Eight Circuit Affirms Van Buren's Application of its Fireworks Ordinance to Annexed Land, Implicates Arkansas Takings Jurisprudence
J. Michael Cormack v. Candice Settle-Bashears, et. al., No. 06-2069.
In a decision implicating Arkansas state-constitutional takings jurisprudence, the United States Court of Appeals for the Eighth Circuit affirmed United States District Judge Judge Robert T. Dawson in a section 1983 case involving the City of Van Buren's application of a city ordinance prohibiting the sale of fireworks within the city limits to land newly-annexed by the city.
The plaintiff had a long-term lease for a fireworks stand on his property and when the city cited him for continuing to operate the stand after annexation, he sued in federal court, claiming that the application of the ordinance amounted to a regulatory taking. (He also appealed the citation, which case is still pending before an Arkansas District Court.)
Among the arguments on appeal was whether or not the "inadequate remedy" exception articulated in Williamson Planning Commission v. Hamilton Bank, 472 U.S. 172 (1985), applied. The exception, would have allowed Cormack to pursue his remedies in federal court without exhausting his state remedy (the remedy being an inverse condemnation action in state court.) The exception applies only when the state-law condemnation procedures are inadequate, and Cormack contended that "Arkansas has no remedy which would adequately compensate him for the taking," apparently arguing that the Arkansas courts are insufficient in their protection private property rights. The Eighth Circuit held that no such showing had been made and affirmed.
The court noted that the federal constitution provides "the federal baseline" for constitutional protection and noted that there was nothing in the record indicating that the Arkansas courts fail to provide this baseline of protection.
The Arkansas constitution declares "acquiring, possessing and protecting property" to be a fundamental right. Ark. Const. art. 2 sec. 2. Its analogue to the takings clause contains language unique among the fifty states: "The right of property is before and higher any constitutional sanction; and private property shall not be taken, appropriated or damaged for public use, without just compensation therefor." Ark. Const. art. 2 sec. 22 (emphasis supplied).
The Arkansas Supreme Court has not decided if these state-constitutional provisions provide a greater degree of protection for private property rights than the Takings Clause of the United States Constitution.
