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by Robert Thomas, InverseCondemnation, April 2, 2015
It's not often that we say a law review article is a "must-read." But this one definitely is, especially for all you regulatory takings mavens: David L. Callies, Through a Glass Clearly: Predicting the Future in Land Use Takings Law, 54 Washburn L. Rev. 43 (2014). A pdf of the article is posted here.
From the Introduction:
The subject of takings—the government taking of an interest in real property, either through eminent domain or through the exercise of the police power—has been the subject of continuous litigation for nearly a century. The past ten years have been particularly fruitful, as litigants struggle with the meaning and extent of the Fifth Amendment’s Public Use Clause and the extent to which the overzealous exercise of the police power can sufficiently deprive a landowner of rights in property so that the property has been “taken” by regulation, ever since Justice Holmes opined in Pennsylvania Coal Co. v. Mahon that a regulation that goes “too far” is a constitutionally-proscribed taking. Thus, in the area of physical taking, we have the expansion of public use—use by the public—to include public purpose (Kelo v. City of New London and Hawaii Housing Authority v. Midkiff), leaving very little room for landowner defense unless the physical taking can be proven “pretextual.” . . . This article explores some of the recent case law in these areas of takings, both physical and regulatory, and makes some predictions about the direction of takings law, bearing in mind Professor Lawrence Tribe’s admonition that those who attempt to thus use a crystal ball may run the risk of later having to eat ground glass.
Among Professor Callies' predictions: (1) exactions are going to receive more scrutiny from the courts; (2) development agreements will be used more in the place of exactions; (3) Kelo is ripe for revisiting; (4) government will try to expand the public trust, "custom" and "background principles" to avoid takings liability; and (5) Williamson County is ripe for reexamination.
Check this one out for sure.
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