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From Railroads To Sand Dunes: An Examination Of The Offsetting Doctrine In Partial Takings, Louis M. Russo

Fordham Law Review

Called “shadowy at best,” the offsetting doctrine in partial takings has confused “even trained legal minds” and generated inconsistent decision after inconsistent decision. The offsetting doctrine allows certain benefits, termed special, to offset condemnation awards, while general benefits may not be offset. Courts blindly adhere to the doctrine despite its underpinnings rooted in eighteenth-century public policy, which was based on concerns of overly speculative valuation and arguably erroneous fairness, as well as incorrect interpretations of Takings Clause jurisprudence. Such adherence dramatically increases the cost of financing a takings project.

In the face of blind adherence to the doctrine, municipalities are …

Regulatory Taking: A Contract Approach, Ross B. Lipsker, Rebecca L. Heldt

Fordham Urban Law Journal

This Article begins by defining the parameters of the fifth amendment's taking clause. The Article then reviews the various tests used in determining whether governmental action constitutes a taking, and discusses the recent Supreme Court decisions within the framework of case law as it has evolved since the Court's 1922 landmark decision, Pennsylvania Coal Co. v. Mahon. Finally, the Article suggests a formula based on well-established contract principles for analyzing the impact of land use regulation on private property interests.