CHALLENGE: find the "damage" on the Loretto building
Here's the amicus brief filed today by Pacific Legal Foundation that urges the Supreme Court to grant our cert petition in a case that asks:
To constitute a taking under the Fifth and Fourteenth Amendments, must a physical invasion also destroy or substantially impair an owner’s economically beneficial uses of property?
Yes, takings mavens, we're talking Loretto and related. (If you want to see the truly "de minimis" invasion -- and no damage -- that resulted in Justice Marshall in that case concluding that the Takings Clause imposes a "categorical duty" to provide compensation for physical invasions, check out some recent photos of the Loretto building on Manhattan's Upper West Side.)
Here's the amicus brief's Summary of Argument:
The Fritzes’ petition for a writ of certiorari raises an important question concerning the protections provided by the Takings Clause of the Fifth Amendment of the U.S. Constitution. Specifically, it asks whether a property owner who is subjected to an actual physical invasion of property by government-induced flooding must show that the invasion deprived the owner of “all economically beneficial use” before the government will be obligated to pay just compensation for a taking. App. 36.The answer is no: “when there has been a physical appropriation, ‘we do not ask . . . whether it deprives the owner of all economically valuable use’ of the item taken.” Horne v. Dep’t of Agric., 576 U.S. 350, 135 S. Ct. 2419, 2429 (2015) (quoting Tahoe–Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency, 535 U.S. 302, 323 (2002)). Instead, this Court has consistently held that when the government causes a physical invasion of private property, it has a “categorical duty” to compensate the owner for the full extent of the taking. Arkansas Game & Fish Comm’n, 568 U.S. at 31 (quoting Tahoe–Sierra Pres. Council, 535 U.S. at 322). This duty arises whenever the government invades private property—it is not contingent upon the degree to which the physical invasion interferes with the owner’s ability to use unaffected portions of the property. Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 435 (1982) (requiring compensation where the government required property owner to install a small cable box on the property).In the decision below, however, the Nevada Supreme Court held that that a physical invasion of private property will not constitute a compensable taking without a showing that the invasion resulted in “substantial injury,” which the court wrongly defined as a deprivation or impairment of all economically beneficial use of the land. App. 5, 36. Based on that conclusion, the Nevada court held that Washoe County was not obligated to compensate the Fritzes for having taken a flowage easement over their property simply because the Fritzes were able to make use of their home while the property was flooded. App. 5. That conclusion is premised on a fundamental misunderstanding of takings law and conflicts with this Court’s many precedents holding that government-induced flooding constitutes a substantial injury, e.g., Pumpelly v. Green Bay Co., 80 U.S. 166, 177–78 (1872), and that the Fifth Amendment requires compensation to the extent of the taking—even if the invasion is temporary, intermittent, or results in minimal damages. Arkansas Game & Fish Comm’n, 568 U.S. at 31, 38; Loretto, 458 U.S. at 435.Amicus urges this Court to grant the Fritzes’ petition to resolve the conflicts created by the Nevada Supreme Court and to reaffirm the principle that the Fifth Amendment obligates the government to pay just compensation for a physical invasion of private property by the government to the full extent of the taking. A rule that relieves the government of this obligation whenever a physical invasion leaves the property owner with some residual use of the property would turn the Fifth Amendment on its head by effectively authorizing the very type of physical taking that this Court has always held to be compensable.
Br. at 2-4.
Now we wait. Washoe County has waived response, and the case is scheduled for the Court's May 1, 2020 conference. Stay tuned.
Brief Amicus Curiae of Pacific Legal Foundation, Fritz v. Washoe County, No. 19-1175 (Apr. 24, 2020)
