Regulatory takings

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What’s this, a federal court actually allowing a federal Fifth Amendment claim to be litigated in federal court? Why that’s as rare as hen’s teeth, although it shouldn’t be. 

That’s the ruling of the Fourth Circuit in Sansotta v. Town of Nags Head, No. 12-1538 (July 25, 2013), which reversed the district court’s dismissal of a takings claim under Williamson County. The court of appeals held that the Town’s removal of the case to federal court waived the state litigation Williamson County defense. Other courts have rejected the same tactic (property owner does what Williamson County requires and files its takings claim in state court, only to have the government remove the case to federal court under College of Surgeons, and then argue that the federal court should dismiss the case under Williamson County), but it’s nice to see a U.S. Court of Appeals…

Continue Reading 4th Cir: Town Waived Williamson County State Court Defense By Removing Case To Federal Court

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Did you know that in 2002, the voters of Florida adopted a “pregnant pig” amendment to the state’s constitution? Well, neither did we. The amendment, effective in 2008, makes it unlawful for “any person to confine a pig during pregnancy in an enclosure, or to tether a pig during pregnancy, on a firm in such a way that she is prevented from turning around freely.”

Farmer Basford’s pig farm used such “gestation crates,” and he was forced by the amendment to go out of business. He tried other things like peanut farming, but those didn’t work, so in 2010, he filed an inverse condemnation claim and a claim under Florida’s Bert Harris Act, arguing that the pig amendment deprived him of all economically viable use of his far. The trial court dismissed the Bert Harris Act claim, and after a trial, held that he was entitled to $505,000…

Continue Reading Fla App: “Pregnant Pig” Constitutional Amendment Took Farmer’s Property

This really was a “blockbuster” Term for the Supreme Court and takings law: no less than three cases (and four, maybe five, if you expand it slightly to include property-owner favorable cases such as Lozman and last term’s Sackett), and as Gideon Kanner noted recently, the CLE sessions are flying fast and furiously.

Here’s another one, with a great angle: our ABA colleague Ed Thomas, President of the Natural Hazard Mitigation Association and the guy who knows just about everything there is to know about disaster preparedness, disaster response, and property rights, is speaking tonight (Tuesday, July 16, 2013, 7:00 pm MT) along with BYU lawprof Lisa Grow Sun, about the Supreme Court’s takings cases:

This session will explore the legal landscape for community development and hazard mitigation/climate adaptation. Specifically, there has been tremendous press coverage of many U.S. Supreme Court decisions this term. One…

Continue Reading Today’s Free Webinar – Mitigation Options Affected by the Supreme Court in 2013: Koontz and Other Game Changers

Here’s one not to miss, not only because it’s free, but because it features our PLF colleague Paul Beard II, arguing and prevailing counsel in Koontz v. St. Johns River Water Mgm’t Dist., No. 11-1447 (June 25, 2013): on Wednesday, July 17, 2013, from 2:00 – 3:30 pm ET, Greenberg Traurig and PLF are sponsoring a live chat:

In Koontz, one of the most important Takings Clause cases in recent years, the U.S. Supreme Court held that the doctrine of  unconstitutional conditions established in the Nollan and Dolan cases applies to all land use permit applications – even if the excessive condition leads to a permit denial, and even if the condition involves the payment of money rather than dedication of real property. This extension of Nollan/Dolan principles has far reaching implications for real estate, environmental, and other federal and state permitting actions. The significance and implications…

Continue Reading Upcoming Live Chat: Koontz – How Far Has Nollan/Dolan Been Extended

On Wednesday, July 17, 2013, from 4:00 – 5:30 pm ET, I will be a panelist in the American Planning Association’s above-titled teleconference.  The session was put together by our ABA and OCA colleague Dwight Merriam, and in additon to Dwight and me, includes Professors David Callies (U. Hawaii) and Carol Brown (U. Richmond), John Baker, an attorney with Greene Espell in Minneapolis, and our ABA colleage and fellow U. Hawaii alum Julie Tappendorf.

Here’s the description of the program:

The U.S. Supreme Court ended its term with a decision that will change planning and regulation — but by how much, and will the change be for better or worse? Koontz v. St. Johns River Water Management District is the most important planning law case in nearly a decade, and already there is widespread disagreement about what it means.

A diverse panel of land use lawyers will examine…

Continue Reading Upcoming Teleconference: Lessons from Koontz – Game Changer or Just a Little Rule Refinement?

Here’s one we’ve been meaning to post for a few days because it involves the nuts-and-bolts of eminent domain and inverse condemnation work — the calculation of just compensation and damages, and another victory for colleague Thor Hearne.

In a rails-to-trails taking case our of Florida, McCann Holdings, Ltd. v. United States, No. 07-4261 (June 27, 2013), the Court of Federal Claims awarded $3.1 milllion for the taking, which the government claimed was valued at only $825,000. 

We won’t walk through the entire case, but the court’s Opinion and Order is a very good roadmap for how to calculate severance damages in a partial taking of an easement.

Here’s more about the decision from the local paper.

McCann Holdings, Ltd. v. United States, No. 07-4261L (Fed. Cl. Jun 27, 2013)


Continue Reading CFC Provides Roadmap For Proving Damages And Just Compensation

Here’s the amicus brief filed today by Pacific Legal Foundation in Mehaffy v. United States, No. 12-1416 (cert. petition filed June 5, 2013).

That’s the case in which the Supreme Court is being asked to review to review the Federal Circuit’s unpublished opinion in which the court affirmed the Court of Federal Claims’ grant of summary judgment to the government, holding that Mehaffy failed the Penn Central test solely because he purchased the property alleged to have been taken after the governmentt adopted the Clean Water Act.

PLF has posted a more in-depth summary of the case and the arguments in its brief here.

The cert petition is posted here, and another amici brief urging the Court to grant the writ is posted here.

Brief Amicus Curiae of Pacific Legal Foundation in Support of Petitioner, Mehaffy v. United States, No. 12-…


Continue Reading One More Amicus Brief In “Investment-Backed Expectations” Case: Can’t Regulate Away Right To Compensation

Generally, we don’t plug seminars that might compete with our own, but in this case, we made an exception because the faculty for this one consists of three people we could just not go without hearing from.

On Thursday, July 11, 2013, Law Seminars International is sponsoring “Koontz v. St. Johns River Water Management District – Implications for Property Owners and Local Government,” featuring our Owners’ Counsel of America colleagues Michael Berger and Amy Brigham Boulris, and our favorite foil, lawprof John Echeverria, as they “assess the implications of this important decision and provide practical guidance for both defending and pursuing regulatory takings claims.”

Here’s what we suggest: participate in their program on July 11, then tune into ours (which features both Koontz and Horne) the following day. Continue Reading Koontz Teleconference – July 11, 2013

Here’s some of the stories and commentary we’ve been reading about the Supreme Court’s decision in Koontz v. St. Johns River Water Management District, No. 11-1147 (June 25, 2013:

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Continue Reading Koontz Round-Up