Due process

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Sometimes when you read a court opinion you imagine there’s a big gap between the objective, sterile words on the page and the reality of the situation.

The U.S. Court of Appeals for the Seventh Circuit’s opinion in O’Donnell v. City of Chicago, No. 24-2946 (Dec. 22, 2025) is one of those.

The words on the page reveal the court held that a Chicago ordinance which authorizes the city to seize vehicles for traffic violations — even other cars the violator owns — is not a taking because its “an exercise of the City’s police power to enforce its traffic code, and thus isn’t a taking.” Slip op. at 5. (We have problems with that conclusion, but more on that below.)

But reading the opinion gives a hint of the off-page reality on the ground.

Dig this. Get a traffic ticket in Chicago, and you can either challenge it…

Continue Reading CA7: No Taking When City Forfeited Cars For Traffic Violations – Even Cars Not Involved In The Violation

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?

The latest cert petition from Michael Berger, this time involving procedural due process and takings.

Here are the Questions Presented:

The City of Dana Point “red tagged” Petitioner’s motel and then had a receiver appointed to oversee its rehabilitation without ever providing notice of the hearing. Thereafter, it set the property for a foreclosure sale. It did all of this by means of “ex parte” proceedings that provided no formal notice or hearing. That raises serious due process issues, both procedural and substantive, as well as a taking of property without just compensation.

Question 1: When government acts without notice in a way that seriously impacts the rights of citizens, does the lack of constitutionally required notice deprive the victim of property without due process of law?

Question 2: Is it finally time to rein in California’s practice of ignoring this Court’s line of regulatory takings decisions, based…

Continue Reading New Cert Petition: You Can’t Go Your Own Way On Takings, California
AZ unclaimed

Check out the U.S. Court of Appeals for the Ninth Circuit’s opinion in Garza v. Woods, No. 24-1064 (Aug. 25, 2025). 

The court concluded that Arizona’s abandoned property statute is not a taking, because the State was not exercising or claiming some kind of ownership of abandoned property (as in those cases where abandoned property escheats to the government), but was merely holding it in trust until the owner claims it (or doesn’t).

Arizona’s Unclaimed Property Act allows the state to take possession of property that is “presumed abandoned.” Not a big surprise there, as our system of property is built on the assumption that the active user of property has better rights than the owner who neglects it (think adverse possession, for example). Arizona’s UPA deems property to be abandoned if an owner has not “indicated an interest” in that property for a period of time, usually one…

Continue Reading CA9: Government Holding Your Unclaimed Property In Trust Isn’t A Taking (But It Might Be A Deprivation)

If your brain goes full mobius strip when trying to figure out the California Court of Appeal’s rationale in Anaheim Mobile Estates, LLC v. State of California, No. G063421 (Aug. 13, 2025), you are not alone. 

Here’s the bottom line in this facial challenge to a California statute that limits mobilehome parks located in two municipalities from increasing the rental rate more than 3% + cost of living (or 5%) and limits the number of times a long-term tenant may be subject to such increases: the court held that the absence of a mechanism to challenge the restriction on the grounds it does not provide a fair rate of return does not render the statute unconstitutional, because the challengers have not shown the statute does not provide a fair rate of return. 

The park owner asserted that under California precedent, “a price control statute must have an individualized…

Continue Reading Cal App: No Fair Return Procedures Required Unless You First Show Lack Of Fair Return

In City of Dallas v. Dallas Short-Term Rental Alliance, No. 05-23-01309-CV (July 18, 2025), the Texas Court of Appeals affirmed a preliminary injunction, suspending operation of two ordinances which (1) restrict, and (2) require registration of short-term rentals in Dallas.

It’s a short opinion and up on appeal from interlocutory emergency relief, so there isn’t a ton there. But it is still worth reading because the court concludes the challengers have a likelihood of eventually showing that the ordinance restricting short-term renting violates “due-course-of-law” (aka substantive due process). Texas recognizes a property right in leasing property, and the owners here asserted they have a vested right to do so:

Under the circumstances, we conclude appellees Dallas Short Term-Rental Alliance, Sammy Aflalo, Vera Elkins, and Denise Lowry proved their probable right to relief against the City’s zoning ordinance under their due-course-of-law argument because they alleged they possessed well-established rights to…

Continue Reading Tex App: Challengers Likely To Succeed On Due Course Of Law Claim For Short-Term Rental Ban

Euclidsymposium

With the 100th anniversary of Village of Euclid v. Ambler Realty Co. nearly upon us in 2026, we’ve put together a series of events designed to reexamine the case that set the stage for a century’s-worth of intense land use regulations and restrictions.

Are Euclid‘s assumptions and conclusions still valid? If the original separation-of-uses and nuisance-prevention rationale of zoning made sense, does that rationale apply when “zoning” has become the shorthand for extremely granular regulation of property’s uses? What of the role of judicial review and a return to Nectowian review? 

Our Euclid series begins with a call for papers, and a follow-up conference at which these articles will be presented and discussed. For more, see the call for papers: “Euclid Turns 100: Rethinking an Antiquated Case and Reimagining Euclidean Zoning for the Century Ahead.” The link also has a few suggestions about…

Continue Reading Call For Papers: “Euclid Turns 100: Rethinking an Antiquated Case and Reimagining Zoning for the Century Ahead”

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

In Hudson Valley Property Owners Ass’n v. City of Kingston, No. 59 (June 18, 2025), the New York Court of Appeals held that after a municipality declares a housing emergency allowing it to regulate the amount of rent, it has the power to order lessors to refund to tenants rent which exceeded the maximum allowed amount, even if those rents had been collected prior to the declaration of the emergency. 

At least that is how we read the opinion. Due to its somewhat unusual procedural posture, the court did not actually allow the city to nail property owners for retroactive “overcharges,” it merely rejected the owners’ claims that because the statute may allow it in particular cases, it isn’t facially unconstitutional.

This was a facial challenge by property owners to Kingston, New York’s declaration of a housing emergency during…

Continue Reading NY: In A Housing “Emergency,” City Can Retroactively Lower The Rent, Even Rent Collected Before The Emergency

1000002646

It was on this day in 1928 when the U.S. Supreme Court issued its second most famous decision about zoning, Nectow v. City of Cambridge., 277 U.S. 183 (1928). 

We say “second” because everyone knows that the first is the Court’s decision issued just two years earlier which generally upheld comprehensive use, height, and density regulations as a valid exercise of the government’s police power to regulate property uses to further the public health, safety, welfare, or morals. See Village of Euclid v. Ambler Realty Co., 272 U S. 365 (1926). 

Partly because of the hype surrounding Euclid and the broad governmental embrace of exclusionary land use policies that Euclid unleashed, we think that Nectow has not received the attention it is due. After all, it should be seen as the companion case to Euclid: it was authored by same Justice who wrote Euclid (Justice Sutherland)…

Continue Reading Happy 97th Birthday, Nectow v. City of Cambridge!

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)