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New Cert Petition: Forcing Owners To Rent To Tenants Indefinitely Is A Categorical Taking

Here's the latest in a case we've been following since its inception, this cert petition seeking Supreme Court review of the U.S. Court of Appeals for the Second Circuit's affirming the district court's dismissal of a complaint alleging that New York (state)'s sweeping amendments to its Rent Stabilization (rent control) statute effected categorical and Penn Central takings:

Petitioners’ physical-takings claims would have been allowed to proceed if they were brought in the Eighth Circuit. That is because the Eighth Circuit has correctly held that property owners plead a physical taking under Cedar Point where a law prohibits them from terminating a tenancy at the end of a lease term. See Heights Apartments, LLC v. Walz, 30 F.4th 720, 733 (8th Cir. 2022), reh’g en banc denied, 30 F.4th 720. But the Second Circuit held here—as has the Ninth Circuit—that the physical-takings principles articulated in Cedar Point are not implicated when an owner voluntarily offered housing for rent in the first instance. These courts instead read Yee v. City of Escondido, 503 U.S. 519 (1992), as precluding physical-takings claims so long as the property owner may evict tenants in the event they breach the lease or engage in other forms of malfeasance—thus carving out a special and particularly deferential landlord-tenant exception to the general principles articulated in Cedar Point. Those courts misread Yee, which reserved the question whether a taking would occur if a law forced “a landowner over objection to rent his property or to refrain in perpetuity from terminating a tenancy.” Id. at 528.

In affirming the dismissal of Petitioners’ regulatory-takings claims, the Second Circuit also split from other circuits on every Penn Central factor. The court deemed irrelevant the impact that the law would have on Petitioners’ property rights, explaining that it was “of no moment” that they are forced to bear burdens that others are not. App. 16a. The court also viewed the character of the governmental action—which forces Petitioners to house tenants against their will—as counting against Petitioners’ claims because the law serves important public purposes and “courts are not in the business of second-guessing legislative determinations such as this one.” Id. The Second Circuit’s ruling confirms that this Court’s “current regulatory takings jurisprudence leaves much to be desired.” Bridge Aina Le’a, LLC v. Haw. Land Use Comm’n, 141 S. Ct. 731, 731 (2021) (Thomas, J., dissenting from denial of certiorari).

Pet. at 2-3.

Here are the Questions Presented:

Petitioners own small apartment buildings in New York City that are subject to New York’s Rent Stabilization Law (“RSL”). Once an owner leases a unit for a fixed term, the RSL grants the tenant and the ten-ant’s successors a perpetual right to renew the lease, regardless of whether the owner consents. That renewal right strips owners of their right to exclude others from their property and prevents them from living in their own apartments. The Second Circuit held that these facts failed to state a physical-takings claim because Petitioners voluntarily entered the rental market in the first instance and could, in some circumstances, evict tenants who breach their leases. Petitioners’ regulatory-takings claims likewise failed because, among other reasons, the RSL serves an important purpose and does not deprive petitioners’ property of all value. In so holding, the Second Circuit deepened or created circuit splits at each step of its analysis. The questions presented are:

1. Whether a law that prohibits owners from terminating a tenancy at the end of a fixed lease term, except on grounds outside the owner’s control, constitutes a physical taking.

2. Whether allegations that such a law conscripts private property for use as public housing stock, and thereby substantially reduces its value, state a regulatory takings claim.

Stay tuned.

Petition for a Writ of Ceritorari, 74 Pinehurst LLC v. New York, No. ____ (U.S. May 17, 2023)

Bust A Deal, Face The Wheel: NYC Rendering Commercial Lease Guaranty Clauses Unenforceable For Co-19 Violates Contracts Clause

This just in: the U.S. District Court for the Southern District of New York has issued this Opinion & Order in the case which challenges New York City's rendering "guaranty clauses" in commercial leases unenforceable due to the declared Co-19 emergency.

This is a case we've been following. Earlier, the Second Circuit vacated the district court's dismissal of the case, holding that the city's ordinance rendering forever unenforceable certain provisions in commercial leases:

A provision in a commercial lease or other rental agreement involving real property located within the city that provides for one or more natural persons who are not the tenant under such agreement to become, upon the occurrence of a default or other event, wholly or partially personally liable for payment of rent, utility expenses or taxes owed by the tenant under such agreement, or fees and charges relating to routine building maintenance owed by the tenant under such agreement, shall not be enforceable against such natural persons if the conditions of paragraph 1 and 2 are satisfied.

The district court held that the plaintiffs have Article III standing, because they have been permanently barred from ever enforcing these guaranty clauses. Slip op. at 12 ("This kind of 'monetary injury' to the Plaintiffs—permanently barring them from collecting more than a hundred thousand dollars in unpaid rent for a prime commercial tenancy in the heart of Manhattan—plainly establishes that they ha[ve] suffered a concrete injury in fact under Article III.'"). The court also concluded that the remedy the plaintiffs seek -- invalidation -- would redress that injury, because freed of the city's prohibition, plaintiffs could then attempt to enforce the clauses in their leases.

The heart of the ruling starts of page 14 of the slip opinion. The bottom line is that the court concluded the ordinance is a substantial impairment of the commercial owner/tenant contracts, because

Yes, "the City's effort to mitigate the devastating economic impact of the COVID-19 pandemic constituted a legitimate public purpose[,]" slip op. at 16, but that does not get the city off the hook, because "the Court finds that the Law fails to withstand means-ends scrutiny under the final prong of the Sullivan test." Id. 

The court concluded that the city failed to support with additional evidence its decision to place the entire burden of alleviating the emergency on property owners. The city argued that the ordinance merely encouraged owners to renegotiate their leases on terms more favorable to their tenants, but the court wasn't buying it: "But it does not explain how the City concluded, with a change to the commercial leases rendering guaranty clauses permanently unenforceable, that guarantors would have any incentive based on the Law to enter negotiations with landlords regarding unpaid rent." Slip op. at 28.

There were four other reasons set out in the Opinion & Order, and the one we're going to focus on is set out starting on page 31. There, the court held that the ordinance does not compensate property owners for unpaid rent. Unlike other laws of this nature which included what we might call "mitigation" provisions (and were temporary), the court noted that New York's ordinance did no such thing, and permanently wiped out the obligation and did not contain any provision mitigating the damage to the owners, or otherwise providing for compensation:

The record now confirms that Plaintiff Bochner has been unable to recover unpaid rent amounts totaling approximately $110,000, and that, via another business account, he paid $35,000 in taxes for the property due July 1, 2020. Dkt. 104, Ex. NN at 46. As neither party disputes, the Guaranty Law itself provides no assistance to landlords like Bochner. The City, however, argues that the Court should concentrate on the fact that Bochner did not pay property takes on 287 7th Avenue from a personal account, see Def. Mem. at 20 n.12, and that Plaintiff 7th Avenue was able to obtain a pandemic relief loan from the SBA, see id. at 24. The City also emphasizes Plaintiffs were able to borrow from other successful business ventures, and that they “weather[ed] the pandemic” in other ways, including because the tenant left behind restaurant fixtures which were then leased along with the commercial space to a different restaurant in October 2020. Def. 56.1 ¶¶ 102–03; Dkt. 104, Ex. NN 34:24–35:18, 55:17–18.

Such obfuscation is unavailing. The fact remains that Plaintiffs here were damaged, to the tune of approximately $150,000, and have not been compensated—precisely the concern that the Second Circuit wanted the City to address on remand. As to the SBA disaster loan, Bochner explained that it has not been forgiven, and that he must pay “four [or] five” percent interest until it is fully paid off. Dkt. 104, Def. Ex. VV, at 46–47.

Slip op. at 32.  

No way the city quits, so next stop we presume is back with the Second Circuit.

Opinion & Order, Melendez v. City of New York, No. 1:20-cv-05301-RA (S.D.N.Y. Mar. 31, 2023)52

One Guess What The Second Circuit Did With A Takings Challenge To Rent Control

Let's say you know nothing else about an appeal except it is being decided by the U.S. Court of Appeals for the Second Circuit, and the case is a constitutional challenge to rent control. What's your best guess about the outcome (the district court dismissed for failure to state a claim)?

When the Second Circuit issued its summary order in just such a case last week -- a challenge to the "Housing Stability and Tenant Protection Act of 2019" -- we decided to undertake a little unscientific poll to see whether others out in the Twitterverse predicted as we did.

Looks like so. Yes, the sampling size was small, and the respondents were only those who voluntarily offered their thoughts. But 95% accurately predicted that the property owners would lose, as the Second Circuit indeed held in an appellate court's version of "laughing heartily" at an appellant's arguments: an unpublished summary order.

We could spend the rest of this post going through all of the reasons why the Second Circuit didn't find a scintilla of reversal in the property owners' arguments. But the Order is so short, you might as well read it yourself.

Short story: facial claim? Nope, no physical taking because you fool landlords let tenants in your properties. No facial reg take either, because "different landlords have greatly varying expectations." Order at 4. Rather than serve as an apt illustration of why the "expectations" part of the Penn Central test focuses on an irrelevant inquiry, the Second Circuit effectively concludes that reg takings claims can never be raised as facial claims. 

Same outcome for the as-applied claims: no plausible allegation of a physical taking because there's still the possibility of getting tenants out, and owners are not prohibited from exit the rent-controlled market by getting out of the rental market; the law merely "restricts a landlord's ability to profit by converting a rent stabilized unit to a market-rate unit[.]" Order at 6. And, for good measure, these claims are not ripe because the owners didn't plead that they tried to get anyone out. As for the as-applied regulatory takings claim, the claim is not ripe because the complaint does not allege that the owners tried to take advantage of any of the non-futile procedures to obtain a hardship exemption. And even if ripe, the owners lose "on the merits." (Remember this is an appeal from at 12(b)(6) dismissal, so what "the merits" has to do with anything is beyond us.)

So what might the 95% response indicate? People have very good predictive powers? Our colleagues are as cynical and jaded as we are? Constitutional challenges to rent control are so lacking in merit and plead-worthiness that courts rightly laugh them out of court? The Second Circuit is predictable but in other circuits you might get a more balanced view?

Or maybe -- just maybe -- something else is at play here, and, like a lot of other courts have done before it, the Second Circuit isn't about to upset the apple cart and do anything to undermine what started off, like a lot of these things do, as an "emergency" measure now fossilized into an untouchable entitlement (but an entitlement that is not paid for by the taxpayers, but by private property owners)? In these cases, the lower courts aren't likely to do doodly-squat, and rent control cases will be pushed up to the Supreme Court until that Court does something more than repeatedly decline to review the issue.  

Summary Order, 335-7 LLC v. City of New York, No. 21-823 (2d Cir. Mar. 1, 2023)

A National Zoning Expert Pays A Visit To The L580 Land Use Class At U. Hawaii

The session was recorded.
Here's the video and audio.

Earlier this week, planner M. Nolan Gray, author of the new book, "Arbitrary Lines: How Zoning Broke the American City and How to Fix It" (Island Press 2022) joined our Land Use class at the University of Hawaii Law School to talk about zoning and housing.

The title of his talk was "Are zoning laws the cause of Hawaii's housing crisis?" The subject matter is important, and the public was invited to join us. As you can see, there was a lot of interest in this critical topic and turnout was excellent. 

Thank you to the Grassroot Institute of Hawaii for their sponsorship of the event, and for generously getting Mr. Gray to Honolulu for his in-person appearance. It was also nice to have refreshments following class, and a chance to "talk story" (as we say) with our speaker, the students, and our guests.

Grassroot recorded the session on video, and we shall post a link to it once it is published and available. If you could not join us for his talk, be sure to watch and listen to the recording. Some very compelling stuff.

The public was also invited.
(We let them know they arrived at the right place.)


All set up and ready for our guest speaker.
Recording posted here. 

What is Zoning? A good question (the impression is that "zoning"
means all regulation of land uses). Not quite. Generally speaking, the term 
only covers regulation of use, density, and height. Getting the terms correct
is important. Mr. Gray does not advocate for tossing all regulation,
only zoning. He advocates for a more planning-centric
approach. Read his book for the details.

The heart of the matter: how and why overly restrictive zoning
(see above) inevitably restricts the supply of housing by focusing
mostly on single-family residential. Leave zoning the way it is,
and you are effectively planning for an affordability crisis.

A good, engaged audience.

Mahalo, Nolan, for coming all this way. 

We allocated plenty of time for questions from the audience.

Ice Ice Baby: A Report From The 40th ALI-CLE Eminent Domain & Land Valuation Litigation Conference, Feb 1-4, 2023, Austin

We were eagerly anticipating 40th American Law Institute-CLE Eminent Domain and Land Valuation Litigation Conference. The 2022 Conference in Scottsdale was one of the first meetings where everyone was back in-person (and was a smashing success), but that conference was early in the game so not everyone could or would attend. But in the past year most of us got back to some semblance of "normal," and the turnout promised to be good.

We had record registrations: with over 300 attendees, faculty, and staff signed up, things were shaping up.

Plus, we were headed to Austin, Texas. The last time we held the Conference there in 2016, we loved it so much it has been in-demand for a return visit. And this year is the debut Conference for some new planning co-chairs for both the main tracks as well as the "Condemnation 101" tracks, so the buzz for the 2023 Austin Conference was building.

But then the weather reminded us that Mother Nature is often the boss. 

Very Icy Austin on Wednesday (Conference Eve).

On Tuesday, one day before the Conference was to get underway, the 2023 Central Texas Ice Storm blew in and things were gonna get (as they say) "challenging."

Austin Airport effectively shut down with few flights in or out. Planes and cancellations stacked up nationwide. And even for those nearby, slick icy roads, and seemingly everything was closed, from gas stations to hotels to restaurants. Widespread power outages. 

Were we ready with Plan B if people couldn't get on-site? Read on.

Unless you are already here or are driving,
you ain't getting to Austin via AUS any time soon, pard.

Even flying from sunny California was a problem.

Ticket agent: Austin flight cancelled. How about flying to Houston and then driving?

Me: Sure, that'll work. Just get me to Texas and I'll figure it out from there.

Improvise, adapt, overcome: planes, trains, and automobiles (and car rentals, and long-distance rideshares, and four-layovers-from-Boise flights). Jacksonville to Austin via Chicago and Nashville.

Although those of us who made it to Austin were receiving widespread reports of people delayed and rerouted, we had only a handful who said they would not be pressing forward to get here. 

When this is what greets you when you arrive
at your conference site...uh oh.

And yes, Austin was cold and icy. Most things shuttered and widespread loss of power. But the Conference venue was up and running, and throughout the day on Wednesday, faculty, staff, and attendees were showing up. Trickling in, but showing up or on the way.

When this is what you see at the United Airlines
luggage counter, you ask yourself:
Can I make my presentation in a t-shirt and sweats? (Yes!)

We had confidence, and were prepared
for everyone to get to Austin.

So the aforementioned Plan B went into effect. Agenda items shuffled from tomorrow to today because the speaker is here, now. One speaker in the room, one speaker remote. Our audience is full of experts ... say, Billy can you pinch-hit on this panel? Sure. One speaker remoting in from his (unexpected) hotel room in Phoenix and presenting, before he went to the airport in the afternoon to continue on to Austin.

And so forth. Our long-time ALI-CLE Program Attorney, Amy Weinberg (who was delayed out of Philadelphia) was working furiously behind the scenes doing a lot of juggling, updating, texting and calling, and making alternative arrangements. And the tech team from ALI-CLE was preparing for overload if needed.

Plan A: continue to set the room up, assuming everyone is here or on the
way, and we'll have most or all of our people in the room.

Our Planning Chairs were ready, even if not
all of us were actually there (yet).

Plan B: the ALI-CLE technical crew was prepared to livestream
and record the Conference if the weather made travel
to Austin impossible or infeasible.

The tech command center.

Before we go on, a big thank you to our generous sponsors.
Without your support, this Conference would not be as
good as it is, year after year.

We're underway, with a pretty good crowd.

Thursday morning, 9:00 a.m., and we're looking not too bad. A fair number of folks have pressed forward despite the weather and travel disruptions and are in the room. More report they are not tapping out, and are pressing onwards.

We have more viewers remote than we originally anticipated, but the tech is holding up.

Over the next couple of days, our lawyers, judges, legal scholars, appraisers, law students, right-of-way agents, relocation experts, property owners, and other related professionals made their way to Austin.

The fact that folks who were experiencing some rather dramatic travel difficulties and delays (ask Jack about his late night Uber from Houston airport to Austin, or how our west coasters got re-routed all over creation), didn't quit but were determined to get to Austin told us something about why this Conference has been so successful over the decades.

It's more than great programming from the nation's experts. The Conference is also an essential venue to get acquainted with new colleagues and welcome them to the Dirt Law Bar, reconnect with long-time friends, and have a bit of fun together.

Most of the Conference attendees eventually made it, and very few (reasonably) threw in the towel and turned around for home. This was the 40th edition of the Conference, and we really know why it is one of the most-established and successful conferences in the ALI-CLE stable of programs. This year's experience really drove home why we come, and why our attendees and faculty are so dedicated and committed, despite the sacrifices we make to attend or to present. 

Hybrid: Pacific Legal Foundation's John Groen
remoting in while en-route via Phoenix, and
Baylor lawprof Jessica Asbridge on
"Everything Old is New Again: Why Today’s Practitioners
Need to Understand the Original Meaning of the
Takings and Just Compensation Clauses."


The "Condemnation 101" track was wildly popular
both with new members of the Eminent Domain Bar,
as well as old hands. Standing room only throughout the day.

We also had reports from the field that the remote viewing
was going well. Here's how we looked in the
mountains of North Carolina.

Let's not forget the substance of the Conference.
Lots of practical learning. Here's Hawaii's Mark Murakami
and Virginia's Steve Clarke on "Avoiding the Real Jeopardy:  
Structuring Eminent Domain Settlements."
And no, two-time Jeopardy! champion Steve did not
give answers in the form of a question.

Weather throughout Wednesday and Thursday was icy and nasty,
but towards the end of Thursday seemed to be clearing up.

Consequently, the view from the podium looked better and better
with more showing up and more reporting they were nearly there.

The programming at the Conference is traditionally
a mix of practical subjects and the more theoretical.
Here's one of the highlight latter programs,
Alan Ackerman (Michigan), Matthew Ackerman (also Michigan),
and Steve Davis (Missouri) on "What Does the Supreme Court
Mean When it Says Just Compensation is “Self-Executing?"

There's an ethics program, naturally, for those of us in jurisdictions
with mandatory CLE requirements. But we try and not do "typical"
(i.e., boring) ethics programs. Here's Sarah Kellner (Colorado) and
Shane Rayman (Ontario, CN) on "Ethics: Building Your Practice
by Mentoring the Next Generation of Eminent Domain Professionals."

An example of our practice-oriented programming: Tony DellaPelle
(New Jersey), Bernadette Duran-Brown (California), 
and Andrew Lines (Illinois) on "Preparing Your Expert
Witness to Shine in Virtual Proceedings:
Tools and Tips For Trial Lawyers." 

Andrew actually pretended he was far, far away for his "deposition"
when he was in fact one floor up from the Conference room.
Way to go all-in.

Thanks to our generous sponsors, we were able to avoid Austin's
icy roads and have our Mickelthwait barbecue
brought in for lunch. Was it well-received? See for yourself. Line
was through the lobby and nearly out the front door.

Thank you to Texas Supreme Court Justice Jimmy Blacklock
for speaking on "Developing Property Right Issues in Texas,
Questions and Answers with Justice Jimmy Blacklock"
(interviewed by Justin Hodge (Texas)

It was not an echo-chamber either. Here, in a hotly-debated
session, Jeff Redfern (Virginia), Steve Silva (Nevada), and
Lawprof Emilio Longoria (St Mary's Law, Texas)
debate "When the SWAT Team Comes (No) Knocking:
Police Power Takings."

Jeff, Steve, and Prof Longoria's session got everyone's blood pumping.

It wasn't all serious, and we had a bit of fun.
Like this after-hours live edition of the Eminent Domain & Right of Way
Clubhouse with Beth Smith (Wisconsin), Patrick McAllister (Indiana)
and some dude who was having a post-CLE session beer.

Some of our faculty are more formal and like to speak
standing at the lectern. Here, Pacific Legal Foundation's Jon Houghton
(New Jersey) and Ben Stormes (Montana) on
"Avoiding Pitfalls When Trying a Penn Central Case:
Lessons From the Takings Trenches."

Others are less formal, and speak while sitting
(and wildly gesticulating to make sure you are paying attention).
Kristen Renfro (California), and some guy on
"Your Regulatory Takings Case is in Federal Court – Now What?"

By Friday morning, the Austin weather was looking up. Really up.
And we nearly had everyone in the room.
By hook or by crook, most everyone was there.

By Friday were were pretty much back to normal.
Nearly all faculty and all attendees in the room.
And thus we turned it over to our Saturday morning stalwarts,
starting with Jim Burling, here speaking about "The Many Theories of
Property - Do They Matter in Court?" (and Pufendorf)

No one wanted to miss Michael Berger's "Regulatory Takings Update"
on Saturday morning either.

When you can fill this many seats at a CLE conference on a
Saturday morning after two full days of programming,
you know your speakers are the
right ones (thank you Jim and Michael).

After Jim and Michael did their thing, we held our "National Forum,"
a moderated "open-mic" session where Conference attendees
take to the podium and speak about their case or issue,
or crowdsource a question. Here, Pacific Legal
Foundation's Kady Valois, speaking about
our firm's latest takings cert grant.

We were happy to announce that the 41st ALI-CLE Eminent Domain &
Land Valuation Litigation Conference will be held February 1-3, 2024,
at the JW Marriott in New Orleans.
Save the date!

Ivy Cadle (Georgia - Go Dawgs!) is already planning his trip to
#EminentDomain 2024 in New Orleans.
See you there, Ivy.

With the programming wrapped up, it was time for farewells
and thank yous. Here, four of our law students from William and Mary Law,
who took the time out of their schedules to make their way to
Austin for some real-world learning and networking.
Well done, new colleagues!

Even after the proceedings closed, there was more work to be done.
Here, the ALI-CLE Tech Team breaks it down, after successfully
guiding us through the past four days. They are a large part of the
reason why this Conference works so well (plus, they make the
speakers look really good on camera).

To those who joined us - in-person or on-line, thank you. This conference reminded us of why this program is so successful, and why we all return year-after-year.

To those of you who didn't (or couldn't) join us, here's what you missed. You need to remedy that, and come join us next year in New Orleans...

We'll see you in New Orleans for
#EminentDomain2024!
(Want to keep the conversation going in the
interim? Join the ALI-CLE Eminent Domain Conference
page on LinkedIn.)

CA2, Pellucidly:* You Let 'Em In, Property Owners, So New York Can Tell You To Keep 'Em (Part I)

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

The U.S. Court of Appeals for the Second Circuit has affirmed the Eastern District of New York's 12(b)(6) dismissal of a complaint alleging that New York (state)'s sweeping amendments to its Rent Stabilization (rent control) statute effected physical and regulatory takings.

First, this can't be a surprise to anyone who has been paying attention to how courts treat rent control. Putting aside for a moment the legal theories and the various challenges, rent control has become so ossified -- such a political third-rail and sacred cow -- that courts are very reluctant to do anything to upset the system, and will approve most any ratcheting-up of the restrictions. Any challenger, whatever the logic of their legal theory, has to recognize that they start off in a very deep hole.

That said, let's take a look at the Second Circuit's opinion because this case is, by all accounts, headed to the Supreme Court (and always has been aimed in that direction).  

Physical Occupation?

The plaintiffs, owners of apartments subject to the amended rent control statute, asserted the law effected facial and as-applied takings. The first claim was for a physical occupation. The statute deprived them of the right to exclude, they argued,  because they have to house tenants at below-market rates. The panel opinion didn't beat around the bush, but got right to the heart of the reasons why it affirmed the dismissal - the owners have no right to exclude, relying on Yee v. City of Escondido because you let the tenants in:

However, where—as here—property owners voluntarily invite third parties to use their properties, regulations of those properties are “readily distinguishable” from those that compel invasions of properties closed to the public. Cedar Point, 141 S. Ct. at 2077. As the Supreme Court made pellucid in Yee v. City of Escondido, when “a landowner decides to rent his land to tenants” the States “have broad power to regulate housing conditions in general and the landlord-tenant relationship in particular without paying compensation for all economic injuries that such regulation entails.” 503 U.S. 519, 528–29; see also Loretto, 458 U.S. at 440 (“This Court has consistently affirmed that States have broad power to regulate housing conditions in general and the landlord-tenant relationship in particular without paying compensation for all economic injuries that such regulation entails.”); Home Building & Loan Ass’n v. Blaisdell, 290 U.S. 398 (1934); Edgar A. Levy Leasing Co. v. Siegel, 258 U.S. 242 (1922). The numerous cases that affirm the validity of rent control statutes are the necessary result of this long line of consistent authority. See, e.g., Bowles v. Willingham, 321 U.S. 503 (1944); Block v. Hirsh, 256 U.S. 135 (1921).

Slip op. at 7.

We've never quite wrapped our head around this rationale (assuming that Yee says that pellucidly, which we don't think it does at all). What is the difference between an owner saying "keep out" and barring the door and having the law force the door open, versus the law restraining an owner from saying to someone who is no longer invited to "get out?" Yeah, the owners here voluntarily invited tenants to occupy their properties, but occupancy was subject to whatever terms the owners and the tenants agreed to.

But the court was having none of that. You property owners willingly put your units into the rental market -- oops, sorry, the "regulated housing market," slip op. at 9 -- so this is on you for not simply keeping your gates closed. Shame on owners for offering your properties for rent!

To begin, no plaintiff alleges that the RSL forces them to place their properties into the regulated housing market, and it is well-settled that once an owner “decides to rent his land to tenants, the government . . . may require the landowner to accept tenants he does not like.” Yee, 503 U.S. at 526–28. See also Heart of Atlanta Motel Inc. v. United States, 379 U.S. 241, 259–60 (1964).

Slip op. at 9.

Next, the court concluded that the statute doesn't deprive the owners permanently of the right to exclude, "[b]ecause, as pled, landlords may yet succeed in evicting current tenants, we cannot say that the RSL “compel[s] a landlord over objection to rent his property or to refrain in perpetuity from terminating a tenancy.” Yee, 503 U.S. at 528." Slip op. at 9.

Ripeness (Exhaustion)

Same story with the regulatory takings claim and pleading Penn Central. Before whacking the claim for a failure to plead, however, the court noted the claim was not ripe because the owners have not sought an exemption from the statute's effects under the "hardship" provision. Slip op. at 12. "[T]he as-applied challengers have not sought exemptions. Instead, they speculate that the hardship provisions offer economic relief 'in theory' but practically 'result in few applications . . . being granted.' Speculation of this sort is insufficient under Pakdel." Slip op. at 13.

Yes, such "hardship exemptions" or "variances" are seemingly built into every land regulation scheme out there, and are increasingly becoming the tail that wags the dog: they rarely if ever get granted (and when they do, they are the product of behind-the-scenes decisionmaking that virtually overrule the legislatively-adopted regulation, and operate mostly as a ripeness pressure valve allowing government to avoid having to face the takings music that is the natural consequence of the blanket regulatory ban or restriction).

But who knows, the State just might grant some relief, right Second Circuit?

Penn Central

Back to the Penn Central claim. Slip op. at 13 ("That said, even if the as-applied challengers’ regulatory takings claims were ripe, these claims would nevertheless fail on the merits."). The court seems to analyze the merits of the claims, rather than just stick to whether the Penn Central factors were adequately pleaded. For example, check out this sleight-of-word: "Furthermore, the as-applied challengers have not plausibly alleged that the economic impact factor tilts in their favor." Slip op. at 15.

But isn't all that is required is an allegation that the regulations have had an economic impact on the owners (with it being up to the jury or fact-finder to determine whether this impact, when measured against the other factors, "goes too far" and looks like it is having an effect similar to an eminent domain seizure? Here, the plaintiffs alleged a decrease in value between 20 and 40 percent, and that seems like it should have been enough. But here we have the court determining as a matter of law that this can never be enough, which to us is an usurpation of the right to have a jury make this determination.

Next, the investment-backed expectations factor (which, in itself, invites the kind of bizarre analysis the court engaged in, focusing on whether the property owners here could and should have predicted future restrictions). One answer might be that of course, having their properties in New York, they should have expected to get nailed. And strangely, that is just what the court concluded:

We agree with the district court and hold that any investor could reasonably expect limits on the use of rental properties, such as those as provided by the RSL.

Slip op. at 17. Go ahead, read the rest of pages 17 and 18, where the court bootstraps the very existence of the RSL to conclude that owners should just know that more is coming. You frogs in the slowly boiling water: it's your own damn fault for not getting out of the pot. 

The opinion ends on a low note, the inevitable butchering of Penn Central's character inquiry. The RSL is a valid police power regulation, the court concludes, and therefore the character factor is in the government's favor. That analysis properly belongs in the following section (pages 21-23) where the court concludes that the rent control statute is a valid exercise of police power.

More on the opinion:

• Federal Appeals Court Rejects Rent Control Challenge, Says Government Has Wide Powers To Regulate Land Use (Reason)
• NYC Rent Stabilization Rules Beat Challenges by Landlords (Bloomberg Law)

Stay tuned there will be more.

------------------------------------
*We know the rule in legal writing is never to use "clear" or "clearly," but if you substitute "pellucid," you are just making it worse, not better.

74 Pinehurst LLC v. New York, No. 21-467(L) (2d Cir. Feb 6, 2023)

"Emerging Issues In Property Rights" - Wednesday, February 8, 2023, 3-4pm ET (Free!)

Join our Pacific Legal Foundation colleagues Jon Houghton, Daniel Woislaw, Kady Valois, and Sam Spiegelman (moderating) tomorrow, Wednesday, February 8, 2023, at 3:00 - 4:00 p.m. ET for a free webinar, "Emerging Issues in Property Rights."

Here's the agenda:

Protecting private property rights has been at the heart of PLF’s work since our founding in 1973. Our view, and that of the American Founders, is that property rights are foundational to all other constitutional rights.

Our relentless defense of property rights has secured many precedented victories, including 12 property rights wins at the U.S. Supreme Court—and counting.

Unfortunately, even today, the need for property rights champions remains critical.

Government officials too often relegate property rights to second-class status among Americans’ constitutional rights—cloaking their assaults in erroneous assertions of environmental protection or cleverly constructed land use restrictions.

To learn more about property rights’ legal landscape in 2023, join us for part two of our four-part webinar series, Emerging Issues in Property Rights. Our panel of PLF attorneys will preview the road ahead for property rights and strategies to restore these fundamental rights to their rightful constitutional status.

Join us, and register here (free!).

Hawaii 5-80: Land Use Law At The University Of Hawaii

Starting in January, we'll be teaching the venerated, and oh-so-important Land Use course (Law 580) at the University of Hawaii's Law School.

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

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

Is there a bit of pressure on us to get it right? You bet. But are we looking forward to it (not just an opportunity to head back to the 808, but because this is a great subject)? You bet.

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

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

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

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

• Private Utility Takeovers – Lessons From a 67 Day Trial

• Valuation Issues When Billboards and Signs are Condemned

• Setting Client Expectations and Identifying Red Flags

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

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

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

• ...and much more!

To register, go here.

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

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

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

Video: "The Future of Private Property Regulation in America"

Check it out: our Pacific Legal Foundation colleagues Jim Burling, Jon Houghton, and Jeff McCoy, along with Jeremy Hopkins (Cranfill & Sumner, North Carolina), share with us the latest on property rights, Sackett, takings, the future of Penn Central, and the upcoming SCOTUS arguments in Wilkins v. United States (is the Federal Quiet Title's statute of limitations jurisdictional?).

Don't miss it.

County: We're Short Of Housing, So Let's Do Rent Control! Court: Not So Fast.

Florida law makes it really difficult for municipalities to adopt rent controls. State statutes and the Florida Constitution erect all sorts of substantive and procedural hurdles that must be crossed. For example, a statute requires findings that any such measures are responding to an emergency, a "grave ... menace to the general public," and places the burden on the municipality to not just make findings, but back up those findings with facts, and show that rent control will actually "eliminate" the emergency. Single-family properties cannot be rent controlled. And any ordinance adopted by a municipality must be approved by the voters.

Facing what it concluded was a problem -- a shortage of 26,500 housing units and a population increase of 25% in the last decade - Orange County's County Commission voted, 3-2, to control rents. The measure limited the frequency and amount of rent increases.

After the measure was placed on the ballot for [today's] general election, the Realtors Association sued to declare the ordinance unconstitutional and to prevent the measure from being placed on the ballot. It sought an injunction, and even though the trial court concluded the Association had a substantial likelihood of winning on the merits, it declined to remove the measure from the ballot because even if invalid, a vote would allow the public to offer its opinion on rent control. Both parties appealed.

In Florida Ass'n of Realtors v. Orange County, No. 5D22-2277 (Oct. 27, 2022), the Florida District Court of Appeal agreed that the measure was likely to be illegal, but reversed the trial court's allowing it on the ballot. The court concluded that Orange County could not meet its burden to show that there is a housing emergency, nor its burden to prove that rent control would alleviate any such emergency. "Emergency" means a "sudden or unexpected" and temporary condition, and here, the housing shortage is the result of "historical structural issues" and not a surprise. Things like population growth, and longstanding housing shortages are not sudden. Moreover, the "County Attorney warned the County that these factors would be legally insufficient before it enacted the Ordinance." Slip op. at 18.

Even if the housing shortage qualified as an emergency, the County didn't prove that that it was "so grave as to constitute a serious menace to the general public." Slip op. at 19. To be a "menace," the threat must be a "grave threat or danger to the Orange County citizens as a whole." Slip op. at 20. "At most, the County cites to a low rental vacancy rate and low availability of affordable housing." Slip op. at 21. Yes, this affects renters in Orange County, but that isn't enough. It has to affect everyone.

Next, the court concluded that even if such conditions exist, the rent control measure would not address or remedy the problems. Not only would the measure not "eliminate" the problem as the statute requires, testimony at trial showed that it would have little effect, and even the County's consultant report conclude that rent control "may actually hurt rental conditions by 'imped[ing] the objective of speeding overall housing deliveries as well as creat[ing] a number of unintended consequences.'" Slip op. at 23.

"In sum, for this third and independent reason, the trial court correctly concluded that the Association satisfied its burden to demonstrate a substantial likelihood of success on the merits of its challenge to the Ordinance's validity." Slip op. at 24.

The court of appeal also concluded the ballot summary was misleading: "[t]he summary is misleading not because of what it says, but because of what it does not say." Slip op. at 27. The summary stated:

Rent Stabilization Ordinance to
Limit Rent Increase for Certain
Residential Rental Units

Shall the Orange County Rent Stabilization Ordinance, which limits rent increases for certain residential rental unites in multifamily structures to the average annual increase in the Consumer Price Index, and requires the County to create a process for landlords to request an exception to the limitation on the rent increase based on an opportunity to receive a fair and reasonable return on investment, be approved for a period of one year?

The summary "only advises the voter about the amount of rent control, but not its frequency," even though the actual ordinance limits increases to once in a twelve-month period. Slip op. at 27. The summary thus makes the measure appear less extensive than it actually is.

Finally, the court of appeal disagreed with the trial court's refusal to enjoin the election and keep the issue from the voters:

No public interest can be served by allowing the potential enforcement of a rent control ordinance that fails to meet the facial requirements of section 125.0103, and Article 8, section 1 of the Florida Constitution. We recognize that a local government's aim to enact legislation to address a complex, multifaceted issue is noble, and citizens might believe that rent control is a harmless was to accomplish that aim. But as we stated at the outset of this opinion, the power of local government is limited, and a critical limitation on this power is the Florida Constitution.

Similarly, no public interest can be served by having the electorate vote on a misleading ballot measure.

Slip op. at 32-33.

Fla. Ass'n of Realtors v. Orange County, No. 5D22-2277 (Fla. Dist. Ct. App. Oct. 27, 2022)

Oklahoma: The "Taking" Occurs When Govt Changes Its Use Of A Previously-Granted Easement

Even though the Oklahoma Supreme Court's decision in Snow v. Town of Calumet, No. 119,758 (June 21, 2022) is short, we think it is worth reading because is clarifies who can bring an inverse claim, and what exactly do these claims allege.

In 1978, the Snows' predecessor-in-title granted the Town an easement to maintain sewer lines. The easement was temporary and expired 6 months after the Snows purchased the property in 2010. But after the temporary easement expired, the Town didn't cease its use of the property. Flash forward 7 more years, and the Town asked the Snows to grant it perpetual easements for its continued use. The Snows asked for compensation, but the Town said no.

Next up, the Snows' trespass and inverse lawsuit in state court, with the Town counterclaiming with a quiet title claim asserting it had acquired a perpetual easement by prescription. Cross motions for summary judgment flew: the Snows won the prescription claim (the prescription period is 15 years in Oklahoma), while the Town won the trespass and inverse claim, the latter dismissed because the Snows lacked standing (the claim, the court concluded, belonged to the former owners who had consented to the Town's invasion of the property).

The Oklahoma Supreme Court reversed, concluding that the Snows had standing to bring an inverse claim. While acknowledging the "general rule" that "the right of inverse condemnation belongs to the owner at the time of the taking," slip op. at 4, the court held the general rule wasn't applicable here because the inverse claim wasn't based on the original physical incursion (which was indeed permissive), but on the Town's continued use of the Snow land even after that permission expired. See slip op. at 5 ("When the Town sought perpetual easements from the Snows for the continued use and maintenance of the sewer lines more than seven years after the temporary easements expired, the Snows owned the property, giving them standing to allege an inverse condemnation claim.").

Takings claims are not limited to one-per-property, and "[m]ore than one taking can occur involving a single piece of property." Slip op. at 6. Thus, the fact that the Town had installed the sewer lines with the prior owners' permission didn't really tell us much about whether the Town's continuing use of the property after that permission expired was a taking. There's a difference, after all, between a temporary easement and a perpetual easement, and an owner is within her rights to tell third party users of her property that "you can use it for only a certain amount of time after which your possession becomes adverse to me."  

Reversed and remanded for trial.

We posted this one because it emphasizes a related point relating to Co-19 eviction moratoria. Most of the takings challenges have gone nowhere due to the courts seeing the property right being invaded by a tenant remaining past the expiration of the owner's permission as the right to exclude. Ah ha, the courts exclaim, you landlords invited these now-nonpaying tenants to possess your properties, so you can't say that moratoria allowing them to remain rent-free has taken your right to exclude. For an example of that thinking, see here.

But we think the analysis should be more like the Oklahoma Supreme Court applied here. Yes, property owners may have initially invited tenants to possess and occupy their properties, but that permission was subject to two conditions: first, the continuing payment of rent; and second, the expiration of the original permission after a certain time (the expiration of the lease, for example). So it isn't so much the right to exclude that is being interfered with, but some other right (the right to recover property, the right to re-possess it, or maybe a "reverter"). 

Snow v. Town of Calumet, No. 119,748 (Ok. June 21, 2022)

Here's The Full Speaker And Topic List For The Brigham-Kanner Property Rights Conference (Sep 29-30, 2022)

By now, you know that the 19th Brigham-Kanner Property Rights Conference is set for September 29-30, 2022, at the William and Mary Law School in Williamsburg, Virginia (register here - space is limited - fee ranges from free to $195 - a bargain!). And you know that our colleague Jim Burling is this year's B-K Prize winner.

But now you know who is speaking at the Conference, and the topics: here's the full agenda. The list of speakers is too long to list here but check out these topics:

• Panel 1: The Importance of Property Rights: A Tribute to James S. Burling
• Panel 2: Reshaping the Framework Protecting Property Under the Roberts Court (that's the panel we're speaking on)
  
• Roundtable: Emerging Issues in Takings and Property Rights Litigation
• Panel 3: Choosing A Property Regime
• Panel 4: Property Rights in Times of Scarcity and Crisis

Who can resist these subjects? Plan on joining join us in September.

2022 Brigham-Kanner Property Rights Conference Speaker Panels

New Article: "Taking One for the Team: COVID-19 Eviction Moratoria as Regulatory Takings"

Check it out: a new article from the San Diego Law Review that's worth reading. Here's the Abstract:

This Comment explores potential Fifth Amendment challenges to COVID-19 eviction restrictions. Part II introduces California and federal COVID-19 eviction laws and lays out an organizational framework for analysis. Part III provides background on relevant regulatory takings jurisprudence. Part IV analyzes COVID-19 residential eviction laws under relevant regulatory takings tests. Part V considers judges’ potential impact on eviction moratorium challenges. Finally, Part VI proposes the solution that the Federal Government should pass legislation to provide direct rent relief for COVID-19-affected tenants.

Get the pdf here: "Taking One for the Team: COVID-19 Eviction Moratoria as Regulatory Takings," 59 San Diego L. Rev. 345 (2022).

Our take on Co-19 takings (not just eviction moratoria) here. And our thoughts on emergency response laws, generally.

Links From Last Week's Georgia Bar Association Eminent Domain Conference

Here are the links to the cases and other materials that we talked about last Friday at the Georgia Bar Association's annual Eminent Domain Conference. Our talk was entitled "It's the Chief Justice's Property World, We Just Live In It: National Trends in Takings, Property, & Eminent Domain," and was part of the Eminent Domain Section's (yes, the Georgia Bar has a Section entirely devoted to eminent domain!) annual conference on the topic. I was honored to have been asked to chat with this august and expert group of lawyers.

• Knick (opening back up federal courts to takings claims).
• Penn East (eminent domain and the 11th Amendment)
• Horne II (California raisins and physical invasions)
• Murr (the larger parcel issue, applied in regulatory takings cases).
• Winter (preliminary injunctions, diesel-electric submarines, and Pearl Harbor).
• The per curiam CDC eviction moratorium opinion.
• Koontz (money as property ... and exactions).
• Arkansas Game (physical invasions, again).
• Horne I (compensation isn't the only remedy for "takings").
• Brandt (easements, vel non)
• Help me help you!
• What to do when the condemnor doesn't promptly pay up.
• Abstention as the new Williamson County?
• The undivided fee rule ... constitutional?
• Whither Yee and the future of the physical occupation rule.

I look forward to future collaborations with our Georgia colleagues!

CA8: Yee v. Escondido Doesn't Save Eviction Moratorium From Takings Review

Here's the latest case challenging a pandemic-related eviction moratorium, this one from Minnesota and the U.S. Court of Appeals for the Eighth Circuit.

In Heights Apts, LLC v. Walz, No. 21-1278 (Apr. 5, 2022), the court reversed the district court's dismissal of a property owner's takings claims. The owner challenged the Minnesota governor's residential eviction moratorium and later extensions. Like a lot of these things, the Minnesota version was not a rent "holiday" (tenants were still, technically speaking, on the hook for the rent, and there were several limited exceptions under which the property owner could evict). But for the most part, the Minnesota measure, like a lot of these things, effectively left property owners holding the economic bag (good luck collecting thousands in back rent), and turned their units into public pandemic housing. 

The owner's complaint raised Contract Clause, Petition Clause, and Takings claims.

Before we get to the good stuff (takings), a short word about the Contracts and Petition claims. The Eighth Circuit reversed the district court's dismissal of the Contracts claim, concluding that "[a] cognizable Contract Clause claim requires a showing of a substantial impairment in a contractual relationship that is not reasonably tailored to advance a significant and legitimate public purpose." Slip op. at 15. "Given the breadth and impact of the EOs on landlords’ rights, as alleged by Heights, the complaint contains sufficient facts to meet the plausibility requirement for the second prong of its Contract Clause claim[.]" Id. But the Petition claim did not similarly survive because the property owner didn't plead that the damage remedy it sought was "somehow unique to its Petition Clause claim[.]" Slip op. at 16. 

With those out of the way, we get to the takings claims. The complaint alleged a physical taking, because the moratorium "forced landlords to accept the physical occupation of their property regardless of whether tenants provided compensation." Slip op. at 17. As in many other of these moratorium cases, relying on Yee v. City of Escondido, 503 U.S. 519 (1992), the state argued that the moratorium only restricted an owner's ability to evict (you let 'em in, property owner; we're only telling you that you can't get 'em out).

The Eighth Circuit instead focused on Cedar Point Nursery, concluding that that case "controls here and Yee, which the Walz Defendants rely on, is distinguishable."

The rent controls in Yee limited the amount of rent that could be charged and neither deprived landlords of their right to evict nor compelled landlords to continue leasing the property past the leases’ termination. 503 U.S. at 527–28. The landlords in Yee sought to exclude future or incoming tenants rather than existing tenants. Id. at 530–31. Here, the EOs forbade the nonrenewal and termination of ongoing leases, even after they had been materially violated, unless the tenants seriously endangered the safety of others or damaged property significantly. See 307, 712, 2103 & 3151 LLC v. City of Minneapolis, 27 F.4th 1377, No. 20-3493, slip op. at *3 (8th Cir. Mar. 14, 2022) (noting “an ordinance that would require landlords to rent to individuals they would otherwise reject might be a physical-invasion taking”).

Slip op. at 17-18. The complaint here alleged that the moratoria had made each lease "indefinite," and that was enough for the court to conclude that the complaint sufficiently alleged a physical taking.

The complaint also alleged a non-physical (regulatory) takings claim. The court first rejected the government's "notice" defense (the property owners "closed on the properties shortly after the first EO was signed"). Nope, the court concluded, the timing of the acquisition was "immaterial to our analysis," because this was too narrow a view of the property allegedly taken. Here, the complaint alleged that the moratoria "deprived it of the economic and beneficial use and decision-making related to its property and investments." Slip op. at 18. It wasn't just the value of the property, or the lost income that was alleged to have been taken. "here, since the EO's affected the least terms of every residential unit (paying or non-paying), the allegedly taken property consists of all of Heights' residential rental property." Slip op. at 18-19.

Looking at Penn Central, the court concluded that the complaint adequately pleaded the three factors. The most interesting was the court's treatment of the "character" factor, which the opinion calls "the nature of the regulation." Slip op. at 19. This perked up our ears, because it looked like the court was going to go down the valid-police-power-cannot-be-a-taking path, an analysis we've harshly criticized.

We're not quite sure whether the court went down that road (because it cited to a case in which the Supreme Court held that if a "regulation's effects are so publicly beneficial," then it cannot be a taking), but eventually distinguished that case and concluded that the complaint pleaded that the moratoria was a benefit only to a narrow class of the public. Slip op. at 19 ("Heights asserts the EOs are not in this category because, in comparison to the legislation discussed in Connolly, the EOs were not as broadly beneficial, and they improperly imposed the public cost of fighting homelessness on a subset of the population: rental property owners."). The court concluded that the complaint therefore adequately pleaded the "character" prong.

While we remain skittish of this approach, all's well that ends well, we suppose, because the court concluded, that "[c]onsidering the Supreme Court’s recent pronouncement regarding the now-defunct CDC eviction moratorium, we are unconvinced that as a matter of law the EOs are permissible non-compensable takings." Slip op. at 20.

Now that an overbroad application of Yee is off the table, but an overbroad view of Penn Central's "character" factor is in play, let's see what the district court does with this on remand.

Heights Apartments, LLC v. Walz, No. 21-1278 (8th Cir. Apr. 5, 2022)

CA8: Ordinance Making It Really Really Hard To Reject Tenants Isn't A Physical Taking

Check out the U.S. Court of Appeals for the Eighth Circuit's opinion in 301, 712, 2103 and 3141 LLC v. City of Minneapolis, No. 20-3493 (Mar. 14, 2022), in which the court held that a Minneapolis ordinance prohibiting property owners from rejecting a prospective tenant because of the applicant's criminal, credit, or rental history isn't a taking.

The challenged ordinance "requires landlords to evaluate applicants for rental housing by either (1) 'inclusive screening criteria' or (2) 'individualized assessment.'" Slip op. at 2. That's a roundabout way of saying that a property owner cannot reject an applicant for their criminal or credit background, unless the owner first considers other "supplemental evidence" to justify why the applicant should become a tenant in spite of these problems, and notifies the tenant why this evidence isn't enough to outweigh the problems. 

The court first rejected the owners' claim that the ordinance allows third parties whom the owners don't want in their properties to physically occupy their spaces. Relying on Yee, the court concluded that the ordinance doesn't require owners to allow people to occupy their property whom the owner doesn't want there. Wait, you say, doesn't the ordinance prohibit the owner from making that call? Well, not quite according to the Eighth Circuit: yes, the owner cannot use the applicant's sketchy credentials alone as a reason to deny a tenancy, but may still deny an applicant if, after reviewing the "supplemental [mitigating] evidence" submitted by the applicant, the owner still thinks s/he doesn't want the person as their tenant. Thus, the court concluded, this isn't some kind of compelled occupation:

True, an ordinance that would require landlords to rent to individuals they would otherwise reject might be a physical-invasion taking. Regardless, the Ordinance here has an “individualized assessment” option that allows landlords to reject individuals due to undesirable criminal, credit, rental, and other history so long as they comply with the Ordinance’s procedural requirements (including considering supplemental evidence and providing a written explanation of rejection). Due to the individualized assessment option, the Ordinance is a restriction on the landlords’ ability to use their property, not a physical-invasion taking.

Slip op. at 7.

Come on, man, argued the landlords, that "individualized assessment" option isn't really an option at all, because it is really difficult, time-consuming, and expensive to go through that process. The court considered that option under Penn Central, concluding that there was no taking because the property owners didn't introduce sufficient evidence to support any of the three factors. Slip op. at 9 ("None of the Penn Central factors support a taking in this case.").

And finally, the court also rejected a substantive due process claim, concluding that that the owners here do not have a fundamental property right. Say what? Didn't the owners assert a right to exclude, and didn't Cedar Point say that was about as fundamental a property right as you can assert? Here, the Eighth Circuit reached back to its takings analysis, and concluded that the ordinance here does not infringe any right to exclude, it merely adds layers of process that a property owner must work through before s/he excludes:

This court need not address whether the right to exclude is a fundamental right under substantive due process. As discussed, the Ordinance does not infringe any right to exclude others from entering and using landlords’ property. Rather, it requires them to follow tenant-screening procedures before excluding others, including considering supplemental materials and later providing a written explanation.

Slip op. at 10. And here, it isn't really a plain-old right to exclude that is the "property." Rather, the court defined the property as "the right to exclude others from property without following tenant-screening procedures like considering supplemental materials and providing a written explanation." Slip op. at 10 (emphasis added). Having narrowly defined the property right as the right to be free of regulation, the court concluded, "[t]he landlords have not shown that such a right is 'objectively, deeply rooted in this Nation's history and tradition.'" Slip op. at 10 (citations omitted).

That very nearly seems like a sleight-of-law to us, because if you always define the property right being asserted as the right to be free of the challenged regulation, well, you are almost never going to find that the right is "deeply-rooted" and "traditional."

Having defined the right narrowly and thus not fundamental, the court applied rational basis review. Do we need to tell you what that meant here for the due process claim?

301, 712, 2103 and 3141 LLC v. City of Minneapolis, No. 20-3493 (8th Cir. Mar. 14, 2022)

Wash App: No Taking Of Right To Exclude Because Eviction Moratorium Merely Lets Tenants Remain

Lately, we've been zeroing in on one of the lesser known parts of the Supreme Court's takings canon, Yee v. City of Escondido, 503 U.S. 519 (1992), where the Court concluded that a city ordinance that limited the amount a property owner could charge a tenant for rent was not a physical invasion taking.

In Yee, the Court held that the ordinance did not intrude on the owner's right to exclude because the owners had invited their tenants to intrude on their property when they let them become tenants. Yeah, that invitation and resulting intrusion was conditioned on the tenant paying each month a specific amount of rent and the ordinance effectively rewrote that agreement, but the plaintiff raised only a facial categorical takings claim (and thus the question of whether the city-mandated lower rent prohibited a fair return to the owner was an issue that the owners could challenge in as as-applied claim (employing a Lucas or more likely, a Penn Central theory)). And Yee was limited to a government-mandated reduction in rent, and the Court recognized that an owner could still recover possession if the tenant didn't pay at all).

We were never that down with the Court's rationale, because allowing someone to intrude conditioned on their payment of a certain amount of rent each month does become an infringement on the owner's right to exclude if the city prohibits them from doing so after the city uses the law to alter the agreed-upon conditions for the tenant remaining on the property. But hey, that's just us. 

But beyond that criticism, we have another that has little to do with the Supreme Court's rationale. Yee has always struck as as being leveraged to do a whole lot more than what the actual ruling in the case said.

The latest example of that is the Court of Appeals of Washington's opinion in Gonzales v. Inslee, No. 55915-3-II (Feb. 23, 2022), where the court affirmed summary judgment in favor of the State, rejecting several property owners' constitutional challenges to the State's residential eviction moratorium, including a takings challenge.

After Co-19 bore down, the governor declared an emergency (dig into those more here) and imposed a seemingly-endless continuation of a moratorium on property owners from evicting, and "prohibited landlords from treating unpaid rent resulting from COVID-19 as an enforceable debt, unless the landlord offered and the tenant refused a reasonable repayment plan." Slip op. at 4. Lawsuit ensued, including the above-mentioned takings claim.

Trial court: summary judgment. Court of appeals: affirmed.

You can read the stuff about whether the appeal was moot (no), whether the governor has the authority under Washington law to do what he did (yes), whether there was a problem with separation of powers (no), or a denial of the right to court access (no) on your own. Naturally, we skipped ahead to the takings part (starting on page 20 of the slip opinion).

The plaintiffs alleged a physical invasion taking. The State interfered with their right to exclude their nonpaying tenants. And there, on page 23, the inevitable reliance on Yee.

As in Yee, the eviction moratorium did not require the appellants to submit to the physical occupation of their property. Instead, the appellants were the ones who invited their tenants to occupy their rental property. And unlike in Cedar Point Nursery, the moratorium did not require that the appellants allow third parties to enter and take access to their property. The proclamations merely operated to “regulate [appellants’] use of their land by regulating the relationship between landlord and tenant.” Yee, 503 U.S. at 528. Therefore, we conclude that the eviction moratorium did not constitute a physical per se taking.

Slip op. at 23. No interference with the right to exclude, so no taking.

In other words, if you let someone on your property subject to agreed-upon conditions (I'll let you stay as long as you pay rent), the government may fundamentally rewrite those conditions (you can stay even if you are not paying rent) and it has not, according to this court and others, interfered with your right to exclude them. That not only seems wrong, but not something that even the actual rationale of Yee would support. 

Let's see where this goes.

Gonzales v. Inslee, No. 55915-3-II (Wash. App. Feb. 23, 2022)

2022 ALI-CLE Eminent Domain And Land Valuation Litigation Conference, Scottsdale: You Should Have Been There!

After a two-year absence in which we went remote, in the last week of last month (our usual spot on the calendar, between the playoffs and Super Bowl), we once again met in-person for the American Law Institute-CLE Eminent Domain and Land Valuation Litigation Conference.

Approximately 200 lawyers, judges, legal scholars, appraisers, law students, right-of-way agents, relocation experts, property owners, and other related professionals gathered in-person--yes, in-person--at the Scottsdale (Arizona) Resort at McCormick Ranch, to get reacquainted, learn stuff, and renew ties last made in-person in Nashville in 2020. In addition to the live attendance, we also welcomed about 50 remote colleagues, who joined the live webstream.

This was the 39th edition of the Conference, one of the most-established and successful conferences in the ALI-CLE stable of programs.

To those who joined us - thank you. This conference reminded us of why this program is so successful, and why we all return year-after-year.

To those of you who didn't (or couldn't) join us, here's what you missed. You need to remedy that, and come join us next year...

Our 2022 Proof of Life Photo.

Every year, as we open the program, I take to the lectern for what I call my "proof of life" photo. Our Conference ends up in some really fun, exciting places. Nashville. Palm Springs. San Diego. Austin. San Francisco. Charleston. And I want to prove to the folks back in the office that yes, we really are in the room, learning stuff. And not out enjoying all that our venues have to offer (we save that for after-hours).

In this photo, we're in the room, spread out (the Resort put us in its massive ballroom, so we had room to spare).

Thank you to our sponsors. Without your generosity, the Conference would not be as good as it is.

Lawprof Karen Bradshaw presented our keynote address on Friday, "Do Animals Have Property Rights?" with more from her recent book "Wildlife as Property Owners." Her talk was followed by a book signing, too. Interesting stuff for sure.

Our main room was nicely filled for every program. A real testament to the subjects discussed, and the quality of the faculty.

The program includes a mix of practice and substantive topics. Here, Virginia's Steve Clarke in one of the breakout rooms (also nicely filled), presenting on "Federal Court and the Daubert Challenge – How To Prepare."

But it wasn't all eminent domain, property, and CLE credits. Naturally, with the beautiful Arizona winter weather, we found time to get out-of-doors and do things. Like this intra-firm golf tournament.

Which firm prevailed? You'll have to ask them who has the bragging rights.

What was especially nice was that our sponsor tables and the ALI-CLE registration table could be outside of the presentation rooms. Love that AZ weather.

New Jersey's Tony Della Pelle and Connecticut's Dwight Merriam on "COVID-19 Takings."

Our faculty includes not only lawyers and law professors. We also have other industry professionals come and present. Here, Washington's Martyn Daniel, Texas' Kristen Bennett, and (lawyer) Alan Ackerman from Michigan speaking about "Maximizing Relocation Benefits: Understanding the Law and Regulations to Ensure Fairness."

Ah, ethics. A tough subject to cover. Especially at 8am. But Georgia's Ivy Cadle (with the obligatory "go dawgs!"), Michigan's Darius Dynkowski, and (off-screen) Virginia's Kelly Sheeran and Texas' Justin Hodge filled the room with "Ethics Jeopardy! Live."

Yeah, Justin really did go for the end zone for his role as Ethics Jeopardy! host.

We understood the situation. Our faculty, staff, and attendees came to Arizona from around the nation. Some places have opened up, others are still getting there. We minimized any risks. Spread out in a huge room, and everyone was pretty cool with the modest requirements from ALI-CLE. What was especially good was that nearly every event but the actual programming were outside. 

Another featured panel was on the Supreme Court's big decision in Cedar Point Nursery. We brought together three expert perspectives on the case and what it means for the future. "Did the Supreme Court Signal a New Direction for Property Rights in Cedar Point Nursery?" featured California's Joshua Thompson (prevailing counsel in the case), U. Virginia lawprof Julia Mahoney, and (off-camera, since he remoted in) Maryland's Matthew Littleton, who filed a government-side amicus brief in the case.

Also pictured: the moderator, some guy who writes a blog.

Colorado's Katie Gray and Nebraska's Bill Blake on "Project Abandonment: How to Position Your Client for the Fallout When Projects Don't Get Built." Really useful.

Tag swag (aka badge flair) courtesy of our Platinum sponsor.

Our two fave tags.

Outdoors at night - really nice under the lights by the fire, after a long day of CLE programming.

Hawaii's Mark Murakami teamed with Wisconsin's Smitha Chintamaneni for "Why Jurisdictional Offers Must Include an Assessment of Severance Damages."

Even our final programs each day attracted a substantial crowd, often tough to do after long days of sitting in class. A testament to the strength of the faculty and the topics. Here's the audience for "Defending the Appraisal in the Courtroom - The Insider's View."

We put speakers with competing views on these panels, to get the blood pumping and keep everyone's attention.

Saturday morning, after two full days of (great) programming, is still a tough spot for a speaker, because they have to keep us focused, and interested.

That's why we always reserve these spots for two old hands, who will keep us zeroed in. Above is California's Jim Burling, with a tour-de-force solo hour on "What Are the Top 20 Ways to Increase the Cost of Housing? The Answer May Surprise You!"

Below, Michael Berger (looking a bit like Big Brother, admittedly), who remoted in from California with his annual "Regulatory Takings Update."

Feral cats and property rights had us smiling (ask Michael about what this refers to).

Michael Berger is Watching You.

A group photo of the William and Mary Law School contingent at the Conference (minus two other WM Law colleagues who could not be there for the photo). Recent and long-time alumni, current law students, a law prof, and (fourth from left) Jim Burling who later this year will be awarded WM Law's Brigham-Kanner Property Rights Prize at the B-K Conference in September 2022.

A pretty good showing for the alma mater.

There was a whole lot of podcasting going on. Thanks, Infrastructure Junkies and Eminent Domain Podcast. Can't wait for the episodes you recorded.

Again, thank you sponsors!

What about next year? Usually, on the last day of a Conference, we announce the dates and the venue for the following year. This year, due to some slowdowns, ALI-CLE couldn't quite get all the requirements in place to make a formal, official announcement. As soon as we know the venue, we'll go loud here.

As for the date: same date as usual - last week of January or first week of February, depending on the football schedule (which we're trying to avoid).

Stay tuned.

 

CA2: NYC's Eviction Moratorium May Have A Contracts Clause Problem

There's not a lot of direct takings love in the U.S. Court of Appeals for the Second Circuit's opinion in Melendez v. City of New York, No. 20-4238 (Oct. 28, 2021), but there's enough there that you might want to read it anyway.

Because the opinion resurrected the plaintiffs' Contracts Clause claim. You heard that right, their Contracts Clause claim. The plaintiffs asserted that New York City's ordinance that prohibiting "threatening" a tenant due to their Co-19 status violated free speech and due process rights, and the city's ordinance voiding personal guarantees for commercial leases impaired their lease contracts. The district court dismissed the case for failure to state a claim, concluding that the guaranty ordinance served a legitimate public purpose and did not favor any class.

The Second Circuit affirmed dismissal of the free speech and due process claims, but also concluded that the complaint alleged a plausible Contracts Clause claim because an ordinance that renders unenforceable personal guaranties for rent obligations could result in a "substantial" impairment of that contract. The opinion is long on this (and other) points -- it is a whopping 109 pages, with 83 (83!) footnotes, with a 37-page dissent -- but we recommend you try and slog through it. Any time a court even hints that a Contracts Clause claim could be successful, we pay attention.

And what of the takings crumbs? They are there, but you have to hunt. The most interesting is footnote 81 on page 106. In noting that Contracts Clause analysis turns in part on compensation (but does not require it), the court contrasted takings analysis which naturally requires compensation if there's been a taking:

Compensation is a factor in Contracts Clause analysis; it is a requirement under the Takings Clause. See generally Apartment Ass’n of L.A. Cnty. v. City of Los Angeles, 10 F.4th at 915 (acknowledging that reasonable rent has been a “relevant consideration” in Contracts Clause challenges to eviction moratoria, but not a “constitutional floor”). While plaintiffs have not here pleaded a Takings Clause claim, nothing in this opinion is intended to preclude the parties or the district court from considering how these two constitutional protections might overlap in the circumstances of this case.

Slip op. at 106 n.81.

Has the Second Circuit picked up the Supreme Court's big hint in the recent CDC moratorium case about takings? Enquiring minds want to know!

Melendez v. City of New York, No. 20-4238 (2d Cir. Oct. 28, 2021)

Join Us (For Free!): Lawprof Ilya Somin On "Cedar Point Nursery v. Hassid and the Future of the Takings Clause: Physical Occupation, Eviction Moratoria, and More" (Tues. Sep. 28, 2021, 12:50pm ET)

Next Tuesday, September 28, starting at 12:50pm ET, we'll be moderating a talk sponsored by the William and Mary Law School chapter of the Federalist Society.

Professor Ilya Somin, a nationally-recognized expert in eminent domain, takings, and related topics, is zooming in to speak about "Cedar Point Nursery v. Hassid and the Future of the Takings Clause: Physical Occupation, Eviction Moratoria, and More."

And guess what? You can Zoom in too. It's open to the public, and it's free.

So mark your calendars and join us for Prof Somin's thoughts on the cutting-edge issues in property rights. Here's the Zoom link: https://us02web.zoom.us/j/89365248145. See you on Tuesday!

SCOTUS Strikes Down CDC Eviction Moratorium And Leaves Tantalizing Clues About Takings

The other shoe -- perhaps the most predictable shoe drop in legal history -- dropped yesterday, and the Supreme Court vacated the stay on appeal in one of the cases challenging the CDC's renewed eviction moratorium, meaning that the district court's judgment vacating the moratorium can go into effect. Alabama Ass'n of Realtors v. Dep't of Health and Human Svcs, No. 21A23 (Aug. 26, 2021) (per curiam).

The six-Justice majority, in an unsigned opinion, held that ""[i]t strains credulity to believe that this statute grants the CDC the sweeping authority that it asserts." Slip op. at 1-2. Now remember, this is one of the cases challenging the CDC moratorium on non-takings grounds, primarily asserting that the CDC's authorizing statute does not authorize this sweeping an action (or if it does, the statute is unconstitutional). For a complete analysis of the opinion, see lawprof Ilya Somin's hot take: "Supreme Court Rules Against the Revised CDC Eviction Moratorium."

But takings mavens, take heart. The unidentified author of the per curiam opinion left us some tantalizing takings breadcrumbs even though this case does not contain a takings claim.

First, a citation to Loretto, noted above. As we noted, this isn't a takings case. Yet, 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. You know what is missing from this cite? That's right, Cedar Point Nursery. Interesting that the opinion goes back to Loretto when it decided (by the same six Justices) Cedar Point just a short while ago. In other words, don't count Loretto out entirely just yet. And what other case is 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 those takings claims against the various eviction moratoria (see here, here, and here, for example), just got a boost, because as we know. being able to allege a categorical taking is like the end of the yellow brick road for takings plaintiffs. 

Second, the Court cited the Steel Seizure Case for the idea that just because we're in an emergency doesn't mean that the rules don't apply.

It is indisputable that the public has a strong interest in combating the spread of the COVID–19 Delta variant. But our system does not permit agencies to act unlawfully even in pursuit of desirable ends. Cf. Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 579, 582, 585–586 (1952) (concluding that even the Government’s belief that its action “was necessary to avert a national catastrophe” could not overcome a lack of congressional authorization).

Slip op. at 8. This is a good reminder that the "character of the government action" being an emergency response (even if a reviewing court somehow finds a way to get around the categorical nature of the physical invasion and apply Penn Central) isn't some kind of get out-of-the-Fifth-Amendment-free card, as many courts have unfortunately held (as noted in our recent article on COVID takings). 

Maybe the Takings Clause is the deus ex machina after all...

(PS - we're thinking Chief Justice Roberts might have authored this one. Just a feeling.)

Alabama Ass'n of Realtors v. Dep't of Health and Human Svcs, No. 21A23 (U.S. Aug. 26, 2021) (per curiam)

Registration Open Now: ALI-CLE Eminent Domain & Land Valuation Litigation Conference, Jan 26-29, 2022, Scottsdale

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

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

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

Join us in Scottsdale in January!

Three Justices: After An Eviction Moratorium Expires, "eviction proceedings will be conducted exactly as they were before"

There's not a whole lot in the U.S. Supreme Court's order granting an injunction on appeal that suspends application of a part of New York State's eviction moratorium until such time as a cert petition is filed. The claims in that case are due process claims regarding the deprivation of a hearing, not takings. 

But check out the three-Justice dissent, authored by Justice Breyer (joined by Justices Sotomayor and Kagan).

Why? Because it may give some clues how they see the various federal, state, and local moratoria operating, and in doing so may have given us clues about how they might treat a takings challenge. As you know, several takings challenges are in the pipeline, including cases against the CDC moratorium, California's, and the City of Los Angeles's.

Check out page 3 of the dissent:

First, the legal rights at issue in this case are not “indisputably clear.” Applicants argue that CEEFPA denies landlords due process of law because once a tenant submits an attestation of financial hardship, evictions cannot proceed and the landlord cannot challenge the tenant’s claim of hardship, for example, in court. Respondent argues, however, that the law is best viewed not as a deprivation of the right to challenge a tenant’s hardship claim but as simply delaying the exercise of that right—as of now for less than three weeks until the law expires. After August 31, New York’s eviction proceedings will be conducted exactly as they were before CEEFPA’s enactment. Our precedents do not make it “indisputably clear” that this delay violates the Constitution. See Sosna v. Iowa, 419 U. S. 393, 410 (1975) (due process is not offended when “the gravamen of [the] claim is not total deprivation . . . but only delay”).

Order at 3 (Breyer, J., dissenting).

This should ring your Tahoe-Sierra "mere delay" bell,  friends, especially that bit about "eviction proceedings will be conducted exactly as they were before[.]" Same as it ever was. That may be correct in the narrow sense ("exactly" ... really?) that owners will not be prohibited from resorting to the eviction process to recover possession, but critically, it overlooks that it is very, very (very!) unlikely that much of the owed rent that has accumulated all these months is ever going to be collected or otherwise recovered. These moratoria all seem to rest on a divorced-from-reality assumption, which is, in our view, a very shaky foundation. 

The dissenters continued on the next page:

Second, applicants have not shown that critical or exigent circumstances justify our intervention. As I have said, CEEFPA’s pause on eviction proceedings will expire in less than three weeks, alleviating the hardship to New York landlords. Any hardship is further alleviated by pro-visions of CEEFPA that provide relief from foreclosure for property owners who own 10 or fewer dwelling units. See 2020 N. Y. Laws ch. 381, pt. B, subpts. A–B. Further, landlords’ hardship is alleviated because CEEFPA does not preclude them from seeking unpaid rent and other damages in a common-law action. Finally, respondent states that New York is currently distributing more than $2 billion in aid that can be used in part to pay back rent, thereby helping to alleviate the need for evictions. See 2021 N. Y. Laws ch. 53, p. 635.

While applicants correctly point out that there are landlords who suffer hardship, we must balance against the landlords’ hardship the hardship to New York tenants who have relied on CEEFPA’s protections and will now be forced to face eviction proceedings earlier than expected. This is troubling because, as noted, New York is in the process of distributing over $2 billion in federal assistance that will help tenants affected by the pandemic avoid eviction.

Order at 4 (Breyer, J., dissenting).

This should also give a clue how the Three Dissenters might treat a takings claim. With funds theoretically available to offset some of the back rent owed (if a property owner qualifies, if a ghosted former tenant cooperates, etc.) is that some kind of pressure valve for takings liability? 

Maybe we're just desperately looking for clues where none may exist. But the fact that this one broke along the same 6-3 lines as Cedar Point suggests to us that at least we might be getting a bit warm.

Order, Chrysafis v. Marks, No. 21A-8 (U.S. Aug. 12, 2021)

Takings Maven Dream Job® (x2): Property Rights Constitutional Litigator at Pacific Legal Foundation

You've got big dreams, you want fame...

If so, here's your chance: two (2!) Takings Maven Dream Jobs® are now available.

Pacific Legal Foundation requesting applications for positions as a Property Rights Constitutional Litigator. Job description includes "You will find and win the next important Supreme Court property rights case."

Oh, have we got your attention now?

You: An entrepreneurial freedom fighter with a passion for, and significant experience in, property rights litigation. You find and win cutting-edge property rights cases across the country. You are a national spokesperson for property rights—you speak at conferences, engage the media, and publish scholarship on property rights. You are a leader who will elevate PLF’s junior attorneys to be the best property rights litigators in the nation. You have demonstrated a dedication to public interest law and property rights throughout your career.

...

You will be a leader in PLF’s Property Rights Practice Group. From Nollan to Koontz to Knick to Cedar Point Nursery, PLF’s property rights litigation is unparalleled. (If you can’t describe these four cases without checking your notes, do not apply!) 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. And you will be recognized as a nationwide leader on property rights: giving speeches, attending conferences, appearing on radio and television, and publishing op-eds and scholarly articles on property rights.

You will also be a key contributor to PLF’s property rights practice group. You will work on teams with junior and senior attorneys, providing your expertise and knowledge and elevating the talent and skill of our attorneys. You will have the latitude to think big and the resources to execute. You will be at the forefront of shaping property rights for all Americans.

In a nutshell, we’re seeking someone who’s passionate about liberty and property rights, someone who is confident and magnanimous, and someone who is a bold and relentless freedom fighter.

Sound good? We made the jump earlier this year, now you can join in the fun.

You love coffee, and as we know, coffee is for closers!

More here, including application information and deadline.

What The Deus Ex Machina? - Federal Court Complaint: California's Eviction Moratorium Is A Taking

According to that trustworthy source Wikipedia, in drama, the term deus ex machina ("God from the machine") "is a plot device whereby a seemingly unsolvable problem in a story is suddenly and abruptly resolved by an unexpected and unlikely occurrence. Its function is generally to resolve an otherwise irresolvable plot situation, to surprise the audience, to bring the tale to a happy ending, or act as a comedic device." It is mostly considered a "lazy or cheap" trope.

And that takes us to the various federal, state, and local eviction moratoria that are (or were) in effect at various points in the covid epidemic. To us, those have mostly seemed like cases of kicking the can down the road (to use another overworn trope) because although couched as merely temporary withholding of the usual eviction remedy for nonpayment of rent, in a great number of cases the practical effect of these things is to force property owners to house third parties for free, because -- come on, who's kidding who now -- we all know that most of the back rent piling up never realistically going to get collected. In our view that turns what is sold as a mere delay in collection, into a process by which private property has been knowingly commandeered to house people during a public health calamity.

That's where the deus ex machina concept comes in. To us, it has seemed that the propounders of these things have not really thought out (in good faith, at least) where this all ends, and instead hoped for some kind of miracle plot device to swoop in and save the day once the music stops and the can-kicking can no longer continue. After all, at some point, everyone must realize that someone's got to eat the sandwich.

So maybe the deus is hoping against hope that tenants are going to make good on their merely delayed rent obligations. Or maybe it is making a pile of money available that property owners might access to offset the lost rent (but let's make the tenant's cooperation an essential element of the process to request it). Or maybe its what some have alleged: that these things are just a naked use of government power to transfer owners' property to tenants on for the public good.

And that, in turn, takes us to takings (we always get to takings, don't we?). Maybe -- just maybe -- the true deus ex machina are these takings claims we're now starting to see. (For the recent big federal takings challenge to the CDC moratorium, see here.)

With that, here's the complaint filed late last week in federal court, the latest takings challenge to an eviction moratorium.

This time, it's California's which, in August 2020, adopted AB 3088. That statute allows a tenant who claims decreased income or increased expenses due to the pandemic is automatically protected against eviction for rent due between March and August 2020. That window is extended to January 2021 for tenants who pay 25% of missed rent payments. Actual ability or inability to pay is irrelevant. In January 2021, California extended the moratorium to June 2021. And in June, the moratorium was extended again, to the end of September 2021.

In addition to a physical invasion takings claim, a claim that the takings are for private benefit, and an alternative Penn Central claim, the complaint asserts a Contracts Clause violation.

Relief sought: a declaration that California's moratoria are "null and void, and of no effect" (alleging that California has deprived the plaintiffs "of the rights, privileges, and immunities secured by the United States Constitution" (the right to just comp and freedom of contract), and "nominal and compensatory damages to individual Plaintiffs" for violation of their rights under section 1983.

So check it out. It isn't one of those massive, pages-long, complex-situation complaints. It won't take too much of your time.

Complaint for Declaratory and Injunctive Relief, Cal. Rental Housing Ass'n v. Newsom, No. 2:21-cv-01394-JAM...

New Takings Complaint: $26 Billion For CDC's Eviction Moratorium

Programming note: as we noted here, we've recently moved our email subscribers to a new service. If you are already subscribed to our email updates you should not need to do anything, except look for the emails coming from Feedblitz, not Feedburner. If you want to sign up for email updates anew, go here. If you experience technical issues, or receive duplicate email notifications, please let me know.

Now back to your regularly scheduled programming...

Check out this Complaint, filed last week which asks the U.S. Court of Federal Claims to award property owners an unspecified amount (noted as $26 billion in the cover sheet) in just compensation for the taking of the plaintiffs' property by the Center for Disease Control's order temporarily halting residential evictions.

The Complaint alleges a physical invasion taking because it precludes "property owners from excluding [tenants] and leasing the rental homes to rent-paying persons, even as the property owners must continue paying taxes, utility payments, employee salaries, maintenance costs, the cost of capital, and other expenses." Complaint at 10. Alternatively, the property owners allege that the CDC order is an "illegal exaction because the CDC exceeded and contravened its statutory and regulatory authority and as a direct result exacted Plaintiffs' private property and property interests[.]" Id. at 2.

The just compensation sought "includes the amount of rental income Plaintiffs would have received in the absence of the physical occupation and taking or exaction of their property ..." Id.

Stay tuned, we'll follow along as this one progresses.

Complaint, Nat'l Apt. Ass'n v. United States, No. 21-1621 (Fed. Cl. July 27, 2021)

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

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

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

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

Join us in Scottsdale in January!

Cedar Point Part VI: What Others Are Saying

Talk amongst yourselves.

We've had our say, so in this post -- the sixth and final post in a series of deeper dives about June's U.S. Supreme Court opinion in Cedar Point Nursery v. Hassid , No. 20-107 (June 23, 2021) -- we're linking to what others are saying about the case.

Here are all of the posts in our Cedar Point series:

• Part I: SCOTUS's Strawberry Letter 23 To Property Rights
• Part II: Common Sense (Keep Out) And Common Law (The Right To Exclude)
• Part III: No, Chicken Little, The Sky Isn't Falling
• Part IV: The Other Opinions
  
• Part V: Help Us Help You
• Part VI: What Others Are Saying

And in case you missed the live webcast on Friday, July 16, 2021 that featured expert analysis of the case, please don't miss listening to the recording of ALI-CLE's "Takings and Eminent Domain After Cedar Point: What Practitioners Need to Know."

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

(These are not in any special order):

• Cedar Point Nursery: Fighting for Private Property Rights with Pacific Legal Foundation (video from the property owners' counsel) (YouTube)
• Supreme Court's Cedar Point property rights decision protects both sides (lawprof Ilya Somin) (The Hill)
• Big Win for Property Rights (editorial board, Wall St. Journal)
• [podcast] Podcast Episode 69 – Professor Josh Blackman Discusses Cedar Point Nursery (lawprof Josh Blackman) (Clint Schumacher's Eminent Domain Podcast)
• Opinion: The Supreme Court’s conservative majority returns to its passion project (Ruth Marcus, editorial page editor, Washington Post)
• The Supreme Court just handed down disastrous news for unions (Ian Millhiser) (Vox.com)
• Is John Roberts channeling his inner Bob Ellickson? (lawprof Chris Elmendorf) (Twitter)
• Vox: SCOTUS issued "disastrous ... union-busting decision" on takings clause (Ed Morrisey) (Hot Air)
• Quick reactions to the Supreme Court's new Takings Clause blockbuster opinion in Cedar Point Nursery (lawprof Lior Strahilevitz) (Twitter)
• The Supreme Court’s Latest Union-Busting Decision Goes Far Beyond California Farmworkers (Mark Stern) (Slate)
• Is Chief Justice Roberts the Supreme Court's "Property Guy"? (lawprof Josh Blackman) (Volokh Conspiracy)
• Opinion: The Supreme Court’s pro-corporate revolution is accelerating (Paul Waldman) (Washington Post)
• U.S. Supreme Court Is ‘Fertile’ Ground for Property-Rights Group (Jordan Rubin) (BloombergLaw)
• Rory Little on Lange v. CA, Cedar Point Nursery v. Hassid, and Collins v. Yellen (Karina Demirchyan) (Hastings Law)
• The US Supreme Court's Latest Anti-Labor Ruling Goes Far Beyond Farm Workers (Jenny Breen) (Common Dreams)
• Supreme Court Issues Major Property Rights Decision in Favor of Landowners, Confirming that Government-Sanctioned Physical Invasions of Private Property are Categorically Compensable Under the Takings Clause (Bryan Wenter) (Land Use Developments)
• Cedar Point Nursery v. Hassid Quietly Rewrote Four Decades of Takings Clause Doctrine (lawprof Josh Blackman) (Volokh Conspiracy)
• Supreme Court Holds That Regulation Allowing Access to Farmers' Property Is a Per Se Physical Taking (Edward D. Rogers, Michael Sklaroff, and Nathan Farris) (Ballard Spahr)
• SCOTUS' Take on Takings (Brad Kuhn) (Nossaman)
• And Stay Out! Supreme Court Rules Golden State Regulation Giving Unions Access to Private Farmland Is Unconstitutional Taking (National Law Review)
• [podcast] Deep Dive Episode 187 – Courthouse Steps Decision: Cedar Point Nursery v. Hassid (owner's counsel Wen Fa) (Regulatory Transparency Project)
• Supreme Court win for property rights is hardly a loss for the regulatory state (Sam Spiegelman) (the Hill)
• Update On Union Access To Property (Mark Arnold) (Husch Blackwell LLP)
• Supreme Court Tackles "Takings" Question Presented by California Labor Statute (Julie Tappendorf) (Municipal Minute)
• SCOTUS Takings Decision a Huge Victory for Property Owners: California Regulation Requiring Access Is a Taking (Debra Garfinkle, Brad Kuhn) (Nossaman)
• Biggest Supreme Court Win for Property Rights in a Long, Long Time (Ilya Shapiro and Sam Spiegelman) (Cato)
• Property Rights Versus Labor Unions in the Supreme Court (Rob Natelson) (Epoch Times)
• 24 Jun Supreme Court Holds in Favor of Property Owners in Takings Case (Amanda Karras) (IMLA)
• SCOTUS takes 'takings' to a new level in union-busting decision (Hassan Kanu) (Reuters)
• Ideology Shows in Supreme Court Ruling on Union Organizing (Noah Feldman) (Bloomberg)
• Supreme Court Finds Fifth Amendment Taking in State Regulation Granting Access to Private Property (Beveridge & Diamond)
• High Court Limits Labor Union Organizing At Calif. Farms (Law360)

Did we miss any? If so, send 'em our way.

Links From Today's ABA RPTE Session

Our thanks to our friends and colleagues at the ABA Section of Real Property, Probate & Trust Section's Land Use and Environmental Group for inviting us to a discussion of the latest and greatest decisions of interest.

We only had an hour together, so naturally could not cover everything of interest (indeed, we reserved a big discussion of the biggest item, the Supreme Court's decision in Cedar Point, assuming that the Group will schedule a full session on that decision alone). So here is our curated list of what we think are the most interesting recent decisions in areas of interest to the Group:

• Land use and short-term rentals: Euclid Lives! Mass SJC: "Short-Term" Rental Is Not A Permissible Primary Use In A Residential Zone Because Not Of "Residential Character"
• Environmental standing: Iowa: No Standing To Ask Court To Rule That Public Trust Doctrine Requires Legislation To Regulate Farmers
• Environmental standing, part 2: Hawaii Supreme Court: Anyone Claiming That An Affordable Housing Project Might Impact Their Property Interests In A "Clean And Healthful Environment" Has Standing To Object
• Exactions (sorry we didn't get to this one in the session, but here it is anyway because it is a good case to review): Ordinance Requiring Developer Pay For "All Necessary Road Capacity Improvements" Violates Nollan/Dolan
• Public use in eminent domain: So Close: SCOTUS Declines To Revisit Kelo (For Now) (a taking to remedy potential future blight is a "public use")
• Public use in eminent domain, part 2: Ill App (unpub, unfortunately) Strikes Down Taking For Road To Be Owned By The Public
• Just compensation in eminent domain: Louisiana SCT: No Statutory Attorneys' Fees For Pipeline Taking - But LA Constitution's Just Comp Clause Requires Owners Recover "The Full Extent" Of Their Loss (Which Includes Fees)
• Regulatory takings, emergencies, and necessity: Fourth Circuit: No Taking When Aerial Pesticide Spray Killed Bees ... But Not Why You Think

Thanks again, colleagues.

New Law Review Article (Ours) - "Evaluating Emergency Takings: Flattening the Economic Curve," 29 Wm. & Mary Bill of Rights J. 1145 (2021)

Wondering about so-called "covid takings" such as business lockdowns, seizures, commandeerings, eviction moratoria, and whether these might be takings?

If so, check out our latest article, Evaluating Emergency Takings: Flattening the Economic Curve, just published in the latest issue of the William and Mary Bill of Rights Journal.

Here's the Intro to the article:

Desperate times may breed desperate measures, but when do desperate measures undertaken as a response to an emergency trigger the Fifth Amendment’s requirement that the government provide just compensation when it takes private property for public use? The answer to that question has commonly been posed as a choice between the “police power”—a sovereign government’s power to regulate property’s use in order to further the public health, safety, and welfare —and the eminent domain power, the authority to seize private property for public use with the corresponding requirement to pay compensation. But that should not be the question. After all, emergencies do not increase government power, nor do they necessarily alter constitutional rights, and an invocation of police power by itself does not solve the compensation question, but is merely the predicate issue: all government actions must be for the public health, safety, or welfare, in the same way that an exercise of eminent domain power must be for a public use.

This Article provides a roadmap for analyzing these questions, hoping that it will result in a more consistent approach for resolving claims for compensation that arise out of claims of emergencies. This Article analyzes the potential takings claims stemming from emergency measures, mostly under current takings doctrine. Which types of claims are likely to succeed or fail? In “normal” times, it is very difficult to win a regulatory takings claim for compensation. In the midst of emergencies—real or perceived—the courts are even more reluctant to provide a remedy, even when they should, and emergencies are a good time to make bad law, especially in takings law. Can a better case be made analytically for compensation?

Part I summarizes the economic “flattening the curve” principle that motivates takings claims for compensation. Part II sets out the prevailing three-factor Penn Central standard for how courts evaluate claims that a health, safety, or welfare measure “goes too far” and requires compensation as a taking, examining the character of the government action, the impact of the action on the owner, and the extent of the owner’s property rights. Deep criticism of the Penn Central standard is beyond the scope of this Article, and here, I accept it as the default takings test. But I argue that the government’s motivation and reason for its actions—generally reviewed under the “rational basis” standard—should not be a major question in takings claims. Rather, as this Article argues in Part III, the government’s emergency justifications should be considered as part of a necessity defense, not subject to the low bar of rational basis, but a more fact and evidence driven standard of “actual necessity.” Part IV attempts to apply these standards and examines the various ways that emergency actions can take property for public use: commandeerings, occupations of property, and restrictions on use. I do not conclude that the approach will result in more (or less) successful claims for compensation, merely a more straightforward method of evaluating emergency takings claims than the current disjointed analytical methods.

In sum, this article argues there is no blanket immunity from the requirement to provide just compensation when property is taken simply because the government claims to be acting in response to an emergency, even though its actions and reasons may satisfy the rational basis test. Instead, claims that the taking is not compensable because of the exigency of an emergency should only win the day if the government successfully shows that the measure was actually needed to avoid imminent danger posed by the property owner’s use and that the restriction on use was narrowly tailored to further that end.

One final word: the editors at the Bill of Rights Journal have been fantastic to work with to get this piece publication ready. Offering helpful comments, gently suggesting that certain parts are not working (but never insisting, and giving the author a lot of discretion), and getting the citations squared away: I could not have asked for more helpful editing. Congratulations on the publication of your latest issue. 

Thomas, Evaluating Emergency Takings: Flattening the Economic Curve, 29 Wm. & Mary Bill of Rights J. 1145 (2021)

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

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

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

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

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

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

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

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

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

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

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

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

Law Students: Register Free For The 38th Annual ALI-CLE Eminent Domain & Land Valuation Litigation Conference (Jan 28-29, 2021)

Are you a law student interested in takings, eminent domain, land use, environmental, and other dirt-lawyering related topics? If so, good news: thanks to the generosity of ALI-CLE, you can register gratis (free!) for the upcoming 38th Annual Eminent Domain & Land Valuation Litigation Conference, to be held remotely on Thursday and Friday, January 28-29, 2021.

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

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

To register or to find out more, email me.

Eminent Domain Podcast's Preview Of The Upcoming ALI-CLE Eminent Domain & Land Valuation Litigation Conference

Our thanks to Clint Schumacher for having us on his program to talk about the upcoming Conference. We're "remote" this year, but that means a different approach to our presentations (and a very modest tuition!).

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

Register now!

Join Us: Tuesday, Nov. 10, 2020 (3pm ET, 12n PT) For Free (!) Webinar: "Shutdowns, Closures, Moratoria, and Bans"

Join us next Tuesday, November 10, 2020 at 3pm ET (12 noon Pacific) for the free webinar "Shutdowns, Closures, Moratoria, and Bans," produced by Pacific Legal Foundation and Owners' Counsel of America.

Along with my colleagues Leslie Fields (Executive Director, OCA), and Jim Burling (PLF), I'll be talking about the legal foundations for objections, some of the cases that have made their way to decision, and what the future might look like. To register (did I mention it was free?) go here.

Here's the program description:

Governors and state legislatures across the country have implemented an array of policies in an attempt to contain the virus and its socioeconomic impacts. Many of these policies broadened the scope of government power while placing a heavy burden on property owners and businesses already struggling with the pandemic.

Join representatives from Pacific Legal Foundation and Owners’ Counsel of America as they explore COVID-related policies and the legal challenges to them, including:

• The constitutionality of emergency eviction moratoria and lockdown orders restricting property and business owners
• The rights and legal status of property and business owners impacted by emergency orders
• Past, current, and upcoming litigation challenging these orders

We want to hear from you! Come prepared with your questions for our panelists. This is a public event. Please pass along this invitation to any colleagues that may be interested in this program.

As noted, in addition to presentations, we've reserved a lot of time for comments and questions, so bring those with you on Tuesday.

See you then, online!

Your 2020 Brigham-Kanner Property Rights Conference Bingo Card

There's Still Room: Join Us For The 17th Annual Brigham-Kanner Property Rights Conference (Online, Free!)

Although it is set to launch this Friday, October 2, 2020, there's still more than enough time to register (and room at the inn) for you to join us for the 17th Annual Brigham-Kanner Property Rights Conference at the William and Mary Law School.

Like everything else this season, the Conference is online (register here), and although we would have preferred to gather in-person of course, the online format has some advantages: the number of attendees isn't limited by the classroom size (this year's registrations are at record levels), you don't need to travel to Williamsburg, and the Conference is free if you don't want Virginia CLE credit for attending. What a deal.

In our opinion, this is the best legal academy/practicing bar conference on property law. This year, the Conference honors the Brigham-Kanner Prizewinner, Harvard Law School Professor Henry Smith.

Here are the panel topics (complete program agenda here):

• Where Theory Meets Practice: A Tribute to Professor Henry E. Smith Recipient, 2020 Brigham-Kanner Property Rights Prize
• The Housing Crisis
• Roundtable: Emerging Issues in Takings and Eminent Domain Law
• The Reach of Government’s Confiscatory Powers Over Exigencies and Emergencies
• The Risk of Unjust Compensation

Speakers include Professor Smith and past Prize winners, prominent members of the practicing property bar, and property scholars. The complete list is posted here.

Come, join us without even leaving home (or the office)! Register here. Did we mention the tuition is FREE?

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

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

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

Here's the plan:

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

Faculty:

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

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

How Can? U.S. DHS: National Eviction Moratorium (Roscoe Filburn Could Not Be Reached For Comment)

In Hawaii we employ a phrase, "how can?" as a shorthand response when you're wondering how something can be. It's easy, short, and more efficient than saying "I'm sorry, I don't understand how you think you can accomplish this."

Thus, "how can?" was our first response when the U.S. Department of Health and Human Services' recently-released agency order establishing a covid response nationwide residential eviction moratorium crossed our desk yesterday. By what authority does the federal government purport to dictate (yes, we're going to use that word) whether state and local governments (and state courts) allow evictions for not paying rent? We thought that property law was one of those local things?

Just as we were about to dive in, our friend and colleague Tony Della Pelle produced an analysis more cogent than "how can?" In "COVID Eviction Freezes - Who Is Supposed To Pay?," Tony asks, "Did the CDC have the authority to issue a sweeping order that affects all Americans in private contractual relationships concerning their rental of housing?" Good question (and again, more eloquent than our "how can?").

We don't have much to add, and we suggest you read Tony's post. Or this from the New York Times with the details of how this national eviction moratorium is supposed to work ("U.S. Orders Eviction Moratorium for Most Through Year's End"). But we will try to add one thing. The order responds to our "how can?" question with this:

The authority for this Order is Section 361 of the Public Health Service Act (42 U.S.C. 264) and 42 CFR 70.2.

Order at 37. So what is this Section 361 authority? Here's what section (a) says:

(a) Promulgation and enforcement by Surgeon General

The Surgeon General, with the approval of the Secretary, is authorized to make and enforce such regulations as in his judgment are necessary to prevent the introduction, transmission, or spread of communicable diseases from foreign countries into the States or possessions, or from one State or possession into any other State or possession. For purposes of carrying out and enforcing such regulations, the Surgeon General may provide for such inspection, fumigation, disinfection, sanitation, pest extermination, destruction of animals or articles found to be so infected or contaminated as to be sources of dangerous infection to human beings, and other measures, as in his judgment may be necessary.

Hmm. There's no federal "police power" to regulate in the interest of health, safety, welfare, or morals, but as we know, federal power, although supposedly limited, is pretty wide-ranging. Just ask Farmer Filburn about his locally-grown wheat. Is this an exercise of commerce power, tax, defense, or something that is "necessary and proper" in the furtherance of some enumerated federal power, or something else? We guess if the national government can order you to buy insurance, it can prevent owners from seeking to evict tenants for nonpayment in rent? 

And what might this mean? To us, this raises a few points:

• Even if the feds have the authority to do this, state and local governments may be breathing a sigh of relief: thanks to this order, the feds have just stepped up to be the defendant in takings lawsuits and to be on the financial hook for any judgments for eviction moratoria (at least in those jurisdictions that have not adopted more protective restrictions).
• State and local judges, as well as U.S. District Court and regional Courts of Appeals judges might also be silently thanking the DHS. The big money takings lawsuits may no longer be filed in those courts, but in the Court of Federal Claims (with appeals to the Federal Circuit). Bone up on your federal takings law, folks.
• Tahoe-Sierra's rationale really needs a revisit. Can we really say that these restrictions are "temporary," or that the right to collect rent from the defaulting tenants after the motatoria are lifted isn't more illusory than real?

More to come, for sure. Stay tuned.

Dep't of Health and Human Services, Temporary Halt in Residential Evictions to Prevent the Further Spread o...

Breaking: News About The 2021 ALI-CLE Eminent Domain & Land Valuation Litigation Conference (Jan. 28-29, 2021)

News just in: we've just received confirmation that the Conference will not be in-person in Scottsdale in January 2021, and we're going online.

Not a big surprise, but still a bit disappointing, and it's a shame that the circumstances won’t allow us to meet in-person to talk shop and to renew our friendships like we do every year. 

But rest assured we're making lemonade out of these lemons, and we'd appreciate everyone holding the dates on your calendars to join your colleagues from across the nation for the online Conference. And no, we're not going to do two-and-a-half-days remotely, we're paring down the agenda and will be focusing on hot topics, and great presenters. The remote format has some advantages, and we’re taking advantage of the circumstances to plan a conference more interactive and a bit different than usual.

This will also be a great program for first-time Conference participants. If you haven't taken the dive and joined us in the past because you could not spend the time away or the costs of attending in-person kept you away, this will be your chance to see what we're all about and get a taste of what you've been missing, so you can join us when we reconvene in-person in 2022. 

Stay tuned for more details, to be released shortly! 

Fed Ct: Property Owners Not Irreparably Harmed By COVID Rent Orders (Because They Might Be Able To Get Compensation Later)

Check this out. In Willowbrook Apts, LLC v. Mayor & City Council of Baltimore, No. 1:20-cv-01818 (July 6, 2020), the U.S. District Court for the District of Maryland denied the plaintiff/property owner's motion for a temporary restraining order, in a case challenging the COVID orders that pretty dramatically alter the landlord/tenant relationship in Maryland:

Specifically, the Baltimore City Council passed the Rent Increase Protection Act on May 19, 2020 (“Baltimore City Act”). On May 23, 2020, the Howard County Council passed the Rental Protection & Stability Act (“Howard County Act”), and the city of Salisbury followed suit one week later (on June 1, 2020) with Ordinance No. 2599, which amended chapter 15.26 of the city’s Municipal Code (“Salisbury Act”).

These laws (the “Acts”), while enacted in different jurisdictions, have the same three fundamental components, which Plaintiffs contend are constitutionally infirm. First, the Acts prohibit housing providers from increasing a tenant’s rent during the Governor’s declared emergency. See Baltimore City Code, Art. 13, § 8-4 (“Rent increases barred”); Howard County Code, Title 17, § 17.1200(B)(1) (“A landlord or mobile home park owner shall not… increase the rent or mobile home park fee”); Salisbury City Code, Title 15, § 15.26.035 (“A landlord may not increase a tenant’s rental fee”). Second, the prohibitions void rent increases that have already been agreed by contract, but were scheduled to take effect during the declared emergency. See Baltimore City Code, Art. 13, § 8-4; Howard County Code, Title 17, § 17.1200(B)(1); Salisbury City Code, Title 15, § 15.26.35. Finally, each law imposes “notice” restrictions on housing providers. Under the Howard County Act, housing providers may not notify a tenant about an anticipated rent increase during the health emergency, or within a “three-month period” after the emergency declaration expires. Howard County Code, Title 17, § 17.1200(C). The Baltimore City Act and Salisbury Act have similar notice provisions, although each applies for “ninety days” instead of three months. Baltimore City Code, Art. 13, § 8-4; Salisbury City Code, Title 15, § 15.26.35(D). While the Acts’ duration is expressly predicated on the Governor’s emergency declaration related to COVID-19, the Salisbury Act also applies to future health emergencies declared by either the Governor or by the Mayor of Salisbury. Salisbury City Code, Title 15, § 15.26.35(A) (defining “Emergency” as emergencies declared by the Governor or the Mayor).

Slip op. at 3-4 (footnotes omitted).

Interestingly, the court avoided the "success on the merits" part of the TRO test. Instead, it focused on the "irreparable injury" that the plaintiff alleged is suffering and will continue to suffer if the regulations are not enjoined, at least temporarily.

Ah, the court replied, you alleged a taking! And we know what the most common remedy is for a taking, don't we? That's right, just compensation. See slip op. at 7. Okay, you TRO mavens, a question: does losing money or being damaged in a way that can be later remedied by money constitute "irreparable injury?" Generally, no:

Accordingly, monetary damages are not only adequate to compensate Plaintiffs for their alleged injuries, but are also the proper remedy in this context. Plaintiffs have not established that monetary damages would be inadequate, nor have they directed this Court to any case in which a court has remedied a Takings violation with a preliminary injunction — let alone with a TRO.

Slip op. at 8-9.

The court applied a similar rationale to the plaintiff's Maryland-law vested rights claims (the regulations apply to existing landlord/tenant contracts, for example), concluding that the movant had not met its burden of showing that post hoc damages would not be an adequate remedy.

One thing missing from the court's analysis (and this might be a function of the claims raised by the plaintiff and the relief emphasized in the complaint and motion for TRO), but what about the declaratory takings relief the plaintiff sought? In our thinking, although just compensation is the most common remedy sought for a regulatory taking, it isn't the sole remedy:

MR. JUSTICE REHNQUIST suggests that appellees' "taking" claim will not support jurisdiction under § 1331(a), but instead that such a claim can be adjudicated only in the Court of Claims under the Tucker Act, 28 U.S.C. § 1491 (1976 ed.). We disagree. Appellees are not seeking compensation for a taking, a claim properly brought in the Court of Claims, but are now requesting a declaratory judgment that, since the Price-Anderson Act does not provide advance assurance of adequate compensation in the event of a taking, it is unconstitutional. As such, appellees' claim tracks quite closely that of the petitioners in the Regional Rail Reorganization Act Cases, 419 U. S. 102 (1974), which were brought under § 1331 as well as the Declaratory Judgment Act. See App. in Regional Rail Reorganization Act Cases, O.T. 1974, Nos. 74-165, 74-166, 74-167, 74-168, p. 161. While the Declaratory Judgment Act does not expand our jurisdiction, it expands the scope of available remedies. Here, it allows individuals threatened with a taking to seek a declaration of the constitutionality of the disputed governmental action before potentially uncompensable damages are sustained.

Duke Power Co v. Carolina Env. Study Group, Inc., 438 U.S. 60, 71 n.15 (1979)

As we see it, there should be some kind of prospective equitable remedy that says "we don't want compensation yet, but prefer that the court stop the deprivation?" Maybe Lingle solves that question by making this a due process inquiry (a claim that the complaint here raised). 

If you want to take a deeper dive into the takings issues, download our draft article on that topic, "Evaluating Emergency Takings: Flattening The Economic Curve."  

Willowbrook Apts, LLC v. Mayor & City Council of Baltimore, No. 1:20-cv-01818 (D. Md. July 6, 2020)

July 22, 2020: "Emergency and Police Power: Property Claims in Times of Crisis" (ABA Webinar)

Please plan on joining us on Wednesday, July 22, 2020, at 1pm ET (10am PT) for a long-form program on "Emergency and Police Power: Property Claims in Times of Crisis."

Our speakers are Professors Craig Konnoth (Colorado) and John Nolon (Pace), and one of the lawyers on the forefront of the nationwide legal challenges, Harmeet Dhillon (San Francisco). I'll be moderating, along with Professor Sarah Adams-Schoen (Oregon).

Here's the program description:

On the eve of the centennial of Pennsylvania Coal Co. v. Mahon (US 1922), this panel will revisit the question: How far can the police power be stretched to protect the public against dangers? The panel will evaluate the scope of state and local authority to respond to emergencies and the implications for private property rights—asking, how far is too far? What is the scope of implied limitations on private property rights in times of crisis? When does the diminution of existing property rights require compensation? Can local governments respond to a crisis without delegated authority or in defiance of state mandates? What rights do property owners/landlords/tenants have to privately respond in times of crisis.

The panel will delve into the timely and enduring question of how far the police power stretches to protect the public against dangers—asking, how far is too far? Can local governments respond to a crisis without delegated authority or in defiance of state mandates? What rights do people have to privately respond in times of crisis?

Register here. We hope you can join us.

SDNY: No Taking For NY's Eviction Moratorium (It's Temporary, And You Invited Them In Landlords)

As we noted here, property owners sued the New York governor asserting that one of his emergency measures to respond to the coronavirus crisis (a suspension of eviction proceedings) is a taking.

Yesterday, the District Court denied the plaintiffs' motion for summary judgment, and entered summary judgment in favor of the governor. Order Denying Plaintiffs' Motion for Summary Judgment and Granting Defendant's Motion for Summary Judgment, Elmsford Apt. Assocs., LLC v. Cuomo, No. 20-cv-4062 (CM) (June 29, 2020).

No physical take (see Yee: you invited the tenants in, owners). And no regulatory taking either because -- you guessed correctly -- this is "temporary" and Tahoe-Sierra. When this is all done, no-harm, no-foul. And not a Lucas taking because the restrictions left the owners with some use and value, so this is a Penn Central analysis. And you can guess where the Penn Central analysis leads, no?

The most interesting part of the opinion (in our opinion) is the Penn Central analysis (slip op. at 19-24). Not because it is objectively correct or incorrect, but because it applies some well-worn vibes about highly-regulated markets and expectations (the "reasonable" versus "distinct" problem that Bill Wade and others have pointed out). And, we note, the opinion did not simply say "this is an emergency exercise of the police power, so no taking" as we've seen in other cases (thank goodness for small things).

In sum:

Plaintiffs object to the Order because it “has foisted exclusively upon landlords the burden of rental issues.” (See Dkt. No. 9, Lehrman Decl. ¶ 15.) But the law in this Circuit is clear: state governments may, in times of emergency or otherwise, reallocate economic hardships between private parties, including landlords and their tenants, without violating the Takings Clause. Plaintiffs’ takings claim is dismissed.

Hey, guess what: state government may -- even in normal times -- reallocate economic hardships between private parties ... without violating the Takings Clause. Or so that's what the courts tell us all the time.

And finally, a bit of self-promotion: this is, generally speaking, the analytic model of how we think courts should process these type of claims, as we write in "Evaluating Emergency Takings: Flattening The Economic Curve."

PS - the court concluded no Contracts Clause violation either.

Elmsford Apt. Assoc., LLC v. Cuomo, No. 20-cv-4062 (CM) (S.D.N.Y. June 29, 2020)

Available Now: 2020 Zoning and Planning Law Handbook (Green Book)

photo: Patricia Salkin

Just published: the 2020 Zoning and Planning Law Handbook (Green Book). The first section of the Summary of Contents is about Takings, and includes as the lead piece Professor Gideon Kanner and Michael Berger's tour-de-force article, "The Nasty, Brutish, and Short Life of Agins v. City of Tiburon." It also includes my articles on Murr, "Restatement (SCOTUS) of Property: What Happened to Use in Murr v. Wisconsin?"

Check it out. The Green Book is a one-stop shop for the best articles on land use in a given year, and this edition includes chapters on housing, agriculture, cell tower placement, RLUIPA, and (of course) zoning.

Our thanks to Dean Patty Salkin who edited the volume for including us.

Summary of Contents, 2020 Zoning and Planing Law Handbook (Green Book)

New Lawsuit Challenges California's Indefinite Eviction Moratorium

Here's the latest lawsuit challenging a government's response to the coronavirus pandemic. This one challenges the California Judicial Council's Emergency Rule 1, which indefinitely closed the courthouse doors to eviction proceedings (what California calls "unlawful detainer").

This one does not employ a takings rationale, but takes a separation-of-powers approach. It's concisely drafted, so we recommend you read the entire document. 

Here's the Introduction:

On April 6, 2020, the California Judicial Council responded to the coronavirus pandemic by issuing 11 emergency rules of court. Among these was Emergency Rule 1 (“ER 1”), which violates the fundamental rights of property owners by indefinitely suspending their right to initiate unlawful detainer actions. The rule creates the perverse incentive for all tenants, whether they face financial hardship or not, to refuse to pay their rent during the crisis. And it immunizes from eviction even tenants who create nuisances, damage property, conduct illegal activity, or violate lease terms. ER 1’s restrictions not only visit significant hardship on landlords like Petitioners; they are also unconstitutional.

The rule effectively closes the courthouse doors to Petitioners and obstructs their right to re-enter their own property. It does so because the Judicial Council determined as a matter of policy that tenants should be immunized from eviction in virtually all cases. The rule therefore constitutes a legislative decision forbidden to the Judicial Council under the principle of separation of powers embodied in Article III, § 3, of the California Constitution.

Moreover, because ER 1 contradicts statutes recognizing landlords’ right to re-entry and providing expedited procedures to effect that right, it violates Article VI, § 6(d), of the Constitution, which requires Judicial Council rules to accord with all state statutes. Executive Order N-38-20, which purports to suspend statutes conflicting with ER 1, did not excuse the Council from this requirement by suspending contrary statutes. The order fails to meet the requirements of Government Code § 8571, which permits the Governor to suspend certain statutes in a state of emergency. Even if Executive Order N-38-20 otherwise complied with § 8571, however, the Governor cannot delegate his suspension power to the Judicial Council as the order purports to.

Petitioners understand and are themselves affected by the difficulties of the current pandemic and the impact of the lockdown orders. Both have worked and in general do work with tenants who fall behind on their rent, whether due to the pandemic or other reasons. But Emergency Rule 1 places Petitioners at the mercy of individuals who fail to pay rent, whether or not as a result of financial hardship, and those who disturb other tenants and prevent Petitioners from welcoming other renters in need of housing. The Court should hold the line on the separation of powers by granting Petitioners’ petition for a peremptory writ of mandate under Code of Civil Procedure § 1085 and directing the Judicial Council to revoke Emergency Rule 1.

Pet. at 2-3.

The list of similar challenges continues to grow. See here, here, here, here, here, here, here, here, here, here, here and here, for example. The longer this thing goes on, the more we're going to see.

Verified Petition for Preremptory Writ of Mandate, Christensen v. Cal. Judicial Council, No. BCV-20-101361 (Cal. Super. Kern Cnty. June 15, 2020)

New Fed Ct Complaint: Coronavirus Rent Freeze And Eviction Moratorium Is A Taking

Here's the latest complaint challenging coronavirus-related orders (in this case, the City of Los Angeles' rent payment and eviction moratoria) as a taking.

More here from the LA Times: "Landlord group sues city of L.A. over coronavirus anti-eviction protections."

You should probably read the entire document, as it is drafted well. But it is long (48 pages - it even has a Table of Contents and a Table of Authorities), so here are the key parts of the Introduction in case you don't have time to digest the whole complaint:

1. In the wake of the novel coronavirus, Defendants City of Los Angeles, City Council of the City of Los Angeles, and Mayor Eric Garcetti (collectively “City” or “Defendants”) hastily instituted a series of ordinances which prohibit lessors and landlords, such as Plaintiff’s members, from exercising their contractual remedies where tenants refuse to pay rent on the asserted grounds that they were impacted by the COVID-19 pandemic (“Pandemic”). While purportedly intended to provide relief to tenants so impacted, the ordinances are not tailored to a tenant’s actual inability to pay rent and significantly (and needlessly) infringe on the constitutional rights of all lessors and landlords within the City.

2. This Action challenges the implementation of the City’s Eviction Moratorium (Ordinance No. 186585) and Rent Freeze Ordinance (Ordinance No. 186607) (collectively the “Ordinances”) adopted by the City Council on March 27, 2020 and March 30, 2020, respectively.

3. Plaintiff’s members are sympathetic to tenants who have actually suffered hardship due to the Pandemic. Plaintiff’s members have every incentive to work with those tenants who do not have the financial means to pay all or some portion of their rent. As set forth below, however, the Ordinances actively undermine any such attempts at cooperation and allow tenants who actually have the ability to pay all or some of their rent to ignore their contractual obligations for the foreseeable future.

4. The Eviction Moratorium, among other things, contains provisions that indefinitely prohibit landlords and property owners from initiating or continuing residential eviction proceedings based upon non-payment of rent. Although it ostensibly only applies if a tenant is unable to pay due to circumstances related to the Pandemic, it does not require tenants to provide notice, let alone documentation, of their inability to pay. While the Eviction Moratorium provides no relief for owners and landlords and requires them to continue meeting their contractual and statutory obligations as “lessors,” it completely abrogates the material obligations of lessees and eliminates all of the contractual remedies lessors ordinarily have when tenants breach their lease provisions. Lessors are forbidden not only from commencing eviction proceedings for failure to pay rent, but from charging any late fees or interest to which they are contractually entitled. Under the Eviction Moratorium, tenants may continue to occupy their respective premises at no charge, utilizing the water, power, trash, sewage, and other fees that the landlords must continue to pay without reimbursement. By stripping all remedies away from owners – without requiring tenants to demonstrate an inability to pay rent – the Eviction Moratorium discourages tenants who can pay all or some of what they owe from doing so.

5. The Eviction Moratorium also gives tenants a full twelve months following expiration of the “Local Emergency Period”—which seems likely to last many months, at a minimum—to repay back rent, irrespective of the tenant’s ability to pay some or all rent, the term of the lease, any agreed plan or schedule for repayment, or any evidence demonstrating that the tenant will actually be capable of paying back rent at the expiration of the one-year grace period. For many, if not most “qualifying” tenants, the “rent deferral” provision will operate as rent forgiveness, as it is unlikely that tenants who do not pay rent during the Local Emergency Period will be in a position to pay back rent, in addition to their normal rent, at the conclusion of the grace period (whenever that may be). The Eviction Moratorium also fails to address how a landlord or property owner would actually be able to collect rent from those tenants who take advantage of the Eviction Moratorium, but move to a different location by the end of the one-year grace period. Indeed, the City has banned owners from pursuing their primary remedy (eviction) needed to mitigate damages where the tenant fails to pay rent. Every month a landlord is prevented from renting its unit to a paying tenant is a month for which the landlord cannot mitigate any damages. The Eviction Moratorium would force owners to allow tenants who have stopped paying – and may never pay again – to continue to occupy their units for many months and likely well into 2021. While owners can theoretically eventually sue such tenants for back rent (but not for any interest or late fees), their likelihood of ever actually collecting on a judgment for many months of back rent is minimal, at best. As for those tenants who move prior to the time owners may sue to recover back rent, there is simply no chance to recover such rent and, even if there was, the owner would incur a tremendous (and likely unrecoverable) litigation expense just to get that to which the owner is entitled.

6. The Eviction Moratorium further prohibits all evictions based on the presence of unauthorized occupants or pets, as well as for undefined “nuisance[s] related to COVID-19.” Incredibly, the Eviction Moratorium creates a private right of action in favor of only tenants whereby tenants are allowed to sue for alleged violations of the moratorium, subjecting landlords to civil penalties of up to $15,000 per violation. Thus, while the Eviction Moratorium bars lessors and landlords, like Plaintiff’s members, from utilizing their primary contractual remedy to secure payment of rent, it provides a new weapon for tenants to use against landlords and lessors who seek only that to which they are entitled under their existing leases.

7. The Rent Freeze Ordinance prohibits property owners from raising rent on any property subject to the City’s Rent Stabilization Ordinance for a period of one year following the end of the “Local Emergency” as declared by the Mayor, thus preventing property owners from implementing even the modest increases ordinarily allowed on properties pursuant to their respective lease agreements. The Rent Freeze Ordinance was adopted without any mechanism to determine whether rent increases are necessary for landlords to obtain a fair return, as required under the U.S. and California Constitutions. The impact of the two Ordinances together is thus particularly devastating, as property owners are not only forced to forbear collecting rent and effectively give interest-free loans to tenants who assert any Pandemicrelated inability to pay, but are also prohibited from making normal rent adjustments with respect to tenants that do not claim any financial hardship. The Ordinances also require property owners to financially support their tenants during the Local Emergency by subsidizing tenants’ rent, utilities and other charges without any support to the property owner or landlord. The City notably has refused to provide any financial relief to landlords and property owners, despite the hardship they have and are suffering.

8. As set forth below, this action seeks to nullify the Ordinances as violative of the United States and California Constitutions, on the grounds that they improperly interfere with Plaintiff’s members’ contracts and due process rights and constitute an improper uncompensated taking of the fundamental property rights of Plaintiff’s members. The Ordinances are further preempted by California law and the unlawful detainer statutes, which are intended to fully occupy the field of eviction procedures.

This joins a growing list of similar claims (see here, here, here, here, here, here, here, here, here, here and here, for example).

We'll be speaking about this question (and other related topics later this week in a program for the King Kamehameha V Judiciary History Center (open to the public, register here). Our thoughts on the takings aspects of the shutdowns orders generally: "Evaluating Emergency Takings: Flattening The Economic Curve."

Complaint for Declaratory Injunctive Relief, Apartment Ass'n of Los Angeles County, Inc. v. City of Los Angeles, No. 2:20-cv-05193 (C.D. Cal. June 11, 2020)

Upcoming Judiciary History Center Program: "Constitutional Law and States of Emergency: Lessons from the COVID-19 Pandemic" - Wed., June 17, 2020, 5:30pm HST

Next Wednesday, June 17, 2020, at 5:30pm Hawaii Time, we'll be speaking for the King Kamehameha V Judiciary History Center about "Constitutional Law and States of Emergency: Lessons from the COVID-19 Pandemic."

This is a one-hour program, open to the public, where we will take a dive into Hawaii's emergency preparedness and response laws, how Hawaii's courts have treated emergencies, plagues, pandemics, and quarantines in the past (we have a long history there), and respond to (moderated) audience questions.

Space limited to 100 attendees, although it will be recorded and posted on the Center's YouTube channel. Here's the program description:

The King Kamehameha V Judiciary History Center invites you to join our live webinar with attorney Robert H. Thomas as he shares his expertise about constitutional rights and civil liberties during the COVID-19 pandemic. He will share lessons from Hawaiʻi’s history of public health laws during epidemics, as well as explain how courts in other jurisdictions are currently evaluating legal claims related to the Fifth Amendment.

The webinar will conclude with a live Q&A. Space is limited to 100 webinar attendees.

Register to learn about Robert's responses to popular questions that arose during quarantine, including:

• Can government officials require me to wear a mask?
• Can the police keep me from going to the beach?
• Can Hawaiʻi treat residents and tourists differently?

To join the live webinar, please register using the sign-up button below. Or, visit our Youtube channel to view the program's live stream feed on June 17, 2020 at 5:30 pm. The webinar will be recorded and posted to our Youtube and Facebook pages.

Register here.

Hope you can join us.

PS - once the ongoing situation is over, when you have a chance, you really should pay an in-person visit to the Center's facility, which is on the first floor of Aliiolani Hale, directly underneath the Supreme Court's courtroom. There's a historic trial courtroom, and displays on Hawaii's legal history.

Latest Coronavirus Complaint: NY State's Order Suspending Evictions Is A Taking

Here's the latest complaint that alleges a taking arising out of the coronavirus situation. It joins a long list of similar lawsuits (See here, here, here, here, here, here, here, here, here, here and here, for example.

This one challenges the State of New York's executive order that bars property owners from pursuing residential evictions for nonpayment of rent and requires the owners to apply security deposits towards rent.

Some interesting elements in the case:

• The complaint was filed in federal court against the Governor.
• It avoids the Eleventh Amendment issue by not seeking compensation, only declaratory and injunctive relief.
  
• Does that raise the issue of whether such relief is available for a taking?

Stay tuned, this isn't going to be the last of these things. We wrote up how we think these type of claims should be handled in "Evaluating Emergency Takings: Flattening The Economic Curve."

Complaint, Elmsford Apt. Assoc, LLC v. Cuomo, No. 1:20-cv-04062 (S.D.N.Y. May 27, 2020)

Land Use Also On The Fall Semester Agenda At William And Mary Law

This fall, we'll be back at the William and Mary Law School (hopefully in-person, depending on the circumstances and the yet-to-be-announced approach to be taken by the College of William and Mary), teaching two of our favorite subjects.

Not only will this be the third time leading Eminent Domain and Property Rights (Law 608), but we'll also be undertaking another subject, Land Use Control (Law 425). This semester, we're stepping into the (big, figuratively speaking) shoes of Professor Lynda Butler who recently retired after a stellar and trailblazing career. Thankfully, Lynda is continuing to lead the Brigham-Kanner Property Rights Project and is underway with planning October's Brigham-Kanner Conference, honoring Harvard lawprof Henry Smith.

Land Use is, of course, related to Eminent Domain and Property Rights, but the law school understands that they are each worthy of separate study, and they should not be folded into a single course (or, worse yet, treated only as part of the introductory first-year Property course). We're developing the syllabus now, but we're going to be covering topics such as:

• zoning
• vested rights
• who decides - agencies or courts?
• RLUIPA and other religious land uses
• First Amendment and land use law
• land use as a means of social control
• Acronym Central: TIFs, PUD's, NIMBYs and YIMBYs
• "In accordance with a comprehensive plan..."
• the uneasy relationship between land use and environmental law
• ...and more!

If you are a student, the course is now available on the law school system. It is a full three-credits, and we'll be meeting Mondays and Wednesdays at 10am. We're not sure whether the final will be a paper or an exam, but if you have thoughts about that subject or topics you'd like to cover, please let me know.