Regulatory takings

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The Federalist Society has posted a new edition of Engage – The Journal of Federalist Society Practice Groups, a newsletter-format publication with short scholarly articles on topics such as Administrative Law, Environmental Law and Property Rights, and Civil Rights, among others. 

The most interesting article in this edition is Property Rights in the Ninth Circuit, and Beyond by J. David Breemer, Damien Schiff, and Elizabeth Yi, which analyzes the Crown Point case, where the Ninth Circuit finally ditched the Armendariz doctrine.  Armendariz stood for the proposition that a propertyowner’s claim for violations of substantive due process rights were”subsumed” within the owner’s claim for violation of the TakingsClause.  Thus, in land-related issues, a property owner could onlybring takings claims.  Crown Point signals a revival of substantive due process as a viable claim in land use cases in the Ninth Circuit.  Download the article here.Continue Reading New Article: Property Rights in the Ninth Circuit, And Beyond

In a post at PrawfsBlawg, “Takings, a Second Time,” University of Chicago Law Professor Richard Epstein discusses his new book Supreme Neglect: How to Revive the Constitutional Protection for Private Property, a follow-up to Takings: Private Property and the Power of Eminent Domain (1985):

There is a sneaky character of great constitutional provisions. Theshorter they are, and the more common their language, the moredifficult the task of their interpretation. Private property, forexample, is not just a two-word phrase, but it represents an entireworld view, which necessarily needs to be distilled from sourcesexternal to the text. Takings, public use and just compensation arealso terms that come easily off the tongue, but are hard to explicatein any coherent fashion. In the next few blog posts I shall workthrough some of the key arguments on these issues. But for the moment,I will just note that I am quite proud that…

Continue Reading Epstein Blogs His New Takings Book

If you picked up and read a copy of Braun v. Ann Arbor Charter Township, No. 07-1370 (Mar. 13, 2008), an opinion by the US Court of Appeals for the Sixth Circuit, without having read the briefs of the parties and the decision of the court below, you might not see anything terribly unusual. 

The case arose after property owners asked the Township to rezone their parcels from Agricultural to Residential, and the Township refused.  The property owners did not seek a variance because the Township informed them that none was available.  The property owners then dutifully went to state court to seek compensation, arguing that the only economically beneficial use of the property was residential.  The state courts did not reach the constitutional claims, and dismissed the case on procedural grounds because the property owners had not sought a variance.  See Braun v. Ann Arbor Township…

Continue Reading 6th Circuit: We Have No Jurisdiction, But We Rule Against The Property Owner Anyway

Here’s another case involving property rights along the U.S. – Mexico border, but the issue is somewhat different than last week’s US v. 1.04 Acres case.  The issue this time is not the border fence, and it’s not about an affirmative exercise of eminent domain.  Instead, this case involves allegations of entry onto private property by agents of the U.S. Border Patrol in pursuit of illegal immigrants. 

In International Industrial Park, Inc. v. United States, No. 06-876L (Feb. 22, 2008), a San Diego, California-area property owner sued the federal government in the Court of Federal Claims for just compensation, complaining of the Border Patrol’s violation of its property rights:

As a result of these initiatives since September 11, 2001, IIP states that Border Patrol agents occupy Parcel 11 on an around-the-clock basis. Mr. Wick states in his declaration that Border Patrol vehicles speed across roads on IIP’s property, and…

Continue Reading Inverse Condemnation and the Border Patrol

As reported here, a lawsuit was filed in Arizona state courts seeking to invalidate Sedona, Arizona’s prohibition on short-term rentals (less than 30 days):

Approximately 450 short-term rental properties in Sedona have beenimpacted by the new Ordinance making it illegal to advertise short-termrentals, and the Code prohibiting short-term rentals.

This ordinance was enacted by the city council Jan. 22 to putteeth into the Code, on the books since 1995, which made it illegal torent properties for less than 30-days

The tail end of the article lists the claims asserted by the plaintiffs, which include vested rights, selective enforcement, and other constitutional and statutory claims. Continue Reading Legal Challenge to Sedona, Arizona Short-Term Rental Ban

The US Supreme Court has denied a petition to review a Seventh Circuit opinion which dismissed a property owner’s regulatory takings challenge on ripeness grounds under Williamson County Regional Planning Comm’n v. Hamilton Bank, 473 U.S. 172 (1985).  The questions presented by the petition called for overruling Williamson County. 

The case is Peters v. Village of Clifton, No. 07-635.  The Supreme Court order is here.  A summary of the Williamson County rule, the petition, and amicus briefs can be found in this post.

This issue isn’t going away.  Four Justices in San Remo Hotel, L.P. v. City & County of San Francisco,545 U.S. 323 (2005) stated that the ripeness rule needed to be revisited and overruled.  Continue Reading Cert Petition to Overrule Williamson County Denied

shorelineIn “New Kauai shoreline erosion bill among the nation’s most conservative,” Jan TenBruggencate summarizes the recently enacted Kauai ordinance adopting a variable shoreline setback:

Kaua’i County has adopted the most aggressive shoreline buildingsetback law in the state, a powerful policy that aims to protectcoastal structures against 70 to 100 years of erosion.
. . . .

Under the new legislation, there are two potential ways of calculating how close to the water a structure can be erected.
. . . .

The Kaua’i bill is considerably strongerthan the state’s first such legislation, Maui’s bill. The Maui setbacksare 25 feet plus 50 times the erosion rate.

Forcomparison, on a beach with one foot of erosion per year, a Maui homewould be set back 75 feet from the certified shoreline (25 feet plus50), while the same house on Kaua’i would be set 110 feet back (40 feetplus 70).

Read Jan’s…

Continue Reading Aggressive New Kauai Shoreline Setback Ordinance Adopted

The plaintiff property owner has filed a motion for partial summary judgment in the federal court challenge to Maui County’s “affordable housing” requirement.  Kamaole Pointe Development LP v. County of Maui, Civ. No. CV07-00447 DAE LEK (filed Feb. 28, 2008). 

The Maui ordinance, enacted last year, imposes a 40% to 50% affordable requirement on new housing developments.  I posted on the case earlier here (contains a link to the complaint), and analyzed the legal problems with the ordinance under state law  here . 

The plaintiff’s motion is posted here (1.5mb pdf).  It asks the court to declare the ordinance unconstitutional on its face under the Nollan/Dolan doctrine of unconstitutional exactions, which requires the government to show a substantial nexus between the exaction and some problem caused by the property owner before the government may demand tribute as a condition of development.  The exaction must also be…

Continue Reading Nollan/Dolan in Federal Court Challenge to Maui’s “Affordable Housing” Exaction Scheme

In Palmyra Pacific Seafoods, L.L.C. v. United States, No 07-35L (Jan. 22, 2008), the U.S. Court of Federal Claims (the article I court that hears inverse condemnation claims against the federal government) held that federal regulations which prohibited commercial fishing in waters around Palmyra Atoll and Kingman Reef did not take the plaintiffs’ licenses for  commercial fish processing facilities on the atoll.

The plaintiffs were exclusively licensed by the owners of Palmyra Atoll (located approximately 1,000 miles south of Hawaii) to commercially fish the nearby waters, and to use the atoll’s airstrip, dock, harbor, and base came for their commercial fishing enterprise.  In reliance on the licenses, the plaintiffs invested several millions of dollars in on-island infrastructure, and actually began commercial fishing operations.  Slip op. at 2 & n.1.   

In 2001, however, the Secretary of the Interior designated the waters surrounding Palmyra and Kingman Reef as National Wildlife…

Continue Reading Court of Federal Claims: Commercial Fishing License Not “Property”

Mark your calendars for February 29, 2008.  That’s the day the US Supreme Court will decide whether to review a petition for certiorari which calls for the overruling of Williamson County Regional Planning Comm’n v. Hamilton Bank, 473 U.S. 172 (1985), the case that brought us the “ripeness” rule in regulatory takings.  A summary of the Williamson County rule is in this post and the comments.

The case is Peters v. Village of Clifton, No. 07-635.  The Seventh Circuit’s opinion is here.  SCOTUSblog calls the case a “petition to watch,” and has posted the cert petition, the opposition, and the supporting amici briefs here.

The Questions Presented by the cert petition are:

1.  Should the Court overrule Williamson County Regional Planning Commission v. Hamilton Bank of Johnson City to the extent it requires property owners
to seek compensation in state courts to ripen a federal takings…

Continue Reading Williamson County Cert Petition and Supporting Briefs