Avoiding the Taking Issue: Criticisms of the Supreme Court's MacDonald Case

Abstract

Albert Einstein said that an event never happens twice in exactly the same way. But that statement was challenged at the 1986 American Law Institute-American Bar Association Land Use Institute by the opening session about the U.S. Supreme Court. In the opening session of the 1985 Land Use Institute, the speakers expressed deep regret that for the third time in five years the Court had avoided the taking issue in the case of Williamson County Regional Planning Commission v. Hamilton Bank of Johnson City, 105 S.Ct. 3108 (1 985), 37 ZD 286. Again in this year's 1986 opening session of this excellent Land Use Institute, the speakers wore the same frustrated expressions as last year because again, this time in the case of MacDonald, Sommer, and Frates v. County of Yolo, 54 U.S.L.W. 4782, 106 S.Ct. 2561 (1986), 38 ZD 359, the Court sidestepped the taking issue. Again the court was severely criticized. Speakers said that the court is “mediocre” in general and specifically does not understand land use regulations. One speaker even described the Court as “intellectually dishonest” for not following its previous law by now creating procedural obstacles to avoid the taking issue.