Del Monte Dunes, Good Faith, and Land Use Regulation

The U.S. Supreme Court’s property rights jurisprudence always has had a Delphic quality. During this century, its seminal expressions have been Justice Holmes’ enigmatic “too far” language in Pennsylvania Coal Co. v. Mahon and Justice Brennan’s reliance on the amorphous conception of “investment-backed expectations” in Penn Central Transportation Co. v. City of New York. The Court’s 1999 decision in City of Monterey v. Del Monte Dunes at Monterey, Ltd. does not depart from this pattern. Furthermore, just as supplicants to the Oracle at Delphi evaluated its pronouncements in light of their own preconceptions, modern commentators tend to view the Court’s regulatory takings handiwork in the same manner. Once again, Del Monte Dunes is no exception—indeed, it is a veritable Rorschach test. This is due largely to its heavily fact-bound nature, its implication of important constitutional issues aside from property rights, and the proclivity of the opinion writers to sweeping asides. In particular, Del Monte Dunes creates a powerful temptation to comment on all of the things that the case does not say. But the law of the case did not leave the Court with the necessity of saying much. While there is some dicta and many implications that we should parse, the Court did not overreach by trying to do more than decide the case before it. Aside from dicta and speculation, there are several things that we can say with certainty. The first, and most important, is that the landowner won. Del Monte Dunes is the first case in which the Court has upheld the award of regulatory takings damages. The city of Monterey will now have to pay $1.45 million plus interest and costs. That certainly will give land use regulators pause in the future. Second, Del Monte Dunes emphatically states that land use regulation is not immune to judicial review. In this same vein, many of the questions at oral argument and much in the Justices’ opinions evince the Court’s growing concern that governmental officials deal with property owners with good faith. Finally, the Court has rebuffed the U.S. attempt as amicus to force a limitation (or even an explication) of the role of substantive due process in inverse condemnation cases. For now, the law of regulatory takings remains almost as elusive as ever. Beyond these points, one might speculate that the Court’s growing interest in fairness would lead to its increased utilization of substantive due process analysis, whether explicit or implicit, in regulatory takings cases. This Article discusses both what can be said with certainty and the matter for speculation.