Regulatory takings

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Cle-logoThose of you on the east coast (or, who wouldn’t mind a visit to a very beautiful part of Virginia), mark your calendars: on April 25 and 26, 2013, CLE International is presenting the 7th Annual Virginia Eminent Domain Conference – Local, State, and National Trends at the Tides Inn in Irvington, Virginia.

My Owner’s Counsel of America colleague Joe Waldo, the Planning Chair for the conference, has kindly asked me to deliver the Keynote Presentation to speak about “Virginia’s Place in National Eminent Domain Trends.” The following day, I’ll also be presenting a one-hour session on “Tough Takings Questions: Regulatory Takings, Zoning Issues and Judicial Takings” featuring the latest updates in those areas.

Joe and colleagues have assembled a talented and varied faculty, so please join us for two days worth of great CLE. Download the full brochure or the short version postcard, or, for complete…

Continue Reading 7th Annual Virginia Eminent Domain Conference (April 25-26, 2013)

Before the title of this post causes you to flee, please bear with us.

Oral arguments have just concluded in the Hawaii Intermediate Court of Appeals in a fascinating case involving the nature of “Torrens” title and, in a broader sense, the nature of property rights themselves. Disclosure: we filed an amicus brief in the case in support of the property owner. But more on that below.

Hawaii is one of the few remaining states retaining its Torrens system of title registration (two others are Massachusetts and Minnesota). We call it “Land Court,” a system in which the State guarantees indefeasible title to the rights and interests reflected in the title register.  

In In re Trustees Under the Will of the Estate of James Campbell, No. 30006, the State of Hawaii claims that title to property on Oahu’s north shore which was registered and confirmed to the Campbell Estate…

Continue Reading HAWICA Appeal: Is A Mineral Right An Inherent Servitude, Or Must It Be Reflected In Torrens Title?

If that headline calls out to you, congratuations: you are officially a takings nerd.

In Brandt v. United States, No. 12-5050 (Mar. 26, 2013), the Federal Circuit held that a takings claim originally submitted as a compulsory counterclaim to the federal government’s attempt to quiet title in a District Court action — which was then subsequently filed as a separate action in the Court of Federal Claims — was not barred by 28 U.S.C. § 1500. That statute deprives the CFC of subject-matter jurisdiction “of any claim for or in respect to which the plaintiff … has pending in any other court any suit or process against the United States….”

If this case name sounds familiar, here’s why. Last week we posted the cert petition in a companion case (the one that the government alleged was pending at the time that Brandt filed his takings counterclaim). Brandt’s petition…

Continue Reading Federal Circuit: Takings Counterclaim Not Barred By Section 1500 – A Dismissed Claim Is Not “Pending” Even Though It Might Be Appealed

No, the title to this post is not based on a character from a future Harry Potter book, but a wonderful phrase borrowed from German into the world of chess. “Zugzwang,” for those of you who are neither German-speakers nor chess players, describes a situation in which a player is in a good position, but any move will put her in a worse position. And move she must.

That’s what many property owners’ lawyers feel like when that regulatory takings case walks though their doors and they are asked “do we file now or later, and in which court?” You file now, and you may spend years litigating whether the case is ripe because it is alleged that you acted too soon. Wait, and you will be facing an argument that the statute ot limitations has run. Zugzwang. Same goes for which court, state or federal. File…

Continue Reading Zugzwang Thwarted: Florida Property Rights Act Claim Timely Filed

Here’s the Reply Brief in Horne v. United States Dep’t of Agriculture, No. 12-123 (cert. granted Nov. 20, 2012), the case asking whether in an enforcement action by the USDA, California raisin farmers can raise the defense that the requirement they turn over to the government a certain percentage of their yearly crop would be a taking.

The brief responds to the USDA’s brief, and argues that the issue before the Court is not “jurisdictional,” which means it could be raised any time, much like the USDA did here, even after the Ninth Circuit issued its opinion. Rather, this is a choice of remedies ripeness question subject to “forfeiture.” Barista’s note: we’re happy to see what is commonly referred to as “waiver” (a knowing and intentional relinquishment of a known right) properly labeled as “forefeiture” (relinquishment of a right by operation of law), because in civil litigation when…

Continue Reading Reply Brief In California Raisin Takings Case (Argued Today): Don’t Confuse Constitutional Rights With Remedies

Yesterday, we posted our thoughts about the upcoming (March 20) Supreme Court oral arguments in Horne v. United States Dep’t of Agriculture, No. 12-123 (cert. granted Nov. 20, 2012), the case asking whether in an enforcement action by the USDA, California raisin farmers can raise the defense that the requirement they turn over to the government a certain percentage of their yearly crop would be a taking.

Here are a few more perspectives on the arguments:

  • Supreme Court will divine the legal stakes in California raisin wars – Michael Doyle at McClachy: “Dissident California raisin growers will soon get their day in the Supreme Court sun, with a case that’s juicier than it seems. Libertarians are weighing in. So, from the other side, is Sun-Maid, the largest single marketer of raisins in the world. Texas is siding with the dissidents, as is the U.S. Chamber of Commerce.Add it up

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Continue Reading More California Raisin Takings Case Previews

Hat tip to Dean Patty Salkin’s Law of the Land blog for bringing this case to our attention. We don’t have much to add to her comprehensive write up of the Georgia Supreme Court’s opinion in City of Suwanee v. Settles Bridge Farm, LLC, No. S12A1599 (Feb. 18, 2013), a case holding that a regulatory takings case was not ripe because the property owner had not exhausted available administrative remedies. But we do have one thought that she didn’t cover, so bear with us while we set the stage.

Settles Bridge obtained city approvals for a residential subdivision. Shortly thereafter, however, it sold the property to Notre Dame Academy, which, under the existing residential zoning could build a school on the site as a matter of right, and “Settles Bridge abandoned its subdivision plan.” Upon learning of the sale, the city first adopted a building permit moratorium, and followed…

Continue Reading ‘SUP, Georgia? Takings Case Not Ripe Because Property Owner Hasn’t Applied For A Permit It Doesn’t Want

Koontz Sets The Stage

The apparent sticking point during the January oral arguments in n Koontz v. St Johns River Water Mgmt Dist., No. 11-1447 (cert. granted Oct. 5, 2012), came to light via Justice Scalia’s questioning of the property owner’s counsel about whether anything had been “taken” when a property owner refused to accept a development permit conditioned on him paying for improvements to public land miles away from his property, because doing so would violate the unconstitutional conditions doctrine of Nollan/Dolan. For how could the owner claim that his property was taken when he didn’t accept the permit? The issue was succintly stated by Justice Kagan when she asked point-blank, “where is the taking?” (see p. 11 of the Koontz transcript).

We’re still waiting for the opinion in that case so don’t have the Court’s answer just yet, but Part II of the…

Continue Reading Horne v. USDA Oral Argument Preview: Is It The Takings Clause, Or Only The Just Compensation Clause?