2019

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We’re seeing a lot of “end of year” and “end of decade” wrap-ups, so figured we’d better chime in.

As the above graphic hints (this is detail of the doors of the U.S. Supreme Court), our biggest case of 2019 (and probably of the twenty-aughts) is Knick v. Township of Scott, 139 S. Ct. 2162 (2019). The federal courthouse doors are open again to federal takings claims. 

Yes, the U.S. Supreme Court doors were technically already open (via cert petitions from state supreme court takings cases), and Knick simply re-set the clock back to 1985, but if the two-thousand double-ohs were the decade of Kelo (a loss), will not the 2010’s be defined by Knick (a big win) even if the ruling came at the tail end of the decade?  

Compare where we are today with where in 2016 we thought we were heading…

Continue Reading Biggest Case Of The Year…Or Maybe The Decade?

Here’s the video of our October panel at the 2019 Brigham-Kanner Property Rights conference during which we spoke about “The New New Property: Public Resources and Private Rights.”

Our panel also discussed judicial takings, Stop the Beach, (a case in which speaker Ken Bell — then a Justice on the Florida Supreme Court) ruled on), and Professor Henry Smith’s work. 

As the law school’s YouTube channel describes it: Panelists include Ken Bell, Robert H. Thomas and Henry E. Smith. Katherine Mims Crocker of William & Mary Law School serves as moderator. The Brigham-Kanner Property Rights Conference is hosted each year by the William & Mary Property Rights Project at William & Mary Law School. Recorded at the Law School on October 4, 2019.

Check it out. The videos of the other panels are posted here. Continue Reading Brigham-Kanner Video: The “New New” Property, Judicial Takings, And More

Untitled Extract Pages

Here’s the Complaint filed earlier this month in an Indiana federal court, which alleges that the State of Indiana is liable for a judicial taking in a case we’ve been following. Yes, a judicial taking! 

You recall that in Gunderson v. Indiana, 90 N.E.3d 171 (Ind. 2018), the Indiana Supreme Court concluded that the public owns up to the ordinary high water mark on Lake Michigan and had done so all the way back to statehood in 1816. Problem is, according to the plaintiffs here, “undisputed local, state, and federal acknowledgement over the years” was otherwise – the law said that the property was private, not public. Thus (again, according to the Complaint), “the Gunderson judgment changed the law of the State of Indiana, as recognized by prior Indiana court precedent as well as federal, state, and local authorities.” Complaint at 2.

We suggest you read the entire Complaint. It…

Continue Reading New Fed Ct Judicial Takings Complaint: Indiana Supreme Court “Transformed Established Law” Of Shoreline Ownership

We’ve been meaning to post the Texas Court of Appeals’ opinion in Zaatari v. City of  Austin, No. 03-17-00812 (Nov. 27, 2019) for some time.  

The City of Austin adopted an ordinance that, among other things, prohibited short term rental of a residence that is not also owner-occupied, barred certain activities (such as weddings) on other properties, and permitted City officials to enter such properties to ensure compliance with the regulations. Property owners challenged the ordinance, and the State of Texas intervened as a plaintiff. The trial court granted the City summary judgment.

The court of appeals reversed:

The ordinance provision banning non-homestead short-term rentals significantly affects property owners’ substantial interests in well-recognized property rights while, on the record before us, serving a minimal, if any, public interest. Therefore, the provision is unconstitutionally retroactive, and we will reverse the district court’s judgment on this issue and render judgment declaring…

Continue Reading Tex App: City Ordinance Prohibiting Short-Term Rentals Unconstitutional

Reading through the Alabama Supreme Court’s recitation of the facts in a case about inverse condemnation, City of Daphne v. Fannon, No. 1180109 (Dec. 6, 2019), you can’t help but be reminded of the convoluted chain of events in that old warhorse tort case, Palsgraf v. Long Island R.R., 162 N.E. 99 (N.Y. 1928) and the Cardozo-Andrews split on how far liability extends. You remember that one, where a guy running for a train was helped by railroad workers and a package fell from his hands and exploded, causing a scale on the other end of the platform to fall over onto Ms. Palsgraf injuring her. Tort liability turned on how foreseeable it was that helping someone onto a train would result in injury to a different party.

In Fannon, a similarly unusual chain of events results in private property being flooded. The City installed a pipe in …

Continue Reading Alabama Palsgraffing Of Takings: Only “Ascertainable” Damage Resulting From Public Works Are Compensable

Here’s the cert petition, filed today (by the same folks who brought you Knick v. Township of Scott, 139 S. Ct. 393 (1922)), which poses this straightforward question:

Whether the “self-executing” Just Compensation Clause abrogates a State’s Eleventh Amendment immunity, allowing a property owner to sue the State for a taking of property.

Now before you pooh-pooh the notion that you can sue a State for retrospective money damages in federal court despite the Eleventh Amendment, take a read. This is a topic which we’ve been furiously researching since Knick (more on that down the road a bit), and the issue is not as clearly on the side of “no you can’t” as you might think. 

As we noted in this short post a couple of months ago, the Fifth Circuit’s opinion in Bay Point Properties, Inc. v. Mississippi Trans. Comm’n, 937 F.3d 454 (5th Cir. 2019)…

Continue Reading New Cert Petition From The Knick Team: You Can Sue A State For A Taking In Federal Court

Here are some of the stories and analysis about yesterday’s ruling by the Court of Federal Claims holding the federal government liable for a taking for the flooding following Hurricane Harvey in the Houston area:

As we wrote yesterday, this one isn’t over by a long shot, so stay tuned.Continue Reading Harvey Flood Takings Round-Up