Inverse condemnation

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From Reno, Nevada colleague Steve Silva, comes this contribution to our growing collection of Knick/Williamson County-related memes.

Congratulations if you get this without having to do research. If so, you are a True Takings Nerd (and a nerd generally).

For those of you who are not quite getting it, here is the breakdown:

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Continue Reading Friday Takings Fun: More Knick Memes

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Last week, the 15th Annual Brigham-Kanner Property Rights Conference saw the gathering of legal scholars, judges, lawyers, and law students at the William and Mary Law School to award the B-K Property Rights Prize to Cardozo lawprof Stewart Sterk, followed by a day-long conference focusing on Professor Sterk’s work and the latest developments in property rights law.

Professor Sterk joins the pantheon of property law scholars (and a judge and a practitioner) who have been awarded the Prize. Pretty impressive:

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As always, the program starts off with a candlelight dinner and award presentation in the historic Wren Building, definitely a highlight of the Conference. More about the Conference here. 

And there’s nothing like spending the following day addressing some of the most pressing issues in our area, along with the brightest minds in the business (below is the final panel of the day, with Professor John Echeverria…

Continue Reading 2018 Brigham-Kanner Property Rights Conference Report: Emerging Issues

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For the six-hour-plus roundtrip from Williamsburg to DC for last week’s SCOTUS oral arguments in Knick v. Township of Scott, the only assignment our class had — the ticket for the van ride, so to speak — was that each student was required to make two contributions to our day’s playlist. Otherwise, we’d be in for long stretches of possibly awkward small talk. 

The first, a good “road” song. Something to drive to. You know those kind of songs.

The second was a slightly tougher assignment: contribute at least one song that is somehow related to the nature of our class (Law 608: Eminent Domain and Property Rights Law). The contribution need not be directly related to our topic in that it was about eminent domain, property rights, takings, or the like. As long as there was some “hook,” and the contributor could make the connection…

Continue Reading Law 608’s Infinite Playlist: Takings-Related And Road Trip Songs

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Seeking A Cause of Action

It has been just under a century since the U.S. Supreme Court first recognized (in the modern era, that is) the regulatory takings doctrine. You might think that the intervening decades would be enough time to allow the Justices, collectively, to have figured out what a cause of action looks like. You know, just enough to get by a motion to dismiss for failure to state a claim under Rule 12(b)(6).

Unfortunately, yesterday’s oral arguments in Knick v. Township of Scott, No. 17-647 (transcript here, and below), would not confirm that belief.

Our major impression from the argument is that no more than three Justices clearly understand the major difference between an affirmative exercise of the eminent domain power to take private property, and an inverse condemnation action in which a property owner asserts that the exercise of a power other than …

Continue Reading Oranges And Tangerines – The Difference Between Eminent Domain And Inverse Condemnation: Deconstructing The Knick Oral Arguments

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Just out of the Knick arguments. Full report to come later. But for now, these thoughts:

College of Surgeons – D.O.A. I think there’s a consensus to overrule the case to the extent it allows municipalities to remove takings cases to federal court. 

San Remo – On life support. I think also that there may be enough votes to overrule the Catch-22 aspects of that case and the preclusion/full faith and credit trap. 

Here’s the federal government’s position, in a nutshell:

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Justice Kagan, like us, found that distinction hard to swallow. 

Justice Bryer quote of the day: “why not let sleeping dogs lie?” (Asking about stare decisis.)

As for the “big” issue of whether the Court will overrule Williamson County? Too close to call. We didn’t see an obvious majority forming around anything but overruling Chicago and San Remo. No Justice seemed to like Williamson County too much (except…

Continue Reading Meanwhile Back At 1 First Street … Hot Take On The Knick Arguments

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I’m not going to do an in-depth preview of tomorrow’s Supreme Court oral arguments in Knick v. Township of Scott, No. 17-647 for several reasons.

First, a lot of others have summarized the issues already, far better than I can. See the list below.

Second, I filed an amicus brief in the case in support of Ms. Knick, and that brief pretty much sums up my thinking about the case. Williamson County ripeness is something I’ve railed on for a while, and there’s no need for me to say it once again.

Finally, I’m attending the arguments tomorrow with my William and Mary Law class, (they get to see the sausage being made!) and am keeping my powder dry for a post-argument report from the scene. 

First, the previews, followed by some brief thoughts:

  • Read the merits and amici briefs (all 21 of them!) here 

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Continue Reading Knick Preview: Reevaluating Williamson County Ripeness With An Eight-Justice Court – Just How Badly Can SCOTUS Screw Up Takings Law?

Our colleague and co-planning chair Joe Waldo was in town yesterday, so we walked through historic Williamsburg, Virginia (cradle of the Constitution and the Bill of Rights), to invite you to join us for the 36th Annual ALI-CLE Eminent Domain & Land Valuation Litigation Conference (January 24-26, 2019, in Palm Springs, California).

As we wrote in this post, the Conference will feature the nation’s best eminent domain faculty, presenting on the topics we love.

Register now here. Early registration and group discounts available. The 2018 Conference in Charleston sold out, so be sure to sign up now so you don’t miss out. Continue Reading Join Us For The 36th Annual ALI-CLE Eminent Domain & Land Valuation Litigation Conference In Palm Springs (Jan 24-26, 2019)

One more lesson on the speed of the interwebs: we were all set to take a deep dive into the California Court of Appeal’s opinion in an inverse condemnation case, Bottini v. City of San Diego, No. D071670 (Sep. 18, 2018), when our colleague Brad Kuhn analyzed the case at his California Eminent Domain Report blog. 

The title of Brad’s post, “Improper CEQA Determination Does Not Trigger Regulatory Taking,” tells you most of what you need to know. The short story is that the City asserted that Bottini’s planned demolition of a beach bungalow as part of a project to build a new house required assessment and analysis under California’s environmental reporting statute, CEQA (California Environmental Quality Act). Bottini disagreed, asserting the demolition was exempt from CEQA, and, by the way, the delay caused by the City’s wrongful assertion of CEQA authority was a temporary taking. …

Continue Reading Cal App: Landgate’s “Substantially Advance” Standard Isn’t The Takings Test (But The Property Owner Still Loses)

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Come join us for one of the best conferences on property rights and property law at the 2018 Brigham-Kanner Property Rights Conference, October 4-5, 2018 at the William and Mary Law School in Williamsburg, Virginia.

Register here. 

We’ve attended and presented at the Conference in past years, including when it went international in Beijing and at the World Court in The Hague. This year it is back home, and will focus on the work of the 2018 B-K Prize winner, Professor Stewart Sterk of Cardozo Law School. 

The B-K Prize is awarded to a legal scholar, judge, or practicing lawyer who “has advanced the cause of property rights and has contributed to the overall awareness of the important role property rights occupy in the broader scheme of individual liberty.” The list of past prize winners is a pantheon of property law greats. 

We will be speaking…

Continue Reading 2018 Brigham-Kanner Property Rights Conference: Williamsburg, Oct. 4-5, 2018

Here’s the cert petition, filed yesterday, in a case we’ve been following closely. Here’s our short summary of the case, written up when it was ready for argument in the Hawaii Supreme Court. That court’s ruling against the property owner added to the the lower court split on the issue of whether the Takings Clause protects an owner’s use of property, or the value of property. 

Here’s the Question Presented:

In 2000, Douglas Leone and Patricia Perkins-Leone bought beachfront property in Hawaii on which they planned to build a home for their family. The land was zoned for single-family residences, but the County of Maui decided it should be used as a public park. Instead of buying the land, however, the County wielded its regulatory authority to prevent the Leones from developing their property in any way.

The Leones challenged the County’s refusal to allow them to…

Continue Reading New Cert Petition: Is Holding Land With No Present Use In The Hope The Government Allows Some Use In The Future An “Economically Beneficial Use” Of Property?