Presentation Transcript
Regulatory Takings 2006: Regulatory Takings 2006 Andrew W. Schwartz
Shute, Mihaly & Weinberger, LLP
San Francisco
November 2006
Fifth Amendment to the United States Constitution: Fifth Amendment to the United States Constitution “nor shall private property be taken for public use, without just compensation.”
Pennsylvania Coal Co. v. Mahon(1922): Pennsylvania Coal Co. v. Mahon (1922) Regulatory taking
Economic impact tantamount to eminent domain
Government could hardly go on if all other regulation were compensable
Penn Central Transp. Co. v. City of New York(1978): Penn Central Transp. Co. v. City of New York (1978) Three-part test
Economic impact
Investment-backed expectations
Character of government action
Partial taking
Failure to substantially advance a legitimate state interest: Failure to substantially advance a legitimate state interest Agins v. City of Tiburon
Nollan v. Cal. Coastal Com. - Heightened Scrutiny: Nollan v. Cal. Coastal Com. - Heightened Scrutiny Dedication of land
Adjudicatory condition of approval
Essential nexus
Burden shifted to government
Nollan: Nollan Before After
Dolan v. City of Tigard: Dolan v. City of Tigard Dedication of land
Adjudicatory condition of approval
Rough proportionality
Ehrlich v. City of Culver City (1996) : Ehrlich v. City of Culver City (1996) Heightened scrutiny of ad hoc fees
No distinction between physical invasions and requirement to pay money
Leveraging police power
San Remo Hotel v. City and County of San Francisco: San Remo Hotel v. City and County of San Francisco
San Remo Hotel v. City and County of San Francisco (2002): San Remo Hotel v. City and County of San Francisco (2002)
Generally applicable regulations = deferential judicial review
Ordinance substantially advances -- preserves affordable housing
San Remo Hotel: San Remo Hotel
Reciprocity of advantage
Democratic decision-making
Lingle v. Chevron (2005): Lingle v. Chevron (2005) Substantially advance not a valid takings test
Wisdom and efficacy of regulation not a proper inquiry for courts
Lingle v. Chevron : Lingle v. Chevron
The substantially advances test “would require courts to substitute their predictive judgments for those of elected legislatures and expert agencies.”
Lingle v. Chevron : Lingle v. Chevron
"[T]he[] three inquiries reflected in Loretto, Lucas, and Penn Central share a common touchstone. Each aims to identify regulatory actions that are functionally equivalent to the classic taking in which government directly appropriates private property or ousts the owner from his domain. . . . Accordingly, each of these tests focuses directly upon the severity of the burden that government imposes upon private property rights."
Standard of Judicial Review of Exactions: Standard of Judicial Review of Exactions 1. Generally applicable fees
Ad hoc fees
Generally applicable dedications
Ad hoc dedications
Generally Applicable Fees: Generally Applicable Fees
San Remo Hotel -- rational basis
Ad Hoc Fees: Ad Hoc Fees
Is Ehrlich still controlling?
Ad Hoc Fees: Ad Hoc Fees
Federal law – Just Compensation Clause does not apply to generalized obligations to pay money.
Generally Applicable Dedications: Generally Applicable Dedications
Ehrlich, San Remo Hotel – heightened scrutiny does not apply to generally applicable regulation
Generally Applicable Dedications: Generally Applicable Dedications
Home Builders Ass’n v. City of Napa (2001) – heightened scrutiny does not apply to inclusionary housing that offers option of dedication
Ad Hoc Dedications: Ad Hoc Dedications
Lingle – Nollan/Dolan still good law
THE END: THE END