Regulatory takings

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When we first read the Seventh Circuit’s opinion in Muscarello v. Winnebago County Bd., No. 11-2332 (7th Cir. Dec. 7, 2012), a case involving takings, due process, and other* challenges to a county zoning ordinance making it easier to build a wind farm, our first thought was “that case sounds familiar.”

It was. In this case, the same court ruled pretty much the same way, in a case about wind farms, against what appears to be the same plaintiff.

The recent opinion was covered in detail in Dean Patty Salkin’s Law of the Land blog here, so we won’t repeat it.

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*the opinion referred to the suit as “a blunderbuss of federal and state claims” 

Muscarello v. Winnebago County Bd., No. 11-2332 (7th Cir. Dec. 7, 2012) 


Continue Reading 7th Cir: If At First You Don’t Succeed…

Here’s a follow-up to our recent post about the U. Hawaii Law Review article authored by lawprof David Callies which summarizes the land use and property decisions of the Hawaii Supreme Court during the tenure of now-retired Chief Justice Ronald Moon. You know, the article setting out the stunning success rates of certain parties in the court, which chides the Justices for their often-lengthy opinions, and labels the Moon Court’s record on property rights “appalling.” Download the article here.

Today’s Honolulu Star-Advertiser has a follow-up interview with Professor Callies, most of which is behind a paywall. But if you don’t have an e-subscription (a real deal for those with mainland zip codes, by the way), here are the choice parts:

  • “Callies says he isn’t against planning in general, but thinks there must be legitimate police powers involved for the right of development to be abrogated.”
  • “QUESTION: A recent

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Continue Reading More From U.H. Lawprof On 1993-2010 HAWSCT’s “Appalling” Record On Property Rights

Here’s the petitioners’ merits brief in Horne v. United States Dep’t of Agriculture, No. 12-122 (cert. granted. Nov. 20, 2012).

That’s the case in which the Court is reviewing Horne v. United States Dep’t of Agriculture, 673 F.3d 1071 (9th Cir. 2011), in which the Ninth Circuit concluded a takings claim raised as a defense by raisin farmers who qualified as “raisin handlers” under federal regulations and thus were required to “reserve” (donate) 47% of their crop to the government, was not ripe because the farmers could seek just compensation in a Tucker Act claim in the Court of Federal Claims. For the 2003 and 2004 crop years, the USDA government brought an enforcement action against the farmers, seeking to recover the monetary value of raisins they did not turn over to the government.

The Ninth Circuit dismissed the takings claim for lack of jurisdiction, effectively telling the…

Continue Reading Can A Property Owner Raise A Takings Defense? – Petitioners’ Brief In California Raisin Case

Here’s the preview of next week’s U.S. Supreme Court arguments in Koontz v. St Johns River Water Mgmt Dist., No. 11-1447 (cert. granted Oct. 5, 2012). That’s the case in which the Court will be addressing whether the “essential nexus” and “rough proportionality” standards of Nollan and Dolan are applicable only to exactions for land, or whether they are generally-applicable tests for all exactions.

In Wetlands regulation at heart of Fla. property rights dispute, Greenwire‘s Lawrence Hurley writes:

In late 1993 and early 1994, Coy Koontz Sr. applied for two permits from a Florida agency as he sought to build on wetlands he owned just east of Orlando.

Today, Koontz has been dead for 13 years, his family no longer owns the property and the permits have long been approved. And yet a legal dispute about the permitting process is about to be argued at the Supreme…

Continue Reading Koontz Preview: Request For Exaction Is Not A “Suggestion,” But A “Velvet-Covered Hammer”

How, as an appellant, do you know you are in trouble? When an opinion starts like this, that’s how:

Although a residential subdivision proposed for construction in a bucolic Rhode Island town never saw the light of day, its ghost continues to haunt the parties. But apparitions rarely have substance, and this one is no exception. After careful consideration of the plaintiff’s complaint and the district court’s order of dismissal, we lay the ghost to rest.

The remainder of the opinion in Marek v. Rhode Island, No. 12-1460 (1st Cir. Dec. 27, 2012)  deals with whether a property owner suffered a taking when the State of Rhode Island and other parties granted a permit and approved construction by a neighboring owner of a road that allegedly encroached on the plaintiff’s land.

Among other arguments (as far as we can tell), the plaintiff raised a takings claim in federal court…

Continue Reading First Circuit: Inverse Condemnation Claim In State Court An “Adequate Procedural Pathway” To Compensation

You know how we’re always saying that certain parties have an enviable record of success in the Hawaii Supreme Court? Well, now the statistics are official.

The latest edition of the University of Hawaii Law Review published an article by lawprof David Callies summarzing the decisions of the court during the tenure of now-retired Chief Justice Ronald Moon. The article sets forth the stark numbers (83% win rate, 65% reversal of the intermediate appellate court), and contains a sharp comment about the often-lengthy nature of the court’s opinions:

Second, the Moon Court decided some of thestate’s most important property and related environmental and Native Hawaiianrights cases in favor of the various non-governmental organizations bringingthem (Sierra Club, Earthjustice, Hawaii’s Thousand Friends, and the NativeHawaiian Legal Corporation) approximately eighty-two percent of the time,sixty-five percent of which reversed the Intermediate Court of Appeals (ICA).Third, the court increasingly rendered lengthy opinions, many triple the…

Continue Reading U.H. Lawprof: HAWSCT’s 1993-2010 Record On Private Property Rights “Appalling”

Here’s petitioner’s reply brief in Koontz v. St Johns River Water Mgmt Dist., No. 11-1447 (cert. granted Oct. 5, 2012), which responds to the Water Management District’s merits brief.

In that case, the U.S. Supreme Court will address whether the “essential nexus” and “rough proportionality” standards of Nollan and Dolan are applicable only to exactions for land, or whether they are generally-applicable tests for all exactions.

Among other things, the reply addresses the argument made by the District and its amici that Nollan and Dolan aren’t really “takings” cases, but involve due process or equal protection:

Due process and equal protection claims are also inapt. A due process claim questions whether the exaction serves some legitimate purpose, and an equal protection claim asks whether the exaction is applied equally to similarly situated individuals. But neither claim addresses whether a particular individual has been targeted to bear a public…

Continue Reading Reply Brief In Koontz: Money Is Property

Join us on Friday, January 11, 2013 at 1:30 p.m. Eastern (12:30 CT, 11:30 a.m. MT, 10:30 a.m. PT, 7:30 a.m. HT) for “Thinking Out Loud – Property Rights After Natural Disasters,” a free teleconference presented by the Condemnation Zoning and Land Use Committee of the ABA’s Litigation Section. There’s no cost to register, and you do not need to be an ABA or Litigation Section member to participate.

Here’s the program description:

Over one-half of the people in the United States live within 50 miles of the coastline. Hurricanes and similar types of natural disasters have caused billions of dollars in damage in recent years, particularly in coastal communities, and some scientists warn that global warming and rising sea levels will increase the frequency or severity of these types of natural disasters. Private property rights in the wake of natural disasters are an important issue not…

Continue Reading Free Teleseminar: Property Rights After Natural Disasters

William W. Wade, Ph.D., a resource economist with the firm Energy and Water Economics (Columbia, Tennessee) is a frequent author and speaker on the topic of regulatory takings and is familiar to readers of this blog. (His next gig is a talk on Penn Central and inverse condemnation at the 12th Annual Texas Eminent Domain SuperConference February 11-12, 2013, in Austin.)

Bill fills us in on the Texas Supreme Court’s decision in EdwardsAquifer Authority v. Day, 274 SW.3d 742, (Tex. 2012). The court issued the opinion in February 2012, but recently denied a motion to rehear the case, thus making it final. 

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Regulatory Takings, Texas Groundwater, and Hydrofracking

by William W. Wade, Ph.D.

Texasmay have created the takings and condemnation lawyer full-employment act. 

TheTexas Supreme Court in February 2012 reversed a hundred years of water law,changing groundwater ownership rights from a “rule of capture” to ownership of”groundwater…

Continue Reading Guest Post: Regulatory Takings, Texas Groundwater, And Hydrofracking

In “When Government Takes You Hostage,” lawprof Richard Epstein weighs in on the issues in Koontz v. St Johns River Water Mgmt Dist., No. 11-1447 (cert. granted Oct. 5, 2012). In that case, the U.S. Supreme Court will address whether the “essential nexus” and “rough proportionality” standards of Nollan and Dolan are applicable only to exactions for land, or whether they are generally-applicable tests for all exactions.

Professor Epstein writes:

The situation that is now before the Supreme Court in Koontz shows the folly of the current law, which rejects the long-established common law baselines between neighbors. No longer does the state have to take (and pay just compensation) to satisfy its environmental goals. Rather, the entire mitigation doctrine amounts to nothing more than a form of grand theft larceny by which the state first claims for nothing a state-wide environmental easement, which it will then sell…

Continue Reading Epstein On Koontz: “Grand Theft Real Estate?”