“Zoning Grand Muftis” — Judicial Policy or Judicial Hypocrisy?

We came across a quote from Robert Thomas’ blog www.inversecondemnation.com that has inspired some thinking on our part. Quoth Mr. Thomas:

“[F]ederal judges constantly tell us that they want no part of land use and takings cases — despite their plain textual basis in the Fifth and Fourteenth Amendments — because federal courts don’t want to be “super zoning boards” or second-guess local governments. Yet, they have the time, apparently, to go into great detail about how an employee puts on and takes off his or her clothing, with an entire body of case law developed that second-guesses employers, with nary a question raised about federal jurisdiction, or ripeness, or other things that we takings lawyers are so used to. http://www.inversecondemnation.com/#sthash.EYK63yg5.dpuf

Actually, if we may wax pedantic for a moment, federal judges also have it that they abhore being cast in the role of  “zoning Grand Muftis” and — so they say — they are therefore not much interested in passing on land-use controversies. What’s wrong with that, you ask? Answer: it isn’t true — not a word of it. Local land-use issues are litigated in federal courts all the time. There is even a respected treatise on federal land-use law. Judges do get involved in zoning controversies with gusto and at length when the land-use controversy involves constitutional issues other than regulatory takings. In fact when it comes to land-use cases that give rise to First Amendment issues, their Lordships are  all over those. We were once tempted to create whole new land-use category of cases falling under the heading of “Nudie Cuties” — i.e. land-use cases involving zoning controlling nude dancing in saloons, thereby giving rise to First Amendment constitutional issues. And that isn’t all. Federal courts get involved on all sorts of land-use issues.

Even worse is the situation where outright eminent domain is involved. The law of condemnation often requires that in addition to establishing “public use,” public necessity must also be shown. This is usually required by statute. But — statute, shmatute — outside of Florida where a limited degree of judicial review of necessity is allowed, courts tell us that necessity is not subject to review by them unless the owner can establish fraud on the part of the condemnor.

Actually, the courts have never explained that anomaly. They offer the transparently insincere excuse that  they lack the competence to review decisions involving engineering, traffic, hydrology, and similar technical matters  that go into decisions of whether a public project meets the criteria of public necessity — i.e., whether the project is necessary, whether the subject property is necessary for it, and — here comes the good part — whether the project is so located as to be most compatible with the greatest public good and least private harm. Sounds good, but just you try litigating that question! No way, Jose.

But wait until a case walks in involving review of environmental issues arising out of public projects (like a highway, or a dam for instance). Presto, chango! It’s then a whole other story, and the same judges who just told us they lack competence to determine all those technical engineering matters that go into issues of highway necessity, come alive and in environmental review matters, freely review and frequently throw out engineering decisions. Why? Check out a series of federal cases captioned Keith v. Volpe and you’ll get an idea of what we mean.  How is it possible that judges are incapable of reviewing these factors when questions of public necessity are involved in an eminent domain case, but can handle them without raising a sweat when they come up in the context of an environmental review case? Thus, there are famous cases in which judges have disapproved designs of highways (and other public works) because in those judges’ opinions they were not so designed as to meet environmentally proper engineering, hydrological, ecological and other standards. Yet, those same judges profess to be incompetent to do the very same thing when a condemnee raises the issue of public necessity in an eminent domain case. See the quote from the Illinois case provided infra.

For an oldie but goodie in that category read William Tucker’s article in Harper’s magazine, entitled Environmentalism and the Leisure Class, Dec. 1977, at p. 49, which describes in detail how wealthy New York environmentalists killed a major, badly needed project (an emergency standby reservoir on top of a mountain, that would be available to provide an alternative source of power in case of failure of conventional power generation facilities). How did they do it? By endless litigation before federal administrative agencies and federal courts. No problem reviewing all that technical engineering stuff there.

Or, take a look at a much more recent Illinois case involving a taking of a cemetery for expansion of the Chicago airport where the Illinois Appellate Court said:

“Judicial interference in the actual plan to be implemented would lead to interminable delays, as there is always a different way to configure the use of land, especially a plan as massive as the expansion of an airport. Even if the overall expansion plan has changed such that the planned runway could be built on land other than the cemetery land, the fact remains the runway is planned to be built there, and the trial court would have no authority to scuttle the plan or require the City to redraw the plan to place the runway elsewhere.” City of Chicago v. St. John’s United Church of Christ, 935 N.E.2d 1158 (Ill.App. 2010).

So are courts competent to review questions of public necessity in eminent domain? Heavens, no. That would lead to “interminable delays,” don’t you know. But when it comes to environmental issues the same courts can take decades nitpicking to death public project opposed by a determined environmentalist groups — take a look at that Keith v. Volpe litigation if you want an example; make sure you count up the published cases, and the years it took to litigate them.

It all brings to mind the old saw that it all depends on whose ox is getting gored. But hey man, it’s the law, and we must respect it. Or must we?