New (Mike Berger) Cert Petition: "This case is the proverbial 'Exhibit A' of much that is wrong [with takings law]."

by Robert Thomas, InverseCondemnation, July 17, 2020

Here's the latest in a case we've been following for what seems like forever. This is also a fact situation that has resulted in litigation in a variety of different fora, and at times has seemed like the final exam question in a Federal Courts law school class. We wrote about this latest phase -- the issues raised by the Ninth Circuit's opinion -- in this article, even.

We won't go into the background of the case, but if you are interested, you can find out more at this post ("What Constitutes a Loss"). The property owner has also summarized the situation thusly:

The State of Hawaii zoned for agricultural use land that it knew was not viable or appropriate for such use. At the property owner’s request, it rezoned it for urban use but, after Plaintiff Bridge Aina Le‘a began developing it, the State illegally (as the Hawaii Supreme Court later held) “reverted” the land to agricultural use. A jury found this to be a 5th Amendment taking under this Court’s standards in both Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992) and Penn Central Transp. Co. v. City of New York, 438 U.S. 104 (1978). The Ninth Circuit reversed, in an opinion which effectively eliminates property owners’ ability to recover for temporary regulatory takings of property[.]

Today, the property owners filed this cert petition, asking the US Supreme Court to take up these Questions Presented:

1. As the Ninth Circuit’s extensive, published ruling eliminates property owners’ ability to recover for temporary property takings under any theory, and that ruling conflicts with decisions of other courts, including this Court, does this Court need to clarify the rules for recovery for temporary regulatory takings?

2. In light of the confusion in the lower courts as to the application of the Penn Central factors — to the point where it has become almost impossible for property owners to prevail on this theory — should this Court reexamine and explain how Penn Central analysis is supposed to be done — or dispensed with?

3. In light of the Ninth Circuit’s holding that almost no value loss — no matter how great — can ever establish a temporary taking under either Lucas or Penn Central, is it necessary for this Court to clarify the standards?

4. In light of Penn Central’s clear direction that cases like this are to be determined ad hoc, on their individual facts, and this Court’s approval in City of Monterey v. Del Monte Dunes, 526 U.S. 687 (1999) that takings liability be decided by a jury, do appellate courts need to stay their hands (as mandated by the 7th Amendment’s Re-examination Clause) when — as here — reviewing jury findings of fact-based takings issues, particularly when the trial judge confirmed those findings?

Counsel of record for the property owners is Michael Berger, who has an enviable track record in Supreme Court advocacy for property owners.

One to watch. Stay tuned, we shall bring you developments as they happen.

PDF: Petition for a Writ of Certiorari, Bridge Aina Lea, LLC v. State of Hawaii Land Use Comm'n, No. ____ (U.S....