IV.COVID-19

ofdevelopmentonlandalongthecoast.50 This meantthatLucascould not build on his land. Ultimately, the Court held that a taking occurs when a regulation removes all economical use of the property.51 The Court noted, however, that use of the police power to prevent owners fromcommittinga nuisancewasnota taking,norwasthepolicepower prohibited from acting if the injury was a part of title upon the landowners purchase of the land under state law because the right to commit a nuisance is not a right given in the bundle of sticks to propertyowners.52

Tahoe-Sierra Pres. Council v. Tahoe Reg’l Planning Agency limited Lucas by holding that a temporary taking, even if it prevented all economical use of the property, was not a taking that required just compensation.53 TheCourtreliedonthe Penn Central factors,instead ofcreatinga newrulewhenitcametotemporarytakings.54 TheCourt alsodidnotgivea definitionofwhatistemporarybutstatedthat“any moratorium that lasts for more than one year should be viewed with specialskepticism.”55

With these major changes in takings jurisprudence, a more defined balancebetweengovernmentactionsandtherightsofprivateproperty owners has been outlined. With a new medical emergency taking its toll on the United States, the claims brought today will be analyzed undera moreexpansiveanddevelopedtakingsjurisprudencethanwas appliedtocasesdescribedinSectionII.

IV.COVID-19

In late January 2020, COVID-19, also known as the Coronavirus, appeared within the United States.56 Efforts were made to slow the

50 Id. at1007. 51 Id. at1030-31. 52 Id. at1026-27. 53 See generally Tahoe-Sierra Pres. Council, Inc. v. Tahoe Reg’l Planning Agency, 535U.S.302 (2002) (holdingthat a32-monthmoratorium on developmentwas not a taking thatrequiredjustcompensation). 54 Id. at 342. 55 Id. at341. 56 ErinK.Stokesetal., Coronavirus Disease 2019 Case Surveillance- United States, January 22-May 30, 2020, Centers for Disease Control and Prevention (June 19, 2020),https://www.cdc.gov/mmwr/volumes/ 69/wr/mm6924e2.htm.

spreadofthediseasebothatthefederalandstatelevels.Atthetimeof this writing, 34 states and the District of Columbia require a facecovering of some sort in public.57 Landowners in several states affected by the regulations challenged whether the impact of the regulationsrosetothelevelofa taking.

A.Pennsylvania: Friends of Devito v. Wolf

In Friends of Devito v. Wolf, both businesses and individuals in Pennsylvania sought relief from the governor’s executive orders to close “physical operations of all non-life-sustaining business[es] to reducethespreadofthenovelcoronavirusdisease(COVID-19).”58 In early March 2020, the governor issued a series of executive orders closingbusinessesnotdeemedlife-sustaining,allowinglife-sustaining businesses to remain open but mandating that they follow social distancing practices, and explicitly prohibiting the operation of bars and restaurants with the exception of carry-out, delivery, and drivethrough.59

The Governor relied on the police powers test from Lawton v. Steele, “first, that the interests of the public generally, as distinguished from those ofa particular class, require such interference; and,second, that the means are reasonably necessary for the accomplishment of that purpose, and not unduly oppressive upon individuals.”60 In Lawton, the plaintiffs placed nets in public waters owned by the state of New Yorkforthepurposeoffishing,indirectviolationofa statutethatthey claimedwasunconstitutional.61 Thegameandfishofficertookthenets anddestroyedthemasorderedbythestatutewhichstatedthat“anynet . . . in or upon any of the waters of this State, . . . in violation of any existing or hereafter enacted statutes . . . is hereby declared to be, and is, a public nuisance, and may be abated and summarily destroyed by anyperson[.]”62 Thecourtheldthatthepolicepowersare“universally conceded to include everything essential to the public safety, health,

57Andy Markowitz, State-by-State Guide to Face Mask Requirements, AARP, https://www.aarp.org/health/healthy-living/info-2020/states-mask-mandatescoronavirus.html (lastupdatedSept.2,2020). 58 FriendsofDannyDeVitov.Wolf,227A.3d872,876(Pa.2020) cert. denied, 141 U.S. 239(2020). 59 Id. at877-80. 60 Id. at890(quotingLawtonv.Steele,152U.S.133,136(1894)). 61 Lawton, 152U.S.at134. 62 Id. at135.

The petitioners’ second argument was that the executive order amountedtoa takingofprivatepropertywithoutjustcompensationin violation of the Fifth Amendment to the United States Constitution.70 Although the order is not a physical taking of the property, the petitioners view the order as a government regulation that “deprive[s] anownerofalleconomicallybeneficialorproductiveuseofland[.]”71 The state responded that “the payment of just compensation is not required where the regulation of property involves the exercise of the Commonwealth’spolicepower,”72 andarguedfurtherthat:

[E]minent domain is the power to take property for public use. The City must provide just compensation for any property taken pursuant to this power. The police power, on the other hand, involves the regulation of property to promote the health, safety, and general welfare of the people. . . . It does not require that the City provide compensation to the property owner, even if the property is damaged or destroyed.73

This broad assertion of power was based on Pennsylvania Supreme Court74 casesexpandinguponthe Lawton distinctionbetweeneminent domain and the police power. The court held that there is a critical distinction between eminent domain, which is the power to take property for public use, where just compensation must be paid,75 and the police power, where no payment is required for a diminution in use,solongasthere“bea reasonableandsubstantialrelationbetween thethingactedonandtheend to be attained.”76

The court also held that Lucas was not applicable here because “the publichealthrationaleforimposingtherestrictions. . . to suppressthe

70 Id. at893. 71 Id. (citing Machipongo Land & Coal Co. v. Dep’t of Envtl. Prot., 799 A.2d 751, 754(Pa.2002)). 72 Friends, 227A.3dat893. 73 Id. at894 (quotingBalent v. City of Wilkes-Barre,669 A.2d 309,314(Pa.1995)). 74 See generally White’sAppeal, 134A.409(Pa.1926)(holdingthatthe properuse ofthe police powerdoesnotgrantcompensation) andBalent v. CityofWilkes-Barre, 669 A.2d 309 (Pa. 1995) (holding that the destruction of a building not up to code was aproperuseofthepolicepowerandthereforenocompensationwas required). 75 Friends, 227A.3dat894(quoting Balent, 669A.2dat314). 76 Id. at893-94 (quoting White, 134A.at411).

spread of the virus throughout the Commonwealth, is a stop-gap measureand,bydefinition,temporary,”77 and insteadreliedon Tahoe. In Tahoe,78 the United States Supreme Court held that when “regulations had only a temporary impact on petitioners’ fee interest, nocategoricaltakinghadoccurred,”79 and theCourtavoidedsettinga hardruleonwhentemporarytakingsbecamepermanenttakings80 and simply left it to the courts to determine when regulations are reasonableundertheprinciplesoffairnessandjustice.81

In the end, the Pennsylvania Supreme Court held that the executive order:

[R]esults in only a temporary loss of the use of [p]etitioners’ business premises, andthe [g]overnor’s reason for imposing said restrictions on the use of their property, namely to protect the lives and health of millions of Pennsylvania citizens, undoubtedly constitutes a classic example of the use of the police power to ‘protect the lives, health, morals, comfort, and general welfare of the people[.]’ . . . Moreover, the public health rationale for imposing the restrictions in the Executive Order, to suppress the spreadofthevirusthroughouttheCommonwealth, is a stop-gap measure and, by definition, temporary. WhilethedurationofCOVID-19asa naturaldisaster iscurrentlyunknown,thedevelopmentofa vaccineto prevent future outbreaks, the development of an immunity in individuals previously infected and the availability of widespread testing and contact tracing are all viewed as the basis for ending the COVID-19 disaster.82

Unlikethehistoricalcasesdiscussedabove,wherelocalofficialsacted with power greater than that granted by the cities, the court here identifies the scope of the governor’s ability to issue said order as it

77 Friends, 227A.3dat895. 78 Tahoe, 535U.S.302(2002). 79 Id. at342. 80 Id. at341. 81 Id. at342. 82 Friends, 227 A.3d at 896 (quoting Manigault v. Springs, 199 U.S. 473, 480 (1905)).

relates to a natural disaster,83 further clarifying that “[i]t is beyond dispute that the COVID-19 pandemic is unquestionably a catastrophe thatresultsin. . . hardship,suffering,orpossiblelossoflife.”84

B.Connecticut: Auracle Homes, LLC v. Lamont

Pennsylvania was not the only state to institute strict regulations to attempt to mitigate the effect of the Coronavirus. An action by the ConnecticutgovernortomitigatetheeffectsoftheCoronaviruswasto “limit the ability of residential landlords to initiate eviction proceedingsagainsttenantsandallowtenantstoapplysecuritydeposit funds to past due rents[.]”85 Although the landlords in Connecticut “concede that making it easier for people to stay home during a pandemic is a significant public purpose and that controlling and reducing the spread of COVID-19 is an important government objective,”86 they claim that this order is a taking of their property because it “forces the Plaintiffs and landlords like them to suffer the public burden of paying rent for the state’s non-paying tenants”87 and “effectively create[s] an actual, state-sponsored occupancy of the Plaintiffs’properties.”88

Althoughthelandlordsargueda physicaltaking,thecourtpointedout that the “Plaintiffs here voluntarily rented their land to residential tenants” and the executive order “merely regulate[s] Plaintiffs’ use of their land by regulating the relationship between landlord and tenant.”89 “The government effects a physical taking only where it requires the landowner to submit to the physical occupation of his land.”90 The “government has [not] required any physical invasion of the [plaintiffs’] property,”91 simply that the plaintiffs may not evict tenantsthattheyhavealreadyvoluntarilyrentedto.

83 Id. at885-88. 84 Id. at888(internal quotationsremoved). 85 AuracleHomes,LLCv.Lamont, 2020U.S.Dist.LEXIS141500at*2-3(D. Conn. Aug.7,2020). 86 Id. at*18(internal quotationsomitted). 87 Id. at*19(internal quotationsomitted). 88 Id. (internalquotations omitted). 89 Id. at *36(internalquotationsomitted)(citing Yee v. City of Escondido, Cal., 503 U.S. 519, 527-28(1992)). 90 Yee, 503U.S.at527. 91 Id. at528.

The court then also notes that the executive order, like the one in Pennsylvania, was not a regulatory taking because “[p]laintiffs continue to enjoy economic benefits of ownership and ‘can continue to accept rental payments from tenants not facing financial hardship, while also covering the cost of ownership by collecting security deposit funds from consenting tenants who have been affected by the pandemic.’”92

Ultimately, the court concludes that “[j]ust because Plaintiffs cannot deriveasmuch‘profitfromtheirproperties. . . as .. . undera marketbased system’ does not mean the loss of value equates to a taking”93 because “[t]he Executive Orders also do not prevent Plaintiffs from collecting or continuing to accrue unpaid rent, and importantly, nothing in the Executive Orders shall relieve a tenant of liability for unpaid rent or the obligation to comply with other terms of a rental agreementorstatutoryobligationspursuanttoConnecticutlaw.”94

C.Tennessee: TJM 64, Inc. v. Harris

In Tennessee, a coalition of bars and restaurants in Shelby County challenged their governor’s COVID-19 restrictions as an unlawful taking as well. The executive order here required all bars, restaurants, and clubs to shut down because of a spike in COVID-19 cases.95 Similar to the court in Friends, the court found that “Plaintiffs have notshownthattheirpropertieshavelost all economicvalue”despite:

[T]he testimony of the owners of these businesses indicat[ing] that Plaintiffs will likely be out of business by August or September . . . [and] that it would be financially impractical to operate curbside or takeout food and beverage services. Each owner testified that they would lose money if they offered suchservices.96

92 Id. at *37 (citing Elmsford Apt. Assocs., LLC v. Cuomo, 2020 U.S. Dist. LEXIS 115354 at *9 (S.D.N.Y.June29, 2020)). 93 Id. at 43 (quoting Federal Home Loan Mortg. Corp. v. New York State Div. of Hous. &Comty.Renewal, 83 F.3d45, 48 (2dCir.1996)). 94 Id. at 74 (internalquotationsomitted). 95 TJM 64,Inc. v.Harris,2020U.S.Dist. LEXIS134037at 3 (W.D.Tenn.July 29, 2020). 96 Id. at 16-17.

Furthermore,“[t]herecordisuncontrovertedthatPlaintiffswillsuffer devastatingeconomicinjuryiftheClosureOrdersremainineffect.”97

Althoughrecognizingtheharmtotheplaintiffs,thecourtstatedthatif theyenjoinedtheclosureorders,itwouldlikelycausesubstantialharm toother membersofthecommunityanddeferredthedecisionofwhat actions to take to the local health department.98 This deference to the judgment of local officials is similar to the cases in Section II, supra. There, health officials did what they thought was in the best public interest.Theyexceededthescopeoftheirauthority.Then,duetoa lack of regulatory takings, an undeveloped jurisprudence on physical takings, and the police powers, the property owners were without remedy. In modern times, we have regulatory takings as a means to protect private property from government over-regulation. However, when it comes to an emergency such as protecting public health, the courts hesitate to “compensate every individual or property owner whosepropertyusewasrestrictedforthepurposeofprotectingpublic health”99 undertheideait:

[E]xceed[s] the scope of the Takings Clause by “transforming the principle that all property in this country is held under the implied obligation that the owner’s use of it shall not be injurious to the community” to one that requires compensation wheneverthestateassertsitspowertoenforceit.100

This theme presented by the court operates on the idea that “legal scholars seem ready to cede authority to medical experts who will supposedly exercise their power in a neutral, scientific, and objective manner. History, however, has demonstrated repeatedly that this has notalways—orevenusually—beenthecase.”101

97 Id. at 23. 98 Id. at 23-24. 99 TJM 64, Inc., 2020U.S.Dist.LEXIS at 22 (emphasisinoriginal). 100 Id. (quoting KeystoneBituminousCoalAss’nv.DeBenedictis,480U.S.470,492 (1987)). 101 Batlan, supra at note 3, at 60 (citing Lawrence O. Gostin, Pandemic Influenza: Public Health Preparedness for the Next Global Health Emergency, 32 J.L. Med. & Ethics, 565,571(2004)).