We’re Going To End Of The Line
Well, it’s alright, even if you’re old and grey.
Well, it’s alright, you still got something to say.
Well, it’s alright, remember to live and let live.
Well, it’s alright, the best you can do is forgive.Continue Reading We’re Going To End Of The Line
Prunes And Raisins And The Cedar Point Merits Brief: “Regular And Predictable” Invasions Of Property Are Per Se Takings, Even If Not 24/7
Here’s the property owners’ Brief on the Merits in the case in which the U.S. Supreme Court is considering the nature of physical invasion takings, and how permanent a permanent intrusion must be in order to qualify for Loretto and Kaiser Aetna-ish per se treatment.
In Cedar Point Nursery v. Shiroma, 923 F.3d 524 (May 8, 2019), a 2-1 panel of the Ninth Circuit affirmed the dismissal of a complaint for failure to plausibly state a takings claim under Twombly/Iqbal. At issue was a regulation adopted by California’s Agricultural Labor Relations Board which requires agricultural employees to open their land to labor union organizers. The regulation is framed as protecting the rights of ag employees to “access by union organizers to the premises of an agricultural employer for the purpose of meeting and talking with employees and soliciting their support.”
The Ninth Circuit panel majority
New Complaint: Oregon’s Eviction Moratorium Extension Is A Taking
We would not have guessed back in March when we posted the “first” coronavirus shut down takings complaint that we’d still be at it at the end of 2020, but here we are.
The latest is this complaint filed last week in the U.S. District Court for the District of Oregon against Oregon’s governor (in her official capacity), the City of Portland, and Multnomah County, asserting that “several provisions of law, including state statutes, executive orders, and municipal ordinances that, taken together, significantly impair Plaintiffs’ rental contracts and amount to per se takings and unreasonable seizures of Plaintiffs’ property for a public purpose without just compensation.” Complaint at 2.
The laws referred to are a series of state and municipal statutes and ordinances that establish and enforce a moratorium on termination of tenancies. Rather than go into details, we recommend you read the complaint (it’s not one of those massive
Continue Reading New Complaint: Oregon’s Eviction Moratorium Extension Is A Taking
No Good Deed Goes Unpunished: Bank Has No Takings Claim Because School District Had No Obligation To Cover Borrower’s Loan
In case you weren’t already aware, Georgia law apparently distinguishes between “inverse condemnation” claims and “takings” claims.
That was not the dispositive point the Georgia Court of Appeals made in its recent opinion in HBC2018, LLC v. Paulding County School District, No. A20A1993 (Dec. 21, 2020), but we thought we’d highlight here, just because:
As a threshold matter, we note that the Bank appears to conflate an inverse condemnation claim with a takings claim. See City of Tybee Island, Ga. v. Live Oak Group, 324 Ga. App. 476, 479 (751 SE2d 123) (2013) (concluding that appellants had failed to raise an inverse condemnation claim and declining to address whether a constitutional taking claim had been raised). An inverse condemnation claim ordinarily involves affirmative government action that causes a nuisance or a trespass, which diminishes the value of private property. See Id. (no inverse condemnation claim where there was
Ariz App: “Strip And Gore” Rule Guts Inverse Condemnation Claim
A short but mildly interesting one from the Arizona Court of Appeals, Maricopa County v. Rovey, No. 1 CA-CV 190659 (Dec. 29, 2020).
The County sought to condemn portions of the Rovey land for the expansion of existing roads. The roads had been used “as public roadways for decades,” slip op. at 2, and ownership of the land on which the roads sat was disputed. The Roveys asserted they owned it in fee and the County had to pay compensation for the taking, while the County claimed it already owned an easement. All of the cases — the County’s condemnation, the Roveys’ quiet title, trespass, and inverse condemnation counterclaims, and their stand-alone claims for trespass and inverse — were consolidated.
The owners argued that application of the rule of “strips and gores” (a presumption that unless expressly otherwise noted, a conveyance of a lot adjacent to a road conveys
Continue Reading Ariz App: “Strip And Gore” Rule Guts Inverse Condemnation Claim
New Hampshire: All Public Use And Necessity Challenges Are Reviewed De Novo, Not Only For Fraud Or Gross Mistake
In New Hampshire v. Beattie, No. 2019-0460 (Nov. 19, 2020), the New Hampshire Supreme Court was presented with two alternatives about how to review a property owner’s objection to the state commission’s approval of the quick-take of land for a state highway. The owner “challenged the necessity and net-public benefit of the taking,” slip op. at 2, but did not allege fraud or gross mistake. The question the Supreme Court considered was whether such allegations are the only way to challenge public use or necessity.
One possibility, argued by the state, was that the statute authorizing the commission to determine the laying out of highways governed. This statute provides that the only appeals from the commission’s determination must be based on a claim of fraud or gross mistake. The property owner had a different take. He pointed out that the statute also noted that all acquisitions must be made “in
Light Holiday Reading: State Takings Law, And Home Rule
If you are like us, today’s kind of a slow day work-wise. Relax, watch a holiday movie, take it easy.
Us, we’re reading. Not totally frivolous, mind you. A couple of scholarly pieces we’ve been meaning to take a look at for a while. We recommend you do so also. Maybe not today (we understand if you want to take it really easy), but soon.
- First, for you takings mavens: Molly Brady’s “The Domino Effect in State Takings Law: A Response to 51 Imperfect Solutions,” which suggests that “takings law has often been marked by uniformity, rather than state-level variation and innovation—uniformity driven, in part, by the force of other states’ rules. This domino effect is the consequence of both specific features of takings doctrine and organic borrowing.” Professor Brady then offers “some tentative thoughts on why property and takings law have tended to yield homogeneity and eliminate
Continue Reading Light Holiday Reading: State Takings Law, And Home Rule
No, I Am Your Father (Christmas)
An inversecondemnation.com holiday tradition, updated.
Happy Holidays, everyone.Continue Reading No, I Am Your Father (Christmas)
Florida: You Can’t Unintentionally Abandon A Nonconforming Use
The Town of Fort Myers Beach, Florida, barred the sale of alcohol on beaches in 1995. Turns out that a beachfront business was already (legally) selling alcohol on its property at the time of the ban. And we know what that usually means: a grandfathered nonconforming use.
Today’s case from the Florida District Court of Appeal (Second District), Persaud Properties FL Investments, LLC v. Town of Fort Meyers Beach, No. 2D19-1282 (Dec. 11, 2020), is at the intersection of two of our favorite subjects, land use and inverse condemnation.
No one questioned whether Persaud possessed a nonconforming use. The issue was whether it had it abandoned it when it closed the establishment “to begin extensive renovations.”
The Town was well aware of the renovations as various construction permits had to be issued and inspections had to occur; additionally, during the renovation period, multiple stop-work orders were issued by
Continue Reading Florida: You Can’t Unintentionally Abandon A Nonconforming Use