The Rocky Mountain Land Use Institute’s
Eleventh Annual Conference
An Overview of Regulatory Takings & the Recent Palazzolo Decision
Moderator: Professor Edward H. Ziegler
Panelists: Professor David L. Callies
Professor Steven J. Eagle
Professor Julian C. Juergensmeyer
Professor Daniel R. Mandelker
Dwight H. Merriam, Esq.
Remarks prepared by Professor Delogu
Resistance to the
Takings Jurisprudence: A Growing and Ominous Trend
Passive Resistance to the
Takings Jurisprudence: A Growing and Ominous Trend
Remarks prepared by Professor Orlando E. Delogu
for the Panel presenting:
An Overview of Regulatory Takings & the Recent Palazzolo Decision
11th Annual RMLUI Conference
In assessing the impact of recent U. S. Supreme Court takings cases, perhaps each of us is
captive of a too limited range of viewpoints and experiences that raise takings questions. Recall
the story of the blind Indian sages who each described the elephant (incorrectly) as a mighty tree,
a great wall, a powerful snake, on the basis of the small part of that great animal they had hold of.
Perhaps we too on the basis of preconceptions, where we live, and who we happen to talk to
characterize the national response to the Supreme Court’s takings jurisprudence incorrectly or in
an unduly skewed manner–I certainly confess the possibility of such error.
Having stated this cautionary reservation, I would simply note that the piece of the elephant I
am holding suggests that there is a great deal of “passive resistance” to recent Supreme Court
takings cases. I think this is unfortunate and I arrive at this conclusion sadly, but what I see in
countless settings is a growing zeal for pushing the regulatory envelope–an “in your face”
response to recent Supreme Court takings cases by state and local governments (and many
that reminds one of the responses by
ago. Regulators at the federal level
to the Supreme Court–these are your takings cases–enforce them if you can. I would be happy
to be proved wrong; happy to be shown to be too pessimistic; happy to hear that those who can
see the whole elephant are persuaded that the last 25 years of Supreme Court takings cases is
forging a new national paradigm, a healthier balance between private property rights and land
use control objectives. But there is little evidence to support these happier conclusions; there is,
on the other hand, considerable evidence supporting the thesis I have laid out.
To begin with, the very fact that the U. S. Supreme Court has examined, re-examined, and
explicated takings questions as frequently as they have over the last 25 years is evidence that
people are not listening; the list of cases is long and growing longer; it logically begins with Penn
of these cases some governmental instrumentality had arguably pushed the regulatory process
“too far”, to that point where a “regulatory taking” could be said to have occurred. Some of the
above noted cases, while elaborating important takings principles, sustained the regulatory
measures being challenged; but most of the noted cases struck down, modified, and/or remanded
the challenged regulations.
Beyond these direct and obvious takings cases, the Supreme Court has dealt with an increasing
number of cases that raise takings questions indirectly; each of these cases involve some degree of
regulatory over-reaching that required Supreme Court correction. For example, see Solid Waste
Agency of Northern Cook County v. Army Corps of Engineers (striking down the corps
definition of navigable waters and thus the scope of its regulatory control over wetlands); Village
of Willowbrook v. Olech (striking down municipal unequal treatment and excessive easement
demands); Florida Rock Industries, Inc. v. United States (here the Supreme Court denied cert.
and let stand a Court of Claims holding that utilized a partial taking approach to regulations that
gave rise to a significant diminution in value); Whitney Benefits, Inc. v. United States  (here
again the Supreme Court denied cert. and let stand a Court of Claims conclusion that Surface
Mining Control Act provisions that reduced the value of mineral lease holdings to zero
constituted a taking). It should be noted that this case preceded Lucas, but the signal it sent was
ignored. This line of cases could be extended but the point is sufficiently made–directly and
indirectly the Supreme Court, and sometimes lower federal courts, have sought to delineate the
outer limits of permissible regulation; these pronouncements have been ignored or read narrowly
(“passively resisted”) by those imbued with what I have characterized as regulatory zeal.
If one looks at state court, legislative, and municipal actions the story is much the same. The
highest court of California true to its traditions recently gave us Ehrlich v. City of Culver City
(sustaining both mitigation fee and public art exactions as valid conditions of development
approval); these exactions were sustained after the U. S. Supreme Court had granted cert. in this
case and remanded the proceedings for reconsideration in light of Dolan. The heavy-
value of a lot of record from $80,000 to $3,000; they held there was no categorical taking and no
need to consider whether there was a taking under Penn Central analysis; finally, they refused to
reconsider or remand their holding (as their own rules would have allowed) in light of Palazzolo
was handed down only a few days after the
Builders Association of
but unlike the sustaining of such measures in almost every other state that has considered this
issue, there is no requirement that the cap be predicated on a comprehensive plan, no requirement
that it be a measured response to past inordinate growth that could no longer be assimilated, no
durational time limit to the cap–they can presumably be imposed indefinitely, and no requirement
any particular cap be related to infrastructure–water, sewer, school, road
towns, without guidance from the court, and without regard for the takings issues posed, may
simply pick a number, a rate of development that suits their individual fancy. And they have; the
to this seemingly untenable position, the
tendered by the State Planning Office–it was not adopted, but was committed to the Natural
Resources Committee of the Legislature for further study; to-date it has not reemerged in any
form. Maine is also a state that has recently considered the extensive use of 20 acre minimum lot
sizes, barring all development on 50 acre wetland sites, putting 4.5 million acres of forest land in
“forest use only” zones, imposing per lot impact fees totaling tens of thousands of dollars–
all without regard to the takings implications of these actions, and without any state law to
moderate or bar such courses of conduct.
Lest the reader conclude that I am picking on California and Maine, let me quickly note that
there are any number of other states that have imposed large minimum lot size requirements,
usually to prevent urban sprawl and/or to protect farm or woodland areas. Pennsylvania has
sustained a 50 acre minimum lot size, see Codorus Township v. Rodgers; Illinois has sustained
a 160 acre minimum lot size, see Wilson v. County of McHenry; and one of the major zoning
treatises states that lot sizes of from 10 to 640 acres have been sustained in various parts of the
country. And Maine is not alone in its zeal to protect (or over-protect) wetlands; a generation
of law students has grown up examining New Jersey’s experience in Loveladies Harbor, Inc. v.
K & K Construction Inc. v. Dept. of Natural Resources, and both before and after the Supreme
Court’s holding in Lucas, South Carolina has aggressively pursued it’s beachfront and wetlands
policies without much regard to takings issues, see Esposito v. South Carolina Coastal Council
and McQueen v. South Carolina Department of Health and Envir. Control, Office of Ocean and
Coastal Resource Mgmt.
A zealous approach to land use regulation, one that often ignores the rights of property
owners and recent Supreme Court takings cases, can be found in any number of other settings;
Those involved in the telecommunications industry know they face over-regulation. In spite of
federal legislation designed to preempt (or at least soften the effect of) local controls that make
the siting of communications towers, transmissions lines, etc. difficult, if not impossible, the
industry is constantly in court seeking access to communities that have imposed an array of
barriers to the siting of these essential facilities. The December, 2001 Annual Index issue of Land
Use Law & Zoning Digest notes 16 such cases for the year, arising in 9 different states in all
parts of the country. It is also true that the use of property by manufactured housing, the use of
use of property for waste disposal and/or recycling facilities almost always excites a level of
regulatory scrutiny that ignores current takings law and/or that in other ways is unfair to the
landowner. If the proposed use is not denied outright, it is almost invariably subject to more
stringent regulatory impositions than are other, more preferred, land use undertakings.
Finally, it should be noted that U.S.
Supreme Court cases such as
Abbott Laboratories v. Gardiner designed to deal with “finality”, “ripeness”, “exhaustion” and
related doctrines have become little more than traps for the unwary property owner who would
assert a takings claim. The problem has been widely recognized and widely commented upon, see
Desiderio, Who Will Clean Up the “Ripeness Mess”? A Call for Reform So Takings Plaintiffs
Can Enter the Federal Courthouse, 31 Urb. Law. 195 (1999). No less a figure than Professor
Daniel Mandelker (hardly an apologist for property rights absolutists) has drafted necessary
reform legislation.It is sorely needed.
One would think that governmental agencies (at whatever level) prepared to press the regula-
tory envelope, prepared to passively resist the spirit and substance of the last 25 years of Supreme
Court takings jurisprudence would realize they cannot (at least not for long) have it both ways.
They cannot on one hand promulgate regulations that arguably go “too far” and then, on the other
hand, block judicial resolution of the takings cases their actions have spawned. If these regulators
succeed to any significant extent in this duplicitous strategy, it will only embolden property rights
absolutists who are already pressing on many fronts for a far more draconian (property rights
oriented) interpretation of the 5th Amendment’s takings clause; it will encourage into existence
state and/or federal property rights legislation defining a taking in some one-dimensional arbitrary
manner, i.e., “a 50%, 30%, or 20% reduction in value brought about by a regulatory measure.”
Most of us do no want such legislation; it would take down a wide range of regulatory measures
that we regard as essential; it would impose huge costs on government and/or open the door to
less responsible developers and to those with insufficient concern for the environment. But
these seem to me to be the inevitable risks of continued resistance to the last 25 years of the
Supreme Court’s takings jurisprudence. In my view the risks are too great–we need to end the
“passive resistance” now or face consequences that we almost certainly will not like.
 Penn Central
Transportation Co. v.
 San Diego Gas
and Electric Co. v. City of
 Loretto v. Teleprompter Manhattan CATV Corp.,
relatively small property interests could be intruded upon (taken) without running afoul
of the 5th Amendment was again rejected in Hodel v. Irving, 481 U.S. 704 (1987)(strik-
ing down legislation that sought to bar the devise of small Sioux Indian land holdings;
the forced escheat of these small holdings to the tribe was held to be a taking).
Bituminous Coal Assoc. v. DeBenedictis, 480
 Nollan v.
 Lucas V South
Carolina Coastal Council, 505
 Dolan v. City
 Suitum v. Tahoe Regional Planning Agency, 520
 City of
 Palazzolo v.
 Tahoe-Sierra Preservation Council, Inc. et al. v. Tahoe Regional Planning Agency,
Sup. Ct. Doc. No. 00-1167, on appeal from the 9th Cir., see 216 F3d 764 (9th Cir 2000),
en banc rehearing denied, 228 F3d 998 (9th Cir 2000); but see the dissenting opinion in the latter disposition–it underscores the major thesis of this paper.
 See Pennsylvania Coal Co. v.
(Fed Cir. 1994).
 502 U.S. 952 (1991); the underlying Court of Claims case is reported in 926 F2d 1169
(Fed. Cir. 1991).
 This zeal is painfully apparent in many of the western states as federal agency and environmental interests square off against landowner interests with respect to a widening range of issues–the allocation of water rights, the protection of endangered species, the protection of Indian claims, the use of public domain lands. All of these
settings can, and frequently do, raise takings problems. A full elaboration of these
debates and the litigation that these issues have produced is beyond the scope of
this brief paper, but see
Beast?, 31 The Urban Lawyer 883 (1999).
 12 Cal.4th 854, 911 P2d 429 (
 See generally, Berger, Los Angeles Daily Journal, Takings Seen Through the California
Looking Glass, (Feb. 2, 1995)(this Journal on an almost bi-weekly basis has for over
ten years documented, and
critically commented upon, national and
issues). See also Daniel Curtin’s remarks prepared for the 10th annual RMLUI confer-
cases, all of which raise
takings questions–Associated Home Builders, 4
(1971)(no right to subdivide); Trent
Meredith, Inc. v. Oxnard, 114
(1981)(development is a privilege); Nash v. Santa Monica, 37 Cal.3d 97 (1984)(no right
to go out of business); Griffin Dev. Co. v. Oxnard, 39 Cal.3d 256 (1985)(no right to
convert an apartment to a
condominium); Terminal Plaza Corp. v. San Francisco, 177
Bldg. Partnership v. San
on developments of new office space is sustained). The Curtin paper, see pgs. 9-15,
also contains a useful
discussion of the (more than15 year) history of Ehrlich’s dealings with
 See Berger, Silence at the Court: The Curious Absence of
Regulatory Takings Cases
 773 A2d 439 (
 The record in the case indicates that the proposed development, a single-family house, was not in the wetland but was in the 250' wetland buffer area; moreover, engineering
submissions (acknowledged by the court) indicated that state and local plumbing code requirements for building on less than full-size lots would be met, but given the towns steadfast refusal to issue a building permit for development of the lot, these plumbing
code permits were not in hand at the time the taking challenge was brought; the court
characterized this omission as a failure to meet a prima facie requirement for develop-
ment approval. This element of the court’s reasoning is also at odd with Palazzolo and
cold have been, should have been, reconsidered in light of the latter holding.
 750 A2d 566 (
 See LD 1643, 120th Maine Legislature,
response to Home Builders v.
Town of Eliot, Maine Lawyers Review,
 See Delogu, The Law of Takings
Elsewhere And, One Suspects, in
Rev. 324 (2000) particularly notes 16 and 121.
 492 A2d 73 (
 416 NE2d 426 (
 See, Rohan, Zoning and Land Use Controls §56.02 (supp. 1999). See also Rose,
Farmland Preservation Policy and Programs, 24 Nat Res. J. 591 (1984); Coughlin &
Approaches, 33 Land Use Law & Zon. Dig. (June, 1981)(the leading states using large
lot zoning are
To The Farmland Crisis, 24 Real Property, Prob. & Trust J. 371 (1989); Comment,
Judicial Acquiescence in Large
Colum J. Env. L. 183 (1991).
 28 F3d 1171 (Fed. Cir. 1994).
 336 A2d 239 (N.H. 1975).
 575 NW2d 531 (
 Esposito is at 939 F2d 165 (4th Cir. 1991); McQueen is at 530 SE2d 628 (S.C. 2000).
 The Telecommunications Act of 1996, 47 U.S.C. §253.
904 (1st Cir. 1985);
 See Sameric Corp. of
Delaware, Inc. v. City of
in 6 different jurisdiction during that one year.
 Though obviously more than takings issues are involved
here, there has been a concerted
fourteen year effort by
desegregated low-income housing, see U.S. v. Yonkers Board of Education, 837 F2d
1181 (2d Cir. 1987); and
F3d 211 (2d Cir. 2001). The fact that a number of states have found it necessary to pass “Anti Snob Zoning Laws” is evidence that municipal governments in these
jurisdictions (without regard to current takings law) over-regulate low income and
affordable housing to the point of near, or actual, exclusion–a state remedy was needed,
see Mass. Gen. Laws c.40B, §§20-23, Conn. Gen. Stat. §8-30g (1999).
 See Rollins Env. Services v. Parish of St. James, 775 F2d 627 (5th Cir. 1985); Village of
Wilsonville v. SCA Services, Inc., 426 NE2d 824 (1981); Toms v. Bd. of Supervisors,
553 A2d 507 (
 Cf. Wilson, Nasty Motives: A Consideration of Recent Federal Damage Claims in Land Use Cases, 31 The Urban Lawyer 937 (1999); Delogu, NIMBY is a National Environ-
mental Problem, 35 So. Dak. L. Rev. 198 (1990).
 See H.R. 1534, a 1997 bill presented to the House
Judiciary Committee of the
Congress. One must believe that legislation along these lines will sooner or later be
adopted if procedural roadblocks to judicial resolution of takings cases continue. See
also, Whitman, The Ripeness Doctrine in the Land-Use Context: The Municipality’s
Ally and the Landowner’s Nemesis, 29 The Urb. Law. 13 (1997).
 See Erm, The “Wise Use” Movement: The Constitutionality of Local Action on
West of the
Ranch with Park Rangers: The
18 Stan. Env. L. J 211 (1999).
 See Cordes, Leapfrogging the Constitution: The Rise of State Takings Legislation, 24
Ecology L. Q. 187 (1997); Ellickson, Takings Legislation: A Comment, 20 Harv. J. L &
Pub. Policy 75 (1996); Rose, A Dozen Propositions on Private Property Rights, Public
Rights, and the New Takings
 See Delogu, supra note 27, particularly Section V. The Consequences of Failing To
Grasp The Full Range of Factors And Other Considerations in Regulatory Takings Cases, and f.n. 124.
 The recent passage in Oregon of Measure 7 (though stalled
moment) should suggest to any reasonable person that my assessment of the risks of
failing to embrace the Supreme
Court’s takings jurisprudence are accurate, see 61