Queue Up That Zoning Ordinance Claim

The US Supreme Court clarifies that a constitutional violation is complete at the time property is taken.

As a property rights advocate/activist, I am beyond thrilled.

Local governments be forewarned, the path to pursue when property owner’s constitutional rights have been violated has just been shortened.  Zoning ordinances which have grown to be nearly as large as the worlds largest fungus might now face appropriate challenges in venues that serve as constitutional protectors.

The Supreme Court Of The United States (SCOTUS) has smashed a ‘takings’ precedent, and in doing so has made it easier for property owners beset with zealous planning and land use prohibition to clarify more immediately where a constitutional line is drawn.  From the SCOTUS blog:

In its long-awaited opinion in Knick v. Township of Scott, the Supreme Court ruled on Friday that plaintiffs alleging that local governments have violated the takings clause may proceed directly in federal court, rather than first litigating in state court. The opinion overrules a 34-year-old precedent, Williamson County Regional Planning Commission v. Hamilton Bank, triggering a sharp dissent and another debate among the justices about the meaning of stare decisis. The majority opinion also rests on a reading of the takings clause—that a constitutional violation occurs at the moment property is “taken,” even if compensation is paid later—that may have consequences beyond this case.

The takings clause of the federal Constitution provides: “nor shall private property be taken for public use, without just compensation.” This takings case arose from a dispute between petitioner Rose Mary Knick and the township of Scott, Pennsylvania. Knick has a small graveyard on her property, and the township attempted to enforce against her an ordinance requiring such properties to be open to the public during daytime hours. Knick alleged an unconstitutional taking, but a federal court dismissed her suit because she had not first sought compensation in state court.

The 34-year-old precedent was not all that it upended.

A more than a century old tradition of government delaying payment for such takings was tossed as well.

Second, the court invoked a line of cases, starting with Cherokee Nation v. Southern Kansas Railway Co. in 1890, for the proposition that governments need not pay compensation at the time of the property deprivation as long as, at that time, they make available a “reasonable, certain, and adequate” mechanism for recovering such compensation after the fact.


And such a well established unconstitutional precedent being tossed has thrown the ‘progressives’ on the bench into a tizzy. Justices Elena Kagan,  Ruth Bader Ginsburg’s ghost, Stephen Breyer, and Sonia Sotomayor don’t much like precedent being challenged.

Justice Elena Kagan’s sharply worded dissent, joined by Justices Ruth Bader Ginsburg, Stephen Breyer and Sonia Sotomayor, takes the court to task for “smash[ing] a hundred-plus years of legal rulings to smithereens.” Kagan contests the notion that takings claims are treated worse than others under Williamson County (and rejects the bank robber analogy), noting that “[t]he distinctive aspects of litigating a takings claim merely reflect the distinctive aspects of the constitutional right,” which is not violated until “(1) the government takes property, and (2) it fails to pay just compensation.” She chides the majority for its textual analysis, noting that the spare text of the Fifth Amendment “no more states the majority’s rule than it does Williamson County’s.” The dissent emphasizes Williamson County’s long precedential pedigree, giving the majority “[p]oints for creativity,” but stating that the majority’s construction of the Cherokee line of cases is “just not what the decisions say” (and was not argued by Knick or her amici). “Maybe,” the dissent writes, “the majority should take the hint: When a theory requires declaring precedent after precedent after precedent wrong, that’s a sign the theory itself may be wrong.”

The dissenters point to three negative consequences of the majority’s ruling. First, “it will inevitably turn even well-meaning government officials into lawbreakers.” Now that a constitutional violation is complete at the time of deprivation, even if the government will later pay compensation, ordinary land-use regulators become “constitutional malefactors.” None of the opinions fully flesh out the possible consequences of that distinction—but local, state and federal officials (who take oaths to uphold the Constitution) will likely be reflecting on the possibility of collateral consequences. Second, the dissent asserts that federal courts will now be flooded with claims that depend on land-use and state-law intricacies, and that the majority’s ruling “betrays judicial federalism.” Finally, and perhaps most vigorously, the dissent decries the majority’s treatment of stare decisis. “[T]he entire idea of stare decisis is that judges do not get to reverse a decision just because they never liked it in the first instance,” the dissent writes, and “it is hard to overstate the value, in a country like ours, of stability in the law.” Referencing the court’s citation to last term’s controversial ruling in Janus v. American Federation of State, County, and Municipal Employees the dissent states, “If that is the way the majority means to proceed—relying on one subversion of stare decisis to support another—we may as well not have principles about precedents at all.”

I have often noted there is a certain brilliance in the dissent of a SCOTUS decision.

Not that the arguments (in-this-case) made by Kagan are constitutionally sound, but that she recognizes the impact the decision will have.  She sees that stare decisis is clearly impacted, that local officials will have to actually consider the constitution they swore to uphold, and that there may be a rash of court battles now looming for abridgement of our property rights.

Tell me again where the problem lays Justice Kagan?

Due process as she describes as a wispy “spare text of the Fifth Amendment” is real, and no justice should advocate for ignoring it in favor of governmental expedience.  Clearly a decision like this makes it harder for government malefactors to do what they have been doing for nearly 40 years, but it should only be considered a problem for those with a misunderstanding of whom the constitution protects.

Government’s existence should not be easy.  No part of government that regulates, takes, or prohibits should be left to do so without serious consideration and restrictions upon it. Clearly this court recognizes the slippery slope of the past several decades, and perhaps a new set of standards in how it will proceed.

Precedent as it has been handled has been for the lazy in government.  Constitutionality has been misread as courts look not to the original document as intent, but to the decisions of judges before for too long.

Like a bad coat of paint covered by a bad coat of paint, precedent biased decisions have caused a loss to much of the lustre of the greatest document any nation has ever crafted.

One might surmise that this won’t be the end of such bold repatriation of core constitutional value either.  It may well be what has the dissent team so flustered.  Seeing a rash of the political diseases that have infested SCOTUS pondering for the last few decades re examined is scary business.

For now it is property rights.  It is due process.  Next time it could be what we define as LIFE.



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  3 comments for “Queue Up That Zoning Ordinance Claim

  1. B. Roubal
    June 25, 2019 at 11:13 am

    It's to bad the property owner can't file some sort of legal exemption from these STUPID local ordinances!!!

    You Betcha! (3)Nuh Uh.(0)
    • Jason
      June 25, 2019 at 11:36 am

      the interesting thing is, that with this, local governments are on notice that it takes very much less to challenge those ordinances if they result in, or appear to result in takings. It may not sink in right away, but this is the kind of decision that has lasting impact.

      Even those who wish to do-good will want to carefully evaluate the consequence of regulatory overreach.

      You Betcha! (4)Nuh Uh.(0)
  2. Sue Schwatrz
    June 25, 2019 at 1:17 pm

    OMG, as a property rights person, this is exactly what I preach (and is JUGE) under what law do you have a right to regulate my personal property? Zoning is what "they" respond. HAHA. ABSOLUTELY make sure that each and every of any property regulations within your town MUST say something to the effect up-holding the constitution. Of course, arguments could be made that their oaths of office also requires this statement. Back to this wonderful opinion, I saw Justice Clarence Thomas on Saturday merely stating precedence if wrong, needs to be corrected no matter the age. Did not know why he was saying this. Now I do. There is a matter pending right now regarding a statute erected on private property where the wall is being, or has been built. The ACLU is using this excuse that the statute, on private property is public, therefore the property owner must keep the gate open (the wall) for public viewing. Private property owner, granted an easement or sold a strip of his property for the wall; which just happens to wall in this statute. While he has, from time to time, allowed folks to visit with his permission. He is no longer granting permission. Might as well be a graveyard. ACLU will have to dismiss it's suit. Must be this is the consequences the "progressives" were talking about. YES!

    You Betcha! (6)Nuh Uh.(0)

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