SCOTUS Turns Again To Takings And Land Use

U.S. Supreme Court building.

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.

07. October 2013 by Wayne Grohl
Categories: Land | Tags: , , , , , , , , | 53 comments

Comments (53)

  1. I am glad to see citizens winning against the government. Kelo vs. New London was an incredible travesty.

  2. >Recent SCOTUS decisions in this area have gone against government and for land owners

    Good to hear! Property rights are human rights.

  3. Will it’s wonderful hearing about upcoming conventions, this story means more to me. It’s important to know which way the courts are leaning in regards to land rights. Please keep these types of posts coming.

  4. This is a great way to keep abreast of matters that affect us all – consider how many home owners have faced these issues without the resources to engage lawyers to protect them.

    Another great source of SCOTUS information beyond just real estate interests is the Bloomberg radio network on Saturday mornings.

  5. Thanks for the post. I will be watching for the ruling. We have hundreds of miles of unused rail easements in our area.

  6. The Roberts Court might be obsessed with land use, but they don’t seem to want to discuss the eminent domain issues that were brought up during the Rehnquist Court. Rehnquist’s court sided with the government as it relates to using eminent domain to forcibly take land from property owners and grant it to private developers for the “greater public good” (Kelo v. New London CT). They received a very interesting cert this year on the topic ( and rejected the opportunity to weigh in on the issue. What a shame. I’ve witnessed a misapplication of the eminent domain law in my area and it would be nice for the court to provide further clarification on the issue. It would be even nicer for the Roberts Court to remain consistent and side with property owners versus the government, much unlike the Rehnquist Court in the infamous Kelo case.

  7. This will be an interesting case to follow.

  8. This is very interesting articular. However, I am wondering if the legislative body of each state will go and amend the Constitution in the favor of state.

  9. This strikes me as one of the most important defenses of private property rights in recent history. In an era of overweening government encroachment into every aspect of our lives, I am glad the SCOTUS is re-affirming the Fifth Amendment.

  10. Not sure if government should be this involved-should there really be such questions that are asked. Yes, we need to ask the questions, but who gets to answer?

  11. Dangerous stuff-
    Once again under the guise of doing good for the protection of general public, the government is now taking private property.

  12. It is good to finally hear that some of these land issues are being over turned. Developers are typically strong-armed into complying with city and state demands when it comes to improving areas being developed for housing. The added cost to the development adds costs to the price of housing in these areas and directly affects the consumer while the city/county/state benefits, as well.

  13. With the various rail-to-trail projects around the country and locally, including “The 606” in Chicago, this case will have significant impact on the redevelopment of land in every state and will impact many communities. It will be interesting to learn what briefs are filed, and by whom, for consideration by the Court in their decision.

  14. It will be interesting to see what the ruling on the railroad issues turns out to be. We have people in our area of Oregon that are affected by railroads wanting to assess the land owners for access to their own property. I will definitely be interested in following this topic.

  15. I am currently involved in a “taking” where the City is not offering any just compensation for the taking. Have discussed with condemnation attorney, and interviewed 2 appraisers in preparation of further negotiations. We’ll see…….

  16. Thank you for these case updates these rulings can have an effect on all of our communities.

  17. Great article. It will be interesting to see the outcome of Brandt vs United States. Please post followup.

  18. My father, John P. MacKenzie, covered this Court for 40 years as a journalist for the Washington Post and the New York Times.

  19. I wonder, how to you define just compensation?

  20. Glad to see that SCOTUS is hearing land use cases and appears to be on the side of land owners!

  21. The railroad-right-of-way issue is an interesting one. A buffer zone around a NASA test site in Mississippi that is no longer needed may face similar issues.

  22. Thank you for continuing to recognize “Private property rights” as a priority for NAR.

  23. I don’t know much about land use, but this is obviously a critical issue. Everything is so litigious these days that it’s important to clarify the implications for a buyer. Clarify now; avoid law suits later.

  24. These land use cases need to be carefully monitored. The situation in California where local governments could seize properties that appear abandoned due to the foreclosure market, could open a whole new can of worms that could give government too much control over land use and eminent domain. NAR should be keeping an eye on this as it affects private ownership. Great blog.

  25. Thank you for this interesting article. I did not know the process by which the Supreme Court decides which cases it will hear. I was surprised to read that recent SCOTUS decisions have been in favor of land owners.

  26. Very interesting. This is blog that all realtors should be aware of and follow as it can affect each and every land owner in the United States.

  27. Interesting. Hopefully the Court will protect the rights of property owners.

  28. Until Kelo is overturned, what SCOTUS does changes little with respect to property rights in the United States. Fundamentally, the court believes the state’s plan for how private property will be used trumps the owners’ plan.

    The same principle applies to asset forfeiture, where people simply accused of a crime can have their assets taken (with no compensation), and even if never prosecuted, still need to go in front of a court and prove they were not engaged in illegal activity to get their assets back.

  29. Regarding the Marvin M. Brandt Irrevocable Trust vs. United States, case: The decision may also affect how other discontinued ROW’s are treated. It certainly will prove to be interesting and affecting many.

  30. This is an area in which public interests easily outweigh private rights. However, it seems to me that the government should be required to to consider alternatives with the least amount of encroachment on individual property owners. I am glad to hear that the Supreme Court has been recently ruling in favor of land owners. I guess that checks and balances still work (sometimes, at least).

  31. As a real estate educator in NY, I cannot believe that more licensees do not read this blog! When I teach Kelo et. al, my students cannot understand how this could happen in our country. Thank you for being here!

  32. It’s nice to see that the courts are apparently ruling on the side of land owners. Very interesting. Thanks for the article!

  33. Very interesting. I’m glad this site was called to my attention. I’m going to keep checking back to see what’s up.

  34. We have lots of abandoned railroad tracks here in the Adirondack Region. Please post the court’s decision when it comes out. Thanks!

  35. Thank you for the information. This is something we should all be aware of.

  36. I will be watching for the ruling about the railroads

  37. Great post. Timely and useful information that I have not seen anywhere else. Thank you.

  38. Thank you for the article. There are a few railroad tracks in my area, but the issue has never crossed my mind. Now I’ll know when it comes up. Thank you!

  39. I hope they get this one right. The “ObamaCare” decision is a nightmare in progress.

  40. Good read. It’s also nice to hear about rulings in the property owners favor.

  41. Thank you for posting this, it’s always nice to know what’s going on in the industry, especially as it relates to current events. I will be sure to continue to follow this case.

  42. Thanks for keeping us up to date about the courts and real estate.

  43. cool site

  44. Great that the SCOTUS is treating the land as a priority.
    We can’t make any more. We must utilize it wisely.

  45. It is great to see the Supreme Court remember it’s “…For the People, By the People…” not: “… for the Government, by the Government …”

  46. Good to see the Supreme Court giving owners a break. We need all the help we can get these days!

  47. Will be interesting to see how this all turns out

  48. I am glad that there is one agency of the government is taking responsibility for protecting the citizens. I know that it cuts both ways but in this instance I support it 100%!

  49. Very informative article. Happy that the tide is turning (however slowly) in favor of land owners.

  50. As Union Pacific and other RRs develop switching yards in new sites and decommission or scale back use of existing facilities, especially in city centers, I wonder what effect the SCOTUS decision will have on the potential land uses of the abandoned property?

  51. Constitutional issues effect everyone, it is great that this blog is presenting the relevant SCOTUS decisions so we can all be aware of the changes. Thanks!

  52. It is good to see the court returning to a rational view of the takings clause after the disastrous Kelo v. New London case. There are no rights without property rights, as property rights are, at their base, the right to use and dispose of the results of your labor. These rights have been under near-continuous siege during the 20th century.
    The whole purpose of the Supreme Court, and of the constitution in general, is to restrain not the people, but the government.

  53. Interesting article. Thanks for the information. Would like to see the ruling of the case posted here.

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