International Municipal Lawyers Association - Local Government Blog

The Leopard Leaps and Lucas Lives | November 10, 2008

Posted By: Dwight Merriam, Partner, Robinson & Cole LLP

So what happened on Election Day, November 4?  Yes, Obama won, the Democrats picked up several seats in the House and Senate, and all six New England states have congressional delegations made up exclusively of Democrats (plus a couple of wayward independents).  But did you notice what happened in New Orleans?

The voters of New Orleans, by a small margin, voted a charter amendment that requires land use regulations and decisions to be consistent with the plan.  How’s that for a novel concept?  As Bill Borah, New Orleans’ land use lawyer extraordinaire, quipped: “It would appear that the New Orleans leopard is indeed able to change its spots . . . .” 

Someone forgot to tell Bill that land-use decisions in New Orleans are made in back rooms, under the table, and over drinks at Galatoires.  Well, actually, he knew that, but for unfathomable reasons that none of us could ever discern he has worked doggedly over literally decades to try to get some rationality into a system that is fed by a bouillabaisse of special interests, irrationality, influence peddling, and a dash, sometimes more than a dash, of corruption.  I was fortunate to have a Navy reserve command headquartered in New Orleans for many years so I went back and forth for days and weeks at a time and got an outsider’s sense of how decisions have been made.  Plus, Bill kept me informed all along.  Let me tell you, this is a big change for New Orleans.

The Times-Picayune endorsed the charter amendment a week before Election Day and that probably made the difference for those who were on the fence. You can read it HERE. Others along the way, including my friend and mentor, Daniel R. Mandelker of Washington University in St. Louis, boosted the cause of good planning.  Dan was commissioned to write a report for the Master Plan Coalition, “A Report on Planning in New Orleans,” which is available online HERE.  Prof. Mandelker said in his report: “The city charter requires the planning commission to adopt a master plan, but does not require the city council to adopt the plan and does not require zoning and other land use decisions to be consistent with the master plan.  The city should adopt both of these requirements.”

On learning of the vote, Professor Mandelker said: “The charter amendments for the first time establish a responsible planning system in New Orleans, give the master plan the force of law, and require zoning to be consistent with the adopted plan. The amendments also require the establishment of an effective citizen participation program in the planning and zoning system.”

The country’s leading guru on comprehensive planning and the consistency doctrine, Edward J. Sullivan of Garvey Schubert Barer in Portland, Oregon, observed, not tongue in cheek, but fork in hand:  “If New Orleans can take the time and funds to plan for its future, given its other demands, so can every local government.  It’s much better to be known for food than disasters.”

And Bill Borah, who must be justifiably proud that his years of hard work paid off, told me:  “Last Tuesday, New Orleans took a giant step away from the ad hoc, dysfunctional planning process that has plagued it for decades. Because of voter approval of Charter amendments, the city is now required to develop a Master Plan with the force of law.  A plan that will require all land use regulations, including the zoning ordinance, to be consistent with the plan; a plan that will require all capital expenditures to be consistent with the plan; and a plan that will meaningfully structure citizens into the planning process. A huge moment in the history of this old American city.”

Phew, after that heady stuff, let’s get our feet on the ground.  Here’s your challenge question – in how many cases, since Lucas v. South Carolina Coastal Council, 505 U.S. 1003, was handed down on June 30, 1992, have money damages been paid to a claimant of a Lucas-style categorical taking?  I’ve asked all the luminaries and I think the answer is zero.  That’s right, zero.  People still talk a lot about Lucas and the complete wipeout, categorical, just-write-a-check-like-it’s-a-physical-invasion-taking case, but they are scarcer than a variance applicant who actually has a hardship.  But now, from California no less, comes John Monks v. City of Rancho Palos Verdes out of the Court of Appeals, Second Appellate District on October 1, 2008, finding, so it appears, a Lucas categorical taking for a “permanent moratorium” – kind of a contradiction of terms, don’t you think.  Read the decision HERE.  Let’s see what happens on remand.  Thanks to and then for reporting on it.

And if I’m wrong, and you can show me a decision based on Lucas where a check was actually written by a government, I will send you an autographed copy of the first edition of my book, The Complete Guide to Zoning, and have air freighted to you a box of Boudin sour dough bread from San Francisco.  One winner only, please…


  1. I am hereby entering your contest on condition that you NOT send me your book on zoning.

    My entry: City of Monterey v. Del Monte Dunes. Two million. Plus interest and attorneys’ fees.

    But your implicit point was made explicitley some time ago by the sainted Dick Babcock who admonished that if just compensation is decreed to be the remedy for regulatory takings, judges woul not enforce it. One of his many astute observations about land-use regulations.

    Comment by Gideon Kanner — November 11, 2008 @ 7:16 am

  2. Sorry, Gideon, but the Court never cites Lucas as the basis of its decision — it only lumps Lucas in with other cites, including Penn Central. Actually, the Court was careful to avoid characterizing its decison as based on any specific test: “Our decision is also circumscribed in its conceptual reach. The posture of the case does not present an appropriate occasion to define with precision the elements of a temporary regulatory takings claim;…” This is not surprisinbg, since it so departed from the Ninth Circut’s reasoning… Further, they cite Agins and even get involved in an Agins-esque discussion of the reasonableness of government regulation — something that has no place in a Lucas-based claim.

    Comment by Dwight Merriam — November 15, 2008 @ 9:11 pm

  3. Dwight, I enter the Loveladies Harbor federal decision from 1994. The opinion is sort of all over the place in its takings analysis, but it comes pretty darn close to calling the taking a Lucas-like total wipeout. And there was around a $2M judgment, which, with interest, totalled around $8M. The feds bought the property, and it’s still undeveloped. Please send the book. I like sour dough bread too.

    Comment by Andy Davis — November 26, 2008 @ 9:56 pm

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This blog is made possible by the International Municipal Lawyers Association (IMLA), but may include guest bloggers (who are attorneys with experience in local government matters) who might or might not work for IMLA. Their views (and those expressed on this site) do not necessarily express the views of IMLA.







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