Regulatory takings

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The Cato Institute has filed an amicus brief supporting the petitioner 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. The cert petition asks:

In this case, the Illinois Supreme Court held that a state lawtransferring the revenues of four Illinois casinos to five Illinoishorse-racing tracks is categorically not susceptible to challenge underthe Takings Clause of the Fifth Amendment because, in that court’sview, “regulatory actions…

Continue Reading Is Robbing Peter To Pay Paul A Taking?

Some interesting items have crossed my desk on Friday and Saturday:

  • From the Grand Theft: Property blog, Jim Mattson posts his thoughts about Monks v. City of Rancho Palos Verdes, 67 Cal. App. 4th 263 (Cal. Ct. App. 2008), the case in which a California Court of Appeals held that a municipality’s development moratorium was a Lucas taking.
  • From the New York Zoning and Municipal Law blog comes a summary and analysis of the recent oral arguments in the latest phase of the Atlantic Yards eminent domain fight from Brooklyn. 
  • More on AmeriSource v. United States, No. 08-497 (cert. petition filed Oct. 15,

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Your first reaction to this post’s title may be “well, duh!”

But wait, there’s more.

In Empress Casino Joliet Corp. v. Giannoulias, 896 N.E.2d 277 (Ill., June 5, 2008),the Illinois Supreme Court held that a regulation that imposes a 3%”surcharge” on Illinois casinos with gross receipts over $200 million per year, and then gives the money to horse racing tracks is not a taking of property.  Several casinos challenged the law asserting, among other arguments, that the redistribution of their money to tracks was a taking.  The Illinois Supreme Court rejected the argument; the court’s taking analysis begins at page 14 of the slip opinion. The court held that the regulation was a tax, and not subject to takings analysis:

[W]e conclude that the surcharge at issue here is not subject to a takings challenge. The Act does not involve an interest in physical or intellectual property, nor does

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Continue Reading New Cert Petition: The Government Can “Take” Money

Thanks to Columbia lawprof Ronald Mann for forwarding his reply brief in AmeriSource Corp. v. United States, No. 08-497 (cert. petition filed Oct. 15, 2008). Responding to the arguments in the federal government’s brief in opposition, the reply argues:

The Government’s brief in opposition to the petition underscores the need for review by this Court. It declines to defend the reasoning of the court below. It offers a new rationale that is neither consistent with the reasoning of the lower court nor defensible on its own terms. Finally, despite the Government’s efforts to minimize the importance of the decision, it remains undisputed that the decision below grants the Federal Government a blank check to confiscate tangible property without any duty of compensation, from the only court in which such actions can be challenged.

Brief at 1. In AmeriSource, a pharmaceutical company whose legalprescription drugs were seizedas evidence…

Continue Reading Reply Brief In AmeriSource: Is Destruction of Evidence Seized From Innocent Third Party A Taking?

Thanks to James Lawlor of the Land Use Legal Report for letting us know that the U.S. Supreme Court has declined to review Ocean Harbor Homeowners Ass’n v. California Coastal Comm’n, 163 Cal. App. 4th 215, 77 Cal. Rptr. 432 (2008). In that case, the California Court of Appeals held that the California Coastal Commission properly conditioned a permit to build a seawall to protect property from erosion on the landowner’s payment of a $5.3 million “mitigation fee.” The fee was to be used to purchase other beach property since Commission claimed the construction of the seawall would result in the loss of beach fronting the property. The property owner challenged the exaction under the nexus and proportionality requirements of Nollan v. California Coastal Commission, 483 U.S. 825 (1987), and Dolan v. City of Tigard, 512 U.S. 374 (1994).

A denial of a petition for writ of…

Continue Reading Cert Denied In California Nollan/Dolan $5.3 Million Seawall “Mitigation Fee” Case

It’s easy to blog a case when you or your colleagues win it, and we’ve had plenty to talk about lately in that department in eminent domain and zoning law.

On the other hand, it’s not so easy to write about a case when you don’t prevail. Today is one of those days. The U.S. Supreme Court declined to review the California Court of Appeal’s decision in Charles A. Pratt Const. Co. v. California Coastal Comm’n, 76 Cal. Rptr. 2d 466 (Cal. Ct. App. 2008) (the California court’s slip opinion available here). The Supreme Court’s Order List denying review is posted here.

We blogged about the lower court decision here, the rehearing petition here, and the cert petition here. We (and others) filed amicus briefs, urging the Court to review the case. Our brief is posted here. The two Questions Presented…

Continue Reading Cert Denied In Ripeness And Penn Central Case

Thanks to Kona Blogger Aaron Stene for pointing out an article from West Hawaii Today, “County lawyers say fair share legal.”The article reports:

Council members who say Judge Ronald Ibarra’s 2007 ruling in a contested condemnation case invalidated the county’s fair share assessments are basing their argument on too specific a portion of the ruling, attorneys for the Corporation Counsel’s Office said.

Following the logic of the argument, the attorneys went on, someone could argue that the county’s condemnation powers were also invalidated, because both condemnation and fair share assessment were mentioned in a single sentence. Instead, the county’s attorneys said, the references were specific to the Coupe lawsuit in which the ruling was filed, according to written opinions from the office released Friday.

Disclosure: we represent the property owners in the Coupe lawsuit mentioned (more accurately termed the “Coupe condemnation,” since the Coupe Family is the…

Continue Reading County Of Hawaii “Fair Share”/Impact Fees – What Did The Court Decide?

Here are the links to the cases that I spoke about in my session in today’s seminar “Supreme Court, Regulatory Takings and Eminent Domain Update.”  Not all of the cases we discussed today are included below, so if you would like a link or more information about a case that is not listed, please email me at rht@hawaiilawyer.com and I will send it to you.

The majority opinion by Justice Acoba, joined by Justices Nakayama and Duffy is posted here:

We hold that (1) a landowner in a condemnationaction is entitled to damages under HRS § 101-27 where the property atissue is not finally taken in the context of a particular condemnationproceeding, irrespective of whether the government attempts to take theland through subsequent condemnation proceedings; (2) abatement doesnot apply where the relief sought in two concurrent actions is not thesame; and (3) although our courts afford substantial deference to thegovernment’s asserted public purpose for a taking in a condemnationproceeding, where there is evidence that the asserted purpose ispretextual, courts should consider a landowner’s defense of pretext. Therefore, (1) automatic denial of statutory damages under HRS §101-27in Condemnation 1 is vacated and the case remanded for a determinationof damages, (2) the court’s conclusion that Condemnation 2 was notabated by Condemnation 2 is vacated and the case remanded for adetermination of whether the public purpose asserted in Condemnation 2was pretextual.

Slip op. at 5. Here’s the concurring and dissenting opinion by Chief Justice Moon joined by Justice Levinson. The briefs in the case are available here:  Opening Brief, Answering Brief of the County of Hawaii, Reply Brief. Disclosure: we represent the property owner.

  • No private right of action to enforce zoning – The Hawaii Intermediate Court of Appeals, in Pono v. Molokai Ranch, Ltd.,119 Haw. 163, 194 P.3d 1126 (2008), held that a private party had nostanding to enforce the state’s land use laws. The Hawaii Supreme Courtrejected certiorari review of the case.  Disclosure: we represent thelandowner. More here.

Continue Reading Materials From 2/20/2009 Land Use Seminar

The Solicitor General has filed the United States’ Brief in Opposition in AmeriSource Corp. v. United States, No. 08-497 (cert. petition filed Oct. 15, 2008).

In that case, a pharmaceutical company whose legal prescription drugs were seizedas evidence against a third party by the federal government which thenlet the expiration date pass rendering the drugs worthless, sought compensation in the Court of Federal Claims. The petition presents a single Question Presented:

Whetherit 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 government’s brief frames the question slightly differently:

Whether the government’s seizure of personal property for use as evidence in a criminal matter effected a taking requiring just compensation under…

Continue Reading Federal Government’s Brief In Opposition In AmeriSource: Is Destruction of Evidence Seized From Innocent Third Party A Taking?

Some interesting reports filtering across my screen today:

  • Thanks to Charley Foster for sending notice about a post at Volokh Conspiracy about whether the Takings Clause was incorporated against the states by the Due Process Clause, “Regulatory Takings and the Fourteenth Amendment.”  On that subject, check out “No State Shall Abridge: The Fourteenth Amendment and the Bill of Rights” by Michael Kent Curtis (available on Amazon here), which makes a good case that the Reconstruction Congress meant for the Privileges or Immunities Clause of the Fourteenth Amendment to incorporate all of the provisions of the Bill of Rights against the states as attributes of national citizenship.

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Continue Reading Land Use Round-Up