Takings Laws Under Review in Supreme Court

Author: Derived from the ABA Journal

The fifth amendment to the Constitution of the United States says that private property shall not be taken for public use without just compensation, and this fall, the U.S. Supreme Court began hearing what could become the most far-reaching land-use case of the decade.

In the case, City of Monterey v. Del Monte Dunes, the High Court will rule on whether landowners, just like civil rights plaintiffs, are entitled to a jury trial for damages when they are denied a building permit. And, if so, whether a city must prove that its decision to deny the permit was reasonable.

The case, which deals with a former industrial site located on 37 acres of coastal sand dunes, began in 1981 when the owner of the property submitted plans to build 344 homes. The city of Monterey turned down the proposal and suggested that a scaled-down development might meet approval. But after four more unsuccessful proposals over a five-year period, the property owner filed suit. That case led to a decade-long journey through the courts, with appeals on both sides eventually leading to the U.S. Supreme Court.

Case watchers say the key issue is whether courts must defer to local regulatory decisions or whether regulators must prove their restrictions are justified by the likely adverse impact of a development.

The eventual ruling could open land-use planning decisions to jury scrutiny, which some say could be a revolution for property rights.