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Keepoutyourownproperty

Here’s the cert petition in a case we’ve been following. 

This is the one where a North Carolina county went bonkers in the early days of Co-19, and truly “locked down” by banning nonresident property owners from entering the county. This wasn’t done all at once, but in phases, with nonresident property owners being informed that if they didn’t get to their Dare County homes by March 20, they were going to be prohibited from even entering the county. As the Fourth Circuit put it, “In effect, Dare County told non-resident property owners:’“If you want to quarantine at your beach house, get there by March 20.’ This gave non-resident property owners four days to travel to the county.”

Blackburn was stopped from accessing his property for 45 days.

The Fourth Circuit upheld the district court’s rejection of his takings claim, concluding that this was not a physical invasion…

Continue Reading New Cert Petition: Is Barring You From Accessing Your Own Property A Categorical Taking?

This just in: the U.S. District Court for the Southern District of New York has issued this Opinion & Order in the case which challenges New York City’s rendering “guaranty clauses” in commercial leases unenforceable due to the declared Co-19 emergency.

This is a case we’ve been following. Earlier, the Second Circuit vacated the district court’s dismissal of the case, holding that the city’s ordinance rendering forever unenforceable certain provisions in commercial leases:

A provision in a commercial lease or other rental agreement involving real property located within the city that provides for one or more natural persons who are not the tenant under such agreement to become, upon the occurrence of a default or other event, wholly or partially personally liable for payment of rent, utility expenses or taxes owed by the tenant under such agreement, or fees and charges relating to routine building maintenance owed by the…

Continue Reading Bust A Deal, Face The Wheel: NYC Rendering Commercial Lease Guaranty Clauses Unenforceable For Co-19 Violates Contracts Clause

“But we had to eat.”

So begins the Washington Supreme Court’s opinion in Washington Food Industry Ass’n v. City of Seattle, No. 99771-3 (Feb. 9, 2023), wherein the court held that a takings challenge to Seattle’s ordinance requiring Co-19 combat pay for food delivery workers may proceed. 

There’s a lot in the opinion about the crisis and the early days of the response. And about the various claims brought by the WFIA challenging the city’s ordinance, including a statutory claim under Washington law (this is a prohibited tax or fee on groceries), equal protection, takings, contracts clause, section 1983, a “police power” claim, and a privileges and immunities claim.

The opinion is long (39 pages, plus concurring opinions and dissents, adding up to 67 pages), so here’s your scorecard:

I. The chapter 82.84 RCW claim is dismissed; we affirm.
II. The equal protection claim is dismissed; we reverse.
III.

Continue Reading Seattle’s Hazard Pay For Food Delivery Gig Workers Might Be A Penn Central Taking

You remember, don’t you? In the early days of the Co-19 epidemic, government and public health authorities were scrambling to do something … sometimes anything! … to respond.

Dare County, North Carolina might have been one of those local governments that went maybe just a bit too far in the precaution vs effectiveness departments: it banned nonresident property owners from entering the county (and apparently didn’t ban anyone else from coming and going, only outsiders).

Dare County announced the restrictions on March 16 and implemented them over three phases. Phase one, which took effect immediately, declared a state of emergency and prohibited mass gatherings. Phase two, which took effect one day later, prohibited non-resident visitors from entering the county. Phase three, which took effect four days after the restrictions were announced, prohibited non-resident property owners from entering the county. In effect, Dare County told non-resident property owners: “If you…

Continue Reading CA4: Being Blocked From Accessing Your Beach House For 45 Days Isn’t A Physical Taking (Or Any Kind Of Taking)

We really want you there…

One (nearly) last reminder that there’s still time to register for your space at the 40th ALI-CLE Eminent Domain & Land Valuation Litigation Conference, February 1-4, 2023, in Austin. In the past several years, we have sold out due to the conference room capacity and the conference hotel block. But there’s still space, although we are nearly full. So register now – don’t delay any further! 

Here’s the brochure with the complete agenda, schedule, and faculty listing. But to tempt you, here are some of the highlights of the program:

  • Everything Old is New Again: Why Today’s Practitioners Need to Understand the Original Meaning of the Takings and Just Compensation Clauses
  • When the SWAT Team Comes (No) Knocking: Police Power Takings

  • Private Utility Takeovers – Lessons From a 67 Day Trial

  • “Contraband”: How Property Rights Helped Pave the Way for Civil Rights

  • Valuation

…
Continue Reading (Nearly) Last Call: There’s Still Time To Join Us For The 40th ALI-CLE Eminent Domain & Land Valuation Litigation Conference, Feb 1-4, Austin

A classically short opinion from the New York Supreme Court (Appellate Division, Fourth District) in HBC Victor LLC v. Town of Victor, No. 683 (Dec. 23, 2022). (So short that we were tempted to simply post the opinion and let you read it, because it will probably take you just as long to read our summary; but we’re up to the challenge of making our summary even shorter than the opinion, so here goes.)

The town wants to take property “connected to an enclosed regional shopping center known as Eastview Mall[.]” Slip op. at 1. Until Co-19, the property was occupied by a retail department store, but the store closed permanently in February 2021. The owner tried to get a new tenant, but unsurprisingly, that came up short.

Perhaps sensing an opportunity, the Town sought to condemn for redevelopment. But its resolution of taking did not specify what it…

Continue Reading You Can’t Just Say “Redevelopment” – Take Now, Decide Later Isn’t A Public Use

Here’s the latest in a case we’ve been following.

In this cert petition, business owners on the losing end of a Co-19 shutdown order assert that the Sixth Circuit got it wrong when it concluded that the “overriding public purpose” of the shutdown orders should be given what amounts to dispositive weight under the “character of the government action” Penn Central factor.

The Sixth Circuit correctly (in our view) rejected the district court’s rationale that the takings claim could be rejected simply because “the state acts pursuant to its police powers to protect public health.” Slip op. at 15. But the Sixth Circuit didn’t stop there, and affirmed the dismissal because the “character” of responding to the Co-19 emergency was so overwhelming that it outweighed the other two factors (which the court had already concluded “weigh in favor of the Plaintiffs”).

As we explained in an article on …

Continue Reading New Cert Petition: There Must Be A Real Emergency Before Commandeerings Are Exempt From Compensation

To “slow the spread” in the early days of the Co-19 thing, the City ordered businesses to shut down. But not Wal-Mart, liquor stores, or churches. Golden Glow, a tanning salon objected, and told anyone who would listen that it could operate without person-to-person contact. Sorry, no exceptions.

Federal lawsuit followed, alleging the claims you might expect: equal protection and takings claims. Predictably, the district court granted summary judgment to the City.

And just as predictably, in Golden Glow Tanning Salon, Inc. v. City of Columbus, No. 21-60898 (Nov. 8, 2022), the U.S. Court of Appeals for the Fifth Circuit affirmed. The opinion, as you might expect is short.

Was Golden Glow treated differently from other businesses similarly situated without a rational reason? No. First, Golden Glow is similar to other shut down businesses: “[e]ach class of shut-down business provides recreational, social, or, as some would say, ‘nonessential’ services…

Continue Reading Tanning Beds v. Liquor Stores – No Equal Protection, No Physical Take, No Lucas Take For Co-19 Biz Shutdown Order

Florida law makes it really difficult for municipalities to adopt rent controls. State statutes and the Florida Constitution erect all sorts of substantive and procedural hurdles that must be crossed. For example, a statute requires findings that any such measures are responding to an emergency, a “grave … menace to the general public,” and places the burden on the municipality to not just make findings, but back up those findings with facts, and show that rent control will actually “eliminate” the emergency. Single-family properties cannot be rent controlled. And any ordinance adopted by a municipality must be approved by the voters.

Facing what it concluded was a problem — a shortage of 26,500 housing units and a population increase of 25% in the last decade – Orange County’s County Commission voted, 3-2, to control rents. The measure limited the frequency and amount of rent increases.

After the measure was placed…

Continue Reading County: We’re Short Of Housing, So Let’s Do Rent Control! Court: Not So Fast.

A short one (unpublished) from the U.S. Court of Appeals for the Sixth Circuit, considering an issue we’ve been following: what is the effect of the government’s claim that it is regulating property for what looks like a valid “police power” purpose?

As noted, that’s a road we’ve been down before. Here’s a sampling:

In Bojicic v. Dewine, No. 21-4123 (Aug. 22, 2022), the Sixth Circuit was considering a takings and due process challenge to the governor’s Co-19 shutdown orders. The court rejected the district court’s rationale…

Continue Reading CA6: No “Police Power” Exception To Takings (But It’s Nonetheless Dispositive As Penn Central’s Character)