Brady on Street Grading and Takings in State Courts

Maureen E. Brady, a candidate for the PhD in Law at the Yale Law School, has posted Property's Ceiling: State Courts and the Expansion of Takings Clause Property, which is forthcoming in volume 102 of the Virginia Law Review:    

The federal and nearly all state constitutions include takings clauses providing that private property shall not be taken for public use without just compensation. To the extent that scholars have considered the role of state courts with regard to these takings clauses, they have focused on constitutional limits on judicial restrictions as to what constitutes property. Little attention has been paid, however, to how state courts can expand the definition of private property — and the problems associated with that capability.

Through an original case study derived from unexamined historical sources, this Article explores the complex questions raised by constitutional property creation. It tells the story of a series of nineteenth and twentieth century cases on street grading, in which property owners sought relief when municipal officials vertically shifted streets — sometimes in excess of a hundred feet — to improve transportation. Though these regrades often loomed over people’s homes or left them stranded on inaccessible cliffs, government officials contended that because the regrades did not physically take any property, abutting owners could not bring takings claims. In response, state courts created a novel “right of access” to land and treated it as constitutional property confiscated by the regrades, an innovation which entitled affected owners to compensation for the serious damages their property suffered.

As this history demonstrates, state courts can play an important and desirable role in takings law by recognizing new forms of constitutional property. But courts should not have unfettered discretion to invent new rights and then find them taken, as this may incur significant administrative and systemic costs. This Article therefore presents a framework for identifying constitutional property interests derived from both the street grade cases and other precedents, arguing that it can effectively cabin inappropriate expansions of what constitutes private property for takings purposes while keeping the important structural function of constitutional property innovation intact.