Admonishing Congress for the well recognized and continuing obtuseness of the Clean Water Act, the Supreme Court came down firmly on the side of the Fifth Amendment’s due process guarantees for ordinary citizens and unanimously rejected the federal government’s assertion that the property rights of ordinary Americans can be placed entirely at the mercy of a regulatory agency. In Sackett v. Environmental Protection Agency, the owners of a residential lot in Idaho filed suit challenging an EPA order issued under the Clean Water Act finding that their land was subject to the Act and that they had violated the Act. Unchallenged, the EPA order would have resulted in fines of $75,000 per day. The landowners sued, asserting that the EPA’s order violated the Fifth Amendment because it deprived them of “life, liberty, or property without due process of law.” The Court found that the only adequate remedy the landowners had to contest the EPA’s order was judicial review, and that the Clean Water Act and EPA cannot preclude that review. The Court stated that the act providing for judicial review of regulatory actions rejects efficiency of regulation as a principle that overrides other rights. The Court admonished: “[T]here is no reason to think that the Clean Water Act was uniquely designed to enable the strong-arming of regulated parties into ‘voluntary compliance’ without the opportunity for judicial review – even judicial review of the question whether the regulated party is within the EPA’s jurisdiction.”

On March 15, 2012, the Yavapai County Superior Court ruled in favor of a landowner represented by Dale Zeitlin against APS in a condemnation case where APS sought to condemn a right of way easement over private property to be used “to furnish the public with electricity”. Zeitlin argued that APS had failed to establish it had the required public use and necessity to take the property and asked the court to dismiss APS’s lawsuit. The court agreed that APS did not have a reasonably forseeable need for the property and dismissed the case. The court’s holding is the first case in Arizona where a public utility has been found to have acted arbiltrarily and capriciously in condemning private property. The court stated: “. . . there is a difference between APS not having plans to immediately build and not having immediate plans to build.” In the case, APS had no plans to construct on the easement it sought. Acknowledging that a utility company is entitled to pursue easements that allow for the utility’s reasonably forseeable future need to provide electricity, the court stated that “there needs to be a discernable differnece between that and the mere condemnation and acquisition of property and the stockpiling of property interests during difficut economic times and at a highly favorable reduced price in anticipation that the property condemned lies between two points on a map through which a power line might someday serve their purposes.” The court concluded that condemnation for reasonable forseeable future needs is a legitimate baisis for condemnation, but stockpiling property at prices and times advantageous to the utility without demonstrative future need is arbitrary and capricious.

Suit filed by the Wood Family to recover from the City of Goodyear for infrastructure improvements the Woods were obligated to make for a ballpark. The Woods alleged that the City was unjustly enriched because it received the improvements without paying for them. Case was settled in favor of the Wood Family for $1.2 million.

The Wood Family, represented by Dale Zeitlin, will receive $1.2 million in settlement of its claims for unjust enrichment against the City of Goodyear.  The lawsuit arose out of the Wood Family’s agreements to construct infrastructure improvements for a baseball park and spring training fields for the Cleveland Indians and Cincinnati Reds.  The Wood Family filed suit to recover for the value of benefits the City received that it allegedly did not pay for.  Zeitlin filed the lawsuit in an attempt to recover for the Wood Family, which through a series of events, found itself obligated for the construction of tens of millions of dollars of improvements without compensation by the City.

For the Republic/AZCentral article, click here.