A New Time for Denominators: Toward a Dynamic Theory of Property in Regulatory Takings Relevant Parcel Analysis

Abstract

Despite the Supreme Court’s 25-years of fierce forays and rapid retreats in the battle over property rights and the takings clause, two intractable theoretical problems have eluded the Court’s attempts to provide guidance for state actors as to when a regulation will, in the words of Justice Holmes, “go too far.” Those two problems lie in identifying the relevant parcel against which a property restriction will be weighed (the parcel as a whole, relevant parcel, or denominator issue) and the relevance of the timing of a regulation in analyzing the extent and reasonableness of a landowner’s expectations of unregulated use for compensation purposes. The first is a question about how we identify the quantum of property “taken” by a regulation; is it one toothpick out of a very large bundle of property rights or is it the entirety of a relatively small bundle? The second is a question about the fairness of changing land-use regulations mid-stream, so that a person who purchased land under one regime might be entitled to compensation when a new, stricter regime significantly diminishes the uses she can make of her land. These two issues merge together when takings jurisprudence demands that we identify the relevant parcel at some regulatory moment in time. This article suggests that we should not be analyzing takings claims in single snapshot moments, but should instead look at actions the landowner has taken to make herself vulnerable to the supposed harms of regulations. This article challenges traditional takings jurisprudence and offers a better way to balance the legitimate interests of landowners with the needs of the public in regulating land uses.