"Wisdom too often never comes, and so one ought not
to reject it merely because it comes late."
Henslee v. Union Planters Nat. Bank & Trust Co.,
335 U.S. 595, 600 (1949) (Frankfurter, J., dissenting).
"A nuisance may be merely a right thing in the wrong
place, like a pig in the parlor instead of the barnyard."
Village of Euclid v. Ambler Realty Co., 272 U.S. 365,
"[U]nder petitioners' [segmentation] theory one could
always argue that a setback ordinance requiring that no structure
be built within a certain distance from the property line
constitutes a taking because the footage represents a distinct
segment of property for takings law purposes."
Keystone Bituminous Coal Ass'n v. DeBenedictis, 480
U.S. 470, 498 (1987).
"[A]ll property in this country is held under the implied
obligation that the owner's use of it shall not be injurious
to the community."
Mugler v. Kansas, 123 U.S. 623, 665 (1887).
"There are two things wrong with almost all legal writing.
One is style. The other is content. That, I think, about covers
Fred Rodell, Goodbye to Law Reviews, 23 Va. L. Rev.
38, 38 (1936).
"The Courts of Appeals were not created to be 'the Grand
Mufti of local zoning boards.'"
Dodd v. Hood River County, 136 F.3d 1219, 1230 (9th
Cir. 1998) (quoting Hoehne v. County of San Benito,
870 F.2d 529, 532 (9th Cir. 1989).
"Government hardly could go on if to some extent values
incident to property could not be diminished without paying
for every such change in the general law. As long recognized,
some values are enjoyed under an implied limitation and must
yield to the police power."
Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 413
"Both concern for property rights and concern for the
environment play important roles in shaping political decisions.
* * * An indiscriminate willingness to constitutionalize recurrent
political controversies will weaken democratic authority and
spell no end of trouble for the courts."
Gibbs v. Babbitt, 214 F.3d 483, 505 (4th Cir. 2000)
Fulfilling the Public-Use Requirement
In view of the arguments by some that governments violate
the public-use requirement whenever they transfer condemned
property to private entities for redevelopment, consider this
language from the IOLTA case, which involved a transfer of
the claimants' interest to a private, nonprofit foundation:
Even if there may be occasional misuses of IOLTA funds, the
overall, dramatic success of these programs in serving the
compelling interest in providing legal services to literally
millions of needy Americans certainly qualifies the Foundation's
distribution of these funds as a "public use" within
the meaning of the Fifth Amendment.
Brown v. Legal Foundation of Washington, 123 S. Ct.
1406, 1417 (2003)
The property rights movement has long insisted that landowners
have a fundamental right to build, and that arbitrary government
action is subject to a takings challenge under the Agins
substantially advance test. But consider this surprising language
from Justices Scalia and Thomas in a recent case:
Freedom from delay in receiving a building permit is not
among these "fundamental liberty interests." To
the contrary, the Takings Clause allows government confiscation
of private property so long as it is taken for a public use
and just compensation is paid; mere regulation of land
use need not be "narrowly tailored" to effectuate
a "compelling state interest." Those who claim "arbitrary"
deprivations of nonfundamental liberty interests must look
to the Equal Protection Clause * * *.
City of Cuyahoga Falls v. Buckeye Community Hope Foundation,
2003 WL 1477301 (U.S. March 25, 2003) (Scalia, J., with whom
Thomas, J., joins, concurring) (citation omitted).
Cities have long engaged in the commendable task of land
use planning, made necessary by increasing urbanization.
Dolan v. City of Tigard, 512 U.S. 374, 396 (1994).
"[Ripeness doctrine] responds to the high degree of
discretion characteristically possessed by land-use boards
in softening the strictures of the general regulations they
administer. As the Court said in MacDonald, 'local
agencies charged with administering regulations governing
property development are singularly flexible institutions;
what they take with the one hand they may give back with the
Suitum v. Tahoe Reg'l Planning Agency, 520 U.S. 725,
738 (1997) (quoting MacDonald, Sommer & Frates v. Yolo
County, 477 U.S. 340, 350 (1986)).