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Are takings claims ever not thrown out? I never understood why people even make them with the reception they get.
In this case, the right-of-access taking is one of the two (along with 'nuisance') that didn't get thrown out and is a takings claim, if a weird one, though I don't know how well it would have lasted in a Seattle jury had it not been settled.
For takings per say, the very simple cases -- state grabbed 'real' (aka land) property for public use, no process or procedures, not even a fig leaf of a police purpose -- have decent odds of surviving to trial (or get settled earlier than that), and we just don't hear much about them because they end up depending on facts-of-case matters that usually aren't outrageous even when they're wrong. Or in the case of the federal government, get eaten by the Tucker Act and that's its own mess in a different way.
But most of what you hear about is complicated in some way: either a regulatory taking, or at least claimed to fall under the police purpose exception, or it's not a permanent or whole taking, or it's an item rather than 'real' property. Sometimes the courts have been willing to accept these, a la Koontz; other times, they're pretty much left fallow. Some part of that's just hoping to get lucky. Another part of that's 'only port in a storm', as the takings clause is very nearly the only remotely likely approach to recovering direct removal of property, since property-based due-process and substantive-due-process claims tend to have even worse odds.
The bigger driver's just that they've got much clearer and generally larger damages. How much do you hope to get from a jury over "bad traffic, unsanitary conditions, and loud noises" as a nuisance in Seattle?
Times are a changing. A lot of the issues related to having to bring suit within the state first and then collateral estoppel. My recollection (could be wrong) is that fed judiciary is re thinking that. The current scotus is much more friendly towards takings claims.
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It's Charlie Brown and the football. There's just enough good case law stemming from Lucas and Loretto to make you think that maybe you've got a shot, or maybe the Supreme Court will decide to return to the glory days of the mid 90s and save you from bad precedent. (Hey, it even sometimes works! Cedar Point was a massive win for property rights advocates). There's a small glimmer of hope, so people will keep making the argument and keep getting shot down.
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