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Washington State Thinks It Can Take Your Property: Ignores Precedent, Inspires Appeal to U.S. Supreme Court

June 10, 2016

 

ATLANTA/WASHINGTON, DC (June 10, 2016):  The Constitution is the supreme law of the land - but did you know that whether the government can take your property now depends on what state you live in?

 

Today, Southeastern Legal Foundation (SLF), joined by the National Federation of Independent Business Small Business Legal Center, filed an amicus brief with the U.S. Supreme Court challenging the arbitrary use of government power to seize private land without just compensation. 

 

In Common Sense Alliance v. County of San Jose, a group of shoreline property owners challenged a city ordinance requiring them to give up part of their land to serve as water quality buffers.  The Washington court refused to apply the Supreme Court’s cases, instead opting for the improper test.

The Fifth Amendment to the United States Constitution requires just compensation when the government takes private property.  This is because a growing number of state and federal courts are allowing governments to demand property for public use without just compensation simply because they did so through legislation.

 

The U.S. Supreme Court has held many times that the government may only require a permit applicant to dedicate land to a public use when that dedication is necessary to mitigate a harm that the proposed project would cause.   In other words there must be an “essential nexus” between the demand and some harm the project would cause and the demand must be “roughly proportional” to the harm. 

 

For more than 20 years, a growing number of lower courts have refused to apply the Supreme Court’s cases when the demand is imposed by legislation rather than through administrative action.  In other words, if a city conditions a single permit on requiring that property owner to give the city an easement for a bike path, the lower court applies the essential nexus and rough proportionality test. 

 

But, if the city imposes the requirement through a city-wide ordinance, that same lower court only requires the city to show that the ordinance advances some legitimate government objective.  This provides local and state governments with a roadmap for evading the Constitution - an unconstitutional trend that SLF has been fighting in court for 40 years in some of the most important precedent-setting cases.

 

Click here for SLF/NFIB Supreme Court amicus brief, June 10, 2016

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