Penn Central

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In CRV Enterprises, Inc. v. United States, 626 F.3d 1241 (Fed. Cir. 2010), the U.S. Court of Appeals for the Federal Circuit (the court that hears appeals in regulatory taking and inverse condemnation cases against the federal government) held the EPA’s installation of a log boom on a navigable waterway in California’s central valley was not a taking even though it cut off the plaintiffs’ riparian access. We summarized the opinion here.

The property owners have filed a cert petition, asking the Court to review two Questions Presented:

1. In Palazzolo v. Rhode Island, 533 U.S. 606 (2001), this Court repudiated the so-called Notice Rule, which held that post-enactment purchasers could not state a claim for a regulatory taking arising from restrictions adopted before they took title to the property. The Federal Circuit’s decision in this case — like the Ninth Circuit’s decision in Guggenheim v. …

Continue Reading Another Cert Petition Asks: Can A Post-Regulation Purchaser Bring A Takings Claim?

Today, on behalf of the Manufactured Housing Institute, we filed this amicus brief (also available below) in the U.S. Supreme Court in Guggenheim v. City of Goleta, No. 10-1125 (petition for cert. filed Mar. 11, 2011). 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.

The core of the majority opinion is based on the court’s supposition that the Guggenheims could not have “investment-backed expectations” because the rent control regulations were in place when they purchased their property. See Guggenheim v. City of Goleta, No. 06-56306 (9th Cir., Dec. 22, 2010) (en banc).

Our brief argues that the Ninth Circuit wrongly refused to apply the rule of Palazzolo v. Rhode Island, 533…

Continue Reading SCOTUS Amicus Brief: Can A Post-Regulation Purchaser Bring A Takings Claim?

In CCA Associates v. United States, No. 97-334C (Jan. 29, 2010), the U.S. Court of Federal Claims held that two federal statutes worked a taking under the three-part Penn Central test because it abrogated the rights of the owner of a Louisiana apartment building to prepay its way out of providing low income housing. The CFC held that the programs set up under the statutes in effect forced CCA to continue to provide low income housing — a public good — and that it was a taking.

The Government appealed, asserted the CFC missaplied the Penn Central test, and the property owner cross-appealed, argued the CFC wrongly dismissed a breach of contract claim. Penn Central, of course, refers to the multi-factored test for an ad hoc regulatory taking first announced in Penn Central Trans. Co. v. City of New York, 438 U.S. 104 (1978), and most recently reaffirmed…

Continue Reading Of DIBEs, Rose Acre Farms IV, And Cienega X: Federal Circuit Considering Penn Central

Dark-and-stormy-nightWe’ve had the U.S. Court of Appeals for the Fourth Circuit’s opinion in Henry v. Jefferson County Comm’n, No. 09-1546 (Mar. 3, 2011) near the top of our to-read list for a while, because it is a regulatory takings case. But after finally reading it, realized that the opinion is a must read for another reason.

For how often does a judicial opinion begin with the words, “We begin by begging the reader’s indulgence as we summarize the frequently litigated facts underlying Henry’s claims and the byzantine procedural history accompanying them.”

While we appreciate the court paying us this courtesy, the archaic phrasing reminded us of those godawful entries in the annual Bulwer-Lytton bad writing contest. You know, the ones that attempt to emulate the literary depths of the opening sentence of one of Bulwer-Lytton’s novels:

It was a dark and stormy night; the rain fell in torrents–except…

Continue Reading The 4th Circuit’s Entry In The Bulwer-Lytton Contest

In DeCook v. Rochester Int’l Airport Joint Zoning Bd., No. A09-96 (Mar. 30, 2011), the Minnesota Supreme Court held that a $170,000 decrease in market value casued by an airport zoning ordinance was a compensable regulatory taking. Applying the Minnesota Constitution’s takings clause, the court held that when a regulation designed to benefit a “specific public or governmental enterprise” causes a “substantial and measurable decline in market value,” that compensation is due, even if it might not be a taking under the federal Penn Central test.

In 2002, the Airport Joint Zoning Board adopted an ordinance which increased the size of a runway safety zone that included the DeCook property. Most of the DeCook land is outside of “Safety Zone A,” but those regulations “allow fewer land uses” on their property:

On September 18, 2002, the Board enacted Ordinance No. 4, the ordinance at issue in this case. Ordinance…

Continue Reading Minn S Ct: $170k Decrease In Value Is A Regulatory Taking … Under State Constitution

The last chapter in the Ninth Circuit’s rent control saga has not been written. In Guggenheim v. City of Goleta, No. 06-56306 (Dec. 22, 2010), a sharply divided en banc Ninth Circuit concluded that Goleta’s mobile home rent control ordinance was not a taking under the three-factor regulatory taking test of Penn Central Transportation Co. v. New York City, 438 U.S. 104 (1978). Our resource page on the case is here (includes all opinions and merits and amicus briefs).

Mark Alpert (one of the attorneys for the property owners) reports on his blog California Property Rights Journal:

We are happy to announce that Dan Guggenheim has made the decision to file a cert petition. We are thrilled that Dan has been able to retain former Solicitor General Ted Olson and his appellate team at Gibson, Dunn to lead the effort along with myself and Rob Coldren at HKC.

With a panel…

Continue Reading Cert Petition Coming In Ninth Circuit Rent Control Takings Case (Guggenheim)

In California Trailer Parks War: Owners Vs. Renters, Time magazine takes a look at the mobile home rent control issues behind the recent Ninth Circuit en banc opinion in Guggenheim v. City of Goleta (our resource page on the case is here). Be sure to take the article’s implicit conclusion (the mobile home owners are getting reamed by the Simon Legree park owners) with a grain of salt – the author’s bias shines through pretty clearly:

  • The rent control ordinances are keeping mobile home park owners from “enjoy[ing] explosive upticks in value” experienced by other California land owners. It’s only fair, after all, that such profiteers not be allowed to make beneficial use of their land.
  • The mobile home park owners employ “lawyers as foot soldiers” in their war on the tenant featured in the article, whom we are told “take peaceful walks with his wife and

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Continue Reading Time On Guggenheim – California Rent Control In The (Biased) Spotlight

What we’re reading today:

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Continue Reading Friday Round-Up: Takings Ripeness, Defining “Hawaiian” Cultural Practices, Penn Central, and Judicial Takings

This just in: the en banc Ninth Circuit, in an opinion by Judge Kleinfeld (the dissenter from the panel opinion) has concluded that the City of Goleta’s mobile home rent control ordinance is not a regulatory taking. In Guggenheim v. City of Goleta, No. 06-56306 (Dec. 22, 2010), the majority “assumed without deciding” that the case was ripe under Williamson County, but that the property owners did not establish a regulatory taking under Penn Central. We covered the en banc oral arguments here, and our resource page on the case is here.

There’s a lot of opinion to churn through, but the core of the majority opinion is based on the notion that the Guggenheims did not have “investment-backed expectations.” Imposing what can only be called a bizarre economic and appraisal theory, the majority concluded:

Whatever unfairness to the mobile home park owner might have…

Continue Reading En Banc 9th Circuit Decides Guggenheim: Mobile Home Rent Control Ordinance Is Not A Regulatory Taking

Aliaba

Thursday-Saturday, February 17-19, 2011, come join us for the 28th annual presentation of the advanced-level ALI-ABA Course of Study, Eminent Domain and Land Valuation Litigation, and the sixth annual presentation of the basic-level ALI-ABA Course of Study, Condemnation 101: Making the Complex Simple in Eminent Domain, both at the Hyatt Regency in Coral Gables (Miami), Florida. Both courses also are offered via live webcast, available either in their entirety or in segments.

Update: Register online between December 12 and December 31, 2010, and you can get a 30% tuition break. Simply enter coupon code DECS30 when you check out to receive your discount (this includes ALI-ABA’s, live and online courses, telephone seminars, webcasts and on-demand CLE, coursebooks, DVDs, mp3s, subscriptions to periodicals, books, and all online content, including forms). This offer may not be combined with other ALI-ABA discounts, group rates or bundled products. This discount is only available for new…

Continue Reading Mark Your Calendars – Feb. 17-19, 2011: Annual ALI-ABA Condemnation Law Programs