Regulatory Takings Since the Supreme Court Trilogy, Continued

Publication year1992
21 Colo.Law. 59
Colorado Lawyer

1992, January, Pg. 59. Regulatory Takings Since the Supreme Court Trilogy, Continued


Vol. 21, No. 1, Pg. 59

Regulatory Takings Since the Supreme Court Trilogy, Continued

by Thomas Fenton Smith

The September 1991 issue of The Colorado Lawyer contained an article addressing the fundamental attributes of regulatory takings.(fn1) The article detailed the parameters within which such claims have been litigated since the 1987 U.S. Supreme Court "trilogy" of land use decisions: Keystone Bituminous Coal Assn. v. De Benedictis, First English Evangelical Lutheran Church v. County of Los Angeles and Nollan v. California Coastal Commission.(fn2) This article discusses defenses to regulatory takings claims, as well as the application of the Fifth Amendment takings clause in particular types of cases.

Res Judicata and Collateral Estoppel

It is now the law in Colorado that most local government decisions on site-specific land use applications for the development of private property are quasi-judicial in nature.(fn3) As such, these determinations may be entitled to preclusive effect in federal and state courts when they become final, as, for example, where there is no appeal pursuant to Colorado Rules of Civil Procedure ("C.R.C.P.") Rule 106(a)(4). Accordingly, a subsequent action based on a claim of a regulatory taking may be barred by the doctrines of res judicata or collateral estoppel.(fn4)

This is the precise holding of the California courts, and it seems to accord with judicial policies of finality and comity.(fn5) Requiring aggrieved landowners in Colorado to join all their claims in one state court action pursuant to the thirty-day time limitation of C.R.C.P. Rule 106(b) would promptly alert the government to potential liability and prevent the unnecessary accrual of damages. It also would prevent the federal courts from acting as "zoning boards of appeals" in cases that are subject to resolution in the state courts. However, the rule is not applied uniformly.(fn6)

The Ripeness Doctrine

A substantial number of the reported takings cases have resulted in dismissal pursuant to C.R.C.P. Rules 12 and 56, based on the plaintiffs' failure to satisfy the requirements of the U.S. Supreme Court's "ripeness" doctrine. The Court has held that a takings claim is not ripe for review on its merits until the property owner has (1) obtained a final determination of the type and intensity of development that will be allowed and (2) been denied compensation by the state courts through eminent domain proceedings.(fn7)

In some cases, the ripeness doctrine has been held inapplicable to facial takings claims because the basis for such a challenge is that the mere enactment of the legislation constitutes a taking.(fn8) However, courts are reluctant to consider "as applied" challenges until they know what use is permitted on the property so they can evaluate the extent of the taking.(fn9) Accordingly, at least one meaningful application is required and a variance must be sought.(fn10) Multiple applications also may be necessary.

However, there is a "futility exception" to the ripeness doctrine,(fn11) which holds that a property owner need not obtain a final administrative determination if it would be futile to do so. This exception may apply where (1) there is excessive delay, (2) other actions of the defendant clearly demonstrate the defendant's intentions with respect to the property or (3) a moratorium on development has been adopted.(fn12) Finally, whether the Colorado courts require denial of compensation through eminent domain proceedings is now open to question.(fn13)

Facial Challenges

A regulatory taking occurs where the challenged action does not substantially advance a legitimate state interest ("legitimacy test") or denies the landowner all economically viable use of the land ("economic impact test").(fn14) As the U.S.Supreme Court noted...

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