Working Paper No. 12-07:
The Parcel and Then Some: Unity of Ownership and the Parcel as a Whole
Date Posted: January 2012
Abstract (below) | Full text (most recent) on SSRN
The U.S. Supreme Court’s “parcel as a whole” doctrine evaluates regulatory takings claims in the context of the landowner’s entire holding. The doctrine is predicated upon a largely arbitrary bifurcation, whereby the jurisprudence of regulatory takings is rooted in substantive due process, although the jurisprudence of physical takings is rooted in property law. Given its lack of a foundation in property law, “parcel as a whole” is both complex and uncabined.
The open-ended nature of “parcel as a whole” is reflected in current attempts to extend it under an asserted “unity of ownership” theory. Under this formulation, separate deeded parcels may be treated as one parcel for takings purposes, even if there is no common or overlapping ownership or common commercial enterprise as traditionally defined by property, partnership, or corporate law.
This Article asserts that the proper foundation for “parcel as a whole” is the common law doctrine of “appropriation to use.” It subsequently analyzes the “unity of ownership theory,” as it relates to coordinated development by separate owners of contiguous parcels. Under the Georgist “unity of ownership” view, value is created by society, which justifies government’s arrogation of the benefits of neighborly cooperation.
The Article concludes that “appropriation to use” clarifies analysis of the relevant parcel, and that “unity of ownership” undermines rules for determination of ownership established in real property, partnership, and business law. It thus is inimical to property rights, and, more broadly, hinders individual flourishing by depriving people of the fruits of social cooperation.