Do regulations that exist at the time that a property owner purchases his land negate any expectation that he will be able to use the land productively? Not according to this amici brief, filed today in Mehaffy v. United States, No. 12-1416 (cert. petititon filed June 5, 2013).
The cert petition asks the Supreme Court to review the Federal Circuit's unpublished opinion in which the court affirmed the Court of Federal Claims' grant of summary judgment to the government, holding that Mehaffy failed the Penn Central test solely because he purchased the property alleged to have been taken after the governmentt adopted the Clean Water Act.
The amici brief, filed by the National Federationof Independent Business Small Business Legal Center, the Cato Institute, and the Chapman Center for Constitutional Jurisprdence poses the Question Presented this way:
In Palazzolo v. Rhode Island, 533 U.S. 606 (2001), this Court repudiated the so-called Notice Rule, which held that post-enactment purchasers could not state a claim for a regulatory taking arising from restrictions adopted before they took title to their property. In this case, the Federal Circuit pronounced a categorical rule precluding landowners from prosecuting takings claims in almost any case in which the owner acquired title after the enactment of the Clean Water Act in 1972. Does the Federal Circuit’s categorical rule revive the Notice Rule that Palazzolo unequivocally repudiated?
The SG has waived the right to response, and the case is scheduled for consideration at the Court's September 30, 2013 conference.