Regulatory takings

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Here’s a cert petition we’ve been waiting to drop, in a case we’ve been following out of Florida.

In Town of Ponce Inlet v. Pacetta, LLC, No. 5D14-4520 (Fla. Dist. Ct. App. June 16, 2017), the Florida District Court of Appeal reversed a Lucas takings verdict, concluding the case might not even be ripe under the “final decision” prong of Williamson County (the prong not being directly challenged in Knick), and that the owner needed to prove a Penn Central taking, because as a matter of law, the town had not appropriated all economically beneficial use of the land. The court sent the case back down for another view by the trial court about whether the case was ripe, and if it was, for another takings trial.  

The case presents quite a developmental horror story (we all have ’em, don’t we?). Read the petition for a flavor …

Continue Reading New Cert Petition: The Other Williamson County Ripeness Test, Intentional Precondemnation Value Depression

Letter

Some good (Dolan, Lucas), some bad (Kelo, Murr), some … not sure (Lingle).

But now, things get interesting.

Let’s just say that we’re not totally convinced this letter from Justice Kennedy announcing his retirement isn’t “fake news,” since it does not list the four factors he considered in deciding to step down.   Continue Reading Kennedy, J. (ret.)

A short, but published, opinion from the U.S. Court of Appeals for the Fifth Circuit.

In Archbold-Garrett v. New Orleans, No. 17-30692 (June 22, 2018), the court held that the plaintiffs’ Fourth Amendment, Fifth Amendment, and Fourteenth Amendment claims (search and seizure, compensation, and procedural due process) were ripe for federal court, even though the plaintiffs had not sought compensation in a Louisiana court under Louisiana law. 

Quick background: the city demolished a building the plaintiffs owned which they had purchased from the city at a lien sale. The prior owner had racked up a bunch of code enforcement fines, and the city claimed the building was dangerous and should come down. But after the sale to the plaintiffs and days before the demolition, the city cancelled the code enforcement lien. Predictably, the city sent the new owners a bill for the demolition. They sued in federal court, arguing…

Continue Reading Fifth Circuit: Williamson County Doesn’t Require District Court Dismiss Due Process Or Takings Claim

In Adams Outdoor Advertising, LP v. City of Madison, No. 2016AP537 (June 19, 2018), the Wisconsin Supreme Court held that the City’s construction of a bridge next to — but not on — property on which Adams maintained a non-conforming billboard, was not a taking. 

There didn’t seem to be much of a dispute about the economic impact of the bridge on Adams — its appraiser testified the before-and-after delta was $740,000, a more than 50% loss. Adams asserted the bridge blocked drivers’ views of the west side of its billboard, and that as a consequence, no one wanted to rent space. The other side of the billboard wasn’t affected. Adams brought an inverse condemnation lawsuit.

The trial court and the court of appeals agreed with the city that Adams had no claim because it didn’t own “property,” defined here as an interest in certain views of its billboard…

Continue Reading Wisconsin – No Right To Be Seen: View Of Billboard From Public Road Isn’t “Property”

A quick check of the Supreme Court’s docket in the Knick v. Township of Scott case shows that no less than 18 amici briefs have been filed top side. Not all of them in support of the Petitioner mind you (two, the briefs of the United States and of the American Planning Association, are in support of neither party, or ask the Court to impose a specific remedy), but whoa, that’s still a lot. 

Shows us how much a case about a very technical aspect of takings law can generate huge participation, reflecting how important the issue of whether a property owner can file a federal takings claim in federal court truly is. 

So you don’t have to read each one (although we encourage you to do so), here’s our quick summary of each: 

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Continue Reading Takings Ripeness Of Apparent Interest: Eighteen—18!—Amicus Briefs In Knick. Here’s Your Rundown.

Here’s the latest in a case we’ve been following. In Alimanestianu v. United States, No. 17-1667 (May 7, 2018), the U.S. Court of Appeals for the Federal Circuit affirmed the Court of Federal Claims’ ruling rejecting takings liability for the government wiping out a money judgment in favor of terrorism victims against the Libyan government.

Libyan terrorists blew up a plane, and plaintiffs, the survivors of one of the victims, sued Libya and obtained a $1.3 billion judgment in U.S. District Court. Libya appealed and before the appeal was resolved, the U.S. government settled all claims with Libya and vacated the judgment. The settlement with Libya referred claims to a settlement commission, which awarded plaintiffs $10 million. Plaintiffs sued the U.S. for the difference.

The CFC held there was no Penn Central taking because the plaintiffs had no reasonable expectation for any recovery greater than what they got from…

Continue Reading Federal Circuit: Restoration Of Foreign Govt’s Sovereign Immunity For Terrorist Acts Isn’t A Physical Taking Of Victim’s Money Judgment

Lebronremoval

The main point we’re trying to make in the amici brief we are filing today on behalf of Citizens’ Alliance for Property Rights Legal Fund in Knick v. Township of Scott, No. 17-647 (cert. granted Mar. 5, 2018), is that the average property owner simply cannot fathom why—if a state or local government has taken property in violation of the Fifth Amendment—he cannot bring a takings claim in federal court until he has first pursued and lost an inverse condemnation claim in state court.

Other cases arising under the Constitution get the keys to the federal courthouse door, no questions asked. But not takings. 

Yes, this is the case in which the “exhaustion of state remedies” requirement from Williamson County Regional Planning Comm’n v. Hamilton Bank, 473 U.S. 172 (1985) is finally being directly reviewed. The last time the Supreme Court considered Williamson County in an argued case was…

Continue Reading Our Knick Amicus Brief: Monkey Selfies Can Get To Federal Court, But Not Fifth Amendment Takings?

Here’s the Petitioner’s Brief on the Merits in Knick v. Township of Scott, No. 17-647, the case in which the Supreme Court is being asked to revisit our old nemesis, Williamson County‘s “state exhaustion” requirement, a doctrine which tells takings plaintiffs that they cannot press a takings claim against state or local governments until the owner has pursued and lost an inverse condemnation claim in state court.

More on the background of the case (we dubbed it “The Night of the Living Zombie Zoning Inspector” case) here.

Here’s a summary of the brief’s argument:

The jurisdictional pitfalls created by the state litigation requirement are sufficient to condemn the rule as an unworkable and unacceptable ripeness concept. But the doctrine is also deeply flawed at a theoretical level because it rests on an incorrect view of the role of the Just Compensation Clause in takings litigation. Contrary to…

Continue Reading Knick Brief On The Merits: Time To Ditch Williamson County‘s State Exhaustion Requirement

Earlier this week, we reported that a San Francisco trial court had heard arguments that Pacific Gas and Electric could not be liable for damages resulting from the Northern California wildfires under an inverse condemnation theory.  

Well, here’s the court’s written Order Overruling PG&E’s Demurrers which the court made available yesterday. The crux of the court’s rationale is that PG&E hasn’t shown that it will not be able to spread any damage judgment to the (its) public:

Even if PG&E were right that a privately-owned public utility will be unable to recoup its losses through rate increases eviscerates a plaintiff’s right to inverse condemnation, I would overrule the demurrer. Taking the PUC decision at face value, the loss spreading rationale may be satisfied in this case so long as PG&E acted as a “prudent manager.” Whether PG&E acted as a “prudent manager” is disputed — PG&E of course contends it…

Continue Reading More On No. Cal. Wildfire Inverse Cases – Order Overruling Demurrers

In Hunter Landing, LLC v. City of Council Bluffs, No. 16-2138 (May 16, 2018), the Iowa Court of Appeals held that the jury was entitled to be instructed about all takings theories, and not just limited to a Lucas and physical invasion instruction. 

After several of Hunter’s nonconforming buildings were damaged in a flood and the City concluded all but one of them were more than 50% damaged, the City demolished them. Hunter sued, asserting the City “inversely condemned its property by limiting the right of direct access to the property, restricting the highest and best use of the property, removing buildings, removing electrical power to operate a water well system, removing drainage tubes, and removing septic systems.”

The court gave the jury this instruction:

Land-use regulation does not constitute inverse condemnation requiring compensation if it substantially advances a legitimate state interest. There are two exceptions. When the regulation…

Continue Reading Iowa App: Regulatory Takings Jury Should Be Instructed About Per Se Takings, And Penn Central Test