Land Use Regulations and the "Takings" Clause

A recent court case and ongoing Congressional actions may have broad implications for the ability of government at all levels to regulate activities on private lands. The U.S. Constitution’s Fifth Amendment prevents the federal government from taking private property without just compensation. The Fourteenth Amendment extended this restriction to state governments. This “Takings” clause clearly covers any action that transfers ownership of a property, but what happens when regulations affect land use and its value, without transferring ownership? This question is the focus of vehement debate between property-rights advocates and those concerned about the right of public bodies to protect the environment and other public interests.

On June 24th the Supreme Court decided the case of Florence Dolan vs. the City of Tigard in favor of Dolan. Dolan had obtained a permit from the city to expand her plumbing supply store and pave its parking lot. As the store is located on a busy street and in a flood plain, the city made the permit conditional on her allocating 10% of her 1.6 acre lot to a bicycle path and flood control drainage. Dolan challenged these conditions as a “taking” of her property for public use. After losing her case in two Oregon courts, she won by a 5-4 vote in the U.S. Supreme Court.