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Community Rights Report Newsletter -
2003 Quote of the Month Archive


"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, 388 (1926).


"[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 the ground."

Fred Rodell, Goodbye to Law Reviews, 23 Va. L. Rev. 38, 38 (1936).

JULY 2003

"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).

JUNE 2003

"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 (1922).

MAY 2003

"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) (Wilkinson, C.J.)

APRIL 2003

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)

MARCH 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 other.'"

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)).

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