July 2021

Iin North Mill Street, LLC v. City of Aspen, No. 20-1130 (July 27, 2021), the U.S. Court of Appeals for the Tenth Circuit held that a claim that the city’s denial of a rezoning application to allow residential development effected a taking was not ripe because the city’s process also allows a property owner to ask the city to allow site-specific development even if not in conformity with the current zoning, and the plaintiff had not availed itself of this process. Thus, the takings claim was not ready for judicial review under “final decision” Williamson County ripeness.

But the really interesting part of the opinion is a footnote. See slip op. at 15 n.9. There, the court noted that it is joining the majority of other courts in holding that “final decision” ripeness is not a matter of a lack of Article III jurisdiction. Rather, it is merely a…

Continue Reading CA10 Deepens The Split: Williamson County’s “Final Decision” Requirement Is Prudential, Not Jurisdictional

Screenshot 2021-07-26 at 16-12-49 Constitutional Law Fellow Pacific Legal Foundation

Heads up, property rights law nerds: looking at a career in public interest law? Here’s your chance for a one-year gig as a Constitutional Law Fellow at Pacific Legal Foundation.

You will be a “PLF Fellow,” a one-year position for law-school graduates. You will be added to litigation teams in on-going cases, receive hands-on legal-research and legal-writing training, and study the Classical Liberal principles that guide our work. You will also be encouraged and expected to take on additional challenges, including case development and communications efforts.

You will work on teams with junior and senior attorneys, adding your skills and perspective in order to elevate our team’s ability to win important victories for liberty. You will have the latitude to think big and the resources to execute. You will be at the forefront of shaping the law for all Americans.

In a nutshell, we’re seeking a young lawyer who’s…

Continue Reading Dream Job Alert: Con Law Fellow @PacificLegal

Programming note: as we noted here, we’ve recently moved our email subscribers to a new service. If you are already subscribed to our email updates you should not need to do anything, except look for the emails coming from Feedblitz, not Feedburner. If you want to sign up for email updates anew, go here. If you experience technical issues, or receive duplicate email notifications, please let me know.

Now back to your regularly scheduled programming…

Screenshot 2021-07-26 at 09-25-52 Givens v Mountain Valley Pipeline LLC and the Unresolved Circuit Split

Be sure to take a read of an article we’ve had in our queue to read for a while: Karen Adlay, Givens v. Mountain Valley Pipeline, LLC and the Unresolved Circuit Split, 7 Tex. A. & M. J. Prop. L. 137 (2021).

Several federal courts of appeals — including the Fourth Circuit in Givens — have upheld giving prejudgment possession of property to a private pipeline condemnor once a …

Continue Reading New L Rev Article: “Givens v. Mountain Valley Pipeline, LLC and the Unresolved Circuit Split” (Tex. A. & M. J. Prop. L.)


Talk amongst yourselves.

We’ve had our say, so in this post — the sixth and final post in a series of deeper dives about June’s U.S. Supreme Court opinion in Cedar Point Nursery v. Hassid , No. 20-107 (June 23, 2021) — we’re linking to what others are saying about the case.

Here are all of the posts in our Cedar Point series:

And in case you missed the live webcast on Friday, July 16, 2021 that featured expert analysis of the case, please don’t miss listening to the recording of ALI-CLE’s “Takings and Eminent Domain After Cedar Point: What Practitioners …

Continue Reading Cedar Point Part VI: What Others Are Saying

We don’t have our own regular podcast (should we?) but have had the privilege of appearing on others’ podcasts, and have posted our own audio from time-to-time. Here’s a list:

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Continue Reading Podcasts

Screenshot 2021-07-23 at 17-02-01 Subscribe to inversecondemnation com

A note for those of you who subscribe to the blog for email updates and notifications. Our longstanding email feed distributor, Feedburner (by Google) has announced that it is spinning down, and will no longer provide subscriptions and updates to blogs by email.

As a consequence, as of today, Friday, July 23, 201, we’ve migrated our email subscribers to Feedblitz.

For those of you who already receive email updates, you should not need to do anything to continue to receive our updates (although you may need to ensure that the inbound emails are not routed to your Junk Mail or spam folder — look for the email sender “inversecondemnation@outlook.com” or “Feedblitz” if you are not receiving the updates as expected). Drop me a line if you need any help.

Only if you are wanting to add a new email recipient, do you need…

Continue Reading Admin Note For Email & RSS Subscribers: Feedburner Is Dead – Long Live Feedblitz

In this post — the fifth and penultimate post in a series of deeper dives that we’re posting about June’s U.S. Supreme Court opinion in Cedar Point Nursery v. Hassid, No. 20-107 (June 23, 2021) — we’ll be trying to take some educated guesses about what the decision means for the future.

Here are all of the posts in our Cedar Point series:

And in case you missed the live webcast on Friday, July 16, 2021 that featured expert analysis of the case, please don’t miss listening to the recording of ALI-CLE’s “Takings and Eminent Domain After Cedar Point: What …

Continue Reading Cedar Point Part V: Help Us Help You

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Here’s one we’re now following, thanks to a heads-up from a northern colleague.

The Supreme Court of Canada has granted leave to appeal in a case involving what Canadian law calls “de facto expropriation” (what we’d call “regulatory takings”).

Before you review the Application for Leave to Appeal by the property owner, and the responsive memorandum for the government, recall that even though Canada’s approach to “takings” is not a constitutional question, but nonetheless like the southern version of the doctrine, focuses on whether some government act has the effect of acquiring from the owner a beneficial interest, or removed all reasonable uses. See Canadian Pacific Railway v. Vancouver (City), 1 S.C.R. 227, 2006 SCC 5 (2006).

In Annapolis Group Inc v. Halifax Regional Municipality, the Supreme Court will consider whether Halifax’s refusal to approve Annapolis’ development applications (consistent with its residential zoning, more specifically “future serviced …

Continue Reading Canada Supreme Court To Review De Facto Expropriation (aka Regulatory Takings) Case

The State of New York needed a strip of the owner’s property for a “greenway” for walkers and bikers. The State and the owner agreed that if the owner believed that the advance payment of $300k was not enough, it could ask the Court of Claims for more. But they also agreed that if that court concluded the amount for the taking was less than advance payment, the owner would owe the State the difference, plus interest.

After trial, the claims court concluded that the advance payment exceeded the amount of compensation owed — indeed, was below the range of values testified to by each side’s expert — and the owner thus owed the State in the neighborhood of $18k. 

In Elpa Builders, Inc. v. State of New York, No. D66949 (July 14, 2021), the Appellate Division (Second Department) made typically short work of the owner’s claim that the…

Continue Reading NY App Div: If Deposit Exceeds Adjudicated Compensation, Owner May Be Liable To Pay The Difference

We’re not going to pretend that we can actually read what the Supreme Court of Puerto Rico’s opinion in Administración de Terrenos de Puerto Rico v. Ponce Bayland Enterprises, Inc., No. CC-2019-212 (June 29, 2021) says. It’s in Spanish and we don’t know Spanish. Wish we did, truly.

But hey, that’s what Google Translate is for, right? And if that service can be believed, here’s what the summary of the case roughs out to:

Compulsory Expropriation – The Expropriation Chamber of the Court of First Instance has jurisdiction to consider evidence of environmental pollution and the costs of remedying it in forced expropriation lawsuits to determine the market value of the expropriated property at the time of seizure. The admissibility of evidence about contamination and the costs of remedying it is subject to the provisions of the Rules of Evidence.

We’re not posting the case because the opinion raises…

Continue Reading El Tribunal Supremo De Puerto Rico: Evidence Of Environmental Contamination Is Admissible In Eminent Domain Valuation