Inverse condemnation

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A panel of the Ninth Circuit has revised its earlier opinion in McClung v. City of Sumner, No. 07-35231 (Sep. 25, 2008), adding a footnote:

On slip Opinion page 13750, insert a new footnote 3 at the bottom of the page after the sentence that ends “. . . applies to Ordinance 1603.” (and renumber the subsequent footnotes) [page 15838 of the revised slip opinion]:

We observe that the ordinance before us concerns a permit condition designed to mitigate the adverse effects of the new development. New construction increases the burden on the City’s sewer system and increases the loss that might result from flooding. After experiencing considerable flooding, the City enacted Ordinance 1603 to require most new developments to include specified storm pipes. We are not confronted, therefore, with a legislative development condition designed to advance a wholly unrelated interest. We do not address whether Penn Central…

Continue Reading 9th Circuit: Revised Opinion in McClung v. City of Sumner

Revisiting a decision from September 2007, the Ninth Circuit revised the opinion in Equities Lifestyle Prop., Inc., v. County of San Luis Obispo (No. 05-55406), a decision we originally analyzed here.  In the original decision, the Ninth Circuit affirmed the dismissal of a challenge to avoter-approved mobilehome “rent stabilization” (rent control) ordinance. The landowners sought rehearing or en banc review of the originalopinion, and although the court denied both, it withdrew the earlieropinion and issued a new one.

No change in result — the landowner still lost — but the court revised the opinion, deleting one section, and adding another. In the original opinion, the panel affirmed the dismissal of a challenge to avoter-approved mobilehome “rent stabilization” (rent control)ordinance.  The court ruled:

  • Standing: the county challenged the ability ofthe plaintiff to bring suit because it did not have “title ownership”of the mobilehome park.  The court held that

…
Continue Reading 9th Circuit Takes Belt and Suspenders Approach to Takings and Due Process Challenge to Cal. Rent Control Ordinance

When four justices of the U.S. Supreme Court tell you that a case needs to be overruled, and district judges acknowledge the case “has led to a number of serious problems,” you know something is seriously wrong. Yes, we’re back to Williamson County.

In San Remo Hotel, L.P. v. City & County of San Francisco,545 U.S. 323 (2005) four Justices noted the ripeness rules of Williamson County Regional Planning Comm’n v. Hamilton Bank of Johnson City, 473 U.S. 172 (1985) produce absurd results and deny federalcourt review of federal constitutional rights. Chief Justice Rehnquistwrote:

Finally, Williamson County‘sstate-litigation rule has created some real anomalies, justifying ourrevisiting the issue… I joined the opinion of the Court in Williamson County.But further reflection and experience lead me to think that thejustifications for its state-litigation requirement are suspect, whileits impact on takings plaintiffs is dramatic… In an appropriate…

Continue Reading New Cert Petition on Penn Central and (Yet Again) Williamson County

On November 25, 2008, the Supreme Court will consider whether to review the Sixth Circuit’s decision in Braun v. Ann Arbor Charter Township, 519 F.3d 564 (6th Cir. 2008), a decision we analyzed here. The petition expressly asks the Court to overrule Williamson County.  We’ve detailed the kafkaesque nature of the Williamson County rule many times, most recently here (in a post about another pending petition which asks the Court to overrule the case).  Here are the briefs in Braun:

The Court’s docket report is available here. The cert petition contains three Questions Presented:

1.     Should the Court overrule Williamson County Regional Planning Commission v. Hamilton Bank of Johnson Cityinsofar as it requires property owners to seek compensation in statecourt to…

Continue Reading Overrule Williamson County

What more could we possible say about the bizarre ripeness/issue preclusion Catch-22 brought on by Williamson County Regional Planning Comm’n v. Hamilton Bank of Johnson City, 473 U.S. 172 (1985) that we haven’t said before, several times? The rule is unique to regulatory takings law and forces property owners alleging violation of their federal constitutional rights to litigate those claims exclusively in state court.

If a property owner goes to federal court in the first instance to vindicate its Fifth Amendment rights, it is told it is “too early” and must go to state court first on state law takings claims. When the property owner does so and then comes back to federal court to litigate the now-ripened federal takings claims, it is told it is it already litigated the federal claim (even if it expressly didn’t) and it is “too late.” In San Remo Hotel, L.P. …

Continue Reading Cert Petition: Overrule Williamson County

A pharmaceutical company whose legal prescription drugs were seized as evidence against a third party by the federal government which then let the expiration date pass rendering the drugs worthless, has petitioned the U.S. Supreme Court to review the Federal Circuit’s decision denying compensation.  Amerisource Corp. v. United States, No. 08-497 (petition for cert. filed Oct. 15, 2008).  The petition presents a single Question Presented:

Whether it is a taking compensable under the Fifth Amendment for the  Government to seize (and not return) an innocent third party’s property for use as evidence in a criminal prosecution, if the property is not itself contraband, is not the fruits of criminal activity, and has not been used in criminal activity.

The petition is posted here.

In Amerisource, the Federal Circuit held that when an innocent party’sproperty is seized for use in a criminal prosecution but never used asevidence, no…

Continue Reading Cert Petition in AmeriSource: Government Destruction of Evidence Seized From Innocent Third Party A Taking?

You snooze, you lose.  That’s the lesson from Turnacliff v. Westly, No. 07-15287 (Oct. 15, 2008), where the Ninth Circuit rejected a claim that California’s escheat statute, which sets a rate for interest on abandoned property, violated the Takings Clause.  The owner whose abandoned property was eventually returned (with statutory interest) claimed that the state had a constitutional obligation to use some form of market rate for calculating the interest.

The court assumed the existence of a property right in interest earned on escheated property, but held that because that property itself had been abandoned, the owner had forfeited any property claim in the interest on the property.  The owner got its money back, with interest, and the court held the owner

. . . has no Fifth Amendment right to “actual” or “constructive” interest earned by its property while held by the State; California need not further compensate…

Continue Reading Ninth Circuit: No Taking of Interest on Abandoned (Escheated) Property

The California Court of Appeals, Second District (Los Angeles) today struck down a municipal moratorium on development, which in some cases prevented landowners from developing their properties for 30 years:

We conclude that the resolution, by implementing the moratorium and continuing to prevent plaintiffs from building on their properties, “deprive[d] [plaintiffs’] land of all economically beneficial use.” (Lucas v. South Carolina Coastal Council (1992) 505 U.S. 1003, 1027 [112 S. Ct. 2886, 2899] (Lucas).) Consequently, the city had the burden at trial of proving that the construction ban was justified by “background principles of the State’s law of property and nuisance.” (Id. at p. 1029 [112 S. Ct. at p. 2900]; see id. at pp. 1031–1032 [112 S.Ct. at pp. 2901–2902].)

The city failed to meet its burden of justifying the moratorium — as applied to plaintiffs’ lots — through evidence showing a reasonable…

Continue Reading Cal. Court of Appeals: Development Moratorium a Taking Under Lucas

A very important decision today from the US Court of Appeals for the Federal Circuit.  In Casitas Municipal Water District v. United States, No. 2007-5153 (Sep. 25, 2008), the court held that contractual water rights were taken when the federal government required the landowner to contruct a fish ladder and divert water in order to protect endangered steelhead trout.  The court held that the requirement resulted in a physical diversion of water for public use, and that “Casitas will never, at the end of any period of time, be able to get the water back.  The character of the government action was a physical diversion for public use — the protection of an endangered species.” Slip op. at 30. 

More to follow after a chance to review the opinion in more detail.  Continue Reading Federal Circuit: Government Diversion of Water For Fish Ladder is Per Se Taking

“This case presents an issue of first impression in this Circuit — whether a legislative, generally applicable development condition that does not require the owner to relinquish rights in the real property, as opposed to an adjudicative land-use exaction, should be reviewed pursuant to the ad hoc standards of Penn Central Transportation Co. v. City of New York, 438 U.S. 104 (1978), or the nexus and proportionality standards of Nollan v. California Coastal Commission, 483 U.S. 825 (1987), and Dolan v. City of Tigard, 512 U.S. 374 (1994). We affirm,holding that the Penn Central analysis applies to the 12-inchpipe requirement.” 

McClung v. City of Sumner, No. 07-35231 (Sep. 25, 2008), slip op. at 13744-45.  More, after a chance to review the opinion.Continue Reading Ninth Circuit: Legislative Exactions Not Subject to Nollan/Dolan