Inverse condemnation

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The city has filed its Brief in Opposition in Guggenheim v. City of Goleta, No. 10-1125.

That’s the case in which the owners of a mobile home park asserted the city’s mobile home rent control ordinance which the city adopted in 2002, is a taking under the three factor ad hoc test in Penn Central Trans. Co. v. City of New York, 438 U.S. 104 (1978). The en banc Ninth Circuit held that the ordinance was not a taking, since the Guggenheims purchased their park years after the County of Santa Barbara adopted its rent control ordinance, and when the City of Goleta was incorporated in 2002, it adopted and continued the County’s ordinance. According to the Ninth Circuit, the fact that the Guggenheims purchased their land after it was rent controlled was “fatal” to their Penn Central claim, because they could not have “investment-backed expectations” at…

Continue Reading Brief In Opposition In Guggenheim: Ninth Circuit Applied All Penn Central Factors

In CRV Enterprises, Inc. v. United States, 626 F.3d 1241 (Fed. Cir. 2010), the U.S. Court of Appeals for the Federal Circuit (the court that hears appeals in regulatory taking and inverse condemnation cases against the federal government) held the EPA’s installation of a log boom on a navigable waterway in California’s central valley was not a taking even though it cut off the plaintiffs’ riparian access. We summarized the opinion here.

The property owners have filed a cert petition, asking the Court to review two Questions Presented:

1. In Palazzolo v. Rhode Island, 533 U.S. 606 (2001), this Court repudiated the so-called Notice Rule, which held that post-enactment purchasers could not state a claim for a regulatory taking arising from restrictions adopted before they took title to the property. The Federal Circuit’s decision in this case — like the Ninth Circuit’s decision in Guggenheim v. …

Continue Reading Another Cert Petition Asks: Can A Post-Regulation Purchaser Bring A Takings Claim?

Today, on behalf of the Manufactured Housing Institute, we filed this amicus brief (also available below) in the U.S. Supreme Court in Guggenheim v. City of Goleta, No. 10-1125 (petition for cert. filed Mar. 11, 2011). In that case, California mobile home park owners are asking the Court to review the decision of a sharply divided en banc Ninth Circuit which held that Goleta’s mobile home rent control ordinance did not work a regulatory taking under Penn Central.

The core of the majority opinion is based on the court’s supposition that the Guggenheims could not have “investment-backed expectations” because the rent control regulations were in place when they purchased their property. See Guggenheim v. City of Goleta, No. 06-56306 (9th Cir., Dec. 22, 2010) (en banc).

Our brief argues that the Ninth Circuit wrongly refused to apply the rule of Palazzolo v. Rhode Island, 533…

Continue Reading SCOTUS Amicus Brief: Can A Post-Regulation Purchaser Bring A Takings Claim?

In City of Los Angeles v. Superior Court, No. B225083 (Apr. 12, 2011), the California Court of Appeal (2d District) held that the trial court erroneously entered summary judgment and awarded a property owner damages under an inverse condemnation theory against the city for inequitable precondemnation activities (aka “condemnation blight”). The owner showed that the city had been buying properties in the neighborhood, relocating the residents, demolishing the buildings and leaving the land vacant, and alleged that this was accomplished in order to make the city’s acquisition of his property easier.

The city conceded most of the facts (except the allegation of its intent) were correct, but the court concluded that in order to prove inequitable precondemnation activities, the city must have either instituted eminent domain proceedings, or be acting with the “firm intention” of doing so. Only then does the rule from Klopping v. City of Whittier…

Continue Reading Cal Ct App: To Have An Inequitable Precondemnation Activities Claim, The Activities Must Be “Precondemnation”

In CCA Associates v. United States, No. 97-334C (Jan. 29, 2010), the U.S. Court of Federal Claims held that two federal statutes worked a taking under the three-part Penn Central test because it abrogated the rights of the owner of a Louisiana apartment building to prepay its way out of providing low income housing. The CFC held that the programs set up under the statutes in effect forced CCA to continue to provide low income housing — a public good — and that it was a taking.

The Government appealed, asserted the CFC missaplied the Penn Central test, and the property owner cross-appealed, argued the CFC wrongly dismissed a breach of contract claim. Penn Central, of course, refers to the multi-factored test for an ad hoc regulatory taking first announced in Penn Central Trans. Co. v. City of New York, 438 U.S. 104 (1978), and most recently reaffirmed…

Continue Reading Of DIBEs, Rose Acre Farms IV, And Cienega X: Federal Circuit Considering Penn Central

Here’s Bettendorf v. St. Croix County, No. 10-1359 (Jan. 20, 2011) a 2-1 decision from the U.S. Court of Appeals for the Seventh Circuit, another regulatory takings opinion we’ve been meaning to post for a while. The case involves a property owner’s claim that the county’s changing the zoning on his land from commercial to agricultural-residential was a taking and a violation of due process. The county changed the zoning in response to a state court judgment holding that the commercial zoning was void because it contained a provision that it would revert to agricultural-residential upon the property owner’s death or a sale to a new owner. The owner sued to invalidate the condition, but the state court invalidated the entire zoning ordinance. Put that one in the “be careful what you ask for” department.

But before you get to the majority’s treatment of the merits (no taking, no…

Continue Reading 7th Circuit Rejects Takings Claim On The Merits. But How?

Dark-and-stormy-nightWe’ve had the U.S. Court of Appeals for the Fourth Circuit’s opinion in Henry v. Jefferson County Comm’n, No. 09-1546 (Mar. 3, 2011) near the top of our to-read list for a while, because it is a regulatory takings case. But after finally reading it, realized that the opinion is a must read for another reason.

For how often does a judicial opinion begin with the words, “We begin by begging the reader’s indulgence as we summarize the frequently litigated facts underlying Henry’s claims and the byzantine procedural history accompanying them.”

While we appreciate the court paying us this courtesy, the archaic phrasing reminded us of those godawful entries in the annual Bulwer-Lytton bad writing contest. You know, the ones that attempt to emulate the literary depths of the opening sentence of one of Bulwer-Lytton’s novels:

It was a dark and stormy night; the rain fell in torrents–except…

Continue Reading The 4th Circuit’s Entry In The Bulwer-Lytton Contest

In Arkansas Game & Fish Comm’n v. United States, No. 2009-5121 (Mar. 30, 2011), a case in which the Game and Fish Commission asserted that the Corps of Engineers’ deviations from a dam’s operating plan caused increased flooding and resulted in the destruction of trees, the U.S. Court of Appeals for the Federal Circuit held that the flooding was temporary and therefore not compensable:

The parties in this case vigorously dispute whether the extent and frequency of flooding satisfied the substantiality requirement and whether it was predictable. However, we need not decide whether the flooding on the Management Area was “sufficiently substantial to justify a takings remedy” or “the predictable result of the government’s action,” Ridge Line, 346 F.3d at 1355, 1356, because the deviations were by their very nature temporary and, therefore, cannot be “inevitably recurring” or constitute the taking of a flowage easement.

Slip op at…

Continue Reading Federal Circuit: Temporary Flooding Causing Permanent Damage Is Not A Taking

In DeCook v. Rochester Int’l Airport Joint Zoning Bd., No. A09-96 (Mar. 30, 2011), the Minnesota Supreme Court held that a $170,000 decrease in market value casued by an airport zoning ordinance was a compensable regulatory taking. Applying the Minnesota Constitution’s takings clause, the court held that when a regulation designed to benefit a “specific public or governmental enterprise” causes a “substantial and measurable decline in market value,” that compensation is due, even if it might not be a taking under the federal Penn Central test.

In 2002, the Airport Joint Zoning Board adopted an ordinance which increased the size of a runway safety zone that included the DeCook property. Most of the DeCook land is outside of “Safety Zone A,” but those regulations “allow fewer land uses” on their property:

On September 18, 2002, the Board enacted Ordinance No. 4, the ordinance at issue in this case. Ordinance…

Continue Reading Minn S Ct: $170k Decrease In Value Is A Regulatory Taking … Under State Constitution

An interesting story from today’s San Francisco Chronicle, forwarded by a colleague. In Bolinas oceanfront parcel $3.9 million, no building, Peter Fimrite reports on a 47 acre parcel of land in the notoriously I-got-mine Marin County, California community of Bolinas:

Kidson bought the land for $250,000 from the Smadbecks’ heir Louis Smadbeck and Howard Sloane in 2004, according to county records. But, this uniquely insular town opposes virtually all development and closely guards its long-standing moratorium on water meter hookups.

So neighbors were horrified when Kidson immediately began building trails to the beach, drilling exploratory wells and making plans for a three-story barn house.

“I told him, ‘You might want to talk to the neighbors,’ and he immediately got angry, saying he had a right to build,” said Polla Pratt, 46, who lives on Ocean Parkway overlooking the spot Kidson had chosen for his home. “It became…

Continue Reading A $3.9 Million View — And Not Much Else, But A Takings Claim