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What’s going on in the Sixth Circuit? First, there was this opinion in Howard v. Macomb County, which in our view really missed the Knick vibe and resurrected the overruled Williamson County “state procedures” requirement.

Now there’s a doubling down, OPV  Partners, LLC v. City of Lansing, No. 24-2035 (July 9, 2025). Unpublished, most likely because it doesn’t add anything new to an existing existing circuit split, and relies on Howard. Neither OPV nor Howard uses the word “exhaustion” or even mentions Williamson County or worse yet, Knick. Nor do they mention administrative remedies. But that’s sure what it looks like to us.

The issue in OPV was whether the city is liable for, inter alia, taking OPV’s private property by denying a certificate of occupancy for residential units that OPV rented. The city had flagged these units for maintenance problems and hit them with “pink”…

Continue Reading CA6 Adds To Williamson County Resurrection: You “Forfeit” Your Takings Claim When You Don’t Exhaust Administrative Procedures To Ask For Compensation

The bottom-line holding in the U.S. Court of Appeals’ recent opinion in Appalachian Voices v. Fed. Energy Reg. Comm’n, No. 24-1094 (June 6, 2025), that FERC was ok when it allowed a pipeline company an extension of time to complete the project isn’t all that surprising. And indeed, it isn’t all that interesting except to you FERC nerds. And were the court to have stopped there, we likely would not have posted this one.

But do yourself a favor and skip the majority opinion (unless, of course, you are a FERC nerd, then by all means don’t skip it), and check out the concurring opinion. Scroll all the way to page 24 of the pdf, where Judge Henderson sums up well the vibe in this case and other similar challenges to not just pipelines, but to pretty much everything.

We have labels for these type of objections, from NIMBY…

Continue Reading Death By A Thousand Days: The Courts “have enabled interest groups to transform the bench into a tool to stymie any new development. It is long past time to correct our mistake.”

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)

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

Nothing to do with the case, beyond the owner’s name.
But c’mon, its ABBA.

Ms. Money and her spouse own a home in San Marcos, Texas. That home is in a historic district.

But it turns out that some of that history isn’t pretty: one of the previous owners was “notoriously associated with the Ku Klux Klan.” Yikes. And to make it worse, that owner, a certain Frank Zimmerman, branded the home by installing a Juliet balcony with a big ol’ wrought iron “Z” on the front of the house.

Very understandably, once they found out this detail (after they purchased the home), Ms. Money and her spouse wanted the Z gone. First the good news: although the home is in a historic district, the structure itself isn’t historic. So there’s that. But game not over, because even though it isn’t historic, the home nonetheless…

Continue Reading Show Me The Money: Reg Takings Claim Ripe Because City Made Its Decision Even If Owner Could Have Administratively Appealed

20180720_150853_HDR
The only courthouse we know where the Supreme Court
is below the Court of Appeals (SJC on the second floor,
appellate court on the third)

A brief one from the Supreme Judicial Court of Massachusetts.

In Attorney General v. Town of Milton, No. SJC-13580 (Jan. 8, 2025), the court rejected a challenge to a state statue which allowed the Massachusetts Bay Transportation Authority, the public transit authority in the Boston area, to require municipalities which access the T loosen their zoning regimes to “provide for at least one district of multifamily housing ‘as of right’ near their local MTBA facilities.” Slip op. at 3. One town declined to do so, and the state AG sued to enforce the statute.

The town responded by challenging the statute’s validity and the AG’s authority to sue to enforce it. Yes on both counts held the SJC. But (and there’s a…

Continue Reading Mass SJC: State Requiring Municipalities To Adopt Multi-Family Zoning Is Enforceable By AG…But

The facts in D.A. Realestate Inv., LLC v. City of Norfolk, No. 23-1863 (Jan. 16, 2025), a recent decision from the U.S. Court of Appeals for the Fourth Circuit, are fairly sympathetic. And the opinion starts off with a tantalizing quote:

In 1761, Massachusetts lawyer James Otis exclaimed “one of the most essential branches of English liberty is the freedom of one’s house. A man’s house is his castle.” John Adams’s Reconstruction of Otis’s Speech in the Writs of Assistance Case, in Collected Political Writings of James Otis 12–13 (Richard Samuelson, ed. 2015). American law has embraced that principle since our nation’s founding. U.S. Const. amend. V. But we have also long recognized that “all property in this country is held under the implied obligation that the owner’s use of it shall not be injurious to the community.” Mugler v. Kansas, 123 U.S. 623, 665 (1887).

Slip op.

Continue Reading CA4: Challenge Public Use/Pretext Under Due Process And § 1983, Not Inverse

Check out the opinion of the Court of Federal Claims in Nix v. United States, No. 23-704C (Dec. 11, 2024). Fascinating stuff.

We post it here not because it breaks new ground, but due to the subject matter of the lawsuit: the alleged taking of a film that captures (in part) the assassination of President Kennedy in 1963.

No, this isn’t the famous Zapruder film, which was also the subject of a well-known takings claim. This case involved the “Nix film,” taken that fateful day “from an angle opposite the more famous Zapruder film. The Nix film thus captures Abraham Zapruder and the area around him, where some claim a gunman other than Lee Harvey Oswald was hiding.” Slip op. at 2. 

Nix licensed the film to UPI, which “unbeknownst to him … transferred the Nix film to the United States House of Representatives Select…

Continue Reading CFC: Complaint Adequately Pleaded Physical Taking Of JFK Assassination Film

Sticks bundle
We thought this was going to be about sticks.

We ain’t gonna pretend we understand cryptocurrency or blockchain. I’m just a caveman. Your world frightens and confuses me!

And there’s a lot there to confuse us in the U.S. Court of Appeals’ recent opinion in Van Loon v. Dep’t of the Treasury, No. 23-50669 (Nov. 26, 2024), where one of the questions was the meaning of the term “property” as used in the International Emergency Economic Powers Act. Under that statute, the President may “block … any property in which any foreign country or national thereof has any interest.”

The Treasury Department blocked “Tornado Cash” which, as far as we can tell, is a computery way to anonymously transfer asserts digitally, and “obfuscat[e] the origins and destinations” of the transfer. Slip op. at 2. The Department’s regulations define “property” broadly, and it blacklisted Tornado Cash “for…

Continue Reading Beyond The Hohfeldian Bundle: Cryptocurrencies, Blockchain, And The “Ordinary, Common” Meaning Of “Property”

Today we have a guest post by New York colleague Jennifer Polovetsky, who writes about the intersection of administrative law (Chevron deference) and public use in eminent domain.Thanks to Jennifer (and to the New York Law Journal) for allowing us to republish her intriguing piece.

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Is Judicial Deference to Government Agency Decisions in Eminent Domain Cases at Risk?

by Jennifer Polovetsky

Since 1984, when the U.S. Supreme Court decided the Chevron U.S.A., v. Natural Resources Defense Council case, it has been well-settled law that the judiciary must defer to agency determinations in connection with the interpretation of a statute when the law was ambiguous or unclear (so long as the agency’s interpretation was reasonable and not arbitrary or capricious). See Chevron, 468 U.S. 837 (1984). The Chevron standard has been applied across the board in many legal cases since then.

On June 28, 2024, however, SCOTUS overruled Chevron

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Continue Reading Guest Post (Jennifer Polovetsky): “Is Judicial Deference to Government Agency Decisions in Eminent Domain Cases at Risk?”