You have to like any sport that the New York Times describes as "like driving full speed through an endless loop of red lights. Luck often expires in a cloudburst of steam and scattered auto parts." That's how the Times described "figure 8 car racing."
But not everyone likes figure 8 racing or related activities, it seems. After a property owner stored several of his race cars on his land and annoyed some residents of Indianola, Iowa, the city adopted an ordinance requiring land on which figure 8 cars (and others) are stored to be enclosed by a fence if two or more cars are present. The property owner sued the city in state court alleging a regulatory taking and the city removed the case to federal court. After a bench trial, the district court held that the ordinance was not a taking.
In Iowa Assuarnce Corp. v. City of Indianola, No. 10-3815 (Aug. 16, 2011), the U.S. Court of Appeals for the Eighth Circuit affirmed. The court rejected the property owner's claim that the ordinance should be evaluated as a physical taking under the per se rule of Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419 (1982). The court held that the ordinance did not require the owner to install a fence, it only required the owner to install a fence if he wanted to store two race cars on his property. The court applied the same rationale as the recent Ninth Circuit decision in Horne v. U.S. Dep't of Agriculture, No. 10-15270 (July 25, 2011) (the raisin case), holding that because the owner is not required to use his property for car storage, the city's ordinance did not interfere with his right to exclude:
By its own terms, the ordinance does not require Watson to permit either the City or any third party to enter the property and install a fence. Consequently, the ordinance does not erode Watson's right to exclude others from the property, which is central to establishing a Loretto claim. Id. at 435 (noting that the New York law requiring landlords to allow cable providers to install equipment on their property curtailed landlords' right to exclude—"one of the most treasured strands in an owner's bundle of property rights"); see also Lingle, 544 U.S. at 539 (noting that a Loretto regulatory taking "eviscerates the owner's right to exclude others from entering and using her property—perhaps the most fundamental of all property interests"). Watson attempts to avoid this conclusion by arguing that he is compelled to permit a physical intrusion because he must install a fence in order to continue storing race cars on his property. However, Watson is not required to continue storing vehicles on his property, and so long as he still may choose whether to build the fence or forgo placing more than one vehicle outside, he cannot establish the required compliance necessary for a Loretto claim. See Yee v. City of Escondido, 503 U.S. 519, 527 (1992).
Slip op. at 6-7. (In Horne, the Ninth Circuit concluded that a federal regulation that required raisin handlers to set aside a certain percentage of their crop was not a Loretto-style physical taking because nothing required them to market their raisins.)
