Del Monte Dunes v. City of Monterey: Will the Supreme Court Stretch the Takings Clause Beyond the Breaking Point?

Abstract

In recent years, the U.S. Supreme Court has restricted the ability of state and local governments to implement land use controls, wielding the Takings Clause of the Constitution as its weapon of choice. The Court has expanded the applicability of the doctrine far beyond claims concerning real property, to overturn legislation protecting employee health benefits, and to find unconstitutional programs providing legal services to low-income clients. This essay argues that this limiting of the government's ability to exercise its police powers has subverted the original purpose of the Takings Clause. A case now pending before the Supreme Court, Del Monte Dunes v. City of Monterey, could provide the opportunity to reevaluate this course of action, or it could enable the Court to further restrict local governments from exercising intelligent control of land uses. The author contends that the Court should restrict successful regulatory takings claims to those that meet already-established requirements of an actual physical occupation or to those regulations that usurp all economic viability.