Penn Central

Subscribe to Penn Central via RSS

You have to like any sport that the New York Times describes as “like driving full speed through an endless loop of red lights. Luck often expires in a cloudburst of steam and scattered auto parts.” That’s how the Times described “figure 8 car racing.”

But not everyone likes figure 8 racing or related activities, it seems. After a property owner stored several of his race cars on his land and annoyed some residents of Indianola, Iowa, the city adopted an ordinance requiring land on which figure 8 cars (and others) are stored to be enclosed by a fence if two or more cars are present. The property owner sued the city in state court alleging a regulatory taking and the city removed the case to federal court. After a bench trial, the district court held that the ordinance was not a taking.

In Iowa Assuarnce Corp. …

Continue Reading Eighth Circuit: No Physical Take For Fence Requirement

Here’s the latest in a case we’ve been following. In Bridge Aina Lea, LLC v. State of Hawaii Land Use Comm’n, the plaintiff filed its complaint in state circuit court alleging that the LUC violated state and federal law (due process, takings, vested rights, and more) when it reclassified “urban” land on the Big Island to “agriculture.” 

The defendants then removed the case to federal court, and have now filed a motion to dismiss that contains a host of defenses: immunity, the unavailability of prospective injunctive relief, whether certain defendants are “persons” under 42 U.S.C. § 1983, abstention on the federal takings claim, the lack of a state damage remedy for deprivation of constitutional rights, and zoning estoppel, among others.

Just the thing to give you flashbacks to your Federal Courts class.

Update: here‘s the errata filed just after the motion to dismiss.

Motion to Dismiss, Bridge at …

Continue Reading Latest In Big Island Takings And Vested Rights Challenge To LUC Reclassification

The U.S. Supreme Court has denied the petition for a writ of certiorari in Guggenheim v. City of Goleta, No. 10-1125. Property owners asked the Court to review the Ninth Circuit’s sharply divided en banc opinion, which held that the City’s mobile home rent control ordinance did not work a regulatory taking because the fact that the Guggenheims purchased their property subject to a rent-control regime was “fatal” to their investment-backed expectations under Penn Central Transportation Co. v. New York City, 438 U.S. 104 (1978).

The petitioners asserted the Ninth Circuit”s conclusion contradicted Palazzolo v. Rhode Island, 533 U.S. 606 (2001), the case in which the Supreme Court held the fact that restrictive regulations predated the property owner’s acquision of the property did not forclose his challenging the regulation as a taking. Will the cert denial mean that the lower courts will continue to ignore Palazzolo or…

Continue Reading Cert Denied In Guggenheim

The petitioners have filed their reply brief in Guggenheim v. City of Goleta, No. 10-1125 (petition for cert. filed Mar. 11, 2011), the case involving California mobile home park owners who are asking the Court to review the decision of a sharply divided en banc Ninth Circuit which held that Goleta’s mobile home rent control ordinance did not work a regulatory taking under Penn Central because the Guggenheims purchased their mobile home park after it was rent regulated. Disclosure: we filed an amicus brief in the case in support of the property owners.

The reply brief responds to the City’s BIO, and argues:

Instead of defending the Ninth Circuit’s decision on its own terms, the City rewrites it. According to the City, the Ninth Circuit conducted a fact-intensive Penn Central analysis that did not turn solely on the fact that petitioners had purchased the mobile-home park after the…

Continue Reading Petitioners’ Reply In Guggenheim: “Instead of defending the Ninth Circuit’s decision on its own terms, the City rewrites it.”

Comes the sad news that Jess S. Jackson, of the renown Kendall-Jackson wine label, has passed away in his Northern California home. Details here (K-J website), here (San Francisco Chronicle), and here (Santa Rosa Press Democrat). Jackson’s biography reveals a life lived very large: winemaker, business mogul, philanthropist, race horse owner.

Add to that list takings lawyer. Before he went full-time into the wine business, Jackson’s law practice included representing property owners in condemnation and regulatory takings cases. Gideon Kanner, a long-time colleague, adds his rememberances here.

Property mavens, remember these cases?

  • Kinzli v. City of Santa Cruz, 818 F.2d 1449 (9th Cir. 1987).
  • Del Monte Dunes of Monterey, Ltd. v. City of Monterey, 920 F.2d 1496 (9th Cir. 1990).
  • California Coastal Comm’n v. Granite Rock Co., 480 U.S. 572 (1987).
  • United States v. 100

…
Continue Reading Jess Jackson: Winemaker Extraordinaire, And Takings Lawyer

The Center for Constitutional Jurisprudence and the Reason Foundation have joined the list of parties (us included) who submitted briefs supporting the cert petition in Guggenheim v. City of Goleta, No. 10-1125 (petition for cert. filed Mar. 11, 2011). Their brief is available here.

In that case, California mobile home park owners are asking the Court to review the decision of a sharply divided en banc Ninth Circuit which held that Goleta’s mobile home rent control ordinance did not work a regulatory taking under Penn Central. because the Guggenheims purchased their mobile home park after it was rent regulated. The brief argues:

Although Amici agree that the Ninth Circuit decision below completely misconstrued this Court’s decision in Palazzolo, the Ninth Circuit was able to do this end-run of Palazzolo because of the underlying incoherence in the test that was first set out in Penn…

Continue Reading Another Guggenheim Amicus Brief: Ninth Circuit “End-Run” Around Palazzolo

Here’s another of the amicus briefs in Guggenheim v. City of Goleta, No. 10-1125. The brief of the National Association of Home Builders argues:

The Ninth Circuit in Guggenheim has rejected the widely held principle that regulatory takings claims run with the land for all subsequent title holders. As a result, the availability of the Fifth Amendment has, for all practical purposes, been eliminated for an entire class of property owners. The Guggenheim decision also creates adverse policy results for both property owners and local communities.

Massachusetts’ high court addressed this issue in Lopes v. City of Peabody, 629 N.E.2d 1312 (Mass. 1994). In Lopes, the court upheld the property owner’s regulatory takings case against an existing zoning ordinance even though the owner has purchased the land with full knowledge of environmental buffers that would limit the property’s development potential. Id. at 1313. The court explained…

Continue Reading Amicus Brief In Guggenheim: Takings Claims Run With The Land

What we are reading today:

  • Should the Courts Help Los Angeles Commit Fiscal Suicide? – Gideon Kanner’s takedown of the recent California Court of Appeal decision in City of Los Angeles v. Superior Court, No. B225082 (Apr. 12, 2011), which held that in order to make out a claim for inequitable precondemnation activities, the city must actually have filed (or be contemplating filing) an eminent domain action. Because it hadn’t, the property owner could not get summary judgment on the Klopping claim. But as one colleague noted, if the city was not buying up these properties around LAX for a public purpose, just what was it doing? Also worth reading is Brad Kuhn‘s summary and analysis of the case here.

…
Continue Reading Monday Round-Up

If you are a fan of Penn Central‘s “investment-backed expectations” factor, or the “notice” defense thought to be put to rest in Palazzolo v. Rhode Island, 533 U.S. 606 (2001), this is your week.

Earlier this week, we posted our amicus brief in Guggenheim v. City of Goleta, No. 10-1125, which argued the Ninth Circuit got it wrong when it held the fact that the property owners purchased their property subject to rent control was “fatal” to their takings claim. According to the Ninth Circuit’s en banc majority, the Guggenheims could not have investment-backed expectations because the rent control ordinance predated their purchase. Yesterday, we posted the city’s BIO, which asserted the Ninth Circuit didn’t “flout[the Supreme] Court’s decision in Palazzolo v. Rhode Island, 533 U.S. 606 (2001).”

Here’s the latest, the amicus brief of Equity Lifestyle Partners supporting the Petitioner. ELS owns hundreds …

Continue Reading Amicus Brief In Guggenheim: Ninth Circuit “Did Violence” To Penn Central Test

The city has filed its Brief in Opposition in Guggenheim v. City of Goleta, No. 10-1125.

That’s the case in which the owners of a mobile home park asserted the city’s mobile home rent control ordinance which the city adopted in 2002, is a taking under the three factor ad hoc test in Penn Central Trans. Co. v. City of New York, 438 U.S. 104 (1978). The en banc Ninth Circuit held that the ordinance was not a taking, since the Guggenheims purchased their park years after the County of Santa Barbara adopted its rent control ordinance, and when the City of Goleta was incorporated in 2002, it adopted and continued the County’s ordinance. According to the Ninth Circuit, the fact that the Guggenheims purchased their land after it was rent controlled was “fatal” to their Penn Central claim, because they could not have “investment-backed expectations” at…

Continue Reading Brief In Opposition In Guggenheim: Ninth Circuit Applied All Penn Central Factors