Transcript 43d Select Conference on Industry Litigation (Powerpoint)

Damien M. Schiff
Pacific Legal Foundation
 Physical taking (categorical)
 Third-party physical taking (categorical)
 Deprivation of all economically viable use (categorical)
 Regulation has gone “too far”
 Economic impact
 Reasonable investment-backed expectations
 Nature of regulation
 The parcel as a whole
 Background principles
 Public trust doctrine
 Nuisance
 Reasonable and beneficial use
R&J Holding Co. v. Redevelopment Auth.
 Williamson County
 Final decision
 Denial of compensation
 Avoiding preclusive merger
Town of Nags Head v. Toloczko
 Discretion over the remedy, including declaratory
judgments
 Sensitive issues of state law, including land-use
regulation
Banks v. United States
 Six years from date of accrual
 Government-accelerated erosion
 Rule of stabilization
 Substantial encroachment
 Damages are reasonably foreseeable
Estate of Hage v. United States
 Exhausting the permitting process
 The futility exception
 N.B. Williamson County partially irrelevant
 Water rights as usufructuary rights
Casitas Mun. Water Dist. v. United States
 Physical versus regulatory takings
 Public trust, reasonable use, and in-stream uses
 Right to storage versus right to beneficial use
Otay Mesa Props. LP v. United States
 First English Evangelical Lutheran Church versus
Tahoe-Sierra Preservation Council
 Permanent versus temporary easements
 Valuation
 Before and after
 Fair market rental
Ark. Fish & Game Comm’n v. U.S.
 Generally a federal issue
 Permanent or temporary policy?
 What’s wrong with a tort remedy?
Henderson v. City of Columbus
 A form of proximate causation:
 Did the public improvement not function as intended?
 Would the harm had been avoided had it worked?
 Substantial cause and effect relationship (adopting
Sixth District’s holding in CSAA v. City of Palo Alto)
 Strict liability
Mehaffy v. U.S.
 Palazzolo v. Rhode Island
 Reasonable investment-backed expectations
 Reset even within family
 Windfall avoidance
Besaro Mobile Home Park v. San Clemente
 Due process interlude
 The excessive rents/fair return rationale
 Pennell v. City of San Jose: protection of consumer
welfare a legitimate interest supporting price controls
 Pervasively regulated industries
Avenida San Juan P’ship v. Fremont
 Spot zoning
 Degree of economic impact
 Nature of government action
Severance v. Patterson
 Public beach easements
 Rolling easements
 Erosion versus avulsion
 Nollan/Dolan
 Essential nexus
 Rough proportionality
 Real property versus money
 Koontz family sought permit to fill in and develop 3.7
acres of wetlands
 District denied permit when Koontz refused to accede
to condition that he pay for off-site drainage
improvements to District property
 Florida Supreme Court ruled:
 No exaction where a permit is denied outright
 Nollan and Dolan apply only to exactions of real
property
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