80B and Camp continued

Before discussing the Camp decision, here’s a general Rule 80B factoid. Matt Pollack, the new, very friendly and helpful clerk at the SJC, showed me a few statistics as a sneak preview to the MSBA appellate seminar next week. The two years provided, 2006 and 2007, showed that the type of case that the SJC takes the longest to decide are 80Bs and 80Cs. (Although as a relative matter, the Maine SJC is much quicker than most state appellate courts.) So these types of appeals may not just be boring to some, but they can get complicated as well, as the court has to sift through administrative records and probably gets tired of appellant misunderstandings of the circumscribed, substantive evidence standard of review.

On to Camp.  The interesting interface here is with takings law (and if you thought Rule 80B and 80Cs were complicated and rife with procedural minefields, they are picnics compared to takings jurisprudence)  Without getting into to-me-fascinating, to-others-tedious detail, the interesting aspect to this decision is how it might affect the following scenario:  a landowner has an undeveloped piece of land, surrounded by developed land, which it can now not build on because of new regulations (set backs etc.).The Shapleigh Ordinance, like most, allows the ZBA to grant a variance based on undue hardship.  The four criteria that must be met, which are the same as set forth in 30-A MRSA sec. 4353(4), go to (1) reasonable return; (2) uniqueness; (3) essential characteristics; and (4) owner action:

(1) That the land in question cannot yield a reasonable return unless a variance is granted;

(2) That the need for a variance is due to the unique circumstances of the property and not the general conditions in the neighborhood;

(3) That the granting of a variance will not alter the essential character of the locality; and

(4) That the hardship is not the result of action taken by the applicant or a prior owner. 

The holding in Camp was, essentially, that the fact that everyone else around a property owner has developed their property doesn’t mean that property owner’s situation is unique: “It is undisputed that this property does not have a building on it, and that the property can only be used for residential purposes; these facts were properly considered by the Board in determining, unanimously, that the property cannot yield a reasonable return unless a variance is granted. The lack of a house is not a unique characteristic, however, and granting a variance on that basis was an error of law.”  Camp, 2008 ME 53, ¶ 13.

In sum, even if a property owner cannot obtain a reasonable return on his property, and everyone has developed all the property around his property, under Maine law, a town can’t grant a variance to let him build based on those facts.

Now let’s move onto the test for a regulatory taking requiring just compensation under the Constitution. If regulation eliminates all value, then it is a taking per se, requiring just compensation – that’s the holding in Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992).  In that case, everyone had built around the claimant, but he couldn’t build because of new regulations.

If a regulation doesn’t take all, but only most, value (so, e.g., the owner can’t obtain a reasonable return on his property — see Agins v. City of Tiburon, 447 U.S 255, 260 (1980) (focusing on "economical[  ] viab[ility]”)), then it can still be an ad hoc taking, looking at two other factors:  the reasonable investment-backed expectations of the owner and the character of the use.  Penn Central Transportation Co. v. New York City, 438 U.S. 104, 128 (1978)

Do you see where I am going?  The inability to grant a variance given this uniqueness obstacle could lead to an increase in the number of inverse condemnation claims filed.  First, if all value is taken by e.g., a setback, then under Lucas, with facts recited similar to those in Camp, there would appear to be a taking.  While those situations are rare (usually some value remains), looking at the ad hoc test, the very facts making the property not unique could bolster an owner’s reasonable expectations. I will save any further discussion of how much value needs to be taken under state or federal law for an ad hoc taking, and other nuances of takings jurisprudence, for another day.  My observation here is simply that, with the ability to obtain a variance limited, an owner with an undeveloped piece of property may have no other legal recourse but to explore suing the town for a taking.

The holding in Camp could also remove a procedural obstacle to regulatory takings claims. Many potential takings claimants have been stymied in the past by the requirement that, to be ripe, a taking claim must first basically exhaust all routes for alternative relief — like getting a variance.  If, however, an owner’s property isn’t unique, then it would seem that there would be no need to seek a variance before proceeding to an inverse condemnation claim — the administrative request would be futile.  Add this to the facts that (a) the Law Court has previously held that a claimant can pursue his federal civil rights claim simultaneously with his state inverse condemnation claim (MC Associates v. Town of Cape Elizabeth, 2001 ME 89, 773 A.2d 439), and (b) the Supreme Court has held that claimants get juries for their takings civil rights claims (Monterey v. Del Monte Dunes at Monterey, Ltd., 526 U.S. 687 (1999) — the state claim may also get a jury, Fichter v. DEP, 2000 WL 33676710 (Fritszche, J.) — and voila —  takings claims, before juries, because there’s no off-ramp to get a variance from a board.

And from a practical standpoint, from a town’s perspective, things can get complicated. (You mean they weren’t already?)  While a variance can be granted by a ZBA, if someone sues in court based on a taking, the town can probably settle it by allowing the use (i.e., the same result as a variance).  Procedurally, however, the town might then have to pay for a temporary taking, and it might need town meeting approval to settle a court case.  And because the case includes a civil rights claim,, the settling owner might argue for some fees. 

I can talk about takings law forever, so I will just stop here. 

As always, comments are welcome.

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