Takings

California beachfront owner temporarily denied power to place a gate limiting public access to the beach

/ Easements, Real Estate Transactions, Takings, Trespass

The Supreme denied certiorari from a California court that interpreted California statutes to ensure public access to the beach and that prohibited a beachfront owner from installing a gate to prevent such public access. Surfrider Foundation v. Martins Beach 1, LLC,221 Cal.Rptr.3d 382 (Ct. App. 2017). The court did not rule on the owner’s claim that the state law requiring him to allow access across his property effected a taking of property without just compensation. It found the regulation to be temporary since state law merely required the owner to seek a permit before closing access to the beach when permissive access had previously been given. It did not consider the order to allow access to constitute a temporary taking since it preserved the status quo before the owner’s action (installation of the gate) that triggered the state permitting requirement.

No right to jury trial in regulatory takings case

/ Takings

A Massachusetts court held that a landowner was not entitled to have a jury determine whether a wetlands protection bylaw constituted a regulatory taking. Smyth v. Conservation Comm’n of Falmouth, 119 N.E.3d 1188 (Mass App. Ct. 2019). The owner who inherited an unimproved lot from her parents (who paid $49,000 for it in 1975) was denied a building permit since her plans violated the town wetlands protection bylaw. The owner presented evidence at trial that the lot had a fair market value of $700,000 if buildable but only $60,000 if not buildable. The jury found that a regulatory taking had occurred and awarded $640,000 in damages. The Appeals Court reversed, holding that the state constitution did not guarantee a jury right for this type of claim and that the regulatory takings question was a matter of law to be decided by the judge. The court found no regulatory taking since the land …

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Eighth Amendment’s Excessive Fines Clause applies to the states

/ Due Process, Takings

The Supreme Court held in Timbs v. Indiana, 2019 WL 691578 (2019) that the Eighth Amendment’s Excessive Fines Clause applies to the states by incorporation into the due process clause of the fourteenth amendment. Tyson Timbs had pled guilty to drug crimes that had a maximum fine of $10,000 but the police had seized his car in a civil forfeiture even though the car was worth $42,000 or more than four times the maximum fine for the crime. The trial court had found the forfeiture to be unconstitutional because it was so grossly disproportionate to the gravity of his offense. While that ruling was upheld by the appeals court, it was overruled by the Indiana Supreme Court on the ground that the Excessive Fines Clause did not apply to the states. That opinion was reversed by the United States Supreme Court and the case remanded for proceedings consistent with it which will …

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Restrictive covenant held not to be “property” compensable under the takings clause

/ Servitudes, Takings

A town bought a parcel of land subject to a restrictive covenant in order to build a municipal water storage tank contrary to a restrictive covenant prohibiting such construction. The town sued for a declaratory judgment that it could violate the covenant without paying just compensation under the fourteenth amendment’s takings clause. Relying on an earlier case decided by the Colorado Supreme Court, Smith v. Clifton Sanitation District, 300 P.2d 548 (Colo. 1956), the Colorado Court of Appeals held that covenants are not compensable property rights under the fourteenth amendment. Town of Monument v. State,2018 WL 4781388, 2018 Colo. App. LEXIS 1396 (Colo. Ct. App. 2018). The court argued (1) that having to compensate every owner who land value may be affected by the government’s violating a covenant would make use of the eminent domain power too difficult; (2) owners should not be able to contract to make taking property by …

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Town can alter zoning law retroactively to prohibit Airbnb use

/ Leaseholds, Takings, Zoning

The Massachusetts Land Court has ruled that a town may amend its zoning ordinance to prohibit Airbnb use and that retroactive application of the new law to those who established Airbnb use before it was passed is lawful. The owner had no right to have the prior Airbnb use “grandfathered in” as a prior nonconforming use under state statutes. Styller v. Aylward, 2018 Mass. LCR LEXIS 194 (Mass. Land Ct. 2018).

City takes property when it constructs a public park and invites the public to cross private property to access the park

/ Takings

A city created a public park next to private property and then used physical signs, maps on Web sites, and other methods to suggest to the public that they were free to cross that private property to get to the beach. Those acts were sufficient to constitute a taking of property without just compensation. The city effectively took a public easement from the private owner. Chmielewski v. City of St. Pete Beach, 890 F.3d 942 (11thCir. 2018).

Town acquires prescriptive easement allowing public to use a road and abutting parcel

/ Adverse Possession, Easements, Takings

When a road and abutting triangle of land was used the public and maintained by the town, the town acquired a prescriptive easement for continued use of the road by the public. Athanasiou v. Board of Selectmen of Westhampton,82 N.E. 3d 436 (Mass. App. Ct. 2017). The town’s highway superintendent maintained the area, plowed, sanded, oiled, and graveled the roadway, patched potholes, removed trees and fallen limbs from the area and cleared sediments from the triangle parcel.

Is it an unconstitutional taking of property without just compensation to require sex offenders to move away from their home if a school, playground, or daycare center is established near their home after their initial occupation?

/ Consumer Protection, Estates and Future Interests, Homelessness, Takings

In Mann v. Georgia Department of Corrections,653 S.E.2d 740 (Ga. 2007), the Georgia Supreme Court held that a state statute prohibiting registered sex offenders from living or working within 1,000 feet of any facility where minors congregate, see Ga. Code Åò42-1-15, constituted a taking of property as applied to a sex offender who was forced to move after a child care center opened a facility within 1,000 feet of his home. The court noted that “it is apparent that there is no place in Georgia where a registered sex offender can live without being continually at risk of being ejected.” 653 S.E.2d at 755. Moreover, the effect of the statute “is to mandate appellant’s immediate physical removal from his . . . residence.” The court noted “the strong governmental interests that are advanced by the residency restriction” on sex offenders, but also found that the law effectively allowed “private third parties” …

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Seizure of abandoned real property by municipality is not an unconstitutional taking of property

/ Nuisance, Takings

The Iowa Supreme Court held that the Constitution does not require just compensation when it seizes abandoned property pursuant to a statute giving the city title to such property. City of Eagle Grove v. Cahalan Investments, LLC, 904 N.W.2d 552 (Iowa 2017). Such property is deemed a nuisance and no owner owns the right to commit a nuisance. The court explained that the state has the “power to condition the permanent retention of…property rights on the performance of reasonable conditions that indicate a present intention to retain the interests.” In this case, by “allowing the properties to persist in a condition unfit for human habitation, allowing the premises to remain vacant, and failing to make timely and reasonable efforts to remedy the public nuisances created by the properties after notification of the problems,” the owner failed to comply with reasonable conditions established by law to retain his ownership interest. Because he did …

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City has a constitutional due process obligation to notify an owner that the owner’s property has been adjudicated to be blighted and subject to condemnation

/ Due Process, Nuisance, Takings

Colorado statutes create a procedure for designating property as blighted and subject to condemnation and transfer either to public use or transfer to another owner. While the statute required notice when the city begins studying whether the property is blighted and when a public hearing is held, it did not require notice of a decision that the property is in fact blighted. The Tenth Circuit found this to violate the due process clause because the statute gives property owners a right to judicial review of the blight determination but without notice of the blight determination owners have no reasonable opportunity to seek such judicial review. M.A.K. Investment Group, LLC v. City of Glendale,889 F.3d 1173 (10th Cir. 2018).

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