Regulatory takings

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Here’s the latest in a case and an issue we’ve been following.

Recall that the U.S. District Court for the Eastern District of Texas concluded that the City of McKinney, Texas was liable for the taking of Vicki Baker’s home, after city police officers destroyed a large part of it while apprehending a suspect who had taken refuge therein. The court awarded just compensation and the city appealed.

Now, the other shoe drops: in Baker v. City of McKinney, No. 22-40644 (Oct. 11, 2023), the U.S. Court of Appeals for the Fifth Circuit reversed, concluding that because the invasion was necessary and a justified use of the city’s police powers, it does not owe compensation.

We’ve been down this path before, so we won’t go over it in detail (recall that the Tenth Circuit reached the same conclusion and the subsequent cert petition was denied by the Supreme…

Continue Reading Fifth Circuit Kicks Down The SWAT Takings Door (And Boots The Issue Upstairs)

A short one from the U.S. Court of Appeals for the Ninth Circuit.

In Jevon v. Inslee, No. 22-35050 (Aug. 8, 2023), the panel summarily concluded that a takings challenge to the Washington governor’s eviction moratorium — imposed in response to the Co-19 emergency — is moot.

The plaintiffs limited the relief sought to a declaratory judgment (understandable, because as a federal court lawsuit, they likely wanted to avoid the usual Eleventh Amendment fight if suing a state in federal court for retrospective monetary relief), and the court thus concluded that a declaratory judgment today, now that the moratorium has expired, would not do much of anything:

[A] declaratory judgment merely adjudicating past violations of federal law — as opposed to continuing or future violations of federal law — is not an appropriate exercise of federal jurisdiction.” Thus, this case is moot because the challenged activity — the eviction…

Continue Reading No “Brooding Presence” – Takings Challenge To Co-19 Eviction Moratorium Seeking Declaratory Relief Is Moot

The Sixth Circuit these days. Lots of property and takings-related stuff being decided in that court. See here, here, here, here, here, and here for some examples.

The latest is O’Connor v. Eubanks, No. 22-1780 (Oct. 6, 2023), in which an unsigned panel opinion (with concurrence of Judge Thapar in the result, but not in the reasoning), held that state officials sued in their individual capacities have qualified immunity from takings claims which seek just compensation. But are not similarly immune from procedural due process claims.

Short story: O’Connor was the payee on two checks that were delivered to his property. Apparently he got neither, so the payors turned the checks over to the State of Michigan, which treated them as unclaimed property.

Michigan’s unclaimed property statute moves fast. It requires that the State, after first publishing notice, to sell or liquidate the property…

Continue Reading Backing Into Williamson County Again – CA6: We Already Said That State Officials Sued Individually For Compensation Have Qualified Immunity

Here’s what we’re reading about the Supreme Court’s property rights docket — some good, some disappointing — this day.

  • Niina Farah, “Supreme Court flooding case could ripple across the energy sector“ (E & E News / Energywire) – About the Devillier case (which we summarized here), in which we were quoted: “The Supreme Court decision to hear the Devillier case comes after a concerted effort in recent years to convince the court to address procedural maneuvers that have made it challenging for property owners to bring their claims to court, said Robert Thomas, director of property rights litigation at the Pacific Legal Foundation. The nonprofit is among the groups that has asked the court to address takings cases and has lent its support for the property owners in Devillier in a ‘friend of the court‘ brief. ‘There’s a lot of gamesmanship going on

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Continue Reading Supreme Court Property Rights Round-Up

We’re not going to ask you to read the entire 24 pages of the Washington Supreme Court’s 5-4 opinion in Gonzales v. Inslee, No. 1000992-5 (Sep. 28, 2023), in which the court seriatim rejects every challenge to the Governor’s Co-19 emergency eviction moratorium for tenants, which allowed tenants who did not pay rent to remain in occupation for the up to 15 months the moratorium was in place.

Instead, we’re going to focus only on the takings challenge under the Washington Constitution. The plaintiffs asserted a physical takings claim, based on their right to exclude nonpaying tenants. Rejecting the argument (as several other courts have done), the Washington court concluded that the moratorium on evictions was merely regulation of the “voluntary relationship” between an owner and tenant.

Hang on, you say, what do you mean “voluntary relationship?” If I am an owner, yes, I voluntarily handed over the keys…

Continue Reading PruneYard Revisited: Washington SCT Says No Physical Occupation Taking In State’s Eviction Ban – You Invited Tenants In, So Forcing Owners To House Them For Free Is Merely Regulating That Voluntary Relationship

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“I’ll take ‘Words I Like to See’ for $800, Alex.“

In this Order, the U.S. Supreme Court agreed to hear two important property rights cases (are there any other kind?). Both are cases we’ve been following — and indeed are now playing a part in.

The first is detailed in this post.

In the second, Sheetz v. El Dorado County, the Court is finally getting to the long-unresolved question of whether an exaction or permit condition is exempt from the usual requirements of “logical nexus” and “rough proportionality” simply because the condition is imposed uniformly by legislation, and not ad hoc via an administrative or other permit decision.

We commented on the Sheetz case in this post (“Whether $23K Traffic Fee Is Proportional To One Single-Family Home Is Beyond The Ken Of Judges“) and won’t repeat the facts or comments here.

But here’s…

Continue Reading Cert Grant #2 – SCOTUS (Finally!) To Resolve Whether Legislative Exactions Are Subject To Nollan-Dolan-Koontz Nexus And Rough Proportionality

Before you get too excited by the U.S. Court of Appeals for the Sixth Circuit’s opinion in Catholic Healthcare Int’l, Inc. v. Genoa Twp., No. 22-2139 (Sep. 11, 2023), a spoiler up front: this may be a good ripeness decision, but this isn’t a takings case.

But you takings mavens may still want to take a quick look over the opinion for how the court deals with a ripeness argument in a case where the plaintiffs assert the Township violated their rights by denying (twice) its requests for a land use special permit.

The story is about a walking path created by Catholic Healthcare that contains fourteen “Stations of the Cross” “depicting the “story of Christ’s last day.” Slip op. at 1. The Township insisted that Catholic Healthcare obtain a special use permit, because the Township believed that the trail use is the equivalent of a church.

So…

Continue Reading CA6: “The distric court’s ripeness determination, in turn, was plainly mistaken”

IRWA 6-2023 summary jpg

Thanks to our co-authors for the latest issue of this recurring update.

The International Right of Way Association’s Real Estate Law Committee produces twice-a-year reports “which contain summaries of eminent domain decisions and legislation within the United States.” (This is the “international” right of way association, so that last qualifier is important.)

And what is really nice is that they make the report available.

The laboring oars on this are really Brad Kuhn and Jullian Friess Leivas (both from the Nossaman firm), but they were kind enough to include us. Brad and Jillian wrote up more at the California Eminent Domain Report:

We recently had the pleasure of collaborating with Robert Thomas and Ajay Gajaria once again for the International Right of Way Association’s (IRWA) biannual report covering numerous eminent domain cases at local, state and federal levels from January through the end of June 2023. This

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Continue Reading Just Published – IRWA’s “Summary of Major Eminent Domain Cases & Legislation: Jan 1, 2023 – June 30, 2023”

Green_Eggs_and_Ham
with apologies to Green Eggs and Ham

Our friend and colleague Thor Hearne (True North Law/Federal Takings blog) sent us this and when we asked, kindly consented to us sharing it with you.

Thor writes: “I was trying to explain to my granddaughters, ages six, three and four months what I do and the Trails Act cases where I represent property owners.  So, I wrote a Dr. Seuss summary of the Fifth Amendment and Trails Act takings.”

Check this out:

Dr. Seuss Explains Trail Act Takings

In the land where you and I reside,
Private property’s our joy and pride.
Everyone has a piece, maybe big, maybe small,
A place to hang your hat, a spot for a ball.

When government says, “Hey, we need your space!”
They must pay you, put a smile on your face.
Whether it’s a farm, or a tree, or a…

Continue Reading Green Backs And Land: Dr. Seuss (Thor Hearne) Explains Trails Act Takings