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Kungfu

We’ll be doing a longer post with our thoughts on the U.S. Supreme Court’s landmark ruling in Knick v. Township of Scott, No. 17-647 (June 21, 2019). But here’s the big picture.

It appears that at least five Justices finally seem to understand what we in the property bar have been saying for decades – that the essence of a federal “takings” claim against a local or municipal government is that “by regulation, you have deprived my property of ‘productive use’ [as Chief Justice Roberts noted on page 14 of the slip opinion], and you have not compensated me.” So it is enough that the government hasn’t paid me, and I have no obligation to “ripen” my federal claim by chasing down the local government for compensation in state court.

So nearly 100 years after Justice Holmes famously opined for the Court in Pennsylvania Coal Co. v. Mahon, …

Continue Reading Williamson County Overruled: After Nearly A Century, Supreme Court Finally Has Figured Out What A Regulatory Takings Claim Looks Like

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Here are the links to the cases which were not in your materials. Theme of the day: amateurs! 

Our thanks to colleagues Jill Gelineau and Paul Sundermier for asking us to present. It was good to see our Oregon friends again. 

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Continue Reading Links From Today’s Portland Eminent Domain Conference

A forthcoming article in the Cornell Law Review (“Virtual Briefing at the Supreme Court“) argues that it’s an “open secret” that the way to influence a SCOTUS case is to hit up social media:

The open secret of Supreme Court advocacy in a digital era is that there is a new way to argue to the Justices. Today’s Supreme Court arguments are developed online: They are dissected and explored in blog posts, fleshed out in popular podcasts, and analyzed and re-analyzed by experts who do not represent parties or have even filed a brief in the case at all. This “virtual briefing” (as we call it) is intended to influence the Justices and their law clerks but exists completely outside of traditional briefing rules.

On the heels of that comes this: a web page and Twitter account devoted (for now) solely to a case we’ve been following that…

Continue Reading Twitter Is The New Cream

With the opinion in the Knick v. Township of Scott case to drop as soon as Tuesday (we’re guessing the opinion will be by Chief Justice Roberts, by the way), hold on: we’re about to get super nerdy here. Impossibly nerdy. Yes, we’re revisiting the Star Trek analogies. We’ve been down this road before, even going so far as to have a colleague (who is perhaps even further down the rabbit hole than we are) present a takings CLE in his Starfleet uniform. 

The bottom line is this (and if you are not into Trek, you can stop right here): to us the key question which the Court is grappling with is whether a state’s judiciary is part of the state’s compensation system. If the majority of the justices conclude that it is, then don’t expect an out-and-out overruling of Williamson County, only a modest trim…

Continue Reading Shaka, When The Walls Fell: Yes, Knick Will Be About Takings, But It Will Be More About Federalism

Here’s what’s on the reading list for today:

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Continue Reading Tuesday Takings And Property Round-Up

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Great crowd today in Austin for CLE International’s Eminent Domain seminar, co-chaired by our colleagues Chris Clough, Sejin Brooks, and Christopher Oddo. We spoke about “National Trends and Developing Issues in Eminent Domain.” 

Here are the cases I referred to which are not included in your written materials:

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Continue Reading Materials And Links From Today’s Austin Eminent Domain CLE

Here’s the amici brief we signed onto for Owners’ Counsel of America, filed last week in a regulatory takings case we’ve been following.

This brief, one of several filed which urge the Court to review the Federal Circuit’s conclusion there was no taking (despite a Court of Federal Claims verdict that there was), argues that categorical rules are not useful in regulatory takings cases for the most part, and economic realities often mean that a property owner can suffer a taking even if it has not yet realized a positive cash flow from its investment in the property:

But the Federal Circuit has now pronounced a categorical rule—one that arbitrarily insulates government from takings liability no matter how strongly the Penn Central factors might otherwise militate in favor of a takings claimant. Love Terminal Partners, L.P. v. United States, 889 F.3d 1331, 1344 (Fed. Cir. 2018). What…

Continue Reading New Amici Brief: Investment, Not Profit, Is What The Takings Clause Recognizes

Here’s one we’ve been meaning to post for a while, the latest in a case we’ve been following. Yes, its the Love Terminal Partners cert petition.

Rather than go into the details about the case, we instead refer you to our post about the Federal Circuit’s opinion, the Court of Federal Claims verdict finding a taking and awarding compensation, and the petition itself. Counsel of Record for the property owners is none other than überlawyer Paul Clement. So we really can’t improve on the Questions Presented:

In 1999, petitioners paid millions of dollars to acquire the lease to property designated for aviation use at Dallas Love Field Airport. The next year, they spent another $17 million constructing a state-of-the-art terminal, and a few years later they expanded their investment by another $6.5 million. At the time, federal law limited flights for aircraft with over 56 seats from Love…

Continue Reading New Cert Petition: You Don’t Need Positive Cash Flow To Have Investment-Backed Expectations

Thank you to our colleague, economist William Wade, for sending along this piece, reacting to a recent decision by the Massachusetts Appeals Court.

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Financial inconsistency bedevils takings decisions

by William W. Wade, Ph.D.

This blog recently reported on a Massachusetts Appellate Court takings case ruling (Smyth v. Conservation Comm’n of Falmouth, No. 17-P-1189 (Feb. 19, 2019)), that reversed a judgment for the plaintiff, in part, based on an erroneous economic impact evaluation under the famous Penn Central test.

Plaintiff inherited a parcel from her parents seemingly purchased in 1975 for $49,000. Plaintiff’s appraiser valued the land parcel at $700,000 with the intended development and $60,000 in its current status as an unbuildable lot. The trial court awarded damages of $640,000.

While other issues were at issue on appeal, the court ruled on the economic impact prong of Penn Central that the diminution in value, $700,000 to $60,000…

Continue Reading Guest Post: Financial Inconsistency Bedevils Takings Decisions

If you can make sense of the Montana Supreme Court’s analysis in Letica Land Co. v. Anaconda-Deer Lodge County, No. DA 18-0249 (Feb. 5, 2019), we are all ears, because we sure cannot.

The court concluded that the county’s actions in furtherance of its claim to own a road located on Letica’s property — including removing a dirt berm and encouraging the public to use the road — could not be a taking, only a tort. 

The county’s defense to the takings claim was “that a temporary physical invasion was done under claim of right and therefore did not amount to a taking of Letica’s private property.” Slip op. at 4-5.

The court agreed, relying on Langford v. United States, 101 U.S. 341 (1880) for the proposition that “if the government mistakenly asserts the right to use its own property, and the property in fact belongs to another…

Continue Reading Say What? Gov’t Occupying Property Under Claim Of Right Is Only A Tort, Not A Taking