Takings Clause reach expands to limit land use and zoning regulation

By Frank Johnson
Deputy City Attorney, City of Gaithersburg

The ability to control land use and zoning is a critical authority of state and local government, in Maryland and otherwise. The MSBA State and Local Government Law section, prior to its May 26 annual business meeting, hosted a presentation about the impact of the Fifth Amendment’s Takings Clause on land use regulation, and
in partnership with the Administrative Law Section hosted a panel discussion at the MSBA Summit on June 10 on the impact of the Religious Land Use and Institutionalized Persons Act.

The May 26 presentation was by Matt Littleton, a partner with Donahue, Goldberg, Weaver & Littleton in the District of Columbia, who has represented numerous state and local governments confronted with Fifth Amendment Takings claims, including before the U.S. Supreme Court. (Before that, he worked on similar cases for the U.S. Department of Justice.) He spoke on the historical background of the Takings Clause as well as current trends in takings litigation, and how the Supreme Court’s added emphasis to the reach of the clause could have a significant impact, limiting regulatory authority overall, and certainly restricting the reach of county and municipal land use regulations.

Matt pointed out that the clause didn’t start as a major restriction on government authority. It was added at the end of the 5th Amendment at urging of James Madison, and simply says “nor shall private property be taken for private use, without just compensation.” Matt said that while the idea of compensation for use of private land was included in the Magna Carta, the phrase wasn’t reflected in state constitutions at the time (and indeed, wasn’t added until 1967 to Maryland’s Constitution, where it appears at Article III, Sec. 40).

He also noted that in the early cases, such as Barron v. Baltimore in 1833, the Supreme
Court found the clause only applied to the federal government, not states, and didn’t even allow federal takings within states – only territories or the District of Columbia. Matt explained that in time, that changed, as decisions after the Civil War held federal takings could take place in states, and also expanded the Bill of Rights to states.

Even so, the general thrust of court decisions was that reasonable regulation affecting private property was not subject to a takings claim or “just compensation.” Matt’s main emphasis was that this is now changing, and more regulations are now subject to a takings analysis. Thus, some recent decisions by the Roberts court, such as Koontz in 2013, have extended the reach of the clause to include requirements to pay funds or a fee, such as taxes, and the Chief Justice has, in other decisions (and dissents), asserted the vitality of the clause.

Matt’s conclusion was that, with the Supreme Court’s new conservative majority, it’s quite likely the reach of the takings clause will be extended. It’s even possible the clause will be analyzed not under the traditional takings analysis but the “privileges and immunities” clause, which could have a broad impact without requiring past decisions that many believe were too government-friendly, such as Penn Central in 1978, to be overruled.

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