Regulatory takings

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How about buying what you thought was a retirement home, only to be told that if you want the local government’s ok change the form of ownership of the property you’ve got to offer any tenant a lifetime lease? Here’s the cert petition, filed today in a case we’ve been following for a while, first as an outside observer, now as a (minor) participant.

This one seeks review of the Ninth Circuit’s ruling in Pakel v. City and County of San Francisco, in which a 2-1 panel affirmed the dismissal of a regulatory takings claim which the District Court threw out for not being ripe under Williamson County‘s “state procedures” requirement, and because the exaction imposed was accomplished by a generally-applicable legislative requirement and not via an administrative action. The Ninth Circuit rejected en banc review with beaucoup judges dissentaling.

Here are the Questions Presented:…

Continue Reading New Cert Petition: “Final Decision” Takings Ripeness, Exhaustion; Unconstitutional Conditions & Legislative Exactions

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We were hoping for better news in a case we’ve been following in its various forms for what seems like forever. But today, the U.S. Supreme Court in this order declined to issue a writ of certiorari to review the Ninth Circuit’s decision in Bridge Aina Lea, LLC v. Hawaii Land Use Comm’n, No. 20-54, a case in which a federal court jury concluded the property owner suffered both a Lucas and Penn Central taking, but the Ninth Circuit reversed, concluding that no reasonable jury could have found a taking.

We’ve always been told that bright lines are not appropriate in takings. That there are myriad ways in which government can affect property interests and property rights. That the courts should defer to the government’s exercise of regulatory power. That per se rules such as Lucas and Loretto are not generally applicable. Instead, we’re told, go prove a taking…

Continue Reading Thomas, J., Dissenting From Denial Of Cert In Penn Central And Lucas Takings Case: “If there is no such thing as a regulatory taking, we should say so. And if there is, we should make clear when one occurs.”

We all know that Knick v. Township of Scott, 139 S. Ct. 2162 (2019) only knocked out the “state action” prong of the two-part Williamson County takings ripeness requirement. You may not need to pursue and lose compensation via state procedures to ripen a takings claims, but still active is the “final decision” requirement under which the alleged taker must have made a decision applying the regulation to the property owner, so that a reviewing court can determine what, if any, uses the owner may make of the property under the regulation. 

Here’s the latest on that one, from the U.S. Court of Appeals for the Fifth Circuit. In DM Arbor Court, Ltd. v. City of Houston, No. 20-20194 (Feb. 12, 2021), the court was faced with a choice between final decision ripeness on one hand (and the notion that an unripe case can become ripe down the…

Continue Reading CA5: Final Decision Takings Ripeness Is All About Timing (So Yes, A Filed-Too-Early Case Can Become Ripe On Appeal)

The situation in Hamen v. Hamlin County, No. 28671 (Feb. 10, 2021), a recent opinion by the South Dakota Supreme Court seems pretty bad, but a road we’ve gone down before. Believing that a suspect was inside, the local SWAT team (along with the county Special Response Team — drone and two armored vehicles included) damaged the mobile home belonging to the suspect’s parents:

To create the communication portholes for the Hamens’ trailer, an armored vehicle pulled away the front stairs and deck, which were not attached to the mobile home or secured in the ground, and pushed in the front door with a ram. The second armored vehicle opened three portholes on the opposite side of the mobile home by breaking through windows and a sliding patio door, causing significant damage to the walls and the septic system.

Well, it turns out the suspect wasn’t there. “Shortly after…

Continue Reading The “Or Damaged” Part Of South Dakota’s Constitution Doesn’t Really Add Much: Damages From Police Actions Are Neither Takings, Nor Damagings

Regulatory takings challenges are no doubt tough. Especially Penn Central regulatory takings challenges. Facial Penn Central regulatory takings claims, moreso.

The U.S. Court of Appeals’ opinion in Clayland Farm Ents, LLC v. Talbot County, No. 19-2102 (Feb. 9, 2021) – the latest in this case we’ve been following – proves the point. The court affirmed the district court’s summary judgment on the property owner’s takings, due process, and civil conspiracy claims.

The property owner brought its claims in Maryland state court claiming, among other things, that the County’s two indefinite moratoria on development and sewer availability — which prohibited owners from seeking or obtaining County subdivision — was a facial taking:

Clayland’s appellate briefing asserts that Bill Nos. 1214, 1257, and 1229 constitute a facial regulatory taking under both federal and state law. Bill No. 1214 temporarily reduced the permissible density of VC-zoned properties from four units per acre…

Continue Reading CA4: No Facial Penn Central Taking By Development Moratoria

UrbanLawyer.v.50.1 articles

The latest issue of The Urban Lawyer, the scholarly law journal of the ABA’s Section of State and Local Government Law (our Section) has been published. Takings mavens are going to like this one:

  • William W. Wade, Love Terminal: A Tale of Two Theories – our friend and colleague Bill’s final work.
  • Kenneth Stahl, Home Rule & State Preemption of Local Land Use Control – land users and muni lawyers: read this.
  • Eric Lynch, Fifth Amendment on Fifth Avenue: New York City Taxicab Medallions App-Dispatch Services & Just Compensation in Regulatory Takings – a former student of ours and now colleague, on sharing economy takings; this article began life as his final paper for our class.
  • Robert Freilich, et al., The California Coastal Commission & Beach Access: The Necessity for Overriding City & County Ordinances Banning the Use of Short-Term Vacation Rentals in the Coastal Zone –

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Continue Reading Latest Issue Of The Urban Lawyer: Two Takings Theories, Home Rule, Rideshare Takings, And Vacation Rentals In The Coastal Zone

Back to blogging…

Here’s the latest cert petition on an issue we’ve been following for a while (see here, here, here and here, for example). Is invalidation of an already-issued patent via inter partes review a taking?

In this case, the Federal Circuit held no taking, consistent with its earlier opinion in Celgene. The takings issue was teed up (but not decided) by the Supreme Court in Oil States, which noted that patents may be “property for purposes of the Due Process Clause or the Takings Clause.” The Court denied at least one earlier cert petition on the issue, and now it’s back.

Here’s how the petition frames it:

Is a patent a property right or is it something less? And if a patent holder cannot depend on the United States Patent and Trademark Office “(USPTO”) to competently evaluate a patent application, should an…

Continue Reading New Cert Petition: Is Invalidation Of A Patent Via Inter Partes Review A Taking? “Is a patent a property right or is it something less?”

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If we were to ask you for your best guess whether a state’s ban of “bump-fire” stocks (a topic we’ve covered before) effects a regulatory taking, requiring compensation, what might you predict as the result knowing nothing else about the case?

As we noted here, it doesn’t take a rocket scientist (or even a legal scholar) to figure out that a court is going to be hard-pressed to order compensation, especially where the ban isn’t an outright confiscation requiring the owner to turn over the item to the government for the government’s use. This is not so much a legal conclusion, but one based on the fact that few judges want to be highlighted in tomorrow’s paper as having “approved” of a device that can turn a semi-auto rifle into a dreaded sturmgewehr. Especially in a state like Florida where judges are elected.

A Florida federal…

Continue Reading Florida Court: No Regulatory Takings Claim For Personal Property, Unless Govt Actually Seizes It

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Yes, it starts tomorrow, Thursday, January 28, 2021, but we’re “remote” this year, so it is not too late to register to join us for the 38th Annual ALI-CLE Eminent Domain & Land Valuation Litigation Conference. This is the “big one” where the nation’s best practitioners, scholars, jurists, and other industry professionals gather to talk shop about the subjects we know and love.

Details here (ALI-CLE’s page with faculty, agenda, and times), or here (a recent episode of Clint Schumacher’s Eminent Domain Podcast, where we preview the Conference). Here’s your chance to be a part of what is the best conference on these topics.

We have set it up to take advantage of the remote format, and tuition has been reduced (thank you to ALI-CLE for recognizing this, and for our sponsors for being so generous). We’re seeing a lot of first-time registrations, and this is a great opportunity…

Continue Reading Still Time To Join Us: ALI-CLE Eminent Domain & Land Valuation Litigation Conference (Online!) This Thursday & Friday. Tuition Deals! #EminentDomain2021

No surprises in the latest in a case we’ve been following.

After the Hawaii Supreme Court’s decision concluding that the statute of limitations for Hawaii-law takings claims is six years (not the shorter limitations period argued by the State), the Ninth Circuit, as expected, today concluded in this short (3-page) unpublished memorandum opinion that the plaintiff’s Hawaii-law takings claim was not raised too late, and also that the corresponding federal takings claim is also timely.

The court concluded that “there is no federal statute of limitations for federal takings claims against a state,” but that the “analogous cause of action would be an inverse condemnation action under state law.” That, as noted above, is six years.

In short, both the state and federal law takings claims were timely filed. The district court’s judgment is reversed, case remanded for the merits.

DW Aina Lea Dev., LLC v. State of Hawaii Land …

Continue Reading CA9: Property Owner’s Hawaii-And-Federal-Law Takings Claims Are Timely