We thought we posted the U.S. Court of Appeals for the Sixth Circuit's recent opinion in a takings case, Golf Village North, LLC v. City of Powell, No. 20-4177 (Sep. 23, 2021), earlier, but a search of the blog reveals we did not, so here we go.
The City built a new 23-acre public park (highlighted in green on the map above), which had been dedicated by the developer, Golf Village North, as a condition of subdivision. A road that led to the one of the park entrances was to be made a public road (blue highlighted). The City's plans noted that approval of the park construction and opening the blue road to the public were contingent on the City securing easements from Golf Village for public access to the private streets.
The city tried to obtain these easements but Golf Village declined. Notwithstanding the city's plans required obtaining the easements, the City went ahead and finalized the park construction plans without the easements and opened the public street for access. Golf Village sued, and obtained an injunction prohibiting the City from using the still-private roads. In response, the City instituted a quick-take eminent domain action to take the road easements. The court dissolved the injunction and stayed the case pending resolution of the quick-take action.
Later, however, before the quick-take action was resolved, Golf Village asked to amend its complaint to allege a physical invasion regulatory taking claim, asserting that the public was using the streets to access the park, and that Knick voided the requirement of seeking compensation first in state court (so we don't need to wait for the quick take action to resolve). The court allowed amendment, but dismissed the (amended) complaint for failure to state a claim.
The Sixth Circuit affirmed. The court relied on Cedar Point, acknowledging that "Golf Village must allege that the City authorized and licensed the public’s use of Market and Moreland Streets and deprived it of its right to exclude in order to plead a taking." Slip op. at 8. But here, the court concluded, the City has not appropriated a right to exclude the still-private portions of the streets. The City conceded "that Golf Village 'retain[s] the right to exclude individuals from [its] property by erecting barriers or otherwise enforcing [its] property rights.'" Slip op. at 10. In short, even though the public apparently actually uses the roads for access to the park, the roads remain private, and there's no impediment to the owner asserting its right to exclude.
Golf Village responded by arguing that the taking already occurred, and that property owners have no responsibility to terminate a taking. See slip op. at 10. And here's where it gets a bit metaphysical. On one hand, an invasion by the public at the City's invitation would be a taking triggering the right to compensation (see Knick). On the other, it seems that the court viewed the situation as not one where the owner could terminate the invasion, but one where its right to exclude was never violated by the City even if member of the public trespassed:
In this case, the action by Golf Village that would terminate the alleged taking is to exercise its right to exclude. For example, Golf Village could build a gate at the entrance to Market Street to ensure that everyone who drives on the private streets is an invited guest. Or it could build a curb at the intersection of Moreland and Sheridan Streets that would make it impossible for cars to use the private streets to access the park, thereby reducing the likelihood that members of the public would damage Market and Moreland. Golf Village’s assertion on appeal that “[t]he installation of barriers or gates also would be inconsistent with Golf Village’s intended use of the properties and its ability to have the private streets available for Golf Village’s invitees,” is not supported by any factual allegations. (Appellants’ Br. 28 n.6.) Under Golf Village’s analysis, any time the government took an action that made a property owner’s property more popular, regardless of what actions the property owner could take, there would be a taking. That proposition is not supported by either Loretto or Otay Mesa.
Slip op. at 11. In other words, in the court's view, the owner never lost the right to exclude even though members of the public ignored that right. Slip op. at 13 ("Accordingly, even under the cases it cites, Golf Village has failed to allege a violation of the right to exclude because it has not alleged that the City appropriated, for members of the public, a right of access to its property."). The City never invited the public to trespass, the court concluded.
Golf Village North, LLC v. City of Powell, No. 20-4117 (6th Cir. Sep. 23, 2021)
