Inverse condemnation

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Earlier this year, I had the honor of moderating a panel speaking about transportation sharing legal issues at the University of Hawaii Law Review‘s sharing economy symposium. The editors have been hard at work since, and the symposium issue is being printed as we speak.

They also permitted me to pen this little missive, a short essay in which I discuss several recent cases about transportation sharing to illustrate what I see as one of the problems with how regulatory takings claims are framed. 

This essay will review several cases which the sharing economy has thus far produced, cases where taxicab companies have sued municipalities for allowing ridesharing services to operate without medallions, most often employing a regulatory takings theory. I argue that the approach employed by these courts wrongly focus on the property interests involved, rather than where the real analytical question resides: what are the investment-backed expectations…

Continue Reading New Article: “Property” And Investment-Backed Expectations In Ridesharing Regulatory Takings Claims

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So how does a property lawyer salve the wounds of the last few days, which saw a really bad Supreme Court ruling in a regulatory takings case, and shortly thereafter the justices deny review of your just compensation petition while you just happen to be in Los Angeles, California?

Langer’s Deli, that’s how. 

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First, some background.

Many years ago, when my mother was still alive, she resided in Honolulu at an assisted living place. Very nice it was, and it allowed her to remain independent much longer than she might otherwise have been able to alone, and in my estimation probably added 10 years to her life. One of her fellow apartment owners was Robert Corn, a lawyer who had retired from his long career as a senior deputy District Attorney in (and for) the County of Los Angeles.

When he learned I too was a lawyer, we’d…

Continue Reading The Larger Parcel, Eminent Domain, And The World’s Best Pastrami Sandwich

After Murr, the pending cert petition in Lost Tree was D.O.A., and today, the Court made it official. Cert denied. We thought that the Federal Circuit’s denominator analysis was the better one (although pretty much anything would have been better than what Justice Kennedy and his Immortals came up with in Murr). But since Lone Tree was a property owner win in the Federal Circuit, cert denial isn’t a bad thing.

The denial also let stand the Federal Circuit’s (correct) rule that it isn’t an economically beneficial use when the only use left after a regulation is that the property may recover its value some time in the future (aka “investment value”). This blows significant holes in the government’s common argument that the regulation isn’t a wipeout or a significant loss under Penn Central, because property usually rises in value so one day, the economic impact…

Continue Reading Cert Denied In Lost Tree (Relevant Parcel)

What to make the Justice Kennedy-authored 5 justice majority opinion in Murr v. Wisconsin, No. 15-214 (June 23, 2017)? 

There, the majority adopted — maybe “created from whole cloth” would be a more accurate description — a multifactor test for determining the “larger parcel’ or “denominator” in regulatory takings cases where the owner possesses more than a single parcel of land.  We quoted the opinion’s list in this post, and won’t repeat it entirely here, but below is a short list of things that now must be considered by lower court judges (not juries) when they are deciding how much of the property the plaintiff owns can be used to measure the impact of the regulation on the parcel which she claims was taken:

  • The “treatment of land.” Yes, the actual metes-and-bounds of the legal parcel, but also, get this, the “expectations … an acquirer of land must

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Continue Reading Justice Kennedy’s Social Justice Warrior Test For Takings Clause “Property” In Murr v. Wisconsin

Update: Here are my first thoughts on Murr – “Justice Kennedy’s Social Justice Warrior Test for Takings Clause Property in Murr v. Wisconsin“

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The title alone should tell you this was authored by Justice Kennedy, which means that, as we thought it might do, today the U.S. Supreme Court held in Murr v. Wisconsin, No. 15-214 (June 23, 2017) that in determining the “denominator” in regulatory takings cases — in other words, what “property” owned by the plaintiff is the claimed diminution in value of the taken property compared — that “a number of factors” make up the inquiry, including: (1) “the treatment of the land, in particular how it is bounded or divided, under state and local law” (i.e., title); (2) the “physical characteristics” of the property (your guess is as good as ours); and (3) the “value of the property under the challenged regulation”…

Continue Reading SCOTUS, 5-3 Affirms Murr By Penn Centralizing Parcel As A Whole Analysis, Which Must Consider “A Number of Factors”

SCOTUSblog takes note of our cert petition in Bay Point Properties, Inc. v. Mississippi Transportation Commission, No. 16-1077 (cert. petition filed Mar. 3, 2017), a case which seeks U.S. Supreme Court review of a decision by the Mississippi Supreme Court. We represent the Petitioner.

In the “Petitions to Watch” segment, Aurora Barnes writes:

In its conference of June 22, 2017, the court will consider petitions involving issues such as whether the just-compensation clause prohibits a legislature from limiting how just compensation for a taking is calculated and whether the just-compensation clause allows the jury to value the fee interest taken as if it were still encumbered by a discontinued highway easement; and whether the anti-retaliation provision for “whistleblowers” in the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 extends to individuals who have not reported alleged misconduct to the Securities and Exchange Commission and…

Continue Reading SCOTUSblog Notes Bay Point Just Comp Case As “Petition To Watch”

Here’s the latest case in an issue we’ve been tracking, whether takings plaintiffs who bring major claims for just compensation against the federal government must do so in the Article I Court of Federal Claims, or can bring the claim in an Article III district court. The Sixth Circuit recently held that the feds have sovereign immunity, and have only consented to be sued in the CFC. That court also held that there’s no right to jury trial on a takings claim against the feds. [See 7/24/2017 update, below]

In Sammons v. United States, No. 17-50201 (June 19, 2017), the U.S. Court of Appeals for the Fifth Circuit effectively adopted that same reasoning. In a short opinion, it held that takings claims involve “public rights,” and therefore, Congress may validly assign adjudication of those rights to non-Article III courts. Like the Sixth Circuit, the Fifth Circuit panel rejected the…

Continue Reading Fifth Circuit: “the United States’s sovereign immunity can bar cases against it based on the Takings Clause”

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No sleeping under the bridges of Paris!

In Ada County Highway District v. Brooke View, No. 43452 (May 23, 2017), the Idaho Supreme Court held that construction damage caused by the Highway District to property adjacent to — but not part of — a road project for which it took property, was not covered in the condemnation case as damage caused “by reason of … the construction of the improvement.” During construction of the highway widening project, the county damaged a wall belonging to the condemnee. 

The court held that this type of damage was not part of the valuation case in eminent domain, but was covered by tort law. Thus, the property owner could not claim that the cost to repair the damage was part of just compensation and damage, but had to sue the county in a negligence action. The Idaho statute on which the property owner…

Continue Reading Idaho: You Aren’t Special, Just Because You Had Your Property Taken

Here’s the audio recording of the talk we gave to the ABA Section of State and Local Government Law’s Land Use Committee earlier today. (Some of you may note that in the intro we say the talk was on “June 17,” but since that’s tomorrow, we assume you understand that is just an error.)

The links to the cases and materials we mentioned in the talk are posted here. Continue Reading Recording – “Takings: Emerging Issues” ABA State & Local Government Law Section Talk

Update: the audio recording is posted here.

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Here are the links to the cases we mentioned in today’s ABA State and Local Government Law Section presentation, “Takings: Emerging Issues.”

The “Larger Parcel” In Regulatory Takings (and Eminent Domain)

Emerging Issues

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Continue Reading Links From Today’s ABA Presentation – “Takings: Emerging Issues”