Agenda - Planning Commission - 09/01/2005

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August 10, 2005 -- Page 3 public purpose, the takings challenged here satisfied the public-use requize~ ment of the Fifth Amendment. Economic development qualified as a public use, Importantly, the government's pursuit of a public purpose often benefited individual private parties. The public could be as well or better served through an agency of private enterprise than through a department of the government. Consequently, public ownership was not the sole method of promoting the public purposes of community redevelopment projects. see also: Brown v. Legal Foundation of Washington, 538 U.S. 216, ]23 & Ct 1406, 155 L. Ed. 2d 376 (2003). see also: 99 Cents Only Stores v. Lancaster Redevelopment Agency, 237 F. Supp. 2d 1123 (200]). Due Process -- City erects barricades blocking Dairy Queen drive thru Affords no hearing to Dairy Queen owner Citation: Warren v. ~iry of Athens, 6th U.S. Circuit Court of Appeals, No. 03~3580 (2005) The 6ch U.S. Circuic has jurisdiction over Kentucky, Michigan, Ohio, and Tennessee. OHIO (06/15/0~) -- Since 1981, Warren had owned a Dairy Queen on an inter- section, abutting a public road. There had been a Dairy Queen in that location for over 50 years. In 1998, Warren decided to construct a "drive thru" Iane for the business. When it opened in 1999, drive thru customers made up almost half of the business. Three years later, the city decided the drive thru'was atraffic hazard. ~t then placed barricades blocking off the drive thru: BecaUse of the barricades, refuse 'trucks could not pick up trash, recycling, and waste grease at the back of the restaurant. Warren experienced a 22 percent drop in sales. Warren sued, claiming the city was violating his procedural due process rights by erecting the barricades without a hearing. The court ruled in his favor. The city appealed. DECISION: Affirmed. The city violated Warren's procedural due process fights. Procedural due process generally required the state to provide a person with notice and an opportunity to be heard before depriving that person of a property interest. First, the court determined Warren was deprived of a property fight. The right of access was especially important for a business abutting a public street. /\ [andowner's property interest was infringed upon even when a government blocked off only part of the property's access to public roads. Furthermore, Warren bore the sole burden of the bamers placed by the city. 2005 Quinlan Publishing Group. Any reproduction is prohibited. For more intormation please call (617) 542-0048. 65