The “Taking” of Badlands 123: Part III

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(Chuck Muth) – Finally, we get to Knick v. Township of Scott.

In the first two parts of this series (Part I | Part II) we looked at efforts by the City of Las Vegas to stop a series of lawsuits by the owners of the former Badlands golf course property who have been blocked from building residential homes on the land even though it is, and always has been, zoned for residential housing development.

Thus far, the city has lost over and over again.

And just for the record, this mess was created by the “old” city council, long before three new members joined the board last June and inherited it.

Now, the essence of the case centers on a legal term: “inverse condemnation.”  Simply put, inverse condemnation is “a situation in which the government takes private property but fails to pay the compensation required by the 5th Amendment of the Constitution.”

In the Badlands case, the city tried to “take” the Badlands land and convert it to “open space” rather than residential homes.  To that end, it threw up roadblocks to stop and delay the owners’ development plans – without compensation.

Enter Rose Mary Knick.

According to a United States Supreme Court ruling handed down on June 21, 2019 – which was delivered by Chief Justice John Roberts – the Township of Scott, Pennsylvania, passed an ordinance requiring that “all cemeteries…be kept open and accessible to the general public during daylight hours.”

The specifics of the case were detailed in Justice Roberts’ opinion…

“Petitioner Rose May Knick owns 90 acres of land in Scott Township, Pennsylvania, a small community just north of Scranton.  Knick lives in a single-family home on the property and uses the rest of the land as a grazing area for horses and other farm animals.

“The property includes a small graveyard where the ancestors of Knick’s neighbors are allegedly buried.  Such family cemeteries are fairly common in Pennsylvania, where ‘backyard burials’ have long been permitted.

“In December 2012, the Township passed an ordinance requiring that ‘all cemeteries…be kept open and accessible to the general public during daylight hours.’ … The ordinance also authorized Township ‘code enforcement’ officers to ‘enter upon any property’ to determine the existence and location of a cemetery.”

The township subsequently notified Ms. Knick that she was violating the ordinance.  She sued in state court “on the ground that the ordinance effected a taking of the property.”

The township then withdrew the violation notification and stayed enforcement of the ordinance.  As such, the STATE court ruled that that Ms. Knick “could not demonstrate irreparable harm” and declined to rule on the case.

At which point Ms. Knick re-filed her lawsuit in FEDERAL court, arguing the township’s ordinance “violated the Takings Clause of the Fifth Amendment” of the United States Constitution.

Much like in the Badlands case, a bunch of legal maneuvering then took place with the township arguing the federal courts didn’t have jurisdiction because the ordinance hadn’t been enforced and was eventually withdrawn.  Therefore, it argued, Ms. Knick’s property wasn’t actually “taken” and she wasn’t due any compensation.

On appeal, the Supreme Court disagreed.

As Justice Roberts wrote: “A property owner acquires a right to compensation immediately upon an uncompensated taking because the taking itself violated the Fifth Amendment.”

“Simply because the property owner was not entitled to injunctive relief at the time of the taking,” Justice Roberts continued, “does not mean there was no violation of the Takings Clause at that time.”

And as Justice Roberts further noted, “A bank robber might give the loot back, but he still robbed the bank.”  He went on to declare that “a property owner has a claim for a violation of the Takings Clause as soon as a government takes his property for public use without paying for it.”

Now here’s how this relates to Badlands …

The Las Vegas City Council “took” the former golf course land by passing ordinances and denying development plans; declaring the property to be “open space” without just compensation to the owners.

This is why many feel the city is destined to ultimately lose this case.

In January, the newly-constituted city council repealed the “open space” ordinance, hoping to mitigate, if not eliminate, the home builders’ claim.  But that dog ain’t likely to hunt.  As Justice Roberts wrote…

“The government’s post-taking actions (in Knick, repeal of the challenged ordinance) cannot nullify the property owner’s existing Fifth Amendment right: ‘[W]here the government’s activities have already worked a taking of all use of property, no subsequent action by the government can relieve it of the duty to provide compensation.’”

And here’s the part Las Vegas taxpayers need to worry about…

Justice Roberts wrote that “a property owner found to have a valid takings claim is entitled to compensation” and “the compensation must generally consist of the total value of the property when taken, plus interest from that time.” (my emphasis)

Now, the value of the Badlands property for residential development at the time of the taking was a LOT higher than the value of the land as an “open space.”  So that’ll cost the taxpayers a pretty penny in and of itself.

But since this case has dragged on for YEARS, the total amount taxpayers could be on the hook for – the higher value at the time of the taking PLUS the interest (and possibly penalties) – could be tens, if not hundreds, of millions of dollars.

And that doesn’t include the millions of tax dollars already wasted on the multitude of lawsuits in this matter.

“Since I’ve been with the city, it’s not often, but it has happened before, that you get involved with litigation that is protracted and just costly,” Las Vegas City Attorney Brad Jerbic recently told the Las Vegas Review-Journal.  “You’d be irresponsible not to try to resolve it and we’re going to continue to.”

But that may be easier said than done.

The developers, as you read above, have a pretty darned strong case.  And the lead developer, Yohan Lowie, has indicated he has no inclination to settle.

In the same RJ story, “Lowie said his company was prepared to fight alleged city wrongdoing ‘forever and ever.’”  He added: “It’s never going to happen to someone else in the state of Nevada.  That’s what we’re fighting for here.”

A man fighting for principle, especially armed with facts so strongly on his side, is tough to beat.

As such, city taxpayers – all of them, not just the neighbors adjoining the former golf course – can pay him a lot now, or roll the dice and risk paying him a lot MORE later.

The odds are not on the taxpayers’ side.  The new city council members need to resolve this.  Yesterday

P.S.  If you want to sign up to get breaking news and email updates on this issue, you can sign up by going to: LandSnatch.com

Mr. Muth is president of CitizenOutreach.org, a limited-government grassroots advocacy organization, and publisher of NevadaNewsandViews.com.  He blogs at MuthsTruths.com.  His views are his own.

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Chuck Muth

Mr. Muth is president of Citizen Outreach, a limited-government grassroots advocacy organization.  His views are his own. 

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