Regulatory Taking Resources
The United States Constitution protects private property owners from confiscation of their property by the government. The Fifth Amendment provides in part, "nor shall private property be taken for public use, without just compensation." When government condemns property, it is required to pay compensation in all cases.
When government regulation of private property "goes too far" and deprives the landowner of the value of his land through enactment of a statute, promulgation of a regulation, refusal to issue a permit, or declaration of land as a wetland, as endangered species habitat or as unsuitable for mining, such a taking also may be compensable. This is known as a REGULATORY TAKING or INVERSE CONDEMNATION.
This web site provides resources to private property owners seeking information regarding regulatory takings. Links are provided to enable the user quickly to jump to articles, cases and organizational web sites. Naturally, although every effort is made to insure accuracy, no responsibility is taken or assumed for the content contained on other's web pages.
For a comprehensive review of the law of regulatory taking, you should review the article, The Law of Regulatory Takings, Part I: Development of the Law, written with Julia M. Glencer. This article traces the law from its Constitutional roots, through early case law and is current through early 2002. The article discusses and summarizes the major cases on regulatory takings. More recent cases are summarized in the articles listed below.
Few lawyers have knowledge of the complicated area of regulatory taking. Joel R. Burcat, Esq., a Partner with Saul Ewing LLP, is a lawyer who has litigated regulatory takings cases on behalf of property owners and written and lectured extensively on regulatory takings. For a full bio, go to www.environmental-law.us .
Joel R. Burcat, Esq., Saul Ewing LLP, 2 North Second Street, Seventh Floor, Harrisburg, PA 17101. Telephone: 717.257.7500. Fax: 717.257.7501. E-mail: firstname.lastname@example.org or click here.
Articles authored and co-authored by Joel R. Burcat:
Back in the Regulatory Takings Saddle 'Agins': Chevron USA, Inc. v. Bronster, 24 Andrews Environmental Litigation Reporter 11 (June 4, 2004). This article discusses the ramifications of the U.S. Ninth Circuit Court of Appeals decision to apply a rarely-used legal test derived from the U.S. Supreme Court's ruling in Agins v. City of Tiburon, 447 U.S. 255 (1980) (the "tfails to substantially advance a legitimate state interest" test).
Machipongo Land & Coal Co. and R.T.G., Inc.: When is an Area Unsuitable for Mining a Regulatory Taking and When is it Not? ABA Mining Committee Newsletter, June 2003. This article discusses how two different state's Supreme Courts- Ohio and Pennsylvania- handled virtually identical regulatory takings issues with radically different results.
Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency: Is There a There There? Environmental Law Reporter, October 2002: [Link is being updated.]http://www.saul.com/articles/Environment/Env_2002_Tahoe-Sierra.pdf
Supreme Court Should Review Case Posing Key Takings Issues, Legal Backgrounder, September 20, 2002 : [Link is being updated.]http://www.saul.com/articles/Environment/Env_2002_Machipongo.pdf
Palazzolo v. Rhode Island and the U.S. Supreme Court's Increased Support of the Constitutional Protection of Private Property: A Response to Echeverria, Environmental Law Reporter, February 2002: [Link is being updated.]http://www.kl.com/files/tbl_s48News/PDFUpload307/7777/3210245.pdf
The Law of Regulatory Takings, Part I: Development of the Law, February 2002: [Link is being updated.]http://www.kl.com/files/tbl_s48News/PDFUpload307/7641/burcatwhtpaper.pdf
United States Supreme Court Petition for Certiorari:
Machipongo Land & Coal Co. v. Commonwealth, U.S. Supreme Court Docket No. 02-321. View the petition for certiorari filed by the Petitioners in this case.
Links to U.S. Supreme Court cases:
Agins v. City of Tiburon, 447 U.S. 255 (1980).
Brown v. Legal Foundation of Washington, 123 S.Ct. 1406 (2003).
Concrete Pipe and Products of California Inc. v. Construction Laborers Pension Trust for S. Cal., 508 U.S. 602 (1993). Dolan v. City of Tigard, 512 U.S. 374 (1994).
First English Evangelical Lutheran Church of Glendale v. County of Los Angeles, 482 U.S. 304 (1987).
Keystone Bituminous Coal Assoc. v. DeBenedictis, 480 U.S. 470 (1987).
Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992).
Nollan v. California Coastal Comm., 483 U.S. 825 (1987).
City of Monterey v. Del Monte Dunes at Monterey, Ltd., 526 U.S. 687 (1999).
Palazzolo v. Rhode Island, 533 U.S. 606 (2001).
Penn Central Transp. Co. v. New York City, 438 U.S. 104 (1978).
Pennsylvania Coal Co. v. Mahon, 260 U.S. 393 (1922).
Suitum v. Tahoe Regional Planning Agency, 520 U.S. 725 (1997).
Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency, 122 S.Ct. 1465 (2002)
Williamson County Reg. Planning Comm. v. Hamilton Bank, 473 U.S. 172 (1985).
Links to organizational web sites with useful information on regulatory taking:
Defenders of Property Rights: http://www.defendersproprights.org/
The Expropriation Law Centre (Canada): http://www.expropriationlaw.ca
Heartland Institute: http://www.heartland.org
The Heritage Foundation: http://www.heritage.org
Pacific Legal Foundation: http://www.pacificlegal.org/
Washington Legal Foundation: http://www.wlf.org/
Links to Federalist Society News Bulletins on regulatory takings:
Environmental Law and Property Rights News (2000)
Environmental Law and Property Rights News (2001)
Environmental Law and Property Rights News (2002)
Environmental Law and Propety Rights News (2003)
Environmental Law and Property Rights News (2004)
Links to other sites with information relevant to regulatory takings:
Complete index and listing of threatened and endangered species (USFWS): https://ecos.fws.gov/tess_public/TESSWebpage
Endangered Species Act, 16 U.S.C. Sections 1531 - 1544: http://endangered.fws.gov/esaall.pdf
"Tools for Private Landowners" with endangered species on their property (USFWS): http://endangered.fws.gov/landowner/index.html
This web site is for informational purposes only. Nothing herein is intended or should be construed as legal advice or a legal opinion applicable to any particular set of facts or to any individual's specific circumstances.