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November 08, 2023 Feature

Mandelker and Regulatory Takings: A Rational Approach

David L Callies

I. Introduction

The retirement of Professor Dan Mandelker from active teaching at ninety-three after nearly seventy years—the longest in living memory—leads appropriately to a Festschrift in his honor, summarizing his contributions during his amazing career. This Commentary focuses upon Dan’s contributions to the field of takings law, a subset of the law of real property. It is divided into sections dealing with regulatory takings (segmentation/relevant parcel, total versus partial takings, ripeness, Fourteenth Amendment due process and equal protection), and land development conditions. On the whole, Dan was a defender of state and local regulation of land use and most often found himself commenting upon or analyzing such regimes or schemes, often as the author or coauthor of amicus briefs, incisively describing their practical effects. Not for Dan were theoretical flights of fancy into the meaning and reach of real property.1 He was a lawyer’s professor and a guide for judges and other decision-makers.

II. Regulatory Takings

In 1922, the U.S. Supreme Court more or less created the concept of regulatory takings in Pennsylvania Coal Co. v. Mahon (Pennsylvania Coal),2 an exercise of the police power striking down a state statute forbidding the mining of coal under private land. There, Justice Holmes famously stated: “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.”3 As noted in several sources, there was scant precedent for this conclusion since the law for decades had limited takings—for just compensation or equitable relief—to physical takings of interests in private property by government, usually by way of eminent domain or occasionally by government-facilitated physical invasion.4 The Court quickly followed Pennsylvania Coal with three decisions holding, inter alia, that local zoning which substantially reduced the value of the regulated property was not a taking,5 that zoning as applied in a particular instance did so,6 and that the destruction of cedar trees to preserve apple trees did not.7 It then pretty much abandoned the issue for half-a-century, until its absurd decision on (appropriately. . .) April Fool’s day in 1974, upholding a local ordinance that limited the number of occupants in a residence in order to prevent student property damage mischief.8 Shortly thereafter, however, the Court commenced deciding a series of decisions for the remainder of the twentieth century, setting out all manner of rules and principles governing regulatory takings.9 It is to this fertile field of jurisprudence, and Dan Mandelker’s contributions to it, that we now turn.

A. Partial Takings

In 1978, the U.S. Supreme Court substantively broke its silence on regulatory takings in Penn Central Transportation Co. v. City of New York,10 a historical preservation case in which it famously held that, while it could not come up with any hard and fast rules, relevant to the inquiry was the economic impact on the landowner and, in particular, whether the rule frustrated the owner’s distinct—later reasonable—investment-backed expectations. Dan was not pleased: “A careless introduction of four puzzling words brought a new confusion to takings law that time has only made worse.”11 As Dan further observed, while this phrase could imply a new support for landowner takings claims, the hope did not materialize, and it became instead “a shield for government that protects land use regulations from the Takings Clause.”12 Dan observed that, while the Court, in the later Lucas v. South Carolina Coastal Council,13 attempted to add a “notice” requirement to flesh out the “expectations” part of the rule, a later decision in Palazzolo v. Rhode Island14 fails to resolve the issue. Dan appropriately called them out: “The Court should have begun its analysis with a description of investment-backed expectations as a takings factor, and what it means. This explanation should have discussed the various meanings placed on the term . . . in Penn Central, and whether the Court still believed in them. . . . Because of these omissions, we really do not know what the Court thinks about the investment-backed expectations factor. . . .”15

B. Total Takings

In Lucas, the Court held that when a land use regulation deprives a landowner of all economically beneficial use of the subject property, it violates the Fifth Amendment and should be treated as an exercise of eminent domain.16 Contrary to a lot of negative academic critical commentary, Dan was pleased with most aspects of the opinion, in particular what appeared to be the doing away with the academic-originated “harm-benefit rule” that characterized many cases up to that point, which found almost any land use regulation immune from constitutional takings challenges (and, to be fair, as relied upon by the South Carolina Supreme Court, which the Court reversed): “Justice Scalia’s resounding and correct rejection of the harm-benefit rule in Lucas concluded a major debate in taking jurisprudence. . . . The Court could have applied the harm-benefit rule in Lucas. It could have concluded the dead-zone prohibition conferred a general benefit on the public by protecting environmentally important areas.”17 It did not.18 Dan accurately notes, however, that the Court nearly reintroduced it in the nuisance exception to categorical takings, which goes quite a way to establishing it in many contexts:

Justice Scalia was adamant on the need for a per se taking rule to decide cases of total deprivation. Yet he adopted a nuisance exception that invokes an equity regime in which balancing of interests is the hallmark of decision making. . . . Even when a total take does occur, a court may well decide after Lucas that principles of nuisance law justify the regulation or that the landowner did not have a property interest entitled to protection.19

Indeed, Dan suggests in another short commentary that the nuisance exception language “has set land-use takings law back at least 100 years and opened a quagmire of questions for planners, lawyers, commentators, and courts.”20

Another key issue is whether the notice rule, as articulated in Palazollo v. Rhode Island,21 extends to such total takings. The Court did not say.22 Justice Scalia thought not and would also not extend it to partial takings cases.23 Justice O’Connor seemed to think yes, certainly to partial takings.24 Dan more or less delivers a pox on both.

C. Relevant Parcel and Segmentation

Footnotes to the Lucas decision raise again a problem that continued (and arguably still continues)25 to bedevil regulatory takings jurisprudence. More or less originating in vertical segmentation cases like Pennsylvania Coal26 and Keystone Bituminous Coal Ass’n v. DeBenedictis,27 the Lucas opinion footnotes raise the issue of whether regulation permitting no use of five percent of a parcel, while permitting some uses of the rest, is a total taking of the five percent or a partial taking of the whole.28 What, in other words, is the relevant parcel? After summarizing how the Court appears to reach different conclusions in access cases like Kaiser-Aetna v. United States29 and Nollan v. California Coastal Commission30 (landowner wins) versus Penn Central31 and Keystone32 (government wins), Dan proposes a difficult solution:

The Court needs to return to the hard, pragmatic, ethical question: when is it fair to ask owners of land to bear costs that society as a whole must accept? . . . This view of the takings clause makes the segmentation problem the beginning, not the end, of takings analysis. The Court should not make the rules on property segmentation a “set formula” that determines whether a taking has occurred. Instead, the Court must decide takings cases by making explicit value choices in the wide array of land use conflicts in which taking claims arise [even though] . . . [t]his view of the takings clause asks hard, not easy, questions, and the answers are not obvious.”33

D. Ripeness

A precondition for bringing the increasing number of regulatory takings challenges to land use regulations after Penn Central (partial regulatory takings) and Lucas (total or categorical regulatory takings) was established by the Supreme Court in Williamson County Regional Planning Commission v. Hamilton Bank of Johnson City.34 In that case, the Supreme Court established a new rule that prevented regulatory takings cases from being heard in federal court unless (1) the governmental regulatory decision challenged is “final” and (2) the landowner-litigant has sought compensation from the relevant state agency, almost always a state court.35 The second of these requirements caused the most mischief by virtually assuring that the federal courts would immediately close to landowners challenging regulatory takings. As Dan observed in testimony before Congress on a bill to alleviate the problem:

If I felt that the ripeness rules were working in a fair and even-handed manner, I would not be testifying here. But . . . the ripeness rules are not working in a fair and evenhanded manner. They have effectively closed the Federal courthouse doors to litigants in takings cases. . . . This bill is a jurisdictional bill, it is not a substantive bill, meaning this bill does not change takings law in any way at all. It simply redefines the jurisdiction of the Federal courts.36

It was doubly unfair, according to Dan, because “when municipalities are sued as defendants [in takings cases] they can remove the case to Federal court without any barrier of any kind at all . . . even though, had the [landowner] plaintiffs sued directly in Federal court to try to assert that takings claim, that could not have happened.”37 It gets worse because of issue preclusion if the landowner plaintiff does go to state court as the second prong of the ripeness rule requires. Dan forcefully set out why: “[I]f the plaintiff goes to State court, and even if he or she reserves the Federal claim, they can’t get back to Federal court to assert that Federal claim. So, there’s a double-whammy in this situation. If a plaintiff does take the advice of the Federal judge and does go back to State court to assert the takings claim, that plaintiff cannot, in what is becoming, I think, the prevailing rule, get back [to federal court].”38 In sum: “I submit that, to say that it is impossible to assert a takings claim until one seeks compensation, is turning the takings clause on its head. One has to establish a taking before compensation can be obtained.”39 To government planners and lawyers arguing that the bill would interfere with local land use and planning, again, Dan noted: “We’re not talking about a Federal bill that interferes with local land use planning. We’re talking about a Federal bill that simply gives litigants their day in Federal court to litigate under the Federal Constitution.”40

The bill upon which Dan testified as described above did not pass, so Dan (and others) pleaded with federal courts to change, inter alia, the ripeness rules:41 “The Supreme Court’s ‘ripeness’ rules for land use litigation stand as a barrier to the development of a coherent body of constitutional law. It is time for the Court to recognize that the gain to the federal court system of reducing the number of litigated cases is not worth the anarchy created by leaving the state courts without a federal rudder.”42

E. The Fourteenth Amendment: Due Process and Equal Protection

The Fourteenth Amendment (applied to the states) provides guarantees against the taking of property without due process of law and grants equal protection of the laws in all cases, including those involving the use of land. As Dan observed in helping to define these terms, the Court has arguably created a new property interest: entitlement to approval, which, if denied, may result in a substantive due process violation, and more frequently to procedural due process, regardless of any Fifth Amendment property takings claims requiring compensation. This area of the law is confusing,43 as Dan observes:

[T]he Supreme Court has not provided clear guidelines on the role and the definition of the substantive Due Process and Takings Clauses. There is confusion, for example, over whether courts can review the purpose of a land use regulation under both clauses or only under substantive due process. Neither has the Court decided . . . [if] a landowner cannot make a substantive due process claim if he also has a taking claim. . . . This confusion about the two clauses affects the Court’s view on the property interest landowner must have to make a constitutional claim under either clause.44

Dan is also critical of this new property interest:

[T]he entitlement rule allows courts to avoid critical policy issues when they decide whether to allow constitutional claims. This is possible because the entitlement rule is circular. It allows a local government to define what it wants to recognize as an entitlement through its land use ordinance by making land use approvals discretionary.45

Suggesting that the rule may reflect the Court’s dislike of land use cases, Dan finishes with a withering critique, calling for the rule’s abolition, in a classic Mandelker disinterested plea for what is right, regardless of public or private interests:

No one gains in a legal environment where landowners suffer from arbitrary decision making or, conversely, where constitutional restrictions prevent necessary planning and land use regulation. . . . Access to the courts is essential for judicial review. The entitlement rule denies landowners that access when they claim that a land use decision violates substantive due process. The constitutional basis for this rule is problematic and courts should abolish it.46

III. Land Development Conditions

“Land Development Conditions” is an umbrella term that refers to government-imposed conditions on the private development of land, including mandatory dedications of land, impact fees and inlieu (of physical contribution) fees. First surfaced in a series of state-law decisions (many from Florida), such conditions rose to national prominence with the U.S. Supreme Court’s decisions in Nollan v. California Coastal Commission 47 and Dolan v. City of Tigard,48 establishing the requirement that such conditions be directly responsive to problems and needs caused by the proposed development (nexus) and be proportional to those problems and needs (proportionality), whether the conditions required contributions of money or land (Koontz v. St. Johns River Management District). 49 While the Supreme Court originally based such limitations on a Fifth Amendment takings analysis,50 current jurisprudence appears to rest such requirements on the doctrine of unconstitutional conditions.51

While generally supportive of such conditions (and sometimes critical of court restrictions thereon), Dan was skeptical if not downright critical of requiring affordable or workforce housing—the Achilles Heel of such land development conditions, often referred to as linkage fees—as a condition for approving market-rate residential housing developments. Here is Dan in his well-respected and multi-edition land use treatise: “Linkage programs satisfy the nexus test only if the municipality can show that downtown development contributes to the housing problem the linkage exaction is intended to remedy.”52 While the quote refers to a commercial development in downtown Sacramento, the logical conclusion is that Dan is not a fan of residential development set-asides either, without demonstrated nexus and proportionality.

IV. Conclusion

In sum, Dan Mandelker holds essentially liberal—but not progressive—views on the subject of regulatory takings, always careful to consider the impacts of the regulations that he has analyzed on the entire public, including private owners, as well as citizens generally. He generally favors land use and environmental controls exercised by government under the police power, so long as they are rational. He also strongly believes in giving both government and landowners their day in court and vehemently objects to the application of the ripeness doctrine to the extent that it is used to bar the courthouse door. He also favors government-imposed land-development conditions, so long as they are connected and proportional to the burdens and problems that private development caused or inflicted, raising significant concerns about affordable/low income housing exactions, particularly if levied on residential, rather than commercial, development. One can only hope that his well-deserved retirement from active teaching does not mean the end of his scholarship on the subject of regulatory takings—or any other of the myriad subjects to which he has directed his formidable talents for nearly three-quarters of a century.


1. With the (very) occasional exception, as in his excursion into the “dualism” debate and assumptions about rights and interests in property. Daniel R. Mandelker, Of Mice and Missiles: A True Account of Lucas v. South Carolina Coastal Council, 8 J. Land Use & Env’t L. 285, 295–306 (1993) [hereinafter Mandelker, Of Mice and Missiles].

2. 260 U.S. 393 (1922).

3. Id. at 415.

4. See, e.g., Robert W. Benson, The Taking Issue: An Analysis of the Constitutional Limits of Land Use Control, 7 Loy. L.A. L. Rev. 652 (1974) (book review); Meltz et al., The Takings Issue: Constitutional Limits on Land Use Control and Environmental Regulation 117–19 (1998); Fred P. Bosselman, David L. Callies & John Banta, The Taking Issue 51–52 (1973).

5. Village of Euclid v. Ambler Realty Co., 272 U.S. 365 (1926).

6. Nectow v. City of Cambridge, 277 U.S. 183 (1928).

7. Miller v. Schoene, 276 U.S. 272 (1928).

8. Village of Belle Terre v Borass, 416 U.S. 1 (1974).

9. See, e.g., Dolan v. City of Tigard, 512 U.S. 374 (1994); Yee v. City of Escondido, 503 U.S. 519 (1992).

10. 438 U.S. 104 (1978).

11. Daniel R. Mandelker, The Notice Rule in Investment-Backed Expectations, in Taking Sides on the Taking Issue: The Public and Private Perspectives 21 (Thomas E. Roberts ed., 2002).

12. Id.

13. 505 U.S. 1003 (1992).

14. 533 U.S. 606 (2001).

15. Mandelker, The Notice Rule, supra note 11, at 36.

16. Lucas, 505 U.S. at 1015–18.

17. Mandelker, Of Mice and Missiles, supra note 2, at 294.

18. See Lucas, 505 U.S. at 1024–26.

19. Mandelker, Of Mice and Missiles, supra note 2, at 302–03.

20. Daniel Mandelker, Takings ’92: The Case of the Curious Case, 44 Land Use L. & Zoning Digest 3, 3 (1992).

21. 533 U.S. 606 (2001).

22. See id. at 607–09.

23. Id. at 637.

24. Id. at 635–36.

25. The relatively recent Murr decision was supposed to lay relevant parcel to rest. It did not. Instead of taking one of the myriad wetlands regulation cases upon which the Lucas footnotes clearly rely, the Court inexplicably took a run-of-the-mill zoning lot case and rendered a terrible decision in which no party was satisfied. Murr v. Wisconsin, 582 U.S. 383 (2017).

26. 260 U.S. 393 (1922).

27. 480 U.S. 470 (1987).

28. Lucas v. S.C. Coastal Council, 505 U.S. 1003, 1019 n.8 (1992).

29. 444 U.S. 164 (1979).

30. 483 U.S. 825 (1987).

31. 438 U.S. 104 (1978).

32. 480 U.S. at 470.

33. Daniel R. Mandelker, New Property Rights Under the Takings Clause (Speech), 81 Marq. L. Rev. 9, 19 (1997).

34. 473 U.S. 172 (1985).

35. Id. at 186, 195.

36. Private Property Rights Implementation Act of 1999: Hearing Before the Subcomm. on the Const. of the Comm. on the Judiciary, 106th Cong. 27–28 (1999) (statement of Daniel R. Mandelker, Howard A. Stamper Professor of Law, Washington University).

37. Id. at 28.

38. Id.

39. Id.

40. Id.

41. Daniel R. Mandelker & Michael M. Berger, A Plea to Allow the Federal Courts to Clarify the Law of Regulatory Takings, Land Use L. & Zoning Digest 3, 3–5 (1990).

42. Id. at 5. The Supreme Court did eventually do away with prong 2—the state compensation requirement. See Knick v. Township of Scott, 139 S. Ct. 2162, 2172–73 (2019).

43. The issue is perhaps a little less confusing when a unanimous court confessed error and separated “ʻsubstantially advance[d]’ legitimate state interest” from Fifth Amendment jurisprudence, leaving it as purely a Fourteenth Amendment issue. Lingle v. Chevron, 544 U.S. 528, 542–43 (2005).

44. Daniel R. Mandelker, Entitlement to Substantive Due Process: Old Versus New Property in Land Use Regulation, 3 Wash. U. J.L. & Polʻy 61, 93 (2000).

45. Id.

46. Id. at 97.

47. 483 U.S. 825 (1987).

48. 512 U.S. 374 (1994).

49. 570 U.S. 595 (2013).

50. See Nollan, 483 U.S. at 831–37 (explaining the takings analysis of an easement).

51. See Koontz, 570 U.S. at 604.

52. Daniel R. Mandelker, Land Use Law § 9.23 (5th ed. 2014).

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David L. Callies

William S. Richardson School of Law

FAICP, ACREL, BA DePauw University, JD University of Michigan, LL.M. Nottingham University (planning law), Life Member, Clare Hall, Cambridge University. David is Emeritus Professor at the William S. Richardson School of Law, University of Hawaii at Manoa, and one of Dan Mandelker’s many casebook coauthors. The author thanks his research assistant, 3L and law review editor Erin Dung, for her technical and research assistance.