California Supreme Court Upholds Inclusionary Housing

Earlier this week the California Supreme Court issued a major takings decision rejecting a suit by the California Building Industry Association (“CBIA”) seeking invalidation of the City of San Jose’s inclusionary housing ordinance. The unanimous decision In CBIA v. City of San Jose is not only a ringing affirmation of the constitutionality of inclusionary housing policies but also an important explication of the line between “exactions” (subject to unusually strict judicial review) and land use regulation (subject to more traditional, deferential review). The case was brought under both the California and the Federal takings clauses, but the California Court assumed the two clauses should be interpreted congruently in this context. Read the rest of this entry »

Zero for Starr International in Bailout Lawsuit

The U.S. Court of Federal Claims today handed Maurice (“Hank”) Greenberg and his attorney David Boies a stinging defeat by declining to award a penny in monetary compensation in their lawsuit seeking in excess of $40 billion in connection with AIG bailout. (The NY Times headline for today’s story about the case starts off by asserting, “Victory for Ex-A.I.G. Chief in Bailout Suit . . .;” we have to wonder what part of goose egg they don’t understand over at the gray lady.) Read the rest of this entry »

Oddball State Takings Measures

Now that the state legislatures have mostly wrapped up for the year, it is worthwhile to comment on two of this year’s oddball state takings measures, one from Florida and the other from Arkansas.  Both measures are more interesting for what they don’t do than for what they do. Read the rest of this entry »

Cert Grant in Horne v. Department of Agriculture

Today the U.S. Supreme Court granted a petition for certiorari in the takings case of Horne v. Department of Agriculture.    As followers of this blog may recall, the U.S. Supreme Court has already been around once in this case.

The issues as presented in the cert petition are as follows:   “(1) Whether the government’s “categorical duty” under the Fifth Amendment to pay just compensation when it “physically takes possession of an interest in property,” Arkansas Game & Fish Comm’n v. United States, applies only to real property and not to personal property; (2) whether the government may avoid the categorical duty to pay just compensation for a physical taking of property by reserving to the property owner a contingent interest in a portion of the value of the property, set at the government’s discretion; and (3) whether a governmental mandate to relinquish specific, identifiable property as a “condition” on permission to engage in commerce effects a per se taking.”

Stay tuned.  More to follow.


Koontz and San Francisco Rent Control

The mischief threatened by the Supreme Court’s strikingly incoherent decision in Koontz v. St John’s Water Management District continues to reverberate in the lower courts.  The latest for instance is the October 21, 2014, decision by the federal District Court for the Northern District of California in Levin v. City & County of San Francisco. The Court (Breyer, Charles, J.) ruled that a recently enacted San Francisco ordinance requiring landlords who withdraw from the rent-controlled rental market to make a lump sum payment to displaced tenants constitutes a taking under the Nollan/Dolan/Koontz trifecta. Read the rest of this entry »

The Ninth Circuit Rules in Horne: The Plot Thickens

The Supreme Court’s takings decisions last term in Horne and Koontz have each generated considerable debate and consternation.  Now, the Ninth Circuit has issued a new ruling in Horne on remand that relies heavily on the analysis in Koontz to resolve the Hornes’ claim. The Ninth Circuit handed the government a win, ruling that the Hornes failed to demonstrate a taking due to the Secretary of Agriculture’s assessment of penalties against them for declining to “reserve” a portion of their raisin crop in accordance with the Agricultural Marketing Agreement Act of 1937.  Unfortunately, the Ninth Circuit’s legal analysis is an impenetrable tangle, largely because the Supreme Court itself has been so confusing, and the long-term implications of the Ninth Circuit’s decision are both unpredictable and troubling. Read on …

Koontz: Could it Get Any Worse?

Just when you thought the Koontz litigation couldn’t get any worse (see my article, Koontz: the Very Worst Takings Decision Ever?),the Florida Court of Appeals has issued a decision in the Koontz case on remand.  The Court split 2 to 1.

To recap, the case arose from the St John’s Water Management District’s denial of a permit to fill wetlands after the plaintiff and the District failed to come to terms on a combination of easement restrictions and off-site mitigation measures that would have allowed the District to issue the requested permit.  The Florida Supreme Court, reversing a decision by the Florida Court of Appeals, ruled that the Nollan/Dolan “exactions” standards do not apply to a permit denial when the government has imposed no “exactions.”  The U.S. Supreme Court reversed, holding that Nollan/Dolan do apply to a permit denial following a landowner’s refusal to accede to a demand for an exaction.

In this latest ruling in the case, on remand from the U.S. Supreme Court, the Court of Appeals reasoned that, since the court’s 2009 decision was “entirely consistent” with the Supreme Court’s 2013 decision, and since the Supreme Court’s  opinion “does not set forth a new legal construct” for analyzing the issues in the case, it should “reaffirm” its prior decision upholding the finding of a taking and a compensation award without the benefit of further briefing.  Given that the Court of Appeals previously awarded “just compensation” for a “taking” of private property, and the Supreme Court subsequently declared that the claim in Koontz was NOT based on a “taking,” the majority’s logic is more than a little suspect. Read on …