Real Estate & Property Law

Eagle On Regulatory Takings (4th ed. 2009)

By Robert Thomas (inversecondemnation.com)

I just received my copy of the latest edition of Professor Steven J. Eagle's definitive treatise Regulatory Takings (Lexis/Nexis, 4th ed. Dec. 2009).

Like the earlier editions, this is a must-have for every land use and property law attorney's back bookshelf.

Chapters include "Property Rights and Their Sources," "The Ascendancy of Land Use Regulation," "Analytical Issues in Regulatory Takings Litigation," and "Regulatory Takings Remedies."

The book is available here (oddly, the Lexis-Nexis web site only has the 3d edition for purchase, but I expect that to be remedied shortly).

From the preface to the fourth edition:

This book is about "regulatory takings," which is a relatively new term, but not an entirely new idea. The underlying concept is stated simply -- government may "regulate" private property, but not to the extent that it constitutes a "taking," under the United States Constitution, or a state constitution. Owners need not be compensated for losses resulting from regulations, but are entitled to just compensation for losses resulting from takings.

During recent decades the term "regulatory taking" has been used in over 2,500 federal and state legal cases, and in almost 7,500 legal commentaries. The concept also has generated considerable interest in the popular press. This culminated in the immense volume and intensity of reaction to the the United States Supreme Court's 2005 decision in Kelo v. City of New London, which permits as a "public use" the condemnation by local government of unblighted homes for retransfer to private redevelopers for urban revitalization projects.

...

Since the first edition of this book was published in 1996, numerous cases have attempted, without conspicuous success, to define the term "regulatory takings." The U.S. Supreme Court has affirmed that localities must pay compensation when regulatory actions overreach, and that changes in statutes and regulations do not automatically modify the rights of property owners and their successors. The Court also has indicated that government physical incursions are to be treated differently from regulatory contraints. It has not, however, provided any general theory by which the boundaries of the principal attributes of ownership -- the rights of exclusion of others, use, and transfer to successor owners, are to be delineated.

I have the honor of counting Professor Eagle as a colleague, as he is my immediate past predecessor as the Chair of the Condemnation Committee of the ABA's Section of State and Local Government Law.

Full post as published by inversecondemnation on January 24, 2010 (boomark / email).