TAKINGS IN TEXAS

Got an e-mail from the kind folks at GELPI calling attention to a takings case out of the Supreme Court of Texas in which the court rejected takings challenges against a development moratorium and a rezoning plan. The case is Sheffield Development Company v. City of Glenn Heights, and you can read the opinion here (PDF file) or here (html file with some translation problems). Developer-friendly folks like Tim Sandefur shouldn't be too upset about the opinion in one sense, though: even if the court sided with the city, it still preserved its authority to second-guess the aims of local zoning ordinances under the "substantially advanced" test from Agins. The folks at GELPI think that the "substantially advanced" test is an invitation to Lochner-style judicial activism and really doesn't belong in takings law at all (it comes from the due process area).

I think that GELPI's argument makes sense, although -- admittedly -- I'm not an expert in this area of law. It's not clear to me why judges looking at the takings clause (rather than the due process clause) should be concerned about the purposes of government action. The power to take property is not clearly restricted by the takings clause, only the ability of government to get away with effecting a "taking" for free. At the very least I hope that folks who worry about "judicial activism" don't think that judges should be in the business of awarding six- and seven-figure damages to developers because they (the judges) don't think that the government action accords with their view of the proper aims of land-use planning.

MORE: see the post immediately above for clarification. I am not affiliated with GELPI so any views expressed here are purely my own; this post conflates the two, I think, and I'm sorry about that!