Regulatory takings

Subscribe to Regulatory takings via RSS

This is a longer post, but we think it’s worthy of your time. That’s because even though there’s a lot going on in the opinion by the California Court of Appeal in Property Reserve, Inc. v. Superior Court, No. C067758 (Mar. 13, 2014), it cuts through much of the unnecessary doctrinal fog surrounding takings law, especially the U.S. Supreme Court’s bizarre ripeness requirement first enunciated in Williamson County Regional Planning Comm’n v. Hamilton Bank, 473 U.S. 172 (1985).

The Bottom Line

Although the entire thing is worth reading (44 pages of majority opinion, followed by 46 pages of dissent), if we had to pick out one passage as the takeaway, here it is: 

Eminent domain authority must be exercised in strict conformity to the constitutional protections and procedures that limit its operation. If a condemnor intends to take private property or intends to perform actions that will result…

Continue Reading Cal App States The Inconvenient Truth: There’s No Substitute For Eminent Domain – Gov’t Must Condemn First If It Wants To Enter Land

Zipler Since this is the season for self-congratulatory industry awards, we can’t overlook one of our industry’s highest honors, the Zoning and Planning Law Report Land Use Decision Awards (aka the “ZiPLeRs”). For those of you who do not subscribe to the Zoning and Planning Law Report, the “strangest, or at least more dramatic” land use cases each year are eligible for nomination for a ZiPLeR. 

Our Owners’ Counsel and ABA colleage Dwight Merriam recently announced the 2013 Awards in the December 2013 issue of ZPLR, but before he got to his tongue-in-cheek detailing of such winners as the “You Can’t Pigeonhole These Pets As An Accessory Use Award,” the “Don’t Be An Ass Award,” and “The Grinch Who Stole The Treehouse Award,” he started off with “The Koontz Corner,” a few pages on the goings-on surrounding one our favorite decisions last year, Koontz v. St. Johns Water Management District…

Continue Reading Paging Dr. Merriam, Stat: One Case Of “Koontz Catatonia”

Here’s more on that bill which we noted the other day that is making its way through the Florida legislature. The bill would prohibit Florida municipal and local governments from inserting a condition in a development permit unless the exaction is related to the “direct impact of a proposed development.”

In “Bills would expand on U.S. Supreme Court ruling in Florida property ‘takings’ case,” in the Florida Current, Bruce Richie writes that “HB 1077 and SB 1310 appear to have backing from property rights supporters following a U.S. Supreme Court decision last year involving the St. Johns River Water Management District.” He was also kind enough to seek out our input:

Robert H. Thomas, a lawyer in Hawaii who represents the Pacific Legal Foundation in cases there, said having a state law in place provides another layer of protection beyond the U.S. Supreme Court decision. He said some legal…

Continue Reading More On Florida’s Post-Koontz Legislation

No, not that Madison County, but rather Madison County, Montana. 

In Public Lands Access Ass’n v. Bd of County Commissioners of Madison County, No. DA 12-0312 (Jan. 16, 2014), the Montana Supreme Court held that a riparian owner’s efforts to fence his land to keep the public from crossing it and accessing the Ruby River were not effective. Montana has a statute that allows public access to and use of streams up to the high water mark, and the property owner asserted that the lower court’s ruling allowing access across his land and use of the River under the statute was an unconstitutional taking. The Supreme Court rejected this argument. As the court’s synopsis stated:

The Court also explained that Kennedy’s takings argument is precluded by well-settled law in Montana. Montana’s well-settled law provides that the State owns all waters in trust for the people; that a…

Continue Reading The Fences Of Madison County: No Judicial Taking

Next week, we’ll be in New Orleans for the 2014 edition of the ALI-CLE Eminent Domain program, now in its 31st year. 

As usual, my Owners’ Counsel colleagues Leslie Fields and Joe Waldo (the programming co-chairs) have put together a fantastic 2.5 day of programming, taught by expert faculty.  At 11:00 a.m. on the first day of the program, I will be joining Professor James Ely to speak about “The Full and Perfect Equivalent for Just Compensation: The Historical Context and Practice.” 

Should be fun. If you are not joining us in-person, ALI-CLE is producing it as a live webcast, and will make the coursebook and video and audio available for later listening or viewing. 

More details here, or download the brochure here, or below. 

31st Annual Eminent Domain and Land Valuation Litigation, ALI-CLE Program (CV023) (Jan. 23-25, 2014) New Or…

Continue Reading 31st Annual ALI-CLE Eminent Domain And Land Valuation Litigation (New Orleans)

Here’s the second of two amicus briefs filed in support of the petitioner in the judicial takings case we mentioned last week. This brief, filed by beverage distributors, who although they are respondents, urged the Supreme Court to take the case.

The brief argues that “Connecticut reached backwards in time to target and sweep a few private bank accounts into the general Treasury just because ‘the legislature wanted as much money as possible’ to redress a general budget deficit.” Brief at 1. “the Connecticut Supreme Court held that this retroactive seizure was not a taking because the distributors’ funds ceased being their property even before the funds were confiscated, at the moment the funds were deposited into special segregated acccounts. That court’s re-writing of Connecticut property law ‘contravene[d] the established property rights of’ the beverage distributors and thereby effected a taking.” Id. at 1-2 (emphasis original).

We’ll post…

Continue Reading Brief: State Court’s Rewriting Of Property Law A Judicial Taking

Here’s the first of two amicus briefs filed in support of the petitioner in the judicial takings case we mentioned last week.

This brief, filed by the New England Legal Foundation, the Cato Institute, the National Federation of Independent Businesses, and the Southeastern Legal Foundation, urges the Court to take the case, arguing that the Connecticut legislature’s raiding of the bottle fund is a “classic case” of the type of burden-shifting that Armstrong tells us is a taking.  The judicial takings problem arose because in order to uphold the legislative action, the Connecticut Supreme Court had to blow by established property rights:

Amici’s interest in this case arises out of their commitment to the protection of private property rights and economic freedom. The case involves Connecticut’s assertion of the power to take private property (i.e., targeted funds of money) for public use without compensation, in violation of the U.S. Constitution. 

In the midst of…

Continue Reading Amici Brief In Judicial Takings Case

Here’s the latest foray into the judicial takings arena. In this cert petition, a beverage distributor asserts that the Connecticut Supreme Court’s decision altering established property rights in unclaimed refund values in bottles resulted in a taking. 

Here are the Questions Presented:

For nearly 30 years, Connecticut beverage distributors had established property rights in socalled “unclaimed refund values” accumulated in conjunction with the State’s bottle return regulatory scheme. The Connecticut Supreme Court eliminated these rights in holding that a recent amendment to the regulatory scheme did not affirmatively vest distributors with an interest in the so-called unclaimed refund values, allowing the State to retroactively take the distributors’ property.

1.  Did the Connecticut Supreme Court’s opinion eliminating an established property right, and allowing the State to retroactively take the petitioners’ property, effect a “judicial taking” in violation of the Fifth and Fourteenth Amendments to the United States Constitution?

2.  Did the Connecticut Supreme Court’s opinion arbitrarily deprive distributors of their property in violation of the…

Continue Reading New Cert Petition: State Court Altering Bottle Refund Rights A Judicial Taking

We don’t usually hear much from the North Dakota Supreme Court. But here’s one that may have some interest. In Reep v. North Dakota, No. 20130110 (Dec. 26, 2013), the court held that the state owned the minerals up to the ordinary high water mark on navigable rivers, and always has, since statehood, under the Equal Footing Doctrine. The court also concluded that state statute did not give the state’s ownership interest in this property to private owners.

By itself, these rulings are not of particular interest. But read this article from the Bismarck Tribune (“State owns minerals to river high-water mark“), where one of the lawyers in the case is noted as saying, “Jan Conlin, the lead attorneyfor those individuals, said the ruling is disappointing and turns North Dakota’s own state law dating back to 1889 upside down.”

Now we don’t know anything about the state…

Continue Reading From North Dakota: The Next Judicial Takings Case?

Here’s one for you land users which details how the very broad way Hawaii Supreme Court treats claims of jurisidictional ripeness.

In Blake v. County of Kauai Planning Comm’n, No. SCWC-11-0000342 (Dec. 19, 2013), the court held that a third-party challenge to the Kauai Planning Commission’s subidivision approval was ripe for adjudication, and that the trial court should have exercised subject-matter jurisdiction. This case was not an administrative appeal under the Administrative Procedures Act, but nonetheless turned on the issue of whether a state agency had taken “final agency action” under the judicially-adopted doctrine of ripeness. The court concluded that the fact that a state agency’s approval which was necessary before a subdivision could go foward was not an impediment to a challenge to a county’s subdivision approval. 

The details of the case are set out at length in Chief Justice Recktenwald’s opinion, but here are the salient facts.

Continue Reading HAWSCT: State Agency Approval Not A Ripeness Bar To Challenge To County Approvals