January 2025

The facts in D.A. Realestate Inv., LLC v. City of Norfolk, No. 23-1863 (Jan. 16, 2025), a recent decision from the U.S. Court of Appeals for the Fourth Circuit, are fairly sympathetic. And the opinion starts off with a tantalizing quote:

In 1761, Massachusetts lawyer James Otis exclaimed “one of the most essential branches of English liberty is the freedom of one’s house. A man’s house is his castle.” John Adams’s Reconstruction of Otis’s Speech in the Writs of Assistance Case, in Collected Political Writings of James Otis 12–13 (Richard Samuelson, ed. 2015). American law has embraced that principle since our nation’s founding. U.S. Const. amend. V. But we have also long recognized that “all property in this country is held under the implied obligation that the owner’s use of it shall not be injurious to the community.” Mugler v. Kansas, 123 U.S. 623, 665 (1887).

Slip op.

Continue Reading CA4: Challenge Public Use/Pretext Under Due Process And § 1983, Not Inverse

Here’s a recently-filed cert petition to watch. We won’t go into the background, because the Questions Presented pretty much lay the foundation:

Respondent County of San Diego, et al. (County), a California land use agency, denied the land use permits for Village Communities et al. (Village) to develop a much-needed residential and mixed-use community in North San Diego County, California. The County denied the Project solely because Village “failed” to satisfy the County’s condition requiring Village to pay money to acquire offsite easements from 100 percent of the 50 property owners along a public road near Village’s property site in spite of the fact that the County made no individualized determination that the monetary exaction, a sum of approximately $2.5 million, bore an “essential nexus” and “rough proportionality” to the purported impacts associated with Village’s project as required by Nollan v. California Coastal Comm’n, 483 U.S. 825 (1987)…

Continue Reading New Cert Petition: To Have A Nollan-Dolan-Koontz Claim, Must You Be Forced To Give Up Land And Money?

Two — count ’em two! — cert petitions from our shop, filed today. Both call for “clarifying or overruling” Penn Central.

Oh, have I got your attention now?

Both arise out of the Michigan governor’s orders shuttering some, but not all, businesses during Co-19. These had devastating consequences, and owners sued for, inter alia, a taking, asserting a Penn Central theory. As we noted here, the Gym 24/7 case went up through the Michigan court system, with the Supreme Court eventually denying discretionary review over an extensive dissent. The Mount Clemens Recreational Bowl case took pretty much the same path. 

We’re not going to say much more because…

Continue Reading Two New Cert Petitions (Ours) – 50 Years Of Fruitless Trying Is Enough: Overrule Or Clarify Penn Central!

Screenshot 2025-01-12 at 09-35-14 Taking Old Ladies’ Homes A Comparative Exploration of Eminent Domain in

Check this out, a just-published unsigned student piece: Note, “Taking Old Ladies’ Homes: A Comparative Exploration of Eminent Domain in Islamic Law,” 138 Harv. L. Rev. 841 (2025).

Not that we have any background to be able to evaluate the author’s assertions, but at the very least, the piece is very interesting (you learn stuff!), and does reach the conclusion that forced acquisitions are not absolutely necessary to “develop[] advanced built environments and economic systems[.]” See id. at 862 (“It is not enough to assume that any society, or indeed any modern society, requires a particular form of eminent domain or the eminent domain power itself.”).

Here’s a summary.

This Note is therefore likely the first exploration of premodern Islamic discourses and practices of “eminent domain.” It will argue three things about forced appropriation of property for public purposes in premodern Islamic law: First, that unlike in Anglo-American…

Continue Reading New Article (Note): “Taking Old Ladies’ Homes: A Comparative Exploration of Eminent Domain in Islamic Law,” 138 Harv. L. Rev. 841 (2025)

If you thought the issue of whether it is a Fifth Amendment taking for a state or local government to “keep the change” after satisfying a tax debt was settled by the U.S. Supreme Court in Tyler v. Hennepin County, 598 U.S. 631 (2023), you’d be right.

Then what was there left for the New Jersey Supreme Court to decide in 257-261 20th Avenue Realty, LLC v. Roberto, No. A-29-23 (Jan. 9, 2025)? Some interesting stuff, it turns out.

And before you conclude that this is just piling-on, remember — they wanted this: after Tyler, instead of reading the U.S. Supreme Court’s decision and the writing on the wall, some state and local governments, unhappy with being cut off from a source of easy money, tried to figure ways to avoid or negate the rule that if there’s money left over after you satisfy a tax debt…

Continue Reading NJ’s Forfeiture Statute Is A Taking Of Surplus Home Equity

At first glance, it might seem like there’s a lot there in the U.S. Court of Appeals’ opinion in Becker v. City of Hillsboro, No. 23-3367 (Jan. 7, 2025).

After all, the city’s prohibition on new private wells and another requirement that newly built homes connect to the city’s water system seems a bit arbitrary (at least the opinion doesn’t give a lot of detail why, other than “the city said so”). And the opinion evaluates a Lucas wipeout, a physical invasion, a Penn Central ad hoc taking, and a Nollan/Dolan claim. Even a Murr denominator issue. This case could have been a good vehicle to examine those questions in more detail that many courts do.

But after taking a dive in, our initial impression that this case would provide a lot of insight — or even food for deeper thought — didn’t pan out. Take a…

Continue Reading CA8 Misses An Opportunity For Penn Central Clarity: No Taking When City Bans New Private Wells, Requires City Water

With our tongues firmly planted in cheeks, the Planning Chairs for the upcoming 42d edition of this popular and venerable Conference bring you this “breaking news” report from San Diego!

As you know, in addition to being the best nationally-focused conference on the subjects that we love and a venue that is nearly certain to have some of the warmest winter weather in the continental United States, and we went on-location from some of the local highlights: the beaches, Torrey Pines, the Zoo, Balboa Park, the Gaslamp Quarter, and Coronado to name but a few.

More about the Conference here, including registration information.

Here are some of the highlights:

  • Property Rights at the Supreme Court: DeVillier and Sheetz and What’s Next
  • Slow Take: Possession, Rent, Relocation, and Offset
  • The Jury’s View: How Jurors See Your Case
  • From Penn Coal to Penn Central: How to

…
Continue Reading Breaking News: Come Join Us For The 42d ALI-CLE Eminent Domain & Land Valuation Litigation Conference, San Diego, Jan 30-Feb 1

Screenshot 2025-01-04 at 08-42-51 Revisiting Palazzolo The Blurry Lines Between Ripeness and Standing that Enable Windfalls by Timothy Harris SSRN

Check out, the latest from Professor Timothy Harris, “Revisiting Palazzolo: The Blurry Lines Between Ripeness and Standing that Enable Windfalls,” 73 Kan. L. Rev. 289 (2024). He dives into the question of whether an owner who acquires property already subject to regulations that allegedly work a taking may assert a claim, or does that claim belong only to the prior owner?

Here’s the Abstract:

When property changes hands, the pre-existing right of the seller to bring an inverse condemnation claim against the government does not always pass to a subsequent owner. Sometimes it does. If valid takings claims expire on sale, the government may experience a windfall. But if a buyer gets a deal on burdened property and then sues under a prior owners’ takings claim, the new property owner gets a windfall. Established Supreme Court rules draw distinctions between the character of various “takings” to determine whether…

Continue Reading New Article: Timothy Harris, “Revisiting Palazzolo: The Blurry Lines Between Ripeness and Standing that Enable Windfalls,” 73 Kan. L. Rev. 289 (2024)

It’s been a couple of weeks, but we’re still trying to wrap our head around the Iowa Supreme Court’s opinion in Singer v. City of Orange City, No. 23-1600 (Dec. 20, 2024).

The court rejected a facial challenge under the Iowa Constitution’s search-and-seizure clause to a city ordinance requiring the owner of rental units to have a rental permit and to submit to “regular inspections” of those properties. The ordinance purports to create a “right of entry” for a “code official,” and if the owner refuses to voluntarily allow inspection, the inspector may obtain an “administrative search warrant” to enter and search. An owner can exempt itself from inspection by a city inspector if a unit is “inspected by a certified third-party inspection organization[.]” And the ordinance says nothing about probable cause.

Several owners sued, and after discovery, the court granted the plaintiff-owners summary judgment. It declared the ordinance…

Continue Reading Iowa: Mandatory Inspection Of Rental Units Without A Warrant Is Not Facially Unconstitutional, Because Private Inspectors Might Barge In

Heads up law students and young lawyers: the American Bar Association’s Section of State & Local Government Law has called for submissions for its annual writing competition.

Topics which the Urban Lawyer publish pieces about include land use, takings, eminent domain, housing, RLUIPA, exactions … and more. 

Here’s the announcement: 

The State and Local Government Law Section of the ABA is holding its annual Writing Competition, with the winner to be published in the Section’s Law Review, The Urban Lawyer.

The Section invites all those who qualify as young lawyers (less than 36 years old or in practice for less than 10 years) and law students to submit articles of 25-50 pages in length, and properly footnoted, on any topic of state or local government law of their choice.

Membership in the ABA as a Law Student or in the ABA Young Lawyer Division is encouraged but is not…

Continue Reading Announcement: State & Local Govt Law Writing Competition