November 2025

A quick one from the South Dakota Supreme Court. But it is well worth your time.

In City of Sioux Falls v. Johnson Properties, LLC, No. 30945 (Nov. 19, 2025), the court upheld a trial court’s award of attorney’s fees to a property owner in an eminent domain action. The final amount of compensation exceeded the 20% threshold under South Dakota law that triggers fee shifting, and the Supreme Court concluded that even though the amount of fees awarded exceeding the “lodestar” calculation, the owner was entitled to an enhancement.

Here’s the court’s description of the critical action and numbers in the trial court:

[¶6.] Shortly before trial, the City increased its offer of compensation to
$250,000. Johnson Properties rejected the offer and the case proceeded to a three-day jury trial on the issue of just compensation. At trial, Johnson Properties’
appraiser testified that, in his opinion, the…

Continue Reading South Dakota: Eminent Domain “is a highly specialized area of law that requires skill and experience…” Meriting Attorney’s Fee Lodestar Enhancement

Check out this new (ish) cert petition which asks whether the “final decision” ripeness rule that currently governs regulatory takings cases is also applicable when the right alleged to have been violated is procedural due process.

The petition sets out how the lower federal courts have dealt with the question:

This case presents an important and recurring question that has divided the courts of appeals: whether procedural due process claims asserted in land-use disputes are subject to the same accrual rule as takings claims. Two circuits—the Second and Third—have held that they are. Five others—the Fifth, Sixth, Seventh, Ninth, and Tenth—have held they are not.

Pet. at 2. This case reverses the usual dynamic in takings cases (where generally, owners assert the claim is ripe because the government has made it clear what uses it will and won’t allow), because the Second Circuit held that the case was ripe a…

Continue Reading New Cert Petition: Are Procedural Due Process Claims Subject To The Same Ripeness Rules As Takings Claims?

In Grand v. City of University Heights, No. 24-3876 (Nov. 13, 2026), the U.S. Court of Appeals for the Sixth Circuit held that a complaint alleging a RLUIPA claim and others was not ripe because they are “land use” claims subject to Williamson County‘s final decision requirement.

A neighbor was “displeased” that Grand was using his home to hold a “shul,” which “in Hebrew refers to a synagogue or a house where prayers are held.” Slip op. at 2. The city told him to stop because his use as “a place of religious assembly” violated the zoning code (his home is zoned U-1, which doesn’t allow such uses).

Grand applied for a Special Use Permit, which would allow him to make the use as a “house of worship.” The Planning Commission had a hearing, but didn’t make a decision. It “tabled the discussion, requesting more details…

Continue Reading CA6: RLUIPA Claim Subject To Williamson County Final Decision Ripeness Because It’s A “Land Use” Issue

Euclid_front

Tomorrow, November 22, 2025 is the 99th anniversary of the day in 1926 when the United States Supreme Court issued its landmark opinion in Village of Euclid v. Ambler Realty Co., 272 U.S. 365 (Nov. 22, 1926).

You know this one (and can you call yourself a dirt lawyer if you don’t?). It’s the one in which the Supreme Court first upheld — against a facial due process challenge — the validity of this thing we now call “Euclidean zoning.”

In the intervening century, zoning has become a catch-all term for all sorts of regulatory restrictions on the uses of real property, land users know that “zoning” — ackshually — refers only to the regulation and separation of uses, restrictions on density, and height regulation. At least that’s how it began. The Euclid court concluded this was mostly nuisance prevention, so no worries. But we’d…

Continue Reading You Don’t Look A Day Over 98, Euclid

Check this out: a significant and important decision from the U.S. Court of Appeals for the Eleventh Circuit in an issue we’ve been following.

In Alford v. Walton County, No. 2021-13999 (Nov. 17, 2025), the unanimous panel concluded that the county’s Co-19 restrictions, which closed all beaches (public and private) in the county, worked a physical taking of Alford’s private property rights.

In response to the outbreak of Co-19, which the opinion notes was “a novel virus from Wuhan, China,” slip op. at 3, Florida declared a state of emergency, and followed up with an executive order that limited beach access statewide to “no more than 10 persons,” imposed a six-foot separation, among other things. Two days later, the county adopted an ordinance closing all public beaches in the county.

The following month, after the governor issued further executive orders, the county temporarily closed “[a]ll beaches” in the…

Continue Reading CA11: “[T]here is no COVID exception to the Takings Clause”

In State ex rel. Boggs v. City of Cleveland, No. 2025-Ohio-5094 (Nov. 13, 2025), the Ohio Supreme Court held that the City of Cleveland could be liable for inversely condemning land, even though that land is not in the City of Cleveland.

The city claimed that in order to be liable for inverse condemnation, it must have the authority to take the property by eminent domain. And under Ohio law, the state has only delegated to the city the power to take by eminent domain property that is within the city’s geographic boundaries. Therefore, the city argued, if we can’t affirmatively take the plaintiff’s land, we can’t be liable for inversely condemning it.

The case involves the Cleveland airport. As part of its runway expansion, airplanes would fly over adjacent properties (obviously), including properties outside the city’s jurisdiction. The city was authorized to purchase avigation easements on some…

Continue Reading Ohio: City Can Be Liable For Inverse Condemnation Of Land Outside Its Geographic Jurisdiction

There’s not a lot of new territory forged in the U.S. Court of Appeals for the Ninth Circuit’s opinion in Pena v. City of Los Angeles, No. 24-2422 (Nov. 4, 2025), holding that the city could not be liable for a taking after SWAT officers severely damaged a home in the course of apprehending a suspect who had taken refuge there.

After all, the other federal courts which have addressed the issue of whether a local government’s damaging or destroying a home in the course of apprehending a criminal suspect is a taking have all concluded no, although for a variety of reasons. Some say there’s no absolute right to exclude, with the issue turning on whether the police are acting pursuant to a valid warrant, incorporating by reference Fourth Amendment property law. Some say the owner has no expectations of exclusion of the government as a…

Continue Reading CA9: No Claim For A SWAT Taking Because There’s A Public Safety Exception To The Fifth Amendment

As we wrap up another year, it’s time to look ahead to the one event that always gets our eminent domain blood pumping: the annual ALI-CLE Eminent Domain and Land Valuation Litigation Conference. Details, including faculty list, a complete agenda, and registration information is posted here.

Now in its 43rd year, this flagship gathering remains the undisputed national hub for practitioners, academics, appraisers, and anyone else who lives and breathes property rights law. Mark your calendars for January 22-24, 2026, when we’ll convene at the JW Marriott Plant Riverside District in Savannah, Georgia. Think historic charm meets Southern hospitality, with moss-draped oaks, riverfront vibes, and enough ghost tours to inspire a dozen inverse condemnation hypotheticals. (For those of you who prefer pixels to palm trees, a live webcast option is available.)

What makes this conference indispensable? For starters, it’s the place to reconnect and talk shop with the…

Continue Reading Savannah Bound: Don’t Miss The 43rd ALI-CLE Eminent Domain & Land Valuation Litigation Conference (Jan. 22-24, 2026)

This is going to be a short post, mostly because the U.S. Court of Appeals for the Ninth Circuit’s opinion in KOGAP Ent., Inc. v. City of Medford, No 24-5268 (Nov. 13, 2025) is itself short.

Before we go further, this disclosure: this is one of ours, and our Pacific Legal Foundation colleague Brian Hodges argued the case.

It’s a three-page memorandum opinion so there’s not a lot there to sink our teeth into, and it would be faster for you to just read it yourself, rather than us explaining what it said. Short story is that the city imposed an exaction requiring KOGAP to extend a city street. The court affirmed the exaction has an “essential nexus” to KOGAP’s proposed development project, holding that the street extension was justified because the development would likely result in “more auto-oriented uses.”

But the court held that there’s no evidence that…

Continue Reading CA9: No Evidence That Exaction Was Proportional

Remember back when we reported on our 100th Anniversary visit to the property in Pittston, Pennsylvania at the center of the seminal regulatory takings case Pennsylvania Coal Co. v. Mahon, 260 U.S. 393 (1922)?

What we didn’t note was that the visit motivated us to seek approval for the placement of a roadside marker recognizing the significance of the property and the Supreme Court’s decision from the Pennsylvania Historical & Museum Commission.

We recently received word from the Commission that it has approved of a marker, which means that, at a future date to be set, the Commission will be placing one of those metal roadside marker. The Mahon marker, is one of the 45 markers approved by the Commission. These markers “commemorate significant people, places, events, and innovations … that tell the story of Pennsylvania’s rich and diverse history.”

We all know of the significance of the…

Continue Reading Landmarking A Landmark: Pennsylvania Coal v. Mahon Getting A Roadside Marker