So long as the Fifth Amendment to the United States Constitution exists, there will be litigation over the nature and extent of the takings question: when does governmental action abrogate private property rights through appropriation or arbitrariness? Equally certain is that there will be disagreement over the appropriate theoretical tests in takings litigation. What is uncertain, however, is the outcome of takings cases, dependent as they continue to be on the individual circumstances surrounding each case and upon judicial attitudes and perceptions of "due process" and "fairness." Several recent wetlands regulation cases in state courts exemplify these vagaries of takings law.¹

A recent decision by the New York Court of Appeals, Fred F. French Investing Co. v. City of New York,² attempts to smooth some of the conceptual turmoil in the takings area. The court may, however, have merely multiplied the confusion. In the process, land use controls advocates may have merely lost a battle in preparation for winning their war.