2020

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Check this out, a newly-published article on takings by two eminent Florida takings practitioners, Alicia Gonzalez & Susan L. Trevarthen, Deciding Where to Take Your Takings Case Post-Knick, 49 Stetson L. Rev. 539 (2020).

If the title isn’t enough to grab your interest, here’s the description in the Introduction,

Post-Knick,both plaintiffs and defendants have an option available to them that was previously unavailable. This Article will discuss the options that litigants on either side now have in federal takings cases and evaluate which options are desirable depending on the objectives of a particular litigant. Part II will discuss the history of the state-litigation requirement and the theoretical underpinnings of the Williamson County decision in which the state-litigation requirement was imposed. Part III will discuss Knick and the Supreme Court’s reasoning for reversing its own precedent in Williamson County. Part IV will discuss the new options…

Continue Reading New Law Review Article: “Deciding Where to Take Your Takings Case Post-Knick

Here’s the Virginia Supreme Court’s order (over vociferous dissents) extending a ban on state courts issuing writs of eviction and processing unlawful detainer (eviction) proceedings:

“Effective August 10,2020, and through September 7,2020, pursuant to Va. Code § 17.1-330, the issuance of writs of eviction pursuant to unlawful detainer actions is suspended and continued. However, this suspension and continuation shall not apply to writs of eviction in unlawful detainer actions that are unrelated to the failure to pay rent.”

Order at 2.

Remind us again why there’s no such thing as a “judicial taking?”

As if the dissenters are reading our minds, you should jump forward to page 12 of the dissent by Justice Kelsey (joined by Chief Justice Lemons and Justice Chafin), who focus on the takings issues:

Next, prohibiting the issuance of a writ of eviction to a landlord with an unlawful detainer judgment arguably sanctions a continuing trespass…

Continue Reading Dissenting Virginia Supreme Court Justices: By Suspending Evictions, Courts May Be Liable For Judicial Takings

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Registration is up and online. Join us (online) for the 2020 Brigham-Kanner Property Rights Conference. Tuition: free, unless you want CLE credit (in which case it is a very modest $100). Because this conference has gone virtual, the usual Wren Building awards banquet to honor this year’s B-K Prize winner, lawprof Henry Smith, obviously won’t happen, but the speaking panels are a “go.” 

Sign up now and hold the date on your calendar. This is, in our opinion, the best one-day Academy-Bar-Bench conference about property rights that there is. And at such a great deal this year makes this one a “can’t miss.”

Here are the panel topics:

  • Where Theory Meets Practice: A Tribute to Professor Henry E. Smith Recipient, 2020 Brigham-Kanner Property Rights Prize
  • The Housing Crisis
  • Roundtable: Emerging Issues in Takings and Eminent Domain Law
  • The Reach of Government’s Confiscatory Powers Over Exigencies and Emergencies
  • The

…
Continue Reading Register Now: William and Mary Law’s Brigham-Kanner Property Rights Conference – Oct 1, 2020 (Virtual)

California law has decriminalized weed. Local governments, however, may regulate the use, sale, possession, and other things (like it can regulate other perfectly legal things). You know, police power kind of regulation.

Under that latter authority, the County of Santa Cruz adopted an ordinance that prohibits a medical weed facility from growing more than 99 plants. A dispensary was growing way more than 99 plants: more like 2,200 to be precise. This is Santa Cruz, man. 

Well, the Sheriff’s Department didn’t quite see it the same way. Under the authority of the ordinance, they seized the weed, and issued a notice of violation of the law. The dispensary sued for a taking (and other causes of action), and among the remedies sought was a return of the plants. The trial court demurred (without leave to amend, for all you California practitioners), on the basis that it isn’t a taking for…

Continue Reading Is It A Taking When Five-O Bogarts Your (Legal) Weed?

The Louisiana Court of Appeal’s opinion in Lowenburg v. Sewerage & Water Board of New Orleans, No. 2019-CA-0524 (July 29, 2020) is long (54 pages) and detailed. But for those of you interested in inverse condemnation liability stemming from the impacts on property owners from public construction projects, this is your case.

This consolidated appeal involves a group of homeowners, Plaintiffs-
Appellees (“Lowenburg Appellees”) and a non-profit church with a daycare center Plaintiff-Appellee, Watson Memorial Spiritual Temple of Christ d/b/a Watson Memorial Teaching Ministries, (“Watson Appellee”) who claim that they, along with their properties, sustained various types of damages as a result of the construction of the Southeast Louisiana Urban Drainage Project (SELA Project). This federally sponsored and funded project involved the construction of multiple drainage canals and was carried out by the United States Army Corps of Engineers (“USACE”) and Defendant-Appellant, Sewerage and Water Board (“Appellant”).

Slip op.

Continue Reading Construction Impacts From Public Project Are Not “Quality Of Life” General Damages, But Takings Requiring Compensation

Check out the U.S. Court of  Appeals’ opinion in Oneida Nation v. Village of Hobart, No. 19-1981 (July 30, 2020). The question was whether a local municipality has the power to regulate activity within the Village’s jurisdiction when that municipality is also wholly within the Oneida Nation.

The Nation runs the Big Apple Fest. The Village asserted that the Nation needed a Special Event Permit. Nope, the Nation responded, the Village is entirely within the reservation boundary, and this is taking place in Indian Country where local laws don’t apply. The Village asserted that the Nation had been diminished because allotted land had passed into fee simple ownership, and those portions were not in Indian Country.

After the Nation sought a declaratory judgment on these issues, the district court agreed with the Village. In the first post-McGirt decision, the Seventh Circuit reversed, concluding that the Nation —…

Continue Reading CA7: Municipality Can’t Regulate Activity On Oneida Land Because 1838 Treaty Remains Intact

Nothing much to see in the Massachusetts Court of Appeals’ opinion in Comstock v. Zoning Board of Appeals of Gloucester, No. 19-P-1163 (Aug. 3, 2020), a somewhat typical zoning dispute.

Neighbor vs neighbor, over whether permits issued by a municipality (and approved by the ZBA) to renovate and replace an existing — but dilapidated — residential garage, were valid. The replacement garage was to be built on the same footprint as the old garage, even though some elements of the design were different.

Issue: is the separate garage covered as a pre-existing nonconforming use under Massachusetts statutes? 

Short answer: yes, the nonconforming use statute covers separate buildings. The term “single-family residence” includes accessory structures. Nothing too surprising there.

But what caught our eye and makes us post this case here is footnote 11 on page 8 of the slip opinion, about the “certain level of protection to all structures…

Continue Reading Mass App: “Grandfathering” Is Term We’re Not Going To Use Because “it has racist origins”

California eminent domain law requires that if property taken isn’t used for the intended public use “within 10 years” of the adoption of the resolution of necessity, then the condemnor must offer to sell the property back to the (former) owner. Unless, that is, the condemnor adopts a new resolution “reauthorizing the existing stated public use.” In Rutgard v. City of Los Angeles, No. B297655 (July 30, 2020), the California Court of Appeal put some meat on the bones of the statute.

We suspect that this situation doesn’t arise all that often. Thus, from the eminent domain perspective, this one seems more interesting than important. But we also think that muni law mavens may find this important, because the court’s analysis focuses on local law:

This appeal presents four cascading questions:

First, does a public entity desiring to retain condemned property under section 1245.245 have to “adopt” its initial…

Continue Reading Cal App: When Condemnor Doesn’t Fish Within 10 Years Under Anti-Land Banking Statute, It Better Cut Bait Correctly

There’s a lot going on in the Michigan Supreme Court’s opinion in Mays v. Governor, No. 157335 (July 29, 2020). After all, the case involves claims for personal and property damages resulting from the Flint (Michigan) water crisis. That’s an issue we’ve been following that has also grabbed national headlines.

But if you takings mavens don’t want to take a deep dive into the non-takings parts of the opinions (that resulted in an “affirmed by an equally divided court” situation on the plaintiffs’ bodily injury claims and Bivens-type damage remedy), here are the takings highlights. We thought the most interesting part of the opinion is at pages 11 through 15, where the three-Justice plurality/majority concluded that the plaintiffs alleged property damage and injuries different from the public, and alleged enough to avoid the government’s motion for summary judgment.

The class action complaint in Mays alleged:

Plaintiffs brought…

Continue Reading Michigan SCT: Flint Takings Plaintiffs Alleged Unique Property Injuries, And That’s Enough To Survive Summary Judgment

How much can a condemnor alter the scope of the taking before the good faith offer required by state law also needs to be re-done?

That’s the question the Wyoming Supreme Court resolved in EOG Resources, Inc. v. Floyd C. Reno & Sons, Inc., No. S-20-0013 (July 23, 2020).

There, the condemnor’s original good-faith offer to the property owner was for a take of rights-of-way, easements, and surface use rights on 2,100 acres. Later, however, it amended the complaint to take only 70 acres. The owner objected to the amended take, arguing that the condemnor had not complied with the statute’s good faith offer requirement. The condemnor responded that the 70 acres it now wanted was within the 2,100 acres its original offer covered, so what’s the big deal?

It is a big deal in this case, held the court. The point of the good faith offer requirement …

Continue Reading If A Condemnor Alters The Scope Of The Take, A Good-Faith Offer Carries Over Only If The Amended Taking “Significantly Resembles” The Original Offer