SCOTUS Turns Again To Takings And Land Use
The Supreme Court gets to pick what cases it hears — and land is on the court’s mind lately.
Thousands of requests for cases are received every year by the Supreme Court. Each sitting justice has a crew of law clerks reading each request (called a petition or writ of certiorari) and these clerks compile memos about each case. The justices read these memos, meet and vote, and if four of the nine agree to hear a case, then it is placed on the docket. If enough justices don’t feel particularly compelled to hear a case, then the lower court’s judgement stands.
For whatever reasons, the pattern for the Roberts-led Supreme Court has been heavy on the land use and eminent domain related cases under the Fifth Amendment’s clause “ nor shall private property be taken for public use, without just compensation”.
Recent SCOTUS decisions in this area have gone against government and for land owners, including:
- Koontz vs. St. Johns River Water Management District (as I wrote about at The Source here and here): A Florida land owner was ordered as a condition of development of land he owned to improve drainage on an unconnected land parcel owned by the state and managed by the Management District. SCOTUS eventually ruled in favor of the land owner. The decision’s effect in other states is likely to handcuff local governments / permit-issuing authorities in what conditions they can attach to land development permits.
- Arkansas Game And Fish Commission vs. United States: SCOTUS ruled that seasonally recurring, temporary flooding of land can constitute a taking entitled to just compensation.
- Horne vs. Dept of Agriculture: Where the court affirmed the right of California raisin growers to claim a taking as a defense to enforcement action made by the government due to alleged non-compliance with regulatory efforts. This case reversed a long-standing lower court case from the 1980s that has stood in the way of takings claims. The reversal has also shown that “just compensation” is no longer the only remedy a party claiming a taking can request.
Before the court now is Marvin M. Brandt Irrevocable Trust vs. United States, a land use case that will be of interest to any broker, owner or developer of land with railroad right-of-ways. While complex, the case will decide issues concerning whether interest in land with such right of ways is held as fee simple or as an easement, and what happens when railroad use is discontinued.
The ramifications of Brandt will likely touch all 137,000(!) miles of railroad crisscrossing the US, meaning it’s a good idea to stop, look and listen for the decision in the spring.