April 2020

What do you think of when you think of south Florida? Beaches? Jai Alai? Cuba Libre? Crockett and Tubbs and a career in southern law enforcement? 

Well, it better not be dog racing. Because by an amendment to the Florida Constitution (Amendment 13), the people of Florida banned it. Well, wagering on dog racing, technically. You can, apparently, still race dogs just for dog s**t and giggles.

Well, after the ban, the inevitable takings claim arrived, like the tail wagging the dog. In this Order, the U.S. District Court for the Northern District of Florida, dismissed the complaint for failure to state a claim. The court held the plaintiffs had standing, and the case was ripe and wasn’t barred by the 11th Amendment for some of the defendants. 

But naturally, we focused on the takings analysis. First, the court agreed with the …

Continue Reading A Little Preview Of How Courts Are Going To Misapply Takings Analysis In Shutdown Cases – Federal Court: No Taking For Outlawing Dog Racing

If you were thinking of teeing up a case “just so” for Supreme Court review, what does your fevered quill-pen dream checklist look like? Well, here’s some of the usual things that are good indicators:

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Continue Reading Your Takings Cert Petition Checklist: Ninth Circuit, En Banc Denial, Concurral, Dissental, Circuit Split, PLF

That was fast: the very first (as far as we can tell) case challenging the various coronavirus shutdown orders has reached the Supreme Court. See here, here, here and here, for other cases. 

This is the Pennsylvania case we wrote about a couple of weeks ago. The one where where “Friends of Danny Devito” (no, not that Danny Devito) sued the Pennsylvania governor challenging shut down orders under a variety of theories. Including a takings claim, of course. The court rejected the takings claim, mostly relying on Tahoe-Sierra.  

The losing plaintiffs have now asked SCOTUS to stay enforcement while they prepare and file a cert petition. 

Here are the key parts, previewing the takings argument on the merits:

14. A Concurring and Dissenting Opinion written by the Chief Justice of the Supreme Court of Pennsylvania and signed by two other justices expressed…

Continue Reading Tahoe-Sierra “Temporary” Moratoria Takings Front-and-Center Of First Shutdown Case To Reach SCOTUS

The town grabs, then sells property for failure to pay property taxes. The sales price is more than the tax lien. Does the town have an obligation to give the owner the difference, or can it keep it unless the owner sues?

Thanks to a colleague who sent us the case, we know that was the issue facing the New Hampshire Supreme Court in Polonsky v. Town of Bedford, No. 2019-0339 (Apr. 24, 2020). Short story: yes, the town needs to affirmatively give the extra money back, and no, the town can’t keep it unless and until the owner sues to get it. To read the statutory scheme otherwise would result in an unconstitutional taking.

Check it out (quick read, only 13 pages). 

A couple of notes:

  • The owner asserted his rights under part I, article 12 of the New Hampshire Constitution (“no part of a man’s property shall

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Continue Reading NH: Govt Keeping Excess Proceeds Of Tax Sale Is A Taking

As we understand it, at some of our leading law schools the basic Property course is no longer a required 1L course. It’s an elective. Quelle horreur! 

We think that’s a bad idea. Our Property I course (a 4-credit one-semester monster) is where we learned about things like treasure trove (finders, keepers – losers, weepers), fee tail, and the dreaded Rule Against Perpetuities from the venerable Allan F. Smith. It’s also where we first learned of vested rights and zoning estoppel. Thank you Professor Smith. What a shame it would have been had we not been required to take that course where we learned so much about the vibe of the law (not just property law). 

Hawaii’s vested rights and estoppel rules as developed over the years by the courts are based on constitutional and equitable principles: if someone receives “official assurances” from a government official…

Continue Reading How Property Law Helped To Save Hawaii’s Mother’s Day

If you missed the three-and-a-half hours (!) of this morning’s teleconferenced oral argument of the en banc U.S. Court of Appeals for the D.C. Circuit in a case we’ve been following (along with a related case), well, you are in luck. There are multiple ways to listen in. You can stream it from YouTube above. you can stream it below, or you can download the mp3 from the court’s website. Whatever way you choose, you should do so. 

This is the case that reminded us of Samuel Beckett’s classic absurdist play, Waiting for Godot. Two guys spend the entire time waiting for another guy (you know who) to show up, but he never does. There are nearly endless interpretations of its meaning (if any), but everyone pretty much agrees that it is at least about the nature of life and its existential meaningless, while both characters and the…

Continue Reading DC Cir (En Banc) Hears 3.5 Hours Of Oral Argument In Pipeline Public Use Challenge To FERC’s “Waiting for Godot” Process

On one hand, there’s a lot going on in the Maryland Court of Appeal’s opinion in Maryland Reclamation Assoc, Inc. v. Harford County, No. 52 (Apr. 24, 2020), a case we’ve been following. The opinion is a whopping 81 pages, and details facts that go back decades. On the other hand, the opinion doesn’t actually say a lot. 

But what it does say is a doozy.

Here’s your BLUF (Bottom Line(s) Up Front):

  • Maryland agencies have jurisdiction to consider and rule on state constitutional issues including takings. Apparently, this is not something the court adopted in this case, but is a long-standing practice in Maryland. Count us as very surprised that agencies have the power to adjudicate constitutional rights. Very, very surprised.  
  • A property owner must raise their Maryland Constitution takings claim and present it for adjudication to very agency accused of taking property without compensation. 
  • The property

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Continue Reading Maryland Resurrects California’s Agins Rule: Owner Must Seek Agency Variance, Which If Granted, Means “owner no longer has a takings claim and the right to alternative relief in the form of just compensation”

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CHALLENGE: find the “damage” on the Loretto building

Here’s the amicus brief filed today by Pacific Legal Foundation that urges the Supreme Court to grant our cert petition in a case that asks:

To constitute a taking under the Fifth and Fourteenth Amendments, must a physical invasion also destroy or substantially impair an owner’s economically beneficial uses of property?

Yes, takings mavens, we’re talking Loretto and related. (If you want to see the truly “de minimis” invasion — and no damage — that resulted in Justice Marshall in that case concluding that the Takings Clause imposes a “categorical duty” to provide compensation for physical invasions, check out some recent photos of the Loretto building on Manhattan’s Upper West Side.)

Here’s the amicus brief’s Summary of Argument:

The Fritzes’ petition for a writ of certiorari raises an important question concerning the protections provided by the Takings Clause of the Fifth Amendment…

Continue Reading New SCOTUS Amicus Brief Highlights Govt’s “Categorical Duty” To Compensate, Even Without Substantial Damage To Remainder

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As any takings lawyer can tell you, ad hoc rules and non-exhaustive lists of “factors” a fact-finder considers can be seductive. After all, shouldn’t the outcome of a case turn on its particular facts? Who could argue with that?

The problem lies when those factors are applied in a way that seems more like one of the very bright-line rules that a list of factors is meant to avoid. For example, in the takings context, we see the “polestar” Penn Central ad hoc regulatory taking three-factor test being applied most consistently as a one-strike-and-your’re-out test that (almost invariably) means the property owner loses. In theory, it might make some sense, but in practice it has become more like a per se rule: you lose, property owner. That isn’t truly a “case-by-case” analysis. 

Now, in takings that may be by design — you at least can see why the Supreme Court…

Continue Reading We’re All Ad Hoccers Now: SCOTUS Penn Centralizes The Clean Water Act (“From” Is Too Hard To Define, So Here’s A List Of Factors)

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There’s still time to join us tomorrow, Friday, April 24, 2020 at 2-3pm Eastern Time, they will be presenting “Strategies for Litigating Regulatory Taking Cases” in a webinar produced by ALI-CLE. Register here (multiple attendee discounts available). 

At the recent ALI-CLE Eminent Domain and Land Valuation Litigation Conference in Nashville, our colleagues, New York’s Jon Houghton and Hawaii’s Dave Day presented a very informative program on litigating regulatory takings cases. Jon is a property owner-side lawyer, while Dave is a Deputy Attorney General who represents the State of Hawaii in such cases. So it was a practical and balanced presentation. Jon and Dave are taking it to the next level. This isn’t simply a repeat of their Nashville program, but they will be exploring in more detail the practicalities of building and defending these difficult cases. 

Here’s the description of the program:

The U.S. Constitution provides that…

Continue Reading Still Time To Join Us (Tomorrow): ALI-CLE Webinar – Strategies for Litigating Regulatory Taking Cases