From Railroads to Sand Dunes: An Examination of the Offsetting Doctrine in Partial Takings

December 1, 2014

Called “shadowy at best,” the offsetting doctrine in partial takings has confused “even trained legal minds” and generated inconsistent decision after inconsistent decision. The offsetting doctrine allows certain benefits, termed special, to offset condemnation awards, while general benefits may not be offset. Courts blindly adhere to the doctrine despite its underpinnings rooted in eighteenth-century public policy, which was based on concerns of overly speculative valuation and arguably erroneous fairness, as well as incorrect interpretations of Takings Clause jurisprudence. Such adherence dramatically increases the cost of financing a takings project.

In the face of blind adherence to the doctrine, municipalities are forced to balance the needs of their citizens against the needs of eighteenth-century courts, often resulting in the failure of municipalities to engage in takings for the public benefit. This Note argues that new public policy concerns warrant rejection of the doctrine in favor of a rule that allows all nonspeculative benefits to offset a condemnation award. This rule would take into account modern advances in evidence, promote fairness, simplify the judicial process, and allow municipalities to respond to twentieth-century problems while landowners receive just compensation for taken land.

December 2014

No. 3