Regulatory Taking - Political Significance

Political Significance

The opening gun in the current fight over effects of stringent regulation of private property in America was fired in 1973 when the Council on Environmental Quality came out in favor of the British approach of viewing the right to develop land as a public rather than private right. To that end its proponents argued that there should be no such thing as a regulatory taking, and the owners of land subjected to confiscatory regulations should only be able to get a judicial declaration that the regulation is invalid. The owners' response has been that this is no remedy because it can take many years to get relief from the courts, and even when land owners win in court they remain uncompensated for potentially huge losses incurred during the legal battle, such as loss of the property by foreclosure. This doctrinal confrontation raged until 1987 when the U.S. Supreme Court decided First English Evangelical Lutheran Church v. County of Los Angeles, in which it held that a taking of property was no less a taking when it was effected by non-physical means; i.e., by regulations that denied land owners use of their property, even when it did so on a temporary basis. Thus, whether physical or regulatory, a taking requires the payment of just compensation to the owner of the taken property.

The always controversial concept of regulatory taking has drawn much attention in more recent years, as legislation - some by ballot initiative - restricting land use regulations has been promoted in western states. The best known example was Oregon's adoption of law severely restricting the government's property regulation powers, and requiring compensation for diminution in value of the regulated property. In a few other states, legislatures adopted similar laws, a prominent example being Florida's Bert Harris Property Protection Act.