April 2025

There’s a lot of detailed legal analysis in the Pennsylvania Supreme Court (Eastern District)’s opinion in Pignetti v. Pennsylvania, No. J-11A-2024 (Apr. 25, 2025). But in the end it boiled down to a simple concept.

The case was about what property constituted the larger parcel. As the court put it, where “the condemnation of one parcel may affect the use and the value of another to such an extent that the two parcels should be valued as one.” Slip op. at 1-2 (footnote omitted). In Pennsylvania, they apparently call this “plottage,” but the analysis is familiar. (Think “three unities” — or some combination thereof.)

The Pennsylvania Legislature codified what in a lot of other jurisdictions is a common law doctrine. The statute provides:

Where all or a part of several contiguous tracts in substantially identical ownership is condemned or a part of several noncontiguous tracts in substantially identical ownership…

Continue Reading Pennsylvania: “Used Together” In Larger Parcel Statute Means “One Purpose”

The California Supreme Court has agreed to review and resolve a lower (California) court split regarding the standard of review a court should apply in challenges to a government taking of a privately-owned public utility.

In Town of Apple Valley v. Apple Valley Ranchos Water, No. E078348M (Feb. 13, 2025), the California Court of Appeal held that when a privately-owner public utility objects under the California Eminent Domain Code to the public use of a governmental takeover of the utility, the court must review the Resolution of Necessity with extreme deference (gross abuse of discretion). This means the reviewing court starts off with the presumption that the resolution is valid and its conclusions are true, and that no additional evidence may be considered to counter that conclusion.

One other Court of Appeal held otherwise, and the California Supreme Court agreed to resolve the divergence of analysis. Here’s…

Continue Reading Cal Supreme Court Reviewing Necessity Challenge To Public Utility Takeover

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Check out the new report by our Pacific Legal Foundation colleagues Kyle Sweetland and Brian Hodges, “How to Protect Property Rights from Improperly Assessed Exactions” (Apr. 2025).

This research in brief shows how exactions grew and increased home construction costs over a 16-year period. It provides a history of exactions, showing how they have frequently moved away from their original impact-mitigation purpose and how that shift in purpose risks violating the Constitution. It illustrates an improperly assessed exaction and provides examples of how exactions have hampered construction during the present housing crisis. It concludes by examining how state legislatures can help set boundaries on local exactions and protect property rights.

It’s short, its sweet, it’s straightforward and understandable. What more could you want? Oh yeah, unlike exactions … it’s free. No strings attached. Check it out.

Sweetland & Hodges, How to Protect Property Rights from Improperly Assessed Continue Reading New Report: “How to Protect Property Rights from Improperly Assessed Exactions” (Sweetland & Hodges)

We’ve had this one in our queue for a bit, but it seems now is a good time to lay out the U.S. Court of Appeals for the Sixth Circuit’s opinion in McIntosh v. Madisonville, No. 24-5383 (Jan. 21, 2025). After all, the Due Process Clause seems to be in the news a lot lately, and this case explains what process is due property owners before they are deprived of that property.

Here’s the story. The city, after a code enforcement officer’s inspection (responding to a tenant complaint) declared that one of McIntosh’s mobile homes had mold and deemed it unsafe and unsalvageable. Letter followed notifying the owner of the city’s condemnation of the property, advising him that he had 30 days to submit plans for getting things in order, or else the city was going to tear it down. The city also put notice on the property itself.

Continue Reading CA6: The Predeprivation Hearing Required By Due Process Can’t Just Exist On Paper (And An Informal, And Possibly Made-Up Chance To Negotiate Isn’t Enough)

The key quote from the Illinois Appellate Court’s recent opinion in Robinson v. City of Chicago, No. 1-23-2174 (Mar. 24, 2025), in which a property owner challenged the inclusion of his property in a new Chicago historic preservation district? This seemingly innocuous sentence setting out the standard of review:

The plaintiff acknowledges that his substantive due process and equal protection challenges to the ordinance designating the District as a Chicago landmark are subject to rational basis review.

Slip op. at 13.

Those of you for whom this ain’t your first rodeo know that rational basis review (aka aliens might have done it) being invoked isn’t a good sign for a challenger. It nearly always tells the challenger “you lose, no matter what.” And here, that prediction plays out: the court rejected the property owner’s arguments that the city’s designation of his small neighborhood — a neighborhood that…

Continue Reading Who Cares Your “Evidence” Shows This Is Just An Old Part Of Chicago – All That Matters Is The City Says It’s Historic

Check out the U.S. Court of Appeals for the Sixth Circuit’s opinion in Howard v. Macomb County, No. 24-1655 (Mar. 28, 2025).

This is one of those post-Tyler cases asking whether the government satisfies the Fifth Amendment after it has taken someone’s home equity by satisfying the owner’s tax debt and then keeping the excess. Hold on, didn’t the unanimous Supreme Court in Tyler say no, that violates the Takings Clause?

Well yes. You remember the “render unto Caesar” thing, and the “bank robber giving back the money” thing. So there’s a taking without compensation — and thus a violation of the Takings Clause — the moment the government keeps what it is not supposed to keep. But Tyler also referred to an earlier case, Nelson v. City of New York, 352 U.S. 103 (1956), which has been read to get the government off the hook if it…

Continue Reading CA6: Property Owner Needs To Exhaust State Remedies Before Filing Takings Claim

The question in today’s case is an old one: can you own wild animals?

In Texas Parks & Wildlife Dep’t v. RW Trophy Ranch, Ltd., No. 15-24-00112-CV (Apr. 10, 2025), the Texas Court of Appeals said no. At least not when that wild animal is a white-tailed deer.

Here are the facts. Generally, you can’t possess a white tailed deer in Texas. (We bet you can hunt ’em. But you can’t, like, domesticate them.) But there are exceptions to that general rule. One of these exceptions allows you to obtain a breeder permit, by which you can keep breeder deer in captivity for propagation purposes. The Ranch is such a deer breeding facility.

But white-tailed deer in Texas — and elsewhere — are susceptible to a disease that sounds truly horrible: Chronic Wasting Disease, “a type of transmissible spongiform encephalopathy[.]” Slip op. at 2. One of…

Continue Reading Deer Me! No Property Interest In Deer, Even If You Possess Them

Even if the world were open today, the doors to most Hawaii state, county, and city offices would still be locked. Because Friday, April 18, 2025 is the day that Hawaii celebrates Good Friday.

Yes, Good Friday is an an official state-sanctioned holiday in the 808 area code, so we’re reposting our annual recounting of how it came to be that the State commemorates the date of the crucifixion, and how that squares with the Establishment Clause of the First Amendment. 

Turns out that we don’t really commemorate Good Friday as the crucifixion date, and it is just coincidence that the official State “spring holiday” occurs on the same day. (And this being Hawaii, in the end it’s really a public worker union thing like a lot of things.)

Good Friday is a legal holiday in the State of Hawaii pursuant to Haw. Rev. Stat. § 8-1.

Continue Reading Today Is Hawaii’s Secular Good Friday Holiday (Go Shopping!) – What’s Up With That?

Here’s the latest cert petition from the desk of Michael Berger,  a property rights case with an equal protection element. 

Demarest wanted to subdivide. Not that big a deal, right? Well, apparently it was. The Petition alleges that the Town had a burr under its saddle about the guy for a while, going back to when he purchased the property and built a home there more than 20 years ago, and had not treated him well, or fairly. Then, as the Petition notes, he “was vocal about his treatment by the Town.” Pet. at 5. We know how being that way endears one to the government, right?  As the Petition puts it:

Here, Mr. Demarest was vocal about his treatment by the Town. In consequence, the Town took the actions noted above to isolate his property from the general system of roads in the area. The Town removed…

Continue Reading New Cert Petition (Michael Berger): Pleading Class-Of-One Equal Protection Claims

Check out the U.S. Court of Appeals for the Tenth Circuit’s recent opinion in Knellinger v. Young, No. 23-1018 (Apr. 11, 2025). 

It’s worth reading because the court doesn’t fall into the common trap of concluding that although an owner need not exhaust administrative remedies before asserting a takings claim, he nonetheless doesn’t have “private property” because … he hasn’t exhausted administrative remedies to get his property returned. As the court summed it up:

[The owners] … argu[e] that they alleged facts sufficient to state a claim that Colorado took their property for public use without just compensation. We agree. Property owners who plausibly allege that Colorado has taken custody of their property under RUUPA, and used it for public purposes, need not file administrative claims with Colorado before they may sue for just compensation. The moment a state takes private property for public use without just compensation, a…

Continue Reading CA10: Takings Clause Means Never Having To Administratively Ask To Get Your Property Back