One portion of the federal Uniform Relocation Act, 42 U.S.C. § 4651, requires Federal agencies participating in projects requiring the acquisition of private property to be guided by certain policies that "assure consistent treatment for owners . . . and . . . .promote public confidence in Federal land acquisition practices," such as (and we're paraphrasing here), do it as quickly as possible, try to get it by negotation, don't use condemnation to leverage a lower negotiated price, and so forth.
These policies apply to state and local condemnors when their projects involve federal funding, and in Clear Sky Car Wash LLC v. City of Chesapeake, No. 13-1492 (4th Cir. Feb. 21, 2014), the owner whose property was being condemned by the Virginia Department of Transportation asserted VDOT was not following the rules. VDOT instituted a "quick take" eminent domain action in state court, and Clear Sky went to federal court to object:
(1) in arriving at its $2.15 million valuation (which Clear Sky contends was too low); (2) in negotiating with Clear Sky (which Clear Sky alleges was conducted in bad faith); and (3) in initiating the quick take proceeding "prematurely."
Slip op. at 3. The District Court dismissed, and the Fourth Circuit affirmed, concluding that Congress did not intend for the Act to be privately enforceable. Indeed, held the court, Congress intended just the opposite, that the federal statute is like the Pirate's Code in Pirates of the Carribean, and "is more what you'd call 'guidelines' than actual rules" --
In short, the URA directs that "the head of a Federal agency" be guided by the policies of § 4651 when acquiring land or that he assure himself that the state agencies are guided by them when using federal funds to acquire land. The statutory directive is aimed at the agency head, and it omits any language conferring rights or benefits on landowners. Indeed, to the contrary, § 4602(a) specifically provides: "The provisions of section 4651 of this title create no rights or liabilities and shall not affect the validity of any property acquisitions by purchase or condemnation.” 42 U.S.C. § 4602(a) (emphasis added).
Slip op. at 11.
There might be a claim against the federal agencies under the Act reviewable by a federal court under the Administrative Procedures Act (see here, for example), but the Fourth Circuit concluded that the plaintiff did not allege an APA claim in the District Court, and only raised it in a "passing reference" in its appellate briefs. Besides, there was no "final agency action," which is the trigger to APA review, since at most the plaintiff alleged only that the federal agency overseeing the VDOT did not monitor the City's conduct more closely than it did, and "such ongoing oversight does not amount to final agency action[.]" Slip op. at 15.
One thought on what compelled this result, aside from that "we don't mean to create a private right of action" statement. Even if there were a private right created by the Act, very few federal courts are going to intervene in ongoing state condemnation proceedings, and even fewer federal courts would be willing to enjoin such a proceeding, as the plaintiffs asked here.
Clear Sky Car Wash LLC v. City of Chesapeake, No. 13-1492 (4th Cir. Feb. 21, 2014)
