On October 3, 2016, the Supreme Court of the United States (SCOTUS) declined to take up a two cases involving property rights and takings claims. In both instances, as is usual court practice, the court did not give reasons for declining to accept the cases.
In one case, arising in Washington State, Common Sense Alliance v. San Juan County, a group of businesses and property owners had sued to overturn a 2012 ordinance in San Juan County, Washington, requiring shoreline property owners, in order to receive development permits, to set aside between 25 and 250 feet of land as a buffer for water quality protection.
The plaintiffs said the ordinance amounted to a taking of private property without just compensation, forcing shoreline property owners to bear the costs of solving the wider county’s stormwater runoff problem.
“The water quality buffers are intended to force shoreline landowners to mitigate for pollution and runoff caused by neighboring properties,” the landowners said in their SCOTUS petition, as reported in Environment & Energy News.
Washington state’s Court of Appeals upheld the ordinance in August 2015, concluding landowners may not raise a constitutional challenge to a permit condition set by the legislative branch of government.
Environment & Energy News notes, the Cato Institute, Reason Foundation and National Association of Home Builders had all urged the Supreme Court to hear the case, arguing the rules were part of a broader trend of governments misusing permits to circumvent the Constitution’s Fifth Amendment takings clause.
SCOTUS Rejects Road Seizure
SCOTUS also declined to hear a takings dispute concerning unimproved roads crossing private lands in Utah. At issue in Okelberry v. Wasatch County was a family’s claim private roads, established and maintained by their family, crossing their lands were unconstitutionally taken by Utah authorities without compensation.
Utah’s Supreme Court had determined, for a period of approximately 30 to 40 years, the Okelberry family had allowed at least some members of the general public to use the roads as a right of way onto and across their land. As a result the court ruled Wasatch County’s declaration the roads were public, forbidding the Okelberrys to block their use, did not amount to a taking but rather fell under a Utah law establishing private roads in continuous public use for more than 10 years without interruption by the private owners could be declared public, requiring no compensation, if public authorities find it convenient or necessary.
H. Sterling Burnett, Ph.D., ([email protected]) is the managing editor of Environment & Climate News.
H. Sterling Burnett, Ph.D., is the Director of the Arthur B. Robinson Center on Climate and Environmental Policy and the managing editor of Environment & Climate News.
