Regulatory Takings Law Research Articles

The Badger State's Take on Regulatory Takings: Murr and Wisconsin

This comment examines the current state of the regulatory takings doctrine at both the federal and state level, analyzes the Supreme Court’s decision in Murr v. Wisconsin, and discusses the need to set up structural protections to preserve the rights of private property owners. Specifically, Part II discusses the fascinating origins and background of the Takings Clause and the regulatory takings doctrine. Part III examines the regulatory takings doctrine as it was structured when the Supreme Court decided Murr. Part IV provides background analysis of the regulatory framework and Wisconsin regulatory takings law that undergirds Murr. Part V describes the Murr’s factual background, discusses the parties’ arguments, and analyzes the Supreme Court’s opinion. Part VI analyzes the general reaction to this landmark decision, evaluates Wisconsin’s Homeowners’ Bill of Rights, and provides direction for Wisconsin courts in their handling of the post-Murr regulatory takings doctrine. Part VII concludes with a brief overview and presents two important takeaways from Murr.

Is Land Special? The Unjustified Preference for Landownership in Regulatory Takings Law

Is Land Special? The Unjustified Preference for Landownership in Regulatory Takings Law

Municipal Prohibition of Fracking and Gas Exploration and Extraction Generally … Could It Be a Taking?

New York has found itself in the perfect storm for the rising of a familiar foundational environmental law, the takings clause of the Fifth Amendment of the U.S. Constitution. Combining the gas-rich Marcellus and Utica Shales with the advent of a relatively new natural gas drilling technique and strong community opposition, New York municipalities have increasingly adopted zoning ordinances prohibiting generally the exploration and extraction of natural gas. Using the regulatory takings law and three potential property right scenarios, this article argues that a taking could arise where ownership of surface and subsurface rights are distinct and separate.

Deciphering and Extrapolating: Searching for Sense in Penn Central

The Supreme Court has labeled Penn Central Transportation Co. v. City of New York the polestar of its regulatory takings doctrine. Yet Penn Central’s three-part balancing test has been widely criticized as offering nothing more than an amorphous, ad hoc framework that provides little guidance for litigants or courts reviewing takings claims. In the absence of a well defined and predictable takings doctrine, the lower courts are left grasping to make sense of Penn Central, and to extrapolate an intelligible standard from its framework. In this article, we examine the origins and interpretations of Penn Central, and identify some of the difficulties raised in its application. We explore some of the latest issues the lower courts have been struggling with in fleshing out the doctrine, which may warrant a grant of certiorari if the Roberts Court is willing to bring clarity and cohesion to regulatory takings law.

Legal incoherence and the extra‐constitutional law of regulatory takings

PurposeThe purpose of this paper is to examine Canadian law governing “regulatory takings” – the state's interference in a landowner's use and enjoyment of his property as a consequence of regulation. It considers whether the way that the law has developed in this area poses a risk of “legal incoherence” – a contradiction in the law itself, either between two discrete areas of law (“external incoherence”) or within a single discrete area of law (“internal incoherence”).Design/methodology/approachThis paper draws upon and expands a conception of coherence articulated by past commentators and applies it to reported judgments comprising the Canadian law in this area.FindingsThe extra‐constitutional nature of restrictions on the state's power to take, and a lack of doctrinal rigour are shown to have allowed the risk of incoherence to materialize in Canada by creating a distorted body of law. The modest constraints which Canadian law imposes upon regulatory takings fail to cohere to rights conferred upon landowners under various treaties and declarations to which Canada has subscribed. The law is therefore incoherent in an external sense. Recent jurisprudence also reveals an internal incoherence as the law purports to recognize a distinction between an expropriation and a regulatory taking, whilst simultaneously requiring that a regulatory taking demonstrate a quality unique to an expropriation.Practical implicationsThis paper clarifies the distinctions between an expropriation and a regulatory taking, explains the Canadian law governing both, and illustrates the tenuous state in Canada of public authority liability for restricting private use and enjoyment of land.Originality/valueThe implications for domestic law of international obligations respecting regulatory takings are highlighted. This paper's reference point of coherence offers a novel standpoint for assessing the quality of judge‐made regulatory takings law.

The Timing of Facial Challenges

There appears to be considerable confusion among the bar and on the bench as to when a plaintiff may or may not file a lawsuit challenging the facial constitutionality of a law. Many practitioners and judges have come to the erroneous conclusion that facial challenges to the validity of laws must be filed within a certain time frame after the challenged law is enacted, or risk being barred by the statute of limitations. This error - which springs largely from a confusion with regulatory takings law - has not only led courts to dismiss valid facial arguments as timely, but has also led them to take the mistaken position that statutes of limitations do not apply at all to First Amendment cases, or to misconstrue past cases in which laws were found facially invalid as being as-applied challenges. Worst of all, many practitioners are under the misimpression that a facial challenge is time barred one or two years after the challenged statute is enacted. This is not correct.This article attempts to separate out the different conceptual categories whose overlap has led to such mistakes. In brief, the facial/as-applied distinction has nothing to do with the accrual or the ripeness of a cause of action. Because the accrual date of facial and as-applied challenges are identical (with some specific exceptions), mere enactment is rarely if ever the moment when a facial challenge accrues. The distinction between facial and as-applied challenges is a way of characterizing the merits of a constitutional challenge, but it has no relation to jurisdictional questions such as accrual, ripeness, or statutes of limitations. A plaintiff may challenge a law's validity at any time with the limitations period after that law has injured her, whether she chooses to argue that the law is facially unconstitutional or only unconstitutional as applied in her case.

Hadacheck v. Sebastian

This short encyclopedia entry discusses Hadacheck v. Sebastian and its relevance to contemporary regulatory takings jurisprudence. The entry describes the Hadacheck litigation and the treatment of Hadacheck in the Supreme Court's more recent regulatory takings cases. It notes four reasons why caution should be used before applying Hadacheck to contemporary regulatory takings issues: (1) the case is ambiguous about the diminution in value actually suffered by the plaintiff; (2) Hadacheck was decided before Pennsylvania Coal v. Mahon, which arguably marked a shift in regulatory takings law; (3) the Court's holding in Lucas v. South Carolina Coastal Council that a total diminution in value is a per se taking undercuts one possible reading of Hadacheck; and (4) that the Court's recent decision in Lingle v. Chevron suggests that the substantive due process analysis in early cases like Hadacheck should not be a part of the regulatory takings analysis.

Instead of a Doctrine: Penn Central as the Supreme Court's Retreat from the Rule of Law

When the Supreme Court handed down its decision in Penn Central Transportation Co. v. City of New York, it had not decided a regulatory takings case in over half a century. Penn Central's tortured and opaque analysis did little to move takings jurisprudence beyond Justice Holmes' cryptic 1922 maxim, if regulation goes too far it will be recognized as a taking. The Court did little to elaborate on the meaning or weight of Penn Central's vague criteria - the nature of the government action, the economic impact of the regulation, or the owner's distinct investment-backed expectations - preferring instead to enunciate new bright line rules in Loretto v. Teleprompter Manhattan CATV Corp. and Lucas v. South Carolina Coastal Council. It even appeared to abandon Penn Central's terminology altogether in Agins v. City of Tiburon. But in the waning years of the Rehnquist Court, most of the newer formulations of takings doctrine were undermined, scaled back, or abandoned altogether in decisions like Tahoe-Sierra Preservation Council, v. Tahoe Regional Planning Agency and Lingle v. Chevron, USA, Inc. It now falls to the Roberts Court to go back three decades and begin fleshing out the meaning of Penn Central as the Court's polestar of regulatory takings law for the 21st century.

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

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.

Why Rent Control Is Still a Regulatory Taking

The Supreme Court has repeatedly declared that land-use regulations that fail to substantially advance legitimate state interests violate the Takings Clause of the Fifth Amendment. This standard seems readily applicable to rent control, a policy that has been shown to exacerbate the problems is intended to remedy, and to impose social heavy costs that would not otherwise exist. Nevertheless, the California Supreme Court has declared that it will not strike down rent control under the substantial advancement standard, nor will it apply a heightened level of scrutiny to such regulations. In response to these rulings, California rental property owners have taken their constitutional claims to federal court. In a series of decisions culminating in Cashman v. City of Cotati, the Ninth Circuit has found rent control laws to violate the Takings Clause under a substantial advancement standard. One of these cases, Lingle v. Chevron, USA, was accepted for review by the United States Supreme Court in October, 2004. The outcome of this case will have major ramifications for rent control and regulatory takings law in the 21st century.

Making Sense of <em>Penn Central</em>

[W]e have frequently observed that whether a restriction will be rendered invalid by government's failure to pay for any losses proximately caused by it depends largely upon circumstances [in that] case.--Penn Central Transportation Co. v. City of New York, 438 U.S. 104, 124 (1978). [A] 'totality of circumstances' analysis masks intellectual bankruptcy.--Thomas Merrill, Economics of Public Use, 72 Cornell L. Rev. 61, 92 (1986). INTRODUCTION In Penn Central Transportation Co. v. City of New York, (2) Supreme Court famously observed that it had been unable to develop any 'set formula' for determining when 'justice and fairness' require payment under Takings Clause, and that it was therefore compelled to rely on ad hoc, factual inquiries. (3) In an apparent effort to begin to give some content to regulatory takings analysis, Court three factors with particular significance in a takings case: (1) economic impact of government action, (2) extent to which action interferes with distinct investment-backed expectations, and (3) character of action. (4) Yet, over following twenty-five years, Court has provided little guidance on meaning and proper application of these three factors, (5) perpetuating essentially ad hoc approach to takings analysis (6) and contributing to widespread view that regulatory takings is an especially confused field of law. (7) The Court's failure to come to grips with meaning of Penn Central is especially striking in view of substantial progress Court has made recently in resolving other questions about regulatory takings doctrine. (8) The next thing--perhaps last big thing--in regulatory takings law will be resolving meaning of Penn Central factors. At one point, Court appeared poised to jettison Penn Central analysis altogether. During 1980's and 1990's, as an antidote to chronic vagueness of Penn Central framework, Court attempted to develop a set of alternative, bright line tests. (9) In Lucas v. South Carolina Coastal Council, (10) Court ruled that a regulation that denies owner economically viable use of private property represents a per se taking. And in Loretto v. Teleprompter Manhattan CATV Corp., (11) Court said that a regulation resulting in a permanent physical occupation of private property also represents a per se taking. (12) From perspective of property rights advocates, this approach appeared to lead reliably to findings of takings liability, albeit in narrowly defined circumstances. Even from perspective of defenders of government regulatory authority, this approach had potential benefit of identifying actions that would be safely immune from takings liability--assuming these per se tests came to define not only grounds, but also outer limits, of takings liability. (13) The effort to construct a more rule-based takings doctrine has plainly faltered, returning Penn Central to forefront. In recent years, Court has given Loretto per se rule a narrow interpretation, confining test to a relatively rare, easily identified set of actions. (14) The Court has given Lucas per se rule an even narrower reading, characterizing Lucas test as applying only to the complete elimination of a property's value. (15) Few if any regulations have such a drastic effect on property value, meaning that Lucas has been converted to a precedent of largely symbolic significance. At same time, Court's most recent regulatory takings decisions have explicitly reasserted centrality of Penn Central framework. For example, in Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency, (16) Court said that [o]ur polestar ... remains principles set forth in Penn Central itself, which call for a careful examination and weighing of all relevant circumstances. …

The Impact of <em>Tahoe-Sierra</em> on Temporary Regulatory Takings Law

I. INTRODUCTION This paper explores the development of regulatory law, the Supreme Court's latest opinion--Tahoe-Sierra Preservation Council v. Tahoe Regional Planning Agency (2)--and the impact of Tahoe-Sierra on subsequent lower court decisions. As will be seen, since Tahoe-Sierra rejected the argument that building moratoria are per se takings, its greatest impact has been on cases challenging moratoria. Its impact on challenges, however, has extended far beyond moratoria because essential elements of the Tahoe-Sierra holding--such as its affirmation of the parcel as a whole rule--apply to other types of restrictions on the use of property. II. FIRST ENGLISH: TEMPORARY TAKINGS COME OF AGE The concept of temporary takings hit the big time with the United States Supreme Court's decision in First English Evangelical Lutheran Church v. County of Los Angeles. (3) Prior to that opinion, some state courts, such as those in California, New York and Pennsylvania, interpreted the federal and their own state constitutions as not requiring compensation government rescinded a regulation after a court determined that it was a taking. (4) Inverse condemnation damages were only available where, after a court determined that the regulation was excessive, the government nevertheless decided to maintain the regulation. (5) First English, however, brought about a sea change by holding that compensation is the appropriate remedy for regulatory takings. As the Court explained, where the government's activities have already worked a taking of all use of property, no subsequent action by the government can relieve it of the duty to provide compensation for the period during which the taking was effective. (6) The practical impact of First English has been profound. Following First English, planners operate under the fear that a court may find that their decision constituted a taking requiring the payment of compensation, even if the decision is withdrawn. (7) Although First English held that compensation is required even government reverses an action that was held to be a taking, the Court left open the question of how to determine whether there was a taking in the first place. The Court faced that question in Tahoe-Sierra. To best understand the Tahoe-Sierra decision, and its impact on law, it will be helpful to briefly explore the various types of takings, as well as key tests. III. TYPES OF TEMPORARY REGULATORY TAKINGS Temporary regulatory can be separated into several categories, each of which tends to receive a different treatment by the courts. We will note the categories here; in the last section of this paper, we will explore the different treatments given to these various types of in light of Tahoe-Sierra. 1. Physical Takings Government usually physically takes property by either formally acquiring the property through an eminent domain process, or by informally taking property through a physical action (such as building a damn that floods private property). As indicated in Loretto v. Teleprompter Manhattan CATV Corp., (8) however, government can also use the regulatory process to physically take property. In Loretto, for example, the State of New York adopted a statute that permitted cable companies to install cables and switch boxes in apartment buildings without the building owner's permission. Other examples of physical appropriations through the use of the regulatory process are seen in Nollan v. California Coastal Commission, (9) and Dolan v. City of Tigard, (10) public entities issued building permits conditioned on the owners dedicating property to public uses. 2. Regulations of Use a. Prospectively Certain land use restrictions are from the outset intended to be temporary. …

Takings, Regulations, and Natural Property Rights

According to most legal history and takings scholarship, the whole notion of a regulatory taking was a contradiction in terms until Justice Oliver Wendell Holmes invented it in the 1922 Supreme Court decision Pennsylvania Coal v. Mahon. This Article calls that view into question. The Article reexamines a line of constitutional eminent-domain decisions decided in the state courts over the nineteenth century. These decisions are often read to suggest that regulations could never trigger takings protections unless they physically invaded owners' land. In fact, however, they drew on Founding Era ideas about the of natural rights to generate a body of what modern lawyers would call a body of law. In these decisions, a regulation was a positive law that secured to the owner her natural rights. Such a tried to order how different species of were used in close quarters, for the purpose of facilitating the free use of generally. If a law did not regulate consistent with principles of natural it constituted an invasion of right, and took some of the use rights to which owners were entitled as part of their private property for takings purposes. The Article has three main lessons for contemporary takings and scholarship. First, regulatory-takings law does not need to be as incoherent as it is widely assumed to be. If modern federal and state regulatory-takings doctrines are messy now, it is not because regulatory-takings law is inherently messy. Rather, modern courts must not mind the messiness, most likely because they prefer another substantive theory of over natural-right theory. Second, this natural-right theory provides a useful counterpoint to most modern law and scholarship, which tend to justify to rights and in terms of utilitarian principles. The nineteenth-century state cases, by contrast, show one way in which the law may ground rights and in terms of concepts of personhood and freedom. Finally, the natural-right distinction between regulations and invasions of right offers some evidence, though not dispositive evidence, as to what the federal Takings Clause may have meant when originally drafted and ratified.

Public Interest is Vindicated:City of Monterey v. Del Monte Dunes

Abstract In the late 1980s, the U.S. Supreme Court escalated its role in regulatory takings law, and decided a number of cases favor-able to landowners. After the Court accepted certiorari in the caseof CityofMonterey v. Del Monte Dunesat Monterey, Ltd. in March 1998, 523 U.S. 1045, speculation began to build in the planning profession that a devastating decision in favor of the landowners would decimate comprehensive planning. However, the Court's ruling on May 24, 1999, 119 S. Ct. 1624 (1999), 51 ZD 131, although a win for the landowner, did not result in any major loss. In this article, we will explain whythis ruling represents some good news for planning advo-cates and just what else it means for tomorrow's land-use planning and regulation.

Legislative Expansion of Fifth Amendment "Takings"? A Discussion of the Regulatory Takings Law and Proposed Compensation Legislation

I. INTRODUCTION Until now, Congress has been content to let the judiciary draw the line takings by deciding when the government must pay compensation to private property owners. However, some members of the 104th Congress proposed new legislation which would significantly change the current federal approach to regulatory takings.(1) These legislative proposals sought to replace much of the case law interpreting the Fifth Amendment Takings Clause. Despite judicial decisions favoring private property owners in the last few years, many in Congress believe that a clear standard regulatory takings is needed -- a standard which will better protect private property rights in the face of government regulation by reducing the amount of property value diminution required before the government must compensate private property owners. These members believe expanded protection of property rights is consistent with the intentions behind the Fifth Amendment Takings Clause. At the heart of the conflict is the tension between individual rights and the interests of the public, or, as some would say, the will of the majority. There are no easy answers to this timeless dilemma. These recent legislative proposals reflect a general hostility toward government regulations, especially those designed to protect the environment and natural resources. Opponents of the proposals are concerned that the proposals would, if enacted, create a cost deterrent to needed regulations.(2) Proponents argue that needed environmental regulations would still be enforced, but would no longer be on the backs of particular individuals. The government--we the people--should bear the costs when society as a whole benefits from the use of private land.(3) Proponents also argue that the costs would not be prohibitive if government agencies act efficiently.(4) By inference, acting efficiently would mean foregoing regulations necessary for the protection of public welfare and safety. The only other option under the proposed legislation would be to compensate landowners, because the proposals make compensation mandatory for regulations which affect property values even minimally. However, both the House and the Senate proposals found it unnecessary to allocate additional funds for landowner compensation required by the proposals. Instead, the money must come from an agency's existing budget. This forces government agencies to decide between bearing the expense of certain regulations or foregoing their promulgation altogether. The view that government regulation is overburdensome, and interferes with the landowner's ability to prosper is a familiar theme. This theme to some extent finds its roots in the libertarian ideology which advocates the limited role of government. In turn, the roots of the libertarian ideology may be found to some extent in the classical philosophy of property espoused by John Locke in the late 17th century.(5) Locke contended that property rights existed before government and therefore government's role is limited to that of protector of preexisting individual rights which are inherent in man.(6) House of Representatives 925 and Senate 605, both of the 104th Congress, reflect Locke's philosophy of property and, in turn, support a more protective and expansive view of individual property rights. The legislation adopts only the most libertarian concepts from current case law and fails to acknowledge the principles developed to address the necessary balance between public interests and private property rights. While proponents of this legislation seem to believe the libertarian ideology as stated by Locke was the inspiration behind the Fifth Amendment, contrary arguments exist. The proposals suggest an overly broad and ineffective solution to a problem which requires a balancing of the public interest, including protection of the environment, in conjunction with the protection of private property rights. …