Regulatory takings

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Here’s one more amici brief supporting the the cert petition in Arrigoni Ent., LLC v. Town of Durham, No. 15-631 (cert. petition filed Nov. 10, 2015). (Here is the first amicus brief filed today, and here’s the second.) 

This one — on behalf of the National Federation of Independent Business Small Business Legal Center, and lawprof Ilya Somin — we assisted on, with the heavy lifting being undertaken by NFIB’s Luke Wake. Our brief takes a slightly different approach than the others, although we too call for the Court to revisit Williamson County:

Thirty years ago, in Williamson County Regional Planning Commission v. Hamilton Bank, 473 U.S. 172 (1985), this Court pronounced a new and unfounded rule that a property owner must sue in state court in order to ripen a federal takings claim. This marked a radical departure from the historic practice. There…

Continue Reading One More Amici Brief (Ours): Time To Ditch Williamson County’s State Procedures Requirement

Here’s the second amicus curiae brief supporting the the cert petition in Arrigoni Ent., LLC v. Town of Durham, No. 15-631 (cert. petition filed Nov. 10, 2015). (Here’s the first.) 

This brief was filed by the Institute for Justice, and authored by Supreme Court takings maven Michael Berger:

1. It is time for the Court to reconsider Williamson County’s state court litigation prong, which requires state court confirmation that there is no state remedy for a governmental taking of property. Only then will a 5th Amendment claim be “ripe” for federal court litigation. The premise of that rule goes beyond the plain language and meaning of the 5th Amendment. A municipality’s taking of private property without just compensation is complete when property is taken and compensation is not paid by the government. It does not require a judicial determination to complete, or ripen, the taking.

Continue Reading Amicus Brief: You Guessed It – Reconsider Williamson County

Here’s the first in a series of amicus briefs we’re going to post which urge the Supreme Court to grant the cert petition in Arrigoni Ent., LLC v. Town of Durham, No. 15-631 (cert. petition filed Nov. 10, 2015). 

This amicus brief was filed by the Cato Institute, and like the petition, asks the Court to take the case in order to reconsider Williamson County‘s “state procedures” rule:

This case presents an opportunity for this Court to rectify a significant anomaly in its jurisprudence: the blanket exclusion from federal court of numerous constitutional rights cases arising under the Takings Clause of the Fifth Amendment. Under this Court’s decision in Williamson Cty. Reg’l Planning Comm’n v. Hamilton Bank of Johnson City, 473 U.S. 172 (1985), a property owner’s claim that a state government has taken his property without paying “just compensation,” as required by the Takings…

Continue Reading Amicus Brief: Reconsider Williamson County’s “State Procedures” Requirement

Here’s the first in a series of posts we’re going to put up, with the cert petition and the supporting amici briefs (ours included) in Arrigoni, Ent., LLC v. Town of Durham, No. 150631 (petition filed Nov. 10, 2015).

In that case, the Second Circuit in a two-sentence ruling, summarily affirmed the District Court’s dismissal of Arrigoni’s regulatory takings claim under the “state procedures” prong of Williamson County, because the property owner “failed to ‘seek compensation through the procedures the State has provided for doing so.'” Slip op. at 2.

The petition poses these Questions Presented:

1. Whether the Court should reconsider, and then overrule or modify, the portion of Williamson County Regional Planning Commission v. Hamilton Bank of Johnson City, 473 U.S. 172, 194 (1985), barring property owners from filing a federal takings claim in federal court until they exhaust state court remedies, when this rule results…

Continue Reading Cert Petition: Overrule Williamson County!

We are on the road today, so were not going to post. But when the case title is Perfect Puppy, Inc. v. City of East Providence, No.15-1553 (Dec. 8, 2015), who could resist?  

Reading through the court of appeals’ passive-aggressive sniping at the plaintiff — a pet shop challenging the City’s ban on pet shops — it boils down to this: plaintiffs did the right thing and filed their due process and equal protection claims in state court, after which the complaint was removed to federal court by the City. In federal court, Perfect Puppy amended its complaint to allege a facial and as-applied regulatory takings claim. After which the District Court dismissed the facial takings claim and all of the other constitutional claims, except the as-applied takings challenge, which it remanded to state court under — you guessed it — Williamson County. 

The First Circuit affirmed…

Continue Reading Happiness Is Not A Perfect Puppy In The First Circuit: Removed Takings Claim Remanded As Unripe

Who gets counted for reapportionment purposes?

Everyone!

Tomorrow, the Supreme Court is hearing oral arguments in two election law cases, Evenwel v. Abbott, No. 14-940, and Harris v. Arizona Ind. Redistricting Comm’n, No. 14-232.  We’ve covered the issues presented by these cases several times, so please forgive the continuing detour from takings law that we take whenever we get into our other favorite area, election law.

Evenwel is the sleeper case of the Term,  and may finally answer a question the Supreme Court has dodged for over fifty years, involving the seemingly mundane issue of who can states count when they reapportion their legislatures: all residents? U.S. citizens? Those eligible to vote? And who must they count? Think back to your Con Law I class, and the “one-person, one-vote” rule from Reynolds v. Sims, 377 U.S. 533 (1964), the case which first announced that rule, and the…

Continue Reading Lessons From Takings Law For The “One-Person, One-Vote” SCOTUS Cases

In 1989, agents of the Libyan government blew up a plane of civilians, killing 170 passengers and crew. Victims’ families brought suit against the Socialist People’s Libyan Arab Jamahiriya in U.S. District Court in D.C. for damages, and after winning summary judgment, the court entered judgments totaling approximately $1.3 billion. Libya appealed to the D.C. Circuit.

The very day the appeal was filed, the U.S. government and Libya entered into a settlement agreement which established a $1.5 billion settlement fund to compensate U.S. victims, and a $300 million fund to compensate “Libyan victims of U.S. airstrikes.” The two governments agreed that the funds were in full settlement of all claims for its respective nationals. As a consequence of this agreement, all pending lawsuits in the courts were “terminated.” The U.S. intervened in the D.C. Circuit appeal, and asked the court to dismiss. The court agreed, and terminated the appeal…

Continue Reading CFC: Terrorism Victims Properly Alleged Their Judgments Against Libya Were Taken By Govt Settling Claims By Agreement

Here’s the recently-published brochure with more details about the ALI-CLE Eminent Domain and Land Valuation LItigation conference, set for Austin in January 2016. 

In the coming days and weeks, we’ll be posting more details about the conference. Our co-planning chairs Joe Waldo, Jack Sperber, and Andrew Brigham have assembled a great agenda, taught by the usual stellar faculty. If eminent domain, appraisal, or land use is your thing, you really should attend. 

33d Annual ALI-CLE Eminent Domain and Land Valuation Litigation Conference, Jan. 28-30, 2016, Austin, TX

Continue Reading ALI-CLE Eminent Domain And Land Valuation Conference: Full Brochure

Here’s the amicus brief we filed today on behalf of our Owners’ Counsel of America colleagues in Livingston v. Frank, No. 15-470 (cert. petition filed Oct. 9, 2015). That’s the case in which the Florida District Court of Appeal held that the interest generated by quick-take deposits is not the private property of the condemnee, and therefore it is not a taking when the clerk of the court gives 90% of the interest to the condemnor.

Our brief argues that the Florida court rewrote the rules of who owns the deposit in order to save the statute which allows the clerk to give the interest on the deposit to the condemnor. There’s a strong “judicial takings” flavor to the brief, even though we don’t think it’s necessary for the Court to go down that path expressly in order to take the case and reverse.  

Here’s the Summary…

Continue Reading New SCOTUS Amicus Brief: There’s No IOU’s In Eminent Domain – Quick-Take Deposit Belongs To The Property Owner

“Waikiki” means a lot of things to a lot of people. With its wall-to-wall high rises, it could be Las Vegas-by-the-Sea. Or the site of the most famous beach in Hawaii, if not the world. A place where impossibly tony shops and kitsch exist side-by-side. Where the “Hawaiian” bric-a-brac is imported from the Phillipines and China, and the beach sand is reputed to be Australian. A place to go, and a place to escape from. 

But whatever Waikiki might be, one thing is certain: it no longer has just two hotels as it once did, nor is it a sleepy agricultural backwater. It is the economic engine that drives Hawaii’s tourist economy, and the visitor destination, where one-third of our tourists end up. Even with these contradictions — or perhaps because of them — the ordinance which controls development within the Waikiki Special District requires consideration…

Continue Reading What Does “Waikiki” Mean? – Variances, Safety Valves, And A “Hawaiian Sense Of Place”