Getting a takings claim to federal court is a drag; Congress voted down bills that would give property owners better access to federal courts, but Supreme Court may still rule

Article Abstract:

The interplay of the ripeness doctrine of the Fifth Amendment's land-use context, of res judicata, and of collateral estoppel poses procedural hurdles keeping private property owners from access to federal courts in constitutional takings cases implicating zoning, land-use and condemnation issues. S 2271, the Property Rights Implementation Act of 1998, and HR 1534, the Private Property Rights Implementation Act of 1997, died in Congress in 1997. Both bills were designed to give private property owners access to federal courts in Fifth Amendment takings cases. Case law is also reviewed.

Analysis, Cases, Removal of causes

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The changing doctrine of regulatory taking and the executive branch; will takings impact analysis enhance or damage the federal government's ability to regulate?

Article Abstract:

Executive Order 12630, issued after three 1987 Supreme Court cases asserting a landowner right to compensation even for temporary takings, sought to reduce the chance of undue burdens on the public purse from legal government action. It requires a 'takings impact analysis.' The order is too general and therefore overburdens agencies by mandating that they conduct too many analyses. Agencies lack the resources for this. More specific guidance about how to conduct economic viability analyses is needed for takings impact analyses to have more than an ad hoc approach.

Compensation (Law)

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Regulatory takings legislation would benefit mainly large property owners where the federal government has paramount land-use control

Article Abstract:

The bill passed by the House of Representatives (H.R. 925) and that under consideration in the Senate (S. 605) to mitigate federal regulation of private land both meet some existing needs but overstate the impact of federal regulations relative to state and local ones. In fact, many non-federal government agencies have developed ways to reduce the financial or other use impacts of environmental and other regulations. By looking to these, the Senate could find ways to further clarify and provide a solid foundation for the appeals process it proposes.

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