Nollan/Dolan | Exactions

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Upcoming Free Takings Talk (Friday, June 16, 2017). But There’s A Catch…

Posted on June 12, 2017

Mark your calendars for this Friday, June 16, 2017, at 2:00 p.m. Eastern Time for a free talk we’ll be giving, “Regulatory Takings: Emerging Issues.”

Yes, it’s free, but there’s a catch: this talk is sponsored by the ABA Section of State and Local Government Law’s Land Use Committee, and you have to be a Section member (or be willing to join us). One of the benefits of being a member is that you can sign on to these bi-monthly calls and learn about the latest developments in the broad range of topics the Committee covers. Ping me if you want to sign up.

And what’s the deal with the graphic above? Well, starting in August 2017, I’ll be taking over as Chair of the Section (assuming my ABA colleagues do not come to their senses before then), and the big focus of the Chair is to…

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Cases And Links From Washington Eminent Domain Conference

Posted on May 19, 2017

My thanks to Bart Freedman (K&L Gates) and Kinnon Williams (Inslee Best Doezie & Ryder) for asking me to speak on national takings and inverse condemnation issues at yesterday’s Eminent Domain conference in Seattle.

As you can see, the room was packed and standing room only. Here are the cases and issues I mentioned during my talk, “National Takings Trends, Hot Practice Areas, and Property Rights in the Age of Trump:”

Texas border walls: Gideon Kanner on federal takings; eminent domain and the (2008) border fence is there a “border patrol” servitude?seizures at border inspections and takings a (northern) border story, from Washington state
Pipelines and energy transmission corridors: Pennsylvania Supreme Court on public use. Pennsylvania appeals court on public use and the polar vortex.
Pipelines and energy corridors II: Through Kentucky and “public” use.
Flooding cases – a hot topic.
Lessons

…
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Fed Cir: Even Uberlawyers’ Plaintiffs Need Standing To Bring A Takings Claim

Posted on May 9, 2017

Here’s the latest in the “audacious” takings case brought by AIG against the federal government for the 2008 fed takeover. The heart of the complaint is that the acquisition of AIG was an unconstitutional exaction. The Court of Federal Claims rendered a verdict that was hailed as a groundbreaking victory, but which ultimately denied the only relief which the CFC can enter, a money judgment. An appeal to the Federal Circuit followed, naturally.

In Starr International Co., Inc. v. United States, No. 15-5103 (May 9, 2017) that court threw out the takings claim for lack of standing. The corporation had standing to assert the claim, not individual shareholders.

There’s a lot to digest in the 38 page opinion, and the 32 page concurring opinion, and we will allow you to read them for yourself. The key portion of the majority opinion, in our view, starts on…

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Seattle Eminent Domain Conference, May 18, 2017

Posted on May 2, 2017

Do you really need an excuse to visit Seattle? If you do, and want to earn some CLE credit while you’re at it, check it out the brochure for the upcoming Eminent Domain seminar on May 18, 2017. This is a one-day program that focuses on the hot topics in our area of law. We’ll be speaking about “Changes in National Public Policy” and the latest developments in eminent domain and takings law.

Agenda and full registration information here.

Come, join us.

7th Annual Eminent Domain Seminar, Seattle, Washington, May 18, 2017

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Fla App: A Sorta-Legislative Exaction Is Subject To Nollan-Dolan, But This One Passed The Test

Posted on April 28, 2017

Remember back from Admin Law the notion of a “quasi-judicial” proceeding? That term always has bugged us, because, you know, it was used when an agency was sorta acting like a court (but also was sorta acting like a legislative body). Half full, half empty, take your pick.

The fact pattern presented in the Florida District Court of Appeals’ opinion in Highland-in-the-Woods, LLC v. Polk County, No. 2D15-2801 (Apr. 28, 2017), involved the other side of that coin, an exaction the County argued was legislative even though imposed by an agency, and therefore off-limits to the exactions test of Nollan-Dolan-Koontz. (We think distinctions like this don’t matter — that whether or not its a legislature or an agency that is making a demand that in order to make use of your property, that you have to give up a constitutional right — but we recognize that the…

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New Regulatory Takings Cert Petition: Legislature Can’t Simply Declare Private Property To Be Public

Posted on April 27, 2017

Here’s the cert petition, recently filed, which asks the U.S. Supreme Court to review a decision of the North Carolina appellate courts. We say “appellate courts,” because the decision being reviewed is one from the N.C. Court of Appeals, because the N.C. Supreme Court, after granting discretionary review, punted and dismissed the appeal after it was fully briefed and teed up for oral arguments.

What happened that cause the court to dismiss? Who really knows the internals, but the one thing we do know is that some members of the court changed due to a judicial election. We know the above because we were watching the case closely; we filed an amicus brief in support of the property owner in the N.C. Supreme Court, a brief that apparently didn’t get read (not that amicus briefs get read all that frequently anyway, but you get our drift).

The case is…

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SCOTUS Amici Briefs In Legislative Exactions Case

Posted on April 26, 2017

Here are the full set of petitioner-side amici briefs in 616 Croft Ave., LLC v. City of West Hollywood, No. 16-1137, the case which asks the Supreme Court to determine whether the Nollan-Dolan-Koontz exactions standards apply to conditions on development imposed by a legislature.

The City waived response, but the Court asked for one. This could get interesting, so stay tuned.

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SCOTUS Amicus Brief: Lawless Legislatures Should Be Treated The Same As Lawless Zoning Boards

Posted on April 19, 2017

Here’s the amicus brief filed yesterday by the National Federation of Independent Business Small Business Legal Center, joined by Owners’ Counsel of America, in a case we’ve been following.

This case asks the Court to resolve a big outstanding issue: are legislatively-imposed exactions (however that term is defined) subject to the same high level of scrutiny under the Nollan–Dolan–Koontz test as are administratively-imposed exactions?

Our brief argues:

The Respondent, City of West Hollywood (“City”), forces property owners into the same unconstitutional dilemma which faced James and Marilyn Nollan, Florence Dolan, and Coy Koontz. Nollan v. California Coastal Comm’n., 483 U.S. 825 (1987); Dolan v. City of Tigard, 512 U.S. 374 (1994); Koontz v. St. Johns River Water Management District, 133 S. Ct. 2586 (2013). Specifically, the Petitioners were forced to choose between their fundamental rights to either (a) obtain just…

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