Here's a key amicus brief in support of the cert petition in CCA Associates v. United States, No. 11-1353 (cert. petition filed May 8, 2012). In that case, the Court of Federal Claims concluded that it was a taking for Congress to prohibit a property owner from prepaying a government-issued mortgage, which required it to continue to allow use of its property as low-income housing. But the Federal Circuit reversed, and then denied en banc review.
The amicus brief of the National Federation of Independent Business Small Business Legal Center, the Cato Institute, and the Center for Constitutional Jurisprudence addresses three Questions Presented:
1. In conforming to the "parcel as a whole rule" propounded in Penn Central Transportation Co. v. New York City, 438 U.S. 104 (1978), does Tahoe-Sierra Preservation Council, Inc., v. Tahoe Regional Planning Agency, 535 U.S. 302 (2002) require conflation of permanent and temporary losses, thereby essentially destroying the requirement that government must pay for temporary takings damages as set forth by this Court in First English Evangelical Lutheran Church of Glendale v. County of Los Angeles, 482 U.S. 304 (1987)?
2. Under Penn Central’s multifactor inquiry for establishing partial regulatory takings, the Court has identified three factors as "relevant considerations." Should individual factors be weighed so heavily, or defined so narrowly, as to foreclose all temporary taking claims, or should Penn Central’s ad hoc balancing test be construed more flexibly so that societal burdens are borne by the public when required by justice and fairness?
3. Did the United States effect a temporary regulatory taking under Penn Central, when it imposed restrictions that revoked Petitioner’s contractual rights, forcing Petitioner to house government selected or approved members of the public, at below market rates, for a five-year period, during which time Petitioners suffered a loss of over 81 percent ($700,000) in net income?
Counsel of record on the brief is lawprof Steven J. Eagle, author of the Regulatory Takings treatise, and the brief cites to multiple sources, including law review articles by Gideon Kanner and Dwight Merriam, so it is a tour-de-force of takings law, and a darn good read.
Here's the Court's docket report for the case. More to come, for sure.
Brief Amicus Curiae of The National Federation of Independent Business Small Business Legal Center, CCA Ass...
