Cardozo Law Review
Abstract
There is a clear tension in the law between exercises of state police power in land-use regulation including zoning laws, on the one hand, and takings under the Fifth Amendment, on the other. Courts have struggled to find a dividing line between the two, but for their efforts what we are left only with is a disjointed array of legal tests, each one as flawed as the next. Legal theorists, for their part, must shoulder some of the blame-no single theory can identify the point at which community need outweighs private property rights. Even well-developed theories thus fail to translate into practical application. But this Article is resolved to bridge that gap.
This Article presents a novel theory that provides a unified normative framework for evaluating government interference with private property. It seeks to ½ identify the tipping point at which private property rights must give way to the needs of the community at large. This approach, which I refer to as Property's Tipping Point, is a burden-shifting framework that accommodates competing theories of property. It builds on landmark Supreme Court cases to provide a unified standard for courts to apply in resolving cases of regulatory takings and exactions.
The approach presented in this Article has both a substantive and a procedural component. It develops two tests that work dynamically to identify the point where community need trumps owner autonomy: the indispensability of needs and the generality of action. The former requires that any government interference with private property is designed to promote community prosperity. The latter test-the generality of action-confines the government to the boundaries of the rule of law. It is only by passing these two tests that a government authority may reach Property's Tipping Point.
Disciplines
Housing Law | Land Use Law | Law
Recommended Citation
Shai Stern,
Property's Tipping Point,
39
Cardozo L. Rev.
1693
(2018).
Available at:
https://larc.cardozo.yu.edu/clr/vol39/iss5/4