Law Commons^™

Uncertainties Remain For Judicial Takings Theory, Timothy M. Mulvaney

Faculty Scholarship

The U.S. Supreme Court waded into the waters of judicial takings last summer with a divided opinion that effectively carries no precedential value but is likely to have lower courts and property scholars trying to decipher its meaning for many years to come.

In Stop the Beach Renourishment, Inc. v. Florida Department of Environment Protection, 130 S. Ct. 2592 (2010), the Court decided that some Florida gulf-front property owners are not entitled to compensation under the federal Constitution’s Takings Clause when a state beach restoration project separates their private property from the water’s edge. Although the state prevailed in this …

The Remnants Of Exaction Takings, Timothy M. Mulvaney

Faculty Scholarship

This article explores the ability of local governments to impose discretionary permit conditions, or "exactions, " to offset the burdens that new development places upon existing infrastructure and the environment. Over fifteen years ago, in Nollan v. California Coastal Commission and Dolan v. City of Tigard, a deeply divided U.S. Supreme Court ruled that the Takings Clause of the Fifth Amendment significantly restricts this governmental authority, for the clause requires the judiciary to apply a more stringent level of scrutiny in reviewing permit conditions than is accorded outright permit denials. These "regulatory takings " decisions provide land use regulators with …