October 2022

Earlier this month, the U.S. District Court invalidated Honolulu’s stretching of the minimum term for a residential rental from 30 days to three months, concluding that the ordinance likely violates the state Zoning Enabling Act, and also would be a taking if implemented. The court issued a preliminary injunction.

The lawyers repping the plaintiffs in that case — our former law partner Greg Kugle — appeared on Kelii Akina’s Hawaii Together (Think Tech) program to talk about it more. Check it out.Continue Reading More On Federal Court Invalidating Honolulu’s 3-Month Minimum Rental Term

October 20, 2022 was what one advocate noted was “land use day at the Ninth Circuit,” because three out of the four cases being argued in Courtroom 3 of the San Francisco courthouse were indeed land use — or perhaps more accurately, regulatory takings — cases.

Ours was one of those cases, Ralston v. San Mateo County.

Without going into too much detail, this is an appeal from the district court’s 12(b)(6) dismissal of our regulatory takings complaint. The crux of the claim is that Ralston’s R-1 zoned property is subject to an “overlay” district called the Montecito Riparian Corridor, a highly-restricted zone that allows only 5 environmental uses of land within the zone (none of which are consistent with the R-1 zoning). (Ralston’s property is labeled “076-19” on the County’s MRC map.)

Montecito Riparian Corridor

Absent some kind of special dispensation — what the County calls an “override” —…

Continue Reading CA9 Takings Ripeness Oral Arguments: Must Property Owners Secure Govt’s Agreement That Property Is Subject To Challenged Regulations Before A Court Can Review?

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Here’s one we’ve been waiting to drop, in a case we’ve been following.

Today, in Annapolis Group Inc. v. Halifax Regional Municipality, No. 39594 (Oct. 21, 2022), the Supreme Court of Canada held (and we’re translating into United States here), that to state a claim for a regulatory taking based on the government’s refusal to approve a development application consistent with the residential zoning, requires only that the plaintiff allege a taking of a beneficial interest, and does not require that the government have seized land.

Our northern friends do not label this claim a “taking” or “regulatory taking,” but use different terms: de facto expropriation or constructive appropriation, or constructive taking, or even “disguised expropriation.” You get the drift. (For the record, we really like “disguised expropriation.”)

One major difference between Canadian takings law and the U.S. approach is that Canada does not consider property rights to…

Continue Reading Oh, Canada! SCOCAN: Constructive Appropriation (Regulatory Takings) Claim Need Not Be Based On Land Acquisition; Taking Of Beneficial Interest Suffices

Been meaning to post this one for a while.

The plaintiff in Northwest Landowners Ass’n v. North Dakota, No. 20210148 (Aug. 4, 2022), challenged North Dakota’s adoption of a statute about “pore space,” which is “a cavity or void, whether natural or artificially created, in a subsurface sedimentary stratum.” Whoa.

The problematic part of the statute “allows an oil and gas operator to use subsurface port space and denies the surface owner the right to exclude others or to demand compensation for this subsurface use.” Slip op. at 2. The statute also amended the definition of “land” to exclude pore space, and barred tort claims for injection or migration of substances into pore space. Frack!

The Association sued, asserting that the statute effected a facial taking because “it strips landowner of their right to possess and use the pore space within their lands and allows the State…

Continue Reading Shades Of Mahon From North Dakota: Fracking Statute “constitutes a per se taking”

We won’t be providing our detailed thoughts on last week’s U.S. Court of Appeals for the Sixth Circuit’s opinion in Hall v. Meisner, No. 21-1700 (Oct. 13, 2022), because we’re obviously biased: our law firm colleagues Christina Martin and Kady Valois represent the prevailing property owners, so we naturally agree with the court. Thus, you should really read the opinion in its entirety yourself. But we shall offer some commentary:

  • This is another one of those “home equity theft” cases where, after foreclosing property in order to satisfy a tax or other debt, the government doesn’t remit the excess equity to the property owner, but keeps it or allows a private third-party to do so.
  • This case is a takings challenge to a Michigan county doing just that under the authority of state law. Hall owed a tax debt of $22k, and her home was worth close to $300k.

…
Continue Reading CA6: Home Equity Is Property Even If State Law Says Otherwise: Govt Can’t Foreclose To Satisfy A Tax Debt, Then Keep The Change

Many Honolulu residents don’t like short-term (less than 30 day) rentals. Whether fueled by NIMBY-ism, a genuine belief that tourists should stay out of residents’ neighborhoods and be limited to accommodations built for transients, or the belief that long-term rentals to locals somehow promote more affordable housing, the anti-transient renter vibe is most definitely there.

The no-less-than-thirty-days restriction wasn’t enough, however, and recently the City and County of Honolulu made it illegal to rent for less than three months (90 days). The ordinance stated the reasons:

Short-term rentals are disruptive to the character and fabric of our residential neighborhoods; they are inconsistent with the land uses that are intended for our residential zoned areas and increase the price of housing for O‘ahu’s resident population by removing housing stock from the for-sale and long-term rental markets. The City Council finds that any economic benefits of opening up our residential areas…

Continue Reading Federal Court: Honolulu’s 3-Month Minimum Rental Term Preempted By State Law (And Would Be A Taking Of Vested Rights)

We already know that in Rafaeli, LLC v. Oakland County, 952 N.W.2d 434 (2020), the Michigan Supreme Court held that a homeowner has a property interest in the equity in her home, and that if she fails to pay the full amount of her property taxes and the government forecloses, the government can’t keep the proceeds in excess of the amount of the tax delinquency.

But did this ruling apply retroactively to cases where the foreclosure and sale (and the government keeping the change) occurred before the Rafaeli opinion was issued? That was the issue the Michigan Court of Appeals considered in Schafer v. Kent County, No. 356908 (Sep. 22, 2022).

Long story short: yes, the Rafaeli ruling is one upholding the Michigan Constitution, and did not so much establish a new principle of law as “returned the law to that which was recognized at common law and…

Continue Reading Mich App: Supreme Court’s Takings Ruling Is Retroactive Because It Is Not A New Rule, But Returned To Common Law

That’s right: Clint Schumacher’s Eminent Domain Podcast has reached its 100th episode. Very impressive, Clint!

And for this “very special episode,” Clint was kind enough to ask us to return to celebrate. In a wide-ranging hour-plus chat, Clint and I talked property rights and takings of course, but also hit on several more philosophical subjects. If you could have coffee with any historical figure who would you choose? Pharaoh Khufu? Jack the Ripper? Winston Churchill? What person has influenced your life the most? What’s on tap for the 2023 ALI-CLE Eminent Domain and Land Valuation Litigation Conference in Austin? If you had to choose a last meal, what would it be (for me, an easy question)? Clint is a generous host (and person), so I really had a good time.

One note: Clint makes it seem seamless, but I know that the behind-the-scenes process…

Continue Reading Congratulations On Reaching The “Century” Milestone, Eminent Domain Podcast!

Now that the Supreme Court’s first arguments of this Term are in the books, you can read the transcript, or listen to the recording (mp3) (or stream it above). This is Sackett v. EPA, a case that has been to the Court before, where it unanimously held that the Sacketts could ask a court whether the government was correct when it claimed their land was covered by the Clean Water Act, and didn’t need to wait for the criminal charges shoe to drop.

Before we go on, a note that our law firm represented the Sacketts then, as we do now. So we’re not going to go into a great deal of detail, and leave it to you to check out the public commentary elsewhere.

That said, about the only thing we will comment on is the noticeable lack of owner-focused perspective in the arguments. As we…

Continue Reading SCOTUS vs WOTUS: Oral Arguments In Sackett v. EPA

Here’s a recently-filed cert petition in a pipeline case. This one asks whether an agency — here, FERC — has primary administrative jurisdiction over a facial challenge to Congress’ delegation of federal eminent domain authority to a private party. 

Here are the Questions Presented:

Whether a facial challenge to Congress’s delegation of eminent domain power to private parties is properly filed in district court, as this Court held in PennEast Pipeline Co. v. New Jersey, 141 S. Ct. 2244 (2021), or with FERC, which has admitted it has no jurisdiction to adjudicate the constitutionality of this delegation.

Whether a facial challenge to Congress’s overly broad delegation of legislative power to FERC is properly filed in district court or with FERC, which has admitted it has no jurisdiction to adjudicate the constitutionality of this delegation.

Whether a facial challenge to Congress’s delegation of eminent domain power to FERC is properly…

Continue Reading New Takings Cert Petition: Can An Agency Decide Constitutionality Of Delegation Of Federal Eminent Domain Power?