Articles

REGULATION OF SUBSURFACE WATER IS NOT A "TAKING"

George M. Aman, III

The Supreme Court of the United States has recently decided a case that directs attention again to the question of what constitutes a prohibited "taking" under the U.S. Constitution. Tahoe Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency, 2002 W.L. 654431 decided April 23, 2002. In a 6 to 3 decision, the Court upheld the validity of development moratoria against the attack that they constituted a categorical or per se "taking" under the Fifth Amendment. This decision may aid local governments in holding up land development for a reasonable time while they are engaged in revising their zoning regulations, provided there is statutory authorization for such action.

The question of what constitutes a "taking" is now pending before the Commonwealth Court of Pennsylvania in a slightly different type of case. Citizens for Personal Water Rights v. Borough of Hughesville, Docket No. 276 CD 2002. In this case, property owners asserted that a mandatory connection ordinance enacted by the Borough of Hughesville requiring them to disconnect their wells and utilize the available public water system, constituted a "taking" of their right to use subsurface waters under their property. The Common Pleas Court of Lycoming County ruled in favor of the Borough, but the property owners have appealed to the Commonwealth Court.

Interestingly, the constitutional validity of a mandatory connection ordinance was upheld by the United States Supreme Court many years ago. Hutchinson v. City of Valdosta, 227 U.S. 303, 33 S.Ct. 290 (1913). In that decision, the Court held that a municipal requirement for connection to a sewer system was a valid exercise of the police power. That decision has been cited favorably over 50 times in the intervening years, and most recently was relied upon by the Third Circuit to affirm the validity of a comparable ordinance requiring connection to a water system in New Jersey. Stern v. Halligan, 158 F3rd. 729 (3^rd Cir. 1998). There is an even more recent appellate decision in the 7^th Circuit also involving a water system, this one in Wisconsin. Durigan v. Sanitary District No. 4, Town of Brookfield, 5 Fed. Appx. 492, 2001 W.L. 195033 (7th Cir. 2001).

The Pennsylvania decisions have generally upheld these ordinances against various types of attack, including the constitutional question. Schuylkill Haven Borough v. Bolton, 190 Pa. Super. Ct. 157, 153 A2d. 504 (1959).

There may be an analogy between the taking of a portion of the property rights of an owner by enacting a mandatory connection ordinance, and the temporary taking of development rights involved in the Tahoe Sierra decision. The majority opinion in the Tahoe Sierra decision discussed the "partial taking" cases. It said that a parcel could not be divided into discrete segments, but the entire property must be viewed together. This is the basis for upholding zoning regulations as such as those imposing set-back restrictions. 2002 W.L. 654431, Page 13, citing Gorieb v. Fox, 247 U.S. 603, 47 S.Ct. 675 (1927).

In the Tahoe Sierra opinion, the Court also noted that the property owners had relied solely on a theory of a physical taking, and indicated that some of the owners might have been successful with respect to individual properties, if they had based their argument on the so-called balancing test for regulatory takings, which was used in the famous Penn Central case. Tahoe Sierra, 2002 W.L. 654431 at p. 15. In analyzing mandatory connection ordinances using the balancing test, an important factor is that municipalities are making available a public water or sewer service, as a substitute for discontinuing the private facilities. Some of the judicial opinions have stated that the slight resulting economic loss under those circumstances is clearly outweighed by the public health and environmental benefits derived from having a single central system.

George M. Aman III, was the co-author of an Amicus Brief filed in the Hughesville case on behalf of the Pennsylvania State Association of Boroughs.