The facts of the county’s behavior (ignoring explicit requirements in the county ordinance to provide a financial benefit to growers while financially harming neighbors who are minding their own business) would be pretty ugly for the county to defend in a trial.


A Case Changing Takings Law that the County Should Consider in Cannabis Planning


Perhaps the most consequential land use case in thirty years, the Supreme Court decided Knick v. Township of Scott Friday (attached). A person who claims his property has been taken, including a regulatory taking, can now go directly to federal court. He/she no longer has to first file a claim with the county and then file a suit in state court. 

It may not be hard to prove diminished property values in many neighborhoods adjacent to cannabis grows (75% of voters in our SOSN poll don’t want to live within a quarter mile of a commercial grow; 62% not within a half mile; 52% not within a mile). 

The facts of the county’s behavior (ignoring explicit requirements in the county ordinance to provide a financial benefit to growers while financially harming neighbors who are minding their own business) would be pretty ugly for the county to defend in a trial. 

Here’s the editorial from the WSJ:

The Supreme Court’s Fifth Amendment Reclamation

The Justices remove an obstacle to compensation for government takings of private property.

June 23, 2019

The Supreme Court’s first term with a new majority is proving to be far more consequential than many Court-watchers anticipated, and in a good way. Long-dormant constitutional principles—such as the nondelegation doctrine—are being debated anew, and core rights are being refortified according to their original meaning.

On Friday in Knick v. Township of Scott, this constitutional revival project reached the Fifth Amendment ban on government takings of private property. A majority composed of the High Court’s conservatives voted 5-4 to overrule a 1985 precedent (Williamson County) that had created a significant obstacle to claims seeking just compensation for government takings.

Specifically, Williamson County required claimants to seek compensation in state courts before they could seek redress in federal court. But as Chief Justice John Roberts pointed out for the majority, the Court has also ruled that a denial in state court precludes any subsequent federal suit.

“The takings plaintiff thus finds himself in a Catch-22: He cannot go to federal court without going to state court first; but if he goes to state court and loses, his claim will be barred in federal court,” the Chief Justice wrote. “The federal claim dies aborning.”

Thus the state-litigation requirement “imposes an unjustifiable burden on takings plaintiffs,” conflicts with the Court’s other Fifth Amendment jurisprudence, “and must be overruled,” the Chief added.

All of this drew the ire of the Court’s four liberals, expressed in a high-spirited if somewhat overwrought dissent by Justice Elena Kagan. She concedes the problem of precluding a federal suit if a claimant loses in state court but says this can be solved with an act of Congress. But if a government taking of property violates the Constitution, then the right to compensation shouldn’t depend on a legislative action that enables compensation. The right to compensation is triggered at the time of the taking.

Justice Kagan also frets that Knick will overwhelm the federal courts with takings suits, but that shouldn’t happen if states have mechanisms for providing just compensation. She also lambastes the Court for overturning a long-time precedent without adequate justification. “But the entire idea of stare decisis is that judges do not get to reverse a decision just because they never liked it in the first instance,” she wrote.

Now she knows how the late Antonin Scalia felt watching narrow liberal Court majorities overturn long-time precedents. She also overstates the Court’s willfulness here because it is correcting a departure from the proper understanding of the Fifth Amendment, not inventing some new constitutional doctrine.

This point should be decisive because for decades local and state governments backed by the courts have treated the Fifth Amendment as the poor stepchild in the Bill of Rights. Most notorious was the 5-4 Kelo decision in 2005 that allowed the City of New London, Conn., to take private property not merely for public use but for another private owner.

As Chief Justice Roberts wrote, “Fidelity to the Takings Clause” requires “overruling Williamson County and restoring takings claims to the full-fledged constitutional status the Framers envisioned when they included the Clause among the other protections in the Bill of Rights.” Let’s hope a reconsideration of Kelo is next, as the conservatives work to restore the enumerated rights and separation of powers that are the bedrock of American liberty.

Here’s a summary from Scotus Blog: