The Brooding Omnipresence of Regulatory Takings: Urban Origins and Effects

Introduction: Takings from the Top I. From Scranton to the Big Apple: City Settings for the Regulatory Takings Drama II. Expert Commentary Before the Flood III. Liberal Justices and Private Property Rights Protection: A Complex Dynamic . IV. Courts and Commentary: Forty Years of Regulatory Takings Scholarship in the Fordham Urban Law Journal V. Urban Regulatory Takings: A Growth Industry for Courts and Commentators INTRODUCTION: TAKINGS FROM THE TOP The concept of a regulatory taking, or technically "inverse condemnation," made its first appearance on page ten of the very first issue of the Fordham Urban Law Journal in 1972, when New York Attorney General Louis J. Lefkowitz made the following observation in his lead article: "The courts have reduced the scope of [the usque ad coelum] doctrine, allowing an owner aggrieved by noise from overflights to recover damages for what is termed an inverse condemnation, while holding that the doctrine does not justify the granting of an injunction against overflights." (1) That first article--Jamaica Bay: An Urban Marshland in Transition--is an early example of what we now call "urban environmental law," (2) in which the author discussed public trust, wetlands protection, NEPA, public nuisance, and noise, air, and water pollution. He looked forward to federal protection for the bay, which became a reality on October 27 of the same year as the Gateway National Recreational Area. (3) The tension between private property and the public interest was just below the surface of the text of Attorney General Lefkowitz's article, much like the creatures clinging to life in the murky, polluted waters of the bay. (4) Over the course of the next four decades, as all levels of government engaged in a growing and exceedingly diverse set of environmentally flavored land use regulations, this tension rose to the surface and began to dominate legal discussions--in legal briefs and court decisions, in the classroom, and in expert commentary, including, of course, in the pages of the Fordham Urban Law Journal itself. (5) Metropolitan New York City was the geographic focus of Lefkowitz's inaugural article, a reminder that "urban" and "environmental" are not necessarily distinct descriptors. The same city was the setting for two important and, I believe, regrettable Supreme Court decisions that set the stage for legal murkiness that lingers to this day. (6) While many of the Court's regulatory takings cases came to the justices from the nation's coastal regions, (7) the fact remains that the "brooding omnipresence" (8) of regulatory takings is decidedly urban in its origins and continues to have many important implications in the field of urban law. I. FROM SCRANTON TO THE BIG APPLE: CITY SETTINGS FOR THE REGULATORY TAKINGS DRAMA We have Justice Oliver Wendell Holmes, Jr., the pride of Brahmin Boston, to thank for the term "brooding omnipresence" and for the jurisprudential curiosity we now call regulatory takings. The phrase first appeared in Holmes's dissenting opinion in 1917's Southern Pacific Co. v. Jensen, (9) a dispute concerning the validity of New York's "Workmen's Compensation Act." (10) Justice Holmes observed that "[t]he common law is not a brooding omnipresence in the sky, but the articulate voice of some sovereign or quasi sovereign that can be identified; although some decisions with which I have disagreed seem to me to have forgotten the fact." (11) In 1922, Holmes's seminal regulatory takings opinion in Pennsylvania Coal Co. v. Mahon (12) concerned a dispute over coal-rich land in Scranton, Pennsylvania--the 47th largest city in the United States according to the 1920 Census, with a population of over 137,000. (13) Counsel for the city submitted several photographs to the Supreme Court depicting severe damage to houses, apartments, streets, a cemetery, and public buildings in Scranton caused by mine caves. …