The Urban Lawyer, the law review produced by the ABA Section of State & Local Goverment Law has published my article Recent Developments in Regulatory Takings, 45 Urban Lawyer 769 (2013).
Here's the Introduction to the article:
THE SUPREME COURT’S 2012 TERM promised to be a banner year in regulatory takings law, with no less than three cases on the Court’s docket. In Arkansas Game and Fish Commission v. United States, a case involving a takings claim against the federal government for compensation resulting from a flood, the Court held that flooding need not be "permanent" in order to result in liability, and reinforced the principle that categorical takings are not favored, and stated that the default analysis is the multi-factored Penn Central test. In Koontz v. St. Johns River Water Management District, the Court held that monetary development exactions fall within the reach of the takings clause and "must satisfy the nexus and rough proportionality requirements of Nollan and Dolan." In Horne vs. U.S. Dep’t of Agriculture, the unanimous Court held that raisin farmers' takings claims could be raised as an affirmative defense in an agency enforcement proceeding even where the fine had not previously been paid.In addition to the Supreme Court, other courts around the country issued consequential rulings of note. This article reviews those major regulatory takings and inverse condemnation decisions of the past year. Section II details cases about whether particular scenarios result in takings liability. Section III details what sort of property might be considered protected. Section IV details cases analyzing whether application of Penn Central results in a taking. Section V focuses on ripeness, the most frequently applied procedural dodge to takings cases. Section VI considers other decisions involving such topics as judicial takings and standing.
This volume of The Urban Lawyer contains this and other articles with updates on environmental law, Public Use (an article co-authored by my Damon Key colleagues Mark Murakami and Bethany Ace, which we will post soon), land use and zoning, and municipal bond financing. For those of you who are SLG Section members, your copy is undoubtedly in the mail, and the pdf version of this and the other articles will soon be available on the Section's web site. For those of you who are not Section members you get a freebie, at least of this article.
If you are not a member of our Section, you really should consider joining us since one of the benefits included with membership is a subscription to The Urban Lawyer, the premiere law review dealing with state and municipal law, which includes our favorite topics land use, eminent domain, and takings. The subscription to the journal alone is worth the membership cost.
Download the article here.
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