Land Use Regulation and Compensation from the Perspective of Property Protection: The Introduction of Regulatory Takings Doctrine in the United States
Date Issued
2007
Date
2007
Author(s)
Teng, Yu-Hsiang
DOI
zh-TW
Abstract
Although land use regulation does not deprive people’s property right, it may still cause serious loss to property interest holders. The U.S. Supreme Court stated that while property might be regulated to a certain extent, if regulation went too far it would be recognized as a taking. The Constitutional Court in Taiwan also adopted a similar idea named as the principle of “special sacrifice”. However, there is no conclusion about when a regulation in question would constitute special sacrifice. The question becomes even more problematic if coupled with judicial practices in Taiwan. When dealing with cases relating to takings, the administrative court always dismissed the plaintiff’s complaint due to lack of compensation in the law, and the Constitutional Court also failed to give a clear standard for judgment of the constitution of special sacrifice.
When analyzing the U.S. Supreme Court decisions, I find out that the opinions of the Justices can be divided into two kinds, and I believe this difference results from different understandings of property right. After comparing these two different understandings, I argue that property right is not only a fundamental right guaranteed by the Constitution, but also a social institution for distributing limited resources. Any interpretation or protection of property right is a decision concerning the distribution of resources, and there is no set formula for making the decision. The judgment of whether land use regulation constitutes special sacrifice is no exception. It has to be made by ad hoc factual inquiries and multi-factor balancing. Nevertheless, ad hoc balancing doesn’t mean that there is no standard at all. I identify four important guiding principles from the U.S. Supreme Court decisions. Since there are different interpretations of these principles, I shall choose the interpretations and further refine the principles according to my understanding of property right stated above.
Land use regulation does not easily constitute special sacrifice according to my model, but it does not mean that I don’t favor the protection of property right. My proposition on the one hand is based on the special character of property right and the pursuit of social justice through fair distribution of resources; on the other hand is to ensure the legitimacy and fairness of the distribution through reasonable procedural protection. Therefore, if there is no procedural participation from property interest holders before the decision of the regulatory authorities, the court should revoke the regulation.
Finally, in order to put my model into practice, I have to take the judicial review system in Taiwan into consideration. The Constitutional Court, which is still confined to conducting abstract review, is not suited to adopt the model I advocate. Therefore, the administrative court should take the responsibility to review if the regulation goes too far and even further refine my model through precedents. As for the Constitutional Court, it can review if there is sufficient procedural protection in the statutes that authorize the regulation. As a result, although how a land use regulation in question will be deemed special sacrifice is still a difficult question, there is a workable model with consistent understanding of property right to be applied, and the suggestion I make should be a practical and less drastic adjustment to the status quo.
Subjects
財產權
土地使用管制
管制準徵收
特別犧牲
資源分配
程序保障
個案衡量
property right
land use regulation
regulatory takings
special sacrifice
distribution of resource
procedural protection
ad hoc balancing
SDGs
Type
thesis
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