Regulatory takings

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Here’s the latest in a case we’ve been following, a tale from New York that reminds us of the U.S. Supreme Court’s decision in Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419 (1982). Every takings lawyer worth his or her salt knows that Loretto stands for the proposition that a regulation allowing a physical invasion of private property — no matter how de minimus the invasion might be — is a per se regulatory taking. In that case it was the cable TV company that attached a small box to Mrs. Loretto’s building.

In Corsello v. Verizon New York, Inc., No. 51 (Mar. 29, 2012), the New York Court of Appeals held that when the telephone company “attached a box to a building that plaintiffs own, and used the box to transmit telephone communications to and from Verizon’s customers in other buildings,” the property owner could…

Continue Reading Loretto Redux: NY Court Of Appeals Revisits An Old Friend

Today, the Texas Supreme Court issued opinions in Severance v. Patterson, No. 09-0387, the case before the court on certified questions from the U.S. Court of Appeals for the Fifth Circuit. The Fifth Circuit asked whether Texas recognizes a “rolling” beachfront access easement (a public easement on littoral property that moves with naturally caused changes in the vegetation line without proof of prescription, if Texas does recognize such an easement, what is its source (statute or common law), and would a landowner subject to this easement be able to obtain compensation under Texas procedures?  More on the case background here.

The Texas Supreme Court had issued opinions in 2010 affirming that no such “rolling easement” existed (opinions and briefs available here), only to grant the government’s motion for rehearing, apparently something you can do under Texas appellate procedure. So nearly a year ago, the Supreme Court…

Continue Reading Texas (Again) Affirms Property Rights: No “Rolling Easement” On Beaches

ALI-ABAIn case you missed attending in person back in January, the annual eminent domain law conference (ALI-ABA’s Eminent Domain and Land Valuation Litigation) is now available on CD, mp3, and DVD here.

I was on the faculty, and along with Professor David Callies presented a session on The Role of Hawaii’s Unique Property Law in the U.S. Supreme Court’s Takings Cases. In addition to our session, there were presentations on such topics as Redevelopment in California, how to talk to juries about Just Compensation, Landlord and Tenant Issues in Eminent Domain, the latest in Highest and Best Use. And more.

Get your yearly CLE fix, including ethics credits, all for a great price. You can also purchase individual sessions,Continue Reading ALI-ABA Eminent Domain Conference 2012 Now On DVD & CD

Here is the Reply Brief in Harmon v. Kimmel, No. 11-496 (filed Mar. 20, 2012), the case in which a Manhattan property owner is challenging New York’s rent control law as unconstitutional:

Respondents confuse the issues with their scattershot assertions that rent stabilization concerns merely “landlord tenant relations,” “economic regulation,” “price controls” and “economic liberties,” and is just a matter of political and legislative policy. They disregard controlling precedent of this Court and seemingly concede that the Court of Appeals was mistaken. They also each acknowledge the existence of the “different case” standard set forth in Yee v. City of Escondido, 503 U.S. 519, 528 (1992). However, despite having argued otherwise to this Court and to the Court of Appeals in prior litigation, the State now argues that rent stabilization does not present the elements of the “different case” standard. The conflcts with decisions of this Court and…

Continue Reading Petitioner’s Reply Brief In New York Rent Control Case: “Permanent dispossession is nine-tenths of this law”

The Penn Central test — reaffirmed in Lingle as the regulatory takings “benchmark” in all but a few cases — is one of those “factor” tests in which the trier of fact is supposed to examine three things: (1) the economic impact of the regulation on the property; (2) the interference with investment-backed expectations, and (3) the character of the government action. None of these factors is supposed to be dispositive.

In Noghrey v. Town of Brookhaven, No. D33861 (Feb. 21, 2012), the Appellate Divison of the New York Supreme Court, however, held otherwise, and overturned a jury’s verdict that the town’s zoning regulations worked a Penn Central taking because the loss of value determined by the jury wasn’t enough:  

The jury was instructed that damages were to be assesed by determinng the value of the properties immediately before and immediately after the rezoning. The difference between those…

Continue Reading NY App: Can’t Have A Penn Central Taking With “Only” A 46% Loss In Value

Here’s the state’s BIO in Harmon v. Kimmel, No. 11-496 (cert. filed Oct. 17, 2011), the case challenging New York City’s rent control ordinance as a due process violation and as a taking. We posted the cert petition and the three amicus briefs in support here.

Both respondents waived their rights to file a BIO, but in December, the Court requested responses. Last week, we posted the City of New York’s BIO here.

Here’s the Court’s docket page for the case.Continue Reading State’s BIO In New York Rent Control Case

Here’s the BIO in Harmon v. Kimmel, No. 11-496 (cert. filed Oct. 17, 2011), the case challenging New York City’s rent control ordinance as a due process violation and as a taking. Although the respondents waived their right to respond, the Court requested they file an opposition.

We posted the cert petition and the three amicus briefs in support here.

The BIO argues that Yee v. City of Escondido, 503 U.S. 519 (1992) forecloses the takings claim (it “removes any basis for petitioners’ argument that the [Rent Stablization Law] effects a physical taking of their property”). It also argues that the RSL is “rational,” and does not violate due process:

The RSL addresses a pressing local problem. “In contrast to the rest of the country, most New Yorkers do not own the homes in which they live.” New York City Rent Guidelines Board, 2011 Housing Supply Report…

Continue Reading BIO In New York Rent Control Case: Market Rents Are “Unjust, Unreasonable, And Oppressive”

The Stanford Law Review has been doing a good job lately of talking takings. Last week, it published a note about judicial takings and the Stop the Beach Renourishment case. Now comes the Law Review’s online edition with a new essay by Professor Richard Epstein, “Physical and Regulatory Takings: One Distinction Too Many,” about the New York City rent control case up before the Supreme Court on a cert petition. (We posted the cert petition and the amicus briefs in support in the Harmon case here.) Professor Epstein writes:

Unfortunately, modern takings law is in vast disarray because the Supreme Court deals incorrectly with divided interests under the Takings Clause of the Fifth Amendment … The Supreme Court’s regnant distinction in this area is between physical and regulatory takings. …

Thus, under current takings law, a physical occupation with trivial economic consequences gets full compensation. In contrast…

Continue Reading Epstein On Physical And Regulatory Takings (Stanford L. Rev.)

Gideon Kanner reminds us of the passing of retired California Court of Appeal Justice Lynn “Buck” Compton, famous of late for his exploits as a hard-charging paratrooper in World War II (L.A. Times story here). Gideon writes about Justice Compton’s time on the bench:

No, we aren’t going to wax lyrical about the high profile criminal cases in which he was involved, first as a prosecutor and later as a judge. We leave that to the popular press. We do wish to note that “Buck” Compton was one of the few — very few — California appellate judges who would give condemnees an even break, and for that he deserves our, and your thanks. He was tough-looking and blunt, but you knew when you appeared before him on behalf of property owners in an eminent domain case that he would listen to your arguments and give them fair …

Continue Reading Justice Lynn “Buck” Compton