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Here are the cases and other items I either spoke about or mentioned at today’s Transportation Research Board‘s 57th Annual Workshop on Transportation Law in Cambridge, Massachusetts:

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Continue Reading Links And Materials From Today’s Transportation Research Board Session

Here’s a cert petition we’ve been waiting to drop, in a case we’ve been following out of Florida.

In Town of Ponce Inlet v. Pacetta, LLC, No. 5D14-4520 (Fla. Dist. Ct. App. June 16, 2017), the Florida District Court of Appeal reversed a Lucas takings verdict, concluding the case might not even be ripe under the “final decision” prong of Williamson County (the prong not being directly challenged in Knick), and that the owner needed to prove a Penn Central taking, because as a matter of law, the town had not appropriated all economically beneficial use of the land. The court sent the case back down for another view by the trial court about whether the case was ripe, and if it was, for another takings trial.  

The case presents quite a developmental horror story (we all have ’em, don’t we?). Read the petition for a flavor …

Continue Reading New Cert Petition: The Other Williamson County Ripeness Test, Intentional Precondemnation Value Depression

Here’s the latest in a case we’ve been following. In Alimanestianu v. United States, No. 17-1667 (May 7, 2018), the U.S. Court of Appeals for the Federal Circuit affirmed the Court of Federal Claims’ ruling rejecting takings liability for the government wiping out a money judgment in favor of terrorism victims against the Libyan government.

Libyan terrorists blew up a plane, and plaintiffs, the survivors of one of the victims, sued Libya and obtained a $1.3 billion judgment in U.S. District Court. Libya appealed and before the appeal was resolved, the U.S. government settled all claims with Libya and vacated the judgment. The settlement with Libya referred claims to a settlement commission, which awarded plaintiffs $10 million. Plaintiffs sued the U.S. for the difference.

The CFC held there was no Penn Central taking because the plaintiffs had no reasonable expectation for any recovery greater than what they got from…

Continue Reading Federal Circuit: Restoration Of Foreign Govt’s Sovereign Immunity For Terrorist Acts Isn’t A Physical Taking Of Victim’s Money Judgment

You have about a week to reserve your tickets for the exclusive Honolulu screening of “Little Pink House,” the feature film about the Kelo v. City of New London case,  scheduled for June 11, 2018:

Two key dates:

  • June 4, 2018: This is the deadline to buy your ticket. The way this works is that if a critical mass of tickets are presold, the screening is a go. If for some reason not enough tickets are sold by June 4, you get a refund. No lose. So buy your ticket here, right now.
  • June 11, 2018: The date of the screening. It will start at 6:30pm, at the Consolidated Theatres Kahala 8 (convenient, plus plenty of parking). Easy. 

We’ve seen the film. It is a compelling piece, and very accurate to the real story (with a few concessions to the art form, of course).

If you know…

Continue Reading Tickets For Honolulu Screening Of “Little Pink House” Still Available

In Hunter Landing, LLC v. City of Council Bluffs, No. 16-2138 (May 16, 2018), the Iowa Court of Appeals held that the jury was entitled to be instructed about all takings theories, and not just limited to a Lucas and physical invasion instruction. 

After several of Hunter’s nonconforming buildings were damaged in a flood and the City concluded all but one of them were more than 50% damaged, the City demolished them. Hunter sued, asserting the City “inversely condemned its property by limiting the right of direct access to the property, restricting the highest and best use of the property, removing buildings, removing electrical power to operate a water well system, removing drainage tubes, and removing septic systems.”

The court gave the jury this instruction:

Land-use regulation does not constitute inverse condemnation requiring compensation if it substantially advances a legitimate state interest. There are two exceptions. When the regulation…

Continue Reading Iowa App: Regulatory Takings Jury Should Be Instructed About Per Se Takings, And Penn Central Test

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Another week, another Federal Circuit panel opinion on takings authored by Judge Timothy Dyk (following the recent MR-GO opinion). And you know what that means: property owners lose.

The Court of Federal Claims concluded that the feds had taken the plaintiff’s lease of of a part of Dallas’ Love Field — under both a Lucas and Penn Central regulatory and physical taking theory — and rendered a verdict of $135 million in just compensation.  In Love Terminal Partners, L.P. v. United States, No. 16-2276 (May 7, 2018), the Federal Circuit, in the Judge Dyk-authored opinion, reversed. 

The facts of the case are not terribly complex. Back in the day, Braniff Airways (those of you of a certain age will remember Braniff) leased land at Love Field. Decades later, in order to spur the growth and use of Love Field’s competition Dallas-Fort Worth airport (DFW), Congress adopted the…

Continue Reading Judge Dyk Strikes Again: No Love For Taking Of Leasehold Of Love Field

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Some of the Land Use Institute faculty, including (front row left), Planning Chair Frank Schnidman and Planning Co-Chair Patty Salkin

Last Friday at the 32nd Annual Land Use Institute in Detroit, I was honored to moderate a freewheeling discussion by a panel of takings experts, Professor Steven Eagle, Minnesota lawyer Howard Roston, and Michigan’s own Alan Ackerman on “Takings, Eminent Domain, and Vested Rights.”

Here are the cases and other materials we discussed, as well as a few others which we did not have time to cover (but wish we could have):

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Continue Reading Cases And Materials From The Takings And Eminent Domain Session At The Land Use Institute

Do we really need to tell you how a rent control regulatory takings claim fared in the Ninth Circuit? We didn’t think so.

In Colony Cove Properties, LLC v. City of Carson, No. 16-562655 (Apr. 23, 2018), a three-judge panel reversed a district court jury verdict which concluded that the City was liable for a Penn Central regulatory taking for the mobilehome Rent Board’s setting of a rent increase artificially low. The total award to the park owner, including damages for lost rental income, attorneys’ fees, and interest, was over $9 million. 

As we wrote in this post, the city and its amici predictably went ballistic and argued that the upholding the verdict threatened the very existence of mobilehome rent control. The court concluded that as a matter of law, the owner failed each of the three Penn Central factors.

First, the owner did not prove that the…

Continue Reading 9th Cir: City Rent Board Determining Owner “Made Enough” Profit Isn’t A Penn Central Taking

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We’re in Detroit the rest of the week at the Mercy Law School for the venerable Land Use Institute, now in its 32nd iteration.

Planning Chair Frank Schnidman has assembled a great faculty including out Detroit colleague Alan Ackerman (above, talking about takings liability for flooding), and we’ll be spending the time talking inverse condemnation, public trust, planning law, homelessness, autonomous vehicles, affordable housing, RULIPA, and similar topics. We’ll be presenting on “Eminent Domain, Vested Rights, and Regulatory Takings,” “Client Representation: Developer, Government, and Citizens Groups,” and “Federal Laws Affecting Local Land Use Decision Making.” 

If you are here with us in Detroit, stop by and say hello. If you aren’t here, shame on you! This is one of the best and most affordable tuition deals in CLE.

But all kidding aside, if you are not in Detroit now, be sure to calendar these…

Continue Reading Land Use Institute – Detroit

Space is filling up, but there’s still time to join us later this month in Detroit for the 32nd Annual Land Use Institute (April-19-20). 

We’ll let program Planning Chair Frank Schnidman explain all the reasons why, and we’ll add only these points: (1) it’s a very good program that won’t take much of your time (fly in for the Thursday afternoon program, stay a night, fly home on Friday evening); (2) Detroit is the place to be these days; and (3) it’s one of the best deals in CLE credits, with tuition as low as $400.

2018 Land Use Institute Brochure Detroit 5 2018

Continue Reading There’s Still Time To Join Us In Detroit: 32d Annual Land Use Institute