Regulatory takings

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Here’s the amicus brief filed yesterday in a Virginia Supreme Court case we’ve been following.

This is a case at the intersection of property and takings law, and environmental protection. Several Nansemond River oystermen own a lease from the state for the riverbed, which among other things, allows them to harvest some of the oysters that Virginia is so well known for. But they were forced to bring an inverse condemnation claim in state court, asserting that the City’s dumping of wastewater in the river — and prohibiting the harvesting of oysters during those times — was a taking under the Virginia Constitution’s taking or damaging clause (article I, § 11).

The trial court sustained the City’s demurrer, accepting the City’s argument that it has the right to pollute the river, based in part on the U.S. Supreme Court’s decision in Darling v. City of Newport News, 249 …

Continue Reading Amicus Brief In Virginia Oyster Takings Case: City’s Purposeful Pollution Of River Is A Taking Under The Virginia Constitution

Please plan on joining us on Wednesday, July 22, 2020, at 1pm ET (10am PT) for a long-form program on “Emergency and Police Power: Property Claims in Times of Crisis.”

Our speakers are Professors Craig Konnoth (Colorado) and John Nolon (Pace), and one of the lawyers on the forefront of the nationwide legal challenges, Harmeet Dhillon (San Francisco). I’ll be moderating, along with Professor Sarah Adams-Schoen (Oregon).

Here’s the program description:

On the eve of the centennial of Pennsylvania Coal Co. v. Mahon (US 1922), this panel will revisit the question: How far can the police power be stretched to protect the public against dangers? The panel will evaluate the scope of state and local authority to respond to emergencies and the implications for private property rights—asking, how far is too far? What is the scope of implied limitations on private property rights in times of crisis? When…

Continue Reading July 22, 2020: “Emergency and Police Power: Property Claims in Times of Crisis” (ABA Webinar)

As we noted here, property owners sued the New York governor asserting that one of his emergency measures to respond to the coronavirus crisis (a suspension of eviction proceedings) is a taking.

Yesterday, the District Court denied the plaintiffs’ motion for summary judgment, and entered summary judgment in favor of the governor. Order Denying Plaintiffs’ Motion for Summary Judgment and Granting Defendant’s Motion for Summary Judgment, Elmsford Apt. Assocs., LLC v. Cuomo, No. 20-cv-4062 (CM) (June 29, 2020).

No physical take (see Yee: you invited the tenants in, owners). And no regulatory taking either because — you guessed correctly — this is “temporary” and Tahoe-Sierra. When this is all done, no-harm, no-foul. And not a Lucas taking because the restrictions left the owners with some use and value, so this is a Penn Central analysis. And you can guess where the Penn Central analysis leads, no?…

Continue Reading SDNY: No Taking For NY’s Eviction Moratorium (It’s Temporary, And You Invited Them In Landlords)

Lech

The Supreme Court today declined to review a Tenth Circuit decision that held a municipality could not be liable for a taking when its police officers pretty much destroyed a house in the course of dislodging a suspect who had holed up there. 

Along with our colleague Bill DeVinney, we filed an amicus brief in support of the homeowner, arguing that an invocation of “police power” isn’t the only question in these kind of cases, and the government’s assertion that it destroyed property for a police power purpose is but one of the factors a court considers when an owner asserts the destruction resulted in a taking. Police power may be a compelling factor militating against compensation. But it should never be the sole factor, as the Tenth Circuit concluded.

We had hoped that the Court would take notice of this case because after after the petition was filed, the…

Continue Reading Cert Denied In Police Power Takings Case (Lech v. Greenwood Village)

Timothy Harris (Seattle U.) has posted his forthcoming article (Loyola L.A. L. Rev.) about takings and coronavirus shut downs. Well worth a read, and adds to the growing list of scholarly inquiry into the question, which includes Prof. Shai Stern’s “Pandemic Takings: Compensating for Public Health Emergency Regulation,” and our own “Evaluating Emergency Takings: Flattening The Economic Curve.

Here’s the abstract of Prof. Harris’ article:

The 2020 Coronavirus Pandemic and the ensuing shutdown of private businesses — to promote the public’s health and safety — demonstrated the wide reach of state and local governments’ police power. Many businesses closed and many went bankrupt as various government programs failed to keep their enterprises afloat.

These businesses were shut down to further the national interest in stemming a global pandemic. This is an archetypal example of regulating for the public health – preventing a direct threat that sickened…

Continue Reading New Article: “The Coronavirus Pandemic Shutdown and Distributive Justice: Why Courts Should Refocus the Fifth Amendment Takings Analysis”

Here’s the recording of our webinar from earlier this week, in which we and fellow Honolulu lawyer Jeff Portnoy did our best to address some of the many questions that have arisen during the coronavirus shut-down.

Jeffrey Portnoy and Robert Thomas talked about what we can expect as the state and counties slowly lift their seemingly endless stay-at-home orders, which have discriminated between “essential” and “nonessential” workers, mandated “social distancing” and mask-wearing, and imposed 14-day quarantines on arriving airport passengers, both tourists and residents returning home.

During the hourlong event, Portnoy and Thomas considered whether businesses destroyed or devastated by the lockdowns have any legal recourse, and whether proposals being suggested to revive Hawaii’s devastated tourism industry, such as replacing the 14-day quarantines with various forms of testing and tracking, might violate constitutional privacy protections.

We’ve written up two articles with our thoughts on these issues:

The first…

Continue Reading Video: “Lockdown, Testing and Tracking: Are They Really Legal?” (A Look At Hawaii’s COVID Response)

We’ve posted a lot of complaints lately (the lawsuit kind, not the “can I see the manager” kind), mostly coronavirus-related. All involving in one way or another a takings claim. See here, here, here, here, here, here, here, here, here, here, here, here and here, for a sampling.

This latest complaint does not challenge a government’s response to COVID, but instead might be even more “ripped from the headlines.” Read on!

As you may be aware, a neighborhood in Seattle, Washington has been blocked off and declared a no-go zone for certain folks. Most recently labeled “CHOP” (Capitol Hill Occupying Protest) after the first naming action went badly and someone realized that the acronym for “Capitol Hill Autonomous Zone” was CHAZ, “[p]eople can now freely walk in the area, which has been covered …

Continue Reading Complaint: City’s Abandonment Of CHOP/CHAZ Neighborhood Is A Taking

A long opinion, but a short post. In Stanford Vina Ranch Irrigation Co. v. California, No. C085762 (June 18, 2020), the California Court of Appeal held that water rights are not really property rights.

That’s a bit of an overstatement, of course. But not a huge one.

In an inverse condemnation case, the court held that the owner of riparian rights did not have a protectable property interest in any amount of water, because riparian use, by definition, must always be reasonable. And the state gets to define what use is “reasonable.” Thus, the logic goes, because the State Water Resources Control Board determined by emergency regulation that any uses which might jeopardize the flow of water into a creek (to protect fish) were unreasonable, there’s no takings claim for an owner who claimed a vested right to the water. No property, no taking:

We have already explained the…

Continue Reading Cal App Backs Into The Question: Riparian Rights Are Limited To Reasonable Use, So No Property Right In What Agency Deems Unreasonable Use

A new, must-add-to-your-reading-list article from takings and expropriations law scholar Professor Shai Stern.

In “Pandemic Takings: Compensating for Public Health Emergency Regulation,” Professor Stern dives into a question a lot of us have been pondering lately, namely whether the pandemic-related shutdown orders might trigger the Just Compensation imperative in the Fifth Amendment’s Takings Clause.

Takings arguments have been raised in may of the legal challenges to coronavirus shut-down orders that have been filed nationwide (see here, here, here, here, here, here, here, here, here, here, here, here and here, for a sampling). But do these claims have any chance of succeeding? Read the article and find out. (Our thoughts on the takings aspects of the shutdowns orders: Evaluating Emergency Takings: Flattening The Economic Curve.) 

Here’s the Abstract:

The COVID-19 pandemic led all states…

Continue Reading New Must-Read Article: “Pandemic Takings: Compensating for Public Health Emergency Regulation” (Prof. Shai Stern)

104481738_2170057539806372_2938554143515873721_nphoto: Patricia Salkin

Just published: the 2020 Zoning and Planning Law Handbook (Green Book). The first section of the Summary of Contents is about Takings, and includes as the lead piece Professor Gideon Kanner and Michael Berger’s tour-de-force article, “The Nasty, Brutish, and Short Life of Agins v. City of Tiburon.” It also includes my articles on Murr, “Restatement (SCOTUS) of Property: What Happened to Use in Murr v. Wisconsin?”

Check it out. The Green Book is a one-stop shop for the best articles on land use in a given year, and this edition includes chapters on housing, agriculture, cell tower placement, RLUIPA, and (of course) zoning.

Our thanks to Dean Patty Salkin who edited the volume for including us.

Summary of Contents, 2020 Zoning and Planing Law Handbook (Green Book)

Continue Reading Available Now: 2020 Zoning and Planning Law Handbook (Green Book)