The Long-Standing Requirement That Delegations of Land Use Control Power Contain Meaningful Standards to Restrain and Guide Decision-Makers Should Not Be Weakened

Some forty years ago, a leading land use scholar noted that “it has always been recognized that it is an essential part of the judicial function to watch over the parochial and exclusionist attitudes and policies of local governments, and to see to it that these do not run counter to national policy and the general welfare.” Maine courts by and large have discharged this judicial function by consistently striking down unauthorized and overreaching local governmental land use decisions. Several recent cases, however, cast doubt on the Law Court\u27s continuing commitment to guard against the parochial instincts of local land use decision-makers. There is speculation as to whether the Waterville Hotel line of cases retains the vitality it once had. It is the purpose of this Article to show the utility of, and the underlying legal theories that support, these twenty-five years of case law. The Authors will argue that both public and private interests, as well as fundamental principles of “ordered government,” are best served by a strong and substantive reaffirmation of the principles and lessons of Waterville Hotel, Cope, and Wakelin. In the area of land use, judicial watchfulness over the parochial instincts of local governments is needed today no less than it was more than twenty-five years ago when the warnings were first sounded

Florida Rock Industries, Inc. v. United States: Tipping the Scales in Favor of Private Property Rights at the Public\u27s Expense

In Florida Rock Industries, Inc. v. United States the Court of Appeals for the Federal Circuit held that the denial of a federal wetlands permit under section 1344 of the Clean Water Act may constitute a compensable taking of private property under the Fifth Amendment to the United States Constitution. The court remanded the case to the Federal Court of Claims to determine the value of the property remaining after the permit denial, while warning the trial court that the existing record did not support a finding of the loss of all economically viable use of the property. The Federal Circuit declared that the parcel\u27s retention of economic value would not foreclose the finding of a compensable “partial taking.” Yet the court did not set a “bright line” standard to guide the lower court in determining whether the percentage of remaining value would be sufficient to rebut the takings challenge. Instead, the court ordered “a classic exercise of judicial balancing of competing values.” While the finding of a “partial taking” would be new to takings jurisprudence, the utilization of a balancing test is not new. The Supreme Court attempts to apply a categorical “all-or-nothing” rule in regulatory takings cases. For cases not falling within this rule, the Court purports to use a balancing test to determine whether compensation is due. The Court, however, has yet to apply the balancing test to a specific situation and find a compensable partial taking. The Court\u27s reluctance to address directly the partial takings issue has caused property rights activists to lobby Congress and state legislatures for serious, albeit extreme, takings legislation. Likewise it has caused lower courts such as the Federal Circuit in Florida Rock to reformulate and expand takings doctrine. This Note discusses why the Federal Circuit embraced the concept of a partial taking. It contends that the Circuit\u27s action was a reaction not only to the fervor created by conservative politicians, businesses, and property rights groups who advocate radical takings reform but also to the Supreme Court\u27s approach to regulatory takings cases

The Long-Standing Requirement That Delegations of Land Use Control Power Contain Meaningful Standards to Restrain and Guide Decision-Makers Should Not Be Weakened

Some forty years ago, a leading land use scholar noted that “it has always been recognized that it is an essential part of the judicial function to watch over the parochial and exclusionist attitudes and policies of local governments, and to see to it that these do not run counter to national policy and the general welfare.” Maine courts by and large have discharged this judicial function by consistently striking down unauthorized and overreaching local governmental land use decisions. Several recent cases, however, cast doubt on the Law Court\u27s continuing commitment to guard against the parochial instincts of local land use decision-makers. There is speculation as to whether the Waterville Hotel line of cases retains the vitality it once had. It is the purpose of this Article to show the utility of, and the underlying legal theories that support, these twenty-five years of case law. The Authors will argue that both public and private interests, as well as fundamental principles of “ordered government,” are best served by a strong and substantive reaffirmation of the principles and lessons of Waterville Hotel, Cope, and Wakelin. In the area of land use, judicial watchfulness over the parochial instincts of local governments is needed today no less than it was more than twenty-five years ago when the warnings were first sounded

Florida Rock Industries, Inc. v. United States: Tipping the Scales in Favor of Private Property Rights at the Public\u27s Expense

In Florida Rock Industries, Inc. v. United States the Court of Appeals for the Federal Circuit held that the denial of a federal wetlands permit under section 1344 of the Clean Water Act may constitute a compensable taking of private property under the Fifth Amendment to the United States Constitution. The court remanded the case to the Federal Court of Claims to determine the value of the property remaining after the permit denial, while warning the trial court that the existing record did not support a finding of the loss of all economically viable use of the property. The Federal Circuit declared that the parcel\u27s retention of economic value would not foreclose the finding of a compensable “partial taking.” Yet the court did not set a “bright line” standard to guide the lower court in determining whether the percentage of remaining value would be sufficient to rebut the takings challenge. Instead, the court ordered “a classic exercise of judicial balancing of competing values.” While the finding of a “partial taking” would be new to takings jurisprudence, the utilization of a balancing test is not new. The Supreme Court attempts to apply a categorical “all-or-nothing” rule in regulatory takings cases. For cases not falling within this rule, the Court purports to use a balancing test to determine whether compensation is due. The Court, however, has yet to apply the balancing test to a specific situation and find a compensable partial taking. The Court\u27s reluctance to address directly the partial takings issue has caused property rights activists to lobby Congress and state legislatures for serious, albeit extreme, takings legislation. Likewise it has caused lower courts such as the Federal Circuit in Florida Rock to reformulate and expand takings doctrine. This Note discusses why the Federal Circuit embraced the concept of a partial taking. It contends that the Circuit\u27s action was a reaction not only to the fervor created by conservative politicians, businesses, and property rights groups who advocate radical takings reform but also to the Supreme Court\u27s approach to regulatory takings cases