CONSTITUTIONAL LIMITS ON REGULATION

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• CONSTITUTIONAL LIMITS ON REGULATION
• 1. Federalism issues which level of government
  (national, state, local) is empowered to take
  regulatory action see syllabus part VI.A.
• Distribution and separation of powers issues is
  the regulator authorized to act?
• Property rights protection against
  expropriation, destruction of investments
  value in the US, the takings clause.

2

• TODAY Takings Jurisprudence in the U.S.
• Development of general rules for analyzing
  regulatory takings cases
• Development of two special categories of takings
  ( some more recent decisions)
• AND a view of the sometimes confused and
  confusing world of judicial decision making.

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What is a taking for constitutional purposes?
5th Amendment Nor shall private property be
taken for public use without just
compensation. What is a physical taking? A
regulatory taking?

• Pa. Coal v. Mahon (1922)
• government could hardly go on if compensation
  were required for every diminution of property
  value caused by regulation
• if regulation goes too far it will be recognized
  as a taking

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In most regulatory takings cases, what sort of
analysis determines whether compensation is due?

• Penn Central v. City of NY (1978)
• No set formula is ad hoc, factual inquiry
• Economic impact on claimant
• Interference with distinct investment backed
  expectations
• Character of governmental action
• Legitimacy of public purpose

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• Regulatory Takings Basic Penn Central (1978)
  analysis, except in special cases
• Lucas-type (1992) cases
• Exactions cases
• Nollan (1987)
• Dolan (1994)

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Lucas-type categorical takings Lucas v.
S.C.Coastal Council (1992)
1986 Lucas purchased lots for 975,000 to
develop high-end resort homes 1988 SC statute
prohibited construction on lots Trial court
determined that land now valueless (but had
nominal value) How did the court analyze this
problem? Did it use the Penn Central analysis?
If regulation leaves no economically beneficial
use of the property, then is a taking requiring
compensation. Was the land literally valueless?
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Lucas v. S.C.Coastal Council (1992) Is there any
exception to the majority opinions rule?
The nuisance exception what is it?
Kennedy concurrence The common law of nuisance
is too narrow a confine The state should not be
prevented from enacting new regulatory
initiatives in response to changing conditions,
and courts must consider all reasonable
expectations whatever their source. Blackmun
dissent Today the Court launches a missile to
kill a mouse.
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Palazzo v. Rhode Island (2001) Corp. (owned by
P) purchased land ? Govt wetlands restrictions
imposed ? Corp. dissolved land transferred to P.
? development applications denied. Can build
house. Value 200,000. Diminution 93

• COURT
• Rejected blanket rule prohibiting recovery by
  owners who take title after regulation imposed
• No categorical taking

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Tahoe-Sierra Case (USSC 2002)

• Planning agencys construction moratorium was, on
  its face, indefinite, but actually lasted for 2
  years.
• Ban was absolute for as long as it lasted ? no
  development permitted.
• Is this a Lucas-type categorical taking?
• What exactly was taken?
• Why did the property owners believe compensation
  was due?

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Transferable Development Rights Lake Tahoe
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• Takings Basic Penn Central (1978) analysis,
  except in special cases
• Lucas-type (1992) cases
• Exactions cases
• Nollan (1987)
• Dolan (1994)

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The Exactions category Nollan v. CCC (1987)
Water line
Right of way -------------------------------------
--
Public beach
Public beach
HOUSE
Nollans property lines
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Exactions Nollan v. CCC (1987) There must be
an essential nexus between legitimate
government purpose and the use restriction
imposed. right of way condition fails this test
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Exactions Dolan v. City of Tigard (1994)
GOVT GOAL Drainage / impervious
surfaces Traffic congestion / parking
PERMIT CONDITION Dedicated public greenway Bike
path
Is there an essential nexus between these
conditions and the goals they are designed to
further? Are the conditions constitutional? If
not, why not?
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All takings cases
Lucas-type categorical takings
Exactions cases