March 2010

More on the closely-followed case rent control regulatory takings decision from the Ninth Circuit, Guggenheim v. City of Goleta, No. 06-56306 (Sep. 28, 2009), which is currently being reheard en banc by the Ninth Circuit.

Earlier, we posted a link to Professor Richard Epstein’s short article, Takings Law Made Hard, in which he opines that “[j]udged by the normal canons of judicial review, the likely outcome is that the [Supreme] Court will do to … Guggenheim what it did to Judge Kozinski [in Hall v. City of Santa Barbara, 813 F.2d 198 (1987)]: reverse and enter judgment for the defendant.” 

Responding to Professor Epstein, Pacific Legal Foundation’s RS Radford has posted Takings victories made harder, pointing out the “technical deficiencies” in Epstein’s article that undermine his conclusions. Radford writes:

Whatever Prof. Epstein’s reasons may have been for rushing into print to condemn the Guggenheim decision, his…

Continue Reading Making Regulatory Takings Harder

In granting a special zoning exemption to Shelter House, Iowa City allowed it to build a homeless shelter on land next to Mr. and Mrs. Dahlen’s mobile home park. After losing their challenge to the zoning exemption, the Dahlens filed suit in federal court alleging the exemption violated their due process rights.

That claim was abandoned when the Dahlens amended their complaint to allege that they owned a portion of the Shelter House property by adverse possession, and the city’s approval of a site plan for the homeless shelter was an uncompensated taking of their property. The District Court dismissed the amended complaint because it was not ripe under Williamson County Regional Planning Comm’n v. Hamilton Bank of Johnson City, 473 U.S. 172 (1985).

In Dahlen v. Shelter House, No. 09-1909 (8th Cir. Mar. 24, 2010), the U.S. Court of Appeals for the Eighth Circuit agreed. The Dahlens…

Continue Reading 8th Circuit: Federal Takings Lawsuit Not Ripe

Calling the case “tempestuous,” the New Jersey Law Journal (via law.com) summarizes this week’s New Jersey Supreme Court oral arguments in Klumpp v. Borough of Avalon,No. A-49-09 (certification granted Nov. 10, 2009). See Michael Booth, Town’s Taking of Beachfront Property Without Compensation Tested at Court (Mar. 24, 2010).

In Klummp v. Borough of Avalon, A-49-09, a trial judge found and an appeals court agreed that an inverse condemnation of beach property resulted from Avalon’s passing of shore-protection regulations after a 1962 Nor’easter leveled the house once standing there.

The borough built sand dunes and vacated access roads to the property, but Edward and Nancy Klummp kept paying taxes — albeit for miniscule amounts. No condemnation case was filed nor was notice given of a taking.

Not until 1997, when they sought permits to rebuild, did Avalon assert the Klummps were no longer the owners, which led them to…

Continue Reading NJ Law Journal’s Summary Of The Klumpp Oral Arguments (The “Bizarre Condemnation”)

“Bust a deal and face the wheel.”

 – Aunty Entity (Tina Turner) Mad Max: Beyond Thunderdome

You make a deal, you live with it. Or use legal means to try and avoid your obligations. But in New York, if you don’t like a deal and can’t get out of it, apparently you try to condemn the other side.

The New York Supreme Court (Appellate Division, Fourth Department) has invalidated an attempt to take property, in this case land used by Syracuse University for “cogeneration facility and steam plants.” The taking, the court held, was purely private since it was an attempt by the condemnor to free its affiliate from its contractual obligations. Syracuse University v. Project Orange Associates Services Corp., No. 208 OP 09-01732, 2010 NY Slip Op 02225 (Mar. 19, 2010).

The deal made by the affiliate was economically “unsustainable,” and it had attempted on several occasions to…

Continue Reading NY Supreme Court (Appellate Division): Eminent Domain Can’t Be Used To Get Out Of A Contract

Courtesy of the New York Times is the backstory of Stop the Beach Renourishment, Inc. v. Florida Dep’t of Environmental Protection, No. 08-11 (cert. granted. June 15, 2009). This, of course, is the “judicial takings” case that was argued in the Supreme Court last December, and is now awaiting disposition (our summary page contains links to the briefs — including the amicus brief we filed — and other case materials).

And when the Times goes back, it really goes back:

The sands found Destin first. They started off eons ago, from the Appalachian Mountains, washing their way down the rivers that flow into the Gulf of Mexico. Winnowed to pure, hardy quartz, the sediment moved with the gulf’s currents and gathered into the necklace of narrow barrier islands that buffer Florida’s Panhandle. Time and tides refined the sand into a soft, sun-bleached powder. By the 1830s, when a Yankee…

Continue Reading Behind The Music: Stop The Beach Renourishment And Judicial Takings

Technology permitting, we are live blogging today’s oral arguments in Klumpp v. Borough of Avalon,No. A-49-09 (certification granted Nov. 10, 2009).

That’s the case in which the New Jersey Supreme Court is reviewing the decision from the AppellateDivision which held that the government can assert inverse condemnationin order to take property without compensation. (If that leaves you scratching your head, you are not alone — the New Jersey Law Journal called the decision “a bizarre condemnation.” More about the case here, including links to the Appellate Division’s per curiam opinion and the merits and amici briefs.

The court’s web site states the issue simply:

May a municipality occupy a property and obtain title through inverse condemnation without initiating condemnation proceedings under the Eminent Domain Act, N.J.S.A. 20:3-1 to -50?

Arguments are set to begin at 11:00 a.m., Monday, March 22, 2010 in Trenton. Although we are…

Continue Reading Live Blog Of New Jersey Supreme Court Oral Argument In Klumpp v. Borough of Avalon (The “Bizarre Condemnation”)

The latest skirmish in California’s mobile home rent control wars, this time from the California Court of Appeal, Fourth District, in two cases out of San Diego county, MHC Financing Ltd. P’ship v. City of Santee, No. D053345 (Mar. 15, 2010).

The cases present a convoluted series of facts and procedural twists which we are not going to rehash, but recommend that you read yourself. It’s a long opinion (50 pages), but it’s worth delving into the details. The court held:

  • First, the property owner “sustained no legally remediable injury” from the retroactive application of a mobile home rent control ordinance which the city adopted to correct errors in an earlier-adopted mobile home rent control ordinance (the erroneous ordinance was based on the original version of a proposed initiative ordinance, and not the modified initiative ordinance which was certified by petition) (slip op. at 15-19).
  • Damages are not an

…
Continue Reading California Court Of Appeal: Takings Claims Brought Too Early, Too Late, And No Damages For Violations Of The Right To Petition (Inter Alia)

In January, we posted the cert petition in Sharp v. United States, No. 09-820 (cert. petition filed Jan. 7, 2010) (Supreme Court docket entry here). In that case, the property owners are asking the U.S. Supreme Court to review the Ninth Circuit’s decision in United States v.  Milner, 583 F.3d 1174 (9th Cir. 2009), which held that a littoral owner was liable for trespass in waters held by the federal government for the benefit of the Lummi Nation, and for violation of the Rivers and Harbors Act formaintaining a “shore defense structure.” The structure was built onprivate fast (dry) land, but the shoreline eventually eroded up to it.

In the opinion detailed in this post, the Ninth Circuit held that “both the tideland owner and the upland owner have a right to anambulatory boundary, and each has a vested right in the potential gainsthat accrue from…

Continue Reading BIO And Amicus Briefs In Erosion Case: Is A Littoral Owner Trespassing When The Shoreline Erodes?

This just in: the U.S. Court of Appeals for the Ninth Circuit will be hearing Guggenheim v. City of Goleta, No. 06-56306 (Sep. 28, 2009) en banc.

The panel opinion in Guggenheim held that the city’s mobile home rent control ordinance was a regulatory taking, an issue the court had never considered before:

Daniel Guggenheim and others bring a facial challenge the the City of Goleta’s mobile home rent control ordinance. Guggenheim argues that the ordinance, which effects a transfer of nearly 90 percent of the property value from the mobile home park owners to mobile home tenants, constitutes a regulatory taking under Penn Central Transportation Co. v. New York City, 438 U.S. 104 (1978). We have fielded such challenges before, but have never reached the merits of the takings claim.

Slip op. at 13808-09. What review by the full Ninth Circuit probably portends is that whatever…

Continue Reading Ninth Circuit To Hear Rent Control Takings Case En Banc


What we’re looking at and listening to today. Some video, some podcasts.

  • A clip about the owner of what might be “the most condemned property in America.” It features a Virginia rancher whose property has been subject to condemnation 10 times, and who now is alleging an inverse condemnation claim because the VA DOT this time didn’t bother to exercise eminent domain before it interfered with his property rights. Joe Waldo, my Owners’ Counsel colleague, is also featured.
  • From the Federalist Society, a podcast or a video of a recent discussion about “Civil Pleadings Standards After Iqbal” for all of us federal civil procedure nerds.
  • A podcast of a debate on post-Kelo eminent domain reforms between George Mason lawprof Ilya Somin and U.Chicago lawprof Saul Levmore.

Continue Reading Multimedia Round-Up