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.
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.
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.
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.
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.
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: http://www.communityrights.org/legalresources/recentsupremecourtopinions/Palazzoloaerialview1.php).
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
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.
High Court Upholds Economic Development As a "Public
Use" under the Fifth Amendment
Kelo v. City of New London, No. 04-108 (June 23,
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
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,
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
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.
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
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
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.
Smith v. Town of Mendon, 822 N.E.2d 1214 (Dec.
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
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
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
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.
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
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