Public Use | Kelo

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In Action Apartment Ass’n v. City of Santa Monica, No. 05-56533 (Dec. 3, 2007), the US Court of Appeals for the Ninth Circuit sustained Santa Monica, California’s 2002 amendments to its rent control ordinance against a takings and due process challenge:

In this appeal, we are presented with a claim that Santa Monica’s rent control ordinance is unconstitutional under both the “public use” component of the Fifth Amendment’s Takings Clause and the substantive component of the Fourteenth Amendment’s Due Process Clause. We conclude that the Fifth Amendment claims are not viable, that the facial Fourteenth Amendment claim is time-barred, and that the as applied Fourteenth Amendment claim is unripe. We therefore affirm the judgment of the district court, dismissing the complaint.

Slip op. at 15619.  The court held that the case were not distinguishable from the claims in Schnuck v. City of Santa Monica, 935 F.2d 171, 172…

Continue Reading Ninth Circuit: Rent Control Ordinance Not a Taking or Due Process Violation

The Federalist Society’s section on property rights and environmental law has posted audio (14mb mp3) (with video coming soon) of a recent debate held in Washington, D.C., about the state of Property Rights in the United States.  Two Ninth Circuit judges, Alex Kozinski and Stephen Reinhardt, anchored the debate.  Jim Burling of the Pacific Legal Foundation moderated.  Continue Reading Property Rights in the United States: a Debate (mp3)

As reportedby the ABC affiliate in Cincinnati in September, an Ohio state courthas ordered the City of Norwood to make whole the property owners whowere wrongfully targeted by the City for eminent domain.  The decisionis the fallout from the Ohio Supreme Court’s decision in City of Norwood v. Horney,853 N.W.2d 1115 (Ohio 2006), which struck down the City’s attempt totake private property by eminent domain.  The court held that there wasnot a public use for the taking under the Ohio Constitution, andinvalidated a part of Ohio’s eminent domain statute.  After that decision, the property owners asked the trial court to “be made whole—to be able to return our business to itscondition before Rookwood and the City illegally took it from us.”

On September 25, 2007, the judge held that “[t]he Court finds that, in order to carry out the Supreme Court’s ruling,the [property owners] are entitled to be…

Continue Reading Ohio Court Makes Property Owners Whole After Eminent Domain Struck Down

In Scheehle v. Justices of the Supreme Court of Arizona,No. 05-17063 (Nov. 15, 2007), the Ninth Circuit held that Arizona’s”low bono” requirement that all attorneys serve as arbitrators for $75per day, maximum two days, is not a taking.  It’s probably safe tosurmise that the plaintiff’s position probably received little sympathyoutside of certain members of the Bar:

Mark V.Scheehle, an Arizona tax lawyer, challenges as an unconstitutionaltaking the Arbitrator Appointment System of the Maricopa CountySuperior Court (“Appointment System”), which requires that anexperienced attorney serve as an arbitrator for up to two days a yearwith minimal compensation.  Following a decision by the Arizona SupremeCourt that the Appointment System was permissible under Arizona law,the district court reaffirmed its grant of defendants’ motion forsummary judgment. We now affirm. We hold that Scheehle’s constitutionalchallenge to the Appointment System is properly considered under theregulatory takings test set forth in Penn Central Transportation Company v. City…

Continue Reading Ninth Circuit: No Taking for Forced Attorney Low Bono* Labor

More on Franco v. National Capital Revitalization Corp., No. 06-CV-645 (July 12, 2007), a decision from the District of Columbia Court of Appeals about the level of proof needed to show a “pretextual” — and therefore prohibited — taking. 

I.  Kelo and Pretextual Takings

In Kelo v. City of New London, 545 U.S. 469 (2005), a bare majority of the US Supreme Court held that takings supported by claims of “economic development” were governed by rational basis review and are not, in every case, devoid of public purpose.  The Court, however, reserved judicial oversight, holding that in certain circumstances, a court could strike down a taking for lack of public use.  This result was consistent with the Court’s established Public Use jurisprudence, most notably Berman v. Parker, 348 U.S. 26 (1954), in which the Court held that eminent domain in the redevelopment context would be reviewed as…

Continue Reading More on DC Decision on Evidence of Pretext in Public Use Challenges

Thanks to Property Prof Blog for tipping us off to a recent case involving claims of “pretext” in eminent domain cases from the District of Columbia Court of Appeals has issued an opinion in Franco v. National Capital Revitalization Corp., No. 06-CV-645 (July 12, 2007), posted here. 

I haven’t had time to digest the opinion yet, but Professor Ilya Somin has posted a summary and analysis of the decision here.  More to follow after I’ve had a chance to review the decision.  Update: I’ve summarized the decision in this post.Continue Reading DC Court: Evidence of Pretext in Public Use Challenges

The US Court of Appeals for the Second Circuit (NY) has provided some guidance on how to prove a substantive due process zoning case, and what is a “property interest” that triggers constitutional protection.  In Cine SK8, Inc. v. Town of Henrietta (No. 06-1718-cv) (Nov. 8, 2007), “Fun Quest” received a special use permit to operate a dance club for teenagers, but after an overcrowding incident at Fun Quest, the Town modified the permit to prohibit the use. 

Fun Quest filed a federal court lawsuit, alleging the Town modified the permit and eventually drove Fun Quest into bankruptcy because it was motivated by racial animus (the district court found that “numerous witnesses have testified that after drawing attention to photographs taken of the crowd gathered at Fun Quest . . . [a Town supervisor] stated in sum and substance: ‘Look at these pictures.  There is not a white face among…

Continue Reading Second Circuit: How to Prove a Due Process Zoning Case

A must-read decision today from the Ninth Circuit — Crown Point Development, Inc. v. City of Sun Valley, No. 06-35189 (Nov. 1, 2007).  The court clarified a point that has been a long time coming: a property owner may assert claims under both the Takings and the Due Process Clauses.  In other words, land use guys, the court has finally torpedoed Armendariz v. Penman, 75 F.3d 1311 (9th Cir. 1996) (en banc). 

Armendariz stood for the unusual proposition that a property owner’s claim for violations of substantive due process rights were “subsumed” within the owner’s claim for violation of the Takings Clause.  Thus, in land-related issues, a property owner could only bring takings claims.

Sun Valley rejected Crown Point’s development application.  Afterpursuing relief in state court, Crown Point filed a federal civil rights actionpursuant to 42 USC § 1983, alleging that Sun Valley arbitrarilyinterfered with its property rights…

Continue Reading ▪ Ninth Circuit: Landowner May Assert Both Takings and Due Process Claims