Land use law

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If you are going to be attending the ABA Annual Meeting in San Francisco next month, here are some of the CLE and other programs of interest to property, land use, and eminent domain types, sponsored by our Section, the State and Local Govt Law Section: 

Thursday, Aug. 8

  • Knick Overrules Williamson County: What Does it Mean for Eminent Domain (in person, or webinar)

    In June 2019, the Supreme Court overruled its Williamson County precedent, which required that property owners, as a practical matter, must bring their Fifth Amendment takings claims against state or local governments in state courts. The Court’s new decision, in Knick v. Township of Scott, allows them to bring their inverse condemnation claims directly in federal court. Their insights into this important decision and its ramifications will be discussed by panelists who pled both sides of this case. Moderator: Steven J. Eagle, Professor Emeritus,

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Continue Reading Dirt Lawyer CLE At ABA Annual Meeting (San Francisco)

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We’ve resisted for as long as we can.

Here’s our take at telling the Williamson County and Knick story, 100% in memes.

Why, you may rightly ask? 

Well, it started with our Knick amicus brief, which included a meme that we thought captured well the injustice of property owners being prohibited by Williamson County from raising their federal constitutional claims in federal court (or anywhere, for that matter).

And then, as these things often do these days, the tail started wagging the dog. Readers didn’t want our cogent and deep analysis, they wanted more Knick memes. And rather than post those willy-nilly, we decided to do ’em all in a single post, and be done with it. 

So here you go. For those of you who dig this stuff, read on. If you think we missed any, or would like to send your own to fill…

Continue Reading Knick, Entirely In Memes

Legalalertknick

We’ve already set out our general thoughts about the Supreme Court’s decision in Knick v. Township of Scott in a series of posts on the case. But we haven’t yet noted what the case might mean on the ground in Hawaii, our home turf. 

In a client alert we did: Hawaii’s property owners now have many more options for fighting back against oppressive government regulation of property than they did last week: 

  • You can go straight to federal court to claim that a county ordinance or regulation has violated your Fifth Amendment rights, if the regulation allows the public to enter your land, or severely restricts your uses of your property. You no longer need to go to state court at all. You still may choose to do so—and there may be good reasons why you may want to consider state court—but you cannot be forced to.
  • There may

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Continue Reading What The US Supreme Court’s Property Rights Decision Means For Hawaii’s Property Owners

Restatement cover page

Here’s the article, recently published in the UMKC Law Review with thoughts on Murr v. Wisconsin, the case about the “denominator” issue in regulatory takings cases.

We won’t get into it in detail (if you are interested, you can read the article yourself), except to say that therein we offer views of what test the Court should have adopted to analyze whether the Murr family’s two parcels should be considered as one parcel for purposes of whether they were denied productive use of their property by Wisconsin’s environmental regulations. As you recall the Justice Kennedy authored Murr majority adopted a test with a mishmash of factors (what we waggishly labeled his “social justice warrior” test). The article argues that the Court should have instead applied the old “three unities” test from larger parcel questions in eminent domain. That test focuses on the owner’s joint use of the property. …

Continue Reading New Article: Restatement (SCOTUS) of Property – What Happened to Use in Murr v. Wisconsin?

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Yes, this is detail from the Supreme Court’s front door.

This is the first in what will be a short series of five posts with thoughts on the landmark decision in Knick. In this installment, a crash course in the extensive doctrinal background necessary to understand why the Knick Court did what it did. Here are the related posts:

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The opinions in last week’s ruling by a sharply-divided Supreme Court, Knick v. Township of Scott, No. 17-647 (June 21, 2019) employed a lot of very evocative language: “aborning,” “Catch-22,” “loot,” “shaky,” “sue me,” “overthrows,” “smashes,” “smithereens” “first crack,” “points for creativity.” But ultimately, the most important…

Continue Reading Knick Analysis, Part I: After More Than 30 Years, Supreme Court Reopens The Federal Courthouse Door To Property Owners

This is the second in a series of five posts taking a look at last week’s landmark ruling by a sharply-divided Supreme Court, Knick v. Township of Scott, No. 17-647 (June 21, 2019). Here are the related posts:

In this post, we’ll take a look at the case which finally convinced the Supreme Court that it was time to revisit the Williamson County state-litigation ripeness rule, Knick v. Township of Scott, 862 F.3d 310 (3d Cir. 2017). What we call the Case of the Zombie Zoning Inspectors. 

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The Township of Scott, Pennsylvania, apparently…

Continue Reading Knick Analysis, Part II: The Court Finds A Vehicle In A Zombie-Zoning Case

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This is the third in a series of five posts taking a look at last week’s landmark ruling by a sharply-divided Supreme Court, Knick v. Township of Scott, No. 17-647 (June 21, 2019). Here are the related posts:

In this post, we’ll take a deeper dive into the three opinions: Chief Justice Roberts for the five-Justice majority (Roberts, Thomas, Alito, Gorsuch, Kavanagh), Justice Thomas’ short stand-alone concurring opinion, and Justice Kagan’s dissent (joined by Justices Ginsburg, Breyer, Sotomayor, and Kagan).  

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BLUFs

Here are the bottom lines up front, the lenses though which we think you should read each of…

Continue Reading Knick Analysis, Part III: What It Means To “Take” Property Without Just Compensation – “A bank robber might give the loot back, but he still robbed the bank.”

Ill_be_back

This is the fourth in our series of five posts with thoughts on the landmark decision in Knick. In this installment, the dissent. Related posts:

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We cannot mask our disappointment with the dissenting opinion. We usually appreciate Justice Kagan’s opinions and measured approach, even while dissenting. And after the first oral arguments in October, we thought there was a chance, albeit slim, that she might see things Ms. Knick’s way.

But even though we were pretty sure she would rule for the government, we didn’t anticipate as vehement a defense of Williamson County‘s “no violation until you sue the government for…

Continue Reading Knick Analysis, Part IV: Why Not Let Sleeping Dogs Lie? The Dissent And Stare Decisis

One does knick meme

This is the fifth and last in our series of posts with thoughts on the landmark decision in Knick. In this post, we’ll be puling out our crystal balls, and doing a bit of forecasting. Here are the related posts:

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The execrable state-litigation ripeness requirement is overruled. Ding-dong, the wicked witch is dead. No longer will our only federal review of a federal constitutional issue be limited to petitions for cert at SCOTUS. We can “simply” go to federal court. 

So now what?…

Continue Reading Knick Analysis, Part V: What’s Next?

Kungfu

We’ll be doing a longer post with our thoughts on the U.S. Supreme Court’s landmark ruling in Knick v. Township of Scott, No. 17-647 (June 21, 2019). But here’s the big picture.

It appears that at least five Justices finally seem to understand what we in the property bar have been saying for decades – that the essence of a federal “takings” claim against a local or municipal government is that “by regulation, you have deprived my property of ‘productive use’ [as Chief Justice Roberts noted on page 14 of the slip opinion], and you have not compensated me.” So it is enough that the government hasn’t paid me, and I have no obligation to “ripen” my federal claim by chasing down the local government for compensation in state court.

So nearly 100 years after Justice Holmes famously opined for the Court in Pennsylvania Coal Co. v. Mahon, …

Continue Reading Williamson County Overruled: After Nearly A Century, Supreme Court Finally Has Figured Out What A Regulatory Takings Claim Looks Like