John Duff, J.D., LL.M.
 

In part, the Fifth Amendment of the United States Constitution states "nor shall private property be taken for public use without just compensation." This provision has come to be known as the "takings clause." Over the course of the nation's history, the clause has been used by private property owners to demand compensation when a government authority "takes" private property away by either physically occupying it or by imposing such an onerous regulatory burden as to deny the owner of all economically viable use of the property.

Coastal Property Serves as Fertile Ground for Takings Claims

With the ever increasing shift in population to the coast for residential, business, and recreational purposes, and the desire of states and municipalities to protect coastal areas and their inhabitants from environmentally detrimental development, conflicts between property owners and regulatory authorities have risen steadily. Over the course of the last dozen years, the Supreme Court's 'takings' jurisprudence has evolved, for the most part, in a series of cases involving beachfront or coastal property.

In Nollan v. California Coastal Commission (1987), the Supreme Court reviewed a California case where the oceanfront property-owning Nollan family was being called upon to dedicate a lateral public easement across their property in exchange for a permit to build a larger beachhouse. The Court likened the sought-after exchange to an extortionate tactic and ruled that such an easement would constitute a 'taking' of private property, since the state's willingness to allow a larger beach-house obviated any claim that the denial of a permit was related to any legitimate state interest.

In Lucas v. South Carolina Coastal Commission (1992), the Supreme Court ruled that all private property is encumbered with some "background" governmental interests that allow a federal, state, and/or municipal authority to impose certain regulatory restrictions. The Court held that "[w]hen, however, a regulation that declares 'off limits' all economically productive or beneficial use of land goes beyond what the background principles would dictate, compensation must be paid to sustain it."

In the non-coastal takings case of Dolan v. City of Tigard (1994), the Supreme Court expanded upon its ruling in Nollan and ruled that in a circumstance where a governmental authority sought land use exactions in exchange for a land use permit, the governmental authority must show a "rough proportionality" between the exactions sought and the "nature and extent" of the proposed development's impact.

In the latest takings decision, Del Monte Dunes (1999) (see this issue, page 1), the Supreme Court noted that the "rough-proportionality test" used in Dolan should not be used in circumstances beyond those addressing exactions cases.
 

University of Mississippi