SCOTUS to decide major takings case in 2017

The National Constitution Center has listed Murr v. Wisconsin as one of the ten most important US Supreme Court cases to be decided in 2017.  If you attended the Planning Law session at the APA-Iowa Annual Conference in Burlington you heard me discuss the nuances of the “parcel as a whole” rule as it pertains to this case.  The National Constitution Center gives its take on what the case is about here (you’ll need to scroll about halfway down the page).

Constitutional law and history geeks will want to explore the Center’s website generally.  A lot of fascinating reading.

US Supreme Court validates disparate impact standard for FHA cases

by Gary Taylor

Texas Department of Housing and Community Affairs v. Inclusive Communities Project, Inc.
U.S. Supreme Court, June 25, 2015

The Texas Department of Housing and Community Affairs (Department) is the agency responsible for distributing federal low-income housing tax credits to developers in Texas. the Inclusive Communities Project (ICP) is a Texas-based nonprofit that assists low-income families in obtaining affordable housing.  ICP brought a claim under Sections 804(a) and 805(a) of the Fair Housing Act (FHA) alleging that the Department had caused continued segregated housing patterns by allocating too many tax credits to housing in predominantly black inner-city areas, and too few in predominantly white suburban neighborhoods.  These sections of the FHA provide that it shall be unlawful…

“..to refuse to sell or rent after the making of a bona fide offer, or to refuse to negotiate for the sale or rental of, or otherwise make unavailable or deny, a dwelling to any person because of race, color, religion, sex, familial status, or national origin. (804(a)).

“…for any person or other entity whose business includes engaging in real estate-related transactions to discriminate against any person in making available such a transaction, or in the terms or conditions of such a transaction, because of race, color, religion, sex, handicap, familial status, or national origin. (805(a)).

The question before the U.S. Supreme Court was whether the above-cited language in the FHA requires that plaintiffs in such cases prove a discriminatory intent (improper motive) on the part of the defendant, or merely that a disparate impact (that the outcome had a disproportionately adverse effect on minorities) resulted from the action of the defendant.  This question has been simmering in the federal courts for many years, with federal circuit courts concluding that disparate impact (with minor variations) was sufficient.

In a 5-4 decision the Court determined that, with certain conditions proven, disparate impact claims are valid under the FHA. The Court looked to other federal statutes – and the Court’s interpretations of those statutes – for guidance.  Both Title VII of the Civil Rights Act of 1964 (Title VII) and the Age Discrimination in Employment Act of 1967 (ADEA) were interpreted by the Court to allow disparate impact claims because their texts refer to the consequences of actions and not just to the mindset of actors, where that interpretation is consistent with the overall statutory purpose. Carrying that logic to the FHA, the phrase “or otherwise make unavailable” in Section 804(a) is results-oriented, and refers to the consequences of an action rather than the actor’s intent.  It is functionally equivalent to “otherwise adversely affect” language found in both Title VII and AEDA.  In all three these phrases act as a catchall, located at the end of a lengthy sentence that begins with prohibitions on disparate treatment.  The word “otherwise” signals a shift in emphasis from an actor’s intent to the consequences of his actions.  The Court found it relevant that Congress passed the FHA within four years of both Title VII and AEDA, and that therefore Congress must have chosen words that bear the same basic meaning and serve the same basic purpose.

The Court also found it highly relevant that when Congress made significant amendments to the FHA in 1988 they left the language in 804(a) and 805(a) alone, at a time when all nine federal circuit courts had interpreted that language to allow disparate impact claims.  If Congress was dissatisfied with the courts’ interpretations of the language they could have changed it at that time.  Furthermore, three exemptions from FHA liability that were added in 1988 would have been meaningless had Congress assumed that disparate impact liability did not exist under the FHA.

The Court, however, also recognized that disparate impact liability “has always been properly limited in key respects to avoid serious constitutional questions” that might arise if, for example, liability were imposed based solely on a showing of “statistical disparity.”  A disparate impact claim relying on a statistical disparity must fail if the plaintiff cannot point to a policy or policies of the defendant that causes that disparity.  In other words, discriminatory intent need not be shown, but a “robust” showing of a cause-effect relationship is required.  Furthermore, defendants must be given leeway to explain the valid interest served by their policies or practices, and such policies should be allowed to stand – without liability therefore – if it they can be proven to be necessary to achieve a valid interest.  Policies and practices do not run afoul of the disparate impact standard unless they are “artificial, arbitrary, and unnecessary barriers.”

The Court also cautioned that disparate impact should not be interpreted so broadly as to inject racial considerations into every housing decision.  “The FHA does not decree a particular vision of urban development; and it does not put housing authorities and private developers in a double bind of liability, subject to suit whether they choose to rejuvenate a city core or to promote new low-income housing in suburban communities….Disparate impact liability does not mandate that affordable housing be located in neighborhoods with any particular characteristic.”

The Court affirmed the right of local housing authorities to design race-neutral efforts to encourage revitalization of communities that have long suffered the harsh consequences of segregated housing patters.  Such authorities may choose to foster diversity and combat racial isolation race-neutral tools.  The mere awareness of race in attempting to solve the problems facing inner cities does not doom such endeavors.

US Supreme Court strikes down buffer zones around MA abortion clinics

by Gary Taylor

McCullen v. Coakley
(US Supreme Court, June 26, 2014)

In 2007, Massachusetts amended its Reproductive Health Care Facilities Act to make it a crime to knowingly stand on a public way or sidewalk within 35 feet of an entrance or driveway to any “reproductive health care facility,” defined as “a place, other than within or upon the grounds of a hospital, where abortions are offered or performed.” the Act exempted four classes of individuals, including “employees or agents of such facility acting within the scope of their employment.”  Another provision of the Act makes it a crime for the knowing obstruction of access to a reproductive health care facility. McCullen and others who attempt to engage women approaching Massachusetts abortion clinics in “sidewalk counseling” – offering information about alternatives to abortion and help in pursuing those options – raised First Amendment claims, arguing that the buffer zone displaced them from their positions outside clinics which considerably hampered their counseling efforts.  Their attempts to communicate with patients are further hampered by clinic escorts who accompany arriving patients through the buffer zones to the clinic entrances.

The US Supreme Court held that the Act violates the First Amendment.  First the Court noted that “public ways” and “sidewalks” are traditional public fora which have traditionally been open for speech activities.  The government’s ability to regulated speech in traditional public fora is very limited, where traditional time, place and manner restrictions on speech are allowed only if the restrictions (1) are justified without reference to the content of the regulated speech, (2) are narrowly tailored to serve a significant governmental interest, and  leave open ample alternative channels for communication of the information.

Content based.  The Court determined that the restrictions were neither content nor viewpoint based.  Just because the buffer zones were drawn specifically around abortion clinics does not mean the restriction was directed, on its face, at a specific message.  It was adopted in response to a record of crowding, obstruction and even violence outside abortion clinics that was not present in other locations.  Violation of the Act does not depend on what individuals say, but rather where they say it.  The Act’s purposes include protecting public health, safety and welfare, and unobstructed public use of streets and sidewalks.  Furthermore, the exemption for clinic employees was not an attempt to favor one viewpoint over another, but rather was necessary to allow them to enter and exit the clinics in the performance of their duties.

Narrowly tailored.  The Court determined that the buffer zone restriction was not narrowly tailored, in that it burdened substantially more speech than is necessary to further the government’s legitimate interests.  While it served the interest in public safety on sidewalks, it deprived the petitioners of their two primary methods of communicating their message: close personal conversations with arriving patients and distribution of literature.  Those forms of expression have historically been closely associated with the transmission of ideas.  Petitioners are not merely protesters; they seek not only to express their opposition to abortion but also to engage in personal conversations with women about various alternatives to abortion.  “It is thus no answer to say that petitioners can still be seen and heard by women within the buffer zones.  If all that the women can see and hear are vociferous opponents of abortion, then the buffer zones have effectively stifled petitioners’ message.  The Court suggested that Massachusetts could adopt legislation similar to the federal Freedom of Access to Clinic Entrances Act of 1994, which prohibits obstructing, intimidating, or interfering with persons obtaining or providing reproductive health services.  The Court also noted that the problems the legislation sought to address were principally limited to one Boston clinic on Saturday mornings.  The police are capable of singling out those who harass or intimidate patients, and so the restrictions in the Act burden substantially more speech than necessary to achieve the government’s public safety interests.  The government must demonstrate that such alternative measures that would burden substantially less speech would fail, not simply that the chosen route (buffer zones) is easier to enforce.

 

US Supreme Court OKs opening prayer at government meetings

by Gary Taylor

Town of Greece v. Galloway
(United States Supreme Court, May 5, 2014)

Since 1999, the monthly town board meetings in Greece, New York, have opened with a roll call, a recitation of the Pledge of Allegiance, and a prayer given by clergy selected from the congregations listed in a local directory. While the prayer program is open to all creeds, nearly all of the local congregations are Christian; thus, nearly all of the participating prayer givers have been too. The Town did not preview or approve the prayer in advance. Susan Galloway and other citizens who attended meetings to speak on local issues objected on the grounds that Christian themes pervaded the prayers to the exclusion of citizens who did not share those beliefs. In response, the town invited a Jewish layman and the chairman of the local Baha’i temple to deliver prayers. A Wiccan priestess who had read press reports about the prayer controversy requested, and was granted an opportunity to give the invocation. Galloway proceeded to file suit, alleging that the town violated the First Amendment’s Establishment Clause by preferring Christians over other prayer givers and by sponsoring sectarian prayers. They sought to limit the town to “inclusive and ecumenical” prayers that referred only to a “generic God.” The District Court upheld the prayer practice on summary judgment, finding no impermissible preference for Christianity; concluding that the Christian identity of most of the prayer givers reflected the predominantly Christian character of the town’s congregations, not an official policy or practice of discriminating against minority faiths; finding that the First Amendment did not require Greece to invite clergy from congregations beyond its borders to achieve religious diversity; and rejecting the theory that legislative prayer must be nonsectarian. The Second Circuit reversed, holding that some aspects of the prayer program, viewed in their totality by a reasonable observer, conveyed the message that Greece was endorsing Christianity. The Town of Greece appealed to the U.S. Supreme Court.

Writing for the 5-4 majority, Justice Kennedy began by observing that legislative prayer, while religious in nature, has long been understood as compatible with the Establishment Clause.  Looking back in history, the Court noted that the First Congress voted to appoint and pay official chaplains shortly after approving language for the First Amendment, and both Houses of Congress have maintained the office virtually uninterrupted since then.  There is also historical precedent for the practice of opening local legislative meetings with prayer as well. Past Supreme Court cases have held that the Establishment Clause must be interpreted “by reference to historical practices and understandings.”  Thus, any application of the Establishment must acknowledge a practice that was accepted by the Framers and has withstood the critical scrutiny of time and political change. The Court’s inquiry, then, must be to determine whether the prayer practice in the town of Greece fits within the tradition long followed in Congress and the state legislatures.

The Court concluded that Galloway’s insistence on nonsectarian prayer is not consistent with this tradition. The Nation’s history and tradition have shown that prayer in the limited context of opening legislative activity could “coexis[t] with the principles of disestablishment and religious freedom.”  The “content of the prayer is not of concern to judges,” provided “there is no indication that the prayer opportunity has been exploited to proselytize or advance any one, or to disparage any other, faith or belief.” To hold that invocations must be nonsectarian
would force the legislatures sponsoring prayers and the courts deciding these cases to act as supervisors and censors of religious speech, thus involving government in religious matters to a far greater degree than is the case under the town’s current practice of neither editing nor approving prayers in advance nor criticizing their content after the fact. It is doubtful that consensus could be reached as to what qualifies as a generic or nonsectarian prayer. It would also be unwise to conclude that only those religious words acceptable to the majority are permissible, for the First Amendment is not a majority rule and government may not seek to define permissible categories of religious speech. In rejecting the suggestion that legislative prayer must be nonsectarian, the Court does not imply that no constraints remain on its content. The relevant constraint derives from the prayer’s place at the opening of legislative sessions, where it is meant to lend gravity to the occasion and reflect values long part of the Nation’s heritage when invocations have been addressed to assemblies comprising many different creeds.  The prayers impart the idea that people of many faiths may be united in a community of tolerance and devotion, even if they disagree as to religious doctrine. The prayers delivered in the town of Greece may have invoked the name of Jesus, but they also invoked universal themes, by calling for a “spirit of cooperation.” Absent a pattern of prayers that over time denigrate, proselytize, or betray an impermissible government purpose, a challenge based solely on the content of a particular prayer will not likely establish a constitutional violation. So long as the town maintains a policy of nondiscrimination, the Constitution does not require it to search beyond its borders for non-Christian prayer givers in an effort to achieve religious balancing.

US Supreme Court deals blow to rails-to-trails efforts

by Gary Taylor

The US Supreme Court has issued its opinion in the rails-to-trails case discussed previously in this blog.  In an 8-1 decision, the Court sided with the landowner that claimed the railroad corridor reverted to the landowners when it was abandoned by the railroad.  This decision has the potential to block plans for the completion of several currently planned rail trails, and would also threaten existing rail trails and public highways across America that utilize federally granted rights-of-way.  According to the Rails-to-Trails Conservancy, there are hundreds of abandoned railroad corridors across the country that have been converted into publicly accessible trails. Some of the better-known rail-trails that occupy federally-granted rights-of-way include the George S. Mickelson Trail in South Dakota, the Foothills Trail and the John Wayne Pioneer trails in Washington, the Weiser River Trail in Idaho and the Rio Grande Trail in Colorado.

Marvin M. Brandt Revocable Trust v. United States
(United States Supreme Court, March 10, 2014)

(Adapted from the syllabus of the Court)

Congress passed the General Railroad Right-of-Way Act of 1875 to provide railroad companies “right[s] of way through the public lands of the United States.” One such right of way, obtained by a railroad in 1908, crosses land that the United States conveyed to the Brandt family in a 1976 land patent. That patent stated, as relevant here, that the land was granted subject to the railroad’s rights in the 1875 Act right of way, but it did not specify what would occur if the railroad later relinquished those rights. Years later, a successor railroad abandoned the right of way with federal approval. The Government then sought a judicial declaration of abandonment and an order quieting title in the United States to the abandoned right of way, including the stretch that crossed the land conveyed in the Brandt patent. Petitioners contested the claim, asserting that the right of way was a mere easement that was extinguished when the railroad abandoned it, so that Brandt now enjoys full title to his land without the burden of the easement. The Government countered that the 1875 Act granted the railroad something more than a mere easement, and that the United States retained a reversionary interest in that land once the railroad abandoned it. The District Court granted summary judgment to the Government and quieted title in the United States to the right of way. The Tenth Circuit affirmed.

The United States Supreme Court held that the right of way was an easement that was terminated by the railroad’s abandonment, leaving Brandt’s land unburdened. According to the Court, the Government loses this case in large part because it won when it argued the opposite in Great Northern R. Co. v. United States. There, the Government contended that the 1875 Act (unlike pre-1871 statutes granting rights of way) granted nothing more than an easement, and that the railroad in that case therefore had no interest in the resources beneath the surface of its right of way. This Court adopted the Government’s position in full. It found the 1875 Act’s text “wholly inconsistent” with the grant of a fee interest, agreed with the Government that cases describing the nature of rights of way granted prior to 1871 were “not controlling” because of a major shift in congressional policy concerning land grants to railroads after that year,  and held that the 1875 Act “clearly grants only an easement.” Under well-established common law property principles, an easement disappears when abandoned by its beneficiary, leaving the owner of the underlying land to resume a full and unencumbered interest in the land.

The Government asked the Court to limit Great Northern’s characterization of 1875 Act rights of way as easements to the question of who owns the oil and minerals beneath a right of way. But nothing in the 1875 Act’s text supports that reading, and the Government’s reliance on the similarity of the language in the 1875 Act and pre-1871 statutes directly contravenes the very premise of Great Northern: that the 1875 Act granted a fundamentally different interest than did its predecessor statutes.

Finally, later enacted statutes, do not define or shed light on the nature of the interest Congress granted to railroads in their rights of way in 1875. They instead purport only to dispose of interests (if any) the United States already possesses.

Writing in a lone dissent, Justice Sotomayor argued that the majority opinion placed on the Great Northern precedent “more weight than that case will bear.” The Court has long considered railway rights apart from the usual common-law regime, she said.  “By changing course today, the Court undermines the legality of thousands of miles of former rights of way that the public now enjoys as means of transportation and recreation. And lawsuits challenging the conversion of former rails to recreational trails alone may well cost American taxpayers hundreds of millions of dollars.”

Supreme Court update

We’ve had a bit of action on the four land use related cases pending before the US Supreme Court, discussed here and here.  Oral arguments are being held today in the case of Marvin M. Brandt Revocable Trust v. United States.  The issue in the case:

Whether the United States retained an implied reversionary interest in rights-of-way created by the General Railroad Right of Way Act of 1875 after the underlying lands were patented into private ownership.

Tomorrow, oral arguments will be held in McCullen v. Coakley, the issues of the case being:

(1) Whether the First Circuit erred in upholding Massachusetts’s selective exclusion law – which makes it a crime for speakers other than clinic “employees or agents . . . acting within the scope of their employment” to “enter or remain on a public way or sidewalk” within thirty-five feet of an entrance, exit, or driveway of “a reproductive health care facility” – under the First and Fourteenth Amendments, on its face and as applied to petitioners; (2) whether, if Hill v. Colorado permits enforcement of this law, Hill should be limited or overruled.

The case of Mount Holly v. Mount Holly Gardens Citizens in Action was settled prior to oral arguments.  A copy of a press briefing about the terms of the settlement is here.  The issue of the case was whether disparate impact claims are cognizable under the Fair Housing Act.  An interesting audio article about the case is here (approximately 6 minutes).

Rails-to-Trails on the US Supreme Court docket

This article discussing cases of interest to local governments recently accepted for argument by the US Supreme Court was originally posted on the International City/County Management Association website here.  Of particular concern to readers of this blog is Marvin M. Brandt Revocable Trust v. United States.

“In Marvin M. Brandt Revocable Trust v. United States the Court will decide who owns an abandoned railroad right-of-way:  the United States or a private land owner living next to the right-of-way.  In 1875 Congress passed a law granting rights-of-way to railroads through public land. Over the course of the next century, as trucking became a more popular method of transport, numerous railroads abandoned these rights-of-way.  The United States argues that a 1922 federal statute allows the United States to retain the railroad right-of-way if it is abandoned. If that is the case and the abandoned right-of-way is located in a city, the city automatically receives it from the federal government for free. If the abandoned right-of-way is located elsewhere, a state or local government receives it for free if it establishes a “public highway” on the right-of-way within one year.  State and local governments typically convert abandoned railroad rights-of-way into “Rails-to-Trails.”

Local governments often own and maintain abandoned railroad rights-of-way. In fact, the Supreme Court usually accepts cases where at least two federal circuit courts of appeals have ruled differently on the same issue. In Marvin M. Brandt Revocable Trust v. United States the Tenth Circuit ruled in favor of the United States. In a similar case, Samuel C. Johnson 1988 Trust v. Bayfield County, Wisconsin, the Seventh Circuit ruled against Bayfield County, which intended to build snowmobile trials on the abandoned railroad right-of-way.”

SCOTUSblog recaps this week’s Supreme Court arguments

SCOTUSblog provided good previews of this week’s oral arguments, discussed in this blog on Tuesday, and a post-argument recap of the St. Johns Water Management takings case.

Koontz v. St. Johns Water Management preview
Koontz v. St. Johns Water Management recap of arguments

City of Arlington v. FCC preview

This week at the U.S. Supreme Court

This is an important week for land use at the U.S. Supreme Court.  On Wednesday the Court will hear arguments in the case of City of Arlington, TX v. Federal Communications Commission, a Federal Telecommunications Act case that was discussed previously in this blog. For the Oyez Project summary of the case go here.

Another case with potentially much broader implications is being argued today.  That case is Koontz v. St. Johns River Water Management Authority.  The Oyez Project summary is here.  An article from the Orlando Sentinel can be found here.  As a University of Florida law professor aptly stated in the Orlando Sentinel article, the case “doesn’t really reduce itself very well for a newspaper article.”  The essential facts:  The landowner sought permits to prepare his land for development by filling in wetlands. He was told by the St. Johns River Water Management District that he could build on about 3 acres of the parcel if he left the rest of the property alone and paid around $10,000 to restore some wetlands in a state-owned wildlife preserve nearby.  He rejected the second part of that offer and sued St. Johns when it denied his requests for a development permit, arguing that the it had stripped his land of much of its value as a result of the denial. He won in state court and won again when the district took the case to an appeals court. Then, last year, the Florida Supreme Court sided with the water district. (For the lawyers, and non-lawyer land use law fanatics among you, the Florida Supreme Court case can be accessed here).

The U.S. Supreme Court certified the following legal questions:

1. Whether the government can be held liable for a taking when it refuses to issue a land-use permit on the sole basis that the permit applicant did not accede to a permit condition that, if applied, would violate the essential nexus and rough proportionality tests set out in Nollan u. California Coastal Commission, 483 U.S. 825 (1987), and Dolan v. City of Tigard, 512 U.S. 374 (1994); and
2. Whether the nexus and proportionality tests set out in Nollan and Dolan apply to a land-use exaction that takes the form of a government demand that a permit applicant dedicate money, services, labor, or any other type of personal property to a public use.

Potentially at stake is the practice of requesting developers to pay for off-site improvements as a condition of development approval.  Also raised is the question of whether decisions made during the pre-permit negotiation phase can give rise to takings claims.

US Supreme Court says no bright-line exception to the Takings Clause for temporary flooding caused by Corps action

by Gary Taylor

Arkansas Game and Fish Commission v. United States
(U.S. Supreme Court, December 4, 2012)

The Arkansas Game and Fish Commission owns a wildlife management area along the Black River that that is forested with multiple hardwood oak species and serves as a venue for recreation and hunting. In 1948, the U. S. Army Corps of Engineers constructed the Clearwater Dam upstream from the management area and adopted the Water Control Manual, which sets seasonally varying rates for the release of water from the dam. Periodically from 1993 until 2000, the Corps, at the request of farmers, authorized deviations from the Manual that extended flooding into the management area’s peak timber growing season. The Commission objected to the deviations on the ground that they adversely impacted the management area, and opposed the Corps’ proposal to make the temporary deviations part of the manual’s permanent water-release plan. After evaluating the effect of the deviations, the Corps abandoned the proposed Manual revision and ceased its temporary deviations.

The Commission sued the United States, alleging that the temporary deviations constituted a taking of property that entitled the Commission to compensation. The Commission maintained that the deviations caused sustained flooding during tree-growing season, and that the cumulative impact of the flooding caused the destruction of timber in the Area and a substantial change in the character of the terrain, necessitating costly reclamation measures. The Court of Federal Claims’ entered a $5.8 million judgment in favor of the Commission; however, this judgment was reversed by the Court of Appeals. The Court of Appeals acknowledged that temporary government action may give rise to a takings claim if permanent action of the same character would constitute a taking. It held, however, that government-induced flooding can give rise to a taking claim only if the flooding is “permanent or inevitably recurring.”

The U.S. Supreme Court disagreed.  Citing back to Penn Central the Court noted that takings claims most frequently turn on situation-specific factual inquiries, as opposed to bright-line legal tests. The Court cited its own cases that affirmed that government-induced flooding, and seasonally recurring flooding, can constitute takings. The Court has also ruled that takings temporary in duration can be compensable. None of the Court’s previous decisions authorizes a blanket temporary-flooding exception to the Court’s Takings Clause jurisprudence.  The Court interpreted The Corp’s primary argument as being that reversing the Court of Appeal’s decision risks disrupting public works dedicated to flood control. While the public interests in this case are important, the Court did not consider them to be categorically different from the interests at stake in the many other Takings Clause cases in which the Court has rejected similar arguments.  The Court declined to address the Corps alternative argument that damage to property, however foreseeable, is collateral or incidental; it is not aimed at any particular landowner and therefore is not compensable under the Takings Clause because it was first tendered at oral argument and not aired in the courts below.

Because the Federal Circuit rested its decision entirely on the temporary duration of the flooding it did not address other factors relevant to the takings inquiry, such as the degree to which the invasion is intended or is the foreseeable result of authorized government action. the character of the land at issue, the owner’s “reasonable investment-backed expectations” regarding the land’s use, and the severity of the interference. Thus, remand to address these issues was warranted.

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