New Article: “The Takings Are Coming: How Federal Courts Can Protect Regulatory Efforts to Address California’s Housing Crisis”

New Article: Randall Winston, The Takings Are Coming: How Federal Courts Can Protect Regulatory Efforts to Address California’s Housing Crisis, 47 Ecology L.Q. 625 (2020). Abstract below:

In 2018, California Governor Gavin Newson called for building 3.5 million new homes by 2025, a historically unprecedented rate of construction intended to address the state’s severe and worsening housing crisis. Spiraling unaffordability, insufficient housing, and destructive urban sprawl have exacerbated environmental and socioeconomic disparities in California, enabled by restrictive local government regulations that make it difficult to build housing in the dense, job-rich areas where it is needed most. Taking aggressive action to alleviate this crisis is crucial. As state and local governments seek to do so, courts play a critical role in evaluating the legitimacy of land use laws intended to facilitate more affordable housing construction. For decades, state courts have been the first to evaluate such laws when subject to legal challenges, including determining whether a government
regulation has gone too far by taking private property without just compensation under the Fifth Amendment’s Takings Clause.

But a recent Supreme Court decision upends this precedent. In Knick v. Township of Scott, the Court issued an opinion that allows property owners to go directly to federal court if they believe a regulation amounts to an unconstitutional taking. This includes challenging regulations that are central to California’s efforts to build more affordable housing, such as rent control ordinances, inclusionary zoning laws, and measures designed to limit sprawl. Because federal courts unfamiliar with state law will likely mistakenly evaluate takings claims and view property owners more sympathetically than state courts, Knick threatens to undermine these regulations. This Note explores why safeguarding rent control, inclusionary housing, and growth control measures is crucial to addressing California’s housing crisis. In doing so, it evaluates the implications of the Knick decision for relevant Takings Clause jurisprudence and argues that a threatened reevaluation of takings claims can be avoided if federal courts look to California housing law as a guide.

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