Municipal & Local Govt law

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Check out the U.S. Court of Appeals’ opinion in F.P. Development, LLC v. Charter Twp. of Canton, No. 20-1147 (Oct. 13, 2021), in which the court affirmed the district court’s grant of summary judgment to the property owner on its unconstitutional conditions takings claim. 

Short story: Canton’s tree ordinance prohibits property owners from removing trees on their land without Canton’s permission, and also requires owners to either replace any trees removed, or pay between $300 – $450 into the tree fund.

In the course of developing its property, the owner cleared a county drainage ditch of trees and debris after the county refused to do so. But it didn’t get a permit, “someone” dropped dime, and Canton issued a NOV.

The owner sued, alleging all theories of takings: (1) a per se Horne-type taking, (2) a regulatory Penn Central taking, and (3) an unconstitutional conditions Nollan/Dolan taking. After…

Continue Reading City’s Tree-Preservation-And-Mitigation Scheme Is A Dolan Taking

It’s already the law in Georgia that the Georgia Constitution’s Takings Clause waives whatever sovereign immunity the government may enjoy when it comes to monetary relief in a takings claim. See Ga. Dept. of Nat. Res. v. Center for a Sustainable Coast, 755 S.E.2d 184 (2014).

But it remained an open question whether the Georgia Constitution also allows property owners to seek injunctive relief for a taking (in this case, a claim of inverse condemnation). In Dep’t of Transportation v. Mixon, No. S20G1410 (Oct. 5, 2021), the Georgia Supreme Court gave us an answer.

There, the DOT’s road project allegedly caused flooding on Mixon’s land. Mixon brought an inverse condemnation claim, seeking both just compensation and a permanent injunction to prevent future flooding and trespass. The trial court and the court of appeals rejected DOT’s claim of immunity (based on the 2014 decision noted above). The Georgia Supreme…

Continue Reading Georgia SCT To Govt: If You Take Or Damage Property, The Court May Order You To Fix The Problem Until You Pay Compensation

In case you missed it live, here’s the recording of the recent one-hour program on “The Future of Regulatory Takings at the Supreme Court,” featuring our colleagues Joshua Thompson (Pacific Legal Foundation) and Paul Utrecht (Utrecht & Lenvin, LLP), with Jim Burling (PLF) moderating.

The program discussed Cedar Point Nursery v. Hassid, Knick v. Township of Scott, and Pakdel v. City and County of San Francisco and what might be on the horizon.

If you are a takings nerd, a must-listen.Continue Reading Watch: “The Future of Regulatory Takings at the Supreme Court”

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There’s still plenty of time to register and join us for the 18th Annual Brigham-Kanner Property Rights Conference at the William and Mary Law School, Thursday and Friday, September 30 and October 1, 2021.

Yes, you may attend in-person, or remotely. The registration fees are very reasonable, ranging from $0 (yes, free!) to $200 (go here, and click “Tickets” for the details).

This year’s Brigham-Kanner Property Rights Prize winner is Professor Vicki Been (NYU Law). The Conference includes presentations on:

  • Remembering Toby Brigham
  • The Role of Empirical Research in Defining the Scope of Constitutionally Protected Property Rights: A Tribute to Been
  • The Relationship between Eminent Domain and Social and Racial Injustice (this is the panel on which we’ll be presenting)
  • Just Compensation Issues, Changing Public Uses, and Other Recent Developments
  • The Interdependence of Property and First Amendment Rights
  • The Distributional Implications of Land Use Regulation

Details on…

Continue Reading 2021 Brigham-Kanner Property Rights Conference (Sep. 30 – Oct. 1, 2021) – Still Time To Join Us

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The other shoe — perhaps the most predictable shoe drop in legal history — dropped yesterday, and the Supreme Court vacated the stay on appeal in one of the cases challenging the CDC’s renewed eviction moratorium, meaning that the district court’s judgment vacating the moratorium can go into effect. Alabama Ass’n of Realtors v. Dep’t of Health and Human Svcs, No. 21A23 (Aug. 26, 2021) (per curiam).

The six-Justice majority, in an unsigned opinion, held that “”[i]t strains credulity to believe that this statute grants the CDC the sweeping authority that it asserts.” Slip op. at 1-2. Now remember, this is one of the cases challenging the CDC moratorium on non-takings grounds, primarily asserting that the CDC’s authorizing statute does not authorize this sweeping an action (or if it does, the statute is unconstitutional). For a complete analysis of the opinion, see lawprof Ilya Somin’s hot take: “…

Continue Reading SCOTUS Strikes Down CDC Eviction Moratorium And Leaves Tantalizing Clues About Takings

On one hand, the U.S. Court of Appeals’ opinion in Buending v. Town of Redington Beach, No. 20-11354 (Aug. 20, 2021) is not a big deal, at least in terms of the issue in the case: did the Town take the plaintiffs’ private beach property when it adopted an ordinance allowing the public to use it? Maybe it did, maybe it didn’t. The opinion simply vacates the district court’s grant of summary judgment to the property owners because there are disputed issues of fact on the Town’s affirmative defense of customary use. The district court concluded the Town could not raise the customary use defense.

The Eleventh Circuit, however, held that the Town was not precluded from raising the defense that the property the plaintiffs claimed was exclusively private was also subject to the public’s use under longstanding custom, and that the Town’s opposition to the plaintiff’s motion for …

Continue Reading CA11: No Summary Judgment For You On Takings Claim When Town Provided Some Evidence Of Public Customary Use Of Beach

All the topics you want to know about, presented by top-notch faculty from across the nation. Sessions include:

  • Keynote: Do Animals Have Property Rights?
  • Did the Supreme Court Signal a New Direction in Property Rights in Cedar Point Nursery?
  • Maximizing Relocation Benefits: Understanding the Law and Regulations to Ensure Fairness
  • Challenging Public Use: Lessons From a 67-Day Trial
  • COVID Takings
  • Property Rights as Civil Rights
  • Eminent Domain National Update
  • Federal Court and the Daubert Challenge: How to Prepare
  • How to Position Your Client for the Fallout When Projects Don’t Get Built
  • Rural Broadband and the Emerging Constitutional Challenges
  • Are Precondemnation Entry Statutes Still Valid After Cedar Point Nursery?
  • How Condemnor and Property Owners’ Counsel Prepare the Battlefield
  • How Will the Trillion Dollar Infrastructure Bill Impact Your Practice?
  • Ethics
  • …and more, including a full slate of networking and social events!

We’ve sold out the last few years, so don’t Continue Reading Registration Open Now: ALI-CLE Eminent Domain & Land Valuation Litigation Conference, Jan 26-29, 2022, Scottsdale

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Yes, it’s that time of the year again. Fall’s-a-coming, and that means that soon, we’ll be back at the William and Mary Law School in Williamsburg, Virginia to lead two courses:

  • Eminent Domain and Property Rights
  • Land Use Controls

Unlike last year, we’re not going to be on Zoom, or in the Tennis Center, or even spread out in a distanced classroom. Back in-person with some precautions taken.

The registration numbers are good (really good), and two full classrooms will be a nice sight after what seems like a very long time.

Time to jack back into the (takings and land use) Matrix.

6a00d83451707369e20240a476d216200c-800wiContinue Reading Back To School: Season Four

The hits keep coming. There have already been complaints alleging takings against the feds for the CDC eviction moratorium, and against the State of California for its moratorium. 

Now this, a complaint against the City of Angels alleging that its version of the moratorium works a taking, either a per se physical invasion taking, a regulatory taking, and a taking under California law.  

Not much more to say about it, unless you want to check out the LA Times’ report on the filing, “Landlord sues L.A. for $100 million, saying anti-eviction law caused ‘astronomical’ losses.”

Barista’s note: sorry about the potty-mouth movie clip at the top, but we’ve always thought this character’s sardonic comment about an ongoing situation (the 1968 Tet Offensive) really encapsulated the burden-spreading vibe of Armstrong v. United States, 364 U.S. 40, 49 (1960) (“The purpose of the Takings Clause is to “bar …

Continue Reading New Complaint: LA’s Eviction Moratorium Is A Taking

The U.S. Court of Appeals for the Eleventh Circuit’s recent opinion in A Flock of Seagirls LLC v. Walton County, No. 20-12584 (Aug. 5, 2021) isn’t about judicial takings, or even about eminent domain (even though a straight condemnation turned up in the factual background).

But this blog’s frequently flyers might want to take a read anyhow because it involves public and private rights of use in the dry-sand beach along the Florida coast. We know those issues are closely related to our faves like public trust, judicial takings and the like, so read on.

Here are the facts. The county holds an express easement along two beachfront lots for “a way of passage, on or by foot only” that the State of Florida earlier had exacted from the owners in the course of eminent domain proceedings. But if the county tries to use the easement for some…

Continue Reading We Already Have An Express Easement Allowing Public Foot Traffic On Private Beach. Walton County: Hold My Beer!