September 2023

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“I’ll take ‘Words I Like to See’ for $800, Alex.“

In this Order, the U.S. Supreme Court agreed to hear two important property rights cases (are there any other kind?). Both are cases we’ve been following — and indeed are now playing a part in.

The first is detailed in this post.

In the second, Sheetz v. El Dorado County, the Court is finally getting to the long-unresolved question of whether an exaction or permit condition is exempt from the usual requirements of “logical nexus” and “rough proportionality” simply because the condition is imposed uniformly by legislation, and not ad hoc via an administrative or other permit decision.

We commented on the Sheetz case in this post (“Whether $23K Traffic Fee Is Proportional To One Single-Family Home Is Beyond The Ken Of Judges“) and won’t repeat the facts or comments here.

But here’s…

Continue Reading Cert Grant #2 – SCOTUS (Finally!) To Resolve Whether Legislative Exactions Are Subject To Nollan-Dolan-Koontz Nexus And Rough Proportionality

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“I’ll take ‘Words I Like to See’ for $800, Alex.“

In this Order, the U.S. Supreme Court agreed to hear two important property rights cases (are there any other kind?). Both are cases we’ve been following — and indeed are now playing a part in.

The first is Devillier v. Texas (the second is Sheetz v. El Dorado County which we’ve posted about here).

After what can only be described as a weird Fifth Circuit panel opinion, followed by an even more unusual post-cert petition en banc denial (complete with concurrals and dissentals), the Supreme Court granted the cert petition.

The Question Presented:

In First English Evangelical Lutheran Church v. County of Los Angeles, this Court recognized that the Fifth Amendment’s Takings Clause was “self-executing” and that “[s]tatutory recognition was not necessary” for claims for just compensation because they “are grounded in…

Continue Reading Cert Granted #1 – You Don’t Need The Government’s Permission To Obtain Just Compensation, Do You?

Before you get too excited by the U.S. Court of Appeals for the Sixth Circuit’s opinion in Catholic Healthcare Int’l, Inc. v. Genoa Twp., No. 22-2139 (Sep. 11, 2023), a spoiler up front: this may be a good ripeness decision, but this isn’t a takings case.

But you takings mavens may still want to take a quick look over the opinion for how the court deals with a ripeness argument in a case where the plaintiffs assert the Township violated their rights by denying (twice) its requests for a land use special permit.

The story is about a walking path created by Catholic Healthcare that contains fourteen “Stations of the Cross” “depicting the “story of Christ’s last day.” Slip op. at 1. The Township insisted that Catholic Healthcare obtain a special use permit, because the Township believed that the trail use is the equivalent of a church.

So…

Continue Reading CA6: “The distric court’s ripeness determination, in turn, was plainly mistaken”

Interested in the intriguing question of whether a court ruling can “take” property? If so, check out the latest cert petition on the issue.

Let’s start with the Questions Presented:

1. Is a state supreme court able to “side-step” the just compensation requirement of the Fifth and Fourteenth Amendments by simply removing preexisting property rights of owners to real property?

2. Is the North Carolina Supreme Court’s decision in holding that an established right of private property no longer exists a taking in violation of the Fifth and Fourteenth Amendments to the United States Constitution?

3. Is the North Carolina Supreme Court’s grant of title and ouster of property rights without payment of just compensation a violation of the due process clauses of the Fifth and Fourteenth Amendments to the United States Constitution?

You remember the last time that the Supreme Court ventured into this area, it wasn’t exactly a…

Continue Reading New Cert Petition: “It is Time to Recognize the Judicial Takings Doctrine”

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Thanks to our co-authors for the latest issue of this recurring update.

The International Right of Way Association’s Real Estate Law Committee produces twice-a-year reports “which contain summaries of eminent domain decisions and legislation within the United States.” (This is the “international” right of way association, so that last qualifier is important.)

And what is really nice is that they make the report available.

The laboring oars on this are really Brad Kuhn and Jullian Friess Leivas (both from the Nossaman firm), but they were kind enough to include us. Brad and Jillian wrote up more at the California Eminent Domain Report:

We recently had the pleasure of collaborating with Robert Thomas and Ajay Gajaria once again for the International Right of Way Association’s (IRWA) biannual report covering numerous eminent domain cases at local, state and federal levels from January through the end of June 2023. This

…
Continue Reading Just Published – IRWA’s “Summary of Major Eminent Domain Cases & Legislation: Jan 1, 2023 – June 30, 2023”

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According to the County, this is an “industrial” use,
incompatible with “agricultural” zoning

Note: sorry, this is one of those longer posts, but the topic is a serious one, so we felt it needed more than our usual cursory treatment.

How Can That Be?

We’ve been somewhat reluctant to post too much on the legal aspects of the Maui wildfires (other than to comment on the first lawsuit), just because it still seems “too soon.” The focus should be on aiding the victims and helping those who want to rebuild to do so, and not on premature blamestorming (see also this), legal theories, and  the “opportunities” this disaster presents (see also this, this.and this).

But we did want to clear one thing up. There are a lot of stories (see here, here, and here, for example), about the State of…

Continue Reading Can One Government Official Really Hold Up Necessary Water Uses? The Hawaii Public Water Trust In Action

On the day we celebrate Constitution Day (or should we say Khaaaaan-stitution Day?) we have to admit that pretty much nothing beats One Named Kirk’s reading of the Preamble. 

KIRK: This was not written for chiefs!

Hear me! Hear this!

Among my people, we carry many such words as this from many lands, many worlds. Many are equally good and are as well respected, but wherever we have gone, no words have said this thing of importance in quite this way. Look at these three words written larger than the rest, with a special pride never written before or since.

Tall words proudly saying We the People. That which you call “Ee’d Plebnista” was not written for the chiefs or the kings or the warriors or the rich and powerful, but for all the people!

Down the centuries, you have slurred the meaning of the words: “We…

Continue Reading This Was Not Written For Chiefs! Happy Constitution Day From One Named Kirk

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with apologies to Green Eggs and Ham

Our friend and colleague Thor Hearne (True North Law/Federal Takings blog) sent us this and when we asked, kindly consented to us sharing it with you.

Thor writes: “I was trying to explain to my granddaughters, ages six, three and four months what I do and the Trails Act cases where I represent property owners.  So, I wrote a Dr. Seuss summary of the Fifth Amendment and Trails Act takings.”

Check this out:

Dr. Seuss Explains Trail Act Takings

In the land where you and I reside,
Private property’s our joy and pride.
Everyone has a piece, maybe big, maybe small,
A place to hang your hat, a spot for a ball.

When government says, “Hey, we need your space!”
They must pay you, put a smile on your face.
Whether it’s a farm, or a tree, or a…

Continue Reading Green Backs And Land: Dr. Seuss (Thor Hearne) Explains Trails Act Takings

Remember after Knick when we predicted that the Supreme Court’s opening back up the federal courthouse doors wasn’t the end of the procedural gamesmanship, but merely the opening of a new chapter? That it was time to dust off your old Federal Courts hornbook, because things like the Eleventh Amendment, Rooker/Feldman, abstention, and similar, were going to spring up as the way to avoid the merits of takings claims? That’s we’re going to be experiencing Williamson County, Phase 2?

Here’s more proof (as if you needed it).

In EEE Minerals, LLC v. North Dakota, No. 22-2159 (Aug. 30, 2023), the U.S. Court of Appeals for the Eighth Circuit held that a takings claim against the State of North Dakota was barred from being litigated in federal court because the State can’t be sued in federal court – even if the right to just compensation…

Continue Reading CA8: 11th Amendment Trumps The Fifth Amendment – Just Because Just Compensation Is A “Self-Executing” Federal Remedy Doesn’t Mean You Get To Come To *Federal* Court