, 20 B.U. L. Rev. 615 (1940). However, in United States ex relTVA v. Welch, 327 U'S.
546 (1946), and Berman v. Parker, 348 U.S. 26 (1954), the Supreme Court appears to have
repudiated a strict application of the doctrine of public use. See, e.g., Dunham, supra note 9, at
65-71; Glaves, Date of Valuation in Eminent Domain: irreverancefor UnconstitutionalPractice,
30 U. Chi. L. Rev. 319, 320 (1963); Stoebuck, supra note 10, at 588-99; Comment, The Public
Use Limitation on Eminent Domain: An Advance Requiem, 58 Yale L.J. 599, 611-14 (1949).
42. The definition of the term "just compensation" has also been the subject of debate. See,
e.g., Kanner, supra note 9, at 778-785; Kratovil & Harrison, supra note 9, at 615-20; Comment,
Eminent Domain Valuations in an Age of Redevelopment: Incidental Losses, 67 Yale L.J. 61
(1957). Two approaches to providing just compensation are the "indemnity" or "owner's loss"
theory and the "taker's gain" theory. Under the indemnity theory, the owner is entitled to be put In
as good a position as he would have been if his property had not been taken, United States cx rel
TVA v. Powelson, 319 U.S. 266, 281 (1943); see United States v. Miller, 317 U.S. 369, 373
(1943). Under the taker's gain theory, the government must pay only for that property which Is
acquired, and the individual is not compensated for incidental losses proximately caused by the
taking, such as business losses or moving expenses. Mitchell v. United States, 267 U.S. 341, 345
(1925). The rationale of the taker's gain theory is that forcing the public to pay for more than It
actually acquires would unduly increase the cost of the public project for which the property has
been taken. It is incorrect, however, to say that the total cost of the project is decreased when
certain of the owner's losses are not compensated. Denial of compensation does not reduce tile
cost of the acquisition. Rather, the total cost remains the same, but is redistributed so that a
greater proportion falls on the owner. Kanner, supra note 9, at 784-85; see Van Alstyne, Just
Compensation of Intangible Detriment: Criteriafor Legislative Modifications in California, 16
U.C.L.A. L. Rev. 491, 543-44 (1969). New York follows the indemnity theory. Rose v. State, 24
N.Y.2d 80, 87, 246 N.E.2d 735, 739, 298 N.Y.S.2d 968, 975 (1969); See Marraro v. State, 12
N.Y.2d 285, 292-93, 189 N.E.2d 606, 609-11, 239 N.Y.S.2d 105, 109-10 (1963); In re Board of
Water Supply, 277 N.Y. 452, 14 N.E.2d 789 (1938); Banner Milling Co. v. State, 240 N.Y. 533,
148 N.E. 668 (1925); New York, Ont. & W. Ry. v. Livingston, 238 N.Y. 300, 144 N.E. 589
(1924). Michigan also follows the indemnity theory. State Highway Comm'r v. Ellender, 362
Mich. 697, 108 N.W.2d 755 (1961); In re John C. Lodge Highway, 340 Mich. 254, 65 N.W.2d
820 (1954); City of Detroit v. Yellen, 28 Mich. App. 529, 184 N.W.2d 563 (1970).
43. The Supreme Court has "recognized that the 'market value' of property condemned can
be affected, adversely or favorably, by the imminence of the very public project that makes the
condemnation necessary." United States v. Reynolds, 397 U.S. 14, 16 (1970); United States v.
Miller, 317 U.S. 369, 376-77 (1943); Shoemaker v. United States, 147 U.S. 282, 304-05 (1893).
The subject of computation of fair market value is nct within the scope of this Note. For a
discussion of this subject, see Am. Inst. of Real Estate Appraisers of the Nat'l Ass'n of Realtors, 1
Readings in Real Property Valuation Principles (1977); 4 P. Nichols, supra note 39, §§ 12.1-.35,
at 12-4 to -235; 1 L. Orgel, Valuation Under the Law of Eminent Domain (1953); E. Rams,
Valuation for Eminent Domain (1973); Bigham, "FairMarket Value," "Just Compensation," and
the Constitution:A Critical View, 24 Vand. L. Rev. 63 (1970); Hershman, Compensation--Just
and Unjust, 21 Bus. Law. 285 (1966).
19791 DE FACTO TAKINGS
concept of condemnation blight may be employed. 44 A court that applies the

condemnation blight concept permits a condemnee to introduce evidence that
the acts of the condemning authority reduced the value of his property. If the
condemnee produces such evidence, he will recover the market value of his
property as it would have been at the time of the de jure
4
taking without the
debilitating impact of the impending condemnation. -
Under the condemnation blight concept, however, the date of the taking is
not affected. Rather, it remains the date of the de jure vesting of title in the
government. 46 As a result, the condemnee must continue to maintain the
property and pay the taxes and insurance until the passage of title to the
government. 47 In addition, the condemnee may not recover losses in rental
income, even though such losses may have been directly caused by the
pendency of the proceedings. 4 Finally, interest on the condemnation award
does not begin to accrue until the date of the de jure taking. 4 9 Thus, even
when condemnation blight is accounted for, the total recovery does not fully
compensate the condemnee's loss.
While the presentation of condemnation blight evidence may more closely
approximate full compensation to the condemnee, such evidence may only be
44. To permit compensation to be increased or decreased by an alteration in market value

caused by condemnation or a public works project would not lead to the just compensation
required by the Constitution. Almota Farmers Elevator & Warehouse Co. v. United States, 409
U.S. 470, 478 (1973); United States v. Reynolds, 397 U.S. 14, 16 (1970); United States v. Virginia
Elec. & Power Co., 365 U.S. 624, 635-36 (1961); United States v. Cors, 337 U.S. 325, 332 (1949).
45. City of Buffalo v. J.W. Clement Co., 28 N.Y.2d 241, 257-58, 269 N.E.2d 895, 905, 321
N.Y.S.2d 345, 359 (1971); It re Montauk, 58 A.D.2d 579, 580, 395 N.Y.S.2d 218, 219 (2d Dep't
1977) (mem.); Rome Urban Renewal Agency v. Nickley, 51 A.D.2d 680, 378 N.Y.S.2d 339 (4th
Dep't 1976) (mem.); City of Buffalo v. Manguso, 42 A.D.2d 673, 344 N.Y.S.2d 248 (4th Dep't
1973); City of Buffalo v. George Irish Paper Co., 31 A.D.2d 470, 299 N.Y.S.2d 8 (4th Dep't
1969), aff'd mem., 26 N.Y.2d 869, 258 N.E.2d 100, 309 N.Y.S.2d 606 (1970); Niagara Frontier
Bldg. Corp. v. State, 33 A.D.2d 130, 305 N.Y.S.2d 549 (4th Dep't 1969), aff'd, 28 N.Y.2d 755,
269 N.E.2d 912, 321 N.Y.S.2d 368 (1971); In re Incorporated Village of Lynbrook, 75 Misc. 2d
678, 348 N.Y.S.2d 115 (Sup. Ct. 1973); J. Sackman, Condemnation Blight-4 Problem in
Compensability and Value, 1973 Institute on Planning, Zoning and Eminent Domain 157; J.
Sackman, Condemnation Blight-Part II, 1976 Institute on Planning, Zoning and Eminent
Domain 283.
46. City of Buffalo v. J.W. Clement Co., 28 N.Y.2d 241, 255, 269 N.E.2d 895, 903, 321
N.Y.S.2d 345, 357 (1971); In re Incorporated Village of Lynbrook, 75 Misc. 2d 678, 680, 348
N.Y.S.2d 115, 118 (Sup. Ct. 1973); see City of Buffalo v. George Irish Paper Co., 31 A.D.2d 470,
299 N.Y.S.2d (4th Dep't 1969), aff'd mem., 26 N.Y.2d 869, 258 N.E.2d 100, 309 N.Y.S.2d 606
(1970); In re City of N.Y., 1 A.D.2d 807, 148 N.Y.S.2d 706 (1st Dep't 1956) (mem.).
47. In re Incorporated Village of Lynbrook, 75 isc. 2d 678, 680, 348 N.Y.S.2d 115, 118
(Sup. Ct. 1973); see City of Buffalo v. J.W. Clement Co., 28 N.Y.2d 241, 269 N.E.2d 895, 321
N.Y.S.2d 345 (1971).
48. City of Buffalo v. J.W. Clement Co., 41 A.D.2d 41, 46-47, 342 N.Y.S.2d 89, 94-95 (4th
Dep't 1973); Niagara Frontier Bldg. Corp. v. State, 33 A.D.2d 130, 305 N.Y.S.2d 549 (4th Dep't
1968), 269 N.E.2d 912, 321 N.Y.S.2d 368 (1971); In re Incorporated Village of Lynbrook, 75
Misc. 2d 678, 680, 348 N.Y.S.2d 115, 118 (Sup. Ct. 1973).
N.Y.S.2d 345, 356-57 (1971); In re Incorporated Village of Lynbrook, 75 Misc. 2d 678, 680, 348
N.Y.S.2d 115, 118 (Sup. Ct. 1973).
used during the course of a formal condemnation proceeding.50 Therefore, if

there is no de jure taking, an aggrieved property owner has no remedy to
recover5 1damages for condemnation blight unless he establishes a de facto
taking.
D. De Facto Takings
A de facto taking involves a claim by a property owner that governmental
activity has so affected the use and value of the property as to have, in effect,
constituted a taking of his property for public use without payment of just
compensation. 5 2 The claim may arise during an eminent domain proceeding
or during an inverse condemnation proceeding. 5 3 In contrast to a de jure
taking, which is identifiable by its formal procedural characteristics, a de
facto taking presents the constitutional problem of determining whether a
taking has actually occurred, and if so, when it occurred.
A condemnee may establish a de facto taking during the course of an
eminent domain proceeding to prove an earlier date of taking. 54 By establish-
50. Fisher v. City of Syracuse, 78 Misc. 2d 124, 128, 355 N.Y.S.2d 239, 243 (Sup. Ct.), qff'd,
46 A.D.2d 216, 361 N.Y.S.2d 773 (4th Dep't 1974), appeal denied, 36 N.Y.2d 642, 368 N.Y.S.2d
1025, cert. denied, 423 U.S. 833 (1975).
51. See 76 Crown St. Corp. v. City of N.Y., 35 A.D.2d 1005, 317 N.Y.S.2d 978 (2d Dep't
1970); Beaux Arts Props., Inc. v. United Nations Dev. Corp., 68 Misc. 2d 785, 328 N.Y.S.2d 16
(Sup. Ct. 1972), aff'd mem., 39 A.D.2d 844, 332 N.Y.S.2d 1008 (Ist Dep't 1972); Cinco v. City of
N.Y., 58 Misc. 2d 828, 296 N.Y.S.2d 26 (Sup. Ct. 1968).
52. 2 P. Nichols, supra note 39, § 6.2(1); see, e.g., City of Detroit v. Cassese, 376 Mich. 311,
136 N.W.2d 896 (1965); City of Buffalo v. J.W. Clement Co., 28 N.Y.2d 241, 269 N.E.2d 895,
321 N.Y.S.2d 345 (1971).
53. See Magavern, supra note 37, at 274-75. There is no single accepted definition of the term
inverse condemnation, which generally describes an action brought by a property owner against
the government to obtain just compensation if his property has been taken or damaged for public
use. Id.; Mandelker, supra note 9, at 3. Inverse condemnation claims arise from various types of
government action, including both physical and regulatory activities. For example, governmental
activity which amounts to a physical invasion, such as flooding, United States v. Cress, 243 U.S.
316 (1917), governmental activity outside the physical boundaries of the property which adversely
affects the property, such as changes in highway grades, Thorn v. State Highway Comm'r, 376
Mich. 608, 138 N.W.2d 322 (1965), or government regulation which impairs private property
interests may support an inverse condemnation action. See Beuscher, Some Tentative Notes on
the Integration of Police Power and Eminent Domain by the Courts: So-called Inverse or
Reverse Condemnation, 1968 Urb. L. Ann. 1, 2. Inverse condemnation actions are procedurally
analagous to direct condemnation proceedings and employ substantially the same rules of
evidence. In addition, the measure of damages recovered is virtually the same as in formal
condemnation. Kratovil & Harrison, supra note 9, at 607. Inverse condemnation, however, is not
the only remedy available to a property owner whose lands have been taken or damaged. The
owner may receive damages under a tort or contract theory, or may be able to enjoin the
governmental activity which would otherwise amount to a taking. See Note, Eminent
Domain-Rights and Remedies of an Uncompensated tandowner, 1962 Wash. U.L.Q. 210
(1962).
54. See City of Detroit v. Cassese, 376 Mich. 311, 136 N.W.2d 896 (1965); Leeds v. State, 20
N.Y.2d 701, 229 N.E.2d 446, 282 N.Y.S.2d 767 (1967); City of N.Y. v. Ash-Lip Realty Corp.,
49 A.D.2d 905, 373 N.Y.S.2d 391 (2d Dep't 1975) (mem.); Lambert v. State, 30 AD.2d 582, 290
N.Y.S.2d 412 (3d Dep't 1968) (mem.); Cicci v. State, 31 A.D.2d 733, 297 N.Y.S.2d 291 (4th Dep't
1968) (mem); Kahn v. State, 27 A.D.2d 476, 280 N.Y.S.2d 268 (3d Dep't 1967); In re 572 Warren
St., 58 Misc. 2d 1073, 298 N.Y.S.2d 429 (Sup. Ct. 1968).
ing that a de facto taking occurred prior to the date of the de jure taking, the
condemnee is entitled to recover: (1) the market value of the property as of the
date of the earlier de facto taking; (2) the difference between the income or
benefits he received from his use or occupation of the property prior to the de
facto taking, and the income derived during the interim until the de jure
taking, plus the taxes, insurance, and maintenance costs that he expended
during that time; and, (3) interest on the award measured from the earlier
date of the de facto taking."5 Thus, the condemnee's total compensation is
considerably greater than that afforded under the condemnation blight theory.
A claim that a de facto taking has occurred may also be established during
an inverse condemnation proceeding in which a private property owner
asserts that the government has taken his property without paying just
compensation.- 6 Thus, in either an inverse condemnation proceeding or a
formal eminent domain proceeding, the courts must decide the extent of
governmental activity that constitutes a taking. Failure to establish the
occurrence of a de facto taking in an inverse condemnation action, however,
deprives the owner of just compensation and leaves the property in private
ownership even though its value has been reduced and its use substantially
impaired.5 7 To protect private owners from such loss, and yet to avoid
55. City of Detroit v. Cassese, 376 Mich. 311, 318-19, 136 N.W.2d 896, 900-01 (1965). For
cases establishing market value as of the date of de facto taking, see In re City of N.Y., 43
N.Y.2d 512, 373 N.E.2d 984, 402 N.Y.S.2d 804 (1978); Kravec v. State, 40 N.Y.2d 1060, 360
N.E.2d 925, 392 N.Y.S.2d 246 (1976); Wolfe v. State, 22 N.Y.2d 292, 239 N.E.2d S17, 292
N.Y.S.2d 635 (1968); Kahlen v. State, 223 N.Y. 383, 119 N.E. 883 (1918); Amsterdam Urban
Renewal Agency v. Johnson, 60 A.D.2d 661, 400 N.Y.S.2d 213 (3d Dep't 1977) (mem.); Lambert
v. State, 30 A.D.2d 582, 290 N.Y.S.2d 412 (3d Dep't 1968). For a case holding that the
condemnee is entitled to recover the fair rental value of its property from the date of the de facto
appropriation, see Mastic Acres, Inc. v. State, 46 Misc. 2d 660, 260 N.Y.S.2d 532 (CL Cl. 1965).
For cases establishing the award of interest from the date of de facto taking, see Van Wagoner v.
Morrison, 279 Mich. 285, 271 N.W. 760 (1937); Campau v. City of Detroit, 225 Mich. 519, 196
N.W. 527 (1923); Michigan State Highway Comm'n v. Great Lakes Express Co., 50 Mich. App.
170, 183, 213 N.W.2d 239, 245 (1973); In re City of N.Y., 43 N.Y.2d 512, 518, 373 N.E.2d 984,
987, 402 N.Y.S. 804, 807 (1978); Leeds v. State, 20 N.Y.2d 701, 229 N.E.2d 446, 282 N.Y.S.2d
767 (1967); Ley v. State, 28 A.D.2d 943, 281 N.Y.S.2d 685 (3d Dep't 1967), aff'd, 25 N.Y.2d 876,
250 N.E.2d 878, 303 N.Y.S.2d 887 (1969); Rymkevitch v. State, 42 Misc. 2d 1021, 249 N.Y.S.2d
514 (Ct. Cl. 1964).
56. Balken v. Town of Brookhaven, 70 A.D.2d 579, 416 N.Y.S.2d 51 (2d Dep't 1979);
Gengarelly v. Glen Cove Urban Renewal Agency, 69 A.D.2d 524, 418 N.Y.S.2d 790 (2d Dep't
1979); Pum Realty Corp. v. State, 67 A.D.2d 1014, 413 N.Y.S.2d 252 (3d Dep't 1979); Hudson
Valley Sand & Stone Co. v. State, 57 A.D.2d 344, 395 N.Y.S.2d 507 (3d Dep't 1977); O'Brien v.
City of Syracuse, 54 A.D.2d 186, 388 N.Y.S.2d 866 (4th Dep't 1976); Tobin v. Ford, 49 A.D.2d
83, 371 N.Y.S.2d 721 (3d Dep't 1975); Department of Public Works v. Town of Horellsille, 41
A.D.2d 685, 342 N.Y.S.2d 632 (4th Dep't 1973); Evans v. City of Johnstown, 96 Misc. 2d 755,
410 N.Y.S.2d 199 (Sup. Ct. 1978).
57. See, e.g., Ton-Da-Lay, Ltd. v. State, 70 A.D.2d 742, 416 N.Y.S.2d 895 (3d Dep't 1979);
Pum Realty Corp. v. State, 67 A.D.2d 1014, 413 N.Y.S.2d 252 (3d Dep't 1979); Fisher v. City of
Syracuse, 46 A.D.2d 216, 361 N.Y.2d 773 (4th Dep't 1974), appeal denied, 36 N.Y.2d 642, 368
N.Y.S.2d 1025, cert. denied, 423 U.S. 833 (1975); Beaux Arts Props., Inc. v. United Nations
Dev. Corp., 68 Misc. 2d 785, 328 N.Y.S.2d 16 (Sup. CL), aff'd mem., 39 A.D.2d 844, 332
N.Y.S.2d 1008 (Ist Dep't 1972); Horizon Adirondack Corp. v. State, 88 Misc. 2d 619, 388
N.Y.S.2d 235 (Ct. Cl. 1976).
prohibitive increases in the cost of government projects, the courts of New

York and Michigan have adopted different methods for resolving the de facto
taking issue.
If. THE NEW YORK APPROACH TO DE FACTO TAKINGS

A. The Development of the Clement Test
In City of Buffalo v. J. W. Clement Co., 5C the New York Court of Appeals
considered the "amorphous and apparently perplexing concept of de facto
appropriation in the hope of clearly defining and firmly establishing its
perimeters."5 9 Unfortunately, that decision has engendered even more confu-
sion and uncertainty regarding the de facto taking concept.
The Clement case arose during an urban renewal project pending in the
City of Buffalo. The city notified Clement, a major printing firm, 60 of its
intention to condemn Clement's property nearly twelve years before condem-
nation proceedings were actually commenced. 61 During this period, the city
officials engaged in "a pattern of continuous agitation" concerning the pro-
ject. 6z In addition to frequent meetings, widespread publicity, and denials of
building permits, the city lowered property assessments of the redevelopment
area.63 As a result of these actions, the area around Clement's plant "fell into
general disrepair," "vacancies were common," and Clement's property be-
came "unsalable" and "unrentable." 64 In reliance upon official representations
that condemnation was imminent, 65
Clement moved to a new location as a
matter of economic necessity.
58. 28 N.Y.2d 241,269 N.E.2d 895,321 N.Y.S.2d 345 (1971).
59. Id. at247, 269 N.E.2dat 899, 321 N.Y.S.2dat351.
60. The company printed one hundred million paperback books per year, as well as national
magazines such as Time and Life. For these purposes, enormous printing machinery were used
requiring substantial time to prepare for operation and production. Id. at 248, 269 N.E.2d at
899, 321 N.Y.S.2d at 351.
61. Clement received its first notification of the project on or about December 10, 1954. Id. at
248, 269 N.E.2d at 899, 321 N.Y.S.2d at 351. Condemnation proceedings, however, were not
instituted until January, 1967. City of Buffalo v. J.W. Clement Co., 34 A.D.2d 24, 25, 311
N.Y.S.2d 98, 100 (4th Dep't 1970), modified, 28 N.Y.2d 241, 269 N.E.2d 895, 321 NY.S.2d 345
(1971).
62. City of Buffalo v. J.W. Clement Co., 28 N.Y.2d at 249, 269 N.E.2d at 900, 321
N.Y.S.2d at 352. Government officers held frequent meetings with owners of property within the
area to advise them when property would be appropriated. In 1957, the officials advised Clement
that the taking would be started between 1960 and 1962. In 1960, the officials informed Clement
that it would have to vacate its property in three to four years. In 1961, the officials told the
company that all industry must be out of the urban renewal area within one and one-half to two
years. In 1962, the officials advised Clement that negotiations for the property would begin tile
following spring. Finally, in 1963, the city informed Clement that the acquisition was scheduled
for May of that year. Id. at 248-49, 269 N.E.2d at 899, 321 N.Y.S.2d at 351-52.
63. Id. at 249-50, 269 N.E.2d at 899-900, 321 N.Y.S.2d at 351-52.
64. Id. at 249, 269 N.E.2d at 900, 321 N.Y.S.2d at 352.
65. Id. at 248-49, 269 N.E.2d at 899, 321 N.Y.S.2d at 352. Due to the size of Clement's
printing machinery, it would take a considerable amount of time to set up a new plant.
Furthermore, because Clement printed current magazines, it could not properly service Its
customers if it shut down its operations while a new plant was being constructed. Id., 269
N.E.2d at 899, 321 N.Y.S.2d at 351.
When condemnation proceedings were finally commenced, Clement con-

tended that its property had already been the subject of a de facto taking
almost four years earlier, when the company was forced by the circumstances
to vacate and move its operations to a new site." The trial court and the
appellate division agreed 6 7 finding that because of the city's actions and its
long delay in condemning Clement's property, the "essential elements of
ownership [had] been destroyed and substantial justice [could not] otherwise
be had."'68 Purportedly guided by "the dictates of precedent, practicality, and
public policy," the New York Court of Appeals modified the judgment of the
appellate division and announced that there can be no de facto taking absent
a physical invasion of property or the imposition of a direct legal restraint on
its use. 69 The court further held that Clement was entitled to present evidence
of condemnation blight in subsequent valuation proceedings, but that evi-
dence of diminution in property value did not amount to a70de facto taking
within the meaning of the federal and state constitutions.
The court of appeals first analyzed the condemnation blight concept, and
disagreed with the lower courts' decision that evidence of severe condemna-
tion blight is sufficient to constitute a de facto taking. 7 1 According to the court
of appeals, condemnation blight is the result of" 'affirmative value-depressing
acts,' "72 whereas a de facto taking is "no less than an out and out appropria-
66. City of Buffalo v. J.W. Clement Co., 34 A.D.2d 24, 26, 311 N.Y.S.2d 98, 101 (4th Dep't
1970), modified, 28 N.Y.2d 241, 269 N.E.2d 895, 321 N.Y.S.2d 345 (1971). The city argued that
even if its actions caused Clement to lose the use of its property, such a loss is merely a
consequence of the condemnation which must be accepted by any citizen whose property is
condemned. 34 A.D.2d at 28, 311 N. Y.S.2d at 103.
67. The appellate division affirmed the trial court's finding of fact, id., and conclusion that a
taking had occurred, id. at 31, 311 N.Y.S.2d at 106, but modified the judgment by increasing the
award to compensate Clement for the removal of its machinery and by deleting an award for
machinery left on the premises. Id. at 37, 311 N.Y.S.2d at 112.
68. Id. at 32, 311 N.Y.S.2d at 106. Justice Gabrielli dissented, characterizing the city's
actions as merely an expression of an intent to appropriate and arguing that such action neither
"directly or indirectly ... or even inferentially," served to deprive Clement of its possession,
enjoyment or use of the property. Id. at 37-38, 311 N.Y.S.2d at 112-13 (Gabrielli, J., dissenting).
The dissent concluded that the impending condemnation was not the sole motivation for the
move, indicating that Clement had been anticipating a move for several years because it was
outgrowing its present location. Id. at 38, 311 N.Y.S.2d at 113. Thus, the dissent refused to
agree that a de facto taking had occurred, finding no evidence of actions on the part of the city
"which could possibly be translated into dominion or control over the propprt'." Id. at 37, 311
N.Y.S.2d at 113.
69. City of Buffalo v. J.W. Clement Co., 28 N.Y.2d 241, 247-48, 253, 269 N.E.2d 895, 899,
902, 321 N.Y.S.2d 345, 351, 356 (1971).
71. Id. at 253, 269 N.E.2d at 902, 321 N.Y.S.2d at 356. The court commented that "to hold
that there can be a de facto appropriation absent a physical invasion or direct legal restraint
would, needless to say, be to do violence to a workable rule of law. It is our view that only the
most obvious injustice compels such a result." Id. Ostensibly, the court did not find that Clement
was the victim of an "obvious injustice." The court did not, however, define the situation
warranting such a characterization.
72. Id. at 258, 269 N.E.2d at 905, 321 N.Y.S.2d at 360. The court, however, did not define
the type of government action that would constitute " 'affirmative value-depressing acts' "
thereby requiting invocation of the condemnation blight concept. See 72 Colum. L. Rev. 772, 779
'73
tion of property. Thus, the court of appeals hesitated to adopt the lower
courts' more flexible definition of de facto taking because it would allow all
aggrieved property owners "to seek refuge under the broader umbrella of de
facto appropriation,17 4 and would "impose' an 'oppressive' and 'unwarranted'
burden upon the condemning authority." "5
To avoid formulation of a test that would require both consideration of the
extent of the governmental activity and emphasis on the effect of such activity
upon the value of the property, the court of appeals attempted to further
delineate the scope of the test of de facto taking. 7 6 To establish a de facto
taking, a property owner must show that the governmental activity amounted
to "an assertion of dominion and control" over the property. 7 7 Exemplary of
such governmental activities, according to the court, are "a physical entry by
the condemnor, a physical ouster of the owner, a legal interference with the
physical use, possession or enjoyment of the property or a legal interference
with the owner's power of disposition of the property.' 8 Thus, a "mere
announcement" of an impending condemnation, even if it is coupled with
substantial delay7 9and property damage, as in Clement, does not constitute a
de facto taking.
(1972). Moreover, the court failed to distinguish adequately the acts of appropriation that would
result in a finding of de facto taking and the " 'affirmative value-depressing acts' " that would
require utilizing the concept of condemnation blight. See 3 St. Mary's L.J. 339, 345-47 (1971).
73. 28 N.Y.2d at 254, 269 N.E.2d at 903, 321 N.Y.S.2d at 356.
75. Id. at 256, 269 N.E.2d at 904, 321 N.Y.S.2d at 358. The appellate division noted the
"marked distinction between (1) those cases which by reason of the cloud of condemnation,
resulting in so-called condemnation blight, permit the claimant to establish his true damage for
the de jure taking by proving its value at an earlier time before the debilitating threat of
condemnation . . . has depressed its value . . . and (2) those cases which go to the extent of
declaring that the acts of the condemnor constitute a de facto taking long before the de jure
taking. The application of such principles must depend not only upon the acts of the condemnor
but upon the effect upon the condemnee, and the court must be guided by the further principle
that its object is to achieve substantial justice between the condemning public and the private
owner." 34 A.D.2d at 32, 311 N.Y.S.2d at 107 (citations omitted); see pt. III infra.
76. 28 N.Y.2d at 255,269 N.E.2d at 903, 321 N.Y.S.2d at 357.
77. Id. One commentator speculated whether an activity that falls short of physical entry or
ouster could constitute an "assertion of dominion and control" and thus permit the finding of a de
facto taking. Magavern, supra note 37, at 294. While the court's formulation of the definition
would appear to indicate that such activity does not constitute a taking, the commentator queried
whether the court intended to overrule Weismantle v. State, 210 A.D. 608, 206 N.Y.S. 570 (4th
Dep't 1924). In that case, a landowner received compensation when the government caused
erosion of his land, even though the government's actions could not have been characterized as a
physical entry or ouster. Magavern, supra note 37, at 294-95.
78. 28 N.Y.2d at 255,269 N.E.2d at 903, 321 N.Y.S.2d at 357.
79. Id. at 257, 269 N.E.2d at 904, 321 N.Y.S.2d at 359. Applying its definition of de facto
taking to the facts of Clement, the court characterized the city's activities as simply a "manifesta-
tion of an intent to condemn," which did not amount to a deprivation of possession, enjoyment or
use of Clement's property. Id. at 255, 269 N.E.2d at 903, 321 N.Y.S.2d at 357. This
characterization of the activity, however, represents a departure from the court's previous
description of the government's activity as a "pattern of continuous agitation." Id. at 249, 269
N.E.2d at 900, 321 N.Y.S.2d at 352. In addition, the court did not consider that the city hiad
been denying all applications for building permits by owners in the area. Id. Moreover, by
B. Criticism of the Clement Test

The Clement limitation on the definition of de facto taking has caused more
problems for New York courts in interpreting and applying the "direct legal
restraint" / "physical invasion" test than the court of appeals attempted to
solve. Not only was the application of that test unfavorable in Clement, but
analysis of subsequent litigation indicates the continuing difficulties in deter-
mining the occurrence of a de facto taking using Clement as a practical and
precedential guide.
First, under the indemnity or owner's loss theory used in New York to
calculate just compensation in eminent domain proceedings, the condemnee is
to be placed in the same relative position as if there had not been a taking. 80
Under the condemnation blight concept applied by the court of appeals,
however, although Clement established the market value of his property prior
to the debilitating effect of condemnation, Clement could not recover the
taxes, insurance, and maintenance expenses that it had paid during the time
between the vacation of the old plant and the completion of condemnation. 8"
In addition, because of the impending condemnation, Clement was unable to
sell or rent its old plant; thus, Clement lost opportunity income by not
receiving any return on its investment in the old plant during the period
between the vacation of the plant and the ultimate condemnation verdict.
Had the time of taking been established as the earlier date, Clement would at
least have recovered interest on the condemnation award for the interim
period. 82 When this loss of interest is considered in addition to the expenses
incurred and the lost opportunity income, it becomes apparent that the refusal
83
of the court to find a de facto taking was onerous for the property owner.
concluding that the governmental activity did not deprive Clement of its possession, the court
appears to have given little weight to the finding of fact, affirmed by the appellate division, that
Clement had been forced, by the city's threat of condemnation, to move its business operation,
and that the city's acts rendered the property unsuitable for the proper functioning of Clement's
business. Id. at 252, 269 N.E.2d at 901-02, 321 N.Y.S.2d at 354-55.
80. Rose v. State, 24 N.Y.2d 80, 87, 246 N.E.2d 735, 739, 298 N.Y.S.2d 968, 975 (1969); see
Marraro v. State, 12 N.Y.2d 285, 292-93, 189 N.E.2d 606, 609-11, 239 N.Y.S.2d 105, 109-10
(1963). See also In re Board of Water Supply, 277 N.Y. 452, 14 N.E.2d 789 (1938); Banner
Milling Co. v. State, 240 N.Y. 533, 148 N.E. 668 (1925); New York, Ont. & W. Ry. v.
Livingston, 238 N.Y. 300, 144 N.E. 589 (1924).
N.Y.S.2d 345, 352 (1971); see In re Incorporated Village of Lynbrook, 75 Misc. 2d 678, 348
N.Y.S.2d 115 (Sup. Ct. 1973).
82. The interest award on a finding of de facto taking would have amounted to $459,603.86.
City of Buffalo v. J.W. Clement Co., 28 N.Y.2d 241, 254, 269 N.E.2d 895, 903, 321 N.Y.S.2d
345, 356-57 (1971). While the sum is substantial, it should be noted that condemnation awards, in
general, are not based upon prevailing bank interest rates. See In re Incorporated Village of
Lynbrook, 75 Misc. 2d 678, 680, 348 N.Y.S.2d 115, 118 (Sup. CL 1973). Admittedly, recovery of
interest, even at a lower rate, is preferable to a complete lack of recovery.
83. Commentators have suggested that the refusal of the courts to find de facto takings places
an even heavier burden on a private homeowner, whose real property represents a major
investment. In view of the necessity of adequate housing, and in reliance upon the official
representations that the condemnation will occur quite rapidly, such homeowners are compelled
to acquire other homes. Typically, they cannot afford to maintain two properties and may suffer
if the condemnation is allowed to drag on interminably. See Kanner, supra note 9, at 806-07; 72
An even more important defect of the Clement decision is that it rewarded

the government for its inefficiency and unwarranted delay in commencing
condemnation proceedings, and penalized the private property owner for
acting as a prudent businessman. Because it takes substantial time and
resources to plan the move of a sizable business operation, Clement had no
recourse but to rely on governmental communications regarding the date of
the proposed taking. Although accurate information was never forthcoming
from the city officials, the trial court found that Clement had waited to move
" 'until the last possible moment that a prudent businessman could wait.' "84
The court of appeals, nevertheless, refused to find that a de facto taking had
occurred when Clement determined that it was compelled to transfer opera-
tions to a new plant. While it is true that a certain degree of diminution in
value may be an incident of ownership assumed by a property owner, without
ordering the government to provide full compensation for damages caused by
its own delay, there is no incentive for the government to carry out public
projects quickly and efficiently.8 5 Furthermore, because the political function
of the taking clause is to protect the rights of the individual against oppressive
governmental activity, this misallocation of the financial 86
burden of public
projects plays havoc with fundamental private rights.
Finally, although the Clement court attempted to formulate the de facto
taking concept to facilitate judicial administration and application of the
taking clause mandates, it is submitted that the court did not succeed in
"clearly defining and firmly establishing" the concept.8 7 The "direct legal
restraint" and "physical invasion" tests have increased the ambiguity and
uncertainty in an area of the law already fraught with confusion.88 Examina-
Colum. L. Rev. 772, 779-80 (1972). Moreover, it is becoming increasingly difficult for low Income
or middle income people to acquire or rent temporary housing. See Engelberg, G.A.O. Details
Rentals' Decline, N.Y. Times, Nov. 18, 1979, § 8 (Real Estate), at 1, col. 1.
84. City of Buffalo v. J.W. Clement Co., 34 A.D.2d 24, 28, 311 N.Y.S.2d 98, 103 (4th Dep't
1970), modified, 28 N.Y.2d 241, 269 N.E.2d 895, 321 N.Y.S.2d 345 (1971). The court of appeals,
however, noted that Clement had the right to remain in quiet possession for four or five
additional years and that the impending condemnation was not the sole reason for Clement's
move. The court also referred to Clement's desire to move to larger facilities to accommodate Its
expanding business. 28 N.Y.2d at 250-51, 269 N.E.2d at 900-01, 321 N.Y.S.2d at 353-54.
85. This factor should be relevant to decisions regarding de facto takings during the course of
eminent domain or inverse condemnation proceedings. Recent studies conducted by SRI Interna-
tional, a research organization, confirm that the field of land use and building regulation is highly
vulnerable to corruption and administrative inadequacies. National Institute of Law Enforcement
& Criminal Justice, Law Enforcement Assistance Administration, U.S. Dep't of Justice, Corrup-
tion in Land Use & Building Regulation at iv-vi (vol. I 1979). The study notes several
characteristics of housing, land use and urban development programs that make corruption,
inefficiency, and ineffectiveness particularly inevitable. For example, standards are enunciated In
idealistic and unrealistic terms, id. at 31, regulatory systems are highly complex, id. at 32, staffs
of local government lack expertise, id., and there is a large degree of official discretion that leaves
many opportunities for politicians, planners, and private businessmen to exert influence on the
programs. Id.
86. See notes 9-16 supra and accompanying text.
87. City of Buffalo v. J.W. Clement Co., 28 N.Y.2d 241, 247, 269 N.E.2d 89S, 899, 321
N.Y.S.2d 345, 351 (1971).
88. See Magavern, supra note 37, at 294; 72 Colum. L. Rev. 772, 778-80 (1972); notes 9-18
supra and accompanying text.
tion of litigation subsequent to Clement reveals the inadequacies of that

decision and the inequitable precedent that has become firmly embedded in
New York law.
C. The DirectLegal RestraintTest

The Clement court stated that direct legal restraints are "laws which by
their own force and effect, deprive owners of property or materially affect its
beneficial use and free enjoyment."8 9 Accordingly, a property owner should
be able to establish a de facto taking by showing "a legal interference with the
physical use, possession or enjoyment of the property or a legal interference
with [the] power of disposition of the property." 90 Thus, the Clement direct
legal restraint test defines a compensable de facto taking in terms that are
used to determine the constitutionality of a statute or a police power regula-
tion. 91 Such a definition is problematic for an aggrieved property owner,
however, because under existing constitutional law, legitimate police power
regulations that affect the value and use of private property rarely constitute
compensable takings. 92 Furthermore, it is unlikely that a court applying New
York precedent or statutory law would compensate private property owners
for the impact of unconstitutional restrictions on property because the usual
remedy is merely to declare the regulation or statute invalid. 93 Thus, a de
facto taking should not be predicated on the same test used to determine the
validity of a statute or police power regulation.
89. 28 N.Y.2d at 256, 269 N.E.2d at 904, 321N.Y.S.2d at 358.

90. Id. at255, 269 N.E.2d at 903, 321 N.Y.S.2d at 357.
91. Id. at 253, 269 N.E.2d at 902, 321 N.Y.S.2d at 356. The court of appeals in Clement
cited Keystone Assocs. v. Moerdler, 19 N.Y.2d 78, 224 N.E.2d 700, 278 N.Y.S.2d 185 (1966),
and Forster v. Scott, 136 N.Y. 577, 32 N.E. 976 (1893), as cases that involved de facto takings.
92. See Penn Cent. Transp. Co. v. New York City, 438 U.S. 104, 125 (1978); City of
Eastlake v. Forest City Enterprises, 426 U.S. 668, 674 n.8 (1976); Goldblatt v. Town of
Hempstead, 369 U.S. 590, 593 (1962); Nectow v. City of Cambridge, 277 U.S. 183, 188 (1928);
Gorieb v. Fox, 274 U.S. 603, 608 (1927); Village of Euclid v. Ambler Realty Co., 272 U.S. 365,
395 (1926); Hadacheck v. Sebastian, 239 U.S. 394, 410 (1915); Reinman v. City of Little Rock,
237 U.S. 171, 176-77 (1915); Welch v. Swasey, 214 U.S. 91, 105 (1909); Mugler v. Kansas, 123
U.S. 623, 668-69 (1887); Modjeska Sign Studios, Inc. v. Berle, 43 N.Y.2d 468, 373 N.E.2d 255,
402 N.Y.S.2d 359 (1977); Whitmier & Ferris Co. v. State, 20 N.Y.2d 413, 230 N.E.2d 904, 284
N.Y.S.2d 313 (1967); Cromwell v. Ferrier, 19 N.Y.2d 263, 225 N.E.2d 749, 279 N.Y.S.2d 22
(1967); New York State Thruway Auth. v. Ashley Motor Court, Inc., 10 N.Y.2d 151, 176 N.E.2d
566, 218 N.Y.S.2d 640 (1961).
93. See Charles v. Diamond, 41 N.Y.2d 318, 329, 360 N.E.2d 1295, 1303, 392 N.Y.S.2d
594, 603 (1977); Fred F. French Investing Co. v. City of N.Y., 39 N.Y.2d 587, 595, 350 N.E.2d
381, 386, 385 N.Y.S.2d 5, 9-10, cert. denied, 429 U.S. 990 (1976); Lutheran Church in America
v. City of N.Y., 35 N.Y.2d 121, 123, 130-31, 316 N.E.2d 305, 307, 308, 311-12, 359 N.Y.S.2d 7,
9, 15-16 (1974); Golden v. Planning Bd., 30 N.Y.2d 359, 377, 285 N.E.2d 291, 301, 334
N.Y.S.2d 138, 151 (1972); Salamar Bldrs. Corp. v. Tuttle, 29 N.Y.2d 221, 224-26, 275 N.E.2d
585, 587-89, 325 N.Y.S.2d 933, 936-37 (1971). But see Keystone Assocs. v. State, 33 N.Y.2d 848,
850, 307 N.E.2d 254, 254, 352 N.Y.S.2d 194, 195 (1973) (Breitel, J., dissenting). Prof. Magavern
adds: "[This] writer is not aware of, any prior New York case in which a regulatory measure was
held to give rise to a valid claim to compensation on the ground that it had in effect taken private
property interests for public use." Magavern, supra note 37, at 297.
This problem is highlighted by examining Forster v. Scott, 94 in which the

New York Court of Appeals considered the constitutionality of a state statute
providing that no compensation would be awarded for buildings erected on
property after a municipality designated the property as a potential site for
construction of a public road. 95 The court set forth the following test for
determining the constitutionality of such a statute: "Whenever a law deprives
the owner of the beneficial use and free enjoyment of his property, or imposes
restraints upon such use and enjoyment, that materially affect its value,
without legal process or compensation, it deprives him of his property within
the meaning of the Constitution. '96 Thus, because the statute in Forster
deprived the landowner of the right to develop his property, impaired the
value of the property, and interfered with his rights of disposition,
97
the court
held that the statute was invalid as to that landowner.
Similarly, Keystone Associates v. Moerdler (Keystone 1)98 involved a statute
that created a private corporation vested with eminent domain power to
appropriate the old Metropolitan Opera House (Old Met) for use as a public
auditorium. The statute further provided that the City Superintendent of
Buildings could refuse to issue a demolition permit for a period of 180 days at
the request of the corporation, in order to ensure sufficient time to raise funds
for the appropriation. 99 Keystone, which had previously leased the premises
and agreed to demolish the Old Met to construct an office building, sought to
compel the issuance of a demolition permit and to have the statute declared
unconstitutional. 0 0 The court of appeals held that the statute was uncon-
stitutional for two reasons: first, it was not a legitimate police power regula-
tion because it was not intended to protect the public health, safety, or
welfare, but merely permitted the appropriation of the Old Met;' 0 ' second, it
was not a valid eminent domain statute because it deprived the owner of the
use of its property during the period of delay, but did not provide for just
compensation. 102
Thus, in both Forster and Keystone I, the court of appeals considered state
restrictions on the uses of private property. In each of these cases the court
simply declared the statutes invalid, but in neither case was compensation for
94. 136 N.Y. 577, 32 N.E. 976 (1893).
95. Id. at 582, 32 N.E. at 976-77. The Forster case involved a suit to enforce a contract for
the sale of land warranted to be free of any encumbrances. On the date of closing, the
defendant-purchaser refused to accept the deed tendered by the plaintiff-vendor on the ground
the statute created an encumbrance on the property. The court determined that if the statute were
valid, it would create an encumbrance on the realty. Id. at 583, 32 N.E. at 977.
96. Id. at 584, 32 N.E. at 977.
97. Id. at 584-85, 32 N.E. at 977-78.
98. 19 N.Y.2d 78, 224 N.E.2d 700, 278 N.Y.S.2d 185 (1966).
99. Id. at 85-86, 224 N.E.2d at 701-02, 278 N.Y.S.2d at 187-88. The events which led to the
enactment of the statute are as follows: When the Metropolitan Opera Association moved from
the Old Met into the new Lincoln Center for the Performing Arts in New York City, it entered
into a lease with Keystone Associates, pursuant to which Keystone was to demolish the Old Met and
build a modern office building. Id. The statute wa3 intended to save the Old Met from
destruction.
102. Id. at 89-90, 224 N.E.2d at 703-04, 278 N.Y.S.2d at 190.
a taking sought or considered as a remedy. Yet, both of these cases were

cited by the Clement court as examples of de facto takings resulting from a
direct legal restraint.1 0 3 The Clement direct legal restraint test seems to
suggest, therefore, that if a regulatory measure exceeds the limits of the police
power, courts should find a de facto taking for which just compensation would
be required in addition to declaring the measure invalid.' 0 4 In fact, because
the court of appeals was constrained by the repeated references in Clement to
the circumstances of Keystone I as an example of a de facto taking, in
Keystone Associates v. State (Keystone II), 1os the court took the unprec-
edented step of declaring that an unconstitutional statute effected a compens-
able "de facto taking" of private property. 0 6 In recognition that courts
construing Clement were apt to confuse the metaphorical "taking" with a
taking in reality, the court of appeals again endeavored to clarify the concepts
of noncompensable police power regulations and compensable de facto
07
takings in Fred F. French Investing Co. v. City of New York.'
In French, the city rezoned two private parks as public parks and thereby
eliminated the only economically rewarding use of the property. 10 8 In an
inverse condemnation action, the owner of the parks challenged the constitu-

104. See Magavern, supra note 37, at 295-96. Any suggestion that the Clement decision was
intended to restrict the police power was dispelled by the court of appeals the following year in
Goiden v. Planning Bd., 30 N.Y.2d 359, 285 N.E.2d 291, 334 N.Y.S.2d 138 (1972). In that case,
the court of appeals upheld a zoning ordinance prohibiting residential development of a parcel of
property for at least 18 years. The court noted that "[tlhe fact that the ordinance limits the use of,
and may depreciate the value of the property will not render it unconstitutional, however, unless
it can be shown that the measure is either unreasonable in terms of necessity or the diminution in
value is such as to be tantamount to a confiscation." Id. at 381, 285 N.E.2d at 304, 334 N.Y.S.2d
at 155.
105. 33 N.Y.2d 848, 307 N.E.2d 254, 352 N.Y.S.2d 194 (1973) (mem.), aff'g, 39 A.D.2d 176,
333 N.Y.S.2d 27 (3d Dep't 1972).
106. Keystone Associates sought damages for the temporary appropriation of its property
during the operation of the statute held invalid in Keystone 1. See notes 98-102 supra and
accompanying text. The appellate division, stating that "[dloubt as to whether the trial court or
this court could hold that as a matter of law there was no de facto appropriation is dispelled by
the repeated references in [Clement] to the [Keystone I] case as an example of a de facto
appropriation." Keystone Assocs. v. State, 39 A.D.2d 176, 178, 333 N.Y.S.2d 27, 29 (3d Dep't
1972). Over the dissent of Judge Breitel, the court of appeals affirmed the decision on the opinion
of the appellate division. Judge Breitel commented that "there is no provision in precedent or
statutory law for compensating owners of property because of the impact of unconstitutional
legislation. . . . The rule laid down in this case is not only novel but may foretell a broad
questionable policy providing a tort remedy for the harmful effects of unconstitutional legisla-
tion." 33 N.Y.2d at 850-51, 307 N.E.2d at 254, 352 N.Y.S.2d at 19S. But see Badler, Municipal
Zoning Liability in Damages-A New Cause of Action, 5 Urb. Law. 25, 25 (1973) (advocating
provision of a damage remedy for landowners adversely affected by invalid zoning ordinances).
107. 39 N.Y.2d 587, 594, 350 N.E.2d 381, 385, 385 N.Y.S.2d 5, 8-9, crt denied, 429 U.S.
990 (1976). The court of appeals strived to articulate the precise distinction between exercises of
the eminent domain power and police power regulations: "[WNhen the State 'takes', that is
appropriates, private property for public use, just compensation must be paid. In contrast, when
there is only regulation of the uses of private property, no compensation need be paid." 39
N.Y.2d at 593, 350 N.E.2d at 384, 385 N.Y.S.2d at 8.
tionality of the zoning ordinance and claimed that the restriction on the use of
the land constituted a taking for which compensation must be paid. 109 The
French court held that the ordinance was void because it exceeded the limits
of the police power, but did not warrant just compensation for a taking. I 0
Distinguishing an invalid police power regulation from a compensable
taking, the court of appeals noted that a state regulation on property that
deprives "the owner of the reasonable income productive or other private use
of his property" and "thus destroys its economic value, or all but a bare
residue of its value," violates due process of law,"' but does not generally
result in a taking for which compensation must be paid. 112 Applying the rules
of Clement, the French court held that a compensable taking occurs only
when there is "actual appropriation" by physical invasion or by governmental
assumption of control or management, even though the113owner may be
deprived of many of the economic benefits of ownership.
Thus, the French court clarified and limited the broad direct legal restraint
test formulated in Clement. Regulations on use, such as zoning ordinances,
which are valid exercises of the police power, are excluded from the category.
In addition, regulations that exceed the permissible limits of the police power
do not result in compensable de facto takings unless the measure contemplates
eventual acquisition, or causes physical encroachment by the government. 114
The recent court of appeals decision in Spears v. Berle" 5 represents the
continuing efforts of the New York Court of Appeals since Clement to

110. Id. at 595, 597, 350 N.E.2d at 386, 387, 385 N.Y.S.2d at 9-10, 11.
112. Id. at 593-94, 350 N.E.2d at 384-85, 385 N.Y.S.2d at 8. When a regulatory measure is
challenged, the remedy sought is to have the measure declared invalid, either generally or with
respect to the particular plaintiff. See cases cited notes 92-93 supra. The exception to this
rule is when compensation is paid pursuant to a regulating measure that is intended to effectuate
government ownership of the property. Keystone Assoc-s. v. State, 33 N.Y.2d 848, 307 N.E.2d
254, 352 N.Y.S.2d 194 (1973) (mem.), aff'g, 39 A.D.2d 176, 333 N.Y.S.2d 27 (3d Dep't 1972),
discussed at notes 105-106 supra. In addition, when the government in connection with a
regulation has encroached upon the land in a trespassory sense, a taking by physical invasion or
ouster may be found and just compensation will be awarded. Fred F. French Investing Co. v.
City of N.Y., 39 N.Y.2d at 594-95, 350 N.E.2d at 385, 385 N.Y.S.2d at 9. See Costonis, supra
note 9, at 1035.
113. 39N.Y.2dat595,350N.E.2dat386,385N.Y.S.2dat9-10.
114. In making this determination, the French court was greatly influenced by Prof. Costonis.
See Costonis, supra note 9, at 1035. For an exhaustive treatment of the conflict between police
power regulations and eminent domain, see Note, Inverse Condemnation: Its Availability in
Challengingthe Validity of a Zoning Ordinance, 26 Stan. L. Rev. 1439 (1974).
115. No. 373 (N.Y. Oct. 18, 1979). Claimants applied to the Commissioner of Environmental
Conservation for a permit allowing extraction of humus, sand, and stone from the wetlands. The
commissioner denied the application after a public hearing during which undisputed evidence
demonstrated that the proposed mining activities would lead to all but complete destruction of the
wetlands. Although petitioners conceded during the hearing that a grant of the permit would be
inconsistent with the purposes of wetland regulation, the claimant contended that mining was the
only use of the property which would produce a reasonable economic return. Claimant then
sought an order directing the commissioner to issue the permit, or to institute condemnation
proceedings. Id., slip op. at 2.
formulate a "bright-line standard" for determining whether a statute has

placed "such an onerous burden on [property] that a taking must be deemed
to have occurred."' 1 6 In Spears, the court applied the rules of French to the
Freshwater Wetlands Act. 1 7 This statute empowers the government to
designate certain properties as wetlands" t8 and to prohibit any use of such
land that would interfere with wetland ecology."19 The statute further pro-
vides that if the regulation of a particular parcel has become so rigorous as to
result in a taking, the Commissioner of Environmental Conservation may
either institute condemnation proceedings or issue a permit to allow the
use.12° The inclusion of this remedy for the aggrieved property2 owner
obviated the court's declaring the constitutionality of the statute.' '
To determine whether the operation of a statute is confiscatory, Spears used
the test that the French court used to determine the constitutionality of a
statute.' 2 2 Thus, to satisfy the burden of proof that the operation of a statute,
expressly authorizing condemnation, has resulted in a compensable taking of
the affected property, Spears requires the landowner to "produce 'dollars and
cents' evidence.. . that the economic value, or all but a bare residue of the
value, of the parcel has been destroyed .... ,'23 Therefore, if the challenged
statute specifically contemplates the acquisition of property or is an "avowed
taking statute, ' 124 such as the statute in Spears, economic evidence that the
regulation of the property is excessive may now be the basis of a de facto taking.
116. Id. at 5-6.

117. N.Y. Envir. Conserv. Law §§ 24-0101 to -1305 (McKinney Supp. 1979-80).
118. Id. § 24-0301. This section authorizes the Commissioner of Environmental Conservation
to conduct a study of freshwater wetlands within the state of New York and to identify those that
are of unusual local importance. Id.
119. Id. § 24-0701. Property identified by the commissioner as freshwater wetlands becomes
subject to stringent regulation. Certain uses, such as fishing, hunting, trapping, farming, and
grazing, are permitted as of right. Id. § 24-0701(3), (4). Other activities may be conducted only if
a permit is obtained. Id. § 24-0701(1).
120. Id. § 24-0705(7).
121. No. 373, slip op. at 4.
122. See Fred F. French Investing Co. v. City of N.Y., 39 N.Y.2d 587, 596, 350 N.E.2d
381, 386, 385 N.Y.S.2d 5, 10, cert. denied, 429 U.S. 990 (1976); e.g., Lutheran Church in
America v. City of N.Y., 35 N.Y.2d 121, 130, 316 N.E.2d 305, 311, 359 N.Y.S.2d 7, 15 (1974);
Vernon Park Realty, Inc. v. City of Mt. Vernon, 307 N.Y. 493, 499, 121 N.E.2d 517, 519-20
(1954); Arverne Bay Constr. Co. v. Thatcher, 278 N.Y. 222, 232, 15 N.E.2d 587, 592 (1938).
123. Spears v. Berle, No. 373, slip op. at 7 (N.Y. Oct. 18, 1979).
124. This term was used by the court of appeals in Lutheran Church in America v. City of
New York, 35 N.Y.2d 121, 316 N.E.2d 305, 359 N.Y.S.2d 7 (1974), to distinguish between
statutes that are mere police power regulations of property and statutes that are intended to result
in the eventual acquisition of the property by the government. Id. at 130, 316 N.E.2d at 311, 359
N.Y.S.2d at 15. For an example of the latter type of statute, see Keystone Assocs. v. Moerdler,
19 N.Y.2d 78, 224 N.E.2d 700, 278 N.Y.S.2d 185 (1966); cf. Charles v. Diamond, 41 N.Y.2d
318, 330-31, 360 N.E.2d 1295, 1304-05, 392 N.Y.S.2d 594, 604 (1977). In Charles v. Diamond, a
landowner brought an action against village and state officials, alleging that the village had
unreasonably delayed making improvements to its sewer system. These improvements were
necessary before the state would allow the village to permit a developer to hook up his proposed
apartment development to the sewer system. The landowner alleged that the actions of the county
and the village were "arbitrary and capricious, resulting in an unconstitutional appropriation of
his property without compensation." Id. at 320, 360 N.E.2d at 1298, 392 N.Y.S.2d at 597. The
It is apparent that the Clement court erred in devising a "direct legal

restraint" test for a de facto taking that is linguistically and conceptually broad
enough to encompass police power regulations.1 25 Even though this test was
later clarified in French and Spears, several substantial problems remain.
First, it seems illogical to invalidate a statute or regulation because it deprives
a private owner of all the income productive uses of his property during the
operation of the statute, and yet deny the owner any compensation unless the
statute is an "avowed taking statute."'1 26 Furthermore, it is highly unlikely
that a New York court would award damages for an unconstitutional police
power measure in the absence of a statute or regulation such as the one in
Spears, that specifically provides for compensation if it effects a de facto
taking or results in property damage. 127 Perhaps such statutory provisions are
the type of solution called for by the court of appeals in French, when the
court stated that "new ideas and new standards of constitutional tolerance
must and will evolve . .. [to solve the taking problem] without placing an
impossible or unsuitable burden on the individual property owner, the public
fisc, or the general taxpayer. 1128 In fact, many commentators have asserted
narrow issue presented was whether a village sewer ordinance was being applied to his property
unconstitutionally. The remedy, if such were the case, would be to invalidate the regulation, not
to award temporary or permanent damages. Id. at 330-31, 360 N.E.2d at 1303-04, 392 N.Y.S.2d
at 603-04. The court reasoned that "absent a taking of property, the courts may not impose
liability damages [for misjudgment or indiscretion by municipal officials] particularly when the
imposition appears to be more punitive than compensatory. The courts should not use the threat
of money sanctions to whip government into providing municipal improvements." Id. at 332, 360
N.E.2d at 1305, 392 N.Y.S.2d at 605.
125. See Magavern, supra note 37, at 294-95. "Almost any zoning ordinance and many other
police power measures would fall within the literal scope of the language used." Id. at 295.
126. See Charles v. Diamond, 41 N.Y.2d 318, 329-32, 360 N.E,2d 1295, 1303-05, 392
N.Y.S.2d 594, 603-05 (1977); Fred F. French Investing Co. v. City of N.Y., 39 N.Y.2d 587, 597,
350 N.E.2d 381, 387, 385 N.Y.S.2d 5, 11, cert. denied, 429 U.S. 990 (1976).
127. See Spears v. Berle, No. 373, (N.Y. Oct. 18, 1979); cases cited at note 94 supra. But see
Keystone Assocs. v. State, 33 N.Y.2d 848, 307 N.E.2d 254, 352 N.Y.S.2d 194 (1973) (mem.),
aff'g, 39 A.D.2d 176, 333 N.Y.S.2d 27 (3d Dep't 1972). Although the Keystone decisions have
been characterized as "bedrock law," the court of appeals refused to extend it to situations not
involving government trespass. Charles v. Diamond, 41 N.Y.2d 318, 331, 360 N.E.2d 1295,
1305, 392 N.Y.S.2d 594, 604 (1977); see note 93 supra and accompanying text.
128. 39 N.Y.2d at 600, 350 N.E.2d at 389, 385 N.Y.S.2d at 13. It has been suggested that
one way to deal with this problem would be an amendment to the state constitution to provide
compensation for property "taken or damaged." Fisher Y. City of Syracuse, 46 A.D.2d 216, 219,
361 N.Y.S.2d 773, 776 (4th Dep't 1974) (Goldman, J., concurring), appeal denied, 36 N.Y.2d
642, 368 N.Y.S.2d 1025, cert. denied, 423 U.S. 833 (1975). The following 26 state constitutions
already allow compensation for property damaged as well as property that is taken: Ala. Const.
art. XII, § 235; Alaska Const. art. I, § 18; Ariz. Const. art. 2 § 17; Ark. Const. art. 2, § 22; Cal.
Const. art. 1 § 14; Colo. Const. art. II, § 15; Ga. Const. art. I, § In, 1; Ill. Const. art. 1, § 15;
Ky. Const. § 242; La. Const. art. 1, § 2; Minn. Const. art. 1, § 13; Miss. Coast. art. 3, § 17; Mo.
Const. art. 1, § 26; Mont. Const. art. III, § 14; Neb. Const. art. I, § 21; N.M. Const. art. II, § 20;
N.D. Const. art. I, § 14; Okla. Const. art. 2, § 24; Pa. Const. art. 1, § 10; S.D. Const. art. VI, §
13; Tex. Const. art. 1, § 17; Utah Const. art. I, § 22; Va. Const. art. I, § 11; Wash. Const. art. 1,
§ 16; W. Va. Const. art. 3, § 9; and Wyo. Const. art. 1, § 33. In addition, Prof. Costonis has
suggested a "middle way" that provides for "fair comp.nsation" of the property owner for the
adverse economic or aesthetic effects of government regulation without paying for a total
that the eminent domain/police power dichotomy is unfair and unrealistic and
that this "all29 or nothing approach" to just compensation should be rejected
1
altogether.
Second, the direct legal restraint test as now formulated does not recognize
that less formal legal actions such as denial of building permits, 1 30 strict
enforcement of uilding codes, 13 1 and inclusion of property within an official
street map, 132 can "directly or indirectly" interfere with the use, enjoyment,
and possession of property and result in extreme hardship for the property
owner. Nevertheless, because these actions do not amount to "avowed taking
statutes," the landowners are without remedy unless eminent domain proceed-
ings are instituted,
133
and even then would be unable to prevail on a de facto
taking claim.
Finally, the New York approach to de facto takings now depends upon
physical invasion of private property because the direct legal restraint test has
been narrowly limited to appropriation statutes. There are, however, sig-
nificant problems with the New York physical invasion test as well.
D. The Physical Invasion Test
According to Clement, a de facto taking by physical invasion requires "a
physical entry by the condemnor [or] a physical ouster of the owner" that
amounts to an "assertion of dominion and control" over the private proper-
ty. 13 4 It is submitted that these categories of governmental activity are too
narrow to encompass the range of government actions that can effectively
deprive private owners of the reasonable and beneficial uses of their property.
appropriation of property. Costonis, The Disparity Issue: A Context for the Grand Central
Terminal Decision, 91 Harv. L. Rev. 402, 405-09 (1977). See also Tomain, supra note 9. The
recent Supreme Court decision in Penn Cent. Transp. Co. v. New York City, 438 U.S. 104
(1978), is an example of an accomodation between the police power and eminent domain power.
In Penn Central, the Supreme Court denied the owner of Grand Central Terminal the right to
build a modern office building over the terminal, but awarded it development rights that could be
transferred to other parcels of property. "While these rights may well not have constituted 'just
compensation' if a 'taking' had occurred, the rights nevertheless undoubtedly mitigate whatever
financial burdens the law has imposed on [the property owners] and, for that reason, are to be
taken into account in considering the impact of regulation." 438 U.S. at 137. Prof. Costonis
suggests that such programs overcome the deficiencies of the eminent domain/police power
dichotomy by joining legitimate police power regulations with some form of compensation that
affords an equitable return on the affected property. Costonis, supra, at 403.
129. See Berger, supra note 18, at 165; Costonis, supra note 9, at 1022; Michelman, supra
note 9, at 1167; Sax I, supra note 10, at 61-64; Sax II, supra note 13, at 149-51; Tomain, supra
note 9, at 309.
130. See, e.g., City of Buffalo v. J.W. Clement Co., 28 N.Y.2d 241, 253, 269 N.E.2d 895,
902, 321 N.Y.S.2d 345, 356 (1971); Ton-Da-Lay, Ltd. v. State, 70 A.D.2d 742, 416 N.Y.S.2d
895 (3d Dep't 1979).
131. See, e.g., 76 Crown St. Corp. v. City of N.Y., 35 A.D.2d 1005, 317 N.Y.S.2d 978 (2d
Dep't 1970).
132. See, e.g., Jensen v. City of N.Y., 42 N.Y.2d 1079, 369 N.E.2d 1179, 399 N.Y.S.2d 645
(1977) (mem.).
133. See Fisher v. City of Syracuse, 46 A.D.2d 216, 361 N.Y.S.2d 773 (4th Dep't 1974),
appeal denied, 36 N.Y.2d 642, 368 N.Y.S.2d 1025, cert. denied, 423 U.S. 833 (1975).
Moreover, the physical invasion test is based on vague property law notions
which do
5
not adequately reflect the reality of contemporary land use situa-
13
tions.
1. Physical Entry
The essential criterion of the physical entry test is that the entry be
permanent or continuous. 136 For example, when a state contractor entered an
owner's land without permission and constructed a drainage ditch, the court
found a de facto taking because 137 the ditch constituted an invasion of a
permanent and continuous nature.
In contrast, a physical entry that amounts only to a temporary intrusion is
not sufficient to constitute a de facto taking.138 When government surveyors
temporarily entered land for the purpose of making a survey, for example, 39
and the entry caused only incidental damage, there was no de facto taking.'
Similarly, when the government temporarily piled construction materials from
an adjacent construction site against an owner's building, there was no de
facto taking. 140 In each of these cases, the government's physical14 entry lacked
the "degree of dominion and control indicative of a taking.'
1
135. Prof. Michelman suggests that "only those trespassory acts which are implicitly assertive
of ownership-in the sense necessary to ground an action of ejectment or to start running the
statutory period for acquisition of title by adverse possession-amount to such physical invasions
as automatically, without further inquiry, require a compensation payment." Michelman, supra
note 9, at 1228, n.110. Prof. Dunham suggests that a "taking occurs when interference with tile
owner's use has occurred to such an extent that an easement by prescription will rise by lapse of
time." Dunham, supra note 9, at 87. See also National Institute of Law Enforcement & Criminal
Justice, Law Enforcement Asst. Admin., U.S. Dep't of Justice, Corruplion in Land Use &
Building Regulation at v (vol. I 1979) (land use "regulations to be enforced lag far behind the
state of the art."). In short, most concepts and procedures associated with eminent domain were
developed in an agrarian society that do not apply readily in an urban society with an
increasingly complex economy. See Costonis, supra note 9, at 1038 & n.69.
136. See Hylan Flying Serv., Inc. v. State, 54 A.D.2d 278, 388 N.Y.S.2d 444 (4th Dep't
1976); O'Brien v. City of Syracuse, 54 A.D.2d 186, 388 N.Y.S.2d 866 (4th Dep't 1976); New
York State Elec. & Gas Corp. v. Meredith, 63 Misc. 2d .319, 313 N.Y.S.2d 216 (Sup. Ct. 1970).
137. Hylan Flying Serv., Inc. v. State, 54 A.D.2d 278, 388 N.Y.S.2d 444 (4th Dep't 1976).
Similarly, when the state paved a parcel of land which was adjacent to a public highway to
widen the road, a de facto taking was found because the state took permanent possession of that
property. Rochford v. State, 153 Misc. 239, 274 N.Y.S. 656 (Ct. Cl. 1934), aff'd, 245 A.D. 794,
282 N.Y.S. 254 (3d Dep't 1935). In addition, when the government entered land to construct a
canal, Utley v. Hayden, 6 Hill 359 (Sup. Ct. 1844), or a highway, Leeds v. State, 20 N.Y.2d 701,
229 N.E.2d 446, 282 N.Y.S.2d 767 (1967); Lambert v. State, 30 A.D.2d 582, 290 N.Y.S.2d 412
(3d Dep't 1968) (mem.); Kahn v. State, 27 A.D.2d 476, 280 N.Y.S.2d 268 (3d Dep't 1967), de
facto takings were found to have occurred.
138. O'Brien v. City of Syracuse, 54 A.D.2d 186, 388 N.Y.S.2d 866 (4th Dep't 1976).
139. King v. Power Auth., 44 A.D.2d 74, 353 N.Y.S.2d 547 (3d Dep't 1974); Edwards v.
Law, 63 A.D. 451, 71 N.Y.S. 1097 (2d Dep't 1901); New York State Envir. Facilities Corp. v.
Young, 66 Misc. 2d 299, 320 N.Y.S.2d 821 (Sup. Ct. 1971). However, if the surveyors cut a path
through the forest for the purpose of establishing a permanent base line, then the entry and
occupation would constitute a de facto taking. Litchfield v. Bond, 186 N.Y. 66, 79, 78 N.E. 719,
724 (1906).
140. O'Brien v. City of Syracuse, 54 A.D.2d 186, 388 N.Y.S.2d 866 (4th Dep't 1970).
141. Id. at 189, 388 N.Y.S.2d at 869. The landowner, however, is not necessarily remedliess.
2. Physical Ouster
As in the case of physical entry, not every instance of "physical ouster"14 2 of
the owner constitutes a de facto taking. For example, when the state acquired
an easement across a portion of an owner's property and thereby blocked
14 3
access to the remainder, a de facto taking of the remainder was found.
However, when some continuous, albeit limited, access was available, the
ouster was not complete, and a de facto taking of the remainder was not
found. 14 The essential criterion, therefore, is that the owner be completely
deprived of possession by the actions of the government.
Thus, New York courts define a de facto taking from the perspective of the
specific government action that is challenged, rather than from a considera-
tion of the effects of the government action on the private property. There are
instances, however, in which governmental activity, although falling short of
physical invasion, amounts to an "assertion of dominion and control over the
property," by causing substantial decreases in the value of property and
interference with its use. ' 45 It is submitted that by focusing on the extent of
physical invasion and by insufficiently emphasizing the effect of governmental
activity on property values and uses, the New York approach unjustly forces
a private owner to bear losses that should be shared by the public. The
unfairness of the New York approach is typified by Fisher v. City of
Syracuse. 146
In the Fisher case, although more than ten years had passed since the
commencement of an urban renewal plan, the plaintiff's property located
within the area of the plan, had not yet been condemned.t 4 7 Some of the
buildings in the area had already been condemned by the city, and were
demolished or boarded up. The plaintiff alleged that as a result of the city's
activities, his tenants moved, he lost substantial rental income, and the value
of his property drastically declined. 148 Accordingly, the plaintiff sought
Even though the unauthorized entry lacks the degree of permanence or continuity to constitute a
de facto taking, the landowner may obtain compensation for damages in an action for trespass.
Id. at 188, 388 N.Y.S.2d at 869.
142. "Ouster" is defined as "[a] species of injuries to things real, by which the wrong-doer
gains actual occupation of the land, and compels the rightful owner to seek his legal remedy in
order to gain possession. Black's Law Dictionary 1253 (rev. 4th ed. 1957). "Actual ouster" does
not require "a physical eviction, but a possession attended with such circumstances as to evince a
claim of exclusive right and title, and a denial of the right of [others] to participate in the profits."
Id. It is unclear which definition is followed by the New York courts.
143. Kravec v. State, 40 N.Y.2d 1060, 360 N.E.2d 925, 392 N.Y.S.2d 246 (1976); Lorig v.
State, 58 A.D.2d 734, 396 N.Y.S.2d 122 (4th Dep't 1977); Clark v. State, 20 A.D.2d 182, 245
N.Y.S.2d 787 (4th Dep't 1964), aff'd, 15 N.Y.2d 990, 207 N.E.2d 606, 260 N.Y.S.2d 10 (1965);
Jafco Realty Corp. v. State, 18 A.D.2d 74, 238 N.Y.S.2d 66 (4th Dep't 1963), aff'd, 14 N.Y.2d
556, 198 N.E.2d 39, 248 N.Y.S.2d 651 (1964).
144. Burns v. State, 63 A.D.2d 848, 405 N.Y.S.2d 853 (4th Dep't 1978).
145. See Department of Public Works v. Town of Hornelsville, 41 A.D.2d 685, 342
N.Y.S.2d 632 (4th Dep't 1973).
146. 78 Misc. 2d 124, 355 N.Y.S.2d 239 (Sup. Ct.), aff'd, 46 A.D.2d 216, 361 N.Y.S.2d 773
(4th Dep't 1974), appeal denied, 36 N.Y.2d 642, 368 N.Y.S.2d 1025, cert. denied, 423 U.S. 833
(1975).
147. Id. at 126, 355 N.Y.S.2d at 240-41.
148. Id. at 127, 355 N.Y.S.2d at 242.
damages for the lost income, diminution in property value, and increased
insurance and maintenance expenses, alleging that the city's actions violated
the due process and equal protection clauses of the state and federal constitu-
tions. 149 The trial court held that the plaintiff was not entitled to be
compensated for damages absent a de jure or de facto taking and dismissed
the complaint for failure to state a cause of action. 1o
Under the New York approach, the court could not find a de facto taking
of Fisher's property although there was an intention to condemn, because the
government had neither physically entered the property or ousted the owner
from possession, nor had it engaged in any activity amounting to an assertion
of dominion and control. Thus, Fisher could not prevail in an inverse
condemnation action; nor could he recover damages in a trespass action.
Furthermore, he could not recover condemnation blight damages because the
city never completed formal condemnation proceedings, 1'5 and even in that
event, Fisher could not have recovered the lost rentals, increased mainte-
nance, or taxes paid during the ten-year period the urban renewal project
dragged on. 1-2 The inequity of this result was expressed by Justice Goldman
who concurred in the appellate division's dismissal of Fisher's complaint:
It is of little comfort to tell these [property owners] that, . . . 'you have been damaged
but that damage is without wrong. True, your properties are now in a vast waste land,
without tenants, neither desirable for residential nor commercial use, deteriorating
daily but, unfortunately, under the present state of the law you have no recourse,"P1"
The long range implications of Fisher are even more disconcerting than its
immediate result. The New York courts' denial of a remedy to landowners
such as Fisher, may leave them with no other recourse but to stop paying
taxes and abandon their property to the government. S4 This reaction to
inordinate governmental delay and inefficiency appears to be justified from
the point of view of the property owner: he is receiving no rental income from
the property, but insurance and maintenance costs are rising; if he awaits
formal condemnation, his losses will be greater because the best he can do is
149. Id.
150. Id. at 129, 130, 355 N.Y.S.2d at 243, 245. The judgment of the trial court was affirmed
by the appellate division. Fisher v. City of Syracuse, 46 A.D.2d 216, 361 N.Y.S.2d 773 (4th
Dep't 1974), appeal denied, 36 N.Y.2d 642, 368 N.Y.S.2d 1025, cert. denied, 423 U.S. 833
(1975).
151. "[C]ondemnation blight is not a cause of action." Id. at 128, 355 N.Y.S.2d at 243.
152. See In re Incorporated Village of Lynbrook, 75 Misc. 2d 678, 348 N.Y.S.2d 115 (Sup.
Ct. 1973); notes 43-51 supra and accompanying text.
153. Fisher v. City of Syracuse, 46 A.D.2d 216, 219, 361 N.Y.S.2d 773, 776 (4th Dep't 1974),
appeal denied, 36 N.Y.2d 642, 368 N.Y.S.2d 1025, cert, denied, 423 U.S. 833 (1975).
154. See, e.g., Archer Gardens, Ltd. v. Brooklyn Center Dev. Corp., 468 F. Supp. 609
(S.D.N.Y. 1979); Kanner, supra note 9, at 798. In Archer Gardens, owners of property In an area
designated for urban renewal, alleged that the city conspired and misused condemnation powers to
delay the date of acquisition in order to acquire the property through tax foreclosure sales at
lower prices, rather than by condemnation proceedings. The claimants asserted that the continu-
ing threat of condemnation rendered them unable to generate income from their property by sale
or lease, and thus, they were unable to meet their tax obligations. 468 F. Supp. at 611. The
district court held that the allegations "must be construed to state a claim of taking without just
compensation in violation of the Constitution." Id. at 613.
introduce evidence of condemnation blight which does not compensate him

for lost rents, taxes and lost opportunity income. 1S5 Alternatively, rather than
abandonment, the aggrieved owner may decide to minimize his losses by
accepting a low offer from the government when it attempts to negotiate a
purchase of his property.' 56 Thus, the government would acquire the prop-
erty at a much lower cost than originally anticipated in planning condemna-
tion or other public projects, and the cost of the project is shifted from the
public to the private individual. When this shifting is the result of governmen-
tal mismanagement it is submitted that the costs should be borne by the
public for two reasons: first, to act as a disincentive for governments that may
"drag their heels" in condemning property or effectuating public improve-
ments; second, to fulfill the function of the taking clause to protect and secure
the rights of the individual from oppressive government action.
In sum, the New York definition of de facto taking produces harsh and
often unfair results because the economic impact of governmental activity is
essentially irrelevant. A better approach is to define de facto taking in such a
way that both the actions of the government and their effect on the value of
property are taken into consideration. This is the approach developed by the
courts of Michigan.
1l. THE MICHIGAN APPROACH
Under the Michigan approach, a de facto taking is found when the
government has "by deliberate acts reduce[d] the value of private property
and thereby deprive[d] the owner of just compensation. 1 5 7 The Michigan
155. See, e.g., City of Buffalo v. J.W. Clement Co., 28 N.Y.2d 241, 269 N.E.2d 895, 321
N.Y.S.2d 345 (1971); In re Incorporated Village of Lynbrook, 75 Misc. 2d 678, 348 N.Y.S.2d 115
(Sup. Ct. 1973).
156. See Amen v. City of Dearborn, 363 F. Supp. 1267, 1272 (E.D. Mich. 1973), rev'd on
other grounds, 532 F.2d 554 (6th Cir. 1976); Kanner, supra note 9, at 798; Comment, De Facto
Taking and Municipal ClearanceProjects: City Plan or City Scheme?, 9 Urb. L. Ann. 317 (1975).
157. City of Detroit v. Cassese, 376 Mich. 311, 317, 136 N.W.2d 896, 900 (1965). While the
Michigan Supreme Court does not use the term "de facto taking" in its opinion, it is clear that the
same concept is involved. The court refers to situations in which the action of the government "is
such as to amount to a taking of private property, even though there is no eminent domain
proceeding." Id. at 315, 136 N.W.2d at 898. The more flexible approach was first accepted by the
Sixth Circuit. Foster v. City of Detroit, 405 F.2d 138 (6th Cir. 1968), aff'g, 254 F. Supp. 655
(E.D. Mich. 1966); Amen v. City of Dearborn, 363 F. Supp. 1267 (E.D. Mich. 1973); rev'd on
othergrounds, 532 F.2d 554 (6th Cir. 1976); Madison Realty Co. v. City of Detroit, 315 F. Supp.
367 (E.D. Mich. 1970); Ellis v. City of Grand Rapids, 257 F. Supp. 564 (W.D. Mich. 1966).
Subsequently however, the Sixth Circuit appeared to limit its application of a more liberal
approach to cases involving an "abuse of eminent domain." Sayre v. City of Cleveland, 493 F.2d
64, 69 (6th Cir.), cert. denied, 419 U.S. 837 (1974); Woodland MkL Realty Co. v. City of
Cleveland, 426 F.2d 955, 958 (6th Cir. 1970). The First Circuit does not appear to follow the
more liberal approach. In Ortega Cabrera v. Municipality of Bayamon, 562 F.2d 91 (1st Cir.
1977), the court held that "substantial economic loss and significant diminution in value alone do
not establish compensable takings." Id. at 100. Moreover, "government action which interferes
with the value of land only by making it less desirable for its present uses does not effect a taking,
notwithstanding the fact that speculative future business opportunities may have been de-
stroyed." Id. at 101; accord, Steel Hill Dev., Inc. v. Town of Sanbornton, 469 F.2d 956, 963 (1st
Cir. 1972). The Second Circuit courts also appear to follow the more liberal approach. See
Jimmie's Inc. v. City of West Haven, 436 F.2d 1339 (2d Cir.), cert. denied, 403 U.S. 931 (1971);
approach is based on a liberal interpretation of the constitutional term

"taking."' 5 8 The commitment of the Michigan courts to eschew a narrow
construction of the constitutional guarantee of just compensation was evident
in 1889 when in Pearsall v. Board of Supervisors,' 9 the court stated: "the
term 'taking,' should not be used in an unreasonable or narrow sense .... [I]t
should include cases where the value is destroyed by the action of the
government, or serious injury is inflicted to the property itself, or exclusion of
60
the owner from its enjoyment, or from any of the appurtenances thereto.,
Thus, if an individual's property rights are interfered with, damaged, or
destroyed by the activities of the government, the Michigan courts regard the
damage or destruction as a taking for which the owner is entitled to just
compensation. 161
To establish a de facto taking under the Michigan approach, a property
Archer Gardens, Ltd. v. Brooklyn Cent. Dev. Corp., 468 F. Supp. 609 (S.D.N.Y. 1979); Katz v.
State of Conn., 307 F. Supp. 480 (D. Conn. 1969), aff'd, 433 F.2d 878 (2d Cir. 1970); Haczela v.
City of Bridgeport, 299 F. Supp. 709 (D. Conn. 1969). While not discounting the importance of
physical occupation by government to establish a taking, the Third Circuit rejects a formalistic
approach to the taking question. See Lehigh & New Eng. Ry. v. ICC, 540 F.2d 71 (3d Cir. 1976),
cert. denied, 429 U.S. 1061 (1977); Sixth Camden Corp. v. Township of Evesham, 420 F. Supp.
709 (D.N.J. 1976). In Donohoe Constr. Co. v. Montgomery County Council, 567 F.2d 603 (4th
Cir. 1977), cert. denied, 438 U.S. 905 (1978), the Fourth Circuit declined to apply the liberal
definition of de facto taking. In Donohoe, the government decided to acquire plaintiff's property
to build a recreation center sometime in the future. Id. at 606. To prevent the plaintiff from
carrying out its plans to construct a fourteen-story office building, the government rejected
plaintiff's application for a building permit and "downzoned" the area. Id. at 607-08. The court
held that such government actions were not such an abuse of the condemnation power as to
constitute a de facto taking. Id. at 609. Rather than attempting to explore the esoteric question
whether there can be a "taking without a touching," the Fifth Circuit has held that a diminution
in value is not enough to constitute a taking, and that the "sine qua non of a constitutional taking
is a loss occasioned by an intrusion, interference or encroachment of some degree upon the private
property owner's rights in his property." Florida E. Coast Props., Inc. v. Metropolitan Dade
County, 572 F.2d 1108, 1111 (5th Cir.), cert. denied, 439 U.S. 894 (1978) (emphasis In original );
see Chacon v. Granata, 515 F.2d 922, 925 (5th Cir.), cert. denied, 423 U.S. 930 (1975). The
Seventh Circuit has not adopted the more flexible approach to the taking issue. In Schoone v.
Olsen, 427 F. Supp. 724 (E.D. Wis. 1977), the plaintiffs claimed the proposed redevelopment of a
blighted urban area caused them to lose tenants and deprived them of the use of their property.
Granting a motion for summary judgment, the court stated that the evidence did not indicate "a
taking in either the legal or constitutional sense. It did not constitute a condemnation of the
plaintiffs' property or an illegal denial of their right to use and enjoy their property." Id. at 725.
The Eighth and Ninth Circuits follow the more liberal approach. Thomas W. Garland, Inc. v.
City of St. Louis, 596 F.2d 784 (8th Cir. 1979); Richmond Elks Hall Ass'n v. Richmond Redev.
Agency, 561 F.2d 1327 (9th Cir. 1977). The Tenth Circuit does not require an actual physical
invasion to find that the government has taken private land and must, therefore, pay just
compensation. See United States v. City of Pawhuska, 502 F.2d 821 (10th Cir. 1974); C.F. Lytle
Co. v. Clark, 491 F.2d 834 (10th Cir. 1974). The more flexible approach has not been followed In
the District of Columbia Circuit. See Goddard v. Dist. of Columbia Redev. Land Agency, 287
F.2d 343 (D.C. Cir.), cert. denied, 366 U.S. 910 (1961). The court of claims has expressed
agreement with the flexible approach. See Benenson v. United States, 548 F.2d 939 (Ct. Cl.
1977); Drakes Bay Land Co. v. United States, 424 F.2d 574 (Ct. Cl. 1970).
158. Thom v. State Highway Comm'r, 376 Mich. 608, 613, 138 N.W.2d 322, 323 (1965).
159. 74 Mich. 558, 42 N.W. 77 (1889) (road closing case).
160. Id. at 561, 42 N.W. at 77-78.
161. Id. at 562, 42 N.W. at 78.
owner must present evidence of (1) deliberate government action or inaction,

which causes (2) a significant diminution in the value of the property. 62 The
claim of de facto taking arises in two types of cases: first, in an eminent
domain proceeding when the condemnee is attempting to prove an earlier date
of taking, 163 and second, in an inverse condemnation case when the aggrieved
property owner is seeking to compel the government to appropriate its
property or to receive compensation for damage due to governmental activ-
ity. 164
In the eminent domain proceeding if the Michigan property owner can
establish sufficient deliberate governmental activity and diminution of prop-
erty value to constitute a de facto taking, the jury is permitted to determine
the exact date of the taking and to ascertain the market value of the property
as of that date. 165 In these cases, the condemnee is awarded market value as
determined by the jury, reimbursement for taxes, maintenance, and insurance
paid after the date of taking fixed by the jury, less any income received during
the period prior to the jury's verdict. 166 In addition, interest is16computed
7
from
the date of the de facto taking to the date of the award.
In Michigan inverse condemnation actions, on the other hand, the owner
seeks compensation in the court of claims for the damage done to property by
the actions of the government. 168 It is not necessary, however, for the
162. See Thorn v. State Highway Comm'r, 376 Mich. 608, 628, 138 N.W.2d 322, 331 (1965);
City of Detroit v. Cassese, 376 Mich. 311, 317, 136 N.W.2d 896, 900 (1965); Heinrich v. City of
Detroit, 90 Mich. App. 692, 699, 282 N.W.2d 448, 451-52 (1979); Detroit Bd. of Educ. v. Clarke, 89
Mich. App. 504, 508, 280 N.W.2d 574, 576 (1979); City of Muskegon v. DeVries, 59 Mich. App.
415, 419, 229 N.W.2d 479, 483 (1975).
163. See, e.g., Rogoski v. City of Muskegon, 550 F.2d 1075, 1076 (6th Cir. 1977); City of
Detroit v. Cassese, 376 Mich. 311, 136 N.W.2d 896 (1965); Detroit Bd. of Educ. v. Clarke, 89
Mich. App. 504, 280 N.W.2d 574 (1979); City of Detroit v. Barak, 50 Mich. App. 164, 212
N.W.2d 780 (1973).
164. See, e.g., Hill v. State Highway Comm'n, 382 Mich. 398, 170 N.W.2d 18 (1969); Thorn
v. State Highway Comm'r, 376 Mich. 608, 138 N.W.2d 322 (1965); Heinrich v. City of Detroit,
90 Mich. App. 699, 282 N.W.2d 448 (1979); Biff's Grills, Inc. v. State Highway Comm'n, 75
Mich. App. 154, 254 N.W.2d 824 (1977); Tamulion v. State Waterways Comm'n, 50 Mich. App.
60, 212 N.W.2d 828 (1973); Holloway Citizens Comm. v. Genesee County, 38 Mich. App. 317,
196 N.W.2d 484 (1972).
165. City of Detroit v. Cassese, 376 Mich. 311, 318-20, 136 N.W.2d 896, 900.01 (1965);
Detroit Bd. of Educ. v. Clarke, 89 Mich. App. 504, 280 N.W.2d 574 (1979); City of Detroit v.
Sherman, 68 Mich. App. 494, 242 N.W.2d 818 (1976); City of Detroit v. Barak, 50 Mich. App.
164, 212 N.W.2d 780 (1973).
166. City of Detroit v. Cassese, 376 Mich. 311, 318-19, 136 N.W.2d 896,.900-01 (1965).
167. Id. at 311, 319 & n.4, 136 N.W.2d 896, 901 & n. 3 (1965); In re State Highway Comm'r,
279 Mich. 285, 271 N.W. 760 (1937) (interest allowed from the date of actual appropriation, even
though that was years before the condemnation award was confirmed); Campau v. City of
Detroit, 225 Mich. 519, 196 N.W. 527 (1923) (interest allowed to accrue on a condemnation
award even though there had been no physical taking as of the date of the award); State Highway
Comm'n v. Great Lakes Express Co., 50 Mich. App. 170, 181-83, 213 N.W.2d 239, 245-46 (1973)
(the purpose of interest on a condemnation award is to give the condemnee just compensation
from the date of actual or constructive taking.).
168. "[Tjhe Court of Claims is the proper forum in which to seek relief where a plaintiff
alleges an already accomplished inverse condemnation by the State of Michigan." Biff's Grills,
Inc. v. State Highway Comm'n, 75 Mich. App. 154, 158, 254 N.W.2d 824, 826 (1977) (footnote
omitted).
FORDHAM LAW REVIEW [Vol, 48
government actually to acquire title for the owner to receive compensation. 69

The Michigan approach to de facto takings is exemplified by City of Detroit
v. Cassese,17 0 in which the Supreme Court of Michigan held that the
concurrence of several deliberate acts by the city in effectuating an urban
renewal plan which significantly reduced the value of private property was
sufficient to constitute a taking. 17 1 In Cassese, the city sent form letters to
property owners in an area slated to be taken for urban renewal, informing
them that condemnation was about to commence. A condemnation action
followed and lis pendens were filed. 172 Ten years later, the project was
abandoned and the condemnation action discontinued, but in another two
years, the city reinstituted the condemnation proceedings.
During the second condemnation proceeding, the owner of two parcels of
property within the renewal area contended that a de facto taking occurred
when the first condemnation proceeding commenced. 13 The owner specified
ten acts by the city including the following: sending letters to tenants which
caused them to move; filing lis pendens which impaired his ability to sell the
property and reduced its value; refusing to issue building permits for substan-
tial improvements; relaxing police protection which resulted in vandalism;
reducing municipal sanitary services; strictly enforcing building codes; send-
ing notices to property owners requiring them to repair, board up, or tear
down buildings that had been vandalized; razing or boarding up vacant
buildings in the area which gave the area a deserted wasteland appearance;
refusing to permit certain businesses to continue operations while awaiting
condemnation; and delaying the trial of the first condemnation action for ten
years, discontinuing it, and then reinstituting a new action in which the
property appraisals were based on the value at the time of the second
7 4
condemnation action.'
The owner contended that these actions of the city caused approximately an
eighty percent decline in property value, and therefore should constitute a de
facto taking. 175 The city argued that the reduction in value was not due to its
actions, but was a result of the age of the buildings in the area, stringent
169. Detroit & M. Ry. v. Sioux City Seed & Nursery Co., 168 Mich. 668, 134 N.W. 1103
(1912); Keyser v. Lake Shore & M. S. Ry., 142 Mich. 143, 105 N.W. 143 (1905); Taylor v. Bay
City St. Ry., 101 Mich. 140, 59 N.W. 447 (1894); Grand Rapids & Ind. R.R. v. Helsel, 47 Mich.
393, 11 N.W. 212 (1882); see Gordon v. City of Warren, 579 F.2d 386 (6th Cir. 1978); Hill v.
State Highway Comm'n, 382 Mich. 398, 170 N.W.2d 18 (1969); Thorn v. State Highway
Comm'r, 376 Mich. 608, 138 N.W.2d 322 (1965); Biff's Grills, Inc. v. State Highway Comm'n, 75
Mich. App. 154, 254 N.W.2d 824 (1977); Tamulion v. State Waterways Comm'n, 50 Mich. App.
60, 212 N.W.2d 828 (1973); Standen v. Alpena County, 22 Mich. App. 416, 177 N.W.2d 657
(1970).
170. 376 Mich. 311, 136 N.W.2d 896 (1965).
171. Id. at 317, 136 N.W.2d at 900.
172. Id. at 313, 136 N.W.2d at 898.
173. Id. at 313-14, 136 N.W.2d at 898.
174. Id. at 316-17, 136 N.W.2d at 899-900.
175. In 1950 this parcel was worth at least $3200.41, the amount owing to the owner on a
sales contract. In 1959 the city directed the owner to tear down a building which had been
vandalized. When the second condemnation action wa,. instituted in 1962 the city valued the
property as a vacant lot worth $525. Id. at 314, 136 N.W.2d at 898.
economic conditions, and evolutionary changes

176
in the neighborhood, such as
automation and mass exodus to suburbia.
The Cassese court held that "a city may not by deliberate acts reduce the
value of private property and thereby deprive the owner of just compensa-
tion." 77 Thus, "[ilf an area has been made a wasteland by the condemning
authority, the property owner should not be obliged to suffer the reduced
value of his property.' 7 8 The court concluded, therefore, that if the city's
action reduced the value of the owner's property, then the evidence could go
to the jury for the determination of the actual date of taking and the
computation of just compensation.
The Michigan Supreme Court in Cassese appeared to be concerned with
protecting the private property owner from improper government actions in
connection with its eminent domain power. 79 The court was undoubtedly
influenced by certain actions of the government which tended to indicate an
"abuse of eminent domain"'' 8 or overreaching by the condemning au-
thority. 1 8 The series of actions by the city, which resulted in protracted
condemnation proceedings, caused a reduction in property values even though
there was no actual physical confiscation. Rather than permit the city to
acquire the private property at a substantially reduced cost and deprive the
owner of payments for its attendant losses, the court determined that the
situation could warrant just compensation. The same concern was manifested
in the recent case Detroit Board of Education v. Clarke,'8 2 in which the
Michigan Court of Appeals concluded that threats of condemnation, "coupled
with affirmative action such as unreasonable delay or oppressive conduct" in
the furtherance of condemnation, constitutes a de facto taking. 8 3 Clarke
involved action somewhat less onerous than Cassese, but nevertheless, the
governmental activity resulted in a diminution in value and partial destruc-
tion of private property.
In Clarke, in 1962 and again in 1965, the government announced its
intention to acquire the condemnee's property.' 8 4 Although the government
condemned other property in the neighborhood, it did not acquire the
condemnee's property until 1977, almost fifteen years after the first an-
nouncement of an intention to condemn.18 5 During that time, uncertainty as
176. Id. at 314, 317-18, 136 N.W.2d at 898-900.
177. Id. at 317, 136 N.W.2d at 900.
178. Id. at318, 136 N.W.2d at 900.
179. The Michigan Supreme Court expressed similar concerns in Grand Trunk Western R.R.
v. City of Detroit, 326 Mich. 387, 40 N.W.2d 195 (1949). In this case, the court held invalid a
zoning ordinance because it was enacted for the purpose of depressing property values prior to the
institution of condemnation proceedings.
180. See Madison Realty Co. v. City of Detroit, 315 F. Supp. 367 (E.D. Mich. 1970); Foster
v. City of Detroit, 254 F. Supp. 655 (E.D. Mich. 1966), aff'd, 405 F.2d 138 (6th Cir. 1968);
Heinrich v. City of Detroit, 90 Mich. App. 692, 282 N.W.2d 448 (1979).
181. For example, requiring a property owner to tear down a vandalized building and then
valuing the property as a vacant lot would be an abuse of condemnation powers. 376 Mich. at
314, 136 N.W.2d at 898.
182. 89 Mich. App. 504, 280 N.W.2d 574 (1979).
183. Id. at 509, 280 N.W.2d at 576-77.
184. Id. at 507, 280 N.W.2d at 576.
185. Id. at 506, 280 N.W.2d at 575.
to which property would be taken caused the neighborhood to deteriorate and

the condemnee to have difficulty retaining tenants. 186 The court stated that
there is "no precise formula or specific method" for determining whether a
taking occurs, however, more than the mere publicizing of plans is needed to
constitute a taking. 18 7 A threat of condemnation and cumulative government
action causing accelerated condemnation
88
blight is sufficient to allow the jury
to find a de facto taking.'
Although most de facto taking cases arise in the context of condemnation
plans, "(i]nitiation of eminent domain proceedings is not a requisite to a
finding that a 'taking' has in fact occurred."' 189 Michigan law recognizes that
the theory of inverse condemnation may be used to enforce the constitutional
ban on uncompensated takings of property. For example, in Thorn v. State
0
Highway Commissioner,19 the state highway department altered the grade of
a road in front of the claimant's farm headquarters. The Supreme Court of
Michigan held that even though the state had no intention to condemn the
claimant's property, the state was liable for a partial taking without due
process of law.191 The court found that the claimant had encountered
difficulty and danger in moving his farm machinery, that access to an
attractive farm house was considerably impaired, and that the government's
actions resulted in a substantial diminution of the property's value. 192 In
ordering just compensation, the court comported with the principle that it is
unjust for society to "benefit itself at the expense of an individual by failing to
compensate 93
him for damage done to him in order to procure society's
benefit."1
In general, the Michigan courts consider both the character of the govern-
ment's activity and the cumulative economic impact of the activity to deter-
mine whether a compensable taking of private property has occurred. In
recognition of the harsh economic impact of various forms of governmental
activity, the Michigan courts, as a policy matter, strive to protect the
individual from uncompensated losses caused by government actions.
186. Id. at 507, 280 N.W.2d at 576.
187. Id. at 508, 280 N.W.2d at 576; accord, Heinrich v. City of Detroit, 90 Mich, App. 692,
698, 282 N.W.2d 448, 451 (1979).
188. 89 Mich. App. at 507, 509, 280 N.W.2d at 576-'7.
189. Madison Realty Co. v. City of Detroit, 315 F. Supp. 367, 371 (E.D. Mich. 1970).
190. 376 Mich. 608, 138 N.W.2d 322 (1965).
191. Id. at 628-29, 138 N.W.2d at 331.
192. Id. at 625-26, 138 N.W.2d at 329-30.
193. Id. at 623, 138 N.W.2d at 328. Similarly, in Tamulion v. State Waterways Comm'n, 50
Mich. App. 60, 212 N.W.2d 828 (1973), private property owners brought suit in the court of
claims seeking compensation for damage to their property which resulted from repairs made by
the government to prevent erosion. The government constructed a peninsula about eighty feet east
of the plaintiff's property to serve as a harbor for small crafts. As a result of the construction of
the harbor, serious erosion problems were encountered; the plaintiffs gave the government
permission to take remedial measures to abate the erosion. Upon completion of the work, tons of
jagged rocks and boulders were dumped on the plaintiffs' property which made access to the
water virtually impossible yet did not halt the serious erosion. The plaintiffs claimed that the
government's actions constituted an appropriation of property without the payment of Just
compensation. The court held that these actions were sufficient to establish a taking for which the
plaintiffs were entitled to just compensation. Id. at 67, 212 N.W.2d at 831.
A. Types of Governmental Activity

Under the Michigan approach, neither physical invasion nor statutory
restraint is required for the challenged governmental activity to constitute a
taking as long as the activity causes a diminution in property values. 194 For
example, in New York, announcement of an impending condemnation and
subsequent delay, causing damage to the property, does not constitute a de
facto taking, 195 while in Michigan, these activities are sufficient to support
such a finding. 196 Similarly, sending letters to area residents causing them to
move out, 1 97 refusing to issue building permits for improvements, 9 8 strictly
enforcing building codes, 199 and piecemeal condemning,2 00 do not constitute a
194. Thorn v. State Highway Comm'r, 376 Mich. 608, 614, 138 N.W.2d 322, 323 (1965); City
of Big Rapids v. Big Rapids Furniture Mfg. Co., 210 Mich. 158, 177 N.W. 284 (1920); Detroit
Bd. of Educ. v. Clarke, 89 Mich. App. 504, 280 N.W.2d 574 (1979). Under the Michigan
approach, the diminution in value must be causally related to the governmental activity in order
for a taking to be found. In City of Muskegon v. DeVries, 59 Mich. App. 415, 229 N.W.2d 479
(1975), the court stated the test for causal relation: "While (the property owner's] claim [that) it
should be sufficient for recovery to show that the acts of the city were a substantial cause or a
cause [of the loss], we disagree. We hold... that to constitute a taking it must be shown to be the
cause . . . ."Id. at 420, 229 N.W.2d at 483 (emphasis in original). More recently, however, in
Heinrich v. City of Detroit, 90 Mich. App. 692, 282 N.W.2d 448 (1979), the Michigan Court of
Appeals stated that the rule announced in City of Muskegon, was "too narrow an approach to the
question of causation." Id. at 700, 282, N.W.2d at 451. The court stated that in inverse
condemnation actions, a plaintiff may satisfy his burden of proof "by proving that the govern-
ment's actions were a substantial cause of the decline of his property's value." Id. (emphasis in
original). As the court recognized, "establishment of a causal link, in cases involving a city's
management of an urban renewal program, may be hindered by the presence of other factors
affecting a property's viability, such as neighborhood deterioration, urban blight and commercial
obsolescence. Ironically, these factors may have provided the impetus for the urban renewal
program in the first place and yet obscure even a plaintiff's legitimate right to compensation." Id.
The element of causation is an important one because reductions in property value may be the
result of factors other than the actions of the government. For example, property values may fall
as buildings in an area become dilapidated and residents move. See City of Detroit v. Cassese,
376 Mich. 311, 314, 136 N.W.2d 896, 898 (1965). Similarly, property values may drop because of
an owner's failure to properly manage or maintain the property. In these cases, the government
should not provide compensation because it did not cause the diminution of value. Although it is
an important consideration to avoid burdening the government with damages not solely attribut-
able to its conduct, the causal requirement poses a formidable obstacle of proof for the aggrieved
landowner.
195. City of Buffalo v. J.W. Clement Co. 28 N.Y.2d 241, 257, 269 N.E.2d 895, 904, 321
N.Y.S.2d 345, 359 (1971); see pt. 11(a) supra.
196. Detroit Bd. of Educ. v. Clarke, 89 Mich. App. 504, 509, 280 N.W.2d 574, 576 (1979).
197. Niagara Frontier Bldg. Corp. v. State, 33 A.D.2d 130, 305 N.Y.S.2d 549 (4th Dep't
1969), aff'd mem., 28 N.Y.2d 755, 269 N.E.2d 912, 321 N.Y.S.2d 368 (1971); City of Buffalo v.
George Irish Paper Co., 31 A.D.2d 470, 299 N.Y.S.2d 8 (4th Dep't 1969), aff'd mer., 26 N.Y.2d
869, 258 N.E.2d 100, 309 N.Y.S.2d 606 (1970); Beaux Arts Props., Inc. v. United Nations Dev.
Corp., 68 Misc. 2d 785, 328 N.Y.S.2d 16 (Sup. Ct. 1972), aff'd inem., 39 A.D.2d 844, 332
N.Y.S.2d 1008 (1st Dep't 1972); In re 572 Warren St., 58 Misc. 2d 1073, 298 N.Y.S.2d 429 (Sup.
Ct. 1968).
198. See City of Buffalo v. J.W. Clement Co., 28 N.Y.2d 241, 249, 269 N.E.2d 895, 900,
321 N.Y.S.2d 345, 352 (1971); Cicci v. State, 31 A.D.2d 733, 297, N.Y.S.2d 291 (4th Dep't 1968).
199. 76 Crown St. Corp. v. City of N.Y., 35 A.D.2d 1005, 317 N.Y.S.2d 978 (2d Dep't
1970).
de facto taking in New York because none of these activities fall within the
narrow definitions of "physical invasion" or "direct legal restraint." The
Michigan courts, in contrast, do not confine the definition of de facto taking to
amorphous concepts such as "ouster" and "dominion and control." The
emphasis on the actual impact of governmental activity is certainly more
realistic from the perspective of the aggrieved property owner to whom it is
of little consequence whether the value of private property is damaged or
destroyed by the operation of a statute or by less formal government pro-
nouncements.
B. Diminution in Value
Although Michigan courts require the actions of the government to cause a
"substantial" or "significant" reduction in the value of private property in
order to find a de facto taking,2 01 the extent of diminution that is necessary is
not definitely ascertainable. This assessment must depend on a consideration
of the burden upon government that will result if the government is compelled
to pay just compensation to every property owner whose land is adversely
affected by governmental activity. To inhibit the progress of urban renewal
and land development is not in the public interest; nevertheless, the costs of
government inefficiency and inability to formulate coherent land use plans
should not unduly burden the individual property owner. The Michigan
courts evidently balance these factors by finding that a de facto taking may be
effectuated by the government when its deliberate actions cause unwarranted
damage or destruction of private property.
Although Michigan has not devised a rigid test, analysis of the cases
indicateg that a decrease in property value of approximately 60%, accom-
panied by deliberate government actions, is sufficient to warrant just compen-
sation for a de facto taking. 202 Admittedly, the New York courts do not
completely ignore the reductions in property value that may result from
physical invasion or direct legal restraints. The condemnation blight concept
is an attempt to minimize the economic distress that may result from
governmental activity, but even substantial condemnation blight cannot be
the basis of a de facto taking in New York. Furthermore, as has been
demonstrated, consideration of condemnation blight to value property more
realistically during eminent domain proceedings, does not adequately com-
pensate the property owner for all of his losses. 20 3 The Michigan approach,
however, permits significant condemnation blight to support an independent
cause of action for a de facto taking; it also provides just compensation when
200. Fisher v. City of Syracuse, 78 Misc. 2d 124, 355 N.Y.S.2d 239, aff'd, 46 A.D.2d 216,
361 N.Y.S.2d 773 (4th Dep't 1974), appeal denied, 36 N.Y.2d 642, 368 N.Y.S.2d 1025, cert.
denied, 423 U.S. 833 (1975); Cinco v. City of N.Y., 58 Misc. 2d 828, 296 N.Y.S,2d 26 (Sup. Ct.
1968).
201. Thorn v. State Highway Comm'r, 376 Mich. 608, 628, 138 N.W.2d 322, 331 (1965);
Heinrich v. City of Detroit, 90 Mich. App. 692, 282 N.W.2d 448 (1979).
202. In Cassese, the decrease in value of the property was at least 80%. 376 Mich. at 314, 136
N.W.2d at 898; see notes 170-181 supra and accompanying text. In Madison Realty Co. v. City of
Detroit, 315 F. Supp. 367 (E.D. Mich. 1970), the decrease in the value of the claimant's property
was about 40%. Id. at 369.
203. See notes 43-51 supra and accompanying text.
government improvements for the public benefit diminish the value of private
property. This approach recognizes that government interferences with
private property that render it unsuitable for private use should result in a
compensable taking. Moreover, it diminishes the possibility that the govern-
ment can benefit from its own misconduct to the detriment of the private
citizen.
IV. CONCLUSION
The de facto taking issue is not a question capable of a precise answer in

most cases. It requires not merely an appraisal of the impact of particular
governmental activity upon private property, but an evaluation of the rela-
tionship between private rights and public order. Certainly, "no property is
an economic island, free from contributing to the welfare of the whole of
which it is but a dependent part. The limits are that unfair or dispropor-
tionate burdens may not, constitutionally, be placed on single properties or
their owners. '20 4 To this end, the New York courts should adopt the more
flexible approach to de facto takings developed by the Michigan courts, and
thus further the pursuit of just compensation.
Thomas S. Szatkowski
204. Fred F. French Investing Co. v. City of N.Y., 39 N.Y.2d 587, 600, 350 N.E.2d 381,
389, 385 N.Y.S.2d 5, 12, cert. denied, 429 U.S. 990 (1976).

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Fordham Law Review

Volume 48 | Issue 3 Article 4

De Facto Takings and the Pursuit of Just

Resolution of these issues requires a delicate balancing of the legitimate

I. CONSTITUTIONAL MANDATE OF THE TAKING CLAUSE

the "diminution in value" theory. Because the physical invasion theory

21. Id. at 181.

B. The Diminution in Value Theory

.. '[Wihile property may be regulated

either concept is the extent of diminution in value of private property caused

concept of condemnation blight may be employed. 44 A court that applies the

44. To permit compensation to be increased or decreased by an alteration in market value

used during the course of a formal condemnation proceeding.50 Therefore, if

prohibitive increases in the cost of government projects, the courts of New

If. THE NEW YORK APPROACH TO DE FACTO TAKINGS

When condemnation proceedings were finally commenced, Clement con-

B. Criticism of the Clement Test

An even more important defect of the Clement decision is that it rewarded

tion of litigation subsequent to Clement reveals the inadequacies of that

C. The DirectLegal RestraintTest

89. 28 N.Y.2d at 256, 269 N.E.2d at 904, 321N.Y.S.2d at 358.

This problem is highlighted by examining Forster v. Scott, 94 in which the

a taking sought or considered as a remedy. Yet, both of these cases were

103. 28 N.Y.2d at 254, 269 N.E.2d at 903, 321 N.Y.S.2d at 356.

109. Id. at 590, 350 N.E.2d at 382, 385 N.Y.S.2d at 6.

formulate a "bright-line standard" for determining whether a statute has

116. Id. at 5-6.

It is apparent that the Clement court erred in devising a "direct legal

introduce evidence of condemnation blight which does not compensate him

approach is based on a liberal interpretation of the constitutional term

owner must present evidence of (1) deliberate government action or inaction,

government actually to acquire title for the owner to receive compensation. 69

economic conditions, and evolutionary changes

to which property would be taken caused the neighborhood to deteriorate and

A. Types of Governmental Activity

The de facto taking issue is not a question capable of a precise answer in

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