The Takings Clause

Cedar Point Nursery v. Hassid

594 U.S. 139 (2021) · Westlaw

A California regulation let union organizers enter an agricultural employer’s property for three hours a day — one before work, one at lunch, one after — for up to four thirty-day periods a year. Organizers came through Cedar Point’s nursery at five in the morning with bullhorns; Fowler Packing turned them away at the gate. Chief Justice Roberts, for six Justices, held the access regulation a per se physical taking, because it appropriates the growers’ right to exclude, “one of the most treasured” rights of ownership. Justice Kavanaugh concurred; Justice Breyer dissented for himself, Justice Sotomayor and Justice Kagan.

Read the holding against the footnote you have just read in Loretto. Footnote 12 draws the line the whole Loretto rule depends on: permanence and absolute exclusivity distinguish an occupation from “temporary limitations on the right to exclude,” and temporary limitations stay inside the balancing test. The California regulation is a temporary limitation on the right to exclude by any ordinary use of those words — three hours a day, one hundred and twenty days a year, nobody living on the roof. Cedar Point holds it a per se taking anyway, and disposes of the difficulty in a sentence: the duration of an appropriation, like its size, “bears only on the amount of compensation.”

That sentence is doing enormous work. Notice that it is Loretto’s own move about size, extended to time — and that extending it to time is precisely what footnote 12 said the Court was not doing. The Court insists it is applying Loretto faithfully. Decide for yourself whether the Loretto Court would have recognized the rule.

Three things remain outside the per se rule after Cedar Point: an isolated physical invasion, which is a tort rather than a taking; an invasion consistent with a longstanding background restriction on title, including traditional common-law privileges; and a requirement that an owner cede access as a condition of a government benefit, which covers ordinary health and safety inspection regimes. Ask which of the three would have saved the California regulation if the Court had wanted to save it, and what that tells you about how much of takings law is carried by the categories and how much by the exceptions to them.

Pennsylvania Coal Co. v. Mahon

260 U.S. 393 (1922) · Westlaw

This is where regulatory takings begin, and it begins in a deed. In 1878 the Pennsylvania Coal Company sold the surface at Pittston to the Mahons’ predecessor and expressly reserved the right to remove all the coal underneath; the grantee took the risk and waived all claims for damage. Forty-three years later Pennsylvania enacted the Kohler Act, forbidding anthracite mining that caused the subsidence of a dwelling. The Mahons invoked the statute to stop the mining they had contracted to permit. Justice Holmes, over a dissent by Justice Brandeis, held the Act unconstitutional as applied.

Holmes supplies the sentence the rest of the course argues about: “The general rule at least is, that while property may be regulated to a certain extent, if regulation goes too far it will be recognized as a taking.” 260 U.S. at 415. It is a standard with no content of its own, and Holmes knew it — the same page warns that once absolute protection is qualified by the police power, “the natural tendency of human nature is to extend the qualification more and more until at last private property disappears.”

The move that decides the case comes a page earlier: “For practical purposes, the right to coal consists in the right to mine it.” 260 U.S. at 414. Holmes measures the burden against the coal that must be left in place, and against that denominator the Act destroys the whole of it. Brandeis measures against the whole parcel: “Coal in place is land; and the right of the owner to use his land is not absolute.” 260 U.S. at 416. Against that denominator the loss is a fraction. Neither Justice defends his choice of denominator, and no case since has supplied a rule for choosing. Hold onto this, because Penn Central will ask you to look at “the parcel as a whole” and Lucas will ask whether all economically beneficial use is gone — and both answers depend entirely on what you decided the parcel was.

Brandeis also plants the nuisance escape that Lucas will later formalize: “restriction imposed to protect the public health, safety or morals from dangers threatened is not a taking.” 260 U.S. at 417. Ask yourself why Holmes was unmoved by it here, when subsidence under a house is not obviously less dangerous than the cedar rust in the next note.

Miller v. Schoene

276 U.S. 272 (1928) · Westlaw

Cedar rust is a fungus that spends part of its life on red cedar, where it does little harm, and part on apple trees, where it does a great deal. Virginia’s Cedar Rust Act let the state entomologist, on the written request of ten freeholders, order the destruction of infected red cedars within two miles of an apple orchard. The owners got one hundred dollars toward the cost of removal and nothing for the standing value of the trees or the lost value of the land. Justice Stone, for a unanimous Court, upheld the Act.

The opinion’s power is in its candour about what the state faced. “On the evidence we may accept the conclusion of the Supreme Court of Appeals that the state was under the necessity of making a choice between the preservation of one class of property and that of the other wherever both existed in dangerous proximity.” 276 U.S. at 279. And having framed it as a forced choice, the holding follows: the state “does not exceed its constitutional powers by deciding upon the destruction of one class of property in order to save another which, in the judgment of the legislature, is of greater value to the public.” Ibid.

Notice what the framing does. There was no option in which the state left everyone alone: to protect the cedars is to sacrifice the orchards, and inaction is a decision with the same distributive consequences as action. That is why this small case became a standard example in the economics of externalities, and why it is worth reading right after Pennsylvania Coal. Holmes treated the Kohler Act as the state intruding on a settled entitlement. Stone treats the Cedar Rust Act as the state allocating between two claimants neither of whom had a pre-political right to win.

Push on it. Apples were Virginia’s commercial crop and cedars were mostly ornamental, so “greater value to the public” had an obvious answer here. What restrains a legislature that reaches the same conclusion when the comparison is closer, or when the losing class of owners is politically weak? And ask whether Miller survives Lucas intact — Lucas will say a regulation destroying all economically beneficial use is a taking unless the restriction inheres in background principles of nuisance and property law. The cedars were destroyed outright, not merely restricted. Was that a nuisance abatement, or was it a transfer?

Horne v. Department of Agriculture

576 U.S. 350 (2015) · Westlaw

A New Deal marketing order required raisin growers to hand over a percentage of each year’s crop to a federal reserve committee, which disposed of the reserve and returned to the growers whatever, if anything, was left after expenses. In some years that was nothing. Marvin and Laura Horne refused, were fined the market value of the raisins they kept plus a civil penalty, and argued that the reserve requirement was a taking. Chief Justice Roberts held that it was.

The holding is one sentence and it is the reason the case is assigned: “Nothing in the text or history of the Takings Clause, or our precedents, suggests that the rule is any different when it comes to appropriation of personal property.” 576 U.S. at 358. The rule he means is Loretto’s — a direct appropriation is a per se taking, no balancing, no Penn Central factors. Until this case that categorical treatment had grown up almost entirely around land. Roberts puts it plainly: “The Government has a categorical duty to pay just compensation when it takes your car, just as when it takes your home.” Id.

The Government’s best argument was that the growers were volunteers — nobody makes you sell raisins in interstate commerce, so the reserve requirement is a condition on a benefit rather than a seizure. Roberts’s answer is short and unkind: “‘Let them sell wine’ is probably not much more comforting to the raisin growers than similar retorts have been to others throughout history. In any event, the Government is wrong as a matter of law.” 576 U.S. at 365. Notice the structure of that answer. He does not say the voluntariness point is irrelevant to every case; he says selling a crop in commerce is not the kind of special governmental benefit that lets the government demand property in exchange.

Two things to carry forward. First, the case sharpens the divide you have been building since Loretto: appropriation is per se, regulation is Penn Central, and which box a program falls into does almost all the work. A percentage of a crop is appropriation; a rule forbidding you to grow it might not be. Ask yourself whether that distinction tracks anything about how much the owner actually loses.

Second, the voluntariness argument does not disappear here — it comes back in a stronger form in the exactions cases you read next, where the government really is granting a discretionary permit and really is demanding something in return. Nollan and Dolan are about the limits on that trade. Keep Roberts’s answer in mind when you get there and ask whether it survives contact with a permit condition, or whether the difference is just that a permit is a benefit and a market is not.

Palazzolo v. Rhode Island

533 U.S. 606 (2001) · Westlaw

Anthony Palazzolo’s corporation bought waterfront land in Westerly, Rhode Island, most of it salt marsh. Rhode Island adopted wetlands regulations in 1971. The corporation was later dissolved and title passed to Palazzolo personally, which meant that as a matter of law he acquired the land after the regulations were already on the books. His fill applications were denied, and the Rhode Island Supreme Court held his takings claim barred for that reason alone: you cannot be deprived of a right you never had, because the restriction was part of the title you took.

The Court rejected that rule, and the reason is worth memorizing because it is structural rather than sentimental: “Were we to accept the State’s rule, the postenactment transfer of title would absolve the State of its obligation to defend any action restricting land use, no matter how extreme or unreasonable.” 533 U.S. at 627. A regulation would become immune simply by outliving one owner. “The State may not by this means secure a windfall for itself.” Ibid.

Now put that next to Lucas. There the State escapes if the restriction inheres in the title under background principles of property and nuisance. Here the State does not escape merely because the restriction was on the books when the owner took title. Those two propositions have to be reconciled, and reconciling them is the assignment. The difference the Court draws is between a background principle of property law and a mere enactment — a statute does not become part of the common law of property by being old. Whether that line holds is another matter, and the concurring opinions in this case are a live argument about it: one takes the view that the timing of acquisition bears on what expectations were reasonable even if it does not bar the claim outright, and another takes the view that it should be irrelevant altogether. You should be able to argue both.

The second holding matters just as much and gets less attention. Palazzolo lost his Lucas theory: “The court did not err in finding that petitioner failed to establish a deprivation of all economic value, for it is undisputed that the parcel retains significant worth for construction of a residence.” 533 U.S. at 632. The parcel retained about $200,000 in development value on its upland portion. Id. at 616. So a landowner who has lost the use of most of a marsh, and who can still build one house on the dry part, is outside the categorical rule entirely and back in Penn Central.

That is the denominator problem arriving in a real case. Ask the question Lucas’s footnote refused to answer: why is the relevant parcel the whole tract rather than the marsh? Nothing in the opinion tells you, and everything turns on it.

Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency

535 U.S. 302 (2002) · Westlaw

To protect Lake Tahoe’s clarity while it wrote a regional land-use plan, the planning agency imposed two successive moratoria that stopped essentially all development on sensitive lots for thirty-two months. The landowners did not argue that the moratoria were unreasonable. They argued something cleaner: that during those thirty-two months they were deprived of all economically beneficial use, which is Lucas, which is a per se taking, full stop.

The Court refused, and the refusal is really an answer to the denominator question you have been circling since Penn Coal. Slice the fee into a term of years and a remainder, and every temporary restriction becomes a total taking of the term. That is “conceptual severance,” and Justice Stevens rejected it by name: petitioners’ argument “is unavailing because it ignores Penn Central’s admonition that in regulatory takings cases we must focus on ‘the parcel as a whole.’” 535 U.S. at 331. Then the sentence that extends the parcel into the fourth dimension: “An interest in real property is defined by the metes and bounds that describe its geographic dimensions and the term of years that describes the temporal aspect of the owner’s interest… . Both dimensions must be considered if the interest is to be viewed in its entirety.” Id. at 331–332.

So the parcel as a whole is whole in time as well as in space. Notice what that does to Lucas. The categorical rule survives, but it now requires a permanent obliteration of value, and almost no regulation is permanent. A rule that applies only to the total and permanent case is a rule that applies almost never — which is the practical criticism of Lucas that Justice Stevens made in dissent there and effectively cashes here.

Two cautions before you file this away as a defense verdict. First, the Court was careful not to swap one categorical rule for another: “In our view the answer to the abstract question whether a temporary moratorium effects a taking is neither ‘yes, always’ nor ‘no, never’; the answer depends upon the particular circumstances of the case.” 535 U.S. at 321. Second, duration is still evidence: “In rejecting petitioners’ per se rule, we do not hold that the temporary nature of a land-use restriction precludes finding that it effects a taking; we simply recognize that it should not be given exclusive significance one way or the other.” Id. at 337. A long enough moratorium can still lose under Penn Central.

The question to bring to class is arithmetic. If thirty-two months is not a taking, what is — five years, twenty, ninety-nine? And if your answer is that it depends on the circumstances, say what circumstance you would actually measure, because “it depends” is not a doctrine.

Nollan v. California Coastal Commission

483 U.S. 825 (1987) · Westlaw

The Nollans wanted to replace a small beachfront bungalow with a larger house. The California Coastal Commission would grant the permit only if they recorded an easement letting the public walk across their beach between two public beaches on either side. The Commission’s stated justification was that the new house would block the view of the ocean from the road and contribute to a “wall” of development psychologically walling the public off from the shore.

Justice Scalia accepted, for argument’s sake, that the Commission could have denied the permit outright to protect visual access. The problem was the fit between that purpose and what was demanded. An easement to walk along the beach does nothing whatever for the ability to see the beach from the highway. Hence the requirement the case is named for — an essential nexus between the condition and the interest that would have justified refusing the permit — and hence the two sentences you should know by heart:

“When that essential nexus is eliminated, the situation becomes the same as if California law forbade shouting fire in a crowded theater, but granted dispensations to those willing to contribute $100 to the state treasury.” 483 U.S. at 837.

“In short, unless the permit condition serves the same governmental purpose as the development ban, the building restriction is not a valid regulation of land use but ‘an out-and-out plan of extortion.’” Ibid.

Understand what kind of doctrine this is. It is not a rule about how much the owner loses; it is a rule about the government’s reasons. The Commission had the power to say no. What it could not do was sell the yes. That structure — greater power, but not this particular lesser one — is the unconstitutional-conditions problem, and takings law is where you meet it first in this course. You will meet it again in the spending cases.

Two things to press on. First, notice the leverage. The Commission was not confiscating a beach; it was making an offer, and the Nollans were free to keep their bungalow. If a bargain is voluntary, why is there a constitutional problem at all? Your answer has to explain why Horne’s “let them sell wine” retort fails here.

Second, notice what Nollan leaves undone. An essential nexus is a test of direction — does the condition point at the same problem the development causes? It says nothing about amount. A city could demand a hundred acres to offset a problem worth one, and the nexus would be perfect. That gap is exactly what Dolan fills seven years later, and you should be able to state the gap before you read it.

Dolan v. City of Tigard

512 U.S. 374 (1994) · Westlaw

Florence Dolan wanted to double the size of her plumbing and electric supply store and pave the parking lot. Tigard, Oregon, would let her, on two conditions: dedicate the portion of her lot lying in the floodplain of Fanno Creek as a public greenway, and dedicate a strip for a pedestrian and bicycle pathway. The city had a nexus — more building means more runoff, more store means more traffic. So Nollan was satisfied. The question was whether satisfying Nollan is enough.

Chief Justice Rehnquist held it is not, and supplied the second half of the exactions test: “We think a term such as ‘rough proportionality’ best encapsulates what we hold to be the requirement of the Fifth Amendment.” 512 U.S. at 391. And then, immediately, the qualifier that keeps it workable: “No precise mathematical calculation is required, but the city must make some sort of individualized determination that the required dedication is related both in nature and extent to the impact of the proposed development.” Ibid.

Nollan is direction; Dolan is amount. Learn the pair that way and you will not confuse them on an exam. A condition must point at the harm the development causes, and it must be roughly proportionate in degree to that harm.

The third holding is the one practitioners care about most and students forget: the burden. Ordinarily a land-use regulation enjoys a presumption of validity and the challenger has to overcome it. Here Rehnquist flipped it, because of the posture: “the city made an adjudicative decision to condition petitioner’s application for a building permit on an individual parcel. In this situation, the burden properly rests on the city.” 512 U.S. at 391 n.8. And the city lost on that burden — it “has not met its burden of demonstrating that the additional number of vehicle and bicycle trips generated by petitioner’s development reasonably relate to the city’s requirement for a dedication of the pedestrian/bicycle pathway easement.” Id. at 395.

Notice how much work the word “adjudicative” is doing in that footnote. It implies a contrast with something legislative — a fee schedule adopted for a whole class of properties rather than a demand negotiated over one parcel. For thirty years lower courts read the contrast as a limit, and many held that Nollan and Dolan simply did not apply to legislatively imposed conditions. Sheetz, the next note, is what happened to that reading.

The question to bring: why should the constitutional test depend on whether the demand arrived by ordinance or across a counter? One answer is about the risk of extortion, which is highest when an official has discretion over a single applicant. If that is the answer, then the legislative/administrative line is not arbitrary at all — it tracks the very evil Nollan identified. Hold that thought for one page.

Sheetz v. County of El Dorado

601 U.S. 267 (2024) · Westlaw

George Sheetz applied for a permit to put a manufactured home on his lot in El Dorado County, California. The county required him to pay a traffic impact mitigation fee, calculated not by any individualized assessment of the traffic his house would generate but by a rate schedule the county’s board of supervisors had adopted for whole classes of development. He paid under protest and sued, arguing the fee failed Nollan and Dolan. The California courts rejected the claim without reaching the merits, on the ground those cases govern only conditions imposed ad hoc by an administrator, not conditions imposed by legislation.

A unanimous Court, per Justice Barrett, reversed on that single point: “The Takings Clause does not distinguish between legislative and administrative permit conditions.” The text names no such exception, and neither Nollan nor Dolan rested on one. So the reading many courts had drawn from footnote 8 of Dolan — that a legislative fee schedule is outside the exactions doctrine entirely — is wrong.

Be precise about what this does and does not decide, because the opinion is unusually careful and the carefulness is the lesson. It holds that legislative conditions are not categorically exempt. It does not hold that Mr. Sheetz wins, and it does not say what Nollan and Dolan require of a fee that applies to a class. The Court expressly left open for the state courts on remand “[w]hether a permit condition imposed on a class of properties must be tailored with the same degree of specificity as a permit condition that targets a particular development.”

That reservation is the whole future of the doctrine, and it is where the argument now lives. Take the two positions seriously. If a class-wide schedule must be justified parcel by parcel, then impact fees — which exist precisely to avoid case-by-case haggling, and which fund a great deal of ordinary infrastructure — become expensive and possibly unadministrable. If a class-wide schedule needs only class-wide justification, then a county can achieve by ordinance exactly what Nollan forbids across a counter, and the extortion concern is answered with a drafting instruction.

You have seen that shape before, one module earlier, in Gonzales v. Raich — Justice O’Connor’s complaint that if a comprehensive statute can do what a targeted one cannot, the constitutional limit becomes a drafting guide. Ask whether the same objection is available here, and whether it is any better here than it was there.

Sheetz is also worth noticing as a matter of craft: a unanimous Court resolving a thirty-year circuit split by deciding the smallest possible question. Ask what that buys, and what it costs the lower courts that now have to answer the question it declined.

Brown v. Legal Foundation of Washington

538 U.S. 216 (2003) · Westlaw

Lawyers hold client money in trust. Small sums held briefly cannot earn net interest for the client — the bank charges and the accounting cost more than the interest is worth — so historically the money sat in non-interest-bearing accounts and the banks kept the benefit. Washington, like every other State, adopted an IOLTA program: those funds go into a pooled interest-bearing account, and the interest funds legal services for the poor. Critically, the program applies only to funds that could not have generated net interest for the client individually.

The Court had already held, in an earlier case, that the interest is the client’s property. So this case is about the remedy, and it is in the module for one reason: it is where you learn that a taking and a right to compensation are different questions.

Justice Stevens assumed a taking and asked what was owed. The rule is settled and counterintuitive: “All of the Circuit Judges and District Judges who have confronted the compensation question, both in this case and in Phillips, have agreed that the ‘just compensation’ required by the Fifth Amendment is measured by the property owner’s loss rather than the government’s gain.” 538 U.S. at 235–236. Applied here: “it is clear that neither Brown nor Hayes is entitled to any compensation for the nonpecuniary consequences of the taking of the interest on his deposited funds, and that any pecuniary compensation must be measured by his net losses rather than the value of the public’s gain.” Id. at 237. And so: “Because that compensation is measured by the owner’s pecuniary loss—which is zero whenever the Washington law is obeyed—there has been no violation of the Just Compensation Clause of the Fifth Amendment in this case.” Id. at 240.

Sit with that. The State takes your property, admits it, uses it for a public purpose, and owes you nothing — not because the taking was permissible but because by the program’s own design your loss is exactly zero. The clause is satisfied by arithmetic.

Three questions to bring. First, is the loss really zero? The client had no way to earn that interest alone, but the pooled fund earned it precisely because it was pooled; if the value only exists in aggregate, whose is it? Second, if compensation is measured by the owner’s loss and not the government’s gain, what stops a government from designing every program so that each individual loss rounds to nothing while the aggregate gain is large? Third — and this is the one that ties the module together — notice that the same move appears in Justice Stevens’s opinion in Kelo, where the plan is judged as a whole rather than parcel by parcel, and in Tahoe-Sierra, where the parcel is whole in time. Aggregation is doing enormous work throughout takings law, and it is doing it in whichever direction the government needs. Say whether that is a coherent method or a pattern of convenience.