Check out this recent article by lawprof Timothy Mulvaney, "Non-Enforcement Takings." We're used to situations in which government regulation results in a takings claim, but Professor Mulvaney asks about cases in which the government's inaction is argued to result in a taking.
Here's the abstract:
The non-enforcement of existing property laws is not logically separable from the issue of unfair and unjust state deprivations of property rights at which the Constitution’s Takings Clause takes aim. This Article suggests, therefore, that takings law should police allocations resulting from non-enforcement decisions on the same “fairness and justice” grounds that it polices allocations resulting from decisions to enact and enforce new regulations. Rejecting the extant majority position that state decisions not to enforce existing property laws are categorically immune from takings liability is not to advocate that persons impacted by such decisions should be automatically or even regularly entitled to the Takings Clause’s constitutional remedy. Rather, it simply suggests that courts should resist the temptation to formulaically and categorically prohibit non-enforcement takings claims in favor of assessing those claims on the merits.
We've written about one of the recent cases which the article analyzes, Harris County Flood Control District v. Kerr, 499 S.W.3d 793 (Tex. 2016). In that case, property owners brought an inverse case after their land and homes were repeatedly flooded, blaming the flood control district for approving the development of the land in the first place, even though the district spent a lot of money on flood control. The property is in a flood zone, and the district didn't require the appropriate mitigation measures when it approved development.
Initially, the Texas Supreme Court sided with the owners, reversing the lower court's summary judgment in favor of the District, and sending the case back down to give the owners a chance to prove their case. But upon further review (a motion for reconsideration by the District, supported by scads of amicus briefs from local governments), the Supreme Court had a change of heart (or, more accurately, one Justice had a change of heart and a 5-4 decision in favor of the owner turned into a 5-4 decision in favor of the government).
Professor Mulvaney's article analyzes that case, "right to farm" statutes, and one of our favorite cases, Miller v. Schoene, 276 U.S. 272 (1928) (the "cedar blight" case, where in order to save A's apple trees from the disease, Virginia chose to destroy B's cedar trees which were hosts of the disease, but not affected by it; and the Court, citing Hadacheck, held no due process violation when the state chooses who gets harmed).
Download the article on SSRN here.
