III.TakingsJurisprudenceEvolution

being considered takings, but ultimately the property owners lost out on compensation due to overzealous city officials exceeding their statutory power. At the time, public officials and courts alike were extremely concerned with maintaining control during the community medical emergency, regardless of the outcome it may have had on property owners. As the court stated in Spring, those regulations and controls were simply a necessary burden to those who live within society,38 butatthesametime,thecourtstatedthatthehealthofficials whocommittedtheactsweredoingsooftheirownaccord,ratherthan under the authority of the city. This gave health officials the leeway neededtocompletetheirobjectiveswithoutholdingcitiesresponsible, bymitigatingtheeffectsofthehealthemergencywithoutbankrupting them. The police powers were not fully realized when most of these cases were decided, requiring the courts to rely on the ultra vires actions of the officials; with over 100 years passing between these cases and the Coronavirus pandemic, the laws and jurisprudence for the taking of private property as related to a medical emergency have vastlychanged.

III.TakingsJurisprudenceEvolution

Althoughsome19thcenturyjudgeswereinfavorofprotectingprivate propertyrights,evenwhenanactionwasjustifiedbythepolicepower, Section II highlights that takings were only found by lower courts. Later, they were then overruled by higher courts that either gave deferencetothemedicalofficialsorheldthatthemedicalofficialsdid not have the authority to do what they did in the first place. The time that has passed between these cases and the outbreak of COVID-19 has seen a lot of development take place where takings of private propertyareconcerned.

First, and perhaps one of the most important developments, was the creation of the regulatory taking doctrine developed in Pennsylvania Coal Co. v. Mahon. 39 The Court put a limit on the use of the police power. It found that although property may be regulated to a certain extentwithouta taking,“ifregulationgoestoofaritwillberecognized asa taking.”40 Thiscreateda secondtypeoftakingbythegovernment, inadditiontophysicaltakings:regulatorytakings.

38 Spring, 137Mass.at559. 39 Pa. Coal Co.v.Mahon,260U.S.393(1922). 40 Id. at415.

With the Court upholding zoning ordinances41 and holding that regulations that go “too far” are takings, the next jurisprudential development was determining when regulations go too far. Penn Central Transportation Co. v. New York City42 held that the city’s restrictions on property deemed a landmark was not a taking, nor was it a denial of due process. In Penn Central, the Court held that the “Fifth Amendment’s guarantee . . . is designed to bar Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole,” but alsoidentifiedthatitwasunabletodevelopa formulaforwhatjustice andfairnessspecificallycallfor.43 TheCourtidentifiedthe“economic impactoftheregulationontheclaimant,andparticularly,theextentto which the regulation has interfered with distinct investment-backed expectations [as] . . . relevant considerations.”44 The Court also held that a taking is most likely to be found when the government interference is a physical invasion rather than one arising out of a public program promoting the common good,45 a signal of the everpresentpolicepowerstillhavingpower.

A furtherexpansiononthephysicaltakingofpropertycamein Loretto v. Teleprompter Manhattan CATV Corp.46 In Loretto, state law required a landlord to allow a cable television company to install its cable facilities on the landlord’s property, including wires and cable boxeswhichoccupieda smallportionoftheproperty.47 Althoughthis was a minimal taking, it was still deemed to be a taking, and compensationwasdue.48

Regulatory takings jurisprudence was further developed in Lucas v. S.C. Coastal Council. 49 After Lucas bought property on the South Carolina coast, intending to build houses, the state legislature felt the needtopreservethebeachesandpasseda lawthatprohibitedanytype

41 Euclid, supra, note 30. 42 PennCent. Transp.Co. v. NewYorkCity, 438U.S.104(1978). 43 Id. at123-24 (quoting Armstrongv.United States,364U.S.40,49(1960)). 44 Id. at124. 45 Id. 46 Loretto v. TeleprompterManhattan Catv Corp.,458 U.S.419 (1982). 47 Id. at421-22. 48 Id. at441. 49 Lucas v. S.C. CoastalCouncil,505 U.S.1003 (1992).