Regulatory takings

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Here’s one that — although unpublished — is still worth a quick read. Because it’s a case where the Sixth Circuit held that a federal court takings claim against the City of Franklin, Tennessee, which is the seat of Williamson County, Tennessee, should be dismissed under Williamson County because it wasn’t ripe.

In Beech v. City of Franklin, No. 16-6326 (Apr. 19, 2017), Beech sued the City claiming it was a taking for the City to allow Beech’s neighbor to operate a barbershop next door. That’s a tough claim to begin with, but Beech pressed a mandamus claim in Tennessee state court, seeking to enjoin the neighboring barber shop. Included within the petition were claims for damages for violations of Beech’s federal constitutional due process and equal protection rights because (allegedly) the City was not enforcing its zoning code. Beech did not assert a takings claim. The state court…

Continue Reading A Williamson County Ripeness Case From Williamson County, Tennessee

Apparently, property owners setting their buildings on fire to collect the insurance is a thing in Pennsylvania, the location of our story. We say this because the Pennsylvania legislature adopted a statute which requires that before an insurance company pays out proceeds from a fire policy to a “named insured,” it check with the local municipality to see if any property taxes are owed on the property. If so, the municipality grabs the payout to satisfy the delinquent taxes.  

You can kind of see where this is going, can’t you? Yes, one entity owned the burned building, while another entity was the named insured.

We usually leave insurance matters to our law partner Tred Eyerly, who blogs about insurance coverage and related matters. Stuff like that is above our pay grade, and we defer to professionals.

But the U.S. Court of Appeals’ opinion in Trustees of Conneaut …

Continue Reading 3d Cir: PA Statute Requiring You To Pay Someone Else’s Property Taxes Isn’t A Taking

Do you really need an excuse to visit Seattle? If you do, and want to earn some CLE credit while you’re at it, check it out the brochure for the upcoming Eminent Domain seminar on May 18, 2017. This is a one-day program that focuses on the hot topics in our area of law. We’ll be speaking about “Changes in National Public Policy” and the latest developments in eminent domain and takings law. 

Agenda and full registration information here. 

Come, join us. 

7th Annual Eminent Domain Seminar, Seattle, Washington, May 18, 2017 

Continue Reading Seattle Eminent Domain Conference, May 18, 2017

We don’t usually post trial court decisions. They are, obviously, subject to change by an appellate court, and because many are interlocutory, alteration by the rendering court iself.

But for this order from the U.S. District Court for the Northern District of Florida, we’ll make an exception. It’s a land use case (it’s right there in the first sentence, “This is a land use case.”), in which the plaintiffs are challenging two ordinances adopted by the County. The first prohibited obstruction of the beach with ropes, chains, signs, or fences. The second prohibited anyone from interfering with public use of dry sand beach areas. Under Florida law, the dry sand portion of the beach is privately owned. 

As you might expect, because the effect of the ordinance was to invite the public to use private property (as Laurence Tribe wrote in his treatise on Constitutional Law when discussing Kaiser Aetna …

Continue Reading Federal Court: Williamson County Ripeness Not Required In Facial Takings Claims

Remember back from Admin Law the notion of a “quasi-judicial” proceeding? That term always has bugged us, because, you know, it was used when an agency was sorta acting like a court (but also was sorta acting like a legislative body). Half full, half empty, take your pick. 

The fact pattern presented in the Florida District Court of Appeals’ opinion in Highland-in-the-Woods, LLC v. Polk County, No. 2D15-2801 (Apr. 28, 2017), involved the other side of that coin, an exaction the County argued was legislative even though imposed by an agency, and therefore off-limits to the exactions test of Nollan-Dolan-Koontz. (We think distinctions like this don’t matter — that whether or not its a legislature or an agency that is making a demand that in order to make use of your property, that you have to give up a constitutional right — but we recognize that the…

Continue Reading Fla App: A Sorta-Legislative Exaction Is Subject To Nollan-Dolan, But This One Passed The Test

Here’s the cert petition, recently filed, which asks the U.S. Supreme Court to review a decision of the North Carolina appellate courts. We say “appellate courts,” because the decision being reviewed is one from the N.C. Court of Appeals, because the N.C. Supreme Court, after granting discretionary review, punted and dismissed the appeal after it was fully briefed and teed up for oral arguments.

What happened that cause the court to dismiss? Who really knows the internals, but the one thing we do know is that some members of the court changed due to a judicial election. We know the above because we were watching the case closely; we filed an amicus brief in support of the property owner in the N.C. Supreme Court, a brief that apparently didn’t get read (not that amicus briefs get read all that frequently anyway, but you get our drift).

The case is…

Continue Reading New Regulatory Takings Cert Petition: Legislature Can’t Simply Declare Private Property To Be Public

Here are the full set of petitioner-side amici briefs in 616 Croft Ave., LLC v. City of West Hollywood, No. 16-1137, the case which asks the Supreme Court to determine whether the Nollan-Dolan-Koontz exactions standards apply to conditions on development imposed by a legislature. 

The City waived response, but the Court asked for one. This could get interesting, so stay tuned. 

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Continue Reading SCOTUS Amici Briefs In Legislative Exactions Case

Here’s the amicus brief filed yesterday by the National Federation of Independent Business Small Business Legal Center, joined by Owners’ Counsel of America, in a case we’ve been following.

This case asks the Court to resolve a big outstanding issue: are legislatively-imposed exactions (however that term is defined) subject to the same high level of scrutiny under the Nollan–Dolan–Koontz test as are administratively-imposed exactions? 

Our brief argues:

The Respondent, City of West Hollywood (“City”), forces property owners into the same unconstitutional dilemma which faced James and Marilyn Nollan, Florence Dolan, and Coy Koontz. Nollan v. California Coastal Comm’n., 483 U.S. 825 (1987); Dolan v. City of Tigard, 512 U.S. 374 (1994); Koontz v. St. Johns River Water Management District, 133 S. Ct. 2586 (2013). Specifically, the Petitioners were forced to choose between their fundamental rights to either (a) obtain just…

Continue Reading SCOTUS Amicus Brief: Lawless Legislatures Should Be Treated The Same As Lawless Zoning Boards

Here’s the recording of the March 20, 2017 oral arguments in Murr v. Wisconsin, the e “larger parcel” or “denominator” case.

The printed transcript is posted here, and our summary of the arguments is posted here. Our preview of the arguments, which includes link to the briefs, is here.

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Continue Reading Murr Oral Argument Recording

Here’s the amicus brief, filed yesterday by Pacific Legal Foundation is support of the cert petition we filed last month which asks the U.S. Supreme Court to review a decision of the Mississippi Supreme Court.

First, some background. In 2005, Hurricane Katrina destroyed “Toll Project No. 1,” the U.S. Highway 90 crossing of Bay St. Louis, Mississippi. The bridge had been partially built on Petitioner Bay Point’s property pursuant to a highway-purpose easement granted to the State in 1952 by Bay Point’s predecessor-in-title. After the hurricane, the Mississippi Transportation Commission removed what was left of the bridge. The destruction of the bridge and the removal of the remnants discontinued the specific use authorized by the easement, and Bay Point should have immediately recovered unencumbered possession. Instead, MTC built an entirely new bridge in a different location, and converted the majority of the former highway easement into a public recreational park.…

Continue Reading New SCOTUS Amicus Brief: Just Compensation Is Determined By Courts, Not Legislatures