The Takings Issue: Constitutional Limits on Land Use Control and Environmental Regulation.

• Author: Dowling, Timothy J.
• Position: Review

1. INTRODUCTION

   When you purport to provide a "balanced" treatment of a highly charged issue like regulatory takings, you had better deliver. Advocates on both sides of the debate will inspect every page for evidence of a thumb on the scale. The Takings Issue: Constitutional Limits on Land Use Control and Environmental Regulation(1) promises the reader a balanced analysis of the case law that governs whether land use controls, environmental safeguards, and other community protections comport with the Takings Clause of the Fifth Amendment.(2) In important respects, however, The Takings Issue leaves the promise of balance unfulfilled.

   At first glance, expectations of an even-handed treatment of takings issues run high. The authors (Robert Meltz, Dwight H. Merriam, and Richard M. Frank) bring vast experience to the enterprise and reflect a cross-section of perspectives, from the nonpartisan Congressional Research Service, private practice, and the California Department of Justice, respectively. The advance reviews on the cover include praise from both sides of the debate, heightening the expectation of a centrist approach. The book's preface suggests that The Takings Issue provides an objective examination of the issues that will be useful to planners, local officials, and the environmental community. Because the book is published by Island Press(3) and is the successor to a similar volume published by the Council on Environmental Quality in 1973,(4) it is only natural to assume that the new effort would fully reflect the concerns of those who defend environmental safeguards and other community protections. The results, however, are decidedly mixed.

   To their credit, the authors cover takings issues literally from A to Z--from airports to zoning, and much in between. After an overview of the foundational precedents, individual chapters offer insights on takings issues relating to billboards, historic preservation, rails-to-trails programs, toxic waste cleanup, water rights, and more. The chapter on mining and the Takings Clause is particularly thoughtful and thought provoking. The net result is a readable discussion of many difficult issues.

   Yet, the environmental community and local officials need to be aware that The Takings Issue too often fails to achieve the balance it promises.

2. WHITHER THE COMMUNITY PERSPECTIVE?

   Any impartial treatment of takings case law must adequately explain the competing concerns of the property owner and the community at large. As the authors themselves recognize, takings jurisprudence develops through judicial efforts to weigh the interests of the claimant against those of the general public.(5) On this key test of balance, The Takings Issue comes up short. In their discussion of several critical cases, the authors neglect half the equation by providing little or no information regarding the underlying purpose of the land use controls at issue.

   For example, in discussing Lucas v. South Carolina Coastal Council,(6) one of the most frequently cited takings cases of the last decade,(7) the authors tell us only that a South Carolina statute barred Mr. Lucas from building beachfront homes on his two barrier island lots.(8) No mention is made of the purpose of the statute, which protects human lives and property by preserving dunes and beach that serve as storm barriers and protect against erosion. This public safety rationale is discussed in Justice Scalia's majority opinion(9) and both dissents--the latter stressing that ocean storms often break up oceanfront homes and propel the splintered debris like battering rams into nearby neighborhoods.(10) The dune protections in Lucas followed the findings of a blue-ribbon panel that severe dune erosion threatened public safety--a finding vindicated in 1989 when Hurricane Hugo caused twenty-nine deaths and $6 billion in property damage.(11) Lucas's property itself was underwater for many years, and local officials issued twelve emergency orders for sandbagging to protect Lucas's Wild Dune Development.(12) All of this, fully described in Lucas, goes unmentioned in The Takings Issue. As a result, the reader is deprived of a full appreciation of the significance of Lucas and the ability to consider whether the Court reached the correct result.(13)

   In their four-page analysis of Suitum v. Tahoe Regional Planning Agency,(14) the authors say only that the defendant agency prohibits new development in certain areas "within certain zones" that include Mrs. Suitum's parcel.(15) The Suitum discussion fails to inform the reader that the controls are designed to protect Lake Tahoe, an indescribably beautiful mountain lake; that topographical conditions render its pure waters vulnerable to sedimentation; and that thoughtless development has seriously jeopardized its water quality. While this information is recounted much later in a chapter unrelated to Suitum,(16) the Suitum discussion is disturbingly one-sided. The treatment of certain other cases is similarly unbalanced.

   To be sure, courts sometimes give short shrift to the community concerns that underlie the protections at issue in takings cases. In a book that purports to be balanced, however, the reader reasonably expects some recognition of these concerns, even where the court deems them irrelevant to the precise legal issue before it. Because the authors fail to give these concerns sufficient consideration, they deny the reader an adequate sense of the challenges faced by local officials, as well as the practical significance of the rulings they discuss.

3. BITTER FRUIT ON "RIPENESS"

   The book's lack of balance is particularly striking in its treatment of ripeness, the legal doctrine that governs when a takings claim may be filed in court.(17) In Williamson County Regional Planning Commission v. Hamilton Bank (Williamson County),(18) the Supreme Court made clear that a takings claimant must obtain a truly final decision from local authorities before challenging state or local actions under the Takings Clause.(19) Williamson County's "finality" ripeness requirement typically compels a landowner to apply for a variance or waiver prior to challenging a local land use decision as a taking in federal court.(20)

   The Court provided further guidance on finality ripeness in MacDonald, Sommer & Frates v. County of Yolo,(21) stating that "[i]t follows from the nature of a regulatory takings claim that an essential prerequisite to its assertion is a final and authoritative determination of the type and intensity of development legally permitted on the subject property."(22) While a regulation may constitute a taking where it goes "too far,"(23) MacDonald, Sommer & Frates stresses that a "court cannot determine whether a regulation has gone `too far' unless it knows how far the regulation goes."(24) Because local land use agencies are "singularly flexible institutions,"(25) a takings claimant must pursue available remedies from local officials before a court may decide whether a land use restriction has effected a taking.(26) The finality ripeness requirement promotes negotiation and enhances local land use planning by ensuring that landowners make good faith efforts to work with planning officials to address local concerns rather than immediately suing in federal court.

   Williamson County also holds that in a challenge to state or local action, a takings claimant must seek compensation under state law before filing a claim under the federal Takings Clause.(27) This requirement derives from "the nature of the constitutional right," because "no constitutional violation occurs until just compensation has been denied."(28) In City of Monterey v...