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Iowa: Statute Permitting Precondemnation Surveyor Entry Is "pre-existing limitation on ... title"

The latest state supreme court decision involving a takings challenge to a statute permitting precondemnation entries, this time from Iowa.

In Summit Carbon Solutions, LLC v. Kasischke, No. 23-1186 (Nov. 22, 2024), the Iowa Supreme Court concluded that, at least on its face, Iowa's entry statute for hazardous liquid pipelines, which permits entries for land surveys and requires the payment of actual damages, is not a taking of an owner's right to exclude:

Kasischke recognizes that section 479B.15 requires “[t]he pipeline company [to] pay the actual damages caused by the entry, survey, and examination” but argues that the mere entry onto his property to conduct the survey is itself a taking of his right to exclude all others, for which he is also entitled to just compensation. Kasischke’s constitutional claim fails because the statute did not take away a property right that he owned. Rather, he has no right to exclude the surveyor because section 479B.15 is a lawful pre-existing limitation on his title to the land.

Slip op. at 10.

As that indicates, the argument floundered on the threshold "private property" question, with the court concluding that Cedar Point did not "establish a new per se rule" requiring compensation whenever there is a physical invasion, but instead reaffirmed the "background principle" exception from Lucas. See slip op. at 13 ("“Second, many government-authorized physical invasions will not amount to takings because they are  consistent with longstanding background restrictions on property rights.” Indeed, “the government does not take a property interest when it merely asserts a ‘pre-existing limitation upon the land owner’s title.'") (citations omitted).

Requiring owners to submit to precondemnation entries for surveys "is a longstanding background restriction and therefore a recognized exception to the Court’s per se taking jurisprudence." Id. These statutes "are as old as the republic itself." Id. Check out pages 14 through 15 of the opinion, where the court notes the early state court cases holding such entries were not takings, and also how legislatures and courts expanded the scope of the permissible entries during the 18th and 19th Centuries. "Today, all fifty states have statutes authorizing entries to private property for the purpose of conducting preliminary land surveys in exercising eminent domain." Slip op. at 15. And Iowa is no different. 

The court distinguished the entries permissible under Iowa's statute with the California labor regulation invalidated in Cedar Point, which authorized more intense and lengthy invasions. Slip op. at 16.

On one hand, the Iowa court's decision isn't all that surprising because this was a facial challenge. Most courts which have addressed the takings question have held that -- at least facially -- these statutes are not unconstitutional. For recent examples, see South Dakota and North Dakota.

But as those cases illustrate, the entries authorized by the statutes must be minimally invasive and superficial, and relatively innocuous. See, for example, North Dakota, and South Dakota (again). To use the famous phrasing of Justice Holmes, these entries can't go "too far." Which means that although the facial challenge failed here, it seems that as-applied challenges remain viable in the right cases.

Summit Carbon Solutions, LLC v. Kasischke, No. 23-1186 (Iowa Nov. 22, 2024)

NYT Word Of The Day: "Eminent Domain"

Thanks to lawprof Donald Kochan for the heads-up: the "Word of the Day" in today's New York Times is ... "eminent domain."

Defined by the piece as:

"the right of the state to take private property for public use; the Fifth Amendment that was added to the Constitution of the United States requires that just compensation be made"

Ugh. The "right?" No mate, it's a sovereign power, not a right.

The piece then challenges the reader:

Can you correctly use the word eminent domain in a sentence? Based on the definition and example provided, write a sentence using today’s Word of the Day and share it as a comment on this article. It is most important that your sentence makes sense and demonstrates that you understand the word’s definition, but we also encourage you to be creative and have fun.

OK, we'll have a go. How's this for our entry: "Remember when the New York Times was the private beneficiary of the City of New York's abuse of its power of eminent domain when it declared the existing property blighted, so it could give the land (and tax breaks) to the paper for its new Times Square office?"

Add yours in the comments.

Cert Denied (With Hints) In SWAT Takings Case

Here's the latest in a case we've been following with keen interest

Yesterday, the Supreme Court denied certiorari in Baker v. City of McKinney, the case where municipal police severely damaged a home in the course of extracting a criminal suspect, after which the owner successfully sought just compensation for a taking. All good, until the Court of Appeals got it. Here's the district court's opinion finding a taking. (As we noted in this brief in an earlier similar case, homeowner's insurance generally does not provide coverage for damages caused by government.)

And here's the Fifth Circuit's opinion reversing, concluding (correctly) that there is not a categorical "police power" exception to takings liability, but also that just compensation is not required when the government action and the resulting damage is "objectively necessary" for public safety.

Teed up that way, we thought this one had a chance. But alas, the Cert Fairy left a lump of coal under the pillow.

Perhaps a silver lining to the denial, however: two Justices (Sotomayor joined by Gorsuch - kind of an odd combination) issued a statement noting that the issues in the case, if refined and presented in a different case, could be of interest to the Court.

The very interesting part of the Statement starts on page 3, where Justice Sotomayor writes:

I write separately to emphasize that petitioner raises a serious question: whether the Takings Clause permits the government to destroy private property without paying just compensation, as long as the government had no choice but to do so. Had McKinney razed Baker’s home to build a public park, Baker undoubtedly would be entitled to compensation. Here, the McKinney police destroyed Baker’s home for a different public benefit: to protect local residents and themselves from an armed and dangerous individual.

....

This Court has yet to squarely address whether the government can, pursuant to its police power,require some individuals to bear such a public burden. This Court’s precedents suggest that there may be, at a minimum, a necessity exception to the Takings Clause when the destruction of property is inevitable.

Statement at 3-4.

Note the two cases cited by Justice Sotomayor next: Bowditch v. Boston, 101 U.S. 16 (1879), and United States v. Caltex (Philippines), Inc., 344 U.S. 149 (1952), which "do not resolve Baker's claim ...  because the destruction of her property was necessary, but not inevitable." Statement at 5. In both Bowditch and Caltex, the destruction of the plaintiff's property was pretty certainly going to happen anyway (in Bowditch by fire, by Caltex by the advancing Imperial Japanese Army -- the "fortunes of war," as the Court put it). The government blowing up the properties in these cases only hastened the inevitable. For more on these cases and the "inevitable" vibe, see the amicus brief our outfit (Pacific Legal Foundation) submitted.

Also worth checking out is Mitchell v. Harmony, 54 U.S. (13 How.) 115 (1851), where the Court held that commandeering property to prevent it from falling into the hands of the enemy in war was not a taking as long as the danger is "immediate and impending," and waiting around for civil authority would be too late.

We wrote about these cases and the notion that even a compelling police power reason isn't alone enough to avoid takings liability and the Armstrong redistribution principle, and similar in our article, "Evaluating Emergency Takings: Flattening the Economic Curve," 29 Wm. & Mary Bill of Rights J. 1145 (2021).

Justice Sotomayor continued, "Whether the inevitable-destruction cases should extend to this distinct context remains an open question." Statement at 5. The Statement also points out the lower court split in reasoning (but not outcome), and concludes:

All those decisions, save the Sixth Circuit’s, however, predate the Fifth Circuit’s determination that there is an “objectively necessary” exception to the Takings Clause. Whether any such exception exists (and how the Takings Clause applies when the government destroys property pursuant to its police power) is an important and complex question that would benefit from further percolation in the lower courts prior to this Court’s intervention.

Statement at 6.

Count is intrigued.  

Statement of Justice Sotomayor, with whom Justice Gorsuch joins, respecting denial of certiorari, Baker v....

(Un?)Happy Euclid Day!

98 years old, and still going (for better or worse)

On this day in 1926, the United States Supreme Court issued its landmark opinion in Village of Euclid v. Ambler Realty Co., 272 U.S. 365 (Nov. 22, 1926).

You know this one (and can you call yourself a dirt lawyer if you don't?). It's the one in which the Supreme Court first upheld -- against a facial due process challenge -- the validity of this thing we call "zoning." While in the intervening century, zoning has become a catch-all term for all sorts of regulatory restrictions on the uses of real property, land users know that "zoning" -- ackshually -- refers only to the regulation and separation of uses, and restrictions on density, and height regulation. At least that's how it began.

While "Euclid" and "Euclidean zoning" have become part of the land use lexicon and landscape, the decision might have been seen at the time as somewhat surprising. After all, the Supreme Court was in the height of the so-called Lochner era, when it might have been expected to get the legal vapors over these type of restrictions on economic liberty and property. In an era when the Court was more aggressively policing the police power, for it to uphold, even generally, the validity of zoning restrictions, might not have been expected.

And perhaps even more surprisingly, the opinion was authored by none other than Justice George Sutherland, one of the notorious Four Horsemen who would later regularly vote to invalidate similar New Deal legislation.

But Sutherland and the Court went the other way on this "zoning" thing, applying what later became known as the rational basis standard of review. Fairly debatable? No sweat. Who are we, mere judges, to say otherwise?

What accounts for that? Some have noted that the "Bettman Brief," a late-filed amicus (submitted after oral argument) on behalf of the National Conference on City Planning and others, held sway. The dots are not that difficult to connect -- much of the language and imagery in the Euclid opinion such as the "parasitic" nature of (horrors!) apartments -- comes straight out of the Bettman brief. And it also isn't that hard to connect the dots between a facially-neutral tool of exclusion like zoning, and the Supreme Court's then-recent rejection of express racial discrimination in local land use regulations (we're talking Buchanan v. Warley, 245 U.S. 60 (1917)).

But despite those roots, with a few hiccups along the way -- a mere four year later, pretty much the very same Court held in Nectow v. City of Cambridge, 277 U.S. 183 (1928) that, as applied to a specific parcel, Euclidean zoning was arbitrary and capricious and violated a property owner's rights, with the very same Justice Sutherland authoring the opinion -- zoning has been widely accepted around the nation (except, most notoriously, in Houston, which has opted for a more ad hoc, less comprehensive plan-based form of use regulation), with the courts doing little to stand in the way.

These days, however, there's a renewed focus on Euclid and zoning's troublesome roots. Thus, our title's "un" headline. But even as we reckon with that history, zoning chugs along towards the century mark.

Let's see what the next two years might bring. In the meantime, we're going to recognize Euclid's birthday. Whether it is a happy one is subject to change.

Euclid is literally a landmark decision.

Brief Amici Curiae of National Conference on City Planning, Village of Euclid v. Ambler Realty Co., No. 25-...

 

 

CA11: Takings Claim Not Ready Despite Govt's Enforcement Actions

Lake Worth: the "lago" in Mar-a-Lago

You know his name. He's taken on the City of Riviera Beach twice at the U.S. Supreme Court. And won both times. The houseboat that isn't a boat. The government can't shut you out from speaking your mind simply because you irritate them.

That's right, it's Fane Lozman. A "Florida Man" that you can like and admire. And he's back for Round 3.

He owns property that's mostly in (in, not near) Lake Worth. Two-tenths of an acre is uplands, and the rest (7.75 acres) is submerged. As the Eleventh Circuit noted, "[o]nly a sliver of Lozman's property is above water." 

The city, in accordance with the usual approach to land use regulation has a comprehensive plan. That plan designates submerged lands as "Special Preservation Future Land Use," a label which should set off your Lucas bells, because it mostly sounds like no use. Sure enough, that designation originally "preclude[d] any development of Submerged Lands ... to the maximum extent permissible by law."

Perhaps understanding the legal jeopardy which that put the city in, in 2010 it amended the plan to allow some uses. At the time Lozman purchased the property in 2014, the designation at least in theory allowed private residential fishing or viewing platforms and docks, and -- get this -- included a "savings clause" that prohibited the city from denying uses that were "judicially determined vested rights to develop or alter submerged lands." We see what you did there, city. In 2021, the city tweaked the plan a bit more, limiting such vested uses to a one-per-20-acre density.

But that's not the end of the story. Turns out that until after Lozman's 2014 purchase, the underlying zoning did not conform to the restrictive "Special Preservation Land Use" general plan designation. Uh oh. Indeed, the zoning allowed development of single-family homes. That was a great disturbance in the Force, and that sound you hear is the collective voices of municipal lawyers and planners crying out in terror. Eventually the city caught on, and in 2020, when it created a zoning designation that matched the general plan preservation designation.

Lozman was not one to let that slip by:

Lozman says that when he purchased the parcel, he “expected that it could be developed for use as single-family residential lots.” Lozman purchased the property in 2014 for $24,000. But he produced an appraisal valuing the property at $49,833,500 as of October 7, 2020. This valuation depends on Lozman maximizing the property’s “highest and best use”—bulkheading and filling the sub-merged water to create “up to eight one-acre parcels.” The appraisal was also “based on the hypothetical condition that permits could be granted for bulkhead and fill.”

Lozman v. City of Riviera Beach, No. 23-1119, slip op. at 4 (11th Cir. Oct. 16, 2024).

Zoning is king, and it controls what restrictions there are on property uses (right?), so Lozman sued for a Lucas taking in federal court. The district court granted the city summary judgment, but on appeal, the Eleventh Circuit held the case wasn't ripe, under Williamson County's still-surviving "final decision" ripeness rule. You know the drill: before an owner can move forward with a claim that a land use restriction is a taking, the regulating authority must have made a "final decision" about what uses are allowed under the restriction.

While grounded in the entirely rational notion that a court is not able to evaluate whether there's been a taking until it knows what uses an owner can make of property under the challenged restrictions, we know in practice the final decision rule is mostly a finger pointing the way to municipal approval purgatory. Having been incentivized by the Supreme Court to avoid saying "no" with clarity (after all, who wants to be sued for a taking!), while at the same time not wanting to say "yes" (here, for example, the city's restrictions contemplate preservation, not development -- would the city really be ok with seven residences smack dab in the Lago?), the easiest path for the government is to direct the owner into a byzantine maze with no realistic prospect of getting to either a yes or a no. And then hope that the thousand cuts weaken body and soul, and he taps out.

Here, the Eleventh Circuit concluded that Lozman hadn't bothered to ask the city for a development permit, nor the Corps of Engineers for a section 10 dredge-and-fill permit, both of which he would need in order to build up to the use allowed by the zoning. Slip  op. at 6 ("But Lozman has not yet acquired—or applied for—federal or state permits to develop his property."). Easy case, right? No final decision unless the owner asks the city. Or, you don't have to ask if doing so would be futile.

But that isn't all the story. Both the Corps and the State of Florida were (are?) hot on Lozman's tail with enforcement actions. It turns out that he didn't wait for permission, and he built "structures in the Lagoon without authorization in violation of the Rivers and Harbors Act." The State of Florida "instituted a similar action against Lozman in December 2020." Slip op. at 6. In each case, the government agencies obtained rulings preventing Lozman from doing anything.

The Eleventh Circuit disagreed with the district court's granting of summary judgment for the city, holding instead that Lozman did not allege a ripe case, because there's no indication he ever asked the city for permission to develop. The restrictive comprehensive plan were not sufficiently restrictive to show that there's no uses possible (however remote and unrealistic obtaining permission might be). And Lozman had not sought a variance.

The same reasoning applies here. The comprehensive plan alone cannot constitute a final decision on Lozman’s property. That the comprehensive plan includes a material exception permitting development underscores that the plan alone is not a final decision precluding the development of Lozman’s property. Because he has not applied for a permit, variance, or rezoning from Riviera Beach on the application of the comprehensive plan to his property, Lozman has not yet received a final decision on the comprehensive plan’s application to his property.

Slip op. at 9.

Nor a rezoning (on this one, we have real heartburn because a property owner can never be required to seek legislation in order to ripen a takings claim).

The court also rejected -- as most courts do -- the claim that seeking permission was futile. There are always possibilities, and courts are all too willing to accept a municipal claim that if only an owner would do it right, we might approve some use. Even here, where the feds and the state are coming after Lozman when he made uses of the property well short of what the zoning would allow. Anyone actually think any government would let him do anything? 

The Eleventh Circuit may have made short work of his case. And if there's a bright side of life part of the decision is that it reversed the district court's adverse decision on merits, and dismissed his takings claim without prejudice.

And if I were a betting man, I wouldn't count Mr. Lozman out just yet.

Lozman v. City of Riviera Beach, No. 23-11119 (11th Cir. Oct. 16, 2024)

NJ App: "Public Use" Is What Condemnor Says It Is, Not What Use Actually Will Be Made

We usually don't cover unpublished opinions, but the New Jersey Appellate Division's reasoning in Hudson County Improvement Authority v. Mariana Properties, Inc., No. A-2686-22 (Oct. 29, 2024) stuck in our craw a bit. 

This is an eminent domain case in which the Authority is taking an easement and intends to construct one of the most "New Jersey" forms of infrastructure, a "jug handle" turn. The stated public use supporting the taking:

The Easement would create a jug handle allowing trucks heading west on the Bellevue Turnpike to turn left onto Crosspike Drive. The Spine Road would provide access to a public facility, the New Jersey Transit Grid Traction Power System Project, and three new industrial warehouses. To do so, the Spine Road would cut across the Property and leave the Property's southeastern corner , fronting the Belleville Turnpike, separate from its larger remainder. The Easement would total 51,993 square feet, or just under 1.2 acres. Mariana would reserve all property rights, including full rights to utilize the improvement for ingress and egress to the Belleville Turnpike.

Slip op. at 3-4.

The owner objected, asserting that the taking lacked a public use. It alleged:

[T]he HCIA proffers only a conclusory statement as to public purpose that is belied by information provided during negotiations. From this information, Mariana surmises the Spine Road is intended "to provide a vehicular access route for a single, private warehouse development on the Koppers Peninsula." It relies on the draft Easement agreement which defines "Users" as "HCIA and HCIA's successors, assigns, and/or transferees and . . . its or their tenants, licensees, occupants, business invitees, and guests ." Mariana gleans from this language "an intent by the HCIA to transfer or assign its easement interest in the Spine Road to a third party, potentially the private developer planning the private warehouse development on the Koppers Peninsula." It argues the HCIA has not produced any evidence the Spine Road will be open to the public or anyone other than visitors to the private warehouse.

Slip op. at 13-14.

That sounds like a colorable claim, especially since the Supreme Court of adjacent Pennsylvania recently concluded that a taking designed to benefit a single business was not for public use. And we also know that the standard of review of public use challenges are generally pretty low. Accordingly, the court recites the principle that courts "give condemning authorities wide latitude" in determining what a public use is, and whether this property is being taken for that use. New Jersey follows the Berman/Midkiff formulation that does not look at the proposed use and ask whether it is public, but at the purpose of the taking, as stated by the condemnor. As the court noted, "[t]he taking need only ]tend[] to enlarge resources, increase the industrial energies, and ... manifestly contribute[] to the general welfare and the prosperity of the whole community.'" Slip op. at 14-14 (citations omitted). Under that "broad definition" it really doesn't matter if the public will use the property, or if a private party is the one who benefits.

But here's the part that stuck in our craw. In rejecting the owner's arguments, the court notes that, [c]ontrary to Mariana's assertion, the HCIA has articulated a valid public purpose that is more than conclusory." Slip op. at 15. As in the Pennsylvania case noted above, "Mariana speculates the Spine Road will service only a single, private entity based on language used in the draft Easement agreement exchanged prior to litigation." Id.

So what, held the court: it only matters what the condemning authority says it is doing, and "nothing in the record indicates [the trial judge] abused his discretion in finding the HCIA articulated a valid public purpose for the taking." Slip op. at 16. The assertions of the owner are merely "its own speculation," and doesn't trigger any inquiry into whether the taking was for a fraudulent reason, in bad faith, or an abuse of the condemnor's authority.

Now don't get us wrong. We don't know whether the owner's claims have any merit. But it appears that its arguments were based on the draft of the easement, and that to us raises at least the possibility that this was smoke indicating fire (we don't know, because the opinion does not detail the language in the draft easement the owner pointed to). As noted in this case (one of ours), these type of claims should not be rejected out of hand, but deserve judicial vetting.

After all, if merely "articulating" a possible public purpose or benefit is all a condemnor needs to get by, what's left of the Public Use requirement? This is one of the reasons why we think that public use -- and not the condemnor's intent -- should be the standard.

Hudson County Improvement Auth. v. Mariana Properties, Inc., No. A-2686-22 (N.J. App Div. Oct. 29, 2024)

Registration For The 42d ALI-CLE Eminent Domain & Land Valuation Litigation Conference Is Underway (Don't Miss Out!)

Get ready to join your colleagues and friends in San Diego for the 42d ALI-CLE Eminent Domain & Land Valuation Litigation Conference.

The 41st Conference was in New Orleans. Here's a report of that event, and here are our reports from prior conferences in Austin and Scottsdale.

Here are some of the highlights of the upcoming Conference:

• Property Rights at the Supreme Court: DeVillier and Sheetz and What's Next
• Slow Take: Possession, Rent, Relocation, and Offset
• The Jury's View: How Jurors See Your Case
• From Penn Coal to Penn Central: How to Prove "Too Far"
• Leveraging Expertise in Eminent Domain Litigation: Working with Land Planners, Engineers, and Other Predicate Experts
• Kelo at Twenty: What Changed, What Didn't, and What's on the Horizon
• Viva Las Vegas: How the Nevada Judiciary Upheld Property Rights in 180 Land's Inverse Condemnation Taking
• Ethics: Guiding the Trolley: Perspectives on Professional Ethics in Eminent Domain for Lawyers, Appraisers, and Right of Way Agents
• "I Think I Shall Never See" Just Compensation For a Tree: Strategies to Securing Recovery for Trees, Crops, and Fixtures

And more. Check out the complete agenda here. Registration information here. 

We especially welcome first-time participants, or those returning after an absence. Connect (or reconnect) with your colleagues from across the nation.

Don't miss out: we have had record attendance in recent years, so hold your space now.

Come, join us!

Blight Redevelopment & Eminent Domain, India Style: Private Property As A Basis For "Economic Democracy"

We're not going to pretend to fully understand the Supreme Court of India's recent decision in Property Owners Ass'n v. State of Maharashtra, No. 2012-2022 (Nov. 4, 2024) for obvious reasons (plus, the judgement and various opinions and dissents total 193 pages).

But we post it here because we think it gives some insight how other jurisdictions and cultures view expropriation, and the role of property rights in free societies.

Some background. The Constitution of India (article 39(b)) has been held by the Supreme Court to embody a concept known as "constitutional socialism." It provides:

The State shall, in particular, direct its policy towards securing--

...

(b) that the ownership and control of the material resources of the community are so distributed as best to sub serve the common good.

Not quite the Fifth Amendment, is it?

Indeed, Justices of the Supreme Court have opined that constitutional socialism means that everything is the community's, including private property ("material resources of the community in the context of re-ordering the national economy embraces all the national wealth, not merely natural resources, all the private and public sources of meeting material need, not merely public possessions").

But there seems to have been a long-standing push-pull between the legislature and the courts over the nature and role of private property, with the legislature pushing the socialist view and the court responding with decisions emphasizing the role of privately-owned property, as in this earlier case we posted.

The current case is what we'd label eminent domain for blight remediation and redevelopment. By statute, the Mumbai Housing Board may take certain private property for redevelopment if 70% of the residents approve. The statute was adopted under the authority of article 39(b), and property owners objected to the expropriation, asserting that the Court's prior endorsement of constitutional socialism should not have included all private property as "material resources of the community," to be "distributed as best to sub serve the public good."

That's not socialist, that's Marxist, they argued, and private property in some form must exist.

A seven-Justice majority of the nine-member Supreme Court agreed, rejecting the view that all private property is part of the "resources of the community." Community resources do not include private property because the use of the term "community" must mean there's some distinction between the community and the individual.

The majority also rejected the notion that India's Constitution enshrines an economic theory. Instead of requiring socialism, the India Constitution does not require "particular form of social structure or economic policy for future governments ... [and] did not intend to prioritise one form of government or economic structure over the other but instead only laid down the ideal of ‘economic democracy’. Slip op. at 152.

In short, that means that the electorate remains free to choose the "economic or political school of thought" it prefers. Slip op. at 153. The end result is that the government does not have a free hand to take privately-owned property.

Here's more on the decision and the opinions of the Justices:

• Summary of the decision and judgement (Supreme Court Observer)
• Case page (Supreme Court Observer)
• Opinion: Private Property And The Question Of 'Constitutional Socialism' (NDTV)
  
• SC’s interpretation of private property curtails state’s power but enhances judicial review (The Indian Express)
  
• Justice Dhulia Stands Firm on Constitutional Socialism (Devdiscourse)

Check it out

Property Owners Ass'n v. State of Maharashtra, No. 1012-2022 (India Nov. 5, 2024)

Links From Today's ABA Land Use Session

Here are the cases and other materials we discussed in today's Section of State & Local Government Law Land Use group meeting on takings:

• By The Thinnest Of Margins, SCOTUS Declines Public Use Pretext "Spite Taking" Case
• SCOTUS Declines To Review NYC Rent Control Challenge
• Sheetz pt. I - "Radical Agreement" At SCOTUS: "Your Money Or Your Rights" Isn't OK Just Because A Legislature Does It
• In DeVillier v. Texas, The Winner Takes It All
• Unanimous SCOTUS: "state law cannot be the only source" Of Property Rights, And "traditional property law principles" As Enforced By The Takings Clause Play A Role
• "Final decision" ripeness incentivizes government to be opaque, and avoid saying no.
• Texas takes a more practical (and realistic) approach to takings ripeness: City of Buda v. N.M. Edificios and City of Kemah v. Crow
• New Cert Petition: Does The Obligation To Provide Just Compensation Waive Sovereign Immunity?
• Inverse liability for wildfires?
• New Law Review Article: John Groen, "Takings, Original Meaning, and Applying Property Law Principles to Fix Penn Central," 39 Touro L. Rev. 973 (2024)
• Yee v. Escondido and physical occupation takings lower court split: CA8: Yee v. Escondido Doesn't Save Eviction Moratorium From Takings Review and CA9: No Physical Commandeering In Eviction Moratorium Because Yee Says "You Let The Tenants In, So You Can't Complain About Keeping Them (For Free)"
• Florida Appeals Court: TDRs, Beekeeping, And Camping Are Not Economically-Beneficial Uses, So Downzoning Is A Lucas Taking

PS: If you are not a member of the Land Use group, you really should be. We summed up the reasons why here.

SCOTUS Declines To Review NYC Rent Control Challenge

Here's the latest in a case we've been following. This morning, in this Order, the Supreme Court denied cert in two cases which seemed to have a good chance at a grant, on two pressing issues which have divided lower courts, the physical occupation in tenancies (aka Yee), and the nature of the Penn Central takings test. Only Justice Gorsuch would have granted.

Here are the Questions Presented:

New York’s Housing Stability and Tenant Protection Act of 2019 transforms a temporary rent- regulation system into a permanent expropriation of vast swaths of private real estate, without just compensation, in the name of “affordable housing.” Among other things, the Act prohibits owners—even of small and midsized apartment buildings like Petitioners—from reclaiming rental units for their own personal use, and grants tenants a collective veto right over condo/co-op conversions. As Justice Thomas has observed, the constitutionality of regimes like New York’s is “an important and pressing question” that has divided the courts of appeals and should be addressed in “an appropriate future case.” 74 Pinehurst LLC v. New York, 2024 WL 674658, at *1 (U.S. Feb. 20, 2024) (statement respecting denials of certiorari). Although case-specific vehicle concerns may have dissuaded the Court from granting other recent petitions that sought to challenge the constitutionality of rent-control regimes in general, this case is based on a substantially different record, targeting only a specific set of amendments to New York’s regulatory regime, and thus provides an ideal vehicle for this Court’s review.The questions presented are:

1. Whether New York’s rent-regulation laws, and in particular its new restrictions on owner reclamation and condo/co-op conversions, effect physical takings.

2. Whether this Court should overrule Penn Central or at least clarify the standards for determining when a regulatory taking occurs.

Too bad, we thought this one had a chance.

New Law Review Article: John Groen, "Takings, Original Meaning, and Applying Property Law Principles to Fix Penn Central," 39 Touro L. Rev. 973 (2024)

Today's must-read, a (very) recent article by our Pacific Legal Foundation colleague John Groen, published in the Touro Law Review, "Takings, Original Meaning, and Applying Property Law Principles to Fix Penn Central."

Get the pdf here.

With a title like that, who could resist? Here's the Abstract:

Justice Clarence Thomas, dissenting in Murr v. Wisconsin, suggested the Supreme Court take a “fresh look” at its regulatory takings jurisprudence and see “whether it can be grounded in the original public meaning of the Takings Clause.” He repeated this request in Bridge Aina Le’A, LLC v. Hawaii Land Use Commission, but also sharply criticized the existing takings analysis developed in Penn Central Transportation Co. v. City of New York, stating: “If there is no such thing as a regulatory taking, we should say so. And if there is, we should make clear when one occurs.”

This article responds to Justice Thomas and contends that the original and current public meaning of the term “property” as used in the Takings Clause is a group of rights, the most essential being the right to possess, the right to exclude others, the right to alienate, and, most saliently, the right to beneficial use. Contrary to assertions by the Court and commentators that the Takings Clause was originally limited to direct appropriations or physical takings of property, many early 19th century cases found takings based on destruction of the right of beneficial use, cases that today we call regulatory takings. The development of takings jurisprudence leading to the 1922 decision by Justice Holmes in Pennsylvania Coal Company v. Mahon is based on protection of these rights. This Article focuses on the essential rights that define property and thereby exposes the flaw of Penn Central which bases a taking on diminution in value, rather than substantial interference with a property right. Drawing on the original public meaning and early takings jurisprudence, as well as recent precedent in Lingle v. Chevron USA and Cedar Point Nursery v. Hassid, this article proposes a takings framework based on formal or functional transfer of rights, rather than diminution in value.

Most definitely check it out.

Veterans Day 2024: Our Posts

As we express our thanks today to all those who have served, here are some of our previous posts which feature military-related topics:

• Arlington National Cemetery And The Takings Clause - Did you know the property story behind this sacred ground? And that this story became the basis for our amicus brief?
• Pearl Harbor, Remembered - Our report of our attendance at the 70th Anniversary of the Day of Infamy.
• Jay Massey, Quiet Professional - Little did we know that an appraiser we worked with was a R/T One-Zero. Whoa.
• California Court of Appeal Justice Lynn "Buck" Compton - The Band of Brothers paratrooper became a Judge after the war, and even decided a few eminent domain and property cases.
• Way back in the day, I learned what little I know about bankruptcy law from Judge Jon J. Chinen - But did you know he was decorated with a Bronze Star and Purple Heart in WWII?
• One of the most interesting amicus briefs we ever worked on was one we did for a slew of Navy flag officers in an environmental law case, involving training to hunt for diesel-electric submarines in the Pacific Range, active sonar, and whales. Admirals' Brief, Winter v. Nat. Resources Def. Council. 

Thank you, veterans!

NJ Supreme Court Grants Review: Is Forcing Hospitals To Operate At A Loss A Taking?

Here's the latest in a case we've been following. The New Jersey Supreme Court has agreed to review the Appellate Division's decision in Englewood Hospital & Medical Center v. New Jersey. 

That's the case where several hospitals challenged a New Jersey statute which requires hospitals to take all patients regardless of their ability to pay, but does not fully reimburse under Medicaid the hospitals for the costs of treating these patients even where it results in the hospitals losing money.

The Appellate Division held this was not a categorical (Cedar Point/Loretto) or an ad hoc (Penn Central) taking.

The hospitals asserted that the statute required them to suffer a physical invasion, because the statute prohibited hospitals from excluding nonpaying patients. The court rejected the argument, in what reminded us of the Yee rent control and PruneYard commercial benefit approach, where the essential reasoning is that "you let people onto your land and business, so you've waived your right to exclude." 

In contrast to the plaintiffs in Loretto and Nollan, plaintiffs here operate hospitals within the complex and highly regulated health care industry. Unlike the cable installation law in Loretto, N.J.S.A. 26:2H-18.64 does not limit the right to exclude individuals from their premises. Rather, it prohibits hospitals from turning away patients "on the basis of [their] ability to pay" without being subject to civil penalty, and further prohibits billing only those patients who qualify under charity care.

Slip op. at 19.

The court concluded that "the charity care statute's operation does not lead to physical invasion of the hospitals' property by the public because, unlike Cedar Point, the public's presence in a hospital is a natural element of its business, making it more analogous to Pruneyard." Slip op. at 20 ("Charity care restricts how hospitals use their property to provide medical services, not whether they do so. The property will be used as it was intended—to treat patients.").

The Penn Central argument fared no better. The economic impact must be viewed in the context of the hospital as a whole: the court viewed the property at issue as the operation of the entire hospital, not the right to treat each patient in a way that doesn't lose money on that patient: 

Although plaintiffs contend that charity care as a whole has a negative economic impact on their investment interests, there is no evidence that the prohibition on turning away patients because of inability to pay unreasonably impairs the value of the premises.

Slip op. at 20. Yes, the requirement to treat all patients and then provide only a limited reimbursement for those who could not pay has an adverse impact on the hospitals' "profitability," the premises could still be used as a hospital.

But, the hospitals argued, the statute forces us to operate as pretty lousy hospitals! The Appellate Division's response is faintly laughable, along the lines of "yeah, the lack of reimbursement forces hospitals to operate kinda crap hospitals, but they can still operate them as hospitals: "A takings claim cannot be sustained on the sole ground that plaintiffs fail to financially perform on par with industry-wide norms." Slip op. at 23. 

The court really torpedoed the notion that the hospitals have any expectation of operating free of onerous regulations. Ah yes, the old "heavily-regulated industry" trope:

Hospital investors in the highly regulated health care industry should expect that use of their property, in all its forms, is likely to be regulated by the state, and that such government regulation may diminish investment-backed expectations without resulting in an unconstitutional taking.

Slip op. at 24.

Not only did the court require hospital investors to understand the existing regulatory environment ... they also are charged with predicting the future: 

When a hospital seeks a license to operate in our state, it must consider the laws in effect at that time as well as those which may be adopted by our Legislature. Given plaintiffs' choice to do business here, it is reasonable that they should expect such license conditions to affect business profits. In turn, we conclude it is not reasonable for the hospitals to expect an at-cost reimbursement for the medical services the Legislature has required them to provide as a condition of doing business in our state

Slip op. at 25.

Finally, the Appellate Division made the common error when analyzing the "character of the government action" factor, concluding that "courts have repeatedly stated that the character of public health and healthcare regulations typically weighs against the conclusion that a law acts as a taking." Slip op. at 25.

We've said it before but we shall say it again, just as a reminder: the reasons the government does something is not part of the takings analysis, and has not what the "character" factor asks about. Read this article we wrote a while back for the inquiry this Penn Central factor should focus on is whether the government action looks like it is having the same effect as would a straight-up exercise of eminent domain. If it looks like the property owners is being forced to bear more than its proportionate share of a public benefit, then the "character" factor should weigh in favor of a taking.

What does the New Jersey Supreme Court's agreeing to review this case mean, prediction-wise. We're not going to venture a guess there, but it does seem like something is in the cards.

Here's the issue the court will be reviewing:

Does New Jersey’s charity care program -- which requires a hospital to provide services to all patients regardless of their ability to pay, prohibits the hospital from billing those patients, and does not provide at-cost reimbursement to the hospital -- amount to an unconstitutional taking of the hospital’s property?

More on the case here from our NJ colleague Joe Grather, who predicted, "I bet the hospitals are preparing their petition for certification to the New Jersey Supreme Court now."

Stay tuned.

The Old "Neighborhood Character" Trope Dressed In Environmental Clothing

Justice Sutherland asks:
whadda mean, you don't like apartments?

Check out this uncharacteristically-lengthy opinion from New York's Appellate Division (and entire 6 pages!).

In Bennett v. Troy City Council, No. CV023-0709 (Oct. 24, 2024), the court invalidated a municipal upzoning (from single-family residential to Planned Development -- which would permit apartments) because the city's conclusion that the zone change would have no significant environmental impact under New York's study-and-disclose statute.

Not content with apartments coming to the neighborhood, an adjoining owner, the "coufounder of The Friends of the Mahicantuck," sued to challenge the negative environmental declaration. Under New York's environmental study-and-disclose statute, the "environment" may include such things like historic or archaeological resources, and similar. 

Zoning and rezoning is generally subject to deferential judicial review under Euclid, with the courts applying rational basis review and generally taking a hands-off approach. But this was not a Euclid-like challenge arguing that the upzoning was arbitrary and capricious. The environmental statute empowered the court to delve into the record, and determine for itself whether the city's negative declaration had a sufficient factual basis and the city had applied the required scrutiny to those facts.

Short story: it didn't:

In view of the site's significant archaeological history, and the omission of the Stockbridge-Munsee Community as a consulting party in formulating any required data retrieval plan, we find that respondent failed to take the necessary hard look at the significant environmental impact expected from the project by issuing a negative declaration.

Slip op. at 5.

The challengers also brought a spot zoning claim which the court rejected by applying the rational basis/fairly debatable test:

While the project certainly differs from the existing single-family zoning, it does maintain a residential use and would establish a multi-use trail along the shoreline opening public access to the Hudson River. The initial rejection of the proposal by the Planning Commission is relevant to this compatibility question (see Matter of Save Our Forest Action Coalition v City of Kingston, 246 AD2d 217, 221 [3d Dept 1998]), but the record was expanded by the EDP October 2021 report prior to respondent's determination. Under these circumstances, where the question of compatibility is "fairly debatable," we conclude that petitioner did not meet her burden of demonstrating that the zoning amendment constituted illegal spot zoning (Matter of Evans v City of Saratoga Springs, 202 AD3d at 1324 [internal quotation marks and citations omitted]; see Matter of Heights of Lansing, LLC v Village of Lansing, 160 AD3d 1165, 1169 [3d Dept 2018]).

Slip op. at 6.

The presence of the spot zoning claim tells us that this was not, at heart, a true environmental challenge but more NIMBYs who don't want apartments ruining the character of their neighborhood who found a way to dress up those objections in environmental clothing.

Bennett v. Troy City Council, No. CV-23-0709 (N.Y. App. Div. Oct. 24, 2024)

Guest Post: P'Nut, The Fourth Amendment, And Property Rights

Mr. Otis would be a P'Nut fan.

Our Pacific Legal Foundation colleague and search-and-seizure expert Daniel Woislaw quickly responded to the cultural zeitgeist and looked into l'affaire P'nut le Squirrel with his keen legal eye.

That's the case in which an internet narc dropped dime on the owner of a pet squirrel, resulting in New York state game officials obtaining a warrant, searching his home, confiscating said squirrel and his little buddy Fred the Raccoon, and then through a series of unfortunate events, putting both P'Nut and Fred down. Sad!

Here's Daniel's thoughts.

+++++++++++++++++++++++++++++++++++++++++++++++

Government kills pet squirrel P'Nut in Fourth Amendment horror story

Daniel Woislaw

In a small corner of New York State, a family’s quiet, peaceful home was shattered by an unthinkable intrusion. Environmental police stormed in, seized a rescued orphan squirrel named P’Nut, took him away, and put him down. All because his owner allegedly didn’t have the right license. That’s right: In New York you need a license to shelter injured wildlife and provide them a home.  

The raid on P’Nut’s home has exposed the public to a government practice that has been festering unnoticed for too long. Increasingly, federal, state, and local authorities have been intruding on private property and employing unnecessary and exceptional force to regulate increasingly trivial aspects of Americans’ lives. 

The way government does this is straightforward. First, it makes it illegal to do something commonplace without a license—which means agents can obtain a warrant for your property over the “crime” of being unlicensed. That’s what happened in P’Nut’s case: The New York Department of Environmental Conservation raided the home on a warrant after receiving tips about “the illegal keeping of wildlife as pets.” 

But when the government does issue a license, it attaches strings. Sometimes the strings are large fees or time-consuming educational requirements, but increasingly, those strings include the power to enter homes, businesses, and other private properties at will, and without a warrant or probable cause. 

In other words, while P’Nut’s owners were raided because they didn’t have the right government license, many other Americans must tolerate home invasions because they did get the right license. Such intrusions have become all too commonplace in “the land of the free.” 

It’s not supposed to work like this. Our Constitution’s Fourth Amendment was specifically designed to prevent this kind of routine governmental overreach. At the time of the Founding, the American public knew firsthand the dangers of “general warrants”—vague permissions granted to authorities to search any home at any time. These general warrants were a major grievance leading up to the American Revolution, sparking outrage across the colonies. The concept of private property and freedom within one’s home was not just a matter of personal comfort, but a core element of the fight for independence. 

Yet consider how commonplace government intrusions are today. California, for example, requires falconers as a condition of owning their birds to agree in writing that armed conservation police can enter their homes at will. No warrant, cause, or notice is required. Refusal is a criminal offense. And if falconers simply chose not to get a license, they’d risk the same type of raid that occurred at P’Nut’s home. Thankfully, in a case brought by Pacific Legal Foundation, the falconers are fighting the requirement in court.  

In Billings, Montana, the local government did the same thing with massage therapists. Therapists who work from home and apply for a mandatory license must agree to submit to unannounced intrusions by government agents—ostensibly to make sure the therapists are not prostitutes. Continuing to practice without this license (in addition to the license, ethics, and education requirements that the state already imposes) is grounds for arrest.  

And in San Bernardino County, state environmental regulators are going door-to-door executing over-broad general warrants to look for pests. In one case, a judge signed off on a warrant covering over 500 square miles and thousands of homes so that conservation officers can snoop in people’s yards and patios looking for fruit flies. These general warrants aren’t a far cry from those that allowed British customs officials to search anywhere, anytime, in pre-Revolutionary America. In a famous legal argument then, one prominent Boston lawyer argued that general searches of this nature threaten the fundamental freedoms that make this land free. 

Even something as minor as keeping a ham radio in your bedroom can expose your home to unannounced government intrusions: To operate a ham radio, you’re required to obtain a federal license—and the licensure rules require you to allow federal inspections without a warrant.  

With Pacific Legal Foundation’s help, Americans whose constitutional rights were violated over California’s falconry regulations, Billings’ anti-massage-therapy law, and the general searches in San Bernardino are fighting back in court. 

The right to be secure in our homes, businesses, and other private properties against arbitrary and forceful intrusions by the government stretches back to the English common law maxim that “a man’s home is his castle.” For centuries, the Anglo-American legal tradition has recognized the home as a sanctuary, shielded against arbitrary government intrusion. The principle is simple but profound: A person’s home is an extension of their freedom, an intimate space where they can retreat from the eyes of the state. Allowing government agents to enter private homes at will, especially for minor or technical infractions, erodes this sacred boundary and undermines the liberty that our nation was founded to protect. 

In the face of these historical lessons, the actions of New York State’s environmental police feel like a grave regression. By using force to raid a home over a small, compassionate act—caring for a tiny, orphaned squirrel—the government has sent a chilling message about its priorities. This was not a defense of public safety but an abuse of authority, carried out under the guise of “regulation.” 

Ultimately, the raid on P’Nut’s family home is more than just an isolated case of overreach; it reflects a troubling trend. If we allow the government to use force to intrude into homes for minor violations, we risk losing one of our most fundamental freedoms—the right to privacy and security in our own homes. Americans must demand that this sacred boundary be respected.

By holding our government accountable and insisting on the original intent of the Fourth Amendment, PLF is working to protect Americans’ liberties. If you’re a victim of an unconstitutional government intrusion, PLF may be able to help.  

 

Oral Arguments In Texas Takings Case: If The Govt Limits Use For Healthsafetywelfaremorals, Is It Exempt From Takings?

Charles McFarland, arguing.

Here's the latest in a case we've been following closely (and disclosure: our firm filed an amicus brief in the Texas Supreme Court).

In The Commons of Lake Houston, Ltd. v. City of Houston, the Texas Court of Appeals held that the city could not be liable for a taking for an ordinance that limited development and use within the city's 100-and-500-year floodplains because the ordinance was a valid exercise of police power and otherwise survived the rational basis test.

As we wrote here, that seems like utter nonsense to say that a valid police power reason categorically insulates a government action from a takings challenge. After all, the entire regulatory takings doctrine is built on the notion that an otherwise-valid exercise of government power (here, the police power, delegated from the State to the city) can so impact an owner's property rights that the law will treat it as a de facto exercise of eminent domain, and require just compensation. The doctrine pretty much presumes that the governmental action is valid, and challenges to what are claimed to be invalid government actions fall under the due process label.

Our friend and colleague Charles McFarland represents the property owner. Last week, he presented oral argument at the Texas Supreme Court (watch the video here). 

Here are the Issues Presented by the property owner:

1.     The lower court erred in applying a bright-line flooding mitigation exception to the Texas Constitution’s requirement of compensation for the taking, damaging, or destruction of private property.

2.    The lower court erred in applying a bright-line “police power” exception to the Texas Constitution’s requirement of compensation for the taking, damaging, or destruction of private property.

3.    The lower court erred in failing to apply the state-law standard of the Texas Constitution’s takings clause, which allows for compensation when government action damages private property for public use.

The State of Texas does not agree with this formulation of the issues. Instead, it argues these are the issues (apparently leaving nothing, kitchen sink included, off the table):

1.    Whether Petitioner has standing to assert purported takings/damaged property claims?

2.    Alternatively, whether Petitioner’s purported takings/damaged property claims are ripe?

3.    Alternatively, whether Petitioner’s claims are redressable; therefore, whether Petitioner was improperly deprived of review under Penn Central or any other requested test?

4.    Alternatively, whether Houston is immune from Petitioner’s takings/damaged property claims because local floodplain regulations that track FEMA/NFIP requirements do not constitute a taking?

5.    Alternatively, whether Houston is immune from Petitioner’s claims because this Court’s decision in Turtle Rock and its progeny hold that the application of Houston’s floodplain regulations to Petitioner’s property, if any, is not a compensable taking?

6.    Alternatively, whether Petitioner’s new, blanket rule—that all local land-use regulations that adversely affect property automatically constitutes a taking and/or “damaged” property under article I, section 17, entitling the landowner to Penn Central or other compensation analysis—contravenes Texas law?

7.    Whether Petitioner’s “damaged” property claim is time barred?

8.    Whether Petitioner has suffered a compensable injury under Article I, Section 17’s “damaged” property provision?

Watch the oral argument recording to see how the court addresses these seemingly very divergent worldviews.

More on the case here, including all the briefing.

Stay tuned. We'll bring you the court's ruling when it is issued.

New Cert Petition: Use vs Value, And Applying Penn Central

Here's the latest takings cert petition, in a case involving a California county's refusal to rezone property back to its former zoning to allow residential development. The only uses permitted on the property presently are "scientific research facilities uses" and hiking trails. Or, at the petition puts it, "only public, park-like uses." Pet. at 5. 

The District Court and the Ninth Circuit both held no taking.

Here are the Questions Presented:

Does a taking analyzed under Lucas v. S.C. Coastal Council require that the affected property be left with no value even if the regulation in question deprives the property of all economically beneficial uses?

Does Palazzolo v. Rhode Island leave any room for consideration of the landowners’ expectations in a Penn Central takings analysis?

Do the decisions in Loper Bright Enters. v. Raimondo, Cedar Point Nursery v. Hassid, Sheetz v. Cnty. of El Dorado and Lingle v. Chevron USA, Inc., change the way courts should evaluate the “character of governmental action” factor in a Penn Central analysis?

Follow along here, or on the Court's docket.

Petition for a Writ of Certiorari, Collins v. Monterey County, No. 24-487 (U.S. Oct. 31, 2024)

Indiana: No Compensable Property Right In Traffic Flow; No Compensation For Impairment Of Access

We like it when courts include photos and maps.

The Indiana Supreme Court's ruling in State of Indiana v. Franciscan Alliance, Inc., No. 245-PL-118 (Oct. 31, 2024) isn't all that surprising. After all, the State's eminent domain action did not take access to the undeveloped property, and the owner was not entitled to compensation for the change in traffic flow brought about by the closure of an intersection. This increased the "circuitry of travel," but did not cut off the parcel.

Here's how the court framed the issue:

Here, there is no question that the State’s condemnation of Franciscan’s 0.632-acre strip of land is a taking requiring just compensation. Likewise, it is indisputable that this condemnation amounted to a taking of SCP’s easement rights over that strip of land. But the record confirms that the State has already paid compensation for those easement rights. Thus, the only question for us to resolve is whether either Franciscan or SCP was entitled to damages stemming from the State’s closure of Fairview Road’s intersection with State Road 37.

Slip op. at 7.

The court held that the "long-established rule" is "when a property's access points remain unchanged, the landowner cannot recover damages related only to increased circuitry of travel between the property and a public roadway because such damages do not result from the taking of a property right." Id. Because the closure of the nearby intersection didn't (directly) affect the owner's points of access and only "made travel a longer route," no property right was in play, and thus no compensation. Slip op. at 8. Compensation is reserved for those situations in which access to land is actually or constructively cut off.

Here's the rule:

Today, we reaffirm our long-established rule that when a road-improvement project leaves a property’s access points unchanged, a landowner cannot recover damages from changes in traffic flow between their property and a public road, as those damages do not result from the taking of a property right. And we hold that here, because the State’s construction project did not affect the owners’ access points to their properties, damages from the intersection closure were not compensable as a matter of law.

Slip op. at 2.

We understand that this is a long-standing rule. But does it make sense? Not to us, and it seems more technical than practical, as we noted in a brief long ago. Might the "injurious affection" approach be more realistic? We think so. But for now, that doctrine hasn't crept south of the border from Canada.

State of Indiana v. Franciscan Alliance, Inc., No. 245-PL-118 (Ind. Oct. 31, 2024)

New U Chi L Rev Article (Comment): "Guns and the Right to Exclude: Saving Guns-at-Work Laws from Cedar Point's Per Se Takings Rule"

The latest issue of the University of Chicago Law Review has this student-authored piece that is worth your time reading. "Guns and the Right to Exclude: Saving Guns-at-Work Laws from Cedar Point's Per Se Takings Rule," 91 U. Chi. L. Rev. 2047 (2024). 

Here's the Abstract:

The Supreme Court’s decision in Cedar Point Nursery v. Hassid has left considerable uncertainty in the realm of takings law. In Cedar Point, the Court announced a new rule that government-authorized physical occupations of property, even temporary ones, constitute per se takings. But the Cedar Point decision left significant questions unresolved regarding the scope of its per se takings rule and its various exceptions.

To resolve these questions, this Comment looks to the example of guns-at-work laws. Enacted by about half of the states, guns-at-work laws protect the right of a business’s employees, customers, and invitees to store firearms in private vehicles, even if those private vehicles are on company property (e.g., parking lots and parking structures). In addition to having important public safety implications, guns-at-work laws serve as a fruitful example to understand takings doctrine.

Relying on this example, this Comment reaches three conclusions regarding takings doctrine and its application to guns-at-work laws. First, government-authorized physical occupations, even seemingly trivial ones, can constitute per se takings. This suggests that at least initially, guns-at-work laws constitute per se takings. Second, when applying the open-to-the-public exception, courts should look to the subsections of a business and not attempt to weigh between subsections to determine the character of the business as a whole. Consequently, courts should treat employee-only parking lots and parking lots open to the public differently for the purposes of the open-to-the-public exception: the open-to-the-public exception exempts parking lots open to the public, but not employee-only parking lots, from Cedar Point’s per se takings rule. Finally, the longstanding-restrictions-on-property-rights exception only requires a contemporary law to have a historical analogue, not an exact historical match. Thus, Founding Era militia laws are a similar historical analogue to guns-at-work laws. Consequently, guns-at-work laws are not a per se taking under Cedar Point.

We can't say we agree 100% with the piece's conclusions, but still urge you to check it out.