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Takings

City repeal of gas drilling permits held to be a Lucas taking

A Texas court has ruled that a city ordinance prohibiting all drilling of gas wells in the city took the property of a company that had leased land for gas drilling purposes and been given permits in the past to do so. The company claimed that the denial of new permits to drill and the ordinance permanently prohibiting drilling rendered their lease without any value. The court agreed since the lease was limited to a use that was now illegal. No finding was made on...

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State court affirmation of public rights below the high tide line do not take property without compensation in violation of the 14th amendment

After the Indiana Supreme Court held that private property rights end at the high tide land, giving the public the right to use the wet sand area between the low and high tide lines, see Gunderson v. State, 90 N.E.3d 1171 (Ind. 2018), an owner sued state officials to have that judicial ruling declared to be a taking of property rights without just compensation. But the Seventh Circuit held that the state courts were competent to determine whether...

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Tax foreclosure constitutes a regulatory taking if the city retains proceeds beyond those necessary to pay off the taxes

The Michigan Supreme Court has condemned the practice of keeping all the proceeds of a tax sale of property (done because of failure to pay property taxes) when the city keeps all the proceeds of the sale, even though those are far more than needed to pay the taxes that were due. Rafaeli, LLC v. Oakland County, 2020 Mich. LEXIS 1219 (Mich. 2020)...

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Covid-19 temporary business closures do not effect regulatory takings

Several courts has addressed the question of whether temporary business closure orders to protect the public from Covid-19 constitutes regulatory takings of property. So far, the answer has been “no” as evident in a prominent decision of the Pennsylvania Supreme Court. Friends of DeVito v. Wolf, 227 A.3d 872 (Pa. 2020) (relying on Tahoe-Sierra Pres. Council, Inc....

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No regulatory taking despite temporary flooding since the government’s action avoided more harm than it caused

In Alford v. United States, 961 F.3d 1380 (Fed. Cir. 2020), owners complained that the Army Corps of Engineers took their properties by temporarily flooding a nearby lake, knowing it would damage the plaintiffs’ property but doing so to avoid even greater damage to their property from a breach of the levee that was almost certain to occur if the Corps had not acted and which would have resulted in the complete destruction of plaintiffs’ properties. The Federal Circuit... Read more about No regulatory taking despite temporary flooding since the government’s action avoided more harm than it caused

Federal Circuit finds potential taking of property when federal statutes denied developers the right to prepay mortgages to escape limits on rent increases

The Federal Circuit held that two federal statutes may have effected takings of property without just compensation by preventing owners from exercising contractual rights to prepay government-insured mortgages on their housing projects which would have the effect of terminating government rent restrictions designed to keep the housing affordable by low-income families. ...

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Regulatory takings claim against United States for reservoir design that foreseeably flooded upstream properties after Tropical Storm Harvey

The Court of Federal Claims has held the United States responsible for a regulatory taking because it created reservoirs and dams that it knew, or should have known, would overflow onto neighboring property and did nothing to stop that from happening. In re Upstream Addicks and Barker (Texas) Flood-Control Reservoirs, 2019 WL 6873696 (Fed. Cl...

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