Check this out: lawprof Ilya Somin has posted “Squatters’ Rights Laws Violate the Takings Clause” at Volokh.
His thesis is just as the title suggests, arguing that state statutes that treat trespassers as tenants are government-authorized physical occupations, and thus are takings:
Ideally, state and local governments should make it easy for property
New York state, as you might already know, regulates the rent an owner of residential property may charge to a tenant. Under a statute adopted in 1974, regulation is triggered by a locality’s declaration of a housing emergency, and the restrictions extend for the duration of the declared emergency. Most famously — or infamously —
The Chief Justice calling the case for oral arguments.
Who knew?
(And in case you are wondering, yes — we’re joking.)
Here’s our latest, this cert petition, another one asking whether a property owner’s regulatory takings claim is ripe for judicial review.
This is one of ours, so we won’t be commenting in depth other than to say that it doesn’t seem like you should have to seek permission under Futurelaw in order to ripen
Check this out. Friend and colleague Steve Davis has authored “Eminent Domain, the Fifth Amendment Takings Clause, and the Rule of Law,” 88 Social Education J. 1 (2024).
As summarized on the Federal Takings blog:
Steve explains the rights guaranteed by the Fifth Amendment to the Constitution and focuses on its critically-important
You can spend all your time making money.
You can spend all your love making time.
If it all fell to pieces tomorrow, would you still be mine?
Count me as very surprised, and a bit saddened, when earlier this week my inbox pinged with notification that the latest episode of Clint Schumacher’s Eminent Domain
Zip. Zilch. Zero. Nil. Nada. Squat. Bupkis.
Here’s the latest in a case we’ve been following for a long, long time (see here and here, for example).
In Maunalua Bay Beach Ohana 28 v. State of Hawaii, No. CAAP-19-0000776 (Mar. 18, 2024), the Hawaii Intermediate Court of Appeals confirmed that a state statute declaring certain accreted littoral land to be public property was a temporary regulatory taking of littoral owners’ rights (the common law says that accreted littoral lands belong to the private owner), but that the just compensation the State owes to these owners is a big fat zero.
This case goes back to a statute the Hawaii Legislature adopted in 2003, which made certain land accreted on littoral private property public land. As the court put it, “[i]t effectively made land accreted to the Beach Lots after May 20, 2003, public land not owned by [the adjacent littoral owners].” Slip op. at 3.
Sounds like a taking, and sure enough a lawsuit followed, claiming that the ipse dixiting of accreted land was a taking because it represented a change in the common law under which the adjacent owners would own the accreted land. Nine years later, the legislature “changed the law by terminating the taking effectuated by [the statute].” Slip op. at 9.
The trial court dismissed the takings claim, but the Court of Appeals held that the statute worked an uncompensated taking of the land accreted before the effective date of the statute. (The court rejected a claim that the statute also confiscated future accreted land, but that is another story.) The appeals court sent the case back for a a ruling on whether these plaintiffs own land that qualified, and if so, the valuation of the accreted land.
After a bench trial, the trial court concluded that there was a temporary (nine year) taking, not a permanent one. The parties stipulated that just compensation was to be measured by the “fair rental value of the accreted land” as of the effective date of the statute, subject to the governmental and private restrictions that burdened the land. Slip op. at 5. The trial court concluded that just compensation is $0.
The court of appeals affirmed, and made short work of the owners’ argument. It based its conclusion entirely on the appellate standard of review:
Beach Lot Owners’ evidence of fair rental value was based on the testimony of Stephany Sofos. The circuit court “did not find Ms. Sofos to be a credible witness” and gave “no weight to her testimony.” “It is well-settled that an appellate court will not pass upon issues dependent upon the credibility of witnesses and the weight of evidence; this is the province of the trier of fact.” Fisher v. Fisher, 111 Hawaii 41, 46, 137 P.3d 355, 360 (2006) (citation omitted).
The circuit court instead credited the testimony of Craig Leong, a licensed real estate appraiser who holds the MAI designation.
Slip op. at 11-12 (footnote omitted).
The State’s appraiser concluded there was no rental value because the size of the accretions were “irregular” and of “narrow widths,” and subject to regulations and restrictions. Slip op. at 12.
The owners couldn’t believe that beachfront property in one of the most desirable residential areas in Honolulu is utterly worthless: “Beach Lot Owners argued that ‘depriving [them] of oceanfront property in Maunalua Bay for 9 years cannot possibly be valued at $0.’” Slip op. at 10. Indeed isn’t it intuitive that ownership of even a small and irregularly-shaped portion of beach — even for a temporary period, and even if open to public access as the plaintiffs stipulated — could be worth something? Especially, as the plaintiffs claimed, as a buffer to the homes built on the adjacent residential lots (what the opinion calls the “Home Lots”).1
Problem is, the plaintiffs making those claims “do not own any Home Lots.” Slip op. at 11. Ouch.
Having noted that the trial court made a determination that the plaintiffs’ appraiser offered incredible testimony (what that testimony was, and what value the appraiser assigned to the accreted lands we don’t know because the opinion does not tell us), and that the government’s appraiser was credible, the court of appeals held the factual conclusion of zero just compensation was not clearly erroneous because there was some evidence in the record to support it. Game, set match.
Also: no nominal damages because the plaintiffs, having scored no just compensation, “did not sustain a ‘technical injury due to a violation of some legal right[.]’” Slip op. at 13. In the court’s view, they were not injured at all.
Finally, the court rejected the argument that the plaintiffs should have been at least awarded attorneys’ fees under the private attorney general doctrine. Read pages 14-20 if you care why (we don’t, sorry).
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1. This intuition comes from the “Inversecondemnation on Valuation” treatise by the way. You won’t find a copy of this august work in your law library, sadly. In the end, the trial court found the in-court testimony of expert valuation witnesses a lot more persuasive than your author’s intuition, which, standing alone, is worth doodly-squat in a court of law (as we know).
Maunalua Bay Beach Ohana 28 v. State of Hawaii, No. CAAP-19-0000776 (Haw. App. Mar. 18, 2024)
If you’ve been around us long enough, you know that we’re big into the notion of “generational handoff” and doing what we can to make sure that students and others who are building their careers realize that dirt law and related topics are very good areas in which to find your way.
Well, here’s the
In Brinkmann v. Town of Southold, No. 22-2722 (Mar. 13, 2024), the U.S. Court of Appeals for the Second Circuit addressed a longstanding issue left unresolved by the Supreme Court in Kelo v. City of New London, 545 U.S. 469 (2005): is it enough that a condemnor’s professed use qualifies as a public
When it comes to property rights, we’re most often focused on takings, compensation, and due process. But as you all know, the concept of property rights encompasses a whole lot more.
Our colleague, lawprof Jessica Asbridge, has posted on SSRN an article that is forthcoming in the Virginia Law Review, “Fines, Forfeitures, and Federalism,” in which she delves into the question of how the Excessive Fines Clause applies to state and local forfeitures and fines. To resolve the federalism concerns she identifies, the article argues that courts “should look to the exactions doctrine under the Takings Clause.”
Count us as intrigued.
Here’s the Abstract:
Fines are ubiquitous in modern society, and they are imposed for both serious crimes and minor civil wrongs. The U.S. Supreme Court recently recognized that the Constitution’s Excessive Fines Clause applies to the states, but that decision raises previously unexplored questions as to how to enforce the Clause’s protections in the states. A key question is what role, if any, federalism should play in crafting doctrinal rules that apply the Clause’s protections to state and local fines and related property forfeitures. This Article is the first to accord in-depth treatment to that important question.
The extent to which federalism principles should apply does not have an immediate and obvious answer. On the one hand, federalism plays a significant role in the Court’s jurisprudence on the Cruel and Unusual Punishment Clause. The Court therefore generally takes a highly deferential approach in reviewing sentences of imprisonment. Lower courts have applied that same deferential review in the context of the Excessive Fines Clause. On the other hand, fines and forfeitures are unlike other forms of punishment—such as prison—because they are often used as a revenue source for state and local governments, creating a conflict of interest for state and local decision-making bodies.
To address this conundrum, this Article makes the novel argument that the Court should look to the exactions doctrine under the Takings Clause, which often implicates similar concerns of government self-interest and overreaching. Exactions and excessive fines are conceptually similar, but scholars thus far have overlooked the close relationship between them. The exactions doctrine gives minimal weight to federalism concerns, and it applies a heightened-scrutiny standard that is well suited to the excessive fines context. Indeed, differences between federal practice and state and local practices as to fines suggest that discretionary state and local fines should be subject to closer constitutional scrutiny than federal fines. As a recent example illustrates, such heightened scrutiny would ensure that the Excessive Fines Clause is not merely a parchment barrier, while still accounting for variations between states and localities in terms of their communities’ values and needs.
Check it out. Download your copy on SSRN here.
Continue Reading New Article: “Fines, Forfeitures, and Federalism” (Jessica Asbridge)