2021

According to that trustworthy source Wikipedia, in drama, the term deus ex machina (“God from the machine”) “is a plot device whereby a seemingly unsolvable problem in a story is suddenly and abruptly resolved by an unexpected and unlikely occurrence. Its function is generally to resolve an otherwise irresolvable plot situation, to surprise the audience, to bring the tale to a happy ending, or act as a comedic device.” It is mostly considered a “lazy or cheap” trope.

And that takes us to the various federal, state, and local eviction moratoria that are (or were) in effect at various points in the covid epidemic. To us, those have mostly seemed like cases of kicking the can down the road (to use another overworn trope) because although couched as merely temporary withholding of the usual eviction remedy for nonpayment of rent, in a great number of cases the practical effect…

Continue Reading What The Deus Ex Machina? – Federal Court Complaint: California’s Eviction Moratorium Is A Taking

The U.S. Court of Appeals for the Eleventh Circuit’s recent opinion in A Flock of Seagirls LLC v. Walton County, No. 20-12584 (Aug. 5, 2021) isn’t about judicial takings, or even about eminent domain (even though a straight condemnation turned up in the factual background).

But this blog’s frequently flyers might want to take a read anyhow because it involves public and private rights of use in the dry-sand beach along the Florida coast. We know those issues are closely related to our faves like public trust, judicial takings and the like, so read on.

Here are the facts. The county holds an express easement along two beachfront lots for “a way of passage, on or by foot only” that the State of Florida earlier had exacted from the owners in the course of eminent domain proceedings. But if the county tries to use the easement for some…

Continue Reading We Already Have An Express Easement Allowing Public Foot Traffic On Private Beach. Walton County: Hold My Beer!

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We’re not entirely sure if this is “for real” or just an elaborate tongue-in-cheek spoof, but hey, there’s a website (“Give No Quarter!” and an invitation to “Become a Third Amendment lawyer”), a blog (“The Runt Piglet Squeals!”*), and the brief seems signed by an honest-to-goodness real lawyer and sure looks like it has a genuine CM/ECF stamp on the top, so we’re going to take it at face value.

[*The Third Amendment has been called the “runt piglet” of the Bill of Rights: short, overlooked, the butt of jokes.]

The Third Amendment Lawyers Association (ÞALA) [yes, that’s a thorn, not a “P” or a typo.] filed a short brief in the pending challenge by the Alabama Association of Realtors to the CDC’s eviction moratorium. Thanks to our colleague — a fellow Third Amendment admirer — for passing the brief along.

As you may (or more likely may…

Continue Reading Third Amendment Lawyers Association (“ÞALA”): Eviction Moratorium Violates … The Third Amendment

A short one from the South Carolina Supreme Court. In Ray v. City of Rock Hill, No. 28045 (Aug. 4, 2021), the court held that the city’s re-connecting its pipe that had previously flooded Ray’s property qualified as the “affirmative, positive, aggressive act” required by S.C. law as an essential element of a new inverse condemnation claim.

Short version of the facts. The city ran a stormwater pipe under Ray’s property. No record of any easement for the pipe. Ray’s property had “a history of sinking and settling[,]” and this went on for many years. Slip op. at 2. Eventually she sued for inverse. The lawsuit alleged that the flooding and damage to her property and home was caused by the deterioration of the city’s pipe.

Apparently unrelated to this, at about the time of the filing of the lawsuit, the city began maintenance work on a sewer line.

Continue Reading South Carolina: City Reconnecting Stormwater Pipes That Previously Flooded Land Is The “Affirmative, Positive, Aggressive Act” Triggering Inverse

Check out this recently-filed cert petition, which asks the Court to review a California Court of Appeal decision about exactions.

It’s a somewhat odd situation: the county issued a building permit, but conditioned it (yes, the county tried to put a condition in a ministerial building permit!) on the property owners recording a deed restriction that they will forever preserve the natural vegetation on a portion of the lot. “Visually important ridgelines” and all that.

Land use types will immediately understand our puzzlement. Building permits are the classic ministerial (“shall issue”) development permits. Meaning that the issuing official has no discretion to deny a permit if the applicant meets the straightforward requirements of the building code, and certainly doesn’t have the authority to grant a permit with conditions. That’s way outside the building department’s authority, and the applicant should be able to get a court to issue a…

Continue Reading New Cert Petition: Building Permit That Comes With Requirement To Preserve Plants Is An “Exaction”

You just have to love any case that starts with the sentence, “Dried mangoes form the core of this commercial dispute, which involves a Fifth Amendment challenge…” Shades of Horne!

Well, you can add mangoes to your “healthy snack” list (hat tip CJ Roberts) and include the Supreme Court of Guam’s opinion in Western Sales Trading Co. v. Genpro Int’l, Inc. (Guam), No. CVA19-023 (July 28, 2021), in your oeuvre of fruit/takings cases, because the court held that a territorial statute permitting a judgment creditor to take property from a third party (who obtained it from the judgment debtor) violates the Takings Clause. The court concluded that Guam Code Ann. §§ 23401-23406 (the “turnover statute”) works an unconstitutional taking in violation of the Fifth Amendment and the Guam Organic Act. Follow along.

The statute allows a judgment creditor to apply to the Guam courts for an…

Continue Reading Inorganic Fruit: Statute That Allows Creditor To Seize Property From Third Party Rec’d From The Debtor Is A Taking

Programming note: as we noted here, we’ve recently moved our email subscribers to a new service. If you are already subscribed to our email updates you should not need to do anything, except look for the emails coming from Feedblitz, not Feedburner. If you want to sign up for email updates anew, go here. If you experience technical issues, or receive duplicate email notifications, please let me know.

Now back to your regularly scheduled programming…

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Check out this Complaint, filed last week which asks the U.S. Court of Federal Claims to award property owners an unspecified amount (noted as $26 billion in the cover sheet) in just compensation for the taking of the plaintiffs’ property by the Center for Disease Control’s order temporarily halting residential evictions.

The Complaint alleges a physical invasion taking because it precludes “property owners from excluding [tenants] and leasing …

Continue Reading New Takings Complaint: $26 Billion For CDC’s Eviction Moratorium

All the topics you want to know about, presented by top-notch faculty from across the nation. Sessions include:

  • Property Rights as Civil Rights
  • Eminent Domain National Update
  • Just Relocation: Understanding the Law and Regulations to Ensure Fairness
  • Challenging Public Use: Lessons From a 67-Day Trial
  • COVID Takings
  • Federal Court and the Daubert Challenge: How to Prepare
  • Did the Supreme Court Signal a New Direction in Property Rights in Cedar Point Nursery?
  • How to Position Your Client for the Fallout When Projects Don’t Get Built
  • Rural Broadband and the Emerging Constitutional Challenges
  • Are Precondemnation Entry Statutes Still Valid After Cedar Point Nursery?
  • How Condemnor and Property Owners’ Counsel Prepare the Battlefield
  • How Will the Trillion Dollar Infrastructure Bill Impact Your Practice?
  • Ethics
  • …and more, including a full slate of networking and social events!

We’ve sold out the last few years, so don’t miss out. Room block now taking reservations. Continue Reading Join Us For The 39th Annual ALI-CLE Eminent Domain & Land Valuation Litigation Conference, Jan 26-29, 2022 (Scottsdale, AZ)

Iin North Mill Street, LLC v. City of Aspen, No. 20-1130 (July 27, 2021), the U.S. Court of Appeals for the Tenth Circuit held that a claim that the city’s denial of a rezoning application to allow residential development effected a taking was not ripe because the city’s process also allows a property owner to ask the city to allow site-specific development even if not in conformity with the current zoning, and the plaintiff had not availed itself of this process. Thus, the takings claim was not ready for judicial review under “final decision” Williamson County ripeness.

But the really interesting part of the opinion is a footnote. See slip op. at 15 n.9. There, the court noted that it is joining the majority of other courts in holding that “final decision” ripeness is not a matter of a lack of Article III jurisdiction. Rather, it is merely a…

Continue Reading CA10 Deepens The Split: Williamson County’s “Final Decision” Requirement Is Prudential, Not Jurisdictional

Screenshot 2021-07-26 at 16-12-49 Constitutional Law Fellow Pacific Legal Foundation

Heads up, property rights law nerds: looking at a career in public interest law? Here’s your chance for a one-year gig as a Constitutional Law Fellow at Pacific Legal Foundation.

You will be a “PLF Fellow,” a one-year position for law-school graduates. You will be added to litigation teams in on-going cases, receive hands-on legal-research and legal-writing training, and study the Classical Liberal principles that guide our work. You will also be encouraged and expected to take on additional challenges, including case development and communications efforts.

You will work on teams with junior and senior attorneys, adding your skills and perspective in order to elevate our team’s ability to win important victories for liberty. You will have the latitude to think big and the resources to execute. You will be at the forefront of shaping the law for all Americans.

In a nutshell, we’re seeking a young lawyer who’s…

Continue Reading Dream Job Alert: Con Law Fellow @PacificLegal