Fifth Amendment Needs Clarification

It should come as no surprise that city officials believe laws regarding rights-of-way and easements are crystal clear. It’s also not surprising that property owners disagree with the city officials’ interpretation of the laws.

Even the understanding of the United State’s Constitution is still being debated. Its Fifth Amendment takings clause has been interpreted differently from one state to the next.

Fayetteville City Attorney Kit Williams explains that cities simply must regulate development and prepare for future growth. Developers understand, but they argue they should be justly compensated for their land.

In 1999, the Michigan Appellate Court said yes, private property may not be taken for public use without just compensation , but it ruled that compensation must be determined in proceedings through a court of record. Therefore, just compensation is not necessarily fair market value.

“Our state statutes, ones that have been on the books for quite a while, require developers to have easements and build the necessary streets, sidewalks, sewer lines, etc.,” Williams said. “The city then has the duty to maintain them when they become city property. That’s the only way society can function and develop any framework that can be efficient. If you deny local government that kind power, it’s going to be a mess.

“If this wasn’t required, developers might just have gravel streets that would be very costly to maintain. That would just put an additional burden on taxpayers. Our state legislature and our cities feel the cost of a development should be paid by the developer.”

But the question of where regulating the property ends and taking of property begins is one without a clear answer.

Ed McClure, a lawyer for the Rogers firm of Matthews Campbell Rhoads McClure Thompson & Fryauf, said he would like to see the Arkansas Supreme Court address this issue.

“The Supreme Court has surprised me a lot lately with some of its rulings,” McClure said. “I have not seen a case that has specifically addressed that issue. Anytime you can get a clarification on a point of law, it’s always helpful for the general practice of law. There are clearly two distinct and quite valid points of view on this matter. Certainly, the city has compelling interests in having roads and adequate infrastructure. You can’t argue that. If [the developer] is going to derive profit from it, why shouldn’t they bare the burden of the infrastructure costs. But the problem is that some people’s perception is ‘Why are they doing this to people trying to improve their property?’

“Our [Arkansas] Supreme Court, at least right now, is going to presume the cities’ ordinances are constitutionally valid. So, if someone wanted to challenge the rulings, they’re going to start at a disadvantage. But if our state Supreme Court wants to change that law, it will do so. The court of appeals has taken on more of an activist role. It’s more willing to change what had been considered rules and common law. The Supreme Court hasn’t been doing that.”