Dispute Over Land Prompts 13-Hour Standoff Between a Family and Deputies; Two Officers Killed

AP via TBO ^ | December 9,2003 | Jeffrey Collins

[Cultural Jihad]

That said, an honest duel on his property would settle it...

Conservatives repudicate your whackjob idea that gunplay can resolve disputes.

[VMI70]

Text Assist for Takings Clause Flowchart

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The Fifth Amendment prohibits "private property [from being] taken for public use without just compensation." The sovereign governments of the United States (both federal and state governments) have the power, through eminent domain, to take a person’s private property as they wish as long as they pay for it. Usually, the most difficult issue in eminent domain cases is whether or not there was a "taking." Not meant to discourage you from mastering this concept, but a leading eminent domain scholar described the Supreme Court’s handling of this topic as "a crazy-quilt pattern." See Dunham, Griggs v. Allegheny County in Perspective: Thirty Years of Supreme Court Exappropriation Law, 1962 Sup.Ct.Rev. 63. Take a look for yourself to see which cases you agree with (and which enrage you...)

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Identify the interest involved:

There must be a reasonable investment-backed expectation that is taken away from the owner. This may include any of the following:
1) Real property (e.g. land)
2) Personal Property (e.g. oil, cars)
3) Entitlements (e.g. governmental benefits to which one is "entitled")
4) Intangibles (e.g. trade secrets)

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State law, not the constitution, defines property:
Property rights are subject to the definitions and limitations set by each state. Keep in mind, however, that the ability of the government to limit property rights is subject to constitutional limitations, such as the First Amendment, Equal Protection and Due Process. For example, a state government may not define property rights as contingent on the provision that the property never be sold to a racial minority. This would violate the Equal Protection Clause. Shelley v. Kraemer, 334 U.S. 1 (1948).

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Does it constitute fifth amendment "property"?
The key concept in defining "property" is entitlements -- presently enjoyed rights or interests. When the government recognizes that an individual is legally entitled to a benefit, it creates an expectation by that individual that the benefit will not be arbitrarily terminated. The individual must "presently enjoy" the right. Due Process does not protect a person applying for benefits. See Board of Regents v. Roth, 408 U.S. 564 (1972).

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Not all economic interests are "property" for takings clause purposes
There must be a reasonable investment-backed expectation that is taken away from the owner.

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Exercise of eminent domain power
The government may at any time exercise it power of "eminent domain" to take a person’s private property, as long as it pays just compensation. Both the federal and state governments have the power of eminent domain.

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Is it for a public use?

Physical and Permanent Invasion of Owners’ Land
If the government uses the property or allows the public to use it, there is a per se taking. However, if the owner can abate the invasion by using the property for other purposes, then there is no taking. In other words, the land owner must be required to submit to the physical invasion in order for a taking to occur.

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Regulating the users of the property: "Users" being the key word --
In the case where the government singles out a specific property owner to donate his land to the public, there is an arbitrary taking.

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Regulating the use of the property "Use" being the key word --

Real Property
Where a regulation deprives all economically or productive use of someone’s land, a taking has occurred. A mere diminution in property is not a taking. The Supreme Court in Lucas v. Forty-Fourth General Assembly, 377 U.S. 713 (1964) held that a regulation banning land development was not a taking because the land still had value.

Personal Property
Where a regulation deprives the owner of all economic and personal use of the property, there is a taking. The Supreme Court held in Andrus v. Allard, 444 U.S. 51 (1979) that a ban on the sale of eagle feathers was not a taking because the owner could use the feathers for other purposes.

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Strong means-ends nexus required -- Strict Scrutiny

Strict Scrutiny Test:
1) Does the law further a compelling state interest? (ENDS must be compelling);
2) What MEANS are being used by the state to meet the compelling state interest; and
3) Are the MEANS necessary or narrowly tailored? (If the law is found overbroad, it will be struck down as unconstitutional.)

Strict Scrutiny Distinguished from the Rational Basis Test:
1) Strict Scrutiny "strictly scrutinizes" the law. The law being looked at must involve a "compelling" state interest, which is much more urgent than a reasonable state interest (Rational Basis) or even an important state interest (Intermediate Scrutiny -- used by the Supreme Court in gender or illegitimacy cases).
2) Strict Scrutiny Standard: The burden of proof is on the government.
3) Rational Basis Standard: Presumption that the law is valid.

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Does the interference substantially advance a legitimate governmental interest?
A "legitimate" governmental interest (the requirement for the Rational Basis Test) is much easier to extract and defend than a "compelling" governmental interest (which is the requirement for the Strict Scrutiny Test).

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Minimal means-ends nexus required -- Rational Basis:

Rational Basis Test:
1) What is the Objective of the Law (ENDS); *
2) What MEANS are being used by the state to meet that objective; and
3) Are the MEANS rationally related to the ENDS? **

* A court will not probe for the true purpose of a law.
** Keep in mind that courts are extremely deferential to the legislature when applying the Rational Basis Standard.

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Does possession destroy essential attributes of property ownership?

Physical and Permanent Invasion of Owners Land
If the government uses the property or allows the public to use it, there is a per se taking. However, if the owner can abate the invasion by using the property for other purposes, then there is no taking. In other words, the land owner must be required to submit to the physical invasion in order for a taking to occur.

The Court found a taking had occurred in the following situations:
1) The noise from U.S. military airplanes when such noise made farming impossible: This was a taking even though the government made no actual claim to the land. U.S. v. Causby, 328 U.S. 256 (1946).

2) A Pennsylvania law banning subsurface coal mining: The court recognized that the mining ban rendered useless the mining company’s only property interest in the land. In this 1920 opinion by Justice Holmes, the Court witnessed one of the rare occasions when Justice Brandeis and Justice Holmes took opposite sides. Pennsylvania Coal Co. v. Mahon 260 U.S. 393 (1922).

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Does the regulation impose a dispoportionate burden?
"While property may be regulated to a certain extent, if regulation goes too far it will be recognized as a taking." Pennsylvania Coal Co. v. Mahon, 260 U.S. 393 (1922).

Real Property
Where a regulation deprives all economically or productive use of someone’s land, a taking has occurred. A mere diminution in property is not a taking. The Supreme Court in Lucas v. Forty-Fourth General Assembly, 377 U.S. 713 (1964) held that a regulation banning land development was not a taking because the land still had value.

Personal Property
Where a regulation deprives the owner of all economic and personal use of the property, there is a taking. The Supreme Court held in Andrus v. Allard, 444 U.S. 51 (1979) that a ban on the sale of eagle feathers was not a taking because the owner could use the feathers for other purposes.

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Right of possession
If the government deprives the property owner of the actual "right of possession," then a taking has occurred and compensation must be made. The Court held that when the government authorized "permanent physical occupation" of private property, just compensation was required. Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419 (1982). For example, in Loretto, the Court found there had been a "permanent physical occupation" of private property when a municipal ordinance allowed a cable TV company to install cable in privately owned rental buildings.

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A Taking
According to the facts you have plugged into this flow chart, a taking has occurred. Now, you must determine what can be done to make the property owner whole. (See the next prong, "just" compensation.")

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Right to select users
In PruneYard Shopping Center v. Robins, 447 U.S. 74 (1980), the Supreme Court upheld that California Supreme Court’s ruling that owners of private shopping centers may not exclude persons who with to engage in nondisruptive speech and petitioning activities. So, although the Court eliminated part of the property owners right to select users of their property, the Court held it was not a taking because the owners could not demonstrate that an unchecked right to exclude others was a basic part of the economic value of the shopping center.

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Has the state provided "just" compensation (fair value)?
The owner is entitled to the reasonable value/fair market value of the property at the time of the taking. The test is measured from the owner’s perspective, not the takers--thus the loss to the owner, not the gain tot he taker. Due process guarantees notice and hearing (either administrative or judicial) on the amount of compensation, but the hearing can occur after the taking.

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Is the burden "reasonable" in light of the public interest?

Not a Taking: The Court held the burden to be "reasonable" in the following cases:
1) The Court upheld a Virginia law ordering the destruction of certain red cedar trees that were diseased and threatened the state’s apple orchards, even though the tree owners were not compensated. Miller v. Schoene, 276 U.S. 272 (1928).

2) Armies were allowed to destroy property without compensating the property owners. The "public interest" involved was "safety" because these armies were retreating from the Philippines during World War II. The Court held that this circumstance rendered the destruction constitutional. U.S. v. Caltex, 344 U.S. 149 (1952).

3) In order to protect a neighborhood, the Court upheld a regulation forbidding further use of a profitable dumpsite. Goldblatt v. Town of Hempstead, 369 U.S. 590 (1962).

4) The Court permitted the destruction of certain fish nets to protect the business of local fisheries. Lawton v. Steele, 152 U.S. 133 (1894).

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Right to exclude
If it’s your property, shouldn’t you be able to exclude others from entering it?
What if the state forbids you from excluding a person you want to exclude?
Has the state "taken" anything from you?

In Nollan v. California Coastal Commission, 483 U.S. 825 (1987), Nollan wanted to expand his beachfront house and applied for a permit. The California Coastal Commission replied with a conditional approval: Nollan could expand but only if he grants an easement to the general public to use the beach in front of his house. The Supreme Court found that such a "condition" on a building permit constituted a taking for which Nollan must be compensated.

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Does the law deny (all) economically viable use of the property?
Remember, although a taking exists if the government uses the property or allows the public to use it, if the owner can abate the invasion by using the property for other purposes, then there is no taking. In other words, the land owner must be required to submit to the physical invasion in order for a taking to occur.

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Paradigm: permanent physical occupation by government or third parties
The Court held that when the government authorized "permanent physical occupation" of private property, just compensation was required. Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419 (1982). For example, in Loretto, the Court found there had been a "permanent physical occupation" of private property when a municipal ordinance allowed a cable TV company to install cable in privately owned rental buildings.

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Did owner have a pre-existing right to use in the manner now foreclosed?

The Court found a taking had occurred in the following situations:
1) The noise from U.S. military airplanes made farming impossible. The farmers had a "pre-existing right to use the property [farm] in the manner now foreclosed [too noisy to farm]." U.S. v. Causby, 328 U.S. 256 (1946).

2) A Pennsylvania law banning subsurface coal mining: The court recognized that the mining ban rendered useless the mining company’s only property interest in the land. The coal company had a "pre-existing right to use the property [they had a contract] in the manner now foreclosed [the contract was rendered worthless by the Pennsylvania law]." Pennsylvania Coal Co. v. Mahon 260 U.S. 393 (1922).

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[Cultural Jihad]

And repudiate, too.

[Jim Cane]

Cops, in the US and like everywhere else seem to be trained to be idiots at times.

I don't know about training in idiocy. While it is true many idiots are hired as cops, they are not trained to be idiots. They are usually trained to be hard-a$$ed, and with some justification. You don't want a wuss dealing with criminals. Unfortunately, the many idiots hired at the fed, state and local levels of policing can't discern between normal people and the criminal element. They view us ALL as the enemy.

Idiot + harda$$ training = a$$hole training.

[Jim Cane]

It is noted that your words are ridiculing the guardians of Constitutional rights.

It is noted? By whom? The 1st, 2nd, 4th, and 5th amendment-stomping secret police? Those guardians? LOL!

[Oberon]

Conservatives repudicate your whackjob idea that gunplay can resolve disputes.

Really? While this is totally apart from the issue in question, I will submit to you that whenever someone tells you "violence never settled anything," they're either lying or know nothing of history.

Violence has settled a great many things, including such questions as "Will the street signs in Honolulu be in English, or in Kanji?"

Of course, as I said, that's really a seperate issue from the incident that sparked this debate.

[MissAmericanPie]

I think it makes the case that employees of the department of transportation are ill equiped to deal with irate private property owners. In fact it's probably not a good idea for department of transportation empolyees to interface with enraged private property owners at all.

Best to let an officer of the court be the conduit of communication between the parties.

[jim_trent]

Good post. I am a Civil Engineer consultant who has posted on this forum several times about what really happens on public works projects. It is far different from what most of the people here believe. And I have been flamed for that.

I like your irrigation canals example. I did not go back that far, but I have read the Magna Carta and there were items concerning condemned land there, too. What it looks like to me (from the photos) is that there may have been temporary construction easements needed to slope the roadside ditch on a 3:1 slope. If so, that means he did not give up any land at all.

The people here who say that land is stolen (if it is condemned at all) bother me. They have no idea what they are talking about. Condemnation tries to balance the rights of both sides. Those who want to do away with that want to shaft the taxpayer or make dangerous roads.

I was involved in a project in a floodplain. The people there were flooded about every 5 years for as long as anyone could remember. They kept wanting the other "taxpayers" to build them a dam and levees to keep the water out. A study was done and it was decided that it would cost far, FAR less to buy the people out.

Since the houses were essentially worthless, the Feds required that they be paid what a similar sized house would cost if it wasn't subject to flooding, did not have extensive water damage, fungus, and rot. In other words, far over "Fair Market Value". Then there was moving, temporary housing, taxes, etc that were also paid. Some of the people tripled their net worth by being bought out (or you could say, for being stupid enough to buy where everyone knew it was going to be flooded). But some still wanted more.

The taxpayers deserve some protection, too, if it is decided by elected officials that this is what we should pay for. If someone doesn't want that to be paid for, they should work to elect officials who don't vote for this kind of thing.

Unfortunately, I have worked with Conservative politicians and Liberal politicians. When it comes to pork for their constituents, there is absolutely NO DIFFERENCE between them.

[Carry_Okie]

Doesn't the State offer market value?

Get real. The fair market value was destroyed by the imminence of the highway. State offers under such circumstances are tantamount to robbery.

[sergeantdave]

All property owners need to be aware of their communities plans for expansion. Attending meetings of the zoning commission or land use committees can really put you ahead of the game.

This information allows you to plan for the future or head off building or expansion plans that are detrimental to your property. You can object to proposals at these meetings and exert a lot of influence. Once plans are set they are difficult to change, especially after the government has spent money on platting, surveying and other engineering and construction stuff.

The man in this story could have suggested a land swap. He gives the government his property outright in exchange for a government-owned parcel away from the road plus cash to build another small home. He had many options and exercised the least desirable one.

[shhrubbery!]

It is noted that your words are ridiculing the guardians of Constitutional rights.

Heh. You do put that ominously.

It would be naive to think that all law enforcement officers are guarding constitutional rights. Were the ATF and FBI guarding constitutional rights at Waco and Ruby Ridge?

I lost a lot of respect for some LEOs when I heard how some of them practically twisted the arms off non-resisting abortion protesters.

Some LEOs, probably a small minority, are sadistic brutes and have no inkling of what is in the Constitution, nor any desire to learn about it.

That said, from the information in this article, it doesn't sound like the LEOs did anything wrong here. Apparently they were only trying to investigate the disappearance of an official who had gone into the Bixby's home.

[Ben Ficklin]

No, The widening of the road did not destroy the market value of these houses. The traffic on the road destroyed the value of these houses. And this happened long before the road widening began. As I said in #51, When Bixby bought the property in '94, the traffic was alredy a severe problem. I'm sure he got a good price on it.

Let me suggest that most of these houses are rent houses, Few are owner occupied and Bixby could well have been the only ownner occupying. For the owner-landlords the money they recieved on this project was a windfall since the widening has no affect on the rental value and will hasten the commercial value.

[Libertarianize the GOP]

ping

[farmfriend]

Rights, farms, environment ping.

Let me know if you wish to be added or removed from this list.
I don't get offended if you want to be removed.

[Moose4]

And this isn't new. My father had just started his own auto repair business in the late 1960s when the Commonwealth of Virginia came to him, told him they were putting a four-lane bypass highway through the property, gave him an offer of about 15 cents on the dollar, and told him to take it or get his property condemned and get nothing for it. He didn't have the money for a lawyer, so he took the money and rebuilt the business a few miles away, and ran it successfully for over twenty years.

But to his dying day eight years ago, he was bitter. Very bitter. When we'd drive down that highway, I'd see him glance over to where his shop used to be, just off the right shoulder of the southbound lanes. He never got over it, and he never trusted a word anybody at the Virginia DOT ever told him again.

That having been said, there's no way that something like that would justify ambushing and killing two LEOs. I can't believe anybody's even trying to. There are people here that would actually say "Well, the cops deserved to get blown away" over a freaking construction easement?

}:-)4

[E.G.C.]

BTTT!!!!

[DAPFE8900]

Hello Dude the government was trying to take there land. Does that mean anything to you!!!!!!!!

[tpaine]

To: Cultural Jihad
This is when the scumsucker element of FR emerge through the sewer holes.
44 posted on 12/09/2003 6:18:39 AM PST by ArneFufkin

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Yep, 'fringe' bashers like you & CJ seem to have a real attraction for scumsucking.

[sauropod]

Nobody is "condoning their actions." I am merely asking the question about what precipitated this.

[sauropod]

"It would be naive to think that all law enforcement officers are guarding constitutional rights. Were the ATF and FBI guarding constitutional rights at Waco and Ruby Ridge?" You are asking too much of CJ.