How it started.
Once again, our fall duties included teaching two property law courses at the William and Mary Law School: Eminent Domain & Property Rights, and Land Use Controls. We started in mid-August, and just wrapped the classroom portion of the courses earlier this week. I say "classroom portions" because although we are done with classwork, the courses are not done, and the students are presently deep into writing their final papers (we don't do an exam in either course). Then comes grading, and a welcoming of the students as full-fledged colleagues in the Dirt Law Bar.
Many law schools feature Land Use Law courses, but only a few are so bold as to include a course on Eminent Domain and Property Rights in their offerings (and a substantial three-credit course, at that). William and Mary Law School is an excellent and very appropriate place to study these topics.
I'm grateful for the opportunity to be here, at the lectern. What a great law school, and wonderful, committed, students. As I usually do, I learned way more than I conveyed. A welcoming administration, faculty and staff, too. As I have noted before: if you have a chance to return to the law classroom and teach, don't the let the opportunity pass you by. It's hugely rewarding.
Big Wall - o - swag.
A big thank you to law school Dean Benjamin Spencer, Professor Emerita Lynda Butler (for entrusting me with her beloved Land Use class upon her retirement), and Professors Tom McSweeney (a better office suitemate I could not ask for), and James Stern for your guidance and support, and making me feel like I belonged. And to my students, who challenged me and kept me grounded.
And, as always, to Joe Waldo, who makes it all possible.
The mysterious ducks. They are a "thing" here at W&M Law,
and can show up in unexpected places.
I am still not sure where they come from,
or who places them. But I am honored to have them
decorating my office name plate.
Two essentials to teaching: a logo/swag law school coffee mug,
plus a good supply of dry erase markers.
Our Land Use course. So good, we have three of 'em.
The actual reason the course is listed thrice is that
in addition to being offered on the Law School's curriculum,
students in the College's Marine Sciences and Public Policy
programs are enrolled.
Very appropriate that right outside of our Land Use classroom
is the bust of one William Blackstone.
An integral part of both courses is the annual Brigham-Kanner
Property Rights Conference, held at the law school in
September or October. Our students spend the week with the nation's
leading property scholars and practitioners, culminating
in the Conference presentations on Friday.
Our Land Use course starts off Class # 1 with Euclid (of course).
Guess what case we discuss on the
final day of that class? Euclid!
Justice Sutherland would be pleased.
Not only do we deal with the nuances of land use regulations
(zoning, variances, ZBA appeals, and the like),
we also delve into the philosophical bases for how and why
third parties have the power to control what someone
else does with their land.
Here are the light controls in one of our classrooms,
which look more like descriptions of
points on the political spectrum!
In both classes, we try and foster a principle that W&M Law emphasizes:
free and open discussion of issues and viewpoints. Both of our classes
treated difficult subjects (for example, racial discrimination in land
use, slavery and its consequences, the proper role of property rights), with
honesty and maturity. How refreshing.
One of the unique features of the Eminent Domain & Property Rights course
is that we spend a lot of time on Just Compensation: what it means,
what it covers, and how it can be calculated. Not many law school
courses include this topic. But we do.
Both courses are really just applied constitutional law, no?
In addition to dealing with these subjects as academic matters, we
include a healthy dose of "real world" stuff. That includes having our
practicing colleagues visit, and speak about how these issues play out
in practice. Jeremy Hopkins, Brett Tensfeldt, and Steve Davis visited
the Eminent Domain class.
Andrew Brigham joined our Land Use class
to explain how these concepts
play out in eminent domain cases.
He also spent a lot of time on how to
prepare for a career in property law.
We also welcomed back to the classroom a course alumni. Here,
Xijia Yuan, who is now a practicing property lawyer,
explains why she loves dirt law.
Our Toronto friend and colleague Shane Rayman paid a special visit to
discuss the differences between the US system and Canada's.
I'm grateful that my friends and colleagues are willing to spend their
valuable time to provide students with their wise counsel.
Brett Tensfeldt, Andrew Brigham, Heather
Cunningham, and Xijia Yuan: you are the best!
The Brigham-Kanner Property Rights Conference included
a session "Careers in Dirt Law." with Kady Valois, Randy Smith,
and WM Law alum Elizabeth Sockwell. Brett Tensfeldt ran the program.
Zoning practice has a lot of jargon and abbreviations.
We covered em.
In our last class in each course as a way of wrapping up
and summarizing, we played Bingo. No, not the same game you remember
from One-L. Here, the students are given a blank card,
which they filled out with words and phrases from the course.
Then, when I said that that word or phrase during the final class,
they could check that box. When they got five-in-a-row, time to yell "BINGO!"
And yes, prizes were available.
I hit up the local Williamsburg Trader Joe's for our Bingo prizes.
The most sought-after prizes were the four $25 TJ gift cards.
Naturally, for the Eminent Domain and Property Rights class,
the four TJ gift cards were the "corn" cards.
You know why, fans of Magna Carta!
Also appropriate property rights prizes: these "bundles of sticks."
I have a tradition that on the final day of each class,
I pass around my scrapbook and ask students
to add their thoughts. Yeah, kind of like high
school yearbook. I get that it's kind of goofy.
But one of my favorite things is to read
their comments, and it provides a good
way for me to remember the class.
Last one out, please turn out the lights.
That would be me.
See you next Fall.
98 years old, and still going (for better or worse)
On this day in 1926, the United States Supreme Court issued its landmark opinion in Village of Euclid v. Ambler Realty Co., 272 U.S. 365 (Nov. 22, 1926).
You know this one (and can you call yourself a dirt lawyer if you don't?). It's the one in which the Supreme Court first upheld -- against a facial due process challenge -- the validity of this thing we call "zoning." While in the intervening century, zoning has become a catch-all term for all sorts of regulatory restrictions on the uses of real property, land users know that "zoning" -- ackshually -- refers only to the regulation and separation of uses, and restrictions on density, and height regulation. At least that's how it began.
While "Euclid" and "Euclidean zoning" have become part of the land use lexicon and landscape, the decision might have been seen at the time as somewhat surprising. After all, the Supreme Court was in the height of the so-called Lochner era, when it might have been expected to get the legal vapors over these type of restrictions on economic liberty and property. In an era when the Court was more aggressively policing the police power, for it to uphold, even generally, the validity of zoning restrictions, might not have been expected.
And perhaps even more surprisingly, the opinion was authored by none other than Justice George Sutherland, one of the notorious Four Horsemen who would later regularly vote to invalidate similar New Deal legislation.But Sutherland and the Court went the other way on this "zoning" thing, applying what later became known as the rational basis standard of review. Fairly debatable? No sweat. Who are we, mere judges, to say otherwise?
What accounts for that? Some have noted that the "Bettman Brief," a late-filed amicus (submitted after oral argument) on behalf of the National Conference on City Planning and others, held sway. The dots are not that difficult to connect -- much of the language and imagery in the Euclid opinion such as the "parasitic" nature of (horrors!) apartments -- comes straight out of the Bettman brief. And it also isn't that hard to connect the dots between a facially-neutral tool of exclusion like zoning, and the Supreme Court's then-recent rejection of express racial discrimination in local land use regulations (we're talking Buchanan v. Warley, 245 U.S. 60 (1917)).
But despite those roots, with a few hiccups along the way -- a mere four year later, pretty much the very same Court held in Nectow v. City of Cambridge, 277 U.S. 183 (1928) that, as applied to a specific parcel, Euclidean zoning was arbitrary and capricious and violated a property owner's rights, with the very same Justice Sutherland authoring the opinion -- zoning has been widely accepted around the nation (except, most notoriously, in Houston, which has opted for a more ad hoc, less comprehensive plan-based form of use regulation), with the courts doing little to stand in the way.
These days, however, there's a renewed focus on Euclid and zoning's troublesome roots. Thus, our title's "un" headline. But even as we reckon with that history, zoning chugs along towards the century mark.
Let's see what the next two years might bring. In the meantime, we're going to recognize Euclid's birthday. Whether it is a happy one is subject to change.
Euclid is literally a landmark decision.
Lake Worth: the "lago" in Mar-a-Lago
You know his name. He's taken on the City of Riviera Beach twice at the U.S. Supreme Court. And won both times. The houseboat that isn't a boat. The government can't shut you out from speaking your mind simply because you irritate them.
That's right, it's Fane Lozman. A "Florida Man" that you can like and admire. And he's back for Round 3.
He owns property that's mostly in (in, not near) Lake Worth. Two-tenths of an acre is uplands, and the rest (7.75 acres) is submerged. As the Eleventh Circuit noted, "[o]nly a sliver of Lozman's property is above water."
The city, in accordance with the usual approach to land use regulation has a comprehensive plan. That plan designates submerged lands as "Special Preservation Future Land Use," a label which should set off your Lucas bells, because it mostly sounds like no use. Sure enough, that designation originally "preclude[d] any development of Submerged Lands ... to the maximum extent permissible by law."
Perhaps understanding the legal jeopardy which that put the city in, in 2010 it amended the plan to allow some uses. At the time Lozman purchased the property in 2014, the designation at least in theory allowed private residential fishing or viewing platforms and docks, and -- get this -- included a "savings clause" that prohibited the city from denying uses that were "judicially determined vested rights to develop or alter submerged lands." We see what you did there, city. In 2021, the city tweaked the plan a bit more, limiting such vested uses to a one-per-20-acre density.
But that's not the end of the story. Turns out that until after Lozman's 2014 purchase, the underlying zoning did not conform to the restrictive "Special Preservation Land Use" general plan designation. Uh oh. Indeed, the zoning allowed development of single-family homes. That was a great disturbance in the Force, and that sound you hear is the collective voices of municipal lawyers and planners crying out in terror. Eventually the city caught on, and in 2020, when it created a zoning designation that matched the general plan preservation designation.
Lozman was not one to let that slip by:
Lozman says that when he purchased the parcel, he “expected that it could be developed for use as single-family residential lots.” Lozman purchased the property in 2014 for $24,000. But he produced an appraisal valuing the property at $49,833,500 as of October 7, 2020. This valuation depends on Lozman maximizing the property’s “highest and best use”—bulkheading and filling the sub-merged water to create “up to eight one-acre parcels.” The appraisal was also “based on the hypothetical condition that permits could be granted for bulkhead and fill.”
Lozman v. City of Riviera Beach, No. 23-1119, slip op. at 4 (11th Cir. Oct. 16, 2024).
Zoning is king, and it controls what restrictions there are on property uses (right?), so Lozman sued for a Lucas taking in federal court. The district court granted the city summary judgment, but on appeal, the Eleventh Circuit held the case wasn't ripe, under Williamson County's still-surviving "final decision" ripeness rule. You know the drill: before an owner can move forward with a claim that a land use restriction is a taking, the regulating authority must have made a "final decision" about what uses are allowed under the restriction.
While grounded in the entirely rational notion that a court is not able to evaluate whether there's been a taking until it knows what uses an owner can make of property under the challenged restrictions, we know in practice the final decision rule is mostly a finger pointing the way to municipal approval purgatory. Having been incentivized by the Supreme Court to avoid saying "no" with clarity (after all, who wants to be sued for a taking!), while at the same time not wanting to say "yes" (here, for example, the city's restrictions contemplate preservation, not development -- would the city really be ok with seven residences smack dab in the Lago?), the easiest path for the government is to direct the owner into a byzantine maze with no realistic prospect of getting to either a yes or a no. And then hope that the thousand cuts weaken body and soul, and he taps out.
Here, the Eleventh Circuit concluded that Lozman hadn't bothered to ask the city for a development permit, nor the Corps of Engineers for a section 10 dredge-and-fill permit, both of which he would need in order to build up to the use allowed by the zoning. Slip op. at 6 ("But Lozman has not yet acquired—or applied for—federal or state permits to develop his property."). Easy case, right? No final decision unless the owner asks the city. Or, you don't have to ask if doing so would be futile.
But that isn't all the story. Both the Corps and the State of Florida were (are?) hot on Lozman's tail with enforcement actions. It turns out that he didn't wait for permission, and he built "structures in the Lagoon without authorization in violation of the Rivers and Harbors Act." The State of Florida "instituted a similar action against Lozman in December 2020." Slip op. at 6. In each case, the government agencies obtained rulings preventing Lozman from doing anything.
The Eleventh Circuit disagreed with the district court's granting of summary judgment for the city, holding instead that Lozman did not allege a ripe case, because there's no indication he ever asked the city for permission to develop. The restrictive comprehensive plan were not sufficiently restrictive to show that there's no uses possible (however remote and unrealistic obtaining permission might be). And Lozman had not sought a variance.
The same reasoning applies here. The comprehensive plan alone cannot constitute a final decision on Lozman’s property. That the comprehensive plan includes a material exception permitting development underscores that the plan alone is not a final decision precluding the development of Lozman’s property. Because he has not applied for a permit, variance, or rezoning from Riviera Beach on the application of the comprehensive plan to his property, Lozman has not yet received a final decision on the comprehensive plan’s application to his property.
Slip op. at 9.
Nor a rezoning (on this one, we have real heartburn because a property owner can never be required to seek legislation in order to ripen a takings claim).
The court also rejected -- as most courts do -- the claim that seeking permission was futile. There are always possibilities, and courts are all too willing to accept a municipal claim that if only an owner would do it right, we might approve some use. Even here, where the feds and the state are coming after Lozman when he made uses of the property well short of what the zoning would allow. Anyone actually think any government would let him do anything?
The Eleventh Circuit may have made short work of his case. And if there's a bright side of life part of the decision is that it reversed the district court's adverse decision on merits, and dismissed his takings claim without prejudice.
And if I were a betting man, I wouldn't count Mr. Lozman out just yet.
Lozman v. City of Riviera Beach, No. 23-11119 (11th Cir. Oct. 16, 2024)
Get ready to join your colleagues and friends in San Diego for the 42d ALI-CLE Eminent Domain & Land Valuation Litigation Conference.
The 41st Conference was in New Orleans. Here's a report of that event, and here are our reports from prior conferences in Austin and Scottsdale.
Here are some of the highlights of the upcoming Conference:
- Property Rights at the Supreme Court: DeVillier and Sheetz and What's Next
- Slow Take: Possession, Rent, Relocation, and Offset
- The Jury's View: How Jurors See Your Case
- From Penn Coal to Penn Central: How to Prove "Too Far"
- Leveraging Expertise in Eminent Domain Litigation: Working with Land Planners, Engineers, and Other Predicate Experts
- Kelo at Twenty: What Changed, What Didn't, and What's on the Horizon
- Viva Las Vegas: How the Nevada Judiciary Upheld Property Rights in 180 Land's Inverse Condemnation Taking
- Ethics: Guiding the Trolley: Perspectives on Professional Ethics in Eminent Domain for Lawyers, Appraisers, and Right of Way Agents
- "I Think I Shall Never See" Just Compensation For a Tree: Strategies to Securing Recovery for Trees, Crops, and Fixtures
And more. Check out the complete agenda here. Registration information here.
We especially welcome first-time participants, or those returning after an absence. Connect (or reconnect) with your colleagues from across the nation.
Don't miss out: we have had record attendance in recent years, so hold your space now.
Come, join us!
Here's the latest in a case we've been following. This morning, in this Order, the Supreme Court denied cert in two cases which seemed to have a good chance at a grant, on two pressing issues which have divided lower courts, the physical occupation in tenancies (aka Yee), and the nature of the Penn Central takings test. Only Justice Gorsuch would have granted.
Here are the Questions Presented:
New York’s Housing Stability and Tenant Protection Act of 2019 transforms a temporary rent- regulation system into a permanent expropriation of vast swaths of private real estate, without just compensation, in the name of “affordable housing.” Among other things, the Act prohibits owners—even of small and midsized apartment buildings like Petitioners—from reclaiming rental units for their own personal use, and grants tenants a collective veto right over condo/co-op conversions. As Justice Thomas has observed, the constitutionality of regimes like New York’s is “an important and pressing question” that has divided the courts of appeals and should be addressed in “an appropriate future case.” 74 Pinehurst LLC v. New York, 2024 WL 674658, at *1 (U.S. Feb. 20, 2024) (statement respecting denials of certiorari). Although case-specific vehicle concerns may have dissuaded the Court from granting other recent petitions that sought to challenge the constitutionality of rent-control regimes in general, this case is based on a substantially different record, targeting only a specific set of amendments to New York’s regulatory regime, and thus provides an ideal vehicle for this Court’s review.The questions presented are:1. Whether New York’s rent-regulation laws, and in particular its new restrictions on owner reclamation and condo/co-op conversions, effect physical takings.2. Whether this Court should overrule Penn Central or at least clarify the standards for determining when a regulatory taking occurs.
Too bad, we thought this one had a chance.
Justice Sutherland asks:
whadda mean, you don't like apartments?
Check out this uncharacteristically-lengthy opinion from New York's Appellate Division (and entire 6 pages!).
In Bennett v. Troy City Council, No. CV023-0709 (Oct. 24, 2024), the court invalidated a municipal upzoning (from single-family residential to Planned Development -- which would permit apartments) because the city's conclusion that the zone change would have no significant environmental impact under New York's study-and-disclose statute.
Not content with apartments coming to the neighborhood, an adjoining owner, the "coufounder of The Friends of the Mahicantuck," sued to challenge the negative environmental declaration. Under New York's environmental study-and-disclose statute, the "environment" may include such things like historic or archaeological resources, and similar.
Zoning and rezoning is generally subject to deferential judicial review under Euclid, with the courts applying rational basis review and generally taking a hands-off approach. But this was not a Euclid-like challenge arguing that the upzoning was arbitrary and capricious. The environmental statute empowered the court to delve into the record, and determine for itself whether the city's negative declaration had a sufficient factual basis and the city had applied the required scrutiny to those facts.
Short story: it didn't:
In view of the site's significant archaeological history, and the omission of the Stockbridge-Munsee Community as a consulting party in formulating any required data retrieval plan, we find that respondent failed to take the necessary hard look at the significant environmental impact expected from the project by issuing a negative declaration.
Slip op. at 5.
The challengers also brought a spot zoning claim which the court rejected by applying the rational basis/fairly debatable test:
While the project certainly differs from the existing single-family zoning, it does maintain a residential use and would establish a multi-use trail along the shoreline opening public access to the Hudson River. The initial rejection of the proposal by the Planning Commission is relevant to this compatibility question (see Matter of Save Our Forest Action Coalition v City of Kingston, 246 AD2d 217, 221 [3d Dept 1998]), but the record was expanded by the EDP October 2021 report prior to respondent's determination. Under these circumstances, where the question of compatibility is "fairly debatable," we conclude that petitioner did not meet her burden of demonstrating that the zoning amendment constituted illegal spot zoning (Matter of Evans v City of Saratoga Springs, 202 AD3d at 1324 [internal quotation marks and citations omitted]; see Matter of Heights of Lansing, LLC v Village of Lansing, 160 AD3d 1165, 1169 [3d Dept 2018]).
Slip op. at 6.
The presence of the spot zoning claim tells us that this was not, at heart, a true environmental challenge but more NIMBYs who don't want apartments ruining the character of their neighborhood who found a way to dress up those objections in environmental clothing.
Bennett v. Troy City Council, No. CV-23-0709 (N.Y. App. Div. Oct. 24, 2024)
Our outfit (Pacific Legal Foundation) has put out a call for papers. on the topic of land use exactions and housing law. Honorarium included for accepted papers, and there will be a workshop to follow.
Here's the description:
This workshop seeks to build on the result of Sheetz v. County of El Dorado and chart the course of the next steps in exactions/unconstitutional-conditions law. From Nollan v. California Coastal Commission, through Dolan v. City of Tigard and Koontz v. St. John’s River Water Management District, and now including Sheetz, the Supreme Court has looked to the doctrine of exactions and unconstitutional conditions to ensure property rights are protected. In doing so, it has created a constitutional bulwark protecting the right to build housing on private property, an important stick in the property rights bundle.
The Supreme Court’s unanimous decision in Sheetz held that legislatively-imposed development-fee schedules are subject to judicial scrutiny under the doctrine of unconstitutional conditions. This ruling promises to change how local and state governments extract development impact fees from property owners in exchange for building permits; and it may very well do more. This is where you come in.
We seek papers that address the questions arising from the Sheetz ruling. We welcome proposals that look at this issue from legal, economic, political, historical, and related angles, including empirical and nonempirical approaches.
Some possible topics:
- Must a permit condition imposed by a legislative body on a category of properties be tailored with the same degree of specificity as a permit condition that targets a particular single development to be constitutional?
- An article exploring the Sheetz concurrences by Justices Neil Gorsuch and Brett Kavanaugh offering different arguments about the need for legislative exactions to be tailored.
- Beyond the analysis of Koontz, is there a basis in constitutional text, history, and/or case law for holding stand-alone impact fees (as opposed to in-lieu fees) subject to the doctrine of unconstitutional conditions?
- How does the requirement that the government “make some sort of individualized determination that the required dedication is related both in nature and extent to the impact of the proposed development” work when evaluating a generally imposed legislative exaction?
- What does “essential nexus” require to be constitutional?
- Are there economic models that prove or disprove the claim that inclusionary zoning meets the nexus requirement of the Nollan-Dolan-Koontz-Sheetz exactions test?
- Does inclusionary zoning create meaningful workforce and affordable housing?
- Alternatively, does inclusionary zoning have a negative impact on the production of affordable housing? Empirical studies of communities with inclusionary zoning policies in place could yield meaningful information if studied.
- Do all inclusionary-zoning schemes rely upon Kelo v. City of New London, and if they do, then would the right inclusionary-zoning challenge have the promise of overturning Kelo?
- How have states limited local government’s ability to legislatively impose fees on developers, and is there empirical evidence of more and cheaper housing in the states with those limits?
- True or false: The weaker the nexus, the more difficult it will (or should) be for the government to establish proportionality.
- How do impact fees affect housing supply and affordability? What is the tradeoff between property taxes and fees?
- How can YIMBYs incorporate the Sheetz decision into their work and build from it to successfully encourage communities to build more housing?
- Besides inclusionary-zoning fees, are there other government-imposed fees on builders and developers that may violate the nexus prong of the Nollan-Dolan-Koontz-Sheetz test? What are they and why is there a lack of nexus between the fee and the demand?
Fertile grounds for exploration.
Details here, including deadlines. Check it out, and then submit a proposal.
A new student-authored journal article worth reading, Christine Dong, "Vacancy Taxes: A Possible Taking?," 91 U. Chi. L. Rev. 1725 (2024).
Here's the Abstract:
Vacancy taxes are an increasingly popular solution to the paradoxical problem of high housing demand coupled with high vacancy. Cities across the country facing housing shortages have either implemented or are considering adopting vacancy taxes to encourage property owners to rent or sell their property. Soon after San Francisco adopted a vacancy tax with one of the broadest definitions of vacancy, property owners lobbed a constitutional challenge under the Takings Clause, taking advantage of a moment of doctrinal instability.This Comment seeks to make sense of how this and similar potential challenges would fare, given an expanding, property-protective takings doctrine, but a high constitutional tolerance for taxes. Using the San Francisco vacancy tax as a concrete example, this Comment evaluates possible arguments that the tax effects a regulatory or physical taking. It contends that even this stringent vacancy tax would not be a taking under either framework, and highlights elements of a different vacancy tax or regulation that may tip the scales of this analysis. It explores original understandings of land use (and nonuse) regulations to argue that fines levied on the nonproductive use of property are a background principle of property law that generally precludes the conclusion that vacancy taxes are takings.Download the pdf here.
Worth your time to check out.
Lawprof Ilya Somin (GMU Law), Mercatus Center's Charles Gardner,
and lawyer Emily Cruikshank Bayonne (Tubman Realty, LLC)
speaking on "How Policy Changes Can Address Incursions on
Property Rights Where Courts Have Failed to do So."
Jim Burling (PLF) moderating.
Recently, we attended a wonderful symposium co-sponsored by George Mason Law School's Journal of Law, Economics & Policy (congratulations to the student editors who ran the show that day), and our outfit Pacific Legal Foundation. Of course, with the subject being "Imagining the Future of Regulatory Takings," how could we resist attending?
If you missed it, it was not recorded unfortunately. But stay tuned for the full published symposium issue which shall include all of the articles and other pieces the speakers presented that day.
PLF's Ethan Blevins kicked off the day by
urging the speakers and the audience to
"make property rights cool again."
Brian Hodges (PLF) and Amy Boulris (Gunster)
on land use conditions, exactions, and unconstitutional conditions.
Circuit Judge (ret.) (and California Supreme Court Justice),
Hon. Janice Rogers Brown presented the keynote address
and responded to participants' questions.
Lawprof Donald Kochan (GMU), Lawprof Adam MacLeod (St. Mary's),
and Sam Spiegelman (Citizen Action Def. Fund)
started the day off with "Fixing the Text -
How We Can Better Approach Regulatory Takings."
Moderator: Judge Andrew Brasher (CA11).
The day's final program was "Takings on the Ground - Applying the
Takings Tests in Challenging Scenarios" with
lawyer William Shadbolt (Washington Bus. Properties Ass'n),
Lawprof Eric Claeys (GMU), and Michael Berger (Manatt) (aka Big Brother).
Moderator: Judge Ryan Holte (Court of Federal Claims).
Hawaii lawyers (and those barred in the 808), take note: On October 21, 2024, the Hawaii State Bar Association will hold its annual Convention, and as always there's a full lineup of CLE programs so you can meet your MCLE requirements.
Thanks to the Real Property & Financial Services Section, there's a significant dirt law component. First, there's "Property Rights and Regulatory Takings" the program on which we are presenting along with Dwight Merriam and lawprof Shelley Saxer. Here's the official description:
This course will provide a survey of property rights and regulatory takings with an emphasis on recent decisions from the United States Supreme Court. Panelists include distinguished faculty and practitioners that will address impact fees, development rights, taking claims, rent controls, and other current issues.
Following us will be a program on "Land Use Conditions" with Cal Chipchase, Brad Saito, and a lawyer from the State of Hawaii Attorney General's office:
This course will provide a survey of the regulatory systems that govern land use in the State of Hawaii. Panelists will discuss regulatory frameworks at the state and city level together with recent legal developments from the Hawaii Supreme Court
You can attend in-person or remotely. This page has the registration information as well as more details and bios of the speakers.
As Jack Lord used to say: "Be here, Aloha."
Congratulations to our Pacific Legal Foundation colleague Brian Hodges for his article "Build-to-Rent Homes: A Promising Solution to Chronic Housing Shortages" being awarded the 2024 Jared Shales Prize by the Counselors of Real Estate (CRE).
From the Introduction:
When homeownership is increasingly out of reach for many, build-to-rent (BTR) housing offers a desirable alternative to traditional homeownership. First, BTRs provide flexibility that traditional homeownership cannot match. By renting rather than owning, tenants are free to move around the city or the country as their jobs, family situations or lifestyle decisions dictate. They can enjoy the benefits of urban or suburban living without being tied down to a particular location or property. Second, BTRs are often built to higher standards than traditional rental properties, with modern amenities and communal spaces that foster a community and belonging. These properties are often professionally managed, meaning that tenants can enjoy the benefits of high-quality maintenance and management without the stress and expense of managing a property themselves. And third, BTRs offer a high-quality home without homeownership mortgage and maintenance obligations.Where available, BTRs are quickly becoming a preferred option for many young families, empty-nesters, and itinerant retirees. Yet several local governments, especially in Georgia, have enacted laws banning BTR developments, mainly in response to misplaced NIMBY — not in my backyard — resistance to living alongside renters.
Read the entire piece here, or download the pdf.
Here's the full report from David Morrill about the 21st Brigham-Kanner Property Rights Conference earlier this month. Pictured above: Professor James Stern (responsible for the overall planning of the B-K Conference), this year's Prizewinner Professor Lee Fennell (U. Chicago Law School), and Andrew Brigham, St. Augustine, Florida - property rights lawyer extraordinaire).
Here are what Prof. Fennell had to say:
Upon accepting the Property Rights Prize, Fennell said that spending time in myriad places through the years piqued her interest in how property can work better for complex systems like large and interconnected cities and ecosystems. In the process, she tried to learn more about what sorts of interconnectedness matter most for humans and other animals, and what forms of adaptability and property forms can best serve needs going forward.“We can’t make any headway on property as an institutional response to interdependent systems without practicing interdependence ourselves, getting together and sharing knowledge and ideas,” Fennell said. “And I can’t imagine any better place to do that than at this conference, which throws together a bunch of people who can’t get property out of their systems.”
Fennell said she was “incredibly honored, amazed, and delighted” to be receiving the Brigham-Kanner Prize. “It’s an astonishing privilege to be joining the ranks of all of the esteemed past winners and all of the esteemed future winners of this wonderful award, and I am so grateful to be celebrating with all of you in this incredibly old room.”
The week also included several student-oriented programs, including visits to our two classes (Land Use, and Eminent Domain and Property Rights) by property law practitioners from across the country, to discuss a variety of topics with students, including careers in property law, pathways to practice, and public service vs private practice.
Kady Valois (Pacific Legal Foundation, FL),
Randy Smith (Smith & Fawer, LA),
and Elizabeth Sockwell (W&M Law JD 2023)
(Miller Miller & Canby, MD) discuss "Pathways to Practice"
Jeremy Hopkins (Cranfill Sumner, NC) speaks to our Eminent Domain
class about how and why he chose property rights lawyering
as a career, and how students can enter that profession
if they have similar desires.
Steve Davis, who is now a public-interest lawyer (PLF),
but who also has a varied background in public service (AUSA),
private practice (True North Law), and as legislative counsel,
speaks about the differences between these pathways in the profession.
Xijia Yuan (Troutman Pepper, VA) (and a former student of ours)
discussed with our Land Use class the excitement of
being a transactional real estate attorney. There are multiple
paths in Dirt Law, and lawyers are not limited to courtroom advocacy.
Heather Cunningham (Owners' Counsel of America, ID), speaks about
her time in a smaller, rural private firm, and her current role
as Executive Director of a non-profit.
Andrew Brigham (Brigham Property Rights Law Firm, FL) chats with
Land Use students about ways to enter the Dirt Law Bar, and why he
loves a property law practice.
We're thankful that real, live, practicing lawyers (including two W&M Law
alums (Brett Tensfeld, JD 2016), and Xijia Yuan (JD 2022) took the time
to come our classes to talk about what its really like in the Dirt Law trenches.
Yes, the mysterious ducks remain -- and seem to have multiplied.
It's that time of the year again. Fall's-a-coming, and that means that starting today, we're back at the William and Mary Law School in Williamsburg, Virginia to lead two courses:
- Eminent Domain and Property Rights (W&M is one of the few law schools in the country that offer a course in eminent domain, just compensation, and takings)
- Land Use Controls (an especially hot topic at the moment)
The registration numbers for both courses are good (really good), and two full classrooms of Dirt Law goodness tells us something about this area of law -- it's really interesting, and a good place to make your way in the practice, and law students recognize that.
We don't use $400 casebooks in either class.
Time to jack back into the (takings and land use) Matrix.
Come join us in Williamsburg, Virginia at the William and Mary Law School for the 21st edition of the Brigham-Kanner Property Rights Conference. The Conference is unique, because its express purpose is to bring property legal scholars and property law practitioners together to discuss, what else, property and property rights law.
Yes, there's a healthy dose of theory and academics, but also the real-world perspectives of practicing lawyers who bring the cases that put theory into practice. (New to this event and want a preview? Here's our write-up of the 2024 Conference.)
More details here. Register here.
The days prior to the Conference launch on Thursday All that week, we're putting on student-oriented programming.in conjunction with the WM Law Career Services Office. Sessions on "Careers in Dirt Law," "Land Use and Real Estate Law in Practice," and "Comparative Property Rights," for example, presented by experienced practitioners including W&M Law alums who now are lawyers in the field. Thursday is the Wren Building dinner at which lawprof Lee Fennell will join the pantheon of past winners, and will be awarded this year's Brigham-Kanner Property Rights Prize.
Friday brings us to the academic portion, where five panels of national expert legal scholars and practitioners. Here's the agenda:
- Restructuring Property: A Tribute to Lee Fennell
- Background Principles, General Law, & Constitutional Property
- Roundtable: Unfinished Business & Emerging Issues
- Property Rights and The Housing Crisis
- Government Trespass: The Open Fields Doctrine Turns 100
Register now and plan on joining us!
If you are in the California Southland (or plan to be in the next week), please be sure to reserve on your calendar Tuesday, August 13, 2024, to join us in-person for the launch of our colleague Jim Burling's forthcoming book, "Nowhere to Live: The Hidden Story of America's Housing Crisis."
Here's a blurb about the book, which is available for preorder on Amazon:
A century of policy mistakes ruined America’s cities and created an unprecedented housing crisis.
For many families, homelessness is no longer someone else’s problem. It is right around the corner, a real threat in their own immediate future. Our housing crisis is the result of a long history of government policies, court cases, and political manipulation. While these disparate causes make up a tangled web, they have one surprising root: the attack on private property rights. For more than a century, government policies and court decisions have attacked, undermined, and eroded private property rights. Whether it be exclusionary zoning, eminent domain abuse, rent control, or excessive environmental regulations, the cumulative impact of these assaults on private property is that it’s become increasingly difficult—or even impossible—to build adequate housing supplies to meet market demands. We are fast approaching a time when millions of typical Americans will, quite literally, have nowhere to live.
Nowhere to Live: The Hidden Story of America’s Housing Crisis, takes readers through the history of how we got here. With stories going back to the Civil War, the early twentieth century, and the ill-fated “urban renewal” movement of the 1950s, Nowhere to Live reveals how the government layered mistake upon mistake to create the current crisis. It also provides a way out: not by government fiat, but through the restoration of private property rights.
Check this out: our Pacific Legal Foundation colleagues (Brian Hodges and Deborah La Fetra we on our Sheetz SCOTUS team), have posted a new scholarly piece on SSRN, "Sheetz v. County of El Dorado: Legislatures Must Comply with the Takings Clause."
Here's the Abstract:
For more than 30 years, the Supreme Court has recognized that building permit conditions requiring a dedication of property to the public implicate the Fifth Amendment’s Takings Clause and are therefore subject to the unconstitutional conditions doctrine as set out by Nollan v. California Coastal Commission, 483 U.S. 825 (1987), and Dolan v. City of Tigard, 512 U.S. 374 (1994). But for nearly as long as the Nollan/Dolan doctrine has been in place, state and lower federal courts have divided on the foundational question of whether the doctrine applies equally to all branches of government, or if it applies only to administrative exactions imposed by agencies on an ad hoc basis. See, e.g., California Bldg. Indus. Ass’n v. City of San Jose, 136 S. Ct. 928, 929 (2016) (Thomas, J., concurring in denial of certiorari) (acknowledging a decades-long split of authority); Parking Ass'n of Georgia, Inc. v. City of Atlanta, 515 U.S. 1116, 1117-18 (1995) (recognizing that the split of authority raises an important question of constitutional law).
The United States Supreme Court’s unanimous decision in in Sheetz v. County of El Dorado settled this split of authority by ruling that the unconstitutional conditions doctrine applies to all branches of government, including the legislature. 601 U.S. 267, 280 (2024). Although the holding drew support from the full Court, the opinion drew three concurring opinions commenting on additional questions may need to be determined on remand or in future litigation. Id. at 280-84.
This article reviews the state of the law regarding Nollan/Dolan’s special application of the doctrine of unconstitutional conditions both before and after the Sheetz case and discusses the questions posed by the concurring opinions—i.e., whether an impact fee is an exaction subject to Nollan and Dolan and whether class-based exactions should be held subject to the same heightened scrutiny, “essential nexus” and “rough proportionality” tests as all other exactions. The article then discusses the decision’s implications on other emerging takings issues, including whether sovereign immunity can bar property owners’ recovery of just compensation and the cognizability of judicial takings claims.
Highly recommended.
Disclosure: this one is one of ours, so we're not going to do a deep dive or do much commentary (must resist!).
Yesterday, the California Supreme Court granted a Los Osos property owner's petition, and agreed to review an (unpublished) Court of Appeal opinion which held that the California Coastal Commission has the authority to appeal (to itself!) the County of San Luis Obispo's decision to grant Shear a Coastal Development Permit to build a handful of homes in the coastal zone.
The County has adopted a Local Coastal Program ordinance regulating development in the coastal zone in the County. Under the California Coastal Act, a municipal government adopting a LCP delegates to the municipality to authority to make these type of land-use permitting decisions, with a very limited window for the Commission to inject itself. The point of the Coastal Act is to maintain a high degree of local control if a municipality has taken the effort to adopt an LCP to reflect its understanding of its obligation to protect public coastal resources when it is making land-use decisions.
In 2003, Shear began the process of building homes on its eight lots zoned by the County for residential development. In 2004, the County approved Shear building eight homes in two stages. In 2017, after Shear completed the first four homes, it sought the County’s approval to complete the balance. After consideration of Shear’s plans under the LCP, the County granted a Coastal Development Permit.
That should have been the end of it. But after the County’s approval, the Commission appealed the County's decision. And to whom did the Commission appeal? In one of the weirdest procedures we've ever heard of, California law allows two members of the Commission to institute an appeal these kind of things...to the very Commission on which they serve. Seems fair (must resist!). Despite the Coastal Act delegating exclusive land use decision-making to local governments that have adopted an LCP, the Commission's appeal claimed that it has the power to overrule all local permitting decisions.
The lower courts agreed. With the County's support, Shear sought discretionary review, and the California Supreme Court said yes.
This case is important for a few reasons beyond the legal questions presented. First, it is the first case in a decade where the California Supreme Court has agreed to review a challenge to the Commission's claimed coastal fiefdom, which appears nearly armor-clad in California's courts (although the Commission's excesses don't play all that well when courts beyond California bother to look).
Second, not only is this a home rule issue about the Commission's lack of respect for local LCP municipalities, but one where coastal property owners need to understand clearly who they need to deal with when seeing government approvals to make presumptively reasonable use of their land (remember, this property is zoned for residential uses); the Commission's position that it is the final czar on all this stuff often puts landowners in the middle of these type of intra-government jurisdiction fights where the only loser at the end is the landowner (flashback to two wolves and a lamb voting on what's for dinner).
Finally and maybe most importantly, this case brings into sharp focus the ongoing public realization that the Commission has been a substantial impediment to coastal communities carrying their fair share of addressing the housing crisis in California. For example:
Will the California Supreme Court bring the Commission back in conformity with the law?
Congratulations to our colleague Jeremy Talcott (who chairs our Coastal Initiative) for the petition grant. Stay tuned here for more. Or follow along on your own on the court's docket.
Petition for Review, Shear Dev. Co., LLC v. Cal. Coastal Comm'n, No. S284378 (Cal. Apr. 2, 2024)
Readers know that from time-to-time, we like to cover the going's on in the courts of our neighbors to the north. See here and here, for example. Although property rights are not a constitutional principle in Canada (the people did not include property as a fundamental constitutional right when the Constitution was amended last), there's a lot for U.S. lawyers to learn from the way Canada law treats those from whom the government must expropriate property (either directly, or in what they call "de facto" or constructive takings (i.e., regulatory takings and inverse condemnation). In some ways, their system treats property owners slightly better than our constitutional system.
Well, here's the latest in a case we've been following.
In St. John's (City) v. Lynch, 2024 SCC 17 (May 10, 2024), the Supreme Court held that compensation in a de facto taking is calculated by excluding the effects of the challenged regulation. What they call up there the "Pointe Gourde principle" -- the idea in expropriation valuation that the effects of "the scheme" should not influence the calculation of compensation -- what we call "the scope of the project" rule, or even the "before and after" rule.
Rather than continue to delve into areas well beyond our expertise and understanding, we're going to refer you to a blog post by our Toronto friend and colleague Shane Rayman and his firm colleagues Conner Harris and Leah Cummings. They filed a friend-of-the-court factum on behalf of the Canadian Home Builders Association. The Court adopted much of their reasoning, by the way.
In "Supreme Court of Canada Clarifies Law of Constructive Takings," they write:
The Court confirmed that the Pointe Gourde principle, also known as “screening out the scheme”, applies to constructive takings in the same way as it does to statutory or de jure expropriations. The Pointe Gourde principle is a common law rule invoked as part of the determination of market value when land is expropriated. The principle seeks to remove extrinsic influences associated with the taking, ignoring both increases and decreases in value caused by the expropriation scheme to avoid placing an economic burden on the expropriated owner or granting to them a windfall gain (para 37). The Court clarified the application of the Pointe Gourde principle and confirmed that land-use regulations undertaken “with a view to the expropriation” must be screened out when determining the market value of expropriated land. This is the case regardless of whether the taking is de jure or constructive.
Check both the opinion and their post out.
Many good lessons await for U.S. property lawyers.
St. John's (City) v. Lynch, 2024 SCC 17 (Supreme Court of Canada, May 10, 2024)
It was on this day in 1928 when the U.S. Supreme Court issued its second most famous decision about zoning, Nectow v. City of Cambridge., 277 U.S. 183 (1928).
We say "second" because everyone knows that the first is the Court's decision issued just two years earlier which generally upheld comprehensive use, height, and density regulations as a valid exercise of the government's police power to regulate property uses to further the public health, safety, welfare, or morals. See Village of Euclid v. Ambler Realty Co., 272 U S. 365 (1926).
Partly because of the hype surrounding Euclid and the broad governmental embrace of exclusionary land use policies that Euclid unleashed, we think that Nectow has not received the attention it is due. After all, it should be seen as the companion case to Euclid: it was authored by same Justice who wrote Euclid (Justice Sutherland), and there's a straight line between all three parts of the Court's 1920's land use trilogy (Mahon, Euclid, and Nectow), two of which are strong reaffirmations of property rights.
But today, Nectow is often dismissed as a byproduct of an earlier time, Lochnering of the substantive due process rational basis test, or even just too archaic to pay attention to.
But unlike Euclid, which was a facial challenge to zoning generally, Nectow was an as-applied challenge, asserting that placing some of Nectow's land in a residential zone -- and thereby causing a contract for sale of the land for non-residential uses to be cancelled -- was arbitrary and capricious. A master appointed to find facts determined the residential designation was out of sync with the mixed uses in the surrounding area. But the Supreme Judicial Court of Massachusetts took Euclid and Justice Sutherland at their word and concluded "who are we, mere judges, to question what Cambridge's zoning officials say is in the public interest?" (We're paraphrasing of course, but that was the vibe.)
But Justice Sutherland was all "hang on, pay attention to what we said in Euclid; that wasn't us telling courts to be poodles." (Paraphrasing, again):
Nevertheless, if that were all, we should not be warranted in substituting our judgment for that of the zoning authorities primarily charged with the duty and responsibility of determining the question. Zahn v. Board of Public Works, 274 U. S. 325, 328, 47 S. Ct. 594, 71 L. Ed. 1074, and cases cited. But that is not all. The governmental power to interfere by zoning regulations with the general rights of the land owner by restricting the character of his use, is not unlimited, and, other questions aside, such restriction cannot be imposed if it does not bear a substantial relation to the public health, safety, morals, or general welfare. Euclid v. Ambler Co., supra, p. 395 (47 S. Ct. 114). Here, the express finding of the master, already quoted, confirmed by the court below, is that the health, safety, convenience, and general welfare of the inhabitants of the part of the city affected will not be promoted by the disposition made by the ordinance of the locus in question. This finding of the master, after a hearing and an inspection of the entire area affected, supported, as we think it is, by other findings of fact, is determinative of the case. That the invasion of the property of plaintiff in error was serious and highly injurious is clearly established; and, since a necessary basis for the support of that invasion is wanting, the action of the zoning authorities comes within the ban of the Fourteenth Amendment and cannot be sustained.
So yes, zoning as a concept is within the police power, but we must keep at the forefront the core principle that property rights are to be respected. Facts, and not some vague incantation of the rational basis test should serve as the standard
As James Metzenbaum, the lawyer who represented the Village of Euclid later wrote:
It is essential that there be kept in mind the ever-true doctrine that the owner of property doas have some inalienable rights. A corollary of this doctrine is that it is the duty of the lawyer to fight for the preservation of such rights and not to permit overly zealous zoning experts who draft ordinances nor obliging Councils who pass them, to promulgate legislation which is unreasonable or which unlawfully tends toward the divestment of the property owners' constitutional rights.
See James Metzenbaum, The History of Zoning - A Thumbnail Sketch, 9 W. Res. L. Rev. 36, 42 (1957).
So here's how we see it: go ahead and zone, government. But it's gotta make actual sense (Nectow). And even if it does makes sense but nonetheless deprives the property owner of essential rights, you have to pay for the privilege (Mahon).
Oh no, you say, if we revive Nectow's recognition of restraints on the police power what shall become of zoning? It doesn't mean the end, only a reasonable limits, bounded by property rights. You know what term is in the Constitution? "Private property." And what term isn't? "Police power." Sure, the term, like element domain, is inherent, we suppose. But aren't we more concerned with protecting an individual's freedom to choose how to use her property, unless there's some articulable harm that can be shown, and not presumed?
And rest easy: zoning isn't the be-all-end-all of municipal land use regulation. Especially when properly constrained by the Constitution. Professor Siegan's seminal book explains why.
So Happy Birthday, Nectow. Ninety-six years young and looking better each day!
There are some rewards for working late in the 808
Yesterday was the last day of instruction for the Spring 2024 semester at the University of Hawaii Law School. Did these last few months ever go by fast.
A big thank you to Professor Mark M. Murakami, with whom I guest-lectured at the Old School (both of us earned our JD's at the Law School) over the semester, on such topics as Euclid, vested rights and development agreements, and of course limitations on the police power such as takings.
Although our students have another couple of weeks to finish up with their final papers, we can say with certainty that the future of Hawaii land use law is in good hands. We had some very intriguing and educational discussions over the past few months.
Old School chalkboards remain in some of the classrooms.
(A plus.)
Speaking of Old School, the original signage from
the Law School's original location is up in the front office.
Flora abounds on the U. Hawaii campus, as you might expect.
Not a bad place to learn the law. Or to teach the law.
We say a fond "aloha" to our new colleagues
Be sure to join our Pacific Legal Foundation colleagues Brian Hodges and Larry Salzman, and Paul Beard (arguing counsel) and Chance Weldon (Texas Public Policy Foundation) tomorrow, Thursday, April 25, 2024, at 4pm ET for a free webinar on Sheetz v. El Dorado County, the Supreme Court's recent decision holding that all permit conditions are subject to the nexus and proportionality tests of Nollan and Dolan.
Here's the description:
Pacific Legal Foundation just won its 18th Supreme Court victory! Join us for a virtual discussion to learn more about the case, Sheetz v. County of El Dorado, and how it helps secure property rights (and lower housing costs) for everyone.Register here (free)!When George Sheetz wanted to build a modest manufactured home on the property he bought in El Dorado Country, California, the government told him he was going to have to pay a “traffic impact fee” of more than $23,000 in exchange for a building permit. Even worse, the fee would go toward projects that were not tied to the actual impact of George’s home.
George challenged the fee as an unconstitutional abuse of the permitting process. On April 12, the Supreme Court sided with George in a unanimous decision. At this post-victory discussion, attendees will hear from Paul Beard, the former PLF attorney now at Pierson Ferdinand who argued George’s case before the Court. You’ll also hear from PLF attorney Brian Hodges, who worked on George’s case, and Texas Public Policy Foundation’s Chance Weldon as they break down the Sheetz decision and its significance for property rights and housing costs.
Our thoughts on the decision here ("Sheetz pt. I - "Radical Agreement" At SCOTUS: "Your Money Or Your Rights" Isn't OK Just Because A Legislature Does It").
Note: this is the second of our posts on the recent Supreme Court opinions in Sheetz v. County of El Dorado, the case in which the unanimous Court held that exactions imposed by legislation are not exempt from the essential nexus (Nollan) and rough proportionality (Dolan) standards. Here's our first post, which covers the case and the main opinion ("Sheetz pt. I - 'Radical Agreement' At SCOTUS: 'Your Money Or Your Rights' Isn't OK Just Because A Legislature Does It").
[Disclosure: this case is one of ours.]
In this post, we cover the three very short concurring opinions.
* * * *
The Court took no position on whether the County's traffic impact fee has an essential nexus to the Sheetz development, or whether $23 grand is roughly proportional to any traffic his proposal might be responsible for. For this and more, the Court remanded the case. Notably, the Court also did not decide whether "a permit condition imposed on a class of properties must be tailored with the same degree of specificity as a permit condition that targets a particular development." Slip op. at 9-10.
Now that the Court has expressed unanimity on the Question Presented in Sheetz (does the government have the unfettered ability to demand "the goodies" simply because a property owner needs the government's approval to make use if his or her land? No.), let's take a look at the three concurring opinions.
Sotomayor & Jackson: Hands Off Taxes!
Justice Sotomayor joined by Justice Jackson, wrote separately to restate their agreement with the narrow holding (answering the Question Presented and only the Question Presented) that legislatively-imposed exactions are subject to Nollan and Dolan.
But they noted that this case assumed the "predicate" inquiry that "government could not have constitutionally ordered the person asserting the claim to do what it attempted to pressure that person into doing." Concurring op. at 1 (citing Koontz). thus, "[t]he question presented in this case did not include that antecedent question: whether the traffic impact fee would be a compensable taking if imposed outside the permitting context[.]" Concurring op. at 2.
What we think they are getting at is that straight-up government requirements that some, or all, persons pay money for something (also known as taxes or sometimes fees), are not subject to nexus or proportionality (or at least not in the same way as property exactions are). Fees and taxes may be subject to other limitations, but they are not, generally speaking, evaluated as "takings."
It probably shouldn't be surprising that Justice Sotomayor concurred on this basis, since during oral arguments, she seemed particularly concerned with the line between exactions, fees, and taxes.
Gorsuch: Broadly-applicable exactions are no different than parcel-specific exactions
Justice Gorsuch preemptively addressed a question that was bandied about at oral arguments, but that the entire Court determined was not presented by the case (so the majority opinion avoided doing more than mentioning it):
The Court notes but does not address a separate question: whether the Nollan/Dolan test operates differently when an alleged taking affects a "class of properties" rather than "a particular development."Concurring op. at 1. He answered his own question: "But how could it?"
He goes on to note that "[n]othing about" the Nollan/Dolan test "depends on whether the government imposes the challenged condition on a large class of properties or a single tract or something in between." Concurring op. at 1-2.
Short story: there's no reason to not apply the Nollan/Dolan tests to "class" exactions.
Kavanaugh, Kagan, & Jackson: class exactions subject to different nexus and proportionality tests
Three Justices expressed a slightly different view, noting that "today's decision does not address or prohibit the common government practice of imposing permit conditions, such as impact fees, on new development through reasonable formulas or scheduled that assess the impact of classes of development rather than the impact of specific parcels of property." Concurring op. at 1. The three wrote to note that these type of exactions may be subject to different standards, and that the Court did not address or decide that issue. Big hint for those of us who are asking "what might be next?"
Tropebusters!
What to make of Sheetz? It does resolve, fully and finally, the longstanding question of whether legislatively-imposed exactions are just plain old land use regulations subject to only the rational basis test. Answer: no, they aren't. Does Sheetz leave open some follow-on questions? It seems so to some Justices, at least.
We do know that several longstanding tropes of land use law generally -- and exactions doctrine specifically -- seem to be gone, while a couple of others may have continuing life:
- Land vs. money? Demanding money or demanding land...all the same thing.
- Labels not controlling. Relatedly, labeling a condition as an "exaction" or "in lieu" fee doesn't matter. Or "legislative" vs "administrative." The opinion refers to the County's traffic impact fee as a "permit condition," an "impact fee." What counts is what the condition does, not what someone calls it.
- Ministerial vs discretionary. This longstanding distinction in land use and administrative law did not seem to carry a lot of analytical weight with the Court. The opinion referred to "permit conditions," here a condition on a presumably ministerial building permit. We always thought that conditions can only be placed on discretionary approvals, not on things like building permits that are "must issue" when the application conforms to the technical requirements of the governing code.
- Judicial Takings. Fans of the doctrine take note: all nine Justices just signed on to the notion that "there is 'no textual justification for saying that the existence or the scope of a State's power to expropriate private property without just compensation varies according to the branch of government effecting the expropriation." Slip op. at 7 (quoting Stop the Beach Renourishment). Yes, the STB plurality opinion just garnered all nine Justices. Justice Scalia lives; how much wood could a woodchuck chuck!
Sheetz v. County of El Dorado, No. 22-2074 (U.S. Apr. 12, 2024)
Guess where we stopped for coffee this morning?
(A reminder: this case has nothing to do
with the convenience store.)
Note: this is the first of two posts on the recent Supreme Court opinions in Sheetz v. County of El Dorado, the case in which the unanimous Court held that exactions imposed by legislation are not exempt from the essential nexus (Nollan) and rough proportionality (Dolan) standards. Here's the second post, which covers the concurring opinions.
[Disclosure: this case is one of ours.]
In this post, we cover the background, and the Court's unanimous opinion.
* * * *
Does the government have the unfettered ability to demand "the goodies" (as one municipality's chief land use planner famously called them in the 1980s), simply because a property owner needs the government's approval to make use if his or her land?
That's the issue the Supreme Court agreed to resolve (or more accurately, clarify) in in Sheetz v. County of El Dorado, No. 22-1074 (Apr. 12, 2024).
Confessing Judgment: Game over man, game over!
After oral arguments a bit over three months ago, the Court's unanimous opinion by Justice Barrett issued last week wasn't too hard to predict. Especially because during the arguments the advocate for the County expressly acknowledged that there was "radical agreement" on the Question Presented in the case:
The question presented is whether a permit exaction is exempt from unconstitutional-conditions doctrine as applied in Nollan and Dolan simply because it is authorized by legislation.
The unanimity of the resulting decision reflects that with the County's acknowledgement on the record, it was all over but the shouting: the Court, as predicted, held that a blanket exaction (in this case a traffic impact fee) isn't exempt from the "essential nexus" and "rough proportionality" standards that have long governed exactions imposed ad hoc. See slip op. at 1 ("The Takings Clause does not distinguish between legislative and administrative permit conditions.").
Which leads to an obvious question: if the County was going to confess judgment by agreeing that legislative exactions are not categorically exempt -- a conclusion it contested in the lower courts -- why did it let the case get to decision stage at the Supreme Court? We're not at all sure. [Disclosure: this case is one of ours.]
Anyway, with that question asked (but not answered), let's see what the entire Court thought about this, and why.
Laying the Foundation: Nollan, Dolan, (and Koontz)
In 1987, the Court held that before the government can force a property owner into the choice between giving up something in return for government land use approvals, there must be an "essential nexus" between the demand and the owner's proposed use of land. Nollan v. California Coastal Comm'n, 483 U.S. 825 (1987). And in 1994, the Court refined the requirement by recognizing the need for a "rough proportionality" between the burdens the owner's proposed use is predicted to put on the public, and the magnitude of the government's demand. Dolan v. City of Tigard, 512 U.S. 374 (1994). In Koontz v. St Johns River Water Management Dist., 570 U.S. 595 (2013), the Court further refined the doctrine by holding that demands for money are subject to the nexus and proportionality requirements as much as demands for land.
The close nexus and rough proportionality requirements were designed to check the government's temptation to use the land use approval process as an opportunity to leverage its power to regulate in furtherance of the public health, safety, welfare, or morals to exact land, money, or other property out of the applicant.
These requirements were motivated primarily by two concerns. First, if the government wants land or other property from an owner, it has the means to do so -- eminent domain, which comes with the requirement to provide the property owner just compensation; it should not use the land use regulatory process to get by regulation for free what it is required to pay for by a compensated taking. Second, there is something unseemly about the government demanding that an owner give up one of her constitutional rights (the right to compensation for a taking of property) as a condition of exercising another constitutional right (the right to make reasonable use of land). The government has no business forcing people into these kind of "money or your rights" choices.
But many lower courts refused to understand how broadly the close nexus and rough proportionality requirements applied, and for the longest time, they were split. Some held that Nollan and Dolan's requirements applied any time the government conditioned land use permits on either a surrender of land or money. Others, like California, held that unless the government was demanding the donation of land, and did so on a case-by-case basis as an exercise of discretion and not as a product of a legislative-imposed ministerial requirement, that nexus and proportionality were not required.
With a longstanding lower court split, the stage was set for Supreme Court review.
California Courts: We Don't Ask Whether The County's $23k Traffic Impact Fee Is Related, or Proportional, to Sheetz's Proposed Home
The facts of the Sheetz case are straightforward. George and Mrs. Sheetz, property owners in unincorporated rural El Dorado County, California, sought a building permit to "build a modest prefabricated house on the parcel, with plans to raise their grandson there" on their residental-zoned land. Slip op. at 3. The County was okay with issuing the permit, but only if Sheetz first paid the County's $23,420 traffic impact fee.
The impact fee was determined by the preset fee schedule in the County's General Plan, and not on a determination that the Sheetz home would increase the County's traffic burdens. California law treats the County's General Plan as legislation. In recent years, the area has seen dramatic growth, with related demands on infrastructure, the County uses the traffic fees to fund improvements to county roads. The rates for the traffic impact fees are fixed, and set by the schedule:
The fee amount is determined by a rate schedule, which takes into account the type of development (commercial, residential, and so on) and its location within the County. The amount is not based on "the cost specifically attributable to the particular project on which the fee is imposed."Slip op. at 2 (citation omitted).
The General Plan prohibited the County from issuing building permits without collecting the fee, so "Sheetz paid the fee under protest and obtained the permit." Slip op. at 3. He filed suit in state court for a refund, arguing inter alia, that the County's conditioning the issuance of a building permit was an unlawful exaction of money, because the County had not demonstrated either a close nexus between the requested building permit for a "modest prefabricated house" and any additional traffic burdens this use of the property created in the County, or a rough proportionality between the scheduled amount of $23k and those same supposed traffic burdens.
The trial court prohibited Sheetz from asserting the claim. Under California law, the Nollan/Dolan requirements apply only "to permit conditions imposed 'on an individual and discretionary basis[,]'" and do not allow for any kind of judicial inquiry into nexus or proportionality when the condition is imposed on every applicant by broadly-applicable legislation. Slip op. at 3 (citation omitted).
The rule in California (and some other other jurisdictions) is that broadly-applicable rules like this, imposed ministerially on everyone and not individually, are just plain-old land use legislation, to be examined by courts (like zoning regulations) only under the rational basis test. And you know what that means: nearly everything passes muster.
As noted above, other courts went a different way. North Carolina, for example. See slip op. at 4 & n.3, where the opinion lays out a part of the lower court split of authority.
A Regulatory Takings Primer: the Right to Just Compensation and the Police Power "seem more like in-laws than soulmates"
The next portion of the opinion is a worthy read if you want to get an overall flavor of what all nine Justices of the Court think about regulatory takings today. Yes, the theory has been recognized as a federal constitutional doctrine for more than a century, but any insights we get into how the current Justices view the doctrine are going to be helpful. And there are a lot of clues embedded in Justice Barrett's opinion:
- Public Use. The opinion starts off with the idea that "[w]hen the government want to take private property to build roads, courthouses, or other public projects, it must compensate the owner at fair market value." Slip op. at 4. Focus on the examples the opinion lays out. All are "classic" public uses, and the opinion conspicuously avoids citing Kelo, its most recent eminent domain decision, where the project involved taking Kelo's property and turning it over to another private owner. So maybe that omission is a hint that Court would be open to revisiting Kelo's very reviled opinion.
- Takings law spreads the cost. The opinion next lays out the Armstrong rationale: the point of the Takings Clause and the requirement that government "pay for what it takes," is to avoid focusing the cost of public burdens on individual property owners. Id. Good to know that all nine Justices understand the big vibe of both eminent domain and de facto takings.
- De facto takings by over-regulation. Next, the opinion highlights the essential tension behind the regulatory takings doctrine and straight up eminent domain (what the Chief Justice calls an "upfront taking;" see PennEast Pipeline Co. v. New Jersey, 594 U.S. ___ (2021)). The essential question is when does an exercise of regulatory power "go too far" such that it has the same effects on the property owner's rights as an exercise of eminent domain?
- Per se regulatory takings. The Sheetz opinion noted the government's "substantial authority to regulate land use" on one hand, and on the other the various rules the Court has established for when that authority goes too far and triggers the obligation to pay compensation. Slip op. at 4-5. Things like when a regulation physically appropriates property, or "otherwise interfere[s]" with the owner's right to exclude others = easy analysis, compensation always required.
- Euclid and land-use regulations. But "different rules apply" when government "merely restrict[s] how land is used." Slip op. at 5.
- Substantially advance? You takings mavens can be forgiven for a bit of an inside baseball chuckle for how the opinion lays out those different rules. The Court described the regulatory takings test thusly: "'[T]he Fifth Amendment is violated when land-use regulation does not substantially advance legitimate state interests or denies an owner economically viable use of his land[.]"” Id. (quoting Lucas v. South Carolina Coastal Council, 505 U. S. 1003, 1016 (1992) (internal quotation marks omitted).
- Whoa! Has Agins been resurrected? (Recall that in Lingle, the unanimous Court rejected Agins's "substantially advance" standard as a regulatory takings test.) No, we doubt that this was intended to bring back Agins. But this also doesn't seem to be merely a (mis)citation to the takings test as set out in Lucas (1994) before the Court clarified it in Lingle (2005).
- Character of the government action. Instead, we're viewing the Court's recitation of the regulatory takings test that "[a] use restriction that is 'reasonably necessary to the effectuation of a substantial government purpose' is not a taking unless it saps too much of the property's value or frustrates the owner's investment-backed expectations[,]" as meaning that Penn Central's "character of the government action" factor requires that regulation be reasonably necessary for the effectuation of a substantial government purpose." That isn't the rational basis test that many courts currently apply when asking about the character of the government action, is it? If so, this is a major clarification that deserves more attention.
- Double whoa! Justice Barrett also treats Penn Central as a disjunctive test ("or frustrates the owner's investment-backed expectations"). That's a correct view of the Penn Central test we think, but many (many) lower courts have not received the message and treat it as a "one strike and you're out" (conjunctive) rule and not a series of factors to be weighed by a jury -- where a single factor could be dispositive, but also where failing to convince on a single factor is not an automatic loss. See Hodel v. Irving, 481 U.S. 704 (717) (1987) (proof of a single Penn Central factor alone could be sufficient to show a taking; in the case, "the character of the Government regulation ... is extraordinary").
- Very cheeky. The money quote in this part of the opinion might just be Justice Barrett's assertion that the relationship between the police power to regulate the use of property, and private property owners' right to just compensation is "more like in-laws than soulmates." Slip op. at 4. Probably not BFFs, but more like frenemies, Your Honor? We recommend lawprof Josh Blackman's take on this turn of the phrase ("Justice Barrett on the Takings Clause and the Police Power").
On To Exactions...Err "Permit Conditions"
The special application of the takings rules to permit conditions is "more complicated."
The opinion starts off with the premise that if the government can deny a building permit for some "'legitimate police-power purpose,' then it can also place conditions on [a grant of] the permit that serve the same ends." Slip op. at 5 (citation omitted).
[Sidebar: no one has adequately explained to us how the County could condition a building permit -- the classic example of a "must issue" ministerial permit -- on anything but the application's failure to comply with the Building Code. An application for a building permit does not involve any exercise of the government's discretion, at least in our experience.]
Here, if Sheetz's home would "substantially increase traffic congestion," then the County could legitimately condition its approval of the building permit on Sheetz's willingness to pony up land or money for road improvements. This, according to the Court is "the hallmark of responsible land-use policy." Id. (citation omitted). When this situation exists, then the government is within its authority if it tells the owner that it must accept the condition or else no government approvals will be forthcoming.
But (and this is a significant "but"), "[t]he bargain takes on a different character when the government withholds or conditions a building permit for reasons unrelated to its [legitimate] land-use interests." Slip op. at 5-6. (Remember, the County's police power interests here are limited in the Court's view to traffic mitigation.) In such a case, the condition isn't being employed to further the health, safety, or welfare of the public (traffic mitigation), but takes on the character of "an out-and-out plan of extortion[,]" an "abuse of the permitting process." Slip op. at 6 (citation omitted). Show us the money!
After reciting the Nollan "essential nexus" and Dolan's "rough proportionality" requirements, the opinion next noted that the "nexus requirement ensures that the government is acting to further its stated purpose, not leveraging its permitting monopoly to exact private property without paying for it." Id. The rough proportionality requirement serves the same function, but from a slightly different angle: "[a] permit condition that requires a landowner to give up more than is necessary to mitigate harms resulting from new development has the same potential for abuse as a condition that is unrelated to that purpose." Id.
Wait, since when can legislation be subject to more exacting judicial review than the oft-applied rational basis test? After all, California law considers the County's General Plan to be legislation, adopted by a legislative body. Why isn't this treated like other legislation? The opinion stated it succinctly:
Nothing in constitutional text, history, or precedent supports exempting legislatures from ordinary takings rules.Slip op. at 7.
We're going to emphasize the "takings rules" part of that sentence because it highlights what we've always thought was the problem with the analysis applied by those lower courts which focused on the form or source of the condition (legislative/legislature) rather than the effect the condition had. Perhaps applying the tiers-of-scrutiny method is what is called for when the challenge asks whether a regulation arbitrarily and capriciously interferes with a constitutional right. But the entire Court, it seems, views takings as a independent limitation on the power of government, subject to different rules.
The opinion next laid out seriatim the "text, history, [and] precedent" to support its conclusion that conditions-from-legislation are to be treated on "equal footing" with every other condition, regardless of source.
- Text. After chiding the framers for the syntax of the Takings Clause ("[t]he Clause ... speaks in the passive voice"), the opinion noted that it "does not single out legislative acts for special treatment. Nor does the Fourteenth Amendment, which incorporates the Takings Clause against the States." Id. On one hand, this seems very noncontroversial. Of course legislation and legislatures are subject to the limitations the Fifth and Fourteenth Amendment place on them. Yet we've had several decades of some lower courts concluding otherwise, mainly because (in our view) they can't get past the form (legislation) to the substance (your money or your rights).
- History. Legislation was how governments exercised their eminent domain power (today and historically), so "[s]pecial deference for legislative takings would have made little sense historically[.]" Slip op. at 7. This analysis tells us that once regulation is deemed a taking requiring compensation, the entire Court views the regulation as having taken on a different character. Instead of merely regulating property's uses, these regulations require compensation as if the legislature had exercised its eminent domain power, and not its police power.
- Precedent. The opinion noted that "[w]e have applied the per se [physical takings] rule requiring just compensation to both legislation and administrative action." Slip op. at 9. And to regulatory takings. Indeed, in the "big one" (Pennsylvania Coal Co. v. Mahon), the Court held that a Pennsylvania statute went "too far" was was a taking.
The Court also put the Nollan/Dolan test into a larger context, the "unconstitutional conditions" doctrine that covers other areas like free speech, the right to travel freely, and other constitutional rights, noting that in these areas, legislative conditions are regularly challenged. See slip op. at 10.
In sum, there is no basis for affording property rights less protection in the hands of legislators than administrators.The Takings Clause applies equally to both—which means that it prohibits legislatures and agencies alike from imposing unconstitutional conditions on land-use permits.Id.
The majority opinion summed up by noting the "radical agreement" and the County's oral argument acknowledgement that it agreed with Mr. Sheetz (at least on the Question Presented):
The County no longer contends otherwise. In fact, at oral argument, the parties expressed “radical agreement” that conditions on building permits are not exempt from scrutiny under Nollan and Dolan just because a legislature imposed them. Tr. of Oral Arg. 4, 73–74. The County was wise to distance itself from the rule applied by the California Court of Appeal, because, as we have explained, a legislative exception to the ordinary takings rules finds no support in constitutional text, history, or precedent.Slip op. at 10.
The Court took no position on whether the County's traffic impact fee has an essential nexus to the Sheetz development, or whether $23 grand is roughly proportional to any traffic his proposal might be responsible for. For this and more, the Court remanded the case. Notably, the Court did not decide whether "a permit condition imposed on a class of properties must be tailored with the same degree of specificity as a permit condition that targets a particular development." Slip op. at 9-10.
In our next post, we'll cover the three concurring opinions, to thoughts about what Sheetz might mean, and what's on the horizon.
Sheetz v. County of El Dorado, No. 22-2074 (U.S. Apr. 12, 2024)
This just in: the U.S. Supreme Court has issued a unanimous opinion in Sheetz v. County of El Dorado, a case we've been following (not only because it is one of ours).
The Court, as predicted, held that an exaction (in this case a traffic impact fee) isn't immune from the Nollan/Dolan nexus and rough proportionality requirements merely because the exaction is imposed by legislation.
At heart, this is a very pro-YIMBY decision because it gives property owners and housing builders a path to object to barriers to creating housing and the government's use of the land use approval process as a way of exacting "goodies" that increase housing costs.
While we digest the opinion and the multiple concurring opinions -- we shall post more once we do so -- you can either read the opinions themselves, or see what we thought after the oral arguments. Or both.
Stay tuned.
Sheetz v. County of El Dorado, No. 22-2074 (U.S. Apr. 12, 2024)
Check this out: lawprof Ilya Somin has posted "Squatters' Rights Laws Violate the Takings Clause" at Volokh.
His thesis is just as the title suggests, arguing that state statutes that treat trespassers as tenants are government-authorized physical occupations, and thus are takings:
Ideally, state and local governments should make it easy for property owners to swiftly remove squatters, and should subject the trespassers to civil and criminal sanctions. But where they instead facilitate this violation of property rights, the laws that do so violate the Takings Clause of the Fifth Amendment, which requires payment of "just compensation" whenever the government takes "private property."
Professor Somin relies on Cedar Point, and addresses the narrow exception to the general rule from that case that all physical invasions and occupations are takings without regard to the diminution in use or value or the owner's expectations, where the government had enabled the same access as does the "traditional common law."
The common law knows about adverse possession, he writes, where a trespasser may gain a property right, but only after meeting fairly rigorous legal tests, where the owner has actual notice of the possession and its adversity to her property rights. These squatter statutes go much further, because they force property owners unwillingly to become lessors.
In other cases where the courts have upheld regulations and restrictions on an owner's right to recover possession from an actual tenant -- you know, someone with whom the owner actually and expressly agreed, and then transferred the right to exclude to the tenant -- the courts frequently note that "no one is forcing you to become a landlord."
Well here, the owner is being forced to become a landlord.
Professor Somin wraps by noting, "I hope property owners and public interest law firms give serious consideration to bringing takings challenges against these laws. They are not a panacea for the problem. But they could help."
Since we are part of a non-profit, pro bono, public interest law firm as the good professor describes, we shall note here that the welcome mat is out, and if the above-situation is your situation, let us know.
If you've been around us long enough, you know that we're big into the notion of "generational handoff" and doing what we can to make sure that students and others who are building their careers realize that dirt law and related topics are very good areas in which to find your way.
Well, here's the latest -- a free webinar from the American Planning Association's Planning and Law Division:
Second in a series of webinars aiming to answer student questions about career paths in the planning and law field, this webinar focuses on individuals working, or interested in working, in developing the built environment. Developers, as the main constructors of the built environment, must be familiar with urban conditions and the legal requirements that govern building on or redeveloping land. In-house counsel for development firms help their clients navigate through legal matters related to developing the built environment. Join us for a 90-minute discussion with four expert panelists, covering topics that include possible career paths in the private sphere, changes in the planning and law field over the years, and the experience and skills needed to enter the field, all with a focus on developers and in-house counsel. This webinar is for students, young professionals, and anyone who is interested in learning more about where a degree in planning, law, or both can take you in the private sphere.
Details:
Date: Wednesday, March 27, 2024
Time: 10:30 a.m. - 12:00 noon EDT
Cost: Free
Registration: https://www.planning.org/events/eventsingle/9286709/Speakers:
Kyle McClammer
General Counsel of The Garrett CompaniesRicqui Brager, AICP
Planner with the Regional Planning & Environmental Center (RPEC) of the U.S. Army Corps of Engineers, Fort Worth DistrictLeona Hammill
Leona Hammill joined NewQuest Properties in 2015 and has served as General Counsel since 2021Brodie Smith
Brodie Smith is a project manager for Thrive Home Builders in Denver, Colorado
Register and attend!
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
Join us and our Land Use class, in-person on the campus of the University of Hawaii Law School (or online via Zoom, where it will be livestreamed), as Richmond Law lawprof Carol Brown delivers the 2024 Distinguished Gifford Lecture in Real Property, on March 24, 2024, at 4:40 p.m. Hawaii Time in the Cades Schutte classroom.
Her talk is titled "Affordable Housing A to Z" and is very timely. More details on this flyer.
Made possible by the generosity of one of Hawaii's premiere dirt law firms, Carlsmith Ball, LLP.
Space is limited, so please RSVP here.
Join us at 12:30pm ET today, Tuesday, February 13, 2024, for the ABA's Section of Real Property, Trust and Estates' monthly Professor's Corner, where we will join exactions experts Prof Tim Mulvaney, Andrew Gowder, and Prof Elizabeth Elia to discuss the Supreme Court arguments, the issues in the case, and what may be down the road.
Here's the description:
Can legislative action constitute an exaction subject to the Nollan/Dolan/Koontz test? In his concurrence to the Supreme Court's 2016 denial of certiorari in California BIA v. City of San Jose, Justice Thomas made clear that he was eager to examine this issue. Justice Thomas's wait is over; the Supreme Court granted certiorari to address this very question during the 2024 session in the case Sheetz v. Co. of El Dorado. Our expert panel will discuss all sides of this extremely interesting case and its implication for takings jurisprudence.
Free, but you gotta register. Join us!
If you dream such dreams as this photo, read on.
My law firm, Pacific Legal Foundation, is on the hunt for lawyer to join our Property Rights group (yours truly is the Director of Property Rights Litigation, so you will be working with me and the other takings and con law mavens in our practice). Here's the full description of the spot:
You: An entrepreneurial freedom fighter with a passion for property rights litigation. You work with more senior-level attorneys to find and win cutting-edge property rights cases in trial and appellate across the country. You work as a part of a collaborative team, but are also self-motivated and able to work independently with minimal supervision. You are eager to learn, relentless, and a focused lawyer.
Them: Bureaucrats, city councils, mayors, governors, and federal agencies stripping Americans of their rights every day. There’s a lot of government overreach out there, and it’s backed by seemingly endless resources. But fortunately, like all lumbering giants, abusive government is most vulnerable when countered by individuals who act strategically and nimbly, take calculated risks, have each other’s backs, and are confident in, and passionate for, the cause—the very sort of property rights swashbucklers we employ in spades here at PLF.
Us: We fight back. Pacific Legal Foundation is the nation’s first and most successful public interest law firm dedicated to vindicating individual liberty and protecting the fundamental right to property as the “guardian of every other right.” PLF has an unmatched record in the United States Supreme Court, with 17 victories in the Court. We also are actively litigating more than a hundred cases in trial and appellate courtrooms across the nation.
We are a next-generation public interest law firm. What does “next-generation” mean for a legal nonprofit? It means we aren’t interested in doing the same thing as everyone else. We aspire to be the best player in a constantly changing game.
Here’s what you get to do in this role:
You will be a courtroom lawyer in PLF’s Property Rights Practice Group. From Nollan to Koontz to Knick to Cedar Point Nursery to Tyler, PLF’s property rights litigation is unparalleled. You will help find and win the next important Supreme Court property rights case, becoming recognized as a nationwide leader on property rights litigation. Occasionally, You will have opportunities to speak at conferences or with the media about your cases or important property rights issues.
You will be a key contributor to PLF’s property rights practice group. You will work in teams with junior and senior attorneys, growing in your expertise and knowledge and elevating the team’s efforts to defend property rights. You will have the latitude to think big and the resources to execute. At PLF, you will be at the forefront of shaping property rights for all Americans.
In a nutshell, we’re seeking someone passionate about liberty and property rights, someone who is magnanimous, and someone who is a bold and relentless freedom fighter.
Getting down to brass tacks, your specific job duties likely will include:
- Winning property rights cases! Finding, developing, and litigating important property rights cases.
- Working with other attorneys to develop and litigate PLF’s property rights cases to protect the constitutional rights of Americans.
Qualifications
- 1-3 years of litigation or judicial clerkship experience
- Passion to litigate property rights cases
- A deep understanding of the moral and constitutional basis for property rights is a huge plus
- A track record of successful legal work
- Outstanding interpersonal communication skills
- A knowledge of, and passion for, the ideas of freedom and individual liberty
- The ability and willingness to travel approximately 10% to 15%
General Information
Pacific Legal Foundation identifies and litigates important legal issues to set landmark precedents that benefit Americans nationwide. Using strategic and principled litigation, communications, and research, we battle for freedom in the nation’s courts and the court of public opinion.
As a national nonprofit organization, PLF has brick-and-mortar offices in Sacramento, California; Arlington, Virginia; and Palm Beach Gardens, Florida, although approximately half of the staff work from home offices across the country. You can work physically in any of our offices or request to work virtually. This position is particularly suited for a lawyer who would like to be in one of our offices, or who is a focused and relentless self-starter eager to take advantage of our cross-country virtual office environment by proactively collaborating and communicating with colleagues, clients, and other professionals.
This is a full-time, permanent position. PLF is committed to recruiting and retaining the highest-quality talent available nationwide, and we offer a total compensation package that includes a competitive salary, medical and dental insurance, and employer-paid retirement savings. We take work-life balance seriously through our generous paid leave and flextime policies. We have a flexible, collaborative, positive, and collegial work environment. We take pride in investing in your future and encourage internal advancement. PLF is the place for someone principled, tenacious, and determined to succeed in positively shaping the future of our country and restoring real limits on government power. Join us.
To Apply
Qualified candidates should submit the following application material:
- Your resume or C.V., including your experience in the liberty movement and relevant professional experience.
- A cover letter explaining why PLF is the place for you, why you want to fight for liberty, and what distinguishes you from typical applicants; your letter should detail your courtroom experience, including any experience in trial preparation and civil discovery.
- A recent writing sample, no longer than 10 pages, that demonstrates your analytical and advocacy skills.
More here, including a link to submit your application packet.
If you fit the bill, here's your chance to join us.
He also serves as the Joseph T. Waldo Visiting Chair in Property Rights Law at the William & Mary Law School in Williamsburg, Virginia.
email | bio | publications
The Law of Eminent Domain - A Fifty State Survey (ABA 2011)
Eminent Domain - A Handbook of Condemnation Law (ABA 2011)
At the Cutting Edge 2009: Land Use Law from The Urban Lawyer (D. Merriam, ed. 2010)
Recent Developments in Public Use and Pretext in Eminent Domain, 41 Urban Lawyer 563 (Oct. 2009)
The Ninth Circuit Rediscovers Substantive Due Process in Land Use Cases (Dec. 2008)
Battle For Brooklyn (Rumur Films 2011)
The Complete Guide to Zoning by Dwight H. Merriam (2005)
The Kauai Property Tax Charter Amendment Case (KKCR FM 92.7)
Legal and Other Issues In Honolulu's Rail Project (Think Tech Hawaii, KIPO FM 89.3)
Governor's Announcement of Judge Sabrina McKenna as Associate Justice, HAWSCT (1/25/2011)
Must A Property Owner Seek To Change The Law To Ripen A Federal Takings Claim? (HAWICA, 12/8/2010)
Justice Recktenwald Senate Hearing (8/25/2010)
Judge Leonard Senate Hearing (8/3/2010)
New Jersey's "Bizarre Condemnation" - Klumpp v. Borough of Avalon (NJ Supreme Court, 3/22/2010)
Columbia Eminent Domain Oral Arguments (NY Court of Appeals 6/1/2010)
Turtle Bay/Kuilima Supplemental EIS case (HAWSCT, 12/17/2009)
Atlantic Yards eminent domain abuse (NY Court of Appeals, 10/14/2009)
Ala Loop Homeowners: are state zoning laws "environmental" statutes (HAWSCT, 10/14/2009)
This blog is not sponsored by the author's firm, and the views expressed by the author are just that, his views; they are not the views of his clients, his firm or its clients, or anyone but the author.
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