Regulatory takings

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In what might be the most cliched “New York City” land use situation, check out the Appellate Division’s opinion in Coalition For Fairness v. City of New York, No. 2023-05338 (Dec. 5, 2024).

Want to convert your SoHo-NoHo artist live/work space to unlimited residential use? Be prepared to pony up and pay to the City’s Arts Fund a non-refundable fee of $100 per square foot as a precondition of even filing a building permit. 

When owners challenged this fee as unconstitutional under Nollan/Dolan/Koontz/Sheetz, the trial division said no. But the Appellate Division held otherwise, concluding that the imposition of the fee lacked an essential nexus and was not roughly proportional to whatever impacts “certified artists” (who knew the government was in the business of “certifying” artists?) suffer when an owner converts.

The opinion, in true Appellate Division style is short (3 pages)…

Continue Reading NY App Div: Requiring Art Fee “Donation” To Get Building Permit Lacks Nexus, Proportionality

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Strong letter to follow!

A long-ish read (32 single-spaced pages) from the Federal Circuit in City of Fresno v. United States, No. 22-1994 (Dec. 17, 2024), but worth reading.

Not only will you get a crash course in how water is allocated in California’s vast central valley (as the billboards above, set up along the north-south I-5 corridor demonstrate, not everyone is happy about how that is accomplished), but you will also understand how the Federal Circuit approaches the predicate question in takings case: does the plaintiff own “private property?”

The court concluded no, the plaintiffs do not possess private property rights. Consequently, it affirmed the Court of Federal Claims dismissal of the takings claim.

The central valley, as the opinion explains, “is home to the largest federal water management project in the United States[.]” Slip op. Unsurprisingly named the Central Valley Project, is a series of dams, storage…
Continue Reading CAFED: Feds Allocating California Water Isn’t A Taking Because Cal Says Only The Feds Have Water Rights

Check out the opinion of the Court of Federal Claims in Nix v. United States, No. 23-704C (Dec. 11, 2024). Fascinating stuff.

We post it here not because it breaks new ground, but due to the subject matter of the lawsuit: the alleged taking of a film that captures (in part) the assassination of President Kennedy in 1963.

No, this isn’t the famous Zapruder film, which was also the subject of a well-known takings claim. This case involved the “Nix film,” taken that fateful day “from an angle opposite the more famous Zapruder film. The Nix film thus captures Abraham Zapruder and the area around him, where some claim a gunman other than Lee Harvey Oswald was hiding.” Slip op. at 2. 

Nix licensed the film to UPI, which “unbeknownst to him … transferred the Nix film to the United States House of Representatives Select…

Continue Reading CFC: Complaint Adequately Pleaded Physical Taking Of JFK Assassination Film

We’ve been following a Second Amendment case, Hawaii v. Wilson, as it awaited the U.S. Supreme Court’s decision whether to accept review. Not because it is relevant to the usual subjects of this blog, but because a friend and colleague is Counsel of Record for the petitioner, and we’re just naturally interested in cases from the 808 that involve locally-disfavored rights. In that case, the right to keep and bear arms.

The Hawaii Supreme Court refused to consider a criminal defendant’s defense that to prosecute him for carrying a firearm publicly violated the Second Amendment, concluding he lacked standing under Hawaii law because he had not sought a license to carry a firearm.  

Today, in this Order, the Court denied certiorari. But three Justices issued or joined statements (Thomas, Alito, Gorsuch). And Justice Thomas’s statement revealed this Fifth Amendment nugget:

Our rejection of state procedural restrictions on…

Continue Reading A Takings Clause Vibe In A Second Amendment Case

TocA Table of Contents. Don’t see that too often
in an opinion. (And this doesn’t include
the concurring opinion!)

We may do social media (Twitter/X and LinkedIn), but so far we have avoided TikTok. Our attention span is already short enough, and it doesn’t need to get even shorter.

And even more critically, we understand the TikTok platform consists mainly of short dance videos. That only makes us want to avoid it even more (OK Boomer). 

Well, as of today, we may not really have a choice. At least if the U.S. Court of Appeals for the D.C. Circuit’s opinion in the case which challenges the Congressional ban on TikTok stands: TikTok Inc. v. Garland, No. 24-1130 (Dec. 6, 2024).

As you may know, in the Protecting Americans from Foreign Adversary Controlled Applications Act, Congress permitted the President to identify “foreign adversaries”…

Continue Reading DC Cir: TikTok Taking? Uh, No. Because They Can Sell It To Americans

The latest state supreme court decision involving a takings challenge to a statute permitting precondemnation entries, this time from Iowa.

In Summit Carbon Solutions, LLC v. Kasischke, No. 23-1186 (Nov. 22, 2024), the Iowa Supreme Court concluded that, at least on its face, Iowa’s entry statute for hazardous liquid pipelines, which permits entries for land surveys and requires the payment of actual damages, is not a taking of an owner’s right to exclude:

Kasischke recognizes that section 479B.15 requires “[t]he pipeline company [to] pay the actual damages caused by the entry, survey, and examination” but argues that the mere entry onto his property to conduct the survey is itself a taking of his right to exclude all others, for which he is also entitled to just compensation. Kasischke’s constitutional claim fails because the statute did not take away a property right that he owned. Rather, he has…

Continue Reading Iowa: Statute Permitting Precondemnation Surveyor Entry Is “pre-existing limitation on … title”

Screenshot 2024-11-20 at 09-16-50 Lake Worth Lagoon - Google Maps
Lake Worth: the “lago” in Mar-a-Lago

You know his name. He’s taken on the City of Riviera Beach twice at the U.S. Supreme Court. And won both times. The houseboat that isn’t a boat. The government can’t shut you out from speaking your mind simply because you irritate them.

That’s right, it’s Fane Lozman. A “Florida Man” that you can like and admire. And he’s back for Round 3.

He owns property that’s mostly in (in, not near) Lake Worth. Two-tenths of an acre is uplands, and the rest (7.75 acres) is submerged. As the Eleventh Circuit noted, “[o]nly a sliver of Lozman’s property is above water.” 

The city, in accordance with the usual approach to land use regulation has a comprehensive plan. That plan designates submerged lands as “Special Preservation Future Land Use,” a label which should set off your Lucas…

Continue Reading CA11: Takings Claim Not Ready Despite Govt’s Enforcement Actions

2025 San Diego

Get ready to join your colleagues and friends in San Diego for the 42d ALI-CLE Eminent Domain & Land Valuation Litigation Conference.

The 41st Conference was in New Orleans. Here’s a report of that event, and here are our reports from prior conferences in Austin and Scottsdale.

Here are some of the highlights of the upcoming Conference:

  • Property Rights at the Supreme Court: DeVillier and Sheetz and What’s Next
  • Slow Take: Possession, Rent, Relocation, and Offset
  • The Jury’s View: How Jurors See Your Case
  • From Penn Coal to Penn Central: How to Prove “Too Far”
  • Leveraging Expertise in Eminent Domain Litigation: Working with Land Planners, Engineers, and Other Predicate Experts
  • Kelo at Twenty: What Changed, What Didn’t, and What’s on the Horizon
  • Viva Las Vegas: How the Nevada Judiciary Upheld Property Rights in 180 Land’s Inverse Condemnation Taking
  • Ethics: Guiding the Trolley: Perspectives on Professional Ethics in

…
Continue Reading Registration For The 42d ALI-CLE Eminent Domain & Land Valuation Litigation Conference Is Underway (Don’t Miss Out!)

Here are the cases and other materials we discussed in today’s Section of State & Local Government Law Land Use group meeting on takings:

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Continue Reading Links From Today’s ABA Land Use Session

Untitled Extract Pages

Here’s the latest in a case we’ve been following. This morning, in this Order, the Supreme Court denied cert in two cases which seemed to have a good chance at a grant, on two pressing issues which have divided lower courts, the physical occupation in tenancies (aka Yee), and the nature of the Penn Central takings test. Only Justice Gorsuch would have granted.

Here are the Questions Presented:

New York’s Housing Stability and Tenant Protection Act of 2019 transforms a temporary rent- regulation system into a permanent expropriation of vast swaths of private real estate, without just compensation, in the name of “affordable housing.” Among other things, the Act prohibits owners—even of small and midsized apartment buildings like Petitioners—from reclaiming rental units for their own personal use, and grants tenants a collective veto right over condo/co-op conversions. As Justice Thomas has observed, the constitutionality of regimes like New York’s…

Continue Reading SCOTUS Declines To Review NYC Rent Control Challenge