Eminent Domain Report

When dealing with regulatory takings claims, we've covered in the past the maze of procedural landmines that await a property owner.  We've once gone so far as to describe it as resembling "Alice's trip through Wonderland, with the parties falling in and out of state and then federal court (instead of a rabbit hole) based on procedural and substantive rules that often seem as logical as the Mad Hatter's recitals at the Tea Party."  Could one of those major obstacles disappear, allowing land owners a more direct shot at a regulatory takings claim in federal court?  The US Supreme Court could decide this issue if it takes up a new case where the property owners have filed a petition for review.  

While the chances of US Supreme Court review are slim, there's a fascinating new case that has made its way up the judicial ladder that deals specifically with the silly and confusing Williamson County rule that bounces a property owner around our legal system.  Our friend Robert Thomas has a detailed post on his blog, InverseCondemnation.com, that we highly recommend following.  

Generally, the case -- Alto El Dorado Partnership v. County of Santa Fe 634 F.3d 1170 (10th Cir. 2011) -- goes like this:

• The property owner sought to subdivide its property to build residential units.  However, a County ordinance requires subdividing land owners to build "affordable housing" units to be sold to County-approved buyers.  

• The property owner challenged the "affordable housing" obligation in federal court, claiming it amounts to an unconstitutional permit condition in violation of Nollan v. California Coastal Commission 483 U.S. 825 (1987).  

• The court held that under Williamson County, the owner's claim was unripe and had to be litigated in state court, and regardless, the owner could not challenge the affordable housing condition under Nollan because (1) it is a legislative (as opposed to administrative) requirement and (2) it does not take real property, but merely restricts the use of land.

In the property owner's petition for review, the US Supreme Court is being asked to decide whether Williamson County's state-procedures rule should be overturned given that it effectively bars property owners from asserting federal takings claims.  

If the Supreme Court takes up the case, it will be fascinating to follow.  We'll keep you posted.