TAKINGS LOCALISM - Columbia Law Review

Conflicts over “sanctuary” cities, minimum wage laws, and gender-neutral bathrooms have brought the problematic landscape of contemporary state preemption of local governance to national attention. This Article contends that more covert, although equally robust, state interference can be found in property, with significant consequences for our understanding of takings law.

Takings jurisprudence looks to the states to mediate most tensions between individual property rights and community needs, as the takings federalism literature recognizes. Takings challenges, however, often involve local governments. If the doctrine privileges the democratic process to resolve most takings claims, then, that critical process is a largely local one.

Despite the centrality of local democracy to takings, state legislatures have restricted local authority on property issues in a range of ways. States have expanded compensatory liability for owners facing local regulations, imposed procedural constraints on local authority, and limited the exercise of foundational local powers. Seen in its entirety, this state intervention—like contemporary “new preemption”—is acontextual and unduly rigid, cutting at the heart of the devolutionary principles underlying takings jurisprudence.

This unbalanced state role requires a recalibration of decisionmaking power between state and local government to foster intersystemic dialogue and reflection. States certainly play a crucial role in defining and protecting property interests, but they must justify choices to constrain local discretion when state and local values conflict. The extant state statutory regime dispenses with this justificatory task via a formalistic disregard for the contextualization that legitimates vertical allocations of authority. A corrective to decades of imbalance in state ordering of local authority would thus properly recognize “takings localism.”

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* Albert A. Walsh Chair in Real Estate, Land Use and Property Law, Fordham Law School.

** Professor of Law and Associate Dean for Faculty Research, Texas A&M School of Law.

The authors benefitted from the opportunity to present this project at Boston University School of Law, Cornell Law School, Syracuse University College of Law, and the University of Virginia School of Law. For their particularly helpful feedback, the authors thank John Echeverria, Lee Fennell, Vanessa Casado Pérez, Christopher Serkin, Joseph Singer, Kenneth Stahl, and Laura Underkuffler. The authors also thank Shivangi Bhatia, Anna Gregg, Charlie Metzger, Ryan Moore, Munis Safajou, and Cole F. Watson for their research assistance.

Introduction

Takings jurisprudence defines when just compensation to those impacted by changes in property law is constitutionally required. 1 The Takings Clause of the United States Constitution states: “[N]or shall private property be taken for public use, without just compensation.” U.S. Const. amend. V. The case law, by and large, leaves many challenging questions of the balance between individual property rights and community imperatives to be resolved through the democratic process within the states. This doctrinal reality has generated a growing debate on takings federalism. Some scholars decry the lack of national uniformity and the seeming absence of robust protection for property that this devolution entails. 2 See, e.g., Michael M. Berger, What’s Federalism Got to Do with Regulatory Takings?, 8 Brigham-Kanner Prop. Rts. Conf. J. 9, 9–14 (2019) [hereinafter Berger, What’s Federalism] (arguing for a “system of uniformly applied standards” to ensure a “federal baseline of constitutional protection” from state and local regulations restricting the uses of property); Ilya Somin, Federalism and Property Rights, 2011 U. Chi. Legal Forum 53, 71–76 [hereinafter Somin, Federalism and Property Rights] (arguing that “rational political ignorance and irrationality” influence local land-use policy by reducing the quality of government decisionmaking and the ability to monitor abuses). Others, by contrast, underscore the value of evaluating property transitions with greater regard for the states’ traditional centrality in defining property interests. 3 See, e.g., Stewart E. Sterk, The Federalist Dimension of Regulatory Takings Jurisprudence, 114 Yale L.J. 203, 205–06 (2004) [hereinafter Sterk, Federalist Dimension] (positing that the Supreme Court need not use its takings jurisprudence to articulate a comprehensive theory of regulatory power because any constitutional takings standard must incorporate the background principles of each individual state’s property laws).

This debate obscures the fact that the conflicts that give rise to takings claims far more often than not are local in nature. 4 See infra section I.B. Indeed, many iconic takings cases involve local governments. 5 Notable takings cases have certainly involved the states. See, e.g., Stop the Beach Renourishment, Inc. v. Fla. Dep’t of Env’t Prot., 560 U.S. 702, 709–11 (2010) (Florida beach restoration program); Lingle v. Chevron U.S.A. Inc., 544 U.S. 528, 533 (2005) (Hawaii commercial rent control); Palazzolo v. Rhode Island, 533 U.S. 606, 614–15 (2001) (Rhode Island Coastal Resources Management Council decision); Lucas v. S.C. Coastal Council, 505 U.S. 1003, 1007–09 (1992) (South Carolina Coastal Council decision); Pa. Coal Co. v. Mahon, 260 U.S. 393, 404–05 (1922) (Pennsylvania statute). For additional cases, see infra note 69. The federal government generates its share of cases that shape takings doctrine as well. See, e.g., Horne v. Dep’t of Agric., 569 U.S. 513, 516–19 (2013) (USDA raisin program); Ark. Game & Fish Comm’n v. United States, 568 U.S. 23, 26–28 (2012) (federal flood control); Kirby Forest Indus., Inc. v. United States, 467 U.S. 1, 3–7 (1984) (condemnation for a national preserve); Armstrong v. United States, 364 U.S. 40, 41 (1960) (federal contracting). But in the sweep of takings jurisprudence, local governments have consistently been front and center. See infra section I.B. This is true in discerning the boundaries of public use for eminent domain, 6 See, e.g., Kelo v. City of New London, 545 U.S. 469, 472–75 (2005) (eminent domain for local economic development); Berman v. Parker, 348 U.S. 26, 28–30 (1954) (eminent domain for urban renewal). in evaluating the constitutional limits of exactions, 7 See, e.g., Dolan v. City of Tigard, 512 U.S. 374, 377–80 (1994) (local government flood prevention and transportation schemes). The term “exactions” describes “certain conditions that are attached to land-use permits issued at the government’s discretion” that “ostensibly oblige property owners to internalize the costs of the expected infrastructural, environmental, and social harms resulting from development.” Timothy M. Mulvaney, Legislative Exactions and Progressive Property, 40 Harv. Env’t L. Rev. 137, 137–38 (2016). and across the heartland of regulatory takings. 8 See Penn Cent. Transp. Co. v. New York City, 438 U.S. 104, 123–38 (1978) (setting the modern framework for regulatory takings in a case challenging New York City’s historic preservation law). And, of course, the leading case on defining the relevant parcel for regulatory takings is a local government case. See Murr v. Wisconsin, 137 S. Ct. 1933, 1939–40 (2017) (county-level lot-merger rules). And data on takings cases in the lower courts underscore the centrality of local governments to takings jurisprudence. 9 See generally James E. Krier & Stewart E. Sterk, An Empirical Study of Implicit Takings, 58 Wm. & Mary L. Rev. 35 (2016) (analyzing all lower court takings decisions between 1978 and 2012 and finding that the overwhelming majority involved local governments). For additional detail, see infra note 108.

Although local democracy stands at the center of takings jurisprudence, state legislatures have played a remarkably active role in structuring local power over property. This state legislative oversight has come in a variety of forms. Some state statutes make it easier for owners to obtain compensation when they face local regulations, by lowering the liability threshold below what case law sets or by limiting governmental defenses in takings cases. 10 See infra section II.A. Other state statutes impose significant procedural burdens on local governments, such as takings impact assessment requirements and individualized negotiation mandates, designed to discourage the adoption of local regulations. 11 See infra section II.B. Still other statutes constrain outright specific local-government powers in the realms of eminent domain, tenant protections, environmental preservation, and beyond. 12 See infra section II.C. A fourth category of statutes empowers owners to resist the exercise of local government authority in areas such as historic preservation and land-use permitting. 13 See infra section II.D.

Assessments of property rights statutes have long been a staple of the literature. 14 On compensation statutes, see, e.g., Mark W. Cordes, Leapfrogging the Constitution: The Rise of State Takings Legislation, 24 Ecology L.Q. 187, 212–20 (1997) (examining Texas and Florida compensation statutes); John D. Echeverria & Thekla Hansen-Young, The Track Record on Takings Legislation: Lessons from Democracy’s Laboratories, 28 Stan. Env’t L.J. 439, 447–99 (2009) (discussing Florida and Oregon property rights legislation); Robert H. Freilich & RoxAnne Doyle, Takings Legislation: Misguided and Dangerous, 46 Land Use L. & Zoning Dig. 3, 3–4 (1994) (discussing opposition to takings legislation, including criticism of its potential fiscal impact and bureaucratic costs); Nancie G. Marzulla, State Private Property Rights Initiatives as a Response to “Environmental Takings”, 46 S.C. L. Rev. 613, 635–38 (1995) (discussing how compensation bills are a form of property rights protection); Glenn P. Sugameli, Takings Bills Threaten Private Property, People, and the Environment, 8 Fordham Env’t L.J. 521, 567–87 (1997) (arguing that compensation bills would harm property rights by undermining “environmental, conservation and other laws that prevent harms to . . . private property, health, and natural resources”). On eminent domain reform, see, e.g., James W. Ely, Jr., Post-Kelo Reform: Is the Glass Half Full or Half Empty?, 17 Sup. Ct. Econ. Rev. 127, 133–48 (2009) (reviewing states’ legislative and judicial efforts to reform eminent domain); Harvey M. Jacobs & Ellen M. Bassett, All Sound, No Fury? The Impacts of State-Based Kelo Laws, 63 Plan. & Env’t L. 3, 6–8 (2011) (outlining the impact of eminent domain reform legislation on land-use planning); Marc Mihaly & Turner Smith, Kelo’s Trail: A Survey of State and Federal Legislative and Judicial Activity Five Years Later, 38 Ecology L.Q. 703, 726–27 (2011) (summarizing general trends in legislation relating to eminent domain); Andrew P. Morriss, Symbol or Substance? An Empirical Assessment of State Responses to Kelo, 17 Sup. Ct. Econ. Rev. 237, 270–76 (2009) (examining various reasons why states adopted eminent domain reform legislation through regression analysis); Ilya Somin, The Limits of Backlash: Assessing the Political Response to Kelo, 93 Minn. L. Rev. 2100, 2114 (2009) [hereinafter Somin, Political Response to Kelo] (challenging the claim that the state legislation enacted to limit the power of eminent domain in Kelo’s immediate wake largely serves the same end as a judicial bar on the use of eminent domain for economic development purposes). Scholars, however, have not framed the full range and depth of this state ordering of local authority in core areas of takings jurisprudence as a fundamental question of state–local relations. 15 Some scholars, to be sure, have fruitfully differentiated between states and local governments in takings law. See, e.g., Carol M. Rose, What Federalism Tells Us About Takings Jurisprudence, 54 UCLA L. Rev. 1681, 1693–701 (2007) [Rose, What Federalism Tells Us] (criticizing takings doctrine for failing to account for the distinct competencies of the various levels of government); Christopher Serkin, Big Differences for Small Governments: Local Governments and the Takings Clause, 81 N.Y.U. L. Rev. 1624, 1680–85 (2006) [hereinafter Serkin, Big Differences] (proposing a reduction in takings compensation awards leveled against local governments to account for their general risk aversion on fiscal issues); Christopher Serkin, Local Property Law: Adjusting the Scale of Property Protection, 107 Colum. L. Rev. 883, 905–08 (2007) [hereinafter Serkin, Local Property] (proposing that local governments generally should be allowed to determine the level of property protection they want to afford within their boundaries); see also William A. Fischel, The Homevoter Hypothesis: How Home Values Influence Local Government Taxation, School Finance, and Land-Use Policies 4–5 (2005) [hereinafter Fischel, Homevoter Hypothesis] (contending that, given the incentives that arise from the concentration of investments in their homes, homeowners have more influence on the efficiency of local governments than they do on that of state or federal governments); William A. Fischel, Regulatory Takings: Law, Economics, and Politics 328–29 (1995) (arguing that local governments are more responsive to fiscal pressures than higher levels of government, and therefore, efficiency is best served by subjecting local governments to a more stringent level of takings scrutiny than their state and federal counterparts). This literature, however, has not focused on the broad ways in which property rights statutes have reordered the vertical allocation of authority within the states. Understanding property rights statutes as state preemption highlights the connection between this state legislation and the rise of a broad and contentious contemporary wave of state intervention that is similarly sweeping. 16 The literature on takings federalism attends as well to the horizontal distribution of decisionmaking power within the judiciary. Indeed, discerning which court system should resolve takings cases—a question that implicates the relative competency and theoretical comparable costs and benefits of state or federal venues for the resolution of constitutional-property questions, as well as the relationship between courts and states—has long been the primary focus of the discourse. See, e.g., David A. Dana, Not Just a Procedural Case: The Substantive Implications of Knick for State Property Law and Federal Takings Doctrine, 47 Fordham Urb. L.J. 591, 593 (2020) [hereinafter Dana, Implications of Knick] (observing that the Supreme Court’s recent overturning of Williamson County Regional Planning Commission v. Hamilton Bank of Johnson City, 473 U.S. 172 (1985), in Knick v. Township of Scott, 139 S. Ct. 2162 (2019), may be an “impediment to the productive adaption of state property law to . . . climate change”); Daniel L. Siegel, Why We Will Probably Never See a Judicial Takings Doctrine, 35 Vt. L. Rev. 459, 459–62, 465–67 (2010) (arguing that the Supreme Court is unlikely to create a judicial takings doctrine because doing so would ignore state sovereignty and disregard common law). This vein of the literature, again, does not focus on the vertical distribution of decisionmaking power over takings within the states.

Over the past decade, state preemption of local authority has morphed from its traditional focus on justifiably advancing state regulatory standards and policing significant interlocal conflicts as specific contexts dictate, to the alarm of many state and local government legal scholars. 17 See, e.g., Richard Briffault, The Challenge of the New Preemption, 70 Stan. L. Rev. 1995, 1999–2008, 2017–25 (2018) [hereinafter Briffault, Challenge of New Preemption] (analyzing the spread of a new, more punitive form of state preemption of local government action and legal doctrines available to challenge it); Nestor M. Davidson, The Dilemma of Localism in an Era of Polarization, 128 Yale L.J. 954, 984–1000 (2019) [hereinafter Davidson, Dilemma of Localism] (advocating, in the pursuit of equity, for a greater focus on the normative dimensions of localism); Erin Adele Scharff, Hyper Preemption: A Reordering of the State–Local Relationship?, 106 Geo. L.J. 1469, 1504–07 (2018) (arguing that “hyper preemption” statutes undermine local government action more than traditional preemption statutes); Richard C. Schragger, The Attack on American Cities, 96 Tex. L. Rev. 1163, 1184–88 (2018) [hereinafter Schragger, The Attack on American Cities] (asserting that current state–city conflicts represent a larger trend of state aggrandizement and hostility toward local power). Today, states often do little to justify preemption that has become increasingly expansive, targeted, polarized, and even punitive. Examples of what Professor Richard Briffault has labeled the “new preemption” 18 Briffault, Challenge of New Preemption, supra note 17, at 1997 (defining new preemption as “sweeping state laws that clearly, intentionally, extensively, and at times punitively bar local efforts to address a host of local problems”). range across almost every area of local authority, from employee protections to public health to housing to civil rights. 19 See generally Richard Briffault, Nestor M. Davidson & Laurie Reynolds, The New Preemption Reader: Legislation, Cases, and Commentary on the Leading Challenge
in Today’s State and Local Government Law (2019) (collecting statutes, cases, and commentary on the new preemption). This has amounted to a fundamental reordering of the state–local legal relationship, generating calls for reform to protect against instances where states are unjustifiably undermining local democracy. 20 See infra section III.A.

The new preemption and burgeoning responses to concerns with unjustified state interference are instructive for evaluating state constraints on local authority in the areas of property law most germane to takings. 21 This Article focuses on the Takings Clause, but it bears acknowledging that constitutional property also involves claims arising under the Due Process Clause, the Equal Protection Clause, and other federal and state constitutional provisions. Takings jurisprudence guides changes in property law in ways that maintain property’s character as a healthy, fair, and just democratic institution. The formalist rigidity and undue uniformity imposed by state preemption make it difficult for takings law to serve this vital role. The current allocation of authority within the states, in short, fails to honor the deference and respect for local democracy so evident within the core of takings jurisprudence. 22 Takings is not the only mechanism within property law that strikes a balance between individual rights and community needs, of course. It is, however, a particularly salient and critical proving ground for that balance, with influence in property discourse that merits sustained focus.

In the face of this imbalance, this Article proposes a context-sensitive framework for rebalancing the vertical distribution of decisionmaking power within the states. Local governments are where the costs and benefits of property regulation are felt most immediately, making the local democratic process particularly apt for evaluating tradeoffs at the heart of takings law; moreover, local governments are well suited to respond to local preferences and innovate in the face of changing conditions. 23 See infra section III.B. At the same time, local governments can be parochial and exclusionary, and the immobility of property creates special vulnerabilities for owners in the local political economy. State interventions more directly targeted at those specific pathologies, however, may be preferable to approaches that broadly undermine important aspects of local democracy. 24 See Davidson, Dilemma of Localism, supra note 17, at 976–78 (reviewing normative and pragmatic critiques of local authority); see also David Schleicher, Constitutional Law for NIMBYs: A Review of “Principles of Home Rule for the 21st Century” by the National League of Cities, 81 Ohio St. L.J. 883, 903–05 (2020) (critiquing a recent reform proposal for enhancing local authority).

Highlighting these and related characteristics of local governments is not to advocate, in some dispositive and general fashion, the preeminence of local decisionmaking over the states on the myriad property issues that animate takings law. Rather, these characteristics demonstrate the value of a more contextualized analysis that the rigid takings-related state statutes largely preclude.

This Article proceeds as follows. Part I explains the dynamics of federalism at the heart of contemporary takings jurisprudence and the under-appreciated centrality of local governance within those dynamics. Part II turns to cataloguing the many ways that state legislatures have structured local authority in constitutional property—a comprehensive analysis of property rights legislation as state preemption absent in the current literature. Finally, Part III links this state ordering of local authority to the rise of new preemption and normative concerns the phenomenon has engendered in the discourse on state and local government law. This Article accordingly concludes with a call for a recalibration that would give greater recognition—again, within the wide margins set by the jurisprudence—to the important role that local governance plays in takings law. This “takings localism” has the potential to deepen our understanding of the intersection between local authority and the construction of constitutional property at a moment when the most fundamental questions about that intersection are increasingly fraught.