Posted By: Dwight Merriam, Partner, Robinson & Cole LLP
Every once in a while, some catchy turn of a phrase jumps out from even the most ordinary land use decision to grab you. For example, how many times have we now seen the phrase “an out and out plan of extortion”? The U.S. Supreme Court picked it up from a New Hampshire Supreme Court case, J. E. D. Associates, Inc. v. Atkinson, 121 N. H. 581, 584, (1981) and used it in Nollan v. California Coastal Commission, 483 U.S. 825, 837 (1987). I ran the phrase on one of the legal search engines and got 45 hits.
Here’s a new one, just out this week, that might make the big time: “whimsical ipse dixit.” It’s almost a Yogi Berra-ism, isn’t it (like “You can see a lot just by observing.”)? The literal Latin for ipse dixit is “he himself said it.” Add whimsical to that and translate it into plain speak and you have “an asserted but unproved position based on nothing more than caprice or a sudden turn of the mind.”
It looks like the Court of Appeals of Michigan in its November 25, 2008 decision in Jarvis Associates v. Ypsilanti, 2008 Mich. App. Lexis 2362, has embraced this as the threshold standard for a defensible plan and zoning decisions – so long as the zoning classification for a property is not so arbitrary that it is “whimsical ipse dixit” it will be upheld. At 5. You can get the decision at http://coa.courts.mi.gov/resources/asp/fs.asp, search “jarvis assoc”.
This is an interesting case at several levels – it is decided in part on substantive due process grounds (and some people think the doctrine is dead in zoning – ha!), it thrashes about in the mosh pit of the relevant parcel, and does one of those Flying Wallendas things with the Penn Central three-part takings analysis, avoiding tripping over categorical takings and landing on its feet on the side on no taking.
The facts. Jarvis Associates owns two contiguous parcels totaling 30 acres bought at two different times and zoned light industrial. They developed part, sold part, and sought rezoning of part to a business classification – what a fabulous final exam question for The Law of the Relevant Parcel 101. None of the government agencies liked the rezoning idea – they feared strip commercial development. The township board denied it and Jarvis sued.
The trial court ruled for the township, holding that Jarvis failed to demonstrate that the light industrial zoning was “so arbitrary that it amounts to a ‘whimsical ipse dixit’ and renders the land use regulation unreasonable.” The Court of Appeals affirmed the holding of no substantive due process violation and no taking.
On the taking front and as to the relevant parcel, the Court of Appeals applied the nonsegmentation rule – an unattractive double negative term which only reminds me of how you tell ants from bees from lobsters (ants 3 segments, honey bees 19, lobsters 14 in the cephalothorax alone – but I can tell the difference without counting segments – try serving me a baked stuffed honey bee and I will send it right back). The Court of Appeals also uses the “whole parcel” rule to describe the same doctrine, which I think sounds far more pleasant.
Walking the high wire of the Penn Central three-part analysis, the court said first, as to the character of the government’s actions, it’s only zoning. It is not a physical invasion.
As to value, applying the whole parcel rule, the loss from not getting the rezoning to business came to 61%. Not enough, said the court, to be a taking.
Finally, as to “IBE” — “Investment-Backed Expectations”– the court reasoned that Jarvis bought the land as light industrial and couldn’t expect much different. The court doesn’t cite the demise of the notice defense in Palazzolo vs. Rhode Island, 533 U.S. 606 (2001).
But the best still is the new “whimsical ipse dixit” test – I can’t wait to try it out.