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Screenshot 2022-07-02 at 09-16-05 Taking One for the Team COVID-19 Eviction Moratoria as Regulatory Takings

Check it out: a new article from the San Diego Law Review that’s worth reading. Here’s the Abstract:

This Comment explores potential Fifth Amendment challenges to COVID-19 eviction restrictions. Part II introduces California and federal COVID-19 eviction laws and lays out an organizational framework for analysis. Part III provides background on relevant regulatory takings jurisprudence. Part IV analyzes COVID-19 residential eviction laws under relevant regulatory takings tests. Part V considers judges’ potential impact on eviction moratorium challenges. Finally, Part VI proposes the solution that the Federal Government should pass legislation to provide direct rent relief for COVID-19-affected tenants.

Get the pdf here: “Taking One for the Team: COVID-19 Eviction Moratoria as Regulatory Takings,” 59 San Diego L. Rev. 345 (2022).

Our take on Co-19 takings (not just eviction moratoria) here. And our thoughts on emergency response laws, generally.Continue Reading New Article: “Taking One for the Team: COVID-19 Eviction Moratoria as Regulatory Takings”

Whatpropertydoes

Worth checking out: Christopher Serkin, What Property Does, 75 Vand. L. Rev. 891 (2022).

Covering (inter alia) property, rule against perpetuities, adverse possession, Lucas background principles, judicial and regulatory takings, Mahon v. Keystone Bituminous, and vested rights and amortization of preexisting uses.

Here’s the abstract:

For centuries, scholars have wrestled with seemingly intractable problems about the nature of property. This Article offers a different approach. Instead of asking what property is, it asks what property does. And it argues that property protects people’s reliance on resources by moderating the pace of change. Modern scholarly accounts emphasize voluntary transactions as the source and purpose of reliance in property. Such “transactional reliance” implies strong, stable, and enduring rights. This Article argues that property law also reflects a very different source of reliance on resources, one that rises and falls simply with the passage of time. This new category…

Continue Reading New Article: Serkin, “What Property Does,” 75 Vand. L. Rev. 891 (2022)

We’ve been meaning to post the U.S. Court of Appeals for the Sixth Circuit’s opinion in Barber v. Charter Twp of Springfield, No. 20-2298 (Apr. 11, 2022) for a while because it emphasizes an important point about “final decision” ripeness, and the sometimes ridiculous arguments made to support an argument that a takings claim isn’t ripe.

In many situations a takings claim is backwards looking, and seeks compensation or some other remedy for something the government has already done. You flooded my property, or your project encroached on my land, or you designated my property for future acquisition and prevented me from using it in the interim are good examples. But not always. Sometimes takings claims are forward looking. Your regulations require me to allow a cable TV company to install a box on my building’s roof, or you are threatening to open my private marina…

Continue Reading CA6: Dammed If You Do – Takings Claim Is Ripe When Govt Decides To Physically Invade And You Don’t Need To Wait ‘Til It Actually Invades

20151205_145854

We’ve covered some of the litigation against the federal government for its actions flooding property during Hurricane Harvey, including at least one from the “upstream” owners. Well here’s one from the case involving the “downstream” owners.

In Milton v. United States, No. 21-1131 (June 2, 2022), the U.S. Court of Appeals for the Federal Circuit addressed the first question in every takings claim: does the plaintiff possess “private property?” The court held that the plaintiffs indeed have a property interest.

Now that may seem like an obvious conclusion. After all, it’s right there in the first sentence of the opinion that the plaintiffs are owners of … property: “[a]ppellants Virginia Milton and hundreds of other individuals and companies owned property downstream from the Addicks and Barker Dams in Houston, Texas.” Slip op. at 1 (emphasis added). But as you takings mavens know, owning property doesn’t mean you truly…

Continue Reading CAFED: Flooded Property Owners Owned Property

Here’s a pretty rare one: a trial court entering summary judgment on liability in favor of the property owner in a takings case. Yes, you read that right.

And to top it off, this ruling comes in a case in which the taking alleged was a police invasion and destruction of a home for the valid public purpose of apprehending a holed-up criminal, a brand of claim that has not met with a whole lot of success. See, for example, this case from the Tenth Circuit, and this case from the Supreme Court of South Carolina.

In this order, the U.S. District Court for the Eastern District of Texas held the City of McKinney liable for a physical taking. The entire order is worth reading, but here are some of the highlights.

…
Continue Reading District Court: City Liable For Physical Taking For Destroying Home While Apprehending A Criminal

In City of Baytown v. Schrock, No. 20-0309 (May 13, 2022), the Texas Supreme Court held that it isn’t a taking when a city, in violation of state law, cuts off utility services to property.

The issue, as the court restated it, was “whether a claim of economic harm to property resulting from the improper enforcement of a municipal collection ordinance alleges a regulatory taking.” Slip op. at 6. Schrock owned property in Baytown on which he had a mobile home he planned to rent. The water bill wasn’t paid, and Baytown has an ordinance that requires property owners to guarantee utility payments, or file a statement that the owner would not guarantee these payments. Schrock didn’t file a disavowal statement until after had already assessed him nearly two grand for unpaid water bills. Slip op. at 3. 

He didn’t pay, so when one one of Schrock’s prospective tenants…

Continue Reading Texas: City Illegally Cutting Off Utilities Isn’t A Taking – It Needs To Be Regulating “Land Use”

After the U.S. Supreme Court in Cedar Point Nursery reminded everyone that the Court’s longstanding focus on the right to exclude others as one of the most fundamental of property rights is as fresh today as it ever was (see Kaiser Aetna (uninvited boaters), Loretto (cable TV box), Nollan (beachcombers) and Horne (segregating raisins, for example), we were left with some questions. Most importantly, some of us were wondering “what’s next?”

Well try this one on for size. Virginia property owners recently sued the Department of Wildlife Resources over the state’s “right to retrieve” law, Va. Code § 18.2-136 (“Fox hunters and coon hunters, when the chase begins on other lands, may follow their dogs on prohibited lands, and hunters of all other game, when the chase begins on other lands, may go upon prohibited lands to retrieve their dogs, falcons, hawks, or …

Continue Reading Who Let The Dogs In? Property Owners Challenge Virginia’s “Right to Retrieve” Law That Allows Hunters (& Dogs) To Trespass

Anyone who reads this blog regularly knows Tiburon, California, even if you’ve never stepped foot there. Yes, that Tiburon. Well, the beat goes on: the Agins litigation wasn’t the only time that the town and its residents combined forces to try and draw up the drawbridge and prevent the building of more homes in this very exclusive and chichi Marin County waterfront and hilltop community with commanding multi-million dollar views of San Francisco and the Bay. 

For the latest example, read the California Court of Appeal’s opinion in Tiburon Open Space Committee v. County of Marin, No. A159860 (May 12, 2022). It’s 110 pages, but don’t let that discourage you (it’s not necessary to dig into the details, unless you are a true California Environmental Quality Act nerd). The facts alone are hair-raising. But on the other hand, the story may be an old story to…

Continue Reading “Something is very wrong with this picture.” Cal Ct App Calls Out CEQA (“fearsome weapon”), Tiburon’s “official hostility,” And “combined animus of two levels of local government”

Screenshot 2022-05-02 at 11-51-57 Display event - 2022 Hawaii Land Use Law Conference (LIVE)

It’s back! After a hiatus on the in-person program, the bi-annual Hawaii Land Use Conference is back in-person (see here for a sample of one of our prior presentations at this conference).

May 25 and 26, 2022, downtown Honolulu.

The full agenda and speaker list has not yet been published, but here’s a summary of the program:

Sponsored by the Hawaii State Bar Association and the Real Property and Financial Services Section. Coordinated by David Callies and Benjamin Kudo, his 2-day conference is a must attend for any attorney or professional whose practice involves land use and development. Distinguished land-use practitioners, scholars, planners, and regulators from Hawaii and the Mainland will discuss timely and relevant issues, including:

• Takings 

• Transit Oriented Development (TOD) 

• Seawalls and Shoreline Access 

• Climate Change 

• Affordable/Workforce Housing 

• Ethical Considerations for Real Property Practitioners and Other Professionals

We’ll be speaking during…

Continue Reading Hawaii Land Use Law Conference, May 25-26, 2022, Honolulu – Join Us!

Bergerpage

A new article by lawprof Bethany Berger, “Property and the Right to Enter,” criticizing the Supreme Court’s ruling in Cedar Point Nursery. The article builds on the amicus brief in the case, also authored by Prof Berger.

Here’s the Abstract:

On June 23, 2021, the Supreme Court decided Cedar Point Nursery v. Hassid, holding that laws that authorize entry to land are takings without regard to duration, impact, or the public interest. The decision runs roughshod over precedent, but it does something more. It undermines the important place of rights to enter in preserving the virtues of property itself. This Article examines rights to enter as a matter of theory, history, and constitutional law, arguing that the law has always recognized their essential role. Throughout history, moreover, expansions of legal exclusion have often reflected unjust domination antithetical to property norms. The legal advocacy that led to Cedar Point continues this trend, both undermining protections for vulnerable immigrant workers in this case, and succeeding in a decades long effort to use exclusion as a constitutional shield against regulation.

Definitely worth reading.
Continue Reading New Article (Bethany Berger): “Property and the Right to Enter”