An empirical study of implicit takings.

• Author: Krier, James E.
• Position: II. State Implementation of Supreme Court Doctrine C. Findings 2. Regulatory Takings Claims That Fall Outside Categorical Rules b. Disparities Among Regulatory Takings Claims through III. A Theoretical Perspective, with footnotes, p. 66-95

2. Disparities Among Regulatory Takings Claims

   Although the aggregate success rate in regulatory takings claims is far lower than the success rate for every other category, (125) a more finely grained analysis does reveal differences among regulatory takings cases. When we identified the primary claim in each regulatory takings claim and categorized the cases by type of claim, we discovered potentially significant differences, as illustrated in Table 4. The table lists the nine most common subcategories of regulatory takings claims. We have excluded claims dismissed for ripeness from Table 4, because opinions dismissing claims on ripeness grounds often do not provide enough information to reveal the gist of the underlying claim. As a result, the success rates in Table 4 should not be compared directly to success rates in Table 2. If ripeness cases were included, the success rates listed in Table 4 would be even lower.

   Table 4 demonstrates that diminution of value, taken alone, virtually never suffices to support a regulatory takings claim. (126) Successful takings claims almost always involve some interference with an existing use. As Table 4 shows, of the four categories with the highest percentage of successful takings claims, three involve interference with existing uses. Only moratoria do not, and the success rate of those claims is overstated because 3 of the 5 "taking" determinations in that category were reversed or vacated on appeal. Although tenant protection cases do generally involve interference with an existing use, the success rate in those cases is also overstated because 9 out of the 20 "taking" determinations (45 percent) were reversed on appeal. When those reversals are factored into the analysis, the two categories that generated the most successful claims were prohibitions on nonconforming uses and requirements that landowners spend money out-of-pocket to continue uses that had previously been permitted without those out-of-pocket expenditures.

   3. Exactions

      State courts cited Nollan (127) and Dolan (128) about two-thirds of the time, and in any event appeared to be aware of their mandates. (129) There was a difference of opinion in the state decisions regarding whether conditions requiring landowners to pay money fell within the scope of Nollan and Dolan, (130) an issue the Court recently resolved in Koontz, which held that monetary exactions are subject to the same rules governing exactions in kind. (131) Our survey shows that landowners prevail with somewhat greater frequency in exaction cases than in ordinary regulatory takings cases, although our sample size is considerably smaller--both because Dolan was not decided until almost midway into our study period, and because landowners are less likely to litigate exactions than they are other regulatory measures. (132) This is because, by definition, in exaction cases the government is willing to approve development proposals without litigation, provided the landowners agree to abide by the conditions in question, and agreement is often less costly than litigation. (133)

   4. Government as Enterpriser

      A significant percentage of takings claims involved actions taken by government not as a regulator, but as a service provider. Government entities at the local, state, and federal level build roads and airports to facilitate transportation. Government entities operate a variety of public utilities--power lines, sewer systems, and water lines--to service homes and businesses. Governments build dams to provide power and irrigation, and jetties to protect beaches. These activities can cause significant harm to neighboring landowners, even if the government does not directly or intentionally enter the land of any neighbors. The single most common harm was from flooding, (134) but we also saw takings claims arising from government enterprises causing fires, (135) erosion, (136) diversions of ground water, (137) and pollution. (138)

      Fifty years ago, Professor Sax developed an argument based on a sharp distinction between economic losses imposed by the government as service provider, acting in its "enterprise capacity," and by the government as regulator, acting as a "mediator." (139) When the government acts in its enterprise capacity, it functions much like service providers in the private sector. (140) Because private enterprisers have to pay for resources they acquire in the course of their activities, so too should government enterprisers. (141) Sax found sporadic support for his distinction in Supreme Court decisions. (142)

      More recently, Maureen Brady examined another class of cases in which the government acted as an enterpriser: nineteenth-century cases in which municipalities regraded streets to reduce the cost of transportation through hilly areas. (143) She detailed the growth in state court recognition of a right to compensation in these cases. (144)

      We have examined a broader range of cases than Sax or Brady, and our findings, summarized earlier in Table 2, suggest that courts treat government-as-enterpriser cases quite differently from government-as-mediator cases. Table 2 separates flooding cases from other enterprise cases--in part because when we began our study we did not know what we would find--but the landowner success rates in flooding and enterprise cases is, in any event, nearly identical. Landowners succeed at a rate of 30.3 to 33.3 percent--more than three times the landowner success rate in mediator (regulatory) cases. (145)

      Table 5 shows another significant difference between regulatory cases as compared to enterprise and flooding cases: the identity of the primary government decision maker responsible for the actions giving rise to takings claims. Although all government agents (except perhaps those protected by civil service rules) are ultimately accountable to the public, our surmise is that local, elected officials, such as village boards and city councils, are most directly accountable to voters for their actions, with a close second being members of local agencies, such as zoning boards of appeal and planning boards, that typically hold public hearings in the communities they help govern. By contrast, career government officials and lower-level government employees are typically less politically accountable. (146) Table 5 excludes decisions made by state and federal officials, and decisions in which the opinion makes it impossible to determine the identity of the primary decision maker. The data suggests that one of the reasons courts offer for rejecting regulatory takings claims--deference to decisions of elected or other politically accountable officials (147)--is largely absent in enterprise and flooding cases.

      Our data sheds light on the role of deterrence as a policy objective in takings cases. In his dissent in San Diego Gas & Electric Co. v. City of San Diego, Justice Brennan asked rhetorically, "After all, if a policeman must know the Constitution, then why not a planner?" (148) The data suggests, however, that deterrence plays little role in most regulatory takings cases (exactions aside); courts apparently consider the political process an adequate check on the behavior of regulators. By contrast, deterrence may assume more significance in enterprise and flooding cases, in which courts typically review decisions made by lower government officials and employees.

      Courts often evaluate takings claims in the enterprise and flooding contexts in the same way they evaluate tort claims when the tortfeasor is someone other than the government. (149) They focus on causation of or government culpability for the harm, issues that do not arise the same way in regulatory takings cases. (150) Sometimes the causation inquiry is straightforward; if a claimant cannot prove that a government-operated landfill was the source of the contamination of his land, the landowner cannot recover for a taking. (151) At other times, the causation issue is more complicated. For example, when government construction of a dike, combined with an upstream logjam, leads to flooding of a landowner's land, the question arises whether the intervening cause, the logjam, relieves the government from liability. (152)

      With respect to culpability, the decided cases generally agree that the government has no duty to alleviate natural conditions, so failure to undertake preventive measures does not constitute a taking. (153) The government also has no duty to insulate landowners from the effect of neighboring private development, so no taking results from government approval of a private development that causes harm to neighboring landowners. (154)

      When the government takes affirmative actions that result in harm to landowners, generalization about government culpability becomes more difficult. Although some courts hold that the withdrawal of services cannot constitute a taking, (155) others have indicated that landowners are entitled to compensation for losses resulting from the closing of an adjacent road. (156) When operation of a government enterprise causes harm, some courts hold that the government action constitutes a taking if the government conducted the enterprise negligently or unreasonably, (157) while others insist that only an intentional act can constitute a taking. (158) Still, other courts have held that even an intentional act causing significant harm to a landowner cannot constitute a taking when the act was designed to protect public safety. (159)

      These doctrinal disparities should not be surprising. Although Supreme Court takings doctrine plays only a limited role in determining results in regulatory takings cases, Supreme Court doctrine plays virtually no harmonizing role in the enterprise and flooding cases. As Table 6 demonstrates, only about 20 percent of state court enterprise cases, and fewer still of flooding cases, cite any Supreme Court takings decisions in evaluating takings claims. By contrast, although many...