Pondering Palazzolo: Why Do We Continue to Ask the Wrong Questions?

Michael Allan Wolf

The author is a Professor of Law and History, University of Richmond. The author thanks John Turner for inviting him to share these ideas with a distinguished panel of experts at the Environmental Law Institute's Associates Seminar on September 6, 2001. Delphine Pioffret provided expert research assistance in an attempt to bring some aura of authority to the ideas of the author.

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I must confess that I first read the U.S. Supreme Court's opinions in Palazzolo v. Rhode Island¹ with more than a bit of apprehension—not just because I was afraid about the fate of the nation's wetlands, but, more selfishly, because there was just the slightest chance that the Justices would abandon the highly problematic and unnecessarily confusing regulatory takings approach once and for all. If the Court had sworn off the practice of applying the Takings Clause to regulations affecting the use or value of private property, then much of the scholarship I was pursuing at the time would have been worthless (or, perhaps, worth even less).

Thankfully, for Mr. Palazzolo, at least for the moment,² the Justices only further muddied the waters—or should I say further mucked up the swamp—allowing me this and other opportunities to point out the drawbacks of the Court's approach. Basically, what this Dialogue is designed to demonstrate is that, with Palazzolo, and soon with Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency,³ the Court continues to ask the wrong questions. As each new, confusing, regulatory takings case emerges from the Court—usually at the end of the term, hidden behind more newsworthy decisions—we are left with at least one more question to ask in our attempt to figure out if the government has once again indirectly violated the Takings Clause.

I say "indirectly," because the language of the Takings Clause itself suggests the original intent and subject matter of takings. The Takings Clause reads: "Nor shall private property be taken for public use, without just compensation."⁴ In the late 18th century (when the Fifth Amendment to the U.S. Constitution was drafted and ratified), in the mid-19th century (when the Fourteenth Amendment was passed), in the late 19th century (when the Court first applied the Takings Clause to the states),⁵ in the early 20th century (when Justice Oliver Wendell Holmes, burdened us with his clever opinion in Pennsylvania Coal v. Mahon),⁶ and today, "taken for a public use" refers specifically to the sovereign's power of eminent domain—condemnation of real property and, in time of war, confiscation of real and personal property. These words do not refer to damaged property or to property regulations. Indeed, parties who felt that they had been deprived of their property by government harm or regulation had another clause in that same Fifth Amendment to suit their needs—the Due Process Clause.

Two curious things happened, however, to make the Takings Clause apply to fact situations outside of direct, government condemnation and confiscation. First, courts were faced with challenges brought by landowners whose land was damaged by government or government-authorized activities, as in Pumpelly v. Green Bay Co.,⁷ an 1872 case involving a property owner whose 640 acres of land were overflowed as a result of state-authorized dam construction. The Court did not feel bound by the literal language of the Wisconsin Constitution:

It would be a very curious and unsatisfactory result, if in construing a provision of constitutional law, always understood to have been adopted for protection and security to the rights of the individual as against the government, and which has received the commendation of jurists, statesmen, and commentators as placing the just principles of the common law on that subject beyond the power of ordinary legislation to change or control them, it shall be held that if the government refrains from the absolute conversion of real property to the uses of the [32 ELR 10368] public it can destroy its value entirely, can inflict irreparable and permanent injury to any extent, can, in effect, subject it to total destruction without making any compensation, because, in the narrowest sense of that word, it is not taken for the public use. Such a construction would pervert the constitutional provisions into a restriction upon the rights of the citizen, as those rights stood at the common law, instead of the government, and make it an authority for invasion of private right under the pretext of the public good, which had no warrant in the laws or practices of our ancestors.⁸

We can understand the court's motivation in cases such as this, during a period in American legal history when sovereign and governmental immunity were alive and well, effectively insulating federal, state, and local governments from lawsuits seeking compensation in the form of monetary damages.⁹ In the absence of a statute providing for such compensation, a state Takings Clause remained one of the few avenues of relief for persons whose land and improvements were severely damaged or destroyed by the government or its agents.¹⁰ Individuals could not bring trespass and nuisance cases against the state and its agents back then. Today, however, with the federal Tort Claims Act¹¹ and the general abrogation and modification of sovereign and governmental immunity on the state and local levels, there are adequate remedies for parties such as Pumpelly.¹²

The second curious development that moved the Takings Clause from its natural moorings occurred in 1922, when Justice Holmes was assigned the task of writing the majority opinion in Pennsylvania Coal. It is one of the great ironies of American jurisprudence that Justice Holmes, the inspiring hero to Progressives and New Dealers during the opening decades of the 20th century,¹³ is now revered by conservatives for penning the call to arms for defenders of private property rights. In a case in which the plaintiff was not seeking just compensation, and in which there was no evidence of eminent domain, Justice Holmes, in accordance with the phonetic spelling of his name "whole mess," offered his infamous dictum that "the general rule at least is, that while property may be regulated to a certain extent, if regulation goes too far it will be recognized as a taking."¹⁴ Justice Holmes' colleagues were so impressed with this idea they basically ignored the so-called general rule for the next 50 years.¹⁵

The real trouble began in 1978, when Justice William J. Brennan, in the majority opinion in Penn Central Transportation Co. v. City of New York,¹⁶ unnecessarily invoked the ghost of Justice Holmes. The Penn Central Court turned back a takings challenge to the "landmark" designation of New York's Grand Central Terminal by the city's Landmarks Preservation Commission. At first, the majority seemed impatient with the landowner's assertion that its property has been "taken" by means of regulation: "The submission that appellants may establish a 'taking' simply by showing that they have been denied the ability to exploit a property interest that they heretofore had believed was available for development is quite simply untenable."¹⁷ The Court also summarily rejected the landowner's attempt to distinguish enforcement of the landmark law from other comprehensive land use regulatory programs: "Quite simply, there is no basis whatsoever for aconclusion that courts will have any greater difficulty identifying arbitrary or discriminatory action in the context of landmark regulation than in the context of classic zoning or indeed in any other context."¹⁸ To this point, Justice Brennan and his colleagues felt comfortable relying on oft-cited precedents such as Village of Euclid v. Ambler Realty Co.,¹⁹ in which their predecessors granted significant leeway to regulators of land and other forms of private property, despite the potential of significant reductions in market value.²⁰

It would have been better for the course of American jurisprudence if Justice Brennan had wrapped up the Court's opinion at that juncture. However, the majority unfortunately resurrected Justice Holmes' relatively neglected approach: "We now must consider whether the interference with appellants' property is of such a magnitude that 'there [32 ELR 10369] must be an exercise of eminent domain and compensation to sustain [it].'"²¹ Although the majority could easily "conclude that the application of New York City's Landmarks Law has not effected a 'taking' of appellants' property,"²² the damage was done. Within a year and a half, the "too far" notion would move from dictum to holding in a case in a declaratory judgment action brought by the U.S. government against a property owner in Hawaii.²³ By the end of the 1980s, the Court would even use Justice Holmes' dictum in cases in which landowners were seeking monetary compensation as a remedy for the "regulatory taking."²⁴ It would not be long before Justice Brennan's colleagues turned the Holmesean dictum into an effective check for other environmentally flavored, land use planning devices.²⁵

The Questions We Currently Ask

Today, as a direct result of the Court's application of the "too far" test, we find ourselves asking a set of questions that are silly and internally and externally inconsistent. These questions direct our attention away from what should be the proper judicial inquiry in cases involving property owners who feel wronged by public regulators. Let us review the questions that we currently ask.

1. How Far Is "Too Far"?

This is the granddaddy of silly takings questions. Once Justice Holmes pontificated that the determination of whether a taking has occurred is "a question of degree" and not of "general propositions,"²⁶ he opened the door to the kind of imposition of ideology by judges that he had decried so eloquently in Lochner v. New York.²⁷ It is a simple task for a judge to distinguish the government's employment of the power of eminent domain from the use of the police power. It is an invitation to activism to ask a court to decide just how far is "too far."

2. Has the Government Taken an Important Stick From the Bundle of Property Rights?

This distracting metaphor appears in several regulatory takings cases, beginning with Kaiser Aetna v. United States²⁸: "The Government contends that as a result of . . . the pond's connection to the navigable water in a manner approved by the U.S. Army Corps of Engineers, the owner has somehow lost one of the most essential sticks in the bundle of rights that are commonly characterized as property—the right to exclude others."²⁹ The majority disagreed with the government's position, holding "that the 'right to exclude,' so universally held to be a fundamental element of the property right, falls within this category of interests that the Government cannot take without compensation."³⁰ In five subsequent cases, the Court invoked this imaginary bundle in the process of granting relief to parties who claimed that the government had, by regulatory means, taken their private property without compensation.³¹

In a sense, lawyers and judges today are expected to possess the skill of the botanist, for we must discern not only which twigs are present, but which are the most important ones to the life of the bundle. The sticks and bundle metaphor serves an important function in American legal thought in that it removes us from a primitive, absolutist, solely corporeal notion of property. However, there is no good reason to give the metaphor outcome-determinative effect by inviting the Court to establish the existence, and ponder the value, of imaginary sticks in a fictitious bundle.

3. What Is the Denominator?

While as lawyers we may act as if we know everything, we do have an academic Achilles' heal: most of us would rather not "do the math." Ever since then-Justice William H. Rehnquist penned his dissent in Penn Central, we have been distracted by the notion that the focus of the takings analysis should be on the smallest, discrete piece of the parcel that is directly affected by the challenged regulation:

Difficult conceptual and legal problems are posed by a rule that a taking only occurs where the property owner is denied all reasonable return on his property. Not only must the Court define "reasonable return" for a variety of types of property (farmlands, residential properties, commercial and industrial areas), but the Court must define the particular property unit that should be examined. For example, in this case, if appellees are viewed as having [32 ELR 10370] restricted Penn Central's use of its "air rights," all return has been denied.³²

This was the first attempt to reduce the denominator of the regulatory takings fraction (and therefore to increase the likelihood of a finding of total deprivation of value), a strategy that stands in stark contrast to the majority's position:

"Taking" jurisprudence does not divide a single parcel into discrete segments and attempt to determine whether rights in a particular segment have been entirely abrogated. In deciding whether a particular governmental action has effected a taking, this Court focuses rather both on the character of the action and on the nature and extent of the interference with rights in the parcel as a whole—here, the city tax block designated as the "landmark site."³³

The denominator question has moved from dissent (in Penn Central and Keystone Bituminous Coal Ass'n v. DeBenedictis)³⁴ to footnote (in Lucas v. South Carolina Coastal Council)³⁵ to dictum (in Palazzolo).³⁶ How long will it be until it makes it into a Court's holding? That very well might depend on whether President George W. Bush has the opportunity to replace a key Justice or two. Note also that the search for the "important stick in the bundle" (question 2) is the logical, though extreme, extension of the denominator question, as the Court may conclude that a total taking of merely one (metaphorical) stick amounts to a violation of the Takings Clause.

4. Is This a Nuisance?

Ever since the Court announced its decision in Lucas, land use and environmental law attorneys in cases that even remotely involve a total deprivation of value (something that is, of course, easier to prove if you shrink the denominator), have searched the bowels of their local law libraries for dusty treatises that will answer this essential question.³⁷ Unfortunately, this is not an easy inquiry; even the master of American tort law—Dean William Prosser—observed, "there is perhaps no more impenetrable jungle in the entire law than that which surrounds the word 'nuisance.'"³⁸ So now lawyers resemble zoologists, as we plunge into this murky jungle to see if the modern regulation subject to challenge is in the same genus (or is it phylum?) as public or private nuisance or some other background principle of state law.

Seventy-five years ago, as the Court considered the validity of a comprehensive zoning ordinance that the landowners deemed confiscatory, Justice George Sutherland cautioned that we should consult nuisance law "not for the purpose of controlling, but for the helpful aid of its analogies in the process of ascertaining the scope of, the [police] power."³⁹ Even though the common law can adapt to changes, it is not nearly so flexible and responsive as modern statutory and regulatory law. Asking the nuisance question is a refutation of Justice Sutherland's accommodating approach.

5. Was This a Compelled, Permanent, Physical Occupation?

In 1982, in Loretto v. Teleprompter Manhattan CATV Corp.,⁴⁰ the Court agreed with the claim brought by the owner of an apartment building that a state law permitting cable television companies to install wires, boxes, and other facilities on her (and others') private buildings constituted an uncompensated taking. Justice Thurgood Marshall offered the majority's "very narrow holding": "We affirm the traditional rule that a permanent physical occupation of property is a taking. In such a case, the property owner entertains a historically rooted expectation of compensation, and the character of the invasion is qualitatively more intrusive than perhaps any other category of property regulation."⁴¹

Not surprisingly, the response of property owners has been to try to fit their situations into this pattern, and the result has been a set of inconsistent judicial responses. Some Justices have a broad understanding of the term "physical occupation." For example, in a case challenging a city's rent-control ordinance that placed restrictions on the demolition [32 ELR 10371] of rental buildings, then-Justice Rehnquist dissented from the Court's decision not to review the case, as he "failed to see how it works anything but a physical occupation of appellant's property."⁴² Similarly, the five-member majority in Nollan v. California Coastal Commission,⁴³ despite some contrary dictum in Loretto regarding easements, concluded that "a 'permanent physical occupation' has occurred, for purposes of that rule, where individuals are given a permanent and continuous right to pass to and fro, so that the real property may continuously be traversed, even though no particular individual is permitted to station himself permanently upon the premises."⁴⁴

Just four months before Nollan, however, the Justices had made clear that not all physical occupations involving the government effected a taking. In Federal Communications Commission v. Florida Power Corp.,⁴⁵ Justice Marshall, this time speaking for a unanimous Court, cautioned potential litigants that the "element of required acquiescence is at the heart of the concept of occupation."⁴⁶ In 1992, the Court reiterated the point, and strengthened the adjective: "Whether the government floods a landowner's property, or does no more than require the landowner to suffer the installation of a cable, the Takings Clause requires compensation if the government authorizes a compelled physical invasion of property."⁴⁷

In some cases, even when the occupation is compelled, permanent, and physical, it is hard to conceive of the government activity as comprising a "taking," as opposed, say, to a trespass. For example, in Loretto, the three dissenters noted that the practical effect of the cable television law was to enhance (not decrease) the value of the subject property by making the apartment building cable-ready, a point conceded even by the landowner.⁴⁸

Loretto is not the only example of the Court finding a "taking" when it would have been more accurate to characterize the government activity as a "giving." In both Nollan and Dolan v. City of Tigard,⁴⁹ the landowners were seeking permission to increase the intensity of the use of their properties; under the prevailing land use scheme they were not entitled as of right to make the desired improvements. In other words, public officials could have just said "no" to these landowners without any problem. Instead, these officials decided to say "yes, but," by conditioning the grant of potentially lucrative development approval on the landowner's agreement to provide to the public certain exactions (easements). The monetary value of these exactions did not approach the increased value of the property that would be attributable to the newly permitted development. Therefore, the landowners were in effect claiming that the government was attempting to "take" their property by making a discretionary decision that actually made that property more valuable than it otherwise would have been. In both cases, the factor that especially seemed to trouble the Court was the public's use of private lands.⁵⁰

We are thus left with this absurdity: while for several decades we have understood that many land use schemes that significantly reduce the value of land, such as zoning, do not violate the Takings Clause, the same cannot be said for some regulatory decisions that actually lead to enhanced value of the targeted property.

6. Does the Regulation Take Away Economically Viable Use?

This troublesome question places lawyers in the role of physicians, as we, too, engage in the perplexing search for viability. The first time the phrase "economically viable" shows up is in a takings case is in Justice Brennan's Penn Central opinion, but he was merely quoting the city's oral argument.⁵¹ Then-Justice Rehnquist, in dissent, justifiably complained that the majority opinion lacked specificity as to the amount of deprivation that would effect a taking.⁵² Two years later, the phrase reappeared in Justice Lewis F. Powell's opinion for the Court in Agins v. City of Tiburon.⁵³ Once again, however, the Court concluded that a taking had not occurred, and the Justices provided little guidance as to the meaning of economic viability.

Today, thanks to Justice Antonin Scalia's opinion for the Court in Lucas, we equate the loss of economically viable use roughly with a total deprivation of value—"where regulation denies 'all economically beneficial or productive use of land.'"⁵⁴ Yet, as noted in the Palazzolo opinion, "total" deprivation does not necessarily mean a 100% reduction in value: "A State may not evade the duty to compensate on the premise that the landowner is left with a token interest."⁵⁵

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This leads to a further question: How much is "token" value? Is it based on an absolute number of dollars or on a percentage? Is the original acquisition cost relevant? For example, Mary purchased a raw parcel for $ 5,000 10 years ago, and it is now worth $ 25,000 in its undeveloped state. However, if Mary can receive permission to develop the parcel, after deducting the cost of improvements, the market value of the parcel would be $ 250,000. While the government's denial reduces the potential value of the property by 90%, the parcel has already increased in value fivefold. Given these facts, is $ 25,000 token value?

Finally, it is important to remember that "productive use" means use by humans, not by earthworms, wetlands, underground streams, or sand dunes.⁵⁶ The inestimable and unduplicable services rendered by non-human nature are absolutely discounted in this search for economic viability.

7. Is This an Interference With Reasonable Investment-Backed Expectations?

While the Palazzolo majority cites Penn Central as the source for this inquiry,⁵⁷ technically, Justice Brennan used the adjective "distinct,"⁵⁸ not "reasonable." Reasonable came from then-Justice Rehnquist's reformulation of the Penn Central test in Kaiser Aetna,⁵⁹ which, the reader may recall, was a successful takings challenge in which the Court reduced the denominator to the most important stick in the bundle—the "right to exclude."⁶⁰

Before Palazzolo, it was widely believed that one who acquired ownership of property with notice of the allegedly confiscatory regulation could not have a reasonable investment-backed expectation. Consider, for example, this discussion from the Rhode Island Supreme Court's opinion in Palazzolo:

We must determine whether there was a regulatory taking under the test of Penn Central. The trial justice found that Palazzolo had no reasonable investment-backed expectations that were affected by this regulation and that therefore there was no taking. We agree. As we have discussed, the trial justice did not err in finding that Palazzolo did not become the owner of the land until 1978. At that time, there were already regulations in place limiting Palazzolo's ability to fill the wetlands for development. In light of these regulations, Palazzolo could not reasonably have expected that he could fill the property and develop a [74]-lot subdivision.⁶¹

Most of the Justices of the Court disagreed, opining that taking title with notice was not necessarily fatal to a takings claim based on interference with expectations: "A blanket rule that purchasers with notice have no compensation right when a claim becomes ripe is too blunt an instrument to accord with the duty to compensate for what is taken."⁶² While we can expect the Justices to continue to quibble over just how much knowledge at what point will frustrate the takings claim,⁶³ one thing has been firmly established: it is no longer patently unreasonable to believe that one can develop real property even though current law indicates otherwise. Let the speculative lawsuit games begin!⁶⁴

8. Is This a "Categorical" (or "Per Se") Taking?

The Lucas opinion is also the source of this distracting question. Justice Scalia tells us that there are two types of categorical takings—(1) compelled physical occupation or invasion and (2) denial of all "economically beneficial or productive use."⁶⁵ It would appear that getting a positive answer to this query would simplify our task. However, that appearance would be deceiving. First, as noted in the discussion of question 5 above, the former category is complicated [32 ELR 10373] by dramatically different judicial views of when such an occupation occurs.

Second, the latter category—total deprivation—is not truly "categorical" (that is, without qualification) because of the exception for nuisances and other background principles (see the discussion of question 4 above). In other words, there is much about the total deprivation category that is not "per se": if you find the right creature in the nuisance jungle you will not have a taking after all!

The third complication, also involving the total deprivation category, relates to the denominator dispute identified in question 3. Justices who endorse the notion of shrinking the denominator will place many more cases in this category than their colleagues who endorse the "parcel-as-a-whole" approach. We are left with yet another question that, like so many other regulatory takings inquiries, is hopelessly complicated and ultimately unhelpful.

9. Is the Government Substantially Advancing a Legitimate State Interest?

Once again, Justice Scalia gets credit for introducing this question, the source of which is the Court's opinion in Nollan. Justice Scalia assured his dissenting colleagues that, contrary to the dissent's assertion that the rational basis approach used in Due Process and Equal Protection cases involving economic regulation also applies in regulatory takings cases:

Our verbal formulations in the takings field have generally been quite different. We have required that the regulation "substantially advance" the "legitimate state interest" sought to be achieved, Agins v. Tiburon, 447 U.S. 255, 260 (1980), not that "the State 'could rationally have decided' the measure adopted might achieve the State's objective."⁶⁶

Though, to the uninitiated, it may appear that the Justices are quibbling over a subtle difference in language, the decision to require a "substantial" relationship (instead of a merely rational, conceivable, or reasonable one) could prove costly for a government regulator faced with a regulatory takings challenge. The problem is compounded when, as in Dolan, the Court also shifts the burden of proof to the public party, which also appears to be a significant departure from then-prevailing constitutional law.⁶⁷

Unfortunately, the Court's phraseology in the area of property regulation has been far from consistent. At least as far back as 1926, in the Court's important opinion in Euclid,⁶⁸ the Justices have used "rational" and "substantial" interchangeably. Now that the Court is bent on drawing a distinction between the two adjectives (even one that is out-come-determinative), we are faced with a serious challenge: How do we tell the difference? If there is a reasonable or rational connection between the ends of the regulation and the means selected by government officials, what more is needed to make it substantial? Is it a quantitative question (for example, are many or most of the landowners affected by the regulation engaged in activities related to the governmental interest), or a qualitative one (for example, is the landowner's relationship to the governmental interest direct or consequential)? Or is the move from rational to substantial merely a means for the Court to engage in the kind of judicial second-guessing of legislative and administrative work product that was so roundly condemned for much of the 20th century, as has been suggested by the dissenters in Nolan⁶⁹ and Dolan?⁷⁰

10. Is There Rough Proportionality for This Exaction?

In Dolan, Chief Justice Rehnquist was looking for a test to apply in exaction cases, that is, situations in which regulators conditioned development permission on the grant of real property interests to the public. The majority of state courts looked for a "reasonable relationship" between the impact of the proposed development and the nature and extent of the exaction.⁷¹ Chief Justice Rehnquist said that he wanted to follow the majority's lead, but he made one minor change: he renamed the reasonableness test "rough proportionality."⁷² Why did he make this change? One reason Chief Justice Rehnquist identified was that the state test "seems confusingly similar" to the term "'rational basis.'"⁷³ Exactions are apparently a highly problematic form of land use regulation because they not only effect physical occupation by the public (see question 5 above), but also they take away the all-important right-to-exclude stick (see question 2 above). If the Court were, to subject exactions to minimal, rational-basis scrutiny, following the lead of a majority of [32 ELR 10374] states, that would have strongly suggested that Justice Brennan had been right in his Nollan dissent. So as to avoid that conclusion, we were given a new question by the Court and a new reality: rough proportionality means more than reasonableness even though it derived from a reasonableness test.

Conclusion

So, these are several of the silly and problematic questions that we ask in regulatory takings cases. If we could step into a time machine and go back to 1978, reconsidering the Penn Central fact pattern with the knowledge of the decisional mess that was to follow, would we not be pleading with the Justices to ask more sensible and logical questions concerning the origins and basic rationality of the regulatory scheme? Would we not have asked them to treat this system of controls like any other police power regulation designed to benefit the public, despite the fact that individual property owners would not be able to recognize the highest possible return on their investment? Wouldn't we, in other words, have urged them to reach the same result without disinterring the defunct notion that regulation that goes too far can effect a taking, knowing that property owners were still protected from government abuse and irrationality by the Due Process and Equal Protection Clauses?⁷⁴ Except for those judges, lawyers, and litigants who are deeply skeptical about the motives and methods of federal, state, and local regulators, the answers to all of these questions is a simple "yes." My hope is that, despite Tahoe Regional⁷⁵ on the horizon, Palazzolo will be the end of the silly questions and the beginning of a new search for clarity and fairness.

1. 121 S. Ct. 2448 (2001). In Palazzolo, the Court held that a landowner's regulatory takings claim, based on the denial of permission to fill wetlands in order to develop his property, was ripe, but that the landowner had not shown a "deprivation of all economic value," id. at 2457, as required by Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 22 ELR 21104 (1992). The Court remanded the case to determine if the landowner had instead made out a successful takings claim under Penn Central Transp. Co. v. City of New York, 438 U.S. 104, 124, 8 ELR 20528, 20533 (1978). For a perceptive and well-reasoned analysis on the decision, and its implications for governments and landowners, see John D. Echeverria, A Preliminary Assessment of Palazzolo v. Rhode Island, 31 ELR 11112 (Sept. 2001).

n2 Subsequently, the Rhode Island Supreme Court directed counsel to "submit memoranda to this Court with their suggestions as to the guidelines which should be presented to the Superior Court for consideration on remand." Palazzolo v. State, No. 98-333, 2001 R.I. LEXIS 210, at *1 (Sept. 25, 2001). See Echeverria, supra note 1, at 11113 (noting that "it seems likely that the taking claim will be rejected on remand").

3. 216 F.3d 764, 30 ELR 20638 (9th Cir. 2000), reh'g en banc denied, 228 F.3d 998 (9th Cir.), cert. granted, 121 S. Ct. 2589 (2001). The Court is limiting its inquiry to the following question: "Whether the Court of Appeals properly determined that a temporary moratorium on land development does not constitute a taking of property requiring compensation under the Takings Clause of the [U.S.] Constitution?" 121 S. Ct. at 2589-90. For commentary on the issue presented, and on the Ninth Circuit's opinions, see Steven J. Eagle, Temporary Regulatory Takings and Development Moratoria: The Murky View From Lake Tahoe, 31 ELR 10224 (Feb. 2001); Thomas E. Roberts, Moratoria as Categorical Regulatory Takings: What First English and Lucas Say and Don't Say, 31 ELR 11037 (Sept. 2001); Steven J. Eagle, First English Principles and Regulatory Takings, 31 ELR 11232 (Oct. 2001).

4. U.S. CONST. amend. V.

5. See Chicago, B. & Q. R. Co. v. Nebraska, 170 U.S. 57 (1898).

6. 260 U.S. 393, 415 (1922) ("The general rule at least is, that while property may be regulated to a certain extent, if regulation goes too far it will be recognized as a taking.").

7. 80 U.S. 166 (1872).

8. Id. at 177-78.

9. See also Transportation Co. v. Chicago, 99 U.S. 635, 642 (1878) (noting that in Pumpelly one can find "the extremest [sic] qualification of the doctrine" that "acts done in the proper exercise of governmental powers, and not directly encroaching upon private property, though their consequences may impair its use, are universally held not to be a taking within the meaning of the constitutional provision").

10. From the beginnings of the Republic, there was another avenue for gaining compensation for a loss suffered at the hand of government—the private bill. See Richard H. Seamon, Separation of Powers and the Separate Treatment of Contract Claims Against the Federal Government for Specific Performance, 43 VILL. L. REV. 155 (1998):

Before the middle of the [19th] century, contract claims directly against the federal government were barred by sovereign immunity and contract claims against federal officers would not lie. Unable to get relief in the courts, individuals with federal contract claims frequently petitioned Congress for private bills as an alternative. Congress enacted numerous private bills providing monetary and other relief for contract and other claims. The number of petitions for private bills grew with the country, and the private-bill system became more time-consuming for Congress. Congress responded to the growing burden in 1855 by creating the [U.S.] Court of Claims.

Id. at 175-76. See also U.S. CONST. amend. I ("Congress shall make no law . . . abridging . . . the right of the people . . . to petition the Government for a redress of grievances."); Stephen J. Higginson, A Short History of the Right to Petition Government for the Redress of Grievances, 96 YALE L.J. 142 (1986).

11. Pub. L. No. 79-601, 60 Stat. 842 (1946) (codified as amended in scattered sections of 28 U.S.C.).

12. See, e.g., William A. Olson, Governmental Immunity From Tort Liability—Two Decades of Decline: 1959-1979, 31 BAYLOR L. REV. 485 (1979).

13. See, e.g., G. EDWARD WHITE, JUSTICE OLIVER WENDELL HOLMES: LAW AND THE INNER SELF 408 (1993) ("When the progressives evaluated Holmes' general performance as a Supreme Court justice during the last [15] years of his tenure they were undeniably pleased.").

14. Pennsylvania Coal, 260 U.S. at 415.

15. The exceptions are the majority opinion in a case in which a taking was not found and the dissenting opinion in which the majority refused to find a taking. See Goldblatt v. Town of Hempstead, 369 U.S. 590, 594 (1962) ("how far regulation may go before it becomes a taking we need not now decide"); United States v. Central Eureka Mining Co., 357 U.S. 155, 182 (1958) (Harlan, J., dissenting) (quoting "too far" language).

16. 438 U.S. 104, 8 ELR 20528 (1978).

17. Id. at 130, 8 ELR at 20534.

18. Id. at 133, 8 ELR at 20535.

19. 272 U.S. 365 (1926).

20. See Penn Central, 438 U.S. at 131, 8 ELR at 20535 (noting parenthetically that Euclid involved "75% diminution in value caused by zoning law").

21. Id. at 136, 8 ELR at 20536 (quoting Pennsylvania Coal v. Mahon, 260 U.S. 393, 413 (1922)).

22. Penn Central, 438 U.S. at 138, 8 ELR at 20536.

23. See Kaiser Aetna v. United States, 444 U.S. 164, 178, 10 ELR 20042, 20046 (1979) ("Here the Government's attempt to create a public right of access to the improved pond goes so far beyond ordinary regulation or improvement for navigation as to amount to a taking under the logic of [Pennsylvania Coal].").

24. See First English Evangelical Lutheran Church of Glendale v. County of Los Angeles, 482 U.S. 304, 316, 17 ELR 20787, 20790 (1987).

25. For post-First English Court opinions citing Pennsylvania Coal's "too far" formulation, see Palazzolo v. Rhode Island, 121 S. Ct. 2448, 2457 (2001) (wetlands); City of Monterey v. Del Monte Dunes at Monterey, Ltd., 526 U.S. 687, 720, 29 ELR 21133, 21139 (1999) (endangered species); Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 1014, 22 ELR 21104, 21107 (1992) (beachfront management). The number of state and lower federal court opinions that followed the Justices' lead increases geometrically.

26. Pennsylvania Coal, 260 U.S. at 416.

27. 198 U.S. 45 (1905). In his memorable dissent, Justice Holmes wrote:

If it were a question whether I agreed with that theory I should desire to study it further and long before making up my mind. But I do not conceive that to be my duty, because I strongly believe that my agreement or disagreement has nothing to do with the right of a majority to embody their opinions in law.

Id. at 53 (Holmes, J., dissenting).

28. 444 U.S. 164, 10 ELR 20042 (1979). Just one week before this case was announced, the Court, in rejecting a regulatory takings claim, used a similar metaphor. See Andrus v. Allard, 444 U.S. 51, 65-66, 9 ELR 20791, 20794 (1979) ("But the denial of one traditional property right does not always amount to a taking. At least where an owner possesses a full 'bundle' of property rights, the destruction of one 'strand' in the bundle is not a taking, because the aggregate must be viewed in its entirety.").

29. Kaiser Aetna, 444 U.S. at 176, 10 ELR at 20045.

30. Id. at 179-80, 10 ELR at 20046 (footnote omitted).

31. See Dolan v. City of Tigard, 512 U.S. 374, 384, 24 ELR 21083, 21085 (1994) ("right to exclude others"); Nollan v. California Coastal Comm'n, 483 U.S. 825, 831, 17 ELR 20918, 20919 (1987) ("right to exclude others"); Hodel v. Irving, 481 U.S. 704, 716 (1987) ("right to pass on a certain type of property . . . to one's heirs"); Ruckelshaus v. Monsanto Co., 467 U.S. 986, 1011, 14 ELR 20539, 20545 (1984) ("right to exclude others"); Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 436 (1982) ("power to exclude").

32. Penn Central, 438 U.S. at 149 n.13, 8 ELR at 20539 n.13 (Rehnquist, J., dissenting) (citing Pennsylvania Coal).

33. Id. at 130-31, 8 ELR at 20534.

34. 480 U.S. 470, 517, 17 ELR 20440, 20452 (1987) (Rehnquist, C.J., dissenting) ("In this case, enforcement of the Subsidence Act and its regulations will require petitioners to leave approximately 27 million tons of coal in place. There is no question that this coal is an identifiable and separable property interest.").

35. 505 U.S. 1003, 1016 n.7, 22 ELR 21104, 21107 n.7 (1992) ("this uncertainty regarding the composition of the denominator in our 'deprivation' fraction has produced inconsistent pronouncements by the Court").

36. Justice Anthony M. Kennedy wrote for the majority:

In his brief submitted to us petitioner attempts to revive this part of his claim by reframing it. He argues, for the first time, that the upland parcel is distinct from the wetlands portions, so he should be permitted to assert a deprivation limited to the latter. This contention asks us to examine the difficult, persisting question of what is the proper denominator in the takings fraction. Some of our cases indicate that the extent of deprivation effected by a regulatory action is measured against the value of the parcel as a whole, but we have at times expressed discomfort with the logic of this rule, a sentiment echoed by some commentators. Whatever the merits of these criticisms, we will not explore the point here. Petitioner did not press the argument in the state courts, and the issue was not presented in the petition for certiorari. The case comes to us on the premise that petitioner's entire parcel serves as the basis for his takings claim, and, so framed, the total deprivation argument fails.

Palazzolo, 121 S. Ct. at 2465 (internal citation omitted).

37. Justice Antonin Scalia sent us on this search:

We believe similar treatment must be accorded confiscatory regulations, i.e., regulations that prohibit all economically beneficial use of land: Any limitation so severe cannot be newly legislated or decreed (without compensation), but must inhere in the title itself, in the restrictions that background principles of the State's law of property and nuisance already place upon land ownership. A law or decree with such an effect must, in other words, do no more than duplicate the result that could have been achieved in the courts—by adjacent landowners (or other uniquely affected persons) under the State's law of private nuisance, or by the State under its complementary power to abate nuisances that affect the public generally, or otherwise.

See Lucas, 505 U.S. at 1029, 22 ELR at 21111.

38. W. KEETON ET AL., PROSSER AND KEETON ON THE LAW OF TORTS 616 (5th ed. 1984) (quoted in Lucas, 505 U.S. at 1055 n.19, 22 ELR at 21117-18 n.19 (Blackman, J., dissenting).

39. Village of Euclid v. Ambler Realty Co., 272 U.S. 365, 387-88 (1926) (emphasis added).

40. 458 U.S. 419 (1982).

41. Id. at 441.

42. Fresh Point Shopping Center, Inc. v. Callahan, 464 U.S. 875, 877 (1983) (Rehnquist, J., dissenting from dismissal for want of substantial federal question). See also Hall v. City of Santa Barbara, 833 F.2d 1270, 1280 (9th Cir. 1986), cert. denied, 485 U.S. 940 (1988) (rent-control ordinance "oversteps the boundaries of mere regulation and shades into permanent occupation of the property for which compensation is due"). But see Yee v. City of Escondido, 503 U.S. 519, 539 (1992) (mobile home rent-control ordinance did not "not compel a landowner to suffer the physical occupation of his property").

43. 483 U.S. at 825, 17 ELR 20918 (1987). See Loretto, 458 U.S. at 433 ("Although the easement of passage, not being a permanent occupation of land, was not considered a taking per se, Kaiser Aetna reemphasizes that a physical invasion is a government intrusion of an unusually serious character.").

44. Nollan, 483 U.S. at 832, 17 ELR at 20919.

45. 480 U.S. 245 (1987).

46. Id. at 252 (emphasis added).

47. Yee, 503 U.S. at 527 (emphasis added) (mobile home rent-control ordinance did not effect compelled physical occupation).

48. Id. at 452 and n.9 (Blackmun, J., dissenting).

49. 512 U.S. 374, 24 ELR 21083 (1994).

50. See id. at 393, 24 ELR at 21088 ("The city has never said why a public greenway, as opposed to a private one, was required in the interest of flood control."); Nollan, 483 U.S. at 832, 17 ELR at 20919 ("individuals are given a permanent and continuous right to pass to and fro, so that the real property may continuously be traversed").

51. Penn Central, 438 U.S. at 138 n.36, 8 ELR at 20536 n.36 ("The city conceded at oral argument that if appellants can demonstrate at some point in the future that circumstances have so changed that the Terminal ceases to be 'economically viable,' appellants may obtain relief. See Tr. of Oral Arg. 42-43.").

52. Then-Justice Rehnquist noted:

At one point, the Court implies that the question is whether the restrictions have "an unduly harsh impact upon the owner's use of the property," [438 U.S.], at 127; at another point, the question is phrased as whether [Penn Central] can obtain "a 'reasonable return' on its investment," [438 U.S.], at 136; and, at yet another point, the question becomes whether the Landmark is "economically viable," [438 U.S.], at 138 n.36.

Id. at 149 n.13, 8 ELR at 20539 n.13 (Rehnquist, J., dissenting).

53. 447 U.S. 255, 260, 10 ELR 20361, 20362 (1980).

54. Lucas, 505 U.S. at 1015, 22 ELR at 21107.

55. Palazzolo, 121 S. Ct. at 2464.

56. Cf. Joseph L. Sax, Property Rights and the Economy of Nature: Understanding Lucas v. South Carolina Coastal Council, 45 STAN. L. REV. 1433 (1993) ("Land is already at work, performing important services in its unaltered state. For example, forests regulate the global climate, marshes sustain marine fisheries, and prairie grass holds the soil in place.").

57. Palazzolo, 121 S. Ct. at 2457.

58. Penn Central, 438 U.S. at 124, 8 ELR at 20533 ("extent to which the regulation has interfered with distinct investment-backed expectations"). Technically, we can place much of the blame at the feet of a law professor. See Frank Michelman, Property, Utility, and Fairness: Comments on the Ethical Foundations of "Just Compensation" Law, 80 HARV. L. REV. 1165, 1233 (1967) (Pennsylvania Coal test asks "whether or not the measure in question can easily be seen to have practically deprived the claimant of some distinctly perceived, sharply crystalized, investment-backed expectation"). Are we now geologists?

59. Kaiser Aetna, 444 U.S. at 175, 10 ELR at 20045 ("interference with reasonable investment-backed expectations").

60. Id. at 179, 10 ELR at 20046.

61. Palazzolo v. State, 746 A.2d 707, 717, 30 ELR Digest 20420 (R.I. 2000), aff'd in part, rev'd in part & remanded, 121 S. Ct. 2448 (2001) (internal footnote omitted).

62. Palazzolo, 121 S. Ct. at 2463. See also id. at 2477 (Breyer, J., dissenting) ("the simple fact that a piece of property has changed hands (for example, by inheritance) does not always and automatically bar a takings claim") (emphasis added).

63. Compare Palazzolo, id. at 2467 (O'Connor, J., concurring):

Our decision today does not remove the regulatory backdrop against which an owner takes title to property from the purview of the Penn Central inquiry. It simply restores balance to that inquiry. Courts properly consider the effect of existing regulations under the rubric of investment-backed expectations in determining whether a compensable taking has occurred.

with id. at 2468 (Scalia, J., concurring) (quoting Lucas, 505 U.S. at 1029, 22 ELR at 21111):

The fact that a restriction existed at the time the purchaser took title (other than a restriction forming part of the 'background principles of the State's law of property and nuisance,' should have no bearing upon the determination of whether the restriction is so substantial asto constitute a taking.

64. See Palazzolo, 121 S. Ct. at 2472 (Stevens, J., dissenting) ("If the existence of valid land-use regulations does not limit the title that the first postenactment purchaser of the property inherits, then there is no reason why such regulations should limit the rights of the second, the third, or the thirtieth purchaser.").

65. See Lucas, 505 U.S. at 1015, 22 ELR at 21107:

We have . . . described at least two discrete categories of regulatory action as compensable without case-specific inquiry into the public interest advanced in support of the restraint. The first encompasses regulations that compel the property owner to suffer a physical "invasion" of his property. In general (at least with regard to permanent invasions), no matter how minute the intrusion, and no matter how weighty the public purpose behind it, we have required compensation. . . .

The second situation in which we have found categorical treatment appropriate is where regulation denies all economically beneficial or productive use of land.

Id.

66. Nollan, 483 U.S. at 836 n.3, 17 ELR at 20920 n.3 (emphasis in original) (quoting id. at 843, 17 ELR at 20927 (Brennan, J., dissenting)).

67. Chief Justice Rehnquist wrote:

Justice Stevens' dissent takes us to task for placing the burden on the city to justify the required dedication. He is correct in arguing that in evaluating most generally applicable zoning regulations, the burden properly rests on the party challenging the regulation to prove that it constitutes an arbitrary regulation of property rights. See, e.g., [Village of] Euclid v. Ambler Realty Co., 272 U.S. 365 (1926). Here, by contrast, the city made an adjudicative decision to condition petitioner's application for a building permit on an individual parcel. In this situation, the burden properly rests on the city.

Dolan, 512 U.S. at 391 n.8, 24 ELR 21087 n.8 (internal citation omitted). Cf. id. at 405, 24 ELR at 21091 (Stevens, J., dissenting) ("The Court has made a serious error by abandoning the traditional presumption of constitutionality and imposing a novel burden of proof on a city implementing an admittedly valid comprehensive land use plan.").

68. Compare Euclid, 272 U.S. at 395 ("The reasons are sufficiently cogent to preclude us from saying, as it must be said before the ordinance can be declared unconstitutional, that such provisions are clearly arbitrary and unreasonable, having no substantial relation to the public health, safety, morals, or general welfare."), with id. at 391 ("The decisions enumerated in the first group cited above agree that the exclusion of buildings devoted to business, trade, etc., from residential districts, bears a rational relation to the health and safety of the community.").

69. See Nollan, 483 U.S. at 842, 17 ELR at 20922 (Brennan, J., dissenting) ("The first problem with this conclusion is that the Court imposes a standard of precision for the exercise of a State's police power that has been discredited for the better part of this century.").

70. Justice Stevens observed:

The Court has made a serious error by abandoning the traditional presumption of constitutionality and imposing a novel burden of proof on a city implementing an admittedly valid comprehensive land use plan. Even more consequential than its incorrect disposition of this case, however, is the Court's resurrection of a species of substantive due process analysis that it firmly rejected decades ago.

Dolan, 512 U.S. at 405, 24 ELR at 21091 (Stevens, J., dissenting) (internal footnote omitted).

71. Id. at 390-91, 24 ELR at 21087.

72. Id. at 391, 24 ELR at 21087.

73. Id.

74. See, e.g., Village of Willowbrook v. Olech, 528 U.S. 562, 30 ELR 20360 (2000) (successful Equal Protection claim for "irrational and wholly arbitrary behavior" of local government); City of Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432 (1985) (Equal Protection violation effected by local government motivated by "irrational prejudice").

75. 216 F.3d at 764, 30 ELR at 20638, reh'g en banc denied, 228 F.3d at 998, cert. granted, 121 S. Ct. at 2589.