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Cleaning Up the Rest of Agins: Bringing Coherence to Temporary Takings Jurisprudence and Jettisoning "Extraordinary Delay"

May 2011

Citation: 41 ELR 10435

Issue: 5

Author: David W. Spohr


After decades of confusion, the fuzzy edges of regulatory takings doctrine have grown crisper. No longer a battleground for disputes over regulatory motivation, wisdom, and validity, the takings analysis now focuses squarely on the effect a regulation has on a property owner. However, one vestige of the discredited, substantive due process-like inquiry of past takings cases lingers. To prove a temporary taking, a property owner still has to show that the government committed "extraordinary delay," typically accompanied by "bad faith." Such an inquiry is antithetical to the modern understanding of the Takings Clause.




David W. Spohr is the land use ombudsman for King County, Washington. He previously served as the Deputy Property Rights Ombudsman for the state of Utah and spent six years as a trial attorney on the "Takings Team" within the Environment and Natural Resources Division of the U.S. Department of Justice.



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