April 2020

We’re certainly not going to delve in detail into the 109 single-spaced pages of the majority and dissenting opinions in the New York Court of Appeals’ ruling in Regina Metro. Co., LLC v. N.Y. State Div. of Housing and Community Renewal, Nos. 1-4 (Apr. 3, 2020). New York’s rent control law is infamously labyrinthine, and we’re by no means learned in its nuances (and have no desire to become so). But there’s a lot to digest in the opinion, and it might be worth your time to dig into certain parts. 

For our purposes, here is the short version. While an appeal was pending in these cases, the legislature amended the statute (“sweeping changes”) and extended the statute of limitations and “the nature and scope of owner liability in rent overcharge cases.” The question before the court was whether the new requirements govern the case. In other words, whether…

Continue Reading Shades Of Eastern Enterprise: Applying “Meaningful” Rational Basis Review, NY Court Of Appeals Shields Retroactive Rent Control Law From Takings Analysis

Here’s another complaint (here’s the first) challenging a state’s business shut-down order as a taking. This time it is Colorado, and the complaint seeks an injunction and compensation.

Here are the highlights:

  • “As a result of the [shutdown] Orders listed above that restrict the gathering of more than ten people at a time, the plaintiff’s parish has ceased conducting weekly Mass, has ceased offering the Eucharist, and has ceased hearing confessions. The defendants’ conduct has impaired the plaintiff’s ability to freely exercise his religious faith, in violation of the Fifth Amendment.” 
  • “The plaintiff is a cook at a local restaurant.” The restaurant is now closed. “Because the defendants’ Orders have limited the use of the plaintiff’s place of work for the owner of the premises, such a limitation constitutes an exercise of eminent domain over those premises.” 
  • “An increase of less than 1% in our death rate is

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Continue Reading Another Complaint Challenging Emergency Shut-Down Orders As Takings

Suppose you’re walking your pooch “Kaiser” in the local dog park. Another owner is walking his dog “Odin” in the same park. Off-leash Odin attacks you and Kaiser, unfortunately killing Kaiser.

Those bastards took Kaiser, my property! A total wipeout Lucas taking (after all, you plainly have been 100% deprived of both the use and value of poor Kaiser, who is no more). 

So you sue. But who do you sue? The owner of the miscreant Odin? Nope, not a state actor, no power of eminent domain. So not liable for a taking. How about Odin himself? After all, courts are entertaining lawsuits by ape plaintiffs, so why not dogs as defendants? Nope, besides the standing problem, like his master, Odin isn’t a state actor and does not have the power of eminent domain.

How about the animal shelter, because it is operated by the county? Genius!

Thus, your…

Continue Reading CA4: No, Your Dog Being Killed By Adopted Violent Shelter Dog Isn’t A Taking

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Here’s an article, just published in the American Planning Association’s monthly magazine, Planning (read the entire April issue here), summarizing the Ninth Circuit’s latest foray into regulatory takings, Bridge Aina Lea, LLC v. State of Hawaii Land Use Comm’n, No. 18-15738 (9th Cir. Feb. 19, 2020).

In Legal Lessons – What Constitutes Loss? we write about the decision and the court’s conclusion that losses short of 100% do not qualify for a per se Lucas taking, and are not enough to tip the scales for a Penn Central taking either. The opinion also adds to the growing confusion about whether the regulatory takings doctrine deals with use or value.  

Our thanks to the APA for asking us to contribute, for making the editing process so easy, and for allowing reprinting of the piece here. Check it out. 

Legal Lessons – What Constitutes a Loss? Planning Magazine (Apr. Continue Reading New Article: Ninth Circuit’s Latest Foray Into Lucas And Penn Central Takings

Wikipedia

Thanks to lawprof Josh Blackman for pointing out this Order from a federal district court dealing with the “is the government’s outlawing bump stocks a taking” question. See Blackman, District Court Finds Bump Stock Ban May Constitute a Taking, Because the Federal Government Lacks a Police Power (Volokh Conspiracy). 

We’ve delved into the issue before (“One From The Gut: Outlawing ‘Bump Stocks’ Not A Taking“), concluding that the likelihood of success on these type of claims — is the DOJ changing its mind about whether a bump stock qualifies as a banned “machine gun” — is remote. Not because there’s a jurisprudentially-consistent reason why, but just because it is.  

The court’s order denying the federal government’s motion to dismiss (without prejudice) is both cheeky (see above re Wikipedia) and an enjoyable read (“For example, state governments have determined that cocaine should be illegal because of the…

Continue Reading Federal Court: “Takings law is difficult” (But Let’s Not Cross That Bridge Just Yet In Bump Stock Case)

We don’t usually post trial court decisions, but when one comes along that tees up some interesting issues and is likely to get pushed further up the food chain, we’re all ears.

That’s the case with the Eastern District of North Carolina’s order in Zito v. North Carolina Coastal Res. Comm’n, No. 2:19-CV-11-D (Mar. 27, 2020). A North Carolina property owner alleged that the application of the Commission’s shoreline setback rules are a taking, and filed a suit in federal court. Yes, this is a federal court deciding a regulatory takings claim (yay, Knick). 

The property owners did all of the right things to ripen their claim. They obtained a final agency decision (helpfully labeled the “Final Agency Decision”) and were denied a variance. And although the owners filed their federal lawsuit before Knick, by the time the District Court was considering the Commission’s motion to dismiss, …

Continue Reading Backing Back Into Williamson County: Federal Court Case Tees Up 11th Amendment Immunity For Takings