Regulatory takings

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There’s one citation notably missing from the opinion of the Texas Court of Appeals in Anderton v. City of Cedar Hill, No. 05-12-00969-CV (Aug. 22, 2014): Williamson County.  

This was case where in response to the city’s petition that the Anderdons’ use of their property was illegal, they counterclaimed that they had nonconforming use rights, that the city’s petition violated their vested rights, and resulted in a taking of their property. The trial court granted the city summary judgment on the counterclaim, holding that the owners did not present evidence of their nonconforming use status, and that their inverse condemnation claim was not ripe because they had not pursued available administrative remedies under the zoning code.

The court of appeals reversed. It concluded that the owners did submit enough evidence to get past a summary judgment motion that their use was nonconforming. Most interestingly for our purposes…

Continue Reading Williamson County Wonderfully MIA In Texas Court’s Ripeness Analysis

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In State of Oregon v. Alderwoods (Oregon), Inc., No. A146317 (Sep. 17, 2014), an en banc equally-divided Oregon Court of Appeals affirmed the trial court’s determination that while the property owner possessed a property right in access to a public highway, that common law right was worth … pretty much nothing. 

Being an affirmance by an equally-divided court, there’s no majority opinion only a per curiam statement that’s exactly 6 words long (“Affirmed by an equally divided court.”). The real back-and-forth takes place in the concurring and dissenting opinions. 

Under Oregon common law, owners of properties abutting a state highway or county road have a right of access to the highway. And while the concurring judges in Alderwoods paid lip service to that right, they concluded that since that right may be regulated, there was no need for the state to pay just compensation when it took that …

Continue Reading Oregon App: Your “Common Law” Right To Access A Street Can Be Regulated Away, So You’re Owed Nothing If It’s Taken

Another one of those we’ve been meaning to post before 2014’s end.

In Tribett v. Shepherd, No. 13 BE 22 (Sep. 29, 2014), the Ohio Court of Appeals held that the 1989 version of the Ohio Dormant Mineral Act did not work a taking.  

The plaintiffs own a 61-acre parcel. Their predecessors in title sold the surface rights and coal interests 50+ years ago, but retained all other mineral interests. These interests ended up at issue in the quiet title action between the Tribetts and the Shepherds. The Tribetts asserted that the Shepherds’ mineral interests were deemed abandoned under the Act. The Shepherds, of course, asserted otherwise, arguing the Act was not applicable, or if it was, it worked a taking of their property rights in the minerals:

The Shepherds, on the other hand, argued that the mineral interests were not abandoned. They contended that the 2006 version…

Continue Reading Ohio App: Dormant Mineral Statute Not A Taking

Continuing our year-end opinion rush, here’s Thaw v. Moser, No. 14-40108 (Oct. 9, 2014).

Mr. Thaw sought bankruptcy protection. As part of the process, the trustee was going to sell the house he owned with Mrs. Thaw, who was not bankrupt, and claimed a homestead exemption. 

The Fifth Circuit rejected Mrs. Thaw’s claim that selling her interest in the house was a taking. Before 2005, the bankruptcy code allowed a non-debtor spouse to have a compensable interest in a home jointly-owned with the debtor. But amendments to the code in 2005 capped and eliminated the homestead exemption. And since the Thaws purchased their home after 2005, Mrs. Thaw did not have a vested right that was taken.

The court rejected the argument that in Palazzolo v. Rhode Island, 533 U.S. 606 (2001), the Supreme Court eliminated the “notice” argument:

Palazzolo’s narrow exception has no application here.

Continue Reading Fifth Circuit: Forced Sale Of Home In Bankruptcy Not A Taking Because Bankruptcy Law Preceded Purchase

Back in the day, before the cycling craze really hit the U.S., we were really into the sport. Wool jerseys, toe clips, and other stuff that is now probably considered retro. We also followed the European racing scene, even though the only American to follow was Greg LeMond.

LeMond has long since retired, but he’s apparently still competitive. In LeMond v. Yellowstone Development, LLC , No. DA 13-0383 (Aug. 20, 2014), he sued after a deal to purchase adjacent property fell through:

Blixseth sent an e-mail on behalf of Yellowstone Development on September 21, 2000. The e-mail stated, “The deal is that if Greg brought in 10 people who bought at the club, he would receive the lot.” The e-mail continued, “We did reach agreement that if after 5 years he had brought in less than the 10, he could pay the difference at the rate of $100,000 per…

Continue Reading Montana: Lis Pendens Not A Taking

A short one (as usual) from the New York Supreme Court, Appellate Division.

The court’s opinion in New Creek Bluebelt, Phase 4 v. City of New York, No. D42909 (Nov. 19, 2014) is so brief, you should just read it yourself. But here are the highlights:

  • The city condemned a 19,500 square-foot vacant parcel on Staten Island.
  • The property had been designated “wetlands” before the current owners acquired it.
  • Applying a Penn Central analysis, the trial court determined, and the appellate division affirmed, that it was reasonably probable the wetlands designation was a regulatory taking. 
  • The regulations resulted in an 82% diminution of value.
  • That’s usually not enough, standing alone, but the regulations also were an “effective prohibition on development on any part of the property.”

For more, see this post (“Appellate Division Affirms 75% Increment Applicable to Wetlands Taking“) from our Owners’ Counsel colleagues at Goldstein, …

Continue Reading NY: Reasonable Probability That Wetlands Designation Is A Regulatory Taking Under Penn Central

Ohio-sommers

Major interstate highway bridge construction nearby resulted in homeowners suing ODOT for inverse condemnation because “extreme noise, pounding and vibrations” caused their home (red arrow) to be uninhabitable. The Ohio Court of Claims granted ODOT summary judgment, and the property owners appealed.

The homeowners argued that the trial court applied the wrong standard, and should have analyzed the undisputed facts under the Penn Central test for a regulatory taking. Problem was, they hadn’t referred to Penn Central in the Court of Claims, arguing only that ODOT had “‘substantially and materially’ interfered with their use of their property,” and had physically trespassed. 

In Sommer v. Ohio Dep’t of Transportation, No. 13AP-848 (Dec. 23, 2014), the Ohio Court of Appeals rejected the homeowners’ argument, concluding that the Court of Claims properly analyzed the facts under the correct standard: “‘As ordinarily understood, the term, ‘taking,’ as used in the Constitution, comprehends…

Continue Reading Ohio App: “Inconveniences” Caused By Highway Construction Not A Taking

You regulatory takings mavens know the “denominator” issue. It first came into our collective consciousness in the Penn Central case, where the Supreme Court concluded, among other things, that the property to be analyzed for regulatory takings purposes was not just Penn Central’s air rights, or even the parcel which it wanted to develop. Instead, the Court concluded that the property against which the development ban was to be measured was the entirety of Penn Central’s property in the area. (For more on the case, see Professor Kanner’s article, “Making Laws and Sausages: A Quarter-Century Retrospective of Penn Central Transportation Co. v. City of New York, 13 Wm. & Mary Bill of Rights J. 679 (2005)). 

From that inasuspicious beginning, there’s been an entire body of jurisprudence that has built up around what the “relevant parcel” is when a court is determining a regulatory taking, also known as…

Continue Reading Wisconsin App: Two Parcels Can Be Treated As One For Regulatory Takings Purposes, If They Are Contiguous

Here’s one of the decisions we’ve been meaning to post for a while.

In Schmude Oil Co., Inc. v. Dep’t of Envt’l Quality, No. 313475 (July 1, 2014), the Michigan Court of Appeals held that there was no wipeout per se taking, nor was there a Penn Central taking, when the DEQ refused to permit the plaintiff to drill for shale oil on its private property.

The plaintiffs’ land was partially in a “nondevelopment region” which absolutely banned drilling, while the other portion was in a “limited development region” in which “drilling could occur, subject to certain limitations.” The plaintiffs requested the DEQ issue 8 permits for the nondevelopment region, and 3 permits for the limited region. The DEQ denied all the applications. 

The court of appeals determined that within the nondevelopment region, the DEQ was required to have rejected the drilling requests (nondevelopment means no drilling), and that…

Continue Reading Mich App: Denial Of Shale Oil Drill Permits Not A Taking

The Texas Supreme Court is generally pretty good about property rights. See this opinion, this one, and this one, for examples.

So when the legal analysis in one of its regulatory takings/inverse condemnation opinions has the following language — especially in a case where a municipal government has treated the plaintiffs/property owners very badly — it would be understandable if you predicted the court was coming down on the side of the property owners:

The right to acquire and maintain private property is among our most cherished liberties. As Locke explained, the value of private property lies not only in its objective utility, but also in any personal investment therein. See John Locke, Two Treatises of Government 134 (Thomas I. Cook ed., Hafner Press 1947) (1689). Accordingly, the right to undisturbed enjoyment of residential property is all the more sacred. The unique importance of the home is reflected in our Bill of…

Continue Reading Texas (Reluctantly) Finds No Regulatory Takings Claim