Posts Tagged ‘eminent domain’

State constitution clauses that require compensation for “damaging” property

Most of us are familiar with the Constitution’s Takings Clause, which requires the federal government to pay compensation when it takes private property. Virtually all state constitutions contain similar provisions. But twenty-seven state constitutions go further than that by requiring the government also to pay compensation for “damaging” or “injuring” property.

Until now, these “Damagings Clauses” have largely been ignored by legal scholars, particularly constitutional law scholars—and even by property rights advocates. But an outstanding 2018 article by Professor Maureen “Molly” Brady (who has just moved from the University of Virginia to Harvard) could help change that. She sheds light on the origins of these clauses in the late nineteenth and early twentieth centuries, the ways in which they have been largely gutted by court decisions, and what can be done to resuscitate them today.

Of the many lessons, one is simple: getting a constitutional amendment on the books is only half the battle, and often not the more difficult half. [Ilya Somin, Jotwell]

“L.A. leaders weigh a new idea to halt rent hikes: Force landlords to sell their buildings”

Los Angeles council members propose using eminent domain to seize apartment buildings to prevent rent hikes. The complex was built under a deal that required the developer/owner to hold rents below market levels for thirty years, and that period has now expired. [David Zahniser, Los Angeles Times; Christian Britschgi, Reason]

I think the scheme is premised in part on sponsors’ knowing that the city could proceed to make a low-ball offer premised on some combination of 1) uncertainty about whether judges would in fact award a fair market value sum that reflected actual market values, 2) the expected cost of litigation, and 3) other leverage the city might be able to bring to bear on the owners. Gideon Kanner, emeritus professor at Loyola L.A. Law and land use expert, has had a running feature for years at his blog called “Lowball Watch” with many examples of the low-ball offers routinely made in eminent domain proceedings.

Environment roundup

Town won’t let owner build on her lot, says it owes $0.00 for taking

Janice Smyth’s family had paid property taxes for 40 years on a residential-zoned land parcel on Cape Cod, which has been left as the last plot in its neighborhood not residentially developed. But the town of Falmouth has adopted land-use regulations that have left only a 115-square-foot patch of it developable. Massachusetts courts: even if the plot’s valuation fell from $700,000 to $60,000, a decline of more than 90 percent, it’s not a taking since you could still use the land as a park or to walk dogs or for neighbors to buy as a buffer. The dispute might make a suitable vehicle for the Supreme Court to revisit the question of whether an outright confiscation of all uses is required before the Constitution’s requirement of just compensation kicks in [Trevor Burrus on Cato certiorari amicus brief in case of Smyth v. Conservation Commission of Falmouth et al.]

Supreme Court roundup

  • Nice little Supreme Court you got there, be a shame if anyone came around to mess it up, say Sens. Whitehouse, Blumenthal, Gillibrand, Hirono, and Durbin in incendiary “enemy-of-the-court” brief [Robert Barnes, Washington Post/Laredo Morning Times; David French, National Review; James Huffman, Inside Sources]
  • Cato podcast triple-header, all with Caleb Brown: Trevor Burrus and Ilya Shapiro on Gundy v. U.S. and the limits of Congressional delegation, Ilya Shapiro and Clark Neily on the aftermath of double-jeopardy case Gamble v. U.S., and Trevor Burrus on the First Amendment case Manhattan Community Access Corporation v. Halleck (cable public access channel not a state actor);
  • Criminal forfeiture, where used, should track lines of individual owner and asset responsibility, not the loose all-for-one joint-and-several-liability standards of some civil litigation [Trevor Burrus on Cato certiorari petition in Peithman v. U.S.]
  • Federalist Society National Student Symposium panel on “The Original Understanding of the Privileges and Immunities Clause” with Randy Barnett, Rebecca Zietlow, Kurt Lash, Ilan Wurman, and moderated by Judge Amul Thapar;
  • On the independence of administrative law judges, issues left over from Lucia v. U.S. are now coming back up in SEC proceedings [William Yeatman on Cato Fifth Circuit amicus brief in Cochran v. U.S.]
  • Take-land-now, pay-later procedures may get pipelines built faster but at the expense of property owners’ rights. SCOTUS should act to assure just and timely compensation [Ilya Shapiro on Cato certiorari petition in Givens v. Mountain Valley Pipeline]

Land use and property roundup

  • When does a taking of land occur? The wrong answer would let the government push around owners in disputes over rails-to-trails projects [Trevor Burrus on Cato Institute amicus brief on Federal Circuit case of Caquelin v. U.S.]
  • Though the federal government can’t successfully manage the Western lands it already has, it will soon extend its grip over more. This time Republicans are responsible [Chris Edwards, Cato]
  • “Sydney’s rental prices are declining because it’s seeing a building boom. The size of Sydney’s apartment market has doubled in two years, and landlords have had to drop rents in order to get tenants.” [Scott Shackford, Reason]
  • To make NYC’s public housing towers a better place to live, throw Le Corbusier off the balcony [Howard Husock, New York Post]
  • Economist Robert H. Nelson, R.I.P. [Jane Shaw, Cato Regulation Magazine]
  • Update: Baltimore eminent domain case against owner of Preakness Stakes race and Pimlico track dropped for now, but remains as bludgeon in closet [Ilya Somin, earlier here, etc.]

Energy and climate roundup

No more poor relation: SCOTUS accords Bill of Rights handling to takings claims

Yesterday’s Supreme Court decision along 5-4 ideological lines in Knick v. Township of Scott, on whether owners whose property is taken must first exhaust state remedies before seeking relief in federal court, is a big win for property owners. It overrules the unsound 1985 precedent to the contrary of a case called Williamson County Regional Planning Commission v. Hamilton Bank. It also represents the second time this term the Court has overruled one of its precedents, following Franchise Tax Board of California v. Hyatt, in which it overturned an earlier precedent on the scope of state tax power. The Court this term has declined to overturn precedent in a third case (Gamble v. U.S., on double jeopardy) and has yet to decide whether to overturn two notable administrative-law precedents in the still-pending case of Kisor v. Wilkie.

In some legal contexts, it can make sense to condition court relief on exhaustion of administrative remedies. But as Chief Justice Roberts wrote for yesterday’s majority, claims under the Bill of Rights are in general allowed direct access to federal courts. In creating an exception, Williamson had “relegate[d] the Takings Clause ‘to the status of a poor relation’ among the provisions of the Bill of Rights.”

Cato actively urged the property owner’s case in Knick, a case arising from a Pennsylvania law that imposed various uncompensated mandates, barbed by fines and penalties, on the owners of land on which persons are buried. Pennsylvania is known for its rural practice of “backyard burials.” Ilya Shapiro has one quick reaction and Ilya Somin, who has written extensively on Knick and the constitutional issues it raises, has another.

Environment roundup

  • EPA confirms the view of its peer agencies around the world: glyphosate weed killer, found in Roundup, is not a carcinogen [Tom Polansek, Reuters, earlier, more]
  • Mayor Bulldozer? Critical look at Pete Buttigieg’s push to tear down hundreds of vacant dilapidated South Bend homes and fine the owners [Henry Gomez, BuzzFeed; see also Chris Sikich, Indianapolis Star]
  • “Why Trump should call off the EPA’s latest assault on NYC” [Nicole Gelinas, New York Post; $3 billion to revamp and cover over a Yonkers reservoir]
  • “‘High-yield’ farming costs the environment less than previously thought – and could help spare habitats” [Cambridge University]
  • Is clarity finally coming on the scope of federal control of local surface waters? [Jonathan Adler on Trump administration “Waters of the United States” regulation; Tony Francois, Federalist Society on prospects for “navigable waters” at the Supreme Court]
  • “New Jersey Court Strikes Down Use of Eminent Domain to Take Property to “Bank” it for Possible Future Use” [Ilya Somin] Pennsylvania law promoted as fixing blighted neighborhoods used to steal people’s homes [Eric Boehm]