Takings

The Indiana Supreme Court affirmed a well-established rule that, while it would a taking of property requiring compensation to block an owner’s established access to a public road, it is not a taking if a government entity alter roads or closes an intersection in ways that affect traffic patterns. That is so even if those changes in traffic patterns harm a business by reducing its customers. Indiana v. Franciscan Alliance, Inc., 245 N.E.3d 144 (Ind. 2024). The court reasoned that the owner has no property interest in traffic patterns while the owner does have an interest in using existing driveways and roads to get direct access the owner’s own land.

The Supreme Court of Washington held that restraints on eviction that were temporary during the pandemic and designed to protect human life were not regulatory takings of property. Gonzales v. Inslee, 535 P.3d 864 (Wash. 2023).

The Nevada Supreme Court held that denial of a building permit was a categorical taking when the city did not provide the owner with any viable alternative ways to develop the land. City of Law Vegas v. 180 Land Co., LLC, 546 P.3d 1239 (Nev. 2024).

In a recurring, painful issue, the Fifth Circuit agreed with the majority approach in finding that it was not an unconstitutional taking of property to damage a landowner’s house when that was necessary to apprehend an armed criminal intent on shooting it out with the police. Baker v. City of McKinney, 84 F.4th 378 (5th Cir. 2023), reh’g denied, 93 F.4th 251 (5th Cir. 2024). This was an “active emergency” that made it “objectively necessary’ to damage or destroy the property to prevent imminent harm to persons. Public emergency allows the government to damage or destroy property without compensation. The Fifth Circuit justified the result as based on history and longstanding tradition, as well as precedent both before and after adoption of the Constitution.

Fracking involves injecting fluids under the earth through pores (openings in the earth) that may extend to neighboring property. Such physical invasions, the North Dakota Supreme Court held, are takings of property that cannot be statutorily-mandated without just compensation. Northwest Landowners Ass’n v. State, 978 N.W.2d 679 (N.D. 2022).

Two federal courts have held that municipal ordinances that prohibit or regulate the ability of owners to rent their properties to short-term tenants did not unconstitutionally take the owners’ property rights without just compensation. Nekrilov v. City of Jersey City, 45 F.4th 662 (3d Cir. 2022); Hignell-Stark v. The City of New Orleans, 46 F.4th 317 (5th Cir. 2022)

A Texas court has ruled that a city ordinance prohibiting all drilling of gas wells in the city took the property of a company that had leased land for gas drilling purposes and been given permits in the past to do so. The company claimed that the denial of new permits to drill and the ordinance permanently prohibiting drilling rendered their lease without any value. The court agreed since the lease was limited to a use that was now illegal. No finding was made on whether gas drilling was a private or public nuisance that would justify prohibiting the activity without compensation — despite the fact that the citywide ban effectively declared drilling to be harmful to the public. City of Dallas v. Trinity E. Energy, LLC, 2022 WL 3030995 (Tex. Ct. App. 2022). Because the court determined that the permit denials and the prohibition on drilling rendered the lease without …

City repeal of gas drilling permits held to be a Lucas taking Read More »