Commentary: Justice John Paul Stevens and the Land-Use Takings Issue
PLANNING & ENVIRONMENTAL LAW, American Planning Association October 2010
39 Pages Posted: 26 Aug 2010
Date Written: August 16, 2010
Abstract
Justice Stevens is the only Justice who was on the Court during the entire post-Belle Terre period in which the Court has defined the constitutional boundaries for land-use regulation. This Commentary examines one of the areas where Justice Stevens made his most significant contributions to the Court’s land-use jurisprudence: cases involving takings questions. The Commentary concludes that Justice Stevens departs the Court with his “liberal” view of the takings clause, rather than Justice Scalia’s “property rights” view, predominant. The victories for Scalia’s view of the takings clause in First English, Lucas, Nollan/Dolan and, to some extent, in Palazollo, have proved of far less import than was thought at the time these cases were decided. First English established that a compensatory remedy was required for a temporary taking, but the prevalence of Stevens’ view opposing segmentation of property interests on either a physical or temporal basis, as seen in Palazollo and Tahoe-Sierra, blocked the expansion of the compensation rule to include “normal delays” in permit approvals and most planning moratoria. The potential reach of First English was expanded by Palazollo’s abolishing the notice rule as a bar to a takings claim, but that expansion was significantly limited because Scalia failed to convince the Court that notice of an existing regulation should play no role in the Penn Central balancing test. Lucas has proved to be of little practical value to takings claimants because regulations that deprives property of all economically viable use are rare and regulations that do have such an effect may well be grounded in background principles of a state’s property law because they target nuisance-like uses of property. Finally, the heightened scrutiny required by Nollan/Dolan has remained narrowly confined to the exactions context.
Keywords: regulatory takings, eminent domain, land-use, property rights
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