There are two main rationales supporting the Pennsylvania Commonwealth Court’s opinion in Pileggi v. Newton Township, No. 1279 CD 2019 (Jan. 5, 2021), holding that the Township’s denial of a permit was not a taking. The first, in our view, is simply wrong. The second is perhaps more supportable, but still troubling.
This is a case about a gong. No, not the brass instrument gong, but the other type. Pennsylvania law requires the Township to have a waste plan. Under the plan, a landowner can make proposals for how she can develop in accordance with the plan, or if she can show that the plan doesn’t meet the property’s needs she may submit a private request to the state’s Department of Environmental Protection, or in some circumstances an owner may request a permit to build a sewage disposal facility on site.
Starting back in 2003, the property owners tried pretty hard to get the Township to approve. Start on page 5 of the slip opinion to understand the efforts they made. In short, they submitted applications, tried the various ways under the law to get approvals, and tried and tried again. They even tried the admin objection route. To no avail. “The Township rejected both the module and request for a revision.” Slip op. at 7. Apparently tired of trying, “[r]ather than file an appeal to this Court, Appellants commenced the present inverse condemnation action on August 29, 2019.” Slip op. at 7. Yes, you read that right: they tried for 16 years.
The trial court dismissed and the appellate court affirmed. The court’s first rationale is the one that particularly bothered us. It held there was no inverse condemnation because when it regulated gongs, the Township was exercising its police powers and not its eminent domain powers. To that we say “no s**t!”- if the Township were exercising its eminent domain power, then the owner would not have to sue for a de facto taking, would it? Isn’t the entire inverse/takings doctrine premised on the idea that an exercise of government power other than the eminent domain power results in a taking?
The focus in inverse and takings cases is supposed to be on the impact of an otherwise valid exercise of governmental power on the uses of the property, not on the power the government was exercising, right? If “hey, this is a police power exercise and thus not a taking” vibe is the test, then when would a court ever find a taking?
We suppose we can’t really fault an intermediate appellate court for going down this road, because the roadmap was established by the Pennsylvania Supreme Court, and the court here seemed to just be applying existing (bad) precedent that results in courts examining the wrong thing. Instead of looking at the remaining uses of the property, the analysis instead focuses on the kind of behavior the government may regulate. The court was able to distinguish an earlier case, for example, by concluding that the regulation in that case was about “aesthetics,” and not therefore a true exercise of the police power. See slip op. at 14-15. Gong regulation is not about aesthetics. (But last time we checked, regulation of aesthetics generally may be part of the police power.)
This first rationale holds no water at all with us; but there it is. Okay, rant over.
On to the alternative rationale: the court concluded that the Township’s permission for a landowner to get rid of sewage isn’t a property right worthy of constitutional protection, but is a governmental benefit — an “inchoate interest” in the conferral of an entitlement. Slip op. at 17. Since the Township might have granted the owners’ request, it was not a taking to deny it. Even repeatedly. Because the deprivation of use of the land was not a Lucas 100% wipeout. That, to us, seems to point to a Penn Central analysis, but the opinion didn’t even mention that one. Who knows, maybe the owners didn’t raise it, but its absence does stick out.