Won: 6th Circuit holds that government must provide legitimate reasons for treating similar housing developments differently

Charles Andrews didn’t expect too many problems when he set out to build a subdivision in Mentor, Ohio. The 16-acre parcel, which has been in his family for more than 50 years, is vacant and surrounded by all types of development. 

Unfortunately, he soon learned that building under the current zoning was economically unviable, given the infrastructure and open space requirement demanded by the city’s current zoning rules. Mr. Andrews accordingly applied for a higher-density rezoning designation that would allow 40 new homes while still reserving one-third of the property for open space, paths, and a community recreation pavilion. 

He had reason to expect approval. The city’s general plan encouraged higher-density “smart growth” and the local government had approved similar zoning changes for surrounding developments, including a nearly identical neighboring subdivision just two years earlier. In fact, the city had not denied any similar rezoning request since 2004.  

Nevertheless, the city denied the rezoning request. Represented by PLF free of charge, Charles defended his constitutional right to be free from an uncompensated taking of his property. 

Mr. Andrews challenged the denial in federal court, arguing the city’s refusal to allow him viable use of his property was a taking of property without just compensation. The district court rejected the case, largely on the ground that Mr. Andrews did not have any “entitlement” that could be taken under the city zoning code. 

This was wrong: The Takings Clause protects “property,” not “entitlements,” and land ownership has always been a constitutionally protected property interest. Government can’t use zoning codes to erase property interests and escape legal challenges. While it has some discretion, it cannot use that discretion to make the use of land economically unviable, which is exactly what Mr. Andrews asserts. 

The Sixth Circuit Court of Appeals reversed, holding that Mr. Andrews could bring a takings claim against the city. The court also held that government must provide a rational basis for treating Mr. Andrews differently from his neighbors who were allowed to build. 

What’s At Stake?

  • When people buy property, they buy a bundle of rights that include the right to use their property.
  • People have a constitutional right to challenge governmental decisions that strip property of substantial value and use.

Case Timeline

August 25, 2021