Of Windfalls and Property Rights: Palazzolo and the Regulatory Takings Notice Debate

Abstract

Claims for government compensation due to regulatory takings usually hinge on the reasonable investment-backed expectations of the claimant. The 2001 U.S. Supreme Court decision Palazzolo v. Rhode Island eliminated notice of existing regulations as a bar to such a takings claim. Left undecided was the extent to which notice affects the claimant's reasonable investment-backed expectations. In this Comment, Max Gibbons argues that notice should be irrelevant to a regulatory takings claim. Inclusion of this factor would impose a severe restraint on the alienation rights of regulated property owners. The Anglo-American common and statutory law has developed with a particular concern for unfettered alienation and none of the traditional justifications for limited alienation restrictions apply in the takings context. Yet an examination of the current Court indicates that the votes exist to set a precedent that would impose a new, unnecessary restriction on the alienation of real property. The author argues that eliminating notice from an assessment of reasonable investment-backed expectations would not only hold the government accountable for unconstitutional acts, but would allow both the current and previous owners to receive appropriate compensation for their property.

53_50UCLALRev12592002-2003
By uclalaw