2025

Here’s the latest in a case we’ve been following (because it is a product of our shop: we represent the property owners/plaintiffs).

In this Order, the Florida Supreme Court declined to exercise jurisdiction to review the Third District Court of Appeals en banc opinion in Shands v. City of Marathon. So that decision stands.

This is the case in which the Shands Family, the owners of Shands Key — a small island in the City of Marathon (about 1/2 way down the Overseas Highway in the Florida Keys) — asserted that the City’s downzoning their property from a density that allowed residential development to a density that doesn’t (Shands Key is below the minimum lot size under the downzoning), is a Lucas taking.

The court of appeal rejected the City’s claim that beekeeping and overnight camping were possible uses of the property under the downzoning, thus exempting it…

Continue Reading Fla SCT Declines Review: En Banc Court Of Appeal Decision That Downzoning Was A Lucas Taking (And Sale Of Property For Third-Party TDRs Is Not A “Use”), Stands

If you were creating a moot court problem, what topic would you pick? You’d want a question that is a hot topic. Unresolved by the Supreme Court. Controversial, interesting, and complex.

Well, we have just the issue for you: our favorite topic, takings.

That appears to be what the powers-that-be behind Harvard Law School’s moot court competition believed, because according to this report (Rachel Reed, “Harvard Law students battle for honors at the 2025 Ames Moot Court Competition,” Harvard Law Today (Nov. 19, 2025)), the student teams were confronted with a case where there was a clear taking (the commandeering and take-over of a hand sanitizer plant during Co-19), but the plant owner was denied a remedy because the defendant is the (fictional) State of Ames.

Ah yes, the question the Court dodged recently in DeVillier v. Texas, 601 U.S. 285 (2024): may an owner whose property…

Continue Reading Harvard Law School’s Moot Court Problem This Year? Takings.

Check out a newly-published law review article by lawprof Timothy Harris, “The Contracts Clause Can be Enforced via Section 1983, Period: The Nonexistent Circuit Court ‘Split’,” 78 SMU L. Rev. Forum 106 (2025).

The article delves into the issue of whether 42 U.S.C. § 1983 is the cause of action to bring a Contracts Clause challenge. The Contracts Clause prohibits states from passing any law impairing the obligation of contracts, and the fundamental question to be answered is whether your Contracts Clause rights are “rights, privileges, or immunities secured by the Constitution and laws” as described in section 1983.

Here’s the Abstract:

The Federal Circuit Courts are apparently split on whether 42 U.S.C. § 1983—which provides a civil cause of action for constitutional deprivation of rights— applies to actions brought under the Contracts Clause in article 1 of the U.S. Constitution. The “split” has existed since…

Continue Reading New Article: Timothy Harris, “The Contracts Clause Can be Enforced via Section 1983, Period: The Nonexistent Circuit Court ‘Split’,” 78 SMU L. Rev. Forum 106 (2025)

Here’s the latest in a case we’ve been following. [Disclosure: this is one of ours, so we won’t be commenting much at all.]

In Pung v. Isabella County, No. 25-95, the U.S. Supreme Court is considering these Questions Presented:

1. Whether taking and selling a home to satisfy a debt to the government, and keeping the surplus value as a windfall, violates the Takings Clause of the Fifth Amendment when the compensation is based on the artificially depressed auction sale price rather than the property’s fair market value?

2. Whether the forfeiture of real property worth far more than needed to satisfy a tax debt but sold for fraction of its real value constitutes an excessive fine under the Eighth Amendment, particularly when the debt was never actually owed?

(Here’s the cert petition.)

Today, the petitioner filed the merits brief, arguing that yes, “[w]hen…

Continue Reading SCOTUS Merits Brief (Ours) In Just Comp/Excessive Fines Case

A quick one from the South Dakota Supreme Court. But it is well worth your time.

In City of Sioux Falls v. Johnson Properties, LLC, No. 30945 (Nov. 19, 2025), the court upheld a trial court’s award of attorney’s fees to a property owner in an eminent domain action. The final amount of compensation exceeded the 20% threshold under South Dakota law that triggers fee shifting, and the Supreme Court concluded that even though the amount of fees awarded exceeding the “lodestar” calculation, the owner was entitled to an enhancement.

Here’s the court’s description of the critical action and numbers in the trial court:

[¶6.] Shortly before trial, the City increased its offer of compensation to
$250,000. Johnson Properties rejected the offer and the case proceeded to a three-day jury trial on the issue of just compensation. At trial, Johnson Properties’
appraiser testified that, in his opinion, the…

Continue Reading South Dakota: Eminent Domain “is a highly specialized area of law that requires skill and experience…” Meriting Attorney’s Fee Lodestar Enhancement

Check out this new (ish) cert petition which asks whether the “final decision” ripeness rule that currently governs regulatory takings cases is also applicable when the right alleged to have been violated is procedural due process.

The petition sets out how the lower federal courts have dealt with the question:

This case presents an important and recurring question that has divided the courts of appeals: whether procedural due process claims asserted in land-use disputes are subject to the same accrual rule as takings claims. Two circuits—the Second and Third—have held that they are. Five others—the Fifth, Sixth, Seventh, Ninth, and Tenth—have held they are not.

Pet. at 2. This case reverses the usual dynamic in takings cases (where generally, owners assert the claim is ripe because the government has made it clear what uses it will and won’t allow), because the Second Circuit held that the case was ripe a…

Continue Reading New Cert Petition: Are Procedural Due Process Claims Subject To The Same Ripeness Rules As Takings Claims?

In Grand v. City of University Heights, No. 24-3876 (Nov. 13, 2026), the U.S. Court of Appeals for the Sixth Circuit held that a complaint alleging a RLUIPA claim and others was not ripe because they are “land use” claims subject to Williamson County‘s final decision requirement.

A neighbor was “displeased” that Grand was using his home to hold a “shul,” which “in Hebrew refers to a synagogue or a house where prayers are held.” Slip op. at 2. The city told him to stop because his use as “a place of religious assembly” violated the zoning code (his home is zoned U-1, which doesn’t allow such uses).

Grand applied for a Special Use Permit, which would allow him to make the use as a “house of worship.” The Planning Commission had a hearing, but didn’t make a decision. It “tabled the discussion, requesting more details…

Continue Reading CA6: RLUIPA Claim Subject To Williamson County Final Decision Ripeness Because It’s A “Land Use” Issue

Euclid_front

Tomorrow, November 22, 2025 is the 99th anniversary of the day in 1926 when the United States Supreme Court issued its landmark opinion in Village of Euclid v. Ambler Realty Co., 272 U.S. 365 (Nov. 22, 1926).

You know this one (and can you call yourself a dirt lawyer if you don’t?). It’s the one in which the Supreme Court first upheld — against a facial due process challenge — the validity of this thing we now call “Euclidean zoning.”

In the intervening century, zoning has become a catch-all term for all sorts of regulatory restrictions on the uses of real property, land users know that “zoning” — ackshually — refers only to the regulation and separation of uses, restrictions on density, and height regulation. At least that’s how it began. The Euclid court concluded this was mostly nuisance prevention, so no worries. But we’d…

Continue Reading You Don’t Look A Day Over 98, Euclid

Check this out: a significant and important decision from the U.S. Court of Appeals for the Eleventh Circuit in an issue we’ve been following.

In Alford v. Walton County, No. 2021-13999 (Nov. 17, 2025), the unanimous panel concluded that the county’s Co-19 restrictions, which closed all beaches (public and private) in the county, worked a physical taking of Alford’s private property rights.

In response to the outbreak of Co-19, which the opinion notes was “a novel virus from Wuhan, China,” slip op. at 3, Florida declared a state of emergency, and followed up with an executive order that limited beach access statewide to “no more than 10 persons,” imposed a six-foot separation, among other things. Two days later, the county adopted an ordinance closing all public beaches in the county.

The following month, after the governor issued further executive orders, the county temporarily closed “[a]ll beaches” in the…

Continue Reading CA11: “[T]here is no COVID exception to the Takings Clause”

In State ex rel. Boggs v. City of Cleveland, No. 2025-Ohio-5094 (Nov. 13, 2025), the Ohio Supreme Court held that the City of Cleveland could be liable for inversely condemning land, even though that land is not in the City of Cleveland.

The city claimed that in order to be liable for inverse condemnation, it must have the authority to take the property by eminent domain. And under Ohio law, the state has only delegated to the city the power to take by eminent domain property that is within the city’s geographic boundaries. Therefore, the city argued, if we can’t affirmatively take the plaintiff’s land, we can’t be liable for inversely condemning it.

The case involves the Cleveland airport. As part of its runway expansion, airplanes would fly over adjacent properties (obviously), including properties outside the city’s jurisdiction. The city was authorized to purchase avigation easements on some…

Continue Reading Ohio: City Can Be Liable For Inverse Condemnation Of Land Outside Its Geographic Jurisdiction