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Professor Kanner's Final Article: "Eminent Domain Projects That Didn't Work Out," 12 Brigham-Kanner Prop. Rts. J. 171 (2023)

Here it is -- Professor Gideon Kanner's final law journal article, published shortly before his passing:

Gideon Kanner, Eminent Domain Projects That Didn't Work Out, 12 Brigham-Kanner Prop. Rts. J. 171 (2023).

Appropriately, we think, published in William and Mary Law School's Brigham-Kanner Property Rights Journal, named in part in Gideon's honor.

This isn't a typical law journal article, but an essay collecting Professor Kanner's thoughts, comments, and (best of all) opinions on, well, eminent domain (and redevelopment) projects that didn't work out.

In Gideon's own words, from the Introduction:

But whether you favor widespread use of eminent domain or not, and whether the projects created by its use are sound or not, it is deplorable that the power of eminent domain has been often deployed to the detriment of racial and politically powerless minorities. Typically, redevelopment projects tend to displace middle class and poor people from their homes and businesses but provides parsimonious compensation that falls short of indemnity. The displaced people are limited by the courts to recovery of “fair market value” of their real property, which fails to include compensation for a variety of economic losses inevitably inflicted when people are involuntarily displaced. To add insult to injury, while talking glibly about indemnity, courts do not provide it and have not explained the reasons for this state of affairs. Too often they rely on factually unsupported lamentations—“fearful guesstimates” as one commentator put it—that full, realistic  compensation would be too expensive or even cause an “embargo” on public works, as the California Supreme Court once asserted.

What follows is a sampling of cases that failed to live up to their planners’ projections, including but not limited to redevelopment projects. The latter are particularly egregious because the linchpin of their success is a process of generating private gains for the private parties chosen to participate in those projects, while undercompensating the displaced populations of the areas targeted for redevelopment. Thus, the benefits, if any, of such projects are attained, if at all, on the back of condemnees, in violation of the principle that such costs should be fairly spread on members of the society that benefits from them and disproportionally imposed on people in the path of those projects.

Thank you to the editors of the Brigham-Kanner Property Rights Journal for publishing it, in its unfiltered form.

Disclosure: I helped edit the piece, and Gideon even asked if it was worthy of publication (as if!). He described it as his "last" article collecting his collective thoughts. Yes, I responded, let's work on this and get it out for everyone to read (although I was secretly hoping that was not his final work). One of our University of Hawaii Law School Land Use students, Pono Arias, even volunteered his time and efforts as Gideon's Research Assistant and tracked down citations, made helpful edits and suggestions, and got the piece ready to go. We're grateful for Pono's work on this, as was Professor Kanner.

So here it is, Professor Kanner's last publication. When you read it, I am sure that - like me - you will hear it in your head in Gideon's voice.

And that's a good thing.

Gideon Kanner, Eminent Domain Projects That Didn't Work Out, 12 Brigham-Kanner Property Rts. J. 171 (2023)...

Farewell To A Giant - Gideon Kanner (1930-2023)

Aloha, Gideon

This is one of those posts I wish I didn't have to write.

I'm sad to report that our teacher, mentor, and friend Professor Gideon Kanner passed away on Wednesday, November 22, 2023, in his 93d year.

Appellate advocacy, eminent domain, and land use legend. Holocaust survivor. Prolific author and speaker. Argued Agins v. Tiburon at the Supreme Court. Educated generations of dirt lawyers at Loyola LA Law School. And even more through various professional legal education programs at Practicing Law Institute, American Law Institute-American Bar Association (ALI-ABA), and ALI-CLE, among others. One of the two lawyers for whom the Brigham-Kanner Property Rights Project at William and Mary Law School is named.

A person with sharp moral and intellectual clarity. Someone who never, ever -- ever -- gave up or gave in. We could go on and on, but we shall keep it short, because his legacy is secure. 

Many people knew or learned from Gideon, but not everyone understood where he came from. Here's some of that from the LA Daily Journal note about his passing, recently published:

Kanner was born in Poland in 1930, just as the Nazis were coming to power next door in Germany. Kanner's father and uncle were business partners when Hitler invaded Poland in 1939, and the brothers took different approaches to the occupation that led to a tragic outcome.

"His father's family fled, and his uncle's family was killed in the camps. Gideon's family spent much of the war hidden behind a false wall in a peasant's cottage. His older brother Joseph eventually left that sanctuary and essentially walked to Palestine, where he joined the British army," [Michael] Berger said. "After the war, the entire family made its way to New Jersey, where they were reunited and delighted to learn they had all survived."

A high school debate coach taught Gideon Kanner to speak perfect English so he could be understood. An engineering class at Cooper Union School for the Advancement of Science and Art in New York sparked an interest in rocketry. Kanner had a career in the industry that included a stint at Rocketdyne, where he worked on designs that were used to take astronauts to the moon.

While working as an engineer, Kanner began taking night classes at the Detroit College of Law. Then, he moved to Los Angeles and enrolled in the law school at the University of Southern California, from which he graduated in 1961.

After he got his bar card, he and a friend started a real property litigation practice under the shingle Fadem and Kanner.

And all that before he began his teaching career.

Although I did not attend Loyola and was never privileged to sit in his classroom, I owe my career to Gideon. In one of life's weird twists, the very first case I worked on as a young lawyer in a private law firm was a land use and regulatory takings case. But my law school education did not include formal training in property law beyond the first year required Real Property course, and I had no clue at all about land use law, or especially about the then-developing concept of regulatory takings. So I went down to the law library and copied every article on eminent domain, takings, and land use by this apparently well-known professor, Gideon Kanner. On the bus ride home each evening, I would pore over those articles. Thus, in one view, I am "self-taught." But in reality, I had Gideon whispering (maybe yelling would be more appropriate?) in my ear, showing me the way.

One of the proudest days of my professional life is when he wrote me, years later, and asked my thoughts about some issue. Gideon Kanner asking me? Wow.

An adopted son of Hawaii, Gideon was, with his family, a frequent visitor. I loved it when instead of saying "thank you" to me for something, he'd write "mahalo." A real local touch. 

Rather than write more, I'll take the liberty of reprinting some of the thoughts that have been circulating about Gideon this past week. Here's a sampling:

"...an inspiration..."

"One of a kind."

"...a man and lawyer whose life and career fills volumes..."

"...a giant who would never hesitate to help you..."

"The appellate world has lost a legend. A founder and the first president of the California Academy of Appellate Lawyers, he led an amazing life: Holocaust survivor, actual rocket scientist, law professor, eminent domain guru, persistent advocate, fierce advocate, appellate maven, colorful writer ...(and here), blogger, inspiration, raconteur, gadfly, curmudgeon. Those are just a few ways to describe this remarkable mensch."

"Gideon will live on in so many ways."

"...my gratitude for the great work of a great man.."

"The Dean of eminent domain."

"Gideon’s trumpet may be silenced, but the voice of our friend Gideon Kanner will echo for many generations."

"Gideon ... was academically brilliant but also carried the deeply heartfelt conviction to defend liberty in the trenches of the courts as though it could be lost if even one generation took it for granted. That sense of urgency was never absent from his lectures and writing..."

"If there is such a thing in our eminent domain world, Gideon Kanner was a celebrity....He ... had a humorous, caustic cynicism and irreverence for government action and was a terrific, patient teacher....Thank you, Gideon. May your memory be for a blessing."

"His oratory skills are legendary, with many regarding him as one of the finest appellate advocates to come before the California Supreme Court and U.S. Supreme Court....As one would imagine, Gideon’s achievements have been honored by countless awards and acknowledgments. On the international scene, Gideon consulted with the Japanese Construction Ministry to reform Japan’s expropriation laws, co-organized the International Colloquium on Comparative Expropriation Law at Oxford University, England, and was a visiting professor at the University of Aberdeen, Scotland."

"...a great human being..."

"Gideon felt the pain of those who were abused and was quick to call out the abusers."

"Gideon not only thought outside of the box before that phrase even existed, he laughed at the box and delighted in tearing it down."

"In California it is hard to write a brief without citing a case that was Gideon's."

"I can truly say that I became a better lawyer after meeting and interacting with Gideon."

I don't think there is a better professional legacy than the love of your colleagues. I am better for having known him.

Aloha, Professor.

Update: be sure to read Professor Kanner's final article, "Eminent Domain Projects That Didn't Work Out," just published.

We (Re)Join Clint Schumacher's Eminent Domain Podcast: Three Impactful Issues, And The 41st ALI-CLE Conference (New Orleans, Feb 1-3, 2024)

A big thank you to Clint Schumacher and his Eminent Domain Podcast for having us on the program (this is the sixth time, not that we're counting). We joined Clint to chat about three breaking issues in eminent domain (highlighted by the intriguing cases we discuss), as well as to preview the upcoming 41st ALI-CLE Eminent Domain Conference, February 1-3, 2024, in New Orleans.

As Clint describes it:

Robert Thomas of Pacific Legal Foundation joins us for a review of three impactful cases that eminent domain practitioners should watch as they work their way through the courts. We also get a preview of the 2024 ALI-CLE Eminent Domain and Land Valuation Litigation Conference that will be held in New Orleans this coming February.

Click here for information and registration for the ALI-CLE conference.

Please share your thoughts on the show or this episode with me. I’m on X @J_Clint. If you have thoughts about future show guests or ideas for episodes, please let me know.

Stream it above or at your favorite service, or directly from the Eminent Domain Podcast's home.

One note before we leave you to your business: Clint has been producing and hosting this podcast for a while now (127 episodes is nothing to sneeze at in the broadcast world), and week-in and week-out, his audience can count on a new episode with fascinating and relevant content, often featuring the biggest players in the field. It may all seem seamless, but as someone who produces content I can say from experience that it can be a grind: selecting and inviting guests, scheduling, editing, post-production, monitoring and the like -- and then on to the next episode. It's work. All in addition to Clint's work for his clients and his community service (not to mention family). He has some help -- many of you know Claire McGehee who assists him) -- but his team isn't some huge production company. It's just them.

So when you next see or chat with Clint, be sure to let him know how much you (and we listeners) appreciate what he and Claire do.

Join Us For 100 Years Of Pennsylvania Coal (Pace Land Use Conference, Dec. 8, 2023)

22nd annual Alfred B. DelBello Land Use
and Sustainable Development Conference

Come, join us (and others) on Thursday-Friday, December 7-8, 2023, at Pace Law School in White Plains, New York for the Land Use and Sustainable Development Conference (this year’s conference theme is "Balancing Economic Realities with Environmental and Social Concerns").

We're speaking about the 100th anniversary of the modern regulatory takings doctrine, which got its start nearly 101 years ago with the Supreme Court's opinion in Pennsylvania Coal Co. v. Mahon, where the Court held that property may be regulated, but if the regulation "goes too far," it will be deemed a taking.

Here's a description of the program:

The 100th Anniversary of Pennsylvania Coal vs. Mahon: How the Takings Clause Became the Primary Check on Government Power When SCOTUS Abandoned Review Under the Due Process and Contracts Clauses During the New Deal

The Takings Clause and 100 years of the Pennsylvania Coal v. Mahon doctrine have become the primary check on governmental power that the Due Process and Contracts Clause used to serve, before the Supreme Court finally and formally abandoned judicial review under those doctrines during the New Deal. Mahon transcended its primary relevance as to compensation for the taking of private property to become the fundamental means by which the Rule of Law determines of the individual’s relation with the government.

This session will survey the evolution of takings law and assess its impact on federal, state and local government authority, including not only the limits of that power over private property, but how the law as created by Mahon reconciles the essential issue of an individual’s private rights as they relate to the government’s exercise of authority in the public interest. This ambitious session will predict where these trends are taking us and what constitutional, legislative, and executive initiatives should be considered.

Carole N. Brown, Esq. Professor of Law, University of Richmond School of Law
Dwight H. Merriam, Esq., FAICP, Attorney at Law
Robert H. Thomas, Esq., Joseph T. Waldo Visiting Chair in Property Rights Law, William & Mary Law School and Director, Property Rights Litigation, Pacific Legal Foundation
Gregor I. McGregor, Esq., Founding Partner, McGregor Legere & Stevens PC
Moderator: Carolynne C. White, Esq., LEED AP, Brownstein Hyatt Farber Schreck, LLP

Should be a good (and fun) program. The other programs on the agenda are also very worthwhile (we shall be attending the entire day). Registration information and the complete agenda and speaker list here.

Please stop by and say hello if if you are there.

Harvard Law Review On Tyler v. Hennepin County: Reflecting The "Diminishing" Role Of State Property Law In Takings

Check this one out, the Harvard Law Review's summary of Tyler v. Hennepin County, the "home equity theft" takings case decided unanimously by the Supreme Court.

Some highlights:

Beginning with traditional principles, Chief Justice Roberts suggested that a property interest in surplus equity had English origins — King John proclaimed in the Magna Carta that when collecting debts owed to him by a deceased person, any surplus “shall be left to the executors.” Parliament endorsed this principle, giving the Crown the power to seize and sell a taxpayer’s property to satisfy a tax debt but requiring the surplus to be returned to the original owner.And according to Blackstone, the English common law required the same.

So too did historic and contemporary American laws.

...

While the Tyler Court continued the trend of a robust Takings Clause, it introduced novel evidence of a taking: a lack of internal consistency in Minnesota’s statutory regime. The majority’s discussion of analogous statutory contexts (where a property owner has an interest in surplus equity) exemplifies the longstanding concern justifying the Court’s diminishing of the role of state law in takings jurisprudence — state legislatures manipulating property interests to insulate themselves from takings liability. It also suggests that ordinary judicial review of positive state law may better identify and correct legislative gamesmanship than an evaluation of history and tradition can. Indeed, courts searching state property law for contradictory treatment will make it harder for a state to manipulate property interests. Tyler’s internal-consistency requirement permits the Court to restore state property law’s primacy and avoids the complications associated with the Court’s current approach of a “jurisdictionless” property law.

As early as Board of Regents of State Colleges v. Roth in 1972, the Court has recognized state law’s crucial role in articulating the “rules or understandings” defining property interests. Yet, throughout the Court’s case law, a theme persists: a fear of gamesmanship and the possibility that affirming the importance of state law incentivizes states to insulate themselves from takings liability. The worry is that, left to its own devices, a state might “transform private property into public property” via legislative enactment or define a property interest so broadly as to render regulations paltry in their interference.

Pre-Tyler, this concern appeared overstated. In one of its more prominent opinions concerned with gamesmanship, the Court failed to cite any prior examples of a state “improperly . . . fortify[ing]” itself against takings claims by passing legislation that defined land parcels strategically. In fact, Chief Justice Roberts had once emphatically argued that in most circumstances, state law should define the relevant parcel to be considered in a takings claim, and that worries surrounding state gamesmanship were unfounded.

(Footnotes omitted.)

Check it out.

"The courts don't need Congress's permission to enforce the self-executing constitutional right to just compensation."

"No need to ask, he's a smooth operator..."

Here's the amicus brief we just filed in a case we've (obviously) been paying close attention to.

This is Devillier v. Texas, the case in which the Supreme Court is considering what does the it mean when it describes the Just Compensation Clause as "self-executing?" Do you need statutory authorization in order to bring a takings or just compensation claim, or can you sue directly under the Constitution? Does it matter that Congress has adopted a statute which authorizes damages suits against local governments ("persons"), but has not expressly done so against states qua states?

We say no and our brief explains why.

Note that there's no Eleventh Amendment issue here, because Devillier filed his federal claims in a Texas court, and it was the State of Texas that removed it to federal court (thus forfeiting any 11A claim, because the State chose the federal forum).

We won't go into a lot of detail here, because you can read it yourself (or you can read our post on the cert grant). Here's the Summary of Argument from our brief:

The courts don’t need Congress’s permission to enforce the self-executing constitutional right to just compensation. A civil right is self-executing “if it supplies a sufficient rule by means of which the right given may be enjoyed and protected, or the duty imposed may be enforced.” Davis v. Burke, 179 U.S. 399, 403 (1900). Compensation for a taking is just such a right. The plain text of the Fifth Amendment itself supplies the rule for how the right is protected, and how it is enforced: takings of private property require compensation. This Court has said so—many times. See, e.g., First English Evangelical Lutheran Church of Glendale v. Los Angeles Cnty., 482 U.S. 304, 316 n.9 (1987) (the Just Compensation Clause “of its own force furnish[es] a basis for a court to award money damages against the government.”); Knick, 139 S.Ct. at 2172 (citing First English as holding that a “property owner acquires an irrevocable right to just compensation immediately upon a taking”).

Congress may enforce the Fourteenth Amendment by creating causes of action and remedies. U.S. Const. amend. XIV, § 5 (“The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.”). Because the Fourteenth Amendment’s plain text applies to the states as states, Congress could create a statutory cause of action for deprivations of life, liberty, or property by a state. U.S. Const. amend. XIV, § 1 (“nor shall any State deprive any person of … property, without due process of law”). But Congress need not have done so for Richard Devillier to seek compensation from Texas for a taking, because the Fifth Amendment itself specifies the remedy, and the absence of legislation does not prohibit courts from enforcing the self-executing constitutional right to just compensation.

Statutory authorization may be necessary for other civil rights claimants to sue, but not Just Compensation claimants, because with one possible exception, no right listed in the Bill of Rights other than the right to Just Compensation is self-executing. That Congress created a general civil cause of action for “persons” claiming deprivations of “rights, privileges, or immunities secured by the Constitution and laws”—Civil Rights Act of 1871, 42 U.S.C. § 1983—is of no moment here. For example, Congress has never legislatively established a cause of action for just compensation against the federal government, and owners whose property is alleged to have been taken seek compensation directly under the Constitution. The Tucker Act does not create a cause of action for compensation or money damages; it only assigns jurisdiction over constitutionally based takings claims to the Court of Federal Claims and the Federal Circuit. See 28 U.S.C. § 1491(a)(1) (“The United States Court of Federal Claims shall have jurisdiction to render judgment upon any claim against the United States founded … upon the Constitution”). In federal takings, the self-executing Just Compensation Clause recognizes the right and provides the remedy. Blanchette v. Conn. Gen. Ins. Corps., 419 U.S. 102, 126 (1974). If the lack of a statutory cause of action does not stand in the way of holding the federal government to the Just Compensation Clause’s requirements, it similarly does not stand in the way of the same claim against a state. Our constitutional order cannot countenance neutering a right and remedy expressly recognized by the text of the Constitution, on the grounds that Congress has not acted.

The Fifth Circuit acknowledged Texas’ obligation to comply with the Fifth and Fourteenth Amendment’s plain requirements. But by divorcing liability from the constitutionally mandated remedy, the court below engaged in a clever, but not compelling, Texas two-step. First, the Fifth Circuit acknowledged that states cannot effect uncompensated takings. Yet the court concluded that Congress must affirmatively provide a statutory remedy before property owners may pursue compensation claims against a state—even in the state’s own courts. Petitioners sued Texas in a Texas court, alleging that the state’s deliberate flooding of their land effected a taking requiring compensation under the Fifth and Fourteenth Amendments. Texas eliminated any possible Eleventh Amendment issues that may have been lurking by removing the case to federal court. Lapides v. Bd. of Regents of Univ. Sys. of Ga., 535 U.S. 613, 622–23 (2002); Embury v. King, 361 F.3d 562, 566 (9th Cir. 2004) (“Allowing a State to waive immunity to remove a case to federal court, then ‘unwaive’ it to assert that the federal court could not act, would create a new definition of chutzpah.”) (citation omitted). By requiring that Congress first recognize a cause of action for just compensation, the Fifth Circuit ensured that Devillier’s federal civil rights cannot be enforced in any court.

This Court should reaffirm that the Just Compensation Clause is self-executing and hold that property owners need not rely on a statutory cause of action where compensation is mandated by the Fifth and Fourteenth Amendments. The Constitution itself provides the cause of action, rendering the need for a statute unnecessary.

Our colleagues at the Institute for Justice (who represent the petitioner) filed the merits brief earlier in the week (well worth your time reading it, by the way, and bravo to them for identifying this case and bringing it to the Court's attention).

Special shout-out to our law firm colleagues (and self-executing Just Compensation mavens) Deb La Fetra and Kady Valois for this brief.

Stay tuned here, or follow along on the Court's docket.

Brief Amicus Curiae of Pacific Legal Foundation, Nat. Fed. of Ind. Bus. Small Bus. Legal Center, Inc., and...

New Podcast: The Cedar Point Takings Case (From The Guy Who Argued Cedar Point)

Check this out, our law firm colleague Joshua Thompson talks about regulatory takings, and his big Supreme Court victory in Cedar Point Nursery.

If you are reading this blog, you already know what that means. Regulatory takings. Bundle of sticks. Penn Central (bleh), and right to exclude. Here's the description of the program:

In this thought-provoking episode, Bob Stetson and Joshua Thompson, Director of Equality and Opportunity Litigation at the Pacific Legal Foundation, discuss the landmark case of Cedar Point Nursery vs. Hassid and explore the intricate balance between private property rights and public interests. What constitutes a 'taking' and how far government regulations can go in the name of the public good?

Stream it above, or listen on Spotify here.

(Our own thoughts on the Cedar Point case here.)

Legislative Exactions Merits Brief (Ours): "the text and history of the Takings Clause admit no exception for legislative takings"

Here's the merits brief in a case we've been following (naturally, because it is one of ours). This is Sheetz v. El Dorado County, the case which asks whether a condition on development (aka an "exaction") is exempt from the close nexus and rough proportionality standards of Nollan/Dolan/Koontz simply because the exaction is imposed on every owner who asks for permission to use its property, and not via an ad hoc administrative permit procedure.

Because this is one of ours, we're not going to go into in further, but leave to you to read our brief:

In this Court’s key exactions precedents—Nollan, Dolan, and Koontz—it held that when government exacts money or real property as a condition on the right to use or develop land, it must establish that the exaction bears an “essential nexus” and “rough proportionality” to an adverse public impact caused by the owner’s proposed project. In this case, the Court should confirm that Nollan/Dolan review applies, not just to so-called ad hoc or discretionary conditions, but to legislatively mandated exactions as well, such as the fee that El Dorado County imposed on Mr. Sheetz. That rule follows inexorably from this Court’s precedents, as well as the history and purpose of the Takings Clause and the unconstitutional-conditions doctrine. The rule is easy to implement. And the rule ensures that any exaction serves as genuine mitigation for public impacts attributable to the proposed use or development rather than a veiled attempt to skirt the compensation requirement of the Takings Clause.

...

[T]he text and history of the Takings Clause admit no exception for legislative takings. “The Takings Clause . . . is not addressed to the action of a specific branch or branches,” but is instead “concerned simply with the act, and not with the governmental actor.” Stop the Beach Renourishment, Inc. v. Fla. Dep’t of Env’t Prot., 560 U.S. 702, 713–14 (2010) (plurality op.). Holding all exactions accountable to the Takings Clause ensures the fulfillment of the Clause’s fundamental purpose: “to bar Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole.” Armstrong v. United States, 364 U.S. 40, 49 (1960).

Stay tuned.

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

Brief for Petitioner, Sheetz v. County of El Dorado, No. 22-1074 (U.S. Nov. 13, 2023)

Program Recording: "Erasing the Black Spot" - Virginia's Use Of Eminent Domain To Take Minority Property

"Erasing the Black Spot" from WHRO on Vimeo.

As we first noted here, Hampton University and WHRO recently produced a live program on "Erasing the Black Spot - How Virginia Universities Have Disrupted Black Neighborhoods." We couldn't make it in person, but watched the live-stream.

Now, as we hoped, the recorded program has been published. Stream it above, or watch here on Vimeo. Here's the description:

Virginia’s public universities have a long history of expanding campuses in the name of progress and economic growth. But often, these expansions used eminent domain and property seizures to disrupt and diminish thriving Black communities across the state.

An investigative series by The Virginia Center for Investigative Journalism at WHRO and ProPublica uncovers the damaging social and economic impacts on Black communities of college expansions at Christopher Newport University, Old Dominion, and the flagship University of Virginia.

In the second half of the 20th century, the rapid growth of public universities across Virginia uprooted hundreds of Black families, hindering them from accumulating wealth in the most American way — homeownership.

In a new panel discussion, VCIJ at WHRO journalists share their findings and stories from the residents who were displaced.

Well worth your time.

Some Precondemnation Entries Are Takings Requiring An Up-Front Condemnation And Compensation

We don't often post trial court orders -- especially state trial court orders -- but read on and you will understand why we made an exception here. Our thanks to an Oregon colleague for sending it our way.

Today's case involves a pretty typical situation -- a condemnor (or, "condemner" -- for it is in Oregon that our scene lies) is contemplating taking property from someone, and wants and needs to figure out whether the property it is contemplating is suitable. It needs to get on site and check it out. Do things like surveys, examinations, tests, and sample-taking. Often, the owner of the property doesn't mind: pay me a bit for my trouble, indemnify me in the event someone gets injured, and you can have limited access to do your business and then go on your way, condemner. 

But sometimes, an owner -- as is her right -- says no. In those cases, Oregon (as many states do) has a statute. In our case, Or. Rev. Stat. § 35.220, which paraphrased says, that a condemner may enter private property to conduct tests, take samples and the like, as long as the owner is provided notice. If an owner objects, the condemner may seek a court order "providing for entry upon the property and allowing such examination, survey, testing or sampling as may be requested by the condemner."

Importantly, the statute also says that the owner is entitled to reasonable compensation for "[a]ny physical damage" resulting from the entry, and "[a]ny substantial interference with the property's possession or use" that is caused by the survey, entry, &c. 

Now that we've laid the foundation, here's how it played out in Idaho Power Co. v. Bean.

Idaho Power wants to run part of a transmission line over Bean's property in rural Oregon. It will need an easement. But it also needs to conduct studies. As the court notes:

Petitioner must ensure that the project's path complies with permitting and siting requirements, including that it does not conflict with any protected resources. To ensure compliance, Petitioner must conduct surveys. tests, and samples on Respondents' property. These include three-toed woodpecker and northern goshawk surveys, rare plant inspection, gray owl and flammulated owl surveys, wetlands inspection, terrestrial visual encounter surveys, noxious weeds surveys, cultural resource surveys, enhanced archeological surveys, and historic properties management plan surveys, geotechnical drilling, land surveys, and an appraisal field visit.

...

Although Petitioner cannot say with certainty how many entries will be required for it to accomplish these various surveys, tests and samplings (Tr. 136-160), all totaled, it appears they may amount to as many as thirty-two visits onto the property. Exhibit 2. The visits will primarily involve driving pick-up trucks and sometimes a trailer onto the property with crews of anywhere from one to five persons. Id. Four of the entries will involve some ground disturbance. Id. Two to five entries would be with "pickup trucks and trailer" Tr. 147. The geotechnical drilling will involve a "small track vehicle," Id. The "small track vehicle" is "probably larger than a F-350, but it's not quite as big as a large excavator." ld. The geotechnical drilling involves a "drilling crew" drilling "boreholes" approximately 6 to 8 inches in diameter. Exhibit 2, p. 4. The holes will be backfilled. Id. Petitioner acknowledges each entry will cause some interruption to the landowner.

Slip op. at 3-4.

The property owner said no. Next stop, a trial court in Union County, where the power company sought an order to show cause why it should not be allowed entry under section 35.220.

The owner made two arguments in opposition. First, it asserted it was entitled to compensation before the entries, and not after. Second, it argued the entries are takings under both the Oregon and U.S. Constitutions.

In this order, the court agreed that the statute permits the power company to enter the property against the will of the owner, as long as it provided notice (check). The owner is entitled to "reasonable compensation" for physical damage or substantial interference with possession or use. There's no statutory definition of those terms, but the court used the ordinary meaning, and concluded that the entry "must cause actual harm to the land, crops or structures" on the property," or cause a "hampering of their quiet enjoyment of their property and/or their ability to produce an income from their property." Slip op. at 6.The entries seem to qualify.

So what about that compensation? The owners asserted they are entitled to up front compensation "in advance of Petitioner's entry." Slip op. at 7. Here, the court was presented with a problem: it concluded the statute only allows for post-hoc compensation because of the mechanics. Compensation is based on evidence of physical damage or substantial interference, and such evidence doesn't exist until the condemner makes its entries. "That is a high bar. With the pre-condemnation entries contemplated here it would be very difficult to prove before the entry how the property would be physically damaged." Id.

But the conclusion that the owners cannot get reasonable pre-entry compensation "does not end the inquiry, however." Slip op. at 8. This takes us to the second argument, that the entries permitted by the statute are takings under the constitution(s), and thus require just compensation.

We won't go into the details, but suggest you read the order starting at page 8. Not a lot there that's terribly surprising, and takings mavens will recognize the key citations to the right to exclude being essential such as Cedar Point, and the notion that it doesn't take much of an interference to be deemed a taking of that "essential" property stick.

Oregon courts have long held that "any destruction, restriction or interruption of the common and necessary use and enjoyment of the property of a person for public purpose constitutes a 'taking' thereof." Morrision v. Clackamas County, 141 Or 564, 568 (1933). To the extent that ORS 35.220 allows a condemner to enter onto one's property to conduct examinations, surveys, tests, and samples of t he property without the consent of the owner and without just compensation, it is unconstitutional Such action a mounts to a taking, under Article I, section 18 of the Oregon Constitution. This is because it deprives the property owner of that most essential  property right: the right to exclude others from one's property. In order to comply with the Oregon Constitution, the condemner must pay "just compensation" before the pre-condemnation entry onto private property.

Slip op. at 9.

Yes, the statute says an owner is entitled to reasonable compensation for these invasions if it causes physical damage or substantial interference. "However, the Oregon Constitution does not set such a high bar before the property owner may receive 'just compensation.'" Id.

But not all entries are takings. As Cedar Point noted, some government-authorized invasions are not takings "because they are consistent with longstanding background restrictions of property rights." Slip op. at 10. Even the property owner here agreed that some of the entries were not takings. Thus, some of the desired entries here qualify (while some do not). Land surveys are ok, as well as "an appraisal field visit." Id.

But for those entries that go beyond that, compensation is due. Just compensation, that is, for appropriating "a right of access to the Respondents' property."

By doing so the statute allows the condemner (Petitioner) to enter Respondents' property, without Respondents' consent, to examine, survey, test, and sample Respondents' property. The statute appropriates a right to physically invade the Respondents' property to conduct the various examinations, surveys, tests, and samples. Under Supreme Court precedent, this is a per se physical taking, which under the Fifth Amendment requires "just compensation." Cedar Point Nursery, 141 S,Ct. at 2074. In conclusion, Petitioner may not enter Respondents' property to conduct the surveys, tests and samples without paying "just compensation."

Slip op. at 12.

That left the question of how much compensation? Try work it out, parties held the court. If that doesn't work then the power company must institute eminent domain proceedings.

Worth your time to read the entire order.

If you wanted to see how the California Supreme Court addressed similar precondemnation entries (which it acknowledged as takings) check out this post ("California Supreme Court Rewrites Eminent Domain Entry Statutes To Give Government A Free Pass").

Opinion re Pre-Condemnation, Idaho Power Co. v. Bean, No. 23CV12213 (Or. Cir., Union Cnty, Sep. 6, 2023)

Inverse Condemnation And Hawaii's Wildfires: Lawprof Shelley Saxer Joins Clint Schumacher's Eminent Domain Podcast

Another must-listen episode of Clint's Eminent Domain Podcast. He's joined by Pepperdine Law School Professor Shelley Ross Saxer:

Professor Shelley Ross Saxer joins the show to discuss the role that the damaging clauses found in more than half of state constitutions across the United States play in inverse condemnation claims related to natural disasters such as the recent Hawaii wildfires.

Definitely worth a listen (as always with EDP). Stream above, or download here.

Here's The Program For The 41st ALI-CLE Eminent Domain And Land Valuation Litigation Conference, Feb 1-3, 2024, New Orleans

Here's the brochure and the full agenda and registration information for the upcoming ALI-CLE Eminent Domain and Land Valuation Litigation Conference at the JW Marriott in New Orleans, February 1-3, 2024.

This is the long-running nationally-focused conference on all things eminent domain, takings, valuation, and related. We have three tracks, from which you can choose a la carte - Practice, Substantive, and Condemnation 101:

For over 40 years, we’ve been bringing eminent domain practitioners together to examine the latest issues, engage in healthy debate, and get the information they need to stay current in their practice. This year – our 41st – is THE perfect time to reunite with your eminent domain colleagues. There will be plentiful opportunities to meet and mingle with the faculty and other registrants – throughout the conference and at evening social events. Attendees come back year after year to make new friendships and renew longstanding ones – in a welcoming environment and amongst others who share the same passion for this area of the law.

Please check it out. Over the next couple of weeks we shall bring you details of the various programs.

If you have joined us in the past, you know what a worthwhile conference this is. If this will be your first time, welcome; we hope that you will become a long-term colleague.

Register now, and reserve your spot. In the past few years, we've sold out the hotel block and the Conference seats. So don't miss out!

2024 ALI-CLE Eminent Domain and Land Valuation Litigation Conference Brochure, Feb. 1-3, 2024, New Orleans,...

New Takings Ripeness Cert Petition (Ours): One Variance, Two Variance, Three Variance...More?

Here's a takings cert petition, filed yesterday.

Because this is one of ours, we're not going to comment much beyond reposting the Question Presented, and to let you know this one is about how the "relatively modest" requirement that the government have taken some "definitive position" about what uses are allowed and what uses are not on a claimant's property -- as the Court noted in Pakdel, a "de facto" decision is enough. Yes, prudential ripeness.

Question Presented:

Matthew Haney sought to build a home on a small undeveloped island in Popponesset Bay, Massachusetts, zoned by the Town of Mashpee exclusively for single-family residential use. But building a home requires a variance from the Town’s setback and frontage requirements. Haney twice sought this variance, and twice the Town rejected his requests. The Town’s unqualified position that Haney could not obtain the necessary variance to build his home satisfies the usual indicators that a takings claim is justiciable. Suitum v. Tahoe Reg’l Plan. Agency, 520 U.S. 725, 736–37 (1997) (development plan plus one request for a variance ripens a takings claim). But when Haney sought just compensation in federal court, the First Circuit held the case does not present a ripe controversy because the Town suggested it may grant a third application for a variance if Haney first secured permission from the State of Massachusetts to build a steel bridge to the island.

The question presented is:

Can the government evade adjudication of constitutional takings claims on prudential ripeness grounds—after it has twice definitively denied necessary variances—by indicating that it may consider a third variance request if the property owner first obtains an additional permit from a different government agency?

A special shout-out to our law firm colleagues Jeremy Talcott and Deb La Fetra, who carried the load on this one.

Now we wait.

Petition for Writ of Certiorari, Haney v. Town of Mashpee, No. 23-____ (U.S. Nov. 1, 2023)

We Want A Lump Of Coal For Christmas (As Long As It Is Pennsylvania [Anthracite] Coal)

Our thanks to Professor/Dean/Provost Patricia Salkin and Lawprof Simone Freeman for inviting me to drop in on their Touro Law School Land Use class last evening to talk about regulatory takings and some of the interesting details of the Pennsylvania Coal Co. v. Mahon case from 1922.

We discussed the case, using some photos we took during our site visit to the former Mahon property and environs last year on the 100th anniversary of the date the Court issued the landmark opinion. We also emphasized the importance in dirt law cases generally to get yourself on the ground and see the property in question. Even though we have an amazing set of technical tools by which we can remotely get a sense of the land (Google Maps, Street View, for example), there is no substitute for getting yourself to the site to feel the ground, touch the dirt, understand the topography and geography, talk to the neighbors, and smell the air. 

We're going to be continuing this conversation about how the last 100 years has treated the regulatory takings doctrine and the notion that an otherwise valid exercise of governmental power other than the power of eminent domain can nonetheless be deemed a taking requiring compensation if it "goes to far" in Holmes "storied but cryptic formulation." Come join us in early December at Pace Law School in White Plains for the 22nd annual Alfred B. DelBello Land Use and Sustainable Development Conference. We'll be speaking on the panel, "The 100th Anniversary of Pennsylvania Coal vs. Mahon: How the Takings Clause Became the Primary Check on Government Power When SCOTUS Abandoned Review Under the Due Process and Contracts Clauses During the New Deal."

Details here, including registration and the very reasonable tuition. See you there.

Thank you again to Professors Salkin and Freeman, for hosting us discussing our favorite topic!

Presentation, Pennsylvania Coal Co. v. Mahon Site Visit (Touro Law Land Use Oct. 29, 2023)

20th Brigham-Kanner Property Rights Conference: Property Rights As A Means Of Human Flourishing

Professor Gregory Alexander: the newest inductee in
the Property Rights Hall of Fame

Jim Burling, discussing Prof Alexander's
property work.

Our panel at today's Brigham-Kanner Property Rights Conference at William and Mary Law School in Williamsburg, Virginia, which was focused on the work of this year's Brigham-Kanner Property Rights Prize, Prof. Greg Alexander, was tasked with addressing this topic:

"Equity has long had an influence on the delineation and development of property rights. In addition to defining the extent of property rights and influencing a court’s choice of remedies, equity has played a role in governing or managing the impact of property rights on other interests. This panel will discuss these and other topics related to the role of equity in property law, including the relationship of that role with constitutional protection of property rights."

Speakers on this topic included Profs Henry Smith (Harvard) and Samuel Bray (Notre Dame), and fellow public interest practitioner Timothy Sandefur.

Here are my remarks.

* * * *

Equity’s Role in Defining Property Rights

Congratulations to Professor Alexander on this, his latest honor.

Before we begin, I’d appreciate us recognizing the William and Mary law students, and young lawyers in attendance. Thank you for spending time here in the room, engaging on a topic – property law and property rights – that, unfortunately – and wrongly, in my opinion – is being treated more and more as an afterthought in other law schools, and legal circles. Here at William and Mary Law, we’re doubling down and maybe swimming a bit upstream, because we recognize property as highly relevant, and a subject of teaching, study, and scholarship.

I must admit to struggling with our topic: “Equity’s Role in Defining Property Rights.” Like a lot of academic descriptions, that could mean a lot of things to a lot of people.

Your world frightens and confuses me.

With apologies to Phil Hartman and Jack Handey.
photo credit: Steve Davis

It could mean “equity” in the Smithian sense. Property as formalized “law,” in contrast—or maybe not in contrast—with equity, or as he has put it “[a]n equitable safety valve”—(but perhaps a valve, like the Chancellor’s Foot, without standards). I should avoid that, I thought, because with Professor Smith here to correct me and explain it himself—in a room full of law school gunners, all I would accomplish is self-embarrassment.

Or it could mean the equitable remedy. Property, after all, supplies the one big exception to the usual rule that the usual remedy for breach of a sales contract is damages, and not an injunction. Nope, too :contracty: for today's program.

Or it could mean, as the Supreme Court held last term in Tyler vs Hennepin County (shout-out to Christina Martin up in the back row today) that “equity”—the owner's stake (her property) remaining in property after encumbrances—is private property subject to the Just Compensation requirement when it is acquired, or perhaps more conceptually, pressed into public service by dumping into the County’s General Fund. Tyler, where the unanimous Court—the unanimous Court!—recognized the very Locke-ian view that Ms. Tyler’s lifetime of labor (reduced to the money with which she acquired her home), is “private property” that the County could not simply grab because she neglected to pay her property taxes. Her “pursuit of Happiness” happened to find form in her home, and she did not forfeit that Happiness just because she neglected to pay the Crown its tithe for a year or two.

Lawprof Michael Wolf (Florida) and Christina Martin (PLF)
discussing "Emerging Issues"

But we are lucky to have Christina here, so you don’t need to hear the details from me, and she can tell you what it was like to be in the room where it happened.

Or, finally, it could be some other vision of property as a form of equity. Instead of property being viewed as a bundle-of-rights or the foundation for personal autonomy or individual liberty, it should be viewed as a set of rules applied to promote the collective good, or well-being. And who could argue for as seductive a theory whose goal is human flourishing? Is private property subject to a "reciprocal obligation" to maximize social good? To put it in private law tort terms, do property owners have a duty to rescue others whom they did not endanger? Prosser says no; why not Nichols? Indeed, both our First and Second Founders seem to have said exactly the opposite.

But as one previous Brigham-Kanner Prizewinner commented at this Conference a few years ago, that year’s Prizewinner “loves property so much, he thinks everyone should have yours.” But alas, as above, if I chose that as my gloss on property as equity, I would also be faced with the daunting task of, in effect, “talking back” to my Professor in class. I was a back-of-the-class student in law school—and even gunners know you don’t tug on Superman’s cape.

So let me lay this perhaps counterintuitive notion on you:

Private property and the individual’s right of ownership of private property—including the right to exclude others from using it, taking it, or occupying it—is at its core an equitable notion. After all, property is the great equalizer. Not in the sense that we are all guaranteed a share of the pie, but rather that ownership and protection of private property rights affords the opportunity for a share of the pie, both economically and more importantly, politically. As Prizewinner Jim Ely quoted in his book title, it indeed is the “Guardian of Every Other Right.” If you possess property – and the law protects your property rights – you have a unassailable stake in the democratic enterprise.That kind of "equity."

To illustrate that, the story of one of my mentors in the law, an Old School San Francisco trial lawyer. As a courtroom lawyer, he was a simple guy (as he always said). He was a successful courtroom lawyer back in the day before Escobido and the right to counsel and public defenders -- 22 death penalty defense cases with 21 acquittals, one hung jury --but he never practiced property law a day in his life. He had become a lawyer after growing up during the Great Depression and then somehow surviving the entirety of World War II -- December 7, 1941 to V-J Day -- as a United States Marine.

It was, in his words, lawyering was "a living," and beat storming various island across the Pacific under machine gun and artillery fire. He found success as a lawyer and bought some San Francisco property -- a home, his law office, and even a couple of residential rental properties.

As he was nearing retirement, I asked him what he would do if it all came crashing down again, just like in '29, or '41, and the world went to crap. What would you do if you had to start all over again?

He responded that he took comfort in the fact that he could always go "camp on my land." That if the world started again on the hellish path, his last line of security was his property. He'd seen rough times. Worse than any of us today ever has. And his property was the one place he could call his own. That's where he'd make his stand.

That seems true for many of us. Property is where our families are. The things we've turned the sweat of our brows into. Where we make our stand.

So should it offend our sense of equity when—purportedly in the effort to equitably ensure that no one is kicked out on the street during a pandemic—every level of government rewrites the most essential term in a residential and commercial lease—the property owner’s agreement to turn over to the tenant the right to occupy and exclude, but only as long as the tenant pays timely rent—that most courts conclude that the right to exclude – timely rent – has been forfeited indefinitely, wholly ignoring the autonomous mutual agreement otherwise. That the costs of commandeering for public pandemic housing should be borne by property owners alone.

Or should it offend our sense of equity when a municipality prohibits property owner from even asking whether a prospective occupant has a criminal record? You must include everyone. Equitable, perhaps. But not really, if instead of seeing the equitable distribution of property as the measure of human flourishing, we view property’s role as focused on its equality-forcing individual qualities.

How about when the sovereign compels a pharmaceutical company to give away its product for free, because people need it?

I don’t think this is a novel idea. The common law concepts of “property” is an equitable notion in that the custom, as determined by the community itself acting mostly through juries, established which sticks in the bundle are—in some particular application (think private nuisance law, for example)—deserving of legal protection.

Today we might call that a determination of how far may regulation go into intruding on property and property rights before it can be deemed to go “too far” and “in justice and fairness” (talk about equitable language) is a public benefit that must be borne by everyone benefited. These “ad hoc factual inquiries” (more equitable language) should, it seems, be made by the same juries that have for a millennium been determining the ultimate question in every property case: What is Property? Is the right, the autonomy, advanced by the claimant, a property right deserving of recognition in our custom?

Who better understands what outcome will maximize "human flourishing" as our Prizewinner advocates than a jury? Yet the most common refrain I hear today is about how judges should view property.

In my view, judges' views of property are less important than a jury's view.

Lawprof Molly Brady (Harvard) explaining the work
of the Restatement of Property (Fourth)

But these days, it has morphed into a judge question—the scope of the property as determined by the Chancellor’s Foot, rather than the equitable (and dare I say democratic) institution of the jury.

I think there’s no better (or perhaps “worse” is a better way to put it), illustration of the failure of the equitable power of property rights than our collective history of denying everyone the equal opportunity to own property – and every stick that comes along with ownership – (including, yes, the ability to keep it). For the longest time, the law only asked for the views of Pierson and Post, never bothering to ask the fox about his. Excluding everyone from the human right of property ownership and property rights, and their equitable effects—is a tragic story, and one that we’re presently confronting in the search for our “more perfect” Union.

Before I sum up, please allow me to take the opportunity of having the dais to venture a little off-script. We all recognize what Lynda Butler has done for this Conference, for the Property Rights Project, and for the Law School. But I want to thank you, Lynda, for being my Dirt Law Spirit Guide, and especially for entrusting me with your beloved Land Use class upon your retirement. It was then that I told myself “Robert, my boy, when Lynda Butler asks you to teach Land Use, you know you’ve made it.” Thank you, Lynda, I will never forget your trust and kindness.

Finally, being here at the lectern at the Brigham-Kanner Conference is the Property Law equivalent of standing at home plate at Yankee Stadium in October. The Super Bowl of property law and property rights. Top of the mountain. No better place.
I’m honored to be sharing this time with you.

Mr. Moderator, I yield the balance of him time. I welcome the Court's questions.

Thank you.

* * * * 

Final note: this is an excellent conference for Dirt Law practitioners, scholars, and jurists. If you have not attended in the past, you really should consider joining us for the 21st edition next year.

CA9: No Physical Commandeering In Eviction Moratorium Because Yee Says "You Let The Tenants In, So You Can't Complain About Keeping Them (For Free)"

A short one from the Ninth Circuit on a topic that we keep revisiting, whether the various eviction moratoria adopted and enforced by the feds and many states and local governments during Co-19.

We keep revisiting the topic because the courts keep getting it wrong.

And before we go on, a disclosure: this is one of ours, and our law firm and our colleague Jon Houghton rep the property owners.

This moratorium is from the State of Washington (yes, the same State of Washington whose moratorium was recently challenged unsuccessfully in the state courts). But this challenge is to the City of Seattle's moratorium, and is in federal court.

Thus, it was the Ninth Circuit considering the question of whether, by commandeering rental property as pandemic public housing, Washington was on the hook for just compensation. Requiring to house residents -- whatever the reason -- is a physical occupation taking, right? 

Not to the Ninth Circuit (and most other courts that have considered the issue). Which in El Papel, LLC v. City of Seattle, No. 22-35656 (Oct. 26, 2023), rejected the owner/lessor's physical occupation takings claim.

Wait, you say, how is this not a physical occupation? After all, the leases which tenants sign onto all condition their right to occupy the premises on the timely payment of rent. Yes, the owner has conditionally transferred a right to occupy (and thus also transferred the right to exclude from the owner to the tenant), but the key word here is "conditionally." Pay rent on time and you can remain. Don't, and permission revoked, and the owner has the right to exclude.

Read the entire Ninth Circuit opinion (its unpublished, and thus short) for the reason why the panel rejected this reasoning. Yes, it is the Yee v. City of Escondido theory (mis)read yet again:

We likewise conclude that the district court did not err by granting summary judgment in favor of Seattle. We agree with Seattle that the Supreme Court’s decision in Yee v. City of Escondido, 503 U.S. 519 (1992), controls here and forecloses the Landlords’ per se physical-taking claim. The Landlords argue under Cedar Point Nursery v. Hassid, 141 S. Ct. 2063 (2021), that, as applied, Seattle’s eviction restrictions constituted a physical taking. While the Landlords make some compelling points, Cedar Point Nursery does not support their claim.

Unlike in Cedar Point Nursery, where a state regulation required agricultural employers to grant entry onto their property to union organizers for up to three hours a day so that the organizers could solicit support for unionization, see 141 S. Ct. at 2069–70, Seattle’s eviction restrictions did not impose a physical occupation on the Landlords, see Yee, 503 U.S. at 527 (“The government effects a physical taking only where it requires the landowner to submit to the physical occupation of his land.”). Nor did Seattle’s restrictions compel the Landlords to use their property for a specific purpose. The Landlords here chose to use their property as residential rentals; the tenants’ occupancy was not imposed over the Landlords’ objection in the first instance. Cf. Yee, 503 U.S. at 528 (finding that the government had not “required any physical invasion of [the owners’] property” by the park owners’ existing tenants).

Slip op. at 5-6.

Is the distinction that the Ninth Circuit relies on really a distinction? True enough, the moratorium didn't force open the metaphorical gate to El Papel's property like California in Cedar Point. The property owners here invited the tenants to occupy, and Seattle simply required the owners to keep the gate open and prohibited the owner from getting a trespasser out. Is that really the score, that once you invite someone in, you can be required to house them indefinitely?

When someone's property is pressed into public service and commandeered for pandemic housing, they can't be made to shoulder the cost by themselves, can they?

Something tells us this isn't the end of this issue, for not all courts misread Yee (see here and here, for example).

El Papel, LLC v. City of Seattle, No. 22-35656 (9th Cir. Oct. 26, 2023) (memo.)

Midnight Quick Take: NC Supreme Court To Consider Remedies For Failed Takings - What Happens When A Taking Lacks A Public Use, But They've Already Seized The Property?

Here's the latest on a kind of strange case we've been following.

Our case starts off as a somewhat typical public use challenge. After a developer failed to negotiate purchase from Rubin an easement for a sewer line to serve a nearby housing project, the developer enlisted the Town of Apex to lend a hand.

Next, whaddaya know, the Town is taking the easement for the developer's sewer line from Rubin by eminent domain, with the developer paying the compensation and the costs of the lawsuit. If this sets off your private benefit radar, you'd be right. The North Carolina courts sure thought so. No public use. 

You might think that this would signal the end of the matter. We know what would happen if the Town had affirmatively abandoned the taking. In that case, it wouldn't be off the hook if it walked away, and although it would not be able to execute its desired permanent taking, the Town could be liable for compensation for any temporary taking while it prosecuted the (failed) condemnation.

But this situation is different, because here, the Town wants to take the property, but the court said no. Now what? You might think that the Town would have another go, this time with all the "private benefit" stuff scrubbed out. We've been down that path before, and a second court may well say 'yes there is smoke, but I don't see fire" and let the second condemnation go ahead.

But no. Not deterred, the Town decided "who needs public use or even a second (cleaned up) taking; let's just take it anyway" (we're paraphrasing of course, but you get the drift). While the court was considering the case but before it imposed any remedy for the pretextual take, the Town simply installed the sewer line using its quick take power.

Ah the old "midnight building permit" recast as "Midnight Eminent Domain."

Now what ... again?

The trial court rejected Rubin's request for a mandatory injunction ordering the Town to get the sewer line off her property. The court concluded that the remedy for the Town's trespassing with a sewer line on Rubin's land was for her to sue for inverse for compensation for compensation, which she had not done. Lacking an inverse claim, the trial court concluded that the Town's "just take it" approach was ok. 

In Town of Apex v. Rubin, the Court of Appeals affirmed the trial court's conclusion the taking lacked a public use. But it also expressed shock and dismay that the Town would try to get around that by a purported exercise of its quick take power, and make the lack of public use fait accompli. As the court held, "[t]his not the law, nor can it be consistent with our Federal and State Constitutions." Slip op. at 2. But the court of appeals didn't order the Town to remove the sewer line. Instead, it held that the proper claim is government trespass, and the proper remedy is ejectment. 

No party was satisfied with the court of appeals' ruling, and the Town sought discretionary review (and Rubin conditionally cross-petitioned).

In this Order, the North Carolina Supreme Court agreed to take up the case (and in this Order, also granted Rubin's cross-petition).

Read more on the case from the Carolina Journal, "State Supreme Court will take up legal battle over disputed Apex sewer pipe."

Stay tuned, we're going to keep following along.

Order, Town of Apex v. Rubin, No. 20-305 (N.C. Oct. 18, 2023)

2023 Brigham-Kanner Property Rights Conference (Oct. 26-27, 2023)

This week is what we call Brigham-Kanner week here at William and Mary Law School. The week culminates in the Thursday presentation of the Brigham-Kanner Property Rights Prize to lawprof Greg Alexander, followed on Friday by the Conference presentations (see below).

And earlier in the week, we're having a series of law student-oriented programs, featuring sessions on "Careers in Dirt Law," "Comparative Property Rights" (feat. Toronto expropriation lawyer Shane Rayman), and "Property Rights Practice Perspective" (feat. several young lawyers -- including W&M Law alums -- who are now practicing eminent domain and takings law).

Here's the full B-K Conference program.

The Friday program includes some very intriguing topics:

• Property and Propriety (or the Well-Ordered Society): A Tribute to Gregory S. Alexander
• Equity’s Role in Defining Property Rights*
• Emerging Issues Roundtable
• The Restatement’s Impact on Property Rights
• The Scalability of Property Rights - the Extent to Which Interests in Property Are or Should be Constitutionally Protected
  

* we're speaking at this session along with Prof. Henry Smith (Harvard), Prof. Samuel Bray (Notre Dame), and Timothy Sandefur (Goldwater Institute).

2023 Brigham-Kanner Property Rights Conference Program (Oct. 27, 2023)

Deb La Fetra Guests On Clint Schumacher's Eminent Domain Podcast On Self-Executing Just Compensation

The topic of the "self-executing" nature of Just Compensation is in the news these days, with the Supreme Court's agreeing to review Devillier v. Texas.

But we've been on that issue for quite a while, and in a recent episode of Clint Schumacher's Eminent Domain Podcast (if you are not already subscribed, why not?), our Pacific Legal Foundation colleague Deborah La Fetra joins Clint to discuss the issue, including a recent case we did together involving the intersection of property rights and the federal government's bankruptcy power.

As the program notes note:

Deborah La Fetra of the Pacific Legal Foundation joins us to talk about the case of Financial Oversight and Management Board for Puerto Rico v. Cooperativa de Ahorro y Credito Abraham Rosa, a unique case where the boundaries of just compensation and governmental restructuring collide. Deborah and PLF served as counsel for several of the unpaid property owners.

Additionally, Professor James Stern of William & Mary Law School joins to talk about the Brigham-Kanner Property Rights Conference scheduled for October 26-27 at the campus of the William & Mary Law School.

Check it out.

Links And Materials From "Inverse Condemnation & Paying for Disasters"

Yesterday, during the Annual Meeting of the Hawaii State Bar Association, we participated in a program sponsored by the Real Property and Financial Services Section, "Inverse Condemnation & Paying for Disasters."

As you can see above, we joined lawprofs Shelley Saxer and David Callies to share thoughts about inverse claims, and the difference between these property arguments and tort negligence claims.

Here are some of the key cases and materials which we mentioned (or should have):

• Lights Out In The Land Of No: The Practical Effects Of California's Wildfire Inverse Condemnation Doctrine
• Cal Supreme Court: Stop Saying Inverse Condemnation Is "Strict Liability"
• MR-GO, Katrina Flooding: Inverse Condemnation And Schlimmbesserung At The Federal Circuit
• Evaluating Emergency Takings: Flattening the Economic Curve, 29 Wm. & Mary Bill of Rights J. 1145 (2021)
• First Lawsuit Filed (Incl. Inverse Condemnation) For Maui Wildfire: Is California-Style Inverse Condemnation Coming?
• Our Drive-Time Conversation About Hawaii Inverse Condemnation And Wildfires
• Shelley Saxer, Paying for Disasters, 68 Kan. L. Rev. 413 (2020)
• Inverse Condemnation And Wildfires

To those of you who were able to join us -- mahalo!

Wed Oct 19 6pm ET - "'Erasing the Black Spot' - How Virginia Universities Have Disrupted Black Neighborhoods" (Hampton University)

If you happen to be in the Hampton Roads neighborhood later this week, you may want to consider paying a visit to Hampton University for what looks like an intriguing program:

Exclusive Event: 'Erasing the Black Spot' - Oct. 19

 

The Virginia Center for Investigative Journalism at WHRO and ProPublica Present “Erasing the Black Spot” - How Virginia Universities have Disrupted Black Neighborhoods

October 19, 6 p.m.
Robert P. Scripps Auditorium
Scripps Howard School of Journalism and Communications, Hampton University
200 William R. Harvey Way
Hampton, VA 23669
Register to attend

Virginia’s public universities have a long history of expanding campuses in the name of progress and economic growth. But often, these expansions used eminent domain and property seizures to disrupt and diminish thriving Black communities across the state.

An investigative series by The Virginia Center for Investigative Journalism at WHRO and ProPublica uncovers the damaging social and economic impacts on Black communities of college expansions at Christopher Newport University, Old Dominion, and the flagship University of Virginia.

In the second half of the 20th century, the rapid growth of public universities across Virginia uprooted hundreds of Black families, hindering them from accumulating wealth in the most American way — homeownership.

In a new panel discussion, VCIJ at WHRO journalists share their findings and stories from the residents who were displaced.

Our friend and colleague Joshua Baker (Waldo & Lyle, Norfolk, Virginia) is among the speakers.

More details here. We hope you can check it out. 

Backing Into Williamson County Again - CA6: We Already Said That State Officials Sued Individually For Compensation Have Qualified Immunity

The Sixth Circuit these days. Lots of property and takings-related stuff being decided in that court. See here, here, here, here, here, and here for some examples.

The latest is O'Connor v. Eubanks, No. 22-1780 (Oct. 6, 2023), in which an unsigned panel opinion (with concurrence of Judge Thapar in the result, but not in the reasoning), held that state officials sued in their individual capacities have qualified immunity from takings claims which seek just compensation. But are not similarly immune from procedural due process claims.

Short story: O'Connor was the payee on two checks that were delivered to his property. Apparently he got neither, so the payors turned the checks over to the State of Michigan, which treated them as unclaimed property.

Michigan's unclaimed property statute moves fast. It requires that the State, after first publishing notice, to sell or liquidate the property within 3 years if there's been no claim by an owner. The monies are deposited into the State's general fund, less admin costs. The owner can't then get the actual property back, but has a claim for the proceeds. The statute accounts for interest, "but only if their property accrued interest before the State took custody of it." Slip op. at 3.

O'Conner filed a claim to obtain the proceeds. The State paid him, but did not include interest. He claimed he is entitled to interest, and for the State to keep the interest is a taking requiring just compensation. O'Connor also claims the State did not provide his proper notice.

The Sixth Circuit summarily affirmed the dismissal of the takings claim because state officials sued in their official capacities have qualified immunity. The panel based its decision on recent circuit precedent (see this post for more on that). Here's the entirety of the opinion on that issue:

The Fifth Amendment’s Takings Clause provides that “private property” shall not “be taken for public use, without just compensation.” U.S. Const. amend. V. In his complaint, O’Connor alleges that the officials violated the Takings Clause. But under circuit precedent, Eubanks and Stanton are entitled to qualified immunity on these claims. See Sterling Hotels, LLC v. McKay, 71 F.4th 463, 468 (6th Cir. 2023). Earlier this year in Sterling Hotels, we held that individual liability for takings claims is not “clearly established.” Id. (“[N]o court in this circuit had yet decided whether an officer could be liable for a taking in his individual capacity . . . and at least one case suggested the contrary.”) (citing Vicory v. Walton, 730 F.2d 466, 467 (6th Cir. 1984)). Thus, we granted qualified immunity to an official sued in his individual capacity. Id. Because Eubanks and Stanton are also being sued in their individual capacities for takings claims, they are entitled to qualified immunity under Sterling Hotels.²

--------

²  O’Connor attempts to distinguish this case from Sterling Hotels, but the latter sets a clear rule: qualified immunity bars individual liability for takings claims under 42 U.S.C. § 1983^.

Slip op. at 4.

O'Connor also raised a takings claim against the State of Michigan itself, but we know where this one headed: that's right, the Eleventh Amendment has been interpreted as prohibiting a state from being sued for money in federal court, unless the state consents or there is no remedy in state court.

Thus, the panel Williamson County-d it, and held that O'Connor could sue Michigan in Michigan's courts under the unclaimed property statute which recognized a claim for unclaimed funds. Thus, "a remedy is available in state court." Slip op. at 7/

By contrast, the Sixth has not previously decided the same issue in a due process claim, so the panel concluded that interest is "property," and that the complaint alleged that O'Connor was provided "no process" at all (an allegation the defendants did not deny (choosing instead to argue O'Connor has no right to process). Thus, the state officials sued in their individual capacities do not have qualified immunity. Slip op. at 6.

On to Judge Thapar's concurring opinion. We suggest you read the entire opinion, which begins on page 8. It's not long. His bottom line: the defendants here "are off the hook for O'Connor's takings claim [because of circuit precedent as noted above]. But in the future, our circuit can and should permit takings claims against officials." Slip op. at 8 (Thapar, concurring).

The concurring opinion focused on the history:

Thus, in the early decades of our republic, lawsuits against officials were a viable remedy for takings. Indeed, because states enjoyed sovereign immunity, suits against officials were among the only takings remedies for most of the nineteenth century.

Slip op. at 11 (Thapar, concurring).

Judge Thapar also recognized that the Catch-22 that property owners who have federal just compensation claims against a state find themselves in does look awfully familiar:

If that doesn’t give us enough reason to reconsider Vicory, its combined impact with DLX should. When a state official takes someone’s property without compensation, two obvious defendants come to mind: the official who committed the taking, and the state. Yet our precedent forecloses suits against either defendant in federal court. Vicory prevents claims against officials. And DLX bars claims against the state in federal court. Skatemore, Inc. v. Whitmer, 40 F.4th 727, 734 (6th Cir. 2022) (citing DLX, 381 F.3d at 526–28). Thus, unless there’s a municipality to sue, plaintiffs must litigate takings claims in state court.

If this rule sounds familiar, that’s because it’s not new. It’s a version of the “state-litigation” rule. More importantly, it’s a rule the Supreme Court deemed “wrong” and “exceptionally ill” just four years ago. See Knick, 139 S. Ct. at 2178. In Knick, the Court rejected the idea that a plaintiff had no remedy in federal court until a state court denied him compensation. Id. at 2179. To hold otherwise, the Court noted, would “relegate[] the Takings Clause to the status of a poor relation among the provisions of the Bill of Rights.” Id. at 2169. Indeed, the Justices have repeatedly recognized that the state-litigation rule is “at odds with the plain text and original meaning of the Takings Clause.” Arrigoni Enterp. v. Town of Durham, 136 S. Ct. 1409, 1409 (2016) (Thomas, J., dissenting from denial of certiorari). So we should stop enforcing it.

To be sure, our precedent doesn’t impose a state-litigation rule in so many words. But together, DLX and Vicory get us pretty close. Unless a municipality is available as a defendant—and as this case shows, that’s not always the case—plaintiffs are stuck litigating in state court. At best, plaintiffs can sue the state in federal court if remedies aren’t available in state court. See Skatemore, 40 F.4th at 734. But Knick expressly rejected that kind of arrangement: “The availability of any particular compensation remedy . . . under state law, cannot infringe or restrict” an owner’s right to pursue a remedy in federal court. 139 S. Ct. at 2171. The Supreme Court shattered the state-litigation rule in Knick. Our circuit shouldn’t piece it back together with Vicory and DLX.

Slip op. at 11-12 (Thapar, concurring).

Stay tuned.

O'Connor v. Eubanks, No. 22-1780 (6th Cir. Oct. 6, 2023) (per curiam)

Restating Dirt Law At The American Law Institute

The Mothership

We're spending a couple of days in Philadelphia at the American Law Institute mothership [insert angelic music soundbyte here], as ALI members meet to continue the work on the Restatement (Fourth) of Property.

Very interesting stuff for us Dirt Lawyers. Partition, leases, holdover tenants, statute of frauds, and the like. You know the drill.

With some of the leading legal scholars, jurists, and practitioners in our field, it can be a little bit intimidating for this back-of-the-room guy to be in a room full of law school "gunners."

But so far, we're holding our own.

The room where it happens.

How the Property Law sausage gets made.

Supreme Court Property Rights Round-Up

Here's what we're reading about the Supreme Court's property rights docket -- some good, some disappointing -- this day.

• Niina Farah, "Supreme Court flooding case could ripple across the energy sector" (E & E News / Energywire) - About the Devillier case (which we summarized here), in which we were quoted: "The Supreme Court decision to hear the Devillier case comes after a concerted effort in recent years to convince the court to address procedural maneuvers that have made it challenging for property owners to bring their claims to court, said Robert Thomas, director of property rights litigation at the Pacific Legal Foundation. The nonprofit is among the groups that has asked the court to address takings cases and has lent its support for the property owners in Devillier in a 'friend of the court' brief. 'There’s a lot of gamesmanship going on trying to avoid getting to the actual core question — is compensation owed for the take?' Thomas told E&E News. 'You will see local governments, and often the federal government, interposing these procedural defenses to move the chess pieces around.' This case is an example of how court procedure is being used to stymie damage claims from property owners, he added.
• Bob Egelko, "U.S. Supreme Court agrees to decide legality of fees charged to California homebuilders" (San Francisco Chronicle) - About the Sheetz case (which we summarized here), "Christopher Elmendorf, a UC Davis law professor who has written extensively about housing issues, said a ruling in Sheetz’s favor could also allow challenges to 'inclusionary zoning' rules in San Francisco and other communities, which require new developments to contain a certain percentage of affordable-housing units. That might encourage more housing construction in the short run, he said, but it probably wouldn’t have a major impact on the housing shortage in California.
• Suzannah Cavanaugh & Kathrun Brenzel, "Supreme Court didn't save landlords. now what?" (TheRealDeal) - About the Court's denial of one of the three petitions challenging New York's draconian amendments to its rent control law (there are two other cert petitions, both of which were relisted; see here and here).
• Andria Cheng, "Supreme Court Denies Challenge to New York's Rent Regulation Law" (CoStar News) - More on the rent control petition denial.

Let's hope there's more good property rights news from SCOTUS to report soon.

 

New Takings Cert Petition: The Right To Exclude Is A Fundamental Right Isn't It?

To us, one of the strangest things in constitutional law is the conclusion that although private property is a fundamental right for purposes of the Just Compensation Clause, it isn't fundamental for purposes of the Due Process Clause. When your private property is taken you must be provided compensation. But when you are deprived of property, all you get is rational basis review. But both "property" and "private property" are right there in the text of the Constitution. How can courts conclude that a property right isn't fundamental?

Doesn't compute for you either?  The lower courts are indeed all over the place on this one. Check out cases like this one, and compare the reasoning to cases like this one.

Last week, our firm filed a cert petition asking the Supreme Court to take up the issue. The case involves property owners' Due Process challenge to the City of Seattle's ordinance that forbids owners from considering a prospective tenant's criminal history when deciding whether to let that person occupy rental property.

This one is one of ours, so we won't be commenting on it in any detail. But here's the Question Presented:

The City of Seattle’s “Fair Chance Housing Ordinance” declares it unlawful for private property owners to consider a prospective tenant’s criminal history when deciding who may occupy their property—even though criminals are substantially more likely to reoffend in and around their residences. The Ordinance bans such consideration regardless of the gravity of an applicant’s crimes, the number of convictions, the time since the last conviction, or other indicators that the applicant poses a risk of harm to an owner’s family or other tenants, and the Ordinance furthermore subjects owners to massive civil penalties for considering that history when selecting tenants. The City exempts itself and other public housing providers from these restrictions.

Chong and MariLyn Yim own a triplex in Seattle. As is often necessary in housing-deprived cities nationwide, the Yims and their three children shared their living and intimate spaces with tenants—they live in one unit and rent the other two. The Ordinance deprived the Yims of their fundamental right to safeguard their home, to keep dangerous convicted criminals out of their property, and of their obligation to protect their children and their tenants.

The question presented is:

Does Seattle’s restriction on private owners’ right to exclude potentially dangerous tenants from their property violate the Fourteenth Amendment’s Due Process Clause?

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

Petition for Writ of Certiorari, Yim v. City of Seattle, No. 23-239 (U.S. Sep. 26, 2023) by RHT on Scribd

PruneYard Revisited: Washington SCT Says No Physical Occupation Taking In State's Eviction Ban - You Invited Tenants In, So Forcing Owners To House Them For Free Is Merely Regulating That Voluntary Relationship

We're not going to ask you to read the entire 24 pages of the Washington Supreme Court's 5-4 opinion in Gonzales v. Inslee, No. 1000992-5 (Sep. 28, 2023), in which the court seriatim rejects every challenge to the Governor's Co-19 emergency eviction moratorium for tenants, which allowed tenants who did not pay rent to remain in occupation for the up to 15 months the moratorium was in place.

Instead, we're going to focus only on the takings challenge under the Washington Constitution. The plaintiffs asserted a physical takings claim, based on their right to exclude nonpaying tenants. Rejecting the argument (as several other courts have done), the Washington court concluded that the moratorium on evictions was merely regulation of the "voluntary relationship" between an owner and tenant.

Hang on, you say, what do you mean "voluntary relationship?" If I am an owner, yes, I voluntarily handed over the keys and established a contractual relationship with the tenant, but that relationship was based on several essential terms, foremost of which was you get to stay as long as you pay rent. I most certainly did not agree to let tenants continue to occupy my property if they do not pay rent. How can this be "voluntary."

The court rejected this notion, concluding instead that you let 'em in owner, so after that it doesn't matter what happens. Sky's the limit. Getting 'em out is merely "[g]overnment regulation of that voluntary relationship[.]" Slip op. at 16. And that, "without more, is not a taking." Id. (And if you predicted that the court relied on Yee v. City of Escondido, you'd be right.)

Yee, by the way, indeed holds that merely adjusting some of the terms of the voluntary owner/tenant relationship isn't necessarily a taking. Remember, that case involved a facial challenge to a rent control ordinance, and the Court concluded the government wasn't forcing anyone into the rental business, didn't keep anyone from getting out of the rental business, and acknowledged that there was no allegation the amount of the regulated rent kept the owner from receiving a fair return.

That case said nothing along the lines that the Gonzales opinion (and a lot of others) claim it says: once you let someone in (even if their entry was conditioned on continuing to pay rent), that you can be prohibited from getting them out. Take that, suckers!

After all, doesn't it seem like a pretty far stretch to say that a case in which the government only diddled with the amount of rent charged is the same as a case in which the government tells existing tenants "you don't have to leave if you stop paying rent." The first might not be wiping out an essential stick of property (after all, the owner can still collect rent, get out of the business, etc.). The second radically undermines an essential property stick (the ability to recover and possess property, get out of the business, etc.). Seems like a pretty darn significant difference to us.

Indeed, the U.S. Supreme Court seems to take a very dim view of the way the Yee opinion has been cited. In Alabama Ass'n of Realtors v. Dep't of Health and Human Services, the Court seemingly went out of its way to point out that the inability to evict nonpaying tenants "intrudes" on the "fundamental" right to exclude. What case is notably missing from the opinion? That's right, any mention of Yee v. City of Escondido. You might think that a rent-control decision in which the right to exclude might also be referenced. But no. So what this tells us is that maybe the Supreme Court does not share the same view of Yee as the kryptonite to physical occupation takings challenges for eviction prohibitions, temporary or permanent.

And here's the most bizarre part of the opinion, in our opinion. Indeed, one of the oddest things we've ever seen in a judicial opinion. We call your attention to footnote 9 on pages 17-18, which we reproduce here in its entirety. And we're highlighting the weirdest part, just so you don't miss it:

We are not without sympathy to the fact that the petitioners have been made to bear the cost of accommodating a public need. We note that both Congress and the Washington State Legislature have appropriated significant funds to defray at least some of that cost in situations where the tenants have not paid rent and have avoided paying their debts. See Laws of 2021, ch. 334, § 129(45) (appropriating $658 million for emergency rental and utility assistance); American Rescue Plan Act of 2021, Pub. L. No. 117-2, § 3201, 135 Stat. 4, 54-58 (2021); Consolidated Appropriations Act, 2021, Pub. L No. 116-260, 134 Stat. 1182 (2020); see also Treasury Rent Assistance Program (T-RAP), Wash. St. Dep't of Com., https://www.commerce.wa.gov/serving-communities/homelessness/cares-act-and-state-rent-assistance
[https://perma.cc/6VBV-GNH3].

Read that highlighted part again, just to make sure you got it right. We had to do so just to be sure our eyes were working. (They are.)

Yes, indeed, the court is acknowledging that impressing private rental units into public service as public housing is "accommodating a public need." And that owners of rental property are being forced to bear the cost of that accommodation.

To which we say ... what about Armstrong? Isn't this the fundamental point of the Just Compensation Clause to spread the cost of public benefits to everyone, and ensure that the poor saps whom the political process has left without a chair when the music stopped are not also left holding the economic bag? This part of Armstrong has been quoted so many times in opinions, briefs, and law review articles that surely it must be imprinted on your brain by now and like me, you can recite it from practically from memory:

The Fifth Amendment's guarantee that private property shall not be taken for a public use without just compensation was designed to bar Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole.

So it isn't like the Gonzales majority doesn't get what's going on, and that property owners were forced by the eviction moratorium to provide public housing for free. Which to us makes it worse: the majority believes that the Washington Constitution doesn't require distribution of the cost of public benefits to the entire public. 

Hate to break it to you, but the Washington Constitution cannot recognize lesser rights than the U.S. Constitution.

So stay tuned. That footnote is the Achilles heel, as it brings down the entirety of the opinion's no-taking conclusion. 

Gonzales v. Inslee, No. 100992-5 (Wash. Sep. 28, 2023) (en banc)

Cert Grant #2 - SCOTUS (Finally!) To Resolve Whether Legislative Exactions Are Subject To Nollan-Dolan-Koontz Nexus And Rough Proportionality

"I'll take 'Words I Like to See' for $800, Alex."

In this Order, the U.S. Supreme Court agreed to hear two important property rights cases (are there any other kind?). Both are cases we've been following -- and indeed are now playing a part in.

The first is detailed in this post.

In the second, Sheetz v. El Dorado County, the Court is finally getting to the long-unresolved question of whether an exaction or permit condition is exempt from the usual requirements of "logical nexus" and "rough proportionality" simply because the condition is imposed uniformly by legislation, and not ad hoc via an administrative or other permit decision.

We commented on the Sheetz case in this post ("Whether $23K Traffic Fee Is Proportional To One Single-Family Home Is Beyond The Ken Of Judges") and won't repeat the facts or comments here.

But here's the cert petition -- which did a pretty good job of summarizing the case and issues -- including the Question Presented:

George Sheetz applied to the County of El Dorado, California, for a permit to build a modest manufactured house on his property. Pursuant to legislation enacted by the County, and as the condition of obtaining the permit, Mr. Sheetz was required to pay a monetary exaction of $23,420 to help finance unrelated road improvements. The County demanded payment in spite of the fact that it made no individualized determination that the exaction—a substantial sum for Mr. Sheetz—bore an “essential nexus” and “rough proportionality” to the purported impacts associated with his modest project as required in Nollan v. Cal. Coastal Comm’n, 483 U.S. 825, 837 (1987) and Dolan v. City of Tigard, 512 U.S. 374, 391 (1994).

Mr. Sheetz challenged the exaction as an unconstitutional condition under Nollan and Dolan. A California trial court upheld the exaction, holding that, because it was authorized by legislation, the exaction was immune from Nollan/Dolan review. In a published decision, the California Court of Appeal affirmed, and the California Supreme Court denied review. California’s judicially-created exemption from Nollan/Dolan scrutiny for legislative exactions conflicts with the decisions of other federal and state courts across the country, and is in strong tension with this Court’s more recent precedents.

The question presented is whether a permit exaction is exempt from the unconstitutional conditions doctrine as applied in Nollan and Dolan simply because it is authorized by legislation.

There it is. Finally.

Congratulations to Paul Beard (the lawyer who argued and won Koontz, by the way) on the hard-won grant. Our law firm colleague Brian Hodges (in our estimation, the nation's leading and most seasoned expert on the exactions issue) filed this amicus brief which urged the Court to take up the case.

Lawprof Ilya Somin offered his thoughts on the cert grant and the case here ("Supreme Court Will Hear Case on Whether there is a 'Legislative' Exception to the Takings Clause") ("But the Court need not even consider such political economy issues. They can just rely on the basic principle that the whole point of constitutional rights is to impose constraints on the political process—including legislatures."), via Volokh.

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

Brief Amicus Curiae of Pacific Legal Foundation in Support of Petitioner, Sheetz v. Cnty. of El Dorado, No....

Cert Granted #1 - You Don't Need The Government's Permission To Obtain Just Compensation, Do You?

"I'll take 'Words I Like to See' for $800, Alex."

In this Order, the U.S. Supreme Court agreed to hear two important property rights cases (are there any other kind?). Both are cases we've been following -- and indeed are now playing a part in.

The first is Devillier v. Texas (the second is Sheetz v. El Dorado County which we've posted about here).

After what can only be described as a weird Fifth Circuit panel opinion, followed by an even more unusual post-cert petition en banc denial (complete with concurrals and dissentals), the Supreme Court granted the cert petition.

The Question Presented:

In First English Evangelical Lutheran Church v. County of Los Angeles, this Court recognized that the Fifth Amendment’s Takings Clause was “self-executing” and that “[s]tatutory recognition was not necessary” for claims for just compensation because they “are grounded in the Constitution itself[.]” 482 U.S. 304, 315 (1987). Since First English, several state courts of last resort have held that the self-executing nature of the Takings Clause requires them to entertain claims directly under the Clause without the need for statutory authorization. Two federal Circuits, the Fifth and the Ninth, disagree and have held that claims for just compensation are only available if they are legislatively authorized. The question presented is:

May a person whose property is taken without compensation seek redress under the self-executing Takings Clause even if the legislature has not affirmatively provided them with a cause of action?

In short, you don't need an authorizing or jurisdictional statute such as section 1983, do you?.

As the amicus brief which we filed along with our law firm colleagues Deb LaFetra and Kady Valois noted, we think the answer is pretty plain (no, you don't):

Consequently, because neither Congress nor a state legislature need agree to pay compensation, they do not need to adopt an implementing statute—and no waiver of sovereign immunity is necessary—for a plaintiff to invoke the judiciary’s authority to enforce the Constitution and impose a remedy. That is, if Congress repealed Section 1983 tomorrow, the constitutional mandate for just compensation remains. Or as this Court has put it, the Just Compensation Clause “of its own force” “furnish[es] a basis for a court to award money damages against the government[.]” First English Evangelical Lutheran Church of Glendale v. Los Angeles Cnty., 482 U.S. 304, 316 n.9 (1987) (quotation omitted).

Br. at 3.

This case is another in a long string of cases in which the Supreme Court is presented with the opportunity to rein in governments and stop the procedural game-playing. Whether it is telling property owners that they must chase approvals via a certain process only to later claim the process was not an official procedure so was meaningless. Or whether filing a state court eminent domain action so that it can ask the federal court to abstain from considering a landowner's already-filed regulatory takings lawsuit. Or asserting a statute of limitations is "jurisdictional," and therefore it doesn't matter that the government lulled the property owner into not objecting to his property being invaded by the public.The decisions in Knick and Pakdel were very obvious signals that the Court was exhausted (pun intended) with these type of exhausting games.

But the message apparently has only filtered down to the lower courts in fits and starts.

Take for example, the case now before the bench. The property owner took what might be considered an uncontroversial path: it sued the State of Texas for inverse condemnation, seeking just compensation for an allegedly State-caused flooding of the plaintiff's property. Nothing too wild about that. The plaintiff brought suit in the courts of the State of Texas. Again, nothing earth-shattering there, either.

But the State of Texas removed the case to federal court. That should set off your game-playing radar, since you'd think that Texas might prefer its own courts, and its own procedures, and its own jury pools. So why would Texas remove the case to federal court? It appears the only real reason was to make the following procedural gambit.

Once in federal court, Texas sought dismissal of the lawsuit. On what basis you ask? After all, any Eleventh Amendment immunity Texas might have enjoyed was waived when Texas itself invoked federal jurisdiction. But get this: Texas argued that the only way that the property owner could sue Texas for just compensation in federal court is if there is an enabling statute or some statute or authorization for a plaintiff to seek compensation. You need a vehicle, plaintiff. Well, what about the Just Compensation Clause itself, responded the property owner? Doesn't that say that if you take property government, that you must provide compensation?

Not enough argued Texas (and the district court and the Fifth Circuit agreed). You need more. The usual vehicle by which property owners seek just compensation for non-federal takings is section 1983, and here (Texas argued), that vehicle isn't available because it only applies to "persons," but the State of Texas isn't a person as that term is used in the statute. Only local governments and their officers are section 1983 persons. And lacking any other authorization to sue for just compensation for the alleged flood taking, the federal court could not consider the claim.

So where, under the State of Texas' theory, can a property owner go to raise these claims? Beats us. After all, if the owner goes straight to federal court seeking just compensation from a state, the state need only invoke its Eleventh Amendment immunity to get it dismissed. But if the owner goes the state court as the plaintiff did here, all that the state defendant need do is remove the case to federal court to make it magically disappear also. Wow.

Can you really have a right -- especially a right expressly set out in the Constitution itself -- that has no remedy and thus must rely on the government's consent? Not in our view.

And not just ours. It has been a fundamental principle that a "right" means there's a remedy, both on this side of the Atlantic and the other. As Justice Marshall put it in Marbury: ""The government of the United States has been emphatically termed a government of laws, and not of men. It will certainly cease to deserve this high appellation, if the laws furnish no remedy for the violation of a vested legal right." He didn't make that up. Lord Blackstone also noted, "it is a general and indisputable rule, that where there is a legal right, there is also a legal remedy, by suit or action at law, whenever that right is invaded."

So there you go. There it is. Finally. Follow the case here, or on the Court's docket here.

Brief Amicus Curiae of Pacific Legal Foundation in Support of Petitioners, Devillier v. State of Texas, No....

Just Published - IRWA's "Summary of Major Eminent Domain Cases & Legislation: Jan 1, 2023 - June 30, 2023"

Thanks to our co-authors for the latest issue of this recurring update.

The International Right of Way Association's Real Estate Law Committee produces twice-a-year reports "which contain summaries of eminent domain decisions and legislation within the United States." (This is the "international" right of way association, so that last qualifier is important.)

And what is really nice is that they make the report available.

The laboring oars on this are really Brad Kuhn and Jullian Friess Leivas (both from the Nossaman firm), but they were kind enough to include us. Brad and Jillian wrote up more at the California Eminent Domain Report:

We recently had the pleasure of collaborating with Robert Thomas and Ajay Gajaria once again for the International Right of Way Association’s (IRWA) biannual report covering numerous eminent domain cases at local, state and federal levels from January through the end of June 2023. This report is an important resource and reference point for professionals in the right-of-way industry.

In the report, we also take a brief look at pending, adopted and failed legislation across the U.S., while also providing updates on federal funding and projects associated with the recent Infrastructure Bill. The report also includes summaries of a few notable cases in Canada.

The report is short, and doesn't have a lot of fluff. Just what you wanted.

Check it out.

Green Backs And Land: Dr. Seuss (Thor Hearne) Explains Trails Act Takings

with apologies to Green Eggs and Ham

Our friend and colleague Thor Hearne (True North Law/Federal Takings blog) sent us this and when we asked, kindly consented to us sharing it with you.

Thor writes: "I was trying to explain to my granddaughters, ages six, three and four months what I do and the Trails Act cases where I represent property owners.  So, I wrote a Dr. Seuss summary of the Fifth Amendment and Trails Act takings."

Check this out:

Dr. Seuss Explains Trail Act Takings

In the land where you and I reside,
Private property's our joy and pride.
Everyone has a piece, maybe big, maybe small,
A place to hang your hat, a spot for a ball.

When government says, "Hey, we need your space!"
They must pay you, put a smile on your face.
Whether it's a farm, or a tree, or a pond,
They give you the dollars, of which you are fond.

But wait, what's this? A train's coming through!
An easement they need, to pass and to woo.
It's not quite your land, but not quite their place,
It's shared in a way, yet you both have a case.

When trains cease to chug, and the tracks fade away,
The owner says, "Yay! My land's back today!"
But if Uncle Sam says, "No, here we shall stand,"
He must open his purse, pay you for your land.

So, remember these words, in freedom we trust,
Private property's good; to respect it's a must.
Whether a home, or a field, or a bright yellow flower,
We each have our space, and in that lies our power.

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

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

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

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

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

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

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

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

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

Asserting His Property Right To Exclude "toxic fecal matter," Joe Montana Sues San Francisco For Inverse Condemnation

We're posting this Complaint, not because it raises any new or novel issue, but because one of the plaintiff/property owners is San Francisco 49ers legend Joe Montana, who is suing San Francisco, alleging that the city's maintenance of its stormwater/wastewater system (yes, the systems are one and the same) caused sewage to flood their Marina district homes.

Read the story here from SF Gate ("49ers legend Joe Montana sues San Francisco alleging 'toxic fecal' matter in home").

We're going to dust off the California Supreme Court's latest ruling on inverse condemnation liability for flooding, since we haven't looked at the doctrine in-depth in a while.

Complaint for Damages, Declaratory and Injunctive Relief, Armstrong v. City and County of San Francisco, No...

Arizona Supreme Court To Decide Whether Condo Law Which Permits Association To Force Sale Of A Privately-Owned Unit Is A Taking

Here's the Order by which the Arizona Supreme Court agreed to review a case we've been following.

The main issue is whether the Arizona condominium statute, which allows the condo association upon termination of the condominium regime, to sell individually-owned units is a taking under the Arizona Constitution.

Here are the questions presented:

FURTHER ORDERED: GRANTING IN PART the petition and cross-petitions as to these rephrased questions:

1. Either on its face or as applied in this case, does A.R.S. § 33-1228 authorize the taking of private property for private use in violation of Article 2, § 17 of the Arizona Constitution?

2. If any common elements or units in a condominium are to be sold pursuant to a condominium termination agreement, does A.R.S. § 33-1228 require all the common elements and units to be part of that sale?

3. If a contract incorporates an unconstitutional statute by reference, are the terms of that statute enforceable as to the contracting parties?

4. If a condominium declaration incorporates a statute by reference, are subsequent statutory amendments incorporated into the agreement?

We filed an amicus brief in the Court of Appeals, which argued that the statute should be construed to allow only the sale of the entire building, not individual units, but if the statute is read to permit picking off individual units for forced sale, then the statute allows for an unconstitutional and uncompensated taking.

The New York Times covered a very similar situation in Florida - "Their Retirement Plan Did Not Include Being Forced to Sell Their Condo" (Feb. 24, 2023).

Stay tuned for more as the case progresses. The argument date will be announced.

Order, Cao v. PFP Dorsey, No. CV-22-0228-PR (Ariz. Aug. 23, 2023)

CA9: Property Owner Has Standing To Challenge Commercial Eviction Moratorium Under Contracts Clause

This is one of ours -- argued by our Pacific Legal Foundation colleague Kady Valois -- so we won't be offering any commentary.

But we just have to post the U.S. Court of Appeals' opinion in Iten v. County of Los Angeles, No. 22-55480 (Aug. 30, 2023), because it discusses two significant issues, and sets out a roadmap for how to successfully plead a Contracts Clause claim.

First, standing. The court held that a commercial property owner -- a retired auto mechanic who leased his premises to an auto repair shop -- has Article III standing to challenge the County's commercial eviction moratorium which prevented the owner from evicting the tenant when it stopped paying rent but did not vacate. The court distinguished the standing requirement of "demonstrating injury in fact" from the question of whether the plaintiff has actually been injured. The first is a pleading requirement and turns on the nature of the claim, while the latter is a factual question for the trier-of-fact. Slip op. at 10-12. That is an important distinction that many frequently forget. We've all been in cases where the merits question gets bootstrapped into a question of whether the plaintiff is injured.

Second, to see whether Iten met the pleading requirement, the opinion goes into the nature of a claim under the Contracts Clause, noting it "was the most litigated constitutional provision in the nineteenth century." Slip op. at 13. But as we know, the Contracts Clause later fell out of favor with the courts, and "[s]trict application of the Contracts Clause ended in the Minnesota Moratorium case." Slip op. at 15. The Ninth Circuit continued:

The modern approach to the Contract Clause now considers not only whether the law impairs the obligation of the contract, but asks how “substantial” that impairment is and whether the state law is an “appropriate” and “reasonable” use of state police power. See Sveen v. Melin, 138 S. Ct. 1815, 1821–22 (2018) (quoting Energy Reserves Group, Inc. v. Kansas Power & Light Co., 459 U.S. 400, 411–12 (1983)). Although, post-Blaisdell, a Contracts Clause claim analysis requires additional inquiries, the merits of a Contracts Clause claim has always started with whether or not there is a change in a law (an “obligation”) that has impaired the original agreement of the parties.

Id.

Next, the court noted that "mortgage moratoria were, from the beginning, at the heart of the Contracts Clause. A law affecting or changing the terms the parties previously agreed to is the quintessential example of what the Contracts Clause was designed to prohibit." Id. This means that Iten, who is prohibited from evicting his non-paying commercial tenant because the County's prohibition, has standing to challenge the County's (alleged) realignment of the agreement between him and the tenant.

The court rejected the district court's rationale that despite the legal prohibition, Iten might have tried to evict the nonpaying tenant. The moratorium requires nonpaying tenants who wish to invoke the ordinance's protection to inform an owner, but the tenant here did not. Thus, the district court reasoned, Iten could have evicted for nonpayment of rent. The Ninth Circuit had a different view:

To show injury and causation for standing purposes, Iten need not allege that he would have been able to evict his Tenant “but for” the Moratorium. Nor need he show that his Tenant qualifies for the affirmative defense provided by the Moratorium. Rather, Iten need only allege that the Moratorium imposed additional rights, remedies, conditions, or procedures that impair the obligations to which he and his Tenant had contracted. Iten has made that showing here. He has alleged that Los Angeles County changed the framework for his lease with his Tenant by creating an additional affirmative defense for the Tenant, enacting a year-long forbearance period for unpaid rent, prohibiting Iten from charging late fees or interest, and adding civil and criminal penalties beyond those previously provided under California landlord-tenant law. Furthermore, the value of a commercial property is often tied to the value of its leases. Iten alleged that the Moratorium “undercut the economic value and security of [his commercial leases].” Thus, so long as the Moratorium was in effect, the economic value of Iten’s property, as influenced by the value and strength of the leases of that property, was diminished, and “[a] specific, concrete, and particularized allegation of a reduction in the value of property owned by the plaintiff is sufficient to demonstrate injury-in-fact at the pleading stage.” Barnum Timber Co. v. EPA, 633 F.3d 894, 898 (9th Cir. 2011).

Slip op. at 17-18.

The Ninth Circuit also rejected the conclusion that Iten "would have prevailed" in a state court eviction action, instead holding that "it was improper to speculate how a California court would have responded to an eviction action brought by Iten." Slip op. at 19.

The essence of the Contracts Clause claim is that the owner "is protesting the fact that he even has to run the gauntlet of additional procedures that were not in place when the Tenant signed the lease." Slip op. at 20. The court cautioned against "conflat[ing] constitutional injury with contractual impairment," and set out a roadmap for how to plead these claims (at least in the Ninth Circuit):

For purposes of standing, Iten alleged facts sufficient to state a claim that he suffered an injury traceable to the Moratorium for purposes of standing: He alleged that he was a commercial landlord living in Los Angeles County; that both he and the Tenant believed that the Moratorium applied to their lease agreement; and that the Moratorium altered the terms of his contract with his Tenant. Iten alleged that the Moratorium limited the legal procedures he may take to evict his Tenant for nonpayment of rent; that it prevented him from charging late fees or interest, which his lease otherwise allows him to do; and that it imposed additional penalties that chilled his ability to test the viability of eviction. In sum, Iten, at least for purposes of filing a complaint, has alleged that the obligations of his contract had been “taken away or materially lessened.”

Slip op. at 24.

Our congratulations to our colleague Kady for the win!

Iten v. County of Los Angeles, No. 22-55480 (9th Cir. Aug. 30, 2023)

Register Now For The 20th Brigham-Kanner Property Rights Conference, Oct. 26-27, 2023

Heads-up: the registration page for the 20th Brigham-Kanner Property Rights Conference, October 26-27, 2023, at the William and Mary Law School in Williamsburg, Virginia, is now up.

Early registration is a good thing because space is limited, especially at the Wren Building banquet on the 26th, at which the 2023 B-K Property Rights Prize will be presented to Prof. Gregory Alexander.

So please don't miss out.

The Property Rights Hall of Fame (second plaque)

If you are not already familiar with the Conference, it is (in our opinion) the best one-day event on property and property rights theory and practice. Expressly designed to bring together the legal academy and the practicing dirt law bar, the conference is where we discuss the burning property and property rights issues of the day. Here's the 2023 Program:

• Property and Propriety (or a Well-Ordered Society): A Tribute to Gregory S. Alexander
• Equity’s Role in Defining Property Rights
• Roundtable: Emerging Issues
• The Restatement’s Impact on Property Rights
• The Scalability of Property Rights (or the extent to which interests in property are or should be constitutionally protected)

Details here.

For more on the Conference, see our report from the 2022 Conference (more here as well).

Come, join us!

Our Drive-Time Conversation About Hawaii Inverse Condemnation And Wildfires

On this morning's drive-time program, we joined KHVH's Rick Hamada about whether Hawaii might adopt California's version of inverse condemnation liability in wildfire cases. We also tried to clear up a few misconceptions (gad, I used "disinformation," a term I try to eschew).

Here's the program description:

Inverse Condemnation and Maui Wildfires: A Conversation with Robert Thomas

Tune in to a thought-provoking episode where we engage in a conversation with legal expert Robert Thomas on the topic of inverse condemnation in relation to the recent Maui wildfires. As the community grapples with the aftermath of the devastating fires, we delve into the legal aspects of property rights, government accountability, and compensation for affected individuals. Join us as we explore the implications of inverse condemnation, a legal doctrine that holds governments accountable for taking private property without just compensation. Gain insights into the challenges faced by property owners in the wake of natural disasters and the legal avenues available to seek redress. Don't miss this informative discussion shedding light on the intersection of property rights, wildfires, and legal recourse.

Thanks to Rick for having me on.

The Downside Of Seeking Injunctive Relief In Takings Cases

A fairly short one from the U.S. Court of Appeals for the Fifth Circuit.

In Sheffield v. Buckingham, No. 22-40350 (July 31, 2023), the court affirmed the district court's declining to issue a preliminary injunction enjoining State of Texas officials from enforcing the Open Beaches Act.

The presumptive public/private boundary on beaches in Texas is the mean high tide line, although the public may obtain an easement to access the beach landward of the MHTL through prescription or dedication. But as the Texas Supreme Court held, abrupt shifts in the topography of a beach caused by hurricanes and tropical storms does not automatically "roll" the line landward under the state's Open Beaches Act. 

After the Texas court issued that ruling, the legislature amended the statute to permit the State to "suspend action on conducting a line of vegetation determination for a period of up to three years from the date the order is issued if the Commissioner determines that the line of vegetation was obliterated as a result of a meteorological event." Slip op. at 2. 

Well, that happened and after Hurricane Laura and Tropical storm Beta hit the area, the state ordered determination of the vege line suspended for two years. This had the effect of the public/private line being 200 feet inland of where it was prior to the storms.

Owners who own that 200 feet filed a takings lawsuit in federal court against the State, alleging that that "the public can now stand, sit, and otherwise station themselves on" the plaintiffs' private beaches. Because this is a federal court action against state officials, the only remedy sought was prospective injunctive relief: an order prohibiting the officials from enforcing the Act.

The district court declined to enter a preliminary injunction, and the property owners appealed to the Fifth Circuit. On the same day the owners filed their Opening Brief, the State rescinded the order suspending the vege line determination, concluding the beach was stabilized, and thus the suspension no longer needed.

You know what happened next: the state argued to the Fifth Circuit that the appeal was moot. We no longer doing anything that the court can enjoin, Your Honors!

But come on man, we know that the process isn't so easily manipulable. A party cannot automatically moot a case by voluntarily ceasing to do the very thing the plaintiff claims is illegal, and then perhaps starting right back up once the lawsuit is gone. The Fifth Circuit rejected the owners' arguments that this one is capable of repetition, concluding that the temporary order is unlikely to recur and any future harms are speculative.  

Yes, as littoral property owners, their properties could be subject to a similar action in the future. "But this is not unique to these Owners. All properties near the beachfront in Texas could theoretically be subject to similar actions." Slip op. at 6. Thus, this is a generalized grievance, not a specific harm.

Nor was the State suspending the suspension "litigation posturing" according to the Fifth Circuit. Yes, the State affirmatively rescinded the order a few months before it was set to automatically expire, but the court took the State at its word that the reason for the rescission was not to moot the appeal, but because it had served its purpose. The court was willing to presume this, in the absence of contrary evidence:

It would make little sense to have Texas leave the temporary order in place beyond its usefulness and purpose—laid out explicitly in the order—simply so a court could find that the case is moot. In effect, this order ended by its own terms when Texas determined that it achieved its written purpose.

The presumption of truth to Texas’ statements that the temporary order served its usefulness—and did not end because of litigation posturing—is warranted. This is because “[g]overnment officials ‘in their sovereign capacity and in the exercise of their official duties are accorded a presumption of good faith because they are public servants, not self-interested private parties.’”

Slip op. at 7 (citations omitted).

Not only did the Fifth Circuit decline to reverse the turning down of the PI, it dismissed the case as moot.

Why can't the owner seek just compensation for the (alleged) temporary taking? You know the answer to that question.

Sheffield v. Buckingham, No. 22-40350 (5th Cir. July 31, 2023)

Owners' Counsel Toby Prince Brigham Scholarship - Applications Being Accepted

Two years ago, Owners' Counsel of America endowed a scholarship in the name of its founder, property rights advocate and trial lawyer Toby Prince Brigham (1934-2021). The scholarship is for a second- or third- year law student to attend the annual three-day ALI-CLE Eminent Domain and Land Valuation Litigation Conference (the upcoming Conference will be in New Orleans, Louisiana, February 1-3, 2024).

The Conference affords the Scholar an all-expenses-covered opportunity to meet and network with leading property rights and eminent domain lawyers from across the country, while also learning about property law and practice. 

Here's the official description from OCA:  

In honor of Toby’s legacy of professionalism and achievement, in 2021 OCA established the Toby Prince Brigham OCA Scholarship to pay for all expenses of a second or third year law student to attend the ALI-CLE Eminent Domain conference and associated OCA events held annually in January. This unique scholarship affords the student the opportunity to learn about the substantive law of eminent domain and property rights, while also meeting and networking with the leading lawyers in these practice areas from across the country. This is what the very first Toby Prince Brigham OCA scholar, Nina Sawaya, had to say about her experience:

“Thank you Owners’ Counsel of America for the opportunity to meet and learn from the nation’s leading eminent domain and property rights lawyers. While I gained significant knowledge of the substantive law, I also learned about the importance of character as a practitioner. The OCA members taught me that you can be a strong attorney for your client, while still maintaining respect for your opponent. Learning about Mr. Brigham’s commitment to inclusion inspired me to remain true to my core values, while achieving my professional goals. The entire experience was one I will never forget!”

If you are a law student with an interest in applying for this scholarship or know of someone who may be, please contact Leslie Fields, Executive Director of OCA at o[email protected] or 303-806-5155. Applications are due by October 3, 2023. 

More here, from OCA.

Toby Prince Brigham OCA Scholarship Brochure (2023)

Still Time To Join Us Wed Aug 9: ALI-CLE's "How Did Property Rights Fare at the Supreme Court? What Happened in the 2022 Term and What's Next"

Tomorrow, Wednesday, August 9, 2023 at 1:00 - 2:00 p.m. (Eastern Time), please join us for ALI-CLE's web program, "How Did Property Rights Fare at the Supreme Court? What Happened in the 2022 Term and What's Next."

Here's the course description:

This has been a blockbuster U.S. Supreme Court term for property law, with the Court deciding three major property cases: Tyler v. Hennepin County (government’s keeping the excess value when seizing and selling a home to satisfy a property tax debt is a taking), Wilkins v. United States (is the federal Quiet Title Act’s statute of limitations a jurisdictional bar?), and Sackett v. EPA (the scope of Clean Water Act wetlands jurisdiction). To gain a better understanding these opinions, the current state of takings and property law, and what these cases mean for your practice, join a distinguished panel of experts for this one-hour webcast. The faculty will also explore what these decisions mean for the future and what steps lawyers can take to incorporate these decisions into their practices.

Among the things we'll be analyzing and discussing:

• What happened in each case and how the Court ruled
• The practical consequences of the decisions
• What new rules practitioners must understand
• What Sackett means for the efforts to define “Waters of the United States”
• How courts will treat the question of “what is the property” in takings and eminent domain litigation
• How you can avoid statute of limitations problems
• Where the Supreme Court might be going next and what issues remain open

I'll be moderating, and joining me will be takings and property experts lawprof Emilio Longoria, and Sophia Holley (Keating Muething & Klekamp).

We will also have a preview of the 2024 Eminent Domain and Land Valuation Litigation Conference, February 1-3, 2024, New Orleans.

Come, join us. The format allows for a lot of questions, interaction, and open discussion. As usual, there are group discounts.

Recognizing A Property Rights Icon: "Mentors, A Path to Fairness, and the Joy of Taking"

We recently attended the American Bar Association's Annual Meeting in Denver to speak at the Section of State and Local Government Law's program, "The 100th Anniversary of Pennsylvania Coal v. Mahon: How the Takings Clause Became the Primary Check on Government Power When SCOTUS Abandoned Review Under the Due Process and Contracts Clauses During the New Deal."

But the real highlight of the Meeting was the Jefferson Fordham Awards which, as we noted earlier, were presented to property rights icon Michael Berger, who the Section recognized with the Daniel J. Curtin, Jr. Lifetime Achievement Award.

Also noteworthy: the presentation of the Anita P. Miller Advocacy Award to land use law giant, Professor John R. Nolon, and the Up and Comer Award to a former William and Mary student (and now colleague) of ours, Makenna X. Johnson. 

Professor Frank Schnidman introduced Michael Berger and we thought it important to share his remarks with all of you, because he highlights Berger's commitment to fairness and the rule of law, and the importance of mentorship.

Frank graciously consented to us reprinting his remarks here.

******

Chance Glance: Mentors, A Path to Fairness and the Joy of Taking

Professor Schnidman introducing Michael Berger

American Bar Association, State and Local Government Law Section

Jefferson B. Fordham Awards Luncheon, August 4, 2023

Introduction of Michael Berger, Senior Counsel, Manatt Phelps & Phillips, LLP

by Frank Schnidman, John M. DeGrove Eminent Scholar at Florida Atlantic University, School of Urban and Regional Planning

Good afternoon.

First, I want to thank the ABA State and Local Government Law Section for giving me the opportunity to introduce my friend and colleague Michael Berger.

I was introduced to Michael Berger more than 50 years ago, and for over more than 30 years I have personally had the opportunity to watch Michael carefully and patiently educate 1,000s of attorneys, public officials, academics and students about “Fairness.”

In 1975 Michael wrote a law review article, To Regulate or Not to Regulate - Is That the Question? Reflections on the Supposed Dilemma Between Environmental Protection and Private Property Rights, 8 Loy. L.A. L. Rev. 253 (1975). Yes, 1975!

As so many others have recognized, Michael spent the next 48 years working on cases that would provide a path to an understanding that the only valid understanding of constitutional property rights must recognize the concept of fairness.

Michael stated those many years ago that:

“What is urged is that 'the public' take a long, hard look at what its needs are, assess all the costs involved, and proceed accordingly.

“If ‘the public’ wants land uses (or non-uses) which benefit ‘the public’ generally, then ‘the public’ should buy the property, or an appropriate interest in the property, rather that attempt to force individual property owners to devote their property to public use without compensation.”

Michael will discuss his path to “fairness,” and his “Joy of Taking” in a moment.

He will share with you that he has argued 4 significant cases before the United States Supreme Court, and that for me, for many years, he made an annual pilgrimage to the University of Miami School of Law where I ran the LL.M. Program in Real Property Development to teach a one week one-credit, 15-hour course on regulatory takings. Ultimately, a few hundred real estate attorneys going back to practice were better able to represent their clients.

There is such great detail to mention in describing why Michael is here before us today, and Professor Patty Salkin distilled it so well in her Nomination Package, a document that highlights the litigation and scholarship. That nomination is attached at the end of my Introduction.

“Chance Glance” is the title of my introduction. That actually is how it all began.

A chance glance at a bulletin board at Washington University School of Law and the notice that Professor Dan Mandelker was looking for a research assistant started Mike on his career path. Michael worked for Dan for two years, and unhappy with the difficulty of finding a law firm job in St. Louis, Dan introduced him to Professor George Lefcoe, who provided an opportunity to pursue an LL.M. at the University of Southern California School of Law – and allowed him to devote full time to research the evolving law as it related to airports and their neighbors. The USC Law Review published an edited version of his thesis as “Nobody Loves an Airport,” 43 So. Calif. L. Rev. 631 (1970).

Beginning in 1972, Michael argued all but one of the airport noise cases that came before the California Supreme Court.

Michael Berger, remarking on a remarkable career
Best applause line: "I'm not done yet!"

In the 1949-published Proceedings of the Annual National Planning Conference of the American Society of Planning Officials held in Cleveland, Ohio October 10-12, 1949, George N. Wallace, Executive Director of the Montgomery County (Ohio) Planning Commission reported on the then-current issues with airport expansion:

“The airport people are vitally concerned with our proposed zoning pattern. They have told me that they must keep their operations somewhat flexible if they are to serve future demands and meet changing developments. However, we must make precise decisions as to the probable expansion of our airports and accessory airport uses; we have to recognize the importance of the airport in its service to the community, and, at all times, give full consideration to the rights of adjacent landowners.”

It is regarding the “give full consideration to the rights of adjacent landowners” comment that Michael Berger held municipal planners and local elected officials “feet to the fire” to follow a path to fairness!

I am limited in time in what I can say in my introduction about Michael’s life journey. I therefore ask you to read two of his law review articles and an article from Planning magazine:

• The Joy of Takings, 53 Journal of Law & Policy 189-200 (2017).
• Strong and Informed Advocacy Can Shape the Law: A Personal Journey” 4 Brigham-Kanner Property Rights Conference Journal 1-20 (2015).
• What is Fairness, Anyway, Planning, October 2006, p. 12-18.

In conclusion, let me end with another quote from Mike’s 1975 law review article:

“There is room for regulation. More than that, there is a need for regulation. But if it is truly to serve our best interests, as a people, it must be balanced regulation: a type which is fair to all.”

That, my friends, has been Michael Berger’s life work, and that is why today we come together to honor him and to award him the 2023 Jefferson B. Fordham Lifetime Achievement Award.

Makenna Johnson (Up & Comer Award) with
Michael Berger (Lifetime Achievement Award)

26th Annual Jefferson Fordham Society Luncheon (Denver, Aug. 4, 2023)

What If The Hawaii Governor's Cutting Of The Gordian Land Use/Environmental Knot Actually Works?

The two-plus years under the declared Co-19 emergency surely have given Hawaii's executive-branch officials a clear vision of how much easier they could get their agendas accomplished without all that pesky democracy.

Hawaii's Sweeping Emergency Management Act: Governor is the "Sole Judge"

Hawaii's Emergency Management Act gives state and county executives broad and nearly unreviewable authority to suspend a wide spectrum of the usual laws, regulations, and rules. As we wrote in Hoist The Yellow Flag and Spam® Up: The Separation of Powers Limitation on Hawaii's Emergency Authority, 43 U. Hawaii L. Rev. 71 (2020), Hawaii's Act confers among the nation's most muscular and sweeping powers. For example, the governor is the "sole judge of the existence of the danger, threat, or circumstances giving rise to a declaration of a state of emergency." The Act's one limitation -- the 60-day time limit on how long an emergency may be declared and acted upon without legislative action -- is, in reality, a paper tiger, as the courts have refused to meaningfully enforce it.

Build Baby Build: Governor Green's Emergency Housing Proclamation Sidelines Decades of Land Use and Environmental Regulations and Restrictions

And it appears that executive officials really dig these powers. As you may already know, in July -- just a couple of months after the Co-19 emergency was officially declared pau -- the Governor of Hawaii discovered a new emergency, and issued a Proclamation that the longstanding "shortfall of affordable housing" is an "emergency or disaster" as defined by the Act.

If it is an emergency, it surely has been on a very long fuse, and is primarily a self-inflicted crisis. As is widely reported (see, e.g., Jason Sorens, Zoned Out: How Housing Regulation Drives Young Americans Towards Socialism (Am Inst. for Econ. Rsh. July 24, 2023)), Hawaii is the most highly-restricted and regulated residential land in the nation (see Fig. 3):

We're Number One! We're Number One!

The costs of the current regulatory and environmental system in time, expense, and effort, is cited as a leading contributor to the fact that Hawaii is one of the most expensive housing markets in the country. As the Proclamation notes:

WHEREAS, this [housing] shortfall has never been adequately addressed, contributing to a 1,200% increase in home prices over the last 45 years, which is double the 600% growth in income over the same period[.]

Not at all good.

Pointing to these infamous "regulatory barriers" to building housing (and just about anything else), the Governor deployed his office's broad powers under the Act to suspend a slew of significant land use and environmental regulations, including the State environmental impact statement and reporting requirements, historic preservation restrictions, certain county home rule and zoning laws, civil service laws, collective bargaining with public worker unions, the "open meetings" requirements, the procurement code, the rezoning powers of the State Land Use Commission for certain parcels, school impact fees, and even the Emergency Management Act's own rulemaking requirements. The Proclamation establishes a Privy Council (the "Building Beyond Barriers Working Group" -- how appropriate, given Hawaii's royal history -- or perhaps you prefer "rule-by-junta") that can, according to this report, "block projects deemed to go too far outside the guardrails that would have been in place but for the proclamation." That's comforting. 

Acting under his dictatorial emergency powers (and we are not exaggerating when we say that the powers conferred by Hawaii's Act are truly "dictatorial" as we noted in this law review article), the Governor asserts this will "streamline processes for housing development, while ensuring respect for our iwi kūpuna and environment." To emphasize the so-let-it-be-written-so-let-it-be-done nature of this enterprise, the Proclamation even comes accompanied by its own set of Rules for how it is to be implemented (you know, just like a real law). 

What Others Are Saying

For a nuanced view -- by an analyst with no dog in the Hawaii hunt -- see zoning expert and author M. Nolan Gray, who writes at Bloomberg's City Lab that this "could provide a model for chief executives in housing-strapped states across the country." See M. Nolan Gray, Can Hawaii Solve Its Housing Emergency? (Bloomberg City Lab, July 31, 2023).

Other commentators are less sanguine. Andrew Walden writes that "Housing Emergency Designed to Fail" (Hawaii Free Press, July 31, 2023), arguing that these temporary measures can only work if they are permanent ("Because it is temporary, Green’s Proclamation ensures that too few projects will be approved to actually bring down the cost of housing. ... So when the legislature reconvenes you may be 100% certain that Green’s emergency orders will not be enshrined into law.").

Schadenfreude Alert

Now don't get us wrong: the Governor is absolutely right about Hawaii's oppressive system of regulations and restrictions on building housing that ends up restricting supply, and massively driving up costs. So although we are patently against the routine use of extraordinary emergency powers to accomplish things that should be done through the normal channels of democracy, our long experience playing the land use game in the 808 can't help but turn us into a keen observer of this experiment. We also can't help but being a bit bemused by all of this gnashing of teeth by all involved. As noted above this is a self-inflicted wound and the result of longstanding voting patterns; on a very basic level you get what you vote for, and the voters of Hawaii must either want to restrict the supply of housing to keep things exclusive and preserved, or they are deep-down okay with paying a lot for their homes or living in three-generation households.

And now, instead of doing the right thing and making fundamental needed reform and convincing the voters that now is the time to realize that the system as it stands doesn't work, we get the lazy shortcut. 

Thus, although we are no longer in the day-to-day dirt law and land use game in Hawaii, we're going to be watching this closely.

Fear of Success?

Of course, the usual suspects are already voicing the predictable objections that this will result in cowboy land use (our description, not theirs) and environmental degradation, and are already mentioning possible legal challenges. See, e.g., Stewart Yerton, Can An Emergency Proclamation Solve Hawaii's Housing Crisis? 'That's the Million Dollar Question'' (Civil Beat, July 30, 2023).

Other than the Governor's sweeping repudiation of democratic processes, what is spurring the substantive objections to this? You might think that this is just one more example of NIMBYism and "drawbridge protectionism" (or maybe just a naked "I got mine" and the hell with those who don't -- those vibes play extraordinarily well in the 808, in courts and in the public).

But we sense that a more fundamental fear is driving objections. This may well be the closest we'll ever get to a real-time experiment in whether Hawaii's byzantine land use and environmental regulations -- touted for decades as absolutely necessary to "preserve paradise" -- are worth their massive costs. We've been told that the current system is the only thing standing between us and foul air, water evaporating, beaches disappearing, and historical and cultural resources being despoiled.

What if, when this experiment winds down (whenever that is, since by law an emergency can last a maximum of 60 days, even though this time limit is illusory, because the emergency can be renewed indefinitely), there are 50,000 new residential units built out and the the environmental sky has not fallen? If that's the case, what more empirical evidence does the legislature need that the touted Hawaii system of restrictions, regulations, and the precautionary principle simply are unnecessary?

Or does Hawaii just go back to business as usual? 

The Hole Card

So now we shall see. We predict a lawsuit will soon be filed to challenge this, because Hawaii's courts are the objectors' hole card. Look for a claim under the Hawaii Constitution to lead the charge, because the Hawaii Supreme Court is the final arbiter of the state constitution and a ruling from that court would be armored up against revision by the other branches of government. There's a long judicial history in Hawaii of doing just that.

Hawaii's courts will be the preferred forum: lax standing rules (nearly anyone can be a plaintiff), a Supreme Court that historically has been open to such claims (as a study published in the University of Hawaii Law Review in 2011 reported, environmental plaintiffs enjoy an enviable record of success in the Hawaii Supreme Court, which during the years studied (1993-2010) found in favor of such groups "approximately eighty-two percent of the time, sixty-five percent of which reversed the Intermediate Court of Appeals."), and a judicial ruling that would be immune from the Governor's or the Legislature's tampering. That's the play.

With two of the current bench of five Hawaii Supreme Court Justices in the process of being replaced, does this make the game even more interesting, and the moving pieces more in motion? You bet.

So stay tuned and follow along with us.

That sound you hear right now is the late-night typing of someone drafting up a state-court complaint.

Office of the Governor, State of Hawaii, Proclamation Related to Housing (July 17, 2023)

New Article - "Necessity Exceptions to Takings" (Shelley Ross Saxer)

Worth checking out: a new article from Pepperdine Law School's Shelley Ross Saxer, published in the University of Hawaii Law Review, "Necessity Exceptions to Takings," 44 U. Haw. L. Rev. 60 (2022). [Disclosure: as noted in the author's note, we reviewed an earlier draft of the piece and provided some thoughts.]

Here's the Abstract:

The doctrine of necessity has strong roots in the common law of tort and property going back hundreds of years. In the United States the doctrine has been applied in various situations to negate judicial review of constitutional challenges to government action, most recently in some of the wildfire and flood claims resulting from disasters. But now, the states’ responses to the COVID-19 pandemic have brought one of these necessity doctrines—the public health necessity relying on Jacobson v. Massachusetts—to the forefront as courts across the country review constitutional challenges to state public health measures. With such intense review of Jacobson’s public health necessity in a short timeframe, it appears that the courts, including the Supreme Court, are recognizing that common law emergency exceptions cannot be applied to prevent constitutional review. This development supports the goal of this Article, which is to discourage the use of the necessity doctrine to bypass constitutional scrutiny of asserted rights, particularly as to takings claims under the Fifth Amendment. This Article examines the historical development of the diverse categorical exceptions to takings claims under the Fifth and Fourteenth Amendments and addresses the continued viability of these exceptions following the decision in Pennsylvania Coal v. Mahon. After reviewing four categories of necessity exceptions that include: 1) the doctrine of destruction (general, military, and law enforcement); 2) the public health exception; 3) the nuisance and background principles of property law exception; and 4) the police power exception, this Article concludes that the only doctrinally acceptable categorical defenses to a regulatory taking are the nuisance and background principles of property law exceptions. Nuisance and background principles of state law will determine whether the property owner has a property interest subject to a government taking. If the property owner never had a right to use their property in a manner that constitutes a nuisance or interferes with a public resource, it cannot be taken and does not deserve compensation. Government actions that constitute a taking, but benefit the public as a whole whether by conferring a benefit or preventing a harm, should not burden individual property owners when, under the Armstrong principle, in all fairness and justice, we the public should share in paying for the benefits received.

Download the piece on SSRN here.

CA11's Eminent Domain Attorneys Fees Ruling Is Controlled By Prior Panel

The Eleventh Circuit's short opinion (really short - 1.5 pages) in Sabal Trail Transmission, LLC v. 3-921 Acres of Land, No. 22-10435 (July 25, 2023), is straightforward: to resolve whether a Florida property owner subject to a private condemnor taking under the federal Natural Gas Act has a property right in attorneys fees and costs, the court applied a recently-decided circuit panel opinion that held yes:

The Natural Gas Act authorizes private entities who have received a certificate of public convenience and necessity to acquire property “by the exercise of the right of eminent domain.” 15 U.S.C. § 717f(h). Sabal Trail Transmission, LLC, invoked this power of eminent domain to acquire easements to build a pipeline on land owned by Sunderman Groves, Inc. In the condemnation proceeding, the district court determined that the Act incorporates state eminent domain law, and it consequently applied Florida law to grant attorneys’ fees, costs, and prejudgment interest to Sunderman Groves. Sabal Trail appeals these awards, arguing that the district court should have applied federal law instead.

After this panel heard oral argument, a different panel of our Court decided a nearly identical case that arose out of Sabal Trail’s use of the eminent domain power to build this same pipeline. See Sabal Trail Transmission, LLC v. 18.27 Acres of Land, 59 F.4th 1158, 1160–62 (11th Cir. 2023). That panel determined that proceedings under § 717f(h) must look to state law to determine the measure of compensation. Id. at 1175.

It is “firmly established” that “each succeeding panel is bound by the holding of the first panel to address an issue of law, unless and until that holding is overruled en banc, or by the Supreme Court.” United States v. Hogan, 986 F.2d 1364, 1369 (11th Cir. 1993). This Court’s prior construction of the Natural Gas Act is now the law in this Circuit, and it conclusively resolves this appeal. We therefore AFFIRM the district court.

Slip op. at 2-3.

As we reported here, the issue is whether federal or state law applies in these cases. The big reason why the question of whose law applies is that under the Fifth Amendment, "just compensation" does not include attorneys' and other fees, while under the Florida Constitution's "full compensation" provision (which we noted here), a property owner may recover fees and costs.

But don't stop with the per curiam opinion, and please read on, because the interesting part of the decision is the concurring opinion of Judge Grant, which argues that the earlier panel got it wrong, and the federal "just compensation" standard should apply, not Florida's definition of property:

Like at least one member of that panel, I think Georgia Power was wrongly decided. See 59 F.4th at 1175 (Jordan, J., concurring). But unlike the panel, I do not think that our prior-panel precedent rule required us to extend Georgia Power’s incorrect reasoning about the Federal Power Act to the Natural Gas Act. See id. at 1168–69. I write to emphasize that, when facing similar interpretive questions about other statutes, we should not overread or further extend these two precedents—the compensation standards of the Fifth Amendment apply to private delegations of the federal eminent domain power unless Congress says otherwise.

Concurring opn. at 1-2.

Sabal Trail Transmission, LLC v. 3.921 Acres of Land in Lake County, Florida, No. 22-10435 (11th Cir. July...

Tuesday Property Round-Up (International Edition)

Here's what we're reading today:

• Timothy Harris, Backwards Federalism: The Withering Importance of State Property Law in Modern Takings Jurisprudence, 75 Rutgers L. Rev. ___ (2023) ("Modern Supreme Court Fifth Amendment takings cases have – paradoxically -- diminished the role and importance of state law. Doing so creates uncertainty and unpredictability in determining where private property rights begin and where government’s authority ends.").
• Jonathan Katzenellenbogen, What happens when the Expropriation Bill is passed? (July 19, 2023) (if you want to find out what is going on in South Africa in property rights, here's a good piece to get you up to speed).
• Meina Cai, The Art of Negotiations: Legal Discrimination, Contention Pyramid, and Land-Taking Compensation Policy in China (June 2023) ("How do land-dispossessed villagers protect their interests in a context where the legal framework discriminates against them? Contradictory to the existing research that pays much attention to protests, this research identifies negotiations as a strategy of the dispossessed to engage with local governments and improve their compensation arrangement.").
• Nicole Stelle Garnett, Can Property Law Protect Indigenous Sacred Sites? (Jotwell, July 24, 2023) (a review of a forthcoming article in the Virginia Law Review).
• Frontier Centre for Public Policy, Frontier Centre for Public Policy Releases Canadian Property Rights Index, Marking Tenth Anniversary (July 17, 2023) (what is the state of property rights in Canada - find out one view here). 
• Sharon Udasin, Debate rages over California coastal development amid housing crisis (The Hill, July 15, 2023) ("Among the most divisive elements in SB 423, however, is its deletion of a provision in SB 35 that had prohibited the streamlining of multifamily housing projects in coastal zones.").

Enjoy your Tuesday. 

Property Rights Icon To be Recognized By ABA With Lifetime Achievement Award (Aug. 4, 2023)

Join us in Denver in a few weeks at the American Bar Association Annual Meeting where our section, the Section of State and Local Government Law, will be presenting the Jefferson Fordham Awards.

The Jefferson B. Fordham Awards, the highest honors given by the ABA Section of State and Local Government Law, recognize the accomplishments of those who have been active in the various areas of state and local government law. The award is named for the section’s first chair in 1949. Fordham diligently served and made the section the national resource for the advancement of state and local government law practice.

The Lifetime Achievement award will be presented to a lawyer that every reader of this blog already knows well, Michael Berger:

Berger, one of the top land use and condemnation attorneys in the United States, is a California lawyer and a senior counsel at Manatt, Phelps & Phillips, in the real estate and the appellate practice. His appellate cases have involved planning, zoning, eminent domain, various kinds of business litigation, landslides, contract, due process, equal protection, defective construction, nuisance, insurance and environmental law. Berger has argued four cases before the United States Supreme Court as well as cases before appellate courts throughout California, numerous federal courts of appeal and other state supreme courts. He is also the frequent author of amicus curiae briefs in various appellate courts, particularly the U.S. Supreme Court, pressing client interests in important pending cases.

Berger has spent more than 50 years as a practicing lawyer, adjunct professor, faculty member at various continuing legal education courses and author of both practical and scholarly articles in the fields of land use and eminent domain law.

Also being presented a Jefferson Fordham is a colleague and former student of ours, Makenna Johnson, who will be receiving the Up and Comer Award:

Johnson, an associate at Alderman Bernstein in Denver, is the American Bar Association Young Lawyers Division State and Local Government Committee vice chair. She was recently appointed as the Young Lawyers Division State and Local Government Committee chair and liaison to the Section of State and Local Government. She was also recently appointed to the Colorado Bar Association Young Lawyers Division Executive Council. Johnson earned a Bachelor of Arts in political science from the University of Colorado and a J.D. degree from William and Mary Law School.

Please join us in Denver to celebrate.

If you need another excuse to be there, immediately prior to the JF Awards lunch, we're speaking at a CLE session on "The 100th Anniversary of Pennsylvania Coal v. Mahon: How the Takings Clause Became the Primary Check on Government Power When SCOTUS Abandoned Review Under the Due Process and Contracts Clauses During the New Deal." Details on that program here.

Aug 4, 2023: "The 100th Anniversary of Pennsylvania Coal v. Mahon: How the Takings Clause Became the Primary Check on Government Power" (ABA Annual Meeting, Denver)

The Mahon Property

Join us on Friday, August 4, 2023 (10:30-11:30am, MT) in Denver at the ABA Annual Meeting for our CLE session on "The 100th Anniversary of Pennsylvania Coal v. Mahon: How the Takings Clause Became the Primary Check on Government Power When SCOTUS Abandoned Review Under the Due Process and Contracts Clauses During the New Deal."

The program description:

The Takings Clause and 100 years of the Pennsylvania Coal v. Mahon doctrine have become the primary check on governmental power that the Due Process and Contracts Clause used to serve, before the Supreme Court finally and formally abandoned judicial review under those doctrines during the New Deal. Mahon transcended its primary relevance as to compensation for the taking of private property to become the fundamental means by which the Rule of Law determines of the individual’s relation with the government.

This session will survey the evolution of takings law and assess its impact on federal, state and local government authority, including not only the limits of that power over private property, but how the law as created by Mahon reconciles the essential issue of an individual’s private rights as they relate to the government’s exercise of authority in the public interest. This ambitious session will predict where these trends are taking us and what constitutional, legislative, and executive initiatives should be considered.

Details here.

This is another part of our continuing series on Mahon's 100th anniversary. And there will be more, so stay tuned.

New(er) Articles: Texas A & M Journal of Property Law - Natural Property Rights Symposium

The Texas A & M Journal of Property Law is always a good read, with many articles worthy of your time. But the Journal's latest, Volume 9, No. 4 (2023) stands out because it includes the papers for the Symposium on Natural Property Rights.

Check out these titles and authors:

• Natural Property Rights: An Introduction - Eric R. Claeys

• Too Simple Rules for a Complex World? Prior Appropriation Water Rights as Natural Rights - Vanessa Casado-Pérez

• Balancing the Inequities in Applying Natural Property Rights to Rights in Real or Intellectual Property - Lolita Darden

• Business Organizations as Natural Objects of Ownership - Kevin Douglas

• How Far Does Natural Law Protect Private Property? - James W. Ely Jr.

• Comparing & Contrasting Economic and Natural Law Approaches to Policymaking - Eric Kades

• Oil, Trees, and Water: Evaluating the Transition from Natural Property Rights to Property Conventions - John A. Lovett

• Opus as the Core of Property - Adam MacLeod

• Natural Law, Assumptions, and Humility - Ezra Rosser

• The Natural Right of Property - Timothy Sandefur

• Ad Coelum and the Design of Property Rights - Joseph A. Schremmer

• The Future of Natural Property Law: Comments on Eric Claeys’s Natural Property Rights - Christopher Serkin

• Property and Moral Responsibilities: Some Reflections on Modern Catholic Social Theory - Lucia A. Silecchia

• Natural Property Rights: A Reply - Eric R. Claeys

That should keep you busy for a while.

SC: No Penn Central Taking For City Ordinance Merging Contiguous-But-Separate Parcels

As you can tell from the date of the opinion, we've been meaning to post the South Carolina Supreme Court's ruling in Braden's Folly, LLC v. City of Folly Beach, No. 2022-000020 (Apr. 5, 2023) for a while. Something else always intervened, but it remains a decision worth reviewing.

The city adopted an ordinance that erased lot lines for certain contiguous properties under common ownership, merging two distinct parcels into one and prohibiting their separate sale. The ordinance recognized nonconforming uses. Braden's properties are covered by the ordinance.

When Braden's Folly acquired the Lots in 1999, there was a small house on Lot A, and Lot B was undeveloped because it was either underwater or part of the active beach. Following a beach renourishment in 2005, Lot B became developable because it had been transformed into mostly sandy beach. Therefore, between 2006 and 2007, Braden's Folly received building permits from Folly Beach and constructed two single-family residences—a larger, more modern one on Lot A and a smaller one on Lot B—for a total cost of $1.1 million.

According to Braden's Folly, it had always intended to keep one of the Lots and sell the other—whichever of Lot A or B received the highest offer—in order to pay for the construction costs of the two houses. However, construction on the Lots finished in 2007 during the housing market collapse and Great Recession, which made selling either of the Lots financially unfeasible at that time. Nonetheless, even after the housing market recovered, Braden's Folly did not place the Lots on the market, continuing to use them for family vacations and as rental properties that grossed an average of $117,000 per year combined. It was not until February 2018 that Braden's Folly finally put the houses on the market, listing Lot A for $1.3 million and Lot B for $1.2 million.

One year later, upon the amendment of Folly Beach's merger ordinance in April 2019, Lots A and B were legally combined or "merged" into a single lot.

Slip op. at 9-10 (footnote omitted).

Braden alleged the merger was a taking of its property rights. The trial court agreed, holding the ordinance effected an as-applied Penn Central taking. Slip op. at 12 ("The circuit court held a property owner's reasonable investment-backed expectations are defined at the time the investment is made, and Braden's Folly intended to sell one of the Lots when it constructed the houses in 2006 and 2007.").

The S.C. Supreme Court held no Penn Central taking. The court's application of the three factors begins on page 16, with what we'll call the "Murr" question: what is the property alleged to be taken? Is it the unsaleable parcel, or the post-ordinance two-combined parcels? Applying the Penn-Central-within-Murr factors, The court held it is the latter. Slip op. at 19 ("we hold the appropriate denominator in the takings fraction, and the appropriate parcel to compare any economic impact resulting from the merger ordinance, is the entirety of Lots A and B combined").

• Economic impact: Assuming the owner's calculations are true, the before-and-after delta caused by the regulations represents a 23% loss of economic value. Slip op. at 22 ("While not insignificant, a 23% reduction in value is far less than other reductions in value found constitutional by the Supreme Court."). Remember, the court already determined that the "property" is both parcels, so you kind of knew where this was going, didn't you? As we wrote here, the big battle in these cases isn't so much whether there's been a taking, but what kind of taking it is (Lucas v. Penn Central), and once that battle has been fought and lost, the handwriting is nearly always on the wall.
• Investment-backed expectations: Because the merger ordinance didn't exist at the time of Braden's purchase, "[o]bjectively, it would have been reasonable for Braden's Folly to have expected to be able to" develop and sell its separate lot. Slip op. at 28. But (and there's always a "but"), Braden has been able to use the property for a number of decades, and it "made little to no effort to actually sell either property." Slip op. at 28, 29 ("Third, even assuming Braden's Folly's investment-backed expectation remained the same, the government cannot be held hostage by a property owner's expectations indefinitely when an owner refuses to implement those expectations. Rather, at some point, the government must have a right to regulate local properties in a measured fashion without running afoul of the takings doctrine, even if its regulation runs contrary to an owner's unspoken and unimplemented investment-backed expectations.").
• Character of the government action: "Folly Beach's merger ordinance does not unfairly single out Braden's Folly's Lots. Rather, as discussed by the Murr Court, merger ordinances have long been employed as a tool to regulate lot sizes." Slip op. at 34. The merger ordinance is designed to help save the beach, and this benefits beachfront owners like Braden. Id. ("Rather, in light of the potential public costs of continuing unchecked super-beachfront development, we reject the argument that Folly Beach's merger ordinance constitutes anything but responsible land use policy— one that is generally applicable and widely accepted nationwide.").

Here's what bothers us about this case:

After applying the Penn Central test, we find two factors weigh strongly in favor of Folly Beach: the economic impact and the character of the government action. As to the third factor, we find there is competing evidence regarding whether the merger ordinance interfered with Braden's Folly's reasonable, investment-backed expectation. We therefore conclude the third factor is a neutral factor that does not weigh in favor of either party. As a result, we hold the Penn Central balancing test overall weighs in favor of Folly Beach, and the merger ordinance did not effect an unconstitutional taking of Braden's Folly's Lots.

Slip op. at 35.

If there is "competing evidence" about Braden's investment-backed expectations, what is a court doing entering summary judgment on the Penn Central case by balancing and weighing the factors (even if the other two factors are property resolved as a matter of law - which they should not be)? The Penn Central test is ad hoc, with no one factor dispositive. As the Supreme Court has noted, one factor alone can serve to support a Penn Central verdict in favor of a property owner. For more see here and here.

Braden's Folly, LLC v. City of Folly Beach, No. 2022-000020 (S.C. Apr. 5, 2023)

Want To Find And Litigate The Next SCOTUS Landmark Property Rights Case? Come, Join Us

Ever thought to yourself when reading a Supreme Court property rights cert petition or opinion (or three), "I wish I could do that"?

That was me a couple of years ago.

And I found out. I joined the nation's premiere property rights courtroom lawyers and advocates, Pacific Legal Foundation. One of the best professional decisions I ever made.

Here's your chance. Today we posted this position opening on Talentmarket:

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You will be a litigator 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 find and win the next important Supreme Court property rights case. Your ideas will help shape PLF strategy by identifying and litigating emerging property rights theories.

If this is you: 4-7+ years property rights litigation experience, a deep understanding of the moral and constitutional basis for property rights, and a desire to find, develop, and press these cases as the highest levels ... come join us!

Sad Birthday Wishes To Penn Central - Some Things Don't Get Better With Age

Thanks to lawprof Josh Blackman for the reminder that our un-favorite case, Penn Central Transp. Co. v. New York City, 438 U.S. 104 (1978), turned 44 today.

If you know, you know.

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

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

If you want to be a part of rethinking Penn Central, listen to this episode of Clint Schumacher's Eminent Domain Podcast with our colleague Jon Houghton ("Jon Houghton and His Penn Central Quest"), or submit a proposal for our "Rethinking Penn Central" symposium.

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

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