A Framework for Addressing Takings Problems
| Publication year | 1996 |
| Pages | 13 |
| Citation | Vol. 9 No. 6 Pg. 13 |
June, 1996
John Martinez, J.
INTRODUCTION[1]
Police officers fired a dozen tear gas canisters into a convenience store where a fleeing felony suspect had sought refuge, causing over $275, 000 in damage. Should the city pay for the harm?[2] A landfill company which applied for a landfill use permit was investigated for ties with organized crime and its business was allegedly seriously harmed when the report of the investigation was released to the press. Should the government pay for the harm to the company?[3]A cigarette vending company is prohibited from continuing to operate its vending machines by a new town ordinance. Can the company recover for the effect on its business?[4] Finally, the advent of deregulation prevents formerly regulated industries from recovering "stranded costs, " which can no longer be passed on to ratepayers in a competitive environment.[5] Should such costs be recoverable from the government?
We can all venture a guess about how these situations should be resolved and we can think of reasons in support of the outcomes we suggest are right. And yet, like looking at a good painting, the more we linger, the more we see, and perhaps the less certain we are that our initial intuitions were correct.
The Takings Problem is about how the law resolves these kinds of situations. Takings law is about what we mean by "property"; it is about our conceptions of an ideal government and its interaction with private expectations; and most of all, it is about money. It deals with circumstances in which government has acted I other than through the conscious, purposeful exercise of the power of eminent domain, [6] and caused an effect on property such that we must consider whether the costs should be borne by the public generally rather than by the property owner affected.
I will explain the basic structure of the Takings Problem, set out an analytical framework for takings claims, then describe Takings law under the Utah state constitution and under Utah's Private Property Protection Act.
I. THE BASIC STRUCTURE OF THE TAKINGS PROBLEM
A. The Role of Conceptions of Property in Takings Jurisprudence
Since the Takings Problem is about protecting economic interests from governmental oppression, determining whether "property" is involved is the crucial threshold question. The natural rights/positive rights dichotomy offers a distorted and seductively easy way to resolve takings disputes. Natural rights advocates argue that property pre-exists government, and thus if property is affected by governmental action, then the government must either pay or desist.[7] In contrast, positivists contend that property is created by government, and that therefore the owner is at the mercy of majoritarian politics, so that the only relevant questions revolve around whether the purposes of property collectively defined have been advanced and whether proper procedures were used.[8]
But life is just not that simple. Takings law is a continuing struggle to develop analytical models that predictably and sensibly accommodate both individual and social concerns with respect to resources.
B. The Role of Standards of Judicial Review in Takings Analysis
The accepted manner for challenging governmental action in our society is by asking courts to come to our aid. Judicial review of governmental action may be generally defined as a court's appraisal of whether a governmental agency or official has acted properly. The criteria used by courts to evaluate such conduct are embodied in standards of judicial review.
Deferential standards of judicial review are characterized by a judicial tendency to accept the determination of the governmental entity whose conduct is questioned and to uphold the governmental conduct if it is in pursuance of "legitimate" governmental objectives in a "rational" way.[9] In contrast, activist standards of judicial review are characterized by a judicial tendency to second-guess the governmental entity involved and to uphold the government only if it demonstrates it is advancing "important" or "compelling" governmental objectives, and that the means being used are essential, if not indispensable, ways to achieve those objectives.
The accepted tradition is that governmental action which affects liberty concerns—either by infringing on fundamental rights such as freedom of speech or religion, or by distinguishing according to suspect classifications, such as race or gender—will usually trigger activist judicial scrutiny. Equally accepted is that when merely economic interests are affected by governmental action, courts will apply deferential standards of judicial review. One of the emerging questions in takings law is whether—and the extent to which—takings law represents the application of activist judicial review for protection of economic concerns.
C. The Many Forms and Contexts of the Takings Problem
The takings problem has arisen most frequently when governments have exercised the power to zone.[10]The exercise of other governmental powers, however, may also give rise to takings issues. For example, in Dames & Moore v. Regan, [11] the plaintiff complained that the freezing of Iranian assets by the President under the power over foreign affairs improperly affected plaintiff's property.
The types of claims that can be brought against governmental action affecting property are equally varied.[12] They may arise under various clauses of federal or state constitutions and can be grouped into two broad categories: (1) actions based on clauses other than Just Compensation pro-visions, such as Due Process, [13] Equal Protection[14]and Contracts[15] Clauses, and (2) Just Compensation Clause[16] actions. This broad division is indicative of the evolution of takings doctrine. Judicial review of governmental action affecting property under claims in the first category has always been deferential, and for some time, it appeared that it would be equally deferential under Just Compensation Clauses as well. With recent development of stricter judicial review under Just Compensation Clauses, however, the other bases, although still important, are declining in significance.[17]
II. ANALYTICAL FRAMEWORK FOR TAKINGS CLAIMS
The federal Just Compensation Clause is the usual basis for takings claims because it expressly refers to "takings" of property by governmental action and includes the requirement of compensation.[18] State just compensation clauses contain similar provisions and many also prohibit "damaging" of private property.[19]
As discussed above, the first question is whether "property" is involved at all. If "property" is indeed involved, then the "relevant" property, or "denominator of the equation, " must be identified. This has proved troublesome for the Court.[20] One could conceive of the relevant property physically or conceptually and either broadly or narrowly. For example, in Loretto v. Teleprompter Manhattan CATV Corp., [21] New York authorized a private television cable company to install cables and relay boxes on the surface of Mrs. Loretto's apartment building. Construed physically and broadly, the relevant property could have been viewed as the entire apartment building and the land which it occupied. Physically and narrowly, the relevant property could have been viewed as only the area which the cables and relay boxes occupied on the surface of the building. Construed conceptually and broadly, the relevant property could have been viewed as all the sticks in the bundle of rights, including the right to use, to exclude and to transfer. Conceptually and narrowly, the relevant property could have been restricted to the right to exclude. Since the effect on property is a central question in takings analysis, and since the smaller the denominator to begin with, the smaller the numerator needs to be to equal the denominator, it is not surprising that takings claimants will almost always seek to have the relevant property viewed narrowly, whereas government...
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