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Takings Watch Newsletter -
2002 Quote of the Month Archive


"The imprecision of our regulatory takings doctrine does open the door to normative considerations about the wisdom of government decisions. [citing Agins] This sort of analysis is in uneasy tension with our basic understanding of the Takings Clause, which has not been understood to be a substantive or absolute limit on the government's power to act."

Eastern Enterprises v. Apfel, 524 U.S. 498, 545 (1998) (Kennedy, J., concurring in the judgment and dissenting in part).


"[T]here are a number of state courts that do not completely agree about the proper application of Nollan and Dolan -- due in no small part to the misinformation so often presented to them by opponents of municipal regulation." Amicus Brief of National Association of Home Builders, Town of Flower Mound v. Stafford Ltd. Prtnrshp. (Tex. Oct. 31, 2002).

Ed. Note: Perhaps NAHB meant to say "proponents" rather than "opponents," but on the other hand perhaps it's a quantum leap in self-recognition.


In this case, the restrictions that background principles of Washington law place upon such ownership are found in the public trust doctrine. * * * Relevant here, the jus publicum, or public trust doctrine, is the right of navigation, together with its incidental rights of fishing, boating, swimming, water skiing, and other related recreational purposes generally regarded as corollary to the right of navigation and the use of public waters. Esplanade Properties, LLC v. City of Seattle, 2002 WL 31190846 (9th Cir., Oct. 3, 2002) (denying a per se takings claim under Lucas because the public trust doctrine acted as a background principle) (citation and internal quotes omitted).


A government ought to contain in itself every power requisite to the full accomplishment of the objects committed to its care, and to the complete execution of the trusts for which it is responsible, free from every other control but a regard to the public good and to the sense of the people.

The Federalist No 31, at 194 (Clinton Rossiter ed. 1961)


It seems to us that the property owner necessarily expects the uses of his property to be restricted, from time to time, by various measures newly enacted by the State in legitimate exercise of its police powers.

Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 1027 (1992).

JULY 2002

Under our system of government, one of the State's primary ways of preserving the public weal is restricting the uses individuals can make of their property. While each of us is burdened somewhat by such restrictions, we, in turn, benefit greatly from the restrictions that are placed on others. These restrictions are properly treated as part of the burden of common citizenship . . . . [T]he Takings Clause did not transform that principle to one that requires compensation whenever the State asserts its power to enforce it.

Keystone Bituminous Coal Assn. v. DeBenedictis, 480 U.S. 470, 491-92 (1987), quoted in Machipongo Land & Coal Co. v. Commonwealth of Pennsylvania, 799 A.2d 751 (2002).

JUNE 2002

The government is not required to pay Property Owners to refrain from taking action on their land that would have the effect of polluting public waters. Indeed, despite our conviction that private property rights are to be strongly protected, we are struck by the impropriety of taking action that would require the General Assembly to pay someone not to pollute public water or destroy public fisheries.

Machipongo Land & Coal Co. v. Commonwealth, 2002 WL 1071013 (Pa. May 30, 2002)

MAY 2002

The true friend of property, the true conservative, is he who insists that property shall be the servant and not the master of the commonwealth; who insists that the creature of man's making shall be the servant and not the master of the man who made it. * * * [E]very man holds his property subject to the general right of the community to regulate its use to whatever degree the public welfare may require it.

Theodore Roosevelt, The New Nationalism, Speech at Osawatomie, Kansas (August 31, 1910)

APRIL 2002

The interest in facilitating informed decisionmaking by regulatory agencies counsels against adopting a per se rule * * *. Otherwise, the financial constraints of compensating property owners during a moratorium may force officials to rush through the planning process or to abandon the practice altogether. To the extent that communities are forced to abandon using moratoria, landowners will have incentives to develop their property quickly before a comprehensive plan can be enacted, thereby fostering inefficient and ill-conceived growth.

Justice Stevens's 6-3 Majority Opinion in Tahoe-Sierra

March 2002

"Private Property * * * is a Creature of Society, and is subject to the Calls of that Society, whenever its Necessities shall require it, even to its last Farthing * * *."

Benjamin Franklin, Queries and Remarks Respecting Alterations in the Constitution of Pennsylvania (1789), in 10 The Writing of Benjamin Franklin 54, 59 (Albert H. Smyth ed., 1970).

February 2002

“If I am correct in suggesting that the current Court intends to play a restrained role in the property area, how is Justice Scalia's aggressive opinion in Lucas to be understood? The case is not as far reaching as its rhetoric suggests. It does not protect all who suffer a complete loss in their property's value, for the categorical 100 percent diminution rule itself is sharply limited. Regulation that would be sustained under established common law "principles" of nuisance and property law is not affected. Presumably, states will have substantial latitude in determining the extent to which their existing legal principles limit property rights. ”

Joseph L. Sax, Property Rights and the Economy of Nature: Understanding Lucas v. South Carolina Coastal Council, 45 Stan. L. Rev. 1433, 1437 (1993)

January 2002

“The temptation to adopt what amount to per se rules in either direction must be resisted.”

Justice O'Connor, concurring in Palazzolo v. Rhode Island, 121 S. Ct. 2448, 2466 (2001)


To read Quote of the Month from our 2001 issues, click here.


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