2021

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Another day, another property rights decision from SCOTUS. This time, the unanimous per curiam opinion in a case we’ve been following, Pakdel v. City & County of San Francisco, No. 20-1212 (June 28, 2021).

[Disclosure: our PLF colleague Jeff McCoy is lead counsel on this case, and we pitched in with help on the petition and related.]

Because we’re directly involved in this one, we’re not going to take a deep dive analysis. But the opinion is short, and the result clear: grant, vacate, remand, with instructions:

On remand, the Ninth Circuit may give further consideration to these claims in light of our recent decision in Cedar Point Nursery v. Hassid, ante, p. ___.

Slip op. at 3, n.*.

The Pakdels sued San Francisco for a regulatory taking because of the city’s requirement that as a condition of converting a tenancy-in-common to a condominium, the owners must …

Continue Reading Another SCOTUS Property Rights Win, This Time On Williamson County’s “Final Decision” Requirement

Keep out

In this post — the second in a series of deeper dives that we’re posting about last week’s U.S. Supreme Court opinion in Cedar Point Nursery v. Hassid, No. 20-107 (June 23, 2021) — we’ll be covering more on the “right to exclude,” how the Court treated our old frenemy Pruneyard, and how the majority dealt with that case’s holding that the California Supreme Court’s rule that shopping center owners must allow use of their properties as forums for public speech was not a judicial taking.

Here are all of the posts in our Cedar Point series:

And in case…

Continue Reading Cedar Point Part II: Common Sense (Keep Out) And Common Law (The Right To Exclude)

More good takings news, hot off the press.

Before Cedar Point came down last week, we were all set to let you know about the Eleventh Circuit’s opinion in South Grande View Dev. Co., Inc. v City of Alabaster, No. 18-14044 (June 21, 2021), in which the court affirmed a jury verdict that the city’s reduction in the developable density on residential-zoned parcel (from R-7 and R-4) to R-2) was a Penn Central regulatory taking. 

The city appealed on an evidentiary issue, arguing that the jury should not have heard evidence of its reasons for downzoning the property, which were not relevant to the takings question and only went to whether the government acted arbitrarily and capriciously (a due process inquiry). The city also raised a ripeness question: the owner had not sought a variance from application of the new zoning, and indeed had never asked the city…

Continue Reading 11th Circuit Affirms Penn Central Jury Verdict For Rezoning Resulting In 86% Loss Of Value

Screenshot 2021-06-23 at 14-25-38 Takings and Eminent Domain After Cedar Point What Practitioners Need to Know

The ink’s not quite yet dry on the U.S. Supreme Court’s landmark decision in Cedar Point Nursery v. Hassid, No. 20-107 (June 23, 2021), but we’re already ready to roll with a program about what this decision means for you and your clients, and for takings law.

Find out from the experts in a one-hour webcast, “Takings and Eminent Domain After Cedar Point: What Practitioners Need to Know” from ALI-CLE. Registration and more information here.

In Cedar Point, a 6-3 majority affirmed a bright-line rule that physical invasions of whatever duration are takings, and held that “[w]henever a regulation results in a physical appropriation of property, a per se taking has occurred, and Penn Central has no place.” Questions about duration of the invasion “bears only on the amount of compensation.”

Our highly respected faculty will discuss the effect of this fascinating case on takings…

Continue Reading Join Us Friday, July 16, 2-3pm ET: ALI-CLE’s “Takings and Eminent Domain After Cedar Point: What Practitioners Need to Know”

In this post — the first in a series of deeper dives that we’ll be posting about over the next few days about yesterday’s U.S. Supreme Court opinion in Cedar Point Nursery v. Hassid, No. 20-107 (June 23, 2021) — we’ll be covering the background of the case, and the heart of the majority opinion.

Here are all of the posts in our Cedar Point series:

And in case you missed the live webcast on Friday, July 16, 2021 that featured expert analysis of the case, please don’t miss listening to the recording of ALI-CLE’s “Takings and Eminent Domain After …

Continue Reading Cedar Point Part I: SCOTUS’s Strawberry Letter 23 To Property Rights

Keep out

We haven’t had time to read it in detail yet, but here’s the slip opinion in a case we have been following for a long time, Cedar Point Nursery v. Hassid, No. 20-107 (June 23, 2021).

Writing for a six-Justice majority (no one went wobbly!), Chief Justice Roberts concluded that California’s labor regulations, which require that an owner of agricultural property allow union labor organizers to enter the property to access potential union members, is a per se taking.

Robustly reaffirming the rule that a physical invasion is a categorical taking, the majority concluded:

The upshot of this line of precedent is that government-authorized invasions of property—whether by plane, boat, cable, or beachcomber—are physical takings requiring just compensation. As in those cases, the government here has appropriated a right of access to the growers’ property, allowing union organizers to traverse it at will for three hours a day, 120…

Continue Reading Well, You Really Can Say “Keep Out” In California (Cedar Point – A Per Se Taking)

When the relief sought in a lawsuit is to compel the State to enact legislation a particular way, you have to know that in most courts that dog won’t hunt. Separation of powers, political question, et cetera, et cetera. 

So even though it isn’t about takings or compensation, you should check out the Iowa Supreme Court’s opinion in Iowa Citizens for Community Improvement v. State of Iowa, No. 19-1644 (June 18, 2021), because in that case, the court rejected the claims of “[t]wo social justice organizations” in a lawsuit that asked the court to order the legislature “to enact legislation that will compel Iowa farmers to take steps that will have the effect of significantly reducing levels of nitrogen and phosphorus in the Raccoon River.” Slip op. at 4.

Hold on, you say, on what basis might a court order another co-equal branch to do something like this?

Continue Reading Iowa: No Standing To Ask Court To Rule That Public Trust Doctrine Requires Legislation To Regulate Farmers

For your Monday reading, Amnon Lehavi, Temporary Eminent Domain, 69 Buff. L. Rev. 683 (2021). From the Abstract:

Times of emergency call for drastic measures. These steps may include the physical takeover of privately-owned assets by the government for a certain period of time and for various purposes, aimed at addressing the state of emergency. When will such acts amount to a taking, and what compensation should be paid to the property owner? How do temporary physical appropriations during times of emergency diverge, if at all, from temporary takeovers in more ordinary times?

The doctrinal and theoretical analysis of potential temporary takings has been done mostly in the context of non-physical government intervention with private property, such as when a local government imposes a temporary moratorium on land development until a certain condition is met. This Article focuses, however, on less investigated scenarios of temporary physical takeovers or other forms of government invasions. It seeks to identify the differences between a temporary invasion and a permanent occupation of property considered a per se taking under the Loretto rule. In so doing, this Article argues that while the alleged distinction between prevention of public harm and promotion of public benefit often proves untenable in evaluating whether a permanent government measure constitutes a taking, it might make more sense in exploring temporary acts.

Temporary eminent domain—referring here to various types of acts amounting to time-limited physical takings, even if not initially recognized as such by the government—may diverge from permanent eminent domain in yet another key element: identifying the basis for just compensation. Under long established (although often criticized) rules, compensation for a permanent taking is based on identifying the “fair market value” of the rights taken, while ignoring the effects that the public use for which the underlying asset is taken might have on the property’s long-term value.

The allegedly parallel metric used in the case of temporary takings,one of “fair rental value,” may often prove inadequate, both practically and normatively. This Article argues that because of unique aspects of temporary physical takings, legal rules on compensation should often seek to identify lost profits or actual damage. Moreover, in some cases, in which there is a direct relation between the pre-appropriation use of the asset and its post-appropriation use by the government, just compensation might also be based on a certain portion of the value of the public use. This is especially so when the time-sensitive value of the asset during such public use is particularly high. On this point, the Article offers an analogy to rules pertaining to compulsory licenses for patents.

Check it out.
Continue Reading New L. Rev. Article: “Temporary Eminent Domain”

Here’s the latest in a case we’ve been following.

In Jim Olive Photography v. Univ. of Houston, No. 19-0605 (June 18, 2021), the Texas Supreme Court affirmed the court of appeals, concluding that a public university’s unauthorized use of a photograph on its website was merely copyright infringement, and not a taking. 

The opinion is short, and mostly mirrors the rationale of the court of appeals, so if you just want to read our summary of the court of appeals’ opinion, you may stop here. But if not, read on.

The facts: Jim Olive took a photograph that the University of Houston used on its website after stripping off all attribution. When Olive discovered the unauthorized use, he demanded the University take it down. It did, but it refused to pay for its use. Olive sued in a Texas state court for taking his intellectual property…

Continue Reading Texas: Makin’ Copies Of A Photograph Is Copyright Infringement, Not A Taking

In Protect and Preserve Kahoma Ahupuaa Ass’n v. Maui Planning Comm’n, No. SCWC-15-0000478 (June 16, 2021), the Hawaii Supreme Court reaffirmed the idea that all members of the public have a right under the Hawaii Constitution to a “clean and healthful environment,” and that this is a “property” right entitled to due process protection under the state constitution. We say “reaffirmed” because this is merely the latest case so holding (see here for the first).

Like a lot of important Hawaii cases, this one came up in the context of standing to participate in the administrative review process. A Maui developer sought a permit under the Hawaii Coastal Zone Management Act from the Maui Planning Commission for an affordable housing project near Lahaina. Members of the Association, all of whom asserted they owned property adjacent to the project, asked the Planning Commission to intervene in the…

Continue Reading HAWSCT: Anyone Claiming That An Affordable Housing Project Might Impact Their Property Interests In A “Clean And Healthful Environment” Has Standing To Object