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Community Rights Report Newsletter - Feature Case

(Past Feature Case Archives: 2001, 2002, 2003, and 2004.)

December 2005

Huge Win for Comprehensive Planning

The New Mexico Court of Appeals handed Albuquerque a spectacular victory in the war against sprawl on December 9th, when it overturned an $8.3 million verdict in a major case that supports a city’s ability to enforce its comprehensive plan.

At issue in Albuquerque Commons Partnership v. City Council of the City of Albuquerque, No. 24,026 (NM Ct. App., Dec. 9, 2005), were revisions to the city’s Uptown Sector Plan (USP), first drafted in 1981, which called for the Uptown Sector to be among the densest in the city. In early 1994, the city began considering revisions to the USP. Late that year, a developer proposed a big-box, suburban-style development for an empty parcel in Uptown.

The city eventually decided to create a very dense core zone in the Uptown Sector, with specific floor area ratio regulations that would require tall buildings and very little surface parking—in other words, no big-box stores. The city believed these quantifiable standards were necessary to fulfill the city’s long-held goal of creating a genuinely urban area in the Uptown Sector.

The Albuquerque Commons Partnership (ACP), which held the lease on the proposed big-box site, sued. In early 2003, a jury awarded ACP $8.3 million in damages for due process violations.

The Court of Appeals, in a long, carefully reasoned opinion that reads like a primer in the nitty-gritty details of zoning law, overturned the decision. A city, the court held, can strengthen its zoning requirements to implement its comprehensive plan without going through a formal re-zoning process. One paragraph of the opinion is sure to warm the hearts of planners and local officials across New Mexico and beyond: “Zoning as ‘governmental regulation of the uses of land and buildings’ always affects a property owner’s ability to use his property as he sees fit * * *. The fact that he cannot use it as he wants is simply the price of living in a modern community.”

ACP has not yet decided whether to appeal.

November 2005

Federal Circuit Rejects Multi-million Dollar Takings Challenge to Wetland Mitigation Requirement

Takings claims sometimes are filed not to recover money, but to intimidate government officials. The merits of such cases often are inversely proportional to the amount of compensation requested. The weaker the claim, the more bluster required. So it should come as no surprise when large claims prove to be paper thin.

In Norman v. United States, No. 05-5039 (Fed. Cir. Nov. 18, 2005), the claimants sought more than $34 million in a takings challenge to a 1999 permit condition requiring protection of about 220 acres of wetlands in exchange for permission to fill other wetlands. The claimants needed the permit to pursue a large-scale development project on a 2280-acre ranch in Reno, Nevada. Represented by prominent figures of the so-called property rights movement, Roger and Nancie Marzulla (founders of Defenders of Property Rights), the claimants walked away from the case empty-handed, after a series of unanimous rulings from the trial court and the Federal Circuit emphatically rejecting their claims.

The Federal Circuit made short work of the case. Although the claimants stressed that the government significantly increased its original estimate of the amount of wetlands on the site, the appeals court concluded that this fact alone was not dispositive. It also ruled that neither Loretto nor Dolan/Nollan apply to the permit condition because there is no compelled dedication of land, and even if Dolan/Nollan applied, the wetland mitigation has an appropriate nexus to the wetland destruction that will result from the development. The appeals court easily rejected the claimants’ other arguments, concluding that the relevant parcel is the entire ranch because the claimants treated the whole ranch as a single economic unit. The opinion includes very helpful discussions of expectations, economic impact, and the benefits of wetlands to flood control.

The property rights movement is forever pushing the edge of the envelope with its radical liability theories. Thankfully, most courts know when to push back.

October 2005

Measure 37 Invalidated
MacPherson v. Dep’t of Admin. Services , Case No. 05C10444 (Or. Cir. Ct., Oct. 14, 2005)

Judge Mary Mertens James of the Oregon Circuit Court for Marion County struck down Oregon’s controversial “Measure 37,” which requires state and local officials to either waive certain land use regulations or make payments to landowners when those regulations reduce their property value by any amount.

The suit was brought by property owners, commercial farms, five county farm bureaus, and 1000 Friends of Oregon. Judge James invalidated the law on several grounds, including impermissible impairment of the legislature’s plenary police power, violation of equal privileges and immunities under the Oregon Constitution, and violation of due process.

No one is certain of the ruling’s prospects on appeal. But whatever the outcome, the opinion is a tour de force in illustrating how land use controls protect landowners and land value. The opinion exposes the inherent fallacy of the so-called property rights movement, which promotes the rights of a select few at the expense of the vast majority of property owners.

For example, the opinion describes the plight of plaintiff David Adams, who owns property near a Measure 37 claimant who received a waiver of land use controls to allow for large-scale residential development. The claimant has begun clear-cutting and bulldozing the property, thereby impairing the surrounding watershed and destroying a wildlife corridor. New construction will require additional wells and septic systems, reducing the amount and quality of water available to Adams, who purchased his land in reliance on the development restrictions now waived under Measure 37. The surrounding roads, already at overcapacity, will suffer increased disruption, safety risk, and the potential for emergency vehicle delay. The school system will be further strained, leading to increased taxes.

Measure 37 threatens similar harm to many others, including farmers and ranchers, who bought their land in reliance on existing land use controls that are now subject to waiver.

Kudos to the MacPherson plaintiffs for demonstrating the importance of land use controls to landowners and property values.

September 2005

Takings and National Security
Air Pegasus of D.C., Inc. v. United States

We have previously reported on efforts by takings claimants to seek compensation based various national security measures imposed after 9-11. The trend continued in Air Pegasus of D.C., Inc. v. United States, No. 04-5108 (Fed. Cir., Sept. 21, 2005), in which owners of a heliport, supported by amicus Defenders of Property Rights, claimed that FAA air travel restrictions near the U.S. Capitol worked a compensable taking of the heliport.

Although some of the initial flight restrictions after 9-11 in the Washington, D.C. area were subsequently relaxed, much of the area's airspace remains off-limits to commercial aircraft, including the area leased by Air Pegasus to operate its heliport. In 2003, Air Pegasus filed suit against the United States. The U.S. Court of Federal Claims granted the government summary judgment. On appeal, the Federal Circuit affirmed in a 2-1 ruling.

The appeals court observed that the FAA restrictions were restrictions on the operation of aircraft, and thus Air Pegasus's economic injury was not the result of any regulation of Air Pegasus's property, but rather the more attenuated result of regulation of other people's property. The court concluded that under these circumstances, Air Pegasus did not have a viable takings claim because consequential damages resulting from lawful government action cannot form the basis of a compensable taking.

In so ruling, the court relied on Omnia Commercial Co., v. United States, 261 U.S. 502 (1923), in which the claimant had a contractual right to purchase steel from a steel company at a sub-market price that would have generated a substantial profit for the claimant. The federal government then requisitioned all of the steel plate produced by steel company and directed it not to perform its contract with the claimant. The Supreme Court rejected the clamant’s takings challenge, even though the claimant had a property right in its contract, because an injury to one's property interest does not necessarily constitute a taking of the interest. Moreover, to the extent Air Pegasus claimed a taking of a right to access navigable airspace from its heliport, background principles of federal property law indicate there is no private property right in the navigable airspace.


August 2005

Three State Court Takings Victories: Mass., Mich., and Oregon Courts Uphold Wetland and Wildlife Protections

As our nation reaches out in sympathy to the victims of Katrina and its aftermath, it is reassuring to know that most judges will not allow the Takings Clause to be used to undercut protections against flooding and storm erosion. In Gove v. Zoning Board of Appeals of Chatham, 831 N.E.2d 865 ( Mass. July 26, 2005), the Supreme Judicial Court of Massachusetts rejected a regulatory takings challenge to wetland protections designed to minimize what the court called “the ravages of nature.” In 1975 Gove inherited a vacant 1.8-acre lot situated on coastal wetlands in southeastern Cape Cod. For decades the area has been susceptible to coastal flooding caused by hurricanes and other storms, and Gove’s lot is bisected by a tidal creek also prone to flooding. In 1985 the Town of Chatham designated the wetlands area as a “coastal conservancy district” subject to a ban on residential construction to protect public health and safety. In recent years, a breach in the barrier island that protects Chatham from the ocean led to even more severe storm erosion that caused houses to fall into the sea.

The court invoked Lingle v. Chevron ( U.S. 2005) to reject Gove’s claim that the building restrictions fail to advance a legitimate public purpose. The court denied Gove’s Lucas claim because her own expert testified that the land is worth at least $23,000. The court also rejected Gove’s Penn Central claim because Gove failed to (1) introduce a thorough assessment of current value or show “a loss outside the range of normal fluctuation in the value of coastal property,” or (2) show interference with any reasonable expectation to build in light of Gove’s unsuccessful effort to sell the land prior to the development restrictions. The court rejected as irrelevant and “highly dubious at best” an offer to buy the land that was contingent upon gaining permission to build. Finally, in analyzing the character of the government action, the court noted that protection against harmful land use “routinely has withstood” takings challenges.

In a second wetlands case, K&K Construction, Inc. v. Dep’t of Environmental Quality, No. 244455 (Mich. Ct. App. July 26, 2005), the court acknowledged a fundamental truth that should inform every regulatory takings challenge: “Land use regulations, such as zoning, are necessary to protect private property rights and values.” This essential insight laid the predicate for the appeal court’s reversal of a judgment for more than $16 million awarded by the trial court in favor of the landowner.

The case is a long-running takings challenge to Michigan’s wetland protections as applied to an 82-acre parcel. About a third of the parcel consists of wetlands. In rejecting the claim under the multifactor Penn Central test, the court noted that the claimants retained the ability to develop a significant portion of their land. Although the appeals court rejected the trial court’s finding that the wetland protections resulted in a 67% value loss (from $8.94 million to $3 million), the court ruled that even under this erroneous calculation plaintiffs failed to show a compensable taking. The court further held that the correct value loss of 24-33% “most certainly does not weigh in favor” of finding a taking.

The court also concluded the “plaintiffs are experienced commercial land developers who clearly had or were on notice of the wetland regulations . . . and therefore, plaintiffs’ distinct, investment-backed expectations would reasonably have been tempered with the knowledge that their development of the property would be restricted due to the presence of wetlands.” Finally, the court ruled that the character of the government action cut against a taking because “wetland regulations are, like zoning regulations, all but ubiquitous” and thus result in an “average reciprocity of advantage,” providing benefits to all without targeting any single landowner for particularly adverse treatment. The court specifically noted the benefits that wetlands provide in protecting water quality, preventing floods, and curbing erosion.

Finally, in Coast Range Conifers, LLC v. State of Oregon, CC 011423 (Or. Aug. 11, 2005), the Oregon Supreme Court unanimously rejected a takings challenge to restrictions on logging designed to protect bald eagles. The restrictions prevented Coast Range Conifers from logging about nine acres of a 40-acre parcel. In 2003, the court of appeals ruled that the restrictions constituted a “taking” of property because the limits prevented all economically viable use of the nine restricted acres. The Oregon Supreme Court reversed, holding that the entire 40-acre parcel must be considered in analyzing whether a taking occurred. The court observed that the appeal court’s erroneous approach would call into question height limitations, setback requirements, and other everyday land use controls. Because Coast Range Conifers retains substantial economic use of the whole parcel, the court concluded no taking occurred. Community Rights Counsel co-authored two amicus briefs supporting the State on behalf of a large coalition of local officials.




JULY 2005

A Blast from the Past: Victory on Remand in Palazzolo Due to Background Principles of State Common Law

On July 5, the Rhode Island Superior Court concluded that Anthony Palazzolo -- who became famous when the U.S. Supreme Court ruled his way and reinstated his regulatory takings claim in 2001 -- failed on remand to show that the state's wetland protections worked a taking of his land. Palazzolo alleged that the state took his property by denying a permit to fill and develop about 18 acres of tidal salt marsh situated on the south side of Winnapaug Pond in the town of Westerly. (To see just how wet the site is, go to:

After taking evidence for 11 days to supplement the previous seven-day bench trial held in 1997, the court found that the area to the south of the pond is nearly devoid of development and subject to daily tidal inundation. Except for one small upland area, as much as six feet of fill would be needed to develop the property.

The Superior Court then concluded that background principles of state law preclude takings liability. First, clear and convincing evidence shows that Palazzolo's proposed development would constitute a public nuisance by increasing pond nitrogen levels, which "would almost certainly result in an ecological disaster to the pond," substantially damaging both water quality and wildlife habitat. Winnapaug Pond is used for fishing, boating, and shell fishing, and is especially fragile due to its size and shallow depth. Its marshes provide valuable habitat to birds, fish, and other wildlife.

Applying the background principles defense to takings liability discussed in Lucas v. South Carolina Coastal Comm'n (U.S. 1992), the court concluded that state nuisance law inheres in Palazzolo's title and thus already precluded him from pursuing the proposed development. Therefore, the application of state wetland regulations to prevent the proposed development did not take any property interest ever held by Palazzolo.

Moreover, the court ruled that the proposed development implicates the public trust doctrine under state common law, which protects tidal waters and vests in the state title to all land below the high-water mark, to be held for the benefit of the public. Fully half of Palazzolo's property lies below the mean high-water mark. The Superior Court observed that the public trust doctrine is expressly mentioned in the state constitution and received recent endorsement by the Rhode Island Supreme Court.

Although the public trust doctrine applies to only half of Palazzolo's parcel, the court concluded that the doctrine significantly impairs his reasonable expectations under the multifactor Penn Central analysis, which the court applied as an alternative ground for denying the takings claim. The court defined the relevant parcel as the 18 acres currently owned by Palazzolo, excluding six lots that had been previously sold off. Regarding the character of the government action, the court noted that the wetland protections were not aimed at Palazzolo, but instead applied broadly to all owners of tidal salt marsh property. In response to Palazzolo's assertion that the permit denial cost him more than $3 million, based on a proposed 50-lot subdivision, the court found that high development costs would have caused Palazzolo to suffer an economic loss. In other words, Palazzolo "will be better off financially by selling the site in its current undeveloped state" in view of his ability to build one residence on the small upland portion of the site. The site offered very limited reasonable expectations of development due to the public trust doctrine, as well as Palazzolo's modest investment, obvious engineering difficulties in developing the site, and several other factors.

In response to Palazzolo's claim that the state wetland protections had left him with mere "crumbs," the court observed that the land retained a fair market value of about $200,000, which would yield some, albeit a modest, return on investment, and that the development proposals would result in a net economic loss.

Kudos to Michael Rubin and his colleagues in the Rhode Island Attorney General's office for securing (yet another) victory in this case.


JUNE 2005

High Court Upholds Economic Development As a "Public Use" under the Fifth Amendment
Kelo v. City of New London, No. 04-108 (June 23, 2005)

In a 5-4 ruling, which was closer than expected by most court-watchers, the U.S. Supreme Court upheld the use of eminent domain for economic development, ruling that such development satisfies the "public use" requirement of the Takings Clause.

At issue was the 90-acre Fort Trumbull redevelopment plan in New London, Connecticut, which the city hopes will bring more than 1,000 new jobs and increased revenues for social services to revitalize that economically depressed area. Nine landowners who own 15 properties within the development site refused to sell, and the city commenced condemnation proceedings. None of the properties is alleged to be blighted. Although portions of the development are earmarked for a public riverwalk and other public amenities, other portions will be used for office space, condominiums, and other facilities not open to the public.

Writing for the majority, Justice John Paul Stevens observed that the court had long ago abandoned the notion that condemnations must be limited to situations where the condemned property is directly owned and used by the public. Rather, for more than 100 years the court has adhered to "the broader and more natural interpretation of public use as 'public purpose.'" Citing early examples of condemnations to promote mining, farming, railroads, private power-producing dams, and other economic enterprises, the court concluded that there is no principled way of distinguishing takings for economic development. The court also invoked longstanding precedent requiring deference to legislative judgments regarding the need to acquire property, as well as federalism principles that compel respect for state and local decisionmaking.

It is important to note that the ruling is not a "blank check" to government officials. The court observed that condemnations may not proceed "under the mere pretext of a public purpose, when its actual purpose was to bestow a private benefit." It stressed that New London was indisputably in economic distress and that its use of eminent domain was part of a "carefully considered" comprehensive development plan that had been subject to thorough deliberation. It further noted that at the time of the condemnation decision, New London had not chosen a private developer or the private tenants, thereby reducing the risk that the condemnations were for the benefit of particular private interests. The court also emphasized that a different result might be obtained where, "outside the confines of an integrated development plan," a city transfers "citizen A's property to citizen B for the sole reason that citizen B will put the property to a more productive use and thus pay more taxes," a scenario that "would certainly raise a suspicion" that the takings was for a private purpose.

Careful attention also should be paid to the concurring opinion authored by Justice Kennedy, who provided the critical fifth vote in favor of New London. His opinion reads like a list of "best practices," and he expresses willingness to scrutinize future condemnations in appropriate cases where takings lack adequate consideration. In particular, he insisted that a court "should strike down a taking that, by a clear showing, is intended to favor a particular private party, with only incidental or pretextual public benefits." He quoted with approval the trial court's conclusion that for economic development takings that involve a transfer of the land to a private party, "the court must review the record to decide if the stated public purpose - economic advantage to a city sorely in need of it - is only incidental to the benefits that will be confined on private parties of a development plan." He observed, among other things, that New London suffers from serious economic depression, adopted a comprehensive development plan, reviewed several development plans, and chose a developer from a group of applicants rather than identifying one beforehand. The project was supported by substantial state funds, and nothing in the record
indicated a desire to benefit a particular private party.

CRC coauthored an amicus brief in support of New London on behalf of a broad coalition of state and local government groups.

MAY 2005

Lingle v. Chevron U.S.A. Inc., 2005 WL 1200710 (U.S. May 23, 2005)

The law reviews overflow with articles bemoaning the lack of clarity in takings case law. These works routinely condemn takings jurisprudence as a "muddle," a "mess," or worse. It has become almost de rigueur to begin takings articles by cataloguing a dozen or so of the most scathing critiques by previous authors. A reader of the literature is left with the impression that takings law is in a pretty bad state of affairs.

We need to rethink this mindset. Clarity, thy name is Lingle.

On May 23, the U.S. Supreme Court handed down Lingle v. Chevron, a remarkable, unanimous ruling thoroughly repudiating the formulation from Agins v. City of Tiburon (1980) that takings liability could be found if a government action fails to "substantially advance" a legitimate state interest. The Lingle court acknowledged that the oft-repeated but seldom-applied "substantially advance" formulation had become "ensconced" in Fifth Amendment case law, but it forthrightly confessed error and clarified that the test "has no proper place in our takings jurisprudence." (Slip op. at pp. 1, 10)

In addition to concluding that the Agins test has neither textual foundation nor analytic coherence, the court emphasized the serious practical difficulties of applying heightened scrutiny to any regulation of private property, "a task for which the courts are not well suited." (p. 14) Requiring "courts to substitute their predictive judgments for those of elected legislatures and expert agencies" would improperly resurrect the "long eschewed" Lochner era, according to the court. (p. 15)

If Lingle accomplished only this, it would be a major victory for clarity, and for the primacy of our elected officials over economic policymaking. But Lingle does far more.

Building on the court's landmark ruling in Tahoe-Sierra v. TRPA (2002), Lingle provides a straightforward analytical framework for regulatory takings that will help to guide the development of the law for years to come. According to the court, the touchstone for deciding whether a regulation works a taking is "functional equivalency": each test of takings liability "aims to identify regulatory actions that are functionally equivalent to the classic taking in which government directly appropriates private property or ousts the owner from his domain." (p. 9.) That's why the Loretto per se rule is limited to permanent occupations of land, and why the Lucas rule is limited to "the complete elimination of a property's value." (pp. 8-9) The court similarly stressed that the Penn Central multifactor test also should be driven by a functional equivalency standard, suggesting that it requires an extremely severe economic loss and interference with reasonable expectations. (Id.)

Lingle also observes that Dolan and Nollan both involved permit conditions that required dedications of land that would allow permanent physical invasions by the public, and that these physical invasions, if unilaterally imposed, would have constituted per se takings under Loretto. And the Lingle court emphasized that Dolan applied the doctrine of unconstitutional conditions. This discussion will be very helpful in arguing that Dolan is inapplicable to impact fees and other permit conditions that do not involve physical invasions of the land. The court's emphasis of the "adjudicative" nature of the exactions in Dolan and Nollan supports arguments that those cases do not apply to legislatively imposed conditions. (pp. 16-17)

Kudos to Governor Lingle's legal team, which includes Robert Dreher (counsel of record) and John Echeverria at the Georgetown Environmental Law and Policy Institute, as well as Seth Waxman, Paul Wolfson, and Hawaii Attorney General Mark Bennett (who argued the case). A special tip of the hat goes to John, who has been working this issue like a pit bull for years.

CRC wrote two amicus briefs in support of Hawaii's cert. petition and merits brief on behalf of a broad coalition of national organizations representing state and local officials. Lingle is the first case in which CRC has supported a petition for certiorari.

APRIL 2005

Landmark Ruling Rejects Preemption Challenge to State Common Law and Statutory Remedies for Pesticide Injuries

On April 27, the U.S. Supreme Court handed state and local officials a big preemption victory by holding that consumers may seek state law remedies against a pesticide manufacturer for harm to human health or property. One prominent court watcher hailed the decision as "one of the court's most significant rulings on the pre-emptive effect of federal statutes."

In Bates v. Dow Agrosciences LLC, No. 03-388, the Supreme Court reversed a lower court ruling that prohibited 29 Texas peanut farms from pursuing state common law and statutory claims based on allegations that a pesticide called "Strongarm" damaged their crops. The farmers assert that the manufacturer recommended the pesticide for use on all peanut crops even though it knew or should have known that it would stunt peanut growth in certain soils.

The federal pesticide statute, which governs registration and labeling, expressly preempts any state or local "requirement for labeling or packaging in addition to or different from" federal requirements. This provision prevents states from creating a crazy-quilt of labeling requirements that mandate different colors, font size, or wording. Several lower courts have gone much further and applied the provision to prevent those harmed by pesticides from bringing common law actions that might induce the manufacturer to alter the label. Because the federal statute does not permit individuals harmed by violations to sue in federal court, the lower court rulings finding preemption often slammed the courthouse door on the victims. The U.S. Environmental Protection Agency and Department of Justice originally took the position that the federal pesticide statute does not preempt state common law actions. But the Solicitor General subsequently adopted a contrary position and filed an amicus brief supporting Dow.

The Bates Court began its analysis by concluding that the term "requirements" as used in the preemption provision is broad enough to encompass common law actions. It concluded, however, that several common-law rules invoked by the farmers are not label or packaging rules, including those relating to product design, testing, and warranty obligations. The high court rejected the argument, embraced by several lower courts, that these rules should be treated as labeling requirements merely because jury verdicts in favor of plaintiffs based on these rules might induce a pesticide manufacturer to alter its label.

The Court further held that even where common-law rules relate to labeling, states may provide additional remedies for violations of the federal standards so long as they do not impose additional requirements. The Court remanded the case to the lower courts for a determination of whether the common-law rules underlying the farmers' fraud and failure-to-warn claims are equivalent to federal requirements.

The Bates Court reaffirmed the presumption against preemption that recognizes the role of the states as "independent sovereigns in our federal system," a presumption that requires Congress to articulate any intention to preempt in "clear and manifest" terms. Moreover, the Court stressed that the notion that federal law clearly preempts state remedies is "particularly dubious" in view of EPA's contrary position just five years ago. The Court also observed that states had long afforded tort remedies to those injured by poisonous substances, and that if Congress had intended to supplant these remedies, it would have expressed that intent more clearly, particularly since the federal statute authorized EPA to waive any review of the efficacy of pesticides in the federal registration process.

In a separate opinion concurring in the judgment in part and dissenting in part, Justices Thomas and Scalia launched a broadside attack on the whole notion of implied preemption, asserting that the majority's failure to address Dow's arguments in this regard "comports with this Court's increasing reluctance to expand federal statutes beyond their terms through doctrines of implied preemption." It remains doubtful, however, that a majority of the Court is willing to abandon these doctrines entirely.

The decision is not only a victory for public health and the environment, but also for the vital role of states in our federal system. CRC filed an amicus brief in Eyl v. Ciba-Geigy, No. 02-1500, a previous preemption case that raised similar issues.

MARCH 2005

Smith v. Town of Mendon, 822 N.E.2d 1214 (Dec. 21, 2004)
New York High Court Rejects Application of Dolan to Conservation Easement Requirement

On December 21, 2004, New York's highest court issued a 4-3 ruling rejecting a takings challenge to a permit condition requiring landowners to record a conservation easement. Pacific Legal Foundation has vowed to take the case to the U.S. Supreme Court.

The claimants own a ten-acre parcel in the Town of Mendon. The property is situated in a floodplain along a protected waterway. It includes several environmentally sensitive parcels, contains steep slopes susceptible to erosion, and is close to a protected agricultural district. Four separate environmental overlay districts restrict development of the land.

In 2001, the claimants applied for approval to build a single-family house on the non-restricted portion of the land. The town planning board approved the application but conditioned approval on the claimants' grant of a conservation easement consistent with the pre-existing overlay districts. The purpose of this requirement is to put subsequent buyers on notice of the restrictions. The trial division concluded that the requirement is an exaction subject to Dolan v. City of Tigard (U.S. 1994), but ruled that it met Dolan's rough proportionality test. An intermediate appellate court held that the condition is not an exaction subject to Dolan.

The New York Court of Appeals likewise determined that the requirement is not subject to Dolan. Relying on an amicus brief filed by the New York Attorney General's office, the court concluded that Dolan applies only to permit conditions that require a dedication of property that impairs the owner's right to exclude others from the land, or that impose a fee in lieu of such a dedication. The court declined to extend Dolan to cover conditions that merely restrict land use, even where the claimant is required to record a conservation easement.

Evaluating the condition under the Penn Central and Agins multifactor tests, the court concluded that it did not constitute a taking because it did not appreciably reduce the value of the claimants' land, and it substantially advances a legitimate government interest in environmental preservation.

Community Rights Counsel filed an amicus brief in support of the town on behalf of New York municipal groups and the American Planning Association. Like the New York amicus brief, CRC's brief emphasized that Dolan is limited to permit conditions that impair the owner's right to exclude others. It also explained the benefits of permit conditions like those at issue to planning and environmental protection.


High Court to Review Federalism Issues in Assisted-Suicide Case

On February 22, the U.S. Supreme Court agreed to hear Gonzales v. Oregon (formerly Oregon v. Ashcroft), a case that implicates wrenching ethical questions as well as legal issues that go to the heart of our federal system.

The suit involves Oregon's Death With Dignity Act, the only law in the country that allows doctors to help terminally ill patients use drugs to end their lives. In 2001, Attorney General John Ashcroft concluded that the law is invalid because, in his view, suicide is not a "legitimate medical purpose" under the federal Controlled Substances Act (CSA). The State of Oregon seeks declaratory and injunctive relief to prevent enforcement of the Ashcroft Directive.

In a 2-1 ruling, the Ninth Circuit ruled for Oregon, holding that the Justice Department's position contravenes the plain language and express congressional intent of the CSA. But in so ruling, the panel imposed a "clear statement rule" because, in its view, the Ashcroft Directive intrudes into an area of traditional state and local control (medical care). The directive thus must be supported by a clear congressional statement of authority.

Quoting Lochner-era authority, the panel stated that "direct control of medical practice in the states is beyond the power of the federal government." Thus, in the panel's view, the CSA must be "unmistakably clear" in authorizing any federal intrusion into state regulation of medical care. The Ninth Circuit relied on Gregory v. Ashcroft, which imposed a similar rule on federal regulation of the retirement age for state judges because the regulation "alter[ed] the usual constitutional balance between the States and the Federal Government." The panel also relied on Solid Waste Agency of N. Cook County v. U.S. Army Corps of Eng'rs (U.S. 2001), a wetlands case that adopted a narrow reading of the federal Clean Water Act to preserve state control over land use issues. The federal petition for certiorari asks the Court to correct the Ninth Circuit's "serious misconception of the relative powers of state and federal governments."

As explained in our recent book, Redefining Federalism, CRC is a staunch defender of the role of the states as Brandeisian "laboratories" of experimentation in our federal system, and we have urged the adoption of a "clear statement" rule in preemption cases to preserve that role. At the same time, we are concerned about defining entire categories of regulation, such as medical care or land use, as beyond the purview of federal control absent a clear statement, a rule that could improperly jeopardize longstanding federal regulation of human health and the environment. The Court's ruling is sure to shed new light on the respective roles of federal and state governments in our federal system.


Victory in Stearns v. United States (Fed. Cir. 2005)

We opened our amicus brief in Stearns v. U.S. by stating: "Takings law can give rise to difficult cases, but this is not one of them." On January 28, the Federal Circuit proved us right by issuing a seven-page ruling unanimously reversing a dreadful opinion by Senior Judge Loren Smith of the U.S. Court of Federal Claims.

The lower court had concluded that the federal surface mining laws worked a physical taking of Stearns's land in the Daniel Boone National Forest in Kentucky simply because the Interior Department exercised jurisdiction over that land. Interior did nothing more than require Stearns to apply for a "compatibility determination" to ensure that its mining would be consistent with recreational, economic, and other interests. Trial testimony showed that the application process is "essentially a rubber stamp," with Interior having granted an unbroken string of 18 straight applications for mining in that area. Nevertheless, Judge Smith concluded that the imposition of a requirement to seek approval constituted a physical taking of Stearns's right to mine.

The Federal Circuit made short work of this theory, rejecting it as "little more than an incredible attempt to transform a regulatory taking claim into a per se physical taking." Writing for the appeals court, Judge Clevenger stressed that because the government did not require Stearns to submit to a physical occupation of its land, there was no physical taking.

The court then concluded that any regulatory takings claim would remain unripe until Stearns went through the
application process: "The mere assertion of regulatory jurisdiction by a governmental body does not constitute a regulatory taking." (citing United States v. Riverside Bayview Homes (U.S. 1985)).

CRC filed an amicus brief on behalf of the National League of Cities and the International Municipal Lawyers Association. Kudos to Katherine Barton and her colleagues at the U.S. Department of Justice. A copy of the opinion is available at




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