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