April 2024

If there’s a money quote in yesterday’s opinion by the Supreme Court of Nevada which “wholly affirm[ed] a trial court judgment awarding $48 million in just compensation for Las Vegas’s regulatory taking in City of Las Vegas v. 180 Land Co., LLC, No. 24-13605 (Apr. 18, 2024), it might just be this sentence:

Although the City rejected 180 Land’s development proposals, its representatives had previously recognized the site’s ability to be developed residentially.

Slip op. at 8.

That alone should tell you where this one is ultimately headed. But let’s break it down and see how this got there.

Residential PUD Zoning

It started off well for the property owner, who owned land it wanted to use as a golf course, part of a (much) larger 2,200 acre ranch. The city preliminarily approved a request to zone the proposed golf course for residential PUD (planned unit development – which…

Continue Reading $48 Million The Hard Zoning Way: Thanks To NIMBYs And NIMTOOs, Las Vegas Must Pony Up A Lucas Takings Judgment

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Guess where we stopped for coffee this morning?
(A reminder: this case has nothing to do
with the convenience store.)

Note: this is the first of two posts on the recent Supreme Court opinions in Sheetz v. County of El Dorado, the case in which the unanimous Court held that exactions imposed by legislation are not exempt from the essential nexus (Nollan) and rough proportionality (Dolan) standards. Here’s the second post, which covers the concurring opinions.

[Disclosure: this case is one of ours.]

In this post, we cover the background, and the Court’s unanimous opinion.

* * * *

Does the government have the unfettered ability to demand “the goodies” (as one municipality’s chief land use planner famously called them in the 1980s), simply because a property owner needs the government’s approval to make use if his or her land?

That’s the…

Continue Reading Sheetz pt. I – “Radical Agreement” At SCOTUS: “Your Money Or Your Rights” Isn’t OK Just Because A Legislature Does It

Here’s what folks are saying about yesterday’s unanimous U.S. Supreme Court decision in Sheetz v. County of El Dorado, where the Court held that impact fees and exactions imposed by legislative action are not categorically immune from the close nexus and rough proportionality requirements already applicable to ad hoc/administratively-imposed exactions under Nollan, Dolan, and Koontz.

…
Continue Reading Sheetz Round-Up

Sheetz

This just in: the U.S. Supreme Court has issued a unanimous opinion in Sheetz v. County of El Dorado, a case we’ve been following (not only because it is one of ours).

The Court, as predicted, held that an exaction (in this case a traffic impact fee) isn’t immune from the Nollan/Dolan nexus and rough proportionality requirements merely because the exaction is imposed by legislation.

At heart, this is a very pro-YIMBY decision because it gives property owners and housing builders a path to object to barriers to creating housing and the government’s use of the land use approval process as a way of exacting “goodies” that increase housing costs.

While we digest the opinion and the multiple concurring opinions — we shall post more once we do so — you can either read the opinions themselves, or see what we thought after the oral arguments. Or…

Continue Reading Unanimous SCOTUS Delivers A YIMBY Blow: “The Takings Clause does not distinguish between legislative and administrative permit conditions.”

This one takes a bit of sifting through, but if you do so, you will eventually savor the arguments. Try and follow this thread.

In 2014, pistachio growers with what seemed to be established rights to pump groundwater for irrigation of their trees and who never had to pay fees or were subject to other governmental regulation, were subject to the newly-adopted Sustainable Groundwater Management Act. This statute, designed to manage groundwater, empowers local groundwater agencies to create management plans and the typical things that such regulatory agencies do.

In the course of determining the “sustainable yield” of the groundwater basin that supplies the pistachio growers’ water, the local agency purported to determine the rights of various users relative to each other. The agency concluded that “public pumpers” have entitlement to 100% of the native groundwater, the pistachio growers’ preexisting water rights notwithstanding. If the pistachio farmers wanted to pump…

Continue Reading Pay To Play? Cal SCT Asked If Challenger Must First Pay A Fee To Object To Zero Water Allocation As A Taking

A short one from the California Supreme Court. In Romero v. Shih, No. S275023 (Feb. 1, 2024), the court was presented with the question of whether Property Owner A had an implied easement over the driveway of Property Owner B.

The court held that easements may be created by implication, and “if there is clear evidence that the parties to the 1986 sale intended for the neighboring parcel’s preexisting use of the area to continue after separation of title, the law obligates courts to give effect to that intent.” Slip op. at 2. The court remanded for evidentiary findings.

Check out the opinion for all the reasons why.

But for a touch of takings, skip forward to page 28 where the court disposed of Owner B’s argument that deciding whether the driveway is subject to an easement worked a judicial taking. First, the court noted that the party “did…

Continue Reading Cal SCT: A Court Deciding Who Wins An Easement Dispute Isn’t A Judicial Taking

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Hugo Grotius, aka Hugo de Groot,
born this day 441 years ago, April 10, 1583.

Author of the treatise “De Jure Belli et Pacis” (1625) — perhaps fittingly books about war and peace — which first used the phrase “eminent domain” to describe the sovereign power to forcibly acquire private property for public use and upon provision
of compensation:

Rights strictly taken is again of two Sorts, either private and inferior, which tends to the particular Advantage of each Individual: Or eminent and superior, such as a Community has over the Persons and Estates of all its Members for the common Benefit, and therefore it excells the former. Thus a regal Power is above that of a Father and Master; a King has a greater Right in the Goods of his Subjects for the publick Advantage, than the Proprietors themselves. And when the Exigencies of…

Continue Reading Thinking Outside The Box: Happy Birthday To The Guy Who Coined “Eminent Domain,” Hugo Grotius

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Have thoughts about where regulatory takings are (or should be) headed? Here’s your chance to get in on the conversation, and to shape the future of the law.

Our outfit, the Pacific Legal Foundation, in cooperation with the Antonin Scalia Law School’s Journal of Law, Economics, and Policy, are calling for papers on “Imagining the Future of Regulatory Takings.” There will be an in-person discussion of these papers at the Law School in October 2024.

Here’s the full description:

A century ago, Oliver Wendell Holmes, speaking for the Supreme Court, assured us that “[t]he general rule at least is that while property may be regulated to a certain extent, if regulation goes too far it will be recognized as a taking.” In the ensuing one hundred years, courts have struggled to draw the line defining “too far.” Some still wonder whether such a line should even exist. As Justice…

Continue Reading Commit To Submit: Call For Papers “Imagining the Future of Regulatory Takings”

A quick one from the Arizona Supreme Court that isn’t so much a true takings case, but more like “takings adjacent.” In our view, it well illustrates the way that takings arguments can shape how statutes are interpreted, even if there isn’t a taking.

The case — Cao v. PFP Dorsey Investments, LLC, No. CV-22-0228-PR (Mar. 22, 2024) — was shaping up to be more in our area of operations because the Arizona Supreme Court granted review to decide this question (and others):

Either on its face or as applied in this case, does A.R.S. § 33-1228 authorize the taking of private property for private use in violation of Article 2, § 17 of the Arizona Constitution?

Seemed promising. The statute says that when property organized as a condominium regime decides to wind up and abandon the condominium format, the condo association shall sell “all the common elements and…

Continue Reading Condo Forced-Sale Statute Is Not A Taking Because It Does Not Allow Picking Off Individual Units, But Requires Sale Of Entire Condo