stating in dicta that “[i]f the city council . . . had by ordinance declared that a shopping center on the plaintiffs’ property would serve a public use by, for example, increasing legitimate business traffic in the area and providing jobs for neighborhood residents, the city might have been able to acquire plaintiffs’ property through the payment of just compensation, under the power of eminent domain”
How later courts described this case
- stating in dicta that “[i]f the city council . . . had by ordinance declared that a shopping center on the plaintiffs’ property would serve a public use by, for example, increasing legitimate business traffic in the area and providing jobs for neighborhood residents, the city might have been able to acquire plaintiffs’ property through the payment of just compensation, under the power of eminent domain”
- holding that if the Takings Clause applies to an alleged violation, no substantive due process claim applies. “Substantive due process analysis has no place in contexts already addressed by explicit textual provisions of constitu- tional protection, regardless of whether the plaintiff’s poten- tial claims under those amendments have merit.”
- holding that the defendants were 27 entitled to summary judgment on the plaintiff’s substantive due process claims where 28 “substantive due process provides the plaintiffs no additional relief”
- finding “a triable issue of fact as to whether the [city’s] asserted rationale of directing efforts to enforce the housing code in high-crime areas was merely a pretext” to reduce property values for the city to purchase them at a reduced rate
Written by the judges who cited it.
Later courts went against this
Overruled in part, on other grounds by Crown Point Development, Inc. v. City of Sun Valley, 506 F.3d 851 (2007)
75 F.3d 1311, 1317 (9th Cir. 1996) (en banc) (“[T]he collateral order doctrine does not provide appellate jurisdiction to review the district court’s decision that genuine issues of material fact exist for trial.”), overruled in part on other grounds as recognized in Crown Point 4 Dev., Inc. v. City of Sun Valley, 506 F.3d 851, 852
Abrogated on other grounds by Lingle v. Chevron U. S. A. Inc., 544 U.S. 528 (2005)
” See Carole Media LLC v. N.J. Transit Corp., 550 F.3d 302, 308 (3d Cir.2008); Rumber v. Dist. of Columbia, 487 F.3d 941, 944 (D.C.Cir.2007); Montgomery v. Carter County, 226 F.3d 758, 766-68 (6th Cir.2000); McKenzie v. City of White Hall, 112 F.3d 313, 317 (8th Cir. 1997); Armendariz v. Penman, 75 F.3d 1311, 1320-21 & n. 5 (9th Cir.1996) (en banc), abrogated on other grounds by Lingle v. Chevron U.S.A, Inc., 544 U.S…
The opinion
SCHROEDER, Circuit Judge,
concurring in part and dissenting in part:
I concur in all portions of Judge Fletcher’s opinion except the analysis of the Takings Clause in Part III.A.2 and 3.
I cannot agree with the majority that the enforcement of housing codes can result in a claim of -a taking for non-public use. The Supreme Court has made it abundantly clear that the “public use” requirement is coterminous with the scope of a sovereign’s police power, and that where a taking is “rationally related to a conceivable public purpose” the taking is not proscribed by the Public Use Clause. See Hawaii Housing Authority v. Midkiff, 467 U.S. 229, 241 , 104 S.Ct. 2321, 2329 , 81 L.Ed.2d 186 (1984); Berman v. Parker, 348 U.S. 26 , 75 S.Ct. 98 , 99 L.Ed. 27 (1954) (upholding legislation providing for taking of slum areas for possible sale or lease to private interests). Enforcing housing codes is rationally related to a public purpose. We should not let the Takings Clause become a device for litigating the wisdom or motivations behind municipal law enforcement.