General Publications August 28, 2015

“Reading Rehnquist and Roberts Courts on Property Rights,” Law360, August 28, 2015.

Extracted from Law360

The U.S. Supreme Court that Chief Justice John Roberts has presided over since 2005 has established quite a reputation for being pro-property rights. In almost every major case, the Roberts court has come down on the side of landowners and against government regulation. But just how pro-property rights is the Roberts court, particularly when compared to the Supreme Court under William Rehnquist?

As the Roberts court enters its 11th term this month (over half the terms of the Rehnquist court), a comparative retrospective is in order. This article looks at some of the big decisions spanning the last 20-plus years, both good and bad. The verdict? On balance, property rights have fared better under the Roberts court — so far.

The Rehnquist Court (1986-2005)

Perhaps the most significant property rights case that the Rehnquist court decided was Nollan v. California Coastal Commission. In Nollan, the court considered whether a land-use agency could force a property owner to submit to an uncompensated taking of his property (in this case, a public-access easement across his backyard) as a condition of remodeling his home. The court said no. It held that government must show an “essential nexus” between a challenged permit exaction and the adverse impacts of the proposed project; without the requisite nexus, the exaction effects an unconstitutional taking without compensation — or, in the Supreme Court’s words, “an out-and-out plan of extortion.”

In a follow-up decision, in Dolan v. City of Tigard (1994), the court held that it was not enough for a government to establish an “essential nexus” between a challenged permit exaction and the proposed project’s adverse impacts. The government also had to show that the two were “roughly proportional.” Together, Nollan and Dolan did much to curb the practice of leveraging applicants’ need for permits in order to extort things of value from them.

Other groundbreaking, pro-property rights decisions from the Rehnquist court include First English Evangelical Lutheran Church v. County of Los Angeles (1987), Lucas v. South Carolina Coastal Council (1992) and Palazzolo v. Rhode Island (2001).

Like Nollan, they all made it easier for property owners to bring takings claims. In First English, the court held that even when government temporarily takes private property for public use, it must pay just compensation. In Lucas, the court made clear that a regulation that deprives an owner of all economically viable use of his land effects an unlawful taking. And in Palazzolo, the court held that a property owner does not waive his right to challenge a regulation as an uncompensated taking just because he purchased the property after the regulation’s enactment.

All of these cases were major precedents favoring property rights. But the Rehnquist court produced some unfavorable property rights decisions, as well.

The most infamous, of course, came during the last Rehnquist court’s last term: Kelo v. City of New London (2005). In Kelo, New London, Connecticut, condemned private homes to sell to private developers, with the hope of promoting the city’s economic redevelopment. One of those homeowners challenged the condemnation as an unconstitutional taking of private property because the seizure was not for a “public use.”

With Chief Justice Rehnquist in dissent, the court held in a 5-4 decision that the city’s taking was constitutional: Government may seize private property from A and give it to B, so long as there is a public purpose — in this case, a community’s economic redevelopment and the associated public benefits. The decision was a huge setback for property rights at the federal constitutional level, but did prompt a number of states to provide property owners (especially homeowners and small-business owners) heightened protections in state constitutions against the eminent domain abuse at issue in Kelo.

Another anti-property rights decision that came down during the Rehnquist court’s last term was San Remo Hotel LP v. City and County of San Francisco (2005). The court made it more difficult for a property owner to litigate his federal taking claim in federal court. The court held that a federal taking claimant could not obtain federal review after litigating his claim in state court (as required by another Supreme Court decision predating the Rehnquist court, Williamson County Regional Planning Commission v. Hamilton Bank (1985)).

Just a few terms earlier, the Rehnquist court decided Tahoe-Sierra Preservation Council Inc. v. Tahoe Regional Planning Agency (2002). There, the court held that a government agency’s moratorium of all building on vacant land does not effect a taking requiring just compensation for the period during which it is in effect. Tahoe-Sierra, which found Chief Justice Roberts, then in private practice, advocating for the government, seemed to limit the force of its earlier decision in First English, which recognized the compensability of temporary takings of private property.

The Roberts Court (2005-Present)

Though only a little more than halfway into the 19 years covered by the Rehnquist court, the Roberts court already has proven to be more consistently pro-property rights than the Rehnquist court.

The Roberts court did issue one significant blow to landowners in Stop the Beach Renourishment v. Florida Department of Environmental Protection (2010). The case had to do with the question of whether the Takings Clause applies to the courts, just like it does to legislative or executive bodies. A majority held it does not: Even if a court declares that what was once an established right of private property no longer exists, no violation of the Takings Clause occurs.

Besides Stop the Beach, the Roberts court’s track record has been quite good on property rights. In particular, the Roberts court has decided three significant property rights cases just in the last three years.

In Arkansas Game & Fish Commission v. United States (2012), the court considered whether government-induced, temporary flooding of land could effect a compensable taking. Building upon the Rehnquist’s court decision in First English, the court unanimously said yes — even only temporary flooding caused by government could entitle the landowner to just compensation.

In 2013, it decided Koontz v. St. Johns River Water Management District. The case was about whether Nollan's and Dolan’s heightened scrutiny extends to money exactions imposed in the land-use permit process (and not just exactions of interests in real property). In a 5-4 decision, the court held that it does, because — unremarkably — one’s money is one’s private property entitled to the same Takings Clause protections as any other property interest.

Finally, the Roberts court recently decided Horne v. Department of Agriculture, familiarly known as the raisin case. At issue was the Agricultural Adjustment Act, which required raisin growers to set aside and relinquish to the federal government, with no compensation, a certain percentage of their crops. The court held that the Takings Clause applies just as equally to personal property, such as crops, as it does to real property. The court also held that, where government physically appropriates property, such as in this case, whether the victim stands to gain in some way from the seizure (through, say, the proceeds from the property’s sale) is irrelevant to the question of whether there has been a taking.

Some Final Thoughts

This brief overview of cases indicates that the Roberts court has tended to be much friendlier to property rights than the Rehnquist court. At best, the Rehnquist court issued some confusing property rights decisions that have plagued landowners’ attempts to successfully litigate their takings claims; at worst, the Rehnquist court completely undermined their rights.

But one cannot be too harsh on the Rehnquist court.

In a sense, the Rehnquist court had a steeper hill to climb. When property rights cases came before it, the Rehnquist court had little in the way of precedents to help guide it. Cases like Nollan and Dolan were truly cases of first impression. And the Roberts court, which has the benefit of those trailblazing decisions, has been able to build on or extend the protections first recognized in them (e.g., Arkansas Fish & Game and Koontz).

Of course, the Roberts court’s legacy on property rights (or any other area of law) is a work in progress. Given Chief Justice Roberts' age, his court is likely to be around for many more years. And at present, there is a solid 5-4 majority for property rights.

But, given the likely retirements from the Supreme Court in the coming decade, the court’s property rights record will turn in large part on those retirees’ replacements. Given the variables, it is anyone’s guess whether Chief Justice Roberts will be able to build on his current track record or lose ground and face the prospect of a more mixed legacy on property rights, similar to his predecessor’s.

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