This Note first examines the Supreme Court cases that involve fifth amendment taking and fourteenth amendment due process challenges to land use regulations. Next, this Note discusses the meaning of Justice Brennan's proposals and their potential effect on land use planning and zoning. This Note suggests that overly restrictive zoning ordinances should not be viewed as a taking requiring just compensation. Instead these ordinances should be viewed as invalid exercises of the municipality's police power because of their failure to provide substantive due process to the landowner. The landowner's remedy should therefore be the invalidation of the ordinance, not just compensation. If the invalidation of the zoning ordinance is not adequate relief for the landowner, this Note proposes to let landowners sue for a monetary award under 42 U.S.C. § 1983, which allows damages if an individual's constitutional rights are violated.
Kim C. Pflueger,
Takings Law—Is Inverse Condemnation an Appropriate Remedy for Due Process Violations?—San Diego Gas & Electric Co. v. City of San Diego, 450 U.S. 621 (1981),
57 Wash. L. Rev.
Available at: https://digitalcommons.law.uw.edu/wlr/vol57/iss3/8