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Del Monte Dunes, Good Faith, and Land Use Regulation

February 2000

Citation: 30 ELR 10100

Issue: 2

Author: Steven J. Eagle

The U.S. Supreme Court's property rights jurisprudence always has had a Delphic quality. During this century, its seminal expressions have been Justice Holmes' enigmatic "too far" language in Pennsylvania Coal Co. v. Mahon1 and Justice Brennan's reliance on the amorphous conception of "investment-backed expectations" in Penn Central Transportation Co. v. City of New York.2 The Court's 1999 decision in City of Monterey v. Del Monte Dunes at Monterey, Ltd.3 does not depart from this pattern. Furthermore, just as supplicants to the Oracle at Delphi evaluated its pronouncements in light of their own preconceptions, modern commentators tend to view the Court's regulatory takings handiwork in the same manner.4 Once again, Del Monte Dunes is no exception—indeed, it is a veritable Rorschach test. This is due largely to its heavily fact-bound nature, its implication of important constitutional issues aside from property rights, and the proclivity of the opinion writers to sweeping asides.

In particular, Del Monte Dunes creates a powerful temptation to comment on all of the things that the case does not say. But the law of the case did not leave the Court with the necessity of saying much. While there is some dicta and many implications that we should parse, the Court did not overreach by trying to do more than decide the case before it.5

The author is a Professor of Law at George Mason University. This Article is based on a paper delivered in October 1999 by the author at the Regulatory Takings Conference held at the Georgetown University Law Center.

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