Regulatory takings

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Thanks to both Patty Salkin’s Law of the Land blog and Gideon Kanner’s Gideon’s Trumpet, we’ve been alerted to a regulatory takings case from the Georgia Supreme Court that presents an unusual fact pattern.  In Mann v. Georgia Dep’t of Corrections, No. S07A1043 (Nov. 21, 2007), the court struck down as an illegal taking a Georgia law that prohibited convicted sex offenders from living within 1,000 feet of a school or child care facility. 

Mann, an offender, was living legally in a home he owned, when a child care facility located within 1,000 feet.  The Department of Corrections ordered Mann to leave upon pain of arrest.  Professor Salkin summarizes the case here, and Professor Kanner adds his analysis here.  They both sum up the facts and holding of the case very thoroughly. 

The court noted that the effect of the Georgia statute wasnot simply to interfere…

Continue Reading Law That Requires Sex Offender Move From Home is a Regulatory Taking

The US Court of Federal Claims (CFC) is the court assigned jurisdiction under the Tucker Act to hear inverse condemnation and regulatory takings claims against the federal government where the remedy sought is money damages.  The CFC is an “article I” court meaning its judges do not have life tenure as do judges of article III courts, but aside from that and its limited jurisdiction, it functions very much like the district courts.  Appeal of the CFC is taken to the Court of Appeals for the Federal Circuit.  Here is a rundown of a few of the court’s recent decisions involving takings issues:

Contract is not “property” — Griffin Broadband Communications, Inc. v. United States, No. 06-898C (Nov. 19, 2007).  The court dismissed a takings claim based on a contract between the plaintiff and the Army to provide TV and communication services at Fort Irwin, California.  After 10…

Continue Reading Court of Federal Claims Takings Roundup

The Wall Street Journal details impact fee issues in “Rising Use of ‘Impact’ Fees Rankles New-Home Buyers,” with some truly horrific examples, including one couple whom a California city demanded pay a $240,000 fee to get building permits to construct a rural home valued at $500,000, and homeowners who were required to sign away their first amendment rights as a condition of obtaining a permit.  Worth a read.

Exactions are not limited to demands for cash.  For example, the County of Maui imposes a 40% – 50% “affordable” requirement on new housing developments.  See this post for more. Continue Reading Wall St. Journal on Impact Fees and Exactions

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

The Court has posted the transcript of today’s oral argument in the John R. Sand and Gravel Co. v. United States appeal here. 

The Supreme Court will decide whether the statute of limitations in inverse condemnation actions against the United States under the Tucker Act is “jurisdictional” or may be waived by the defendant.  More about the case, including a summary and the briefs of the parties and amici here.Continue Reading Transcript of Oral Arguments in Tucker Act Statute of Limitations 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

Cornell Law School’s Legal Information Institute has posted a comprehensive summary and analysis of the the arguments in the upcoming John R. Sand & Gravel v. United States appeal, scheduled for oral argument in the US Supreme Court on November 6, 2007.  The issue, as I posted about here, is whether the six year statute of limitations in the Tucker Act is “jurisdictional.”

The merits and amicus briefs discussed in the LII’s summary have been posted on the ABA’s Supreme Court preview site:  Petitioner’s briefUS government’s briefamicus brief of Pacific Legal Foundationamicus brief of the National Association of Homebuilders. Continue Reading ▪ Summary of John R. Sand & Gravel Case: Is the Statute of Limitations in Federal Inverse Condemnation Cases Jurisdictional?

Yesterday’s Honolulu Star-Bulletin ran an editorial “Access to Oahu’s shoreline is being blocked little by little,” spurred by a brewing controversy regarding access to public beaches across private property in Kailua.  The editorial calls for political leaders to make access to public beaches “a priority,” by establishing an “enforceable policy” to promote access:

So the recent conflict between public entitlement and private landowners about a right-of-way to Kailua Beach is a common episode, one that will be repeated until a sensible, enforceable policy is established to support the access law and existing standards for pathways are implemented.

The editorial does not suggest what this “policy” might be.  It acknowledges the obvious means of acquiring private property for public access: eminent domain, which requires that the government pay just compensation and damages to the property owner(s).  It also acknowledges, however, that there may be no money in the public…

Continue Reading ▪ Shoreline Access Across Private Property – A Shortcut to Paying for the Change?

The merits brief of the United States in John R. Sand & Gravel Co. v. United States, No. 06-1164 has been posted here.  Docket listing here. 

The case involves an inverse condemnation claim against the federal government under the Tucker Act.  Apparently, thegovernment in the Court of Federal Claims did not raise a statue of limitations defense, nor did it on the appeal to the Federal Circuit. 

But the Federal Circuit raised and decidedthe issue sua sponte, dismissing the case because the statute of limitations goes to jurisdiction, and cannot bewaived.  The Federal Circuit opinion is posted here (500kb pdf).

The Question Presented by the property owner/petitioner as I mentioned here is:

The statute of limitations in the Tucker Act, 28 U.S.C. §2501, provides: “Every claim of which the United States Court of Federal Claims has jurisdiction shall be barred unless the petition thereon is filed…

Continue Reading ▪ Government Brief in Federal Inverse Condemnation Statute of Limitations Case

The US Supreme Court has denied review to MiPro Homes, L.L.C. v. Mount Laurel Township (No. 06-1345) (docket listing here).  The question the Court was asked to review was:

Whetherthe Takings Clause of the Fifth Amendment to the Constitution prohibitsa municipality from taking private property for “public use” when themunicipality’s public use determination is ad hoc, pretextual, and notpart of a comprehensive planning process.

A summary of the case, including the petition and the decisions of the New Jersey courts is posted here.

Also denied was McNamara v. City of Rittman (No. 06-1481) (docket listing here), a petition asking the court to reconsider the ruling in Williamson County Regional Planning Comm’n v. Hamilton Bank, 473 U.S. 172 (1985), which requires a property owner to utilize available state compensation remedies prior to suing in federal court for a regulatory taking or inverse condemnation.  The Sixth Circuit’s decision Continue Reading ▪ Post-Kelo Cert. Petition (MiPro) Denied