The Latest Take on Background Principles and the States' Law of Property after Lucas and Palazzolo

36 Pages Posted: 8 Jan 2005

Abstract

When the United States Supreme Court issued Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992), it held that government agencies could not escape liability for a regulatory taking when they prevented economically viable uses of property - unless those uses were already restricted by background principles, such as the law of nuisance. Since Lucas was issued, a number of government agencies have argued for an expansive reading of background principles so that they would include all manner of newly enacted regulatory proscriptions on the use of property. Fortunately for landowners, the Court rejected this so-called notice rule in Palazzolo v. Rhode Island, 533 U.S. 606 (2001). This article, written by the attorney who argued Palazzolo, addresses what the term background principles really means in light of Lucas and Palazzolo. The author also discusses other attempts to alter background principles through overly expansive interpretations of the public trust doctrine and the law of custom.

Keywords: Palazzolo, Lucas, economically viable use, background principles, regulatory takings, notice rule

JEL Classification: K11

Suggested Citation

Burling, James S., The Latest Take on Background Principles and the States' Law of Property after Lucas and Palazzolo. Available at SSRN: https://ssrn.com/abstract=644442

James S. Burling (Contact Author)

Pacific Legal Foundation ( email )

907 G. Street
Sacramento, CA 95814
United States
916-419-7111 (Phone)
916-419-7747 (Fax)

HOME PAGE: http://www.pacificlegal.org

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