Regulatory takings

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There’s still time to register for two teleconferences that are a part of the ABA State and Local Government Section’s “Virtual Spring Meeting.”  I hope you can join us for at least one of the programs.

  • Wednesday, April 1, 2:00 – 3:30 pm, EDT: Condemnation Hot Topics – The program will examine new and important condemnation cases andtrends, and also review eminent domain as a backdrop for land useregulation. I will leading the session on pretext and public use in eminent domain cases. Also on the faculty are Robert Freilich, Mary Lynn Huett, and Edward Sullivan. The moderator is Professor Steven Eagle. More here.
  • Thursday, April 2, Noon – 1:30 pm, EDT: Hot Topics in Land Use Law 2009 – The 2009 version of this popular annual program will cover the latestdevelopments in several areas of the law related to land useregulation.  Among the expected topics are the ability of town

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Continue Reading Upcoming ABA Condemnation, Land Use Teleconferences

In 1999, without asking the owner’s permission, the federal government constructed a 35,000 square foot “borrow pit” on a parcel in a remote corner of Texas. The owner did not learn about the government’s activities until 2004, when a migrant worker who had crossed the property to access the Rio Grande told him about it. The owner visited the property in late 2004 and for the first time discovered the borrow pit.

In 2006, the owner filed an inverse condemnation claim against the United States in the Court of Federal Claims.  Over the owner’s objection that he was unaware of the taking until the migrant worker told him about it in 2004, the CFC dismissed the claim because it was filed outside the six-year statute of limitations.

The Federal Circuit affirmed. The claim accrued on the date of the taking — April 1999 — but the owner asserted the accrual…

Continue Reading Federal Circuit: 35k SF Government Borrow Pit On Your Property Not “Inherently Unknowable”

A cert petition has been filed seeking review of Joy Builders, Inc. v. Town of Clarkstown, 11 N.Y.3d 863 (2008).  That decision was summarized by Professor Patty Salkin on the Law of the Land blog here. The New York Court of Appeals refused to hear the case, ordering “Appeal dismissed without costs, by the Court sua sponte, upon the ground that no substantial constitutional question is directly involved.”

The cert petition was filed on February 27, 2009 and is available here.

The Question Presented:

A government violates the doctrine of unconstitutional conditions when it grants a development permit conditioned upon the compelled dedication of land for municipal purposes if: i) it has not made an “individualized determination” that an exaction is required because of the project’s impacts, and ii) the quantity of land compelled is not roughly proportional to those impacts.1  More and more governments…

Continue Reading New Cert Petition – Dolan Proportionality And Individualized Determination Applies To In-Lieu Fees

The U.S. Supreme Court today issued an order denying review in AmeriSource Corp. v. United States, No. 08-497 (cert. petition filed Oct. 15, 2008), the case which asked “[w]hether it is a taking compensable under the Fifth Amendment for the Government to seize (and not return) an innocent third party’s propertyfor use as evidence in a criminal prosecution, if the property is notitself contraband, is not the fruits of criminal activity, and has notbeen used in criminal activity.” The briefs and a link to the Federal Circuit’s opinion are available here.Continue Reading Cert Denied In Amerisource (Taking Of Property As Evidence)

Thank you to several of our readers for pointing out that SCOTUSblog has determined that Agripost, LLC v. Miami-Dade County, Florida, No. 08-567 (cert. petition filed Oct. 27, 2008) is a “petition to watch” for the Supreme Court’s March 27, 2009 conference.

The petition asks 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 two Questions Presented:

Question 1. Should the Court overrule Williamson County Regional Planning Commission v. Hamilton Bankinsofar as it denies property owners the right to litigate theirfederal causes of action in federal court, the same as all otherconstitutionally aggrieved citizens, and forces them to seekcompensation in state court ostensibly to ripen their federalconstitutional takings claims, where four Justices of this Courtdeclared in San Remo Hotel v. City and County of San…

Continue Reading Overrule Williamson County: Agripost Cert Petititon A “Petition To Watch”

Three more amicus briefs supporting the petition for writ of certiorari in Empress Casino Joliet Corp. v. Giannoulias, No. 08-945 (cert. petition filed Jan. 21, 2009).

In that case, the Illinois Supreme Court held (896N.E.2d 277 (Ill. 2008) that a regulation which imposes a 3%”surcharge” on Illinois casinos with gross receipts over $200 millionper year, and then gives the money to horse racing tracks is not ataking of property. Several casinos challenged the law asserting,among other arguments, that the redistribution of their money to trackswas a taking.  The Illinois Supreme Court held that the regulation was a tax, and not subject to takingsanalysis.

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Continue Reading Additional Amicus Briefs In Empress Casino (Can The Gov’t “Take” Money?)

Instead of an in-person Spring Meeting this year, the ABA Section of State & Local Government Law will be “meeting” virtually from March 31-April 2, 2009.  As part of the meeting, the Section will be featuring a series of teleconference and live audio webcasts on a variety of subjects including topics near and dear to us: workforce housing, condemnation, land use, and green regulations. You can register for all programs, or individual subjects. A complete list of programs is posted here.

I will be participating as faculty in two of the programs: Condemnation Hot Topics (April 1, 2009 from 2:00 – 3:30pm EDT) and Hot Topics in Land Use Law (April 2, 2009 from noon – 1:30 EDT).  I’ll be speaking about the issue of public use and pretext in eminent domain, and recent cases questioning the government’s ability to take property.

Registration information is available on the links.

Continue Reading Conference: ABA Section Of State & Local Government Law Virtual Spring Meeting

Okay, we’ve decided to surrender to temptation and let fly with bad (and obvious) egg puns. But at least they’re out of our system in the beginning. After that, no more yolks. We promise.

In Rose Acre Farms, Inc. v. United States,No. 2007-5169 (Mar. 12, 2009), the U.S. Court of Appeals for theFederal Circuit held that a regulation restricting the sale of eggs was not ataking under Penn Central Transp. Co. v. City of New York, 438 U.S. 104 (1978), because the economic impact of the regulation “was not severe” and the character of the government action “strongly favored” the government.

Rose Acre Farms owns egg-laying chickens.  A lot of them: “eight layer-hen farms with millions of hens.” The USDA first promulgated temporary, then final regulations that restricted the interstate sale and transportation of eggs determined to be contaminated with salmonella. After illness outbreaks were traced to three…

Continue Reading Federal Circuit: Eggonomic Impact Not Eggregious Enough To Require Feds To Shell Out Compensation

Two more amicus briefs supporting the petitioner in Empress Casino Joliet Corp. v. Giannoulias, No. 08-945 (cert. petition filed Jan. 21, 2009) are available.

In that case, the Illinois Supreme Court held (896N.E.2d 277 (Ill. 2008) that a regulation which imposes a 3%”surcharge” on Illinois casinos with gross receipts over $200 millionper year, and then gives the money to horse racing tracks is not ataking of property. Several casinos challenged the law asserting,among other arguments, that the redistribution of their money to trackswas a taking.  The Illinois Supreme Court held that the regulation was a tax, and not subject to takingsanalysis.

The Mountain States Legal Foundation’s brief argues the Court should review the case to resolve the confusion created by Eastern Enterprises, Inc. v. Apfel, 524 U.S. 498 (1998), and because the Illinois Supreme Court’s decision means that money is not “property.”

The brief of property and…

Continue Reading More Amicus Briefs In Empress Casino (Can The Gov’t “Take” Money?)

The U.S. Court of Appeals has denied a petition for rehearing and rehearing en banc in Casitas Municipal Water District v. United States,No. 2007-5153 (Sep. 25, 2008), a decision we noted here.  In September 2008, a panel held that contractual waterrights were taken when the federal government required the landowner toconstruct a fish ladder and divert water in order to protect endangeredsteelhead trout.  The court held that the requirement resulted in aphysical diversion of water for public use, and that “Casitas willnever, at the end of any period of time, be able to get the waterback.  The character of the government action was a physical diversionfor public use — the protection of an endangered species.” Slip op. at30.

The per curiam order denying rehearing is available here.  Three Federal Circuit judges dissented, arguing that no physical taking occurred because the federal government did not appropriate water from…

Continue Reading Federal Circuit Denies En Banc Review In Casitas