Just a Flesh Wound? The Impact of Lingle v. Chevron on Regulatory Takings Law

Abstract

In Lingle v. Chevron USA, Inc., the Supreme Court reversed 25 years of precedent and held that, contra the doctrine of Agins v. City of Tiburon, a land use regulation that fails to substantially advance legitimate state interests does not violate the Takings Clause of the Fifth Amendment. Instead (with limited exceptions), failure of the test sets out a due process violation, resulting in the invalidation of the offending measure. Although Lingle has been portrayed as a major setback for the constitutional rights of property owners, this article contends that the actual impact of the decision will be minor. By affirming the availability of a due process remedy for substantial advancement claims, the Lingle Court has opened a new avenue for relief in the Ninth Circuit, which has barred such complaints for the past decade. Moreover, where property owners can show significant economic injury from the application of such regulations, allegations that previously would have supported a substantial advancement claim will continue to set out a Takings Clause violation under the character of the state action prong of Penn Central Transportation Co. v. City of New York.