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CA2: If You Want To Be A Land Use Player, You Gotta Play (And That Means Keep On Trying - Without Hitching Rides)!

This is one we've been meaning to post for a while, but something else always seemed to intervene.

In BMG Monroe I, LLC v. Village of Monroe, No. 22-1047 (Feb. 16, 2024), the U.S. Court of Appeals for the Second Circuit affirmed the dismissal of a statutory and constitutional challenge to the Village's .

The court did so on the basis of the surviving part of the Williamson County ripeness requirement, that the government has taken a definitive position on whether it will allow some development of the plaintiff's land under the challenged regulations.

BMG wanted to build 181 homes, so it developed plans for a mix of uses across several parcels, and development of related infrastructure like roads and a community center. This "did not conform to the zoning codes of the Village and Town." Slip op. at 4. The Village and Town were ok with the proposal, however, provided BMG "satisfied certain conditions" such as the look and feel of the buildings, and other architectural style points. Slip op. at 6. Conditional use approvals followed. Eventually, all looked good and the Village and Town granted conditional final approvals.

But when BMG submitted applications for the building permits on several of its lots, the building inspector balked, asserting the architecture and design were off and not what the conditions required. Permits denied. BMG chased administrative appeals to the Zoning Board of Appeals for some -- but not all -- of the lots. The ZBA eventually denied the filed appeals, concluding that indeed, the construction plans were not in conformity with the conditions on those lots.

Having exhausted its administrative remedies on some but not all of the lots, BMG sued. There wasn't a takings claim (BMG's claims included section 1983, Fair Housing Act, and equal protection), but the district court nonetheless applied Williamson County to dismiss the complaint as unripe.

The Second Circuit affirmed. BMG had not received the Village's "final decision" denying development. But wait, you say...I thought that you said that BMG lost the ZBA appeal? That's usually enough, isn't it? Yes, it did do that, but it didn't chase an appeal on all of the lots. Thus, "BMG's failure to obtain a decision from the ZBA 'leaves undetermined the permitted use of the property in question[.]'" Slip op. at 12 (citations omitted). 

BMG responded: the reason we didn't chase a ZBA appeal on those other lots was that doing so would have been futile. And we did get final approvals and ZBA denials on the other parcels in the group, so isn't that enough? No, according to the Second Circuit, rejecting the argument that "[i]n essence, BMG argues that its otherwise-unripe claims relating to Lots 1, 2, and 3 can hitch a ride on the ripeness of its claims relating to Lots 45 and 46." Slip op. at 13. 

And it didn't matter anyway because even those lots on which BMG chased and lost its ZBA appeals are not ripe because (you guessed it), BMG didn't also seek a variance. Slip op. at 14. Apparently, the Second Circuit sees a variance as some kind of super appeal after ZBA denial. And didn't BMG already get a "variance" (also known as a conditional  use permit)?

But that wasn't enough:

We conclude that after the ZBA affirmed the Village Planning Board’s finding that BMG’s construction plans did not comply with previously agreed-upon conditions, BMG was then required to “submit[] at least one meaningful application for a variance” to the Village Planning Board or ZBA to see whether it could apply clustering techniques in the multi-family district while using the new rear elevation, roof pitch, and siding materials.5 See id. Put simply, the SEQRA Findings provided the terms BMG had to abide by in order to depart from the normally applicable land-use restrictions in the Town and Village. As a result, if BMG wished to alter those conditions, it first had to seek another variance before proceeding to federal court. Cf. Southview Assocs., Ltd. v. Bongartz, 980 F.2d 84, 98–99 (2d Cir. 1992) (holding that, even where “the Board ha[d] denied[] . . . one application,” developer still faced burden of establishing that “submission of another application would be futile” (emphasis added)).

Slip op. at 17.

And finally, didn't Pakdel change the ripeness/futility standards? Not at all, according to the Second Circuit. See slip op. at 19. The more things change, the more they stay the same, no?

What's that old adage? If at first you don't succeed, try and try again? We know that in land use, that means as long as the government says it is willing to "clarify" or "change" its decision (something it almost always asserts it is able and willing to do), a court will very likely never hold it to task. Planning authorities know this, and as a consequence are hardwired to almost never say no, and only "no, but..." or "maybe." 

Until the Supreme Court wakes up to this dynamic, nothing is likely to change.

BMG Monroe I, LLC v. Village of Monroe, No. 22-1047 (2d Cir. Feb. 16, 2024)

Pass A Good Time: Our Report From The 41st ALI-CLE Eminent Domain & Land Valuation Litigation Conference, Feb 1-3, 2024, New Orleans

When it comes to the longstanding ALI-CLE American Law Institute-CLE Eminent Domain and Land Valuation Litigation Conferences, we're always ready to go. You know that. But this year's version -- the 41st -- was buzzing like no other in recent memory.

Maybe it was the New Orleans venue with its atmo, food, and music for our after-class activities, or even the timing (the second-to-last week on the Mardi Gras parade season, and our conference hotel was right on the routes). It might have been the nice weather (oh, it rained buckets one evening, but there wasn't an ice storm like we experienced in Austin in 2023). Or maybe it was the capacity crowd, and new topics and speakers on the agenda. Or maybe it was just the prospect of seeing our friends and colleagues again after a year.

Here's a photo essay of some of the Conference highlights.

And if you missed out, the webcast was recorded and is available for viewing. Or, better yet, hold on your calendar January 30 through February 1, 2025 for the 42d Conference, to be held at the Westin Bayside San Diego.

Excitement this way...

The view from the podium.
Say "hello" to our opening plenary session in wide-angle.

Prepping the space.
The finished stage that Conference attendees
see isn't how the room starts off.
It takes a lot of work by the ALI-CLE staff
to get the place camera-ready.

The live webcasting of the sessions also takes a lot of
set-up and a ton of equipment. This is just some of it. 

Here's more. 

The badges were arranged on the table with care...

...in trust that our faculty and registrants would soon be there.

No conference would be complete without swag.
Here is but a sampling.

As always, a huge thank you to our generous sponsors.
Without your support, this Conference would not be as
good as it is, year after year.


The Conference site was right on the routes of several parades.
It was difficult to keep focusing on severance damages and larger parcel
when the music and excitement was just outside.
But we tried.


The opening plenary session -- on the U.S. Supreme Court's
big takings case -- got us off to a solid start.


Thanks to Christina Martin and Steve Silva for speaking
on Tyler v Hennepin County.

The view from the podium as Amy Boulris speaks about the most
significant eminent domain decisions of 2023.

The speakers are a mix of practicing lawyers, judges, other eminent domain
professionals, and legal academics. Here, two property scholars --
Timothy Harris and Jessica Asbridge --
discuss how state property law and state courts
can drive the constitutional issues.

Kinnon Williams, Esq. and Christina Thoreson, SR-WA, MAI, CRE 
present on "Valuation of Wasting Assets."

Lawprof Emilio Longoria and attorney Tony Francois
on "What Condemnation Lawyers Need to Understand
About the Clean Water Act After Sackett"
(hint: it goes to highest and best use).

Matthew Ackerman, Marianna Baggett, and Kenneth Haywood
on "The Pitfalls of Objectively Measured Just Compensation:
When Market Value Isn't Enough."

It was not all work and no play.
Again, a big thanks to our generous sponsors.

Our speakers take questions, of course.
We solicit them the old-fashioned way (thanks, James Masterman).

William and Mary Law School Professor
Emerita Lynda Butler (and her former student, North Carolina's
Jeremy Hopkins" discuss property rights in an age of coastal retreat.

Luis Gallardo-Rivera, Dana Berliner, and (off-camera)
Sophia Holley on "Proving and Defending Pretext,
Public Use, and Necessity."

James Masterman and Martye Kendrick on "Preparing Your Witness
to Overcome Obstacles to Highest and Best Use."

Jeff McCoy, Robert McNamara, and Kristen Renfro on
"Getting to Federal Court and Staying There:
Navigating Procedural Mazes in Federal Takings Claims."

Sean Metherell and Nathan Farris zero in on
"How to Win a Future Highest and Best Use Claim: Proving Reasonable
Probability of Rezoning and Other Issues."

Michael Berger is Watching You:
SCOTUS Property Rights Maven Michael Berger zooms in with his
annual "Regulatory Takings Update."

We always hold a spot for Jim Burling on Saturday.
Why? Because his tours-de-force always are interesting
and put people in seats, even on a Saturday morning.

More Big Michael.
Here, sharing his memories of Professor Gideon Kanner.

See you in San Diego!
January 30 - February 1, 2025
Westin San Diego Bayside

No FOMO: There's Still Room For You To Join Us In New Orleans Feb 1-3, 2024 For The 41st ALI-CLE Eminent Domain & Land Valuation Litigation Conference

Don't miss out!

We promise: this is the last time we're going to try to entice you to the upcoming ALI-CLE Eminent Domain & Land Valuation Litigation Conference in New Orleans. We are getting close to capacity, but there is still room. In recent years, we have standing room only in the Conference halls, and have sold out the hotel block. After all, this is a pretty niche area of law. So what gives?

When we were in Austin last year, we thought it might be nice to try and answer that question. We asked Conference participants why they come, year-after-year (and in Austin, despite massive travel disruptions). Yes, it is the various venues (Nashville, Austin, Scottsdale, Palm Springs, to name a few recent locations), and yes, it is the excellent and useful programming.

But as we suspected it is more than that. As the above video notes, the consistent response from our participants about why the attend is the participants. The faculty and other attendees, the vendors. The collegiality, the chance to renew long-standing friendships, and especially the chance to make new friends and colleagues who share our passion for this area of law. The welcoming environment, and our desire to have lawyers and other professionals new to this area of law or new to the Bar feel at home and welcomed.

We have also made a big effort in the last few years to include a range of professionals from various perspectives, including lawyers, legal academics, jurists, appraisers and MAIs, planners, right of way and relocation experts, and jury and trial consultants. Family members also welcome (there are a lot of "adjacent" social and networking events, and families are welcome as long as they don't mind a lot of "shop talk"). Our program is a mix of practical and substantive sessions.

We also have a special track on the first day of the Conference designed as a crash course in Eminent Domain law ("Condemnation 101"), which is a good place for an overview and introduction to the practice, or as a refresher course for those with more time under your belt.

In short, we try and make the Conference not just a place to learn the latest in eminent domain and related topics, but somewhere you can return to each year, and feel welcome.

So if you have not attended before, give us a try! We'd love to see you in New Orleans in just a few months. Registration is still open. Sign up now, and don't miss out.

"The Lost World - Land Use Before Zoning" - Bound by Oath Podcast, S3 E3: Hadacheck, Buchanan

This season of the Institute for Justice's podcast series "Bound by Oath" is devoted to property rights. It's a fascinating series -- produced by John Ross, it is more like an audio documentary than a typical podcast -- focusing on constitutional issues. And we say this not just because we've been a guest a couple of times -- see "Groping in a Fog", this season's immediate prior episode about regulatory takings, and Season 1, where we guested on the episode about the origins of the "incorporation" doctrine).

In the latest episode, "A Lost World," John covers the world before zoning and the use (and abuse) of the plain-old police power to regulate the use of land and property.

Here's the description:

On Episode 3, we journey back to a lost world: the world before zoning. And we take a look at a trio of historic property rights cases. In In re Lee Sing, San Francisco officials tried to wipe Chinatown off the map. In Buchanan v. Warley, Louisville, Ky. officials mapped out where in the city residents were allowed to live based on their race. And in Hadacheck v. Sebastian, a Los Angeles city councilman sought to use the police power to protect his real estate investments.

Click here for transcript.

We were happy to share some of the backstory (and sad ending) of Hadacheck. Here's a photo looking down Pico from the site of the Victoria Park neighborhood, showing how close the two brickyards covered by the ordinance's ban were to Councilman Andrews' real estate investment. 

Which gets to the good part, the rest of the story that is not reported in the opinion:

John: And there’s one more piece to the story. It’s one that’s not in the briefs or in the court opinions, but it is in newspaper articles from the time. It turns out that just a couple blocks away from Hadacheck’s lot, real estate investors were selling lots in what was then a fancy new development. Here’s an advertisement in the Los Angeles Times printed in 1911.

Ad in L.A. Times: FOR SALE: The finest residence property in Los Angeles. Victoria Park is located in the ultra-fashionable southwest district on the very crown of West Adams Hill. The highest skill of the landscape gardener’s art has been employed to make ….

Robert Thomas: And if you take a left and drive down about a minute you turn into a neighborhood called Victoria Park. And well it turns out that this was the residential subdivision that the Los Angeles City Council was concerned with, because on one hand it was two blocks or so from Hadacheck’s brickyard, and it was literally across the street from one of the other brickyards that was subject to this ordinance. I think the homes there today when you drive around must have been the homes that were built then because they have that period look to them. Arts-and-crafts type of houses. Really kind of nice. One and two story houses with lawns and substantial lots. And of this being Los Angeles, there's a ring of palm trees.

John: Victoria Park was being developed by a consortium of real-estate investors. Robert Thomas: Well, it turns out that one of the leaders of that consortium was a fella called Josiah Andrews.

John: Josiah Andrews was a Los Angeles City Councilman, and one of the very first things he did after getting elected was to introduce the brickyard ban – not a ban in the whole city but just in the area that just so happened to be next to his investments in Victoria Park.

Robert Thomas: The story, when you piece it all together by looking outside the opinion, looks like one where it's pretty clearly self dealing on the part of Councilman Andrews. Why that does not make it into the record. Why that does not make it into the opinion. We don't know. John: In fairness, the city did get around to banning brickyards elsewhere in the city within a few years. But in 1910, the only ones they banned were the ones that threatened Josiah Andrews’ pocketbook. The Hadacheck decision remains good law, and looking back it today it appears to be a harbinger of things to come. Namely, the Supreme Court’s unwillingness to find that land-use regulations violate the due process of law – even when they seem arbitrary and even if someone’s ox is very definitely getting gored. And while you might think that invoking the police power as a pretext for a government official’s private pursuit of profit would be something of a no-no, well, stay tuned on that. We’ll come back to pretextual confiscations later in the season. Today, of course, Mr. Hadacheck’s case might be litigated differently. He probably would raise a regulatory taking claim, for instance, but as we talked about last episode the likelihood that he would achieve a more favorable result is not great.

 

For more visuals to go with your reading, see our post "Takings Pilgrimage, LA Edition: Police Power, The Zoning Game, And Nuisances" where we visited the Hadacheck site. Or read a short essay we wrote a few years back which includes more about Hadacheck.

And be sure to add this episode to your listening queue.

Thomas, Back to the Future of Land Use Regulation, 7 Brigham-Kanner Property Rights Journal 109 (2018)

Hawaii Five-80: More Land Use (Law 580) At The University Of Hawaii

Starting in January, we'll be helping our friend and former law partner Mark M. Murakami with the venerated and oh-so-important Land Use course (Law 580) at the University of Hawaii's Law School.

We're temporarily stepping into some mighty big slippers (this is Hawaii, so we don't always wear shoes), as this is the course that our mentor Professor David Callies taught for decades. And is there a better venue in which to teach and study land use law and regulation, and its limits? After all, Hawaii may be the most heavily-regulated land on the planet, and is a focal point for every issue you can think of, from zoning to environmental restrictions to takings to public trust to subdivision to admin law to ... well, you get the drift.

We'll cover those topics, as well as the fundamentals. And we have a few surprises up our sleeves -- some impressive guest lecturers, explorations of dirt law careers, and maybe a field trip or two.

We'll bring you the highlights here, as they happen. Is there a bit of pressure on us to get it right? You bet. But are we looking forward to it (not just an opportunity to head back to the 808, but because this is a great subject)? You bet.

Alabama: Banning Short-Term Rentals Is Constitutional (PS - "the Alabama Constitution does not recognize regulatory-takings claims")

A quick one from the Alabama Supreme Court. In Dixon v. City of Auburn, No SC-2022-0741 (Oct. 27, 2023), the court rejected a property owner's claim that the city outlawing short term rentals of residential properties -- when the plaintiff had been renting his basement for a while -- was not a violation of the Alabama Constitution.

The court rejected the argument that Dixon's use was a nonconforming use or vested right, and concluded that his right to do so was not so because he had no legal right to rent out his property before the STR ordinance. The court rejected his claim that in the absence of regulations limiting that right, he could rent short term, because the zoning code prohibits any uses not expressly allowed. Slip op. at 10.

And here's the interesting bit. Although Dixon styled one of his claims as "an 'unlawful taking without just compensation'" under Alabama law, slip op. at 7 n.4, the court noted that the substance of the claim sounded in due process. The court also noted in the same footnote that "in Town of Gurley v. M & N Materials, Inc., 143 S. 3d 1 (Ala. 2013), a  majority of this Court concluded that the Alabama Constitution does not recognize regulatory-takings claims, and the trial court relied upon Gurley in entering summary judgment as to [the "just compensation" claim]." Id.

The footnote goes on: "Dixon has not asked this Court to revisit Gurley, and, therefore, to the extent that Dixon attempted to present a takings claim under the Alabama Constitution, the trial court's summary judgment as to that claim must be affirmed." Id.

This sure sounds like if the court were presented with an argument that Gurley is wrong (we're not scholars of Alabama constitutional law, but we're betting it is wrong and that you can bring a claim under the Alabama Constitution for just compensation for a taking), the court just might entertain overruling or at least revisiting it.

So heads-up Alabama property lawyers, here's your mission if you choose to accept it.

Dixon v. City of Auburn, No. SC-2022-0741 (Ala. Oct. 27, 2023) (per curiam)

ALI-CLE's Eminent Domain & Land Valuation Litigation Conference (Feb 1-3, 2024, New Orleans): Why Attend? Here's Why.

Why is it, you ask, that the ALI-CLE Eminent Domain & Land Valuation Litigation Conference (scheduled next February 1-3, 2024, in New Orleans) is an event that seems to be growing in popularity and attendance. In recent years, we have standing room only in the Conference halls, and have sold out the hotel block. After all, this is a pretty niche area of law. So what gives?

When we were in Austin earlier this year, we thought it might be nice to try and answer that question. We asked Conference participants why they come, year-after-year (and in Austin, despite massive travel disruptions). Yes, it is the various venues (Nashville, Austin, Scottsdale, Palm Springs, to name a few recent locations), and yes, it is the excellent and useful programming.

But as we suspected it is more than that. As the above video notes, the consistent response from our participants about why the attend is the participants. The faculty and other attendees, the vendors. The collegiality, the chance to renew long-standing friendships, and especially the chance to make new friends and colleagues who share our passion for this area of law. The welcoming environment, and our desire to have lawyers and other professionals new to this area of law or new to the Bar feel at home and welcomed.

I can personally attest to that one, having been welcomed to a Conference long ago by Toby Brigham, who although he was one of the Chairs of the event, made it a point to notice that I was a new attendee, and to introduce me around to the "old hands."

We have also made a big effort in the last few years to include a range of professionals from various perspectives, including lawyers, legal academics, jurists, appraisers and MAIs, planners, right of way and relocation experts, and jury and trial consultants. Family members also welcome (there are a lot of "adjacent" social and networking events, and families are welcome as long as they don't mind a lot of "shop talk"). Our program is a mix of practical and substantive sessions.

We also have a special track on the first day of the Conference designed as a crash course in Eminent Domain law ("Condemnation 101"), which is a good place for an overview and introduction to the practice, or as a refresher course for those with more time under your belt.

In short, we try and make the Conference not just a place to learn the latest in eminent domain and related topics, but somewhere you can return to each year, and feel welcome.

So if you have not attended before, give us a try! We'd love to see you in New Orleans in just a few months. Registration and hotel reservation now open. Sign up now, and don't miss out.

Cal Ct App: Prohibition On Short-Term Rentals Might Have A Commerce Clause Problem

The voters of South Lake Tahoe, California, adopted an ordinance that forbade the city from issuing short-term rental permits for properties in residential zones unless the owner was a permanent resident of the city, and declared that all short-term rental permits would expire three years later. The trial court granted the city summary judgment on all claims raised by an association of property owners who rented short-term. 

In South Lake Tahoe Property Owners Group v. City of South Lake Tahoe, No. C093603 (June 20, 2023), the California Court of Appeal mostly agreed, holding that the owners' vested rights and state law preemption claims did not survive. But the court disagreed with the trial court's dismissal of a (dormant) Commerce Clause challenge to the residency component. As noted in this recent Fifth Circuit decision, local ordinances that discriminate between residents and non-residents are (or at least could be) too burdensome of the right to interstate travel as a durational residency requirement. Here's the resident exception:

Despite its ban on vacation home rentals in residential zones, Measure T allows permanent residents to let their dwellings up to a total of 30 days per year, subject to obtaining a permit. For purposes of the exception, a permanent resident is a person who lives in his or her home a majority of the year and claims a homeowner’s property tax exemption under article XIII, section 3, subdivision (k) of the California Constitution.

Slip op. at 17.

The court concluded that the "resident owner exception discriminates on its face against interstate commerce" because it "unlawfully requires 'an out-of-state firm 'to become a resident in order to compete on equal terms.'" Slip op. at 26 (citations omitted). By foreclosing non-resident owners from participating in the city's short-term rental market, the ordinance benefits residents "based solely" on an owner's residency status:

Because Measure T’s permanent resident exception facially discriminates against interstate commerce, it is per se invalid unless the City can justify the discrimination by showing that the resident exception ‘ “advances a legitimate local purpose that cannot be adequately served by reasonable nondiscriminatory alternatives.” ’

Slip op. at 33 (citations omitted).

South Lake Tahoe Property Owners Group v. City of South Lake Tahoe, No. C093603 (Cal. Ct. App. June 20, 202...

Montana: Owning The Land Is Enough To Plead A Property Interest: Property Means "Rights Inherent In Ownership," Not Extent Of Govt Discretion

The Supreme Court of Montana's opinion in Tai Tam, LLC v. Missoula County, No. DA21-0660 (Nov. 15, 2022) starts off like a somewhat typical land use dispute turned into a constitutional fight. The property owner sought subdivision approvals for a 28-acre parcel to allow residential development, and the County denied the applications because "the proposal failure to adequately mitigate the loss of agricultural soils." Slip op. at 2.(Oh, and "bird habitat." Slip op. at 3.)

Next, the complaint, alleging some of the usual claims: due process, equal protection, and takings, and a statutory claim under Montana law. The trial court dismissed all claims: the statutory claims for failure to get in before the 30-day limitations period, and the constitutional property claims based on the court's conclusion that the plaintiff lacked a "property" interest.

We'll let you read the part of the opinion in which the court reversed the dismissal of the statutory claim for not filing within 30 days. Short story: the 30-day limitations period doesn't apply to the type of statutory damage claim that the plaintiff brought. See slip op. at 8 ("Ultimately, we find the plain language of [the statute] is not ambiguous and does not contain a 30-day statute of limitations.").

Now on to the good stuff - the property interest. The trial court concluded that the plaintiff did not possess a property interest in a subdivision application. Or maybe more precisely, in subdivision approval. The court also rejected the notion that the plaintiff owned the land, and that was sufficient to plead a property interest.

The Supreme Court had a different view. It started with the notion that on a motion to dismiss, every fact is deemed true and all inferences cut in the plaintiff's favor. Addressing the "threshold" question of whether the plaintiff owns property, the court held that the plaintiff's "ownership of McCauley Meadows [the land] is sufficient to state a protected property interest and bring § 1983 claims against the Board in this case." Slip op. at 13.

Rather than apply this interest to Tai Tam’s § 1983 claims, the District Court took Tai Tam’s concession it did not have a protected property interest in the subdivision application and ended its inquiry there. This was in error, as the District Court was required to address whether Tai Tam’s rights inherent in its ownership of McCauley Meadows were violated by the Board’s actions, and inactions, in this case.

Slip op. at 14.

This is significant because it rejects the usual sleight-of-law way that many courts define the property in these type of challenges. Often, courts will define the property as the thing which the plaintiff claims the government wrongly denied. (Here, that would be a grant of the subdivision.) But if you define the property as the very action being challenged -- then the owner's property is shaped almost exclusively by the extent of the regulator's discretion, and not by the property owner's rights. Where the focus is on the scope of the government's discretion to limit property uses and not on the owner's inherent rights, it shouldn't be too surprising that most of the time the courts conclude "no property."

Not here. 

Having concluded that the complaint adequately pleaded a property interest, the court also held that the due process/1983 claim survived because the complaint alleged the County had not provided adequate notice and an opportunity to be heard by denying subdivision approval due to lack of protection for ecological concerns, despite never having adopted any regulations requiring protection of ecological concerns. Slip op. at 17 ("Specifically, Tai Tam asserts the Board has “implemented policies to protect viewsheds, protect generic ecologic values, and protect adjacent property owners, despite having no such adopted regulations.”). In short, it may violate due process if the government is implementing policies "which are not based on any adopted regulations at all." Id.

And finally, the takings claim. The court concluded that as an "ad hoc" claim, the Penn Central takings claim was adequately pleaded:

Taking the allegations of Tai Tam’s Complaint as true, which we must at this stage in the proceedings, Barthel, ¶ 9, we find Tai Tam has sufficiently pled a takings claim in this case. According to the Complaint, Tai Tam alleges the Board is applying rules and regulations to the development of McCauley Meadows which have not been adopted with proper notice and opportunity to be heard and is unfairly requiring Tai Tam to shoulder the burden of preserving agricultural lands and viewsheds which was not imposed on other landowners. Whether these burdens are so unfair that they require compensation is, again, a question for another day.

Slip op. at 18.

The majority rejected the dissent's view that because the County retained discretion to deny the subdivision (but wait, we thought subdivision approvals were ministerial?), there could never be a takings claim based on a denial of same. The dissent's reasoning is one based on its conclusion that the denial of a discretionary permit "does not sufficiently interfere with reasonable investment-backed expectations or economic value under Penn Central." Slip op. at 18-19. But that, the majority concluded, is a judgment reserved for the trier of fact, not as a matter of law. Penn Central is an ad hoc inquiry. Check out pages 18-20 for more details of the majority's reasoning (it is definitely worth your time to do so).

Tai Tam, LLC v. Missoula County, No. DA 21-0660 (Montana Nov. 15, 2022)

Here's The Program For The 40th ALI-CLE Eminent Domain & Land Valuation Litigation Conference, Feb 1-4, 2023, Austin

Here it is, the official agenda and program for the 40th ALI-CLE Eminent Domain & Land Valuation Litigation Conference, February 2-4, 2023 (with a special event the evening of Wednesday, February 1, 2023 to entice you to arrive early).

Here's the brochure with the complete agenda, schedule, and faculty listing. But to tempt you, here are some of the highlights of the program:

• Everything Old is New Again: Why Today’s Practitioners Need to Understand the Original Meaning of the Takings and Just Compensation Clauses

• Private Utility Takeovers – Lessons From a 67 Day Trial

• Valuation Issues When Billboards and Signs are Condemned

• Setting Client Expectations and Identifying Red Flags

• Developing Property Right Issues in Texas - Questions and Answers from the Bench: A View From the Bench (with Texas Supreme Court Justice Jimmy Blacklock)

• Eminent Domain and Regulatory Takings Updates: Important Decisions You Need to Know

• Ethics: Building Your Practice by Mentoring the Next Generation of Eminent Domain Lawyers

• ...and much more!

To register, go here.

Register now and hold your space. In the past several years, we have sold out due to the conference room capacity, and the conference hotel block. So don't delay. 

Looking forward to seeing everyone in Austin for the 40th edition of the Conference.

Program Brochure, 40th ALI-CLE Eminent Domain & Land Valuation Litigation Conference, Austin, Texas, Feb 1-...

Tanning Beds v. Liquor Stores - No Equal Protection, No Physical Take, No Lucas Take For Co-19 Biz Shutdown Order

To "slow the spread" in the early days of the Co-19 thing, the City ordered businesses to shut down. But not Wal-Mart, liquor stores, or churches. Golden Glow, a tanning salon objected, and told anyone who would listen that it could operate without person-to-person contact. Sorry, no exceptions.

Federal lawsuit followed, alleging the claims you might expect: equal protection and takings claims. Predictably, the district court granted summary judgment to the City.

And just as predictably, in Golden Glow Tanning Salon, Inc. v. City of Columbus, No. 21-60898 (Nov. 8, 2022), the U.S. Court of Appeals for the Fifth Circuit affirmed. The opinion, as you might expect is short.

Was Golden Glow treated differently from other businesses similarly situated without a rational reason? No. First, Golden Glow is similar to other shut down businesses: "[e]ach class of shut-down business provides recreational, social, or, as some would say, 'nonessential' services; the clientele typically spend more than a few minutes at the location; and the likelihood of close person-to-person contact may pose risks." Slip op. at 4. Second, the distinction between which businesses got shut down and which didn't isn't subject to any meaningful judicial scrutiny because of rational basis review.

The right to work isn't a "fundamental" right so you get whatever the City wants to give:

Golden Glow contends that the City Ordinance created an arbitrary distinction between tanning salons and liquor stores that bore no rational relationship to public health given the salon’s ability to operate safely and without customer contact. The City responds that tanning salons, when compared to liquor stores, were not “so important to society that the benefits of continued operations . . . outweigh[ed] the risks of spreading the virus.” The City rationalizes that the length of time spent in a tanning bed as compared to a liquor store raised the probability that the virus was more likely to spread in a tanning salon.

Slip op. at 7-8. The ordinance's reach might have been too over or underinclusive, but so what? Invisible aliens might be walking among us.

The takings claim fared no better. The court rejected the physical invasion claim because there was not a physical invasion "because the City Ordinance did not authorize physical intrusions onto Golden Glow's property." Slip op. at 9 (footnote omitted). Of course, this was not like other physical-invasion-by-regulation cases in which the government invites third-parties to come on your property. But that conclusion dodges the real question of whether a business owner has a right to include patrons. Yeah, maybe Golden Glow would have lost that argument as well, but it would be nice to at least see the proper question being answered.

The court just as easily rejected the Lucas takings claim, concluding that the shutdown order did not render "the entire property 'valueless.'" Slip op. at 10. Apparently, Golden Glow did not assert a Penn Central taking in the district court, so the Fifth Circuit declined to rule on that issue on appeal. See slip op. at 10 n.8.

Judge Ho issued an interesting concurring opinion, arguing that "[i]f we're going to recognize unenumerated rights as fundamental, why not the right to earn a living?" Slip op. at 11, 12 ("Under the Court’s approach to unenumerated rights, we privilege a broad swath of non-economic human activities, while leaving economic activities out in the cold."). Check it out.

Golden Glow Tanning Salon, Inc. v. City of Columbus, No. 21-60898 (5th Cir. Nov. 8, 2022)

Still Time To Join Us (In-Person Or Remote) For The 19th Annual Brigham-Kanner Property Rights Conference

One last reminder that there' still time to register for the upcoming Brigham-Kanner Property Rights Conference at the William and Mary Law School in Williamsburg, Virginia, September 29-30, 2022. If you can't make it to the historic campus, there's an option to attend remotely.

In our opinion, the Conference is the best of its kind because it brings together legal scholars and the practicing bar to talk dirt law theory and practice. We also a have a full supplemental program for law students, that covers property law and careers in eminent domain law, a recruiting session, a program on international property rights, and a program on land use law.

Registration for the Conference is ongoing, and you can sign up here.

Here is the full agenda. (We'll be speaking on Panel #2, "Reshaping the Framework Protecting Property Under the Roberts Court.")

Come on, join us!

 

CA6: No "Police Power" Exception To Takings (But It's Nonetheless Dispositive As Penn Central's Character)

A short one (unpublished) from the U.S. Court of Appeals for the Sixth Circuit, considering an issue we've been following: what is the effect of the government's claim that it is regulating property for what looks like a valid "police power" purpose?

As noted, that's a road we've been down before. Here's a sampling:

• Wait, I Thought The Police Power and the Public Use Clause Were "Coterminous"
• CA3: Claim That Govt Is Keeping Property Seized (But Not Used) As Evidence "checks all the Fifth Amendment boxes."
• Cert Denied In Police Power Takings Case (Lech v. Greenwood Village)
• Fed Cir Tries To Avoid "Police Power" Takings Exception In Bump Stock Case By (Unsuccessfully) Finessing The Property Interest

In Bojicic v. Dewine, No. 21-4123 (Aug. 22, 2022), the Sixth Circuit was considering a takings and due process challenge to the governor's Co-19 shutdown orders. The court rejected the district court's rationale that the claim could be rejected simply because "the state acts pursuant to its police powers to protect public health." Slip op. at 15.  

In support, the court cited United States v. Droganes, in which we held that seizure and retention of property under the police power is not a public use. 728 F.3d 580, 591 (6th Cir. 2013). But that case involved the government’s failure to return property the plaintiff had agreed to forfeit after being charged criminally. Id. at 585. It did not concern the kind of regulatory taking at issue here.

Defendants cite several other cases purportedly holding that exercises of the police power are not compensable takings. Principally, the Defendants rely on Keystone Bituminous Coal Association v. DeBenedictis, 480 U.S. 470 (1987), decided after Penn Central. That case discussed whether the government must compensate property owners when it prevented them using their property for certain purposes. The Court explained that “‘all property in this country is held under the implied obligation that the owner’s use of it shall not be injurious to the community,’ and the Takings Clause did not transform that principle to one that requires compensation whenever the State asserts its power to enforce it.” 480 U.S. at 491–92 (cleaned up) (quoting Mugler v. Kansas, 123 U.S. 623, 665 (1887)). And it added that “the public interest in preventing activities similar to public nuisances is a substantial one, which in many instances has not required compensation.” Id. at 492.

Slip op. at 15-16.

The appeals court acknowledged that yes, the state has a strong interest in preventing harm, but "no appellate court seems to have applied the police-power language so broadly as to categorically declare that no state response to a public-health emergency could be a taking. True, this police-power exception has been applied in the context of criminal forfeitures and abating nuisances. But to hold that a regulation intended to benefit public health can never be a compensable taking would be an unwarranted extension of existing precedent." Slip op. at 16.

That's something we argued in this article ("Evaluating Emergency Takings: Flattening the Economic Curve," 29 Wm & Mary Bill of Rights J. 1145 (2021)). We view a valid police power reason as the predicate to a takings claim, and not a bar. After all, if the government lacks a valid health, safety, welfare, or morals reason supporting the restriction, that's a due process problem (mostly). It's only after a court makes that call that it can consider whether compensation might be owed.

So score one for the property owner!

But that was not the end of the story. Having rejected the district court's rationale for dismissing, the Sixth Circuit didn't stop there: "[w]e therefore analyze this issue under the Penn Central framework" since no Lucas economic wipeout was alleged by the plaintiff. Id.

And don't miss the way the court analyzes the multi-factor test. First, it concluded that "[t]he first two factors—the economic impact of the regulation on the plaintiff and the extent to which the regulation had interfered with the plaintiff’s distinct investment-backed expectation—weigh in favor of the Plaintiffs." Id. Oh boy, things are really looking up, no?

Not so fast. The court concluded that the final factor--the character of the government action--"weighs even more heavily in the Defendants' favor." Slip op. at 17. Indeed, the character is "dispositive." Id. Why, you ask? It looks like the court went back and cut the police power argument, and paste it here. The character of the government action was that the state imposed the restrictions "to protect public health by reacting quickly in the face of a fast-spreading and novel virus." Id. As we suggested in the article referenced above, the "character" inquiry is not just another way of asking whether the government has a good police power reason for the regulations. Character asks about the nature of the imposition on the plaintiff's rights by asking does it require some surrender of a fundamental aspect of property, or is it more a rearrangement of the benefits and burdens of life? It's not some kind of alternative police power test as the Sixth Circuit concluded. 

Next, the court held that the character of the state's Co-19 restrictions here were temporary ("in effect for only a little over two months"). The court recognized that Tahoe-Sierra "analyzed a per se regulatory taking," but also asserted "the language applies equally here." Slip op. at 17. But again, what does that have to do with character? Aren't temporary takings also compensable (we sure think so)?

The court, of course, expressed it's "sympathy" for the plaintiffs because "they were forced to shut down their businesses, give up income, and endure the uncertain difficulties of the pandemic." Slip op. at 18. But because the government was "facing the unexpected arrival of a virus of unknown destructive capacity," it was "forced to act and to act quickly." Slip op. at 18. Thus, no taking.

Bojicic v. Dewine, No 21-4123 (6th Cir Aug. 22, 2022) (unpub.)

NC: Generally-Applicable Impact Fee Is Subject To Nollan/Dolan/Koontz

We recommend you review the North Carolina Supreme Court's opinion in Anderson Creek Partners, L.P. v. County of Harnett, No. 63PA21-1 (Aug. 19, 2022). It's long (70 page majority, plus 19 pages of concurring and dissenting opinions), but worth your time because the majority concludes that legislatively-imposed fees, applicable to all, are "exactions" that are subject to the nexus/rough proportionality requirements of Nollan/Dolan/Koontz.

The county adopted a requirement that residential property developers pay a per-lot, one-time water and sewer capacity use fee as a condition of the county accepting applications for a water or sewer permit. The details:

Section 28(h) of the ordinance provides for the collection of “capacity use” fees for the purpose of “partially recover[ing] directly from new customers the costs of capacity of the utility system to serve them.” More specifically, the ordinance provides that, for each new residential connection to a water or sewer system owned or operated by the County, the landowner must pay a one-time, non-negotiable fee of $1,000 for water service and $1,200 for sewer service, with the landowner being required to make the required payment prior to the County’s concurrence in the landowner’s application to the North Carolina Department of Environment and Natural Resources1 for the issuance of the required water and/or sewer permits. According to the ordinance, “such charges are reasonable and necessary and result in a more equitable and economically efficient method of recovery of such costs to handle new growth and to serve new customers without placing an additional financial burden on existing customers solely through inordinate enhancement of water and sewer rates.”

Slip op. at 5.

Anderson Creek had paid more than $25,000 in fees, and sought a state court declaration that the fee violated its due process and equal protection rights under the N.C. Constitution (recall that the state constitution does not contain a formal "takings" clause). The trial court entered judgment on the pleadings for the county, and the court of appeals affirmed because these are generally-applicable user fees, not subject to the N/D/K unconstitutional conditions analysis. "Exactions" are reserved for ad hoc fees, not fees imposed by legislative action. See slip op. at 14-16.

The Supreme Court disagreed. Viewing this as a due process problem, the majority noted that the point of the N/D/K doctrine is to prevent governmental coercion, and forcing people to choose which of their constitutional rights they'd like to exercise.

The heart of the court's analysis starts at page 25, where the opinion concludes that the county's "capacity use fee" is properly classified as a fee to cover new infrastructure, "a description that falls squarely within the definition of an 'impact fee' as discussed above. Slip op. at 27 (footnote omitted). 

The fees at issue in this case are not water and sewer service fees, paid by customers at a fixed rate in accordance with their monthly metered water and sewer usage for the purpose of paying for the service that they used. In addition, the challenged fees are not “tap-on fees” paid at the time that individual lots are connected to the County’s water and sewer system. Instead, the fees at issue in this case are intended to provide the County with a contribution toward the cost of expanding its water and sewer infrastructure to account for the additional customers that will be added as a result of the developer’s development. Thus, the “capacity use” fees at issue in this case, which are not intended to cover the cost of any service that is currently being provided to the person paying them “at the time of actual use,” Quality Built Homes, I, 369 N.C. at 21, are clearly different from those at issue in Homebuilders Association of Charlotte, which were specifically intended to “cover the costs of regulatory services provided by the city,” including the labor costs associated with reviewing permit applications, 336 N.C. at 45. As a result, for all of these reasons, we hold that the challenged “capacity use fees” are properly categorized as impact fees rather than “user fees,” a determination that renders much of the authority upon which the County relies inapplicable.

Slip op. at 27-28 (footnote omitted)

Next, the court determined that as "exactions," the fees are subject to N/D/K requirements, even though they were not imposed ad hoc, but applied to everyone equally. The court rejected other courts' conclusions that legislatively-imposed fees are not subject to the nexus and proportionality requirement. See slip op. at 25-26.

The court was having none of it:

A careful review of the record and the applicable law convinces us that the County’s capacity use fees are subject to scrutiny under the “essential nexus” and “rough proportionality” tests articulated in Nollan and Dolan. In Koontz, the Supreme Court specifically held that “the government’s demand for property from a land-use permit application must satisfy the requirements of Nollan and Dolan even when the government denies the permit and even when its demand is for money,” 570 U.S. at 619 (emphasis added), with the Supreme Court’s reference to “in lieu of” fees, rather than limiting the reach of the Supreme Court’s decision, simply being a response to the Florida Supreme Court’s conclusion that a governmental demand for money rather than an interference in tangible property rights did not constitute a taking.

Slip op. at 43. "As a result, we conclude that the 'monetary exactions' with which Koontz was concerned were not limited to 'in lieu of' fees and, instead, encompassed a broader range of governmental demands for the payment of money as a precondition for the approval of a land-use permit." Slip op. at 45 (footnote omitted). The county's fees were imposed upon an identified property interest, even though those fees applied to everyone with a similar interest. Slip op. at 46 ("In other words, the fee at issue in this case is, in fact, linked to a specific piece of property, in each case the specific parcel of land that has been proposed for development.").

The court also concluded that neither Nollan nor Dolan turned on whether the condition being challenged was imposed administratively or legislatively:

In addition, we are not persuaded that the applicability of the test enunciated in Nollan and Dolan depends upon whether the challenged condition was imposed administratively or legislatively. As at least one member of the Supreme Court has recognized, the lower courts have reached differing conclusions with respect to this issue, which the Supreme Court has yet to address. See Cal. Bldg. Indus. Ass’n v. City of San Jose, 577 U.S. 1179 (2016) (Thomas, J., concurring in the denial of certiorari).13 After carefully reviewing the relevant decisions, we agree with plaintiffs that nothing in Nollan, Dolan, or Koontz supports a view that those decisions only apply in the context of “administrative” decisions, with the Supreme Court having consistently described the “unconstitutional conditions” doctrine as “preventing the government from coercing people into giving up” a constitutional right rather than preventing a particular branch of government from acting in a particular manner. Koontz, 570 U.S. at 604 (emphasis added); see also Dolan, 512 U.S. at 385 (noting that “the government may not require a person to give up a constitutional right—here the right to receive just compensation when property is taken for a public use—in exchange for a discretionary benefit conferred by the government where the benefit sought has little or no relationship to the property”) (emphasis added).

Slip op. at 52-52 (footnote omitted).

So there it is. Worth your time checking out. 

Disclosure: our Pacific Legal Foundation colleagues filed an amicus brief in support of the property owners here.

Anderson Creek Partners, L.P. v. County of Harnett, No. 63PA21-1 (N.C. Aug. 19, 2022)

CA2: Land Use Challenge (Not Takings) Is Ripe - Govt Gave Its Final "No"

Check out the U.S. Court of Appeals for the Second Circuit's opinion in Village Green of Sayville, LLC v. Town of Islip, No. 19-3353 (Aug. 5, 2022), a case in which the court held the Town reached a final decision denying Village Green's request to develop a 64-unit apartment complex on Long Island.

Final decision ripeness under the surviving part of Williamson County, you say? So this is a takings case, right? No, not quite. The claims asserted by the developer  included a takings claim (although it seems to have played a more minor role) and the claims were mostly about the Town allegedly discriminating against affordable housing and the people who build and live in affordable housing. See slip op. at 11.

But as you know, many courts -- including the Second Circuit -- apply Williamson County's final decision ripeness requirements to anything vaguely land usey. Even RLUIPA and ADA claims (yes, ADA claims). Why there needs to be a special ripeness requirement applicable only to "land use" cases, and why the courts cannot simply apply the usual federal court ripeness rules applicable to, you know, every other type of challenge, isn't really clear to us, except that federal courts just don't like to deal with land use cases.

But let's put that aside here, because as the title of this post notes, the Second Circuit actually allowed this land use claim to move forward. Since the ripeness issues turned on what the Town did or didn't do, it's worth a walk-through of what the developer wanted to do, what it asked the Town to do, and how the Town reacted.

As we noted above, the case involved the developer wanting to build affordable housing. It obtained a rezoning of the property from Business to Residence, but the rezone was subject to two conditions, one involving the ability to rent the units and the other about the property's sewer lines. Those conditions became a sticking point, and eventually the developer asked the Town to allow it to develop the 64 units without the conditions. "Local opposition was strong." Slip op. at 6.

Town officials seemed to have reacted to that opposition by doing what they could to avoid saying yes to the proposal, while also avoiding saying no. Eighteen months elapsed, and the Planning Board finally considered approving: "Put to a vote, though, the seven-member Planning Board failed to pass the motion: After the vice chairman recused himself, the vote was 3-3 and deemed a 'non-action.'" Slip op. at 7. The usual pattern ensued - the developer submitted a more modest application with more public goodies included. That did not assuage the opposition. "Members of the public again made hostile comments, discussing 'Section 8' and 'transients,' and pledging that townspeople 'will not forget if this project is approved.'" Slop op. at 7-8.

Four months later, the developer's application was back on the Planning Board's agenda. But no deal, and consideration it was again continued. Two weeks later, the same. This time, the motion to approve the application was at least made. But since no Board member seconded the motion, no vote was held. The Town's lawyer let the developer know that the failed motion to approve was being treated as a denial and that "no further proceedings before the Town Board, Planning Board, or any other Town Agency would be held." Slip op. at 9.

Next stop, U.S. District Court. Despite its lawyer's earlier statement that the application process was done, in court the Town argued otherwise, claiming that it had not been given the opportunity to commit to a position. Slip op. at 24. Having never voted on the application, the Town argued, it can't be said to have made a final decision denying the development, no?

The Second Circuit held no:

The parties seem to agree a no-vote on November 17, 2016, would have ripened the dispute. But because the Town Board declined to give its position this way, we must assess the more unusual route it did take: first, noting in an official resolution that the “motion to approve fails for lack of second,” App’x at 317; then apparently choosing to “treat[] the failed motion to approve as a denial of the application” and promising that no town agency would hear anything further on the matter; App’x at 32-33 ¶ 67; and finally, true to that promise, scheduling no further proceedings on the application in the almost six years since.

We conclude that, through this sequence of events, the Town Board demonstrated its “arriv[al] at a definitive position on the issue that inflict[ed] an actual, concrete injury” on Village Green.

Slip op. at 25-26.

The fact that it took the court 30 pages of opinion, and that it was even a close call, tells you what you need to know about the ruling. Sure, it's the proper result. But at the same time, the case highlights how reluctant courts are to hold the government's feet to the fire not only where the government plainly is trying to avoid making a decision, but as here, where the Town's lawyer actually told the developer "no mas."

It shouldn't be that hard. 

Village Green at Sayville, LLC v. Town of Islip, No. 19-3353 (2d Cir. Aug. 5, 2022)

The Circle Is Now Complete: A Sampling Of Final Paper Topics From William and Mary Law's Eminent Domain & Property Rights, And Land Use Courses

If you ever get the opportunity to teach in a law school -- either as a full-time legal scholar, or part-time as an expert adjunct practitioner -- take it if you can. You might think you know a lot about a particular subject, but there's nothing like spending time at the lectern in a law classroom in front of sharp and eager lawyers-in-training to sharpen your thoughts, and get you to truly understand a subject.

And folks calling you "professor" can evoke a smile.

But if there's one downside to the law school experience from the teacher's side of the lectern, it's grading. Especially at a law school like William and Mary that has a pretty strict mandatory curve. In upper-division courses that we handle like Eminent Domain and Property Rights Law and Land Use -- where we're dealing with some very high-level stuff and the quality of the students is uniformly high -- that makes for some hard choices at this time of year. Despite these challenges, we've wrapped up grading for the Fall 2021 Semester, and have submitted the official scores.

Although I cannot share with you the students' final papers in these classes, I don't think they would mind if I give you a sampling of the topics and titles, just so you can see how the next generation of lawyers is thinking about property, property rights, takings, land use, and environmental law (inter alia). 

Check out these titles:

• The Many Saints of Land Use Law
• The Past, Present, and Future of Richmond Affordable Housing
• What's on the Menu? - The Future of Outdoor Dining and the Tension Between Land Use and Public Health
• Could Monetary Compensation Fully Indemnify Property Owners for Idiosyncratic Values in Takings Cases?
• The Lingering Effects of the Dawes Act on Tribal Land Use
• The Dawn of Debt and Everything Else: An Examination of the Works of Michael Graeber and the Role of Eminent Domain and Property Rights
• Inflation for Land Use Control
• Agritourism in Wine Country: Analysis of Accessory Uses in Napa Valley
• Judicial Exaction of Euclidean Deference Under Koontz
• A Review of Richard Rothstein’s The Color of Law: A Forgotten History of How Our Government Segregated America
• What’s on the Inside Counts: Why Historical Preservation Regulations Should be Allowed to Regulate Interior Landmarks and the Issue of Public Access
• Through the Buchanan Lens: Reframing Virginia Land Use Laws
• The Case for Equal Application of RLUIPA’s Equal Terms Provision
• The Government Giveth, and the Government Taketh Away: Retroactive Application of Inter Partes Review Under the Takings Clause
• The Right to Share: Is Virginia Beach’s Regulation of Short Term Rentals a Taking under the Takings Clause of the Fifth Amendment?
• The laws of nature do not recognize property rights, complicating the Commonwealth of Virginia’s adaptation to climate change
• Looking at Viniculture Through the Glass of Historic Preservation Law, or
  A Brief Wine Advocate
• Is the New York State Canal Corporation the Onceler of Upstate New York?: An Analysis of Town of Pittsford v. Power Authority of New York
• Law and Ownership as Evolving Stories: A Review of Mine!
• Incentive Zoning in New York
• The Tide is High but Norfolk's Holding on: An Analysis of Norfolk's Climate Change Adaptation Strategies and a Review of the Potential Claims in Response
• Flipping the Play: How Localities Can Use the Power of Eminent Domain to Seize Sports Franchises and Finally Stick it to Bob Irsay
• Land Use Control – Is it Important to the Average Joe?
• Re-Evaluating Bennis and Civil Forfeitures Under the Takings Clause
• The Guardian of Every Other Right - A Constitutional History of Property Rights and a Discussion on Tariffs, Redistributionism, and Capitalist Liberty
• Pipelines and Eminent Domain: A Constitutional and Environmental Analysis of Energy Takings
• Paradise Stolen: An Ethical Reexamination of Property Deprivation and the Plight of the Atakapa-Ishak Peoples of Louisiana’s Grand Bayou Indian Village
• A Flood of Pollutants: The Promises and Perils of a Regulatory-Takings Approach to the Right to a Clean Environment

And this is only a sampling.

I don't know about you, but I feel pretty good about this. I will be encouraging several of them to consider beefing up their papers and submitting them for publication.

CA6: There's A Difference Between Due Process "Property" And Takings Clause "Property"

Check out the U.S. Court of Appeals' opinion in Andrews v. Mentor, No. 20-4030 (Aug. 25, 2021).

Property owners sought rezoning of their land from R-4 to "Village Green - RVG," a higher density zone, so that the owners could build single-family homes. Under R-4, the maximum number of homes was 13 and had to leave 9 acres open. The city's comprehensive plan expresses a preference for Village Green zoning.

But the city denied the application,despite having approved 9 other applications since 2004, and the owners' application being "materially identical to a plan the City approved for rezoning and development in 2017." Slip op. at 3.

So off to federal court they went, filing (Lucas and Penn Central) takings, due process, and class-of-one equal protection claims. [Disclosure: the property owners are represented by my law firm colleague Dave Breemer; we didn't have anything to do with this case.] The district court granted the city judgment on the pleadings, mainly because it concluded that the owners did not have a property interest in the land as rezoned. In short, the change to Village Green zoning was merely a discretionary benefit. So takings and due process kaput. Same with the equal protection claim, which failed because the owners could not point to a fundamental right being burdened.

The Sixth Circuit reversed, remanding for more on both the takings and the equal protection claims. It first concluded that the owners own private property, rejecting the district court's employment of due process precedent holding that there's no property interest when the government has discretion to grant or deny some benefit. That's due process property, not takings property:

But the district court failed to cite a single case where a court utilized the “discretionary benefit” theory from the substantive-due-process context to determine whether a takings plaintiff held the requisite property interest to support their claim. The City does no better on appeal, citing exclusively to cases in the due-process context without any explanation for why we should import that caselaw wholesale into the takings context. See Appellee Br. at 10–14. In contrast, the Trust has offered persuasive arguments for why we cannot rely on the “discretionary benefit” theory of property rights here, and cites opinions suggesting that the property rights protected by takings law are broader (or at least not coextensive with) the property rights protected by due process.

As the Trust points out, courts routinely consider takings claims like the Trust’s that arise from a local authority’s denial of rezoning, variances, or land-use permits.

Slip op. at 6.

If due process "government benefit" property isn't takings clause property, then what is? The court didn't wholly accept the owners' argument that, well, ownership of the land is all the property interest that need be alleged, instead concluding "the inquiry is slightly more complicated than the Trust lets on." Slip op. at 7. Relying on Lucas and Palazzolo, the court concluded:

The upshot of Lucas, for our purposes, is that the deprivation of the right to use property for a particular purpose is not a “taking” if that right was never a part of the titleholder’s bundle of rights to begin with. 505 U.S. at 1027. And Palazzolo teaches that although a land-use regulation may restrict the titleholder’s use of their property, even land-use regulations that predate the acquisition of title do not automatically remove the right to use the property for a given purpose from the bundle of rights held by the titleholder. 533 U.S. at 627. Together, the cases call for a searching inquiry into “background principles of the State’s law of property and nuisance already place[d] on land ownership,” Lucas, 505 U.S. at 1029, and “objective factors, such as the nature of the land use proscribed,” Palazzolo, 533 U.S. at 630, to determine whether the plaintiff actually held the property interest that they claim to have been taken. See also Cedar Point Nursery v. Hassid, 141 S. Ct. 2063, 2076, 2079 (2021). The cases make clear that “[a] law does not become a background principle . . . by enactment itself,” but they do not rule out the possibility that legislative enactments such as zoning ordinances can achieve the status of a “background principle of state law” that might deprive the titleholder of their claimed use interest.

Slip op. at 11.

What this means to us is that on remand, the question is whether the ability to use and develop your land is one of those property rights "sticks." We think there's a good chance of that.

Not content with stopping there, the court -- somewhat oddly, in our view -- weighed in with some deep thoughts on the merits, even though it proclaimed that it wasn't putting its thumb on the scale. The opinion noted (twice) that the court is "skeptical" of the merits of the takings claims, an argument not raised by the city. See slip op. at 12. What was that all about?

And let's not forget the equal protection claim. There, the Sixth Circuit concluded that the property owners pleaded a viable class-of-one claim, holding that the complaint alleged that the plaintiffs' property and the compararable property (the one granted a permit in 2017). As we know, class-of-one arguments in these type of cases are governed by the "no rational basis" standard. The court held that the plaintiffs' allegations of disparate treatment don't exist in a vacuum, but that the city has the burden of pointing out the conceivable justifications for approving one application but denying the other. Slip op. at 18 ("While it is true that under City of Detroit the City need not “produce evidence to sustain the rationality” of its decision, 841 F.3d at 701, it does not follow that the City can obtain judgment in its favor without so much as identifying a single rational explanation for its disparate treatment of similarly situated properties.").

The court viewed this through a lens that was as much practical, as legal:

It cannot be that the Trust must concoct and rebut a potentially valid rationale for the City’s action in order to survive the pleadings stage where the City itself has failed to do so; otherwise, the Trust’s complaint would fail to state a claim even if it proves to be one of those few-and-far-between cases where the defendant’s conduct truly lacks a rational basis.

Slip op. at 18.

All-in-all, a good decision. Worth reading and incorporating into your arsenal.

Andrews v. City of Mentor, No. 20-4030 (6th Cir. Aug. 25, 2021)

Join Us For The 39th Annual ALI-CLE Eminent Domain & Land Valuation Litigation Conference, Jan 26-29, 2022 (Scottsdale, AZ)

All the topics you want to know about, presented by top-notch faculty from across the nation. Sessions include:

• Property Rights as Civil Rights
• Eminent Domain National Update
• Just Relocation: Understanding the Law and Regulations to Ensure Fairness
• Challenging Public Use: Lessons From a 67-Day Trial
• COVID Takings
• Federal Court and the Daubert Challenge: How to Prepare
• Did the Supreme Court Signal a New Direction in Property Rights in Cedar Point Nursery?
• How to Position Your Client for the Fallout When Projects Don't Get Built
• Rural Broadband and the Emerging Constitutional Challenges
• Are Precondemnation Entry Statutes Still Valid After Cedar Point Nursery?
• How Condemnor and Property Owners' Counsel Prepare the Battlefield
• How Will the Trillion Dollar Infrastructure Bill Impact Your Practice?
• Ethics
• ...and more, including a full slate of networking and social events!

We've sold out the last few years, so don't miss out. Room block now taking reservations. Registration and agenda information here.

Join us in Scottsdale in January!

Fla App Doubles Down On That Weird Property Isn't "Property" Thing

We're hoping that someone can explain the Florida District Court of Appeal's recent opinion in Bondar v. Town of Jupiter Inlet Colony, No. 4D19-2118 (May 5, 2021) in a way that makes sense other than the old apocryphal tale of "I don't know why we do things this way, except that we've always done things this way."

Before we get to the details, a slight detour. This is another one of those cases about substantive due process. Now don't get us started on that one -- we get that it might seem odd to suggest that the Fourteenth Amendment's Due Process Clause limits the government's power beyond requiring fair procedures. After all, the words are right there in the text: "nor shall any state deprive any person of life, liberty, or property, without due process of law." But work with us here: we've always viewed the phrase much more holistically and within the historical context that the words "due process of law" must be read as a single phrase, and really were the 18th Century way of saying "law of the land." (Edward Coke, we're looking at you, Your Lordship.)

With that background, let's take a look at Bondar.

The Bondars owned or leased three homes in the Town that they used for short-term rentals. The Town has one zoning district, "RS Single-Family Dwelling." That's it. Slip op. at 2 ("There were no commercial, industrial, multi-family or other zoning districts located within the Town."). A neighbor dropped dime and the Town issues notices of violation of the zoning code, and later filed a lawsuit seeking a declaration that the Bondars were violating the code.

The owners shot back: what violations? Where in the zoning code does it say short term rentals are prohibited? The trial court agreed, concluding that the zoning code didn't limit the length or frequency of an owner renting their property, and that the Bondars' use of their properties as short term rentals didn't violate the zoning code. 

Things were looking up for the Bondars' counterclaims for inverse condemnation, substantive due process, equal protection, and intentional interference with business relations. The trial court denied the Town's motion for summary judgment on the due process claim.

But the court of appeal concluded that the Town should have been granted summary judgment on the Bondars' claim that "the Town's actions in issuing notices of violation and filing the declaratory action resulted in substantial interference and substantial deprivation of their 'fundamental or constitutionally protect right to own, possess, use, dispose of, and transfer property.'" Slip op. at 8.

How so, you may ask? The court bought into the line of thinking from the Eleventh Circuit that holds that there's no substantive due process claim when the conduct alleged is the unlawful application of a land-use ordinance. That line goes like this: substantive due process is only to protect fundamental rights against arbitrary legislation. Slip op. at 9. Cf. elsewhere. 

That leads to two questions.

First, isn't property one of those "fundamental" rights? It's right there in the text of the Fourteenth Amendment, after all.

No, you're just not seeing things clearly, dude. The fundamental rights the due process clause might protect include your the right to own, possess, use, dispose of, and transfer property," but the Town here hasn't deprived the plaintiffs of their rights to do those things. It simply precluded third parties from doing so!

Although the Owners asserted below and on appeal that the fundamental right violated was the “right to own, possess, use, dispose of, and transfer property,” a close review of the counterclaim reveals otherwise. Under the plain facts alleged in the counterclaim, it cannot be said that the actions of the Town (issuing notice of violations and filing the Dec Action) impeded upon the Owners’ right to themselves “own, possess, use, dispose of or transfer” a fee ownership interest in any of the three properties. What the Town was seeking to preclude was the ability of the Owners to allow others to use the properties, which is an incidental property right controlled by state law.

Slip op. at 10. The right to let others "own, possess, use, dispose of or transfer" your property is, in the court's thinking, merely a state-granted property right, not a "fundamental" property rights. In short, the owners don't have a fundamental right "in the constitutional sense" to rent their property. Short term, long term, or otherwise.

Sorry, we're just simple country bumpkins so we initially didn't understand how the either the Florida court or the Eleventh Circuit (whose reasoning the Florida court adopted) reached this conclusion. Then we read the stuff starting on the bottom of page 10:

The Owners have not cited any cases that hold that the right to rent property to others is a fundamental right in the constitutional sense, and we have been unable to find any such authority. Instead, the cases cited by the Owners on appeal address principles applicable to the Fifth Amendment and other constitutional rights, rather than fundamental rights in the context of the Fourteenth Amendment. Thus, we conclude the Owners’ counterclaim alleging a violation of substantive due process fails because they cannot demonstrate the Town violated a fundamental right protected by the Fourteenth Amendment.

Slip op. at 10-11.

What the Florida court is saying (between the lines) is that the plaintiffs much choose their remedy (and the only choice is takings). The opinion never actually says so (unlike the Eleventh Circuit's Judge Newsom ("Sounds like a job for the Takings Clause, right?")), but that's how we read that passage.

The forced-choice-of-remedy doesn't get us there. What's to say a property owner can't allege both a taking (you regulated my property so much it sure looks like eminent domain), and a substantive due process violation (you are behaving very badly towards me, government)? To us, eliminating a due process remedy simply because the owner has a takings claim also is bad for a couple of reasons. First, the remedies may be different (compensation vs injunction). And second, that pesky text of the Fourteenth Amendment, which, you know, mentions "property" rather explicitly.

The Florida court wades further into the morass on page 11, which takes us to our second big point. The court accepted the Eleventh Circuit's distinction between "executive" actions and "legislative," and concluded that when a person alleges that the government deprived them of a "non-fundamental" right, only legislative action can trigger substantive due process violations. State government can run pretty wild, as long as its merely the executive that's doing it! That's an even lower standard than the notorious rational basis test.

So there you have it: "As for the substantive due process violation counterclaim, the Owners’ right to rent the properties to others is not a fundamental right for purposes of substantive due process. Additionally, the executive actions by the Town were not arbitrary, irrational or conscience shocking so as to violate the Fourteenth Amendment." Slip op. at 12.

We think the Sixth Circuit has a better approach: if the facts, plausibly alleged, show that a plaintiff might have both a takings and a substantive due process claim, go for it.

We still wish someone could explain Bondar and its predecessors to us in a way we could wrap our minds around.

Bondar v. Town of Jupiter Inlet Colony, No. 4D19-2118 (Fla. Dist. Ct. App. May 5, 2021)

Complaint Alleged That Chicago Pol Zoned The Chicago Way - But Still No Taking Because Family Owners Only Lost $1 Million

Read the allegations in the complaint that the Illinois Appellate Court recounted in Strauss v. City of Chicago, No. 1-19-1977 (Mar. 5, 2021), and they will make your hair curl in horror.

In short: a family rented the ground floor of its mixed residential-commercial building in Chicago to Double Door Liquors (a live music venue). The local alderman "had a personal and financial relationship with the Double Door's owners." Slip op. at 3. He "told defendant that only Double Door would be allowed in the building." Id. (It's good to have friends, no?) But Double Door was not an ideal tenant, and the noise, drug and alcohol use, and property damage by patrons were a problem to the owners and neighbors. So the owners evicted the club. 

So, according to the family's complaint, the alderman struck back. Read pages 3- 6 for the details. If true, the allegations are harrowing. The alderman instituted multiple downzonings on this property alone, which would have prohibited the residential leases on the upper floors of the building. The alderman "warned plaintiff that if Double Door was not allowed back in the building, the alderman would make the zoning process very lengthy and expensive and that the building could be vacant for years." Slip op. at 3-4. "Alderman Moreno asserted that he decides what kind of tenant goes into the building and all of these issues could be avoided if Double Door was allowed back into the building at a rent far less than what the market would bear." Id. at 4. He threatened to sic building inspectors on them. He met with potential buyers, after which they backed off. "Prior to a zoning committee meeting on September 11, 2017, a conversation about the B2-2 proposal was recorded between Alderman Moreno and his chief of staff. Alderman Moreno said he was going to 'F*** with them, it makes their lawsuit weaker ***.'" Slip op. at 5. The building's commercial space remained empty. Eventually, the family sold the whole building.

They sued for due process violations, equal protection, and a taking. Case dismissed for failure to state a claim, and the appellate court affirmed. You can guess why the substantive due process and the equal protection claims failed - the rational basis test. Yes, the complaint alleged a lot of bad reasons for the downzoning, but the court can simply make up some good reasons: "Under the rational basis test, the court may hypothesize reasons for legislation, even if the reasoning advanced did not motivate the legislative action." Slip op. at 15. Here, the court concluded it didn't need to make up any reasons, the complaint itself supplied them: the bad tenant, the Double-Door-alderman's-friend, created problems that the downzoning was rationally designed to address. How's that for bootstrapping? But yes, that is the rational basis test in its full glory.

No better luck on the takings claim, either. Jump to page 17 if you want the details. But the long-story-short is that in the eventual sale of the property forced, apparently, by the "good faith planning activities" of the City (see above), the owner only lost about a million bucks. Chump change, we guess.

Applying the factors here, plaintiff has not alleged facts showing that the economic impact of the ordinance was sufficiently severe so as to be a taking. Plaintiff ultimately sold the building for $9.1 million. That figure is less than the $10 million that plaintiff estimated was the previous market value for the building and less than the $9.6 million that was agreed to with Buyer A. But a decrease in market value is not enough to state a claim. “ ‘Mere diminution in the value of property, however serious, is insufficient to demonstrate a taking.’ ”

Slip op. at 21. Penn Central strikes again.

Strauss v. City of Chicago, No. 1-19-1977 (Ill. Ct. App. Mar. 5, 2021)

Still Time To Join Us: ALI-CLE Eminent Domain & Land Valuation Litigation Conference (Online!) This Thursday & Friday. Tuition Deals! #EminentDomain2021

Yes, it starts tomorrow, Thursday, January 28, 2021, but we're "remote" this year, so it is not too late to register to join us for the 38th Annual ALI-CLE Eminent Domain & Land Valuation Litigation Conference. This is the "big one" where the nation's best practitioners, scholars, jurists, and other industry professionals gather to talk shop about the subjects we know and love.

Details here (ALI-CLE's page with faculty, agenda, and times), or here (a recent episode of Clint Schumacher's Eminent Domain Podcast, where we preview the Conference). Here's your chance to be a part of what is the best conference on these topics.

We have set it up to take advantage of the remote format, and tuition has been reduced (thank you to ALI-CLE for recognizing this, and for our sponsors for being so generous). We're seeing a lot of first-time registrations, and this is a great opportunity to give us a test drive if you've always thought about attending, but never wanted to spend 4 days away from the office to do so.

A long-timer coming back? Look for the special deal which includes a discount on the 2022 conference.

We're having programs with intriguing subjects such as "Planning to Win: Practical Strategies for a Successful Inverse Condemnation Case," "How Do I Keep My Firm’s Doors Open When the Courthouse Doors Are Closed? Making Your Practice More Efficient When You Can’t Try Cases," "Where Is the Supreme Court Headed on Takings Cases? Regulatory Takings Update and Cedar Point Preview," "No Show and All Tell: Breaking News in Property Rights and Takings," "More Than the Fifth Amendment: Other Tools for Upholding Property Rights," and "Evaluating Lockdown, Moratorium, and Emergency Claims."

Your 2021 ALI-CLE Eminent Domain & Land Valuation Litigation Conference (Jan 28-29, Remote) BINGO Card

If you "get" this, you should be registered for the 38th Annual Eminent Domain & Land Valuation Litigation Conference, to be held remotely on Thursday and Friday, January 28-29, 2021.

The list is growing rapidly, and you need to join us!

This is the "big one" where the nation's best practitioners, scholars, jurists, and other industry professionals gather to talk shop about the subjects we know and love. We're having programs with intriguing subjects such as "Planning to Win: Practical Strategies for a Successful Inverse Condemnation Case," "How Do I Keep My Firm’s Doors Open When the Courthouse Doors Are Closed? Making Your Practice More Efficient When You Can’t Try Cases," "Where Is the Supreme Court Headed on Takings Cases? Regulatory Takings Update and Cedar Point Preview," "No Show and All Tell: Breaking News in Property Rights and Takings," "More Than the Fifth Amendment: Other Tools for Upholding Property Rights," and "Evaluating Lockdown, Moratorium, and Emergency Claims."

Details here (ALI-CLE's page with faculty, agenda, and times), or here (the latest episode of Clint Schumacher's Eminent Domain Podcast, where we preview the Conference). Here's your chance to be a part of what is the best conference on these topics.

Always wanted to join in, but didn't like the travel? Here's your chance to try us out with reduced tuition. A long-timer coming back? Look for the special deal which includes a discount on the 2022 conference.

Federal Court: If It's True That Seattle Provided Material Support To CHOP/CHAZ, That Could Be A Taking

We all know that despite the heightened Twombly/Iqbal federal pleadings standard, that it doesn't mean a whole lot if a complaint survives a 12(b)(6) motion to dismiss. All this means that the court thinks it is plausible that the complaint states a claim. And that the plaintiff gets to keep going. That's it.

But when takings claims are involved, we also know that courts can be dismissive, and a property owner surviving a motion to dismiss can be kind of a big deal.

In Hunters Capital LLC v. City of Seattle, No. C20-983 (Oct. 16, 2020), the U.S. District Court for the Western District of Washington dismissed the plaintiffs' equal protection claims, but held that the procedural and substantive due process, and takings claims survived. This is the case on which we posted earlier, in which property owners in the part of Seattle known as CHOP (or CHAZ) sued for a taking and other constitutional violations, alleging that the city not only failed to prevent the anarchist takeover of the neighborhood and the plaintiffs' properties, but that the city actively aided and abetted the effort. 

We urge you to read through the entire order (the takings analysis begins on page 20. The court focused on the allegations that the plaintiffs owned "private property" and interests protected by the Fifth and Fourteenth Amendments. The court held that the plaintiffs plausibly alleged that under Washington law, they possess a right of access:

Plaintiffs allege that from June 8 to July 1, 2020, the City allowed and encouraged CHOP participants to block access from Plaintiffs’ properties to streets and other public rights-of-way, FAC at ¶¶ 70, 177, 211–13, resulting in the deprivation of all or nearly all economic use of their properties, id. at ¶¶ 97, 101, 109, 113–14, 118. Those allegations support Plaintiffs’ assertion that the City’s policies and practices related to CHOP deprived them of protected property interests, albeit temporarily, without just compensation. See Keiffer, 89 Wn.2d at 372; Guimont, 121 Wn.2d at 597–98 & n.3; see also City of Seattle v. McCoy, 101 Wn. App. 815, 829, 4 P.3d 159 (2000) (“[T]emporary takings are subject to the same categorical treatment as permanent takings where a regulation denies all use of the property.”) (internal quotations and citation omitted); Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 435–40, 102 S. Ct. 3164, 73 L. Ed. 2d 868 (1982) (holding that a New York law requiring the plaintiff and other landlords to allow a third party to place cable facilities in their buildings constituted a taking).

Slip op. at 22 (footnote omitted). Property box checked.

What about the "taken" part of the takings question (the court in a footnote noted that it was looking at the allegations both through the total takings Lucas lens, as well as the ad hoc Penn Central lens, see Order at 22, n.6), and the notion that the government isn't usually liable for a taking for actions undertaken to respond to a calamity, or because of governmental omissions:

The Court acknowledges that judgments about where and to what degree the police should be deployed in these types of emergency situations are best left to the City. See Monarch Ins., 353 F. Supp. at 1255–56. Under Plaintiffs’ theory of the case,however, the City is not liable under § 1983 simply because its response to the creation of CHOP was “too little, too late,” id. at 1255, or because the City failed to prevent CHOP participants from physically invading their properties, cf. Citoli, 115 Wn. App. at 488. Plaintiffs plausibly assert that the City’s endorsement of, and the provision of material support to, CHOP set in motion a series of acts by certain CHOP participants, who the City knew or reasonably should have known would deprive Plaintiffs of protected property interests. FAC at ¶¶ 174, 182, 212–13. These allegations support the claim that the City’s conduct was “causally related to [the] private misconduct” and it was “sufficiently direct and substantial to require compensation under the Fifth Amendment.” YMCA, 395 U.S. at 93.

Order at 23 (footnote omitted). So yes, even though this was an emergency of sorts, it wasn't the city failing to do something, it was the city providing material aid and support (so the complaint alleges). Almost an acting-in-concert or aiding-and-abetting theory.

Again, we note that this is just the plaintiffs' complaint surviving a motion to dismiss. Not a win on the merits. So don't get too excited, because the game is far from over. 

But still, we think this is a good opinion to read and a case to watch.

Order, Hunters Capital LLC v. City of Seattle. No. C20-983 (W.D. Wash. Oct. 16, 2020)

Fed Ct: "[T]he stay-at-home and business closure components of Defendants' [COVID] orders violate the Due Process Clause" (Applying Rational Basis Review!)

As if to respond to a sibling federal court's recent order upholding a covid-reaction shut down orders, the U.S. District Court for the Western District of Pennsylvania's opinion in County of Butler v. Wolf, No.2:20-cv-00677 (Sep. 14, 2020) reaches an entirely different conclusion:

The fact is that the lockdowns imposed across the United States in early 2020 in response to the COVID-19 pandemic are unprecedented in the history of our Commonwealth and our Country. They have never been used in response to any other disease in our history. They were< not recommendations made by the CDC. They were unheard of by the people this nation until just this year. It appears as though the imposition of lockdowns in Wuhan and other areas of China-a nation unconstrained by concern for civil liberties and constitutional norms-started a domino effect where one country, and state, after another imposed draconian and hitherto untried measures on their citizens. The lockdowns are, therefore, truly unprecedented from a legal perspective. But just because something is novel does not mean that it is unconstitutional.

Slip op. at 44.

As they say, "there's a lot to unpack" in that statement. The short story is that the court held that portions of the Pennsylvania governor's covid orders are unconstitutional, but not merely because they are unprecedented (although that is a part of it). 

There's a lot being written about this decision, and we think you should read the entire thing, even if there's no takings component. Here are your two big takeaways:

1. The court, in contrast to other decisions, held that there's no "emergency" standard of review in which a court will defer even more to the elected branches actions. The court concluded that plain-old tiered scrutiny works just fine, and that simply because the other branches assert there's an emergency doesn't mean that the judiciary just rubber-stamps whatever they do. The court rejected that Jacobson v. Massachusetts, 197 U.S. 11 (1905) teaches otherwise. That's the case in which the Court defined "real liberty," and which has been most prominently applied in emergency order cases to reject due process challenges, recognizing superdeference to emergency measures.

2. The court also -- as the headline to this post quotes -- determined that the orders violated substantive due process. Yes, substantive due process. Are arbitrary and capricious! Telling the entire populace to stay in is not a "quarantine" (see here for another case on the definition of quarantine), and the stay-home orders violate the fundamental right to travel. Property mavens should not miss page 49 forward in the slip opinion. The court concluded that Pennsylvania's differentiating between "life-sustaining" and "non-life-sustaining" businesses was arbitrary. First, however, it concluded that the right to make a living is a "property" interest and liberty right protected from arbitrary interference by the government:

The emphasis given to economic substantive due process reached its apex in the Lochner era, Lochner v. New York, 198 U.S. 45 (1905), and was considerably recalibrated and de-emphasized by the New Deal Supreme Court and later jurisprudence. Nevertheless, our Supreme Court has never repudiated the recognition that a citizen has the right to work for a living and pursue his or her chosen occupation.

The Third Circuit has recognized "[t]he right to hold specific private employment and to follow a chosen profession free from unreasonable governmental interference comes within both the 'liberty' and the 'property' concepts of the Fifth and Fourteenth Amendments." Piecknick v. Comm. of Pa., 36 F.3d 1250, 1259 (3d. Cir. 1994) (citing Green v. McElroy, 360 U.S. 474, 492 (1959); Truax, 239 U.S. at 41).

Slip op. at 52.

Having found a property and liberty interest, the court applied rational basis review and struck down the essential/non-essential distinction. Rational basis being used to strike down for lack of actual rationality? What gives? The government never defined what a "life-sustaining" business is, and how it might differ from a "non-life-sustaining" one. That, to the court, meant the shut down orders were arbitrary and irrational, even applying rational basis review (calling Justice Kennedy!). 

So what's next? We're guessing that the midnight oil is already burning bright in the Pennsylvania Attorney General's offices, and that an appeal -- maybe even a request for expedited consideration -- is in the cards.

Will this survive Third Circuit review? Will this decision be a model for other challenges elsewhere? Stay tuned as always.

Opinion, County of Butler v. Wolf, No. 2:20-cv-00677-WSS (W.D. Pa. Sep. 14, 2020)

NY Fed Ct: "When faced with a society-threatening epidemic, state officials are empowered to ... infringe federal constitutional rights. They may generally do so at their sole discretion and for so long as is necessary."

The District Court's bottom line in Lukes Catering Service, LLC v. Cuomo, No. 20-CV-1086 (Sep. 10, 2020)? The New York governor's emergency orders aimed at coronavirus "imposing quarantines, mandating workforce reductions, closing schools, requiring face-coverings, and restricting activities of all types," are not takings of the businesses of event, banquet, and catering services that have been shut down as a result. The specific emergency measure challenged was the order limiting gatherings to no more than 50 people.

The controlling authority? You guessed it, Jacobson v. Massachusetts, 197 U.S. 11 (1905). That's the case in which the Court defined "real liberty," and which has been most prominently applied in emergency order cases to reject due process challenges. But if you want the court's takings analysis, jump to page 24. The court rejected the categorical (Lucas) claim:

Plaintiffs allege a categorical regulatory taking in their complaint. (Complaint, ¶¶ 104-117.) They maintain that Governor Cuomo’s Executive Orders “have resulted in Plaintiffs losing all economically viable use of their businesses and property.” (Id. ¶ 111.) Yet Plaintiffs elsewhere concede that the Executive Orders do not preclude them from hosting events of 50 or fewer people, and in fact, several Plaintiffs admit that they are scheduled to host such events. (Id. ¶¶ 45, 53, 112; Clark Reply Decl., ¶ 14 (six conforming events scheduled); Reply Declaration of Joseph Kloc, Docket No. 33-13, ¶ 11 (four conforming events scheduled).) Any categorical claim would therefore fail, since Plaintiffs admit that they are not precluded from all economically beneficial uses of their property. See Tahoe-Sierra, 535 U.S. at 330 (providing that a plaintiff must show no productive or economically beneficial use of his or her property to sustain a categorical regulatory takings claim).

Slip op. at 26.

Same result for the regulatory (Penn Central) claim:

First, the Executive Orders are temporary and do not preclude all economic use of Plaintiffs’ property. See Buffalo Teachers Fed’n, 464 F.3d at 375 (finding that temporary and partial nature of wage freeze weighed against finding a taking); Kabrovski v. City of Rochester, N.Y., 149 F. Supp. 3d 413, 425 (W.D.N.Y. 2015) (“[I]t is well settled that a ‘taking’ does not occur merely because a property owner is prevented from making the most financially beneficial use of a property.”) (citation omitted). Second, although Plaintiffs’ investment-backed expectations are surely disrupted by the 50-person limitation, the Executive Orders are “a negative restriction rather than an affirmative exploitation by the state,” which also weighs against a taking. See Buffalo Teachers Fed’n, 464 F.3d at 375. Third, and perhaps most importantly, the State “does not physically invade or permanently appropriate any of [Plaintiffs’] assets for its own use.” Connolly, 475 U.S. at 225. Rather, the character of the government action here is a temporary and proper exercise of the police power to protect the health and safety of the community, which weighs against a taking. See id. (noting that “interference with the property rights of an employer aris[ing] from a public program that adjusts the benefits and burdens of economic life to promote the common good” does not constitute a compensable taking under Supreme Court precedents); see also Lebanon Valley Auto Racing Corp. v. Cuomo, 1:20-CV-804 (LEK/TWD), 2020 WL 4596921, at *8 (N.D.N.Y. Aug. 11, 2020) (finding that the character of COVID-related Executive Orders strongly favors the State defendants). The Penn Central analysis therefore weighs against finding a non-categorical regulatory taking.

Slip op. at 27.

Anyone surprised by this result?

Lukes Catering Service, LLC v. Cuomo, No. 20-CV-1086 (W.D.N.Y. Sep. 10, 2020)

This Thursday, Sept 10: "Governmental Emergency Powers and the Constitutional Implications Arising from Pandemic Orders" (Free to ABA Members)

Please join us and a panel of expert speakers including our friend and colleague Tony Della Pelle (see the flyer for the complete list), this Thursday, September 10, 2020 at 1pm Eastern Time for the ABA-produced webinar "Governmental Emergency Powers and the Constitutional Implications Arising from Pandemic Orders."

Free to ABA members, a modest cost for those who are not. Register here.

Here's the plan:

In the wake of the unprecedented global pandemic, every level of government has taken steps to address the public health crisis. These steps have manifested in orders which impact businesses and individuals alike including quarantine orders, travel restrictions, occupancy limitations, and restrictions on movement. This is the not the first pandemic, nor the first national crisis, faced by the United States. There have been several lawsuits filed challenging the constitutionality of the COVID-19 orders, including challenges based on the right to travel, the right to associate, the right to free exercise of religion, and other federal and state constitutional provisions. This panel of litigation practitioners will provide the constitutional and statutory context for governmental emergency powers, then will identify how those principles inform an analysis of the Covid-19 orders. The panel will discuss the lawsuits challenging the orders and the current jurisprudence.

Faculty:

• Ali Dehghan, James G. Dibbini & Associates, P.C (New York, NY)
• Anthony F. DellaPelle, McKirdy, Riskin, Olson & DellaPelle, P.C (Morris Plains, NJ)
• Robert H, Thomas, Damon Key Leong Kupchak Hastert (Honolulu, HI)
• Nicholas Shapiro, Phillips & Angley (Boston, MA) [Moderator

Sign up, join us, and add to the conversation!

Hawaii AG: For The Hearing At Which I Will Argue That Indoor In-Person Gatherings Are Dangerous, Let's Gather Indoors In-Person!

Here's the latest in the remaining federal court challenge to Hawaii Governor David Ige's coronavirus-related series of orders which, among other things, suspended a wide range of statutes, ordered activities deemed “nonessential” to stop or be limited, imposed a two-week self-quarantine on interisland, mainland, and international travelers, effectively shut down one of the main engines of the Hawaii economy—tourism, and compelled most residents to remain at home as much as possible and avoid large indoor gatherings.

The plaintiffs sought a temporary restraining order, and the court scheduled a hearing for Thursday, July 2, 2020. Apparently, the hearing was originally planned to be "virtual," with the lawyers and parties participating by Zoom, while the public could listen in (audio only) via telephone.

But then yesterday, the Hawaii Attorney General asked the court for "an adjustment to the format" of the hearing, to allow the AG to appear in person. The plaintiffs' counsel responded responded that if the court granted the AG's request, that she too would attend in person. Since she is not in Hawaii, this would necessitate a waiver -- from the Governor -- of the usual 14-day inbound quarantine, one of the very restrictions that the plaintiffs are challenging. 

The court agreed to cancel the virtual hearing and consider arguments in-person:

EO: Based on the Attorney General's request to convert the 7/2/20 Zoom hearing to an in-person proceeding for Plaintiffs' Application for Temporary Restraining Order and for Order to Show Cause Why Preliminary Injunction Should Not Issue, and there being no opposition by Plaintiffs, the Court shall conduct an in-person hearing. The parties are notified of the following:

(1) They shall inform the Court, by no later than noon on Monday 6/29/20, of the number of parties and counsel who will attend the hearing, and whether any parties or Mark P. Meuser seek to attend telephonically. Those attending telephonically shall provide the Courtroom Manager with their contact information.

(2) Save for the parties and Mr. Meuser (should they attend telephonically), the hearing will be exclusively in person. That is, it will not be broadcast or accessible to the public by remote means.

(3) Everyone entering the courthouse is subject to the mitigation measures set forth in the June 1, 2020 Temporary General Order Regarding District of Hawaii Response to COVID-19 Emergency, which includes wearing "a face mask covering the nose and mouth while in all public areas of the courthouse." Counsel may bring face shields if they wish, for the purpose of arguments; otherwise they are expected to wear masks during arguments.

(JUDGE JILL A. OTAKE)(otake1) (Entered: 06/26/2020)

So here's the bottom lines:

• The AG, who is arguing in favor of government limits on in-person indoor gatherings, actually asked the court to conduct an in-person indoor gathering. So in a case where the issue is whether public gatherings are a source of disease transmission, the lawyer arguing in favor of the restriction asked the court to shift from a 100% safe means, to a public gathering. Seems that could undercut the argument, no?
• The attorney arguing the 14-day quarantine is unconstitutional actually must obtain a waiver of the allegedly unconstitutional rule in order to appear and argue that the quarantine rule is unconstitutional.
• The public and members of the press, who would have been able to at least listen to the arguments next week by phone and remain sheltered-in-place, will now have to put themselves at (supposed) risk by coming down to the courthouse indoor gathering.
• The arguing advocates either have to mask up while presenting arguments or wear a face shield. Never done that, and we bet it will look and feel odd.

Strange times, indeed.

Video: "Lockdown, Testing and Tracking: Are They Really Legal?" (A Look At Hawaii's COVID Response)

Here's the recording of our webinar from earlier this week, in which we and fellow Honolulu lawyer Jeff Portnoy did our best to address some of the many questions that have arisen during the coronavirus shut-down.

Jeffrey Portnoy and Robert Thomas talked about what we can expect as the state and counties slowly lift their seemingly endless stay-at-home orders, which have discriminated between “essential” and “nonessential” workers, mandated “social distancing” and mask-wearing, and imposed 14-day quarantines on arriving airport passengers, both tourists and residents returning home.

During the hourlong event, Portnoy and Thomas considered whether businesses destroyed or devastated by the lockdowns have any legal recourse, and whether proposals being suggested to revive Hawaii’s devastated tourism industry, such as replacing the 14-day quarantines with various forms of testing and tracking, might violate constitutional privacy protections.

We've written up two articles with our thoughts on these issues:

The first is Hawaii-specific: "Hoist the Yellow Flag and Spam® Up: The Separation of Powers Limitation on Hawaii’s Emergency Authority," 43 U. Haw. L. Rev. ___ (forthcoming 2020).

The second is about the takings issues emergency orders present: Evaluating Emergency Takings: Flattening The Economic Curve.

One Left: Lawsuit Challenging Hawaii Gov's COVID Orders Voluntarily Dismissed ... And Other Developments

Important developments in the two lawsuits that are on file challenging Hawaii Governor David Ige's emergency proclamation and myriad supplemental proclamations.

First, we were all set to post the briefs and summarize the arguments for tomorrow's scheduled U.S. District Court hearing on a motion for preliminary injunction in the first case when earlier today, the plaintiffs in that case voluntarily dismissed the lawsuit without prejudice. As a result, the court vacated tomorrow's scheduled hearing and ordered the case closed:

EO: In light of Plaintiffs' Notice of Dismissal, Dkt. No. 26, the Court vacates the briefing requirements set forth in Dkt. No. 24 with respect to Defendants' Motion to Consolidate (Dkt. No. 22), and vacates the June 26, 2020 hearing on Plaintiffs' Motion for Preliminary Injunction (Dkt. No. 15). All pending motions are deemed withdrawn and/or moot, and the Clerk is directed to close this case. (JUDGE DERRICK K. WATSON)(tyk) (Entered: 06/25/2020)

Hearing off, no excitement tomorrow. Why would they dismiss the case before Judge Watson? We don't know, but perhaps the Governor's motion to consolidate the two lawsuits might have had something to do with it. A crossover of issues looked to us like maybe the plaintiffs figured that their concerns would be addressed in the second case (Judge Otake)

Second, in the other (Judge Otake) case, the Judge rejected the U.S. DOJ's Statement of Interest supporting the plaintiffs, concluding it amounted to "an attempt by the United States to amend the Complaint in a case where it is not a plaintiff."

EO: After reviewing the United States' and the parties' responses, ECF Nos. 28-30, the Court will disregard the United States' Statement of Interest in deciding Plaintiffs' Application for Temporary Restraining Order and for Order to Show Cause Why Preliminary Injunction Should not Issue. The Statement of Interest amounts to an attempt by the United States to amend the Complaint in a case where it is not a plaintiff, as evidenced by its suggestion that the Court could compel Plaintiffs to amend the Complaint so it aligns with the Statement of Interest. Neither the United States nor Plaintiffs cite any instance where a court considered a statement of interest requesting relief on a claim that the plaintiff(s) did not present in the complaint and/or as a basis for emergency relief. Plaintiffs argue that the Statement of Interest appropriately discusses the Privileges and Immunities Clause as part of the right to travel, but the cases they rely on are inapposite. United States ex rel. Johnson v. Golden Gate Nat'l Senior Care, LLC, No. 08-CV-1194 (DWF/HB), 2016 WL 11031222, at *1 (D. Minn. June 1, 2016), addressed the government's Motion for Leave to File Statement of Interest in Response to Defendants' Memorandum in Support of Motion for Summary Judgment and "recognize[d] the unique status of the United States in False Claim Act ("FCA") actions... [in which] [c]ourts are particularly concerned with the peculiar posture of the United States in declined FCA cases." Id. (citations omitted); see also id. (quoting United States ex rel. McCready v. Columbia/HCA Healthcare Corp., 251 F. Supp. 2d 114, 11920 (D.D.C. 2003) ("noting that the 'United States did not act improperly in submitting a statement carefully crafted to avoid involvement in the factual issues of this declined case and designed solely to protect its interests' where the purely legal statement of interest assisted the court 'in acting in the broader context of FCA jurisprudence.'")). Plaintiffs additionally rely on the concurrence in Republic of Austria v. Altmann, 541 U.S. 677 (2004), for the proposition that a statement of interest may include other grounds for dismissal, including "superior alternative and exclusive remedies." Id. at 714 (Breyer, J. & Souter, J., concurring). But offering additional bases for dismissal is incomparable to seeking an extraordinary remedy, see Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 24 (2008), on grounds not articulated by Plaintiffs.

When the United States has filed statements of interest in COVID-related cases, none sought to expand the scope of relief requested by the plaintiff(s), and the Court is unaware of any (nor has the United States pointed to any) that are analogous to the circumstances here.

The United States contends that the Local Rules set briefing limitations for parties. Non-parties, like the United States, are subject to the same rules as all other litigants who appear before the Court. If the United States continues to maintain an interest in this case, it will be expected to abide by all applicable rules, including the Local Rules.

(JUDGE JILL A. OTAKE)(otake1) (Entered: 06/24/2020)

The court also ordered the plaintiffs to respond to yesterday's development (the Governor announced the "trans-Pacific testing program" whereby inbound travelers may avoid a mandatorny two-week self-quarantine if they provide proof of testing for COVID). Kind of like a "virus pre-check program" as we see it. Provide proof, skip the quarantine. Or, skip the testing and shelter in place for two weeks upon arrival.

As far as we know, next week's hearing is still on the calendar. We shall keep following as the developments happen.

Our thoughts on the Hawaii-law claims in these lawsuits: "Hoist the Yellow Flag and Spam® Up: The Separation of Powers Limitation on Hawaii’s Emergency Authority," 43 U. Haw. L. Rev. ___ (forthcoming 2020).

Our thoughts on the takings issues emergency orders present: Evaluating Emergency Takings: Flattening The Economic Curve.

Federal Court To USA In Hawaii Quarantine Challenge: Explain Why You Filed P&I Right To Travel Amicus, When Plaintiffs Didn't Raise P&I Right To Travel In The Complaint

Yesterday, in the second of two cases that we've been following (both of which are in the U.S. District Court for the District of Hawaii, and are challenging the Hawaii Governor's coronavirus-related shutdown orders for a variety of reasons, see For Our Rights v. Ige (assigned to Judge Watson) and Carmichael v. Ige (assigned to Judge Otake)), the United States (via the U.S. Attorney and the Department of Justice) filed a Statement of Interest, arguing the shut-down orders violate the Privileges and Immunities Clause of the Constitution (article IV, section 2). You know, that's the "and" clause, that doesn't do much (but it does prohibit discrimination against out-of-state residents).

The Statement asserts that the Governor's two-week self-quarantine requirement, which is imposed on all inbound travelers regardless of residency is "effective[ly] discriminati[on]" against nonresidents because yes, both tourists, nonresidents, and returning residents must shut themselves in after arrival, but there are some limitations only applied to nonresidents, who are prohibited from working, renting a car, or using ridesharing services, all things that residents are not barred from doing.

The Constitution does not permit the effective discrimination challenged in this case. Although Hawaii may adopt reasonable measures to protect its residents from the COVID-19 pandemic, it cannot impose measures that “in practical operation” discriminate against out-of-state visitors, unless the measures are substantially related to ensuring public safety. Chalker v. Birmingham & Nw. R.R. Co., 249 U.S. 522, 527 (1919); see Hillside Dairy Inc. v. Lyons, 539 U.S. 59, 67 (2003). Hawaii’s sweeping self-quarantine mandate appears to be insufficiently tailored to ensuring public safety. As such, it cannot be enforced under Article IV’s Privileges and Immunities Clause.

Statement at 2. See also "Department of Justice sides with plaintiffs fighting Ige's 14-day travel quarantine" from the Star-Advertiser.

And in an interesting twist, Judge Otake shortly thereafter issued an order, asking the feds to explain why they filed this Statement which argues an issue that the plaintiffs themselves didn't raise. The complaint raised a "right to travel" claim, but couched it in terms of a Fifth Amendment liberty interest, and did not make an article IV, section 2 P&I right to travel claim:

EO: On 6/23/20, the United States filed a Statement of Interest pursuant to 28 U.S.C. § 517, asking the Court to "hold that the Hawaii Governor's sweeping 14-day self-quarantine mandate, which effectively discriminates against out-of-state residents, likely violates Article IV's Privileges and Immunities Clause." ECF No. 26 at 17. Section 517 authorizes the United States to attend to its interests "in a suit pending in a court of the United States," 28 U.S.C. § 517, and "submit a statement... expressing its views on relevant issues in which it has an interest." Wortman v. All Nippon Airways, 854 F.3d 606, 617 (9th Cir. 2017). The Ninth Circuit has compared a § 517 statement to an amicus brief. See M.R. v. Dreyfus, 697 F.3d 706, 735 (9th Cir. 2012). Notably, non-parties must seek leave to file amicus briefs and courts do not ordinarily consider arguments raised only by amici. See, e.g., Engine Mfrs. Ass'n v. S. Coast Air Quality Mgmt. Dist., 498 F.3d 1031, 1043 (9th Cir. 2007) ("Generally, we do not consider on appeal an issue raised only by an amicus." (internal quotations omitted) (citations omitted)); California v. U.S. Dep't of the Interior, 381 F. Supp. 3d 1153, 1164 (N.D. Cal. 2019) ("The scope of amicus briefs, however, should be limited to the issues raised by the parties." (citation omitted)). In addition, motions are briefed in accordance with Local Rule 7.2, which prohibits further or supplemental briefing without leave of court. With these principles in mind, the United States is ordered to: (1) explain why it should be allowed to submit briefing without leave of court in this expedited matter; (2) identify whether it has an interest in this litigation beyond a general desire to protect its citizens' constitutional rights and, if not, whether the law supports its involvement under such circumstances; and (3) articulate why its involvement is proper when it seeks to expand the scope of this litigation. Indeed, Plaintiffs have not presented a Privileges and Immunities Clause argument in either the Complaint or the Motion for Temporary Restraining Order. The United States' response, not to exceed three (3) pages, is due by 4:00 p.m. on 6/24/20. Plaintiffs and Defendant may submit responses regarding the propriety of the United States' Statement of Interest, subject to the same deadline and page limitation.

(JUDGE JILL A. OTAKE)(otake1) (Entered: 06/23/2020)

However, the first complaint did raise expressly a P&I right to travel claim, and even though the cases are separate, Governor Ige also yesterday asked the court to consolidate the two cases and Judge Watson issued this order:

EO: On June 23, 2020, Defendants filed (1) a motion to consolidate cases 20-cv-00268-DKW and 20-cv-00273-JAO, and (2) an ex parte motion to shorten time for hearing on the motion to consolidate. Dkt. Nos. 22-23. Pursuant to Local Rule 7.1(c), the Court will decide the motion to consolidate without a hearing. Therefore, the ex parte motion to shorten time, Dkt. No. 23, is DENIED AS MOOT. Any opposition to the motion to consolidate must be filed on or before NOON on June 25, 2020. No reply will be permitted. In addition to the parties in this case, the Clerk is instructed to serve this Order on the plaintiffs in Case No. 20-cv-00273-JAO. IT IS SO ORDERED. (JUDGE DERRICK K. WATSON)(tyk) (Entered: 06/23/2020).

The hearing on For Our Rights' motion for preliminary injunction is set for the day after tomorrow (Friday, June 26, at 10:30 am Hawaii Time), and the TRO hearing in Carmichael is scheduled for next week, (Thursday, July 2, at 11am Hawaii Time).

Stay tuned, we'll keep following and post any updates of consequence.

Our thoughts on the Hawaii-law claims in these lawsuits: "Hoist the Yellow Flag and Spam® Up: The Separation of Powers Limitation on Hawaii’s Emergency Authority," 43 U. Haw. L. Rev. ___ (forthcoming 2020).

Our thoughts on the takings issues emergency orders present: Evaluating Emergency Takings: Flattening The Economic Curve.

USA Statement of Interest, Carmichael v. Ige (D. Haw. June 23, 2020)

New Article: "Hoist the Yellow Flag and Spam® Up: The Separation of Powers Limitation on Hawaii’s Emergency Authority" (U. Haw. L. Rev. forthcoming 2020)

The University of Hawaii Law Review has graciously agreed to publish an article we've been working on, "Hoist the Yellow Flag and Spam® Up: The Separation of Powers Limitation on Hawaii’s Emergency Authority," 43 U. Haw. L. Rev. ___ (forthcoming 2020) (download from SSRN at the link).

The article takes a deeper dive into Hawaii's emergency laws, the judicial history of the Hawaii court on public health emergencies (we unfortunately have a lot of such history), some modern Hawaii Supreme Court jurisprudence, and Hawaii's love of Spam® (the lunch meat, not the junk email). It also takes a hard look at the most important limitation on government power in an emergency, the statutory requirement that any emergency proclamation automatically terminates no later than sixty days after it is issued.

(Tomorrow, we'll be joining Honolulu lawyer Jeff Portnoy, and Dr. Keli‘i Akina for a free, open-to-the-public program sponsored by the Grassroot Institute of Hawaii, "Lockdowns, testing and tracking: Are they all really legal?").

Here's the Introduction to the article:

In its various iterations—Kingdom, Republic, Territory, and State—Hawaii’s government has a long and storied experience responding to public health emergencies. For example, over the past two centuries, the government has imposed strict quarantine regulations and required sequestration of incoming travelers to guard against smallpox; transported people afflicted with Hansen’s disease to isolation in Kalaupapa, Molokai; and burned down large portions of downtown Honolulu in response to an outbreak of bubonic plague. Hawaii’s government has also dealt with its share of emergencies unrelated to public health: it imposed years of martial law after the attack on Pearl Harbor, and has responded to tsunamis, hurricanes, volcanic eruptions, and even inbound nuclear missiles (fortunately a false alarm). As a result of these experiences, the Hawaii Supreme Court has a long history of considering legal questions related to the power of government to plan for and respond to emergencies, which recognized government’s substantial power, with a few inherent limitations. But until 2014, when the Hawaii legislature adopted a comprehensive structural overhaul, Hawaii’s emergency response statutes and organization were a patchwork of scattered provisions that did not conform to modern emergency management and response practices. The statutory update continued the longstanding delegation of an overwhelming amount of authority to the governor (and mayors, in the case of local events) to respond to emergencies.

The law’s first major test has been a very dramatic one: the COVID-19 worldwide pandemic erupted in full in March 2020, and Hawaii Governor David Ige exercised his statutory authority to issue a declaration of emergency by proclamation on March 4, 2020 (and nine supplemental proclamations), which collectively suspended a wide range of statutes, ordered activities deemed “nonessential” to stop or be limited, imposed a two-week self-quarantine on interisland, mainland, and international travelers, effectively shut down one of the main engines of the Hawaii economy—tourism, and compelled most residents to remain at home as much as possible. The March 4, 2020 proclamation declared that the emergency would terminate on April 29, 2020, but as the public health crisis appeared to grow and continue, subsequent supplemental proclamations purported to extend the termination date, at latest count to July 31, 2020.

Even though legal challenges to similar emergency restrictions have developed in other jurisdictions, Hawaii’s courts have thus far not been presented with a multitude of objections to the governor’s exercise of these emergency powers. Perhaps because it is mostly predictable how a court would analyze a challenge to emergency powers under the U.S. Constitution. The leading U.S. Supreme Court case about the power of government to protect the public health, Jacobson v. Massachusetts, upheld the state’s vaccine requirement, concluding that a person’s liberty could be limited by reasonable regulations designed to protect “the safety of the public.” The Court based its reasoning on public “self-defense,” noting that “a community has the right to protect itself against an epidemic of disease which threatens the safety of its members.” The only limitation is that the power cannot be exercised in “an arbitrary, unreasonable manner.” Jacobson reaffirmed the very low floor for most constitutional challenges to assertions of police power generally, and emergency police power specifically.

In this article I examine whether Hawaii law might compel a different analysis. Most state emergency power statutes, like Hawaii’s, contain internal limitations on delegated emergency power. I argue that Hawaii’s statute contains a single major check on the governor’s delegated authority: the “automatic termination” provision, under which an emergency proclamation terminates by law the sixtieth days after it was issued, or when the governor or mayor issues a “separate” proclamation, whichever comes first. This provision is an essential limitation on the power of the governor, with the only real question being whether that limitation will be enforced by the courts. Despite the statute’s clear limitation on power, I conclude that the circumstances in which a court would sustain a challenge to the governor’s power as a matter of Hawaii law are very limited, and that the primary remedy which a court will likely recognize is a political one. It should not be so, however. Under existing precedents, there are at least two ways in which a court might analyze this limitation. This article examines the prominent narrative threads that have emerged from Hawaii’s judicial history of adjudicating claims arising out of public health crises, quarantines, and emergencies, as a way of comparing the directions a court might take.

Which brings me to the title of this article, and its reference to Spam^® (the canned luncheon meat, not annoying unsolicited email). When emergencies loom, Hawaii residents are known to stock up on essentials like toilet paper, rice, and Spam^®. If the courts are reluctant to enforce the sole limitation on executive power in the statute, then all that is left is to stock up on Spam^®, keep vigilant, and hold political officials accountable. This means identifying the shortcomings in the present law and clarifying the statute at the earliest possible opportunity. Which is what the article ultimately proposes. The alternative is rule by indefinite executive decree, as the COVID-19 emergency starkly illustrates, a result that Hawaii’s emergency response statute plainly rejects.

In section II, I provide some background about the inherently limited power of the government to undertake extreme measures without triggering judicial intervention. Section III details Hawaii’s statutory delegation of emergency powers to the governor and county mayors, while section IV analyzes the sole major check on that power, the automatic termination of emergency declarations which ends a declaration when the governor or mayor issues a “separate” declaration, or sixty days has passed. Section V examines the two main narrative threads that emerged from the Hawaii Supreme Court’s decisions about public health emergencies and other exercises of the police power. I conclude with a few observations and suggestions. My purpose here is not to assert what the government’s response to particular emergencies should be—or whether the response to the ongoing COVID-19 emergency is correct—but only to highlight and identify areas in which the legislative and judicial analysis could be more meaningful and transparent, as a way of suggesting how Hawaii’s law can be improved for the next emergency.

(footnotes omitted)

New (Hawaii) Complaint: Coronavirus Orders Violate Right To Travel, Equal Protection, Due Process (And More)

Update: our thoughts on the Hawaii-law claims in this article, "Hoist the Yellow Flag and Spam® Up: The Separation of Powers Limitation on Hawaii’s Emergency Authority," 43 U. Haw. L. Rev. ___ (forthcoming 2020).

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

Here's the second complaint filed in the U.S. District Court for the District of Hawaii challenging the governor's coronnavirus shut down orders. Back in March, the governor issued a proclamation declaring an emergency, and since then has issued nine "supplemental" declarations, re-upping the end date which is now the end of July). Here's the first complaint (in that case, the plaintiffs dropped their request for a TRO, and the court has scheduled a hearing on a motion for preliminary injunction for June 26, 2020).

There's a Fifth Amendment claim (sorry, not a takings claim, but a right to travel), as well as a host of federal constitutional claims (due process, equal protection, section 1983). While there's no direct claim that the extensions violate the "automatic termination" provision in Hawaii's emergency response statute, that argument is a key element of the due process claim. Hawaii law automatically terminates a declaration of emergency when the governor issues a "separate" declaration, or on the sixtieth day, whichever comes first:

A state of emergency and a local state of emergency shall terminate automatically sixty days after the issuance of a proclamation of a state of emergency or local state of emergency, respectively, or by a separate proclamation of the governor or mayor, whichever occurs first.

Haw. Rev. Stat. 127A-14(d) (2019). The complaint alleges that continuing past the sixtieth day violates due process:

136. Governor Ige violated these Hawaii statutes by continuing the emergency orders beyond the 59th day (May 3, 2020), as well as beyond the Safe Date; as well as by denying Plaintiffs all the Constitutional protections, including but not limited to, due process and equal protection (in addition to the other claims made in this Complaint).

137. After the expiration on May 3, 2020 of the emergency orders, and after the required termination of the emergency orders on the Safe Date, the Hawaii Governor’s emergency orders denied due process by usurping the power of legislative and administrative processes with respect to further law-making exercises without providing any process at all.

Complaint at 25-26.

Want to find out more about these claims, their chances for success under Hawaii law, and how Hawaii's courts historically have responded to claims arising out of public health emergencies? Then join us tomorrow, Wednesday, June 16, 2020 at 5:30pm Hawaii Time, when we'll be speaking about this question in a program for the King Kamehameha V Judiciary History Center (open to the public, more details here). Our thoughts on the takings aspects of the shutdowns orders: Evaluating Emergency Takings: Flattening The Economic Curve.

Complaint for Declaratory and Injunctive Relief, Carmichael v. Ige, No. 1:20-cv-00273 (D. Haw. June 15, 2020)

Fifth Circuit: Texas Groundwater Rights Are Takings Clause "Property"

There's a lot of opinion in the U.S. Court's of Appeals' opinion in Stratta v. Roe, No. 18-50994 (May 29, 2020). Yes, the court reversed the district court's dismissal of a takings claim. But most of the opinion is devoted to the question of whether a Texas water conservation board -- an agency whose mission is to regulate surface water uses -- may take advantage of the State of Texas's 11th Amendment immunity (no, held the court). We recommend that part of the opinion to you, federal courts junkies.

But there's a couple of takings gems in there also. The case involved a challenge by a property owner who was (allegedly) treated by the water conservation board less generously than an (allegedly) similarly-situated municipality, resulting in the owner's inability to make use of its groundwater rights. (In short, a Pennsylvania Coal claim, where instead of coal being required to be left in the ground, it was water.) The district court dismissed for failure to state a claim and for lack of jurisdiction (the 11th Amendment issue).

After concluding that the owner's claims against the water conservation board are not barred by the State of Texas's federal court immunity, the court made short work of the district court's Williamson County dismissal. The Fifth Circuit rejected the conclusion that the takings claim was not ripe because the owner had not sought compensation via a state law inverse claim in a Texas court. Knick, and all that. Slip op. at 19-20. The Fifth Circuit also concluded that the board had made a final determination.

The court also reversed the district court's Burford abstention conclusion. For those of you who don't offhand recall the doctrine, Burford abstention is a comity doctrine, where the federal court declines to exercise jurisdiction because there are "difficult questions of state law bearing on policy problems of substantial public import whose importance transcends the result in the case at bar." Slip op. at 21. That's a mouthful of mostly mushy concepts, but in the end, the Fifth Circuit concluded that the issues in the case (Texas water rights, federal constitutional takings and equal protection rights) mean no abstention:

The BVGCD is no Texas Railroad Commission, and the federal court should not have abstained from the constitutional issues raised by Fazzino. The claims do not delve into unduly complex issues of state law, the state concerns that are implicated are not overriding in light of the remedy sought, no state law would be usurped by a federal decision, and statewide processes or regulatory regimes would not be disrupted. The district court abused its discretion in deciding to abstain under Burford.

Slip op. at 24.

Having disposed of the procedural roadblocks, the court made short work of the failure to state a claim dismissal. The district court concluded that the plaintiff had not plausibly pleaded that it owned property because Texas law is "unsettled." The Fifth Circuit first noted that the water conservation district's argument on this issue was "a bright red herring." Slip op. at 24-25. The court held held that groundwater rights are "property" under established Texas law (Edwards Aquifer Auth. v. Day, 269 S.W.3d 814 (Tex. 2012)):

Fortunately, Texas law is not unsettled as to the landowner’s basic rights. The Texas Supreme Court plainly held in Day that a landowner’s property rights include the ownership of groundwater in place beneath his acreage, and such ownership right is subject to takings claims. The court stated at the outset that it would decide “in this case whether land ownership includes an interest in groundwater in place that cannot be taken for public use without adequate compensation guaranteed [by the Texas Constitution]. We hold that it does."

What is “unsettled” about Day’s interpretation of the common law and statutory rights of groundwater owners? Indeed, it is BVGCD, not Fazzino, that would “unsettle” Texas law by asking the federal court essentially to reconsider Day and dramatically reduce the constitutional rights of landowners to the groundwater in place.

Slip op. at 25-26 (quoting Day, 369 S.W.3d at 817).

Although it may be "challenging" to "assess, as the state supreme court did in Day, whether the groundwater scheme effectuated by BVGCS's Rules promulgated in December 2004 has resulted in a taking of Faxxino's interest," slip op. at 27, "[t]hat this task my be challenging is not the same as concluding it is infeasible."

In short, it might be hard, but not legally impossible: go litigate your takings claim, property owner.

Stratta v. Roe, No. 18-50994 (5th Cir. May 29, 2020)

Two More Complaints Challenging Shut-Down Orders As Takings (Md, Nev)

"The Cornfield" at Antietam

Two more complaints that challenge state-ordered shut-down orders as takings. The first from Maryland, the second from across the country in Nevada. These join an ever-growing list of such lawsuits. See here, here, here, here and here, for example.

We set out what we think about how these type of claims should be analyzed in this article ("Evaluating Emergency Takings: Flattening The Economic Curve"). And, we'll be moderating a Federalist Society teleforum (open to the public!) next Friday on "COVID-19 & Property Rights: Do Government Actions in Response to the Coronavirus Pandemic Create Compensable Takings?" if you want to get in on the issue.

Of course, we shall keep following along. 

(What's the deal with the photos you ask? Nothing, except the first is from the Antietam Battlefield on our last visit (the Maryland complaint is prosecuted by the Antietam Battlefield KOA), and the second is from a road trip across Nevada (the venue of the second complaint). That's it.)

Along Route 50, "The Loneliest Road"

Complaint, Antietam Battlefield KOA v. Hogan, No. ___ (M. Md. May 2, 2020) 

Civil Rights Class Action Complaint, Capelli Milano, LLC v. Sisolak, No. 2:20-cv-00827 (D. Nev. May 7, 2020) 

Record Attendance (But There's Still Time For You Last-Minute Filers) At Nashville ALI-CLE Eminent Domain Conference

Picture 1: how normal people see pie.

Picture 2: how you see pie if you're coming to the
ALI-CLE Eminent Domain Conference. 

If you get the above, you probably are already set to join us next week for the 37th Annual ALI-CLE Eminent Domain and Land Valuation Litigation Conference in Nashville. (If not, shame on you!).

And having just reviewed the latest registration list, I can report that we have an all-time record attendance.  But there's still room for those of you still not committed. Register here. Don't miss out. There will be pie. 

What's At 712 4th Street, S.W., Washington DC? Your Invite To The 2020 ALI-CLE Eminent Domain Conference (Jan 23-25, Nashville)

Here's The Agenda And Faculty For The 2020 ALI-CLE Eminent Domain And Land Valuation Litigation Conference, Nashville, Jan 23-25, 2020

You overwhelmingly asked for Nashville, and we're bringing it to you!

Get ready, and hold your place now: here's the list of programs and speakers for the 36th Annual ALI-CLE Eminent Domain and Land Valuation Litigation Conference, to be held at the Downtown Nashville Hilton, January 23,- 25, 2020. Two-and-a-half days with top-notch national faculty (lawyers from both sides, judges, legal scholars, appraisers, relocation experts, and others).  

Early registration and group rates are available now. 

Here are just some of the programs:

• Featured Presentation: Property Rights as Civil Rights: Seeking Justice Though the Fourth and Fifth Amendments. Hon. Jonathan Apgar, Jamila Johnson, Alan Ackerman. Moderator: Leslie Fields.
• Making Sense of the New Rules After Knick v. Township of Scott: Where Do I Go, What Do I Do? David Breemer, Smitha Chintamaneni, Professor Bethany Berger. Moderator: Professor Steven Eagle.
• When A River Runs Thought It: Water Rights and Takings. Nancie Marzulla, Hertha Lund, and Charles McFarland. 
• Passive Takings by Government Inaction. Professor Christopher Serkin.
• Show, Don't Tell: The Dos and Don'ts of Demonstrative Evidence. John Murphy, Jeffrey Hamill.
• Is Close Enough Good Enough? Establishing the Date of Valuation in Direct and Inverse Cases. Neil Olson, Bill Ryan.
• Creative Approaches to Solving Difficult Appraisal Problems, Edward Burg, Bob Grace, MAI, Michael Rikon. Moderator: Joseph Waldo. 
• All You Need is Love: New Frontiers in Alternative Dispute Resolution in Eminent Domain. Cortney Young, Dwight Merriam.
• Road Warriors: Building and Trying an Eminent Domain Case From Your Laptop. Paul Henry, Jody McSpadden.
• Special Benefits: The Givings Clause? Heather Cunningham, Randy Smith.
• How To Try and Settle Pipeline Cases. Thomas Peebles, Melissa Glassman.
• Going Where No Court Has Gone Before: The Tension Between the Courts and Appraisal Methodology. Kevin Walsh, Kannon Conway. 
• Responding to Project Changes: Valuing a Taking When Government Action Changes or is Ongoing. Meghan Largent, W. Andrew Gowder. 
• Responding to the Abuse of Motions in Limine. Anthony Della Pelle, Williams James (invited)

There's also an Ethics program. For that, we are doing something a little different this year, with a special don't-miss presentation, "Surviving the Daily Fistfight: Finding Your Resilience When Every Day is a Battle" with Clint Schumacher, Christian Torgrimson, and Michael Ryan. 

And for those new to the field, or old hands who would like a refresher course, there's the "101" track on Thursday, going through an eminent domain case from A to Z. 

And this isn't the complete list, and there's more on relocation, regulatory takings from both sides of the case, effective strategies to determine unity of lands, fixtures, national updates for eminent domain and regulatory takings, and the "open mike" National Forum (where practitioners from around the nation share their issues and cases).

Look for the complete brochure shortly on the Conference web page on the ALI-CLE site.

And of course, there's Nashville. We're right around the corner from all that the town has to offer. Music City, USA. Hot chicken. The Grand Ole Opry. Country Music Hall of Fame. The Hermitage. 

So make your flight and hotel reservations now. Don't miss out. The attendance at the last several conferences has been record-setting, and the conference block at the hotel has sold out.

Join us - old friends and new colleagues! 

Law 608: Eminent Domain And Property Rights - Season 2

We're about to get underway with the fall semester at William and Mary Law School, where we're again teaching an upper-division course, Eminent Domain and Property Rights. 

We've more than doubled the size of last year's enrollment, so it looks like the word is getting out. We cover not only eminent domain and just compensation, but takings (yes, we have a lot of new materials to cover there), civil forfeiture, a small bit of crossover with land use, local government, and related, property rights as civil rights, how property law is discussed in the public sphere, due process, and how to lawyer up these cases. And in early October, the opportunity to have some of the nation's best property law scholars "guest lecture" during the Brigham-Kanner Property Rights Conference. Here's the official description:

Property rights and the sovereign's power of eminent domain have been essential components of Anglo-American law for centuries, and the protection of the right of private property ownership is one of the foundations on which the U.S. Constitution, the Bill of Rights, and the post-Civil War Amendments are built. This course will introduce students to the practical lawyering and analysis necessary for eminent domain practice, including the nuts and bolts of takings practice as well as the study of recent (and ongoing) U.S. Supreme Court cases. In addition, this course will focus on the history, policy, and, to some extent, the politics of property rights, eminent domain law, and related legal topics. We will examine how the right of private property was developed in common and constitutional law, the relationship of property rights to other civil rights and the sovereign's power to take land, the role of federal and state courts in protection of property rights, how private property squares with environmental law, and the proper 'place' of property rights in the modern administrative state. Course materials will be cases and selected portions of books and journal articles, and other materials which will be made available. Grading will be based on a take home paper and class participation.

Students: it's not too late to join (add/drop will commence soon after the first day of classes). We can't promise that you will gain instant knowledge of the subjects, but can guarantee a rewarding semester taking a deeper dive, coming out of it in December with a greater appreciation of this area of law, and a working understanding of what it takes to actually practice.   

Ninth Circuit: Local Governments Cannot Enforce 24/7 Ban On Sleeping Or Camping On The Sidewalk If Nowhere Else To Go

As we've noted before, the growing homeless and "urban camping" situation seems to be getting worse, and in our perception is reaching the point of being intractable. A trip down the sidewalk of any major city  -- if you dare, particularly in the west -- will confirm. And there are no easy answers, except maybe "get used to living with it." Nor is there a consensus whether the law can do anything to remedy the problem.  

The Ninth Circuit's latest foray into this area, this order denying rehearing and rehearing en banc of a panel opinion in a case out of Idaho, confirms. The case is a challenge to Boise's ordinance under the Eighth Amendment's prohibition on cruel and unusual punishments. The panel concluded that the city could not prosecute people for sleeping outside on public property because they have nowhere else to go. Until the city provides them a bed, it can't try to give them a bed (in a jail).

The order is followed by an amended panel opinion, a dissent from the denial of rehearing, an opinion concurring in the denial (arguing that such "dissentals" are disfavored), and a second dissent which focuses on the Eighth Amendment. And somewhat heated words (the expected Red Lily quote, see page 38) and pictures (as above, page 25) from the usually-staid black-robed law lords. 

So what's the law in the Ninth Circuit now, or until the Supreme Court weighs in? Who knows.

We'd take a deeper dive into the opinions to try and get some sense of what this means for Honolulu's "sit/lie" ordinance, which says no to sidewalk camping during certain hours of the day. But this is a busy time on our work schedule in the real world, and we have business to attend to. 

So here's the bottom line in the case. A panel of the Ninth Circuit has ruled thusly:

We consider whether the Eighth Amendment’s prohibition on cruel and unusual punishment bars a city from prosecuting people criminally for sleeping outside on public property when those people have no home or other shelter to go to. We conclude that it does.

Slip op. at 38. Because sleeping is a basic human need, and you have to do it somewhere. If a homeless person has nowhere else to sleep, the city can't prosecute them for doing it on the street. Jones v. City of Los Angeles, 444 F.3d 1118 (9th Cir. 2006) resurrected.

One of the challenged Boise ordinances prohibited sleeping on the streets "at any time." The other was silent about the time, but could be read to prohibit it always. Does this mean ordinances which criminalize sleeping on the sidewalk only during certain parts of the day -- such as Honolulu's -- are not subject to the ruling? It's an argument, for sure. 

And what does the panel's rationale mean for other basic human needs like taking a dump in the street? One of the dissents focused on that: "Moreover, the panel’s reasoning will soon prevent local governments from enforcing a host of other public health and safety laws, such as those prohibiting public defecation and urination." Slip op. at 10 (M. Smith, J., dissenting).

And with two separate dissents from the denial of rehearing en banc (and that concurring opinion decrying such "dissentals"), this case may not be over, and seems teed up for a cert petition. 

Here's more on the decision:

• Court pours cold dose of reality on Seattle’s hot homelessness debate
• The Far-Reach Of The 9th Circuit's Decision To Stand Firm On Landmark Homeless Case

Here's more on what we've posted with our own thoughts on the subject:

• Professor Ely, You Magnificent Bastard, I Read Your Book!
• More On The Ninth Circuit's Ruling That Homeless Have Property Rights, Too
• As Judge Kozinski Said, It's A Sidewalk, Not A Sideseat Or A Sidebed
• Prohibiting Sitting Or Laying Down On Oahu's Sidewalks 24/7 Makes Law More Susceptible To Challenge

No easy answers for sure. 

Order Denying Rehearing En Banc, Martin v. City of Boise, No. 15-35845 (9th Cir. Apr. 1, 2019)

Join Us For The 36th Annual ALI-CLE Eminent Domain & Land Valuation Litigation Conference In Palm Springs (Jan 24-26, 2019)

Our colleague and co-planning chair Joe Waldo was in town yesterday, so we walked through historic Williamsburg, Virginia (cradle of the Constitution and the Bill of Rights), to invite you to join us for the 36th Annual ALI-CLE Eminent Domain & Land Valuation Litigation Conference (January 24-26, 2019, in Palm Springs, California).

As we wrote in this post, the Conference will feature the nation's best eminent domain faculty, presenting on the topics we love.

Register now here. Early registration and group discounts available. The 2018 Conference in Charleston sold out, so be sure to sign up now so you don't miss out. 

ALI-CLE 2019 Eminent Domain And Land Valuation Litigation Conference, Palm Springs Agenda - Register Now!

You've known for a while that Palm Springs, California, specifically the Renaissance Palm Springs Hotel (a resort facility, but right in town, so you will have many options for "off campus" activities like art museums, the aerial tram, golf, and whatever suits your fancy, and close-in to the Palm Springs Airport), is the venue for our 2019 ALI-CLE Eminent Domain and Land Valuation Litigation, January 24 through 26, 2019.

Of course, you also knew that the programming would be the usual spread of topical and cutting-edge topics, presented by some of the nation's experts. But we didn't give you the details. So here are some of the programs we're having: 

• Keynote Address: "Property Rights: Foundation for a Free Society" - Taylor Revley, most recently the past President of the College of William and Mary, and also former law school Dean (as well as a long-time leader of one of Virginia's most prominent private firms) will deliver the keynote. We're very lucky to have secured his participation, and his talk will focus on both the practical and the theoretical.
• Relocation: we're doing two separate panels on relocation issues. This is a growing area that many of us unfortunately overlook. No longer -- here's your chance to find out the latest: "How to Work Through a Complicated Relocation, From A to Z: Making it Happen" and "Mass Relocation and Navigating Cultural Conflicts: Displacement of Immigrant and Refugee Communities."
• "Knick of Time: A First Look at the Supreme Court's Revisit of Ripeness: Are Takings State or Federal?" We look at the arguments and the Court's opinion in the case that may upend Williamson County ripeness in regulatory and inverse cases against local governments (which may be issued by January).
• "Earth, Wind, (Water) and Fire: A Report From the Front Lines of the Flood and Wildfire Inverse Cases." Flood, wildfire, and other inverse cases present big issues, nationwide. 
• Loss of Access and Damages: How to Prove Just Compensation"
• "Palazzolo, Preexisting Regulations, and Reasonable Likelihood of a Regulatory Takings Judgment as Elements of Just Compensation." Hear directly from the source how you can present the case when preexisting regulations are claimed to depress the market value of land. 
• "Eminent Domain and Property Rights in the Popular Media: How to Respond to Misconceptions and Urban Legends."  Eminent domain and takings stories in the media and social platforms are rife with misinformation. How do you correct the record? 
• Two programs on the hot pipeline issue: the first focuses on challenges to the power to take and environmental and regulatory challenges, while the second is about "Compensation Pitfalls: How to Avoid Problems."
• "Run for the Border: Fence and Wall Condemnations." The idea of building a barrier along the southern border has burst on the headlines - what do you as a takings lawyer need to know?
• "Fight the Power: The Impact and the Valuation of Power Lines in Partial Takings" - takings for energy corridors continue to dominate; find out how this might affect value from lawyers, engineers, and scholars. 

And more (including an Ethics session for those of you who need the MCLE credits).  And the usual 101 track, for those new to the practice, or for experienced lawyers looking for a refresher.

As planning chairs, we've made a special effort to include on the faculty speakers from different backgrounds: property owner lawyers, condemning agency lawyers, right of way professionals, academics, engineers, relocation experts, and appraisers. We think you will like the line up.  

The full agenda, along with the speakers, will be published shortly by ALI-CLE. We'll announce it here, when ready. 

But don't wait, register now here. Early registration and group discounts available. 

Also: we have settled on the 2020 venue, and will make the announcement in Palm Springs. You asked for this venue, and we're bringing it to you!

Earlier this year, we had a fantastic conference in Charleston. Sold out. Attendees reported having a great time, and learning a lot. Our aim is to build and grow the Conference, and you joining us in Palm Springs is another step in that direction.

Ping me if you have questions. 

HAWICA: Vacation Rental Home Is "Public Accommodation," And Can't Discriminate Based On Sexual Orientation

Here's one from the Hawaii Intermediate Court of Appeals, Cervelli v. Bufford, No. CAAP-13-896 (Feb. 23, 2018), in which the court considered whether homeowners who rented out rooms in their home to the public, but refused to do so to a lesbian couple, violated Hawaii's public accommodation laws, or were sheltered from the statute by the Free Exercise Clause and other constitutional provisions.

In short, the court held they could be held liable, even though it is their home, first concluding that renting out a room in your home qualifies as offering a public accommodation, even though it is your residence. The owners advertise and offer rooms to the general public on their website and through third-party websites, rent to a large number of people (up to 200 nights per year), and pretty much takes all comers "aside from same-sex couples and smokers." Slip op. at 11.

The potential renters here inquired if a room was available, were told it was, and then informed the property owner that they were a same-sex couple. After which the owner denied accommodation. The only reason provided was the same-sex relationship.

The court first concluded that Hawaii's anti-discrimination statute governed this case even though it involved a home in which the owners resided, because it covers things like hotels, motels, and inns, and also covers establishments "that provide[] lodging to transient guests," which would include a home. Or at least not automatically exclude a home.  

The most interesting portion of the opinion -- the analysis of the property owners' Free Exercise and other constitutional defenses -- begins on page 18 of the slip opinion. The owners asserted that as "strong Christians," they were opposed to renting a room in their home to a couple in a same-sex relationship and had a constitutional right to refuse to do so. The court acknowledged a homeowner's right to be left alone and to privacy and free association and religion, but concluded that the owners "opened up" their home to over 100 customers per year, for money, and thus had effectively forfeited those rights in the rooms. (In more technical terms, the court concluded that even applying strict scrutiny, the State has a compelling interest in prohibiting discrimination on sexual orientation, and that the owners' interest do not outweigh that.) The court disposed of the remainder of the owners' constitutional claims on similar grounds. 

The opinion doesn't discuss the Masterpiece Cakeshop case now pending before the U.S. Supreme Court, which presents a similar, but not identical issue. Unlike that case, the Cervelli case doesn't involve claims that the proprietor is an "artist" and is being required to perform some unique service.

The long and the short of this opinion seems to be that if you use your home like a hotel, you are going to be treated like a hotel: "In other words, the success of Aloha B&B's business requires that [the owners] not be left alone." Slip op. at 20. We think that pretty much sums it up. 

Cervelli v. Bufford, No. CAAP-13-0000806 (Haw. Ct. App. Feb. 23, 2018) 

ALI-CLE Eminent Domain Conference, Third Day: Berger And Burling On Takings

We're on our third day at the 2018 ALI-CLE Eminent Domain and Land Valuation Conference in Charleston, SC, and as usual, we're having our headline presentations by takings guru Michael Berger (pictured above), who is updating us on the most interesting and important cases of the past year, and Jim Burling, who will be answering the question, "Should We Rethink Regulatory Takings Law? The Takings Clause, Privileges and Immunities, and Due Process."

• Fane Lozman (Mr. Houseboat) back at the Supreme Court.
• Latest Chapter in the NC Map Act Cases: State Does Not Have Sovereign Immunity From Takings: "sovereign immunity must be juxtaposed with the contrary sovereignty of the individual, whose natural rights preceded government and were enumerated in the federal Bill of Rights."
• Bay Point Properties v. Mississippi Transportation Comm'n, No. 16-1077
• Nies - the public trust and beaches

Here are links to the cases and issues which we discussed in the National Forum:

• A different kind of taking: Willard Swinson (via Anne Fisher). Want to help? Go fund me page here.
• Eminent Domain Abuse, Hawaii Style. Video.
• How Do You Exclude Someone From A Clean And Healthful Environment? Hawaii Supreme Court Rules The Public Has A Property Right In The Environment.

This year's conference has been a big success. More than 250 attendees and faculty, and -- very importantly -- nearly 100 first-time attendees. This bodes well both for the Conference and the eminent domain and property bar.

A big thank you to our ALI-CLE Program Attorney Amy Weinberg for undertaking the planning and execution of this very good conference.

As we posted yesterday, the 2019 Conference has been set: mark your calendars for January 24-26, 2019, in Palm Springs, California, at the Renaissance Palm Springs Hotel. We'll see you there.

Related articles

inversecondemnation.com: Important 2017 California Eminent Domain And Inverse Cases, Summarized

ALI-CLE Eminent Domain Conference: Cases And Links From 2017 National Eminent Domain Update

ALI-CLE Eminent Domain & Land Valuation Conference - In-Person Registration SOLD OUT (But You Can Still Join By Live Webcast)

Our upcoming American Law Institute-CLE Eminent Domain and Land Valuation Litigation Conference in Charleston, South Carolina has SOLD OUT our in-person registrations. 

We will have a record attendance (with over 100 first-time attendees) and the conference hotel has informed us that we can fit no more people in the meeting rooms. We cannot remember this happening before, but it tells us that we will have an energizing and exciting conference. 

Thank you to all of you who signed up and are coming or joining in online for the webcast -- we'll see you soon at the "four corners of the law."

And if you delayed too long in registering, please don't despair. You can still attend from home or the office because ALI has set up a live webcast of the sessions. Go here for more on how to sign up to attend by webcast.

And stay tuned: for 2019, we've already picked the venue (hint: west coast), and we are at a site which can accommodate as many attendees as can join us. We will make the formal announcement of the dates and location of the 2019 Conference in Charleston next week.

After we do, please make your plans and don't delay and risk getting left out! 

New Resource, New Book (The Law of the Fourteenth Amendment)

Two items from land use guru Lawprof Daniel Mandelker:

• A link to his resource web site, appropriately titled "Land Use Law." It's where we go to keep up with all of the land use and related (including takings) stuff.  Includes photos of the sites in key casess (like our "takings piligrimages"), the newest decisions and articles related to land use law, and links to other resources. Frequently updated. We're adding it to our "Links" sidebar (scroll about halfway down our page on the right). Our suggestion: visit frequently. We've done so for a number of years, and you should also.
• Also, Professor Mandelker just published the above book, "The Law of the Fourteenth Amendment." And we must say that the cover has has the best photo of the U.S. Supreme Court building that we've ever seen. Absolutely the best! (All kidding aside, thanks to Prof M for asking us if he could use our photo, which we were glad to provide after a recent visit to the Court.)

The First Post-Murr Case? Fourth Circuit: No Taking Because Anti-Development Merger Regulations Actually Make Property Developable

Here's a case about the denominator in a regulatory takings case from July 2017, just after the U.S. Supreme Court issued its opinion in Murr v. Wisconsin. We somehow missed the opinion when it was issued, but since we think it must be the first case which attempted to apply the Murr majority's multi-factor test, figured we better post it.

In Quinn v. Board of County Commissioners, Queen Anne's County, No. 16-1890 (July 7, 2017), a panel of the U.S. Court of Appeals for the Fourth Circuit upheld the district court's dismissal of a regulatory takings claim that the County's regulations, "designed to limit overdevelopment of the area" on South Kent Island. Slip op. at 3. But not as you might expect (on Williamson County ripeness grounds), but on the merits.

Practice note: when you are the property owner's lawyer and an opinion starts by characterizing your client's use as "speculative land investment," you kind of can predict that the rest isn't going to be good:

Kevin Quinn, a landowner, challenges a comprehensive plan to extend sewer service to South Kent Island and a so-called Grandfather/Merger Provision designed to limit overdevelopment of the area. He asks us to protect a speculative land investment by finding a regulatory taking as well as violations of his due process and equal protection rights. Doing so, however, would invalidate a standard zoning tool whose legitimacy was recently upheld by the Supreme Court. It would also revolutionize zoning law and “frustrate municipalities’ ability” to undertake basic land use planning. Murr v. Wisconsin, No. 15-214, slip op. at 16 (U.S. June 23, 2017).

Slip op. at 3. 

The flavor in the first paragraph permeated the rest of the opinion, which focused on how reasonable the court believed that the County's regulations are.

These regulations, adopted in response to the usual septic and sewer hookup issues which are common in more rural areas, permit an owner of what are otherwise undevelopable lots due to the lack of sewage processing to develop them (yay!). But only if those lots were used together (uh oh). In other words, the ordinance allowed development but only for "merged" parcels on a severely less dense basis than were they to be developed separately. The individual lots, standing alone, must be left vacant due to lack of septic or sewer availability. The court expressed a lot of sympathy for the County, which it saw as trying to balance competing interests:

The County recognized that many lots were vacant because they could not support a septic system, but it feared also that a new sewer system might lead to excessive development. In addition, the County needed State funding for any sewer extension, but because South Kent Island was not in a “Priority Funding Area,” the State of Maryland would not provide funding for a sewer extension that would serve new development. However, the County could not just exclude all vacant lots from sewer service because of a Maryland statute that requires providing a sewer connection to all properties that abut a sewer line, including undeveloped lots.

In order to satisfy all these various constraints, the County planned to extend sewer service to all streets with failing septic systems. Both developed and undeveloped lots on those streets would receive sewer service. In an effort to limit further development, there would be no sewer lines constructed on streets with only vacant lots. The vacant lots on those streets would be excluded from service because none would abut a sewer li/ne. The plan also prevents future connections outside the initial service area.

Slip op. at 4-5.

To make a long story short, the court concluded that the County's regulations were run-of-the-mill zoning/land use ordinances, and thus were not a taking, nor violations of the related substantive due process and equal protection claims. Because the County had no obligation to extend sewer services to the plaintiff's parcels, he had no property interest that was taken by the development prohibition. 

The court rejected the owner's attempt to distinguish Murr. He pointed out that he purchased his property before the restrictive regulations were adopted, and not afterwards like the Murr children. See Murr, 137 S. Ct. at 1945 (“the “expectations . . . an acquirer of land must acknowledge legitimate restrictions affecting his or her subsequent use and dispensation of the property”). My expectations were different, he argued, because the regulations landed on me, not the other way around. I had a property right, and the regulations took that right away from me. The court disagreed, concluding that the plaintiff was just like the Murr kids: "Quinn is in a similar position here. He cannot point to anything in the land records that would suggest he has a right to obtain sewer service; he bought the land knowing that development would depend on septic systems. Likewise, Maryland law does not create a property right in the access to a sewer system." Slip op. at 8.

The County's failure to extend sewer lines to his property did not prohibit his use, "but merely refuses to enhance the value of real property." Slip op. at 10. The panel didn't base this on the Constitution's Givings Clause,  but on the idea that when the plaintiff purchased the properties, they were not separately developable due to lack of sewage processing, whether septic or sewer. Slip op. at 10 ("Viewed another way, Quinn cannot develop some of his lots because the land will not accommodate septic systems, not because the County will extend sewer service to other lots on South Kent Island—including some of Quinn’s property.").

The court rejected both a Lucas claim (obviously, since the denominator was several of the plaintiff's amalgamated parcels, which had some value since they were jointly developable), and his Penn Central arguments. 

Again, the central theme in the opinion was how run-of-the-mill these type of regulations are, and how calling their validity into question "would open an incredible Pandora's Box" -- 

The Grandfather/Merger Provision does not resemble a regulation that is pressing Quinn’s land “into some form of public service.” Id. at 1018. Instead, it resembles standard zoning tools—such as minimum lot sizes, setback requirements, or restrictions on subdividing lots—that local governments use all the time to temper the density of development. See Murr, slip op. at 15–16. Not only are local governments concerned about congestion on roads, overcrowding in schools, overuse of sewer systems, and exhaustion of other public services, they must consider the costs of overdevelopment on the environment and on the fundamental character of the community. Managing the density of development—even if it disappoints a particular developer—is thus a crucial goal of land use planning.

Slip op. at 11-12. 

As we predicted in our (draft) article, the Murr majority has shifted the question in regulatory takings case from the impacts on the owner's economically beneficial use, to how reasonable the reviewing courts believe the regulation is. In Quinn, the Fourth Circuit panel concluded that even if the focus was on the owner's remaining uses, he should, in essence, be grateful:  "Quinn does not provide evidence of the effect of the Grandfather/Merger Provision on his lots that will receive sewer service, but he has at least twelve lots—subject to merger into four lots—that will. Quinn cannot point to any reason these lots cannot be developed, and it is clear that the Grandfather/Merger Provision does not deprive these lots of all economically beneficial use." Slip op. at 12. 

Applying Murr's vague rules vaguely -- the panel really didn't go through each of Murr's factors individually, but merely concluded that "[t]he multifactor standard established by the Supreme Court’s decision in Murr suggests that the lots subject to merger should be viewed as a collective," slip op. at 12 (what about "the surrounding human and ecological environment?") -- the court held that the individual parcels had value as merged, and therefore there was no taking, because "[e]ven if viewed individually, however, each of the twelve lots retains value for assemblage into the four lots on which Quinn can now build." Slip op. at 13. 

In sum, these are just zoning regulations, nothing to see here move along:

The Grandfather/Merger Provision is not a per se taking under Lucas or a taking under the Penn Central standard. It is, rather, a standard zoning provision designed to manage the density of development, a crucial part of local land use planning. To find a taking here would revolutionize zoning law and severely constrict local governments’ ability to direct democratically the very nature and character of the community.

Slip op. at 15.

Given that holding, do we really need to tell you how well Quinn's substantive due process and equal protection claims fared? We didn't think so. 

One last thing: the opinion did address the Williamson County argument in a footnote, noting that the rule was a prudential one, not jurisdictional, and "we may determine that in some instances, the rule should not apply, and we still have the power to decide the case." Slip op. at 7. n.2.  

Quinn v. Board of County Commissioners, Queen Anne's County, No. 16-1890 (4th Cir. July 7, 2017) 

If There Ever Was A Perfect Case To Address Williamson County ...

...this is might be it: Lampkins Crossing, LLC v. Williamson County, No. 3:17-cv-00906 (Nov. 14, 2017), in which the District Court dismissed substantive due process, procedural due process, and equal protection claims for not being ripe under Williamson County's "final decision" prong. The Williamson County case decided on Williamson County grounds.

Now, we're just being cheeky with our title, of course, and this case may not present a good vehicle for addressing the most troubling prong of Williamson County (the "available state remedies" requirement in takings cases), but with the real County being the defendant here (and not the Williamson County Planning Commission), who could resist? Just think of the law review article titles, and the confusion in oral arguments about "Williamson County."

Short story here is that the plaintiff's claims against the County were not ripe in the court's view, because the County still might allow some development, and it "did not take a final, definitive position how the Lampkins parcel could be developed." Slip op. at 5. Submit a revised plan or a request for a variance, and we just might approve it.

Lampkins Crossing, LLC v. Williamson County, No. 3:17-cv-00906 (M.D. Tenn. Nov. 14, 2017)

Upcoming Election Law Hawaii Supreme Court Argument Preview: When Is A Registration Challenge "Brought?"

Our colleague Rebecca Copeland has posted a preview and the briefs in an election law case we're arguing next week in the Hawaii Supreme Court. See "Writ to Watch: Hyland v. Gonzales." We've written about the case earlier here and here. 

The question for the court's review is whether an appeal in a voter registration challenge case is timely brought -- when mailed by the appellant, or when received by the Board of Registration Appeals? Under the statute, challengers have ten days in which to "bring" an appeal, and the Intermediate Court of Appeals concluded that it must be delivered to the Board within that time, not merely mailed. The court's decision in this case could have an impact beyond the relatively rare election law context, because many administrative procedures and appeals are subject to similarly-phrased deadlines.  

Rebecca writes:

In the underlying case, Hyland challenged the voter registration of another Hawaii county voter. The challenge was filed with the Office of the County Clerk for the County of Hawaii. The Clerk denied the challenge, and Hyland appealed to the Hawaii County Board of Registration. The Board ruled that it lacked jurisdiction over the appeal because it had not been timely filed – according to the Board, an appeal must be received within the 10-day prescribed filing period. Hyland appealed to the ICA, and the court affirmed.

On certiorari, Hyland argues that the Board had jurisdiction to consider his appeal. The essence of the appeal is whether it was timely because, according to Hyland, he mailed it within the ten-day appeal window. Hyland was told that the appeal had to be mailed to Oahu, but he was not told that the delivery of the document to the Oahu was required to be within the ten days.

The Judiciary has also previewed the arguments on its web site: 

No. SCWC-15-0000053, Thursday, January 19, 2017, 8:45 a.m.

LANRIC HYLAND, Petitioner/Petitioner-Appellant, vs. RONALD GONZALES and STEWART MAEDA, in his official capacity as Hawai`i County Clerk, Respondents/Respondents-Appellees.

The above-captioned case has been set for argument on the merits at:

Supreme Court Courtroom
Ali`iolani Hale, 2nd Floor
417 South King Street
Honolulu, HI 96813

Attorneys for Petitioner Lanric Hyland:

Robert H. Thomas and Mark M. Murakami

Attorneys for Respondent Board of Registration:

Patricia Ohara and Valri Lei Kunimoto, Deputy Attorneys General; Ewan C. Rayner, Deputy Solicitor General

Attorneys for Respondent Stewart Maeda:

Christopher P. Schlueter and Laureen L. Martin, Deputy Corporation Counsels

Attorney for Respondent Ronald Gonzales:

Lincoln S.T. Ashida

NOTE: Order accepting Application for Writ of Certiorari, filed 05/11/16.

COURT: MER, CJ; PAN, SSM, RWP, and MDW, JJ.

Brief Description:

The petitioner in this case challenged the voter registration status of a voter by filing a challenge with the Office of the County Clerk of the County of Hawai`i. Following the county clerk’s decision that the challenged voter was properly registered, petitioner appealed the county clerk decision to the local Board of Registration (Board) for the County of Hawai`i. The challenged voter filed objections to the jurisdiction of the Board arguing that the appeal was untimely. The Board agreed, concluding that it was without jurisdiction to consider the appeal because the appeal was untimely as it was not received by the Board within the ten-day filing period.

Petitioner appealed the Board’s decision to the Intermediate Court of Appeals (ICA) contending that petitioner’s appeal was timely. In a memorandum opinion, the ICA affirmed the order dismissing the appeal, concluding that petitioner’s appeal was not timely as it was not filed until the date it was received by the local board in the mail. The ICA in its ruling also determined that the Board erred in concluding that Columbus Day was a holiday that tolled the appeal deadline, although the ICA concluded that the error was harmless because the appeal would have been untimely in any event. Petitioner filed an application for writ of certiorari with this court, which was granted. In his application, petitioner maintains that the Board had jurisdiction over his appeal because his appeal was timely filed with the Board based on the date of the mailing of his notice of appeal.

We'll bring you more down the road. 

Related articles

inversecondemnation.com: New HAWSCT Brief In Election Case: Voter Registration Appeal Is Timely Brought When Mailed

SCOTUS GVR's Anti-Eminent Domain Sign Case

Constitutional Property Claims Are For Courts, Not Agencies

The issue resolved by the Minnesota Supreme Court in Zweber v. Credit River Township, No. A14-0893 (July 27, 2016) was one that land use lawyers deal with constantly: when an administrative agency is alleged to have violated someone's constitutional rights, what procedural route must the legal challenge take -- is the plaintiff required to go to court via administrative channels, or can she initiate an original jurisdiction ("de novo") case?

In Zweber, the court came down on the side of original jurisdiction. There, Zweber owned undeveloped land which he wanted to develop, and he submitted a preliminary subdivision plat to divide it up. After a neighbor objected for the usual reasons (traffic), the County approved the plat application. But Zweber didn't begin development and instead, a couple of years later applied for a new subdivision. "This time, based on the recommendation of the Planning Commission, the County Board denied the application." Zweber challenged the denial up through the administrative appeals process, which in Minnesota meant that he sought a writ (of certiorari) in the Minnesota Court of Appeals.That court reversed and ordered the County to approve the application.

But the County did nothing. After two years of inaction, Zweber brought an original jurisdiction action in the District Court, Minnesota's court of general jurisdiction, seeking damages for a taking, for violating his equal protection rights, and for violating his civil rights (42 U.S.C. § 1983). The County sought dismissal because Zweber was required to have brought his claims in the Court of Appeals via a writ proceeding, and thus the District Court lacked subject matter jurisdiction.

The District Court disagreed and concluded it had jurisdiction, but the Court of Appeals reversed, "reasoning that the County's 'plat approval subject to conditions is a quasi-judicial action, which is reviewable only by certiorari appeal within 60 days,' and that Zweber's 'constitutional claims are not separate and distinct from that action.'" 

The Supreme Court held that property owners like Zweber who allege constitutional violations are not obligated to pursue those claims via administrative channels. District Courts are courts of general jurisdiction, and have authority to hear all civil and criminal cases, including those which allege federal claims under section 1983. Yes, review of certain local government actions are by way of certiorari in the Court of Appeals when those actions can be characterized as "quasi-judicial" and the plaintiff challenges their validity, but here it was kind of a mixed bag, and there was "overlap" between Zweber's claims challenging the County's decision, and his constitutional claims.

Here, because "[t]he takings claim does not require an examination into the validity of the County's decisions because it assumes their validity," Zweber was not required to pursue in by certiorari. He "presuppos[ed] that the conditions placed on his plat application were valid, but alleges that they 'constitute[d] a taking [for] which [he] must be compensated." Slip op. at 13. Same analysis for the equal protection claim, because Zweber did not seek reversal of the County's denial, only money damages for the constitutional wrongs of treating him differently than other applicants.

The court rejected the County's argument that Zweber should have been required to split his claim and pursue each in separate forums:

The County nevertheless raises a public-policy objection to allowing Zweber’s claims to proceed. The County complains that dividing the review of quasi-judicial decisions and the adjudication of any derivative claims unnecessarily subjects local governmental entities to expanded liability and protracted proceedings. The County instead suggests that the better procedure would have been for Zweber to have first argued in a petition for a writ of certiorari that the conditions placed on approval of his plat were unconstitutional, and then, if the court of appeals had accepted his argument, subsequently pursued a takings claim in district court. However, nothing in Minn. Stat. § 606.01, nor in our case law, suggests that such an approach is required.

Slip op. at 15. 

We think this is the right approach. Check it out. 

Zweber v. Credit River Township, No. A14-0893 (Mn. July 27, 2016)

Amici Brief: In Class Of One Equal Protection Claims, Is "Substantially Similar" A Search For Evidence, Or Unicorns?

Here's the amici brief we're filing today on behalf of the National Federation of Independent Business Small Business Legal Center and the Hillsborough County Chapter of the NAACP in support of a cert petition now pending at the Supreme Court.

The case centers around a "class of one" Equal Protection claim in which the plaintiff/petitioner alleges that his land use requests were treated by the County differently than other "similarly situated" landowners. The District Court granted summary judgment to the County because the other owners whom the plaintiff proffered in comparison were not subject to the Keystone Community Plan as were his properties. The Eleventh Circuit affirmed.

The court held that the comparators must be "identical in all relevant respects," and since the other owners were not subject to the Keystone CP, end of story. It didn't matter that the applicable provisions in the Keystone CP were the same as in the other County CP's, and the court didn't look beyond the label.

We think this was error, because the jury should have been able to consider regulatory similarity, and it should not have been prevented from weighing the evidence or regulatory similarity and determine that the plaintiff’s position was (or was not) substantially similar to the proffered comparators.

Our brief frames the issue like this:

In class-of-one Equal Protection claims which allege the plaintiff was treated differently from others similarly situated, may the jury consider evidence that the challenged regulatory action is substantively similar to that applicable to the proffered comparators?

We argue that at least one other circuit utilizes a different analysis in comparative circumstances, and actually looks at the substance of the various regulations to see if they are actually similar. Here's the Summary of Argument from our brief:

By requiring Petitioner prove he was in exactly the same circumstances as the other Hillsborough County (County) property owners he proffered as comparators to support his class of one claim, the Eleventh Circuit effectively held that Petitioner must belong to a class of at least two.

The rule cannot require a comparator to be so similar to the plaintiff as to be practically indistinguishable. That would be an impossible standard, and would allow government to treat individuals differently without any rational justification. The Eleventh Circuit’s approach requires a plaintiff to search for unicorns, not evidence. A viable Equal Protection claim does not require that comparators be “identical in all relevant respects” as the Eleventh Circuit held, merely that the plaintiff has been treated differently than others similarly situated.

The Eleventh Circuit’s most critical error—and where its approach diverges from other courts—is that it assumed the County’s regulations applicable to Petitioner under the Keystone Community Plan were so different from the regulations applicable to the other property owners whom Petitioner sought to introduce as substantially similar comparators that they were irrelevant. In the court’s view, the substantive similarity (more precisely, the lack of articulable differences) between the Keystone Community Plan and the other community plans, had no relevance whatsoever.

There is no basis for assuming that landowners in one district are ipso facto differently situated simply because of an arbitrary line on the zoning map. In all relevant respects, the separate community plans were materially similar. Thus, Petitioner should have been treated by the County the same as other County landowners. But the Eleventh Circuit proceeded without reviewing, or even comparing, the substance of these community plans—an approach that conflicts with the standards set forth by other courts. Petitioner should have been allowed to submit the question of regulatory similarity to a jury, which could have weighed the evidence to determine whether the plaintiff’s position was or was not substantially similar to the proffered comparators.

This brief argues that the Eleventh Circuit’s approach diverges from how other courts have considered the same issue. The better rule is that the substance of the regulations are themselves a factor which the trier of fact may consider to determine whether proffered comparators are substantially similar to the plaintiff. This Court should grant certiorari to consider this issue.

Br. at 4-5. 

The County, naturally, doesn't see it that way, as argued in its Brief in Opposition.

We'll keep following along, and when the reply brief comes in, will post it.  

Brief of Amici Curiae NFIB Small Business Legal Center and Hillsborough County Chapter NAACP in Support of...

Brief in Opposition to Petition for Writ of Certiorari, Dibbs v. Hillsborough Cnty., No. 15-1149 (Apr. 13,...

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