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How America
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By Attorney Michael Shaw

January 21, 2008

In a case with daunting ramifications, the ninth circuit court of appeals ruled that elected officials, “planning” bureaucracies and their agents no longer enjoy absolute immunity when processing land use applications.

In November the Ninth Circuit Court of Appeals unanimously applied a 2005 US Supreme Court decision that operates to change how inverse condemnations are evaluated. Inverse condemnations occur when government imposes restrictions or regulations that prohibit the reasonable exercise of private property rights.

The federal appeals court held that government agencies and their employees can no longer use as a defense to a property owner’s takings claim that they were simply ‘advancing a legitimate state interest.’ With this decision the federal courts will require compensation if the right to the reasonable use of private property has been abridged.

The case is Crown Point v. City of Sun Valley and various individuals involved with that City. The City defended against the takings claim with the Ninth Circuit’s earlier ruling in Armendariz. Armendariz held that government and its individual officers can defend itself against claims of inverse condemnation by uttering the magical incantation: “We were working to substantially advance a legitimate state interest.” This gave carte blanche to the implementation of the policies of Sustainable Development and its Smart Growth component.

Ironically, it was in the same Supreme Court rulings that established the right to sue for regulatory or inverse takings that also established the ‘legitimate state interest’ defense to such claims.

The holding in Crown Point was also based on US Supreme Court precedence. This is where the story becomes especially intriguing. In 2005 the Court unanimously decided Lingle v. Chevron. Mrs. Lingle is the Republican Governor of Hawaii. In Lingle, the Court held that there was no standard under takings analysis that allows government officials to claim that their efforts were in furtherance of the ‘public interest’. Accordingly, inverse condemnation cases are to be decided without consideration of this defense.

Shortly following Lingle, the Supreme Court further changed the course of American political economics in Kelo v. New London. It did this by furthering the change in the meaning of the Constitutional phrase “public use” in reference to the government’s eminent domain powers. Historically, public use meant that property taken by eminent domain was to be used by the public; e.g. roads, schools, post offices, police stations and the like. The concept in the Kelo decision was to change the meaning of the phrase “public use” and interpret that phrase to mean “public purpose.”

Public purpose has been given a broad interpretation by the Court. In effect, the court sanctioned public/private partnership economics with this ruling.

Around the country, there are emerging and growing calls for:

  • privatizing our roads and jails,
  • the creation of a trans continental toll-based highway system owned by foreign corporations,
  • directing public money for the construction of government controlled, privately built “affordable housing” projects in neighborhoods everywhere,
  • the privatization of military forces,
  • the collectivization of water resources, and creation of greenbelts,
  • the subsidization of favored industry and/or favored participants and
  • Other Sustainable Development objectives.

When I was born this approach was called fascist economics or just plain fascism. Today it is euphemistically called “public private partnership.”

In Kelo the Court sanctioned the exercise of a city’s eminent domain power when that power was used to condemn blocks of single family homes to order to allow Pfizer Corporation, the multi national pharmaceutical corporation, to build a parking lot.

However, surrounding the black cloud of the rise of public/private partnership, the citizens can find a silver lining and a defense to this economic trend coming out of Lingle and Crown Point: The court in Crown Point effectively held: As the political economy makes way for the increase in public/private partnership, it must pay reasonable compensation to the affected private property owner. No more hiding behind the social justice magical incantation that ‘Judge, I was just pursuing the public good’! The courts will now look to the burden placed on the property owner. “Benefits to the public” are no longer a consideration in taking cases.

Crown Point is a simple illustration of how the principles of equal justice contrast with the doctrine of “social justice”. Social justice can be defined as law formulated to obtain government’s social objectives at the expense of individual liberty. Many law schools, including my alma mater, now teach social justice principles in the training of new lawyers. The American concept of equal justice supports a respect for the independence and the unalienable rights of the individual. Social justice and equal justice are diametrically opposed standards of law. Private property is ultimately abolished under social justice doctrine.

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What the court did in Kelo poses a terrible threat to Liberty. At least in Crown Point the court gave us - the mass of individuals, small concerns, and freedom defenders - a powerful tool designed to stop the systematic destruction of free enterprise, the abolition of private property, and the end of liberty:

‘If you take from me the use of my property, you will have to pay for it’ can now become the motto of all extorted landowners toyed with by planning and land use agencies.

© 2008 Michael Shaw - All Rights Reserved

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Michael Shaw is a licensed attorney, and Certified Public Accountant. He has made a career in real estate having developed a multi state chain of self storage projects. He is President of Freedom and speaks on how Sustainable Development is designed to transform America. He is also proprietor of Liberty Garden, a native plant oasis located on the central coast of California. He is a litigant in cases against Santa Cruz and Alameda Counties in connection with the application of Sustainable policy.

Web Site: & Liberty Gardens













With this decision the federal courts will require compensation if the right to the reasonable use of private property has been abridged.