Today the U.S. Supreme Court granted a petition for certiorari in the takings case of Horne v. Department of Agriculture. As followers of this blog may recall, the U.S. Supreme Court has already been around once in this case.
The issues as presented in the cert petition are as follows: “(1) Whether the government’s “categorical duty” under the Fifth Amendment to pay just compensation when it “physically takes possession of an interest in property,” Arkansas Game & Fish Comm’n v. United States, applies only to real property and not to personal property; (2) whether the government may avoid the categorical duty to pay just compensation for a physical taking of property by reserving to the property owner a contingent interest in a portion of the value of the property, set at the government’s discretion; and (3) whether a governmental mandate to relinquish specific, identifiable property as a “condition” on permission to engage in commerce effects a per se taking.”
Stay tuned. More to follow.
During oral argument in the Koontz case Chief Justice John Roberts asked rhetorically of counsel for the government: “Do you know of any case where the government has lost a Penn Central case?” In response, counsel cited several Supreme Court cases in which Penn Central claims prevailed. He also might have cited an assortment of successful Penn Central claims in the lower courts. It is certainly true that most Penn Central claims fail, which is only natural given, for example, the bedrock understanding that the Takings Clause is reserved for “extreme circumstances” (Riverside Bayview Homes v. United States) and Justice Antonin Scalia’s affirmation that a “property owner necessarily expects the uses of his property to be restricted, from time to time, by various measures newly enacted by the State in legitimate exercise of its police powers.” (Lucas v. South Carolina Coastal Council). But a claim under Penn Central certainly can be successful.
A sort of oddball case on point is the recent decision of the New York Appellate Division in In the Matter of New Creek Bluebelt, Phase 4. The case was actually a straight condemnation case involving a half-acre parcel on Staten Island. Normally the compensation award in a condemnation case takes into account the regulatory restrictions in place that limit the market value of the property. But the claimants contended that wetlands regulations limiting the development of their property were so onerous that they constituted a taking, and that the condemnation award therefore should be increased to reflect the probability that the regulations were a taking. Read the rest of this entry »
In Pennington v. Gwinnett County, the Georgia Court of Appeals has obliquely revisited the endlessly interesting question of whether the government can “take” private contract rights. This case was a laydown for the government, but it still provides a useful opportunity to highlight how difficult it is to prevail against the government in this type of takings case. Read the rest of this entry »