Regulatory takings

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After the Supreme Court’s decision in Lingle v. Chevron U.S.A., Inc., 544 U.S. 528 (2005), whether a government action “substantially advances a legitimate state interest” — for a long time assumed to be a takings question under Agins — found a new home in the the Due Process Clause.  

Here’s the recently-filed cert petition, asking the Court to review a ruling by the Washington Court of Appeals

Questions Presented:

A Jefferson County, Washington, ordinance requires that all shoreline property owners dedicate, as a condition on any new development permit, a 150-foot conservation buffer purported to protect the marine environment from impacts like storm water runoff. The legislative record, however, contains findings that the government could not determine the need for, or the effectiveness of, a buffer without first considering site-specific factors and the specific development proposal.

The questions presented are:

1. Whether property rights are fundamental rights, such…

Continue Reading “New” vs “Old” Property – New Cert Petition Asks, Is Right To Use Property “Fundamental?”

If you understand this post’s headline, congratulations: you are the nerdiest of law nerds, checking no less than two boxes in the obscure law category, takings and patent law.

But if you have been paying attention here, you know that recently, the Supreme Court, in Oil States Energy Services, LLC v. Greene’s Energy Group, LLC, No. 16-713 (Apr. 24, 2018) (which we wrote about in “Property Lawyers, Read The Supreme Court’s Latest Patent Case“), held that “inter partes” review of previously-issued patents (a form of property), does not run afoul of the Constitution. 

Yes, these patents could be reconsidered in inter partes review. But the Court expressly left open the question of whether revoking a previously-recognized patent would be a taking:

Finally, our decision should not be misconstrued as suggesting that patents are not property for purposes of the Due Process Clause or the Takings Clause. See, …

Continue Reading The (First?) Post-Oil States Shoe Drops In Patent Takings By Inter Partes Review

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Two cases which we’ve been following are up for consideration on the Supreme Court’s conference schedule today. Indeed, by the time we post this, the conference will likely be over, although we won’t know the results until next week. Check these out, and hold your breath:

  • Petro-Hunt, LLC v. United States, No. 17-1090. As we wrote here, the question in this case is “whether the Takings Clause applies to the decisions of federal courts.” Well, if you have been following our threads on judicial takings, that’s a pretty tall order. Download the cert petition, the USG’s BIO, and the Reply brief here. 
  • Stanford v. United States, No. 17-809. The question here is when a federal court takes possession of an innocent spouse’s property for her husband’s securities fraud, is this a judicial taking? Check out the briefs here. 

Sidebar: one of things that that has…

Continue Reading Judicial Takings On The Supreme Court Conference Calendar Today

IHtakings

Another week, another Federal Circuit panel opinion on takings authored by Judge Timothy Dyk (following the recent MR-GO opinion). And you know what that means: property owners lose.

The Court of Federal Claims concluded that the feds had taken the plaintiff’s lease of of a part of Dallas’ Love Field — under both a Lucas and Penn Central regulatory and physical taking theory — and rendered a verdict of $135 million in just compensation.  In Love Terminal Partners, L.P. v. United States, No. 16-2276 (May 7, 2018), the Federal Circuit, in the Judge Dyk-authored opinion, reversed. 

The facts of the case are not terribly complex. Back in the day, Braniff Airways (those of you of a certain age will remember Braniff) leased land at Love Field. Decades later, in order to spur the growth and use of Love Field’s competition Dallas-Fort Worth airport (DFW), Congress adopted the…

Continue Reading Judge Dyk Strikes Again: No Love For Taking Of Leasehold Of Love Field

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Surge pricing applies!

You really have to feel for taxi operators who invested what could be huge amounts of money to obtain a taxi medallion getting whacked by the competition from ridesharing outfits like Lyft and Uber. These services look and feel an awful lot like taxis, don’t they? As we wrote in a recent article:

These services—at least from the consumer’s standpoint—operate a heck of a lot like taxis do. You hail a ride (not with your arm and a sharp whistle, but with your fingers and your smartphone), you get in, you go, you get where you are going, you pay the driver (again, with the app, not by handing the driver cash or your credit card). Is that enough of a difference to say that ridesharing isn’t taxicabbing? On that, I am mostly with the taxicab operators. Having used Uber and Lyft more than a few…

Continue Reading New York City Allowing Ridesharing Isn’t A Taking Of Taxi Medallions

Here’s what we’re reading today:

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Continue Reading Monday Readings: South Africa Takings, Redevelopment, Metes and Bounds, And More

Thanks to colleague Chris Kramer, we’ll be speaking later this week (Friday, May 4, 2018) in Phoenix at the 22nd Condemnation Summit at the Arizona Biltmore.

Our session will cover “Condemnation Trends: Nationwide & Arizona.” The rest of the day’s agenda looks mighty good too, with session on valuation of easements, paying for transportation infrastructure, airport takings, and a presentation by Justice Lopez of the Arizona Supreme Court. Well worth the very affordable $129 registration cost.

Sign up here.

See you there!Continue Reading Arizona Takings: Condemnation Summit XXII

The Minnesota Attorney General settled a civil claim with tobacco companies that the companies had violated state consumer protection laws. Later, several Minnesota consumers brought a claim in state court alleging the State’s failure to pay these plaintiffs a portion of the proceeds from the earlier settlement was an inverse condemnation of their property, raising both state and federal takings claims. 

The Minnesota Court of Appeals concluded these claims were time barred, and held there was no taking, and the Minnesota Supreme Court denied discretionary review.  Next, some of the same consumers filed a federal § 1983 claim in U.S. District Court, asserting a federal takings claim. The District Court dismissed, concluding this was the same claim which the plaintiff had raised, and lost, in Minnesota courts.

In Foster v. Minnesota, No. 17-1177 (Apr. 20, 2018), the Eighth Circuit affirmed. Applying the Full Faith and Credit statute (28 U.S.C. §…

Continue Reading 8th Cir: Federal Takings Claim That State Failed To Share Tobacco Settlement Proceeds Was Already Litigated In State Court

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Some of the Land Use Institute faculty, including (front row left), Planning Chair Frank Schnidman and Planning Co-Chair Patty Salkin

Last Friday at the 32nd Annual Land Use Institute in Detroit, I was honored to moderate a freewheeling discussion by a panel of takings experts, Professor Steven Eagle, Minnesota lawyer Howard Roston, and Michigan’s own Alan Ackerman on “Takings, Eminent Domain, and Vested Rights.”

Here are the cases and other materials we discussed, as well as a few others which we did not have time to cover (but wish we could have):

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Continue Reading Cases And Materials From The Takings And Eminent Domain Session At The Land Use Institute

Do we really need to tell you how a rent control regulatory takings claim fared in the Ninth Circuit? We didn’t think so.

In Colony Cove Properties, LLC v. City of Carson, No. 16-562655 (Apr. 23, 2018), a three-judge panel reversed a district court jury verdict which concluded that the City was liable for a Penn Central regulatory taking for the mobilehome Rent Board’s setting of a rent increase artificially low. The total award to the park owner, including damages for lost rental income, attorneys’ fees, and interest, was over $9 million. 

As we wrote in this post, the city and its amici predictably went ballistic and argued that the upholding the verdict threatened the very existence of mobilehome rent control. The court concluded that as a matter of law, the owner failed each of the three Penn Central factors.

First, the owner did not prove that the…

Continue Reading 9th Cir: City Rent Board Determining Owner “Made Enough” Profit Isn’t A Penn Central Taking