Mississippi College Law Review
AN APPEAL TO HEAVEN—THE TIMELESS PLEA FOR NOLLAN/DOLAN EXTENSION TO THE SPHERE OF LEGISLATIVE EXACTIONS
“. . . [W]henever the legislators endeavour to take away and destroy the property of the people . . . they put themselves into a state of war with the people, who are thereupon absolved from any farther obedience . . . .”1
In 1772, the colonists of Weare, New Hampshire, were given a choice: cede all white pine trees grown on their lands to the King of England or pay a hefty fine. It was an odious decree—one that struck at the very ideal of the American colonies. Imbued as they were with a sense of divine right to property, the colonists refused, taking up arms to lead a gallant revolt. In a burst of righteous fury, they sheared the King’s horses, flogged his enforcement officials, and paraded both through the streets and out of town. Known as the “Pine Tree Riots,” these events bled into the American Revolution and became immortalized in the “Appeal to Heaven Flag”—an enduring if little known tribute to liberty, natural rights, and the American spirit. Their staunch Lockean convictions matched only by their fervor for freedom, the early colonists were unwilling to yield even a stick of pine to the throes of regulatory tyranny.
With events like those in Weare County no doubt in the back of mind, the drafters of our Constitution were determined to forge a protection against government overreach. They did so with the Fifth Amendment’s “Takings” Clause, which guarantees that private property shall not be taken except for public use—and not without just compensation. As tyrannical tree taxes faded in the rearview mirror, Fifth-Amendment Takings doctrine appeared poised to protect landowners from abuse, and takings jurisprudence was able to keep pace with increasingly inventive governmental attempts to “take” property.
But in the two-hundred and fifty years since the Pine Tree Riots, the nemesis of the property owner has become, not the tyrant across the sea, but the tyrant in city hall. The enforcement of modern exactions has placed modern landowners in a position little-better than their eighteenth-century counterparts; as city planners find more ways to take property from landowners, the need to evolve commensurate protections for private- property rights has grown desperate. Two seminal Supreme Court cases, Nollan v. California Coastal Commission, 483 U.S. 825 (1987), and Dolan v. City of Tigard, 512 U.S. 371 (1994), have provided a test that would do much to solve this problem, but a refusal to extend them has left property owners helpless to respond against municipal encroachment. The situation is dire: if property owners are to be protected, Fifth Amendment takings jurisprudence must adapt.
In response, this Article proceeds in seven parts to plead for an extension of Nollan/Dolan protections to the sphere of legislative exactions: a solution that would benefit cities and property owners alike. Such a move would give cities the clarification they need to craft proper regulatory measures; at the same time, it would protect property owners by ensuring that valid ordinances do not overstep their authority. A refusal to extend, however, will prevent landowner protections from keeping pace with the steady march of regulatory creep—leaving the modern landowner hardly better off than those New Hampshire colonists forced to surrender their white pines over two centuries ago.
"AN APPEAL TO HEAVEN—THE TIMELESS PLEA FOR NOLLAN/DOLAN EXTENSION TO THE SPHERE OF LEGISLATIVE EXACTIONS,"
Mississippi College Law Review: Vol. 40:
2, Article 8.
Available at: https://dc.law.mc.edu/lawreview/vol40/iss2/8