On history, takings jurisprudence, and Palazzolo: A reply to James Burling

Dowling, Timothy J

Abstract: The so-called property rights movement has hailed Palazzolo v. Rhode Island as a landmark win for landowners, a blockbuster breakthrough that will end “smart growth,” curtail other land use controls, and lead to manifold victories for claimants under the Takings Clause of the Fifth Amendment. James Burling’s piece on Palazzolo is more of the same, proclaiming the ruling to be a decisive win in an ageold, ideological battle. This Article shows that Burling’s take on the ruling is wishful thinking. He errs in his description of history, takings jurisprudence, and Palazzolo. Palazzolo is but a small, incremental development in the case law from which both takings claimants and defendants may draw support. The Court’s most recent takings ruling, Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency, reaffirms that the vast bulk of land use controls and other community protections do not implicate the Takings Clause.

Those who want skill to use those evidences they have of probabilities; who cannot carry a train of consequences in their heads; nor weigh exactly the preponderancy of contrary proof and testimonies, making every circumstance its due allowance; may be easily misled to assent to positions that are not probable.1

INTRODUCTION

meaning of Palazzolo v. lade Island.3 In this reply, I describe his three errors in turn.

Regarding Palazzolo in particular, Burling calls the ruling perhaps “the most significant skirmish” in an overarching ideological war.4 He concludes that Palazzolo has removed “some of the more pernicious governmental defenses to regulatory takings claims” and “injected new life in the doctrine of regulatory takings.”5 These dramatic characterizations are of a piece with similar assertions by Burling and his colleagues at Pacific Legal Foundation (PLF) at the time of the ruling, which proclaimed Palazzolo a “landmark victory” for landowners,6 predicted that smart growth is now “doomed,”7 and pontificated that “[t]he notice rule is dead, except in what remains of Justice] Stevens’ mind.”8

The reaction to PaLazzolo by Burling and his colleagues is plainly hyperbolic. As shown below, Palazzolo is not a major jurisprudential breakthrough in favor of takings claimants, but instead yet another modest, incremental development in takings case law. Indeed, there is much good news for government officials in Palazzolo. For instance, the ruling emphatically reaffirms the Court’s ripeness precedent, which largely pays appropriate deference to the role of local officials in land-use planning. To be sure, the Palazzolo majority bends over backwards to resuscitate a claim that has no business being in court, falling victim to a bait-and-switch perpetrated by PLF.9 But it does not, as Burling argues, impose new requirements on government officials in the land-use negotiation process.10

challenged regulation always defeats takings liability.11 At least five Justices agree that the timing of a claimant’s acquisition of property is relevant to the analysis in most takings cases.12 Moreover, Palazzolo clarifies that background principles of law that defeat takings claims include not just common law nuisance principles, but also positive laws, such as statutes and regulations, in appropriate circumstances.13

Palazzolo also unambiguously rejects the argument that per se liability attaches where regulation denies a landowner a reasonable return on investment.14 In fairness to Burling, it must be acknowledged that Palazzolo contains a brief and thoroughly confused discussion of the Court’s parcel-as-a-whole rule, but because the Court just recently reaffirmed the rule,15 Palazzolo’s vague dicta is not nearly as significant as Burling suggests.16

I. “THE TRADITIONAL AMERICAN VIEW” OF THE TAKINGS CLAUSE

for it was Locke who first described property as predating sovereign power.20 Because, in Burling’s view, the Framers of the Constitution were “firmly predisposed” to Locke’s philosophy,21 he suggests that “a vibrant Lockean tradition” compels an aggressive application of the Takings Clause to the regulation of private property in the public interest.22

This description of the takings debate is a fairy-tale, for it has the relevant history exactly backwards. The “traditional” view of the Takings Clause-the view shared by the founding generation and the view that predominated for the first 130 years of our nation’s history-was that the Clause does not extend to government regulation at all. The founding generation and several succeeding generations understood the Takings Clause as applying only to the appropriation or physical invasion of property. Justice Antonin Scalia, one of the Court’s staunchest advocates of property rights, has noted that “early constitutional theorists did not believe that the Takings Clause embraced regulations of property at all.”23 In the words of Justice Scalia, “[p]rior to Justice Holmes’s exposition in Pennsylvania Coal Co. v.. Mahon, 260 U.S. 393 (1922), it was generally thought that the Takings Clause reached only a `direct appropriation’ of property… or the functional equivalent of a `practical ouster of [the owner’s] possession.'”24

the Legal Tender Cases, for instance, the Court explained that “[the Takings Clause] has always been understood as referring only to a direct appropriation, and not to consequential injuries resulting from the exercise of lawful power. It has never been supposed to have any bearing upon, or to inhibit laws that indirectly work harm and loss to individuals.”26 Nor is it correct to suggest that the Framers were uniformly, or even predominantly, predisposed to Locke’s views on property. In fact, the Framers’ views on property were very much a mixed bag. Benjamin Franklin, one of the few Framers who signed both the Declaration of Independence and the Constitution, asserted in unequivocal terms that property is created by the State and thus subject to extensive state control:

Private Property therefore 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; its Contributions therefore to the public Exigencies are not to be considered as conferring a Benefit on the Publick, entitling the Contributors to the Distinctions of Honour and Power, but as the Return of an Obligation previously received, or the Payment of a just Debt.27

Moreover, Locke himself believed that private property rights could be exercised only “where there is enough and as good left in common for others.”29 In other words, Locke’s theory of property recognized the right of each person to an equal share of property and precluded private acquisitions of property that deprived others of this right.30 This severe limitation on the acquisition of property stemmed from Locke’s view that God originally gave all property to humankind to be held in common.31 Although Professor Richard Epstein relies on Locke to bolster his call for a breathtakingly expansive application of the Takings Clause,32 even Epstein recognizes that this key aspect of Locke’s philosophy is in severe tension with an aggressive theory of regulatory takings.33 Epstein addresses this tension by “correct[ing]” Locke and discarding the notion of original ownership in common,34 a correction that prompted one critic to write that “Locke himself… was insufficiently Lockean” for Epstein.35 Burling, too, would have difficulty reconciling Locke’s views on property acquisition with a broad vision of the Takings Clause, but, unlike Epstein, Burling fails to acknowledge the issue.

from town meeting houses without judicial approval.37 Connecticut land-use controls limited not only the amount but also the sequence of new development, much as modern smart-growth initiatives seek to avoid “leapfrog development.”38 These land-use restrictions during the colonial era were “so numerous and varied, so widely distributed, that they cannot be viewed as anomalous.”39 Likewise, during the early years of our Republic, American legislatures extensively regulated land use.40 Yet those who push for an expansive application of the Takings Clause have unearthed no evidence in the ratification debates or other founding documents to suggest that anyone in the founding generation contemplated application of the Takings Clause to these land-use controls.

Thus, the traditional view of the Takings Clause supports those who call for a restrained application of regulatory takings doctrine. The new-fangled theorists in the debate are those who push for a far more aggressive application of the Clause to land-use restrictions and other community protections.

II. THE SCOPE AND CONTENT OF MODERN REGULATORY TAKINGS JURISPRUDENCE

Burling’s broad outline of regulatory takings jurisprudence contains both general and specific errors. As a general matter, he asserts that “private property owners have been winning the debate before the United States Supreme Court”41 and suggests that lower courts are beginning to fall into line.42 It is not entirely clear what he means by the phrase “winning the debate,” but if he intends to suggest that takings jurisprudence is moving toward his vision of individual property rights as preeminent over the public interest, he is thoroughly mistaken.

continues to act as a severe restraint on modern regulatory takings jurisprudence, limiting application of the Clause to those rare situations in which regulation constitutes the functional equivalent of an appropriation of property. In the landmark Mahon decision, the Court found a taking only because the challenged restraint had “very nearly the same effect for constitutional purposes as appropriating or destroying” private property.43 More recently, the Court has stated unequivocally that in regulatory takings cases, its task is “to distinguish the point at which regulation becomes so onerous that it has the same effect as an appropriation of the property through eminent domain or physical possession.”44 Not surprisingly, land-use regulation rarely rises to this level.45 In establishing its two per se rules of takings liability, the Court used functional equivalency to appropriation as a benchmark.46 It described those rules as “very narrow”47 and as applying in only “extraordinary” circumstances.48

flows directly from the text of the Takings Clause.51 It described regulatory takings as occurring where restrictions are “so severe that they are tantamount to a condemnation or appropriation.”52 And it rejected a takings challenge to a thirty-two-month moratorium, stressing the importance of careful land-use planning in protecting our communities from “inefficient and ill-conceived growth.”53 Tahoe-Sierra stands as an emphatic reaffirmation that the vast bulk of land-use controls do not trigger the compensation requirement set forth in the Takings Clause.

cases on procedural grounds.59 Any suggestion that landowners are winning the takings debate in the courts is a victory of PL.F’s hope over reality.

When Burling turns to the specifics of regulatory takings jurisprudence, his analysis fares no better. His errors and oversimplifications are too numerous to explicate comprehensively, and so this reply focuses on two representative examples.

First, Burling tells us that a compensable taking occurs where land-use regulation fails to substantially advance a legitimate public interest, citing Agins v. City of Tiburon.60 This substantially-advance standard is sometimes referred to as a means-end test because it requires a court to determine whether the legislatively chosen means adequately advance a legitimate end. In discussing this standard, Burling fails altogether to note that in recent years, five U.S. Supreme Court Justices expressly disavowed the Agins means-end test as an appropriate standard of takings liability,61 and every other member of the Court has written or joined opinions at least questioning its continued role in takings jurisprudence.62

viable use of land unless it “merely codifies the existing `common law nuisance’ limitations on property.”64 Here, Burling is referring to what the Lucas Court called the background-principles inquiry. The Lucas majority explained that no taking occurs where background principles of law “show[] that the proscribed use interests were not part of [the claimant’s] title to begin with.”65 In other words, the claimant does not possess the property interest alleged to have been taken because the constraint “inhere[s] in the title itself, in the restrictions that background principles of the State’s law of property and nuisance already place upon land ownership.”66 Ever since Lucas, PLF and others who represent takings claimants have striven mightily to confine the background-principles inquiry to common law nuisance.67 On this view, neither positive laws such as statutes and regulations nor non-nuisance common law doctrines, such as the public trust doctrine,68 may constitute background principles that defeat takings liability.

liability.72 Moreover, in noting that property interests generally are defined by state law, Lucas relies on Board of Regents of State Colleges v. Roth,73 which recognized that state statutes, rules, and other sources of state law define property interests.74 Thus, Lucas provides strong support for the argument that the background-principles defense extends beyond common law nuisance, and lower courts have been quite expansive in their application of the defense to statutes, regulations, and non-nuisance common-law doctrines.75 As discussed below, Palazzolo resolves any ambiguity by confirming that background principles may include statutes, regulations, and the full range of common law doctrines in appropriate circumstances.76

III. PALAZZOLO: GOOD NEWS AND BAD NEws FOR STATE AND LOCAL OFFICIALS

A. The Facts and Equities

acres of intertidal wetlands on his property to build a seventy-four house subdivision.79 As shown in the photo below,80 the south (oceanside) shore of Winnapaug Pond remains largely undeveloped, and the existing houses are concentrated on the ridge of uplands along the road between the beach and the marsh.81

Second, Burling asserts that Palazzolo intended to fill 11.4 acres of wetlands to build a “family beach recreational area” on the site.84 Although Palazzolo’s 1985 application to fill the land set forth this proposal, Palazzolo’s takings claim as litigated had nothing to do with the proposed beach club.85 At the heart of the case as tried in state court was Palazzolo’s desire to destroy all eighteen acres of wetlands on the site to build a seventy-four-home subdivision.86 In his opening statement to the trial court, Palazzolo’s attorney referred to the proposed development as “need[ing] fill to be able to construct homes.”87 Palazzolo’s valuation evidence was based exclusively on the subdivision plan,88 and the record is silent as to the economic viability of the beach club. Following Palazzolo’s lead, the state trial court and state supreme court naturally found that his takings claim was rooted in his proposal to destroy all eighteen acres of wetlands to build a subdivision, and they resolved the case on this basis.89 In seeking review by the U.S. Supreme Court, Palazzolo cited these very rulings to emphasize that his claim is based on the State’s denial of permission to destroy all eighteen acres of wetlands.90

way through approximately 70, 75 feet of marshland or conservation grasses.'”92

After having litigated his claim based on the subdivision proposal, Palazzolo switched gears in the U.S. Supreme Court and argued instead that the takings claim is rooted in the beach club proposal. Evidently, Palazzolo was concerned that his failure to apply for permission to build a subdivision might sink his claim as unripe, as it had in the state supreme court.93 The State understandably argued that courts should prohibit such “sandbagging” by landowners who submit one land-use proposal and then use the denial as the basis for a takings claim based on a much more extravagant proposal.94 As discussed below, the U.S. Supreme Court ruled that while federal ripeness law did not prevent him from doing so, States may design their land-use processes to preclude this kind of chicanery.95

be dispositive in the remand proceedings, and it certainly colors the equities of the case.101

B. The Palazzolo Ruling on Ripeness

The state supreme court ruled that Palazzolo’s takings claim is unripe for two reasons. First, the court concluded that the record failed to show the extent to which the State would permit development on the property because Palazzolo failed to apply for permission to use the land in ways that would involve filling substantially less wetlands or building only on the upland portion.102 Second, the court relied on Palazzolo’s failure to submit even one application for the seventy-four-home subdivision proposal that formed the heart of his claim as litigated in state court.103

The broader implications of the ripeness issue in Pala=olo may be best understood by examining existing ripeness precedent as well as the debate that took place during the consideration of federal ripeness legislation in the 105th Congress.

ment will not permit less intensive development of the property.108 In other words, a takings claim is unripe where there remains “the potential for … administrative solutions” to the dispute.109 A takings claim ripens only when the record from the land-use negotiations reveals “the nature and extent of permitted development.”110

This ripeness requirement flows from the very nature of the takings inquiry. Under Mahon, a regulation becomes a taking where it “goes too far,”11 but a court cannot determine whether regulation goes too far until it knows how far the regulation goes.112 Ripeness rules also stem from the flexibility and discretion of local agencies in addressing land-use issues,113 and the reluctance of courts to secondguess local land-use agencies.114 A landowner need not continue to pursue relief from the local land-use agency, however, where the record makes clear that doing so would be futile.115

without pursuing available opportunities to resolve land-use conflicts at the local level.117 Deemed a “hammer to the head” of state and local officials by NAHB’s chief lobbyist,118 the bill would have radically shifted the balance of power in land-use negotiations to developers by allowing them to threaten a federal court lawsuit far earlier in the land-use planning process.119

Among other things, the bill would have required local officials to specify the permitted intensity of development after the denial of a single application.120 Failure to do so would have allowed the landowner to proceed immediately to federal court without continuing to pursue available local processes.121 In other words, a landowner could file a single, extravagant land-use proposal, and upon denial the burden would shift to local officials to determine precisely how the property would be used. Local officials objected to this provision because it would have imposed costly and unwarranted new burdens.122

opposition to the bill, it never went to the Senate floor for a vote.125 Undeterred, NAHB filed an amicus brief in Palazzolo asking the Court to abandon its existing ripeness doctrine and adopt rules that were in great part similar to its failed legislative agenda.126

The Palazzolo Court rejected this request. The Court reversed the state supreme court and ruled that Palazzolo’s case was ripe, but in so ruling it emphatically reaffirmed its existing ripeness doctrine as set forth in Williamson County, MacDonald, and other leading ripeness precedents.127 In particular, the Court stressed that a takings claim is not ripe “until a court knows `the extent of permitted development’ on the land in question”128 at least to a “reasonable degree of certainty.”129 The Court continued to recognize the critical role of local land-use officials in the planning process by confirming “the important principle that a landowner may not establish a taking before a land-use authority has the opportunity, using its own reasonable procedures, to decide and explain the reach of a challenged regulation.”130 The Court emphasized the need to allow local officials “to exercise their full discretion,” including procedures that allow for variances and waivers.131

zolo might be able to build more than one house on the upland portion of the site, the Court held that the State waived this argument by failing to contest Palazzolo’s assertion to the contrary in its opposition to Palazzolo’s petition for certiorari.134 By limiting its ripeness ruling to “this circumstance,”135 the Court provided an easy basis for government officials to distinguish Palazzolo in future cases.

The Palazzolo Court went on to indicate that in its view there was no genuine ambiguity in the record regarding the extent of permitted development on the uplands,136 but in a dissent joined by Justices Souter and Breyer, Justice Ginsburg took issue with this conclusion.137 Noting that Palazzolo pursued only a Lucas per se claim in state court, she observed that the State had no incentive to flesh out the full extent of permitted development.138 In her view, the State’s submissions establish only a floor, not a ceiling, on permissible development.139

With respect to the state supreme court’s second ripeness ground-Palazzolo’s failure to submit an application for the seventy– four-home subdivision proposal-the Court ruled that his failure went only to damages, not to ripeness under the federal Constitution.143 Because the extent of permitted development was (in the Court’s view) manifest, further applications would not provide additional clarification that would assist the ripeness inquiry.144 In good news for state and local government officials, however, the Court recognized the State’s “valid concern” that a landowner might attempt to use a hide-the-ball strategy by applying for a modest proposal and then using a denial as the basis for a takings claim for an exorbitant sum based on a much more extensive proposal.145 Although federal ripeness rules do not preclude this abuse, the Court made clear that state ripeness rules may do so, stating that it did “not intend to cast doubt” on local planning procedures and state ripeness rules designed to prevent takings claims based on hypothetical uses that would not pass muster under local law.146

Notwithstanding the Court’s clear reaffirmation of its existing ripeness precedent, Burling tells us that perhaps the most significant aspect of Palazzolo’s ruling on ripeness is that once the government denies a single permit application, the denial shifts the burden to the government to indicate what other uses are available to the landowner.147 This, of course, is exactly what the developers’ lobby wanted to accomplish through its now-moribund federal ripeness legislation.148 Palazzolo does nothing of the sort.

and permitting local procedures for variances, waiver, and the like to play out before landowners may proceed to court.150 Burling also cites to the Court’s assertion that there was no indication that the State would have approved a development application to fill less than 11.4 acres,151 and the observation that “there is no indication that any use involving any substantial structures or improvements would have been allowed.”152 The Court’s point here, however, is not that government officials have the burden to specify permitted development upon the denial of a single application, but rather that the unambiguous nature of the wetland regulations plainly ruled out any such approval.153 If the wetland rules had not been unequivocal, there is little doubt from the ruling that the Court would have found the case to be unripe until the extent of permitted fill could be determined.154 It is wishful thinking by Burling to infer the establishment of a significant new burden on local governments in the planning process from a ruling that so plainly reaffirms the core of the Court’s existing ripeness precedent.155

C. The Palazzolo Ruling on Expectations and Background Principles

rule’s death have been greatly exaggerated.157 The Court’s ruling regarding the relevance of the timing of a claimant’s acquisition visa-vis the enactment of the challenged regulation is very narrow.

The Palazzolo Court viewed the state supreme court’s ruling as having established a “sweeping” and “blanket rule” that acquisition of title after enactment of the challenged regulation automatically bars a takings claim in every case.158 The Court rejected this rule of per se non-liability as “too blunt an instrument,”159 stating that “[t]he State may not put so potent a Hobbesian stick into the Lockean bundle” of property rights.160 The Court concluded that precluding all postenactment purchasers from prevailing on a takings claim would improperly “put an expiration date on the Takings Clause.”161 “Future generations, too, have a right to challenge unreasonable limitations on the use and value of land,” the Court wrote.162 The Court expressed concern that the process of ripening a claim might prevent the owner at the time of enactment from bringing a claim.163 Moreover, a blanket rule against recovery would create unfair results for older property owners and those who need to sell, as opposed to those with the resources to hold title.164

gue that the transfer greatly changes anyone’s expectations about the property. On the other hand, acquisition of title by purchase often affects reasonable expectations associated with property, particularly where the purchase price is discounted due to laws in effect at the time of the transfer.167

pressly agreed with Justice O’Connor regarding the relevance of the timing of acquisition to the Penn Central analysis.173 At least one commentator argues that expectations are relevant even to a per se claim under Lucas.174

In a typically biting separate opinion, Justice Scalia took issue with Justice O’Connor’s approach and argued that the timing of acquisition is never relevant to takings analysis unless the pre-existing regulation constitutes part of the background principles of law that preclude a taking.175 But because no other member of the Court joined Justice Scalia’s opinion, it is clear that justice O’Connor has a controlling majority that will treat the timing of the claimant’s acquisition as relevant to most takings claims.176

The Palazzolo Court cites Nollan v. California Coastal Commission177 as “controlling precedent” for its ruling.178 In Nollan, the Court found a taking where the State conditioned a development permit on a compelled dedication of lateral beach access, even though the claimants acquired the land after the State had announced its policy to require such dedications.179 Although Nollan served as a counterexample to the sweeping, blanket rule of non-liability rejected by the Court, it provides little guidance for future cases since it addressed acquisition after the adoption of a policy, not a regulation or statute. As noted above, a majority of the Justices joined Justice O’Connor in declining to view Nollan as precluding consideration of the timing of a claimant’s acquisition in most takings cases.

ited to common law.180 Although not every pre-existing law is “transformed into a background principle of the State’s law by mere virtue of the passage of title,”181 the Court went so far as to suggest that the very Rhode Island statute before it might be a background principle, stating: “We have no occasion to consider the precise circumstances when a legislative enactment can be deemed a background principle of state law or whether those circumstances are presented here.”182 The Court described background principles “in terms of those common, shared understandings of permissible limitations derived from a State’s legal tradition.”183 This “derived from” language-perhaps the two most important words in the opinion-strongly suggests that background principles include not only pre-existing statutes and regulations that codify common law doctrines of nuisance and property law, but also those that represent a reasonable extension of those doctrines.184 Lower courts undoubtedly will be called upon to apply this “derived from” standard in future cases where government officials argue that a pre-existing statute or regulation constitutes a background principle of law.185

cence.188 The State’s brief on remand sets forth a compelling argument that the public trust doctrine in Rhode Island precludes Palazzolo from ever having owned a property interest in destroying the coastal wetlands that he alleges has been taken.189

D. The Palazzolo Ruling on the Lucas Per Se Rule

the Court should consider whether the regulation allows the owner to realize a reasonable return on investment.195

The Palazzolo Court rejected this argument, stating that “[a] regulation permitting a landowner to build a substantial residence on an 18-acre parcel does not leave the property `economically idle'” under Lucas.196 Although the State may not avoid a per se claim under Lucas by leaving the landowner with “a token interest,” the $200,000 value of Palazzolo’s parcel defeated his Lucas claim.197

Palazzolo also speaks to another important aspect of the Lucas per se rule. Plaintiff’s counsel argued that for the government to avoid application of the Lucas per se rule, a landowner must be able to derive value from the land by developing it.198 On this view, the Lucas per se rule applies even where the land retains significant “speculative” value (the value speculators might pay in the hope that the restrictions will be lifted), or where a neighboring property owner offers to purchase the land to acquire a permanent view shed or a buffer zone for adjacent property, or where recreation or other nondevelopment uses exist and lend value to the land.

percent of its original value, even where the land is unbuildable.2″ In fact, the Lucas Court expressly reaffirmed the common sense notion that the sale of property for value is an economically beneficial use of that property?205 Because Lucas’s per se rule applies only where regulation denies all beneficial use, it is inapplicable where the owner is able to sell the land for value. The inquiry that drives the per se rule is value, not the ability to build.206

ing.”208 Tahoe-Sierra, too, confirms that “[a]nything less than a `complete elimination of value,’ or a `total loss,’ . . . would require the kind of analysis applied in Penn Central.”209

Palazzolo does not explain precisely what the Court means by “token” value, which would be insufficient to defeat a Lucas per se claim. But because both Palazzolo and Lucas reject the suggestion that a ninety-five percent value loss may support a per se claim, Palazzolo’s assertion regarding token value must refer to truly de minimis value, something significantly less than five percent.10

E. The Palazzolo Dicta on the Parcel-as-Whole Rule

In disposing of the Lucas claim, the Court expressly declined to address Palazzolo’s argument that the wetland portion of his property should be considered separately from the upland portion because Palazzolo failed to make this argument in the state courts.211 In other words, the Court refused Palazzolo’s invitation to revisit its prior rulings that a regulation’s economic impact should be evaluated by considering its effect on the claimant’s entire parcel.212

on this score. In fact, the parcel-as-a-whole rule is one of the few firmly entrenched, bright lines in takings jurisprudence. The Court articulated this parcel-as-a-whole rule more than twenty years ago in Penn Central. There, the City of New York applied historic preservation laws to deny the owners of Grand Central Terminal permission to build an office building atop the terminal.214 The Court rejected the owners’ argument that takings analysis should focus solely on the air rights above the terminal, stating:

“Taking” jurisprudence does not divide a single parcel into discrete segments and attempt to determine whether rights in a particular segment have been entirely abrogated. In deciding whether a particular governmental action has effected a taking, this Court focuses rather… on the nature and extent of the interference with rights in the parcel as a whole-here, the city tax block designated as the “landmark site.”215

Because the owners could still operate the Terminal and the surrounding contiguous properties that they owned, the challenged regulation did not deny them all economically viable use of their entire parcel, and the Court rejected the takings claim.216

least all of the claimant’s contiguous property, not just the affected portion.218

In view of this long-standing precedent it is puzzling that Justice Kennedy, writing for the Palazzolo Court, would refer to the matter as a “difficult, persisting question.”219 Although Justice Kennedy cited cases applying the rule, he did not describe these cases as holding that courts should look to the parcel as a whole, but instead used more tepid language, stating that “[s]ome of our cases indicate that the extent of deprivation effected by a regulatory action is measured against the value of the parcel as a whole.”220 Justice Kennedy also cited to footnote seven of Lucas for the proposition that the Court “at times expressed discomfort with the logic of this rule.”221 He further observed that certain commentators have also criticized the parcel-asa-whole rule.222 As Burling’s article portends, the plaintiff’s bar probably will use this discussion in an attempt to persuade lower courts to abandon the parcel-as-a-whole rule.

ing.22 In her dissent, Justice Ginsburg points out the majority’s failure to acknowledge Concrete Pipe.224 Burling tries to downplay the significance of Concrete Pipe by noting that it did not involve real property,225 but Concrete Pipe cites and relies on both Penn Central and Keystone, both real property cases, in its reaffirmation of the parcel-as-awhole rule.225

Second, Justice Kennedy’s description of Lucas’s footnote seven is inaccurate, for footnote seven does not “express discomfort with the logic” of the parcel-as-a-whole rule. Indeed, it does not discuss the “logic” of the rule at all. Instead, footnote seven observes that the deprivation-of-all-economically-feasible-use rule does not, by itself, offer guidance on how to define the relevant parcel,227 and it then notes that the relevant parcel might be defined by considering either the affected portion or the parcel as a whole. Footnote seven then expresses disagreement with the particular relevant-parcel definition used by the New York Court of Appeals in Penn Central.228 It is noteworthy that the Lucas Court did not question its own use of the parcelas-a-whole rule in its Penn Central ruling. Footnote seven then notes that uncertainty regarding the denominator has led to disparate results on occasion, and it suggests that state law might be relevant to the proper definition of the relevant parcel.229 However, footnote seven nowhere analyzes, much less criticizes, the “logic” of the parcelas-a-whole rule.

Finally, and most importantly, the Tahoe-Sierra Court resoundingly reaffirmed the parcel-as-a-whole rule, setting forth a comprehensive discussion of the decades of precedent that support the rule 231 and stating that the Court has “consistently rejected” any other approach.232 The Court rejected both geographic and conceptual severance, insisting that “[an interest in real property is defined by the metes and bounds that describe its geographic dimensions and the term of years that describes the temporal aspect of the owner’s interest.”233 Even the dissent acknowledges that the majority concludes that the parcel-as-a-whole rule is settled law,234 and thus there can be no question that Tahoe-Sierra puts to rest any confusion created by Palazzolo regarding the rule.

CONCLUSION

State and local officials won a clear victory with a holding that significantly cabins the scope of liability under the Lucas per se rule. On ripeness, the Court ruled for Palazzolo on the facts but reaffirmed its basic ripeness doctrine and the right of state and local officials to fashion their land-use procedures as they see fit. On post-enactment acquisition, the Court rejected a blanket rule of per se non-liability, but it recognized that regulations may serve as background principles where they are “derived from” a state’s legal tradition. Five Justices reaffirmed that pre-existing regulations are relevant to the issue of whether a non-per se Penn Central taking has occurred.

TIMOTHY. DOWLING*

* 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.communityights.org.

Copyright Boston College, School of Law 2002

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