Regulatory takings

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Here’s one we’ve been waiting for (we filed a brief in support of the property owner), one in which we were hoping (although not expecting) a more favorable result.

In Brott v. United States, No. 16-1466 (May 31, 2017), the Sixth Circuit held that federal inverse condemnation plaintiffs who sue for more than $10k are not entitled to bring their claims before an Article III tribunal in the first instance, and can be forced by Congress to pursue claims in the Court of Federal Claims. The court also concluded that it wasn’t a problem constitutionally for the property owners to not be able to have their claims determined by a jury. 

The opinion noted the oft-quoted Supreme Court cases which concluded that the Just Compensation requirement in the Fifth Amendment is “self-executing,” that this means that a waiver of sovereign immunity isn’t necessary, that once a taking occurs…

Continue Reading 6th Cir: Takings Clause Isn’t Really Self-Executing, So Federal Takings Plaintiffs Must Go To The CFC; And No, They Don’t Get A Jury Either

Here’s the unanimous Supreme Court opinion, issued this morning in a case we’ve been following, Town of Chester v. Laroe Estates, No. 16-605 (June 5, 2017), a takings case, although the issue resolved by the Court is one of civil procedure. 

The Court’s holding is remarkably unremarkable: a plaintiff — including a plaintiff who intervenes in a lawsuit as of right under Fed. R. Civ. P. 24(a)(2) — must have Article III standing. We say “unremarkable” because we never could quite figure out why that proposition was apparently so controversial that it ended up with a lower court split: doesn’t every federal court plaintiff need to show that there’s a live case and controversy on every claim and form of relief that is alleged? Yes, the parties didn’t dispute it, and the Court, in the opinion authored by Justice Alito, reached that conclusion in the second sentence:…

Continue Reading SCOTUS: To Intervene As A Plaintiff (In A Takings Case), You Need Article III Standing (Duh)

The Florida Supreme Court’s opinion in Hardee County v. FINR, II, Inc., No. SC1501260 (May 25, 2017), is pretty Florida-specific, because it involves the interpretation of that state’s Bert Harris Act (something we wish we had in our arsenal), but there are lessons in the case that make it worth reading — it’s pretty short — for the rest of us. 

The facts are straightforward: FINR (a “neurological rehabilitation center”) applied for, and the County approved, a “Rural Center” land designation for FINR’s land, which normally would have resulted in a quarter-mile setback on adjacent properties. The County, however, granted an adjacent phosphate mining company an exception which shrank the setback to as little as 150 feet. FINR sued the County under the Bert Harris Act for the loss in value of its property as a neurological rehab center. 

The trial court concluded that since the County wasn’t…

Continue Reading Florida: To State A Claim Under The Bert Harris Act, It Must Be The Plaintiff’s Property Being Overregulated

Here’s the amici curiae brief we filed today on behalf of Owners’ Counsel of America, NFIB Small Business Legal Center, Cato Institute, and Professor David Callies in support of a cert petition which we detailed here.

The case is a regulatory takings claim, and involves wet and dry sand beaches, public trust, and other favorite topics. The case arose because the N.C. Legislature by statute moved the “public trust” shoreline landward, and allowed the public to use what had formerly been private beach.  

Here’s the Summary of Argument from our brief:

The North Carolina Court of Appeals permitted the Town of Emerald Isle (Town) to impress into public service the portion of the Nies family’s property above the mean high water mark as a road and park. North Carolina law has never subjected this dry sand to public ownership, through the public trust doctrine or otherwise.

Continue Reading SCOTUS Amicus Brief: States May Be Able To Rewrite Property Law, But They Can’t Avoid Paying For The Change

IMG_20170526_144554

Welcome to a new entry in the eminent domain and takings blogosphere, Texas colleague Clint Schumacher‘s Eminent Domain Podcast. Yes, you don’t have to read to get your takings updates, you can listen while you work, while you work out, or while you drive or fly. Go here to subscribe or download episodes via his website, or here for iTunes.

Clint has formatted his program very cleverly, with an Opening Statement, Direct Examination (in-depth discussion of the topics), Cross-Examination (a “lightning round” quick-question-and-answwers), and Closing Arguments.

He was kind enough to ask me to be his inaugural guest, and we spent some quality time discussing the Honolulu rail project, recent interesting cases, the “three unities” test, the annual ALI-CLE Eminent Domain Conference, and … Kevin Bacon. Don’t miss that.

Click here to open this first episode in a new window

Clint and his firm also produce…

Continue Reading Clint Schumacher’s New Eminent Domain Podcast

We don’t normally post trial court decisions, particularly ones which simply dismiss a case. But the U.S. District Court for the Eastern District of Pennsylvania’s recent memorandum order in The Property Management Group, Ltd. v. City of Philadelphia, No. 17-1260 (May 23, 2017), which deals in part with a somewhat unusual takings claim, is posted here for two reasons. First, Williamson County. Second, the opening paragraph.  

The case involves Philadelphia’s notorious parking situation, something that — if you have ever parked a car on the street in that city — can be a real exercise in frustration and even fear. Predatory towing, ransoming cars, private spaces, and the like. The city council, apparently responding to towing abuses (see page 2 of the slip opinion, for example), adopted an ordinance which added a “ticket-to-tow requirement” which required that a law enforcement officer first certify that a vehicle…

Continue Reading Federal Court Dismisses Removed Takings Claim Under Williamson County … And That’s OK

Seattle

My thanks to Bart Freedman (K&L Gates) and Kinnon Williams (Inslee Best Doezie & Ryder) for asking me to speak on national takings and inverse condemnation issues at yesterday’s Eminent Domain conference in Seattle.

As you can see, the room was packed and standing room only. Here are the cases and issues I mentioned during my talk, “National Takings Trends, Hot Practice Areas, and Property Rights in the Age of Trump:”

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Continue Reading Cases And Links From Washington Eminent Domain Conference

We’re back in meme territory today, with the Georgia Supreme Court’s opinion in Abramyan v. Georgia, No. No. S17A0004 (May 15, 2017), a case about takings, taxi medallions, and (you guessed it), ridesharing and the “sharing economy.”

After the Georgia legislature adopted a statute that made it easier for ridesharing services to operate by limiting the power of local governments to regulate ridesharing and taxi services, owners of taxi medallions sue, alleging this was a taking of their property, the taxi medallions.

This claim fared as well as similar claims in other courts (see here and here, for example), meaning the trial court dismissed and the Georgia Supreme Court affirmed. No property interest, no taking. 

The court’s opinion, which is short (9 pages of large font type) is a quick read, and the bottom line rationale is that the taxi medallions didn’t give them an “unalterable monopoly” on…

Continue Reading Georgia SCT: “You keep using ‘taxi medallion.’ I do not think it means what you think it means!”

No, it’s not for that job position, recently vacated.

This is an opening at a slightly lower level, but perhaps of more interest to our readers. The U.S. Department of Justice is seeking a “Trial Attorney (Inverse Condemnation) GS-14/15.” Here’s the job description:

The attorney selected will be expected to represent the United States in Fifth Amendment takings litigation before the Court of Federal Claims and federal district courts throughout the nation. Cases will involve border security, military readiness, transportation infrastructure, and flood control. The attorney must be comfortable in a “first-chair” role in multiple complex cases, and have demonstrated and substantial experience in all aspects of civil litigation, including pre-trial discovery, presentation of oral argument, and examination of fact and expert witnesses.

The cases handled by the Section require attorneys to achieve intellectual command of complicated facts, scientific principles, and legal issues, often rapidly. Successful candidates…

Continue Reading Job Opening At The DOJ (No, Not That One)

Here’s the latest in the “audacious” takings case brought by AIG against the federal government for the 2008 fed takeover. The heart of the complaint is that the acquisition of AIG was an unconstitutional exaction. The Court of Federal Claims rendered a verdict that was hailed as a groundbreaking victory, but which ultimately denied the only relief which the CFC can enter, a money judgment. An appeal to the Federal Circuit followed, naturally.

In Starr International Co., Inc. v. United States, No. 15-5103 (May 9, 2017) that court threw out the takings claim for lack of standing. The corporation had standing to assert the claim, not individual shareholders.

There’s a lot to digest in the 38 page opinion, and the 32 page concurring opinion, and we will allow you to read them for yourself. The key portion of the majority opinion, in our view, starts on…

Continue Reading Fed Cir: Even Uberlawyers’ Plaintiffs Need Standing To Bring A Takings Claim