takings

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On June 21, 2019, the Supreme Court, in a decision by Chief Justice John Roberts, chose to overrule a lower Appellate Court and almost a century of precedent which purportedly required property owners whose property is “taken” by state or local government agencies, either through regulation or physical incursion, to go through local and state legal processes before turning to the federal courts for relief under the Fifth Amendment to the United States Constitution.

Under the new ruling in Knick v. Township of Scott, Pennsylvania, 588 U.S. ___ (2019), the court majority (consisting of Roberts, Alito, Gorsuch, Thomas and Kavanaugh) ruled that property owners may bring Fifth Amendment claims for compensation as soon as their property has been taken, “regardless of any post-taking remedies that may be available to the property owner,” citing Jacobs v. United States, 290 U.S. 13, 17 (1933), under state or local law.

The Fifth Amendment to the United States Constitution states categorically “nor shall private property be taken for public use, without just compensation.” The devil, of course, is in the definitions. The Supreme Court has broadened its interpretation of the term “taking” over the years, from “physical occupation of property,” Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419 (1982); to regulation that comes close to physical occupation by conditioning the grant of a government approval upon a relinquishment of some or all of property interest, e.g., an easement, over real property, Nollan v. California Coastal Commission, 483 U.S. 825 (1987); to a regulation that deprives property of all of its economically viable use, Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992).

The dissent, however, chose to agree with the lower court and to rely on precedent purportedly establishing that: “‘[A] Fifth Amendment claim is premature until it is clear that the Government has both taken property and denied just compensation’ (emphasis in original)). If the government has not done both, no constitutional violation has happened.” See, e.g., Horne v. Department of Agriculture, 569 U.S. 513, 525-26 (2013).

Based on the assertion that no taking has occurred if the possibility of compensation still exists, the dissent proceeds to the second question: “At what point has the government denied a property owner just compensation, so as to complete a Fifth Amendment violation?” Knick, supra, 588 U.S. at p. 3. The dissent found the answer in Williamson County Regional Planning Comm’n v. Hamilton Bank of Johnson City, 473 U.S. 172 (1985), in which the court found that the property owner had improperly sued a local planning commission in federal court under 42 U.S.C. § 1983 for an alleged taking, before availing itself of available state law remedies.

The Knick majority firmly rejected the dissent’s position.Continue Reading Supreme Court Lightens Property Owners’ Procedural Burdens in “Taking” Cases

Predictably, Judge John Walter of the Los Angeles Federal District Court summarily dismissed a lawsuit brought by the City of Santa Monica (“Santa Monica”) aimed at closing the Santa Monica Airport, based on, among other things, unconstitutional taking of property without just compensation.  The court’s decision was made on the procedural grounds that, among other things, the lawsuit was brought too late and in the wrong court.

First, the court found that Santa Monica had brought the suit after the applicable 12 year statute of limitations had expired.  28 U.S.C. § 2409(a)(g).  The court’s rationale was that Santa Monica knew as long ago as 1948 that the Federal Aviation Administration (“FAA”) had a residual claim to the property arising from the Deed of Transfer of the federal government’s lease back to the City of Santa Monica.  That residual claim, therefore, required that Santa Monica’s suit be brought no later than the early 1960s. 

In addition, the court found that, even if a claim for unconstitutional taking could be sustained under the applicable statute of limitations, it was improperly brought in the District Court, as the Tucker Act, 28 U.S.C. § 1491(a)(1) vests exclusive subject matter jurisdiction over monetary claims against the federal government exceeding $10,000 with the Court of Federal Claims.  Santa Monica does not, of course, dispute that the value of the airport property that it wishes to recover and use for other purposes exceeds $10,000. 

Although the court chose the procedural route in making its decision, there appear to be relevant substantive grounds as well.
 Continue Reading Judge Blocks City of Santa Monica’s Latest Effort to Close the Santa Monica Airport