The Takings Issue: Constitutional Limits on Land Use Control and Environmental Regulation.

I. INTRODUCTION

When you purport to provide a "balanced" treatment of a highly charged issue like regulatory takings, you had better deliver. Advocates on both sides of the debate will inspect every page for evidence of a thumb on the scale. The Takings Issue: Constitutional Limits on Land Use Control and Environmental Regulation(1) promises the reader a balanced analysis of the case law that governs whether land use controls, environmental safeguards, and other community protections comport with the Takings Clause of the Fifth Amendment.(2) In important respects, however, The Takings Issue leaves the promise of balance unfulfilled.

At first glance, expectations of an even-handed treatment of takings issues run high. The authors (Robert Meltz, Dwight H. Merriam, and Richard M. Frank) bring vast experience to the enterprise and reflect a cross-section of perspectives, from the nonpartisan Congressional Research Service, private practice, and the California Department of Justice, respectively. The advance reviews on the cover include praise from both sides of the debate, heightening the expectation of a centrist approach. The book's preface suggests that The Takings Issue provides an objective examination of the issues that will be useful to planners, local officials, and the environmental community. Because the book is published by Island Press(3) and is the successor to a similar volume published by the Council on Environmental Quality in 1973,(4) it is only natural to assume that the new effort would fully reflect the concerns of those who defend environmental safeguards and other community protections. The results, however, are decidedly mixed.

To their credit, the authors cover takings issues literally from A to Z--from airports to zoning, and much in between. After an overview of the foundational precedents, individual chapters offer insights on takings issues relating to billboards, historic preservation, rails-to-trails programs, toxic waste cleanup, water rights, and more. The chapter on mining and the Takings Clause is particularly thoughtful and thought provoking. The net result is a readable discussion of many difficult issues.

Yet, the environmental community and local officials need to be aware that The Takings Issue too often fails to achieve the balance it promises.

II. WHITHER THE COMMUNITY PERSPECTIVE?

Any impartial treatment of takings case law must adequately explain the competing concerns of the property owner and the community at large. As the authors themselves recognize, takings jurisprudence develops through judicial efforts to weigh the interests of the claimant against those of the general public.(5) On this key test of balance, The Takings Issue comes up short. In their discussion of several critical cases, the authors neglect half the equation by providing little or no information regarding the underlying purpose of the land use controls at issue.

For example, in discussing Lucas v. South Carolina Coastal Council,(6) one of the most frequently cited takings cases of the last decade,(7) the authors tell us only that a South Carolina statute barred Mr. Lucas from building beachfront homes on his two barrier island lots.(8) No mention is made of the purpose of the statute, which protects human lives and property by preserving dunes and beach that serve as storm barriers and protect against erosion. This public safety rationale is discussed in Justice Scalia's majority opinion(9) and both dissents--the latter stressing that ocean storms often break up oceanfront homes and propel the splintered debris like battering rams into nearby neighborhoods.(10) The dune protections in Lucas followed the findings of a blue-ribbon panel that severe dune erosion threatened public safety--a finding vindicated in 1989 when Hurricane Hugo caused twenty-nine deaths and $6 billion in property damage.(11) Lucas's property itself was underwater for many years, and local officials issued twelve emergency orders for sandbagging to protect Lucas's Wild Dune Development.(12) All of this, fully described in Lucas, goes unmentioned in The Takings Issue. As a result, the reader is deprived of a full appreciation of the significance of Lucas and the ability to consider whether the Court reached the correct result.(13)

In their four-page analysis of Suitum v. Tahoe Regional Planning Agency,(14) the authors say only that the defendant agency prohibits new development in certain areas "within certain zones" that include Mrs. Suitum's parcel.(15) The Suitum discussion fails to inform the reader that the controls are designed to protect Lake Tahoe, an indescribably beautiful mountain lake; that topographical conditions render its pure waters vulnerable to sedimentation; and that thoughtless development has seriously jeopardized its water quality. While this information is recounted much later in a chapter unrelated to Suitum,(16) the Suitum discussion is disturbingly one-sided. The treatment of certain other cases is similarly unbalanced.

To be sure, courts sometimes give short shrift to the community concerns that underlie the protections at issue in takings cases. In a book that purports to be balanced, however, the reader reasonably expects some recognition of these concerns, even where the court deems them irrelevant to the precise legal issue before it. Because the authors fail to give these concerns sufficient consideration, they deny the reader an adequate sense of the challenges faced by local officials, as well as the practical significance of the rulings they discuss.

III. BITTER FRUIT ON "RIPENESS"

The book's lack of balance is particularly striking in its treatment of ripeness, the legal doctrine that governs when a takings claim may be filed in court.(17) In Williamson County Regional Planning Commission v. Hamilton Bank (Williamson County),(18) the Supreme Court made clear that a takings claimant must obtain a truly final decision from local authorities before challenging state or local actions under the Takings Clause.(19) Williamson County's "finality" ripeness requirement typically compels a landowner to apply for a variance or waiver prior to challenging a local land use decision as a taking in federal court.(20)

The Court provided further guidance on finality ripeness in MacDonald, Sommer & Frates v. County of Yolo,(21) stating that "[i]t follows from the nature of a regulatory takings claim that an essential prerequisite to its assertion is a final and authoritative determination of the type and intensity of development legally permitted on the subject property."(22) While a regulation may constitute a taking where it goes "too far,"(23) MacDonald, Sommer & Frates stresses that a "court cannot determine whether a regulation has gone `too far' unless it knows how far the regulation goes."(24) Because local land use agencies are "singularly flexible institutions,"(25) a takings claimant must pursue available remedies from local officials before a court may decide whether a land use restriction has effected a taking.(26) The finality ripeness requirement promotes negotiation and enhances local land use planning by ensuring that landowners make good faith efforts to work with planning officials to address local concerns rather than immediately suing in federal court.

Williamson County also holds that in a challenge to state or local action, a takings claimant must seek compensation under state law before filing a claim under the federal Takings Clause.(27) This requirement derives from "the nature of the constitutional right," because "no constitutional violation occurs until just compensation has been denied."(28) In City of Monterey v. Del Monte Dunes at Monterey, Ltd. (Del Monte Dunes),(29) the Court recently reaffirmed that a municipality does not violate the federal Takings Clause if state law provides an adequate postdeprivation remedy.(30)

Ripeness issues have acquired a newfound prominence in the takings debate because they are at the heart of recent efforts to enact federal takings legislation. Takings bills introduced in the 105th Congress would have revised ripeness requirements to make it easier for developers to sue local officials in federal court far earlier in the land use planning process.(31) The bills also purported to eliminate the requirement to seek compensation in state court before filing a federal takings claim. The National Association of Home Builders (NAHB) helped draft these bills, declared them to be a top legislative priority, and pushed hard for their passage.(32) The bills died in the Senate in 1998 when the developers' lobby failed to muster enough votes to bring the bills to the Senate floor for a vote, much less get them passed on the merits.(33) The issue is still alive, however, because both chambers of Congress have reintroduced the legislation,(34) and the Subcommittee on the Constitution of the House Judiciary Committee recently held hearings on the House bill.(35)

With that background, consider the treatment of ripeness in The Takings Issue. The authors largely adopt the developers' ripeness lexicon, condemning "the often-tortuous ripeness hurdles" as an unfair "barrier" and "trap" for unwary but worthy claimants.(36) These descriptions are hardly balanced, for they disregard the critical role that ripeness plays in enhancing local decision making by requiring landowners to work closely with local officials before suing in federal court. The authors also virtually ignore MacDonald, Sommer & Frates--a must-read ruling for any municipality that seeks to assert a ripeness defense.

Instead, the authors discuss case surveys that purport to show that federal courts unfairly dismissed scores of takings cases on ripeness grounds.(37) These surveys have been severely criticized, however, because most of the cases they discuss involve claimants who challenged local government action in federal court without first seeking compensation in state court as required by Williamson County.(38) Federal courts can hardly be faulted for dismissing takings claimants who have no claim under binding Supreme Court precedent. A more balanced analysis would have discussed the criticisms of the cited surveys in order to allow the reader to evaluate both sides of the debate.

The last chapter of the book directly addresses the NAHB ripeness bills.(39) The authors inexplicably fail to mention that these bills are opposed by every major group of state and local officials in the country, including the National Governors Association, the National Association of Counties, the National League of Cities, the U.S. Conference of Mayors, the National Conference of State Legislatures, the Chief Justices of the State Supreme Courts, more than forty state Attorneys General, the International Municipal Lawyers Association, and a host of other groups that work to defend community rights.(40)

Perhaps most disturbing of all, the book could be misread as an endorsement of the NAHB bills. In the last chapter, the authors recommend what they call "a middle, possibly less acrimonious, path" for legislative reform.(41) Just a few pages later, they discuss the NAHB bills as part of their proposed "middle way."(42) This apparent recommendation is probably unintentional (perhaps the result of inartful editing), for Mr. Meltz has written on the NAHB proposals without endorsement, and Mr. Frank's employer, the California Department of Justice, strongly opposes these proposals.(43) If bill supporters were to misuse The Takings Issue to suggest that the book endorses the NAHB ripeness bills, one hopes the authors would issue an immediate clarification of this unfortunate ambiguity.

IV. TIPPING THE SUBSTANTIVE SCALES

Key portions of the book's substantive takings analysis are similarly uneven. Consider, again, the treatment of Lucas, which holds that where land use controls render land valueless, the government may avoid takings liability by showing that the restriction implements "background principles" of law that limit the nature of the claimant's title.(44) The chapter on background principles emphasizes a dissent from a denial of certiorari in which Justice Scalia warns against unduly expansive use of background principles to preclude takings claims.(45) Although community officials should be aware of the Scalia admonition, far more important is the lower courts' receptivity to background-principle arguments. Yet, the authors fail to give sufficient attention to the many post-Lucas rulings that generously apply background principles to bar takings claims.(46) For example, nowhere does the background principles chapter mention four 1997 rulings from New York's highest court that use statutes and common-law rules as background principles to reject takings challenges.(47) While the book's introduction hints at this judicial flexibility,(48) the relevant substantive chapter neglects the New York cases, ignores other helpful applications of the background principles defense, and strikes an unduly pessimistic note.

At times, the authors expand apparent conflicts beyond their appropriate dimensions. For instance, they devote considerable space to the Federal Circuit's troubling ruling in Florida Rock Industries, Inc. v. United States (Florida Rock).(49) A split panel in Florida Rock concluded that a compensable taking might have occurred where a permit denial reduced the value of land by roughly sixty percent.(50) The authors note that Florida Rock conflicts with rulings by other courts, and they conclude that the conflict makes it "difficult if not impossible" for planners and municipal attorneys to discern the applicable ground rules of takings jurisprudence.(51) The salient point to be made, however, is that Florida Rock has had very little influence on other courts. Because Florida Rock is idiosyncratic, it should not hamstring municipal attorneys and others who do not litigate in the Federal Circuit.

Equally puzzling is the authors' discussion of Dolan v. City of Tigard.(52) Dolan holds that where a permit condition requires a dedication of property that impairs the owner's right to exclude others, the condition must be "roughly proportional" to the harm expected from the activity authorized by the permit.(53) The authors characterize Dolan in one breath as "doctrinally cautious"(54) and in another as "truly revolutionary,"(55) making no effort to reconcile these disparate conclusions. The latter description is plainly hyperbolic, for most lower courts have applied Dolan narrowly and limited its rough proportionality test to compelled dedications of property.(56)

In discussing Dolan, the authors highlight arguments made by Richard Epstein,(57) regarded as among the most radical takings theorists,(58) who contends that courts should use the doctrine of unconstitutional conditions to invalidate a wide range of land use controls and other government actions.(59) This doctrine, however, provides some of the strongest evidence that Dolan's rough proportionality test is limited to compelled dedications. Dolan expressly uses the doctrine to explain why compelled dedications deserve greater scrutiny than other land use controls.(60) To win an unconstitutional conditions case, a developer must show that the challenged government action burdens a constitutional right.(61) That showing is possible in cases like Dolan, where the compelled dedication of land would constitute an uncompensated taking if unilaterally imposed. Such a showing is impossible where the government simply conditions a permit on a land use restriction. In Yee v. City of Escondido,(62) the Court repudiated Professor Epstein's theory by rejecting an unconstitutional conditions challenge to mobile home park controls, stating that the argument "fails at its base ... because there has simply been no compelled physical occupation giving rise to a right of compensation."(63)

The reader would have been better served had the authors described more fully how courts have limited Dolan in practice, rather than speculating how Dolan might be expanded in theory. That speculation now has been rendered moot by Del Monte Dunes, which reaffirms that Dolan is limited to the "special context of exactions--land-use decisions conditioning approval of development on the dedication of property to public use."(64)

Given the ambiguities and inaccuracies in The Takings Issue that undermine the position of local communities, it should come as no surprise that developers' lawyers are already quoting the book in their briefs. One recent request for Supreme Court review quotes The Takings Issue to support the proposition that a compensable taking occurs under Lucas where government action temporarily deprives a landowner of all use.(65) Lucas says no such thing,(66) but imprecisions in The Takings Issue invite this kind of misuse. Another recent petition for high court review cites the authors' discussion of ripeness to justify a request that the Court reconsider Williamson County.(67) Expect more of the same in the future, with developers seeking the refuge of credibility for their dubious theories by invoking the book's purported "balance."

V. LET'S SEEK CERTIORARI?

The Takings Issue concludes by excoriating the Supreme Court for "active avoidance" of difficult cases.(68) We are told that the Court has left us with a "jurisprudential vacuum" that gives no answers to "maddeningly difficult line-drawing questions."(69) The authors call on the Court to provide additional guidance by addressing more than a dozen takings issues listed in the final chapter.(70)

While their invitation to the Court is bold, it likely will cause local officials to cringe. Existing takings jurisprudence generally allows community officials to promote the public interest without fear of takings liability. Because the Court is highly polarized on takings issues, aggressive review on the scale suggested by the authors might risk undermining the continued viability of many community protections. More to the point, another fractured and confusing ruling like Lucas or Dolan would ill serve the cause of jurisprudential clarity.(71)

The authors are not the first to call for greater Supreme Court intervention. In the 1960s two leading land use experts, Norman Williams and Richard Babcock, bemoaned the Supreme Court's failure to address more planning issues.(72) Two decades later, after surveying a series of thoroughly confusing Supreme Court land use rulings, Williams and Babcock publicly recanted, stating that "they should have left well enough alone."(73) One wishes the authors of The Takings Issue had learned from their mistake.

The Takings Issue tells us that we need guidance on whether compensation is required for "a 70 percent loss in value, no complicating factors"(740--an issue that harkens back to the aberrational Florida Rock ruling discussed above. In Village of Euclid v. Ambler Realty Co.,(75) however, the Court upheld land use controls that resulted in a seventy-five percent decrease in value, rejecting the argument that they were confiscatory.(76) In Hadacheck v. Sebastian,(77) the Court found no violation where a ban on brickyards in a residential area devalued an existing brickyard by more than ninety percent.(78) In Concrete Pipe & Products, Inc. v. Construction Laborers Pension Trust,(79) a unanimous Court cited Village of Euclid and Hadacheck as establishing that mere diminution in value is not enough to demonstrate a compensable taking.(80) In the specific context of land use controls, the Court emphasized in United States v. Riverside Bayview Homes, Inc.(81) that "[o]nly when a permit is denied and the effect of the denial is to prevent `economically viable' use of the land in question can it be said that a taking has occurred."(82)

The existing rules hardly leave community officials and property owners in a state of desperate confusion. The Court repeatedly has answered the question posed by the authors: workaday land use restrictions that diminish value (even up to seventy percent) do not constitute a taking absent a complete economic wipeout or other complicating factors.(83) Because Florida Rock is plainly contrary to established Supreme Court precedent, and because it has had little jurisprudential influence so far, there is no need for the Supreme Court to address this question yet again. The authors themselves recognize that any variation among lower courts on this issue is only a "minor quibble."(84) Their call for high court review of this minor quibble is indeed perplexing.

Other issues suggested by the authors for Supreme Court review hardly seem worthy of the Court's time and attention. While a takings guru might dream of a grant of certiorari on whether "lack of contiguity [is] fatal to a claim that acreage be fused into the relevant parcel,"(85) the authors' recommendation that this issue become part of the Court's docket lacks perspective. On this and other issues suggested by the authors for high court review, lower courts are not so deeply divided, nor are the issues so exceptionally important, as to cry out for Supreme Court intervention.

Having ventured from case law description to jurisprudential prescription, the authors fail to justify their central recommendation. While perhaps heartening to certain developers who would like to see wholesale changes in the law, their recommendation for aggressive Supreme Court review will be viewed skeptically by many local officials, environmentalists, and others who question the usefulness of additional pronouncements from the high court on takings.

VI. CONCLUSION

For those who want a basic introduction to the concepts and cases in takings jurisprudence, The Takings Issue offers helpful guidance. For those who want a truly balanced discussion of the issues--one that consistently reflects the concerns of municipal attorneys, local planners, and the community at large--The Takings Issue fails to deliver.

(1) ROBERT MELTZ ET AL., THE TAKINGS ISSUE: CONSTITUTIONAL LIMITS ON LAND USE CONTROL AND ENVIRONMENTAL REGULATION (1999) [hereinafter THE TAKINGS ISSUE].

(2) U.S. CONST. amend. V ("nor shall private property be taken for public use, without just compensation").

(3) Island Press describes itself as a "nonprofit press dedicated to environmental concerns' for the benefit of "citizen activists, educators, students, and professionals involved in the study or management of environmental programs." About Island Press (last modified Oct. 30, 1998) <http://www.islandpress.org/islandpress/index.html>.

(4) See FRED BOSSELMAN ET AL., THE TAKING ISSUE: AN ANALYSIS OF THE CONSTITUTIONAL LIMITS OF LAND USE CONTROL (1973).

(5) See THE TAKINGS ISSUE, supra note 1, at 103-04.

(6) 505 U.S. 1003 (1992).

(7) According to a September 17, 1999 electronic search of Lexis-Nexis, Mega Library, and Megafiles, courts have cited Lucas in more than 500 cases.

(8) THE TAKINGS ISSUE, supra note 1, at 140.

(9) Lucas, 505 U.S. at 1021-22 & n. 10 (Scalia, J.).

(10) Id. at 1037-41 (Blackmun, J., dissenting); id. at 1075 (Stevens, J., dissenting).

(11) Id. at 1037-38 & n. 1 (Blackmun, J., dissenting).

(12) Id. at 1038-39.

(13) Justice Scalia's treatment of the statute's purpose is particularly noteworthy. He acknowledged that the claimant neither challenged the validity of the statute as a lawful exercise of police power, id. at 1009 (Scalia, J.), nor disputed the law's findings or stated purposes, id. at 1020-22. Justice Scalia also articulated the Lucas per se rule as requiring compensation "without case-specific inquiry into the public interest advanced in support of the restraint ... no matter how weighty the public purpose behind it." Id. at 1015. Yet elsewhere he questions whether the statute actually protects people and property from harm, suggesting that there is some "significance" in the fact that the statute allows existing structures to remain. Id. at 1024 n. 11. If the weight of the public purpose was unchallenged and irrelevant, why did Justice Scalia find it necessary to question the validity of the statute's stated purposes? By ignoring the public interest underlying the statute, THE TAKINGS ISSUE leaves these and other interesting issues unresolved.

(14) 520 U.S. 725 (1997).

(15) THE TAKINGS ISSUE, supra note 1, at 55-59.

(16) Id. at 520. The authors note the significance of Lake Tahoe some 460 pages later, but one wonders why they did not devote at least one sentence of the Suitum discussion to the beauty of the lake, a national treasure described by Mark Twain as "the fairest picture the whole earth affords." MARK TWIN, ROUGHING IT 134 (Penguin Books 1980) (1872). Curiously, the Suitum discussion does mention several facts that portray the claimant in a sympathetic light (notwithstanding their irrelevance to the legal issue before the Supreme Court), including the death of Suitum's husband and the existence of homes on lots surrounding her property. THE TAKINGS ISSUE, supra note 1, at 55. The authors even include a photo of Mrs. Suitum's parcel, id. at 56, but (sadly) none of Lake Tahoe.

(17) THE TAKINGS ISSUE, supra note 1, at 45-68.

(18) 473 U.S. 172 (1985).

(19) Id. at 186-94; accord Hodel v. Virginia Surface Mining & Reclamation Ass'n, 452 U.S. 264, 297 (1981) (holding that an as-applied challenge to federal surface mining rules is unripe until claimant seeks a variance as permitted by the rules); Agins v. City of Tiburon, 447 U.S. 255, 260 (1980) (finding that an as-applied challenge to zoning ordinances is unripe until claimant submits a plan of development for the property as permitted by the ordinances).

(20) See Williamson County, 473 U.S. at 186-94.

(21) 477 U.S. 340 (1986).

(22) Id. at 348.

(23) Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 415 (1922).

(24) MacDonald, Sommer & Frates, 477 U.S. at 348.

(25) Id. at 350.

(26) See id.; accord Suitum v. Tahoe Reg'l Planning Agency, 520 U.S. 725, 738 (1997) ("Williamson County's demand for finality ... responds to the high degree of discretion characteristically possessed by land-use boards in softening the strictures of the general regulations they administer.").

(27) Williamson County, 473 U.S. at 194-97.

(28) Id. at 194 n. 13.

(29) 119 S. Ct. 1624 (1999).

(30) Id. at 1639, 1644.

(31) See S. REP. No. 105-242, at 37-38 (1998).

(32) Glenn P. Sugameli, "Takings" Bills Threaten People, Property, Zoning, and the Environment, 31 URB. LAW. 177, 179-86, 192-93 (1999).

(33) Id. at 193.

(34) See H.R. 2372, 106th Cong. (1999); S. 1028, 106th Cong. (1999).

(35) See Private Property Rights Implementation Act of 1999: Hearings on H.R. 2372 before the Subcomm. on the Constitution of the House Comm. on the Judiciary, 106th Cong. 1st Sess. (1999) [hereinafter Property Rights Hearings].

(36) THE TAKINGS ISSUE, supra note 1, at 22, 67.

(37) Id. at 46.

(38) See S. REP. No. 105-242, at 42-43 (1998).

(39) THE TAKINGS ISSUE, supra note 1, at 551-54.

(40) See S. REP. No. 105-242, at 55-57.

(41) THE TAKINGS ISSUE, supra note 1, at 540.

(42) Id. at 551-54.

(43) See Property Rights Hearings, supra note 35 (testimony of Joseph Barbieri, Deputy Attorney General, on behalf of California Attorney General Bill Lockyer) (Sept. 16, 1999).

(44) Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 1027-31 (1992).

(45) MELTZ ST AL., supra note 1, at 177-78 (discussing Stevens v. City of Cannon Beach, 510 U.S. 1207 (1994) (Scalia, J., dissenting from denial of certiorari)).

(46) See, e.g., Grant v. South Carolina Coastal Council, 461 S.E.2d 388, 391 (S.C. 1995) (same, critical tideland statute); City of Virginia Beach v. Bell, 498 S.E.2d 414, 417-18 (Va.) (finding that a preexisting dune protection ordinance is a background principle that defeats a takings challenge) cert. denied, 119 S. Ct. 73 (1998).

(47) See Kim v. City of New York, 681 N.E.2d 312 (N.Y.) (finding that a preexisting city charter requirement to maintain lateral support for public highways is a background principle that defeats a takings challenge), cert. denied, 552 U.S. 809 (1997); Gazza v. New York Dep't of Envtl. Conservation, 679 N.E.2d 1035 (N.Y.) (finding that a preexisting state wetlands statute constitutes a background principle that defeats a takings challenge), cert. denied, 522 U.S. 813 (1997); Basile v. Town of Southhampton, 678 N.E.2d 489 (N.Y.) (same), cert. denied, 522 U.S. 907 (1997); Anello v. Zoning Bd. of Appeals, 678 N.E.2d 870 (N.Y.) (finding that a preexisting steep slope ordinance constitutes a background principle that defeats a takings challenge), cert. denied, 521 U.S. 1132 (1997).

(48) See THE TAKINGS ISSUE, supra note 1, at 29-31.

(49) 18 F.3d 1560 (Fed. Cir. 1994).

(50) Id. at 1567-73. On remand, the United States Court of Federal Claims applied this "partial takings" theory to find a taking based on a 73.1% decrease in value. Florida Rock Indus., Inc. v. United States, 45 Fed. Cl. 21 (1999).

(51) THE TAKINGS ISSUE, supra note 1, at 153.

(52) 512 U.S. 374 (1994).

(53) Id. at 388-96.

(54) THE TAKINGS ISSUE, supra note 1, at 9.

(55) Id. at 253.

(56) See e.g., Texas Manufactured Hous. Ass'n v. Nederland, 101 F.3d 1095, 1105 (5th Cir. 1996) (limiting Dolan to dedications), cert. denied, 521 U.S. 1112 (1997); Clajon Prod. Corp. v. Petera, 70 F.3d 1566, 1578-79 (10th Cir. 1995) (same); Harris v. City of Wichita, 862 F. Supp. 287, 294 (D. Kan. 1994) (same), aff'd, 74 F.3d 1249 (10th Cir. 1996); Home Builders Ass'n of Cent. Ariz. v. City of Scottsdale, 930 P.2d 993, 1000 (Ariz.) (same), cert. denied, 521 U.S. 1120 (1997); McCarthy v. City of Leawood, 894 P.2d 836, 845 (Kan. 1995) (same); Waters Landing Ltd. Partnership v. Montgomery County, 650 A. 2d 712, 724 (Md. Ct. App. 1994) (same); Arcadia Dev. Corp. v. City of Bloomington, 552 N.W.2d 281, 286 (Minn. Ct. App. 1996) (same); Southeast Cass Water Res. Dist. v. Burlington N. R.R. Co., 527 N.W.2d 884, 896 (N.D. 1995) (same).

(57) MELTZ ET AL., supra note 1, at 256-58.

(58) See Douglas T. Kendall & Charles P. Lord, The Takings Project: A Critical Analysis and Assessment of the Progress So Far, 25 B.C. ENVY. AFF. L. REV. 509, 520-28 (1988) (summarizing critiques of Richard Epstein's writings on takings issues).

(59) Richard A. Epstein, Unconstitutional Conditions, State Power, and the Limits of Consent, 102 HARV. L. REV. 4 (1988).

(60) 512 U.S. at 385.

(61) Id. ("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 benefit sought has little or no relationship to the property.").

(62) 503 U.S. 519 (1992).

(63) Id. at 531-32.

(64) City of Monterey v. Del Monte Dunes at Monterey, Ltd., 119 S. Ct. 1624, 1635 (1999).

(65) See Petition for Certiorari at 18 n. 26, Buckley v. California Coastal Comm'n, 120 S. Ct. 54 (1999) (denying cert.) (No. 98-1894) (quoting THE TAKINGS ISSUE, supra note 1, at 79).

(66) Lucas holds that a per se taking occurs where government regulation deprives land of all economically viable use. 505 U.S. at 1015-19. Where land is subject to a temporary development moratorium, it has not been deprived of all use and Lucas's per se rule is inapplicable. See, e.g., Santa Fe Village Venture v. City of Albuquerque, 914 F. Supp. 478, 483 (D.N.M. 1995) (holding that a thirty-month-long development moratorium is not a Lucas taking); Williams v. City of Central, 907 P.2d 701, 706 (Colo. Ct. App. 1995) (finding that a development moratorium in a gambling district is not a Lucas taking).

(67) See Petition for Writ of Certiorari at 4, Rainey Bros. Constr. Co. v. Memphis & Shelby County Bd. of Adjustment, 120 S. Ct. 172 (1999) (denying cert.) (No. 99-60).

(68) THE TAKINGS ISSUE, supra note 1, at 557.

(69) Id.

(70) Id. at 557-58.

(71) The Supreme Court's recent takings rulings have been deeply divided, often with scathing dissents. See, e.g., City of Monterey v. Del Monte Dunes at Monterey, Ltd., 119 S. Ct. 1624, 1661 (5-4 ruling); Dolan v. City of Tigard, 512 U.S. 374, 414 (5-4 ruling); Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 1078 (5-1-2-1 ruling); cf. Dolan, 512 U.S. at 414 (Souter, J., dissenting) ("The right case for the enunciation of takings doctrine seems to be hard to spot.").

(72) See Williams et al., The White River Junction Manifesto, 9 VT. L. REV. 193, 200 n.33 (1984).

(73) Id..

(74) THE TAKINGS ISSUE, supra note 1, at 557.

(75) 272 U.S. 365 (1926).

(76) Id. at 384.

(77) 239 U.S. 394 (1915).

(78) Id. at 405.

(79) 508 U.S. 602 (1983).

(80) Id. at 645.

(81) 474 U.S. 121 (1985).

(82) Id. at 127.

(83) See Concrete Pipe & Products, Inc., 508 U.S. at 645 ("[M]ere diminution in the value of property, however serious, is insufficient to demonstrate a taking.").

(84) THE TAKINGS ISSUE, supra note 1, at 104 ("First, only the most severe regulatory restrictions on land use are generally held to be takings. Courts may differ as to just how severe, but this is a minor quibble. The are almost all in the same ballpark. It is significant that the ascent to the bench of many conservative judges in recent decades has made for little adjustment to the takings orthodoxy on this point, at least so far.").

(85) Id. at 558.

Timothy J. Dowling, Mr. Dowling is Chief Counsel at Community Rights Counsel, a nonprofit law firm in Washington, D.C. that assists municipalities in defending against challenges to land use controls and other community protections.