Regulatory takings

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In what the court termed a “matter of first impression,” slip op. at 5, the U.S. Court of Appeals for the Sixth Circuit held in Beaver Street Investments, LLC v. Summit County, No. 22-3600 (Apr. 21, 2023), that the statute of limitations in a § 1983 takings claim for a local government’s alleged home equity theft (for more on that issue, see here) began to run when the period when a homeowner can redeem a foreclosure ended, and not when (as the government argued) the government made the decision to acquire the home (the final adjudication of foreclosure).

As the majority noted:

The dispositive issue in this appeal is what constituted the “act of taking.” See id. In other words, the Court must determine when, as a matter of law, the County took BSI’s property without paying for it. See id. The County argues that…

Continue Reading CA6: Taking Occurs, And Statute Of Limitations Begins To Run, When Foreclosure Redemption Period Expires And Not Before

Screenshot 2023-04-20 at 19-13-52 Condemnation 101 2023 Preparing and Presenting an Eminent Domain Case ALI CLE

Missed out on the 2023 ALI-CLE Eminent Domain and Land Valuation Litigation Conference back in February in Austin, and the legendary “Condemnation 101” track?

Well, here’s your chance to get the knowledge. On May 18, 2023, ALI-CLE is going live with a rebroadcast of that program, including real-time Q & A with the program Planning Co-Chairs.

As we’ve noted before, the Condemnation 101 program is a great “basic training” program for lawyers new to the eminent domain and takings practice. But it is also a fantastic refresher course for those experienced dirt lawyers looking to brush up on the fundamentals.

CLE credits are available, of course. And unlike the in-person program back in February, there’s no danger of ice storm delays!

More about the program here, including registration information, fees, the agenda, and the faculty. And, just because you are a reader of this…

Continue Reading Condemnation 101 (2023), Redux

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Good crowd.

Here are the cases and other materials we spoke about on Friday at the 22d Annual Texas Eminent Domain Conference, in Austin. A big thank you to the Planning Chairs and to our friends at CLE International for the speaking invite.

The other cases discussed are in your materials!

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The nearby Caldwell County Courthouse. A classic.

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Why did no one tell me that Jabba’s Palace is in Austin?Continue Reading Links And Materials From The 22d Annual Texas Eminent Domain Conference

Screenshot 2023-04-11 at 20-42-01 Deep Dive and Amicus Review Tyler v. Hennepin County

Here at our law firm, we’re getting ready as one of our colleagues prepares to argue the Supreme Court’s next takings case in a couple of weeks. Yes, this is what we’ve alternatively called the “home equity theft” or the “keep the change” case where government seizes property to satisfy the owner’s tax debt, and after liquidation of the property and satisfaction of the debt, keeps any excess equity instead of returning the balance to the (former) homeowner.

The case is Tyler v. Hennepin County, No. 22-166, and it’s set for argument on the last day of this term’s argument calendar, Wednesday, April 26, 2023.

In the meantime you should check out the parties’ merits briefs and the beaucoup amici briefs (mostly filed in support of the property owner) on the Court’s docket.

But you should also see what others have to say, and how they are…

Continue Reading Tyler v. Hennepin County Previews: Get Yourself Prepared For The Next SCOTUS Takings Arguments

Alex Boone note

Check this out, a new student-authored note from William and Mary third-year law student Alex Boone, “The Tide’s Coming In: A New Case for Beachfront Property Rights in South Carolina,” 47 Wm. & Mary Envtl. L. & Pol’y Rev. 383 (2023).

Here’s the Abstract:

Part I of this Note explores the scientific data as it relates to the impending consequences of climate change on South Carolina’s coast and will introduce the disastrous scenarios that are predicted to arise as a result of rising sea levels and the accelerating strength and severity of extreme weather events. Part II compares the effectiveness of various coastal resiliency tools and highlights the regulatory framework that prohibits their use by beachfront property owners. Part III explores the topic of regulatory takings and their indirect prophylactic nature of protecting citizens from regulatory overreach and offers a case for a South Carolina court to find…

Continue Reading New Article: Alex Boone, “The Tide’s Coming In: A New Case for Beachfront Property Rights in South Carolina” (Wm & Mary Envt’ L & Pol’y Rev)

D Callies Retirement Celebration Invite 4-27-2023.f

Come join us on Thursday, April 27, 2023, from 5-7pm, downtown Honolulu, to celebrate the retirement of Professor David L. Callies from the University of Hawaii Law School.

Join U.H. Law School Dean Camille Nelson, Professor Callies’ colleagues, his students (present and former), the Hawaii legal community, and family and friends as we honor 43 years of scholarship, teaching, service, and practice.

Professor Callies is a prolific scholar and author, and has mentored generations of lawyers. Known especially for his work in property, land use, takings, administrative law, and state and local government law, he has also been presented with numerous awards including William and Mary’s Brigham-Kanner Property Rights Prize, and the Owner’s Counsel of America’s Crystal Eagle. 

Invitation and how to RSVP (or click below). Space is limited, so please let us know you are attending as soon as you can.

Details:

Thursday, …

Continue Reading April 27, 2023, 5-7pm, Honolulu: Join Us To Celebrate The Work And Career Of Professor David Callies

There’s a lot going on in the U.S. Court of Appeals for the Fifth Circuit’s opinion in Tejas Motel, L.L.C. v. City of Mesquite, No. 22-10321 (Mar. 22, 2023), but that’s mostly because it’s a procedural decision resolving a question of whether a Texas court’s federal takings judgment was res judicata, and therefore prohibited a federal takings complaint filed later in federal court .

As you might surmise from the above summary, the Fifth Circuit indeed concluded that the second (federal) takings lawsuit was precluded by the judgment in the first (Texas), because the Texas court issued a final judgment on the merits of Tejas Motel’s federal takings claim.

Short story: the city doesn’t really care for operations like the Tejas Motel. Back in 1997, the city amended its zoning code to effectively outlaw these types of motels, rendering Tejas a nonconforming use. Later, after “local residents…

Continue Reading Instead Of Being The First Case To Take Advantage Of Knick, This One Was The Last Victim Of Williamson County

Screenshot 2023-04-04 at 09-45-09 Information - Texas Eminent Domain Conference

If you are in the Austin area (or anywhere in Texas for that matter), please consider joining us April 13 and 14, 2023 for the 22d Annual Texas Eminent Domain Conference.

Two days of great programming and talking shop, plus a chance to connect and re-connect with friends and colleagues. And, of course, all the things Austin has to offer. Yes were were there not that long ago, but come on…Austin is a great conference venue, right?

We’re speaking about “National Eminent Domain and Takings Trends,” and the balance of the program is pretty darn good also (see here or below for the full agenda).

Registration ongoing, but space is filling up fast so don’t miss out.

See you there.

Agenda & Program, 22d Annual Texas Eminent Domain Conference (CLE Int’l), Austin, Apr. 13-14, 2023)

Continue Reading Join Us At The 22d Annual Texas Eminent Domain Conference, April 13-14, Austin

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Check out the U.S. Court of Appeals for the Eighth Circuit’s opinion in Pharmaceutical Research and Manufacturers of America v. Williams, No. 21-1731 (Apr. 3, 2023), where the court reinstated a complaint dismissed by the district court for lack of standing.

The Eighth Circuit held that even though the “usual” remedy for a regulatory taking is just compensation, where a state’s just compensation remedy would be inadequate, the property owner may seek equitable relief such as a declaratory judgment or an injunction. [Disclosure: our law firm filed an amicus brief in support of the plaintiffs, arguing that equitable is available in takings claims.] 

The complaint challenged Minnesota’s Insulin Affordability Act, which requires insulin manufacturers to provide insulin at no charge to eligible Minnesotans in 90-day increments for up to one year. The manufacturers argued that the Act works a taking, and sought to enjoin its enforcement. Note that…

Continue Reading CA8: Where A State’s Just Comp Remedy Is Inadequate, You Can Sue For Injunctive Relief For A Taking

As most of you probably already know, there’s a demon lurking out there in takings claims. Not of the Levon Helm-narrated The Right Stuff variety, but maybe just as deadly in litigation.

That’s right, the too-early-or-too-late thing (or in some cases, the too-early-and-too-late argument). Getting caught between arguments that a takings claim isn’t ripe, and arguments that it is too late (statutes of limitation).

The U.S. Court of Appeals for the Fourth Circuit was dealing with the latter (a statute of limitations) in Epcon Homestead, LLC v. Town of Chapel Hill, No. 21-1713 (Mar. 20, 2023), but there are lessons in the case for the other side of the issue, ripeness.

The facts are pretty straightforward. If you are going to build at least five single-family units, the town’s zoning ordinance contains a requirement of “inclusionary zoning” (aka affordable housing; aka below-market units. Or if…

Continue Reading CA4: Exactions Takings Claim Accrues When Owner Knows Of The Demand, Not When It Paid