We've had the U.S. Court of Appeals for the Fourth Circuit's opinion in Henry v. Jefferson County Comm'n, No. 09-1546 (Mar. 3, 2011) near the top of our to-read list for a while, because it is a regulatory takings case. But after finally reading it, realized that the opinion is a must read for another reason.
For how often does a judicial opinion begin with the words, "We begin by begging the reader’s indulgence as we summarize the frequently litigated facts underlying Henry’s claims and the byzantine procedural history accompanying them."
While we appreciate the court paying us this courtesy, the archaic phrasing reminded us of those godawful entries in the annual Bulwer-Lytton bad writing contest. You know, the ones that attempt to emulate the literary depths of the opening sentence of one of Bulwer-Lytton's novels:
It was a dark and stormy night; the rain fell in torrents--except at occasional intervals, when it was checked by a violent gust of wind which swept up the streets (for it is in London that our scene lies), rattling along the housetops, and fiercely agitating the scanty flame of the lamps that struggled against the darkness.
There are quasi-literary references sprinkled throughout the opinion. See, e.g.,slip op. at 6 ("But the litigation, which by now resembled a chronicle of the Tudor dynasty, did not stop. In March 2007 -- two years after the district court had dismissed Henry III's takings claim as unripe -- Henry finally sought compensation in state court, suing the Planning Commission for taking his property in violation of the West Virginia Constitution."); slip op. at 15 ("It is far from the only litigation that makes one wish Dickens were alive to write the sequel to Bleak House, but it assuredly would have provided the acclaimed novelist a raft of rich material. The case involves at bottom nothing more than a would-be developer’s failure to get all he wanted in a local land-use dispute.").
The balance of the opinion is less genteel, especially from the property owner's perspective, and the story does not end well for Mr. Henry. The case involved takings and due process claims stemming from the Planning Commission's grant of a conditional use permit that permitted him less intense development than he sought. The court questioned the case's viability under the Williamson County / San Remo Hotel ripeness-preclusion Catch-22 (slip op. at 7), before concluding that "the substantive obstacles to Henry's contentions are even more forbidding." Id. The court also rejected Henry's Penn Central takings claim because "[g]ranting Henry only a 14-unit CUP did not remotely take his property, and the district court properly granted summary judgment against him on this claim." Slip op. at 12.
Henry v. Jefferson Cty Comm'n, No. 09-1546 (4th Cir Mar 3 2011)
