June 2023

The New York Appellate Division’s opinion in Huntley Power, LLC v. Town of Tonawanda, No. 22-011460 (June 9, 2023), is typically short (6 pages, including a dissent).

The town instituted eminent domain proceedings to take Huntley’s riverfront property, including an electric plant decommissioned in 2016, and water intake structures. The asserted public use is “revitalizing and redeveloping the former industrial property, which was a blight on the Town, and maintaining the critical raw water supply to significant industrial employers in the Town[.]” Slip op. at 2.

That was enough for the court to “reject reject petitioner’s contention that the condemnation will not serve a public use, benefit, or purpose[.]” Id. Rational basis, and so forth.

Nor was the condemnation “excessive,” because it allegedly took more than it needed.” There’s no obvious abuse — or at least any abuse that would qualify as an abuse of discretion. Slip op. at…

Continue Reading NY App Div: OK To Condemn Blighted Property To Sell To Private Developer

Here’s the latest in an issue we’ve been following.

Let’s say the government thinks you have committed a crime (or someone else has). To investigate, it seizes property as evidence or potential evidence. But after things wrap up and it no longer needs the property as evidence, the government doesn’t return it to its owner. Taking or no taking?

Some courts say it could be a taking. Others say no.

In Jenkins v. United States, No. 22-1378 (June 28, 2023), the U.S. Court of Appeals for the Federal Circuit said maybe. Or at least it isn’t not a taking simply because the government was lawfully exercising its police power. And if there may be open questions about the whether the owner sought recovery of the property through available procedures or outright abandoned it, then a court entering summary judgment for the government isn’t right.

Most of the…

Continue Reading CAFED: Just Because The Govt Seized Property As Evidence Doesn’t Mean It Can Keep It Without Compensation

In this Order the Indiana Supreme Court declines to take up the question of when property is taken by regulation. We post it here to note the statement of Justice Slaughter, who agreed that this case isn’t the right vehicle to examine whether Indiana law should adopt a takings test different than the federal test but that he “remains open” to considering it in the right case.

So, Indiana friends, heads-up. Be sure in your next regulatory takings matter, you plead and argue both federal and Indiana takings.

Slaughter_statement

Order at 2.

Order, Duke Energy Indiana,…

Continue Reading Indiana SCT: We’re Not Going To Decide Whether Indiana’s Takings Tests Should Be The Same As Federal Tests (But We’d Like To In A Future Case)

We’re not going to dwell all that much on the California Court of Appeal’s recent opinion in Discovery Builders, Inc. v. City of Oakland, No. A164315 (June 22, 2023), mostly because it seems entirely predictable.

The developer thought it had an agreement with the city to pay certain fees (dare we say “exactions”) the city required in order to approve and provide what the court calls “project oversight.” The contract “provided that the fees set forth in the agreement satisfied ‘all of the Developer’s obligations for fees due to the City for the Project.'” Slip op. at 1. You know where this is headed, don’t you?

That’s right, eleven years later while the project was still underway, the city adopted new ordinances imposing new impact fees. When the developer sought additional building permits … no permit without paying the additional exactions. The trial court thought the contract took care…

Continue Reading Chump Alert! Developer’s Claim That City Can Be Held To Its Contract Limiting Exactions Goes About As Well As You’d Expect

One from the Louisiana Court of Appeal, 3000-3022 St. Claude Avenue, LLC v. City of New Orleans, No. 2022-CA-0813 (June 22, 2023) demonstrating that the standard of judicial review for zoning matters (rational basis) is pretty powerful.

The owner wanted to develop its New Orleans property, but first needed a zoning amendment from residential to commercial, followed by a conditional use permit for its proposed use. The city denied the request. After much procedural back-and-forth, including a trip to the court of appeal to resolve, the case was sent back to the city council to state the basis for the denial. The council held a public meeting at which it denied the rezoning, and declined to state more, including the reasons why.

So back to court the owner went. The trial court thought it had been clear enough: you were supposed to say why you denied the rezoning. Hearing…

Continue Reading Nectow Is Meaningless Because It “relies on pre-Lochner administrative review jurisprudence”

In Sterling Hotels,LLC v. McKay, No. 22-1345 (June 22, 2023) the U.S. Court of Appeals for the Sixth Circuit considered whether a hotel could sue a state elevator inspector who barred the hotel from operating its elevators for reasons the state’s Elevator Safety Board had not approved. As a result, the hotel couldn’t rent rooms on five of its six floors. 

Federal complaint — including a takings claim against the inspector in his individual capacity — followed. The district court declined to address whether the inspector had qualified immunity from the takings claim. Next stop, Sixth Circuit.

Did the inspector violate the hotel’s “clearly established constitutional rights” and thus not enjoy immunity? Nope:

Sterling next argues that McKay engaged in an unconstitutional regulatory taking when he sealed the elevators. At the time of the alleged taking, however, no court in this circuit had yet decided whether an officer could…

Continue Reading CA6: We Haven’t Already Said Individual Govt Officials Can Be Liable For Takings, So They’re Immune

Screenshot 2023-06-26 at 14-04-17 Property Rights Attorney – Pacific Legal Foundation – Virtual Office - Talent Market

Ever thought to yourself when reading a Supreme Court property rights cert petition or opinion (or three), “I wish I could do that“?

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And I found out. I joined the nation’s premiere property rights courtroom lawyers and advocates, Pacific Legal Foundation. One of the best professional decisions I ever made.

Here’s your chance. Today we posted this position opening on Talentmarket:

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You will be a litigator in PLF’s Property Rights Practice Group. From Nollan to Koontz to Knick to Cedar Point Nursery to …

Continue Reading Want To Find And Litigate The Next SCOTUS Landmark Property Rights Case? Come, Join Us

Thanks to lawprof Josh Blackman for the reminder that our un-favorite case, Penn Central Transp. Co. v. New York City, 438 U.S. 104 (1978), turned 44 today.

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If you know, you know.

Time has not treated the opinion well. Practitioners, judges, and legal scholars across the spectrum have called the three-factor Penn Central test for an ad hoc regulatory taking “demanding,” “fuzzy,” a four-part test, “neither defensible as a matter of theory nor mandated as a matter of precedent,” and “problematic” and “mysterious.” Courts mess up the basic meaning of the factors, treat what is supposed to be a fact-centric “ad hoc” test as a legal question decided on the pleadings, and gatekeep most of these cases from juries.

The definitive deconstruction of the case was Gideon Kanner’s “Making Laws and Sausages: A …

Continue Reading Sad Birthday Wishes To Penn Central – Some Things Don’t Get Better With Age

Before you get too excited by the headline and think this is a Kelo issue, a word of caution: this short one from the Oklahoma Supreme Court is on a really niche topic: private condemnations that permit the private owner of property to institute a private-benefit taking to force a neighbor to sell an interest in its property if doing so is necessary. 

Childers v. Arrowood, No. 119815 (June 20, 2023), involved whether it is proper under Oklahoma’s private taking statute for the owner of property that isn’t landlocked and can physically access the outside world but has no utility service, to condemn an easement over an adjacent parcel to obtain such service.

Until 2008, Childers’ property was landlocked. But their predecessor-in-title secured an express access easement from the owner of the neighboring property, solving that problem. But then new owners bought the dominant parcel, and want to…

Continue Reading Oklahoma: Private Necessity Takings Are OK, And Don’t Require A Public Use Or Purpose

At first, the Iowa Supreme Court’s opinion in Juckette v. Iowa Utilities Board, No. 21-1788 (June 16, 2023) looks like a promising read. The issue — is a utility expanding its use of an express road easement to install electric lines a taking? — is one that we’ve been following.

But by the time you get to the end of the short opinion (10 pages), you realize the court didn’t decide much, other than yeah, the utility has the statutory authority to use the easement this way. The court can’t reach a decision on whether that’s a taking for public use. Not because there’s some problem with the case or the way it was presented, but because one of the Justices on the seven-member court sat it out and the remaining six couldn’t agree. Affirmed by an equally divided court, 3-3. 

This apparently is not that unusual in…

Continue Reading Iowa Supreme Court Can’t Decide Much Of Anything In Power To Take Challenge