* Timothy J. Dowling is Chief Counsel of Community Rights Counsel, a nonprofit public interest law firm that represents the interests of municipalities in regulatory takings challenges to land-use controls and other community protections. Mr. Dowling prepared an amicus brief in Palazzolo v. Rhode Island on behalf of organizations representing the views of local officials and planners. For more information on Community Rights Counsel, visit www.communityrights.org.
1 2 John Locke, An Essay Concerning Human Understanding bk. IV, ch. XX,  5, at 299 (J.M. Dent & Sons Ltd. 1961) (1690).
2 30 B.C. Envtl. Aff. L. Rev. 1 (2002).
3 533 U.S. 606 (2001).
4 Burling, supra note 2, at 3.
5 Id. at 62.
6 Press Release, Pacific Legal Foundation, Pacific Legal Foundation Scores Landmark Victory for Private Property Rights Advocates in the U.S. Supreme Court (June 28, 2001), available at http://pacificlegal.org/press_releases/pr-palazzolo.htm.
7 Paul Mulshine, Supreme Court Decision Changes a Lot, Star Ledger (N.J.), July 3, 2001, at 21 (quoting Burling as saying that “smart growth is dumb takings” and “incompatible” with constitutional protections for property rights).
8 This churlish comment was made in a June 29, 2001 email communication by PLF attorney R.S. Radford on a public listserv moderated by the State and Local Government Section of the American Bar Association (copy on file with author).
9 Palazzolo v. Rhode Island, 533 U.S. 606, 646–48 (2001) (Ginsburg, Souter & Breyer, JJ., dissenting).
10 See infra notes 147–155 and accompanying text.
11 See infra notes 156–167 and accompanying text.
12 See infra notes 168–176 and accompanying text.
13 See infra notes 180–185 and accompanying text.
14 See infra notes 190–197 and accompanying text.
15 See Tahoe-Sierra Pres. Council, Inc. v. Tahoe Reg’l Planning Agency, 122 S. Ct. 1465, 1481 (2002) (“[E]ven though multiple factors are relevant in the analysis of regulatory takings claims, in such cases we must focus on ‘the parcel as a whole.’”); id. at 1483–84.
16 See infra notes 211–234 and accompanying text.
17 Burling, supra note 2, at 2.
18 Id.
19 See id. at 2, 37, 38 n.226. Burling’s description of Sax’s work is, to say the least, simplistic. Sax’s view of the Takings Clause is indisputably more accommodating of government protections in the public interest than Burling’s, but Sax’s writings do not espouse the absolutist philosophy that Burling attributes to him. For example, Sax recommends a plethora of government actions designed to reduce the impact of regulation on individual landowners, hardly the kind of recommendations one would expect from someone arguing that the use and ownership of property is subject to common consent. See Joseph L. Sax, Property Rights and the Economy of Nature: Understanding Lucas v. South Carolina Coastal Council, 45 Stan. L. Rev. 1433, 1450–51 (1993). Sax also makes clear that he would “have no quarrel” with a rule requiring heightened judicial scrutiny where regulation deprives a landowner of all economic value. Id. at 1455. Elsewhere, Sax has argued for the payment of compensation to landowners under the Takings Clause where the government imposes undue regulatory burdens when acting in an entrepreneurial capacity. See generally Joseph L. Sax, Takings and the Police Power, 74 Yale L.J. 36 (1964). A full rebuttal of Burling’s mischaracterization of Sax’s views is beyond the scope of this Article.
20 See Burling, supra note 2, at 3–5, 40, 51, 62.
21 Id. at 3.
22 Id. at 5.
23 Lucas v. S.C. Coastal Council, 505 U.S. 1003, 1028 n.15 (1992).
24 Id. at 1014 (citations omitted) (last alteration in original).
25 See, e.g., Fred Bosselman et al., The Taking Issue: An Analysis of the Constitutional Limits of Land Use Controls 105–23 (1973) (showing that the Takings Clause did not originally apply to land-use controls); William Michael Treanor, The Original Understanding of the Takings Clause and the Political Process, 95 Colum. L. Rev. 782, 782 (1995) (As originally understood, the Takings Clause “required compensation when the federal government physically took property, but not when government regulations limited the ways in which property could be used.”).
26 The Legal Tender Cases, 79 U.S. (12 Wall.) 457, 551 (1870); accord N. Transp. Co. v. City of Chicago, 99 U.S. 635, 642 (1879) (“[A]cts done in the proper exercise of governmental powers, and not directly encroaching upon private property, though their consequences may impair its use, are universally held not to be a taking within the meaning of the constitutional provision.”).
27 Benjamin Franklin, Queries and Remarks Respecting Alterations in the Constitution of Pennsylvania (1789), in 10 The Writings of Benjamin Franklin 59 (Albert H. Smyth ed., 1970).
28 Treanor, supra note 25, at 823; see also Douglas T. Kendall & Charles P. Lord, The Takings Project: A Critical Analysis and Assessment of the Progress So Far, 25 B.C. Envtl. Aff. L. REV. 509, 522 (1998) (citing authorities).
29 John Locke, The Second Treatise of Civil Government  27, at 134, in Two Treatises of Government (Thomas I. Cook ed., 1947) (1690).
30 See id.
31 Id.  25–27, at 133–34.
32 See generally Richard A. Epstein, Takings: Private Property and the Power of Eminent Domain (1985) (arguing for a reading of the Takings Clause and parallel clauses that “render[s] infirm or constitutionally suspect many of the heralded reforms and institutions of the twentieth century: zoning, rent control, workers’ compensation laws, transfer payments, progressive taxation”).
33 Id. at 10–11 (acknowledging that Locke “did consider it a breach of duty for one person to take everything from the common pool, to the necessary exclusion of others” and “correct[ing]” Locke’s account).
34 Id. at 11.
35 See Charles Fried, Protecting Property—Law and Politics, 13 Harv. J.L. & Pub. Pol’y 44, 48–49 (1990). Professor Fried continued: “Professor Epstein is moved to complete not only the text of the Constitution by reference to the Lockean spirit, but Locke’s text itself.” Id. For an excellent discussion of the scholarly criticisms of Professor Epstein’s reading of the Takings Clause, see Kendall & Lord, supra note 28, at 520–28.
36 See John F. Hart, Colonial Land Use Law and Its Significance for Modern Takings Doctrine, 109 Harv. L. Rev. 1252, 1257–59 (1996).
37 Id. at 1273.
38 Id. at 1274.
39 Id. at 1281.
40 John F. Hart, Land Use Law in the Early Republic and the Original Meaning of the Takings Clause, 94 Nw. U. L. Rev. 1099, 1100 (2000) (asserting that land use was extensively regulated “between the time America won its independence and the adoption of the property-protecting measures of the Constitution and the Bill of Rights”).
41 Burling, supra note 2, at 64.
42 Burling, supra note 2, at 4–5, 18–19.
43 Pa. Coal Co. v. Mahon, 260 U.S. 393, 414 (1922). One scholar has made a compelling case that Mahon is not a takings case at all, but a due process case. See generally Robert Brauneis, “The Foundation of Our ‘Regulatory Takings’ Jurisprudence”: The Myth and Meaning of Justice Holmes’s Opinion in Pennsylvania Coal Co. v. Mahon, 106 Yale L.J. 613 (1996). It is indisputable that Mahon is widely viewed as having given birth to the doctrine of regulatory takings, and I do not challenge that view here.
44 Williamson County Reg’l Planning Comm’n v. Hamilton Bank of Johnson City, 473 U.S. 172, 199(1985).
45 See United States v. Riverside Bayview Homes, Inc., 474 U.S. 121, 126 (1985) (acknowledging that under “extreme circumstances,” “land use regulation may . . . amount to a ‘taking’”).
46 See Lucas v. S.C. Coastal Council, 505 U.S. 1003, 1017 (1992) (regulation that denies a landowner all economically viable use may be a per se taking because such land-use controls are “from the landowner’s point of view, the equivalent of a physical appropriation”); Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 428 (1982) (citing Sanguinetti v. United States, 264 U.S. 146, 149 (1924), stating that physical occupations are per se takings where they “constitute an actual, permanent invasion of the land, amounting to an appropriation of, and not merely an injury to, the property”) (citation omitted).
47 Loretto, 458 U.S. at 441.
48 Lucas, 505 U.S. at 1017, 1018 (stating that a per se rule for regulation that denies all economically viable use applies only in “relatively rare” situations).
49 122 S. Ct. 1465 (2002).
50 Id. at 1478–79.
51 Id. at 1478 (“The text of the Fifth Amendment itself provides a basis for drawing a distinction between physical takings and regulatory takings.”).
52 Id. at 1478 n.17.
53 Id. at 1488.
54 See Burling, supra note 2, at 18–19.
55 Compare Kendall & Lord, supra note 28, at 533–38 (describing the establishment and politicization of these two courts), with James L. Huffman, Judge Plager’s “Sea Change” in Regulatory Takings Law, 6 Fordham Envtl. L.J. 597, 599 (1995) (“[B]ecause the Federal Circuit was a new court in 1982, most of its members were appointed during the Reagan and Bush Administrations. Thus, there is somewhat more philosophical agreement among its members than there is on other Courts of Appeals.”), and W. John Moore, Just Compensation, Nat’l Jurist, June 13, 1992, at 1406 (quoting the libertarian Institute for Justice’s Clint Bolick as saying, “The Claims Court is a place where the Reagan and Bush Administrations have been able to place top-notch conservative judges without getting much attention. That is a result of liberals being somewhat asleep at the switch and the Administration’s being extremely sophisticated in their selection and placement of judges.”).
56 See 28 U.S.C.  1346, 1491 (2001).
57 See, e.g., Wash. Legal Found. v. Legal Found. of Wash., 271 F.3d 835, 841 (9th Cir. 2001) (en banc) (rejecting takings challenge to Washington State’s “Interest on Lawyers’ Trust Account” Program), cert. granted, 122 S. Ct. 2355 (June 10, 2002) (No. 01-1325); Dist. Intown Props. Ltd. P’ship v. District of Columbia, 198 F.3d 874, 876–77 (D.C. Cir. 1999) (rejecting takings challenge to historic preservation protections); Stern v. Halligan, 158 F.3d 729, 734 n.7 (3d Cir. 1998) (rejecting takings challenge because challenged regulation did not result in “the total destruction of value”); Front Royal & Warren County Indus. Park Corp. v. Town of Front Royal, 135 F.3d 275, 286 n.5 (4th Cir. 1998) (rejecting takings challenge where regulation did not prevent recreational uses of the land such as camping or picnicking); San Remo Hotel L.P. v. City of San Francisco, 41 P.3d 87, 89 (Cal. 2002) (rejecting takings challenge to affordable-housing protections); Animas Valley Sand & Gravel, Inc. v. Bd. of County Comm’rs of La Plata, 38 P.3d 59, 65-66 (Colo. 2001) (en banc) (noting that per se takings liability may attach only where land is left valueless or with only de minimis value and non-per se liability only where regulation leaves a landowner with “value that is slightly greater than de minimis”); State, Dep’t of Envtl. Prot. v. Burgess, 772 So. 2d 540, 543 (Fla. Dist. Ct. App. 2000) (rejecting takings challenge to development restrictions because land retained recreational uses), review denied, 791 So. 2d 1095 (Fla. 2001), cert. denied, 122 S. Ct. 615 (2001); Wyer v. Bd. of Envtl. Prot., 747 A.2d 192, 193 (Me. 2000) (rejecting takings challenge to a variance denial under a sand dune protection law due to remaining recreational uses); Karam v. State, 723 A.2d 943 (N.J. 1999) (adopting the lower court’s rejection of a takings challenge under the public trust doctrine), aff’g 705 A.2d 1221 (N.J. Super. Ct. App. Div. 1998); R.W. Docks & Slips v. State, 628 N.W.2d 781, 787–88 (Wis. 2001) (rejecting takings challenge to denial of permission to convert boat slips to private, condominium-style ownership, using the public trust doctrine), cert. denied sub nom. R.W. Docks & Slips v. Wisconsin, 122 S. Ct. 617 (2001); Zealy v. City of Waukesha, 548 N.W.2d 528, 529 (Wis. 1996) (rejecting takings challenge to wetland restrictions).
58 See Robert Meltz, Congressional Research Serv., Court Rulings during 1997 on Constitutional Takings Claims Against the United States 2 (1998). A review of last year’s rulings from the Federal Circuit and the U.S. Court of Federal Claims shows that they continue to hand property owners many noteworthy defeats in takings cases. E.g., Bay View, Inc. v. United States, 278 F.3d 1259 (Fed. Cir. 2001) (rejecting takings challenge to amendments to the Alaska Native Claims Settlement Act), reh’g denied and reh’g en banc denied, 285 F.3d 1035 (Fed. Cir. 2002), petition for cert. filed, 71 U.S.L.W. 3021 (U.S. June 20, 2002); Commonwealth Edison Co. v. United States, 271 F.3d 1327 (Fed. Cir. 2001) (finding that legislation requiring the payment of money cannot give rise to a taking), cert. denied, 122 S. Ct. 2293 (2002); Wyatt v. United States, 271 F.3d 1090 (Fed. Cir. 2001) (rejecting takings challenge to mining regulations and associated delays), cert. denied, 122 S. Ct. 1960 (2002); Rith Energy, Inc. v. United States, 270 F.3d 1347 (Fed. Cir. 2001) (on petition for rehearing) (rejecting takings challenge to mining restrictions), cert. denied, 122 S. Ct. 2260 (2002); Maritrans, Inc. v. United States, 51 Fed. Cl. 277 (2001) (rejecting takings challenge to restrictions on oil tankers); Walcek v. United States, 49 Fed. Cl. 248 (2001) (rejecting takings challenge to wetland protections); Banks v. United States, 49 Fed. Cl. 806 (2001) (rejecting takings challenge to federal actions that allegedly eroded claimants’ shoreline property); Paradissiotis v. United States, 49 Fed. Cl. 16 (2001) (rejecting takings challenge where federal foreign policy sanctions on Libya prohibited the exercise of claimant’s stock options).
59 See John Delaney & Duane Desiderio, Who Will Clean Up the “Ripeness Mess”? A Call for Reform So Takings Plaintiffs Can Enter the Federal Courthouse, 31 Urb. Law. 195, 196 (1999) (arguing that courts dismiss the vast majority of takings claims on procedural grounds).
60 447 U.S. 255 (1980).
61 See E. Enters. v. Apfel, 524 U.S. 498, 545 (1998) (Kennedy, J., concurring in the judgment, dissenting in part) (observing that the Agins means-end test “is in uneasy tension with our basic understanding of the Takings Clause” and concluding that “the more appropriate constitutional analysis [for a means-end inquiry] arises under general due process principles rather than under the Takings Clause”); id. at 554 (Breyer, Stevens, Souter & Ginsburg, JJ., dissenting) (concluding that “the plurality views [the means-end inquiry in] this case through the wrong legal lens” because “at the heart of the [Takings] Clause lies a concern, not with preventing arbitrary or unfair government action, but with providing compensation for legitimate government action that takes ‘private property’ to serve the ‘public’ good”).
62 See City of Monterey v. Del Monte Dunes at Monterey, Ltd., 526 U.S. 687, 704 (1999) (acknowledging that the Court has never given “a thorough explanation of the nature or applicability” of the Agins means-end test, but declining to revisit the test because the city failed to challenge the standard in the lower courts); id. at 732 n.2 (Scalia, J., concurring in part, concurring in the judgment) (“express[ing] no view” as to the propriety of the Agins means-end test as a standard of takings liability); id. at 753 n.12 (Souter, O’Connor, Ginsburg & Breyer, JJ., concurring in part, dissenting in part) (offering no opinion as to “whether Agins was correct in assuming that this prong of liability was properly cognizable as flowing from the Just Compensation Clause of the Fifth Amendment, as distinct from the Due Process Clauses of the Fifth and Fourteenth Amendments”).
63 505 U.S. 1003 (1992).
64 Burling, supra note 2, at 13 (citing Lucas v. S.C. Coastal Council, 505 U.S. 1003, 1029–30 (1992)).
65 Lucas, 505 U.S. at 1027.
66 Id. at 1029.
67 E.g., Eric Grant, Taking Scalia Seriously: A Conservative View of the Lucas “Background Principles” Exception, 1 (paper delivered at the Oct. 28–29, 1999 Georgetown University Law Center Conference on Litigating Regulatory Takings Claims) (on file with author) (“[B]ackground principles are a static category of essentially nineteenth-century rules that prohibit landowners from imposing direct harm on the real and personal property of others, usually their neighbors.”); see Burling, supra note 2, at 13–14.
68 See generally Joseph L. Sax, The Public Trust Doctrine in Natural Resource Law: Effective Judicial Intervention, 68 Mich. L. Rev. 471 (1970).
69 See Lucas, 505 U.S. at 1029; see also, e.g., Rith Energy, Inc. v. United States, 247 F.3d 1355 (Fed. Cir. 2001), reh’g denied and reh’g en banc denied, 270 F.3d 1347 (Fed. Cir. 2001), cert. denied, 122 S. Ct. 2660 (2002); Keshbro, Inc. v. City of Miami, 801 So. 2d 864 (Fla. 2001).
70 See Lucas, 505 U.S. at 1029, 1030, 1031 (referring to the “background principles of the State’s law of property and nuisance”).
71 Id.
72 Id. at 1028–29.
73 408 U.S. 564 (1972).
74 Id. at 577–78.
75 See, e.g., Douglas T. Kendall, Timothy J. Dowling & Andrew W. Schwartz, Takings Litigation Handbook 130–43 (2002). See generally Glenn Sugameli, Lucas v. South Carolina Coastal Council: The Categorical and Other “Exceptions” to Liability for Fifth Amendment Takings of Private Property Far Outweigh the “Rule, 29 Envtl. L. 939 (1999).
76 Even the Justices most inclined to rule in favor of takings claimants acknowledge that statutes and other positive laws may constitute background principles of law that preclude takings claims. See Tahoe-Sierra, 122 S. Ct. at 149495 (Rehnquist, C.J., Scalia & Thomas, JJ., dissenting) (noting that zoning regulations and state statutes governing moratoria may constitute background principles under Lucas).
77 Burling, supra note 2, at 6.
78 See id.
79 Palazzolo v. State ex rel. Tavares, 746 A.2d 707, 714 (R.I. 2000), aff’d in part, rev’d in part, remanded sub nom. Palazzolo v. Rhode Island, 533 U.S. 606 (2001).
80 The Rhode Island Attorney General’s Office provided this photograph to the author.
81 See Testimony of Grover Fugate, Coastal Resources Management Council Director, Trial Transcript at 187, Palazzolo v. Coastal Res. Mgmt. Council, No. C.A. 88-0297 (R.I. Super. Ct. June 18, 1997) (noting that development on the south side of Winnapaug Pond is confined to the upland portion) [hereinafter Trail Transcript].
82 See State’s Memorandum Regarding Remand at 10–11, Palazzolo v. State, (No. 98-333-A) (citing record evidence) [hereinafter State’s Memorandum].
83 Lucas v. S.C. Coastal Council. 505 U.S. 1003, 1008 (1992).
84 Burling, supra note 2, at 8.
85 See Palazzolo v. State ex rel. Tavares, 746 A.2d 707, 709-11 (R.I. 2000), aff’d in part, rev’d in part, remanded sub nom. Palazzolo v. Rhode Island, 533 U.S. 606 (2001).
86 Id.
87 Opening Statement of John Webster, Counsel for Plaintiff, Trial Transcript, supra note 81, at 12.
88 Joint Lodging tab 7, at 14, 17, 24, Palazzolo v. Rhode Island, 533 U.S. 606 (2001) (No. 99-2047).
89 See Tavares, 746 A.2d at 714; Palazzolo v. Coastal Res. Mgmt. Council, C.A. No. 88-0297, 1997 WL 1526546, at *1 (R.I. Super. Ct. Oct. 24, 1997), aff’d on other grounds sub nom. Palazzolo v. State ex rel. Tavares, 746 A.2d 707 (R.I. 2000), aff’d in part, rev’d in part, remanded sub nom. Palazzolo v. Rhode Island, 533 U.S. 606 (2001).
90 Petitioner’s Reply Brief, 2001 WL 57593, at *5–6, Palazzolo v. Rhode Island, 533 U.S. 606 (2001) (No. 99-2047).
91 Palazzolo v. Rhode Island, 533 U.S. 606, 615 (2001) (noting that the so-called beach club proposal was for a parking lot, port-a-johns, trash cans, picnic tables, and concrete barbecue pits).
92 Id. at 647 n.1 (quoting trial transcript testimony).
93 See Tavares, 746 A.2d at 714.
94 Palazzolo, 533 U.S. at 624.
95 See infra notes 150–151 and accompanying text.
96 Palazzolo v. Coastal Res. Mgmt. Council, C.A. No. 88-0297, 1997 WL 1526546, at *5 (R.I. Super. Ct. Oct. 24, 1997), aff’d on other grounds sub nom. Palazzolo v. State ex rel. Tavares, 746 A.2d 707 (R.I. 2000), aff’d in part, rev’d in part, remanded sub nom. Palazzolo v. Rhode Island, 533 U.S. 606 (2001).
97 Id.
98 Id.
99 Id.
100 Tavares, 746 A.2d at 713–17.
101 See State’s Memorandum, supra note 82, at 7–15 & Addendum I. The Rhode Island Supreme Court recently remanded the case to the trial court for further findings on several issues, including the nuisance issue. See Palazzolo v. State ex rel. Tavares, 785 A.2d 561, 561 (R.I. 2001) (order remanding the case to the superior court and directing counsel to submit further memoranda).
102 Palazzolo v. State ex rel. Tavares, 746 A.2d 707, 714 (R.I. 2000), aff’d in part, rev’d in part, remanded sub nom. Palazzolo v. Rhode Island, 533 U.S. 606 (2001).
103 Id.
104 473 U.S. 172 (1985).
105 Id. at 186; accord Agins v. City of Tiburon, 447 U.S. 255, 260 (1980) (ruling that a takings claim is unripe where the claimant fails to submit a development application).
106 See Hodel v. Va. Surface Mining & Reclamation Ass’n, 452 U.S. 264, 297 (1981) (holding that a takings claim was unripe where the owner failed to seek a variance or waiver).
107 477 U.S. 340 (1986).
108 Id. at 353 n.9 (finding that a rejection of application to build 159 homes on claimant’s land did not ripen takings claim).
109 Williamson County, 473 U.S. at 187; accord MacDonald, 477 U.S. at 352 (holding that a takings claim is unripe where the government’s action “leave[s] open the possibility that some development will be permitted.”).
110 MacDonald, 477 U.S. at 351; accord Suitum v. Tahoe Reg’l Planning Agency, 520 U.S. 725, 738 (1997) (holding that a takings claim is unripe unless the agency has no further discretion to allow additional development).
111 Pa. Coal Co. v. Mahon, 260 U.S. 393, 415 (1922).
112 Suitum, 520 U.S. at 734 (citing MacDonald and Mahon).
113 Id. at 738 (noting local agencies’ “high degree of discretion,” and observing that they are “singularly flexible institutions”) (quoting MacDonald, 477 U.S. at 350).
114 Williamson County, 473 U.S. at 191 (observing that a takings claim “simply cannot be evaluated until the administrative agency has arrived at a final, definitive position regarding how it will apply the regulations at issue to the particular land in question”).
115 MacDonald, 477 U.S. at 350 n.7 (noting that a landowner need not resort to unfair procedures to obtain a final decision); Landmark Land Co. of Okla. v. Buchanan, 874 F.2d 717, 721 (10th Cir. 1989) (discussing the futility exception to the ripeness requirement); Shelter Creek Dev. Corp. v. City of Oxnard, 838 F.2d 375, 379 (9th Cir. 1988) (ruling that a landowner need not pursue additional local processes where doing so would be an “idle and futile act”) (quoting Martino v. Santa Clara Valley Water Dist., 703 F.2d 1141, 1146 n.2 (9th Cir. 1983).
116 See Glenn P. Sugameli, “Takings” Bills Threaten People, Property, Zoning, and the Environment, 31 Urb. Law. 177, 177–84 (1999) (describing NAHB’s role in drafting and lobbying for the bill, including $173,000 in NAHB campaign contributions made the day after the Judiciary Subcommittee held the first hearing on the bill in the House).
117 H.R. 1534, 105th Cong.  2 (1997). In addition to allowing developers to bypass local land-use procedures, the bill purported to authorize them to file immediately in federal court, without seeking compensation in state court first, as required by Williamson County. See id.; cf. Williamson County, 473 U.S. at 195 (“[A] property owner has not suffered a violation of the Just Compensation Clause until the owner has unsuccessfully attempted to obtain just compensation through the procedures provided by the State . . . .”). Palazzolo did not implicate this aspect of Williamson County or the ripeness debate because Palazzolo filed his claim in state court.
118 Brody Mullins, Property Takings Bill Set For House Fight, CongressDailyAM, Mar. 14, 2000, available at http://nationaljournal.com/pubs/congressdaily.
119 S. Rep. No. 105-242, at 32, 43–44 (1998).
120 H.R. 1534  2; S. Rep. No. 105-242, at 38.
121 H.R. 1534  2; S. Rep. No. 105-242, at 38.
122 See S. Rep. No. 105-242, at 44, 56–57.
123 H.R. Rep. No. 105-323, at 23–25 (1997) (dissenting views) (describing the opposition by forty Attorneys General, the National League of Cities, the U.S. Conference of Mayors, the National Conference of State Legislatures, the International Municipal Lawyers Association, and other state and local groups).
124 S. Rep. No. 105-242, at 55–57 (minority views) (listing the many organizations that opposed the bill). The Senate Report on the bill notes that while the top four residential developers in the nation have revenues exceeding $1 billion per year, ninety percent of cities and towns in the country have less than 10,000 people and cannot afford even one full-time municipal attorney. Id. at 44–45. These cities and towns can ill-afford the threat of lawsuits by large corporate developers. Id.
125 Senator Patrick Leahy (D-Vt.)described the bill as one of the most “arrogantly special interest” bills he had ever seen and declared that it “wouldn’t pass the smell test in any town in America,” Sugameli, supra note 116, at 180 (quoting Nathan Arbitman, Takings Proponents at It Again—Developer Bill Passes House; Action Moves to Senate, Enviroaction (Nat’l Wildlife Fed’n), Feb. 1998, at 11, 13.
126 Brief of the National Association of Home Builders as Amicus Curiae in Support of the Petitioner. 2000 WL 1742027, at *14–28, Palazzolo v. Rhode Island, 533 U.S. 606 (2001) (No. 99-2047).
127 Palazzolo v. Rhode Island, 533 U.S. 606, 618–26 (2001).
128 Id. at 618 (quoting MacDonald, Sommer & Frates v. County of Yolo, 477 U.S. 340, 351 (1986)).
129 Id. at 620.
130 Id.
131 Id. at 620–21.
132 Id. at 618–26.
133 Palazzolo, 533 U.S. at 618–26.
134 Id. at 622 (explaining that the State’s argument in this regard “comes too late in the day”).
135 Id. at 622.
136 Id. at 623.
137 Id. at 652–54 (Ginsburg, Souter, Breyer, JJ., dissenting).
138 Id. at 648--49 (Ginsburg, Souter, Breyer, JJ., dissenting).
139 See Palazzolo, 533 U.S. at 651–52 (Ginsburg, Souter, Breyer, JJ., dissenting).
140 See id. at 648 (Ginsburg, Souter, Breyer, JJ., dissenting).
141 Id. at 653 (Ginsburg, Souter, Breyer, JJ., dissenting).
142 Id. at 654 (Ginsburg, Souter, Breyer, JJ., dissenting).
143 Id. at 608.
144 Id.
145 See Palazzolo, 533 U.S. at 625.
146 See id.
147 Burling, supra note 2, at 23.
148 See supra notes 117–127 and accompanying text.
149 Burling, supra note 2, at 23 (quoting Palazzolo, 533 U.S. at 606) (emphasis removed).
150 See Palazzolo, 533 U.S. at 620–21.
151 Burling, supra note 2, at 23 (quoting Palazzolo, 533 U.S. at 625).
152 Id.
153 See Palazzolo, 533 U.S. at 607 (emphasizing the “unequivocal nature of the wetland regulations”); id. at 625 (emphasizing that “the limitations the wetland regulations imposed were clear”).
154 See id. at 623–26.
155 In describing finality ripeness, Burling refers to what he calls “the one meaningful application standard,” a term that suggests that a takings claim is ripe upon the disposition of a single application. Burling, supra note 2, at 25–26. There is no such standard. Although courts have held that a takings claim is unripe until the landowner files at least one meaningful application, no court has held that a takings claim is ripe once a single application is denied. E.g., Sinclair Oil Corp. v. County of Santa Barbara, 96 F.3d 401, 405 (9th Cir. 1996) (noting that in order to satisfy Williamson County Regional Planning Commission v. Hamilton Bank of Johnson City, 473 U.S. 172 (1985), a takings claimant “must submit to local decision-makers at least one meaningful application for a development project and a variance”); Southview Assocs., Ltd. v. Bongartz, 980 F.2d 84, 9798 (2d Cir. 1992) (claim unripe where application denial did not preclude approval of modified application); Gilbert v. City of Cambridge, 932 F.2d 51, 61 (1st Cir. 1991) (“[T]he filing of one meaningful application will ordinarily be a necessary, although not alone sufficient, precondition for invoking the futility exception [to the finality ripeness requirement].”); see also Unity Ventures v. Lake County, 841 F.2d 770, 77576 (7th Cir. 1988).
156 See supra note 8 and accompanying text.
157 Palazzolo, 533 U.S. at 627–28.
158 Id. at 628.
159 Id.
160 Id. at 627.
161 Id.
162 Id.
163 Palazzolo, 533 U.S. at 627.
164 Id. at 628.
165 Id. at 625.
166 Id. at 627 (observing that under the proposed blanket rule, “the right to compensation may not be asserted by an heir or successor”); id. at 635 (O’Connor, J., concurring) (“We also have never held that a takings claim is defeated simply on account of the lack of a personal financial investment by a postenactment acquirer of property, such as a donee, heir, or devisee.”); id. at 654–55 (Breyer, J., dissenting) (“[T]he simple fact that a piece of property has changed hands (for example, by inheritance) does not always and automatically bar a takings claim.”).
167 E.g., Creppel v. United States, 41 F.3d 627, 632 (Fed. Cir. 1994) (takings recoveries should be limited to landowners who bought their property in reliance on a regulatory scheme that excluded the challenged regulation); Leonard v. Town of Brimfield, 666 N.E.2d 1300, 1303 (Mass. 1996) (rejecting a takings challenge to flood plain development restrictions in place when the claimant bought the land due to her constructive notice of the controls). The Federal Circuit in Loveladies Harbor, Inc. v. United States stated:
In legal terms, the owner who bought with knowledge of the restraint could be said to have no reliance interest, or to have assumed the risk of any economic loss. In economic terms, it could be said that the market had already discounted for the restraint, so that a purchaser could not show a loss in his investment attributable to it.
28 F.3d 1171, 1177 (Fed. Cir. 1994).
168 438 U.S. 104, 124 (1978) (ruling that takings claims should be considered by analyzing the economic impact on the landowner, the extent to which the regulation interferes with distinct investment-backed expectations, and the character of the government action).
169 See Lucas v. S.C. Coastal Council, 505 U.S. 1003, 1017–18 (1992) (stating that the per se rule in regulatory takings cases applies only in “extraordinary” circumstances).
170 Palazzolo, 533 U.S. at 633 (O’Connor, J., concurring).
171 Id. (O’Connor, J., concurring).
172 Id. at 635 (O’Connor, J., concurring).
173 Id. at 643 n.6, 644–45 (Stevens, J., concurring in part, dissenting in part) (agreeing that notice of a regulation at the time of purchase is relevant to the takings inquiry); id. at 654 n.3 (Ginsburg, Souter & Breyer, JJ., dissenting) (citing separate opinions of Justices O’Connor, Stevens, and Breyer, Justice Ginsburg states that “at a minimum, . . . transfer of title can impair a takings claim”); id. at 654–55 (Breyer, J., dissenting) (agreeing with Justice O’Connor that the timing of a claimant’s acquisition remains relevant to takings analysis).
174 See John D. Echeverria, A Preliminary Assessment of Palazzolo v. Rhode Island, 31 Envtl. L. Rep. 11,112, 11,118–19 (2001).
175 Palazzolo, 533 U.S. at 636–37 (Scalia, J., concurring).
176 See id. at 633 (O’Connor, J., concurring); id. at 643 n.6, 644–45 (Stevens, J., concurring in part, dissenting in part); id. 654 n.3 (Ginsburg, Souter & Breyer, JJ., dissenting); id. at 654–55 (Breyer, J., dissenting).
177 483 U.S. 825 (1987).
178 Palazzolo, 533 U.S. at 629.
179 Nollan, 483 U.S. at 833 n.2 (“[T]he prior owners must be understood to have transferred their full property rights in conveying the lot.”).
180 It would be unfair to Burling to assert that he completely ignores this passage. He quotes three sentences from the relevant paragraph, but through the use of ellipses he strategically omits the language discussed above. See Burling, supra note 2, at 31 (quoting Palazzolo, 533 U.S. at 629–30).
181 Palazzolo, 533 U.S. at 629–30.
182 Id.
183 Id.
184 See id.
185 See id.
186 See Burling, supra note 2, at 27–28.
187 See New England Naturist Ass’n v. Larsen, 692 F. Supp. 75, 78 (D.R.I. 1988) (“The lands between [the high-water] line and the low-water line constitute the intertidal zone and are owned by the State of Rhode Island. Under the Rhode Island Constitution, the intertidal zone is held, in trust, for the use of the people”); Town of Warren v. Thornton-Whitehouse, 740 A.2d 1255, 1259 (R.I. 1999) (“the state holds title to all land below the high water mark in a proprietary capacity for the benefit of the public”) (quoting Greater Providence Chamber of Commerce v. State, 567 A.2d 1038, 1041 (R.I. 1995)); Bailey v. Burges, 11 R.I. 330, 331 (1876) (“In this state, at common law, fee of the soil in tide waters below high-water mark is in the state.”).
188 E.g., Thompson v. Sullivan, 148 A.2d 130, 136 (R.I. 1959) (stating that coastal filling by a yacht club was “contingent upon the yacht club receiving permission from the state”); Bailey, 11 R.I. at 331 (noting that coastal filling is done “by permission or acquiescence of the state”). Even the case Burling cites to support an alleged long-standing tradition of coastal filling by private land owners recognizes that such filling is conducted pursuant to “a license to him to fill out” from the State. Providence Steam-Engine Co. v. Providence & Stonington S.S. Co., 12 R.I. 348, 355 (1879); see Burling, supra note 2, at 27–-28 (citing Providence Steam-Engine, 12 R.I. at 363–64).
189 See State’s Memorandum, supra note 82, at 16–25. The Rhode Island Supreme Court’s recent remand order directs the trial court to make further findings on the public trust issue. See Palazzolo v. State ex rel. Tavares, 785 A.2d 561, 561 (R.I. 2001) (order remanding the case to the superior court and directing counsel to submit further memoranda).
190 Lucas v. S.C. Coastal Council, 505 U.S. 1003, 1015–19 (1992).
191 Palazzolo v. Rhode Island, 533 U.S. 606, 608 (2001).
192 Palazzolo v. Coastal Res. Mgmt. Council, C.A. No. 88-0297, 1997 WL 1526546, at *1 (R.I. Super. Ct. Oct. 24, 1997) (describing Palazzolo’s initial $13,000 investment in the property), aff’d on other grounds sub nom. Palazzolo v. State ex. rel. Tavares, 746 A.2d 707 (R.I. 2000), aff’d in part, rev’d in part, remanded sub nom Palazzolo v. Rhode Island, 533 U.S. 606 (2001).
193 Palazzolo, 533 U.S. at 616 (observing that Palazzolo sought $3,150,000 in compensation, “a figure derived from an appraiser’s estimate as to the value of a 74-lot residential subdivision”).
194 Id. at 631 (noting that Palazzolo argued that a per se claim is not defeated “‘by the simple expedient of leaving a landowner a few crumbs of value’”) (quoting Palazzolo’s brief).
195 Petitioner’s Brief on the Merits, 2000 WL 1742033, at *37–40, Palazzolo v. Rhode Island, 533 U.S. 606 (2001) (No. 99-2047).
196 Palazzolo, 533 U.S. at 631.
197 Id. (quoting Lucas v. S.C. Coastal Council, 505 U.S. 1003, 1019 (1992)).
198 Id.
199 Lucas, 505 U.S. at 1019.
200 Id. at 1019–20 n.8.
201 See id.
202 Id.
203 Id. at 1019 n.8 (citing Justice Stevens’ dissent).
204 See id.
205 Lucas, 505 U.S. at 1027–28 (emphasis added) (discussing situations where “the property’s only economically productive use is sale or manufacture for sale”).
206 Indeed, the critical role of value to the per se rule permeates the entire Lucas opinion. The first paragraph recites the trial court’s finding that the challenged development ban rendered Mr. Lucas’s land “valueless,” and it then asks whether the development ban effects a taking due to its “dramatic effect on the economic value of Lucas’s lots.” Id. at 1007. The Court describes Lucas’s complaint as rooted in the government’s “complete extinguishment of his property’s value.” Id. at 1009. It characterizes the state supreme court’s ruling as finding no taking “regardless of the regulation’s effect on the property’s value.” Id. at 1010. In delineating its per se rule, the Lucas opinion once again emphasizes the key factual predicate that underlies the per se rule: the trial court’s finding that the lots had been “rendered valueless” by the regulation at issue. Id. at 1020. The pivotal nature of this finding is evidenced by the majority’s specific justification for accepting it, see id. at 1020 n.9, as well as the skepticism regarding its accuracy expressed by each of the four separate opinions in the case. Id. at 1034 (Kennedy, J., concurring) (“I share the reservations of some of my colleagues about a finding that a beachfront lot loses all value because of a development restriction.”); id. at 1043–44 (Blackmun, J., dissenting) (“The Court creates its new takings jurisprudence based on the trial court’s finding that the property had lost all economic value. This finding is almost certainly erroneous.”); id. at 1065 n.3 (Stevens, J., dissenting) (the “land is far from ‘valueless’”); id. at 1076 (Souter, J., separate statement) (noting the trial court’s finding that the development ban rendered the land valueless is “highly questionable”).
207 Palazzolo v. Rhode Island, 533 U.S. 606, 632 (2001); see also id. at 652 (Ginsburg, Souter & Breyer, JJ., dissenting) (stating that “a floor value was all the State needed to defeat Palazzolo’s simple Lucas claim”).
208 See Rith Energy, Inc. v. United States, 270 F.3d 1347, 1349 (Fed. Cir. 2001), cert. denied, 122 S. Ct. 2260 (2002).
209 Tahoe-Sierra Pres. Council, Inc. v. Tahoe Reg’l Planning Agency, 122 S. Ct. 1465, 1483 (2002) (quoting Lucas, 505 U.S. at 1012).
210 See Animas Valley Sand & Gravel v. Bd. of County Comm’rs, 38 P.3d 59, 65–67 (Colo. 2001) (en banc) (noting that Palazzolo shows that the Lucas per se rule applies only where land is left valueless or with only de minimis value, and that a non-per se taking may occur only where regulation leaves a landowner with “a value slightly greater than de minimis”). In another instance of exaggeration, Burling asserts that “some commentators continue to suggest that Lucas makes it harder for a court to find a taking,” citing a publication that I co-authored as support. Burling, supra note 2, at 60 & n.382 (citing Kendall, Dowling & Schwartz, supra note 75, at 194–204). The cited publication says no such thing. It simply demonstrates that the per se rule under Lucas is driven by value, not by any purported right to build. See Kendall, Dowling & Schwartz, supra note 75, at 196–204. Far from suggesting that Lucas makes it harder for a court to find a taking, my co-authors and I observed that Lucas’s treatment of value and the economically-viable-use test in this regard “reflects the Court’s historic understanding of these concepts in takings analysis.” Id. at 197. Tahoe-Sierra reaffirms that to prevail on a per se taking under Lucas, a landowner must show a complete loss of value. Tahoe-Sierra, 122 S. Ct. at 1483 (a claim based on less than a total value loss “would require the kind of analysis applied in Penn Central”).
211 See Palazzolo, 533 U.S. at 631–32.
212 See id.
213 Burling, supra note 2, at 51.
214 Penn Cent. Transp. Co. v. City of New York, 438 U.S. 104, 137–38 (1978).
215 Id. at 130–31.
216 Id. at 136–38.
217 E.g., Keystone Bituminous Coal Ass’n v. DeBenedictis, 480 U.S. 470, 498–502 (1987) (ruling that “the 27 million tons of coal do not constitute a separate segment of property for takings law purposes” in a takings challenge to mining restrictions); Andrus v. Allard, 444 U.S. 51, 66–67 (1979) (“At least where an owner possesses a full ‘bundle’ of property rights, the destruction of one ‘strand’ of the bundle is not a taking, because the aggregate must be viewed in its entirety.”). The Court in Concrete Pipe & Products of California, Inc. v. Construction Laborers Pension Trust stated:
[A] claimant’s parcel of property [may] not first be divided into what was taken and what was left for the purpose of demonstrating the taking of the former to be complete and hence compensable. To the extent that any portion of property is taken, that portion is always taken in its entirety; the relevant question, however, is whether the property taken is all, or only a portion of, the parcel in question.
508 U.S. 602, 643–44 (1993).
218 E.g., Dist. Intown Props. Ltd. P’ship v. District of Columbia, 198 F.3d 874, 881 (D.C. Cir. 1999) (finding that the relevant parcel includes both the affected and unaffected portions of the owner’s parcel); Tabb Lakes, Ltd. v. United States, 10 F.3d 796, 802 (Fed. Cir. 1993) (“[T]he quantum of land to be considered is not each individual lot containing wetlands or even the combined area of wetlands. If that were true, the Corps’ protection of wetlands via a permit system would, ipso facto, constitute a taking in every case where it exercises its statutory authority.”); see Penn Cent., 438 U.S. 104, 130–31 (1978); City of Annapolis v. Waterman, 745 A.2d 1000, 1022 (Md. 2000) (“[T]he property to be assessed for economically viable use is, as we have said, the entire tract of land . . . .”); K & K Constr., Inc. v. Dept. of Natural Res., 575 N.W.2d 531, 537 (Mich. 1998) (“[C]ontiguity and common ownership create a common thread tying these three parcels together for the purpose of the takings analysis.”); Zealy v. City of Waukesha, 548 N.W.2d 528, 530 (Wis. 1996) (finding that the relevant parcel included about 8.2 acres zoned as wetlands and 2.1 acres of contiguous property zoned for residential and commercial development); E. Cape May Assocs. v. State, Dep’t of Envtl. Prot., 693 A.2d 114, 125 (N.J. Super. Ct. App. Div. 1997) (“The majority of out-of-state cases which have considered the [relevant parcel question] have held that it consists of all of the claimant’s contiguous acreage in the same ownership.”).
219 Palazzolo v. Rhode Island, 533 U.S. 606, 631 (2001).
220 Id. (emphasis added).
221 Id. (citing Lucas v. S.C. Coastal Council, 505 U.S. 1003, 1016–17 n.7 (1992)).
222 Id. (citing Richard A. Epstein, Takings: Descent and Resurrection, 1987 Sup. Ct. Rev. 1, 16–17 (1987) and John E. Fee, Comment, Unearthing the Denominator in Regulatory Takings Claims, 61 U. Chi. L. Rev. 1535 (1994)).
223 See Concrete Pipe & Prods. of Cal., Inc. v. Constr. Laborers Pension Trust, 508 U.S. 602, 644 (1993).
224 See Palazzolo, 533 U.S. at 651 n.2 (Ginsburg, Souter & Breyer, JJ., dissenting) (stating that Palazzolo’s proposed parcel definition conflicts with “numerous holdings” of the Supreme Court, including Concrete Pipe).
225 Burling, supra note 2, at 55.
226 See Concrete Pipe, 508 U.S. at 644.
227 Lucas v. S.C. Coastal Council, 505 U.S. 1003, 1016 n.7 (1992) (“Regrettably, the rhetorical force of our ‘deprivation of all economically feasible use’ rule is greater than its precision, since the rule does not make clear the ‘property interest’ against which the loss of value is to be measured.”).
228 366 N.E.2d 1271, 1276–77 (N.Y. 1977), aff’d, 438 U.S. 104 (1978).
229 Lucas, 505 U.S. at 1016 n.7.
230 Id. at 1017 n.7.
231 122 S. Ct. 1465, 1481, 1483–84 (2002).
232 Id. at 1483.
233 Id. at 1484.
234 Id. at 1496 n.* (Thomas & Scalia, JJ., dissenting).