Cleaning Up the Rest of Agins: Bringing Coherence to Temporary Takings Jurisprudence and Jettisoning 'Extraordinary Delay

Date01 May 2011
AuthorDavid W. Spohr
5-2011 NEWS & ANALYSIS 41 ELR 10435
Cleaning Up the
Rest of Agins:
Coherence to
and Jettisoning
by David W. Spohr
David W. Spohr is the land use ombudsman for King
County, Washington. He previously served as the
Deputy Property Rights Ombudsman for the state
of Utah and spent six years as a trial attorney on the
“Takings Team” within the Environment and Natural
Resources Division of the U.S. Department of Justice.
After decades of confusion, the fuzzy edges of regula-
tory takings doctrine have grown crisper. No longer a
battleground for disputes over regulatory motivation,
wisdom, and validity, the takings analysis now focuses
squarely on the eect a regulation has on a property
owner. However, one vestige of the discredited, sub-
stantive due process-like inquiry of past takings cases
lingers. To prove a temporary taking, a property
owner still has to show that the government com-
mitted “extraordinary delay,” typically accompanied
by “bad faith.” Such an inquiry is antithetical to the
modern understanding of the Takings Clause.
Whether analyzed in the context of a direct or
inverse condemnation, and whether the intru-
sion is physical or regulatory, permanent, or
temporary, the Taking s Clause of the Fifth Amendment
is not fundamentally about how well the government is
doing its job.1 When the government directly condemns
property to build a school, the eminent domain analysis
does not consider how wisely the school district acquires
school grounds or educates students. Similarly, when the
government builds a dam and water from the project con-
tinually invades private property, the takings inquir y does
not evaluate how benecial t he dam is to the region. e
essence of the Taking Clause does not morph when the
analysis shifts to regulatory takings; the goal is still to iden-
tify regulatory restrictions “functionally equiva lent” to a
direct appropriation of private property rights.2 A regula-
tion’s “worthiness” does not shield an agency from liability3
any more than the regulation’s ineectiveness or frivolity
causes such liability.4
Unfortunately, 5 intimated that
the failure of a regulation to substantially advance a legiti-
1. e Takings Clause provides that private property shall not “be taken for
public use, without just compensation.” U.S. C. amend. V. Takings
cases involving real property generally t into two broad categories, direct
and inverse condemnations. In direct condemnation cases, the government
intends to take property through eminent domain and agrees it needs to
pay some amount of compensation. e disputes are typically over whether
the government is allowed to take the property (even if it pays) and if so,
how much the government owes. In inverse condemnation cases, the gov-
ernment does not intend to or believe it is taking a compensable property
interest. Property owners claim that the government has, in fact, function-
ally taken their property through physical invasion (“physical takings”) or
through onerous restriction (“regulatory takings”). e disputes are gener-
ally over whether the government owes anything at all, and if so, how much.
2. Lingle v. Chevron, U.S.A. Inc., 544 U.S. 528, 539, 35 ELR 20106 (2005).
3. Cienega Gardens v. United States, 331 F.3d 1319, 1340, 33 ELR 20221
(Fed. Cir. 2003). See also Friedenburg v. N.Y. State Dep’t of Envtl. Conser-
vation, 767 N.Y.S.2d 451, 460 (N.Y. App. Div. 2003) (“the legitimacy of a
governmental regulation does not lead to the result that the government has
no obligation to pay compensation as a result of that regulation”).
4. Lingle, 544 U.S. at 539-43. See also Dale A. Whitman, Deconstructing Lin-
gle  , 40 J. M L. R. 573, 582
(2007) (post-Lingle, “[n]o longer will an extremely worthy, or an extremely
unworthy, governmental objective be relevant in deciding whether a tak-
ing has occurred”); Robert G. Dreher, Lingle-
, 30 H. E. L. R. 371, 404
(2006) (“simple parity would seem to argue that if challengers cannot raise a
regulation’s lack of redeeming societal value, proponents should not be able
to raise its importance in that respect”).
5. 447 U.S. 255, 263 n.9, 10 ELR 20361 (1980),  Lingle, 544
        
   
     
David W. Spohr, "What Shall We Do With the Drunken Sailor?”:
e Intersection of the Takings Clause and the Character, Merit,
or Impropriety of the Regulatory Action, 17 S
E. L.J. 1 (2008), especially pages 89-92.
Copyright © 2011 Environmental Law Institute®, Washington, DC. reprinted with permission from ELR®,, 1-800-433-5120.
mate government purpose was an independent ground for
a taking. e Court’s pronouncement sent regulatory tak-
ings law on a quarter-century detour through the realm of
substantive due process, creating a generation of confusion.6
ankfu lly, in     ,7 the
Court unanimously recognized its Agins mista ke. Lingle
recanted Agins’ “regrettably imprecise” language, deter-
mined t hat t he substa ntially advance test has “no proper
place” in the takings arena, and restored the regulatory
takings focus to determining whether the restriction is
“so onerous that its eect is tantamount to a direct appro-
priation or ouster.8 Lingle thus disentangled the inquiry
into the wisdom of the government action from the c on-
stitutional inquiry into whether t hat action has worked a
compensable deprivation.
However, there was a less central and less noticed por-
tion of Aginss dicta, appea ring only in a footnote. Agins
argued that, in addition to the zoning restriction itself,
the city’s unsuccessful irtation with condemning the
subject property had itself worked a taking.9 In dismiss-
ing this secondary claim, the Court noted in footnote nine
that during governmental decisionmaking processes, uc-
tuations in value, “absent extraordinary delay ... cannot
be considered as a ‘taking’ in the constitutional sense.”10
Although the issue was eminent domain, with the Court
citing only eminent domain cases in disposing that claim,11
this “extraordinary delay” language would later become, in
the lower courts, a required element for a plainti to prove
in a purely regulatory temporary takings scenario.
When Lingle jettisoned from the takings equation a
regulation’s motivation, purpose, correctness, validity,
value, and eectiveness in implementation,12 it eliminated
the extraordina riness (or reasonableness) of a delay13 from
the takings liability analysis. And while Lingle signicantly
undermined the rationale for considering the extraordi-
nariness of a delay in any part of the takings analysis, it did
not kill extraordinar y delay entirely: like t he seven-headed
Hydra that refuses to die, the inquiry clings to life, post-
Lingle, as a ripeness hurdle.
6. Nestor Davidson, , 102 N. U. L. R. 1,
5 (2008). See also D. Benjamin Barros, 
 Lingle v. Chevron   
, 69 A. L. R. 343, 344 (2006) (explaining that
other, earlier regulatory takings cases contained elements of substantive due
process analysis).
7. 544 U.S. 528, 35 ELR 20106 (2005).
8. Id. at 542, 547.
9. Agins, 447 U.S. at 258 n.3.
10. Id. at 263 n.9.
11. Id. (citing Danforth v. United States, 308 U.S. 271, 285 (1939) (condem-
nation of perpetual owage easement); omas W. Garland, Inc. v. City of
St. Louis, 596 F.2d 784, 787 (8th Cir. 1979) (condemnation proceedings
and “cloud of condemnation” a de facto taking of plainti’s leasehold); Res-
ervation Eleven Associates v. District of Columbia, 420 F.2d 153, 157-58
(D.C. Cir. 1969) (whether the act of ling a direct condemnation action
itself constituted a taking)).
12. Lingle, 544 U.S. at 539-43.
13. Courts often use “extraordinary delay” and “unreasonable delay” inter-
changeably. E.g., Tabb Lakes, Ltd. v. United States, 10 F.3d 796, 803, 24
ELR 20169 (Fed. Cir. 1993); State Dept. of Transp. v. Barsy, 941 P.2d 971
(Nev. 1997). Unless quoting a case, this Ar ticle will use “extraordinary de-
lay,” since that is the terminology Agins used.
is Article begins by explaining why retaining the
extraordinary delay inquiry is problematic a nd antitheti-
cal to a post-Lingle understanding of the Takings Clause.
It asserts that much of the confusion and imprecision in
temporary takings doctrine, including the supposed neces-
sity for a extraordinary delay test, stems from failing to
distinguish scenarios where the temporal nature of restric-
tions or regulatory processes is only appa rent after the fact
(presumptively permanent takings unexpectedly cut short)
from restrictions designed from the outset to be in place
only for a nite period. It describes how ripeness, statute
of limitations, economic impact, the availability of a per se
claim, and the role of judicial intervention distinct ly apply
to each category.
e Article then chronicles the long and unfr uitful his-
tory of extraordinar y delay, evaluates how extraordina ry
delay might have mattered (pre-Lingle), and explains how
courts currently apply it. It examines various rationales for
retaining extraordinary delay, nding none compelling.
And it concludes with a plea to put the nal nail in Agins,
banish extraordinary delay from the takings arena once
and for all, and shift the focu s away from the goodness or
badness of the government’s conduct and onto the impact
of the regulatory delay on the property owner.
I. Setting the Stage
A. Why “Extraordinary Delay” Poses a Problem
Lingle removed from takings cases inquires into the moti-
vation or purpose behind a regulation, a regulation’s
value or benet, a nd the correctness or eectiveness of an
agency’s implementation.14 e Court explained that an
inquiry probing a regulation’s “underlying validity” is a
separate inquiry from probing whether a regulation causes
a taking.15 e takings inquiry must focus “direct ly upon
the severity of the burden that government imposes upon
private property rights.”16 Only inquiries evaluating the
“actual burden imposed on property rights, or how that
burden is allocated” are now germane to the takings test.17
Lingle has thus greatly disentang led the merits of the gov-
ernment regulatory eort from the conscatory nature of
that eort.
Courts and commentators have largely recognized the
change a nd have a mended the reg ulatory t akings inquiry
in response.18 However, even one-half dozen years after
Lingle, this d isentanglement has not been accomplished
in the temporary regulatory takings realm. To mount a
successful claim, a claimant still ty pically must show that
14. Lingle, 544 U.S. at 539-43.
15. Id. at 543.
16. Id. at 539.
17. Id. at 543.
18. E.g., Rose Acre Farms, Inc. v. United States, 559 F.3d 1260, 1279, 39 ELR
20058 (Fed. Cir. 2009), cert. denied, 130 S. Ct. 1501 (2010); Crown Point
Dev., Inc. v. City of Sun Valley, 506 F.3d 851, 855 (9th Cir. 2007); City
of Coeur D’Alene v. Simpson, 136 P.3d 310, 318 n.5 (Idaho 2006); Whit-
man, supra note 4; Dreher, supra note 4; John D. Echeverria, Making Sense
Penn Central, 23 UCLA J. E. L.  P’ 171 (2005).
Copyright © 2011 Environmental Law Institute®, Washington, DC. reprinted with permission from ELR®,, 1-800-433-5120.

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