Regulatory takings

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Rather than sum up the issue and the Massachusetts Appeals Court’s** conclusion in Smyth v. Conservation Comm’n of Falmouth, No. 17-P-1189 (Feb. 19, 2019), here’s the first part of the opinion:

GREEN, C.J. A land owner brought this action in the Superior Court, claiming that local land use regulation effected a taking of her property, requiring just compensation under the Fifth Amendment to the United States Constitution and art. 10 of the Massachusetts Declaration of Rights. This appeal presents a question of first impression in Massachusetts: whether the land owner is entitled to have her regulatory taking claim decided by a jury. We conclude that the jury right does not attach to such a claim, and that the judge erred in denying the defendants’ motion to submit only the question of damages to a jury. We further conclude that the evidence presented at the trial did not, as matter…

Continue Reading Mass App: Regulatory Takings Claims Don’t Get A Jury Trial

SJEBKannouncement

Be sure to save the date on your calendar for the 16th Annual Brigham-Kanner Property Rights Conference, at the William and Mary Law School in Williamsburg, Virginia.

This year’s B-K Prize will be awarded to Professor Steven J. Eagle. Professor Eagle is a familiar presence to the property bar and the academy, and this award is well-earned. His treatise, Regulatory Takings, is a monumental work, and a book that needs to be on every property lawyer’s and scholar’s shelf. As the media release notes:

Michael M. Berger, an attorney at Manatt, Phelps & Phillips and the 2014 Brigham-Kanner Prize recipient, considers Eagle one of the finest property scholars of his generation.

“[Eagle] has devoted much of his life and his prodigious energy toward analyzing the constitutional nuances embedded in real estate law,” Berger said. “His deeply thought out analyses provide major contributions to the body of law examining and…

Continue Reading Mark Your Calendars: October 3-4, 2019 – Brigham-Kanner Property Rights Conference And Prize Award To Prof Steven Eagle

In the usual circumstance, we wouldn’t be terribly interested in an unpublished — and therefore not precedental — opinion. But the U.S. Court of Appeals’ opinion in Kerns v. Chesapeake Exploration, LLC, No. 18-3636 (Feb. 4, 2019) caught our attention because it involves “forced pooling,” which this site describes this way:

At its most basic, pooling is the joining together or combination of small tracts or portions of tracts to create sufficient acreage to receive a drilling permit under applicable state spacing rules and regulations, and for the purpose of sharing the production from the pooled unit among the pooled interest owners.

Often, pooling is done voluntarily. That is, interest owners agree to the benefits of the combined acreage. Most oil and gas leases contain provisions allowing the lessee to pool the acreage covered by the lease; sometimes this right is virtually unlimited.

At times, however, there are unleased…

Continue Reading 6th Cir (unpub): “Forced Pooling” – Requiring Holdouts To Participate In Fracking – Isn’t A Taking

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Here is our annual “proof of life” photo, taken from the dais during the opening session, to prove that all 250 of us were in the room for the ALI-CLE Eminent Domain Conference, and not out on a Palm Springs golf course (it is 72º and sunny, so a golf course would not be a bad place to be).  

Here are the links from our talk this morning (along with Amy Boulris) about the latest issues to watch in eminent domain:

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Continue Reading Wish You Were Here: Links From Day 1, 2019 ALI-CLE Eminent Domain And Land Valuation Litigation Conference

With the opinion in the Knick v. Township of Scott case to drop as soon as Tuesday (we’re guessing the opinion will be by Chief Justice Roberts, by the way), hold on. We’re about to get super nerdy here. Impossibly nerdy. Yes, we’re revisiting the Star Trek analogies. We’ve been down this road before, even going so far as to have a colleague (who is perhaps even further down the rabbit hole than we are) present a takings CLE in his Starfleet uniform. 

The bottom line is this (and if you are not into Trek, you can stop right here): to us the key question which the Court is grappling with is whether a state’s judiciary is part of the state’s compensation system. If the majority of the justices conclude that it is, then don’t expect an out-and-out overruling of Williamson County, only a modest trim…

Continue Reading Shaka, When The Walls Fell: Knick Is Going To Be About Federalism, Not Takings

Psweather

If you didn’t register to attend the 36th Annual ALI-CLE Eminent Domain and Land Valuation Litigation Conference later this week in Palm Springs, California, well then, shame on you!

According to the National Weather Service, while you and the rest of the country is freezing, we’ll be enjoying the balmy desert climes, and discussing the topics we love: eminent domain, redevelopment, relocation, regulatory takings, trial and appeal strategies, doctrinal changes on the horizon, hot topics (border wall, pipelines, wildfires, and flooding), and others. 

Featuring a national faculty (many new to the ALI-CLE dais), and attendees from the entire spectrum of practice, academia, and the bench. 

If you are not joining us, be sure to follow along on the blog (we will post updates daily), and on Twitter (@invcondemnation, @ALI_CLE #EminentDomain2019). And plan on joining us in 2020, when we’ll be in a new city (by…

Continue Reading ALI-CLE Palm Springs (72º, Sunny) Here We Come

Pay special attention to Justice Breyer’s questioning of Ms. Knick’s counsel, Dave Breemer. Yes, oral argument is the Court’s time to do with as it wishes, but was Justice Breyer actually trying to get at anything, or just running out the clock with a questions that didn’t seem to have any point. Does he really think that lawyers for municipal governments actually have the type of conversations that he was alluding to? Really? 

Also, if you can’t stream the above, go to the Supreme Court’s audio page for the Knick case and download the sound file directly.  Continue Reading Knick Oral (Re)Argument Recording Available

There’s been a lot written after the Supreme Court heard (re)arguments earlier this week in Knick v. Township of Scott, No. 17-647, most of it helpful in understanding what issues the Justices are considering, and how each of them might break on the ultimate question: should Williamson County be overruled, and should property owners who allege that a local government has taken their property be able to press their claim for just compensation in a federal court? 

Here’s what we’re reading on the subject:

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Continue Reading Knick Post-Argument Round Up

CERTDENIED

In case you have been following along, you can take these four cases off your watch list:

  • Leone: Hawaii Supreme Court concluded that holding property that has no present use in the hope that someday in the future the government might rescind the use-restrictive regulation, is “investment use,” and therefore no taking. 
  • Kelleher: Palazzolo revisited – if the owner purchased the property with the allegedly restrictive regulation already in place, does the owner lack investment-backed expectations of use? 
  • Colony Cove: Ninth Circuit voided a jury verdict in a Penn Central takings case in favor of the property owner, concluding that mere cash losses (even though the loss was millions of dollars) was not enough to support the verdict, because the overall value of the property didn’t decline substantially. 
  • St. Bernard Parish: The MR-GO case. The Federal Circuit concluded the Government cannot be liable for a taking

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Continue Reading Cert Denied, Denied, Denied, Denied In Reg Takings Cases

Don’t Miss the 2019 Eminent Domain Litigation Conference from American Law Institute CLE on Vimeo.

Check out this sound blurb, produced by the good media folks at ALI-CLE, about the upcoming Eminent Domain and Land Valuation Litigation Conference. (And no, we didn’t record this in a jazz club; although I wish we had.)

There’s still time to register, and come and join us in Palm Springs. Continue Reading Hot (Eminent Domain) Topics, Cool Jazz