Takings and Property Rights Legislation

Abstract:     
Over the years, regulatory takings case law has supported land use regulations by cloaking them with a presumption of validity and placing a heavy burden on their challengers of proving either that the regulation fails to substantially advance a legitimate public purpose or that it deprives the owner of all economically beneficial use of the land. Insulated in this way, regulators, on occasion, have transgressed the boundaries of fundamental fairness. As we examine pending property rights proposals, and the few statutes that have been adopted at the state level, we should take seriously those progressive features that seek to promote fairness. We also should recognize and reject those retributive provisions which diverge as far from fundamental fairness as do the excessive regulations of which property rights advocates complain.

Accepted Paper Series