Continue Reading Your 2020 Brigham-Kanner Property Rights Conference Bingo Card
Burying The Lead: No Taking When City’s Water Pipe Replacement Program Alleged To Result In More Danger To Owners’ Properties
Here’s the latest in a case we’ve been following.
In Berry v. City of Chicago, No. 124999 (Sep. 24, 2020), the Illinois Supreme Court avoided the analysis that split the court of appeals, and upheld the dismissal of a very “torty” inverse condemnation claim. The plaintiffs alleged that the City of Chicago’s program to replace old water meters, water mains, and lead pipes had taken their property because it made the service lines “more dangerous” by using copper and galvanized iron, which leads the lead pipes to corrode (the lede is that copper leads lead pipes to corrode). In addition to tort damages, the plaintiffs sought compensation for the taking.
No deal, held the court, and its ruling is pretty straightforward. The court didn’t really see the arguments the same way as the court of appeals, which split on the question of how the “public” is defined for
In Which We Go Over To The Dark Side: Our Guest Appearance On The Pendulum Land Podcast (SPAM, Takings, Star Trek/Wars, and More!)
We were honored to be a guest on an episode of the Pendulum Land Podcast. Here’s the description from the show notes:
Hawaii inverse condemnation lawyer and William and Mary Law School adjunct professor Rob Thomas joins your hosts to discuss recording his classic single “Smooth” with Carlos Santana, whether the COVID moratoriums on evictions constitute a taking, and his favorite flavor of SPAM! (Don’t act like you don’t love SPAM.) This is the first of two episodes with the publisher of the popular eminent domain blog inversecondemnation.com.
We had to bring our “A game” because the hosts were full of rapid-fire questions, wit, and nerd trivia. It was hard to keep up at times. But we did our best (and yes, we did talk about our favorite flavors of SPAM). We also chatted about the coronavirus related takings claims, and an interesting takings case working its way up
Cert Petition: Can A State Agency Decide Whether There’s Been A Taking?
Here’s the latest development in a case out of Maryland that we’ve been following for a while.
This is the one where Maryland Reclamation Association bought land back in 1990 to operate a rubble landfill. But after the purchase, the County changed its regs to prohibit (guess what) … rubble landfills. Mesne litigation ensued in various tribunals over the years. Eventually, MRA filed a regulatory takings claim under the Maryland Constitution’s takings clause in 2013, and the jury awarded a whopping $45 million in just compensation and interest. Hartford County asserted that MRA should have exhausted its administrative remedies by seeking a variance, and the claim was barred by the three-year statute of limitations because the takings claim accrued in 2007 when the Board of Appeals administratively denied MRA’s variance request.
The Maryland Court of Special Appeals concluded that the “final decision” for purposes of both ripeness and statutes
Continue Reading Cert Petition: Can A State Agency Decide Whether There’s Been A Taking?
There’s Still Room: Join Us For The 17th Annual Brigham-Kanner Property Rights Conference (Online, Free!)
Although it is set to launch this Friday, October 2, 2020, there’s still more than enough time to register (and room at the inn) for you to join us for the 17th Annual Brigham-Kanner Property Rights Conference at the William and Mary Law School.
Like everything else this season, the Conference is online (register here), and although we would have preferred to gather in-person of course, the online format has some advantages: the number of attendees isn’t limited by the classroom size (this year’s registrations are at record levels), you don’t need to travel to Williamsburg, and the Conference is free if you don’t want Virginia CLE credit for attending. What a deal.
In our opinion, this is the best legal academy/practicing bar conference on property law. This year, the Conference honors the Brigham-Kanner Prizewinner, Harvard Law School Professor Henry Smith.
Here are the panel topics
Earthquake In Ohio: The Jury Should Decide Lucas And Penn Central Takings After State Shut Down Injection Wells For Causing Earthquakes
What place do you think of when you hear the word “earthquake? Most likely California, we’re betting.
And it’s also very likely that you didn’t think “Ohio.”
Well, that’s probably what everyone involved in the Ohio Supreme Court case State ex rel. AWMS Water Solutions, LLC v. Mertz, No. 2019-0493 (Sep. 23, 2020) thought too. Until AWMS sought salt-water injection well permits from the State of Ohio, and “[t]he next day, a 2.7-magnitude earthquake was recorded in Youngstown, Ohio, about seven miles from AWMS’s Weathersfield Township site and about one mile from an injection well known as “Northstar #1” that was not related to AWMS’s wells.” Slip op. at 3. Earthquakes? In Ohio?
A week later, the State determined that Northstar #1 should be taken out of operation, and the very next day, a 4.0 earthquake “was recorded within one mile of Northstar #1. Slip op. at 3. [That
Friends Without Benefits: CA7 Rejects Takings Claim For Obama Center Because Citizen’s Group Lacks Property Interest In Public Park
We’ve been meaning to write up the U.S. Court of Appeals’ decision in a case we’ve been following, Protect Our Parks, Inc v. Chicago Park District, No. 19-2308 (Aug. 231, 2020), but our Illinois colleague Mike Ryan was quicker on the draw.
Rather than summarize Mike’s write up, we simply suggest you go to his firm’s blog and read “7th Circuit Rules Construction of the Obama Presidential Center Is Not A Taking Under The Fifth Amendment.”
Short story: the citizen’s group plaintiff doesn’t have a property interest in Grant Park, notwithstanding its argument that the public’s status as the beneficiary of the public trust (the real public trust, not, you know, the other things that get labeled “public trust” but really aren’t the thing you think about when you think “public trust”), is enough of a property interest to come under the Fifth Amendment’s protections (or
NY Fed Ct: “When faced with a society-threatening epidemic, state officials are empowered to … infringe federal constitutional rights. They may generally do so at their sole discretion and for so long as is necessary.”
The District Court’s bottom line in Lukes Catering Service, LLC v. Cuomo, No. 20-CV-1086 (Sep. 10, 2020)? The New York governor’s emergency orders aimed at coronavirus “imposing quarantines, mandating workforce reductions, closing schools, requiring face-coverings, and restricting activities of all types,” are not takings of the businesses of event, banquet, and catering services that have been shut down as a result. The specific emergency measure challenged was the order limiting gatherings to no more than 50 people.
The controlling authority? You guessed it, Jacobson v. Massachusetts, 197 U.S. 11 (1905). That’s the case in which the Court defined “real liberty,” and which has been most prominently applied in emergency order cases to reject due process challenges. But if you want the court’s takings analysis, jump to page 24. The court rejected the categorical (Lucas) claim:
Plaintiffs allege a categorical regulatory taking in their complaint. (Complaint, ¶¶
New SCOTUS Amicus: In Physical Invasion Takings, The Duration Of The Occupation Is Less Important Than Interference With The Right to Exclude (John Maynard Keynes Alert!)
Here’s the amicus brief we filed last week in a case we’ve been following closely, Cedar Point Nursery v. Hassid, No. 10-104 (cert. petition filed July 29, 2020).
That’s the case in which a 2-1 Ninth Circuit panel affirmed the dismissal of a complaint for failure to plausibly state a takings claim under Twombly/Iqbal. At issue was a regulation adopted by California’s Agricultural Labor Relations Board which requires agricultural employees to open their land to labor union organizers. The regulation is framed as protecting the rights of ag employees to “access by union organizers to the premises of an agricultural employer for the purpose of meeting and talking with employees and soliciting their support.”
The panel majority viewed the complaint as alleging a Loretto physical invasion taking, and held the plaintiffs did not plausibly state a claim because they could not allege the invasion
This Thursday, Sept 10: “Governmental Emergency Powers and the Constitutional Implications Arising from Pandemic Orders” (Free to ABA Members)
Please join us and a panel of expert speakers including our friend and colleague Tony Della Pelle (see the flyer for the complete list), this Thursday, September 10, 2020 at 1pm Eastern Time for the ABA-produced webinar “Governmental Emergency Powers and the Constitutional Implications Arising from Pandemic Orders.”
Free to ABA members, a modest cost for those who are not. Register here.
Here’s the plan:
In the wake of the unprecedented global pandemic, every level of government has taken steps to address the public health crisis. These steps have manifested in orders which impact businesses and individuals alike including quarantine orders, travel restrictions, occupancy limitations, and restrictions on movement. This is the not the first pandemic, nor the first national crisis, faced by the United States. There have been several lawsuits filed challenging the constitutionality of the COVID-19 orders, including challenges based on the right to