1. Regulatory Takings and Smart Growth Douglas T. Kendall Timothy J. Dowling Community Rights Counsel May 10, 2001 Cobb County, Georgia

2. Community Rights Counsel  Nonprofit public interest law firm  Assists counties and other local governments in defending land use controls and other community protections  Emphasis on takings cases

3. THE TAKINGS CLAUSE U.S. Constitution: “Nor shall private property be taken for public use, without just compensation.” (Fifth Amendment) Georgia Constitution: “Private property shall not be taken or damaged for public purposes without just and adequate compensation bring first paid.” (Article I, Section III, Par I)

4. Community Rights Counsel Success Stories  Lake Tahoe planning moratorium  Washington, DC historic preservation laws  Anchorage, AK fair housing laws  Riverside, CA fire safety protections  Pennsylvania mining restrictions  Rhode Island wetland protections

5. Bad News for Local Governments  Many takings lawsuits  Expensive and time-consuming to defend  Many landowner victories in the U.S. Supreme Court

6. Good News for Local Governments  Local governments win the vast majority of takings cases  Landowner wins in U.S. Supreme Court are narrow  Very strong arguments against an expansive interpretation of the Takings Clause Delete sample document icons and replace with working document icons as follows: From Insert Menu, select Object... Click “Create from File” Locate File name in “File” box Make sure “Display as Icon” is checked Click OK Select icon From Slide Show Menu, Select “Action Settings” Click “Object Action” and select “Edit” Click OK

7. Five Themes for Litigating Regulatory Takings Cases 1. Narrow Text and Original Meaning 2. Judicial Respect for our Federal System 3. Judicial Deference to the Policymaking Branches 4. Avoiding Unduly Harsh Fiscal Impacts 5. The Government as Guardian of Property Rights and Property Values

8. Palazzolo v. Rhode Island (U.S.)  Review granted October 10, 2000  Oral argument February 26, 2001  Ruling by the end of June 2001

9. Palazzolo Coastal Wetlands Picture #3

10. Palazzolo v. Rhode Island (U.S.)  Takings challenge to the denial of a permit to fill 18 acres of pristine coastal wetlands  Palazzolo seeks $3,150,000 based on profits expected from building 74 single-family homes  Rhode Island Supreme Court deemed the case unripe because: (1) Palazzolo failed to apply for a permit to build the 74 homes; and (2) Palazzolo failed to seek permission to fill less than 11 acres or to build on the upland portion of the property.

11. Four Factual Wrinkles in Palazzolo 1. The Nature of the Takings Claim: Subdivision vs. Beach Club Proposal? 2. The Number of Houses that May be Built: One or Several? 3. Palazzolo’s Acquisition Date: 1978 or 1959? 4. The Trial Court’s Nuisance Finding

12. The Background-Principles Issue QUESTION PRESENTED: ”WHETHER A REGULATORY TAKINGS CLAIM IS CATEGORICALLY BARRED WHENEVER THE ENACTMENT OF THE REGULATION PREDATES THE CLAIMANT’S ACQUISITION OF THE PROPERTY."

13. Palazzolo: The Lucas Per Se Rule Issue QUESTION PRESENTED: ”WHETHER THE REMAINING PERMISSIBLE USES OF REGULATED PROPERTY ARE ECONOMICALLY VIABLE MERELY BECAUSE THE PROPERTY RETAINS A VALUE GREATER THAN ZERO."

14. TAHOE-SIERRA PRESERVATION COUNCIL V. TAHOE REGIONAL PLANNING AUTHORITY  Takings challenge to temporary planning moratoria in effect for 32 months  Lake Tahoe is one of the purest, most pristine lakes in the world  Nearby development causes the Lake to lose one foot of clarity every year  Claimants consist of about 450 landowners  Trial court found a taking  Appeals court reversed and ruled for the government

15. TAHOE-SIERRA PRESERVATION COUNCIL V. TAHOE REGIONAL PLANNING AUTHORITY (continued)  Parcel-as-a-whole rule: Claimants cannot sever property rights into separate temporal dimensions.  A reasonable temporary ban on development does not constitute a taking.

16. MCQUEEN V. SOUTH CAROLINA COASTAL COUNCIL  McQueen bought two oceanfront lots in the 1960s  In 1977, South Carolina adopted rules that restrict the filling of coastal wetlands  McQueen took no action for 30 years after his purchase; the lots reverted to their natural condition  In 1991, the State denied McQueen permission to fill and develop the lots  It is undisputed that the permit denial extinguished all economically viable use of the land  Issue: Did McQueen’s inaction for thirty years reflect the lack of a reasonable expectation to develop that defeats his takings claim?