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Takings Litigation Handbook:
Defending Takings Challenges to Land Use Regulations
Douglas Kendall, Timothy Dowling, and Andrew Schwartz, May 2000

The Takings Litigation Handbook is the first soup-to-nuts guide to avoiding, litigating and defeating takings challenges to land use laws.  Co-authored with Andrew Schwartz, Deputy City Attorney for the City and County of San Francisco, the Handbook is an indispensable tool for local government attorneys who face a takings lawsuit or the threat of a takings suit.

  

The Handbook is now available online!
To read the entire Handbook in one PDF document, click here.
To read the Handbook chapter by chapter, click here.


Background Information on the Takings Litigation Handbook
:

No government attorney, land use planner, or other local official can effectively protect their community from harmful land use without a working knowledge of takings law
. Developers and other landowners increasingly are attempting to use takings litigation -- or the mere threat of takings litigation -- to convince government agencies to relax or abandon vital protections for our neighborhoods and natural environment. The landowners' voices are amplified by the so-called "property rights movement," which urges an aggressive application of the Takings Clause. Recent Supreme Court rulings in favor of takings claimants contribute to the perception that the Takings Clause threatens community protections. As a result of these developments, some public officials are reluctant to implement community protections in order to avoid the risk of takings liability.

The perceived risk is more myth than reality. With a proper understanding of takings doctrine, community officials can continue to strike a reasonable balance between private property rights and community interests without incurring takings liability.

Community Rights Counsel and the California Community Land Use Project have designed this Litigation Handbook to demystify the Takings Clause. The Handbook results from a series of workshops we are conducting for state and local government attorneys across the country to delineate the boundaries of permissible government regulation and identify areas of uncertainty in the law of takings. This Handbook and the workshops provide practical advice on winning takings lawsuits filed against your public agency. The Handbook begins with practical suggestions for the development of a proper record, obtaining insurance coverage and filing preliminary motions. It then discusses in detail the procedural and substantive defenses that should enable the local government to prevail in takings cases. It finally addresses the issue of calculating damages in the unlikely event that liability for a taking has been found. It is the first ever "soup to nuts" handbook for defending land use regulations from takings challenges. There is a place for the Handbook on every local government lawyer's bookshelf.


The Authors:


Summary of Contents -- 404 pages, May 2000 (all links below are in PDF format)
To read the entire Handbook in PDF format (438 pages), click here.

Foreword
About the Authors
About Community Rights Counsel and the California Community Land Use Project
Preface
User's Guide
A Terminology Primer

Part I - First Principles and Takings Overview

Chapter 1: The Proper Interpretation of the Takings Clause
Chapter 2: The Evolution of Takings Law and Categories of Takings Claims

Part II - Preliminary Issues and Procedural Defenses

Chapter 3: Insurance, Case Review, and Settlement
Chapter 4: The Correct Forum and Procedural Defenses

Part III - Substantive Defenses to Regulatory Takings Claims

Chapter 5: Background Principles and Expectations
Chapter 6: The Parcel As a Whole
Chapter 7: Economic Impact under Lucas and Penn Central
Chapter 8: Due Process and Takings: The Agins Means-End Inquiry
Chapter 9: Pretrial Motions, Discovery, and Expert Witnesses

PART IV - Physical Occupations, Dedications, and Impact Fees

Chapter 10: Loretto and Physical Occupations
Chapter 11: Required Dedications, Impact Fees, and the Tests of Nollan and Dolan

Part V - Juries and Just Compensation

Chapter 12: Jury Trials in Takings Cases
Chapter 13: Just Compensation


For favorable reviews and other information on the Handbook, click here.

 


 
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