Regulatory takings

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The New Hampshire Supreme Court, in our view, got it wrong in Ashton v. City of Concord, No. 2015-0400 (Apr. 29, 2016). Really, really wrong.

Indeed, the New Hampshire court seems to have resurrected the California Supreme Court’s now-defunct rule from Agins v. City of Tiburon, 598 P.2d 25 (Cal. 1979), which held that there is no compensation remedy when the application of an ordinance denies an owner all beneficial use of property, only declaratory and equitable relief. See id. at 26 (“the need for preserving a degree of freedom in the land-use planning function, and the inhibiting financial force which inheres in the inverse condemnation remedy, persuade us that on balance mandamus or declaratory relief rather than inverse condemnation is the appropriate relief under the circumstances”). The Agins rule was held unconstitutional in First English Lutheran Church of Glendale v. County of Los Angeles, 482…

Continue Reading Does New Hampshire Think It’s California? Wrongful Denial Of Demolition Permit Cannot Be A Taking Because City Was Merely Applying The Statute

Another day that we’re tied up, so there won’t be too much analysis. But we wanted to post this fascinating case out of the California Court of Appeal, Friends of Martin Beach v. Martin Beach 1 LLC, No. A142035 (Apr. 27, 2016).

As the caption of the case indicates, it involves beach access. Specifically, access to a Northern California beach that, despite some junky Yelp reviews, is apparently popular enough to spawn a “friends of” activist defense group. The Friends want access across private property owned by a really rich Silicon Valley guy. Before he owned it, they alleged, the owners let the public cross to get to the beach. The Silicon Valley guy, however, didn’t continue that practice, and the lawsuit followed.

The owner claimed he had exceptionally good title, because the land, like much land in California, could trace title back to a Spanish or Mexican…

Continue Reading Cal App On Tidelands And Mexican Title: Owner Has Title In Land Used For Beach Access, But May Have Lost It By Dedication

We’re tied up today, so can’t write much, but wanted to post this recent decision from the Court of Federal Claims. Here’s the court’s own summary:

Plaintiffs Love Terminal Partners, L.P. (“Love Terminal Partners”) and Virginia Aerospace, LLC (“Virginia Aerospace”) are leaseholders of property at Dallas Love Field Airport (“Love Field”), located in Dallas, Texas. In their complaint, filed in the United States Court of Federal Claims (“Court of Federal Claims”) on July 23, 2008, plaintiffs allege that the federal government, through the enactment of the Wright Amendment Reform Act of 2006 (“WARA”), prohibited the use of their property, thereby destroying all economic value or benefit of their leasehold and effecting a taking without just compensation, in contravention of the Fifth Amendment to the United States Constitution. Plaintiffs seek compensation for the taking as well as interest from the date of the taking, attorneys’ fees, appraiser and expert witness fees…

Continue Reading $133,500,000 CFC Verdict For A Categorical Lucas Taking

The Supreme Court has declined to review the Second Circuit’s summary order upholding the dismissal of a federal court regulatory takings claim on Williamson County ripeness grounds. 

In this order, the Court denied cert, over the dissent of Justice Thomas (joined by Justice Kennedy). We’ve said here many times why Williamson County is a bad rule, and needs to be tossed aside. We filed an amicus brief in the case in support of the cert petition which covers most of the reasons why. 

The two dissenting Justices argued that the state-litigation requirements “are suspect,” and appear to be “inconsistent with the text and original meaning of the Fifth Amendment’s Takings Clause.” 

Read the entire dissent (it’s not long), but here are the highlights:

  • “In short, both the text of the Takings Clause and historical evidence cast doubt on Williamson County’s treatment of just compensation as a mere remedy,

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Continue Reading Quagmire Unabated: SCOTUS Will Not Revisit Williamson County (Yet)

Continuing with our posting of the amicus briefs in Murr v. Wisconsin, No. 15-214, the “parcel as a whole” case now being considered by the Supreme Court, here is the brief filed in support of the property owner by several western states, principally authored by lawprof Ilya Somin.

Rather than summarize the brief here, we point you instead to Prof Somin’s post at the Volokh blog, “Our amicus brief on behalf of nine states in an important Takings Clause property rights case.” 

More briefs coming. 

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Virginia: Jury Gets To Hear About Appraisal Bait-And-Switch
Cert Denied In Kurtz: Williamson County Lives!

Continue Reading Another Amicus Brief In SCOTUS “Parcel As A Whole” Case: Aggregation Has “No Basis In Text, History, Or Predecent”

The amicus briefs supporting the property owners/petitioners in Murr v. Wisconsin, No. 15-214, the “parcel as a whole” case now being considered by the Supreme Court, are rolling in.

Here’s the first one, the amici brief for the Cato Institute and the Owners’ Counsel of America. [Disclosure: we represent OCA on this filing.]

Regulatory takings are about the impact of a regulation on an owner’s use of property and how it has a similar economic impact on that property as an exercise of the government’s eminent domain power. Thus, most regulatory takings claims will hinge in large part on “the extent of the interference with rights in the parcel as a whole.” Penn Central Trans. Co. v. New York City, 438 U.S. 104, 130-31 (1978). This is also known as the denominator issue, because the size of the property often dictates the severity of the regulation’s impact.

Continue Reading SCOTUS Amici Brief: In Regulatory Takings, No Aggregation Of Separate, Commonly-Owned Parcels

First, the good part of the recent opinion issued by the New York Supreme Court Appellate Division, First Department (dun dun) in American Economy Ins. Co. v. New York, No. 16095 (Apr. 14, 2016):

Plaintiffs also established that the amendment, as applied retroactively, violates the Contract Clause of the US Constitution because it retroactively impairs an existing contractual obligation to provide insurance coverage “[w]here *** the insurer does not have the right to terminate the policy or change the premium rate” (Health Ins. Assn. of Am. v Harnett, 44 NY2d 302, 313 [1978] [internal quotation marks omitted] [asterisks in original]; see US Const, art I, § 10, cl 1). Defendants failed to show that the impairment is “reasonable and necessary to serve” “a significant and legitimate public purpose *** such as the remedying of a broad and general social or economic problem” (19th St.

Continue Reading New York Appellate Division: Applying New Workers Comp Provisions Retroactively Is A Taking

Here’s the property owners’ Merits Brief, filed earlier this week in the case in which the U.S. Supreme Court is considering the “parcel as a whole” doctrine in regulatory takings (also known as the “denominator” issue).  

The Wisconsin Court of Appeals held that the owners did not have their property taken because they also own the parcel next door. When measured against their use of the two parcels combined, the court concluded their loss of use of the single parcel — otherwise a Lucas “wipeout” — was not a taking.

The brief argues:

Under the facts of this case, there is no reason to deviate from Penn Central. Although the Murrs own two parcels that happen to be adjacent, those parcels were purchased at different times, for different purposes, and have never been considered as a single economic unit or jointly developed. Absent the effect of…

Continue Reading Merits Brief In SCOTUS “Parcel As A Whole” Case – No Aggregation Of Lots Which Owners Treated As Separate

Check this out: in this order, a Wisconsin state trial court today held that the state’s right to work law — which prohibits labor unions “from assessing dues, fees, or other charges of any kind on non-union members” — is a taking. The court concluded that unions have a property interest in the contract negotiation and related services they provide, and the law takes this interest by allowing “free riders” (nonunion members who benefit from the deals the union makes) to, well, free ride. Although the order doesn’t expressly say so, the court concludes, in effect, that the law impresses unions into public service. 

There’s going to be a whole lot more on this case, no doubt, so stay tuned. More here (“State court judge throws out Wisconsin Right to Work Law“) . Remember, Wisconsin Supreme Court justices are elected, which adds another twist.  

Order Granting…

Continue Reading Trial Court: Wisconsin’s Right To Work Law Is A Taking

Here’s what we are reading today: 

  • Here’s the equivalent of law blogger nirvana: a link to one of your pieces by SCOTUSblog: “There is still more commentary on Monday’s ruling in Evenwel v. Abbott, holding that states and local governments may use total population to draw legislative districts. In posts at casetext, Robert Thomas asserts that the ruling “reaffirmed the principle that we the people mostly get to choose who will be included in ‘We The People,’ and when all are included, the federal courts will not interfere.”
  • In Oklevyeha Native American Church of Hawaii, Inc. v. Lynch, No. 14-15143 (9th Cir. Apr. 6, 2016), a panel of the Ninth Circuit concluded that a Hawaii church which uses marijuana as part of its doctrine did not have a claim under RFRA to prevent it from being prosecuted under the Controlled Substances Act. The court held that the

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Continue Reading Friday Reading: SCOTUSblog’s Shout-Out; 9th Circuit Says Church Bogarted Evidence In Cannabis Claim; Are Agencies To Blame For Telescope Delay?; WWII Guam Land Seizures Case Moves Forward