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U. S. SUPREME COURT
Cert. Petitions Pending in Significant Regulatory Takings Cases


Updated April 7, 2008

Daniel Goldstein, et al., Petitioners, v. George E. Pataki, et al., Respondents. No. 07-1247.

QUESTIONS PRESENTED

1. Is the Court's statement that the Public Use Clause prohibits the taking of “property under the mere pretext of a public purpose, when [the] actual purpose [is] to bestow a private benefit,” Kelo v. City of New London, 545 U.S. 469, 478 (2005), a rule of general application, or is it limited to takings justified solely on economic development grounds?

2. Does the substantial deference afforded to legislative public use determinations under Hawaii Hous. Auth. v. Midkiff, 467 U.S. 229 (1984), apply to non-legislative condemnation decisions? What are the elements of a Public Use Clause claim, and how should such a claim be evaluated on a motion to dismiss, given the tension between Kelo's assurance that “purpose” and “pretext” matter and Midkiff's statement that courts should defer to a legislative taking that appears “rationally related to a conceivable public purpose”?

Richard C. Angino, Alice K. Angino, and King Drive Corp., Petitioners, v. Middle Paxton Township and its Board of Supervisors, Respondents. No. 07-1252.

QUESTIONS PRESENTED

Does the due process clause of the Fourteenth Amendment and/or the application of the Fifth Amendment to the States by the Fourteenth Amendment preclude the zoning of a long-existing 810-acre golf resort residential community as Agricultural/Rural Residential (A/RR)?*

*The petition raises several due process, equal protection, and other non-takings issues as well.

Cienega Gardens, Del Amo Gardens, Las Lomas Gardens, Blossom Hill Apartments, and Skyline View Gardens, Petitioners, v. United States of America, Respondent. No. 07-1100.

QUESTIONS PRESENTED

Under the National Housing Act, the government entered into three-way contractual arrangements with private developers and mortgage lenders. Under the terms of those contracts, the developers were required to lease their properties at below-market rents to low-income tenants while their government-insured 40-year mortgages remained outstanding, but could prepay the mortgages and regain complete control of their properties after 20 years. The Low-Income Housing Preservation and Resident Homeownership Act of 1990 fundamentally changed those rules: It prohibited prepayment and provided the developers limited benefits to mitigate in part the losses they suffered when the government appropriated their properties as low-income housing for the full duration of the mortgages. Against that background, the questions presented are:

1. Whether the Low-Income Housing Preservation and Resident Homeownership Act of 1990 effected a taking of petitioners' property without just compensation.

2. Whether the Federal Circuit erred when, in conflict with a decision of the Tenth Circuit, it held that the government had no contractual obligation to permit prepayment after 20 years.

Chancellor Manor, Gateway Investors, Ltd., and Oak Grove Towers Associates, Petitioners, v. United States, Respondent. No. 07-1101.

QUESTIONS PRESENTED

Under Section 236 of the Federal Housing Act, petitioners, who are for-profit private partnerships, contracted with the Department of Housing and Urban Development (HUD) to build and provide low-income housing. The terms of petitioners' mortgage loans and HUD's contemporary regulations gave petitioners the unconditional right to exit the program by prepaying their loans after twenty years. The Low-Income Housing Preservation and Resident Homeownership Act of 1990, 12 U.S.C. § 4101 et seq. (1990) (“LIHPRHA”), however, abrogated petitioners' right to prepay and required them to continue renting their property to HUD-approved tenants.

This petition for review raises two questions:

1. Did the contracts between Section 236 program participants and HUD include the terms allowing prepayment - as the Tenth Circuit held, in conflict with the Federal Circuit - so that the government's abrogation of the prepayment right constituted a repudiation of the contracts?

2. Did HUD's requirement that petitioners continue renting their property only to HUD-approved tenants effect a taking of private property for public use under the Fifth Amendment for which just compensation is due?

Clark County, a political subdivision of the State of Nevada, Petitioner, v. Vacation Village, Inc., CEH Properties, Ltd., Timothy S. Heers, Terrie Heers Thompson, Cheryl D. Nolte, Gary R. Heers, and Cathleen Heers Norcott, Respondents. No. 07-373.

QUESTION PRESENTED

Whether a State's recognition and constitutional protection of an unqualified compensable ownership interest in 500 feet of navigable airspace above a landowner's property is preempted by federal laws that confer on the federal government “exclusive sovereignty” over the navigable airspace of the United States and grant the public the right to traverse navigable airspace less than 500 feet above ground level to ensure safe takeoffs and landings of aircraft.

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