Regulatory takings

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A reminder: there’s still time to join us for the upcoming American Law Institute-CLE Eminent Domain & Land Valuation Litigation Conference in Savannah.

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 and eminent domain law. We will be at the JW Marriott Plant Riverside District in Savannah, where historic charm meets Southern hospitality, moss-draped oaks, riverfront vibes. If you can’t make it in person, live webcast option is available.

What makes this conference indispensable? It’s the place to reconnect and talk shop with the sharpest minds in eminent domain and property law. Whether you’re on the owner’s side, or serve as agency-side counsel, or an appraiser, the programming is customizable and multi-track: 30+ programs tackling everything from relocation benefits to regulatory takings, valuation, and courtroom techniques. With 40+ speakers from across the…

Continue Reading There’s Still Time To Join Us In Savannah (Jan. 21 – 24, 2026) For ALI-CLE’s 43d Eminent Domain & Land Valuation Litigation Conference

This one is worth your time to review.

In HRT Enterprises v. City of Detroit, No. 23-1847 (Dec. 22, 2025), the U.S. Court of Appeals for the Sixth Circuit affirmed the district court’s entry of summary judgment in favor of the plaintiff/owner and a jury verdict on just compensation.

The case is notable not only for the fact it’s a property owner win, but that the usual procedural hurdles an owner is forced to jump through were successfully navigated. For example, the city’s assertion that the takings claim was both not ripe, and res judicata. Yes, in the city’s view, the claim was simultaneously too early and too late.

The first sentence of the opinion tells you that the focus of the analysis is going to be the res judicata question:

After losing in state court, HRT Enterprises sued the City of Detroit in federal court under a…

Continue Reading CA6 Affirms Detroit Land Bank Taking: New Facts Defeat Res Judicata

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

In Gould v. Interface, Inc., No. 23-12883 (Oct. 2, 2025), the U.S. Court of Appeals for the Eleventh Circuit was dealing with a claim for wrongful termination of a tech CEO.

So what’s the case doing here? Skip forward to page 12 of the slip opinion, where the court deals with an oft-occurring argument: the appellant “waived” (forfeited, actually) a claim by failing to pursue it below. The general rule is that a litigant can waive a claim, but not an argument.

Okay, got it. But again, why is this opinion posted here? Well, the example the court uses to illustrate the difference between a “claim” and an “argument” is the (in)famous takings case, Yee v. City of Escondido, 503 U.S. 519 (1992). Takings mavens know that Yee is often cited in support of the argument that things like rent control do not force property owners to allow…

Continue Reading A Reminder From CA11: There’s Only A Single Claim For A Regulatory Taking (Although There May Be Several Arguments)

Here’s the latest in a case we’ve been following (because it is a product of our shop: we represent the property owners/plaintiffs).

In this Order, the Florida Supreme Court declined to exercise jurisdiction to review the Third District Court of Appeals en banc opinion in Shands v. City of Marathon. So that decision stands.

This is the case in which the Shands Family, the owners of Shands Key — a small island in the City of Marathon (about 1/2 way down the Overseas Highway in the Florida Keys) — asserted that the City’s downzoning their property from a density that allowed residential development to a density that doesn’t (Shands Key is below the minimum lot size under the downzoning), is a Lucas taking.

The court of appeal rejected the City’s claim that beekeeping and overnight camping were possible uses of the property under the downzoning, thus exempting it…

Continue Reading Fla SCT Declines Review: En Banc Court Of Appeal Decision That Downzoning Was A Lucas Taking (And Sale Of Property For Third-Party TDRs Is Not A “Use”), Stands

If you were creating a moot court problem, what topic would you pick? You’d want a question that is a hot topic. Unresolved by the Supreme Court. Controversial, interesting, and complex.

Well, we have just the issue for you: our favorite topic, takings.

That appears to be what the powers-that-be behind Harvard Law School’s moot court competition believed, because according to this report (Rachel Reed, “Harvard Law students battle for honors at the 2025 Ames Moot Court Competition,” Harvard Law Today (Nov. 19, 2025)), the student teams were confronted with a case where there was a clear taking (the commandeering and take-over of a hand sanitizer plant during Co-19), but the plant owner was denied a remedy because the defendant is the (fictional) State of Ames.

Ah yes, the question the Court dodged recently in DeVillier v. Texas, 601 U.S. 285 (2024): may an owner whose property…

Continue Reading Harvard Law School’s Moot Court Problem This Year? Takings.

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”

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)

The caption of the U.S. Court of Appeals for the Tenth Circuit’s opinion in Purgatory Recreation I, LLC v. United States, No. 24-1241 (Oct. 21, 2025), and the fact that the plaintiff raised a takings claim, should give you some idea where this is heading.

After all, when the defendant in a takings claim is the United States, your Tucker Act/Court of Federal Claims alarm bells should be going off.

That’s certainly accurate where the remedy sought is just compensation, and the amount of compensation sought is substantial. Those claims have been assigned to the CFC, not to district courts and the regional courts of appeals. But what if the plaintiff says it doesn’t want just compensation, but instead asks for a declaratory judgment that “to do X would result in a taking?”

In Purgatory, the plaintiff objected to the federal government’s denial of access across federal land…

Continue Reading CA10: Can’t Use Declaratory Judgment Before Seeking Tucker Act Compensation