Legal Notes

Land Use and Planning
Novel Approach to Takings Fails
In 1989, Leon County, Fla. rezoned a tract of land from an intense development category permitting apartment complexes of 43.6 units per acre, to a category that only allowed single family housing.

The tract's owners, who had purchased the property in 1972 and 1973, went to court claiming the county had violated their due process rights because the new zoning took away their right to build high-density apartment complexes - a right they claimed was "vested" under state law because of their reliance on the county's prior zoning.

The federal District Court for the Northern District of Florida ruled in favor of the county and against the owners, finding that the owners had no basis for bringing a suit claiming compensation for a "takings" based on violation of their right to due process.

The 11th Circuit affirmed the lower court's ruling, observing that at least two U.S. Supreme Court cases place all constitutional limits on regulatory takings under the Takings Clause alone.

Villas of Lake Jackson vs. Leon County, No. 95-3698 (11th Cir. filed Sept. 8, 1997).

9th Circuit Rejects Takings Claim
Landowners filed an application with King County, Wash. to subdivide their 3.1 acre property located on a dead-end road into 11 lots. Their application was rejected by both the hearings examiner and the County Council because of inadequate access.

The property owners appealed to the state court. They lost at the lower level, and when their appeal to the next level was moved to a federal district court (at the request of the county), they lost again.

Their final appeal to the 9th Circuit Court also failed. The court found in favor of King County, noting in its decision that the county's actions would constitute a "taking" if the landowners could prove that the county denied their application, "without advancing a legitimate state interest or under circumstances denying them any economically viable use of their property."

Macri vs. King County, No. 95-35709 (9th Cir., filed Sept. 17, 1997).

Employment and Labor

Officers Feel the Burn Without Overtime Pay
The Special Response Team (SRT) of the Metro-Dade Police Department (MDPD)brought an action against Dade County, Fla. under the Fair Labor Standards Act (FLSA), 29 U.S.C. Sections 201 et seq., to recover overtime pay for off-duty hours spent performing physical fitness training. The SRT is a specialized unit of the MDPD that assists police and other government agencies engaged in potentially life-threatening situations.

SRT call-outs often require special weapons and techniques to minimize harm to officers and civilians in high-risk circumstances. Good physical fitness is a vital quality for individuals assigned to the unit. These officers are frequently monitored to ensure that they are physically capable of performing SRT functions.

SRT officers brought the suit for overtime pay based on the belief that off-duty training was necessary in order to prevent loss of endurance, although the county never directed these officers to engage in any specific off-duty routine.

The District Court for the Southern District of Florida entered a judgment in favor of the officers, finding that their off-duty physical training was compensable work under the FLSA.

The 11th Circuit reversed, relying on U.S. Department of Labor regulations to conclude that the officers had not performed compensable work. The court of appeals emphasized that physical training was voluntary within the meaning of the regulations and that the county did not require the officers to develop unique physical skills.

Dade County vs. Alvarez, No. 96-4470 (11th Cir. filed Oct. 16, 1997).

Revenue and Taxation - County Gambles on Video Poker Tax
Jasper County, S.C. adopted an ordinance that placed a license fee on businesses leasing video poker machines. The ordinance separated gaming businesses into different classes and assigned a separate rate to each class, e.g., $200 for the first $2,000 on income from the business and $40 on each $1,000 thereafter.

Collins Holding Corporation paid the tax as required, but filed suit in the federal District Court of South Carolina, claiming that the ordinance was invalid because it conflicted with state law. The district court agreed with Collins and held that the license fee exceeded that allowed by the state and awarded Collins a refund.

The county appealed the decision to the 4th Circuit. However, it returned the case to the lower court to determine whether the case could be heard at all in a federal court without violating the federal Tax Injunction Act. The act, which consists of one sentence, prevents federal district courts from deciding cases involving taxes collected under the authority of state law if an "efficient remedy" is available in the state courts.

As a result, the matter remains in litigation. The district court must now determine whether the Jasper County ordinance is "a tax or a fee," and if a tax, whether the case can be resolved in a state, rather than a federal court. The moral: As a county, you probably can't resolve a tax case in federal court.

Collins Holding Corp. vs. Jasper County, S.C., No. 96-1354 (4th Cir., filed Sept. 3, 1997).