ARTICLE: "PAYING FOR THE CHANGE":+ FIRST ENGLISH EVANGELICAL LUTHERAN CHURCH OF GLENDALE v. COUNTY OF LOS ANGELES AND THE CALCULATION OF INTERIM DAMAGES FOR REGULATORY TAKINGS Skip over navigation
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Copyright (c) 1990 Boston College Law School.
Boston College Environmental Affairs Law Review

ARTICLE: "PAYING FOR THE CHANGE":+ FIRST ENGLISH EVANGELICAL LUTHERAN CHURCH OF GLENDALE v. COUNTY OF LOS ANGELES AND THE CALCULATION OF INTERIM DAMAGES FOR REGULATORY TAKINGS



+ Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 416 (1922). The title for this Article is taken from Justice Holmes's familiar dictum in Mahon that "[w]e are in danger of forgetting that a strong public desire to improve the public condition is not enough to warrant achieving the desire by a shorter cut than the constitutional way of paying for the change." Id.

Spring, 1990

17 B.C. Envtl. Aff. L. Rev. 551

Author

Joseph LaRusso*

Excerpt

I. INTRODUCTION

The Supreme Court's validation of monetary damages for temporary regulatory takings in First English Evangelical Lutheran Church of Glendale v. County of Los Angeles 1 supplanted the gradual promulgation of such remedies by state and lower federal courts. 2 Yet in spite of the Court's authoritative affirmation of the constitutionality of such damages, First English provided little by way of guidance to assist in a determination of how the legal requirements of the fifth amendment just compensation clause can be reduced to practice in order to determine suitable damage awards for regulatory takings. In fact, the Court's holding provided no guidance whatsoever, except to the extent that it specified that aggrieved property owners must be compensated "for the period during which the taking was effective." 3

The exclusive emphasis that the Court placed on the duration of temporary takings belies the fact that the calculation of interim damages ultimately must depend on a compensation formula comprised of three variables: the measure of the property interest or "use right" that must be compensated, the amount of property involved, and, finally, the duration of the taking. 4 The most significant feature of these variables, with the exception of the amount of property involved, is that they are not derived according to any method that properly could be called empirical. The determination of which use rights are compensable and which are not, and the duration of the period during which a taking is "effective," 5 are values that do ...
 
 
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