Inverse condemnation

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More on the closely-followed case rent control regulatory takings decision from the Ninth Circuit, Guggenheim v. City of Goleta, No. 06-56306 (Sep. 28, 2009), which is currently being reheard en banc by the Ninth Circuit.

Earlier, we posted a link to Professor Richard Epstein’s short article, Takings Law Made Hard, in which he opines that “[j]udged by the normal canons of judicial review, the likely outcome is that the [Supreme] Court will do to … Guggenheim what it did to Judge Kozinski [in Hall v. City of Santa Barbara, 813 F.2d 198 (1987)]: reverse and enter judgment for the defendant.” 

Responding to Professor Epstein, Pacific Legal Foundation’s RS Radford has posted Takings victories made harder, pointing out the “technical deficiencies” in Epstein’s article that undermine his conclusions. Radford writes:

Whatever Prof. Epstein’s reasons may have been for rushing into print to condemn the Guggenheim decision, his…

Continue Reading Making Regulatory Takings Harder

In granting a special zoning exemption to Shelter House, Iowa City allowed it to build a homeless shelter on land next to Mr. and Mrs. Dahlen’s mobile home park. After losing their challenge to the zoning exemption, the Dahlens filed suit in federal court alleging the exemption violated their due process rights.

That claim was abandoned when the Dahlens amended their complaint to allege that they owned a portion of the Shelter House property by adverse possession, and the city’s approval of a site plan for the homeless shelter was an uncompensated taking of their property. The District Court dismissed the amended complaint because it was not ripe under Williamson County Regional Planning Comm’n v. Hamilton Bank of Johnson City, 473 U.S. 172 (1985).

In Dahlen v. Shelter House, No. 09-1909 (8th Cir. Mar. 24, 2010), the U.S. Court of Appeals for the Eighth Circuit agreed. The Dahlens…

Continue Reading 8th Circuit: Federal Takings Lawsuit Not Ripe

Calling the case “tempestuous,” the New Jersey Law Journal (via law.com) summarizes this week’s New Jersey Supreme Court oral arguments in Klumpp v. Borough of Avalon,No. A-49-09 (certification granted Nov. 10, 2009). See Michael Booth, Town’s Taking of Beachfront Property Without Compensation Tested at Court (Mar. 24, 2010).

In Klummp v. Borough of Avalon, A-49-09, a trial judge found and an appeals court agreed that an inverse condemnation of beach property resulted from Avalon’s passing of shore-protection regulations after a 1962 Nor’easter leveled the house once standing there.

The borough built sand dunes and vacated access roads to the property, but Edward and Nancy Klummp kept paying taxes — albeit for miniscule amounts. No condemnation case was filed nor was notice given of a taking.

Not until 1997, when they sought permits to rebuild, did Avalon assert the Klummps were no longer the owners, which led them to…

Continue Reading NJ Law Journal’s Summary Of The Klumpp Oral Arguments (The “Bizarre Condemnation”)

Courtesy of the New York Times is the backstory of Stop the Beach Renourishment, Inc. v. Florida Dep’t of Environmental Protection, No. 08-11 (cert. granted. June 15, 2009). This, of course, is the “judicial takings” case that was argued in the Supreme Court last December, and is now awaiting disposition (our summary page contains links to the briefs — including the amicus brief we filed — and other case materials).

And when the Times goes back, it really goes back:

The sands found Destin first. They started off eons ago, from the Appalachian Mountains, washing their way down the rivers that flow into the Gulf of Mexico. Winnowed to pure, hardy quartz, the sediment moved with the gulf’s currents and gathered into the necklace of narrow barrier islands that buffer Florida’s Panhandle. Time and tides refined the sand into a soft, sun-bleached powder. By the 1830s, when a Yankee…

Continue Reading Behind The Music: Stop The Beach Renourishment And Judicial Takings

Technology permitting, we are live blogging today’s oral arguments in Klumpp v. Borough of Avalon,No. A-49-09 (certification granted Nov. 10, 2009).

That’s the case in which the New Jersey Supreme Court is reviewing the decision from the AppellateDivision which held that the government can assert inverse condemnationin order to take property without compensation. (If that leaves you scratching your head, you are not alone — the New Jersey Law Journal called the decision “a bizarre condemnation.” More about the case here, including links to the Appellate Division’s per curiam opinion and the merits and amici briefs.

The court’s web site states the issue simply:

May a municipality occupy a property and obtain title through inverse condemnation without initiating condemnation proceedings under the Eminent Domain Act, N.J.S.A. 20:3-1 to -50?

Arguments are set to begin at 11:00 a.m., Monday, March 22, 2010 in Trenton. Although we are…

Continue Reading Live Blog Of New Jersey Supreme Court Oral Argument In Klumpp v. Borough of Avalon (The “Bizarre Condemnation”)

The latest skirmish in California’s mobile home rent control wars, this time from the California Court of Appeal, Fourth District, in two cases out of San Diego county, MHC Financing Ltd. P’ship v. City of Santee, No. D053345 (Mar. 15, 2010).

The cases present a convoluted series of facts and procedural twists which we are not going to rehash, but recommend that you read yourself. It’s a long opinion (50 pages), but it’s worth delving into the details. The court held:

  • First, the property owner “sustained no legally remediable injury” from the retroactive application of a mobile home rent control ordinance which the city adopted to correct errors in an earlier-adopted mobile home rent control ordinance (the erroneous ordinance was based on the original version of a proposed initiative ordinance, and not the modified initiative ordinance which was certified by petition) (slip op. at 15-19).
  • Damages are not an

…
Continue Reading California Court Of Appeal: Takings Claims Brought Too Early, Too Late, And No Damages For Violations Of The Right To Petition (Inter Alia)

This just in: the U.S. Court of Appeals for the Ninth Circuit will be hearing Guggenheim v. City of Goleta, No. 06-56306 (Sep. 28, 2009) en banc.

The panel opinion in Guggenheim held that the city’s mobile home rent control ordinance was a regulatory taking, an issue the court had never considered before:

Daniel Guggenheim and others bring a facial challenge the the City of Goleta’s mobile home rent control ordinance. Guggenheim argues that the ordinance, which effects a transfer of nearly 90 percent of the property value from the mobile home park owners to mobile home tenants, constitutes a regulatory taking under Penn Central Transportation Co. v. New York City, 438 U.S. 104 (1978). We have fielded such challenges before, but have never reached the merits of the takings claim.

Slip op. at 13808-09. What review by the full Ninth Circuit probably portends is that whatever…

Continue Reading Ninth Circuit To Hear Rent Control Takings Case En Banc

The New Jersey Supreme Court has scheduled oral arguments in Klumpp v. Borough of Avalon,No. A-49-09 (certification granted Nov. 10, 2009), to review the decision from New Jersey’s AppellateDivision which held that the government can assert inverse condemnationin order to take property without compensation. (If that leaves you scratching your head, you are not alone — the New Jersey Law Journal called the decision “a bizarre condemnation.”

Arguments are set to begin at 11:00 a.m., Monday, March 22, 2010 in Trenton. We won’t be there, but through the miracle of technology, we look forward to following along via the court’s live webcast site (why don’t all appellate courts do this?). We may even live blog it, as we have done with other appellate oral arguments.

More about the case here, including links to the Appellate Division’s per curiam opinion and the merits and amici briefs.Continue Reading Oral Arguments Scheduled In New Jersey’s “Bizarre Condemnation”

Barista’s note: we posted a version of this story before, on the 30th anniversary of the date the Court issued the opinion (December 4, 2009), but thought we would reprint a more detailed view, recently published in our firm’s newsletter, complete with photos.

Damon Key Celebrates Thirtieth Anniversary of Landmark U.S. Supreme Court Victory

What do you call a court opinion that has been cited by 627 othercourts, expressly followed in 42 cases, distinguished in 24 others, andhas been cited 1,041 times in law reviews and 147 times in legaltreatises?

We call it a landmark.

In 1979, the U.S. Supreme Courtissued its decision in Kaiser Aetna v. United States, a truly landmarkcase, argued and won by Damon Key attorneys Charlie Bocken and DianeHastert.

DDH_RCB_hawaii_kai Onbehalf of the developer of Hawaii Kai, Charlie and Diane took on thefederal government and overturned over a century of seemingly adverseprecedent. Kaiser Aetna was the…

Continue Reading More On The Thirtieth Anniversary Of Kaiser Aetna

Remember Klumpp v. Borough of Avalon, No. A-2963-07 (per curiam), the decision from New Jersey’s Appellate Division which held that the government can assert inverse condemnation in order to take property without compensation? 

As noted in this order dated November 19, 2009, the New Jersey Supreme Court has granted the property owners’ petition (available here). We called the decision “kafkaesque,” since we couldn’t quite figure how the appellate court reached the conclusion which it did. The New Jersey Law Journal called the decision “a bizarre condemnation.”

Why the perjorative labels?

The appellate division held that the government can assert inverse condemnation. Yes, you read that right: inverse condemnation is a cause of action which the government may assert to allow it to take property without compensation.

Confused? You are not alone. Here’s our recipe for straightening yourself out:

Start here, our summary of…

Continue Reading Latest Briefs In New Jersey’s “Bizarre Condemnation”