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The National Association of REALTORS® filed two amicus briefs with the U.S. Supreme Court in late 2023 supporting private property owners challenging what they say are unconstitutional violations of the Fifth Amendment. Both apply the amendment’s Takings Clause, which says, “nor shall private property be taken for public use, without just compensation.”
Highway Project Causes Flooding to Nearby Land
In DeVillier v. Texas, the state launched a highway project to enable evacuations during flooding. The project elevated the highway, added two lanes, and built a concrete barrier in the center of the highway, reports the ABA Journal. The highway changes resulted in widespread flooding and damage to property owned by farmer Richie DeVillier and other nearby residents. He and other landowners were unable to bring an unconstitutional takings lawsuit against the state in either federal or state court to seek compensation for the damages to their property caused by the state’s actions.
County Uses Land Exaction for Road Improvements
In Sheetz v. County of El Dorado, California, a property owner applied for a building permit to construct a residence on his property. In exchange for the permit, the county required a $23,000 land use exaction, which is a payment from a developer that some local governments require as a condition of project approval. The homeowner paid the fee but challenged the exaction as unconstitutional.
Takings like these can artificially increase real estate costs, restrict fundamental property rights and hinder potential development opportunities. The Supreme Court heard oral arguments in both cases in January and is expected to issue its decisions in June.
Adapted from “5th Circuit takings ruling that breaks ‘Pottery Barn rule’ will be reviewed by US Supreme Court,” ABA Journal, Oct. 23, 2023.
