Inverse condemnation

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This one is California process-specific, but we think the California Supreme Court’s opinion in Weiss v. People ex rel Dep’t of Transportation, No. S248141 (July 16, 2020), is still worth a read for you non-Golden Staters.

Why, you ask? Well, we all have been in the situation where, just before you are about to empanel your valuation jury, the court entertains motions in limine that look a lot like summary judgment motions. You know, things like “their theory of valuation is no good,” or “my theory is the only theory,” etc., etc. You can prepare a case for months, only to have it blown up on the literal eve of trial. It’s wasteful, based on unfair surprise. 

So California has a procedure — only applicable to eminent domain cases — that front-loads these type of questions. Any party may file what is called a “1260.040” motion (we’ll let…

Continue Reading Stay In Your Lane, Eminent Domain: California’s Eminent Domain Procedures Aren’t “Imported” Into Inverse Cases

Check this out. In Willowbrook Apts, LLC v. Mayor & City Council of Baltimore, No. 1:20-cv-01818 (July 6, 2020), the U.S. District Court for the District of Maryland denied the plaintiff/property owner’s motion for a temporary restraining order, in a case challenging the COVID orders that pretty dramatically alter the landlord/tenant relationship in Maryland:

Specifically, the Baltimore City Council passed the Rent Increase Protection Act on May 19, 2020 (“Baltimore City Act”). On May 23, 2020, the Howard County Council passed the Rental Protection & Stability Act (“Howard County Act”), and the city of Salisbury followed suit one week later (on June 1, 2020) with Ordinance No. 2599, which amended chapter 15.26 of the city’s Municipal Code (“Salisbury Act”).

These laws (the “Acts”), while enacted in different jurisdictions, have the same three fundamental components, which Plaintiffs contend are constitutionally infirm. First, the Acts prohibit housing providers from increasing a…

Continue Reading Fed Ct: Property Owners Not Irreparably Harmed By COVID Rent Orders (Because They Might Be Able To Get Compensation Later)

KingStreet

Breaking! In H.C. Cornuelle, Inc. v. City and Cnty of Honolulu, No. 14068 (Haw. July 17, 1990), the Hawaii Supreme Court held that the City and County of Honolulu inversely condemned a strip of private property in downtown when it prohibited development and use of that land because the City intended to acquire it in the future for a road-widening project.

Wait, what? “Breaking,” you say? This memorandum opinion was issued nearly 30 years ago. What gives? Well, we remember this case from back in the day when we were just starting out, but had long forgotten about it. Plus, the same case resulted in one of the first post-Williamson County Ninth Circuit opinions, because the landowners originally sued for the taking in federal court, but were bounced out for ripeness. So they tried the takings case in a Hawaii state court. The Hawaii Supreme Court’s opinion…

Continue Reading HAWSCT: City’s Prohibiting Use Of Property Pending City Acquisition Is Land Banking Taking

We joined friend and colleague Clint Schumacher for the milestone 50th episode of his essential Eminent Domain Podcast. 

If you are not already a subscriber and regular listener, you should be. Clint features interesting guests (present company excepted) and listening in is a good way to keep our community together, especially when many of us may be feeling isolated and shut off from our friends and fellow property law travelers.

The 50th Episode is indeed a milestone. Anyone who has tried it knows that putting together a podcast is nowhere near as simple as you might think. Scheduling guests. Getting the sound right. Mixing boards. Editing it so the guest doesn’t sound completely illiterate (thanks for removing the “you knows” and “uhhhhhs,” Clint). Bumper music. So thank you Clint, for providing this service for the rest of us. (If you have any suggestions for guests or topics, be sure…

Continue Reading We Join Clint Schumacher For The 50th Episode Of The Eminent Domain Podcast To Talk COVID Takings

Here’s the amicus brief filed yesterday in a Virginia Supreme Court case we’ve been following.

This is a case at the intersection of property and takings law, and environmental protection. Several Nansemond River oystermen own a lease from the state for the riverbed, which among other things, allows them to harvest some of the oysters that Virginia is so well known for. But they were forced to bring an inverse condemnation claim in state court, asserting that the City’s dumping of wastewater in the river — and prohibiting the harvesting of oysters during those times — was a taking under the Virginia Constitution’s taking or damaging clause (article I, § 11).

The trial court sustained the City’s demurrer, accepting the City’s argument that it has the right to pollute the river, based in part on the U.S. Supreme Court’s decision in Darling v. City of Newport News, 249 …

Continue Reading Amicus Brief In Virginia Oyster Takings Case: City’s Purposeful Pollution Of River Is A Taking Under The Virginia Constitution

Please plan on joining us on Wednesday, July 22, 2020, at 1pm ET (10am PT) for a long-form program on “Emergency and Police Power: Property Claims in Times of Crisis.”

Our speakers are Professors Craig Konnoth (Colorado) and John Nolon (Pace), and one of the lawyers on the forefront of the nationwide legal challenges, Harmeet Dhillon (San Francisco). I’ll be moderating, along with Professor Sarah Adams-Schoen (Oregon).

Here’s the program description:

On the eve of the centennial of Pennsylvania Coal Co. v. Mahon (US 1922), this panel will revisit the question: How far can the police power be stretched to protect the public against dangers? The panel will evaluate the scope of state and local authority to respond to emergencies and the implications for private property rights—asking, how far is too far? What is the scope of implied limitations on private property rights in times of crisis? When…

Continue Reading July 22, 2020: “Emergency and Police Power: Property Claims in Times of Crisis” (ABA Webinar)

As we noted here, property owners sued the New York governor asserting that one of his emergency measures to respond to the coronavirus crisis (a suspension of eviction proceedings) is a taking.

Yesterday, the District Court denied the plaintiffs’ motion for summary judgment, and entered summary judgment in favor of the governor. Order Denying Plaintiffs’ Motion for Summary Judgment and Granting Defendant’s Motion for Summary Judgment, Elmsford Apt. Assocs., LLC v. Cuomo, No. 20-cv-4062 (CM) (June 29, 2020).

No physical take (see Yee: you invited the tenants in, owners). And no regulatory taking either because — you guessed correctly — this is “temporary” and Tahoe-Sierra. When this is all done, no-harm, no-foul. And not a Lucas taking because the restrictions left the owners with some use and value, so this is a Penn Central analysis. And you can guess where the Penn Central analysis leads, no?…

Continue Reading SDNY: No Taking For NY’s Eviction Moratorium (It’s Temporary, And You Invited Them In Landlords)

Lech

The Supreme Court today declined to review a Tenth Circuit decision that held a municipality could not be liable for a taking when its police officers pretty much destroyed a house in the course of dislodging a suspect who had holed up there. 

Along with our colleague Bill DeVinney, we filed an amicus brief in support of the homeowner, arguing that an invocation of “police power” isn’t the only question in these kind of cases, and the government’s assertion that it destroyed property for a police power purpose is but one of the factors a court considers when an owner asserts the destruction resulted in a taking. Police power may be a compelling factor militating against compensation. But it should never be the sole factor, as the Tenth Circuit concluded.

We had hoped that the Court would take notice of this case because after after the petition was filed, the…

Continue Reading Cert Denied In Police Power Takings Case (Lech v. Greenwood Village)

Timothy Harris (Seattle U.) has posted his forthcoming article (Loyola L.A. L. Rev.) about takings and coronavirus shut downs. Well worth a read, and adds to the growing list of scholarly inquiry into the question, which includes Prof. Shai Stern’s “Pandemic Takings: Compensating for Public Health Emergency Regulation,” and our own “Evaluating Emergency Takings: Flattening The Economic Curve.

Here’s the abstract of Prof. Harris’ article:

The 2020 Coronavirus Pandemic and the ensuing shutdown of private businesses — to promote the public’s health and safety — demonstrated the wide reach of state and local governments’ police power. Many businesses closed and many went bankrupt as various government programs failed to keep their enterprises afloat.

These businesses were shut down to further the national interest in stemming a global pandemic. This is an archetypal example of regulating for the public health – preventing a direct threat that sickened…

Continue Reading New Article: “The Coronavirus Pandemic Shutdown and Distributive Justice: Why Courts Should Refocus the Fifth Amendment Takings Analysis”

Here’s the recording of our webinar from earlier this week, in which we and fellow Honolulu lawyer Jeff Portnoy did our best to address some of the many questions that have arisen during the coronavirus shut-down.

Jeffrey Portnoy and Robert Thomas talked about what we can expect as the state and counties slowly lift their seemingly endless stay-at-home orders, which have discriminated between “essential” and “nonessential” workers, mandated “social distancing” and mask-wearing, and imposed 14-day quarantines on arriving airport passengers, both tourists and residents returning home.

During the hourlong event, Portnoy and Thomas considered whether businesses destroyed or devastated by the lockdowns have any legal recourse, and whether proposals being suggested to revive Hawaii’s devastated tourism industry, such as replacing the 14-day quarantines with various forms of testing and tracking, might violate constitutional privacy protections.

We’ve written up two articles with our thoughts on these issues:

The first…

Continue Reading Video: “Lockdown, Testing and Tracking: Are They Really Legal?” (A Look At Hawaii’s COVID Response)