NCJ Number
75906
Journal
Washington and Lee Law Review Volume: 37 Issue: 4 Dated: (Fall 1980) Pages: 1057-1099
Date Published
1980
Length
43 pages
Annotation
This article reviews test cases on police power 'taking' and proposed a doctrine, based on the 5th Amendment principle of eminent domain, that defines when a land use regulation amounts to a taking of private property for public use without just compensation.
Abstract
Examination of the main currents of judicial doctrine and scholarly writings shows that there are two basic judicial tests. One holds that no exercise of the police power is a taking; the other claims that an exercise of the police power is a taking if it goes 'too far' in diminishing the regulated landowner's property rights. The Supreme Court cases on which the tests are based are being applied in spite of their inconsistency and the Supreme Court has been unwilling to abandon either doctrine or to formulate a doctrine that would bridge the gap between the two tests. Moreover, recent scholarly writings have failed to focus on the formation of a doctrine or test of police power taking that courts might apply without the enactment of new legislation. Notable deficiencies of existing theories are identified as the failure to work within constitutional principles, the failure to make police power taking theory consistent with other areas of eminent domain, and the failure to give proper place to due process. The proposed judicial test for police power taking rectifies these shortcomings. It states that a police power regulation on land use is an eminent domain taking only when its effect is specially directed toward benefiting a governmental entity in the use of land in which that entity holds incidents of ownership. Under the doctrine thus stated, not many land use regulations would amount to takings. To assure that the doctrine is not used for the detriment of private landowners, courts should give the constitutional guarantee of due process its full scope in controversies over land use regulations. Footnotes containing references are included.