Here's the amici brief we signed onto for Owners' Counsel of America, filed last week in a regulatory takings case we've been following.
This brief, one of several filed which urge the Court to review the Federal Circuit's conclusion there was no taking (despite a Court of Federal Claims verdict that there was), argues that categorical rules are not useful in regulatory takings cases for the most part, and economic realities often mean that a property owner can suffer a taking even if it has not yet realized a positive cash flow from its investment in the property:
But the Federal Circuit has now pronounced a categorical rule—one that arbitrarily insulates government from takings liability no matter how strongly the Penn Central factors might otherwise militate in favor of a takings claimant. Love Terminal Partners, L.P. v. United States, 889 F.3d 1331, 1344 (Fed. Cir. 2018). What is more, in contravention of Lucas, the Federal Circuit’s newly minted rule would deny takings liability even where the restriction goes so far as to deny all economically beneficial uses or to destroy all prospective value in the property.
The Federal Circuit holds that a takings claim must categorically fail (whether advanced under Lucas or Penn Central) for any property that is not yet producing positive cash flow—even where the owner has invested heavily in the property with reasonable investment-backed expectations of future profits. Id. at 1344. This ignores economic realities. For one, Judge Dyk’s opinion overlooks market forces that lead entrepreneurs to invest in underperforming properties with reasonable expectations of future profits after development, redevelopment, or other changes. More fundamentally, it ignores the practical reality that new ventures might take significant time to prove profitable or offer a return on investment.
Check it out. Follow along with the case here.
We will be highlighting other amicus briefs which were filed in support in the coming days.
Brief Amici Curiae of NFIB Small Business Legal Center, et al, Love Terminal Partners, L.P. v. United State...
