Berger Files Amicus Brief in SCOTUS Takings, Land Use and Development Case

Manatt Senior Counsel Michael Berger filed a pro bono amicus brief with the U.S. Supreme Court on behalf of The Small Property Owners of San Francisco Institute (“SPOSFI”) in a case alleging violation of the Constitution’s Takings Clause and Equal Protection Clause by preventing development of more than 1,000 acres of land purchased by Everest Development Company in Reno, Nevada.  

At issue is the swath of land owned by Everest Development Company subsidiary Evans Creek LLC intended for a master planned community in Washoe County. After many applications from Everest and years of disputes between the company, the County and the City of Reno, Washoe County adopted a plan to acquire the Everest land as part of the County’s Open Space Plan. The County began eminent domain proceedings to take ownership of the land in 2004 leading to the dispute currently before the U.S. Supreme Court.  

In the brief, Berger argued the case provides the Supreme Court with a chance to reexamine and revise the standards for what qualifies as a taking of property under the Fifth Amendment.  

Now, it is time for the Court to act on what has already been said in its own published opinions and develop clear and established guidelines for what counts as a taking. Penn Central Transp. Co. v. City of New York has been the guiding star for the Court in takings cases, and Berger said it’s necessary for the Court to recognize the harm of this ruling and take steps to make takings law clear. 

“It should be apparent that this Court’s desire to refrain from establishing overly firm rules has not served well. That desire leads to the other extreme and allows so much flexibility to lower courts that this constitutional field is left with no real standards at all,” Berger said. “The result is a continuous roiling of the litigational waters, with a steady stream of academic criticism and certiorari petitions which should be unnecessary.”  

Read the full amicus brief here.  



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