Inverse condemnation

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Another complaint asserting that a business that had to shut down is entitled to compensation for a taking (among other claims). The business in this case is a law firm, and the complaint is a class action. This joins a long (and growing) list of similar complaints. See here, here, here, here, here, here, here, here, here and here, for example. 

This complaint alleges both a Lucas total wipeout taking, as well as an ad hoc Penn Central type taking.

Read more analysis from Allan Zhang (“Law Firm Cites Founding Fathers in Suit Against Governor Cuomo and Attorney General“) from McKirdy Riskin Olson DellaPelle, our friends and colleagues in New Jersey.

Complaint, Hoganwillig, PLLC v. James, No. 1:20-cv-00577 (W.D.N.Y. May 13, 2020)

Continue Reading New Coronavirus Complaint: Shut Down Order Took Our Law Firm (NY)

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Here’s what we’re reading today as we enter a long weekend (who can tell?):

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Continue Reading Saturday Readings: Commandeerings, Business Reopenings, #coronalaw Property Rights

Our shut-in time has got us to thinking.

We’re all environmentalists now. This is the precautionary principle writ large. In a way, this is only part of a greater problem.

Welcome to the Twitterverse. We now have access to a vast amount of data — very often on a granular level — and this moves faster than the ability

Americans like to work

Americans are pretty wiling to give our elected leaders a lot of slack

playground Constitution has serious legs

Most don’t understand that their rights are, in normal time, highly restricted, at least in courts

takings lawyers are not really surprised as everyone else – we’re used to courts deferring to what may look like excessive and unwarranted assertions of governmental power. Unlike a lot of other litigation involving the government, representing property owners in eminent domain or takings cases

basic takings doctrine is really incoherent

we already…

Continue Reading Things I’ve Learned (Am Learning) About #CoronavirusLaw

Last Friday, we had the good fortune to moderate a debate between two scholars — F.E. Guerra-Pujol and Ilya Somin — on the question of takings and emergencies (“COVID-19 & Property Rights: Do Government Actions in Response to the Coronavirus Pandemic Create Compensable Takings?“). This issue has resulted in a flurry of claims nationwide. See here, here, here, here, here, here, here, here, here and here, for example)

Note: the recording of that session will be available and when ready, we’ll post it here. 

Professor Guerra-Pujol has also written up some post-session thoughts on his blog, prior probablity. In “Property rights panel: a recap,” he summarizes his thoughts and those of Professor Somin. 

Rather than summarize his summary, we simply suggest you visit his blog and read it (it’s a quick read).

The entire discussion…

Continue Reading A Good Time To Make Bad Law?

The hits keep on coming. Here’s the latest complaint alleging that a coronavirus-related shut-down order is a taking (among other things).

This joins a long list (see here, here, here, here, here, here, here, here and here, for example) of complaints alleging takings. We’re guessing there’s no horizon on such claims in sight yet.

Here’s a summary of the takings claim:

The Orders and Emergency Directives effectively amount to an impermissible “partial” or “complete” taking in violation of the Takings Clause of the Fifth Amendment to the U.S. Constitution in that the prohibition of Plaintiffs’ operation of their “Non-Essential Business” constitutes a regulatory taking of private property, for public purpose, without providing just compensation therefore. Furthermore, the Orders and Emergency Directives violate the Takings Clause of the Fifth Amendment in that the complete prohibition of the business operations of “Non-Essential Businesses&rdquo…

Continue Reading One More Coronavirus Takings Complaint (Nevada, pt. II)

A development in the “oyster takings” case that we’ve been following as it has worked its way up to the Virginia Supreme court: that court today issued this Order, in which it awarded an appeal by Nansemond River oystermen (and the City of Suffolk’s cross-appeal) who claim that their property was taken when the City dumped sewage into the river and declared a “condemnation zone” (i.e., no oyster harvesting). Along with our William and Mary Law class, we took a field trip to the site last year (video above).

Some background, since this is a case at the intersection of property and takings law, and environmental protection. The 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…

Continue Reading Virginia Supreme Court To Consider Whether City Has The Right To Pollute Chesapeake Bay

Even as some jurisdictions are easing the restrictions, here is the latest coronavirus-related complaint asserting a taking. This one was filed in an Illinois federal court, and joins an ever-growing list of similar claims (see here, here, here, here, here, here, here and here).

The complaint is a “pure” takings claim — it doesn’t challenge the authority of the governor to shut things down, nor does it challenge the “readily-apparent public purpose” of the action. See Complaint at 5, ¶ 10.

The remedies sought? “WHEREFORE, Plaintiffs request that the Court declare the action of the State a taking of private property for public benefit, and order the determination of Just Compensation to the Plaintiffs by a jury pursuant to Illinois Law, and all other appropriate relief.” Complaint at 10.

We wrote down our thoughts on these type of claims in this piece: …

Continue Reading One More Coronavirus Complaint (Ill.): Indefinite Business Closures Are Takings

Here’s another coronavirus-related complaint asserting a taking.

But unlike other, recently-filed complaints (see here, here, here, here, here, here and here), this one doesn’t object to shut down orders. Instead, it challenges two measures undertaken by local authorities related to the owner/tenant relationship.

To deal with the pandemic, Union City, New Jersey adopted two ordinances. First, for units already subject to the city’s rent control ordinance, it froze rents retroactive to March 1, 2020. Second, it froze all evictions. These, according to the Complaint, are takings. Here are the allegations:

78. Plaintiff repeats and realleges the previous allegations as if fully set forth herein.

79. By adoption of the Freeze Ordinance, Plaintiff and its members have been deprived of their vested contractual and property rights without due process of law or adequate compensation in violation of the United States and New Jersey Constitutions.

80. …

Continue Reading Yet Another Coronavirus Complaint: Eviction, And Retroactive Rent Freeze In Rent-Controlled Apts Is A Taking

Here’s the latest complaint asserting that a state governor’s business shut-down order (under which certain businesses are deemed “essential,” while others not) is a taking, inter alia, that joins a growing list of similar lawsuits (see here, here, here, here, here and here).

This one is by licensed beauty professionals and has a slightly different flavor than other similar complaints, because the plaintiffs are alleging a specific property right in their licenses, raising the question of whether a state-granted or state-recognized license is a property interest that needs to be condemned if the government prohibits the licensee from actually using it. The plaintiffs argue a Lucas taking:

113. The regulatory actions taken by the Defendants have resulted in Plaintiffs being deprived of all economically beneficial or productive use of their property including, without limitation, their licenses, their leased property, and their business property, and…

Continue Reading Another Federal Takings Complaint For Business Shut-Down Order (California)