Regulatory takings

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There are many ways to keep nuisance birds off of your building or away from your crops.

There’s this one, a plastic owl perched on the 4th floor of the Maui courthouse.

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There are other devices: scarecrows, balloons, and even dead birds. But our favorite is the scare gun, a “propane powered gas gun which produces a periodic loud explosion.” Sounds like fun.

But not to the powers-that-be in the Town of Trempealeau, Wisconsin. In 2013, the Town adopted an ordinance, amended the following year, which requires anyone who wants to use a scare gun to get a permit. These permits restrict the time, place, and manner in which the owner can employ said gun. 

Farmer Klein had used a scare gun on his property since 1962 to keep blackbirds from devouring his crops. He obtained a permit, but apparently didn’t follow the ordinance closely enough because he…

Continue Reading Wisconsin App: Town’s “Scare Gun” Permit Requirement Not A Taking

Takings nerd alert: we posted about this case late last year, when the Wisconsin Court of Appeals held that two separate parcels owned by the same family must be treated as a single unit for purposes of determining whether there’s been a taking. Eventually, the Wisconsin Supreme Court denied review.

So here’s the next step, the cert petititon in Murr v. Wisconsin, No. ___ (filed Aug. 14, 2015), which asks the U.S. Supreme Court to review a single Question Presented:

In a regulatory taking case, does the “parcel as a whole” concept as described in Penn Central Transportation Company v. City of New York, 438 U.S. 104, 130-31 (1978), establish a rule that two legally distinct, but commonly owned contiguous parcels, must be combined for takings analysis purposes?

Read this post for more background. Disclosure: the petitioners are represented by Pacific Legal Foundation, and we manage PLF’s Hawaii…

Continue Reading New Cert Petition: Does The Takings “Denominator” Rule Require Two Parcels To Be Treated As One?

Here’s a short (approx. 10 minute) summary of the recent decision by the California Supreme Court in California Building Industry Ass’n v. City of San Jose, No. S212072 (June 15, 2015).

In that case, the court upheld the city’s “inclusionary housing” requirement against a Nollan–Dolan–Koontz challenge. The court concluded the ordinance did not impose an “exaction” because it did not demand the owner surrender land — or money in lieu of land — and thus was only subject to rational basis scrutiny and not the N-D-K nexus and rough proportionality requirements. 

The podcast is an excerpt of last week’s IMLA webinar on this case and others. 

Related articles
Horne v. USDA: Way More Than Silly Raisin Jokes
New Article: “Eminent Domain for Underwater Mortgages: Already on the Way to the Bottom of the Sea of Bad Ideas”
Links From Today’s “The Takings Issue” Webinar
Eminent Domain

Continue Reading Podcast: Cal. Building Industry Ass’n v. City of San Jose – Is An “Inclusionary” Housing Requirement An Exaction, Or Mere Zoning?

The headline of this post shouldn’t be that surprising, especially when the the property owner purchased the land already subject to a floodplain designation, and those regulations effectively prohibited development.

But the two twists in the South Carolina Supreme Court’s opinion in Columbia Venture, LLC v. Richland County, No. 27563 (Aug. 12, 2015), were (1) when Columbia Venture purchased the land, the floodplain designation didn’t encompass as much of the land as it eventually did, and the larger area was only preliminarily designated, and (2) various county agencies had informed Columbia that there was a chance it might get permission to build even if the regulations were eventually adopted.   

Those twists, however, were not enough to save Columbia’s takings claim, and the court rejected both its categorical and Penn Central arguments.  

The facts of the case are somewhat dense, but here’s what you need to know. Columbia…

Continue Reading No Taking When Owner Prohibited From Developing In Floodplain

Here’s a short one from the Court of Appeals of Texas, Eighth District, involving how well a regulatory takings claim needs to be pleaded in a complaint. 

In County of El Paso v. Navar, No 08-14-00250-CV (Aug. 7, 2015), the court held that a pro se plaintiff who alleged, among other things, that the County refused “

to issue certificates of 

compliance to him without a legitimate basis unreasonably interfered with his right to use and 

enjoy his property as a mobile home park” 

was specific enough to give the County notice of the allegation, and should not be dismissed.

Read the opinion for the details of the claim, but here’s the critical allegation in the complaint:

The [County]’s conduct, as alleged, was intentional and constituted an unreasonably interfered [sic] with [his] right to use and enjoy his property. The economic impact and the extent to which the regulation…

Continue Reading Tex App: Penn Central Claim Was Poorly Drafted, But It’s Good Enough

Our colleague William Wade, in addition to being an economist, is a prolific author on the topic we find fascinating, takings. He looks at the issues with an economists’ perspective, and we’ve found his articles very helpful. We’ve even posted a few over the years:

Bill has graciously sent us a guest post, a preview of what may be his next article.

He focuses on the impact of the Texas Supreme Court’s landmark decision in Edwards Aquifer Authority v. Day, 369 S.W.3d 814, 832 (Tex. 2012), in which the court held that land ownership…

Continue Reading Guest Post – Liquid Gold, or Water For Pecans: Valuation of Texas Water

To those able to join us today for IMLA’s “The Takings Issue” webinar, thank you. Here are the links to the items which I discussed:

On Koontz:

On California Building Industry Ass’n v. City of San Jose:

…
Continue Reading Links From Today’s “The Takings Issue” Webinar

We’ve been remiss in updating for the past few days, caught up in the whirlwind that is the ABA Annual Meeting. But that’s now over and we can finally return to our usual blogging routine. 

First up, News of the World:

…
Continue Reading Takings International – Canada, Philippines … And More

We’re in Chicago this week participating in the ABA Annual Meeting. While we really are looking forward to a slate of thrilling committee meetings, what we’re really anticipating is the CLE programming. Here are what we think are the highlights:

  • Looming Land Use Constitutional Issues –  Friday, July 31, 2:45 – 4:15 pm, Westin Chicago River North Grand Ballroom B –  Four hot land use issues: land use aspects of medical marijuana legislation; takings and exactions in San Francisco’s requirement for owners to pay departing tenants huge sums; Horne and takingsNew Jersey’s dune program. With Tony Della Pelle and Stephen Schwartz (one of the counsel for the Hornes), among others. 
  • The 2014 Supreme Court Term in Review – Friday, July 31, 2015, 10am – noon, Westin Chicago River North Promenade Ballroom C – “This panel of noted legal professionals, academics and journalists provides an overview of the Supreme Court

…
Continue Reading ABA Annual Meeting Programming: Takings, Land Use, Supreme Court, Election Law, Appellate Traps

Check out the Federal Takings blog, which notes that the Supreme Court has asked the federal government to respond to the cert petition in Ministerio Roca Solida, Inc. v. United States, No. 14-5058 (filed May 27, 2015). The government previously waived its right to respond.

The issue presented in the case is one which the Supreme Court dodged in in United States v. Tohono O’odham Nation, 131 S. Ct. 1723 (2011): whether 28 U.S.C. § 1500’s jurisdictional bar — which deprives the Court of Federal Claims of jurisdiction if a related case is pending in another court at the time the CFC complaint is filed — operates in takings claims, which are required to be split between the CFC and the district courts (aka the “Tucker Act Shuffle”). We filed an amicus brief in Tohono, arguing that the statute cannot be read to deprive takings plaintiffs of…

Continue Reading SCOTUS Requests Response To § 1500 Petition