Regulatory takings

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Here’s the third (and final) supplemental letter brief in Knick v. Township of Scott, No. 17-647 (which is set for reargument before the Supreme Court next month).

Of course, you should not be surprised that the Township disagrees with both Ms. Knick’s arguments, as well as the SG’s supplemental brief, and argues instead that all’s well in Williamson County, and that the Court should not disturb it one bit. 

Indeed, if there’s a fault here, it lies with Congress (according to the Township), which could have provided for federal jurisdiction to consider “questions” of federal law, not merely “violations.”

Finally, it is worth recalling that petitioner’s only quarrel with Williamson County is that it recognizes limits on the subject-matter jurisdiction of lower federal courts to hear claims for just compensation. But those limits are statutory, not constitutional, and Congress has discretion to lift them. See…

Continue Reading Township’s Supplemental Brief In Knick: This Is A Statutory, Not Constitutional, Issue

As we wrote in this post, the federal government”s position in Knick v. Township of Scott, No. 17-647, which is set for reargument next month, has us a bit perplexed.

On one hand, the SG’s bottom line is good: property owners can bring their takings claims against local governments in federal as well as state courts. On the other, however, the SG’s supplemental letter brief disagrees with Ms. Knick’s supplemental brief, and argues that no, a “municipality does not violate the Takings Clause when it adopts a regulatory measure that may constitute a taking of property for a public use, even if it denies that such a taking has occurred[.]” SG letter at 3. The fact that state law provides a means for the owner to “still establish the existence of a taking and obtain just compensation through a reasonable, certain, and adequate state inverse-condemnation lawsuit,” means …

Continue Reading SG’s Supplemental Knick Brief: No Fifth Amendment Violation If Govt Does Not Admit To A Taking, But Property Owners Should Still Be Able To Come To Federal Court Anyway To “Vindicate” The Right To Compensation

Here’s the supplemental letter brief, filed today on behalf of Rose Mary Knick, as requested by the Supreme Court. 

Two more — by the Township and by the SG — to be filed today as well. We shall post those as they become available. 

Letter Brief of Rose Mary Knick, Knick v. Township of Scott, No. 17-647 (Nov. 30, 2018) 

Continue Reading Supplemental Knick Brief: Time Of Invasion Is When Property Is “Taken”

Here’s the Petition for Review we’ve been waiting to drop since last week’s ruling by a California Court of Appeal declining to review the California PUC’s decision to turn down the electric company’s request for a rate increase to cover the compensation and damages that it must pay as the result of a southern California wildfire. 

Recall that under California law, a utility company with the power of eminent domain (such as San Diego Gas & Electric) can be liable under an inverse condemnation theory if it can be shown that “any actual physical injury to real property” was “proximately caused by [a public] improvement as deliberately designed and constructed” by the utilty, whether or not foreseeable.

Two California intermediate appellate courts have applied that general rule to wildfires, even though that state’s Supreme Court has not.

The petition argues that the two court of appeal opinions turn on the…

Continue Reading Electric Company: We Can’t Be Liable For Inverse Condemnation For Cal Wildfires Unless We Can “Unilaterally Recoup Costs From The Benefited Public Through Taxation Or Rate Increases”

Reading the fact section of the Federal Circuit’s recent opinion in Katzin v. United States, No. 16-2636 (Nov. 19, 2018), will make your eyes glaze over. It’s all about some property on an island near Puerto Rico, and is full of maps, diagrams, history, and even a photo of some “Keep Out” signs the feds erected. Important, but for someone who isn’t involved in the case, somewhat of a slog to get through.

Give it a read and see if you don’t agree.

But here’s the short story: both the plaintiffs and the feds think they own the land, a ten-acre parcel whose most prominent feature is an old gun emplacement. The Court of Federal Claims after a trial concluded that the plaintiffs owned the property, and that it had been physically taken when a federal official sent a fax to a prospective purchaser claiming that the feds, not…

Continue Reading Fed Cir: Feds Claiming Ownership Of Property And Killing The Market Isn’t A Physical Taking, The Statute Of Quia Emptores Notwithstanding

Get ready. In this and upcoming posts, we’re going to be featuring the items on our agenda for the upcoming ALI-CLE Eminent Domain and Land Valuation Litigation Conference, January 24-26, 2019, in sunny Palm Springs, California. 

ALI-CLE has released the brochure, which those of you on the mailing list should have received — or will be receiving — in your brick-and-mortar inboxes. If not, download it here. Looking it over, you will see that we have assembled a great faculty with expertise in the range of issues that are driving our branch of the law, locally and nationally.

And, as always, one of the best aspects of this conference is the collegiality. Our attendees and faculty find that one of the most beneficial parts of the conference is to meet your colleagues from across the country, and talk shop about the issues we love.  

Of course we …

Continue Reading ALI-CLE Eminent Domain And Land Valuation Litigation Palm Springs Brochure Is Out

Retroactive continuity — or “retconning” — is, according to that authoritative source Wikipedia, a “literary device in which established facts in a fictional work are adjusted, ignored, or contradicted by a subsequently published work which breaks continuity.”

For example, compare the real-world explanation for why the 1960’s Star Trek show’s Klingons didn’t have butt heads, but the later-produced shows and movies did. The real-world reason was that the TV show had a bare-bones budget, so couldn’t afford the required intricate make-up. The later-produced stuff, having larger budgets, could. But to those concerned with an in-universe explanation that had to line up with the production realities, it turned out to be a big source of contention. Fandom as well as the later shows’ writers struggled to come up with a narrative that accounted for both Klingons with butt heads, and those without. 

Sorry for the impossibly nerdy…

Continue Reading Knick And Klingon Foreheads: Retconning Williamson County

Knickrehearing

As we guessed immediately after arguments, today in this order the Supreme Court has set the Knick v. Township of Scott case for supplemental briefing, and reargument. 

Here’s the full text of the order:

This case is restored to the calendar for reargument. The parties and the Solicitor General are directed to file letter briefs, not to exceed 10 pages, addressing petitioner’s alternative argument for vacatur, discussed at pages 12-15 and 40-42 of the transcript of oral argument and in footnote 14 of petitioner’s brief on the merits. The briefs are to be filed simultaneously with the Clerk and served upon opposing counsel on or before 2 p.m., Friday, November 30, 2018. Reply briefs, not to exceed 4 pages, are to be filed simultaneously with the Clerk and served upon opposing counsel on or before 2 p.m., Friday, December 21, 2018.

This tells us that there was no clear…

Continue Reading More Knick Briefing, Reargument

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Every year, at the Brigham-Kanner Property Rights Conference, the conference publishes a law journal with the articles, essays, and remarks presented at last year’s conference. So it was this year, and Volume 7, with the theme of “The Future of Regulatory Takings,” is now available. 

We contributed an essay, “Back to the Future of Land Use Regulation,” which focuses on the rational basis test in land use law — where it came from and where it might be going — as well as some other current issues in property law such as the recent trend of raising general environmental concerns as property claims. Check it out if you are so inclined. 

Here’s the Introduction:

As always, I bring you greetings from the land of Midkiff, the land of Kaiser Aetna. The jurisdiction in which the legislature thought it was a good idea to try and…

Continue Reading New Article: Back to the Future of Land Use Regulation – From Hadacheck To “New” Property