Regulatory Takings, Methodically

Eric T. Freyfogle

The author is the Max L. Rowe Professor of Law, University of Illinois.

The regulatory takings jurisprudence of the U.S. Supreme Court has become an ungainly body, awkward for citizens and judges to apply and challenging as well, one might guess, for the Court itself, as it continues to reshape the law to better serve its aims. One cause of this predicament: leading decisions have arisen from peculiar facts and messy procedural contexts, yielding rulings that are hard to apply elsewhere. Another cause: the divergent views of Court members on the deference properly due the work of land use regulators. Yet, the fundamental cause might simply be the deceptive complexity of the takings issue itself. Case-by-case decisionmaking has fragmented the enigma in problematic ways. Decisions sensible on the facts and in isolation fit together poorly. Small parts, broken off for separate treatment, have unexpectedly grown into critical doctrinal elements.¹ Guiding principles once deemed central have somehow faded from significance, without plan or reason.² Decisions now turn on factual considerations that seem unimportant if not arbitrary, while more vital facts go under-weighed.³

One path that might lead to greater coherence is to reconsider the doctrine methodically, from the bottom up, reaffirming fundamental pieces and using those pieces consistently to craft law that responds, not merely to landowner interests and government needs for flexibility, but to the vigor of private property itself, as an evolving, communally constructed institution. To do that, the Court would need to admit openly what is obvious enough to most people: that property norms change over time with the evolution of social values and circumstances. Drawing upon that reality, takings law should aim, not to protect some irreducible core of property—much less to protect economic expectations divorced from law—but instead to distinguish between legitimate and illegitimate changes in ownership law. Takings doctrine, that is, needs a more procedural focus. Indeed, one of its chief functions should be to promote better decisionmaking processes, by regulators everywhere; processes that give due weight to the public interest, to the vital aims of property, and to the fairness concerns of takings law itself.

This Dialogue attempts such a reconstruction of takings law, in the important context of land use regulation.⁴ That reconstruction, composing most of the Dialogue, is followed by a synthesis of the fundamental concerns that animate this law and a quick identification of knotty factual issues, vital under current law, that fade toward insignificance under the principles here set forth. Brief comments on key takings decisions are followed by concluding bits of advice on what the Court might do next.

Because of the richness of the literature and the visibility of the subject, this Dialogue presumes familiarity with leading Court decisions and the issues raised by them. It also employs, in the interest of space and reader patience, a particularly condensed format.

The Taking of Property

1. Property Alone

The just compensation clause requires compensation for the taking of property, which is to say the taking of a thing, tangible or intangible, recognized by law as property.⁵ It does not protect economic value, economic expectations (investment-backed or otherwise, reasonable or unreasonable) or anything else, except to the extent that such things qualify as property.⁶

2. Based Outside Constitution

Property arises, not under the U.S. Constitution (save in particular settings),⁷ but under other bodies of law. Thus, to decide whether and to what extent a thing qualifies as property, [31 ELR 10314] one must look to these other bodies of law,⁸ ignoring for this purpose laws that are unconstitutional or otherwise invalid.

3. All Laws Relevant

In determining ownership rights, consideration should be given to all valid laws that affect an owner's rights in the thing owned. A sound inquiry, therefore, is not limited to common law,⁹ nor to state law generally, but includes all laws, in all forms, from all levels of government.¹⁰ The rights crafted by the interaction of these many rules is what the law generally, and hence the Constitution, deems property.

4. All Impacts

In the case of land, law defines both an owner's right to use and enjoy the land and the owner's right to redress disruptions of that use and enjoyment. Both rights, and all other landowner rights recognized by law, compose the owner's property for purposes of the takings doctrine. Thus, in assessing a law's impact on an owner, one should look to the full range of its impacts, and not merely to one impact (e.g., its impact on the right to use).

5. Relevant Date

In the case of an alleged regulatory taking, the owner's property rights are determined as of the date of the alleged taking, rather than by referring back to property laws in effect at some other date (e.g., the date of land acquisition,¹¹ 1897,¹² 1876,¹³ the golden age of common law, 1791,¹⁴ or the eras, respectively, of Blackstone, Coke, Littleton, or Bracton). The sole relevant question: Was the landowner deprived of property rights recognized by law at the time of the alleged taking?¹⁵

6. The Two Questions

A court in a takings cases faces two, sequential questions. First, what are the plaintiff's property rights, under the various valid laws that give shape to those rights? Second—and a matter solely of federal constitutional law—has that property been taken?

Property and the Legitimacy of Change

7. Link to Popular Will

Laws establishing and governing private property are majoritarian laws in the sense that they arise and gain justification from the will of the sovereign people. Such laws are based, and can only be based, on the good of the entire lawmaking community.¹⁶ The constitutional law of takings, in contrast, is a counter-majoritarian doctrine in that it protects the individual against mistreatment by the majority. Its justification arises from its processes of creation, and not from any continuing link to the collective will.

8. Propriety of Change

Like other laws based on majoritarian sentiment, property laws can shift over time, as circumstances alter and values and desires evolve. Not only can such laws shift, but they need to shift if the institution of ownership is to retain its justifying link to the good of the sovereign people. The Just Compensation Clause does not halt such shifts, nor does it require compensation whenever they occur. Rather, it protects holders of property rights against (i) illegitimate shifts in ownership norms, and (ii) takings that occur in contravention of governing ownership norms (as when particular landowners are singled out for unfair burdens).¹⁷

9. Legitimate Versus Illegitimate Change

A new law or regulation altering landowner rights should not be considered a taking, but should instead be viewed as a law that reshapes such rights, when it amounts to a legitimate shift in ownership norms. Conversely, it should not be so viewed, and becomes a possible taking, if it illegitimately alters ownership norms. A statute or regulation that legitimately changes norms is just as valid a rule of property as a venerable common-law rule, and thereafter helps make up the baseline used in takings disputes.

10. Basic Rule of Legitimacy

New ownership laws will be viewed as facially legitimate shifts in governing norms only when (i) they are reasonably calculated to promote the public health, safety or general welfare, and (ii) they apply generally to landowners similarly situated. A lawmaking community can properly subject individual owners to disparate treatment only when there exist, between or among them, differences that the [31 ELR 10315] community deems meaningful. Whether a community deems differences meaningful should be determined more from the community's lawmaking actions—how it regulates in similar settings and cases—than from its statements; keeping in mind, however, the propriety at times of addressing problems in a series of acts rather than all at once.

11. Right to Exclude

A landowner's right to exclude is neither different in kind nor deserving of greater protection than any other common landowner entitlement.¹⁸ While property law does largely vest landowners with a right to exclude, exceptions have always existed¹⁹ and new exceptions might legitimately arise, just as other ownership norms arise.²⁰ In cases involving alleged interferences with the right to exclude, courts should begin as they do in other cases: by deciding whether the landowner, under nonconstitutional law, possesses the right allegedly taken.

Defining Harm and the Duties of Citizenship

12. Power to Define

As it crafts ownership norms over time, a lawmaking community has the authority to enact laws that ban activities deemed harmful. Thus, the idea of harm, long associated with the common law of nuisance, should remain the evolving, majoritarian concept that it has been for centuries. Harm is appropriately gauged in context, taking into account variations, not just in surrounding land uses, but in the land's natural features.

13. Types of Harm

So long as it acts consistent with the above paragraphs, a community can define harm as it sees fit. Thus, harm could include: (i) harm to the private property being regulated; (ii) harm to other property or people, near or far; (iii) harm to the lawmaking community as a whole; (iv) harm to adjacent or other communities; (v) harm to the natural processes of the land and to other species of life; and (vi) harm to future inhabitants of the community.²¹ Except as recognized by property law, a landowner has no right to destroy private land, nor any right to degrade it in ways that render it less productive for future users. A lawmaking body need not limit its concerns to land use impacts that spread beyond parcel boundaries.

14. Whether Harm Has Been Found

Whether a community has or has not deemed a particular activity harmful in particular settings should be determined chiefly by examining the community's lawmaking conduct, with less weight given to its statements, keeping in mind that efforts to address a newly identified problem might properly begin on a small scale and that multiple laws and multiple governing bodies might address a problem in tandem. Considerable weight should also be given to external evidence, such as whether incentive programs have discouraged the activity; whether other lawmaking bodies have made similar findings of harm; whether nongovernmental entities have labeled the activity harmful; and, more generally, whether substantial community sentiment supports the finding. Has society come to view the activity as problematic? A lawmaking body, however, can properly label a particular land use harmful without halting current instances of that land use, given the special institutional importance of protecting existing improvements to land (see paragraph 18).

15. Carrying Capacity Harms

A community can define as harmful land use practices that are benign in isolation but disruptive cumulatively in that they overload the perceived capacities of natural or human-created systems. Thus, a community could prohibit a drainage activity within a basin, even when the action judged in isolation is unobjectionable, if the drainage activity combined with similar, existing or foreseeable activities, might create harm.

(A) The preferred method of imposing such protective laws is to foresee the problem before systemic limits are reached and to adjust property rights so that each landowner, to the extent feasible, has a fair share right thereafter to engage in the activity (see, for instance, paragraph 16).²²

(B) Such foresight, however, is not constitutionally required: if it chose, a lawmaking community could employ a first-in-time rule that allows landowners to engage in the cumulatively harmful conduct until such time as the systemic limit is reached, at which point a ban would begin.

[31 ELR 10316]

(C) Nonetheless, if such a first-in-time law prohibits a landowner from engaging in the only principal use for which the land is reasonably suited, then it should properly take effect only if: (i) landowners affected by it are given reasonable notice²³ and a fair chance to engage in the activity before the ban takes place; (ii) the ban is due to a systemic limit that landowners might reasonably have foreseen without notice (e.g., in sewage treatment system capacity); or (iii) landowners for some other reason should have foreseen the coming legal change.

16. Transforming Rights to Develop

In the case of a particular land use project²⁴ that is harmful in combination and not in isolation, a lawmaking community might properly transform the landowner's preexisting right to engage in such activity into a right instead to share fairly in the future economic gains from that activity as it takes place prospectively over a larger area. An obvious way for this transformation to occur is through the use of transferable development rights (or other methods that similarly spread the law's burdens and benefits). Thus, a watershed or habitat protection plan might limit the number of structures that can be built in a particular region, so long as all lands suitable for new construction in that region are treated evenly.²⁵

17. Duties of Citizenship

To satisfy the requirements of paragraph 10, a legitimate ownership norm need not amount to a ban of harmful activity. It can instead promote the public health, safety, and welfare in any one of a variety of ways, consistent with such paragraphs and with the requirements to avoid unfairly singling out landowners for harsh treatment (see paragraphs 19-21). In particular, it can impose affirmative duties on landowners to use their lands to promote the common good, including duties related to ethical, ecological, and aesthetic aims, so long as such laws otherwise satisfy applicable requirements. Nonetheless, a law that deprives a land parcel of substantially all economic value is unlikely to survive scrutiny under the above requirements absent a finding, fairly implemented by the community, that any valuable use would be harmful.²⁶

18. Current Uses

Given the institutional importance under property law of protecting improvements in land (and, hence, stimulating further valuable improvements), lawmakers will commonly draw lines between existing and proposed instances of a given land activity, banning or burdening new instances of such activity while allowing the continuance of current instances. Indeed, it would typically be difficult or impossible for a lawmaking body to justify terminating an existing activity, in terms of the public health, safety or welfare, absent a finding that the activity poses grave harm or danger similar to a common-law nuisance. The rationale: disrupting current land uses endangers the security of investments made to improve land, thereby reducing incentives for such improvements and (to the extent of the reduction) harming public welfare.²⁷ Accordingly, current land uses²⁸ would typically enjoy considerable protection, not because of any independent constitutional shield but because of the communal harm associated with disrupting them.

Singling Out

19. The Core Concern

One of the central, animating concerns of the takings doctrine is to protect landowners from being singled out for unfair treatment, which is to say disparate treatment not based upon material differences that the community deems significant. Disparate treatment can arise when a law or act imposes peculiar requirements on a landowner, as well as when a law, uniform on its face, works an unusual burden because of a landowner's differing circumstances.²⁹ Inevitably, efforts to address this concern will require lawmakers and judges to pay careful attention to how a given landowner is treated vis-a-vis other landowners. Comparisons among landowners, of course, complicate lawmaking as well as litigation, but they are, in this setting, indispensable.

20. Fairness as Applied

As applied to a particular parcel of land, a law that is facially legitimate will be valid only when, in the judgment of the lawmaking community, its application to the land reasonably furthers the public health, safety, and welfare. Nonetheless, in cases involving single tracts of land—particularly tracts that are unusual due to circumstances not caused by government—reviewing courts should give appropriate recognition to a community's need to apply its laws broadly, without creating exceptions that might materially weaken a law's efficacy.

[31 ELR 10317]

21. Justifying Special Burdens

In addition, a facially legitimate law that imposes on a landowner a regulatory burden that is materially different, in kind or degree, from burdens imposed on other landowners would be valid only when (i) the regulation bans an activity deemed harmful, or (ii) the burden is roughly proportional either to burdens that the landowner's activities impose on the public or to special benefits that the landowner has received from the public.³⁰ This rough proportionality text must also be met whenever a lawmaking body demands an exaction from a landowner, whether in cash or property and without regard for whether the exaction is demanded as a condition of obtaining a development permit or other right.³¹ In either case, however, so long as the rough proportionality requirement is met, a lawmaking community need not show any close nexus between the type of harm caused by the landowner and the regulatory burden imposed or the exaction demanded.³² Thus, a landowner who causes or contributes to one community problem can appropriately be asked by way of recompense to help address a related problem, so long as the law imposing such demand is otherwise facially legitimate.³³

Decisionmaking Processes and Judicial Deference

22. Importance of Process

A concern that underlies the Due Process Clause—and that ought to carry equal force in regulatory takings law—has to do with the processes lawmakers use when restricting or otherwise redefining the rights associated with land ownership. Because ownership norms draw their justification from the good of the community, changes in such norms should give fair consideration to that overall good, and not be based on a restricted inquiry that overlooks critical elements. Takings law, therefore, should contain an element that is now largely missing: an explanation how lawmakers procedurally might best perform their work to give adequate review to the full impacts of what they do. Bad decisions often flow from bad processes.

23. Assessing Institutional Impacts

The revision of ownership norms inevitably has adverse impacts, however slight, on private property as an institution, given that many of the institution's communal benefits—particularly its stimulation of enterprise—require moderate stability in governing norms, at least over typical planning time frames. Those adverse impacts heighten when redefinitions are undertaken in a seemingly random manner, substantively or procedurally, or when they occur by way of processes that fail to consider the impacts of a change. Unduly constrained decisionmaking is more likely to occur in bodies whose efforts focus on the achievement of specific tasks (e.g., historic preservation, traffic flow, promoting agriculture) and whose processes can easily ignore factors not directly related to their tasks. Related problems: the tendency of governing bodies to ignore adverse impacts that cross jurisdictional lines and of geographically small communities to ignore how their actions affect the larger landscape.

24. Deference Based on Lawmaking Process

Concerns over the adequacy of lawmaking processes should appear in takings law in the degree of deference shown to the decisions of various governing bodies and officials. Although all lawmakers deserve deference from courts in their critical determinations (e.g., what is the public health, safety, and welfare; what promotes it; what differences among land parcels are material), that deference should not be uniform. Deference should heighten with increases in: (i) the size of the lawmaking community; (ii) the geographic reach of the challenged law and the number of landowners affected by it; (iii) the substantive range of issues and goals within the lawmakers' portfolio; and (iv) evidence on the record of careful thought given to the long-term good of the community, to spillover effects on other jurisdictions, and to the impacts of change on property as an institution. Judicial decisions clarifying these factors could stimulate much-needed improvements in lawmaking processes, particularly at the local level and in bodies apt to view relevant concerns narrowly. Nonetheless, when assessing decisions made by single-purpose bodies a court should also consider the legislative determinations reflected in a body's charter, giving more weight to such a determination when it reflects a thoughtful weighing of relevant considerations and has translated that reflection into clear guidance.³⁴

[31 ELR 10318]

25. Stimulating Good Work

In the course of explaining appropriate standards of deference in various settings, courts resolving takings disputes might usefully explain the attributes of good decisionmaking processes,³⁵ in effect rewarding lawmaking bodies for good processes by showing greater deference to their decisions. In unusual cases, a court might overturn a decision as a taking but stay its ruling to permit the lawmaking body a chance to reconsider its action, allowing it to give more full consideration to all relevant concerns, including the major concerns of property as an institution.

Discrete Issues, Relevant and Otherwise

26. Temporary Takings

To obtain compensation for a temporary taking, a property owner must show, not simply a taking, but that the taking arose from or was characterized by bad faith, unreasonable behavior to the extent of unprofessionalism, or a clear disregard of settled law.³⁶ In fairness to landowners, a judgment of bad faith or unreasonable behavior could arise based on the actions of one governmental entity in isolation or on the combined actions of several governmental entities. Moreover, it should be determined without regard for whether the actions of particular government employees or agents were mandated by law. On the other hand, such a determination should take into account the inevitability of problems arising due to the fragmentation of governing authority as well as the need for government flexibility during periods when ownership norms are in transition.

27. Determining Compensation

(A) Because takings law protects only legal rights, determinations of compensation should be based solely on the value of rights taken, and not on economic values or expectancies apart from those rights. For that purpose, invalid laws should be ignored but other laws should not.

(B) Because landowner rights are limited by the general principle of doing no harm to their landowners and the community at large, valuations should only consider economic options that cause no harm.

(C) In a takings case based on the invalidity of a particular law, the calculation should assume the invalidity of the law as applied to other, similar landowners, and should thus ignore values created by that law.

(D) As for transferable development rights, they should be viewed as partial (or full) compensation in the (presumably rare) case in which they are intended as such. In the more common case, when transferable development rights are intended as a reconfiguration of a landowner's right to develop, they should be viewed as part of that owner's rights and taken into account, not at the compensation stage, but in deciding whether a taking has occurred.

28. Issues Avoided

The regulatory takings approach set forth here diminishes the importance of several factual issues that now loom large in takings disputes.

(A) The size of the regulated parcel (also known as the denominator or segmentation issue) becomes largely irrelevant. If 10 acres of wetlands are put off limits to development, the law should stand or fall based on a consideration of the 10 acres. Indeed, it could well be unfair for an owner of such 10 acres, all wetland, to receive more favorable treatment than the owner of a similar wetland included in a larger tract. How can this be justified? The larger parcel is relevant only when the regulation itself is based upon the larger parcel (e.g., a regulation requiring a certain percentage of a parcel to remain unpaved). Note, however, that this position, compared with current law, can both help and hurt property holders contemplating intensive enterprises. While an inquiry in the wetland case would ignore dry land also owned, cases involved mining rights or water rights would also be unaffected by whether the owner of such rights did or did not own adjacent rights (for instance, surface land rights). Thus, a ban on mining in an area, if lawful generally, would not require special treatment of a person who owned only the right to mine (and, again, special treatment itself would raise fairness concerns). A ban on using water for a particular, nonbeneficial purpose, need not require special treatment for a person who held only the right to use water for that purpose. Similar results would hold for those who owned air rights in urban areas detached from underlying surface structures and those who held hunting or fishing rights in areas declared game preserves.

(B) The date of property acquisition also becomes irrelevant, along with the state of the law at that date. The takings issue looks to the rights held by an owner at the date of taking. Indeed, fairness concerns would arise if a law treated otherwise identical landowners differently based on how long they owned their property. Again, how can this be justified? Moreover, it is unfair to governing bodies to ask them to implement new laws on a parcel-by-parcel basis as land is transferred.

(C) Because landowner expectations apart from the law are not protected, it makes no difference whether a landowner's expectations are or are not backed by investments. Here, too, fairness issues arise: Is it fair to distinguish between two otherwise identical land parcels because one was purchased and one inherited? The only expectation worthy of special consideration is the expectation of continuing existing land uses (see paragraph 18).

(D) Whether a new law does or does not relate closely to a background principle of property law is relevant only to the extent made relevant by the principles set forth above. Of course, a law that merely duplicates an existing common-law limit on ownership is not a substantive legal change at all. In a broad sense, property law has only two central principles: (i) over the long term ownership rights are recognized only to the extent and so long as their recognition supports the common good, and (ii) rights to use property [31 ELR 10319] are limited by the overall sic utere tuo/reasonable use requirement. To be sure, takings law has its own principles, as do other constitutional doctrines that affect government's ability to alter a landowner's rights. In addition, the public good that arises from private property necessarily entails a conservatism among lawmakers, particularly in acts that disrupt current uses of land. Still, background principles are more bases for growth than limits on growth.

The Concerns, in Short

In the arena of land use regulation, the just compensation clause is animated by concerns about the fair treatment of landowners in relation to one another, more so than byworries about new laws and policies that are legitimately designed to keep private ownership, as a social and economic institution, in line with evolving circumstances and needs. In the case of a landowner adversely affected by a regulatory act, the core takings issue is whether the challenged act is one of the new rules of ownership, from time to time needed to keep property in line with the public health, safety, and welfare, or whether it is something else. Is the law a legitimate shift in the rights and obligations of land ownership or is it a less legitimate act, perhaps a deviation from generally applicable norms or a singling out of particular landowners for burdens that in fairness should be spread more widely.

Landowners have always been expected to control their activities to avoid causing harm to neighbors and the community at large. To that end, lawmakers have discretion to identify and restrict harmful conduct, including both conduct that in the past was accepted and conduct that is harmful, not in isolation, but only in context or when too many landowners engage in it. Moreover, given the special importance of land and land uses to the community's welfare, landowners are often expected to shoulder burdens aimed at promoting the common good, both as duties of citizenship and in recognition of the wide range of governmental services that particularly benefit them. Still, while landowners must expect the entitlements of private ownership to evolve, they can fairly expect that government respect their rights under applicable norms, without singling particular owners out for unfair treatment. They can expect, too, that any material alteration of their rights, and the imposition of any new duty, be thoughtfully crafted to serve the public health, safety, and welfare, with due regard for those institutional values of property that led the Constitution's drafters to afford it such special protection. Finally and particularly, they can expect that current uses of land will enjoy continued protection absent a finding of harm or another determination that interference with such uses is so important to the public good as to outweigh the inevitable unsettling effect on future land development.

Takings cases, accordingly, will typically focus on questions relevant to these concerns, all aimed at determining whether a landowner has had a still valid property right taken or whether the challenged law or act instead represents a legitimate shift in ownership norms. Does the challenged law implement a considered determination, fairly applied, that a particular land use or other action would cause harm on lands such as the plaintiff's? If not, does it impose fairly a burden on landowners that is a reasonable duty of good citizenship, or that, alternatively, corresponds with benefits that landowners get in the form of supporting government services? Conversely, has a law or act singled out a landowner for an exceptional burden, in the form of a deviation from generally applicable laws or a specially imposed burden that unfairly singles out particular landowners? In the case of exactions, as well as in the case of newly imposed burdens not responsive to findings of harm, is the demand on the landowner roughly proportional either to public burdens caused by the landowner or to particular benefits that the landowner has received?

In all cases, does the challenged law or act reasonably relate to the public health, safety, and welfare, recognizing that governing bodies and officials are due latitude in making this decision in the first instance, particularly when and to the extent that their decisionmaking processes show careful thought to the full impacts of their work, including its impacts on the core institutional concerns of private ownership?

Case Comments

To the extent that recited facts allow determinations, what outcomes would the above principles have produced in leading regulatory takings cases?

Penn Central Transportation Co. v. City of New York.³⁷ Probably the same outcome (no taking). Penn Central retained rights to use its air space, plus its development right was transformed into a valuable transferable right (which was not given, apparently, as compensation). But query: Were other owners of similar structures being dealt with similarly? Would the outcome have been the same without the transferable right?

Kaiser Aetna v. United States.³⁸ A poorly reasoned decision because of inadequate attention to the landowner's underlying property interest. The Court relates that, under local law, the landowner had a right to exclude public boaters before changes were made to the land. But did the land use changes (connecting the formerly separate pond to navigable waters) alter that right under local property law (as it would have in other states)? Also, the Court assumes that the federal navigation servitude does not automatically attach to nonnavigable waters made navigable. Yet, that was an issue of first impression, deserving of more careful thought. If local law did not permit public use and if the federal servitude did not attach, then the action (if within the Corps' power at all) was presumably a taking because the landowner was (presumably) singled out for harsh treatment that fails the above tests.

Loretto v. Teleprompter Manhattan CATV Corp.³⁹ Another poor decision in that the Court failed to ground landowner rights in applicable property law. If landlords had simply been required to provide cable service to apartment dwellers, no taking would have occurred; landlords, after all, are required to provide many services, and cable television boxes take up less space than elevator shafts. The law was problematic, not because of the physical occupation, but for more particularized reasons: landlords had no choice of cable providers, they had to allow cable companies to include switching boxes not needed to service the particular building, and they may have had limited control over installation. [31 ELR 10320] Absent these features the law would have withstood scrutiny; with them, more inquiry is needed, given that the law as (inartfully) drafted demanded an exaction not based on any community burden generated by the landowner.

Nollan v. California Coastal Commission.⁴⁰ No taking, contrary to the Court's ruling. The exaction imposed on the Nollans was by no means disproportionate to the problems they exacerbated, and the precise problem they caused (blocking visual access from the street side of their house) was quite close to the remedy they were requested to provide (increasing visual access from the ocean side of their house).

Lucas v. South Carolina Coastal Council.⁴¹ The statute in question should have withstood a facial challenge, given that it implemented the sensible determination that building on barrier islands is harmful. As applied to the two lots owned by Mr. Lucas, however, the challenge becomes far stronger. If all surrounding lots were already covered with homes, would the law as applied to his lots have furthered the public health, safety, and welfare? Perhaps not, but the relevant facts are not provided in the opinion.⁴²

Dolan v. City of Tigard.⁴³ The decision is consistent with the above-stated principles. The decision displays an unjustified interest in protecting the right to exclude. Even so the city's request for public access to the floodplain was a gratuitous burden, given that the city could have asked merely for the right for city employees to enter the property to maintain the floodplain. If the city wanted to open the floodplain to public travel, it might more fairly have imposed its demand on all owners of similar lands, and not limited it to landowners seeking development permits (though perhaps treating differently parcels on which the public easement would disrupt current uses, interfere with residential privacy, or create safety hazards).

City of Monterey v. Del Monte Dunes at Monterey, Ltd.⁴⁴ As the Court found, a clear instance of landowner abuse, violating numerous principles above; a rare case in which harsh words from the bench might have been appropriate.

Good v. United States⁴⁵ (no taking when permit to fill wetlands is denied because, at the time of purchase, the landowner knew that wetlands filling was problematic). As the court found, no taking on the principles here. The case entailed a clear instance of a generally applicable ownership norm that banned a harmful activity. There was no need, however, for the court to worry about when the landowner acquired the property or to suggest that, had the acquisition date been earlier, a taking might have occurred.

District Intown Properties v. District of Columbia⁴⁶ (urban apartment-building owner is denied permit to build townhouses on expansive, subdivided lawn; no taking). A troubling set of facts. It makes little sense for the outcome to turn on whether the vacant lawn was or was not part of a larger parcel, although it is plainly sensible, in evaluating the impacts of construction, to consider its effects on surrounding lands uses and on the public's aesthetic enjoyment of the neighborhood. A more thorough inquiry is needed to determine why the ban on construction was imposed and how the treatment of this land compared with the treatment of other land, particularly given the grave economic consequences. In conducting such an inquiry, however, a court should not consider merely the treatment of land under the particular law that applied to this parcel, but instead should compare the rights held by this landowner vis-a-vis the rights held by other landowners. If other landowners have no right to develop land, it is unimportant that they have lost their right under some other law. If the construction of new residences in the area was effectively banned (or nearly so), the restriction should withstand challenge; the carrying capacity of the neighborhood had been met, and further congestion was appropriately halted.⁴⁷

Just v. Marinette County⁴⁸ (a classic early case of environmental jurisprudence, upholding a type of wetlands protection law). The outcome (no taking) was correct, given that the law sought to prohibit a harm and applied (apparently) to all similarly situated landowners. The court's much quoted reasoning, however, about property rights being limited to the natural uses of the land, cannot withstand scrutiny. Property is a human-created institution, however much it might draw (and needs to draw) upon the natural world for guidance. The question, thus, was what rights the landowner had by law and whether those rights were taken, not whether filling wetlands is consistent with the ecological integrity of the surrounding ecosystem.

Bormann v. Board of Supervisors in & for Kossuth County, Iowa⁴⁹ (taking occurs when county authorizes on neighboring land a mega-hog harm that amounts to a common-law nuisance). The court properly found a taking. Although lawmakers might well have been empowered to change the generally applicable laws of nuisance, they did not do so. The case involved a clear instance of singling out particular landowners for burdens, and fails the rough proportionality test. Plus, the lawmaking procedures in the case were highly suspect.

Respectful Advice for the Court

(A) Recognize private property as an organic, evolving institution. Until you do, it will be hard to craft takings rules that perform the critical function of distinguishing between [31 ELR 10321] legitimate and illegitimate changes in ownership norms. Openly ask, in particular cases: Is the law or regulation being challenged a part of the ongoing updating of ownership norms or is it something else, a deviation from those norms or an unfair singling out of a particular land owner? Objection: Not good to acknowledge so overtly that property laws change. Answer: This is no news to anyone paying attention, least of all developers.

(B) Focus on property rights recognized under nonconstitutional law, getting away from the unwise drift toward (i) economic jargon, and (ii) the idea that the Constitution itself creates and protects some minimal core of rights, such as the right to exclude. There is no such core, and attempts to create one are counterproductive for landowners, given that they send the message to lawmakers everywhere that they can tamper with property rights as they please so long as they respect that core. By focusing on such a core, you provide no help to landowners and miss chances to give much-needed advice to governing bodies on how to conduct their affairs.

(C) Revive the harm-benefit test.⁵⁰ True enough, there is no strictly logical way to distinguish between halting a harm and conferring a benefit. But since when are cases decided on abstract logic alone? The test is a good one so long as it builds upon a baseline understanding of what is and is not harmful. Nuisance law has built upon that baseline (community values) for centuries. Lawmakers today have every bit as much right as juries to implement contemporary understandings of harm.

(D) Do not focus so much on the single landowner filing suit. Takings law largely has to do with the treatment of one landowner vis-a-vis another, which means that it needs to take into account the treatment of other parcels. Only by looking more broadly is it possible to apply the harm-benefit test, to decide whether a law imposes a new burden of citizenship, and to discern whether a landowner is being singled out for mistreatment.

(E) Give more thought to why ridiculous factual patterns such as the one in Del Monte Dunes sometimes come to the courts. Perhaps government officers in such cases are simply misguided and unfair. A more likely answer is that decisionmaking processes are too fragmented and narrowly focused. The case is a good one to comment on the attributes of sound processes that affect landowner rights.

(F) Distinguish more clearly between disruptions of current land uses and disruptions of land values based on prospective land uses. Both cases are reducible to dollars and their economic impacts might be similar. But the impacts on a property's core values are quite different. Stability in norms is needed to induce landowners to mix their labors with their lands (to use John Locke's language); owners are not likely to sow if they cannot reliably reap. On the other hand, owners of vacant land have typically not acted in reliance on existing law in any way that has benefitted the community. Indeed, Locke's mythical property owner acquired land only by improving it, and thus had no natural-law claim to vacant land. Market values should be based on the law, not the reverse.

(G) Reconsider your desire to see an exact linkage between the type of burden created by a particular land use and the type of exaction or other burden imposed by government in response. That requirement can stimulate unhelpful arguments about whether two burdens relate to a single problem or to two different problems. Beyond that, they tie the hands of government in a way that could prove harmful to landowners. The easement that the California Coastal Commission sought in Nollan was, on the facts, a modest interference with the Nollans' land; in contrast, a limitation on their ability to build, aimed at protecting "visual access" from the street, could have been far more intrusive. Is there a reason to push the Coastal Commission to use the latter when the former was better for landowner and public alike?

(H) Two points to keep in mind:

One of the most important ongoing change in property law is the redefinition of ownership norms to protect the healthy functioning of the natural systems upon which all life depends. Rights to use land are coming to depend on the land's natural features, and definitions of harm are coming to include disruptions of natural components such as topsoil, hydrologic systems, and biological diversity. The proper role for takings law is not to throw a wrench in the works of these much needed changes but rather to help guide them so that they occur in ways that maintain the health of private property as an institution.

In urban areas (and in some places elsewhere), an urgent need exists to reassemble land parcels in older, dilapidated neighborhoods, commercial as well as residential and industrial, so that redevelopment efforts can take place. Such efforts are difficult today, and their failure to take place more often than they do is an important cause of costly, ecologically damaging urban sprawl. Reassembly infrequently occurs because of fears over constitutional problems and because of concepts of private property, perpetuated by judicial decisions, that date from an era when such problems (and other current problems) did not exist. Yes, the public use requirement is so relaxed that governments could condemn property for such projects without much fear of being rebuffed in court. But condemnation by government has bad overtones, in part because cases involve (big, bad) government against (abused) individual landowners and because landowner rights are transformed into cold cash. Other reassembly options are available, but they often depend on a more flexible understanding of property, one far different from the hypothetical Blackacre on which lawyers working today were weaned. New understandings of property are needed, but can they arise when the Court keeps talking about background principles, antecedent inquiries, unchanging rights to exclude, and the like? Like other growing organisms, property on occasion needs to send out shoots in new directions. It needs fertilizing as well as pruning. Those who craft it need guidance that the Court can give.

1. An example of this fragmentation is, most visibly, Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 22 ELR 21104 (1992), and its categorical rule for total deprivations of economic value.

2. One of the primary guiding principles is found in the multifactor test in Penn Cent. Transp. Co. v. City of New York, 438 U.S. 104, 8 ELR 20528 (1978).

3. E.g., Good v. United States, 189 F.3d 1355, 30 ELR 20102 (Fed. Cir. 1999) (date of property acquisition). District Intown Properties v. District of Columbia, 198 F.3d 874 (D.C. Cir. 1999) (whether vacant land is or is not attached to apartment building).

4. The inquiry is further limited by excluding the issue of "public use" as well as questions about the ripeness of particular challenges and the adequacy of state post-deprivation remedies.

5. Although implicit in current law, this point formerly appeared with greater clarity. See Fox River Paper Co. v. Railroad Comm'n of Wis., 274 U.S. 651, 657 (1927) (the Fourteenth Amendment "affords no protection to supposed rights of property which the state courts determine to be nonexistent").

6. Thus, it makes little sense to debate whether or not a landowner's expectations are or are not investment-backed. E.g., District Intown Properties, 198 F.3d at 874 (compare majority and concurring opinions). Whether or not a landowner's expectations are reasonable is also not relevant, except to the extent such expectations are based on law in effect at the time of the alleged taking (as opposed to some point in the past, as when the property was acquired). Even so, protection goes only to legal rights, not expectations apart from the law, and law rightfully changes over time.

7. For instance, the search-and-seizure rule of the Fourth Amendment helps define landowner rights to privacy, and thus qualifies as a rule of property.

8. Compare the terms "speech," "religion," and "search," which are given meaning directly by the Constitution, without reference outside the document.

9. I dispute here scholars who view the common law as the primary if not sole source of property laws, implicitly denying legislatures the power to keep ownership laws up to date. See, e.g., RICHARD A. EPSTEIN, TAKINGS: PRIVATE PROPERTY AND THE POWER OF EMINENT DOMAIN (1985).

10. For instance, the federal Clean Water Act helps shape the rights of riparian landowners and water rights owners by giving them legal entitlements to challenge pollution sources; conversely, it curtails landowner rights by limiting their abilities to use rivers as sewers.

11. Thus, I question the reasoning of Good v. United States, 189 F.3d 1355, 30 ELR 20102 (Fed. Cir. 1999) (looking to law at the date of land acquisition), though not its final judgment.

12. The year the Court first applied Fifth Amendment limitations to the states by way of the Fourteenth Amendment, including (the Court has long assumed) the requirement to pay just compensation when private property is taken for public use. See Chicago, B.&Q. R.R. v. Chicago, 166 U.S. 226 (1897).

13. This is the effective date of the Fourteenth Amendment.

14. This is the effective date of the Fifth Amendment's Just Compensation Clause, applicable to the federal government.

15. Or dates, in the case of takings that occur over time.

16. I limit my statement here to land so as to put to one side nonutilitarian arguments about property rights in peculiarly personal creations, such as diaries.

17. One implication: A stable takings test, applied in otherwise identical cases at differing times, can properly lead to differing outcomes if governing ownership norms have shifted between the dates of the cases. Thus, the outcomes in Pennsylvania Coal Co. v. Mahon, 260 U.S. 393 (1922) and Keystone Bituminous Coal Ass'n v. DeBenedictis, 480 U.S. 470, 17 ELR 20440 (1987) might best be explained by shifts in the state's property norms between the years of the cases, rather than by any fundamental change in takings law or inconsistency in its application.

18. Keeping in mind the strong public interests in protecting current land uses and landowner privacy, which would count against the legitimacy under paragraph 10 (and later paragraphs) of invasions that disturb these interests. Far lesser public interests are at stake in the case of invasions that do not interfere with current land uses, that do not disrupt residential privacy, and that the landowner can halt if at some point they interfere with new land uses.

19. E.g., State v. Head, 498 S.E.2d 389 (S.C. 1997) (landowner who creates, on private land, an artificial lake connected to a navigable waterway automatically loses the right to exclude the public from the lake surface); Nevels v. State, 665 So. 2d 26 (La. App. 1995) (public right to use banks of navigable waterways, despite landowner objections); Montana Coalition for Stream Access v. Curran, 682 P.2d 163 (Mont. 1984) (recreational stream users can portage on private land around stream obstacles so long as they do so "in the least intrusive way possible, avoiding damage to the private property holder's rights"). As an illustration of the early, egalitarian spirit of American law, consider M'Conico v. Singleton, 9 S.C.L. (2 Mill) 244 (1818) (upholding the right of the public to enter and hunt on unenclosed private land despite "the dissent or disapprobation of the owner"). For a more modern, less intrusive application, see Cabot v. Thomas, 514 A.2d 1034 (Vt. 1986) (landowner has no right to exclude public boaters and fishers from "boatable" waters on private land and can exclude hunters only on "enclosed" land, with enclosure disqualifying a landowner from certain government benefits).

20. An equally common attribute of ownership is the right to sell, yet the Court has concluded that, in unusual circumstances, the right to sell might be removed, at least in the case of personal property. See Andrus v. Allard, 444 U.S. 51, 9 ELR 20791 (1979) (feathers of federally protected eagles).

21. For instance, a community could define as harmful (i) farm tillage practices that erode the soil, without regard for external impacts on adjacent landowners; (ii) alterations of wildlife habitat that materially disrupt species or ecosystem processes deemed valuable by the community; and (iii) construction within floodplains that exacerbates flooding or endangers human safety and security.

22. Thus, far from treating transferable development rights with suspicion, the Court should affirmatively encourage their use in appropriate settings; they are much fairer, in spreading burdens and benefits, than first-in-time alternatives.

23. Including notice provided by the pendency of the proposed legal change.

24. For instance, residential construction on lands of a type deemed suited for such construction.

25. One option for a lawmaking community is to provide transferable development rights to all holders of undeveloped land, based on the number of acres owned. Alternatively, it could ban development out-right on lands that are ecologically unsuited for development, reserving transferable development rights only for owners of land that is physically suited for development.

26. I do not mean to suggest that landowners possess a constitutionally protected right to engage in at least some valuable use absent a finding of harm. To the contrary, there is no constitutional minimum content of property, and any asserted right must be based on nonconstitutional law. The point here is slightly yet critically different: It is difficult to imagine that a community could ban all economic uses of a land parcel, under circumstances in which such uses (or some of them) are not harmful, and still comply with the nexus requirements in paragraphs 10, 21, and 22, and with the requirement that laws apply broadly to all roughly similar landowners.

27. The same concerns are not present with respect to the value that attaches to bare land or land on which improvements add no material value. In such instances, landowners have added nothing to the common good, and restrictions on using vacant land would not deter investments in other lands (though they might of course, depress values of bare land). The danger to the public good that comes from materially restricting uses of vacant land is the cognizable but less vital prospect that such restrictions could encourage landowners to develop prematurely, in less beneficial ways.

28. Meaning: active uses of particular acres that have been materially improved or otherwise altered, not vacant land slated for a continuation or expansion of current activities.

29. Excluding circumstances self-imposed in contemplation of the law or after its effective date.

30. By extending the rough proportionality requirement to individualized regulatory measures that do not ban harmful activities I deviate from City of Monterey v. Del Monte Dunes at Monterey, Ltd., 119 S. Ct. 1624, 29 ELR 21133 (1999) (rough proportionality requirement only applies to exactions). For an instance of special benefits (and a good review of relevant law), see Hendler v. United States, 175 F.3d 1374, 29 ELR 21185 (Fed. Cir. 1999).

31. I envision here that government would have the power in appropriate cases to demand exactions outside the context of granting development permits of one type or another, much as they now impose special levies on landowners to cover the costs of sewers and sidewalk extensions. I thus envision that a community could demand an easement across private land, without attaching it as a condition to a development permit, if the exaction otherwise satisfies applicable requirements. This power does not differ in kind from the power to levy special assessments, except in cases when the easement would disrupt current uses, interfere with residential privacy or create safety hazards. Lawmaking bodies that possess this power can divide burdens more fairly among all landowners, thereby reducing the need to impose burdens disproportionately on landowners required to obtain development permits.

32. One concern here is that arguments can dwell, unhelpfully, on precisely what is a distinct harm and whether two allegedly distinct harms are or are not merely a single harm. Thus, had the parties in Nollan v. California Coastal Comm'n, 483 U.S. 825, 17 ELR 20918 (1987) had advance word of the Court's concerns, they might have argued at length about whether the Nollans' new home was contributing to beachfront congestion generally, to the public's visual enjoyment of the beach generally, to the public's visual enjoyment of the beach at a particular place along the beach, to the public's visual enjoyment of the beach from the highway rather than from the beach itself, etc. Similarly, in Dolan v. City of Tigard, 512 U.S. 374, 24 ELR 21083 (1994) the parties might have argued about whether the expanded plumbing supply store would contribute (i) to urban congestion generally, (ii) to highway traffic rather than bikeway or pedestrian traffic, and (iii) to traffic at rush hour versus traffic at midday, etc. Problems do not come in distinct packages. The core fairness concern is proportionality of burden, not exact tracing.

33. In the event that a landowner under the rough proportionality test has already helped satisfy a problem, the legitimacy of further burdens or exactions based on the same problem should take into account the prior burdens or exactions.

34. By implication, the more vague the legislative guidance and the less it reflects a legislative weighing of competing concerns, the more likely it is that the legislature expected the body being created to consider the full range of concerns.

35. In a manner similar to what many courts have done when discussing the requirement that local zoning decisions be made in accordance with comprehensive plans.

36. Query: If we recognize temporary takings of property under the Fourteenth Amendment, should we not in fairness recognize temporary takings of life or liberty, as when criminal defendants have their convictions overturned on constitutional grounds? Has property become more valuable than life itself?

The Court has apparently left open the question of what if anything (beyond a taking) a landowner must show to obtain recovery in a temporary takings case. Del Monte Dunes (case did not present "an appropriate occasion to define with precision the elements of a temporary regulatory takings claim").

37. 438 U.S. 104, 8 ELR 20528 (1978).

38. 444 U.S. 164, 10 ELR 20042 (1979).

39. 458 U.S. 419 (1982).

40. 483 U.S. 825, 17 ELR 20918 (1987).

41. 505 U.S. 1003, 22 ELR 21104 (1992).

42. The most relevant precedent is Nectow v. City of Cambridge, 277 U.S. 183 (1928). The case might have been handled better under the Duc Process Clause.

43. 512 U.S. 374, 24 ELR 21083 (1994).

44. 119 S. Ct. 1624, 29 ELR 21133 (1999).

45. 189 F.3d 1355, 30 ELR 20102 (Fed. Cir. 1999).

46. 198 F.3d 874 (D.C. Cir. 1999).

47. Although Judge Williams in his concurring opinion in the case is right to express concerns, both about the regulatory restriction in the case and the wisdom of governing Supreme Court precedents, his economic analysis of the dispute is unhelpful. He characterizes the law as an effort by neighbors to capture the "positive externalities" generated by the open land. But is it not equally true (as a matter of logic) that they sought to avoid the negative externalities generated by development, and are we not, in choosing between these two interpretations, back to the (unfortunately) discredited harm-benefit test? In addition, given that the land had little or no value in its vacant state, could not one say that the landowner, in seeking to develop, was simply trying to capture a huge positive externality generated by the surrounding land uses? After all, why is vacant land across from the National Zoo so much more valuable than vacant land in a remote rural location, save for the value added by the surrounding community—a value that the landowner has not at all created? Cf. HENRY GEORGE, PROGRESS AND POVERTY (1879). The judiciary would be wise to avoid all such lines of logic, which largely bypass the animating concerns of the Just Compensation Clause.

48. 201 N.W.2d 761, 3 ELR 20167 (Wis. 1972).

49. 584 N.W.2d 309, 29 ELR 20235 (Iowa 1998).

50. The test that asks: Does a law ban an activity deemed harmful, or does it require a landowner to confer a benefit on the public?