Posted by: Patricia Salkin | August 15, 2017

Sixth Circuit Court of Appeals Holds Landowners did not Utilize Available State-Court Procedures to Seek Just Compensation for City’s Purported Regulatory Taking of Their Property

Malone operated a barber shop since either 1989 or 1999. In 2007, the Beeches purchased property across the street from Malone’s property. In 2012, the Beeches filed in the Chancery Court for Williamson County, Tennessee a Suit for the Abatement of a Nuisance and for Writ of Mandamus against Respondent City of Franklin, for its prior and ongoing selective enforcement of its own Codes and Ordinances. The chancery court entered summary judgment for the City of Franklin and Calvin Malone. In district court, the Beeches alleged that the City’s failure to enforce its zoning ordinances against Malone constituted a deliberate taking in violation of the Petitioners’ federal rights under the Fifth Amendment.

The trial court found that the Tennessee Constitution required just compensation for regulatory takings and that property owners could demand compensation for regulatory takings under Tennessee’s inverse condemnation statute, Tennessee Code Annotated § 29-16-123. The Tennessee Supreme Court also found nuisance-type takings were compensable under the inverse condemnation statute. As the Beeches did not utilize available and adequate state-court procedures to seek compensation, the Beeches’ federal regulatory-takings claim was unripe. Moreover, since the federal regulatory-takings claim was not ripe, the ancillary due-process and equal-protection claims were found unripe as well.

Beech v City of Franklin, 687 Fed. Appx. 454 (6th Cir. CA 4/19/2017)


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