Folks, If you have any interest in inverse condemnation, particularly regulatory takings, you have to take a break from whatever you are doing and read the opinion of the U.S. Court of Appeals for the 2nd Circuit, reversing the dismissal of a taking claim by a lower court. Sherman v. Town of Chester, 2d Cir., No. 13-1503-cv, filed May 16, 2014. It’s must reading for several reasons. First, for its treatment of the municipal smartasses who removed a property owner’s taking case from state court to federal court and then had the chutzpah to argue that the case must be dismissed because it should have been litigated in state court. No, we are not making this up. And second, for the court’s detailed dissection of the town’s abusive treatment of the property owner. You just gotta read it — this case goes Catch-22 one better and the court says so in plain words and in painful detail.
What is amazing is how many federal judges swallow such intellectual and moral crap whole in other cases and dismiss them, thereby denying the aggrieved property owner access to adjudication of both his state and federal constitutional claims on the merits in any court (as noted by four U.S. Supreme Court Justices in the San Remo Hotel case) .
Anyway, the opinion presents a routine scenario in which the owner who wanted to build some homes on land zoned for them was subjected to repetitive and openly abusive treatment whereby whenever he complied with what the city wanted, it asked for more or for something different. The poor guy died while this litigation was pending, so the victor in this case is his widow. You just gotta read it for yourself.
Postscript. We wanted to give you some more detail on what the court had to say in its opinion, but our colleague, Robert Thomas beat us to the punch in his blog www.inversecondemnation.com so you may as well go there for that additional information, and spare us the duplicative task of repeating it. But do go there and read Robert’s stuff and commentary. You won’t regret it.