If you haven't figured out by now, we like takings claims. We really do. But here's one where we think the Third Circuit reached the right result when it concluded that there was no compensable taking. National Amusements, Inc. v. Borough of Palmyra, No. 12-1630 (May 9, 2013).
Why? Because when there may be an unexploded artillery shell on the property, and as a result the government seals off the property and temporarily closes the business conducted thereon, we don't think the Takings Clause requires compensation, that's why. The property owner thought otherwise, and in response to the Borough's order to shut down after someone discovered that a flea market site was also former WWII-era muntions magazine and testing area, and that there was still some of that stuff left over, it objected:
The gist of the Complaint is that Palmyra overstated the danger posed by the unexploded munitions as pretext to shut down NAI’s economic activity on property Palmyra had been eyeing for redevelopment. NAI contends that Palmyra’s failure to enact similar restrictions on adjacent property or adopt a less restrictive course of action that could have permitted the continued operation of the Market demonstrated this surreptitious intent.
Slip op. at 4. Yes, the Borough had sold the property to the flea market's predecessor in title. Yes, the Borough apparently was now targeting the area (sorry for the bad pun) for redevelopment. Yes, the Borough didn't shut down neighboring parcels. Yes, the Borough and the property owner entered into a consent order which allowed the market to open at certain times, presumably meaning the danger was not all that great. Yes, a five-month shutdown seems a bit much. And yes, the discovery by the Borough was, shall we say, conveniently timed. But as far as we can tell from the opinion, unexploded artillery shells were not found on other parcels, and the property owner introduced no evidence that the "we discovered unexploded artillery shells on your property" thing was just a pretext designed for leverage in the redevelopment acquisition. Unless there's more to this case than what the opinion reveals, we have to go with it-is-better-to-be-safe-than-sorry when dealing with old artillery rounds and a public venue.
Question: how desperate for a bargain does a shopper have to be to go to a flea market knowing that there are unexploded artillery shells on the premises? Not us, brother.
The takings issue came up in the context of a request for $200,000 in attorneys' fees, which the property owner sought following the entry of the consent order, claiming it was the prevailing party. The Third Circuit affirmed the District Court's denial of the motion for fees, concluding "[i]t is difficult to imagine an act closer to the heartland of a state's traditional police power [to abate nuisances] than abating the danger posed by unexploded artillery shells." Slip op. at 7.
Read the opinion. It's short. It makes sense.