Takings Jurisprudence as Three-Tiered Review

Article by: Mark W. Cordes, originally appeared in JNREL Vol. 20, No.1

Abstract by: John Hendricks, Staff Member

Takings jurisprudence has been for all practical purposes a complex and often confusing legal area. However, in analyzing takings jurisprudence, it is possible to draw comparisons to the traditional Supreme Court jurisprudence regarding equal protection. While this comparison is not exact, it does provide an overarching classification system for takings. Like equal protection analysis, takings jurisprudence can be roughly divided into three-tiers of scrutiny based on what type of taking has occurred.

The type of takings subject to the most stringent level of review is takings which involve the permanent physical invasion of property. This category of takings is analogous to the strict scrutiny applied to equal protection claims. The Court has adopted a near per se rule that physical invasions constitute a taking. Just as the Court has protected against suspect classifications, so has it been protective of physical invasions of property by the government, such government action is almost always unconstitutional.

The second level of review in takings jurisprudence involves situations regarding development extractions. Under the standards announced in Nollan v. California Coastal Commission, 483 U.S. 825 (1987), a court should look for a "rough proportionality" between the extraction and the use of the land. This approach can be compared to intermediate scrutiny, in that it is not invalid per se and the court will look at the reasons for the government action.

Finally, the third type of takings is takings based on a land use regulation's economic impact. These types of takings can best be compared to the deferential review or minimum rationality review applied in equal protection cases. While the comparison between takings based on a land use regulation's economic impact and deferential review may seem to conflict with the Court's analysis in Penn Central Transportation Co. v. New York City, 438 U.S. 104 (1977), and Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992), in an abstract sense, both types of review are similar. While takings based on a land use regulation's economic impact are subject to a factual inquiry, the government is still granted a level of deference that is similar to deferential review in equal protection cases. Ultimately, the comparisons between takings jurisprudence and equal protections cases provide an analytical framework for understanding the sometimes murky world of takings jurisprudence.