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Thanks to Patty Salkin’s Law of the Land blog for summarizing the recent Supreme Court of Nevada opinion in Hsu v. County of Clark, No. 46461 (Dec. 27, 2007).  Read Professor Salkin’s summary or the opinion itself for the complete details, but these are the facts in a nutshell:

The county enacted building height restrictions on property around the Las Vegas airport.  A property owners within the zone brought an inverse condemnation action, asserting the height restriction imposed a physical occupation of their airspace, and that the ordinance was a per se regulatory taking.  In an unpublished order, the Nevada Supreme Court held that a per se taking did not occur, and that the applicable analysis was under the Penn Central test [Penn Central Trans. Co. v. City of New York, 438 U.S. 104 (1978)].  On remand, the trial court dismissed, and the property owner again appealed.…

Continue Reading Nevada SCT: Upon Further Review, It’s a Per Se Regulatory Taking

A federal regulatory takings claim being litigated in the first instance in federal court?  Why, that’s as rare as hen’s teeth.

Here’s the deal: under Williamson County Regional Planning Comm’n v. Hamilton Bank,473 U.S. 172 (1985), a federal regulatory takings claim is not ripe until the property owners has first pursued compensation through available state procedures.  In other words, property owner, go first to state court.  But under City of Chicago v. Int’l College of Surgeons, 522 U.S. 156 (1997), the same rules don’t apply to the government, since it can choose to remove a state court takings claim to federal court, and have the property owner’s federal claims heard initially in federal court.  So in those rare circumstances when a local government wants to buck conventional wisdom and litigate a takings claim in federal court, it has the choice of forum.

For one recent example of this…

Continue Reading Regulatory Takings Claims in Federal Court?

In anticipation of the upcoming eminent domain conferences, ALI-ABA has posted a (free!) short podcast by Michael Berger about the recent $37 million inverse condemnation judgment against a northern California for causing the plaintiff’s land to become undevelopable wetlands (Yamagiwa v. City of Half Moon Bay, No. 05-4149 VRW (Nov. 28, 2007)).  See you at the conference (Jan 3-5, 2008). Continue Reading Podcast on $37m Federal Inverse Condemnation Judgment

From January 3 – 5, 2008, ALI-ABA is putting on its annual program of eminent domain seminars, this time in San Francisco, California.  Two programs are being offered: “Condemnation 101: Fundamentals of Condemnation Law and Land Valuation” for those who want a course on the basics, and “Eminent Domain and Land Valuation Litigation,” for those who have some experience in this area of law.  The links above have agenda and faculty details, as well as registration information.  If you register by December 17, 2007 (midnight) using the code “DEC200730,” you will get 30% off of these or any other ALI-ABA course or materials.  Great deal.

These seminars are perhaps the best of their kind offered.  The faculty is great, and the agendas look like they will be their usual high quality.  I’m attending the advanced course.  If you register, be sure to let me know and Continue Reading Eminent Domain Seminars – January 2008

There’s an interesting discussion going on over at The Volokh Conspiracy about the recent $37 million inverse condemnation/regulatory takings federal judgment against the City of Half Moon Bay, California.  I wrote about the decision here and here. 

The comments to Professor Somin’s post are particularly thought-provoking, especially the ones dealing with whether the decision is an “inverse condemnation” case or a “regulatory takings” case.  On one hand, government causing flooding on private property is a classic inverse condemnation situation; the intrusion of water onto private property is the equivalent of the government taking a flowage easement, so it is required to pay fair value for it.  That’s what happened in the Half Moon Bay case.  On the other hand, the “wipeout” of economically beneficial uses and a “physical invasion” are two per se categories of regulatory takings, both of which also occurred in the case. 

So the case is…

Continue Reading What’s the Difference Between “Inverse Condemnation” and a “Regulatory Taking?”

Two updates on Yamagiwa v. City of Half Moon Bay, No. 05-4149 VRW (Nov. 28, 2007), the $37 million inverse condemnation judgment about which I posted here.  In that case, the US District Court for the Northern District of California held the city liable for ataking after it caused the plaintiff’s property to flood, whichrendered it an undevelopable “wetland.”  You flood it, you bought it.

First, Gideon Kanner posts his latest comments on the ripeness argument made by the city, and a recent write up of the case in the LA lawyer’s daily paper, the Los Angeles Daily Journal. 
Professor Kanner writes about the city’s post-trial argument that the case belonged in state court under the Williamson County ripeness doctrine (federal takings claims must be brought first in state courts).  As I mentioned, the case was originally brought by the plaintiff in state court, but was removed…

Continue Reading In Ripeness Doctrine, What’s Good For the Goose is Not Necessarily Good for the Gander

Thanks to both Patty Salkin’s Law of the Land blog and Gideon Kanner’s Gideon’s Trumpet, we’ve been alerted to a regulatory takings case from the Georgia Supreme Court that presents an unusual fact pattern.  In Mann v. Georgia Dep’t of Corrections, No. S07A1043 (Nov. 21, 2007), the court struck down as an illegal taking a Georgia law that prohibited convicted sex offenders from living within 1,000 feet of a school or child care facility. 

Mann, an offender, was living legally in a home he owned, when a child care facility located within 1,000 feet.  The Department of Corrections ordered Mann to leave upon pain of arrest.  Professor Salkin summarizes the case here, and Professor Kanner adds his analysis here.  They both sum up the facts and holding of the case very thoroughly. 

The court noted that the effect of the Georgia statute wasnot simply to interfere…

Continue Reading Law That Requires Sex Offender Move From Home is a Regulatory Taking

In Scheehle v. Justices of the Supreme Court of Arizona,No. 05-17063 (Nov. 15, 2007), the Ninth Circuit held that Arizona’s”low bono” requirement that all attorneys serve as arbitrators for $75per day, maximum two days, is not a taking.  It’s probably safe tosurmise that the plaintiff’s position probably received little sympathyoutside of certain members of the Bar:

Mark V.Scheehle, an Arizona tax lawyer, challenges as an unconstitutionaltaking the Arbitrator Appointment System of the Maricopa CountySuperior Court (“Appointment System”), which requires that anexperienced attorney serve as an arbitrator for up to two days a yearwith minimal compensation.  Following a decision by the Arizona SupremeCourt that the Appointment System was permissible under Arizona law,the district court reaffirmed its grant of defendants’ motion forsummary judgment. We now affirm. We hold that Scheehle’s constitutionalchallenge to the Appointment System is properly considered under theregulatory takings test set forth in Penn Central Transportation Company v. City…

Continue Reading Ninth Circuit: No Taking for Forced Attorney Low Bono* Labor