June 2019

A lot is being written about Friday’s Supreme Court opinions in Knick v. Township of Scott, No. 17-647 (U.S. June 21, 2019) (including us). Here’s a sampling. 

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Continue Reading Knick Round-Up

Kungfu

We’ll be doing a longer post with our thoughts on the U.S. Supreme Court’s landmark ruling in Knick v. Township of Scott, No. 17-647 (June 21, 2019). But here’s the big picture.

It appears that at least five Justices finally seem to understand what we in the property bar have been saying for decades – that the essence of a federal “takings” claim against a local or municipal government is that “by regulation, you have deprived my property of ‘productive use’ [as Chief Justice Roberts noted on page 14 of the slip opinion], and you have not compensated me.” So it is enough that the government hasn’t paid me, and I have no obligation to “ripen” my federal claim by chasing down the local government for compensation in state court.

So nearly 100 years after Justice Holmes famously opined for the Court in Pennsylvania Coal Co. v. Mahon, …

Continue Reading Williamson County Overruled: After Nearly A Century, Supreme Court Finally Has Figured Out What A Regulatory Takings Claim Looks Like

One does knick meme

Property lawyers, dust off your Federal Rules of Civil Procedure, and federal judges your long vacay from dealing with regulatory takings and inverse condemnation cases is over, because this just in: by a 5-4 margin (Chief Justice Roberts authored the majority opinion, with Justice Kagan writing the dissent), the U.S. Supreme Court today finally (finally!) overruled the state-litigation prong of the Williamson County ripeness doctrine. Knick v. Township of Scott, No. 17-647 (June 21, 2019).

Yes, overruled. Not trimmed around the edges. Overruled. 

Here’s what our quick skim turns up as a critical passage:

The Court in Williamson County relied on statements in our prior opinions that the Clause “does not provide or require that compensation shall be actually paid in advance of the occupancy of the land to be taken. But the owner is entitled to reasonable, certain and adequate provision for obtaining compensation” after a taking.

Continue Reading “The state-litigation requirement of Williamson County is overruled.”

Here’s what we’re reading today:

  • New Ruling In Maui Water Case Still Doesn’t Resolve Old Dispute (Honolulu Civil Beat) – about the Hawaii Intermediate Court of Appeals’ recent unpublished memorandum opinion in a long-ongoing water law fight on Maui. The long and the short of it is the court held that whether a short-term license from the State to use water (month-to-month, max one-year as the statute requires) is “temporary” or not (these licenses have been renewed for 18 years to allow the administrative process to be completed) is a factual question that can be resolved by summary judgment. Court held no. In our view, these things operate much like preliminary injunctions, which although they are temporary in nature, can stretch out for quite a long time while the wheels of justice grind. Cert application to the Hawaii SCT coming, for sure. Any guesses on which way this will come

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Continue Reading Thursday Round Up: Hawaii Water Law, “New” Property, The Edge Denied!

Here’s a case that’s pending in the New York Court of Appeals that has been briefed and is awaiting argument. 

In Natural Fuel Gas Supply Corp. v. Schueckler, No. 17-02021 (Nov. 9, 2018), the Appellate Division answered this question:

This appeal therefore presents a novel question of condemnation law: can a corporation involuntarily expropriate privately-owned land when the underlying public project cannot be lawfully constructed?

Slip op. at 1. 

The court stated it clearly: “We answer that question firmly in the negative.”

Like many projects, in order to be built this natural gas pipeline had a long and complex checklist. It needed approvals of FERC — a certificate of public convenience — under the Natural Gas Act. And certain approvals under the federal Clean Water Act. Which in turn meant it needed state enviro checkoffs, here a water quality certificate from a New York agency. It also needed to…

Continue Reading NY Court of Appeals Considering Whether A Pipeline Can Take Property For A Project That Can’t Legally Be Built

The recent opinion of the Texas Court of Appeals (First District) in University of Houston v. Jim Olive Photography, No. 01-18-00534 (June 11, 2019) addressed a fascinating (and still unsolved) question: does intellectual property qualify as “property” for purposes of the takings clause? 

The court held “no,” but that answer isn’t definitive.  

The facts of the case are pretty simple: Jim Olive took a photograph which — shame on them — the University used on its website without compensating Mr. Olive. He sued the University in a Texas state court for taking his intellectual property, seeking compensation. 

If your first instinct was to say this looks like copyright infringement, you’d be right. Problem is, copyright claims are brought in federal court. But state cannot be sued for damages there. And copyright claims are “tort-y” which means that if a copyright holder sues the state government for damages in state…

Continue Reading Public University’s Rip-Off Of Photograph Is Copyright Infringement, Not A Taking

In Cranston Police Retirees Action Committee v. City of Cranston, No. 2017-36 (June 3, 2019), the Rhode Island Supreme Court concluded that a municipal ordinance “the promulgated a ten-year suspension of the cost-of-living-adjustment (COLA) benefit for retirees of the Cranston Police Department and Cranston Fire Department who were enrolled in the City of Cranston’s pension plan” was not a taking of the pension plans’ members property.

Takings mavens should skip to page 27 of the opinion for the good stuff. First, the court assumed that the plan members possessed “property.” A COLA benefit, once vested, is property, and the parties did not challenge the trial court’s conclusion on that issue. Second, the court rejected the contention that the suspension of COLA benefits was a physical invasion or a Lucas economic wipeout. Slip op. at 30-31. This was a regulatory taking, analyzed under Penn Central‘s three-part ad hoc test.

Continue Reading RI: Ten-Year Suspension Of Pension’s COLA Adjustment Not A Penn Central Taking

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The title of this post isn’t poetic or figurative (like the windmills of your mind), it’s literal: for a field trip after the recent Oregon Eminent Domain Conference, we paid a visit to a nearby winery which — given its name, “Eminent Domaine” — we naturally could not resist. Besides, we already like their wines. 

The winery and estate vineyards are only a short drive from downtown Portland. Go past suburban Tigard (of Dolan v. City of Tigard infamy). Beyond the metro urban growth boundary. Avoid the guy living in an old jetliner parked in the woods.

Turn off the main road. 

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After leaving the pavement, you’ll end up on a gravel road which continues on just long enough for you to question whether you’ve perhaps strayed off the correct path. 

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You haven’t. You’ve just entered the Ribbon Ridge AVA, and in…

Continue Reading A Detour To The Vineyards Of Eminent Domaine

A must-read for takings mavens. Property rights gurus Professor Gideon Kanner and Michael Berger have published a new article, The Nasty, Brutish, and Short Life of Agins v. Tiburon, 50 Urb. Lawyer 1 (2019). It’s the lead article in the latest volume of The Urban Lawyer, the law journal of our Section of the ABA, the Section of State and Local Government Law.

Barista’s note: since TUL ended its long-time editorial relationship with UMKC Law School last year, the journal has been published in-house, and we’ve taken on the role of Editor-in-Chief, in-between our lawyering and teaching day jobs. We recognize the efforts of our ABA editor, as well as our team of volunteer Associate Editors (our fellow lawyers who took on the responsibility of tech editing the pieces) in producing the journal. 

Kanner and Berger have written an informative (and entertaining) tour-de-force of modern regulatory takings law. …

Continue Reading New Must-Read Article: Kanner & Berger, “The Nasty, Brutish, and Short Life of Agins v. City of Tiburon”

Our friend and colleague Dwight Merriam recently published this piece about the looming Knick v. Township of Scott decision. Yes, ripeness, and how SCOTUS will treat regulatory takings. We posted our own prognostications here (“Shaka, When The Walls Fell: Yes, Knick Will Be About Takings, But It Will Be More About Federalism“).

Awaiting ‘Knick” … Will SCOTUS Fix the Ripeness Mess?

by Dwight Merraim

The decision in an important takings case, Knick v. Township of Scott, Pennsylvania, reargued Jan. 16, is soon to be released. Be watching for it, because it could have a major impact on how governments regulate land use, and on the willingness of private property owners to challenge government regulation that overreaches. As an added bonus, we will get to see where Justice Brett Kavanaugh may position himself on property rights issues.

The issue is one of “ripeness;” specifically, whether the court should…

Continue Reading Merriam: “Awaiting ‘Knick’…Will SCOTUS Fix the Ripeness Mess?”