Check out, the latest from Professor Timothy Harris, “Revisiting Palazzolo: The Blurry Lines Between Ripeness and Standing that Enable Windfalls,” 73 Kan. L. Rev. 289 (2024). He dives into the question of whether an owner who acquires property already subject to regulations that allegedly work a taking may assert a claim, or does that claim belong only to the prior owner?
Here’s the Abstract:
When property changes hands, the pre-existing right of the seller to bring an inverse condemnation claim against the government does not always pass to a subsequent owner. Sometimes it does. If valid takings claims expire on sale, the government may experience a windfall. But if a buyer gets a deal on burdened property and then sues under a prior owners’ takings claim, the new property owner gets a windfall. Established Supreme Court rules draw distinctions between the character of various “takings” to determine whether a claim survives a transfer of ownership. But the character of these distinctions is blurred (along with the rights of landowners) in Washington, Louisiana, and other states that continue to follow the “subsequent purchaser role” which is inconsistent with the U.S. Supreme Court’s ruling in Palazzolo v. Rhode Island. The determination of who gets the windfall may depend on the narrow distinction of whether a subsequent purchaser’s status turns on the doctrine of “standing” or “ripeness.”
Among other cases, the article analyzes decision by the Washington Supreme Court dismissing a takings claim because the claim belonged to the prior owner of the property. We posted about that case here. Professor Harris writes that “[e]ither the Washington Supreme Court is incredibly sloppy, or it was deliberately attempting to expand the reach of the questionable ‘subsequent purchaser doctrine.'” He has equally critical comments about other courts that adhere to the same analysis.
Professor Harris concludes that “[t]he fact that a claimant purchased property that was subject to a prior regulation should not be an automatic bar to an inverse condemnation claim–as it is under the “subsequent purchaser rule.'”
Worth reading. Definitely check this one out.
