One of the old illustrations of the concept of chutzpa is the case of the mugger who robs and beats up his victim while loudly yelling “Help! Help!”
A case in point is the article in today’s issue of the Los Angeles Times, Abby Sewell and Jessica Garrison, Cities Left on Shaky Ground, September 9, 2012, at p. A29.
But before we get into the meat of this post, a bit of background. In the notorious Williamson County case, SCOTUS came up out of the blue with a procedural scheme that makes Dickens a piker. First, said the court, you have to apply for a building permit even when the local regulation forbids construction. Then you have to carry your application to its point of finality. SCOTUS admonished that this step was not be confused with exhaustion of administrative remedies, but most lower courts simply ignore that distinction and require such exhaustion. Then you have to apply for a variance. Only then can you sue for compensation. Except in California, where you can’t — you must first sue for a writ of mandate. Got the idea?
In this remedial regime, one of the most effective ways of denying property owners complaining of constitutional violations of their property rights access to courts, is the cost of litigation. A sarcastic joke has it that in order to pursue a regulatory taking case to its conclusion on the merits, the aggrieved property owner has to have at least a decade, a million dollar litigation budget, and the single-minded determination of a bulldog.
If you don’t believe us, check out our favorite: Del Monte Dunes v. City of Monterey, in which the unfortunate property owner, before being denied all use of his land, was put through a bureaucratic wringer requiring it to prepare and submit five development plans (each followed by administrative proceedings before city functionaries), nineteen plot plans, two visits to federal trial court and two to the U.S. Court of Appeals, plus a visit on the merits to the U.S. Supreme Court, before seeing a nickel in damages.
At least he got damages. But in Tahoe Sierra Preservation Council v. Tahoe Regional Planning Authority, the owners who had been denied the right to use their home-sites on which they intended to build retirement homes, for any rational use for over a period of 20 years, and were sent back-and-forth like a yo-yo between federal trial and appellate courts several times, SCOTUS decided that all this litigation was unnecessary because the operative facts were not in dispute and it was all a straighforward issue of law. In the meantime, the case dragged on so long that over 50 plaintiffs died of natural causes during that time.
And check out other horror stories, like the saga of Herman Corn, or the Yardarm restaurant in Florida, and the Dodd family in Hood County, Oregon, which at the government’s behest dragged on and on to no avail as the owners were sent by the courts on one wild goose chase after another through a multiplicity of courts .
We could go on, but the point has been made.
So now, guess who has the chutzpa to complain to the L.A. Times about the cost of litigation over land-use controversies? Why, the government!
Actually, if these guys are complaining about the cost and complexity of these cases, it serves them right. It’s a case of poetic justice. Why? Because ever since around 1980 it has been a mantra of government regulatory entities and their lawyers, that whatever the facts of the controversy may be, the owners’ case is unripe. The California Attorney General once argued that a land-use case can never be ripe because zoning is subject to change. There have even been cases — no, we are not making this up — in which the government argued successfully that the aggrieved owner’s case was simultaneously too early (unripe) and too late (barred by limitations). It has been like in Alice in Wonderland where at one point the Queen of Hearts informed Alice that she could have had jam on her toast yesterday, or will be able to get it tomorrow, but never today. We know you don’t believe us, so here it is in the words of the U.S. Court of Appeal for the 6th Circuit:
“It may seem a bit perverse that one taking claim (past violation) be barred by statute of limitations because it was delinquently filed in federal court, and yet a similar claim (continuing violation) be barred by ripeness because it was prematurely filed in federal court. But this is the nature of federal-state interplay after [the] Williamson County case . . . ” McNamara v. City of Rittman, 473 F.3d 633, 640 (6th Cir. 2007).
So here is our advice to these guys: you are the ones who created this swamp. You are the ones who persuaded the courts to impose it on long suffering property owners, and in the process made your bed. Now go lie in it. And don’t go whining to the Los Angeles Times, because the problem you have to deal with is self-inflicted. You sure didn’t complain when you were the beneficiaries of this crazy system, so now have the decency not to complain when its edge for once turns against you.
Full disclosure. Your faithful servant was one of the lawyers who represented the landowners before the U.S. Supreme Court in the Del Monte Dunes and Tahoe-Sierra cases. You win some and you lose some.
* In the unlikely event, dear reader, that you are not familiar with this term, check it out in Gerald F. Uelmen, Plain Yiddish for Lawyers, ABA Journal, June 1985, at p. 78.