December 2023

As 2023 comes to a close, here are a few of the decisions that we wanted to blog about, but didn’t have the time.

  • Bruce v. Ogden City Corp., No. 22-4114 (10th Cir. Dec. 1, 2023): city demolishing a building that was damaged by fire was not a Lucas taking because the owner still has use of the land (even though the building is gone). And no Penn Central taking because… Penn Central.
  • Moriarity v. Indiana, No. 22A-PL-2899 (Ind. Ct. App. Nov. 15, 2023): State ordering removal of illegal dam was not a taking under U.S. or Indiana Constitution. The owners don’t have a property right to build an illegal dam. Thus, the “background principles” exception to Lucas rules the day. And no Penn Central taking because the owners never had any investment-backed expectations they could build this dam.
  • Lafayette Bollinger Dev., LLC v. Town of

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Continue Reading 2023 Year-End Clean Up

Here are the cases that Michael Berger and I discussed in today’s presentation to the ABA State and Local Government Law Section’s Land Use group. It was good seeing everyone, even virtually:

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Continue Reading Cases And Links From Today’s ABA State & Local Govt Law Land Use Presentation

Screenshot 2023-12-26 at 07-40-26 “to protect all the essential elements of ownership ” Late Nineteenth Century Emergence of the Regulatory Takings Doctrine

A must-read from Professor James Ely, “to protect all the essential elements of ownership:” Late Nineteenth Century Emergence of the Regulatory Takings Doctrine, 13 Brigham-Kanner Prop. Rts. J. ___ (forthcoming 2024).

Professor Ely, who presented this paper at the recent Brigham-Kanner Property Rights Conference, lays out the case that the regulatory takings doctrine didn’t suddenly spring from the mind of Justice Holmes in Pennsylvania Coal Co. v. Mahon, but “the doctrine of regulatory takings began to take shape in the last decades of the nineteenth century[.]”

Here’s the abstract:

This article examines the gradual emergence of the regulatory takings doctrine in the years between the end of the Civil War and the decision in Pennsylvania Coal v Mahon (1922). It is often asserted that the takings clause of the 5th Amendment, and its state counterparts, were understood to cover only appropriation of title and physical invasion…

Continue Reading Professor Ely: Regulatory Takings Didn’t Begin With Pennsylvania Coal v. Mahon

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The place hasn’t changed that much since 1980, has it?

As you know, the legendary Gideon Kanner left us in November. The tributes continue to be published. You’ve no doubt seen our remembrance of Professor K, as well as this one from Southern California Appellate News, this memorial from Loyola Law, our colleague Charles McFarland’s thoughts, and Professor Kanner’s colleagues at the Owners Counsel of America.

Or maybe you’ve read his final law journal article, or listened to his final media appearance on the Bound by Oath podcast.

But one of the ways we’re remembering Gideon is by listening to the recording of his U.S. Supreme Court oral arguments in Agins v. City of Tiburon, 447 U.S. 255 (1980) (stream it above, or listen at Oyez here). Professor Kanner at his full-throated best!

Argued in the spring of 1980 and decided two…

Continue Reading Listen: Gideon Kanner’s Oral Arguments, Agins v. City of Tiburon (Apr. 15, 1980)

Here’s the latest in a case we’ve been following.

In this Order, the U.S. District Court for the District of Hawaii made permanent its earlier ruling that Honolulu’s ordinance which expanded the minimum rental term to 90 days because it did not account for those owners who were already legally renting their properties for 30 days. The state Zoning Enabling Act requires zoning ordinances account for preexisting uses.

We covered the issues and the court’s preliminary injunction ruling here, and won’t go over those again. About the only difference between that one and this one is that the court rejects the City’s “several new legal arguments[,]” including Pullman abstention, and the claim that this isn’t a zoning ordinance covered by the ZEA, but rather a “rental regulation.” See slip op. at 10.

The City’s attempt to reframe the issue first presented during preliminary injunction proceedings more than a…

Continue Reading Hawaii Federal Court: Honolulu Can’t Increase Minimum Rental Term To 90 Days Without Accommodating Existing Uses

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Starting in January, we’ll be helping our friend and former law partner Mark M. Murakami with the venerated and oh-so-important Land Use course (Law 580) at the University of Hawaii’s Law School.

We’re temporarily stepping into some mighty big slippers (this is Hawaii, so we don’t always wear shoes), as this is the course that our mentor Professor David Callies taught for decades. And is there a better venue in which to teach and study land use law and regulation, and its limits? After all, Hawaii may be the most heavily-regulated land on the planet, and is a focal point for every issue you can think of, from zoning to environmental restrictions to takings to public trust to subdivision to admin law to … well, you get the drift.

We’ll cover those topics, as well as the fundamentals. And we have a few surprises up our sleeves — some impressive…

Continue Reading Hawaii Five-80: More Land Use (Law 580) At The University Of Hawaii

We’ve been eagerly waiting for the new season of the Institute for Justice’s podcast series, “Bound by Oath” to drop. Not only because it’s a great series – produced by John Ross, it is more like an audio documentary than a typical podcast – but also because John was kind enough to ask us to participate again (our last appearance was in Season 1, where we guested on the episode about the origins of the “incorporation” doctrine).

This season is all about property rights, and episode 2 is all about regulatory takings. Pennsylvania Coal Co. v. Mahon, and Penn Central Transp. Co. v. New York City, to be exact.

So just over a year ago, John and I headed up to anthracite coal country in Pennsylvania. We wanted to be on site on the exact 100th anniversary of the Supreme Court issuing the Mahon…
Continue Reading “Groping in a Fog” – Bound by Oath Podcast, S3 E2: Regulatory Takings – Penn Coal And Penn Central … Unplugged!

Too busy writing those briefs and writs, and haven’t found the time to hit your local store or the interwebs and fulfill your seasonal duties? Or maybe you just have gifter’s block about an appropriate present for the dirt lawyer in your life this holiday season.

Well, you could go the Charlie Brown route and give your kindred a bag of rocks, or the old reliable origami boulders (see below). But you are better than that and want to be a good gifter, no?

So here are our modest suggestions for some last-minute gifts to show your loved ones how much you really care. (Suggest your own in the comments below.)

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A Lump of Genuine Pennsylvania Coal. First up is the classic lump of coal. But in our case a lump of Pennsylvania Coal (I see what you did there). Anthracite, not bituminous, of course.

 

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Continue Reading Our (Last-Minute) 2023 Holiday Dirt Lawyer Gift Guide

You might not think that the principle of law the Louisiana Court of Appeal (Fourth Circuit) enunciated in Watson Memorial Spiritual Temple of Christ v. Korban, No. 2023-CA-0293 (Dec. 13, 2023) is really in need of enunciating: if the government takes property, the property owner is entitled to just compensation. Entitled, as in the condemnor must pay.

But apparently, that principle isn’t all that obvious. At least in Louisiana. As readers of this blog understand, you can get a final judgment for inverse condemnation from a Louisiana court, but the defendant/taker retains the discretion whether to actually pay it, and the usual judgment-enforcement procedures are not available. In short, the “requirement” to pay just compensation is more of a suggestion than an actual requirement.

That’s what happened here. Property owners obtained just compensation judgments against the Sewerage and Water Board of New Orleans. The judgment withstood the SWB’s…

Continue Reading Fieri Facias: You Take, You Pay – Providing Just Compensation After A Taking Is A Ministerial Duty

You remember that longstanding trope: that matters of land use are “local” issues, and thus in civil rights claims involving a state or local government interfering with the right of property federal courts should avoid adjudication until the government has had every chance to do the right thing (even where it is patently obvious that it has no intention of doing so)? This trope most often shows up as a part of a ripeness dismissal, where the court says “too soon,” because, well, if given enough time and opportunity, the government might render adjudication unnecessary.

Well, in Ateres Bais Yaakov Academy of Rockland v. Town of Clarkstown, No. 22-1741 (Dec. 8, 2023), the U.S. Court of Appeals for the Second Circuit held a land use case ripe, and in the process blew up this overripe trope. Whoa!

But before you takings mavens get too excited, this is a RLUIPA…

Continue Reading “Super-Zoning Board” No More – CA2 Busts The “Land Use Is Local” Trope: Town ZBA Doing Nothing On Variance Application Ripened Constitutional Claim