Lingle, Emily Litella, and property rights

Thought it might interest folks to do a roundup on last month's Supreme Court decision in Lingle v. Chevron, which affects "takings" challenges to land use restrictions such as zoning and rent control. Lingle threw out the earlier Agins v. City of Tiburon doctrine that a regulation of private property is an unconstitutional "taking" if it "does not substantially advance legitimate state interests." Mark Tushnet, blogger and Constitutional scholar, called the decision a "Never mind" in the spirit of the great fictional misunderstander Emily Litella.

The decision's immediate effect was to disappoint a property owner by refusing to overturn a Hawaii rent control law specific to leased gas stations. However, the National Association of Home Builders welcomed the decision as a victory for property rights, saying it clarified the applicability of other doctrines in the law of takings. The American Planning Association and a Washington Post editorial praised it for reducing confusion and heading off a possibility of excessive court meddling with regulatory legislation.

By way of in-depth analysis, here's a discussion of takings law at the National Law Journal that discussed Lingle last November while the case was still pending. And there's a big archive of briefs by the Lingle parties and amici at the Georgetown Environmental Law and Policy Institute.

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