Here's one court that gets its doctrine right. Bonito Partners, LLC v. City of Flagstaff, No. 1 CA-CV 10-0819 (Feb. 21, 2012).
A property owner challenged a city ordinance that requires a landowner repair adjacent public sidewalks, else the city will do it and send the owner the bill, and if the landowner doesn't pay, the city will put a lien on the property.
The city told the owner to fix the broken and dangerous sidewalk next to its property. It didn't ("Please proceed with the repairs. Do not wait for Bonito Partners, LLC to do the work."). The city fixed it, charged the owner, and eventually put a lien on the property. The owner sued for both a taking and for due process.
The trial court granted the city summary judgment. In addressing the takings argument, the court of appeals first noted that takings and due process are doctrinally distinct:
In its minute entry ruling dismissing the complaint, the trial court agreed with the City’s argument that the ordinance was a valid exercise of that power and therefore was not an unconstitutional taking. As we discuss below, the parties’ arguments, and the court’s ruling, conflate the analytically separate—albeit interrelated—issues regarding whether the ordinance is valid under the Due Process Clause of the Fourteenth Amendment and, if so, whether it nonetheless violates the Takings Clause.
Slip op. at 5-6. The court correctly concluded that under Lingle v. Chevron U.S.A., Inc., 544 U.S. 528 (2005), you don't get to takings issues unless you first determine the challenged law is a valid exercise of the police power under the due process clause. The court concluded that broken sidewalks are nuisances, and that under the "rational basis" test, it is a valid exercise of the city's police power to abate nuisances.
But wait a minute, the owner argued, we didn't cause the nuisance and it's not on our property -- it's a public sidewalk, not ours. The court rejected this argument, holding that there is "ample authority" that it is not an unreasonable and arbitrary exercise of municipal power to require a private landowner to maintain and repair public sidewalks on adjacent land. Slip op. at 9-10. We won't go into that, even though we're not all that convinced that due process should have no problem with the concept that even if you didn't break it, you still may have bought it. If property owners can be made to fix adjacent public sidewalks, why not the public adjacent roads?
But that's not the end of the analysis, the court held, because if this valid regulation went "too far" in forcing the property owner to privately bear the cost the entire public should bear, it might be a taking. Not a per se taking (physical invasion or Lucas wipeout), but a taking analyzed under the three-factor Penn Central test, something that "[n]either party has yet addressed." Slip op. at 13. The court vacated the summary judgment on the takings claim, and remanded the case to the trial court for application of the Penn Central test.
Finally, the court of appeals rejected the property owner's arguments that the ordinance is an unconstitutional tax under state law, that it is an illegal "special law," and that it was beyond the power of the city to adopt.
Check this opinion out if you need a reminder that good ideas are not necessarily insulated from takings claims. This post may also help.