Regulatory takings

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Here’s the cert petition, filed today (by the same folks who brought you Knick v. Township of Scott, 139 S. Ct. 393 (1922)), which poses this straightforward question:

Whether the “self-executing” Just Compensation Clause abrogates a State’s Eleventh Amendment immunity, allowing a property owner to sue the State for a taking of property.

Now before you pooh-pooh the notion that you can sue a State for retrospective money damages in federal court despite the Eleventh Amendment, take a read. This is a topic which we’ve been furiously researching since Knick (more on that down the road a bit), and the issue is not as clearly on the side of “no you can’t” as you might think. 

As we noted in this short post a couple of months ago, the Fifth Circuit’s opinion in Bay Point Properties, Inc. v. Mississippi Trans. Comm’n, 937 F.3d 454 (5th Cir. 2019)…

Continue Reading New Cert Petition From The Knick Team: You Can Sue A State For A Taking In Federal Court

Here are some of the stories and analysis about yesterday’s ruling by the Court of Federal Claims holding the federal government liable for a taking for the flooding following Hurricane Harvey in the Houston area:

As we wrote yesterday, this one isn’t over by a long shot, so stay tuned.Continue Reading Harvey Flood Takings Round-Up

We won’t go into the details of the Court of Federal Claims’ opinion and order in In re Upstream Addicks and Barker (Texas) Flood Control Reservoirs, No. 17-9001L (Dec. 17, 2019), since it is 46 single-spaced pages long. You can (and should) read the entire thing. But we shall highlight of a few of the highlights, since this is definitely a case to watch, especially as it progresses to the (inevitable) appeal to the Federal Circuit. 

This is the case in which Texas owners whose property upstream of two government created and maintained dams was intentionally flooded by the Corps of Engineers after Hurricane Harvey sued the feds for just compensation for a taking. The government sought dismissal, but after a 10-day trial, the CFC held the government is “liable for a taking on a flowage easement on the [thirteen test] properties.” Slip op. at 3. 

The court summarized …

Continue Reading CFC: “Calculated” Hurricane Harvey Flooding Is A Taking – But Will Decision Survive Federal Circuit Review?

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This time last week, we were sitting in the North Carolina Supreme Court’s (very beautiful) courtroom, above, having just observed oral arguments in a case we’ve been following for quite a while, Chappell v. NCDOT, No. 51PA19 (docket here). 

This case is the follow up (after remand) of the N.C. Supreme Court’s landmark decision in Kirby v. North Carolina Dep’t of Transportation, No 56PA14-2 (June 10, 2016), in which the court held that the “Map Act,” a statute by which DOT designated vast swaths of property for future highway acquisition, was a taking because the Act prohibited development and use of designated properties in the interim. The court concluded “[t]hese restraints, coupled with their indefinite nature, constitute a taking of plaintiffs’ elemental property rights by eminent domain.” The court remanded the case for a parcel-by-parcel determination of just compensation. On remand, the trial court concluded …

Continue Reading NC Supreme Court Considers Just Compensation For Formerly Indefinite–But Now Temporary–“Map Act” Takings

Check out Marianist Province of the United States v. City of Kirkwood, No. 18-3076 (Dec. 13, 2019), for the U.S. Court of Appeals’ handling of RLUIPA and (state law) takings claims stemming from the city not allowing a religious school to light up its baseball field. 

Today’s a busy day, so we won’t delve in detail into the opinion. But nicely, the Eighth Circuit’s website has a summary:

In school’s challenge to city’s zoning regulations in connection with the school’s lighting of its outdoor baseball diamond, the district court did not err in determining that the regulations concerning lighting and sound systems did not substantially burden the school’s religious exercise in violation of RLUIPA; the school’s inability to use its baseball field at night is a mere inconvenience and not a substantial burden because there are alternative times and locations available to it; school’s “as-applied” claim that the school…

Continue Reading If You Build It, It Might Be A Zoning Violation: No Taking, No RLUIPA Violation When Zoning Limited Lights On Religious School’s Baseball Field

Here’s the latest on the judicial takings/rent control case which we’ve been following. 

This is the case where New York property owners assert that the N.Y. Court of Appeals’ decision which concluded that the luxury apartments (which were never formerly subject to rent control) are now governed by the Rent Stabilization Law. This, the petition argues, allows tenants (who hardly need the protections of rent control) to renew less-than-market rent in perpetuity. 

Some heavy hitters have weighed in on the side of the Petitioner, including takings maven Richard Epstein, who filed this amicus brief:

But another way of thinking about this case is to focus less on Petitioner’s property right in the physical building and more on its interest in the public benefits conferred under the RPTL and RSL—namely, Section 421-g benefits and luxury decontrol. New York law recognizes a “vested” property right in a public benefit…

Continue Reading Takings Maven Prof Epstein Weighs In On Latest SCOTUS Judicial Takings Case: Owners Had A “Legitimate Claim Of Entitlement” To Rent Decontrol

Yesterday, our friends and colleagues at the Institute for Justice (Diana Simpson and Bob McNamara) welcomed us to their studios to record an episode of the “Short Circuit” podcast.

We talked property, takings, Virginia oysters, the cert petition about Colorado eminent domain abuse, and how the Supreme Court of the Republic of the Philippines would handle cases like Berman v. Parker and Hawaii Housing Authority v. Midkiff. 

Listen in, and subscribe to the podcast (we don’t miss an ep). 

And yes, we really did write up yesterday’s blog post from the Supreme Court steps. Proof:

IMG_20191203_125502 (1)Continue Reading We Join IJ’s “Short Circuit” Podcast To Talk Virginia Oyster Takings, Colorado Wild Eminent Domain Abuse Cert Petition, And Berman International

Following up on the petition, filed last Friday, asking the Virginia Supreme Court to review a trial court’s demurrer which failed to recognize that the owners of a state lease to harvest oysters in the Nansemond River have a property interest . The court concluded that the city and santitation district possess a superior right to pollute the river with sewage.

The case arose when the city and sanitation district declared the oysterbeds “condemned” during certain times of the year because they put sewage into the river. They denied compensation, and the trial court held that Darling v. City of Newport News, 249 U.S. 540 (1919) subjected the lease owners to the city’s superior right to pollute.

We paid a visit to the site a couple of weeks ago to see the pollution source, and how the oysters are harvested in the river. The above video is from that…

Continue Reading Videos: Oyster Takings On The Nansemond River

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Just filed: this Petition for Appeal in a case which our William and Mary Law class has a special interest in.

The above photo was taken a couple of weeks ago, when we paid a visit to the property owner/plaintiffs, the owners of a long-standing oyster business operating out of the City of Suffolk, Virginia. The 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 both the U.S. Constitution, and Virginia’s taking or damaging clause.

The trial court sustained the City’s demurrer, accepting the City’s argument that it has the right …

Continue Reading City: We Have The Right To Pollute – Virginia Oystermen’s Petition Asserting A Taking