“A One Way Ticket to Palookaville”: Supreme Court Takings Jurisprudence After Dolan and Its Implication for New York City’s Waterfront Zoning Resolution

Authors

Jill Illan Berger Inbar, Benjamin N. Cardozo School of Law

Abstract

This Note will use the Waterfront Ordinance as a vehicle for examining the new heightened scrutiny standard introduced in Dolan. Part I provides an overview of takings jurisprudence and the traditional pre-Nollan and pre-Dolan standards, which were applied to determine whether an exercise of police power oversteps its bounds and interferes with private property rights guaranteed under the Fifth Amendment. Part II reviews the new standards espoused by the Supreme Court in Nollan and Dolan. Part III describes the purpose of New York City's 1993. Waterfront Zoning Ordinance and discusses its history, objectives, and provisions. Part III then analyzes the constitutionality of the Waterfront Ordinance and applies the Supreme Court's "rough proportionality" test introduced in Dolan. Part III considers how the Dolan standard invalidates legislative actions designed to promote the public welfare by purportedly safeguarding individual property rights. Further, it concludes that the Waterfront Ordinance would be found unconstitutional and struck down as a taking of property without just compensation under the new standard. Part IV proposes changes that, arguably, would make the ordinance constitutional under the current doctrine, but concludes that, in all likelihood, even these changes would not ensure the constitutionality of the ordinance under the current takings doctrine. Part IV also questions the wisdom of erecting barriers to optimal municipal ordinances and casts doubt on the manageability of the current takings doctrine. Part IV also suggests that the heightened scrutiny standard is too broad-reaching and inflexible and, therefore, unmanageable, permitting the judiciary to act as a superlegislature. Thus, Part IV proposes a narrowing of the holdings of these recent decisions by formulating an exception to this standard based on public policy considerations, such as the uniqueness of the urban environment, specifically, the urban waterfront.

Keywords

Jurisprudence, Land Use, Takings, Property--Personal and Real, Zoning, Constitutional Law, Courts, Fifth Amendment, Criminal Law and Procedure

Disciplines

Constitutional Law | Courts | Criminal Law | Criminal Procedure | Jurisprudence | Land Use Law | Law

Recommended Citation

Jill I. Inbar, “A One Way Ticket to Palookaville”: Supreme Court Takings Jurisprudence After Dolan and Its Implication for New York City’s Waterfront Zoning Resolution, 17 Cardozo L. Rev. 331 (1995).
Available at: https://larc.cardozo.yu.edu/clr/vol17/iss2/8