November 2021

Like a lot of things in Gary, Indiana, the Housing Authority was “troubled.” So troubled, the feds took it over. The Housing Authority received big money from the feds, and was required to agree to an annual contribution agreement, by which the Authority ok’d a HUD takeover in the even of the Authority’s substantial default.

Next up, default. The city dissolved the Housing Authority’s Board of Commissioners, and HUD appointed one of its employees to be the administrator of the Authority and to serve as the Board of Commissioners. Back in business.

Part of the administrator’s … ahem … “Authority’s” business was redevelopment. The Authority decided to take 624 Broadway’s property (which, not surprisingly, included 624 Broadway) to do some mixed-use and affordable housing. The taking was undertaken under Indiana’s eminent domain procedures. Attempts to purchase the property were not successful, so the Authority instituted an administrative taking.…

Continue Reading Indiana App: Even When Federal Agency Steps Into The Shoes Of A Local Redevelopment Agency, It Has To Follow Local Rules

Screenshot 2021-11-17 at 13-11-12 The Realities of Takings Litigation

Another law review article worth reading. This one from lawprof Dave Owen, is about “The Realities of Takings Litigation” (forthcoming BYU Law Review). That title certainly got our attention – any time a law journal article is about ‘reality’ and takings, and includes empirical research, we’re going to read it.

Here’s the abstract:

This Article presents an empirical study of takings litigation against the United States. It reviews the cohort of takings cases filed against the federal government between 2000 and 2014, tracing each case from filing through final disposition. The result is a picture of takings litigation that is at odds with much of the conventional wisdom of the field.

That conventional wisdom suggests that most takings cases will involve alleged regulatory takings; that the most intellectually challenging issues will arise within the field of regulatory takings; and, more broadly, that takings litigation will play an…

Continue Reading New(ish) Article: “The Realities of Takings Litigation” (Dave Owen)

Screenshot 2021-11-15 at 11-33-55 Takings Localism

Be sure to check out the latest article from takings scholars and Nestor Davidson and Tim Mulvaney, “Takings Localism,” 121 Colum. L. Rev. 215 (2021) (pdf here).

Here’s the abstract:

Conflicts over “sanctuary” cities, minimum wage laws, and gender-neutral bathrooms have brought the problematic landscape of contemporary state preemption of local governance to national attention. This Article contends that more covert, although equally robust, state interference can be found in property, with significant consequences for our understanding of takings law.

Takings jurisprudence looks to the states to mediate most tensions between individual property rights and community needs, as the takings federalism literature recognizes. Takings challenges, however, often involve local governments. If the doctrine privileges the democratic process to resolve most takings claims, then, that critical process is a largely local one.

Despite the centrality of local democracy to takings, state legislatures have restricted local authority on property issues in a range of ways. States have expanded compensatory liability for owners facing local regulations, imposed procedural constraints on local authority, and limited the exercise of foundational local powers. Seen in its entirety, this state intervention—like contemporary “new preemption”—is acontextual and unduly rigid, cutting at the heart of the devolutionary principles underlying takings jurisprudence.

This unbalanced state role requires a recalibration of decisionmaking power between state and local government to foster intersystemic dialogue and reflection. States certainly play a crucial role in defining and protecting property interests, but they must justify choices to constrain local discretion when state and local values conflict. The extant state statutory regime dispenses with this justificatory task via a formalistic disregard for the contextualization that legitimates vertical allocations of authority. A corrective to decades of imbalance in state ordering of local authority would thus properly recognize “takings localism.”

Free up local governments, or tie their hands…which is better? After reading this, you decide.
Continue Reading New Article: “Takings Localism” (Tim Mulvaney & Nestor Davidson)

It takes a bit of work to work your way through the Arizona statute being challenged in the U.S. Court of Appeals’ opinion in CDK Globall LLC v. Brnovich, No. 20-16469 (Oct. 25, 2021). But we recommend you read the opinion and do the work nonetheless, because it tells us something about the way the Ninth Circuit views the right to exclude.

The statute, known as the “Dealer Law,” deals with the way car dealers treat the data they obtain from their customers. Data like the cars themselves, parts, services and the like, but also things like credit history and social security numbers. Like pretty much every other thing these days, that data is managed by proprietary software. Not surprisingly, there are specialized vendors who license the industry-specific, proprietary software. According to the opinion, those vendors in the past allowed dealers to extract the data from the proprietary platform…

Continue Reading CA9: Once You Open The Door For One, You’ve Opened It For Everyone

“This year, the Northwestern University Law Review presents a symposium on property and inequality, which brings together scholars of legal history, property, tax, land use, fair housing, environmental law, natural resources and water rights, family law, education, and constitutional law, to highlight new scholarship at the intersection of these fields.”

More information, as well as registration to attend remotely, here.

Nulr_symposium_posterContinue Reading Still Time To Sign Up For Northwestern L. Rev.’s Symposium: “Reimagining Property Rights in the Era of Inequality” (Friday, Nov. 12, 2021)

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Here’s one that has been on our radar for a while (we filed our amicus brief nearly two years ago). So long ago that it was the final case that remained on our docket from our time in private practice. It’s not even about takings (but we’re posting it anyway as one of those “barista’s privilege” things). This one involves the constitutional requirements for the Hawaii Legislature to adopt a new statute.

The Hawaii Constitution requires that before becoming law, a bill must pass three readings in each house on separate days. Seems pretty straightforward, no? Draft up a bill, read it in the House and in the Senate three times each, and make sure those readings are not on the same day. The reasons for the requirement seem pretty obvious. As our brief put it, a well-functioning republic presumes that those tasked with vigilance — the public …

Continue Reading Hawaii Supreme Court Guts-And-Replaces The Legislature’s “Gut-And-Replace” Switcheroo

This is one post I wish I didn’t have to write. I recently learned that long-time colleague, friend, and kindred spirit Jim Mee passed away in September.

Jim was one of the good guys, a true giant in the Hawaii land use and eminent domain Bar. His accolades are many, his list of professional accomplishments long. I considered him a mentor and a guiding force in the local scene — a colleague who never didn’t have the time to chat with you about difficult issues, even if he was not involved in the case. He’s the lawyer I’d call to trumpet my victories, or to commiserate with if a case didn’t go my way. I knew he’d understand: we were, most often, on the same wavelength.
When we were not, I counted on him to be that objective, outside “you sure you want to argue that?” voice. A lawyer…

Continue Reading Aloha, Jim Mee

There’s not a lot of direct takings love in the U.S. Court of Appeals for the Second Circuit’s opinion in Melendez v. City of New York, No. 20-4238 (Oct. 28, 2021), but there’s enough there that you might want to read it anyway.

Because the opinion resurrected the plaintiffs’ Contracts Clause claim. You heard that right, their Contracts Clause claim. The plaintiffs asserted that New York City’s ordinance that prohibiting “threatening” a tenant due to their Co-19 status violated free speech and due process rights, and the city’s ordinance voiding personal guarantees for commercial leases impaired their lease contracts. The district court dismissed the case for failure to state a claim, concluding that the guaranty ordinance served a legitimate public purpose and did not favor any class.

The Second Circuit affirmed dismissal of the free speech and due process claims, but also concluded that the complaint alleged a plausible…

Continue Reading CA2: NYC’s Eviction Moratorium May Have A Contracts Clause Problem