Yes, the U.S. Court of Appeals for the Sixth Circuit’s opinion in Banks v. Charter Twp. of Bloomfield, No. 25-1833 (Apr. 28, 2026) is unpublished, and we usually don’t cover unpublished opinions.
But we put aside our usual reluctance to discuss unpublished work because the decision raises an important point: are the rules in “regulatory” takings only applicable when the government has adopted a regulation?
After their land flooded due to broken pipes in a drain easement running beneath their property, Banks and Jackson sued the Township for a physical invasion taking and a regulatory taking. The district court dismissed for failure to state a claim and the Sixth Circuit affirmed.
The court dismissed the physical takings claim which asserted that “the County physically invaded their properties via the flooding in two ways: by undertaking the 2019 road-improvement project in Chestnut Run and by failing to maintain the pipes in the drain easement.” Slip op. at 3. The first theory failed because the invasion must be the intended or foreseeable result of the government action, and the complaint didn’t allege that the defendants “realized or could have foreseen that road improvements would lead to this problem.” Slip op. at 4. There was, at best, an allegation that the defendants were negligent, and negligence isn’t enough for takings liability.
The failure to maintain theory also failed because the pipes are not owned by the defendants under Michigan law. The roads which formed the road project are publicly owned, but there’s no indication that the drain easements are publicly owned.
The court’s handling of the regulatory takings claim was what really piqued our interest, however. The court affirmed dismissal of the claim that government action resulted in a taking because here, there’s no government regulation which the complaint points to which has resulted in a taking: the plaintiffs “fail to point to a land-use restriction burdening their properties. While they have alleged that a Bloomfield official told them that closing the drain under their land would be illegal, they point to no such regulation saying as much[.]” Slip op at 7.
Wait, what? Yes, we call the notion that if some government action other than an exercise of the eminent domain power “goes too far” by intruding into the owner’s property rights, then it is a “regulatory taking,” but that doctrine has never been limited to “land-use” cases, nor to cases where the government is acting pursuant to some regulation.
Whether we label it “takings,” “inverse condemnation,” or “regulatory taking,” these all point to the same thing, don’t they? And as Justice O’Connor reminded in Yee v. City of Escondido, 503 U.S. 519 (1992), there’s a singular takings claim even though there may be several arguments or theories in support of that claim:
Petitioners’ arguments that the ordinance constitutes a taking in two different ways, by physical occupation and by regulation, are not separate claims. They are, rather, separate arguments in support of a single claim—that the ordinance effects an unconstitutional taking.
Id. at 534-535. In other words, labels don’t matter as much as substance. So even though the complaint here did not “point to a land-use restriction burdening their properties,” it should have been enough that some government action resulted a constitutionally intolerable imposition on the plaintiffs’ property rights.
Banks v. Charter Twp. of Bloomfield, No. 25-1833 (6th Cir. Apr. 28, 2026)