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DECEMBER 2002
"The imprecision of our regulatory takings doctrine
does open the door to normative considerations about the wisdom
of government decisions. [citing Agins] This sort of
analysis is in uneasy tension with our basic understanding
of the Takings Clause, which has not been understood to be
a substantive or absolute limit on the government's power
to act."
Eastern Enterprises v. Apfel, 524 U.S. 498, 545 (1998)
(Kennedy, J., concurring in the judgment and dissenting in
part).
NOVEMBER 2002
"[T]here are a number of state courts that do not completely
agree about the proper application of Nollan and Dolan
-- due in no small part to the misinformation so often presented
to them by opponents of municipal regulation." Amicus
Brief of National Association of Home Builders, Town of
Flower Mound v. Stafford Ltd. Prtnrshp. (Tex. Oct. 31,
2002).
Ed. Note: Perhaps NAHB meant to say "proponents"
rather than "opponents," but on the other hand perhaps
it's a quantum leap in self-recognition.
OCTOBER 2002
In this case, the restrictions that background principles
of Washington law place upon such ownership are found in the
public trust doctrine. * * * Relevant here, the jus publicum,
or public trust doctrine, is the right of navigation, together
with its incidental rights of fishing, boating, swimming,
water skiing, and other related recreational purposes generally
regarded as corollary to the right of navigation and the use
of public waters. Esplanade Properties, LLC v. City of
Seattle, 2002 WL 31190846 (9th Cir., Oct. 3, 2002) (denying
a per se takings claim under Lucas because the public trust
doctrine acted as a background principle) (citation and internal
quotes omitted).
SEPTEMBER 2002
A government ought to contain in itself every power requisite
to the full accomplishment of the objects committed to its
care, and to the complete execution of the trusts for which
it is responsible, free from every other control but a regard
to the public good and to the sense of the people.
The Federalist No 31, at 194 (Clinton Rossiter ed. 1961)
AUGUST 2002
It seems to us that the property owner necessarily expects
the uses of his property to be restricted, from time to time,
by various measures newly enacted by the State in legitimate
exercise of its police powers.
Lucas v. South Carolina Coastal Council, 505 U.S.
1003, 1027 (1992).
JULY 2002
Under our system of government, one of the State's primary
ways of preserving the public weal is restricting the uses
individuals can make of their property. While each of us is
burdened somewhat by such restrictions, we, in turn, benefit
greatly from the restrictions that are placed on others. These
restrictions are properly treated as part of the burden of
common citizenship . . . . [T]he Takings Clause did not transform
that principle to one that requires compensation whenever
the State asserts its power to enforce it.
Keystone Bituminous Coal Assn. v. DeBenedictis, 480
U.S. 470, 491-92 (1987), quoted in Machipongo Land &
Coal Co. v. Commonwealth of Pennsylvania, 799 A.2d 751
(2002).
JUNE 2002
The government is not required to pay Property Owners to
refrain from taking action on their land that would have the
effect of polluting public waters. Indeed, despite our conviction
that private property rights are to be strongly protected,
we are struck by the impropriety of taking action that would
require the General Assembly to pay someone not to pollute
public water or destroy public fisheries.
Machipongo Land & Coal Co. v. Commonwealth, 2002
WL 1071013 (Pa. May 30, 2002)
MAY 2002
The true friend of property, the true conservative, is he
who insists that property shall be the servant and not the
master of the commonwealth; who insists that the creature
of man's making shall be the servant and not the master of
the man who made it. * * * [E]very man holds his property
subject to the general right of the community to regulate
its use to whatever degree the public welfare may require
it.
Theodore Roosevelt, The New Nationalism, Speech at Osawatomie,
Kansas (August 31, 1910)
APRIL 2002
The interest in facilitating informed decisionmaking by regulatory
agencies counsels against adopting a per se rule *
* *. Otherwise, the financial constraints of compensating
property owners during a moratorium may force officials to
rush through the planning process or to abandon the practice
altogether. To the extent that communities are forced to abandon
using moratoria, landowners will have incentives to develop
their property quickly before a comprehensive plan can be
enacted, thereby fostering inefficient and ill-conceived growth.
Justice Stevens's 6-3 Majority Opinion in Tahoe-Sierra
March
2002
"Private Property * * * 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 * * *."
Benjamin Franklin, Queries and Remarks Respecting Alterations
in the Constitution of Pennsylvania (1789), in 10 The Writing
of Benjamin Franklin 54, 59 (Albert H. Smyth ed., 1970).
February 2002
“If I am correct in suggesting that the current Court intends to play a restrained role in the property area, how is Justice Scalia's aggressive opinion in Lucas to be understood? The case is not as far reaching as its rhetoric suggests. It does not protect all who suffer a complete loss in their property's value, for the categorical 100 percent diminution rule itself is sharply limited. Regulation that would be sustained under established common law "principles" of nuisance and property law is not affected. Presumably, states will have substantial latitude in determining the extent to which their existing legal principles limit property rights. ”
Joseph L. Sax, Property Rights and the Economy of Nature: Understanding Lucas v. South Carolina Coastal Council, 45 Stan. L. Rev. 1433, 1437 (1993)
January 2002
“The temptation to adopt what amount to per se rules in either direction must be resisted.”
Justice O'Connor, concurring in Palazzolo v. Rhode Island,
121 S. Ct. 2448, 2466 (2001)
To read Quote of the Month from our 2001 issues, click
here.
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