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Thread: Takings question

  1. #1
    Member geokatgrl's avatar
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    Takings question

    Curiosity question for the board here-

    If a developer is time and again denied permits to develop, though the developer meets all requirements for the permit, and is eventually granted the permit (as originally applied for--not altered from original application), and the time period is abnormally long for approval, could that be considered a temporary taking and be due some compensation under the Fifth amendment?

    When you reply would you mind to state if you happen to be a planner, developer, lawyer, etc? I feel it may be relevant to the way the question is answered.

    Thanks!

  2. #2
    Cyburbian SGB's avatar
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    That's a great question.......
















    for a municipal attorney to answer!

    (Oh yeah - I'm a regional planner.)
    All these years the people said he’s actin’ like a kid.
    He did not know he could not fly, so he did.
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  3. #3
    Cyburbian Planderella's avatar
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    I'm going out on limb by answering this question, but I think he would only be due just compensation if the land was used for public purposes, not because it took a long time to get his permits. Think about the precedent that would be set if that were the case. But then again, I'm not a lawyer so I could be totally wrong.
    "A witty woman is a treasure, a witty beauty is a power!"

  4. #4

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    I am a Planner wannabe from Massachusetts who is hoping to someday find a rewarding planning job...I am currently an intern at CTPS, the planning staff for the Boston MPO.

    To answer your question, I believe that in interpreting the law that yes, it could be considered a temporary taking yet if the land wasn't actually or physically taking for a public use, in which case, THE QUESTION is did the permit process act as public use in which a private land was to be developed yet was delayed, therefore is it entitled to just compensation because of the public permitting process. I believe that it is, because the permitting process is actually considered a public use? yes or no?

  5. #5
    Cyburbian el Guapo's avatar
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    You could ask the man that wrote the book, himself

    The Takings Issue

    Dwight Merriam
    Robinson & Cole LLP
    280 Trumbull Street, 27th Floor
    Hartford, CT 06103-3597
    (860) 275-8228

    Buy the book by going through Dan's link to Amazon.

  6. #6
    Cyburbian ecofem's avatar
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    Based upon the few details provided...

    I think Planderella is on the money.

    I'm an attorney and a planner.

    (However, my response is not to be construed as legal advice in any manner

  7. #7
    Cyburbian Cardinal's avatar
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    I'm inclined to agree with Planderella and Ecofem, but would like to know more of the circumstances.

    Was the developer forced to re-submit the petition several times? Was the use permitted by right and did it meet all of the applicable codes? Were there unusual circumstances that had to be considered in reviewing the proposal, that might have justified a delay? Are there state or local requirements to act on a permit within a given time frame?

    Any of these might have some bearing, or perhaps present alternative issues. However, given Tahoe and other cases, I would think that in most cases, a lengthy review process would not be considered a temporary taking.

    I am a planner working in community economic development.

  8. #8
    Cyburbian Emeritus Chet's avatar
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    Although it was about moratoria, doesn't the Tahoe case speak directly to this? A quote from the decision:

    "A rule that required compensation for every delay in the use of property would render routine government processes prohibitively expensive or encourage hasty decision making," wrote Justice John Paul Stevens in his majority opinion, submitted on behalf of justices Anthony Kennedy, David Souter, Sandra Day O'Connor, Ruth Bader Ginsberg, and Stephen Breyer.

    I say not taking.

    BTW - Im a Planning Director in Wisconsin.

  9. #9

    Re: Takings question

    If a developer is time and again denied permits to develop, though the developer meets all requirements for the permit, and is eventually granted the permit (as originally applied for--not altered from original application), and the time period is abnormally long for approval, could that be considered a temporary taking and be due some compensation under the Fifth amendment?

    How is the developer denied permits if he "meets all requirements"?

    How long is "abnormally long"?

    Why was it later approved "as originally applied for"?

    How much are you paying your Board / City Attorney? What do they do for the money?

    Municipal Planner (who can't quite figure out the quote/blue box thing).
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    "Once he timed your fastball, your infielders were in jeopardy."
    Warren Spahn

  10. #10
    On the surface, it doesn't seem like a temp. taking. However, if there is no compelling governmental interest in holding up the application, I would think that a good attorney could make a case for a temporary taking.

    I would ask the same questions that Cardinal asked...why is there a delay? Are they missing required materials? Are there studies (environmental impact, traffic, etc) that are the cause of the delay?

    - Planning & Zoning Administrator in Wisconsin
    "I'm a white male, age 18 to 49. Everyone listens to me, no matter how dumb my suggestions are."

    - Homer Simpson

  11. #11
    Cyburbian
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    What was the rationale for delaying the approval? That could also be a factor. If there was just cause for delay, mightn't it not be a taking?
    City planner, by the way.
    I don't dream. I plan.

  12. #12
    Cyburbian
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    Ok, Repo Man beat me to it, and said it better anyway.
    I don't dream. I plan.

  13. #13

    Taking Question ???

    Hi ! A "taking" really depends on how angry the applicant gets and if he is not allowed to use his property at all. The SC had provided some definitions of takings in several cases (Lucas being one of the most recent and most interesting, if you look at the details.).

    Even though a developer may be held up, if he did not seek an appeal from his first denials and continued to submit changes, he has in all probability waived his "takings" claim, especially if he did finally get an approval. A "taking" is when a property owner loses his right to use his land - see the First English case from about 1987.

    It is the developer's right to sue, but I doubt he will get any legal support since he did get approvals.

    Don

  14. #14
    The recent Lake Tahoe case was essentially the same basis. Putting in place a long-term moratorium in fact constituted a taking. So, I would argue that the developer would have a basis to sue. The question is what is the compensation for a temporary taking?

  15. #15
    Cyburbian Plus PlannerGirl's avatar
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    Id say not a taking however that hinges on a few things that may be assumptions on my part:
    1) was the permitting process evenly applied to everyone or did they give this application undue attention?

    follow up to that is many many areas the permit process is very long (many times a year or the like) and thats normal-no takings

    2) there was no "moritorium" on anything from what you are saying so Tahoe does not apply IMHO

    3) He did end up getting full economic use out of his land.

    If the local gov or org that handles the permits can be showed to have some how screwed with the case you may have a seperate issue to deal with.

    Just my .02

    Planner with focus on land use law
    "They who can give up essential liberty to obtain a little temporary safety, deserve neither liberty nor safety." Ben Franklin

    Remember this motto to live by: "Life should NOT be a journey to the grave with the intention of arriving safely in an attractive well preserved body, but rather to skid in sideways, chocolate in one hand, martini in the other, body thoroughly used up, totally worn out and screaming 'WOO- HOO what a ride!'"

  16. #16
    Cyburbian Cardinal's avatar
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    Originally posted by cowley.11
    The recent Lake Tahoe case was essentially the same basis. Putting in place a long-term moratorium in fact constituted a taking.
    I think you have that backwards. Tahoe determined that the 32-month moratorium was not a taking and that the property owners did not have a right to compensation.

  17. #17
    Member geokatgrl's avatar
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    Great thoughts!!

    A lot of you had some great thoughts! Just to let you know, I am a graduate student doing a thesis on this subject, with aspirations for law school next fall.

    The instance that brought this up ties into several court cases really. Tahoe is the key, while Del Monte Dunes also plays a significant role. The specific instance that peaked my interest in this issue as a thesis topic was a situation where a developer was denied permits to build a road to his subdivision, though the subdivision was already platted, approved, and contractors were hired. The county denied permits for rather arbitrary reasons for over 18 months (i.e. road was 2 feet too far south one month and then one foot too far north the next) , therfore denying the developer access to begin building. In the meantime the developer was paying a large sum of money on loans taken out for the purpose of begining his project, and not able to collect on sold lots until building could begin.

    This case was never really brought to court, as I think the county settled with the developer. Any new thougts now?

    geokatgrl

  18. #18
    Member Wulf9's avatar
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    Temporary takings were not a legal concept until First English vs LA County. So far, i think there is only one case which has resulted in damages (Del Monte Dunes) and one case has set a precedent for allowing long moratoria (Tahoe).

    Del Monte Dunes has more similarities to a takings than a temporary takings. The city kept putting new conditions then the project was denied when the applicant met those conditions. Then the property was purchased for parks. The applicant could argue that they would never have been approved, which is the traditional takings argument. The temporary takings determination is probably an anomoly more than a precedent.

    The Tahoe case allows a very long time frame before regulation becomes a temporary taking. It can be argued that Tahoe property owners can visit and enjoy their property in a spectacular setting, so the property has not been totally devalued and no taking (temporary or traditional) has occurred. I don't think that was an argument in the Tahoe case but a similar finding was made in a takings case in the Ninth Circuit i(San Francisco). I don't think that case made it to the Supremes.

    Neither of the three temporary takings cases have resulted in a solid precedent. I suspect that the Court will ultimately go back to the concept of traditional takings, and that the idea of temporary takings will go away (the Tahoe case is pretty much a "make it go away" decision). Otherwise the Courts will get enmeshed in a bunch of case-by-case zoning decisions, and I don't think they want to do that.

    Planner.

  19. #19
    Cyburbian Cardinal's avatar
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    Let me get this straight. The subdivision plat was approved without access to a public road shown on the plat? Or was the plat approved with the access, and the municipality did not approve the engineering plans? If the first is what happened, that is really poor planning. If the second is the case, then there might be many valid reasons for denying approval.

  20. #20
    Member geokatgrl's avatar
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    Cardinal's questions

    It is my understanding (remember that I have never spoken to any of the parties involved or seen any "proof"), that the plat was approved with the proposed access road on the plans. The subdivision is near a floodplain (not exactly prudent, but at least not in the floodplain), and the road needed to run very near the outer edge of the plain. The county originally approved the plats with the road, but later as permits were to be issued they apparently reconsidered the location of the road. It was approximately 10 inches (I kid you not) into the floodplain according to their estimations and the road would need to be moved. The engineer adjusted the location and grades on the road SEVERAL times to accomadate the changing recommendations of the board. After 18+ months of readjusting the board finally said they would return to, and accept, the original location.

    I agree Cardinal, not very good planning at all. My opinion is that the county settled with the developer because there was a very plausible case for a temporary taking based on the arbitrary, and perhaps capricious, behavior of the board in approving the permit.

  21. #21
    Member Wulf9's avatar
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    Sounds like bad planning. I don't think the courts would have called this a temporary taking, but I can see why the County settled.

    I looked back at my reference book a little more. In First English (the case that enabled the issue of temporary takings), the Supreme Court addressed the issue of monetary damages and determined that monetary damages were appropriate for the period of time the property could not be used IF A TAKING WAS FOUND. So you have to establish a takings before you can get temporary takings damages. I believe that would be the reason for decision on Del Monte Dunes. The city would not approve the application and the property was later bought for a park. The applicant was awarded damages for that interim time period.

    The Courts need a principle upon which to act. If they just find that "delay" is a temporary taking, every court would be clogged with land use appeals.

    Look at the county's motive. Did they want to stop the development and all development on the property and hoped the road delay would do that? If so, the county would probably have lost the temporary takings case. Would they allow the development but were simply inept? If so, they probably would not have lost a temporary takings case.

    I have seen many city and county attorneys wrongly advise the city council or board of supervisors that project denial would be a taking. There is a high threshold for takings, and cities lose only when they truly take a property (will not and never will approve any use).

  22. #22
    Cyburbian Michele Zone's avatar
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    I have had a couple of law classes, but you are not likely to ever hear me give an kind of 'legal' opinion. I hated law. But I can kind of understand how this happened and have a few thoughts on the matter:

    Flood plains aren't really well defined areas. Floods can be larger or smaller. So "10 inches into the flood plain" -- I find that to be kind of meaningless. Was this a so-called '100 year' flood plain? Or a place that flooded annually? Or what?

    I can see that the planners that approved the original plan maybe did not see this as significant, maybe didn't even notice this detail in the scheme of things. But when the road itself needed to be built, all of a sudden it became glaring. If "10 inches" of the entire side of a road is seriously flooded on a regular basis, I can see this becoming both expensive and dangerous and effecting the integrity of the entire road. I am no engineer, but once you get one leaky crack in a dam, "thar she blows". A road would be different from a dam but water eats away at stuff insidiously.

    College student majoring in Environmental Studies as a basis for a Master's in Planning, because I think we make too many mistakes when we build our 'built environment' without a good understanding of the natural environment we are building it on.

    (PS, many major cities are built in 'flood plains' -- the ground is fertile there, you have access to water for drinking and access to water for transportation, which was more important historically than it is now.)

  23. #23
    Cyburbian Cardinal's avatar
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    I have seen some cases where the plat is approved showing the mapped floodplain, but is subject to a detailed delineation being conducted. (Mapped wetlands are usually generalized depictions.) I have seen at least one case where the surveyor failed to pick up the correct wetland boundary. I have seen cases where the Department of Natural Resources has reqested a delineation where no mapped wetland is shown. Any of these might show a problem that was not indicated at the time of plat approval and cause a delay in permitting.

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