Takings

Supreme Court will review Williamson County decision requiring exhaustion of state remedies before bringing a takings claim in federal court

/ Takings

The Supreme Court has taken certiorari in a case that will decide whether to affirm or overrule the holding of Williamson County Regional Planning Comm’n v. Hamilton Bank of Johnson City, 473 U.S. 172 (1985), which held that a property owner must exhaust state remedies before bringing a takings claim in federal court. Because proceedings in state court can be appealed to the Supreme Court, that rule means that the only way to get federal court review of a state takings claim is by getting the Court to accept review on a state supreme court decision, thereby precluding federal input into most takings claims against the states. The vehicle for reviewing Williamson County isKnick v. Township of Scott, 862 F.3d 310 (3d Cir. 2017), which involved a local law that allowed public officials to enter private property to determine whether a cemetery exists and that required all cemeteries to be open to …

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New Orleans owners prevail on a takings claim against the US Army Corps of Engineers for taking their property without just compensation by the negligent design of a navigational channel

/ Takings

This is an older case now but worthy of being noted. The U.S. Court of Federal Claims held that the U.S. Army Corps of Engineers effected a taking of property without just compensation when it designed and maintained a navigational channel known as the Mississippi River Gulf Outlet (MRGO) in a manner that significantly increased storm surge and flooding on owners’ properties during Hurricane Katrina. St Bernard Parish Gov’t v. United States, 121 Fed Cl 687 (2015).

Supreme Court denies certiorari in inclusionary zoning case

/ Takings, Zoning

As it has in the past, the Supreme Court has refused to review a state court opinion that upheld a local ordinance that required housing developers to pay a fee to be used for the development of affordable housing.  616 Croft Ave. LLC v. City of W. Hollywood, 207 Cal. Rptr.3d 729 (Ct. App. 2016), cert. denied, 2017 WL 1064331 (Oct. 30, 2017). The lower court opinion relied on an earlier ruling by the California Supreme Court that also upheld such ordinances and found them not to be takings of property without just compensation.  Cal. Bldg. Indus. Ass’n v. City of San Jose, 351 P.3d 974 (Cal. 2015). Cf., Common Sense Alliance v. Growth Mgmt. Hearings Bd., 2015 WL 4730204 (Wash. Ct. App. 2015) (general “legislative” regulations that apply to classes of property or development, rather than individualized permit conditions, are not subject to the Nollan/Dolan nexus requirements). These rulings have generally not applied the restrictive …

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Supreme Court rejects regulatory takings challenge to zoning merger provision

/ Eminent Domain, Real Estate Transactions, Takings, Zoning

In Murr v. Wisconsin, 2017 WL 2694699 (U.S. 2017), the Supreme Court held that a zoning law that treated two contiguous parcels owned by the same persons as one parcel to determine minimum developable lot size was not an unconstitutional taking of property without just compensation. The merger law provided for variances that might allow development for lots that contained less than one acre of developable space but did not provide for such a variance if two lots were merged. One lot had a house on it and the other was vacant. The owners claimed that the vacant lot had no economically beneficial use since it could not be separately developed. However, the Supreme Court held that the denominator to determine the economic impact of the regulation was the “parcel as a whole” and that in this case that meant the merged parcels. Moreover, even if the two lots could be developed separately, …

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North Carolina finds taking of properties restricted from development because listed for highway takings

/ Takings

In Kirby v. N.C. Dep’t of Transp., 2016 WL 3221090 (N.C. 2016), the North Carolina Supreme Court held that the state took property without just compensation under the state constitution when it published maps showing where roads would be placed in the future and what properties would have to be taken to enable those roads to exist. The underlying statute imposes restrictions on properties identified on the officials maps as likely to be taken for road purposes. No owner is allowed to obtain a building permit or a subdivision approval, although owners can apply for hardship exceptions to the building permit limitation. On the other hand property tax relief is also provided to these owners. Publication of the map does not mean the property actually will be taken; the state Department of Transportation is not obligated to build or complete the highway project. The Map Act could be justified as a legitimate …

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Taking of property when an easement is expanded beyond its original scope

/ Easements, Servitudes, Takings

In Marvin M. Brandt Revocable Trust v. United States, 134 S.Ct. 1257 (2014), landowners objected when an easement that had been granted for railroad purposes was converted to a trail for public hiking. An easement is a permanent right to use land owned by another for a specific purpose. State law determines how to interpret the scope of the purpose. Some states interpret a general right of way as not only giving the easement owner the right to pass over the land by walking or driving but a right to install utility lines; other states interpret the scope of the easement narrowly and would view utility lines as exceeding the scope of the easement. In addition, state law determines when an easement ends because of abandonment. Most states find that mere nonuse does not constitute abandonment. However, once state law determines that a use exceeds the scope of the easement or that …

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Texas beachfront property rights after hurricanes

/ Easements, Servitudes, Takings, Trespass, Water Rights

In general, when property borders change because of gradual accretion or erosion along rivers or oceans, then owners gain or lose land because of those changes.  If land is gradually added to an owner’s land by gradual build-up of sand or silt, then the owner’s property increases to that extent; the reverse is also true. But if the border changes suddenly (“avulsion”) then the borders do not change. The courts have generally applied these principles to beachfront property to determine the border between the private property rights of beachfront owners and the land owned by the public accessible by anyone. Stop the Beach Renourishment, Inc. v. Florida Department of Environmental Protection, 560 U.S. 702 (2010), challenged a common law rule giving the public access to a new sand area on the beach created by government landfill. While refusing to decide whether a judicial common law ruling could be a taking, the Court …

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Regulatory taking of water rights

/ Environmental Law, Takings, Water Rights

In a prior post, I explained the holding of a Texas Supreme Court opinion that held that regulation of water rights might constitute a regulatory taking. The text of that post is at the end of this one. A subsequent case involving similar facts actually held that limits on withdrawal of groundwater designed to preserve water for drinking purposes actually took the property rights of water rights owners who had received permits to use the water to irrigate their pecan crops. That case is Edwards Aquifer Auth. v. Bragg, 421 S.W.3d 118 (Tex. Ct. App. 2013) and it meant that the regulation in question could not be enforced without just compensation. It was expected that the Texas Supreme Court would hear that case on appeal to affirm or overrule its holding but surprisingly, the court has denied appellate review. Edwards Aquifer Auth. v. Bragg, 2015 Tex. LEXIS 400 (Tex. 2015). That either suggests approval …

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Takings clause applies to physical seizure of personal property

/ Due Process, Eminent Domain, Personal Property, Takings

The Supreme Court held in Horne v. Dep’t of Agric., — U.S. — (2015), that the takings clause applies to physical takings of personal property (like cars) as well as to real property. Thus a government program designed to shore up the price of raisins by requiring farmers to hand over a certain percentage of the raisin crop to the government effected a categorical physical taking of personal property. The limit on supply of raisins for sale was intended to increase the price farmers receive for the raisins they sell, thus promoting the profitability of their businesses. The expropriated raisins are given away or sold by the government and if any profits remain they are returned to the farmers. The Court held any economic benefits farmers received from increased raisin prices or moneys from sales of the raisins turned over to the government do not affect the question of whether a taking has occurred. …

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