Inverse condemnation

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VTLREV_coverAs we noted here (when we posted our article), the latest issue of the Vermont Law Review deals with the U.S. Supreme Court’s “judicial takings” case, Stop the Beach Renourishment, Inc. v. Florida Dep’t of Environmental Protection, 130 S.Ct. 2592 (June 17, 2010). 

In eight essays, the authors of several of the many amicus briefs add their post-opinion thoughts. Authors include Ilya Shapiro (Cato Institute), Professor John D. Echeverria (Vermont Law), and Julia Wyman (Marine Affairs Institute). The groundwork is laid in the first article, by Professor L. Kevin Wroth:

If hard cases make bad law, bizarre cases may make no law at all. The recent Supreme Court decision, Stop the Beach Renourishment, Inc. v. Florida Department of Environmental Protection is a case in point. In the Essays that follow, the Vermont Law Review has brought together the reflections of seven lawyers, or teams of lawyers, for amici curiae…

Continue Reading Vermont Law Review: Essay Reflections From The Amicus Curiae In The Judicial Takings Case

For anyone not watching the game, here’s your Sunday fix of items that do not involve football:

  • The Institute for Justice — the good people who represented Mrs. Kelo in Kelo v. City of New London, 545 U.S. 469 (2005) — have posted this short video entitled “Kelo v. City of New London: Judicial Abdication in Action.” Money quote: “What does Fort Trumbull look like today? Today, the Fort Trumbull neighborhood is a barren wasteland.”
  • The New York Times (itself the corporate beneficiary of eminent domain), posts the story “Blighted Area? These Business Owners Beg to Differ,” about the latest case of alleged “blight” and redevelopment in New York City, this time from East Harlem. Unless there is something here that we’re missing, New York’s law of blight and public use are so skewed in favor of the condemnor as recently reaffirmed in the

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The last chapter in the Ninth Circuit’s rent control saga has not been written. In Guggenheim v. City of Goleta, No. 06-56306 (Dec. 22, 2010), a sharply divided en banc Ninth Circuit concluded that Goleta’s mobile home rent control ordinance was not a taking under the three-factor regulatory taking test of Penn Central Transportation Co. v. New York City, 438 U.S. 104 (1978). Our resource page on the case is here (includes all opinions and merits and amicus briefs).

Mark Alpert (one of the attorneys for the property owners) reports on his blog California Property Rights Journal:

We are happy to announce that Dan Guggenheim has made the decision to file a cert petition. We are thrilled that Dan has been able to retain former Solicitor General Ted Olson and his appellate team at Gibson, Dunn to lead the effort along with myself and Rob Coldren at HKC.

With a panel…

Continue Reading Cert Petition Coming In Ninth Circuit Rent Control Takings Case (Guggenheim)

Remember Klumpp v. Borough of Avalon, 997 N.J. 390 (N.J. 2010)? That the case in which the New Jersey Supreme Court held that the six year statute of limitations on inverse condemnation claims did not begin to run until 2005, when the Borough began claiming that a taking occurred, even though it physically took the property in 1965. We detailed the opinion here.

The New Jersey Law Journal described the Appellate Division‘s opinion — which held that the government can assert inverse condemnation in order to take property without compensation — as the “bizarre condemnation.” How that argument came to be is a long story which we detailed in this post so we won’t recount it here.

It looks like the New Jersey Supreme Court’s opinion is not quite the last chapter in the story.

filed this cert petition, asking the U.S. Supreme Court…

Continue Reading Cert Petition In New Jersey’s “Bizarre Condemnation”

In California Trailer Parks War: Owners Vs. Renters, Time magazine takes a look at the mobile home rent control issues behind the recent Ninth Circuit en banc opinion in Guggenheim v. City of Goleta (our resource page on the case is here). Be sure to take the article’s implicit conclusion (the mobile home owners are getting reamed by the Simon Legree park owners) with a grain of salt – the author’s bias shines through pretty clearly:

  • The rent control ordinances are keeping mobile home park owners from “enjoy[ing] explosive upticks in value” experienced by other California land owners. It’s only fair, after all, that such profiteers not be allowed to make beneficial use of their land.
  • The mobile home park owners employ “lawyers as foot soldiers” in their war on the tenant featured in the article, whom we are told “take peaceful walks with his wife and

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Continue Reading Time On Guggenheim – California Rent Control In The (Biased) Spotlight

To all of you who attended the first day of the Hawaii Land Use Conference today, thank you. As promised, here are the items I discussed during my two sessions:

  • United States v. Milner, 583 F.3d 1174 (9th Cir. 2009) – the case in which the Ninth Circuit affirmed a finding of common law trespass for the building of a wall on fast land, because the shoreline eventually eroded up to it. Both parties had “vested rights” to an ambulatory littoral boundary. The U.S. Supreme Court denied review, as noted here.

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Continue Reading Cases And Links From Today’s Hawaii Land Use Conference Sessions On Coastal Issues And Water Law

11.LULHI This Thursday (January 13, 2011) I’ll be leading two sessions at the fifth Hawaii Land Use Law conference at the Ala Moana Hotel in Honolulu. This conference takes place biannually, so this is your last chance until 2013 to get updated on the hottest topics, by a stellar faculty.

My sessions will cover Coastal Issues (which includes shoreline boundary, takings, and the U.S. Supreme Court’s Stop the Beach Renourishment case), and Water Issues (which will cover instream flow standards, public trust and private rights, and the Maui Water cases). The conference continues on Friday. Download the brochure here for a complete agenda.

The planning chairs, U. Hawaii Law Professor David Callies (U. Hawaii Law) and Ben Kudo (Imanaka, Kudo and Fujimoto), have assembled a talented and interesting faculty. The keynote speaker will be Professor Gideon Kanner, who will present “Taking a Critical Look at 30 Years of the Supreme Court’s …

Continue Reading There’s Still Time To Register And Attend The Fifth Hawaii Land Use Conference

In Navajo Nation v. United States, No. 2010-5036 (Jan. 10, 2011), the U.S. Court of Federal Claims concluded that the Nation’s claim that a development moratorium resulted in a taking was barred by the six year statute of limitations.

The Nation asserted that a 1934 federal statute created a property interest in an area known as the “Bennett Freeze area,” and that the federal government took that right when it precluded the Nation from any development within the area. The facts and legal background of the case are somewhat convoluted, and you can read the opinion if you are interested, but here’s the essence of the court’s analysis:

Here, the Navajo Nation’s takings claim, if any, accrued when the United States precluded it from developing land within the Bennett Freeze area without Hopi Tribe ap-proval. This was the only governmental action that served to restrict any right the Nation…

Continue Reading Federal Circuit: Takings Claims By Navajo Nation Barred By Statute Of Limitations

11.LULHI On January 13 and 14, 2011, I’ll be leading two sessions in the fifth Hawaii Land Use Law conference. This one only comes around every two years, so this is your chance to get updated on the hottest topics by a stellar faculty.

My sessions will cover Coastal Issues (which includes shoreline boundary, takings, and the U.S. Supreme Court’s Stop the Beach Renourishment case), and Water Issues (which will cover instream flow standards, public trust and private rights, and the Maui Water cases).

The keynote speaker will be Professor Gideon Kanner, who will present “Taking a Critical Look at 30 Years of the Supreme Court’s Takings Jurisprudence.” That alone will be worth the admission price.

Also of note: the seminar includes 3.25 Hawaii MCPE ethics credits, so you can fulfill your 2011 requirements in one sitting (you can attend the ethics portion for only $195). Members of the HSBA…

Continue Reading January 13-14, 2011: Fifth Hawaii Land Use Conference

This just in: the en banc Ninth Circuit, in an opinion by Judge Kleinfeld (the dissenter from the panel opinion) has concluded that the City of Goleta’s mobile home rent control ordinance is not a regulatory taking. In Guggenheim v. City of Goleta, No. 06-56306 (Dec. 22, 2010), the majority “assumed without deciding” that the case was ripe under Williamson County, but that the property owners did not establish a regulatory taking under Penn Central. We covered the en banc oral arguments here, and our resource page on the case is here.

There’s a lot of opinion to churn through, but the core of the majority opinion is based on the notion that the Guggenheims did not have “investment-backed expectations.” Imposing what can only be called a bizarre economic and appraisal theory, the majority concluded:

Whatever unfairness to the mobile home park owner might have…

Continue Reading En Banc 9th Circuit Decides Guggenheim: Mobile Home Rent Control Ordinance Is Not A Regulatory Taking