Taming the Takings Tiger
| Publication year | 1999 |
| Pages | 7 |
| Citation | Vol. 12 No. 1 Pg. 7 |
John Martinez and Nick J. Colessides, J.
INTRODUCTION[1]
Three of four Utah residents place growth - as defined by road snarls, overpopulation, rapid development and worries about the 2002 Winter Olympics - among the top three issues [facing Utah today].[2]
"Growth" is bad if it means one's formerly pristine view over someone else's land will be spoiled by the construction of houses.[3] "Growth" is good, however, if it means one can sell a non-productive family farm for subdivision development and pass on the benefits of the appreciation of the land to one's children.[4] Public officials are faced with the task of reconciling these profoundly conflicting demands. On one hand, preservation of land as open space can be achieved through the purchase of land by the public. Alternatively, it can be achieved through prohibiting or severely restricting land development. When choosing between imposing the costs on government coffers, or instead, on private property owners, budget-conscious local zoning officials will usually opt to impose greater and greater restrictions on land development, until all the owner retains is the right to pay taxes.
Takings doctrine embodies the principles that courts use to mediate between the public desire to maintain open space or otherwise restrict private property, and the private owner's right to use property as he or she sees fit. What those principles are, what institutions should apply them, and in what manner, however, is a tiger not easily tamed.
"Takings" are situations in which government has acted, other than through the conscious, purposeful exercise of the power of eminent domain,[5] to cause an effect on property such that the owner seeks a remedy. Takings claims contain three distinct elements: (1) the definition of the "relevant property,"[6] (2) whether a "taking" has occurred, and (3) what remedy, if any, should be provided. Such claims may be brought under state or federal constitutional provisions, and may arise under Just Compensation,[7] Due Process,[8] Equal Protection,[9] Contracts,[10] or other constitutional clauses.[11]
In a 1996 article in the Utah Bar Journal,[12] Professor Martinez described the fundamental nature and structure of the takings problem. In the present article, the authors identify several nagging questions that persist in the takings area, and suggest how they might be addressed.
I. 3-FACTOR INQUIRY? TWO-PART TEST? ROTE RELATIONAL QUESTION? OR "ESSENTIAL NEXUS" + "ROUGH PROPORTIONALITY"?
Takings analysis includes examination of three factors: (1) the nature of the governmental action, (2) the impact on the property owner, and (3) the effect on the owner's reasonable investment-backed expectations.[13]The Supreme Court has at times applied these factors directly.[14] On other occasions, however, the Court has interpreted these factors as being embodied in a two-part test: a "taking" may occur if either the property owner is "deprived of economically viable use" or the means used by the government do not "substantially advance" the ends sought to be achieved.[15] The "deprivation of economically viable use" inquiry depends almost entirely on the definition of the "relevant property" or "denominator" for purposes of analysis, but unfortunately, the Court has not been precise about how that determination is made.[16]
The "not substantially advance a legitimate governmental objective" branch of the two-part test may have two different meanings: First, one may consider the rote relational connection: As a matter of fact and experience, is the means substantially likely to achieve the end?[17] Second, one may instead apply the standard developed by the Court in Dolan v. City of Tigard,[18]breaking out two sub-tests: (a) there must be an essential nexus between the means and the end and (b) the burden of the means imposed on the owner must be "roughly proportional" to the potential harm that would have resulted if the owner had been allowed to proceed without such restriction.[19]
The Supreme Court may soon clear up at least some of this confusion. The Court has agreed to review DelMonte Dunes at Monterey, Ltd. v. City of Monterey,[20] in which the Ninth Circuit held that the Dolan standard applies to the denial of a development permit where, unlike in Dolan, the city did not seek to impose a condition that the owner convey an easement in order to obtain the permit.
The problem of the applicable standard implicates some of the most profound aspects of the nature of government and the nature of property in this country. If Dolan applies, then the city must explain and justify its action, subject to being second-guessed by a judge or a jury. On the other hand, if Dolan does not apply, then in order to prevail, the owner must make a particularly strong showing that the city acted irrationally. The implication that Dolan applies is that an owner is "entitled" to a permit to develop, just as such owner is "entitled" to retain an easement over its property; the implication that Dolan is inapplicable is that the city may deny permission to develop land without too much of an explanation for such denial.
Dolan should apply. It requires governments to act deliberately and to keep accurate and complete records of their actions. Although more litigation may result, cases may be disposed at the summary judgment stage if the government is able to produce a record which shows the evidence, findings and conclusions -and the links among them - which led to its determinations.[21]Since 1993, Utah state agencies have been required to conduct "takings impact assessments" which impose requirements very similar to those imposed by Dolan.[22] In 1997, however, the state legislature gave state agencies a five-year extension, until January 1,1999, to adopt regulations to implement such requirements.[23] Local Utah governments, moreover, have never been required to make such findings.[24]
II. JURY OR JUDGE QUESTIONS?
Whether the takings question is one of law, fact, or both, has confounded the courts.[25] In Del Monte Dunes, the Ninth Circuit held that a property owner has a right to have a jury decide whether a "taking" has occurred. The jury was allowed to consider whether the city's denial of a permit for the development of a 190-unit condominium development denied the owner economically viable use or failed to substantially advance a legitimate governmental objective. The jury found a taking, and awarded $1.45 million dollars to the owner. The Supreme Court will determine whether the jury should have been allowed to decide the takings question.
The nature of the takings inquiry indicates that it is a mixed question of law and fact. The inquiry proceeds as follows:
1.What did the government do or fail to do? (i.e: What is the "means" involved?)
2. What impact did it have on the owner?
a. Did the owner have any protectable "property" interest at all?
b. How was that interest affected: Was it diminished or was the owner "deprived of economically viable use"?
3. Did the government seek to implement a legitimate governmental objective? (ie: What is the "end" involved?)
4. What is the relation between the means and the end? (ie: Did the means substantially advance the end?)
The innumerable foundational facts that can be the subject of proof and experience include: whether the applicant applied for a permit or failed to do so, whether the government considered the permit and denied it, whether the owner has any market value or use remaining in the property, whether the government was trying to protect the environment or instead merely depriving the owner of economically viable use, and whether there are studies indicating that the governmental action in the circumstances is not reasonably likely to achieve the objective involved. Such matters can and should be submitted to a jury.
The ultimate question whether the sum of the foundational facts add up to a taking in the circumstances, however, would appear t o be a question of law. This is because attribution of legal consequences to the foundational facts ultimately requires a delicate balancing between state and federal authority if a federal forum is involved (federalism), between the role of courts and the role of regulators (separation of powers), and between individual owners' preferences and the desires of the public with respect to private property.[26]
III. STATE OR FEDERAL COURT?
Federal and state constitutional takings claims may be brought in state courts, and at least in theory, such claims also may be brought in federal courts under federal question and pendent jurisdiction. It would seem elementary, therefore, that a takings claimant has the option of choosing a state or federal forum, but that may not be true at all.
The right to a federal forum for litigating federal...
To continue reading
Request your trial