Regulatory takings

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2010-06-22 12.55.09 Even in the rarefied, academic atmosphere of an appellate court, an advocate must sometimes have a thick skin. Today’s Ninth Circuit en banc oral arguments in the rent control takings case, Guggenheim v. City of Goleta, was one where the two lawyers who argued the case certainly came away with a few callouses. 

Guggenheim is the appeal from an unsuccessful challenge to the City of Goleta’s mobile home rent control ordinance. The district court ruled against the mobile home park owners who asserted the ordinance worked a regulatory taking of their property.

In Guggenheim v. City of Goleta, 582 F.3d 996 (9th Cir., Sep. 28, 2009), a three-judge Ninth Circuit panel reversed, however, and held 2-1 that the challenge was ripe under Williamson County, and ruled the ordinance was a facial taking by applying the three-part Penn Central test. The court remanded the case to the…

Continue Reading Ninth Circuit Rent Control Taking Case (Guggenheim) En Banc Oral Argument Report pt. I

The New Jersey Supreme Court today issued a unanimous opinion in Klumpp v. Borough of Avalon, No. A-49-09 (Jun. 22, 2010), the case the New Jersey Law Journal described as the “bizarre condemnation” after the Appellate Division held that the government can assert inverse condemnation in order to take property without compensation. 

It’s a detailed opinion, and we will post more details after we’ve had a chance to digest it, but here’s the bottom line:

  • The Borough placed a dune on the plaintiffs’ property in 1965, fenced it off to limit public access, and constructed an access path from the street to the beach over the property. A physical taking occurred no later than that date.
  • If the government takes property without undertaking eminent domain, the property owner can bring an inverse condemnation action. The statute of limitations for such claims is six years.
  • However, equity

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Continue Reading NJ Supreme Court And The “Bizarre Condemnation” – Klumpp v. Borough of Avalon

The Ninth Circuit’s en banc rent control takings case, set for oral argument in Pasadena tomorrow, has generated big interest.

In Guggenheim v. City of Goleta, 582 F.3d 996 (9th Cir., Sep. 28, 2009), a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit held that the city’s mobile home rent control ordinance was a regulatory taking. The court found the case ripe under Williamson County, and addressed the merits of the takings claim. On March 12, 2010, the court ordered en banc review.

Twelve amici have filed briefs (10 supporting the property owners, and 2 supporting the City; available here on our resource page), and the court will be beaming the June 22, 2010 oral arguments live to the San Francisco, Portland, and Seattle courthouses at 2:00 p.m. if you can’t make it to Pasadena.

We will be in the Pasadena courtroom tomorrow, and…

Continue Reading Ninth Circuit Rent Control Takings Case (Guggenheim) Preview

In its Thursday editorial, Common Sense and Private Property, the New York Times barely conceals its derision for both the property owners who instituted takings claims in Stop the Beach Renourishment, Inc. v. Florida Dep’t of Environmental Protection, No. 08-1151, and the four-Justice plurality who set forth the standards for judicial takings, but who couldn’t convince a fifth that this was the right case in which to adopt those standards:

Not a single Supreme Court justice agreed with the harebrained notion that some Florida property owners were entitled to the extra land created when the state widened the beach in front of their houses. But in an opinion issued Thursday, four justices came very close to creating an equally harebrained precedent: that a court decision about the application of a state’s property laws can amount to a “taking” of private property, as if a city or state had…

Continue Reading NY Times On Stop The Beach Renourishment: Justice Thurgood Marshall Had “Harebrained” Ideas

Here’s a round up of the latest commentary and analysis of yesterday’s U.S. Supreme Court decision in Stop the Beach Renourishment, Inc. v. Florida Dep’t of Environmental Protection, No. 08-1151.

Continue Reading Friday’s Stop The Beach Renourishment (Judicial Takings) Links

Today’s U.S. Supreme Court decision in Stop the Beach Renourishment, Inc. v. Florida Dep’t of Environmental Protection, No. 08-11 is generating a lot of analysis and commentary. When the case was filed and argued, we suspected it would generate keen interest, so in anticipation, the ABA’s State and Local Government Law Section assembled an expert panel discussion of the case at the upcoming ABA Annual Meeting in San Francisco.

Update and Lessons of Stop the Beach Renourishment v. Florida Department of Environmental Protection is scheduled for August 6, 2010 from 2:30 – 4:00 p.m. at the Hilton San Francisco Union Square. I will be moderating the panel, which includes expert takings law advocates and scholars. All of us filed briefs in the case:

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Continue Reading ABA Panel On Stop The Beach Renourishment (San Francisco, 8/6/2010)

Here are some links to analysis of today’s U.S. Supreme Court opinions in Stop the Beach Renourishment, Inc. v. Florida Dep’t of Environmental Protection, No. 08-11:

Continue Reading Stop The Beach Links

Professor Ben Barros has posted the first analysis and summary of today’s Supreme Court opinions in Stop the Beach Renourishment, Inc. v. Florida Dep’t of Environmental Protection, No. 08-11. See Supreme Court Rules in Stop the Beach.

The Supreme Court today ruled in the Stop the Beach judicial takings case.  In an opinion by Justice Scalia, the Court rejected the judicial takings claim.  The Court’s judgment was unanimous, but there were fragmented opinions on various issues, as described further below.  For background on the case, see this post.  For a recap of the oral argument, see this post.  For a great description of the social conflicts behind the dispute, see this article from the New York Times Magazine. 

I will be updating this post with analysis of the Court’s opinions and with links to commentary about the case.

We will be posting some thoughts after a chance Continue Reading First Summary And Analysis Of Stop The Beach Renourishment Judicial Takings Case

Things I never thought I would see in a Supreme Court opinion include the riddle “how much wood would a woodchuck chuck if a woodchuck could chuck wood,” but there it is, in black and white on page 11 of Justice Scalia’s opinion today in Stop the Beach Renourishment, Inc. v. Florida Dep’t of Environmental Protection, No. 08-11 (cert. granted. June 15, 2009):

One cannot know whether a takings claim is invalid with-out knowing what standard it has failed to meet. Which means that JUSTICE BREYER must either (a) grapple with the artificial question of what would constitute a judicial taking if there were such a thing as a judicial taking (reminiscent of the perplexing question how much wood would a woodchuck chuck if a woodchuck could chuck wood?), or (b) answer in the negative what he considers to be the “unnecessary” constitutional question whether there is…

Continue Reading Scalia, J.: “How Much Wood Would A Woodchuck Chuck If A Woodchuck…”