Posted by: Patricia Salkin | August 27, 2014

TN Supreme Court Holds That the State Constitution’s Section Governing Taking of Property Encompasses Regulatory Takings to the Same Extent as the Takings Clause of the Fifth Amendment

Mack and Leann Phillips own approximately 15.62 acres in Montgomery County, Tennessee. Their request to subdivide the property was denied, and brought an action for a regulatory taking under state constitution, seeking compensation under the inverse condemnation statute. The Circuit Court denied county’s motion to dismiss, and the Court of Appeals, affirmed in part, reversed in part, and remanded. Landowners applied for permission to appeal.

In denying the plat, the Planning Board cited as its reason that Article V, General Provisions, Item Five states: “The Planning Commission shall not approve the subdivision of land if from adequate investigations conducted by all agencies concerned it has been determined that in the best interest of the public the site is not suitable for platting and development purposes of the kind proposed.” The Property Owners argue that the denial of their subdivision plat constitutes a regulatory taking for which article I, section 21 of the Tennessee Constitution requires compensation pursuant to the inverse condemnation statute, Tennessee Code Annotated section 29–16–123. The court held that given the textual similarities between the federal Takings Clause and article I, section 21 of the Tennessee Constitution, the lack of any historical basis indicating that it should be viewed as less protective of private property rights than the federal Takings Clause, and the widespread adoption of federal regulatory takings jurisprudence by other state courts, article I, section 21 of the Tennessee Constitution encompasses regulatory takings to the same extent as the Takings Clause of the Fifth Amendment to the United States Constitution. As a result of this, the court concluded that, taking the allegations in the light most favorable to the Property Owners, the complaint was sufficient to state a regulatory takings claim.

Accordingly, the court reversed the Court of Appeals’ judgment and dismissed the Property Owners’ regulatory taking claim, and affirmed that portion of the Court of Appeals’ judgment remanding this matter to the trial court for further proceedings.

Phillips v Montgomery County, 2014 WL 4056698 (TN 8/18/2014)

The opinion can be accessed at:

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