Due process

Thanks to Timothy Sandefur at PLF on Eminent Domain for calling attention to the Colorado Supreme Court’s opinion in Wheat Ridge Urban Renewal Auth. v. Cornerstone Group XXII, LLC, No. 06SC591 (Dec. 3, 2007). 

In that case, the court refused to order a redevelopment agency to condemn private property and turn it over to a developer to build a Walgreen’s store.  The court held that judges have no authority to compel an agency to take property even if the agency had entered into a contract with the developer in which it agreed to do so.  While not expressly relying on separation of powers, the court’s opinion clearly was based on its concern with preserving the agency’s discretion to condemn (or not condemn) private property.  See slip op. at 21-22.  The bottom line is that in Colorado, courts have no jurisdiction to fashion a specific performance remedy requiring the government to exercise a sovereign power.

Professor Ilya Somin calls the victory “Pyrrhic” in his analysis of the decision, suggesting the court’s “reasoning is likely to undermine property rights in the long run.”  While the opinion is often opaque and many of its premises difficult to fathom, I’m not so sure the case should be considered so poorly.  After all, the court reached a good result, although its analysis ventures into areas it need not have gone.  Continue Reading Court Has No Power to Order Government to Take Property

In Action Apartment Ass’n v. City of Santa Monica, No. 05-56533 (Dec. 3, 2007), the US Court of Appeals for the Ninth Circuit sustained Santa Monica, California’s 2002 amendments to its rent control ordinance against a takings and due process challenge:

In this appeal, we are presented with a claim that Santa Monica’s rent…

The Wall Street Journal details impact fee issues in “Rising Use of ‘Impact’ Fees Rankles New-Home Buyers,” with some truly horrific examples, including one couple whom a California city demanded pay a $240,000 fee to get building permits to construct a rural home valued at $500,000, and homeowners who were required to sign…

In Scheehle v. Justices of the Supreme Court of Arizona,No. 05-17063 (Nov. 15, 2007), the Ninth Circuit held that Arizona’s”low bono” requirement that all attorneys serve as arbitrators for $75per day, maximum two days, is not a taking.  It’s probably safe tosurmise that the plaintiff’s position probably received little sympathyoutside of certain members of…

More on Franco v. National Capital Revitalization Corp., No. 06-CV-645 (July 12, 2007), a decision from the District of Columbia Court of Appeals about the level of proof needed to show a “pretextual” — and therefore prohibited — taking. 

I.  Kelo and Pretextual Takings

In Kelo v. City of New London, 545 U.S.

The US Court of Appeals for the Second Circuit (NY) has provided some guidance on how to prove a substantive due process zoning case, and what is a “property interest” that triggers constitutional protection.  In Cine SK8, Inc. v. Town of Henrietta (No. 06-1718-cv) (Nov. 8, 2007), “Fun Quest” received a special use permit to…

A must-read decision today from the Ninth Circuit — Crown Point Development, Inc. v. City of Sun Valley, No. 06-35189 (Nov. 1, 2007).  The court clarified a point that has been a long time coming: a property owner may assert claims under both the Takings and the Due Process Clauses.  In other words, land…