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Wednesday, August 23, 2006

Two New Articles On Takings

Mark Fenster and Eric Claeys have both posted new articles on takings on SSRN.  Both are very perceptive commentators on takings issues.  Fenster gets an extra shout-out as a founding member of the "Association For The Preservation Of Takings As a Property Issue" -- the Association's motto is "Con-Law Profs Keep Your Grubby Hands Off".  Maybe I'll make up some membership cards and hand them out at AALS.  Anyway, Here's the info:

Mark Fenster (University of Florida - Fredric G. Levin College of Law), Regulating Land Use in a Constitutional Shadow: The Institutional Contexts of Exactions:

In a refreshingly clear and comprehensive decision issued towards the end of its 2004 Term, the Supreme Court explained in Lingle v. Chevron (2005) that the Takings Clause requires compensation only for the effects of a regulation on an individual's property rights. Under the substantive due process doctrine, by contrast, courts engage in a deferential inquiry into both a regulation's validity and the means by which the regulation attempts to meet the government's objective. Lingle's explanation appeared to cast doubt on the doctrinal foundation and reach of Nollan v. California Coastal Commission (1987) and Dolan v. City of Tigard (1994), two regulatory takings decisions that reviewed “exactions,” regulatory conditions placed on proposals to develop land. These decisions required courts to apply the heightened scrutiny of their “nexus” and “proportionality” tests to review not only the challenged condition's effects but also its validity and means. In a somewhat oblique final section of Lingle that could be dismissed as non-binding dicta, the Court characterized its exactions jurisprudence as a limited effort to protect owners from extortionate exactions that single out individual property owners and confiscate their land and right to exclude the public. Lingle explained that the Court's rigorous tests for exactions, and their focus on regulatory means, apply only when an exaction's effects constitute a clear taking of property.

Lingle's description of its exactions decisions left important matters open for debate - matters that this Article attempts to resolve. Lingle's narrow characterization of its exactions decisions is not dicta because Lingle aimed to provide a comprehensive, unifying explication of the entirety of the Court's takings jurisprudence; and even if dicta, Lingle repeats similar statements in recent decisions about the limited nature of Nollan and Dolan and therefore makes plain what the Court assumes it has already settled. Furthermore, when read as Lingle requires, Nollan and Dolan fit within the broader approach to the Takings Clause that the Court articulated in Lingle and its other Takings Clause decisions from the same term, San Remo Hotel v. City and County of San Francisco (2005) and Kelo v. City of New London (2005). A narrow understanding of Nollan and Dolan is thoroughly consistent with the Court's effort to establish an institutionalist approach to the Takings Clause that defers to the properly derived decisions of competent, settled institutions. Nollan and Dolan can be read narrowly because judicial enforcement of the federal constitution is merely one institutional check among a web of public and private institutions that constrain local regulatory discretion. The powerful constitutional protection that “nexus” and “proportionality” provide may be limited, but in their shadow public actors in state courts and legislatures and in local governments, as well as voters, property owners, developers, and homebuyers offer a more complex, responsive, and locally sensitive web of legal, political, and market controls than the broad, formal rules established in Nollan and Dolan.

Eric Claeys (Saint Louis University - School of Law), That '70s Show: Post-Kelo Eminent Domain Reform and the Administrative Law Revolution:

This Essay contributes to a conference on Kelo v. City of New London sponsored by the Santa Clara University School of Law in February 2006. The Kelo decision has prompted many state legislatures to reconsider the organic statutes that enable local governments to use eminent domain to transfer land between private parties. This Essay suggests that these legislatures update these enabling statutes to the 1970s. Most state eminent-domain enabling statutes give localites extremely broad powers to decide when to condemn and transfer land. Courts typically read these statutes to trigger extremely deferential judicial review. During the 1960s and 1970s, in both state and federal case law, courts developed hybrid doctrines of administrative law to increase the scrutiny they apply to agency decisions in many areas of law, including spot zoning. These principles, however, have not really been applied to eminent domain, and particularly not to blight and economic-redevelopment actions.

The backlash against Kelo provides an opportune time to bring the '70s' administrative law revolution to eminent domain. Many of the complaints about local eminent-domain policy echo the public-choice concerns that fueled the '70s administrative-law revolution. If state legislatures update eminent-domain statutes to incorporate these principles of means-end scrutiny, they will probably make modest improvements in eminent-domain practice, by making decision making more rational and transparent, and less likely to be influenced unduly by special interests. These improvements are also politically realistic. The administrative-law doctrines in question do not categorically rule out any types of private land transfers. Moreover, because policy and legal elites are familiar with and largely accept the hybrid administrative-law doctrines in question, those doctrines should not threaten any of the major constituencies with an interest in eminent domain.

Ben Barros

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