Municipal & Local Govt law

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Here’s the city’s Brief in Opposition in a case we’ve been following (so closely, in fact, that we filed an amicus brief in support of the property owner – see “Amicus Brief: Invocation Of “Police Power” Is Not Dispositive In Takings“). A case in which the issues have taken on new and heightened importance.

This is the case where the municipal police pretty much destroyed a family home in the course of their efforts to dislodge a shoplifter who had taken refuge there while fleeing. The homeowner sought compensation for a taking. The Tenth Circuit, however, concluded “no taking” because the police were exercising the police power. And you can’t have a taking where the government is exercising the police power, right?

The homeowner filed a cert petition, arguing that “[t]he question presented is whether there is a categorical exception to the Just Compensation Clause when the …

Continue Reading BIO In “Police Power” Takings Case: Can A Municipality Be Liable For A Taking If The Police Destroy Private Property In The Course Of Apprehending A Suspect?


Here’s the recording of the Federalist Society’s Environmental Law & Property Rights Practice Group teleforum we did a couple of weeks ago, “COVID-19 & Property Rights: Do Government Actions in Response to the Coronavirus Pandemic Create Compensable Takings?” Stream above, or download it here.

The issue: how should courts evaluate the claims for compensation arising out of emergency measures? This question is on the front burner at the moment (and will continue to be because the courts will likely be confronted from these type of claims as the fallout continues). For example, here are some of the complaints that have been filed in courts around the nation: see here, here, here, here and here.  

The two featured speakers (Professor Ilya Somin and Professor F.E. Guerra-Pujol), not only debated and answered questions for an hour…

Continue Reading Podcast: COVID-19 & Property Rights: Do Government Actions in Response to the Coronavirus Pandemic Create Compensable Takings?”

Did you know that the North Carolina Constitution does not formally contain a “takings” or “just compensation” clause? Instead of an outright prohibition on uncompensated takings for public use, the N.C. Constitution has a “law of the land” clause:

Sec. 19.  Law of the land; equal protection of the laws.

No person shall be taken, imprisoned, or disseized of his freehold, liberties, or privileges, or outlawed, or exiled, or in any manner deprived of his life, liberty, or property, but by the law of the land.  No person shall be denied the equal protection of the laws; nor shall any person be subjected to discrimination by the State because of race, color, religion, or national origin.

N.C. Const. art. I § 19.

The lack of an express takings clause, of course doesn’t t mean that the government can just take property and has no obligation to provide compensation.

Continue Reading NC Considering Constitutional Amendment: Compensation For Emergency Shut-Downs

Here’s the latest in a case we’ve been following (briefs here, and oral argument recording here).

Any eminent domain lawyer will tell you that loss of access cases can be difficult. In some jurisdictions, you have to lose all access before the court will consider you harmed. Or the courts see a difference between a loss of “direct” access versus “circuitous” access. All we know is that from an owner’s perspective, access to the property can be a key element of its value.

The big question in these cases is who gets to decide: the judge or the jury? And many courts for whatever reason (fear of jury compensation verdicts, perhaps?) cut off the inquiry with bright line no-compensation rules that seem designed more to reserve for judges the critical questions than to facilitate a searching inquiry to whether the property owner has truly suffered a loss…

Continue Reading In Virginia, Where The Baffled Courts Now Compose “Major” vs. “Minor” Streets

Any eminent domain lawyer will tell you that loss of access cases can be difficult. In some jurisdictions, you have to lose all access before the court will consider you harmed. Or the courts see a difference between a loss of “direct” access versus “circuitous” access. All we know is that from an owner’s perspective, access to the property can be a key element of its value.

We thought the 2012 post-Kelo amendment to the Virginia Constitution was designed to address that. Article I, section 11 notes:

… No private property shall be damaged or taken for public use without just compensation to the owner thereof. No more private property may be taken than necessary to achieve the stated public use. Just compensation shall be no less than the value of the property taken, lost profits and lost access, and damages to the residue caused by the taking. The…

Continue Reading In Virginia, Where The Courts Choose The Streets’ Names: Major Or Minor

Screenshot_2020-05-23 CT CMECF NextGen

Things moving quickly: remember way back when — in April, was it? — when a Connecticut lounge owner sued a mayor and the governor, asserting that a shut-down order was a taking? 

Well, the court recently denied the plaintiffs’ request for a temporary restraining order.

There’s nothing in the Ruling about the takings claims as far as we can tell, but we suggest you read it nonetheless because it relies heavily on a U.S. Supreme Court case that has once again become prominent: Jacobson v. Massachusetts, 197 U.S. 11 (1905). That’s the one where the Court held that it was not an unconstitutional deprivation of liberty to require Jacobson to get a vaccine. We think that case and the general sense that courts give a lot of leeway to the other branches when evaluating their responses to emergencies (especially during the emergency) is going to get a …

Continue Reading Court Denies Plaintiffs’ TRO In Coronavirus Challenge

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