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June 30, 2023 Feature

Introduction: Regulatory Takings After Knick: Total Takings, the Nuisance Exception, and Background Principles Exceptions: Public Trust Doctrine, Custom, and Statutes

David Callies

The development of regulatory takings theory has flourished over the past century thanks to efforts by the U.S. Supreme Court to fine-tune the appropriate tests and factors for nonphysical takings effected by land use regulation. Unfortunately, application and use of such tests have been seriously diminished by the ripeness barrier Williamson County Regional Planning Commission v. Hamilton Bank of Johnson City raised for many property owners seeking relief for a valid regulatory takings claim.1 The Supreme Court’s recent decision in Knick v. Township of Scott2 has been aptly described by some commentators as the most significant property rights case of the last decade. In Knick, the Court found the regulatory takings claim, which had not yet been denied compensation in state court, was ripe nonetheless.3 In doing so, the Court explicitly overturned the second prong of the so-called Williamson County ripeness test that required property owners to seek a remedy through state action—usually just compensation—for the alleged taking before coming to federal court.

Regulatory Takings After Knick4 summarizes the Supreme Court’s decision in Knick and emphasizes total takings after Lucas v. South Carolina Coastal Commission5 and the exceptions that permit the government to so strictly regulate property as to permit no economically beneficial use of it. Regulatory Takings explains the elements of these exceptions in great detail in separate chapters. Understanding these exceptions is critical to litigating about land use regulations for open space, agriculture, and preservation and conservation where the subject land is left without any economic use. If the exceptions apply, the landowner gets no compensation. If the exceptions do not apply, the landowner prevails. In Chapter 1, which follows, Regulatory Takings begins by providing an overview and analysis of regulatory takings law, together with recent trends in each.

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1. Williamson Cnty. Reg’l Plan. Comm’n v. Hamilton Bank of Johnson City, 473 U.S. 172 (1985).

2. Knick v. Twp. of Scott, 139 S. Ct. 2162, 2179–80 (2019).

3. See id. at 2179.

4. David Callies, Regulatory Takings After Knick: Total Takings, the Nuisance Exception, and Background Principles Exceptions: Public Trust Doctrine, Custom, and Statutes (ABA 2020).

5. Lucas v. S.C. Coastal Council, 505 U.S. 1003 (1992).

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David Callies

David Callies is the emeritus holder of the Kudo chair in Law at the University of Hawaii William S. Richardson Law School. He is an elected member of the College of Fellows, American Institute of Certified Planners; the American College of Real Estate Lawyers; and the American Law Institute. He is past chair of the ABA and AALS Sections of State and Local Government Law and the HSBA Section of Real Property and Financial Services. He was until 2021 national co-editor (with J.B. Ruhl) of the Land Use and Environmental Law Review. The author or coauthor of more than 100 articles, and 20 books on property and land use, he has been awarded a University of Hawai‘i Regents Medal for Excellence in Teaching, the Brigham-Kanner Property Rights Prize, and the Crystal Eagle award from the Owners’ Counsel of America.