2019

20170918_171025_Richtone(HDR)

Yes, this is detail from the Supreme Court’s front door.

This is the first in what will be a short series of five posts with thoughts on the landmark decision in Knick. In this installment, a crash course in the extensive doctrinal background necessary to understand why the Knick Court did what it did. Here are the related posts:

* * * *

The opinions in last week’s ruling by a sharply-divided Supreme Court, Knick v. Township of Scott, No. 17-647 (June 21, 2019) employed a lot of very evocative language: “aborning,” “Catch-22,” “loot,” “shaky,” “sue me,” “overthrows,” “smashes,” “smithereens” “first crack,” “points for creativity.” But ultimately, the most important…

Continue Reading Knick Analysis, Part I: After More Than 30 Years, Supreme Court Reopens The Federal Courthouse Door To Property Owners

This is the second in a series of five posts taking a look at last week’s landmark ruling by a sharply-divided Supreme Court, Knick v. Township of Scott, No. 17-647 (June 21, 2019). Here are the related posts:

In this post, we’ll take a look at the case which finally convinced the Supreme Court that it was time to revisit the Williamson County state-litigation ripeness rule, Knick v. Township of Scott, 862 F.3d 310 (3d Cir. 2017). What we call the Case of the Zombie Zoning Inspectors. 

* * * *

The Township of Scott, Pennsylvania, apparently…

Continue Reading Knick Analysis, Part II: The Court Finds A Vehicle In A Zombie-Zoning Case

IMG_20190621_150358

This is the third in a series of five posts taking a look at last week’s landmark ruling by a sharply-divided Supreme Court, Knick v. Township of Scott, No. 17-647 (June 21, 2019). Here are the related posts:

In this post, we’ll take a deeper dive into the three opinions: Chief Justice Roberts for the five-Justice majority (Roberts, Thomas, Alito, Gorsuch, Kavanagh), Justice Thomas’ short stand-alone concurring opinion, and Justice Kagan’s dissent (joined by Justices Ginsburg, Breyer, Sotomayor, and Kagan).  

* * * *

BLUFs

Here are the bottom lines up front, the lenses though which we think you should read each of…

Continue Reading Knick Analysis, Part III: What It Means To “Take” Property Without Just Compensation – “A bank robber might give the loot back, but he still robbed the bank.”

Ill_be_back

This is the fourth in our series of five posts with thoughts on the landmark decision in Knick. In this installment, the dissent. Related posts:

* * * *

We cannot mask our disappointment with the dissenting opinion. We usually appreciate Justice Kagan’s opinions and measured approach, even while dissenting. And after the first oral arguments in October, we thought there was a chance, albeit slim, that she might see things Ms. Knick’s way.

But even though we were pretty sure she would rule for the government, we didn’t anticipate as vehement a defense of Williamson County‘s “no violation until you sue the government for…

Continue Reading Knick Analysis, Part IV: Why Not Let Sleeping Dogs Lie? The Dissent And Stare Decisis

One does knick meme

This is the fifth and last in our series of posts with thoughts on the landmark decision in Knick. In this post, we’ll be puling out our crystal balls, and doing a bit of forecasting. Here are the related posts:

 * * * *

The execrable state-litigation ripeness requirement is overruled. Ding-dong, the wicked witch is dead. No longer will our only federal review of a federal constitutional issue be limited to petitions for cert at SCOTUS. We can “simply” go to federal court. 

So now what?…

Continue Reading Knick Analysis, Part V: What’s Next?

A lot is being written about Friday’s Supreme Court opinions in Knick v. Township of Scott, No. 17-647 (U.S. June 21, 2019) (including us). Here’s a sampling. 

…
Continue Reading Knick Round-Up

Kungfu

We’ll be doing a longer post with our thoughts on the U.S. Supreme Court’s landmark ruling in Knick v. Township of Scott, No. 17-647 (June 21, 2019). But here’s the big picture.

It appears that at least five Justices finally seem to understand what we in the property bar have been saying for decades – that the essence of a federal “takings” claim against a local or municipal government is that “by regulation, you have deprived my property of ‘productive use’ [as Chief Justice Roberts noted on page 14 of the slip opinion], and you have not compensated me.” So it is enough that the government hasn’t paid me, and I have no obligation to “ripen” my federal claim by chasing down the local government for compensation in state court.

So nearly 100 years after Justice Holmes famously opined for the Court in Pennsylvania Coal Co. v. Mahon, …

Continue Reading Williamson County Overruled: After Nearly A Century, Supreme Court Finally Has Figured Out What A Regulatory Takings Claim Looks Like

One does knick meme

Property lawyers, dust off your Federal Rules of Civil Procedure, and federal judges your long vacay from dealing with regulatory takings and inverse condemnation cases is over, because this just in: by a 5-4 margin (Chief Justice Roberts authored the majority opinion, with Justice Kagan writing the dissent), the U.S. Supreme Court today finally (finally!) overruled the state-litigation prong of the Williamson County ripeness doctrine. Knick v. Township of Scott, No. 17-647 (June 21, 2019).

Yes, overruled. Not trimmed around the edges. Overruled. 

Here’s what our quick skim turns up as a critical passage:

The Court in Williamson County relied on statements in our prior opinions that the Clause “does not provide or require that compensation shall be actually paid in advance of the occupancy of the land to be taken. But the owner is entitled to reasonable, certain and adequate provision for obtaining compensation” after a taking.

Continue Reading “The state-litigation requirement of Williamson County is overruled.”

Here’s what we’re reading today:

  • New Ruling In Maui Water Case Still Doesn’t Resolve Old Dispute (Honolulu Civil Beat) – about the Hawaii Intermediate Court of Appeals’ recent unpublished memorandum opinion in a long-ongoing water law fight on Maui. The long and the short of it is the court held that whether a short-term license from the State to use water (month-to-month, max one-year as the statute requires) is “temporary” or not (these licenses have been renewed for 18 years to allow the administrative process to be completed) is a factual question that can be resolved by summary judgment. Court held no. In our view, these things operate much like preliminary injunctions, which although they are temporary in nature, can stretch out for quite a long time while the wheels of justice grind. Cert application to the Hawaii SCT coming, for sure. Any guesses on which way this will come

…
Continue Reading Thursday Round Up: Hawaii Water Law, “New” Property, The Edge Denied!

Here’s a case that’s pending in the New York Court of Appeals that has been briefed and is awaiting argument. 

In Natural Fuel Gas Supply Corp. v. Schueckler, No. 17-02021 (Nov. 9, 2018), the Appellate Division answered this question:

This appeal therefore presents a novel question of condemnation law: can a corporation involuntarily expropriate privately-owned land when the underlying public project cannot be lawfully constructed?

Slip op. at 1. 

The court stated it clearly: “We answer that question firmly in the negative.”

Like many projects, in order to be built this natural gas pipeline had a long and complex checklist. It needed approvals of FERC — a certificate of public convenience — under the Natural Gas Act. And certain approvals under the federal Clean Water Act. Which in turn meant it needed state enviro checkoffs, here a water quality certificate from a New York agency. It also needed to…

Continue Reading NY Court of Appeals Considering Whether A Pipeline Can Take Property For A Project That Can’t Legally Be Built