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WVa: Tort, Not Inverse (At Least Where Municipalities Are Involved)

The line between negligence torts and inverse condemnation can be a fine one. In Roman Realty, LLC v. City of Morgantown, No. 220587 (June 11, 2024), the West Virginia Supreme Court came down on the tort side.

Now before we go on, a caution: technically speaking the claimant did not assert an inverse condemnation claim. Rather, after the city removed trees and altered the slope of land such that surface water increased on the owner's land, it brought a petition for mandamus to compel the city to institute eminent domain proceedings. There are places that approach it that way.

Here's the gravamen of the petition:

In its verified petition for writ of mandamus to compel eminent domain proceedings, Petitioner alleged that during project construction, eleven trees were removed from its property and “approximately 1,000 square feet of Petitioner’s property was excavated and used as a dump site.” Additionally, Petitioner stated that eight additional trees were heavily damaged by the project. Finally, Petitioner averred that the slope of its property was greatly altered and surface water increased as a result of Respondent’s activities, leading to “a massive issue of surface water” on Petitioner’s property.

Slip op. at 2.

The trial court granted summary judgment to the city, because the owner could sue in tort (and thus has an adequate remedy at law, and thus no mandamus).

The Supreme Court affirmed. It first acknowledged that the West Virginia Constitution requires just compensation or damages when property has been taken. [B]ut it does not mention or require that such compensation be in the form of eminent domain." Slip op. at 4. Thus, a property owner's rights may be protected if West Virginia law recognizes a tort remedy here.

The court next distinguished such claims against the state (as opposed to claims against a municipality). Yes, the mandamus-to-compel-eminent-domain is a well-settled feature of West Virginia procedure. But that is only in cases against the State, because the State has sovereign immunity from tort claims. But that immunity does not necessarily cover municipalities, which can be sued in tort for damages. And here, the city's lawyer at oral argument conceded that the city does not enjoy "blanket immunity" for torts. Slip op. at 6-7 ("Because Respondent’s counsel plainly stated there was no blanket immunity for Respondent, Respondent did not raise statutory immunity in its amended summary judgment motion before the circuit court, and the circuit court did not address statutory immunity in its order, the Tort Claims Act is not a bar to Petitioner’s ability to receive just compensation through a tort action in this case.").

The court also rejected the owner's argument that a tort claim for damages is not as good as the just compensation remedy. No, the court concluded, "remedies available to a property owner in a tort action against a municipality are, in fact, the same as those available from the State in a condemnation proceeding." Slip op. at 7.

Because the owner was granted leave to amend its complaint to allege a tort claim for damages, the court was satisfied nothing would be lost substantively (at least in this case, as opposed to a future case where the municipality did assert a greater scope of sovereign immunity). Here, the owner merely alleged the incorrect cause of action, an action that amendment would remedy.

Roman Realty, LLC v. City of Morgantown, No. 22-587 (WV June 11, 2024)

Unhappy 45th Birthday, Penn Central

If you know, you know.

Sad birthday wishes to our most un-favorite decision ever, Penn Central Transp. Co. v. New York City, 438 U.S. 104 (1978), which turns 45 today.

Time has not treated the opinion well. Practitioners, judges, and legal scholars across the spectrum have called the three-factor Penn Central test for an ad hoc regulatory taking "demanding," "fuzzy," a four-part test, "neither defensible as a matter of theory nor mandated as a matter of precedent," and "problematic" and "mysterious." Courts mess up the basic meaning of the factors, treat what is supposed to be a fact-centric "ad hoc" test as a legal question decided on the pleadings, and gatekeep most of these cases from juries.

The definitive deconstruction of the case was Professor Gideon Kanner's "Making Laws and Sausages: A Quarter-Century Retrospective of Penn Central Transportation Co. v. City of New York," 13 Wm. & Mary Bill Rts. J. 679 (2005). A must-read for anyone who plays in the Penn Central sandbox. 

If you want to be a part of rethinking Penn Central, listen to this episode of Clint Schumacher's Eminent Domain Podcast with our colleague Jon Houghton ("Jon Houghton and His Penn Central Quest"), or early-bird register for the 2025 ALI-CLE Eminent Domain and Land Valuation Litigation Conference in San Diego (Jan. 30-Feb 1, 2025), where we will be putting on a presentation about alternative regulatory takings tests. Penn Central is not written in amber.

But until something better comes along, let's wish Penn Central an Un-Happy Birthday.

Penn Central Transp. Co. v. New York City, 438 U.S. 104 (1978)

Argument Preview: Is Gov't Imposed "Church Purposes" Deed Restriction Void?

Today at 10am Hawaii Time (1pm PT/4pm ET), the Hawaii Supreme Court will hear oral arguments in a case asking whether a 1922 deed restriction imposed by the Territory of Hawaii on a land patent conveying fee simple title to a private owner, subject to the land always being used for "church purposes" (i.e., a fee simple determinable) void under either the Hawaii Constitution's Establishment Clause, the U.S. Constitution's Establishment Clause, or a Hawaii statute declaring that "[e]very provision in ... a written instrument relating to real property that purports to forbid or restrict the conveyance ... to individuals because of .. religion" is void? 

Here's how the Judiciary's web site describes the case:

In 1922, the Territory of Hawai‘i sold property to Heber J. Grant, trustee for the Church of Jesus Christ of Latter-Day Saints, pursuant to a Land Patent.  The Land Patent contained a restriction requiring the property be used “for Church purposes only” and a reversionary interest to the Territory if the property is “used for other than Church purposes” (Deed Restriction).

Plaintiffs-Appellants Hilo Bay Marina, LLC and Keaukaha Ministry LLC (Petitioners) are the current owners of the property.  Petitioners sued Defendants-Appellees State of Hawai‘i and Board of Land and Natural Resources, State of Hawai‘i (State) in the Circuit Court of the Third Circuit (Circuit Court) asserting the Deed Restriction is void under Hawai‘i Revised Statutes (HRS) § 515-6(b), it violates article I, section 4 and article VII, section 4 of the Hawai‘i Constitution, and it violates the Establishment Clause of the First Amendment to the United States Constitution.

The parties filed cross-motions for summary judgment and the Circuit Court granted summary judgment for the State.  Petitioners appealed and the appeal was transferred to this Court.

Petitioners assert the Circuit Court erred by concluding:

(1) The practice of selling government lands with deed restrictions was an early form of use-zoning and is interpreted as a historical practice of zoning;

(2) HRS § 515-6(b) does not void the deed restriction;

(3) the deed restriction does not violate article I, section 4 of the Hawai‘i Constitution for the same reasons that it does not violate the Establishment Clause of the First Amendment to the United States Constitution, and even if article I, section 4 of the Hawai‘i Constitution is not coextensive with the Establishment Clause in the United States Constitution, the deed restriction passes constitutional muster under Lemon v. Kurtzman, 403 U.S. 602 (1971);[**] and

(4) the deed restriction does not violate the Establishment Clause in the United States Constitution. 

[**Hawaii still applies the Lemon test for establishment cases under the Hawaii Constitution.]

Here are the briefs (a reminder that this case was fast-tracked to the Supreme Court by transfer from the court of appeals, so the Opening and Answering Briefs were filed in the appeals court before transfer, while the Reply was filed after, and thus has a slightly different caption:

• Property owner's Opening Brief
• State of Hawaii's Answering Brief
• Property owner's Reply Brief

The case is worth following. Check it out.

Hawaii: Permit Conditions Not Subject To Nollan/Dolan When There's No Taking Claim

A short one (for us takings types) from the Hawaii Supreme Court.

In In re Surface Water Use Permit Applications, No. SCOT-21-0000581 (June 20, 2024), the court considered a challenge to the State of Hawaii Commission on Water Resource Management's authority to impose conditions on a water permit. The applicant asserted that the nexus and proportionality requirements of Nollan and Dolan must have been complied with.

No, the court concluded, those standards only apply where there's a takings claim present. And there's no takings claims here:

WWC relies on Nollan v. California Coastal Commission, 483 U.S. 825 (1987), and Dolan v. City of Tigard, 512 U.S. 374 (1994), to argue that any conditions the Commission attaches to its SWUP for system losses must relate to those losses. WWC attempts to frame Nollan and Dolan as providing a “clear statement of the unconstitutional conditions doctrine,” but fails to specify which constitutional provisions the conditions violate and of which constitution. Nollan and Dolan specifically apply to takings claims. WWC is not asserting a taking. Thus, WWC’s reliance on them necessarily fails.

Of course, the Commission cannot condition SWUPs on anything it wishes; as WWC states, those conditions must relate to the Commission’s jurisdictional powers. That is the applicable limit on the Commission’s powers – not Nollan and Dolan. And as explained above, the conditions here are within the Commission’s broad jurisdictional powers to implement and administer all aspects of the Water Code.

Slip op. at 129-130 (footnotes omitted).

How can we call a 134-page opinion "short?" Well, the good stuff is only at the tail end, and only a couple of pages long, and was just one sidebar issue in a whole panoply of arguments.

What about the rest of it? No surprises there: like many Hawaii Supreme Court opinions on water rights and the public trust, it is is gargantuan, detailed, and the Commission fares no better in this case than it does in practically every other case it is involved in in this court (it loses).

Unless you fancy yourself a 808 water rights maven, you can skip all but the good stuff.

In re Surface Water Use Permit Applications, SCOT-21-0000581 (Haw. June 20, 2024)

Statutory Fee Recovery In Minnesota Condemnations Not Limited By Contingency Fee Agreement

This is a short one, and the title of this post pretty much sums up the Minnesota Supreme Court's opinion in State of Minnesota v. Schaffer, No. A23-0036 (June 20, 2024).

The case addressed a frequently-occurring issue in jurisdictions which permit some kind of fee recovery in eminent domain cases. Where a statute permits a property owner to recover "reasonable" attorney fees, how is the recovery calculated? By the usual "lodestar" formula (reasonable time x reasonable fee), or is it limited by the actual contractual arrangement between the property owner and her lawyer (in this case a contingency fee that resulted in a fee less than a lodestar-determined fee). 

The court held rejected MDOT's argument fee recovery under the statute "cannot exceed the amount owed to the landowner's attorney in a contingency fee agreement[.]" Slip op. at 2. The court held:

We reiterate what we held in Cameron: the phrase “reasonable attorney fees” in section 117.031(a) refers to attorney fees calculated by the lodestar method, and thus we hold an award of reasonable attorney fees is not capped by a contingent fee agreement.

Slip op. at 3.

"Reasonable" means objectively reasonable, and not whatever the owner worked out with his or her lawyer, and is not limited to reimbursement of fees actually incurred or obligated to pay. The fee actually agreed to may be one of the factors a court may consider, but "it is to be just one factor." Slip op. at 7.

State of Minnesota v. Schaffer, No. A23-0036 (Minn. June 20, 2024)

Can The California Coastal Commission Be Reined In?

The California Coastal Commission is infamous for being the most out-of-control governmental agency in the nation. This regulatory leviathan fancies itself the undisputed czar of land use and other activities in its fiefdom, the California coastal zone.

Created in 1976 as an agency with regulatory authority across California's 1,000+ miles of coast (and land in a defined shoreward zone), it has since expanded to its current role as a government-outside-the-government, whose main role it often seems is more about wielding an iron fist over anything that happens in the coastal area, than protecting coastal access and resources while also respecting property rights as its governing statutes require.

The Commission has been blessed with procedures that appear insanely unfair to anyone not familiar with how things work in California. For example, any two Commissioners may file an administrative appeal of a municipalilty granting a development permit to get it overturned; and to whom do the Commissioners appeal? To the very Commission on which they sit, of course! Yeah, that seems fair.

For decades, the Commission has enjoyed unprecedented power and a legislature and judiciary unwilling to place or enforce any realistic limits on its power. For example, the courts have interpreted a statute that bars the Commission from taking property without compensation to give the Commission the discretion to waive, overrule, or ignore any restrictive state or local coastal law, if the Commission believes to apply it would result in a taking (the Coastal Act are full of these type of restrictions on use). This is tantamount to the Commission exercising legislative power to rewrite the law ad hoc.

OK, enough editorializing. (Strong letter to follow!)

But of late, there may be cracks in the edifice. In large part because of the YIMBY movement, the Commission has become subject to public criticism for being an impediment to reasonable development, something it is not all that used to. Why should Bakersfield, Fresno, and non-coastal communities bear the burden of absorbing the new housing needed to address California's housing shortage, while the while I-got-mine elite coastal enclaves maintain their exclusivity?

A group called "Circulate San Diego" has studied this phenomenon and published this report ("A Better Coastal Commission"):

This report documents numerous examples where the Coastal Commission has resisted, opposed, and delayed the construction of deed-restricted affordable homes that use programs like Density Bonus Law. This is even true for projects on land that is already zoned for multi-family housing, in plans already approved by the Coastal Commission itself.

Similarly, this report documents examples where the Coastal Commission opposes projects that the Legislature encourages as a part of California’s efforts to combat climate change. Crosswalks, bicycle lanes, and infill development near transit are all goals of recent statewide legislation, yet the Coastal Commission opposes or delays many of these projects. Their decisions to prioritize car travel above all other modes is inconsistent with modern climate goals, as adopted by the Legislature.

The report makes some modest recommendations for reform:

• Amend Density Bonus Law to require its implementation by the Coastal Commission, as proposed in AB 2560 (2024).
• Remove or narrow the special exemptions that keep housing reforms from applying to the coast.
• Mandate procedural reforms at the Coastal Commission.
• Apply transportation and climate policy to the Coastal Zone.
• Avoid creating, or narrowly draw, coastal exemptions to new housing legislation.
• Look skeptically on Coastal Commission requests for more authority.

Reacting as you might expect (with affront), the Commission is "offended at even the suggestion" it gets in the way of housing in the coastal zone. See this story from the San Diego Union-Tribune ("Has the Coastal Commission made housing and climate crises worse? It's offended at even the suggestion"). 

But this seems to be one of those "moments." After all, even the Commission's usual allies are asking questions and proposing reforms. When you've lost San Francisco democrats, and the California Supreme Court agrees to take up the first case in a decade which may call your power into question, Coastal Commission, you are missing the cultural zeitgeist. 

Will anything come of this report, and the reform movement generally? Will there be a reckoning for the California Coastal Commission?

If one is in the cards it won't be easy because we know that when there's a threat to its power, it pulls out all the stops and fights like hell. Stay tuned. 

Juneteenth Reminder: Emancipation Had Its Roots In The Property-Based "Contraband" Legal Theory

Today is a good day to remember that legal emancipation had its roots in the "contraband" property theory. Here's a post from a few years ago where we visited what we called "The Birthplace of a More Perfect Union" (Fort Monroe, Virginia).

The contraband property theory was itself very imperfect, and a compromise theory driven by practicality and politics. But it was a legal theory that laid the foundation for a general acceptance of emancipation, and led inexorably to the Emancipation Proclamation, and the Thirteenth, Fourteenth, and Fifteenth Amendments. 

A good reminder that property law and property rights are not primarily about land, or dirt, or "development," but about freedom and human rights.

Fla App: Govt Agreed To Be Bound By Restrictive Covenant, But So What!

A short one (per curiam is one two-sentence paragraph), with an interesting concurring opinions from the Florida District Court of Appeals (4th District).

In Vazquez v. City of Hallandale Beach, No. 4D2023-0833 (June 12, 2024), the court held that a restrictive covenant that ran with Vazquez' land (and others in his subdivision, including the city, which had agreed to be bound by the covenant in the settlement of a 1969 lawsuit) is not a compensable real property interest that must be compensated when wiped out by what otherwise would be a regulatory taking.

Vazquez sued the city, asserting that its marina and parking lot violated a buffer zone which had been created by the 1969 settlement. The city was a party to that lawsuit and settlement agreement. The city agreed that yes, the buffer zone indeed had that effect. But we're the government and even though we agreed to be bound by the restrictive covenant in that settlement agreement back in the day, we're not bound by it now. These are contract rights not property rights, and thus unenforceable against the government.

Chief Judge Klingensmith "reluctantly" concurred, noting that the precedents support the court's conclusion when the government has not bound itself via agreement to the covenant. However, he found it important that the city was a party to the settlement and had agreed to be bound:

Phrased differently—in contrast to Bay Harbor and Ryan—the City did not simply acquire land with an existing restrictive covenant attached to the land. Rather, the City created the same restrictive covenant that it now seeks to destroy. Thus, the fact that the City did not own the property in question at the time of the 1969 settlement is irrelevant.

The City also argues that even though it was a party to the 1969 agreement which created the restrictive covenant, and despite the City being involved in a 2012 declaratory judgment action to enforce the restrictive covenant, the City itself was not—nor was it ever—bound by that restrictive covenant. Indeed, the City claims it was free to violate the restrictive covenant at will and has no obligation whatsoever pursuant to Bay Harbor and Ryan to use the power of eminent domain to extinguish the restrictive covenant. In my opinion, this is the very definition of an illusory contract. Despite the City’s assertions that the contract is not illusory, the City has wholly failed to explain under these circumstances why it is not. Pan-Am Tobacco Corp. v. Dep’t of Corr., 471 So. 2d 4, 5 (Fla. 1984) (a contract is illusory if it is not mutually enforceable).

Slip op. at 3 (Klingensmith, C.J., specially concurring).

Judge K didn't like this, but felt "constrained" by the Florida Supreme Court's decisions in the Bay Harbor and Ryan cases that restrictive covenants are categorically contract rights not enforceable against the government, and not property rights. In his view, "both private and public parties should be held to the agreements which they freely enter." Slip op. at 3-4 (Klingensmith, C.J., specially concurring).

One other judge also specially concurred, noting that the 1969 settlement agreement did not contain a clear and express waiver of the city's sovereign immunity.

With two judges offering their input, might this not be the end of this one? Stay tuned.

Vazquez v. City of Hallandale Beach, No. 4D2023-0833 (Fla. Dist. Ct. App. June 12, 2024) (per curiam)

Vermont: Environmental Court Doesn't Have Jurisdiction To Determine Property Rights, But We're Going To Find No Cedar Point Taking Anyway

DJK was adding a bedroom to an existing residence and needed a wastewater permit from Vermont's environmental agency. The agency has a "presumptive isolation zone" around potable water supplies and septic systems in which a property owner is presumed to be barred from doing anything sewage related. In this case, the isolation zone for DJK's property crossed over onto the property of their neighbors, the Crowleys.

The agency granted DJK the permit, which contained a provision that not only no sewage-related construction could take place in the isolation zone, but that "[n]o buildings" could be construction which "might interfere with the operation of a wastewater system or potable water supply[.]" Remember, the isolation zone was located partially on the Crowley property.

The Crowleys were not very appreciative, so appealed (to a Vermont trial court sitting as the Environmental court). They argued that the permit was invalid because it worked a taking of their land, imposed an unconstitutional condition, and they had not received notice and an opportunity to be heard before the permit was issued.

The Environmental court granted the agency summary judgment, concluding the court lacked jurisdiction over what it called the "property-related issues and rights." But the court continued and considered if the permit imposed an uncompensated taking ("The court did consider if 'the Rules, as applied to [neighbors] by way of the Permit, amount[ed] to a taking due to the State’s placement of potential development limitations on their propert[y].'"). We're not all that clear on the distinction being drawn and how a court without jurisdiction can make a ruling on the substance of the claim, but there it is. The court concluded the permit did not impose a physical invasion taking, and the Crowleys got all the process they were due.

In In re DJK, LLC, No. 22-AP-269 (June 14, 2024), the Vermont Supreme Court affirmed. The court rejected the Crowleys' assertion that the case "involves the legality of permit conditions," which would mean that the Environmental court had jurisdiction under the Vermont statute which grants jurisdiction over such claims. Slip op. at 10.

Not so, held the court, "[t]he fact that the Environmental Division [of the trial court] has authority to consider permit appeals does not authorize it to adjudicate private property disputes, such as the existence of easements. The civil division, not the Environmental Division, has jurisdiction over such matters." Slip op. at 11. This is a "private property dispute," slip op. at 12, and thus no jurisdiction. Slip op. at 14 ("Neighbors offer no persuasive authority in support of their assertion that the Environmental Division had jurisdiction to determine if the permit created an easement in their property and we reject their first claim of error.").

Well, okay then. End of this story, no? If the Environmental division doesn't have jurisdiction but the civil division does, the Crowleys can go file their constitutional claims there, right? You might think a "no jurisdiction" conclusion would mean that any rulings by the Environmental division would be ultra vires, yes? Or maybe not:

¶ 35. As referenced above, the Environmental Division did consider if the permit condition effected a taking under the analysis in Cedar Point Nursery, that is, whether the regulation authorized a physical invasion of their property. This was consistent with its authority to consider “property-related issues and rights . . . within the scope of the regulations governing the permit application.”

Slip op. at 14-15.

Wait, what? To get to this conclusion, the Supreme Court had to make a very nuanced distinction: the Environmental court didn't have jurisdiction to consider the constitutionality of the agency's actions, but nonetheless could reach the conclusion that the permit did not impose a physical invasion taking, and this is consistent with its jurisdiction to consider property issues "within the scope of the regulations governing the permit application." See slip op. at 15 ("¶ 37. Neighbors fail to show that the court erred in finding the absence of any physical invasion here.").

There might have been an easement created by the isolation zone (and that is a matter beyond the jurisdiction of the Environmental court), but the court concluded that there hasn't yet been an "actual physical invasion" of the Crowley's property. Slip op. at 16. 

If you can figure this one out in a way that makes sense, please let us know.

In re DJK, LLC, No. 22-AP-269 (Vt. June 14, 2024)

King John: Sure, I'll Affix My Seal To This Charter...What Could Go Wrong?

Our annual reminder that 809 years ago tomorrow (June 15), the "great charter" (Magna Carta) was executed at Runnymeade. (And yes, we know that due to the change in calendars in the interim it wasn't necessarily this very day, and also that King John didn't sign the document, but rather sealed several copies of it.)

We naturally focus on Article XXVIII as the foundation for the limitations on the sovereign's power to forcibly acquire private property, but let's not forget the other bits as well.

So Happy Birthday, Magna Carta! You don't look a day over 800.

Register Now! ALI-CLE Webinar "Property Rights and Regulatory Takings at the Supreme Court" (With Counsel For Sheetz & Devillier) - July 16, 2024

Mark your calendars and register now for the upcoming American Law Institute-CLE webinar "Property Rights and Regulatory Takings at the Supreme Court." The focus of this program is a summary and analysis (including "what's next?") of the two big property and eminent domain cases decided by the U.S. Supreme Court, Sheetz (exactions), and Devillier (just compensation remedy).

We've brought together counsel for the property owners in the cases, as well as a legal scholar to provide an academic view of the cases and issues.

The faculty:

• Larry Salzman - Vice President for Litigation, Policy & Research, Pacific Legal Foundation
• Robert McNamara - Deputy Litigation Director, Institute for Justice
• Professor Elizabeth Elia - University of New Mexico School of Law

Details:

• Date: July 16, 2024
• Time: 12n - 1pm Eastern Time
• Format: webinar, with audience questions
• CLE credits: ALI-CLE programs are approved for CLE credits in most jurisdictions

Come join us!

More details including registration information here.

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California SCT To Review Major Challenge To Coastal Commission's Claimed Power To Overrule Local Govt's Housing Approvals

Disclosure: this one is one of ours, so we're not going to do a deep dive or do much commentary (must resist!).

Yesterday, the California Supreme Court granted a Los Osos property owner's petition, and agreed to review an (unpublished) Court of Appeal opinion which held that the California Coastal Commission has the authority to appeal (to itself!) the County of San Luis Obispo's decision to grant Shear a Coastal Development Permit to build a handful of homes in the coastal zone.

The County has adopted a Local Coastal Program ordinance regulating development in the coastal zone in the County. Under the California Coastal Act, a municipal government adopting a LCP delegates to the municipality to authority to make these type of land-use permitting decisions, with a very limited window for the Commission to inject itself. The point of the Coastal Act is to maintain a high degree of local control if a municipality has taken the effort to adopt an LCP to reflect its understanding of its obligation to protect public coastal resources when it is making land-use decisions.

In 2003, Shear began the process of building homes on its eight lots zoned by the County for residential development. In 2004, the County approved Shear building eight homes in two stages. In 2017, after Shear completed the first four homes, it sought the County’s approval to complete the balance. After consideration of Shear’s plans under the LCP, the County granted a Coastal Development Permit.

That should have been the end of it. But after the County’s approval, the Commission appealed the County's decision. And to whom did the Commission appeal? In one of the weirdest procedures we've ever heard of, California law allows two members of the Commission to institute an appeal these kind of things...to the very Commission on which they serve. Seems fair (must resist!). Despite the Coastal Act delegating exclusive land use decision-making to local governments that have adopted an LCP, the Commission's appeal claimed that it has the power to overrule all local permitting decisions.

The lower courts agreed. With the County's support, Shear sought discretionary review, and the California Supreme Court said yes.

This case is important for a few reasons beyond the legal questions presented. First, it is the first case in a decade where the California Supreme Court has agreed to review a challenge to the Commission's claimed coastal fiefdom, which appears nearly armor-clad in California's courts (although the Commission's excesses don't play all that well when courts beyond California bother to look).

Second, not only is this a home rule issue about the Commission's lack of respect for local LCP municipalities, but one where coastal property owners need to understand clearly who they need to deal with when seeing government approvals to make presumptively reasonable use of their land (remember, this property is zoned for residential uses); the Commission's position that it is the final czar on all this stuff often puts landowners in the middle of these type of intra-government jurisdiction fights where the only loser at the end is the landowner (flashback to two wolves and a lamb voting on what's for dinner). 

Finally and maybe most importantly, this case brings into sharp focus the ongoing public realization that the Commission has been a substantial impediment to coastal communities carrying their fair share of addressing the housing crisis in California. For example:

• California coastal protections versus housing: The battle is on (SF Chronicle)
• My house of my beach? How California's housing crisis could weaken its coastal protections (Cal Matters)

Will the California Supreme Court bring the Commission back in conformity with the law?

Congratulations to our colleague Jeremy Talcott (who chairs our Coastal Initiative) for the petition grant. Stay tuned here for more. Or follow along on your own on the court's docket. 

Petition for Review, Shear Dev. Co., LLC v. Cal. Coastal Comm'n, No. S284378 (Cal. Apr. 2, 2024)

New "Spite Taking" Cert Petition: Can Govt Take Property To Stop Owner From Making An Allowed - But Disfavored - Use?

Here's the latest in a case we've been following.

Our friends at the Institute for Justice have filed this cert petition asking the Supreme Court to take up the case where a New York town eminent domained the Brinkmann property for a public park.

What's wrong with that, you ask...isn't a public park a "classic" public use? Yes. But the twist here is there was also a showing that what actually motivated the taking wasn't some need for another public park in the town, but rather the public's dislike of the use the Brinkmanns intended for their land.

These are what we call "spite takings," where the main purpose behind a condemnation isn't really to do something public with the land, but to stop a disfavored use. Are these ok under the Public Use requirement because -- as the Second Circuit panel majority held -- that who cares about motivation as long as the use is public and not a pretext to a private benefit. Or does it offend the Public Use Clause -- as other courts have held -- to say you're taking it for some public use, when your real motivation is something else (even if not a private benefit)?

Underlying all this is what we see as the predicate question: should the government be in the business of using eminent domain to forcibly acquire private property because the owner is making -- or as here, proposes to make -- an allowed use of the property that the government or the public doesn't like?

Here's the Question Presented:

The Second Circuit, in a 2-1 decision over a dissent by Judge Menashi, held that the Public Use Clause does not prohibit taking property when the asserted public use is a sham. The panel agreed that the complaint alleges “facts sufficient to support a finding” that Respondent Town of Southold’s “decision to create a park was a pretext” for stopping Petitioners from opening a hardware store. But the majority held that, as long as the Town puts a park on the land, it does not matter that the government’s true purpose is to run an otherwise law-abiding property owner out of town.

Judge Menashi would have held that “the Constitution contains no Fake Park Exception to the public use requirement of the Takings Clause.” A park does not satisfy the public-use requirement when its actual purpose and but-for cause is illegitimate, as stopping lawful activity is. Judge Menashi would have “adhere[ d] to precedent providing that a pretextual, bad faith taking violates the public use requirement.” He recognized that “the court’s decision creates a split with decisions of several state supreme courts,” including Connecticut, meaning that the Takings Clause rights of Connecticut citizens now depend entirely on whether the case is in state or federal court.

As framed by the majority below, the question presented— indeed “[t]he only question”—is “whether the Takings Clause is violated when a property is taken for a public amenity as a pretext for defeating an owner’s plans for another use.”

Here's IJ's media release about the petition.

Stay tuned for more.

Petition for a Writ of Certiorari, Brinkmann v. Town of Southold, No. 23-___ (U.S. June 11, 2024)

(Another) Must-Listen Podcast: Infrastructure Junkies' "The Greatest Eminent Domain Story That You've Never Heard!"

This one is about Robert Moses. Yeah, that guy. You may think you know the story, but even if you do, it will be worth your time to listen to this episode of Dave and Kristen's Infrastructure Junkies podcast. You will probably learn something new like me.

Here's the pod's description of the episode:

The best way to understand why we have our standard eminent domain laws and procedures may be to learn through a good story.

Houston attorney Bobby Debelak of the law firm McDowell Hetherington joins Infrastructure Junkies to tell the story of Robert Moses, who amassed incredible power despite never being elected to a public office. Morris utilized eminent domain to accomplish some of the most amazing infrastructure projects in New York. During his amazing reign, virtually all of the City, State and Federal infrastructure spending in New York flowed through Moses. Hear more about his amazing rise to power, projects and controversial legacy.

Be sure to check it out.

Games Government Play: Ninth Circuit Doesn't Buy Attempt To Moot Constitutional Challenge To Co-19 Vaccination Policy By Sandbagging And Withdrawing

Games people play
Night or day they're just not matchin'
What they should do
Keeps me feelin' blue
Been down too long
Right, wrong, I just can't stop it

This one isn't about takings, but is nonetheless a must-read.

In Health Freedom Defense Fund, Inc. v. Carvalho, No. 22-55908 (June 7, 2024), a panel of the U.S. Court of Appeals for the Ninth Circuit (yes, the Ninth Circuit!) held that the litigation was not moot even though the government had revised the challenged regulation. The Ninth Circuit also vacated and remanded the District Court's dismissal of the challenge to the Los Angeles Unified School District's requirement that its employees be vaccinated 

The sequence of facts is important. Check out the shell game shenanigans that LAUSD went through, after which it told the courts with a straight face that this was just routine and not it playing litigation games:

• LAUSD required all employees to have or get the Co-19 vaccination, and was silent about any exceptions.
• The plaintiffs sued, arguing that mandatory vaccinations are unconstitutional.
• The next day, LAUSD issued a "clarifying memorandum" that said that employees who didn't want to get the vaccine could get tested. Thus, it argued, we're not imposing a mandatory vaccine.
• LAUSD sought dismissal - the complaint was either unripe or moot.
• District Court agreed and dismissed for ripeness ("because that policy was changed before it was ever enforced, the dispute remained unripe").
• After dismissal, LAUSD "reversed course again two weeks later[,]" to eliminate the testing option.
• A second lawsuit followed. This time the plaintiffs also alleged that the vaccine is not really a vaccine as that term has been commonly used, meaning something to prevent transmission. Instead, they alleged, the Co-19 was merely a treatment, not a preventative.
• LAUSD sought judgment on the pleadings, which the District Court granted. It relied on Jacobson and rational basis review. As long as there's a conceivable public purpose all's ok. And here it is conceivable that the mandatory vaccine policy would help the public health.
• Next stop, Ninth Circuit. After its answering brief "vigorously defended" the vaccine mandate without making any suggestion that the mandate might be revoked, the court heard oral arguments, with LAUSD confirming during argument that the policy was "still in place."
• After the arguments, however, LAUSD's lawyer (at least according to a declaration submitted by plaintiffs' counsel) said to him "What are you going to do when we rescind the mandate?" Slip op. at 11.
• Same day: LAUSD began the process to rescind, and less than two weeks later, LAUSD "voted to rescind the Policy[.]" But it still kept its options open, and cautioned that if the situation required a return to the vaccine requirement, "LAUSD would reconsider the Policy."
• LAUSD then asked the Ninth Circuit to dismiss, arguing that the complaint was moot: after all we reversed the policy, right?

The Ninth Circuit concluded that the case was not moot: LAUSD's actions came after the litigation was instituted, and did not fall under the "voluntary cessation" exception to mootness. In most cases, the defendant stopping the challenged conduct on its own does not moot a case, unless it is "reasonably clear that the challenged practice will not happen again," and that "any effects of the alleged violation must be permanently reversed." Slip op. at 13.

Here, the Ninth Circuit held, "LAUSD's pattern of withdrawing and then reinstating its vaccination policies is enough to keep this case alive." Id. The pattern here was that "[t]wice LAUSD has withdrawing its policy only after facing some litigation risk[,]" after which it returned "to its old ways." Slip op. at 14. The court characterized this as a "willingness to tactically manipulate the federal courts[,]" rendering "LAUSD's timing ... suspect." Id.

This conclusion was driven by a practical and common sense view of the government's  pattern of strategic litigation behavior (we'd call it "sandbagging"), and not by simply accepting its arguments about what it was up to:

Given the detailed procedural history summarized earlier, the record at least supports a strong inference that LAUSD waited to see how the oral argument in this court proceeded before determining whether to maintain the Policy or to go forward with a pre-prepared repeal option. LAUSD appears to have twice sought to manipulate the federal courts to avoid an adverse ruling on this issue. Moreover, the Board expressly reserved the option to again consider imposing a vaccine mandate. This confirms that LAUSD has not carried its heavy burden to show that there is no reasonable possibility that it will again revert to imposing a similar policy.

Id.

On the merits, the panel rejected Jacobson's "direct" application, concluding that Jacobson only governs when the government requires a vaccine, which is an inoculation to prevent the spread of a disease. This distinction is critical:

The district court relied on Jacobson to hold that the Policy was rooted in a legitimate government interest. Reilly, 2022 WL 5442479, at *5−6. But Jacobson does not directly control based on Plaintiffs’ allegations. In Jacobson, the Supreme Court balanced an individual’s liberty interest in declining an unwanted smallpox vaccine against the State’s interest in preventing disease. 197 U.S. at 38. The Court explained that the “principle of vaccination” is “to prevent the spread of smallpox.” Id. at 31–32. Because of this, the Court concluded that the State’s interest superseded Jacobson’s liberty interest, and the vaccine requirement was constitutional. Id.

Plaintiffs argue that a “traditional vaccine” must provide immunity and prevent transmission, meaning that it must “prevent the spread” of COVID-19. Plaintiffs allege that the vaccine does not effectively prevent spread, but only mitigates symptoms for the recipient. And Plaintiffs claim that something that only does the latter, but not the former, is like a medical treatment, not a “traditional” vaccine. This interpretation distinguishes Jacobson, thus presenting a different government interest.

Putting that aside, the district court held that, even if it is true that the vaccine does not “prevent the spread,” Jacobson still dictates that the vaccine mandate challenged here is subject to, and survives, the rational basis test. The district court reasoned that “Jacobson does not require that a vaccine have the specific purpose of preventing disease.” Reilly, 2022 WL 5442479, at *5 (emphasis in original). It acknowledged Plaintiffs’ allegations that the vaccine did not “prevent transmission or contraction of COVID-19.” Id. at *6. But it declared that “these features of the vaccine further the purpose of protecting LAUSD students and employees from COVID-19,” and thus “the Policy survives rational basis review.” Id.

This misapplies Jacobson. Jacobson held that mandatory vaccinations were rationally related to “preventing the spread” of smallpox. 197 U.S. at 30[.]

Slip op. at 17-18. 

In short, "government's power to mandate prophylactic measures aimed at preventing the recipient from spreading disease to others" is not the same as "forced medical treatment" claimed to protect the recipient. Slip op. at 18. The property analogy is that you don't have a property right to use your property in a way that injures someone else's property, but it isn't a nuisance to make a use that is harmful to your property interests. That's your right.

This is a correct (narrow) reading of Jacobson, a case which, in our opinion, has been widely over-read (esp during the Co-19 lockdowns) to conclude that your life, liberty, and property could be curtailed as long as the government claims to be acting generally for the public health, and if taken to the logical extreme, in the public interest. That, in our view, is the limited exception swallowing the rule. But most courts have bought the argument. 

Before you get too excited about this, remember that this was up on appeal from a 12(b)(6) dismissal, so the complaint's factual allegations -- including, critically, the allegation that the Co-19 vaccine does not prevent the spread and only relieves symptoms -- are going to be subject to proof as the case progresses after remand. See slip op. at 19 ("We note the preliminary nature of our holding. We do not prejudge whether, on a more developed factual record, Plaintiffs’ allegations will prove true.").

A few thoughts for how this opinion might be useful for you takings mavens:

• Trial courts have no business evaluating the veracity of the factual allegations in the complaint, and Twiqbal doesn't change that by allowing a court to be skeptical under the guise of plausibility and act as a gatekeeper to screen the government from what the court views as claims that are unlikely to be proven. Yet we dirt lawyers know that in takings cases, trial courts do it all the time. Whether it is balancing the Penn Central factors at the pleadings stage, or the court apparently concluding that it doesn't buy the pleaded facts, courts are happy to bounce takings complaints at the pleadings stages. This opinion offers a better model.
• Courts often just take the government at its word. "Our law is ____." "Our procedures require ______." And the plaintiff's response that "what the government says its law is isn't really what its law says ... here, read it yourselves, Your Honors," and "the court is the expert on what the law requires, not the government" often fall on deaf ears. (It's also intellectually lazy, but you didn't hear that from us.) We see this most frequently in takings ripeness cases where the plaintiff says the government has taken a solid position about what uses are and are not allowed on the property, but then the government responds by asserting either that the plaintiff didn't follow the proper procedure to seek permission, or that the process isn't done just yet and the government has room to change its mind. There, courts frequently defer to whatever the government says the law or its own procedures require or even allow. Again, this case is a better model, with the court taking an active hand in evaluating for itself, and reaching its own conclusions about what the government did, and what the government's procedures are. 
• We often hear that when dealing with its constituents, government has an obligation to "turn square corners." But this case, in our experience, illustrates the reality. Government very often has its own interests in mind and zealously and aggressively scorched-earths it. It should not take the level of bad faith on exhibit in this case to convince a court that the government is more interested in playing games than it is a fair treatment of its constituents. For more, check our our colleague Deb LaFetra's recent Daily Journal piece, "Encouraging government lawyers to engage in the worst legal shenanigans" ("Playing games with people's constitutional rights is unworthy of our government, and their counsel.").

Be sure to check it out.

With both of the judges in the two-judge panel majority writing concurring opinions, and with a strong dissent, we don't anticipate that the panel opinion is going to be the final word in this one. Stay tuned.

Health Freedom Defense Fund, Inc. v. Carvalho, No. 22-55908 (9th Cir. June 7, 2024)

New Bound by Oath Episode: Berman, Public Use, And Urban Renewal

This is a must-listen, the latest episode of John Ross's Bound by Oath podcast. This season is covering property rights, and this episode details Berman v. Parker, which may be the first case in what we'll call the "modern era" where the Supreme Court set the judicial hands-off tone for public use challenges.

The guest this episode is our friend and colleague Amy Lavine, who wrote what we think is the seminal article deconstructing Berman (we include it as required reading in our William and Mary Eminent Domain course).

This episode is a great companion piece to BBO's episodes on Euclid (zoning), and Pennsylvania Coal (reg takings).

On this episode: Berman v. Parker, the Supreme Court’s decision in 1954 to abandon previous constitutional limits on the government’s power to take property from Person A to give it to Person B. The decision greenlit the era of urban renewal, which saw over a thousand cities across the country seize and bulldoze entire neighborhoods en masse.

Be sure to listen to this episode (and indeed the entire season).

New Cert Petition: When Does The Statute Of Limitations Start To Run On A Reg Takings Claim?

Here's the latest in a case we've been following.

Check out this cert petition which asks about what actions trigger the statute of limitations on a takings claim. This is an issue that seems to be cropping up more and more these days. For example, see here, here, here, here, and here.

Here are the Questions Presented:

Whether the statute of limitations for a Section 1983 takings claim for the unconstitutional deprivation of private property (specifically real estate) can begin to run before the municipal action that caused the property owner to sacrifice all economically beneficial uses has transpired?

And further, whether the Tenth Circuit Court of Appeals used the proper unit of property to measure if Mr. Bruce was forced to sacrifice all economically beneficial uses of his property?

And finally, whether the 14th Amendment’s due process provisions permit the mayor of a city with a political or policy interest in the demolition of a building to act as the judge who determines whether a city will order the demolition of that building?

Follow along on the Court's docket here.

Petition for Writ of Certiorari, Bruce v. Ogden City Corp., No. 23-1260 (U.S. June 3, 2024)

Unpublished Wednesday: Eviction Moratorium Taking, Excessive Fines Taking, And 1983 Zoning Statutes Of Limitations

Here are three federal circuit opinions, all unpublished. None of them worthy of a stand-alone post, but also not to be overlooked entirely.

• GHP Management Corp. v. City of Los Angeles, No. 23-55013 (9th Cir. May 31, 2024): Lessors "failed to state a claim for a Fifth Amendment per se physical taking[,]" in their challenge to LA's eviction moratorium. You know why: you waived your right to exclude by renting your properties, so the government prohibiting you from getting breaching tenants out is merely a regulation of the landlord/tenant relationship. Yee.
  
• Innova Investment Group, LLC v. Village of Key Biscayne, No. 21-11877 (11th Cir. May 29, 2024): After the Village tagged Innova with a NOV and $4k fine for not obtaining an interior demolition permit and Innova failed to correct the violations within the 60-day deadline, the Village imposed $4k per day fines and "aggregate penalties of $924,000 and it has claimed more than $1.2 million in interest for each day the penalties have gone unpaid." Six years later, Innova sued, asserting the Village violated the Excessive Fines Clause. And yes, there's a takings claim as well. The Eleventh Circuit affirmed the district court's dismissal because the claim should have been brought long ago. Florida has a four year statute of limitations, which means that the section 1983 claim needed to be brought within four years of November 2012, when Innova "should have known how much money it would owe the village[.]" 
  
• Handsome, Inc. v. Town of Monroe, No. 23-711 (2d Cir. May 29, 2024): landowner needed a special use permit to construct industrial buildings, which was granted subject to several conditions. After the owner and the Town went back-and-forth in hearings and permit denials and grants-with-conditions, Handsome's state court lawsuit ended up in the Connecticut Supreme Court which held that Handsome did not have standing because it lost title to the property during the course of the case. Another state court action alleging Due Process and Equal Protection claims followed, after which the Town removed the case to federal court. The Second Circuit summarily affirmed the District Court's grant of summary judgment in the Town's favor, primarily because the claims were time barred. The court rejected Handsome's claim that these were continuing violations. The court also rejected the substantive due process claim, because (you guessed it) Handsome didn't have a property interest in a permit because it wasn't entitled under state law to a permit.

Check 'em out.

New Article: "At Will [Employment] as Taking," 133 Yale L.J. 2165 (2024)

Here's the abstract:

Employment at will is legally and politically entrenched. It is the default termination law in forty-nine states and controls the working lives of most U.S. workers, creating a political economy of precarity and exploitation. In light of these challenges, this Essay offers a novel framework for a constitutional challenge to the at-will termination regime under the Fifth Amendment’s Takings Clause.

The argument advanced in this Essay is that at-will rules strip workers’ job security and are, thus, unconstitutional takings of workers’ property. Following the Supreme Court’s lead, numerous courts equate public-sector workers’ job security with property entitlements in their jobs under the Due Process Clause. I offer theories to expand this doctrine from the public sector to the private sector, and from the Due Process Clause to the Takings Clause. As a sword, takings claims can be raised against the prevailing termination regimes in forty-nine states. As a shield, at-will-as-takings claims can protect public-sector workers against increasing precarity in federal, state, and local government work.

This Essay makes two additional contributions. First, it rejects the premise underlying contemporary critiques of the Supreme Court’s takings doctrine that identify employers as the only property owners on the job. Second, it offers a property-friendly progressive constitutional vision that rejects reliance on the administrative state as the only tool for progressive policy advancements.

Read the entire article here.

What do you think?

Cal App: Inverse Complaint Alleged That Wildfire Was Substantially Caused By Inherent Risk, And That's Good Enough

In Simple Avo Paradise Ranch, LLC v. So. Cal Edison Co., No. B320948 (May 23, 2024), the California Court of Appeal (Second District) held that a complaint adequately alleged a claim for inverse condemnation by asserting a privately-owned public utility's actions substantially caused a wildfire.

The court rejected the utility's argument that alleging that the utility knew its infrastructure was old and improperly maintained and it failed to remediate these known risks was not enough to show substantial causation, and that this negligence shows only that its actions were a concurrent (and therefore not substantial) cause of the wildfire.

The court's analysis turned on the California Supreme Court's Oroville decision in which the court refined the "substantial causation" requirement where a secondary concurrent cause may be enough to absolve the government from inverse liability.

A large part of the opinion is about whether a stipulated judgment is appealable (yes, it is), and if you are an appellate wonk, please read that part. But start on page 20 if you want to understand what drove the court's conclusion on what it takes to adequately plead an inverse claim in a California wildfire (or other "negligence-like") inverse claim.

Here, the master complaint alleged that SCE knew its infrastructure was old and improperly maintained for safety, yet it failed to properly assess and remediate these known risks, resulting in the Thomas Fire and other wildfires. On December 4, 2017 SCE’s electrical distribution system, including its power lines, conductors, electrical infrastructure and equipment and transformers “arced,” igniting the Thomas Fire at two separate locations. Although it had the authority to do so, SCE did not power down its electrical infrastructure before the Thomas Fire ignited, despite a “Red Flag Warning” of high winds and hazardous conditions. The Thomas Fire burned more than 281,000 acres in Santa Barbara and Ventura Counties. Simple Avo further alleged its property in Ventura was destroyed causing damage to its crops, structures, and loss of profits. The master complaint concluded, “The above described damage to Plaintiffs’ property was legally and substantially caused by the actions of SCE in their installation, ownership, operation, use, control, management, and/or maintenance of the electrical distribution system for a public use.”

These allegations are sufficient to allege Simple Avo’s damages were “substantially caused” by SCE’s old and improperly maintained electrical distribution system.

We are not persuaded by SCE’s argument that its own negligence is a concurrent cause of the Thomas Fire that absolves it of inverse condemnation liability.

Slip op. at 34-35.

Case remanded for more.

Simple Avo Paradise Ranch, LLC v. So. Cal. Edison Co., No. B320948 (Cal. Ct. App. May 23, 2024)