Regulatory takings

Subscribe to Regulatory takings via RSS

To those who attended today’s seminar “Integrating Water Law and Land Use Planning,” thank you.  The materials from my session on “Water Rights, Property Rightsand the Law of Settled Expectations” are below. 

  • Kaiser Aetna v. United States, 444 U.S. 164 (1979) – the Hawaii Kai Marina case – physical invasions, regulatory takings, and interference with settled expectations.
  • Maui Tomorrow v. State of Hawaii, 110 Haw. 234, 131 P.3d 517 (2006) – Hawaii water law is not a federal case.  Summary of the decision here.
  • The Hawaii State Planning Act,

…
Continue Reading Materials And Links From Today’s Water Law Seminar

The Washington Examiner has published an op-ed about McClung v. City of Sumner, 548 F.3d 1219 (9th Cir. 2008), petition for cert. filed May 2, 2009, “When the Government Takes Your Money, It Takes Your Property,” by Cato Institute’s Ilya Shapiro and Pacific Legal Foundation’s Lauren Wiggins (who filed an amicus brief urging the Court to review the case).

McClung involves an exaction of money, and not land, as a condition of a development permit. The Ninth Circuit held that legislative exactions are not subject to Nollan/Dolan:

Courts are deeply divided over whether the Fifth Amendment applies tothe taking of property by means of fees such as the ones the McClungswere assessed.  They are also split as to whether legislatively imposedconditions allow a local government to avoid making individualizeddeterminations of a development’s impact.  Courts like the NinthCircuit rely on the fact that the Supreme…

Continue Reading Op-Ed: Money Is Property – Monetary Exactions And Nollan/Dolan

A very interesting decision from the U.S. Court of Appeals for the Fifth Circuit in Severance v. Patterson, No. 07-20409 (Apr. 23, 2009). 

While much of the commentary about the case (see, e.g., here, here, and here) has focused on the dissenting opinion’s ad hominem on the plaintiff’s and her attorneys’ motivations and the majority opinion’s slap-down of the dissent (see footnote 1), for now we will stick to what the opinion held on the merits which is as interesting, if not more so. (We will add our thoughts about what the weird dissent said about public interest legal cases in a separate post.)

The case involved constitutional challenges to a Texas statute known as the Open Beaches Act, which imposes an easement for public access over certain beachfront land. After Ms. Severance purchased two beachfront parcels in Galveston, in 2005 Hurricane Rita…

Continue Reading Fifth Circuit: Fourth Amendment Seizure Of Beachfront Land Claim Not Subject To Williamson County Ripeness

Economist Bill Wade offers his thoughts on the recent (and latest) Rose Acre decision by the Federal Circuit, a case we summarized here.
__________________________________

Of shoes and ships, eggs and farms; Or, Penn Central through the Looking Glass

by William W. Wade, Ph.D.

Fans of arcane takings decisions will not find a more economically confused record and decision than Rose Acre Farms VI.  (Rose Acre Farms, Inc., v. United States, United States Court of Appeals for the Federal Circuit , 2007-5169, March 12, 2009.)  Whether the case was about eggs or farms, gross revenues or net profits, lost income or lost value, marginal costs or average costs apparently eluded the judges, the instant parties and experts.  In 15 years of writing about the economic underpinnings of regulatory takings case decisions, I have to award both the expert testimony and judicial interpretations in this case some sort…

Continue Reading Guest Post: Of Shoes and Ships, Eggs and Farms; Or, Penn Central Through the Looking Glass

Thanks to my fellow Damon Key land user Greg Kugle for letting me know the Federal Circuit has affirmed Palmyra Pacific Seafoods, L.L.C. v. United States, 80  Fed. Cl. 228 (Jan. 22, 2008), a case we summarized here.  The Federal Circuit’s opinion is available here.

The court held that licenses to use Palmyra Atoll as a commercial fishing base were not taken when the federal government declared the waters around the atoll as a wildlife refuge and prohibited commercial fishing. The court held that the licenses were not “property,” and even if the licenses were rendered worthless, the takings clause was not implicated.

In attempting to define the property right that was purportedly taken by the regulation at issue in this case, the plaintiffs have provided little beyond the general assertion that the Interior Department interfered with their “exclusive right to use Palmyra as a commercial fishing…

Continue Reading Federal Circuit: Commercial Fishing Ban Frustrated Contract, But Is Not A Taking

Several items of interest:

  • California Coastal Commission: “You must farm” – As a condition of allowing a Northern California family to build a home, the California Coastal Commission demanded that they dedicate an “agricultural easement” on their 143-acre parcel.  In other words, as a condition of use, the Commission requires a family that has never farmed its land to use its land for farming.  More about the case from the Half Moon Bay Review here. The complaint is posted here.

    “What the Coastal Commission is asking us to do in return for a building permit is to put the remaining acreage into agriculture easement,” Dan Sterling said. “But it doesn’t stop there. They want control of what and how we farm. And even then, they can come in here whenever they want.” That’s Sterling’s biggest issue. He says he’d lose control over all but 10,000 square feet of

…
Continue Reading Tuesday Round-Up: Forced Farming, Tax Or Taking, RLUIPA Loophole

A cert petition has been filed seeking review of the Ninth Circuit’s decision in McClung v. City of Sumner, 548 F.3d 1219 (9th Cir. 2008), the case in which the court held:

This case presents an issue of first impression in this Circuit — whether a legislative, generally applicable development condition that does not require the owner to relinquish rights in the real property, as opposed to an adjudicative land-use exaction, should be reviewed pursuant to the ad hoc standards of Penn Central Transportation Co. v. City of New York, 438 U.S. 104 (1978), or the nexus and proportionality standards of Nollan v. California Coastal Commission, 483 U.S. 825 (1987), and Dolan v. City of Tigard, 512 U.S. 374 (1994). We affirm, holding that the Penn Central analysis applies to the 12-inch pipe requirement. 

The Ninth Circuit’s opinion is available here.  The petition presents three…

Continue Reading New Cert Petition And Amicus Brief On Nollan/Dolan Applicability To Legislative Exactions, In-Lieu Fees

Thank you to those who were able to join us live for today’s teleconference. Here are the links to the additional cases and other items I mentioned (or wanted to mention) in my session on Public Use and Pretext Update:

…
Continue Reading Links From Today’s ABA Teleconference: Hot Topics In Land Use Law 2009

Here are the latest opinions of interest from the Court of Federal Claims, which has nationwide jurisdiction over inverse condemnation and regulatory takings claims against the federal government where the compensation sought exceeds $10,000:

  • James v. United States, No. 01-2911L (Mar. 5, 2009) – subject matter jurisdiction, ownership of parcel in question; “scrivener’s error.”
  • Biery v. United States, Nos. 07-693L, 07-675L (Feb. 27, 2009) – more rails-to-trails takings – certifying questions of abandonment under Kansas law to the Kansas Supreme Court.

…
Continue Reading Court Of Federal Claims Round-Up

The U.S. Supreme Court has denied review to Agripost, LLC v. Miami-Dade County, Florida, No. 08-567 (cert. petition filed Oct. 27, 2008), another case asking the Court to overrule Williamson County Regional Planning Comm’n v. Hamilton Bank of Johnson City, 473 U.S. 172 (1985), the decision that gave us the weird ripeness rules in regulatory takings. The order is available here.

The briefs and the 11th Circuit’s opinion are available here.  This is the second petition asking the Court to overrule Williamson County that has been denied this Term.

Continue Reading Cert Denied In Agripost (Williamson County)