The brooding omnipresence of regulatory takings: urban origins and effects.

• Author: Wolf, Michael Allan
• Position: 40th Anniversary Symposium

Introduction: Takings from the Top I. From Scranton to the Big Apple: City Settings for the Regulatory Takings Drama II. Expert Commentary Before the Flood III. Liberal Justices and Private Property Rights Protection: A Complex Dynamic . IV. Courts and Commentary: Forty Years of Regulatory Takings Scholarship in the Fordham Urban Law Journal V. Urban Regulatory Takings: A Growth Industry for Courts and Commentators INTRODUCTION: TAKINGS FROM THE TOP

The concept of a regulatory taking, or technically "inverse condemnation," made its first appearance on page ten of the very first issue of the Fordham Urban Law Journal in 1972, when New York Attorney General Louis J. Lefkowitz made the following observation in his lead article: "The courts have reduced the scope of [the usque ad coelum] doctrine, allowing an owner aggrieved by noise from overflights to recover damages for what is termed an inverse condemnation, while holding that the doctrine does not justify the granting of an injunction against overflights." (1) That first article--Jamaica Bay: An Urban Marshland in Transition--is an early example of what we now call "urban environmental law," (2) in which the author discussed public trust, wetlands protection, NEPA, public nuisance, and noise, air, and water pollution. He looked forward to federal protection for the bay, which became a reality on October 27 of the same year as the Gateway National Recreational Area. (3)

The tension between private property and the public interest was just below the surface of the text of Attorney General Lefkowitz's article, much like the creatures clinging to life in the murky, polluted waters of the bay. (4) Over the course of the next four decades, as all levels of government engaged in a growing and exceedingly diverse set of environmentally flavored land use regulations, this tension rose to the surface and began to dominate legal discussions--in legal briefs and court decisions, in the classroom, and in expert commentary, including, of course, in the pages of the Fordham Urban Law Journal itself. (5)

Metropolitan New York City was the geographic focus of Lefkowitz's inaugural article, a reminder that "urban" and "environmental" are not necessarily distinct descriptors. The same city was the setting for two important and, I believe, regrettable Supreme Court decisions that set the stage for legal murkiness that lingers to this day. (6) While many of the Court's regulatory takings cases came to the justices from the nation's coastal regions, (7) the fact remains that the "brooding omnipresence" (8) of regulatory takings is decidedly urban in its origins and continues to have many important implications in the field of urban law.

1. FROM SCRANTON TO THE BIG APPLE: CITY SETTINGS FOR THE REGULATORY TAKINGS DRAMA

   We have Justice Oliver Wendell Holmes, Jr., the pride of Brahmin Boston, to thank for the term "brooding omnipresence" and for the jurisprudential curiosity we now call regulatory takings. The phrase first appeared in Holmes's dissenting opinion in 1917's Southern Pacific Co. v. Jensen, (9) a dispute concerning the validity of New York's "Workmen's Compensation Act." (10) Justice Holmes observed that "[t]he common law is not a brooding omnipresence in the sky, but the articulate voice of some sovereign or quasi sovereign that can be identified; although some decisions with which I have disagreed seem to me to have forgotten the fact." (11) In 1922, Holmes's seminal regulatory takings opinion in Pennsylvania Coal Co. v. Mahon (12) concerned a dispute over coal-rich land in Scranton, Pennsylvania--the 47th largest city in the United States according to the 1920 Census, with a population of over 137,000. (13) Counsel for the city submitted several photographs to the Supreme Court depicting severe damage to houses, apartments, streets, a cemetery, and public buildings in Scranton caused by mine caves. (14) While William Fischel has raised serious questions about the facts on and below the ground, (15) it is indisputable that the case counsel presented to the Court involved the Kohler Act's impact in an urban setting. (16)

   For the next forty years, Holmes's eminently unhelpful and precedent-deficient "too far" test lay dormant, at least as applied to cases involving regulation of real property. (17) This period, of course, included the heyday of early zoning cases from 1926 to 1928--even Nectow v. City of Cambridge (18) and Washington ex rel. Seattle Title Trust Co. v. Roberge, (19) which were landowner victories. In 1962, after toying with inverse condemnation in cases such as United States v. Causby (20) (low-flying aircraft), Armstrong v. United States (21) (material liens), and Griggs v. Allegheny County, Pennsylvania (22) (low-altitude flights), it looked as if the justices were prepared to revisit the constitutionality of land use regulation when they agreed to hear Goldblatt v. Town of Hempstead, New York, (23) an ultimately unsuccessful takings challenge to a New York suburb's regulation of dredging and pit excavating. Today, Goldblatt is probably most notable because Mario Matthew Cuomo--the future New York governor (and current Governor Andrew Cuomo's father)--was one of the attorneys listed on the appellee town's brief. (24) Mahon was cited in passing, not even quoted, (25) and it would be another sixteen years until the Court dipped its toes into the regulatory taking waters.

   The ghost of Holmes's "too far" test was finally exhumed in Penn Central Transportation Co. v. City of New York, (26) in a problematic opinion written by one of the most liberal justices in the Court's long and distinguished history--Newark, New Jersey's William J. Brennan, Jr. (27) Joining Justice William Rehnquist's dissent was Chief Justice Warren Burger and the Court's newest member--Chicago's own John Paul Stevens. President Gerald Ford appointed Stevens to replace William O. Douglas, the uber-liberal that then-House Republican Leader Ford tried to impeach in 1970. (28) But, before we get to the exegetical excesses of Penn Central, we need to pause to consider the state of expert commentary and state court jurisprudence regarding regulations that might (or might not) amount to takings requiring compensation.

2. EXPERT COMMENTARY BEFORE THE FLOOD

   One needs only the number of toes on one foot to count the leading, then-recent law review articles available to the many judges and lawyers at the time of the Fordham Urban Law Journal's founding, who were struggling to distinguish police power regulations of land use from uncompensated takings (and the number of digits on Homer Simpson's hand to count the number of authors of those articles). Here, in chronological order, is my list (which may well be too subjective to pass any empirical test): Griggs v. Allegheny County in Perspective: Thirty Years of Supreme Court Expropriation Law by Allison Dunham; (29) Takings and the Police Power by Joseph L. Sax; (30) Property, Utility, and Fairness: Comments on the Ethical Foundations of "Just Compensation" Law by Frank I. Michelman; (31) Taking or Damaging by Police Power: The Search for Inverse Condemnation Criteria by Arvo Van Alstyne; (32) and Takings, Private Property and Public Rights by Sax. (33) A few representative quotations from each article will help recreate the tone and substance of the takings conversation during the early 1970s.

   Even as early as 1962, Professor Dunham, an established property scholar at the University of Chicago, referred to "a crazy-quilt pattern of Supreme Court doctrine on the law of expropriation." (34) After reviewing the cases involving "Police Power Versus Eminent-Domain Power," (35) he concluded, "The most that the Court has been able to develop as guiding principles are indications of some of the factors it considers relevant. The weight to be assigned to these factors in any given case has not yet been disclosed." (36) Most unfortunately, this left the justices merely to "follow the Holmesian tradition of stating that property expectations may be damaged 'to a certain extent' but 'if regulation goes too far it will be recognized as a taking."' (37)

   Two years later, Joe Sax, a newly minted associate professor at the University of Colorado, came out of the gate with his first of two takings pieces in the Yale Law Journal. Like Dunham, Sax bemoaned the puzzling state of takings jurisprudence, noting that "the predominant characteristic of this area of law is a welter of confusing and apparently incompatible results." (38) With the confidence and chutzpah of youth, Sax proposed what he called a "workable rule of law" (39) for distinguishing between regulations and takings. On the one hand, "when economic loss is incurred as a result of government enhancement of its resource position in its enterprise capacity, then compensation is constitutionally required; it is that result which is to be characterized as a taking." (40) On the other hand, "losses, however severe, incurred as a consequence of government acting merely in its arbitral capacity are to be viewed as a non-compensable exercise of the police power." (41) Now, wasn't that easy?

   In 1967, Michelman, recently promoted to full professor at Harvard, entered the fray with a piece published in the law review from his home school. This impressively dense piece would prove to be highly influential. (42) What is often forgotten about Property, Utility, and Fairness is that the author chose not to engage in "efforts to arrive at a systematic restatement of the legal doctrine [a la Dunham], or to reformulate doctrine, redirect it, or overhaul it [a la Sax]...." (43) In fact, what Michelman "counselled" in this piece was "a de-emphasis of reliance on judicial action as a method of dealing with the problem of compensation." (44) If litigants, counsel, and the courts had heeded young Michelman's advice, only my fellow legal historians and I would be talking about that relic once known as "regulatory...