Links And Materials From Today's Land Use Institute Takings/Eminent Domain Session

LUI Co-Chair Prof. Frank Schnidman introducing the faculty

Here are the links to the cases and issues that we just finished speaking about at the 35th Annual Land Use Institute (more information on the LUI here). Today was day 1 of a multi-day remote program and the sessions are available ala carte, so there's still time to join in and learn.

Supreme Court

• Cedar Point Nursery: the Supreme Court affirms the "keep out" vibe in property law. Yes, there are three "exceptions" to the presumption that any physical intrusion into property is a taking (torts, entries allowed under "background principles," and legal exactions), but overall a very strong affirmation of property rights.
• Pakdel v. San Francisco: the "final decision" ripeness requirement in takings cases is "relatively modest" and turns on "de facto" readiness. Yes, it's a technical requirement, but let's not get too technical about it.
• PennEast Pipeline Co., LLC v. New Jersey: federal eminent domain -- even when delegated to a private actor under the Natural Gas Act, trumps a state's 11th Amendment immunity. Bottom line for us: the Court did not mess up eminent domain law.
• Alabama Ass'n of Realtors v. Dep't of Health and Human Svcs.: in striking down the CDC's eviction moratorium, the Court leaves a few tantalizing takings clues.
• Eychaner v. City of Chicago: the Supreme Court comes this close to deciding whether to overrule Kelo.

Regulatory Takings/Inverse Condemnation

• Andrews v. Mentor: the Sixth Circuit distinguishes between due process property and takings clause property.
• Alliance for Responsible Planning v. Taylor: a California appeals court concludes that a requirement that a developer pay "for all necessary road capacity improvements" is too broad and violates Nollan/Dolan.
• F.P. Dev., LLC v. Twp. of Canton: the Sixth Circuit rules that a "tree preservation" ordinance imposes an exaction in violation of Dolan's proportionality requirement.
• South Grande View Dev. Co. v. City of Alabaster: the Eleventh Circuit affirms a Penn Central jury verdict for a rezoning that resulted in an 86% loss of value.
• Yawn v. Dorchester County: the Fourth Circuit rejects a trial court ruling that dismissed a takings claim because the government action was a valid exercise of its emergency police power.
• Ray v. City of Rock Hill: the South Carolina Supreme Court concludes that a city reconnecting a stormwater pipe that previously flooded (that causes more flooding" is the "affirmative, positive, aggressive act" required to trigger inverse condemnation.
• Michael M. Berger, "Whither Regulatory Takings," 51 Urb. Law. 171 (2021): a must-read.

Eminent Domain - Just Compensation

• City of West Chicago v. Pietrobon (unpublished): a taking for a public road violates the public use/necessity requirement for two reasons: (1) the question is factual and not legal, and (2) the city had not shown the taking was part of a larger comprehensive plan.
• Christus Lutheran Church of Appleton v. Wis. Dep't of Transportation: the Wisconsin Supreme Court concludes that the DOT met its obligation to base its offer of just compensation on a "full narrative appraisal" even though the appraisal relied on did not detail the amounts it offered. It is enough that an appraisal (even an appraisal that concludes no damages) is a "fundamental ingredient" of the jurisdictional offer.
• Elpa Builders, Inc. v. State of New York: if the final compensation awarded is less than the deposit and the owner has withdrawn the deposit, the owner is liable for the difference, plus interest. Withdraw at your own risk, owners.
• Bayou Bridge Pipeline, LLC v. 38.00 Acres, More or Less: the Louisiana Supreme Court concludes that attorneys fees are required as part of the requirement to compensate owners for "the full extent of their loss."
• Two law journal articles on just compensation: Thomas Merrill, The Compensation Constraint and the Scope of the Takings Clause, 96 Notre Dame L. Rev. 1421 (2021), and Richard Epstein, Valuation Blunders in the Law of Eminent Domain, 96 Notre Dame L. Rev. 1441 (2021).

Thanks to all for joining us.