Tuesday, July 10, 2018
While updating the recently released ninth edition to the casebook Land Use and Sustainable Development Law, the four co-authors engaged in numerous spirited discussions about teaching land use. We wanted to open this discussion to others to get their comments and thoughts as we continue to rethink the teaching of this important subject. Each month on this blog, we will introduce a new topic relevant to teaching land use. The topics will loosely follow our casebook chapters, and we are now up to Chapter 3. We'll explore each topic through four blog posts, one from each of us. We hope you find the discussion enriching, and encourage you to contribute to the conversation in the comments section below or off-line. -- John Nolon, Patricia Salkin, Stephen Miller, & Jonathan Rosenbloom
Contemporary Issues in Teaching Land Use
Question 8: Hot Topics in Takings
by Stephen R. Miller
We are back from a summer break and continuing our series on contemporary issues in teaching land use, which follows the general arc of our new casebook. In this set of questions, we dive into takings, which is also the basis of Chapter 5 of the book.
In many ways, takings is probably the one thing students know will be covered in a land use law class. Professors can choose how much they want to emphasize the subject, however. A bread-and-butter approach would focus on the general categories of takings that you could find in any land use law book.
Our casebook also offers several opportunities to go further in depth in ways that also relate to several hot topics in takings. I'll mention two. First, we include Williamson County, which is still the primary case about ripeness of a takings claim. However, this Fall, 2018 term, the U.S. Supreme Court will hear Knick v. Township of Scott, Pennsylvania, which presents the following question:
(1) Whether the Supreme Court should reconsider the portion of Williamson County Regional Planning Commission v. Hamilton Bank that requires property owners to exhaust state court remedies to ripen federal takings claims; and (2) whether Williamson County’s ripeness doctrine bars review of takings claims that assert that a law causes an unconstitutional taking on its face, as the U.S. Courts of Appeals for the 3rd, 6th, 9th and 10th Circuits hold, or whether facial claims are exempt from Williamson County, as the U.S. Courts of Appeals for the 1st, 4th and 7th Circuits hold.
While land use profs might have glossed over Williamson County in the past, they might choose to assign it this year in light of Knick.
In addition, an underlying issue in takings jurisprudence, which will likely rear its head again in coming years, is whether an agency action under review was legislative or administrative (adjudicative) in function. To bring this hot topic to the fore, we include in our casebook a portion of Justice Thomas' statement in the Court's decision deny cert in the case of California Bldg. Indus. Ass’n v. City of San Jose, Calif., 136 S. Ct. 928, 928–29, 194 L. Ed. 2d 239 (2016) where he wrote as follows:
. . . Our precedents in Nollan v. California Coastal Comm’n, 483 U.S. 825, 107 S.Ct. 3141, 97 L.Ed.2d 677 (1987), and Dolan v. City of Tigard, 512 U.S. 374, 114 S.Ct. 2309, 129 L.Ed.2d 304 (1994), would have governed San Jose’s actions had it imposed those conditions through administrative action. . . .
For at least two decades, however, lower courts have divided over whether the Nollan/Dolan test applies in cases where the alleged taking arises from a legislatively imposed condition rather than an administrative one. See Parking Assn. of Georgia, Inc. v. Atlanta, 515 U.S. 1116, 1117, 115 S.Ct. 2268, 132 L.Ed.2d 273 (1995) (THOMAS, J., dissenting from denial of certiorari). That division shows no signs of abating. The decision below, for example, reiterated the California Supreme Court’s position that a legislative land-use measure is not a taking and survives a constitutional challenge so long as the measure bears “a reasonable relationship to the public welfare.” 61 Cal.4th, at 456–459, and n. 11, 189 Cal.Rptr.3d 475, 351 P.3d, at 987–990, n. 11; compare ibid. with, e.g., Home Builders Assn. of Dayton and Miami Valley v. Beavercreek, 89 Ohio St.3d 121, 128, 729 N.E.2d 349, 356 (2000) (applying the Nollan/Dolan test to legislative exaction).
I continue to doubt that “the existence of a taking should turn on the type of governmental entity responsible for the taking.” Parking Assn. of Georgia, supra, at 1117–1118, 115 S.Ct. 2268.
Given that the Court may well have a more conservative future, it will be interesting to see if this question about the character of governmental action should matter in takings analysis comes back in the coming years.
The ninth edition of Land Use and Sustainable Development Law, is now available for the 2017-18 academic year. Feel free to contact any of the co-authors if you would like to discuss the book--or just teaching land use law in general.
Previous posts in the Contemporary Issues in Teaching Land Use series