Regulatory Takings Involving Property Rights
| Publication year | 1994 |
| Pages | 1065 |
| Citation | Vol. 23 No. 5 Pg. 1065 |
1994, May, Pg. 1065. Regulatory Takings Involving Property Rights
The U.S. Supreme Court, in 1992, decided to review three economic rights cases, two of which involved takings claims. The assumption in these three cases was that changes in the composition of the Court might lead to significant modifications in takings law. However, an examination of the two takings cases clearly indicates that the Court refused to deviate from its long-standing rulings involving property rights affected through regulatory takings.
Knowledge of current trends in the area of regulatory takings is important for administrative law practitioners who frequently appear before local government bodies such as zoning boards and commissions. Regulatory takings is an area of regulatory law that is in the state of flux. Knowledge of developments in this area will assist practitioners in setting forth strategies to be used when property is "taken" by governmental agencies.
To understand the Takings Clause of the Fifth Amendment ("Clause") and the various interpretations forged by the U.S. Supreme Court, it is necessary to undertake a brief review of the two judicial schools of thought which have emerged in this area.
The Clause provides: "nor shall private property be taken for public use, without just compensation." The Supreme Court cases interpreting the Clause fall within two distinct categories. In the first category, where the government authorizes a physical occupation of property (or actually takes title), the Clause generally requires compensation.(fn1) The element of required acquiescence is at the heart of the concept of occupation.(fn2) This type of action is referred to as a per se taking.
However, where the government merely regulates the use of the property, compensation is required only if considerations such as the purpose of the regulation or the extent to which it deprives the owner of the economic use of the property suggest that the regulation or law has unfairly singled out the property owner to bear a burden that should be borne by the public as a whole.(fn3) This avenue entails complex factual assessments of the purpose and economic effects of government action.
The Supreme Court recently summarized its position for determining when a regulation constitutes a taking:
[W]e have eschewed the development of any set formula for identifying a "taking" ... and have relied instead on ad hoc factual inquiries into the circumstance of each particular case.... To aid in this determination, however, we have identified three factors which have "particular significance": (1) The economic impact of the regulation on the claimant; (2) the extent to which the regulation has interfered with distinct investment backed expectations; and (3) the character of government action.(fn4)
Using this analysis, the Supreme Court decided the two takings cases discussed below.
The first case was Yee v. City of Escon-dido,(fn5) where the Court upheld a control statute regulating mobile homes. The local statute prohibited the landlord from increasing the rent whenever a mobile home was sold. The Supreme Court rejected the argument that the regulatory restriction constituted a physical appropriation of the landlord's property which was a per se taking,(fn6) applying its consistently held rule that statutes regulating the economic relation of landlords and tenants are not per se takings.(fn7) Instead, the Court held that the city ordinance had to be analyzed under ordinary regulatory takings standards identified above.(fn8) The regulatory taking issue had not been preserved by the plaintiff in Yee, and therefore the Court refused to decide the case on that issue.
The second Supreme Court case involving regulatory takings affecting property rights was Lucas v. South Carolina Coastal Council.(fn9) In Lucas, the Court faced a relatively extreme restriction on a landowner's use of property---...
To continue reading
Request your trial