Regulatory takings

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The transcript of the oral argument in Sole v. Wyner (No. 06-531) (docket listing here) has been posted on the SCOTUS web site here.  That case presents the issue of whether a party who wins apreliminary injunction — but ultimately loses the case — has”prevailed” under a federal statute that allows a “prevailing party” to collect its legal fees and costs from the other side when federal civil rights are vindicated by an action pursuant to 42 USC § 1983.

That case arose in the First Amendment free speech context, but the decision will be important to property owners and regulatory authorities since the Fifth and Fourteenth Amendment’s property protections are federal civil rights, and 42 USC  § 1983 is often the vehicle by which these rights are protected.  Background on the case here, and (from SCOTUSblog) here.

The colloquy between the Justices and…

Continue Reading ▪ It Ain’t Over ‘Til It’s Over: Transcript of Argument in Attorney’s Fees Case

Oral arguments in Cienega Gardens v. United States (Fed. Cir. No. 06-5051, Apr. 2, 2007), a case involving the application of the Penn Central ad-hoc test for regulatory takings, have been posted in two parts on the Federal Circuit’s web site: part 1 (68mb mp3), and part 2 (7mb mp3).

Also posted is the oral argument in the related case, Chancellor Manor v. United States (Fed. Cir. No. 06-5052, Apr. 2, 2007) here (39mb mp3).Continue Reading ▪ Federal Circuit Arguments on the Penn Central Factors (mp3)

UH Law Professor Carl Christensen has kindly invited me to discuss takings law with the students in his historic preservation seminar on Monday.  I think a good starting point is the granddaddy of historic preservation/regulatory takings decisions, Penn Central Trans. Co. v. New York City, 438 U.S. 104 (1978), a case that highlights the competing concerns when the public’s desire to preserve a historic structure collides with a landowner’s desire to make reasonable use of it.

That case also gave us the “ad hoc” (aka Penn Central) three-part regulatory takings standard that has confounded the courts ever since.

In engaging in these essentially ad hoc, factual inquiries, the Court’s decisions have identified several factors that have particular significance. The economic impact of the regulation on the claimant and, particularly, the extent to which the regulation has interfered with distinct investment-backed expectations are, of course, relevant considerations. See…

Continue Reading ▪ Takings and Historic Preservation: Penn Central

In United States v. 191.07 Acres of Land (Martinek)(No. 04-35131, Apr. 4, 2007), the Ninth Circuit set out a good definition of “inverse condemnation” in the context of when a property owner has a right to a jury trial for federal takings. 

    Where the [condemnor] does not acquire privately owned land statutorily but instead physically enters into possession or institutes regulations that restrict the land’s use, the owner has a right to bring an “inverse condemnation” action to recover the value of the land.  Kirby Forest [Inds., Inc. v. United States, 467 U.S. 1, 4-5 (1984)].  “Such as suit is ‘inverse’ because it is brought by the affected owner, not by the condemnor.  The owner’s right to bring such a suit derives from the self-executing character of the constitutional provision with respect to condemnation.”  Id. at 5 n.6

(slip op. at 3865).  In Martinek…

Continue Reading ▪ What is “Inverse Condemnation?”

New Jersey Eminent Domain blog posts a good summary of the Robbins v. Wilkie case currently pending in the US Supreme Court:

The critical issue for Robbins and other property owners asserting their 5th amendment rights is whether they can do so without fear of retaliation by government officials. Many property owners affected by eminent domain are reluctant to speak out, fearing government retaliation, which may come in the form of code enforcement, health and safety inspections — all done with an objective to force them to give up their property rights for redevelopment before, or even resisting, the eminent domain process.

Very true.  Not all retaliation against property owners is as overt as what the BLM officials are alleged to have done to Mr. Wilkie, and government “payback” may take many forms.  When such behavior goes too far, the law should recognize that property owners may seek relief in…

Continue Reading ▪ Retaliation for Asserting Constitutional Right of Property

An interesting decision from the Kansas federal district court, Mount St. Scholastica, Inc. v. City of Atchison, No. 06-2208-CM (Mar. 12, 2007), contains a land use trifecta: historic preservation, religious objections to a denial of a permit, and regulatory takings.  (No link yet to opinion, which currently is only available via Westlaw; email me if you want a copy.  Update: Becket Fund for Religious Liberty has posted a copy of the opinion on its web site.)

Mount St. Scholastica, a “monastic community,” owns property that includes a building constructed in 1924 that has in the interim been used for classrooms, administration, and a community center.  By 1989, however, it had apparently outlived its usefulness to Mount St. Scholastica, which in 2005 sought a demolition permit from the city. 

The building itself apparently is not landmarked, but is near to historic properties, so under Kansas law, the owner needed a…

Continue Reading ▪ Land Use Trifecta: Historic Preservation, Religious Uses, and Regulatory Takings

Steven Greenhut’s opinion piece at the Orange County Register, “The powerless have always been targets of eminent domain,” makes some good points about eminent domain abuse, and the recently-argued Wilkie case (regarding the right to be free from government retailition for defending a Fifth Amendment right), and is worth reading:

“Cities use code words,” explained Supervisor Chris Norby, a longtime foe of eminent domain abuse. “In the 1950s and 1960s, governments used the term ‘urban renewal,’ but critics knew that it was widely called ‘Negro removal.’ These days, we’re looking at forced gentrification,” as cities try to redevelop poorer areas into wealthy areas.

. . . .

Today’s code words and attitudes may be different than they were in the 1920s, but by giving government so much power to drive people off their land, we all are subject to the whims and rationales of officials. In the 1920s…

Continue Reading ▪ Eminent Domain Abuse and Retaliation

Which issue is more important when it comes to utilizing scarce federal judicial resources:

  • Can a student who unfurls a sign that says BONG HITS 4 JESUS sue his principal for suspending him? 
  • Which farting plush doll is the genuine one?  Does “Pull My Finger Fred®” or “Fartman” have the exclusive right to fart and say “did somebody step on a duck?” and “silent but deadly” when its finger is pulled?
  • Can federal officials be held liable when they retaliate against a property owner who refuses to surrender an easement across his land by cancelling the landowner’s easements across public property, filing false criminal charges against him, harassing the landowner’s guests, and  “inciting a neighbor to ram his truck into the [landowner] while he was on horseback.”

I juxtapose these issues — all presented in cases argued or decided on Monday —  not to disparage the importance of…

Continue Reading ▪ Bong Hits, Pull My Finger Fred, and Remedies for Fifth Amendment Violations

While Tribe said he sensed the justices were sympathetic to his Fifth Amendment argument, they were wary of creating new ways to sue government employees.

“There is a considerable amount of hostility for the possibility of opening up the floodgates of litigation against government officials,” Tribe said.

For most other constitutional rights, there is already well-established Supreme Court precedent holding that it is unconstitutional for the government to punish people for exercising those rights. For example, prosecutors cannot punish defendants for exercising their Fifth Amendment right to remain silent. Government officials are forbidden to harass citizens for exercising their free speech rights or their rights to practice their religion. The actions that the federal Bureau of Land Management officials allegedly took to punish Frank Robbins for…

Continue Reading ▪ Links to Further Wilkie Analysis

More background on the Wilkie v. Robbins case, argued yesterday.

The Jackson Hole (WY) Star Tribune posts more details about the landowner Harvey Frank Robbins in this story, and sums up the issue before the Court:

Among other considerations, the high courtwill have to decide whether the 5th Amendment, like the 1st and the4th, protects citizens from unlawful retaliation for exercising apresumed right.

I’d say that’s just about so.  It should seem unremarkable that the express personal right of property is as much a part of the Bill of Rights as other, perhaps more familiar constitutional rights such as free speech, a free press, and freedom of belief.  It’s all right there in the Fifth Amendment, which provides “nor shall private property be taken for public use, without just compensation.”  The personal nature of the right is reinforced by the Fourteenth Amendment, which provides “nor shall any…

Continue Reading ▪ More on Wilkie: Is Property A Personal Constitutional Right?