Regulatory takings

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This just arrived: in Edwards Aquifer Auth. v. Day, No. 08-0964 (Feb. 24, 2012), the Texas Supreme Court, applying the Penn Central test, held that the government is not entitled to summary judgment because “the three Penn Central factors do not support summary judgment for the Authority and the State. A full development of the record may demonstrate that … regulation is too restrictive of Day’s groundwater right and without justification in the overall regulatory scheme.” Slip op. at 45. The court began the unanimous opinion with this summary:

We decide in this case whether land ownership includes an interest in groundwater in place that cannot be taken for public use without adequate compensation guaranteed by article I, section 17(a) of the Texas Constitution. We hold that it does.

I’m liking the Texas Supreme Court these days.

We’re getting a brief ready for filing today, so I haven’t…

Continue Reading Texas: “The requirement of compensation may make the regulatory scheme more expensive, but it does not affect the regulations themselves or their goals for groundwater production.”

sidewalk Here’s one court that gets its doctrine right. Bonito Partners, LLC v. City of Flagstaff, No. 1 CA-CV 10-0819 (Feb. 21, 2012).

A property owner challenged a city ordinance that requires a landowner repair adjacent public sidewalks, else the city will do it and send the owner the bill, and if the landowner doesn’t  pay, the city will put a lien on the property.

The city told the owner to fix the broken and dangerous sidewalk next to its property. It didn’t (“Please proceed with the repairs. Do not wait for Bonito Partners, LLC to do the work.”). The city fixed it, charged the owner, and eventually put a lien on the property. The owner sued for both a taking and for due process.

The trial court granted the city summary judgment. In addressing the takings argument, the court of appeals first noted that takings and due process are…

Continue Reading Where The Sidewalk Ends: The Takings Power Is Different Than The Police Power

Professor Richard Epstein, in his own inimitable and unequivocal style, opines on rent control and the Harmon cert petition in a Federalist Society podcast. A must-listen. Here’s the description:

In March 2011, the Second Circuit Court of Appeals issued summary judgment in Harmon v. Markus, a challenge to New York’s rent stabilization law by Mr. John Harmon, whose townhouse has been occupied for years by tenants paying rent equal to about 60% of market value. The Second Circuit ruled that “government regulation of the rental relationship does not constitute a physical taking” in light of the Supreme Court precedent, and that Mr. Harmon was therefore not entitled to just compensation. The Supreme Court has asked New York City and the tenants to file a response to the certiorari petition filed by Mr. Harmon. On this previously recorded conference call, Prof. Richard Epstein provides analysis of the case and…

Continue Reading Federalist Society Podcast On New York Rent Control Takings Challenge With Professor Richard Epstein

In our law review article on Stop the Beach Renourishment, Inc. v. Fla. Dep’t of Environmental Protection, 103 S. Ct. 2592 (2010), we predicted that “the fractured opinions in the case will be a boon for academics who may continue the search for the ‘takings quark’ (if not woodchucks) in the pages of law journals.” Of Woodchucks and Prune Yards: A View of Judicial Takings From the Trenches, 35 Vt. L. Rev. 437 (2010).

It looks like our prediction is (thankfully) being borne out: earlier this week we posted a new article from the Stanford Law Review (here), and now comes another scholarly piece on the judicial takings issue, this time from the Cornell Law Review: Eduardo M. Penalver & Lior Jacob Strahilevitz, Judicial Takings or Due Process?, 97 Cornell L. Rev. 305 (2012) (pdf available here). Here’s the summary:

In Stop the Beach…

Continue Reading New Article: Judicial Takings or Due Process? (Cornell Law Review)

Today’s post is authored by colleague Thor Hearne, who regularly represents property owners in the Court of Federal Claims, the Federal Circuit, and the Supreme Court. He recently joined us on the faculty of the ALI-ABA eminent domain program in San Diego, and spoke at the 2011 Brigham-Kanner Property Rights Conference in Beijing.

He’s familiar to our readers who have followed his success in “rails to trails” cases in the CFC. Thor reports on the latest developments in those cases below.

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Last week, Senior Judge Loren A. Smith of the Court of Federal Claims issued his opinion in the Trails Act taking case, Buford v. United States, __ Fed. Cl. ___ (Slip Op. February 7, 2012), 2012 WL 401607. Judge Smith’s decision was the 16th decision from this Court in the past year finding the government liable for taking citizens’ land underlying an abandoned railroad…

Continue Reading Guest Post: DOJ’s Rails-to-Trails Strategy Fails

As he writes in yesterday’s column, “Supreme Court should take on New York City’s rent control laws.” He’s writing about the Harmon case and the cert petition which the Supreme Court is currently considering:

Rent control is unconstitutional because it is an egregious and uncompensated physical occupation of property. The Constitution says that private property shall not “be taken for public use, without just compensation.” The Harmons get no compensation for being coerced into privatized welfare: The state shows compassion to tenants — many of whom are not needy; one of the Harmons’ entitled tenants owns a house on Long Island — by compelling landlords to subsidize them.

We’ve posted the cert petition and the amicus briefs in support (start here).Continue Reading George Will Doesn’t Like Rent Control

We’ve been meaning to post this interesting and important case, but it got lost in the shuffle. Thanks to a colleague for the reminder. 

Try explaining that headline to anyone but a land use lawyer, and they would think you are a little bit crazy. What is so odd about a federal court actually exercising its core jurisdiction to consider whether a local government has violated someone’s federal constitutional rights?

As readers of this blog know, the one-two punch of Williamson County Regional Planning Commission v. Hamilton Bank of Johnson City, 473 U.S. 172 (1985), and San Remo Hotel, L.P. v. City and County of San Francisco, 545 U.S. 323 (2005), renders a federal forum for federal takings and related claims nearly impossible unless the stars align just right. In R&J Holding Co. v. Redev. Auth. of County of Montgomery, No. 10-1047 (Dec. 9, 2011), they apparently…

Continue Reading There, That Wasn’t So Hard, Was It? Third Circuit Actually Lets Landowner Raise Federal Constitutional Claims In Federal Court

A recently-published Note from the Stanford Law Review: Josh Patashnik, Bringing a Judicial Takings Claim, 64 Stan. L. Rev. 255 (Jan. 2012). Here’s the abstract:

This Note seeks to answer a set of questions prompted by the Supreme Court’s 2010 decision in Stop the Beach Renourishment, Inc. v. Florida Department of Environmental Protection. In that case, six Justices recognized that the Constitution provides some protection against so-called judicial takings—court decisions that, like executive and legislative action, might be deemed to take property rights. But the Court’s fractured holding provided little guidance on a handful of practical issues that will be of immense interest to potential judicial takings plaintiffs, like whether such claims can be brought in federal court and what remedies might be available. I argue that a judicial takings plaintiff should be able to bring her case in federal district court, notwithstanding the barriers the Supreme…

Continue Reading New Article: Bringing a Judicial Takings Claim (Stanford Law Review)

Here’s the final amicus brief supporting the petitioner in the case challenging New York City’s rent control ordinance. The case is in the cert stage (we posted the petition here, along with the other three amicus briefs supporting the petition), and although the respondents initially waived their response rights, the Court requested a response which is now due on March 5, 2012.

Here’s more on the case:

The Court’s docket report is here. Continue Reading One More Amicus Brief In NYC Rent Control Takings Challenge