On History, Takings Jurisprudence, and Palazzolo: A Reply to James Burling

Abstract

 The so-called property rights movement has hailed Palazzolo v. Rhode Island as a landmark win for landowners, a blockbuster breakthrough that will end “smart growth,” curtail other land use controls, and lead to manifold victories for claimants under the Takings Clause of the Fifth Amendment. James Burling’s piece onPalazzolo is more of the same, proclaiming the ruling to be a decisive win in an age-old, ideological battle. This Article shows that Burling’s take on the ruling is wishful thinking. He errs in his description of history, takings jurisprudence, and Palazzolo. Palazzolo is but a small, incremental development in the case law from which both takings claimants and defendants may draw support. The Court’s most recent takings ruling, Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency, reaffirms that the vast bulk of land use controls and other community protections do not implicate the Takings Clause.