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In Turner v. Jordan, No. 22-13159 (Sep. 17, 2024), the U.S. Court of Appeals for the Eleventh Circuit held that even though the federal courts have jurisdiction over Turner’s takings claim, the court nonetheless has the discretion to choose to wash its hands of the case in order to protect a state’s administrative procedures.

This is one of those home equity takings cases, with the twist here being that Turner claims that because Florida officials failed to account for his homestead exemption, his property sold for half of what it should have at a property tax foreclosure sale. He alleged that with the exemption, the sale would have netted him some equity to which he was entitled. The district court dismissed for comity reasons, and the Eleventh Circuit affirmed.

Of course, the opinion pays lip service to the more-often-in-the-breach-than-in-the-observance principle that “federal courts have a ‘virtually unflagging obligation ……

Continue Reading Comity Of Errors: CA11 Chooses Nondisruption Of State’s Administrative Process Over Constitutional Right To Compensation

On the surface, the U.S. Court of Appeals for the Ninth Circuit’s opinion in Stavrianoudakis v. U.S. Fish & Wildlife Svc., No. 22-16788 (July 25, 2024) is about Article III standing (a highly technical gateway issue that is very federal courts wonky).

But taking a deeper look offers an insight into ways other than the usual Fifth Amendment arguments for protecting property rights. [Before we go on, a disclosure: this is one of our cases, argued and won by PLF colleague Daniel Woislaw].

This is a case involving the sport of falconry. Can’t say that we knew too much about that — until maybe the occasional movie — until this case. First (and this may not come as a surprise to you who have been observing what things the government finds worthy of regulations and licensing), did you know that every state government except Hawaii has…

Continue Reading CA9: Unannounced Inspections As Condition Of Falconry License Are Subject To Nollan/Dolan Challenge

DJK was adding a bedroom to an existing residence and needed a wastewater permit from Vermont’s environmental agency. The agency has a “presumptive isolation zone” around potable water supplies and septic systems in which a property owner is presumed to be barred from doing anything sewage related. In this case, the isolation zone for DJK’s property crossed over onto the property of their neighbors, the Crowleys.

The agency granted DJK the permit, which contained a provision that not only no sewage-related construction could take place in the isolation zone, but that “[n]o buildings” could be construction which “might interfere with the operation of a wastewater system or potable water supply[.]” Remember, the isolation zone was located partially on the Crowley property.

The Crowleys were not very appreciative, so appealed (to a Vermont trial court sitting as the Environmental court). They argued that the permit was invalid because it worked a…

Continue Reading Vermont: Environmental Court Doesn’t Have Jurisdiction To Determine Property Rights, But We’re Going To Find No Cedar Point Taking Anyway

Screenshot 2024-06-12 at 16-43-41 California Courts - Appellate Court Case Information Screenshot 2024-06-12 at 16-43-31 California Courts - Appellate Court Case Information

Disclosure: this one is one of ours, so we’re not going to do a deep dive or do much commentary (must resist!).

Yesterday, the California Supreme Court granted a Los Osos property owner’s petition, and agreed to review an (unpublished) Court of Appeal opinion which held that the California Coastal Commission has the authority to appeal (to itself!) the County of San Luis Obispo’s decision to grant Shear a Coastal Development Permit to build a handful of homes in the coastal zone.

The County has adopted a Local Coastal Program ordinance regulating development in the coastal zone in the County. Under the California Coastal Act, a municipal government adopting a LCP delegates to the municipality to authority to make these type of land-use permitting decisions, with a very limited window for the Commission to inject itself. The point of the Coastal Act is to maintain …

Continue Reading California SCT To Review Major Challenge To Coastal Commission’s Claimed Power To Overrule Local Govt’s Housing Approvals

Here are three federal circuit opinions, all unpublished. None of them worthy of a stand-alone post, but also not to be overlooked entirely.

  • GHP Management Corp. v. City of Los Angeles, No. 23-55013 (9th Cir. May 31, 2024): Lessors “failed to state a claim for a Fifth Amendment per se physical taking[,]” in their challenge to LA’s eviction moratorium. You know why: you waived your right to exclude by renting your properties, so the government prohibiting you from getting breaching tenants out is merely a regulation of the landlord/tenant relationship. Yee.
  • Innova Investment Group, LLC v. Village of Key Biscayne, No. 21-11877 (11th Cir. May 29, 2024): After the Village tagged Innova with a NOV and $4k fine for not obtaining an interior demolition permit and Innova failed to correct the violations within the 60-day deadline, the Village imposed $4k per day fines and “aggregate penalties of

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Continue Reading Unpublished Wednesday: Eviction Moratorium Taking, Excessive Fines Taking, And 1983 Zoning Statutes Of Limitations

This is one we’ve been meaning to post for a while, but something else always seemed to intervene.

In BMG Monroe I, LLC v. Village of Monroe, No. 22-1047 (Feb. 16, 2024), the U.S. Court of Appeals for the Second Circuit affirmed the dismissal of a statutory and constitutional challenge to the Village’s .

The court did so on the basis of the surviving part of the Williamson County ripeness requirement, that the government has taken a definitive position on whether it will allow some development of the plaintiff’s land under the challenged regulations.

BMG wanted to build 181 homes, so it developed plans for a mix of uses across several parcels, and development of related infrastructure like roads and a community center. This “did not conform to the zoning codes of the Village and Town.” Slip op. at 4. The Village and Town were ok with the proposal…

Continue Reading CA2: If You Want To Be A Land Use Player, You Gotta Play (And That Means Keep On Trying – Without Hitching Rides)!

ALI-CLE brochure cover page

When it comes to the longstanding ALI-CLE American Law Institute-CLE Eminent Domain and Land Valuation Litigation Conferences, we’re always ready to go. You know that. But this year’s version — the 41st — was buzzing like no other in recent memory.

Maybe it was the New Orleans venue with its atmo, food, and music for our after-class activities, or even the timing (the second-to-last week on the Mardi Gras parade season, and our conference hotel was right on the routes). It might have been the nice weather (oh, it rained buckets one evening, but there wasn’t an ice storm like we experienced in Austin in 2023). Or maybe it was the capacity crowd, and new topics and speakers on the agenda. Or maybe it was just the prospect of seeing our friends and colleagues again after a year.

Here’s a photo essay of some of the Conference highlights.

And…

Continue Reading Pass A Good Time: Our Report From The 41st ALI-CLE Eminent Domain & Land Valuation Litigation Conference, Feb 1-3, 2024, New Orleans

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If you were looking for deep clarity from the Justices about land use law and whether a legislature imposing monetary conditions on property development always gets the free judicial pass of rational basis review in this morning’s oral arguments in Sheetz v. County of El Dorado, you may not discover a lot of predictive insight when you listen to the argument recording or read the transcript.

But it is definitely worth your time to listen or read. Yes, there were some head-scratching moments as several of the Justices struggled with how to differentiate between monetary land use exactions that are subject to the nexus and rough proportionality standards, and other government requirements to pay money such as user fees, tolls, and property taxes that presumably are exempt. But there were also moments of clarity. Important moments.

In other words, there’s gold in them thar transcript hills if you…

Continue Reading Today’s Arguments In Sheetz v. El Dorado County: “[R]adical [A]greement” On The Key Issue

What is a case about the U.S. Court of Appeals for the Fifth Circuit’s en banc opinion on the FDA’s approval procedures for e-cigarettes, Wages and White Lion Invs, L.L.C. v. Food & Drug Admin., No. 21-60766 (Jan. 3, 2023), doing here?

We consider it worthy of your time and post it here because of the way the majority addresses the FDA’s central argument: that even though the public took the FDA’s public instructions (including statements on its website) at face value, these procedures meant nothing. 

Government shouldn’t play such games, the court concluded. It can’t go back on what it holds out to the public, especially as a later litigation posture. See, e.g., slip op.at 20 (“In the MDO’s, however, FDA explicitly stated that its instructions were all for naught.”). Government “about-face[s]” are not appreciated. Slip op. at 28. We rightfully expect more from our…

Continue Reading CA5: Government Should Not Send You On A Wild Goose Chase Though Its Own Procedures: “It was the regulatory equivalent of Romeo sending Mercutio on a wild goose chase—and then admitting there never was a goose while denying he even suggested the chase.”

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