Dolan v. City of Tigard: another step in the right direction.

I. JUDICIAL BALANCING AND THE TAKINGS CLAUSE

The Supreme Court's decision in Dolan v. City of Tigard(1) is another step, following Lucas v. South Carolina Coastal Council,(2) in the right direction.(3) In Dolan, a majority of the Court has moved closer to abandoning the illogical distinction between regulatory and nonregulatory takings. Despite its potential to help rationalize takings jurisprudence, however, the Dolan opinion will be understood by some commentators as a relatively insignificant holding about burdens and standards of proof in land use regulation cases.(4) It will certainly be so interpreted by lawyers for, and advocates of, the regulatory state.(5) If this is an important opinion, its significance rests less in its holding than in its dictum. And as a dismayed Justice Stevens points out in his dissent, the Supreme Court's dictum is often the basis for its later holdings.(6)

Innumerable commentators have observed that the Supreme Court's takings jurisprudence is a jumble of confusing holdings with little in the way of coherent guiding principles.(7) Like much of modern constitutional law, takings law has been infected with the virus of judicial balancing tests.(8) Ironically, the principle which is supposed to undergird this constitutional jurisprudence of judicial balancing is democracy. The idea seems to be that ours is fundamentally a democratic constitution in which the majority can have its way so long as it does not systematically exclude "discrete and insular" minorities.(9) After several decades of caselaw inspired by this idea, John Hart Ely offered a carefully reasoned rationalization in his book Democracy and Distrust.(10)

When the Court first articulated this view of our Constitution in the celebrated footnote four of United States v. Carolene Products Co.,(11) it acknowledged that the Constitution did contain some explicit substantive limits on majoritarian government, most of which appear in the Bill of Rights.(12) However, since Carolene Products, the Court has gradually extended the reach of judicial balancing to most constitutional protections of individual liberty. For example, balancing tests have even been applied to validate regulation of speech(13) and limitation on religious freedom.(14)

This approach is particularly troublesome in the context of the takings clause which, by its terms, permits the state to pursue its legitimate interests so long as it does not impose, unfairly, the associated costs on the particular individuals whose property rights happen to be affected.(15) Although the takings clause is viewed by most advocates of land use regulation as an unfortunate obstacle to the pursuit of the public good,(16) the provision is a recognition of the state's power to regulate private property for public purposes upon payment of just compensation. In a constitutional system which values both democracy and liberty,(17) the beauty of the takings clause is that it provides a solution to the difficult problem of protecting individual rights in the face of legitimate government actions which often impact arbitrarily and unevenly on isolated individuals.(18)

With the exception of the traditional uses of eminent domain, governments have seldom chosen to compensate, voluntarily, property owners impacted by regulation.(19) The Dolan case illustrates that some governments are now even disinclined to compensate where tradition would have called for exercise of the eminent domain power.(20) The drafters of the takings clause understood that we should expect nothing different from government. Absent judicial enforcement of the takings clause, governments have every incentive to take private property without compensation. Democracy will deter such wealth redistribution only when large numbers of people are likely to bear the costs.(21) The takings clause exists, along with the rest of the Bill of Rights, because the constitutional framers understood the inevitability of the tyranny of the majority in an unlimited democracy.(22)

There is a pragmatic explanation for the reliance on ad hoc judicial balancing in takings cases. Government action does impact people, including property owners. It is impractical for the state to compensate for every such impact. As Justice Holmes stated in Pennsylvania Coal Co. v. Mahon,(23) "[g]overnment hardly could go on if to some extent values incident to property could not be diminished without paying for every such change in the general law."(24) The Court's task, said Holmes, is to determine when a regulation goes "too far."(25)

This language has been relied on to justify a takings jurisprudence which has permitted a nearly total diminution in property value, without compensation, so long as the state has a legitimate purpose.(26) But Holmes did not stop with this pragmatic observation and vague prescription. He went on to observe that many regulations provide what he called an "average reciprocity of advantage" to those impacted.(27) In other words, if we understand that much of what government does imposes costs and confers benefits on many people, we will see that the takings clause is not an obstacle to most legitimate government action because there is implicit compensation for many of the takings which unavoidably occur.(28) Indeed, when democratic government is restricted from taking advantage of minorities, including individuals who happen to own property peculiarly affected by government regulation, the democratic process will assure that costs and benefits of government action are relatively evenly spread and that benefits exceed costs.(29)

It is possible that the specific holding in Dolan will fuel the flames of judicial balancing. Justice Rehnquist's opinion for the Court states the issue thus: "[W]hat is the required degree of connection between the exactions imposed by the city and the projected impacts of the proposed development[?]"(30) This is the issue, says Rehnquist, because the Court is required to apply a two-part test in "exactions" cases. The difficulty is that the Court had not, prior to Dolan, articulated the second half of the test. Indeed the lower court decisions in Dolan suggested that there was some doubt about the first part of the test,(31) but according to Justice Rehnquist it was clearly established in Nollan v. California Coastal Comm'n(32) that the Court must first determine "whether the `essential nexus' exists between the `legitimate state interest' and the permit condition exacted by the city."(33) Because the regulation in question in Nollan lacked the essential nexus to the condition imposed, the Court was not required to articulate the second half of the two-part test.

A review of state court decisions on the issue posed by Rehnquist revealed that "general agreement exists among the courts `that the dedication should have some reasonable relationship to the needs created by the [development].'"(34) Although the majority found the "reasonable relationship" test "closer to the federal constitutional norm" than the tests proposed by the parties to Dolan, they rejected it "because the term `reasonable relationship' seems confusingly similar to the term `rational basis' which describes the minimal level of scrutiny under the Equal Protection Clause of the Fourteenth Amendment."(35) Instead the Court concluded that a "rough proportionality" test "best encapsulates what we hold to be the requirement of the Fifth Amendment."(36) This test does not require "precise mathematical calculation," said the Court, "but the city must make some sort of individualized determination that the required dedication is related both in nature and extent to the impact of the proposed development."(37) The findings upon which the City of Tigard relied in conditioning Mrs. Dolan's permit failed to meet this test.

Could the City of Tigard satisfy the "rough proportionality" test of Dolan? With respect to the floodplain regulation--probably--at least if the City was willing to settle for something less than the dedication of an easement. Under existing law there is little doubt that the City could prohibit development in the 100 year floodplain, and there is also little doubt that Mrs. Dolan's improvements would have increased storm runoff. The problem was that the City had not bothered to do the math. And if the numbers did not add up to rough proportionality, the City already claimed the authority, not challenged by Mrs. Dolan, to require a fifteen percent set aside for greenspace, a measure which would have more than covered the area within the floodplain.(38)

With respect to the pedestrian and bicycle pathway the City would have much greater difficulty satisfying the rough proportionality test. The City did not have, and probably could not get, specific evidence about the impact of a pedestrian and bicycle pathway on the number of automobile trips which would be made to Mrs. Dolan's expanded store. The conditioning of Mrs. Dolan's permit on the dedication of land for a pedestrian and bicycle pathway comes within what Chief Justice Rehnquist described as "the well-settled doctrine of `unconstitutional conditions,'"(39) or what Justice Scalia, had he written the opinion, might have called extortion.(40)

If this is what there is to Dolan, it is not much. Regulators will have to do their homework a little better, and if government wants title to private land it will probably have to pay for it. Until recently, government assumed that it had to pay for property to which it acquired title. The Supreme Court's per se taking rule in cases of physical invasion confirmed that this assumption was correct.(41) But if government wants to prevent most private use of private land, as when it prohibits development in a floodplain, or when it requires the set aside of open space, it is easily accomplished by regulation. Nothing in the holding in Dolan changes this. Thus, if Dolan holds significance for the future of takings law, it rests in the dictum of Chief Justice Rehnquist's opinion. That dictum is both worrying and promising.

II. THE BAD NEWS

Worrying is the continuing acceptance of the levels of scrutiny approach and the attempt to fit takings analysis into that unfortunate construct Justice Rehnquist rejects the review standard utilized by some states as more exacting than what the Federal Constitution requires, "given the nature of the interests involved."42 While the Court's rough proportionality test makes it clear that property interests have been elevated from their prior low status, perhaps to some intermediate level of review,43 judicial balancing, and therefore ad hoc decision making, remains a part of takings law.

Justice Stevens criticizes this as part of an unfortunate revival of substantive due process,(44) as if substantive due process has not been part of the modern Court's arsenal.(45) At least since Griswold v. Connecticut(46) the Court has been relying on the due process clause to invalidate state and federal laws on the basis of their substantive consequences. Justice Stevens objects that the majority is simply picking and choosing among its preferred interests, but that is the unavoidable nature of applying judicial balancing tests, and Justice Stevens expresses his own preferences in the context of his opinion in Dolan.(47)

Justice Stevens, confusion on this point is further evidenced by his remarkable argument that the takings clause has never really been incorporated into the due process clause of the Fourteenth Amendment.(48) Whatever the justification for the doctrine of incorporation,(49) it is certainly well established.(50) Furthermore, the doctrine is one of the most significant manifestations of the idea of substantive due process. The whole point of the incorporation doctrine is that the 14th Amendment requirement that states provide due process implicitly requires the states to recognize most of the substantive rights which the Bill of Rights guarantees to citizens in their relations with the national government.

Another troubling aspect of the majority opinion is the suggestion that legislative takings are of less concern than adjudicative takings. After describing the right to exclude others as "one of the most essential sticks in the bundle of rights that are commonly characterized as property,"(51) Justice Rehnquist sets out to balance "[o]n the other side of the ledger, the authority of state and local governments to engage in land use planning."(52) This authority, he points out, has been recognized at least since the Court's 1926 decision in Euclid v. Ambler Realty Co.(53) Rehnquist distinguishes Dolan from Euclid and other cases in which regulations have been upheld in the face of takings challenges, in part on the basis that Dolan involved an adjudication rather than legislation.(54) Although the distinction between legislative and adjudicative functions of government has important procedural implications, it is not at all clear that the distinction should have any relevance with respect to the substantive protection of property rights. From the point of view of the property owner, the consequence of a taking is the same whether done by the legislative, executive, or judicial branches of government. The Fifth Amendment draws no such distinction.

Finally, the majority opinion is troublesome in its apparent agreement that the City of Tigard has free rein, short of mandating a transfer of title, in conditioning the use of private property.(55) Consistent with the Court's holding, the City of Tigard could require the dedication of some of Mrs. Dolan's property if the value of the dedicated property is roughly proportional to the public costs which will result from Mrs. Dolan's expanded store and parking lot. But by what constitutional principle may the state demand compensation from individuals for the costs their activities impose on the public? Surely it does not follow from the Fifth Amendment's requirement that the state compensate individuals for taken property. The point of a constitution is to protect individuals from the abuse of government power, not to assure that the government will not be taken advantage of by its citizens.(56)

What the Constitution does require is some degree of equality in the demands which government can make of its citizens. There is no doubt that the government may charge individual citizens for services voluntarily used, and that the government may tax its citizens to support programs of broad public benefit, but the government may not hold the exercise of individual rights hostage to the payment of ransom.(57) As the Court made clear in Lucas, for Fifth Amendment purposes, the measure of the legitimacy of a government regulation of property is the extent of the individual title affected.(58)

The outcome in Lucas turned on whether or not the preexisting law of nuisance limited the property owner's right to engage in the regulated activity. If Lucas, proposed use of his beachfront property was a common law nuisance, the South Carolina regulation did not infringe Lucas, property right because he had no right to do what he proposed; but if the regulation prohibited Lucas from doing something he had a right to do prior to the regulation, there was a taking for which he had to be compensated.(59) The fact that a property owner's action imposes costs on the public does not necessarily mean that the public is entitled to compensation.

It is in the nature of property rights that they permit individuals to deny the benefits of their property to others, benefits which government may be called upon to provide in some other way. If government has the authority to demand compensation for every cost (or denial of benefit) which property use imposes on others, the takings clause will be reduced to an empty promise. The purpose of a property rights system is to assign the costs and benefits of the use of scarce resources. As the Lucas opinion makes clear, the problem in a takings case is to determine how the law has assigned those costs and benefits. To assume that government can demand compensation from property owners whenever government activities are affected by the exercise of property rights is to diminish those rights. Without either explicit or implicit compensation, the purpose of the takings clause is defeated.

III. The Good News

The purpose of the takings clause, says Justice Rehnquist in a quotation from Armstrong v. United states,(60) is "to bar Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole."(61) This recognition is extremely important in light of the misplaced Robin Hood approach implicit in many past decisions. The assumption seems to have been that property owners can be made to bear disproportionate costs because of their wealth. That assumption was almost explicit in the Penn Central case.(62) But in many cases individuals affected by regulation have all of their (often modest) wealth tied up in property.(63) No one would suggest that government can arbitrarily take a significant portion of individuals, savings accounts. Given the emotional investment people often have in property, there is even less justification for government taking of individual wealth in the form of property. The Fifth Amendment does not, except in requiring due process, take account of the emotional values of property, but as the majority in Dolan recognizes, it does seek to protect against arbitrary imposition of the economic costs of government action.

This understanding of the purpose of the takings clause is consistent with both the theory and the reality of democratic government. We prefer democracy to other forms of government because it is more likely than the others to respect the rights and serve the needs of the individual. However, we recognize that even properly functioning democracies can abuse power at the expense of individuals and minorities.(64) The takings clause, like the equal protection clause, protects against this majoritarian tyranny. The equal protection clause does it by requiring laws that apply to some apply to all. The takings clause does it by insisting that the costs imposed by government use or regulation of private property are borne by all to whom the benefits inure. This was one of the central points of Justice Holmes, opinion in Mahon. The importance of the concept of average reciprocity of advantage is that it requires that the costs of regulation, like the benefits, be fairly distributed.

It is also significant that the majority could "see no reason why the Takings Clause of the Fifth Amendment, as much a part of the Bill of Rights as the First Amendment or Fourth Amendment, should be relegated to the status of a poor relation in these comparable circumstances."(65) The distinction which Rehnquist questions has never been explained by the Court; it has simply evolved over the course of several decades. There is no constitutionally sufficient explanation for the takings clause's stepchiLd status, but it is not difficult to understand how the Court permitted its caselaw to lead to this result. Since the introduction of standards of review analysis in Carolene Products, the door has been opened for constitutional principles to shift with the philosophies of the members of the Court.

Justice Stevens contends that such a philosophical shift explains the majority's opinion in Dolan.(66) It is a shift, he says with puzzling but obvious dismay, which makes it clear that "property owners have surely found a new friend."(67) Because the shift which Dolan represents in takings law is what most would expect of a "conservative" court, Stevens, suspicions are justified. If pursued to its logical conclusion, it is a shift which will restore fairness to the application of a constitutional provision, the purpose of which is to assure the fair treatment of citizens who happen to own property. An incidental, and publicly significant, benefit of this shift will be the reinvigoration of a property rights system which is centrally important to the wise use of our planet's scarce resources.

(1) 114 S. Ct. 2309 (1994). (2) 112 S. Ct. 2886 (1992). (3) James L. Huffman, Lucas: A Small Step in the Right Direction, 23 Envtl. L. 901 (1993). (4) This is not to suggest that assignment of the burden of proof and determination of the standard of proof are insignificant questions. In this case, however, the City would have had little difficulty in proving that Mrs. Dolan's proposed improvements to her property would measurably increase storm runoff and traffic volume. Tigard's problem was that it got both careless and greedy in a climate which seemed to permit unabashed extortion. On the careless side, Tigard failed to determine how much runoff would actually result from the added impermeable surface and therefore did not demonstrate that requiring Mrs. Dolan to dedicate her flood plain land was a "roughly proportional" exaction. On the greedy side, Tigard had laid plans for a pedestrian and bicycle path across Mrs. Dolan's land, and taking it by way of general assertions about the relationship between automobile and pedestrian and bicycle travel was clearly preferable to purchasing the land. Tigard did conclude that Mrs. Dolan's expanded store would generate an additional 475 trips per day. Mrs. Dolan would no doubt have welcomed an additional 475 customers per day, and probably would have gladly given the City 10% of her land had they been willing to guarantee that increased traffic. (5) Michael C. Blumm, The End of Environmental Law? Libertarian Property, Natural Law, and the Just Compensation Clause in the Federal Circuit, 25 Envtl. L. 171, 172 (1995); Edward Sullivan, Substantive Due Process Resurrected Through the Takings Clause: Nollan, Dolan, and Ehrlich, 25 Envtl L. 155, 160 (1995). (6) Dolan, 114 S. Ct. at 2327 n.10 (Stevens, J., dissenting) (citing Justice Holmes, "regulatory takings" language in Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 414 (1922), as an example of dictum that has kindled subsequent takings opinions); see also Keystone Bituminous Coal Ass'n v. DeBenedictis, 480 U.S. 470, 508 (1987) (Rehnquist, C.J., dissenting) ("I would have no doubt that our repeated reliance on [Pennsylvania Coal] establishes it as a cornerstone of the jurisprudence of the Fifth Amendment's Just Compensation Clause."). (7) See, e.g., Andrea L. Peterson, The Takings Clause: In Search of Underlying Principles (pt. 1), 77 Cal. L. Rev. 1301, 1303-04 (1989) ("[T]he Court's takings doctrine is in far worse shape than has generally been recognized--indeed, it is difficult to imagine a body of case law in greater doctrinal and conceptual disarray."); Joseph L. Sax, Takings and the Police Power, 74 Yale L.J. 36, 37 (1964) ("[T]he predominant characteristic of this area of law is a welter of confusing and apparently incompatible results."); John A. Humbach, A Unifying Theory for the Just Compensation Cases, 34 Rutgers L. Rev. 243, 244 (1982) ("[The takings jurisprudence is] a farrago of fumblings which have suffered too long from a surfeit of deficient theories."); Jed Rubenfeld, Usings, 102 Yale L.J. 1077, 1078 (1993) ("[The] Takings Clause [is] engulfed in confusion."). (8) Penn Cent. Transp. Co. v. New York City, 438 U.S. 104, 124 (1978) (listing several "factors," including "investment-backed expectations" and "the character of the governmental action," which must be weighed during an ad hoc factual inquiry to determine whether a taking has occurred). (9) United States v. Carolene Products Co., 304 U.S. 144, 152-53 n.4 (1938). Cf. Jesse H. Choper, The Supreme Court and the Political Branches: Democratic Theory and Practice, 122 U. Pa. L. Rev. 810, 812 (1974) ("Despite the tendency of many classical and modern democratic political theorists to equate democracy with pure majoritarianism, `the attempt to identify democracy with the unlimited power of majorities has usually gone hand in hand with an attempt to include in the definition some concept of restraints on majorities.'") (footnote omitted). (10) John Hart Ely, Democracy and Distrust 135-83 (1980). (11) Carolene Products, 304 U.S. at 152-53 n.4. (12) U.S. Const. amends. I-X. (13) See, e.g., United States v. O'Brien, 391 U.S. 367 (1968) (balancing governmental interest against First Amendment freedom of expression). (14) See, e.g., Braunfield v. Brown, 366 U.S. 599 (1961) (balancing State's secular goals against resulting burden on religious observance). (15) U.S. Const. amend. V ("nor shall private property be taken for public use, without just compensation"). (16) Michael C. Blumm, Property Myths, Judicial Activism, and the Lucas Case, 23 Envtl. L. 907, 914 (1993) (current takings jurisprudence "might help to establish the Constitution as an unfortunate restraint on the ability of environmental and land use regulation to control the adverse effects of development"). (17) It is difficult to make a case for democracy which is not rooted in the protection of liberty. "We value democracy because it is as close as functional government can come to being libertarian. Only unanimity would totally satisfy liberty, but in a society of 280 million we must settle for republican democracy. We settle for it not because it has merit by itself, rather because it serves, as best we know how, liberty." James L. Huffman, A Case for Principled Judicial Activism, The Heritage Lectures, #456, at 4 (1993) (on file with author). (18) As the Supreme Court pointed out in First English Evangelical Lutheran Church v. County of Los Angeles, 482 U.S. 304, 315 (1987), and reiterated in Preseault v. Interstate Commerce Comm'n, 494 U.S. 1, 11 (1990), the Fifth Amendment "is designed `not to limit the governmental interference with property rights per se, but rather to secure compensation in the event of otherwise proper interference amounting to a taking.'" Both the public purposes and the rights of the property owner, to the extent those rights are reflected in the market value of the property, can be served without sacrificing one to the other. The same result is not possible where public purposes require limitations on, for example, freedom of speech or free exercise of religion. (19) The public, aware of this reluctance, has pushed for mandatory compensation under certain predetermined conditions, for example, where a regulation produces a given amount of diminution in value. See, e.g., S. 829, 67th. Leg. (Ore. 1993); H.R. 1488, 53d. Leg. (Wash. 1993); H.R. 3875, 103d. Cong., 1st. Sess. (1993). In response to the introduction of the federal legislation, the state attorney generals of 33 states sent a letter to members of Congress urging them to oppose the legislation. Letter from Tom Udall, Attorney General of New Mexico, to Members of Congress (Sept. 26, 1994) (signed by 32 other state attorney generals) (on file with author). (20) In Dolan, the City of Tigard sought to acquire title to land, including a right of way for a pathway, without resorting to the eminent domain power which has traditionally been used to acquire rights of way for highways and other public easements. (21) Justice Holmes' concept of "reciprocity of advantage" in Pennsylvania Coal Co. v. Mahon is founded on a recognition of this connection between democracy and wealth redistributions. If most of the people affected by a regulation experience both the benefits and costs of that regulation, they will have an incentive to vote against unreasonable redistributions of wealth. However, if the costs are imposed on a few and the benefits are borne by many, the majority will have an incentive to redistribute wealth from others to themselves. (22) The Federalist No. 10 (James Madison). (23) 260 U.S. 393 (1922). (24) Id. at 413. (25) Id. at 415. (26) Euclid v. Ambler Realty Co., 272 U.S. 365, 397 (1926) (75% diminution in value not compensable). (27) Id. (28) Richard A. Epstein, Takings: Private Property and the Power of Eminent Domain 196 ("Each person whose property is taken by [a] regulation receives implicit benefits from the parallel takings imposed on others."). (29) An important function of the takings clause is to force the majority to account for the costs of its actions. If the majority is permitted to impose costs on minorities, it has no incentive to account for those costs. (30) Dolan, 114 S. Ct. at 2312. (31) Id. at 2315. (32) 483 U.S. 825 (1987). (33) Id. at 2317 (quoting Nollan, 483 U.S. at 837). (34) Id. at 2319 (35) Id. (36) Id. (37) Id. at 2319-20. (38) The plaintiff had no reason to challenge the City's authority to preclude development of the floodplain or to require a 15% set aside for greenspace because her proposed development would have complied with both requirements. However, it should not be assumed that both of these requirements are presumptively valid under the takings clause. In both cases it should depend upon whether the benefits which inure to each of the affected property owners as a result of the regulation are roughly proportional to the costs imposed on each of those property owners. (39) Dolan, 114 S. Ct. at 2317. (40) See Nollan v. California Coastal Comm'n, 483 U.S. 825, 837 (1987) (quoting J.E.D. Associates v. Town of Atkinson, 432 A.2d 12, 14 (N.H. 1981)). (41) See Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 426 (1982) (a regulation requiring landlords to allow cable television companies to install cable equipment is a per se taking). (42) Dolan, 114 S. Ct. at 2319. (43) Although the Court has seldom described property rights as of a lesser constitutional importance, it has consistently insisted upon minimum scrutiny of, and maximum deference to, "mere economic and social legislation." Because all legislation is economic or social in some sense, the Court's point has never really been to distinguish one type of legislation from another. Rather, the phrase "economic and social legislation" has served as code for the Court's hierarchy of rights, in which greater deference is given to legislation impacting on economic liberties than is given to legislation impacting on other constitutionally protected liberties like freedom of speech. To the extent that the Court has expressly distinguished property rights as inferior, it has been in the form of a distinction between "civil" rights and property rights. As Justice Stewart pointed out in Lynch v. Household Finance Corp., 405 U.S. 538, 552 (1972), this is a distinction without a difference. (44) Dolan, 114 S. Ct. at 2329 (Stevens, J., dissenting). (45) See, e.g., Zablocki v. Redhail, 434 U.S. 374, 387 (1978); Cleveland Board of Education v. LaFleur, 414 U.S. 632, 639 (1974); Roe v. Wade, 410 U.S. 113, 152 (1973); Loving v. Virginia, 388 U.S. 1, 12 (1967). (46) 381 U.S. 479 (1965). (47) For example, Justice Stevens challenges the majority's reliance on the unconstitutional conditions doctrine as "the application of the `unconstitutional conditions, label to a mutually beneficial transaction between a property owner and a city." Dolan, 114 S. Ct. at 2327 (Stevens, J., dissenting). On what basis, other than the imposition of his own values, has Justice Stevens concluded that the transaction is mutually beneficial? (48) Id. at 2326-27. (49) Compare Palko v. Connecticut, 302 U.S. 319, 325 (1937) ("essence of a scheme of ordered liberty") with Adamson v. California, 332 U.S. 46, 89 (1946) (Black, J., dissenting) ("to extend to all the people of the nation the complete protection of the Bill of Rights"). (50) Penn Cent. Transp. Co. v. New York City, 438 U.S. 104, 122 (1978) (the Fifth Amendment is "of course" made applicable to the states through the Fourteenth Amendment) (citing Chicago B. & Q.R.R. v. Chicago, 166 U.S. 226, 239 (1897)). (51) Dolan, 114 S. Ct. at 2316. (52) Id. (53) 272 U.S. 365 (1926). (54) Dolan, 114 S. Ct. at 2316. The majority opinion also relies on the fact that in Dolan "the conditions imposed were not simply a limitation on the use petitioner might make of her own parcel, but a requirement that she deed portions of that property to the city." Id. (55) Id. at 2316-22. (56) At least one court has arguably held to the contrary, though. See Peterson v. Mayor and Council of Klamath Falls, 566 P.2d 1193, 1197 (Or. 1977). See also James L. Huffman & Reuben C. Plantico, Toward a Theory of Land Use Planning: Lessons From Oregon, 14 Land & Water L. Rev. 1, 64-67 (1979) (discussing Peterson). (57) "Under the well-settled doctrine of `unconstitutional conditions', the government may not require a person to give up a constitutional right--here the right to receive just compensation when property is taken for a public use--in exchange for a discretionary benefit conferred by the government where the property sought has little or no relationship to the benefit." Dolan, 114 S. Ct. at 2317. (58) Lucas v. South Carolina Coastal Council, 112 S. Ct. 2886, 2893-95, 2899-900 (1992). (59) On remand, the South Carolina Supreme Court, not surprisingly, held there was a compensable taking. The supreme court, however, remanded the case to the trial court for a determination of damages. Lucas v. South Carolina Coastal Council, 424 S.E.2d 484, 486 (S.C. 1992). The state eventually settled with Lucas in the amount of $1.5 million in exchange for the property. Bruce Smith, S.C. Settles Challenge to Coastal Rules: Man Barred from Building on Beachfront Property Accepts $1.5 Million Deal, Charlotte Observer, July 8, 1993, at 1C. Ironically, the state, which now owns the property, has issued special use permits and will likely resell the property. Id. (60) 364 U.S. 40 (1960). (61) Dolan, 114 S. Ct. at 2316 (quoting Armstrong, 364 U.S. at 49). (62) Penn Cent. Transp. Co. v. New York City, 438 U.S. 104, 133 (1978); see also The Takings Clause and the Future of Environmental and Land Use Regulation: Panel Discussion, 25 Envtl L. 211, 214, 218-19 (1995) (comments by Michael Blumm). (63) This is particularly true of farmers and ranchers. (64) The Federalist No. 10 (James Madison). (65) Dolan, 114 S. Ct. at 2320. (66) Id. at 2326 (Stevens, J., dissenting). (67) Id.

James L. Huffman

* Dean and Professor of Law, Northwestern School of Law of Lewis and Clark College; J.D. 1972, University of Chicago; M.A. 1969, Fletcher School of Law and Diplomacy; B.S. 1967, Montana State University.