Regulatory Takings

• Author: Richard A. Epstein
• Pages: 2149-2152

Page 2149

The central disputes of modern takings law revolve around the legal rules governing the dispossession and regulation of private PROPERTY under the takings clause of the Fifth Amendment, which states: "nor shall private property be taken for public use, without just compensation." The point of departure for this analysis is the Supreme Court's critical decision in LUCAS V. SOUTH CAROLINA COASTAL COUNCIL (1992).

The expression "regulatory taking" is a relatively recent addition to the Court's lexicon, having been formally introduced in the dissent of Justice WILLIAM J. BRENNAN, JR. , in San Diego Gas & Electric Co. v. City of San Diego (1981). Even before the terminology took hold, however, the Court had struggled over the classification of various government actions that in some fashion denied or restricted the use that a private owner could make of his own land. The "easy" cases have long involved the physical TAKING OF PROPERTY; that is, cases in which the government has forced a private party to part with permanent possession of all or part (even a very small part) of private property, which is then occupied or used by the government itself or by some private individual under government authorization. In these cases, the Court has gravitated toward a rule of virtual per se compensability on the ground

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that the exclusive right to possession is the cardinal element of a system of private property. Denial of that FUNDAMENTAL RIGHT to JUST COMPENSATION is not justified or excused by any gain that the state realizes from the occupation or use of the property in question. The public benefit may justify the government taking, but it does not excuse government from its obligation to pay for damages. It is hard to see how the rule could be otherwise without gutting the just compensation requirement of the takings clause.

The hard question asks what, if anything, should be done with those government regulations that allow a landowner to retain exclusive possession of his land, but restrict the way in which he may use it. The types of restrictions in question include the traditional setbacks for building, or density requirements for planned-unit development. More recently, these restrictions have expanded to embrace total or partial moratoria on private development imposed for environmental objectives: lands are designated as wetlands, sensitive dunes, coastal lands, or habitat for an endangered species. The restrictions on use could be total or partial, and they could have a large or small impact on the value of the regulated land. The burning question is which, if any, of these restrictions require the state to compensate the owner of the property, and how much.

These questions have provoked a heated judicial debate, but the outlines of the current position have been clarified to some degree by Justice ANTONIN SCALIA'S 1992 opinion in Lucas. That opinion uses two tests to determine whether the state owed compensation when it imposed land use restrictions. The first asks whether the property continues to have any viable economic use after the restrictions are imposed. The second asks whether, if no viable economic use survives, the state can advance some legitimate interest to justify the...