Takings jurisprudence defines when just compensation to those impacted by changes in property law is constitutionally required.
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.
Others, by contrast, underscore the value of evaluating property transitions with greater regard for the states’ traditional centrality in defining property interests.
This debate obscures the fact that the conflicts that give rise to takings claims far more often than not are local in nature.
Indeed, many iconic takings cases involve local governments.
This is true in discerning the boundaries of public use for eminent domain,
in evaluating the constitutional limits of exactions,
and across the heartland of regulatory takings.
And data on takings cases in the lower courts underscore the centrality of local governments to takings jurisprudence.
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.
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.
Still other statutes constrain outright specific local-government powers in the realms of eminent domain, tenant protections, environmental preservation, and beyond.
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.
Assessments of property rights statutes have long been a staple of the literature.
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.
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.
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.
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”
range across almost every area of local authority, from employee protections to public health to housing to civil rights.
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.
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.
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.
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.
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.
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.