The Takings Issue: Constitutional Limits on Land Use Control and Environmental Regulation, by Robert Meltz, Dwight H. Merriam, and Richard M. Frank, 1999, $60, Island Press

Reviewed by Timothy J. Dowling

Writing a truly balanced and objective treatment of a highly charged issue like regulatory takings is a Herculean task. Advocates for one side or the other (or both) almost inevitably will complain that their perspective is not adequately reflected in the balance.

In The Takings Issue -- a book-length survey of the law that governs inverse condemnations -- the authors make a valiant effort to strike the right balance, and in some respects they succeed. Robert Meltz, Dwight Merriam, and Richard Frank reflect a cross-section of perspectives from the non-partisan Congressional Research Service, private practice, and the California Department of Justice. To their credit, they address takings issues from A to Z, from airports to zoning and much in between. No other takings book on the market covers so much ground in such a clear and readable fashion.

But municipal attorneys should be aware that at times The Takings Issue fails to achieve the promised balance.

Any impartial treatment of takings case law needs to explain the competing concerns of the property owner and the community at large. The Takings Issue, however, too often ignores the public interest. For example, in analyzing Lucas v . South Carolina Coastal Council (1992), the authors tell us only that South Carolina prohibited Mr. Lucas from building two oceanfront homes. There is no mention that the challenged statute is expressly designed to protect lives and property by preserving the critical sand dunes that serve as barriers against hurricanes and other ocean storms. The discussion of other significant cases is similarly one-sided. Although the courts sometimes improperly overlook the public interest in takings cases, one reasonably expects some recognition of the community's concerns in a book that purports to be balanced, even where those concerns are not directly relevant to the precise legal question before the court.

The book's lack of balance is particularly striking in its treatment of ripeness, one of the most important procedural defenses available to local government attorneys in takings suits. The authors virtually ignore MacDonald, Sommer & Frates v. County of Yolo (1986), a must-read opinion for any municipal lawyer raising a ripeness defense in a takings case. Perhaps most disturbing of all, the book could be misread as an endorsement of federal legislation proposed by the National Association of Home Builders, which would dramatically revise ripeness and abstention requirements to make it easier for developers to sue local communities in federal court far earlier in the land use planning process. Opposition by the International Municipal Lawyers Association and others helped kill the bill last yea r, but the Home Builders are back and their bill has been reintroduced (H.R. 2372 / S. 1028). Unfortunately, the authors examine the bill as a part of a proposed "middle" position for legislative reform, a discussion that could mislead the reader into believing that the authors support the legislation.

The book's analysis of several substantive takings issues is also problematic. The chapter on defenses to claims under Lucas gives inadequate attention to the many lower court rulings that have used pre-existing statutes and other "background principles" to deny takings claims. In discussing government-compelled dedications and other exactions, the authors characterize the ruling in Dolan v. City of Tigard (1984) as both "doctrinally cautious" and "truly revolutionary," with no effort to reconcile these disparate conclusions. The recent decision in City of Monterey v. Del Monte Dunes at Monterey, Ltd.. (1999) reaffirms that Dolan's "rough proportionality" standard is limited to dedications and shows that Dolan launched no revolution.

The Takings Issue concludes by calling on the U.S. Supreme Court to address a long laundry list of takings issues, a proposal that might well cause local officials to cringe. The High Court has ruled for the property owner in most takings cases this decade, and although these rulings have been narrow, review on the scale suggested by the authors could risk the further undermining of community protections. As the authors themselves seem to recognize, there is no reason to believe that additional rulings from this fracture d Court would enhance jurisprudential clarity.

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