Takings

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 »

After the Indiana Supreme Court held that private property rights end at the high tide land, giving the public the right to use the wet sand area between the low and high tide lines, see Gunderson v. State, 90 N.E.3d 1171 (Ind. 2018), an owner sued state officials to have that judicial ruling declared to be a taking of property rights without just compensation. But the Seventh Circuit held that the state courts were competent to determine whether private property ownership extended to the tidelands in the first place and because they did not, no property rights were taken from the owner. Pavlock v. Holcomb, 2022 WL 1654038 (7th Cir. 2022). The converse, however, may not be true. Since the high courts of both Massachusetts and Maine have limited public rights in the tidelands, a statute recognizing such rights might be held to take away vested property rights. On the other hand, …

State court affirmation of public rights below the high tide line do not take property without compensation in violation of the 14th amendment Read More »

In Alford v. United States, 961 F.3d 1380 (Fed. Cir. 2020), owners complained that the Army Corps of Engineers took their properties by temporarily flooding a nearby lake, knowing it would damage the plaintiffs’ property but doing so to avoid even greater damage to their property from a breach of the levee that was almost certain to occur if the Corps had not acted and which would have resulted in the complete destruction of plaintiffs’ properties. The Federal Circuit applied the “relative benefits” doctrine and reversed the Claims Court’s finding of a regulatory taking. It found that the plaintiffs’ properties “would have been far worse off and suffered more serious damage if the government had not acted” and, for that reason, the government’s action protected, rather than took, property.

The Michigan Supreme Court has condemned the practice of keeping all the proceeds of a tax sale of property (done because of failure to pay property taxes) when the city keeps all the proceeds of the sale, even though those are far more than needed to pay the taxes that were due. Rafaeli, LLC v. Oakland County, 2020 Mich. LEXIS 1219 (Mich. 2020)

Several courts has addressed the question of whether temporary business closure orders to protect the public from Covid-19 constitutes regulatory takings of property. So far, the answer has been “no” as evident in a prominent decision of the Pennsylvania Supreme Court. Friends of DeVito v. Wolf, 227 A.3d 872 (Pa. 2020) (relying on Tahoe-Sierra Pres. Council, Inc. v. Tahoe Regional Planning Agency, 535 U.S. 302 (2002)).