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Cal App Channels Dickens' Mr. Bumble: Bumblebees Are Fish Under Cal's Endangered Species Act

A "fish" need not be "connected to a marine habitat" after all.

You remember that classic lawyer joke?

A company is on the hunt for a new CEO and decides to undertake the search from within existing management. The hiring committee schedules interviews with the company engineer, the company accountant, and the company lawyer. The committee calls each candidate into the boardroom and asks a single question: "what is two-plus-two?"

First up, the engineer. After doing calculations on a slide rule [this is an older joke, you see] and scratching figures and equations with a pencil and paper, the engineer proclaims, "What is two-plus-two? I can say with a 99% level of certainty that two-plus-two is 4, out to the fourth decimal place."

Same question to the accountant, who after consulting the actuarial tables, the IRS's schedules for mileage reimbursement, and the latest interest rates, responds, "What is two-plus-two? Two-plus-two is 4, subject to a 5% discount for net-30 payment."

Finally, the company lawyer. Checking around to make sure no outsider is within earshot, he closes the boardroom doors and walks to the head of the table and whispers:

"What is two-plus-two? ... what do you want it to be?"

All that is prelude to the California Court of Appeal's opinion in Almond Alliance of California v. Fish & Game Comm'n, No. C093542 (May 31, 2022), which reminds us of the joke's punchline. Because in that case, the court held that bumblebees qualify as "fish" under the California Endangered Species Act.

You read that right, folks: bees = fish. What do you want 'em to be?

Now before you start writing us to point out that the court wasn't smoking medical cannabis and didn't just pull this one out of thin air (it was interpreting the statute's definition of "fish," which, we must acknowledge, is very poorly drafted because it includes "invertebrates" within the definition of "fish" -- and yes, bees do not have backbones), please keep in mind that the court wasn't required to check common sense at the door either. 

So here's the setup: the Fish (ha!) & Game Commission designated four species of bumblebee (the Crotch bumble bee, the Franklin bumble bee, the Suckley cuckoo bumble bee, and the Western bumble bee, if you were wondering) as endangered. The California statute can be employed to designate "[c]ertain species of fish, wildlife, and plants" as either endangered or threatened. Bees ain't "wildlife" or "plants," so to be covered by California's Endangered Species Act, they must be "fish," right? And the statute defines "fish" as "a wild fish, mollusk, crustacean, invertebrate, amphibian, or part, spawn, or ovum of any of those animals." Cal. Fish & Game Code § 45.

But bees aren't fish, are they?

Almond growers and others certainly didn't think so, and challenged the designation in court, arguing that although bees are indeed invertebrates, they certainly are not fish. Guess what? - the trial court agreed that the inclusion of "invertebrates" in the definition of "fish" includes only, you know, "invertebrates connected to a marine habitat, not insects such as bumble bees." Slip op. at 17.

The Court of Appeal was having none of this. Pick up the opinion at page 19 if you want to really savor the court's reasoning. See slip op. at 20 ("Our task is to interpret the term fish as used in section 2062, 2067, and 2068 of the Act."). Lovers of the canons of statutory interpretation will appreciate this part of the opinion, as the court somehow navigates the rocky shoals of that method of analysis. Those of you who, by contrast, may believe that the canons of construction are mostly bunk -- tools that can be manipulated in any number of ways to justify post hoc any desired reading of a statute -- will likely conclude that this is "Exhibit A" in your indictment of Professor Sutherland.

And aren't bees ... insects? That was the conclusion of the California Attorney General, who opined that insects are ineligible for listing under the statute because insects are not included in the covered species. But the court concluded that this was "less persuasive," even though AG opinions are "entitled to great weight." Slip op. at 24. Let's just say that the court concluded that indeed "fish" includes "invertebrates," and indeed bees don't have no backbones.

"Connection to marine habitat" got nothing to do with being a fish, held the court of appeal. Indeed, "any" invertebrate will do: Ladybugs? Yes! Scorpions? You bet! Black widow spiders? Naturally. Banana slugs. Of course! Butterflies? Duh.

A fish.

Now yes, we're having a bit of fun at the expense of what to the legally-untrained eye must seem like a conclusion worthy of Twitter mockery (and Twitter analysis). A bumblebee is a fish? Come on, man! We expertly trained lawyers (unlike the great unwashed) know that context is everything and the court wasn't really concluding that bees are fish in the real world, only in the world of the California Endangered Species Act:

Although the term fish is colloquially and commonly understood to refer to aquatic species, the term of art employed by the Legislature in the definition of fish in section 45 is not so limited.

Slip op. at 2.

But seriously - don't you think that if the lege had meant to include bees and other insects in the statute's scope, it might have -- just maybe -- thought to include the term "insect?" And that to shoehorn bees into the definition of fish -- which every fiber of our being screams out is just plain goofy -- may also have the unfortunate consequence of lessening the majesty of the law in the eyes of anyone paying attention? And in that vein, we end with a quote from Dickens' coincidentally-named Mr. Bumble, quoted by no less a light than a current Supreme Court Justice:

An ordinary person of common sense would react to the Court’s decision the way Mr. Bumble famously responded when told about a legal rule that did not comport with the reality of everyday life. If that is the law, he exclaimed, "the law is a ass—a idiot." C. Dickens, Oliver Twist 277 (1867).

Collins v. Virginia, 584 U.S. ___ (2018) (Alito, J., dissenting) (cleaned up).

So there it is: a court just said a bee is a fish. With a straight face.

What do you want it to be? 

Almond Alliance of California v. Fish & Game Comm'n, No. C093542 (Cal. Ct. App. May 31, 2022)

Tuesday Round-Up: Austin Airport Taking Its Own Land?, The Right To Exclude, And More

Here's what we're reading today:

• "ABIA attempts 'unusual' use of eminent domain to force out South Terminal operator" Austin Airport, which already owns the property, is condemning it?
• "Gun Rights, Property Rights, and Takings" from lawprof Ilya Somin
• "Can tenants have it both ways? - Some demand the freedom of renting and the stability of ownership" (via The RealDeal)
• "When Is it a Taking of Private Property to Bar a Property Owner from Excluding Unwanted Visitors?" Thoughts on Cedar Point and PruneYard from lawprof Eugene Volokh
• "The City of Portland Tried to Undo Gentrification. Black Portlanders Are Conflicted About the Results" "'It’s kind of a typical Portland reaction to an injustice,' Millner says. 'It’s a feel-good story that doesn’t move the needle very much.'" (via Willamette Weekly)
• "Grand Ronde moves to intervene in Willamette Falls land condemnation" A tribe seeks to intervene in a condemnation case, asserting cultural and historical interest in the land (WestLinn Tidings)

CA7: Like Other Circuits, We're Going To Dodge The Judicial Takings Question

Here's one we've been following since its inception, even before we joined the law firm that represents the property owner. (And because our Pacific Legal Foundation colleagues are repping the plaintiffs in this one, we won't be commenting in-depth.)

You may remember that in Gunderson v. Indiana, 90 N.E.3d 171 (Ind. 2018), the Indiana Supreme Court concluded that the public owns the land up to the ordinary high water mark on Lake Michigan, and had done so all the way back to statehood in 1816. Problem is, according to some lakefront property owners, "undisputed local, state, and federal acknowledgement over the years" was otherwise - the law said that lakefront land was was private, not public, down to the ordinary low water mark. Thus, the plaintiffs alleged, "the Gunderson judgment changed the law of the State of Indiana, as recognized by prior Indiana court precedent as well as federal, state, and local authorities."

The owners sued in federal court, seeking a declaratory judgment that the Indiana court's changing the public-private boundary from the low to the high water mark resulted in an uncompensated judicial taking. The complaint sought an injunction prohibiting state officials from enforcing the Gunderson ruling and the follow-on confirmation statute. The plaintiffs did not ask the federal court for compensation. 

In Pavlock v. Holcomb, No. 21-1599 (May 25, 2022), the U.S. Court of Appeals for the Seventh Circuit affirmed the district court's dismissal. The district court dismissed on the pleadings because "the Owners’ claims are functionally equivalent to a quiet-title action, and so are barred by sovereign immunity[.]" Slip op. at 7 (citing Idaho v. Coeur d’Alene Tribe of Idaho, 521 U.S. 261 (1997)). 

The Seventh Circuit didn't quite take the same approach (even though it reached the same outcome). It first noted that after the Supreme Court's decision in Stop the Beach Renourishment, the lower courts have repeatedly dodged the judicial takings question (or what Justice Scalia labeled the "how much wood would a woodchuck chuck" issue):

no federal court of appeals has recognized this judicial-takings theory. What has occurred instead is avoidance: every circuit to consider the issue has expressly declined to decide whether judicial takings are cognizable. Instead, each court has assumed without deciding that if such a cause of action were to exist, the relevant test would be the one Justice Scalia suggested in his Stop the Beach plurality opinion: did some arm of the state declare that "what was once an established right of private property no longer exists"? 560 U.S. at 715. In each of the cases that have reached our sister circuits, the courts have held that the challenged state-court decision had not erased an established property right. Thus, even if there were a theoretical claim for a "judicial" taking, the plaintiffs failed.

Slip op. at 10-11.

And so it was to be here. The Seventh Circuit avoided even the theoretical issue by concluding that the plaintiffs didn't allege enough to show Article III standing because the complaint seeks, essentially, to be awarded title to the property the Indiana Supreme Court took away, but the defendants (Indiana officials tasked with enforcing the public-private boundary) do not "have the power to grant title to the Owners in the face of the Indiana Supreme Court's Gunderson decision[.]" Slip op. at 12. Thus, "[e]ven if we were to agree with the Owners, therefore, a judgment in their favor would be toothless."

There are a number of problems with this approach, not least of which is that we lack authority to overrule a state supreme court. But the straightforward point is that none of the state defendants the Owners have named—not the Governor, not the Attorney General, not the Indiana Department of Natural Resources, and not the State Land Office—has the power to confer title on the Owners to land that Indiana’s highest court says belong to the state. No injunction we enter can fix that problem.

Slip op. at 12-13. The owners could have sued for compensation, but they couldn't have sued the State of Indiana for compensation in federal court under the Eleventh Amendment.. Slip op. at 13 ("Recognizing these hurdles, the Owners seek only equitable and declaratory relief.").

The court viewed the issue as one of title (who owns the lakefront land between the low and high water marks?), and thus distinguished the case from Cedar Point Nursery, where the issue was not title, but whether the state's regulations deprived the owner of their rights related to "property that they indisputably owned." Slip op. at 15. [Barista's comment: true, but wasn't the issue in Cedar Point Nursery whether the right to exclude was part of the owners' title?]

Same lack-of-standing result regarding causation. If anyone injured the plaintiffs according to the Seventh Circuit, it was the the Indiana Supreme Court ("an independent actor") which did so when it changed the law, and the named defendants have not done anything to cause further injury. Slip op. at 16 ("The Owners' injury is therefore traceable not to the state defendants, but to the independent actions of the Indiana Supreme Court."). [Barista's note: is the Seventh Circuit is suggesting that the Indiana Supreme Court or its members are the only proper parties in a judicial takings case?]

The Seventh Circuit also adopted a form of Rooker-Feldman lite. It concluded that "federalism and comity concerns" mean that federal courts should "proceed cautiously" when a plaintiff claims a judicial taking by a state supreme court, even though it is clear that Rooker-Feldman does not apply. See slip op. at 17 ("We recognized, in this connection, that the Rooker-Feldman doctrine does not apply here, because the Owners were not parties to the Gunderson litigation.").

Nonetheless, that doctrine’s animating federalism values counsel us to proceed cautiously when a novel legal theory raises the specter of a lower federal court reviewing the merits of a state supreme court’s decision.

Id.  That "[n]onetheless" is carrying a lot of water here, because "proceeding cautiously" results in dismissing the case, the very same result as a Rooker-Feldman analysis.

Alternatively, the Seventh Circuit determined that ownership of the lakefront land between the high and low water marks was not "established" under Indiana property law, and thus even under the Scalia Stop the Beach plurality opinion, there's no judicial taking. The Seventh Circuit rejected the argument that prior to Gunderson that Indiana law clearly affirmed the lakefront owners' titles to the low water mark. Instead, the court concluded that Indiana law "had been ambiguous at best[,]" and that Gunderson settled the issue as one of first impression. Slip op. at 19. If Indiana law was not established prior to Gunderson, then the Indiana Supreme Court didn't change the law:

The Owners have not and could not show that the Indiana Supreme Court’s decision was a sharp or unexpected departure from a clearly established property right. Rather, the state court in Gunderson settled an unclear and disputed issue of first impression. The district court therefore noted that, even if it had jurisdiction over the case, it would have dismissed the Owners’ action for failure to state a claim under Rule 12(b)(6).

Because the Owners lack standing to sue the state defend-ants, we need not reach either the Coeur d’Alene issue or the alternative ruling under Rule 12(b)(6) today. We merely note that the Owners could not prevail without also overcoming these additional hurdles.

Id.

We set out our thoughts on the judicial takings question in this 2010 article - a bit older now, but, we think, still relevant. 

Pavlock v. Holcomb, No. 21-1599 (7th Cir. May 25, 2022)

CA7: Co-19 Shutdown Complaint Does Not Meet "Demanding test for alleging a regulatory taking"

The U.S. Court of Appeals for the Seventh Circuit's decision in Nowlin v. Pritzker, No. 21-1279 (May 20, 2022), adds to a long line of rulings denying takings claims for coronavirus-related business shutdowns. 

This one challenged the Illinois governor's executive orders which required "non-essential" businesses to shut down or reduce operations, and limited the size of gatherings. The plaintiffs brought the usual host of constitutional claims (a total of six), which included (naturally) a takings claim. The district court, after granting leave to allow the filing of an amended complaint, dismissed all six claims, concluding either that the plaintiffs had not alleged particularized injuries (and thus lacked standing, and thus the court lacked jurisdiction), or that the complaint failed to state claims.

The Seventh Circuit affirmed that all claims, with the exception of the takings claims, lacked jurisdiction because the plaintiffs had not alleged specific injuries. The court subject the takings claim, however, to a separate analysis, because it saw a "glimmer of concreteness" in that claim (don't worry, it still affirmed the dismissal). Jump up to page 7 of the slip opinion if you don't want to hear about the nuances of federal court standing.

The opinion first noted that "[t]he Businesses do not allege any physical invasion or direct appropriation of their property." Slip op. at 7. So Cedar Point is out. So the only thing left is regulatory takings. On that, the court didn't need to ask whether the plaintiffs were alleging a Lucas wipeout or a Penn Central ad hoc taking, because it concluded that the complaint was too vague to figure out what the plaintiffs were claiming:

“While legal conclusions can provide the complaint’s framework, they must be supported by factual allegations.” Iqbal, 556 U.S. at 679. The Businesses have asserted legal conclusions, but they have not supported those conclusions with factual allegations that plausibly suggest that the Governor’s orders constituted regulatory takings. How much money did they lose? How long was each Business closed? Did one or more of them use its property in other, albeit less lucrative, ways? We don’t know. Allegations such as “Plaintiff Businesses were unable to open for business[]” and “Plaintiffs stand on the precipice of economic collapse” express conclusion, not facts that would permit an inference of the total or near-total deprivation of use or value required by Lucas and Penn Central.

Slip op. at 8.

The court called the pleading requirements in takings cases "demanding." See id. ("Our examination of the amended complaint convinces us that Plaintiffs have not met the demanding test for alleging a regulatory taking."). But we're not sure what's so "demanding" about making allegations that answer the questions the court posed. After all, Twiqbal's plausibility requirement has not overruled Rule 8's notice pleading standards, and as long as the defendant is on notice of the claims being made against it, we thought that was enough. Takings cases are not fraud cases, and you don't have to plead with particularly (or do you, Seventh Circuit?).

So here's your tip of the day: plead more, not less, in takings cases. We know you don't have to. But it will save time if you do.

And the court's final words about the takings claim seem to go out of the way to rub a bit of salt in the plaintiffs' wounds:

As we recently noted in a different but related context, while the preferred or intended use of many business properties was limited or even prohibited by the Governor’s COVID orders, those orders did not deprive property owners of all uses to which their premises might be put. See Sandy Point Dental, P.C., et al. v. Cincinnati Ins. Co., 20 F.4th 327, 335 (7th Cir. 2021). Like the plaintiffs in Sandy Point, the Businesses were free to make other uses of their properties consistent with the closure orders. See id. That such uses would not have been their preferred or most profitable uses does not mean that the closure orders effected a regulatory taking. This complaint fails to move the needle from the possible to the plausible with respect to the alleged Takings claim. It thus fails to state a claim upon which relief can be granted. See Fed. R. Civ. P. 12(b)(6).

Slip op. at 9. Hear that restaurant and bar owners? ... Shame on you for not retooling and opening up as an auto repair shop.

We understand that yes, the court's statement may be theoretically and legally accurate, but it is at the very least very tone-deaf, and blind to the everyday realities of the physical and regulatory milieu that most businesses operate under. 

For our general thoughts on emergency takings, see our article, Evaluating Emergency Takings: Flattening the Economic Curve, 29 Wm. & Mary Bill of Rights J. 1145 (2021).

Nowlin v. Pritzker, No. 21-1479 (7th Cir. May 20, 2022)

Mass SJC Revives Penn Central Takings Claim Because Casino Comm'n Might Have Altered The Deal

In FTB Everett Realty, LLC v. Mass. Gaming Comm'n, No. SJC-13196 (May 23, 2022), the Massachusetts Supreme Judicial Court revived a property owner's Penn Central takings claim, reversing the trial court grant of summary judgment to the Commission.

This one deals with the intricacies of gambling law and the process necessary to approve the operation of a casino -- subjects that we can't claim to fully understand -- so bear with us if there are any inaccuracies.

FBT purchased vacant land which was contaminated and required extensive cleanup. It looked into a variety of possible uses, including a storage facility or big box retain. But two years later, Massachusetts legalized casino gambling and created the Commission. Its duties include issuing gambling licenses.

A branch of the Wynn casino operation wanted the property. It entered into an option agreement with FBT under which it would buy the land if Wynn were able to secure the necessary gambling license from the Commission. Wynn sought a license, and the Commission began the usual investigation of the applicant.

Difficulties ensued. Investigators "uncovered evidence leading them to suspect that Charles Lightbody, a convicted felon with apparent connections to organized crime, had a hidden ownership interest in FBT." Slip op. at 5. Despite FBT's entreaties that everything was cool, the Commission "continued to suspect, however, that Lightbody retained an ownership interest," and FBT was concealing this fact.

The commission was troubled by what it believed to be a lack of candor by FBT's principals and their failure to fully cooperate with the IEB's investigation. It was also anxious that individuals with a criminal background and associations with organized crime should not profit from the award of a casino license to Wynn for the Everett parcel.

Slip op. at 6. If the allegations about Mr. Lightbody were true, then Wynn's casino license application was in jeopardy: the Commission would not approve a license if FTB had connections to the Outfit and stood to financially gain from selling the land to Wynn for a casino.

That's where the versions of the story branch off. FBT asserted the Commission wanted to punish FBT for its perceived lack of candor. The Commission for its part denied the allegation, but the SJC opinion noted that "[t]he record, which is based on limited discovery that has occurred so far, reveals some evidence supporting FBT's allegation." Slip op. at 6.

When the deal looked at risk, the players came up with plan. The property could still be sold -- and Wynn might get its casino license from the Commission -- if the deal could be structured so that any "taint" (our words, not the opinion's) of FBT potentially gaining from a sale as a casino could be removed.

So Wynn appraised the property based on its highest and best non-casino use (big box retail) at $35 million. "Fearing that the commission would otherwise find Wynn unsuitable, dooming Wynn's license application and FBT's sale of the Everett parcel to Wynn, FBT agreed in November 2013 to amend the option agreement to reduce the price from $75 million to $35 million, thus eliminating FBT's casino-use premium[.]" Slip op. at 8. Wynn bought the property for $35 million, and because the proceeds which FBT received were free of the casino-taint, the Commission granted Wynn its gambling license.

FBT wasn't satisfied with $35 million, and brought a state-court lawsuit against the Commission, asserting tortious interference with contract and a regulatory takings claim under Penn Central for the $40 million before-and-after delta allegedly brought about by the Commission's actions. After discovery, the trial court entered summary judgment in favor of the Commission on both claims, concluding that FBT purchased the property before gambling was legal, "it could not have reasonably expected to later sell the property for purposes of casino development." Slip op. at 10. Inability to prove one factor was enough, and the whole claim fell.

The SJC reversed. The Penn Central requires "balancing" of the three factors, none of which alone is dispositive. Slip op. at 12 ("All three factors in the multifactor Penn Central test 'should be taken into account' when determining whether a challenged regulation amounts to a taking.").

Rather than considering all three factors in the multifactor Penn Central test, however, the motion judge relied on just a single factor. The judge reasoned that because FBT could not demonstrate that the commission had interfered with FBT's reasonable investment-backed expectations, FBT had "no reasonable expectation of proving an essential element" of its regulatory takings claim, Kourouvacilis v. General Motors Corp., 410 Mass. 706, 716 (1991), and summary judgment was proper. He thus granted summary judgment for the commission without considering the other two factors identified in Penn Central, namely the economic impact and the character of the government action. This was error, particularly given the significant diminution in value here -- lowering the amount paid from $75 million to $35 million -- and the unusual and disputed character of the government action, which we discuss in more detail infra.

Slip op. at 13-14.

And what of FBT's investment-backed expectations? The SJC acknowledged that FBT had purchased the property when gambling was not legal in Massachusetts. Slip op. at 18 ("At the time it purchased the property, therefore, it could not reasonably have expected to sell the property as a site for the development of a casino."). This "weighs heavily" against FBT having reasonable expectations of selling the property for casino use. But that wasn't the end of the analysis, because while FBT owned the property, gambling did become legal. After it was legal, "FBT made net investments of about $900,000 in the property[.]" Slip op. at 19. In the end, the SJC agreed with the trial court that FBT's investment-backed expectations were pretty weak, mainly because of the long-shot nature of Wynn obtaining a gambling license (the Commission has "full discretion" to decide whether to issue a license).

But as the court had already noted, weak-sauce expectations was not the end of the analysis. The economic impact here was pretty severe, and the before-government-action use and value of the highest-and-best-use of the property (casino, $75m) and the after-government-action use and value highest-and-best use (big box retail, $35m) was pretty massive. But add in the factual twist (was it Wynn's actions in renegotiating the deal, or was it the Commission's actions influencing Wynn to change the deal that caused the loss in value?), and the court was left with a bit of a knot to untie. But this was an appeal from summary judgment, so the court looked at the facts in the light most favorable to FBT, meaning that the actions of the Commission influencing Wynn means that "the government is responsible, for regulatory takings purposes, for the economic impact of the third party's action if the economic harm to the plaintiff was 'direct and intended' and 'the government's influence over the third party was coercive rather than merely persuasive." Slip op. at 21. On the economic impact factor, scales tip in favor of FBT.

On to the final factor, "character of the government action." This one really tipped in favor of FBT: "[t]he character of the regulatory action here is highly unusual." Slip op. at 23. The Commission didn't keep on investigating to determine whether Mr. Lightbody had an interest in FBT, it "made favorable consideration of the application subject to lowering the amount of money the owners of FBT would receive for the property, thereby giving one private party, Wynn, a multimillion-dollar windfall at the expense of another private party, FBT." Id.

Government-compelled transfers of economic benefits from one private party to another in this context raise significant regularly taking concerns. This is true even when done to punish one party for its lack of candor or to ensure such persons do not reap a financial windfall from the award of a gaming license or to address the public perception that this was even a possibility.

Conditioning the grant of a governmental license on the renegotiation of a transaction between private parties in this way, so as to effectively transfer $40 million dollars from one to another, is "extraordinary."

Slip op. at 25.

And this wasn't some general regulation or action, broadly applicable, but a singling-out of the owner, and thus looks more like eminent domain. See slip op. at 26-27. 

Adding all these factors to the judicial blender and hitting "frappe," compelled the court to conclude that this one needs to be tried:

Viewing the evidence in the summary judgment record in the light most favorable to FBT, we conclude that while FBT did not have a reasonable investment-backed expectation in reaping a casino-use premium when selling the Everett parcel, the commission's actions had a substantial, $40 million economic impact on FBT. The highly unusual character of the commission's actions, effectively compelling the transfer of $40 million from one private party to another in order to secure a government license, weighs in favor of finding a taking. When all three Penn Central factors are considered and balanced, therefore, we cannot say that the commission is entitled to judgment as a matter of law on the available record. The entry of summary judgment for the commission on FBT's regulatory taking claim was therefore error. Accordingly, we reverse the motion judge's summary judgment order and remand FBT's regulatory taking claim to the Superior Court to allow the completion of discovery and further proceedings consistent with this opinion. Only when the disputed facts surrounding the commission's actions are fully developed and resolved will it be possible to properly decide FBT's regulatory taking claim.

Slip op. at 27-28.

More on the decision:

• High court revives $40M dispute over Wynn’s Everett land
• 'Highly unusual': Courts investigate Encore casino license to Wynn Resorts in attempt to avoid ties to organized crime

On the whole, the SJC's treatment of Penn Central (for all the faults of that test) seems about right.

FBT Everett Realty, LLC v. Mass. Gaming Comm'n, No. SJC-13196 (Mass. May 23, 2022)

District Court: City Liable For Physical Taking For Destroying Home While Apprehending A Criminal

Here's a pretty rare one: a trial court entering summary judgment on liability in favor of the property owner in a takings case. Yes, you read that right.

And to top it off, this ruling comes in a case in which the taking alleged was a police invasion and destruction of a home for the valid public purpose of apprehending a holed-up criminal, a brand of claim that has not met with a whole lot of success. See, for example, this case from the Tenth Circuit, and this case from the Supreme Court of South Carolina.

In this order, the U.S. District Court for the Eastern District of Texas held the City of McKinney liable for a physical taking. The entire order is worth reading, but here are some of the highlights.

• The court rejected the Tenth Circuit's rationale, which concluded that these are "police power" actions, and thus never a taking.
• Lech relied on cases like Mugler (the one where the Supreme Court held that Kansas' banning manufacture and sale of liquor was a valid exercise of its police power).
• But there's a difference between physical takings (the case here) and regulatory takings (not this).
• Check out the law review article the district court cited, Emilio Longoria, Lech's Mess with the Tenth Circuit: Why Governmental Entites Are Not Exempt from Paying Just Compensation When They Destroy Property Pursuant to Their Police Powers, 11 Wake Forest J. L & Pol'y 297 (2021).
• The district court's opinion also picked up on a familiar vibe: a valid police power action doesn't mean it isn't a taking, merely that the government action likely qualifies as a public use. Slip op. at 19 (citing Zachary Hunter, You Break It, You Buy It—Unless You Have a Badge? An Argument Against a Categorical Police Powers Exception to Just Compensation, 82 Ohio St. L.J. 695, 703 (2021).

Definitely check it out.

Memorandum Opinion and Order, Baker v. City of McKinney, No. 4:21-cv-00176-ALM (E.D. Tex. Apr. 29, 2022)

Lawprof Saxer On Jotwell: "The Impact of Knick on Regulatory Takings and Those Pesky Lucas Exceptions"

Check this out: Pepperdine lawprof Shelley Saxer has a piece in Jotwell, "The Impact of Knick on Regulatory Takings and Those Pesky Lucas Exceptions," a review of U. Hawaii lawprof David Callies' book, "Regulatory Takings After Knick."

The review is short and to the point, so we suggest you read it. But here's a teaser:

This small but mighty book offers a concise history and understanding of takings jurisprudence as it stood before and after the Knick decision. It brings clarity to a convoluted chronicle of takings litigation and presents specific situations where litigants have asserted a total taking claim and the defense has relied on the various exceptions to Lucas.

Don't miss it.

Texas: City Illegally Cutting Off Utilities Isn't A Taking - It Needs To Be Regulating "Land Use"

In City of Baytown v. Schrock, No. 20-0309 (May 13, 2022), the Texas Supreme Court held that it isn't a taking when a city, in violation of state law, cuts off utility services to property.

The issue, as the court restated it, was "whether a claim of economic harm to property resulting from the improper enforcement of a municipal collection ordinance alleges a regulatory taking." Slip op. at 6. Schrock owned property in Baytown on which he had a mobile home he planned to rent. The water bill wasn't paid, and Baytown has an ordinance that requires property owners to guarantee utility payments, or file a statement that the owner would not guarantee these payments. Schrock didn't file a disavowal statement until after had already assessed him nearly two grand for unpaid water bills. Slip op. at 3. 

He didn't pay, so when one one of Schrock's prospective tenants asked for a water connection, the city refused (Texas law prohibits governments from doing this kind of thing). The prospective tenant walked, and the property "fell into disrepair and was vandalized." Slip op. at 3.

Inverse condemnation lawsuit followed, "alleging that the City’s refusal to reconnect his utility service violated section 552.0025 [the state statute that prohibits municipalities from conditioning utility hook ups on the satisfaction of outstanding bills from other customers] and caused damage to his property." Slip op. at 3. The court tried the Penn Central claim, but when Schrock rested, the court issued a directed verdict in favor of the city, because Schrock had failed to adduce evidence of a taking." Slip op. at 5. The court of appeals reversed, concluding that there was a dispute about the effects of the city's acts on Schrock's investment-backed expectations.

The Texas Supreme Court disagreed. It acknowledged that the right to own, use, and enjoy property is a fundamental right, slip op. at 7, but held that the city's ordinance didn't "directly" regulate land use. Slip op at 8-9. "The City's provision of utilities to the property was a service; its regulation of that service was not a regulation of the property itself." Slip op. at 9. The court noted that "courts historically have limited regulatory takings claims to those arising directly from land-use restrictions." Slip op. at 8.

Oh really? That might be news to the U.S. Supreme Court, which has not so limited the reach of the regulatory takings doctrine. We can think of a few cases off the top of our head, that didn't involve the regulation of land uses, such as Horne (USDA regulation of raisins), the IOLTA cases (taking of interest), that one about eagle feathers (regulation of ownership of feathers), Webb's Fabulous Pharmacies (again with the interest), and a few more. Yes, many regulatory takings cases are land use cases, but no, the takings doctrine is about "private property," and asking whether a case is about a land-use regulation doesn't answer the question of whether the regulation or govt action being challenged might result in a taking.

But maybe the Texas court was merely getting at this: the "true nature of Schrock's claim lies in the City's wrongful enforcement of its ordinance, not in an intentional taking or damage of his property for public use." Slip op. at 9. In other words a tort and not a taking (and the city is generally immune from torts).

While we do not foreclose the possibility that enforcement of an ordinance that does not directly regulate land use could amount to a taking, this one does not. A regulation with “a condition of use ‘so onerous that its effect is tantamount to a direct appropriation or ouster’” may impair a property “so restrictively, or intrude on property rights so extensively, that it effectively ‘takes’ the property.” However, “nearly every civil-enforcement action results in a property loss of some kind.” Property damage due to civil enforcement of an ordinance unrelated to land use, standing on its own, is not enough to sustain a regulatory takings claim.

Slip op. at 10 (footnote omitted).

Even if Penn Central were applied, "Schrock did not show that the economic impact of the City's ordinance so interfered with his property rights that its actions appropriated the property from him." Slip op. at 12 (footnote omitted).

One Justice concurred to re-emphasize that the Texas Constitution's property protections are not the same as under the Fifth Amendment:

Parties frequently litigate takings cases as if the two Takings Clauses were the same. For that reason (and maybe others), judicial opinions also sometimes have described the two clauses as if they were the same. I write separately today to emphasize one key point: They are not the same.

Conc. Op. at 2. The concurring opinion exhorted property owners to emphasize the distinction, and present their Texas Constitutional claims "as an alternative rather than duplicative source of law." Had Schrock done so, "today's case may have turned out differently. Or maybe not. We cannot know for sure until we have a case like this one that includes arguments tailored to our state constitutional law." Id. at 5.

Come on litigants and friends, help us help you:

We cannot meaningfully answer those questions unless litigants undertake substantial additional work beyond invoking federal takings doctrines. To analyze a Texas constitutional claim, we would need comprehensive briefing from the parties (and, I would hope, from amici) on the precise scope of the right to compensation that the Texas Constitution affords. Antecedent questions concerning the nature of the property interests at issue, and whether they can support a claim under our Constitution, also would likely require careful attention.

Id. Have at it, property owners, you now have your Texas roadmap.

City of Baytown v. Schrock, No. 20-0309 (Tex. May 13, 2022)

Who Let The Dogs In? Property Owners Challenge Virginia's "Right to Retrieve" Law That Allows Hunters (& Dogs) To Trespass

After the U.S. Supreme Court in Cedar Point Nursery reminded everyone that the Court's longstanding focus on the right to exclude others as one of the most fundamental of property rights is as fresh today as it ever was (see Kaiser Aetna (uninvited boaters), Loretto (cable TV box), Nollan (beachcombers) and Horne (segregating raisins, for example), we were left with some questions. Most importantly, some of us were wondering "what's next?"

Well try this one on for size. Virginia property owners recently sued the Department of Wildlife Resources over the state's "right to retrieve" law, Va. Code § 18.2-136 ("Fox hunters and coon hunters, when the chase begins on other lands, may follow their dogs on prohibited lands, and hunters of all other game, when the chase begins on other lands, may go upon prohibited lands to retrieve their dogs, falcons, hawks, or owls but may not carry firearms or bows and arrows on their persons or hunt any game while thereon.").

Here's the Petition, which seeks both declaratory relief, and just compensation.[Disclosure: in this case, like Cedar Point Nursery, the property owners are represented by our law firm, Pacific Legal Foundation -- here, our colleague Daniel Woislaw.] Accordingly, I won't be detailing the issues or my thoughts on the case (although you probably can guess -- [don't] release the hounds!).

We leave it to you to read the petition, and follow along. More on the case here, from the Associated Press.

Petition for Declaratory Judgment and the Impaneling of a Jury for the Determination of Just Compensation,...

Cal: A "mandated-but-temporary" Business Closure Isn't A Penn Central Taking

Yet another case rejecting a takings claim for a Co-19 related business shut down.

In 640 Tenth, LP v. Newsom, No. D070339 (May 13, 2022) the California Court of Appeal expressed sympathy for the property owners who have been required to shoulder more than their share of the burdens of these shutdowns. See slip op. at 2 ("We fully appreciate that the adverse effects of the present pandemic have not fallen equally on all segments of society, and that some small business owners are among those who have borne an especially heavy burden.").

But sympathy is all they get.

This case is another challenge to California's emergency order prohibiting both indoor and outdoor dining at restaurants. The state adopted a plan for staged reopening, depending on the assessed risk for viral transmissions in each county, and these total-to-partial shut down orders stayed in place until June 2021, when the enabling executive order was rescinded.

The plaintiffs sued for (among other things) a taking. Skip to page 17 of the Court of Appeal's slip opinion for the takings analysis. "The owners have not alleged a physical taking," slip op. at 17, and therefore the court focused on the Penn Central factors. It concluded that the owners "have not alleged a legally sufficient regulatory taking claim." Slip op. at 19. As we have noted, these type of claims have resulted in "a virtual torrent of California federal district court decisions rejecting similar challenges[.]" Id.

Here's how the court evaluated the factors:

• Economic impact: the plaintiffs' allegation that they suffered "significant" loss is not enough. And their allegation that they were "threatened" with these losses also isn't enough, "[a] regulatory taking requires actual severe economic loss, not merely threatened harm." Slip op. at 21.
• Investment-backed expectations: this factor favored the plaintiffs because although they were already subject to health regulations, "it is fair to say that almost everyone was expecting to conduct business as usual when 2019 transitioned to 2020," and "the public health orders at issue here are different from the type of health restrictions typically imposed on restaurants." Slip op. at 21.
• Character of the government action: the character prong focuses on whether the government action involves a temporary physical occupation. But the plaintiffs here did not allege a physical invasion. The court noted that "there are other ways courts have approached the 'character' issue," pointing out that some courts have balanced the advantages to the plaintiff resulting from the regulation, while others have asked whether the regulation is designed to prevent serious public harm. Slip op. at 22-23. The court concluded that this factor cut against the plaintiffs: "The character of these actions is akin to that of other historical examples of governmental actions undertaken to counter serious threats to the public that were subsequently found not to be takings." Slip op. at 24.

In short, no taking.

640 Tenth, LP v. Newsom, No. D079339 (Cal. Ct. App. May 13, 2022)

It Isn't An "Easement" When Condemnor Is Taking Everything, Permanently

The Cass County Water Resource District wanted to acquire the Sauvageau property for a flood control project. That means flooding the property, removing all trees and vegetation, and taking dirt. Putting the land underwater, permanently. Cutting off the public access road. And removing the Sauvageau home.

The District offered to buy the fee interest from the Sauvageaus for $460,000, the appraised value of the fee interest. They declined. So the District offered $460,000 for a permanent easement. Also declined.

Next up, eminent domain, with the District seeking a "permanent right of way easement" by quick take. We're taking it now, so you have a few months to get out of your home and get off the land. The Sauvageaus objected. You might be able to take our property for a flood control project, but you can't take our property by quick take. Under the North Dakota Constitution, quick take is reserved for acquisitions of "rights of way."

But wait, the District countered, we are taking a right of way: what we're taking is a permanent easement. It's right there in the quick take petition. The Sauvageaus responded that the District might call it an "easement," but in reality, it was trying to get their fee simple interest. The District sought to acquiring the entire property (seeking possession "upon, over, in, under, across, and through" their land). The District is going to permanently occupy the land and cut off access. The District's offered compensation was $460,000, the value its appraiser assigned to the fee simple interest (the appraiser also valued the reverter at $0).

In Sauvageau v. Bailey, No. 2022080 (Apr. 28, 2020), the North Dakota Supreme Court agreed with the owners. Although labeled a "right of way," the interest the District actually sought to acquire is a fee simple interest.

On the basis of the pleadings and the facts in the record, as a matter of law the District is taking much more than an easement or right of way in the Sauvageaus' property. The District is not acquiring a strip or a parcel of the Sauvageaus' property for a right of way. The District intends to close the public road, remove all structures from the property, engage in disturbance of the surface and subsurface, and inundate the property with water. The District is taking the entire property for full value while leaving the Sauvageaus with only a reverter interest with no value.

Slip op. at 9-10.

Thus, no quick take. "By labeling the interest in the Sauvageaus' property as a 'permanent right of way easement," the District is attempting to evade the requirements and property owner protections of [the straight (slow) take process]." Slip op. at 10.

Sauvageau v. Bailey, No. 20220080 (N.D. Apr. 28, 2022)

"Something is very wrong with this picture." Cal Ct App Calls Out CEQA ("fearsome weapon"), Tiburon's "official hostility," And "combined animus of two levels of local government"

Anyone who reads this blog regularly knows Tiburon, California, even if you've never stepped foot there. Yes, that Tiburon. Well, the beat goes on: the Agins litigation wasn't the only time that the town and its residents combined forces to try and draw up the drawbridge and prevent the building of more homes in this very exclusive and chichi Marin County waterfront and hilltop community with commanding multi-million dollar views of San Francisco and the Bay. 

For the latest example, read the California Court of Appeal's opinion in Tiburon Open Space Committee v. County of Marin, No. A159860 (May 12, 2022). It's 110 pages, but don't let that discourage you (it's not necessary to dig into the details, unless you are a true California Environmental Quality Act nerd). The facts alone are hair-raising. But on the other hand, the story may be an old story to you experienced land use hands, who know that your result horizon in the development game can be a long one (buy us a beer at the next ALI-CLE Conference, and I'll regale you with the story of our own land use/takings fight that needed over two decades to resolve).

In this case, the "old story" is a really old story (for our story begins in 1974). You don't remember 1974? Watergate was in full swing, ABBA wins Eurovision, we were freaking out about the price of gas because it was 53¢ a gallon!, the war in Vietnam was winding down but still ongoing, the Cleveland Indians had Ten Cent Beer Night (with predictable results), and Muhammad Ali and George Forman were duking it out in Zaire.

Well that's when the owner of vacant land on the edge of the Town of Tiburon in unincorporated Marin County thought about building some homes. The parcel is 110 acres, and even under the then-zoning's density requirements, that meant 300 residences could be built. But the County rezoned the land to limit the homes to at most 34, and barred development of portions of the property entirely (the "Ridge" and "Upland Greenbelt" areas). Federal regulatory takings lawsuit followed. 

In '76, the landowner and the County settled the federal lawsuit by way of a stipulated judgment. The court ordered that the owner could develop 43 single-family residences on 1/2-acre lots, and that some development could take place in the Ridge and Upland Greenbelt areas. The owner dedicated half of the land to the County as open space and for trail use, and the County determined that 43 homes were consistent with the general plan. Because the owner had not yet produced specific plans or undertaken environmental review, the judgment still required the owner to submit these items for County consideration.

Flash forward years. Decades, actually:

After years of planning, [the owner] submitted its application for a development plan to the County, and the County in turn directed [the owner] to file its application with the Town for approval. After the Town conducted years of study without rendering a decision, [the owner] withdrew its application from the Town and on April 19, 2005, reapplied to the County.

Slip op. at 5.

Did the County comply with the 1976 federal judgment? No. Instead, it returned to federal court, suing the owner and other owners (who had said they would sue the County if it complied with the Judgment), asking that it "be relieved from operation of the Judgment." The main claim was that the Judgment was void because it contracted away the County's police and statutory powers. The federal court dismissed the complaint.

Which resulted in another stipulated judgment in 2007. Which mostly restated the requirements in the '76 Judgment, but also included requirements for processing a subdivision map, and other details to hold the County's feet to the fire. See slip op. at 7-9. 

The next year, 2008, the owner filed an application for development with the County. Three years later, the County prepared and circulated a draft EIR. That started the ball rolling on the CEQA show, with public hearings, comments, objections, responses, and the like. See slip op. at 10-11. As you land users know, CEQA review is ostensibly designed to provide decision-makers with information about a proposed use's impacts, vel non, on the environment, so they can, you know, make an informed decision. CEQA isn't designed to block development by itself, just to allow consideration of environmental concerns. But the reality is much different, and the statute is regularly employed to block or delay development. Justices of the California Supreme Court have said so (even as the court as a whole does nothing about it).

Death by a thousand days can be a potent tool for those committed to opposing development. "Significant environmental concerns" certainly sounds a lot better than "I've got mine." Consequently, the County Board of Supervisors refused to certify the EIR, because of "too many unknowns." Give us more information, property owner! "More than three years passed before [the owner] returned with the 'more specific proposal' demanded by the Supervisors." Slip op. at 12.

By now, we're in 2017, and the County couldn't slow-walk this any longer, and after its lawyer reminded the Supervisors about the two federal court judgments, it reluctantly (3-2) certified the EIR. See slip op. at 14-20.

Next stop, a California trial court. Other Tiburon property owners sued the County and the owner, claiming the EIR approval did not comply with CEQA's requirements, and that the federal court judgments were illegal because they contracted away the County's police and CEQA powers, and were therefore void. Slip op. at 23. The Town of Tiburon intervened to take the side of the plaintiffs. The court rejected the arguments, concluding that the County correctly certified the EIR.

That takes us to page 23 of the Court of Appeal's opinion. The next few pages are devoted to an overview of CEQA, and its ostensible purpose (information), and the limitations of EIRs. See slip op. at 26 ("Too much should not be expected of an EIR. It is not to have the exhaustive scope of a scientific textbook.").

Then the court went through what we consider the really good stuff: are the two federal court judgments void because they "contracted away" the County's police powers and statutory powers under CEQA? Did the judgments deprive County of the discretion to act in the public interest (presumably by denying the development, or by saying yet again that the proposal was incomplete)?

The court first dismissed as "hyperbole," insinuations that the County didn't actually exercise its discretion. Slip op. at 31. The court concluded that the outcome of the CEQA process was not "pre-ordained," and rejected the argument that the County only certified the EIR because it was legally compelled to do so by the judgments. "[P]ointless kabuki," as the court put it. See slip op. at 31 (the court rejected the argument as "without merit").

The court agreed that government generally cannot contract away its police powers, but concluded that here, the County's didn't do so because it in fact did exercise its discretion. The judgments required the preparation of an EIR, which was not a "pro forma exercise." Slip op. at 34. The County could not "blow off" (court's words, not ours) CEQA, nor did it. Id. The "lengthy administrative process attending the EIR" confirmed that the County's consideration was not pretextual. The court rejected the plaintiffs' and the Town's implicit assumption that once environmental issues are present, CEQA requires that environmental concerns override everything else:

Petitioners' novel framework, under which longstanding legal obligations would become unenforceable when subject to environmental review, would turn California law on its head.

Slip op. at 35. No, the court concluded, the County was acting as CEQA envisions, because -- guess what -- even if there are impacts on the environment, the reviewing agency can override when it "deems a project sufficiently important or desirable for reasons that override the normal obligation to mitigate significant environmental effects." Slip op. at 37.

The court held that the County did not agree in the judgments "to exempt a class of applicants or ... quit the particular regulatory field." Nor has it "conditioned its exercise of authority upon the agreement of other governmental entities, thus giving those entities actual control or veto power," or agreed "to refrain from legislating in the future," or "approve a project it knew was incompatible with its general plan," or agreed "to give a developer an exemption from zoning laws." Nor was this a "situation where an otherwise valid agreement has been rendered invalid by subsequently enacted regulation." Slip op. at 37-38. 

What we have here is simply a single project with a particular set of attending circumstances, one of which is concluded litigation. There is nothing intrinsically suspect about a governmental entity settling a lawsuit brought by a property developer. Quite the contrary, the law favors and encourages the settlement of legal disputes. Indeed, the practice as applied to property development disputes is common and has been approved by our Supreme Court. Moreover, although it may look a bit like putting the cart before the horse, a lead agency can commit to a project before completing a thorough environmental review.

Slip op. at 38.

And don't forget that the underlying judgments were not just plain old civil judgments, but federal court judgments resolving a federal civil rights case, all of which the County signed on to. As the court put it, "[t]he 1976 Judgment was not an abandoned derelict that suddenly loomed out of the fog." Slip op. at 39. The Town and the plaintiffs "knew it was a dagger pointed at the heart of their campaign to defeat entirely any development of the site, or failing that, to minimize the extent of any development." Id.

And shouldn't a citizen be able to rely on the government's word (especially when that word is given in open court? 

Twice, the County pledged its name and good faith in accepting that [the owner] would be allowed to build at least 43 units on lots of at least one-half acre. To judge from the County Counsel’s remarks to the Board, it may safely be assumed that the County acceded to the 1976 Judgment in recognition that its 1974 re-zoning attempt exposed it to significant monetary liability. Certainly, no one would question [the owner]’s natural inclination to take the judgment at face value, believing the County’s word was good.

Slip op. at 39.

Having resolved that issue in favor of the County and the property owner, the opinion turned to the specifics of the plaintiffs' CEQA objections, including things like project description, analysis of alternatives, mitigation of impacts (for things like traffic safety (really), traffic density (really), pedestrian safety (sounds like an environmental impact, doesn't it?), impacts on the California Red-Legged Frog, groundwater supply, something called "fire flow," the impacts of the temporary construction road). The court also rejected the kitchen sink (we kid, we kid). See slip op. 44-104. We'll leave those to you to digest, you CEQA mavens.

The opinion ended with four pages that really are worth your time. Therein, the court made some choice comments:

• The extreme amount of time the case has taken thus far ("This dispute is almost as old as CEQA itself.")
• The sheer size of the reporting ("When finally certified in 2017, the EIR has been more than 20 years in the making, ballooning to almost three times the recommended maximum size of 300 pages. And now it is 2022, five more years later.").
• CEQA "can be manipulated to be a "formidable tool of obstruction, particularly against proposed projects that will increase housing density."
• Agreeing with the observation that "[n]ew housing projects were the most frequent target of CEQA lawsuits,” and “the percentage of CEQA lawsuits against new housing units" has even been increasing in recent years." We're not dealing with NIMBYs, More like BANANAs.
• That the record here, despite it sheer size and the length of time it took to develop it, is "woeful."

The opinion wrapped with this:

It must be tough enough when the opposition is purely private.  However, when private opposition is joined with official hostility, CEQA becomes an even more fearsome weapon. When the project proponent faces sustained private opposition, plus the combined animus of two levels of local government, the temptation to throw in the towel must be overwhelming.

Something is very wrong with this picture.

Slip op. at 108.

And even though a court has now, finally, set the record straight, this ain't over. Gas may now be nearly $7 a gallon, and the Cleveland baseball club is the "Guardians" (but ABBA is still here). Are there other ways that the Town and opponents can deny, delay, and obstruct? We're not saying no.

Four decades, and counting....

Tiburon Open Space Committee v. County of Marin, No. A159860 (Cal. Ct. App. May 12, 2022)

Rational Basis, My Butt! Taking For Bike Trail Isn't For "Conservation of Natural Resources"

Here's one we've been meaning to post for a while. In Bd. of Comm'rs of Mill Creek Park Metro Dist. v. Less, No. 20MA0074 (Apr. 14, 2022), the Ohio Court of Appeals held that the Park District lacked the authority to condemn Less's property for a bike path, which did not qualify under the authorizing statute as the "conservation of natural resources."

The District adopted a resolution to build a bike path on an old railroad right of way, a portion of which had already been constructed, and a resolution to acquire a perpetual easement. Ohio statues require the condemnor to provide written notice to the owner 30 days before filing of an eminent domain case. Ohio law also limits the power of agencies such as the District to take to property for forest reserves, and "the conservation of natural resources."

The owners objected to the taking, asserting that the District had not complied with the notice requirement, and that a taking for a bike path doesn't qualify as the preservation of natural resources. The owner sought summary judgment, but the trial court rejected the motion.

The court of appeals reversed and entered judgments in favor of the property owner. The court concluded that the District's taking of a bike path is beyond its statutory authority to take because a bike path isn't a forest reserve, nor is it the conservation of natural resources, even though under a very generous and deferential reading of the statute, a bike path kinda sorta could be the conservation of a natural resource. As the court noted:

The primary question, in our view, is whether the creation of bikeways or recreational trails, which are for public use, constitute the conservation of natural resources of the state, a purpose which is required under R.C. 1545.11 in order for a park district to appropriate private property for a park or parkway.

Slip op. at 22. Although the court acknowledged that an argument could be made that nearly anything might count as conservation of natural resources (Barista's note: this recalls the Berman "well-nigh conclusive" language), it adopted a much more sensible reading:

In our view, despite the reasoning set forth in both MacNAB and Snyder, characterizing essentially anything that serves the public and contributes to the health and welfare of the community as the “conservation of natural resources” is a bit of a stretch, especially when considering that the statutory grant of authority contained in R.C. 1545.11 should be strictly construed and it should be construed in favor of the property owner.

Slip op. at 26. A "bit of a stretch" indeed: because "the public need is speculative at best and the harm to the private property owners is great[,]" the court concluded the District lacked the authority to take. Slip op. at 28 ("Although the 2018 resolution is more elaborate, it is still devoid of any language tying the expansion of the bikeway to the general health and welfare of the public or the conservation of natural resources."). Throw in the rule of construction that eminent domain statutes are read liberally in favor of the property owner and against the taker, and you have the court's rationale. Having determined that the District could not take Less's property, the court considered the lack of notice argument moot.

In sum, the ruling on appeal terminated the case in favor of the property owner. Game over, with a very limited remand so the trial court can "carry this judgment into execution."

We think this is a good one for you to read, and recommend you check it out.

Bd. of Comm'rs of Mill Creek Park Metro. Dist. v. Less, No. 20MA0074 (Ohio App. Apr. 14, 2022)

Hawaii Land Use Law Conference, May 25-26, 2022, Honolulu - Join Us!

It's back! After a hiatus on the in-person program, the bi-annual Hawaii Land Use Conference is back in-person (see here for a sample of one of our prior presentations at this conference).

May 25 and 26, 2022, downtown Honolulu.

The full agenda and speaker list has not yet been published, but here's a summary of the program:

Sponsored by the Hawaii State Bar Association and the Real Property and Financial Services Section. Coordinated by David Callies and Benjamin Kudo, his 2-day conference is a must attend for any attorney or professional whose practice involves land use and development. Distinguished land-use practitioners, scholars, planners, and regulators from Hawaii and the Mainland will discuss timely and relevant issues, including:

• Takings 

• Transit Oriented Development (TOD) 

• Seawalls and Shoreline Access 

• Climate Change 

• Affordable/Workforce Housing 

• Ethical Considerations for Real Property Practitioners and Other Professionals

We'll be speaking during the session on Takings, along with our colleagues Greg Kugle, Brad Saito, and Ellen Ashford.

Register here (limited to 70 registrants, no walk-ins, so be sure to get your spot now). Travel to and from Hawaii is back open and no more Co-19 hassles at the airport, so take advantage of the opportunity for a little R&R and CLE. 

As Jack Lord would say, "be there, aloha!"