According to the U.S. Court of Appeals for the Ninth Circuit, the answer is a definitive yes....more
In Knick v. Township of Scott, 139 S.Ct. 2162 (2019), the Supreme Court reversed over three decades of precedent when it eliminated the requirement that a plaintiff exhaust state court remedies before pursuing a takings...more
The California Coastal Act is a regulatory regime with many layers and complexities. Generally, however, the Act requires development within a designated coastal zone to obtain a coastal development permit. This permit may be...more
As you may recall, it wasn’t too long after the Governor issued his executive order mandating the closure of certain businesses in California that the first takings lawsuit was filed. (See our coverage of Gondola Adventures,...more
Since the U.S. Supreme Court’s decision in Knick v. Township of Scott (2019) 139 S.Ct. 2162 eliminated the requirement for a plaintiff to exhaust state court remedies before pursuing a takings challenge in federal court,...more
As first reported by our good friends at inversecondemnation.com, a lawsuit has been filed in California alleging that the response by state and county agencies to the COVID-19 situation violates the state and federal...more
5/11/2020
/ Business Closures ,
Constitutional Challenges ,
Coronavirus/COVID-19 ,
Due Process ,
Equal Protection ,
Fifth Amendment ,
Inverse Condemnation ,
Right to Travel ,
Shelter-In-Place ,
Sovereign Immunity ,
State Constitutions ,
Takings Clause
The Fifth Amendment to the U.S. Constitution states: “nor shall private property be taken for public use, without just compensation.” The California Constitution contains a similar provision. Reading these constitutional...more
12/4/2019
/ Appeals ,
Beach Access ,
Beachfront Properties ,
California Coastal Commission ,
Coastal Real Estate ,
Fees ,
Fifth Amendment ,
Just Compensation ,
Licenses ,
Permits ,
Private Property ,
Property Dedication ,
Property Owners ,
Public Use ,
Real Estate Development ,
Real Estate Market ,
Recreation ,
Right of Access ,
State and Local Government ,
Takings Clause ,
Waterfront Properties
For over three decades, most property owners have been relegated to state courts when pursuing a takings claim against a state or local agency. In a 5-4 decision issued this week, the U.S. Supreme Court reversed itself and...more
6/24/2019
/ 42 U.S.C. §1983 ,
Federal v State Law Application ,
Fifth Amendment ,
Inverse Condemnation ,
Just Compensation ,
Knick v Township of Scott Pennsylvania ,
Precedential Opinion ,
Property Owners ,
Reversal ,
SCOTUS ,
State Law Remedies ,
Takings Clause
Last week, Jeremy Jacobs posted an interesting article about the U.S. Supreme Court’s recent decision in Horne v. Dep’t of Agriculture, No. 14-275 (U.S. Jun. 22, 2015), and its potential application to Endangered Species Act...more
It depends. A recent decision out of the Federal Circuit tackled this very issue, and the court’s decision strongly suggests that a taking could arise under the right circumstances. (Filler v. U.S. (Fed. Cir. Mar. 10, 2015)...more
In a unanimous opinion written by Justice Thomas, the Supreme Court held that California raisin handlers could assert a takings claim as an affirmative defense to an enforcement action filed by the United States. Horne v....more
On February 27, 2013, the U.S. Court of Appeals for the Federal Circuit affirmed the dismissal of a Fifth Amendment takings claim based on the finding that the claim was "not ripe." The claim is unusual because it arose in...more
In Lost Tree Village Corporation v. United States, the Federal Circuit addressed this question head on, concluding, to the surprise of no one, that the answer will largely depend upon the unique facts in each case. ...more
Originally Published in The Real Estate Finance Journal, December 17, 2012.
In eminent domain proceedings, property owners are granted the right to have a jury determine just compensation. But the presentation of...more
After passing on a number of Fifth Amendment issues in recent history, the U.S. Supreme Court is scheduled to hear three cases this term in which the takings clause plays a prominent role. And today, the Court addressed the...more
California is one of only a few states in which a business may recover for loss of goodwill when property is taken by eminent domain, but even here there are limitations on a business' right to recover for such damages. ...more
When I was a child, a long long time ago, I learned the importance of paying attention to detail. While I will not bore you with the details of my adolescence and the shenanigans that forced my parents to drive home this...more
Inverse condemnation claims can be tricky, particularly in the regulatory context. You don't want to file your claim too soon, as that will likely result in your claim being booted out of court on ripeness grounds. But you...more
On August 30, 2012, the Second Appellate District of the California Court of Appeal held that a privately owned utility could be subject to strict liability for inverse condemnation, thereby concurring with a similar holding...more