Academic journal article Brigham Young University Law Review

Official Maps and the Regulatory Takings Problem: A Legislative Solution

Academic journal article Brigham Young University Law Review

Official Maps and the Regulatory Takings Problem: A Legislative Solution

Article excerpt


Official map regulations generate much uncertainty in the court system. For example, in Lomarch Corp. v. Mayor and Common Council of Englewood, a city's official map prohibited a landowner from building on his property because part of his property was reserved to be a park in the future.1 The landowner felt that the city had deprived him of use of his property and challenged the prohibition, claiming that a regulatory taking had occurred.2 This is just one example of an official map restricting a landowner's use of property. What should be the remedy? The answer to this question depends on several factors: How much time does the city have to decide if it will condemn his property and pay just compensation? How much of the land is reserved? How much economic loss will result if the official map is upheld? What is the city's reason for freezing development?

Courts have struggled with these questions when deciding whether to strike down official map provisions.3 When landowners have challenged the validity of official maps, courts have examined each set of facts on a case-by-case basis, and the result is usually unpredictable. Not only is the result unpredictable, but oftentimes landowners are deprived of the use of their property without compensation.

When official maps prohibit landowners from building on their property, the landowners often claim that a taking has occurred. Thus, many courts have looked to takings cases from the Supreme Court.4 While these precedents have been, and may continue to be, helpful in a few cases, they have not been successful in resolving many other official map conflicts. This is partly because regulatory takings law is already muddled and examined on a case-by-case basis:

Regulatory takings law combines the worst of two worlds - constitutional law's arid generalities and property law's substantive difficulties. To hear the Supreme Court tell it, this confusion is the best we can expect. In Penn Central Transportation Co. v. New York City, the leading regulatory takings case of our time, the Supreme Court complained that regulatory takings law "has proved to be a problem of considerable difficulty." "[QJuite simply," the Court confessed, it "has been unable to develop any 'set formula' for determining" regulatory takings cases.5

This Comment will argue that official map adjudication should be a separate area of law from the Supreme Court's takings cases. While in rare situations it is helpful to borrow from Takings Clause jurisprudence, the Supreme Court's regulatory takings cases generally do not provide effective guidelines for official map cases.

State legislatures should take the initiative to provide rules for official map cases. This solution will not only increase predictability but will also promote justice and efficiency. State legislatures should require local governments to compensate landowners during official map regulation periods. This requirement will force governments to take the planning process more seriously when deciding to reserve a landowner's land. The requirement will also give governments the incentive to keep the time and amount of property reserved to a minimum, thus, limiting compensation. Although courts protect the property of private individuals by interpreting the Fifth Amendment and deciding whether certain regulations are constitutional, statutes can extend the protection of private individuals beyond constitutional protections by enacting specific rules that are governed by state policy.

Part II discusses the background of official maps, their main purposes, and case law highlighting several of the issues involved with official maps. It then discusses the development of regulatory takings doctrine. Part III discusses how courts have looked to the Supreme Court cases for guidance, and how this method has proven ineffective. Part IV argues that the judicial system has been inadequate in protecting landowners' rights, and that statutes are a more appropriate means of protecting landowners affected by official maps. …

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