Sunday, February 9, 2014

Modern land-use law and the ghosts of the Lochner era

Billy Want has posted "Economic Substantive Due Process: Considered Dead is Being Revived by a Series of Supreme Court Land Use Cases", in which he argues that the discredited constitutional doctrine of "economic substantive due process" is making a comeback in the jurisprudence of the US Supreme Court. The abstract:
File:1925 U.S. Supreme Court Justices.jpg
The US Supreme Court in 1925
This article describes how the Supreme Court, in a series of land-use cases, is resurrecting economic substantive due process, which has been presumed dead since its rejection in the 1930s for blocking legislation aimed at fighting the Great Depression. The most dramatic step in this reversion to Lochner is Koontz v. St. Johns River Water Management District, a case handed down on June 25, 2013. Koontz extended the reach of Nollan v. California Coastal Commission and Dolan v. City of Tigard, cases that expanded takings law to include the lack of sufficient connection between a property interest required for mitigation of a permitted project and the project’s adverse impacts. Those cases changed the judicial standard for reviewing permit conditions requiring the dedication of land from rational basis to the heightened takings standard, which includes the government bearing the burden of persuasion. In Koontz, the Court ruled that this takings concept was applicable to the requirement that the permit applicant expend money to compensate for the impacts of the permitted activity despite the fact that the Fifth Amendment and previous case law confine takings analysis to property interests. The practical effect of Koontz is that courts must implement substantive due process review to a vast amount of permit decisions of local, state, and federal government. This article examines the doctrines of takings, substantive due process, and unconstitutional condition to arrive at the conclusion that the takings test created by Nollan, Dolan, and Koontz revives economic substantive due process. The article recognizes the legitimacy of the desire of property rights advocates for more than rubber stamp, rational basis review of progressively more stringent land-use regulation. To that end, the article concludes by proposing alternatives that accomplish this without resurrecting economic substantive due process that is a bad doctrine now for the same reasons it was rejected in the 1930s.

1 comment:

  1. Thanks for the heads up! The topic of the paper is very intriguing, as it discusses how an old issue is being tackled today. With its in-depth comparison and thorough research, this paper would be a valuable piece of resource for further studies. Again, thanks for sharing!

    Daniel Roberson @ MarkBentleyPA