Regulatory takings

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Check this out. A short online comment at the Yale Journal on Regulation by Judge Thomas Griffith, “A New Test Or Merely A New Name For Some Regulatory Takings?“

The comment addresses the notion that the Supreme Court in Cedar Point shuffled up takings doctrine:

Much of the commentary about the Supreme Court’s recent decision in Cedar Point Nursery v. Hassid, 141 S. Ct. 2063 (2021), has focused on its implications for labor law. Yet some of the Chief Justice’s language in the majority opinion suggests a substantial reworking of the Court’s approach to “regulatory takings”—an area that the Court has acknowledged to be “a problem of considerable difficulty.” A close read of the opinion, however, suggests that even though Court may have reshuffled the categories it has used in the past to analyze takings claims, the law remains largely unchanged, if not slightly more obscure.…

Continue Reading New Comment: Cedar Point – “A New Test Or Merely A New Name For Some Regulatory Takings?”

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The other shoe — perhaps the most predictable shoe drop in legal history — dropped yesterday, and the Supreme Court vacated the stay on appeal in one of the cases challenging the CDC’s renewed eviction moratorium, meaning that the district court’s judgment vacating the moratorium can go into effect. Alabama Ass’n of Realtors v. Dep’t of Health and Human Svcs, No. 21A23 (Aug. 26, 2021) (per curiam).

The six-Justice majority, in an unsigned opinion, held that “”[i]t strains credulity to believe that this statute grants the CDC the sweeping authority that it asserts.” Slip op. at 1-2. Now remember, this is one of the cases challenging the CDC moratorium on non-takings grounds, primarily asserting that the CDC’s authorizing statute does not authorize this sweeping an action (or if it does, the statute is unconstitutional). For a complete analysis of the opinion, see lawprof Ilya Somin’s hot take: “…

Continue Reading SCOTUS Strikes Down CDC Eviction Moratorium And Leaves Tantalizing Clues About Takings

Check out the U.S. Court of Appeals’ opinion in Andrews v. Mentor, No. 20-4030 (Aug. 25, 2021).

Property owners sought rezoning of their land from R-4 to “Village Green – RVG,” a higher density zone, so that the owners could build single-family homes. Under R-4, the maximum number of homes was 13 and had to leave 9 acres open. The city’s comprehensive plan expresses a preference for Village Green zoning.

But the city denied the application,despite having approved 9 other applications since 2004, and the owners’ application being “materially identical to a plan the City approved for rezoning and development in 2017.” Slip op. at 3.

So off to federal court they went, filing (Lucas and Penn Central) takings, due process, and class-of-one equal protection claims. [Disclosure: the property owners are represented by my law firm colleague Dave Breemer; we didn’t have anything to do with this…

Continue Reading CA6: There’s A Difference Between Due Process “Property” And Takings Clause “Property”

On one hand, the U.S. Court of Appeals’ opinion in Buending v. Town of Redington Beach, No. 20-11354 (Aug. 20, 2021) is not a big deal, at least in terms of the issue in the case: did the Town take the plaintiffs’ private beach property when it adopted an ordinance allowing the public to use it? Maybe it did, maybe it didn’t. The opinion simply vacates the district court’s grant of summary judgment to the property owners because there are disputed issues of fact on the Town’s affirmative defense of customary use. The district court concluded the Town could not raise the customary use defense.

The Eleventh Circuit, however, held that the Town was not precluded from raising the defense that the property the plaintiffs claimed was exclusively private was also subject to the public’s use under longstanding custom, and that the Town’s opposition to the plaintiff’s motion for …

Continue Reading CA11: No Summary Judgment For You On Takings Claim When Town Provided Some Evidence Of Public Customary Use Of Beach

All the topics you want to know about, presented by top-notch faculty from across the nation. Sessions include:

  • Keynote: Do Animals Have Property Rights?
  • Did the Supreme Court Signal a New Direction in Property Rights in Cedar Point Nursery?
  • Maximizing Relocation Benefits: Understanding the Law and Regulations to Ensure Fairness
  • Challenging Public Use: Lessons From a 67-Day Trial
  • COVID Takings
  • Property Rights as Civil Rights
  • Eminent Domain National Update
  • Federal Court and the Daubert Challenge: How to Prepare
  • How to Position Your Client for the Fallout When Projects Don’t Get Built
  • Rural Broadband and the Emerging Constitutional Challenges
  • Are Precondemnation Entry Statutes Still Valid After Cedar Point Nursery?
  • How Condemnor and Property Owners’ Counsel Prepare the Battlefield
  • How Will the Trillion Dollar Infrastructure Bill Impact Your Practice?
  • Ethics
  • …and more, including a full slate of networking and social events!

We’ve sold out the last few years, so don’t Continue Reading Registration Open Now: ALI-CLE Eminent Domain & Land Valuation Litigation Conference, Jan 26-29, 2022, Scottsdale

Screenshot 2021-08-08 at 23-55-14 The Dawn of a Judicial Takings Doctrine em Stop the Beach Renourishment Inc v Florida De[...]

Here’s what we’re reading today, a recently-published law review article by Brendan Mackesey, The Dawn of a Judicial Takings Doctrine: Stop the Beach Renourishment, Inc. v. Florida Department of Environmental Protection, 75 U. Miami L. Rev. 798 (2021). 

Here’s the Abstract:

In Stop the Beach Renourishment v. Florida Department of Environmental Protection, 130 S. Ct. 2592 (2010), the U.S. Supreme Court granted certiorari to determine whether the Florida Supreme Court had violated a group of littoral property owners’ Fifth Amendment rights—or committed a “judicial taking”—by upholding the state of Florida’s Beach and Shore Preservation Act. Under the Act, the State is entitled to ownership of previously submerged land it restores as beach; this is true even though the normal private/state property line, the mean-high water line, is moved seaward, and the affected littoral owner(s) lose their right to have their property about the water. Although a four-justice plurality…

Continue Reading New L Rev Article: “The Dawn of a Judicial Takings Doctrine: Stop the Beach Renourishment v. Florida Department of Environmental Protection,” 75 U. Miami L. Rev. 798 (2021)

Screenshot 2021-08-11 at 14-56-53 Constitutional Litigator Property Rights (two openings) Pacific Legal Foundation

You’ve got big dreams, you want fame…

If so, here’s your chance: two (2!) Takings Maven Dream Jobs® are now available.

Pacific Legal Foundation requesting applications for positions as a Property Rights Constitutional Litigator. Job description includes “You will find and win the next important Supreme Court property rights case.”

Oh, have we got your attention now?

You: An entrepreneurial freedom fighter with a passion for, and significant experience in, property rights litigation. You find and win cutting-edge property rights cases across the country. You are a national spokesperson for property rights—you speak at conferences, engage the media, and publish scholarship on property rights. You are a leader who will elevate PLF’s junior attorneys to be the best property rights litigators in the nation. You have demonstrated a dedication to public interest law and property rights throughout your career.

…

You will be a leader in PLF’s…

Continue Reading Takings Maven Dream Job® (x2): Property Rights Constitutional Litigator at Pacific Legal Foundation

The hits keep coming. There have already been complaints alleging takings against the feds for the CDC eviction moratorium, and against the State of California for its moratorium. 

Now this, a complaint against the City of Angels alleging that its version of the moratorium works a taking, either a per se physical invasion taking, a regulatory taking, and a taking under California law.  

Not much more to say about it, unless you want to check out the LA Times’ report on the filing, “Landlord sues L.A. for $100 million, saying anti-eviction law caused ‘astronomical’ losses.”

Barista’s note: sorry about the potty-mouth movie clip at the top, but we’ve always thought this character’s sardonic comment about an ongoing situation (the 1968 Tet Offensive) really encapsulated the burden-spreading vibe of Armstrong v. United States, 364 U.S. 40, 49 (1960) (“The purpose of the Takings Clause is to “bar …

Continue Reading New Complaint: LA’s Eviction Moratorium Is A Taking

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Here’s what we’re reading today. And this is one of those articles that you should not miss.

Our W&M colleague Katherine Mims Crocker has published “Reconsidering Section 1983’s Nonabrogation of Sovereign Immunity,” 73 Fla. L. Rev. 523 (2021).

Why is this a “must read” you ask? Because Professor Crocker concludes, “[t]he preceding Parts have revealed substantial arguments for reading Section 1983 to abrogate sovereign immunity, which would make state governments susceptible to damages actions for violating constitutional rights.”

There’s not a mention of our friend the Takings Clause in the article (it focuses mostly on excessive force cases), but it doesn’t take much to see how the analysis Prof Crocker sets out can include section 1983 takings claims.

Here’s the Abstract:

Motivated by civil unrest and the police conduct that prompted it, Americans have embarked on a major reexamination of how constitutional enforcement works. One important component is…

Continue Reading New Must-Read Article: Katherine M. Crocker, “Reconsidering Section 1983’s Nonabrogation of Sovereign Immunity,” 73 Fla. L. Rev. 523 (2021)

The U.S. Court of Appeals for the Fourth Circuit’s opinion in Zito v. N.C. Coastal Resources Comm’n, No. 20-1408 (Aug. 9, 2021) is just the latest in a growing list of decisions about an issue we’ve been following (see here, here, here, here, and here for example), including the District Court’s decision in this very case.

That issue is whether a property owner can sue a state for just compensation for a taking in federal court.

You know how that works. Knick held that local governments and officials can be sued in federal court for violating the federal constitution and for civil rights violations. Check. But it didn’t expressly say anything about whether there’s something different about a state or a state official (in their official capacity) that prohibits the same thing. After all, the Eleventh Amendment has been interpreted, it prohibits federal court…

Continue Reading CA4 Tells Landowner To Beat It (From Federal Court): 11th Amendment “Sovereign Immunity” Bars Suing State For Fifth Amendment Compensation In Federal Court