Registration is ongoing for the 2017 ALI-CLE Eminent Domain and Land Valuation Litigation Conference. Here's the final brochure with all of the information about the conference. Space is filling up quickly.
So quickly, in fact, that the conference hotel -- the Westin San Diego -- is full. It is completely sold out on the night of January 25, and the ALI-CLE room block for the remainder is already at capacity.
But not to worry, ALI-CLE has locked down other nearby hotels for attendees, all within a short walking distance, at very favorable rates:
- The US Grant, 326 Broadway, San Diego, CA 92101: $219 per night, single or double occupancy. You can reserve in this block HERE.
- Westin San Diego Gaslamp Quarter, 910 Broadway Circle, San Diego, CA 92101: $219 per night, single or double occupancy, PLUS a $20 daily resort charge (which provides free internet access and a $10 food & beverage voucher). You can reserve in this block HERE.
Rooms in both blocks will be held, unless exhausted, until January 4, 2017, at which time they will be released to the general public. Room reservations for either hotel can be made using the web links above or by calling 800-325-3589. Confirmations will be sent by the hotel. Please read the cancellation policy carefully.
So there's no reason for you to not join us. Condemnation 101 attendees, government lawyers, and multiple attendees from the same organization are eligible for discounted tuition. Visit the ALI-CLE registration page for more.
Like the Elizabethan gong farmer -- whose job it was to police up the unpleasant remnants after the "main event" -- the opinion of a court of appeal after a remand from the Supreme Court is often anticlimactic, and other than the parties involved no one really wants to see or hear about it too much.
The California Court of Appeal's recent opinion in Property Reserve, Inc. v. Superior Court, No. C067758A (Dec. 16, 2016), strikes us as one of those. This decision came back to the court after the California Supreme Court's "main event," the opinion which held that a condemnor could in certain circumstances, enter private property in anticipation of an exercise of eminent domain, effect a taking, and not have to adhere to all of California's eminent domain procedures. Except a jury trial, that is. The court "saved" the precondemnation entry statute by rewriting it, and requiring a jury trial even though there is not such requirement in the statute.
On remand, the court of appeal considered the question left hanging: does the property owner have a right during the precondemnation entry process to obtain discovery from the pre-condemnor? The court answered "yes, but."
Discovery is one of those things that a trial judge has discretion to allow but here here, both the eminent domain code and the usual rules in civil cases expressly allow for discovery. Since the Supreme Court held that pre-condemnation entry procedures are kinda-sorta-eminent domain procedures, the usual rules in those civil cases apply. Besides, how are the parties going to conduct the jury trial that the California Supreme Court held the owner is entitled to, if there's no discovery?
The "but" in the "yes, but," however, was that the owners did not show that the trial judge's error prohibiting discovery resulted in prejudice:
The landowners have not made this showing. They do not assert prejudicial error in either their opening brief or their supplemental brief. Consequently, they do not show how they would have received a more favorable outcome in this litigation had the trial court allowed them to conduct their requested discovery.
Slip op. at 14-15. So it sounds like the parties are going to go to trial without discovery after all.
The final section of the opinion details the court's rejection of the owner's indispensable party argument (because it was moot). Not really interesting (bumf, in keeping with this post's theme) and you can read that if you like.
Schliem v. South Dakota, No. 27557 (Dec. 7, 2016) is the third in a series of condemnation cases issued earlier this month by the South Dakota Supreme Court. The first, South Dakota v. Miller, involved impairment of access resulting from a highway project suffered by an owner whose property was taken for the project. The second considered the effect of a quick take.
Schliem came after the jury's verdict in Miller, the first case. The difference here was that the property owners did not have any part of their land taken by the DOT for the project, yet their parcels (13 and 14 above), had, they claimed, lost access from Cliff Avenue. They filed an inverse condemnation claim for the alleged decrease in value of approximately $300,000 due to the changed access. The trial court granted the State summary judgment, concluding that the owners still had alternative access, and that diminished access, standing alone, was not enough as a matter of law to state an inverse claim. In short, the owners lacked a property interest they alleged was taken.
The Supreme Court agreed. It first concluded that the owners' counter to the State's factual allegations -- that the alternatives provided reasonable access to the lots -- did not really challenge the facts. The owners asserted that no "alternative built by the State provides a reasonable replacement access." This, in the court's view, was not enough to raise a factual dispute, but was an opinion about the ultimate question. The court concluded that "reasonable" and "substantial impairment" are questions of law [Barista's note: Really? We thought questions of what is reasonable in the circumstances, or counts as substantial are matters for juries, not judges.]
After blowing by the predicate summary judgment question, the court concluded that the owners didn't possess a property right. They may have been damaged by the loss of access, but they hadn't had any property taken. Nor did the owners suffer loss of assemblage rights, since they didn't have any property actually taken. Assemblage is a valuation concept, and doesn't factor into the question of whether property was taken. Finally, the court rejected the argument that the owner had a right of unimpaired access. Yes, the route was now more circuitous but it was still reasonable:
In this case, the physical characteristics of Schliem’s access routes before and after the Intersection’s closure are nearly identical. Schliem’s property does not abut the Intersection, and the Intersection’s closure did not affect his ability to access 63rd Street in any way. Before the closure, he had to travel approximately 748 feet on 63rd Street—all of which was unimproved, gravel road—before connecting to the general system of public highways. After the closure, he must travel approximately 834 feet on 63rd Street—of which only 534 feet is unimproved, gravel road—to reach the general system of public highways. An increase in circuity of only 86 feet (or about 0.0163 mile) is substantially less than increased circuity held to be noncompensable in other cases.
Slip op. at 16-17.
A single Justice dissented, arguing that there were factual disputes. He would have remanded to apply the access test which the court had articulated that same day in Miller (impairment of access claims are not subject to per se rules, but governed by the unique circumstances of each case).
Here's one we've been waiting for.
In this post ("Sorry Not Sorry? Connecticut Supreme Court Has A Chance To Make Amends For Kelo"), we previewed the arguments and briefs in a case in which the court was considering whether the Transportation Commissioner's power under Connecticut law to take "land, buildings, equipment or facilities" includes bus companies' exclusive state-granted rights to operate bus routes. The bus companies have what amounts to a monopoly under state-granted certificates of public convenience.
In Dattco, Inc. v. Comm'r of Transportation, No. SC19558 (Dec. 27, 2016), the court held that no, the power to take facilities does not include the power to take bus franchises. We recognized in our preview post that this was not a chance for the court to wholly make amends for its Kelo decision because the issues presented are obviously different. But even with that caveat firmly in mind, this case, was in our view, a chance to see whether the court's collective mind on the expansiveness of the power of eminent domain had evolved at all in the decade since Kelo.
So read the opinion -- but be warned, it's all about statutory construction, legislative intent, and the like, as you'd expect (with hardly a mention of the court's most infamous eminent domain decision) -- and you can mine these gems:
- The court rejected the Commissioner's argument that the term "facilities" is "broad enough to encompass the certificates at issue because they do not merely 'promote the ease' of the plaintiffs' business, but in fact, authorize it in the first place." Slip op. at 6. Easing on down the road isn't enough.
- "Indeed, a related statutory scheme demonstrates that, when the legislature intended for a delegation of takings power to allow for the acquisition of a bus company’s operating rights, the legislature granted that power explicitly." Slip op. at 9. When the legislature wants to delegate eminent domain power, it knows how.
- "A delegation of eminent domain power must be clearly given and strictly construed[.]" Slip op. at 10. Sounds about right.
Our thanks to Connecticut colleagues John X. Peloso and Dwight Merriam for the heads up.
Here's what we're reading today:
- From the Los Angeles Times, via Professor Kanner: "Those California raisins may be gone from the airwaves, but they're still making waves in court" - after Horne, what's next for the California raisin industry?
- Remember that case about who owns parts of North Carolina's beaches, set for argument shortly (we filed an amicus brief in the case, by the way)? Well, in this terse order, the N.C. Supreme Court sua sponte (or "ex mero motu" as they call it there) dismissed the appeal, no reason given. Read "NC Supreme Court drops case over beachfront property" for some of the guesses why.
- From Forbes: "Gallup, Zoning Is Reducing American Productivity And Making The Poor Poorer" (Many people are choosing to live in more expensive and smaller spaces, and "the Gallup report lays the real blame squarely on local elected officials and the influence of incumbent homeowners that constrain supply with aggressive zoning.")
- From Professor Richard Epstein: "The Environmental Permit Menace" (his thoughts on NEPA, if you couldn't guess already)
Here's South Dakota v. JB Enterprises, Inc., No. 27176 (Dec. 7, 2016), the second in a series of three recent cases decided by the South Dakota Supreme Court involving a highway renovation project by the SD Department of Transportation. (Here's the first.)
This one involved the DOT's "quick take" power, and what happens when the state first grabs property -- in this case, the right of access -- but then partially changes its mind.
The DOT instituted a quick take of the owner's access rights. But after consultation with federal highway authorities, the scope of the project changed and the state informed the property owner, "There is a very real chance that we won't need any easements or access rights at all from your clients." Slip op. at 4.
Sure enough, that's what happened, and the DOT informed the property owner that it wouldn't be taking an access easement, and asked the owner to stipulate to dismissal of the condemnation action. The owner refused because it believed the quick take vested title in the DOT, and thus it was entitled to have the jury determine compensation, if any. The trial court held that the state had title to the access rights by virtue of the quick take and thus the owner's right to just compensation had vested. But since the DOT had never exercised its rights to close access due to its change of plans, there was no compensation or damage owed as a matter of law.
The Supreme Court reversed, and in a brief holding concluded:
During oral argument, the State claimed that by amending its petition, the State eliminated any actual taking of JBE’s property. It also asserted that it no longer holds title to the property interests described in the declaration of taking. We disagree. The State instituted this quick-take action and, as a result, currently holds title to JBE’s property interests described in the declaration of taking. This includes JBE’s “control of access” and, in some respect, the property interest described as the slope easement. See SDCL 31-19-24 (title to the property interest described in the declaration of taking vested in the State). To conclude otherwise would allow the State to abandon the taking in violation of SDCL 31-19-35 (prohibition against abandoning condemnation proceeding). The circuit court erred when it allowed the State to abandon the condemnation proceeding.
Slip op. at 11.
In a separate opinion, the court also concluded that the DOT could not have abandoned a quick take. Once taken, property can't be untaken. "[O]nce title vests in the State, it is not permitted to reduce or abandon the interest acquired; it is merely permitted to minimize damage to the landowner's remaining property that results from being severed from the property actually taken." Slip op. at 14.
Here's the first in a series of three recent cases decided by the South Dakota Supreme Court involving a highway renovation project by the SD Department of Transportation.
We think to more easily understand the three separate opinions in South Dakota v. Miller, No. 27198 (Dec. 7, 2016), you should read them out of order. Start of page 18, read the bit about whether the DOT's taking of a "small triangular piece of property" on Cliff Avenue resulted in a substantial impairment of access to lots on both sides of 63rd Street, and then go back and start at page 1 and read the court's analysis of whether several lots could be combined to calculate just compensation and damages.
First, access. The owners claimed compensation for impairment of access to Lots 5 through 8, because in the after condition, drivers could no longer use Cliff Avenue and 63rd Street, and in order to reach their property, drivers would need to use a more circuitous route. The Supreme Court held:
Today we clarify that before a landowner may present evidence of and recover for loss resulting from a change in access, the court must first determine that such change amounts to a substantial impairment of access—even when the State coincidentally appropriates some land. If the change in access amounts to substantial impairment and is caused by the physical taking of a landowner’s property, the landowner is entitled to compensation for the substantial impairment of access as an element of severance damages. If the change in access amounts to substantial impairment and is not caused by the State’s actual taking of the landowner’s property, then the landowner must demonstrate that he or she meets the requirements of an inverse-condemnation claimant: the landowner must also prove that the injury is peculiar to the landowner’s property and not of a kind suffered by the public as a whole. In either case, the court’s determination that the change in access amounts to a substantial impairment of access is a prerequisite to obtaining compensation for the change in access. To the extent that Schuler holds otherwise, it is overruled.
Prior to this ruling, South Dakota law did not clearly allow that certain impairments of access were noncompensable, so even though the court reversed and sent the case back down to the trial court, it clarified that these questions are not the enforcement of per se rules, but to be determined on the specific facts of each case. Disappointing for the landowner here perhaps, but not for South Dakota landowners generally.
Second, the larger parcel issue. The court held the trial judge should not have entered judgment as a matter of law in favor of the property owner on the issue of whether separate parcels were considered as a whole in a condemnation case. The court held that the property owner's evidence that a separate lot (Lot 15 on the map above) should be included with Lots 5, 6, 7, and 8 as a single economic unit for purposes of calculating compensation and damages. Lot 15 is next to yet another lot (owned by another) on which a hotel was planned had the highway project not interfered. The owners of Lots 5-8 and 15 planned to develop these lots "in conjunction" with the planned hotel.
The trial court allowed the property owners to present evidence that Lot 15 should be considered, sua sponte prohibited the DOT's expert from testifying otherwise, at the close of evidence determined as a matter of law that Lot 15 was part of the larger parcel, and instructed the jury that its job was to determine compensation for Lots 5, 6, 7, 8, and 15.
The DOT appealed. It didn't challenge the three-part larger parcel test (unity of use, title, and contiguity), just how it was applied. The DOT argued that mere "'hopes to enjoy the benefits of a nearby hotel project do not establish the single, integrated and inseparable use required by our law.' In the State’s view, [the owners] must present specific evidence that the highest and best use of Lot 15 is in a commercial development with Lots 5, 6, 7, and 8. Slip op. at 14.
The Supreme Court agreed with the DOT, concluding that the owners "did not establish that Lot 15 would, in the reasonably near future, be put to its highest and best use in combination with Lots 5-8 for a single unified use. The owners also did not establish that Lot 15 was necessary to the use and enjoyment of Lots 5-8. It was possibility, but not such a certainty that the trial court should have taken the question away from the jury.
The Supreme Court also disapproved of the work "project" in a phrase in the jury instructions, "before and after the project." The court concluded that the more accurate term was "taking."
Posted on December 19, 2016 | Permalink
For alums of the University of Hawaii Law Review, friends of the publication, or just people who like wine, here's something to put on your December calendar.
The Law Review is sponsoring a workshop on December 18, 2016 at 5:30 pm at downtown Honolulu's Hound & Quail. The kicker is that this isn't an academic workshop, but a wine workshop. The cost is $40. Now this is the type of workshop we can get behind. Register on-line here. There are limited spaces, so sign up now.
So come on down, network with your old law school colleagues, and most importantly, support the Law Review.
Posted on December 12, 2016 | Permalink
Do you have "giver's block" about an appropriate present this holiday season for the dirt lawyer in your orbit? Well fear not, here are our modest suggestions for stocking stuffers.
Timothy Sandefur and Christina Sandefur, Cornerstone of Liberty: Property Rights in 21st Century America (2d ed. 2016).
"Published in the wake of the Supreme Court’s landmark decision in Kelo v. New London, Cornerstone of Liberty: Property Rights in 21st Century America made a powerful contribution to the firestorm of interest in protecting property rights. Now in its second edition, Cornerstone of Liberty has been fully updated by authors Timothy and Christina Sandefur, and examines how dozens of new developments in courtrooms and legislatures across the country have shifted the landscape of private property rights since 2005. Through a combination of real-life stories and solid legal analysis, the authors explain how key issues like eminent domain, civil asset forfeiture, and environmental protection regulations have evolved and how they should be reformed. Brand new topics, such as the sharing economy and the Koontz case, are popular, timely, and addressed by the authors in this revised edition. This book shows why the right to ownership is one of the most essential of human rights, how that right is protected in the U.S. Constitution, and how ordinary property owners can help rein in government violations of private property rights."
* * * *
Ilya Somin, The Grasping Hand: Kelo v. City of New London and the Limits of Eminent Domain (2015).
We recommended this one last year, and now that it is available in softcover, there's no excuse not to gift it if you haven't already.
"By dint of his uncommon thoroughness, Somin has become the leading and most persuasive critic of the Supreme Court’s ill-fated Kelo decision. His close examination of the case’s factual backdrop offers chilling confirmation of his central thesis: weak constitutional protection of property rights opens the door to political intrigue that exacts its greatest toll on the poor and vulnerable in society. Somin’s gripping account confirms your worst fears about big government." - Richard Epstein.
* * * *
Erwin G. Gudde, California Place Names: The Origin and Etymology of Current Geographical Names (4th ed. 2010).
A fascinating title, equally good for lovers of geography and etymology. Even non-Californians will appreciate this one, for their next trip west.
"What’s in a name? Sometimes rich history and intriguing stories. The 40th-anniversary edition of California Place Names animates many local geographic names we take for granted. Like Golden Gate, named Chrysopylae (Greek for golden gate) in 1846 by explorer John C. Fremont, who envisioned its future commercial importance. Or Menlo Park, named after the ranches of two brothers-in-law from Menlough, Ireland, whose arched entrance gate inscribed “Menlo Park” stood from 1854 until a wayward car destroyed it in 1922. Or Contra Costa County, from the Spanish term referring to the “coast opposite” San Francisco. In 1853, that name became less appropriate when most of the county’s coastal section was incorporated into Alameda County. The book is also a fun companion for trips to other parts of the state. In the late 1800s, residents of Groveland (near Yosemite) chose that peaceful name to replace the original, Garrote, which commemorated a hanging in their town." - Sue Rosenthal, Bay Nature.
* * * *
Charles Nordhoff, Northern California, Oregon, and the Sandwich Islands (1874).
Originally published by Charles Nordhoff in the nineteenth century when California, Oregon, and Hawaii were still beyond the frontier, this travelogue can be Victorian-era stuffy, but that's part of its charm. It is also remarkably and somewhat surprisingly critical of the way things were in those days.
A snapshot in time about places you may know well.
"Poi is a paste made of the tuberous root of the kalo (Colocasia antiquorum, var. esculenta, Schott.). More than thirty varieties of kalo are cultivated on the Hawaiian Islands, most of them requiring a marshy soil, but a few will grow in the dry earth of the mountains. The tubers of all the kinds are acrid, except one, which is so mild that it may be eaten raw. After it is freed from acridity by baking, the kalo is pounded until reduced to a kind of paste which is eaten cold, under the name of poi. It is the principal food of the natives, with whom it takes t ;the flowers (spathe and spadix), cooked in the leaves of the cordyline (C. terminalis, H.B.K.), form a most delicious dish. It is not only as poi that the tubers are eaten; they are sliced and fried like potatoes, or baked whole upon hot stones. It is in this last form that I have eaten them in my expeditions. A tuber which I carried in my pocket has often been my only provision for the day.
If you really want to splurge, get an original edition.
* * * *
Steven Lubet, Murder in Tombstone: The Forgotten Trial of Wyatt Earp (2004).
Not specifically for dirt lawyers, but law dogs will still appreciate this account of the gunfight at the OK Corral and its surprisingly legal foundations and aftermath.
"In Murder in Tombstone, Steven Lubet, a law professor at Northwestern University, concentrates on the immediate legal proceedings after the gunfight. After a coroner’s inquest proved inconclusive, Ike Clanton, one of the gunfight’s instigators who, unarmed, fled shortly after the shooting started, filed first-degree murder charges against the Earps and Holliday. What followed over the next month was a legal courtroom thriller–call it Perry Mason Meets Gunsmoke. “We tell ourselves that trials are about truth,” Lubet writes, “but they are also very much about clarity. The most convincing case wins, not necessarily the truer one.”" - Historynet.com.
* * * *
Rebecca Solnit, Infinite City: A San Francisco Atlas (2010).
Dirt lawyers love maps, and this book is a collection of maps that map out things other than pure geography and political boundaries.
"What makes a place? Infinite City, Rebecca Solnit’s brilliant reinvention of the traditional atlas, searches out the answer by examining the many layers of meaning in one place, the San Francisco Bay Area. Aided by artists, writers, cartographers, and twenty-two gorgeous color maps, each of which illuminates the city and its surroundings as experienced by different inhabitants, Solnit takes us on a tour that will forever change the way we think about place. She explores the area thematically—connecting, for example, Eadweard Muybridge’s foundation of motion-picture technology with Alfred Hitchcock’s filming of Vertigo. Across an urban grid of just seven by seven miles, she finds seemingly unlimited landmarks and treasures—butterfly habitats, queer sites, murders, World War II shipyards, blues clubs, Zen Buddhist centers. She roams the political terrain, both progressive and conservative, and details the cultural geographies of the Mission District, the culture wars of the Fillmore, the South of Market world being devoured by redevelopment, and much, much more. Breathtakingly original, this atlas of the imagination invites us to search out the layers of San Francisco that carry meaning for us—or to discover our own infinite city, be it Cleveland, Toulouse, or Shanghai."
* * * *
Norman E. Matteoni, Prairie Man: The Struggle between Sitting Bull and Indian Agent James McLaughlin (2016).
If the name of this author sounds familiar, it should be: Norm Matteoni is one of the deans of the California eminent domain bar, and author of the celebrated practice manual Condemnation Practice in California. Prairie Man isn't about condemnation or law, but the history of the American West.
"One week after the infamous June 1876 Battle of the Little Big Horn, when news of the defeat of General George Armstrong Custer and his 7th Cavalry troops reached the American public, Sitting Bull became the most wanted hostile Indian in America. He had resisted the United States’ intrusions into Lakota prairie land for years, refused to sign treaties, and called for a gathering of tribes at Little Big Horn. He epitomized resistance.
Sitting Bull’s role at Little Big Horn has been the subject of hundreds of historical works, but while Sitting Bull was in fact present, he did not engage in the battle. The conflict with Custer was a benchmark to the subsequent events. There are other battles than those of war, and the conflict between Sitting Bull and Indian Agent James McLaughlin was one of those battles. Theirs was a fight over the hearts and minds of the Lakota. U.S. Government policy toward Native Americans after Little Big Horn was to give them a makeover as Americans after finally and firmly displacing them from their lands. They were to be reconstituted as Christian, civilized and made farmers. Sitting Bull, when forced to accept reservation life, understood who was in control, but his view of reservation life was very different from that of the Indian Bureau and its agents. His people’s birth right was their native heritage and culture. Although redrawn by the Government, he believed that the prairie land still held a special meaning of place for the Lakota. Those in power dictated a contrary view – with the closing of the frontier, the Indian was challenged to accept the white road or vanish, in the case of the Lakota, that position was given personification in the form of Agent James McLaughlin. This book explores the story within their conflict and offers new perspectives and insights."
* * * *
We're not all books. Here's one that every condemnation lawyer should love: wines from Oregon's Eminent Domaine vintner. (Our thanks to colleague Joe Currie for the heads up on this one.)
"The name, Eminent Domaine, is a reflection of our experience with the legal term, eminent domain, our dedication to the Oregon wine industry and our love of the wines produced in our region.
In 2002 the City of Portland cited eminent domain as reason for claiming an office building we owned downtown. We began negotiations, as we agreed with the intent of the law, which states that the property would be used for the public good in exchange for a price based on fair market value. However, when both qualifiers came into question, a lengthy legal process ensued. Despite having a more favorable outcome from arbitration, the compensation was low and the property was used for undisclosed purposes.
Having been brought up on a small farm in Hillsboro Oregon, Jeff Meader always wanted to go back to the land. Already entrenched in Oregon’s wine industry and looking to the future, it was a natural progression to re-invest in a small piece of land in the coveted Ribbon Ridge AVA. In 2009, we set about planting the 7-acre parcel with selected Pinot Noir clones and harvested our first estate fruit in 2011."
What is is about the U.S. Supreme Court's decision in Palazzolo v. Rhode Island, 533 U.S. 601 (2001), that so many lower courts just don't get?
We've read the opinion (multiple times, we assure you), and it seems straightforward enough to us: acquisition of land after the time the government imposes an allegedly restrictive regulation does not deprive the owner of the ability to challenge the restrictive regulation as a taking. The Court held that prohibiting the a takings challenge would result in a "windfall" to the government, allowing the state to "shape and define property rights and reasonable investment-backed expectations." Id. at 626. Thus, because the state cannot "put an expiration date on the Takings Clause," the Court held that "[f]uture generations, too, have a right to challenge unreasonable limitations on the use and value of land." Id. at 627.
Well the message isn't quite getting through to New York's Second Appellate Department (doink-doink). In Monroe Equities, LLC v. State of New York, No. 2016-00095 (Dec. 7, 2016), the court attempted to distinguish Palazzolo in a case in which the State Department of Health's watershed regulations prohibit installation of a septic system on the plaintiff's residentially-zoned land. Without a sewage system, the local government cannot subdivide the land.
The owner alleged a Lucas total wipeout taking. The Court of Claims rejected the owner's motion for summary judgment on liability, and instead (after the court's own research) dismissed the case because the offending watershed regulations had been adopted 85 years before the plaintiff purchased the property in 2005. Thus, the regulations were a Lucas "background principle" and the owner never owned the right to use the land to install a sewage system.
The Appellate Division affirmed, concluding that "the right to install a septic system was never part of the 'bundle of rights' the claimant acquired with title to the property and the claimant cannot succeed on its takings claim." Slip op. at 3. The opinion relied on two New York cases to support that conclusion, Soon Duck Kim v. City of New York, 90 N.Y.2d 1 (1997), and Gazza v. New York State Dep't of Envtl. Conservation, 89 N.Y.2d 603 (1997). But as Professor Steven Eagle has written (see here and here, for example), it is unlikely that these rulings survived the U.S. Supreme Court's Palazzolo ruling four years later.
Not to be deterred, the Appellate Division tried to distinguish that case:
Contrary to the claimant’s contention, the United States Supreme Court’s decision in Palazzolo v Rhode Island (533 US 606) does not compel a contrary result. In Palazzolo, the Supreme Court declined to adopt a blanket rule that purchasers with notice have no compensation right when a claim becomes ripe and it expressly stated that a regulatory takings claim “is not barred by the mere fact that title was acquired after the effective date of the state-imposed restriction” (id. at 609). Nevertheless, the Court emphasized that it had “no occasion to consider the precise circumstances when a legislative enactment can be deemed a background principle of state law or whether those circumstances are present here. It suffices to say that a regulation that otherwise would be unconstitutional absent compensation is not transformed into a background principle of the State’s law by mere virtue of the passage of title” (id. at 629-630). Resolution of the instant claim does not rely upon application of a blanket rule. As discussed above, the record establishes that the right to install a septic system was never part of the bundle of rights acquired by the claimant.
Slip op. at 3-4.
Sorry, we don't get it. Palazzolo held that the mere passage of time and title doesn't mean a regulation is a background principle. But here, the Appellate Division held that the mere passage of title and 85 years meant that the watershed regulations were a background principle. How is that not "relying on a blanket rule" as the opinion claims to not be doing? The "as discussed above" to which the court was referring was this bit:
The claimant acquired title to the subject parcel of land in 2005, 85 years after the watershed regulations first went into effect. Furthermore, in opposition to the claimant’s motion, the defendant submitted evidence that the claimant’s parcel was once joined with abutting lands that were split into separate parcels in 1989. Thus, the right to install a septic system was never part of the “bundle of rights” the claimant acquired with title to the property and the claimant cannot succeed on its takings claim.
Slip op. at 3.
This issue isn't going away. Other courts treat Palazzolo with the same (lack of) respect, paying lip service to the passage-of-title rule, but essentially ignoring it. One of these days, the Supreme Court is going to take this issue up, even if it is only to announce a rule that we thought it announced long ago.
Our thanks to our New York colleague Daniel Lehmann (follow him on Twitter here, and ping him on LinkedIn here) for the heads-up on this decision, and keying us in to Professor Eagle's takedown of Kim and Gazza. Thanks also for sending the briefs along, in case any of you want more on the facts and arguments, since the Appellate Division's opinion is, like many of New York's court's opinions, very short:
When an opinion starts off like this, you just want to read the rest, even if the substance of the decision is about statutes of limitations:
This case arises from Mr. Abbas’s complaint against the United States (“U.S.” or “the Government”) in the Court of Federal Claims for an alleged taking of his property rights in certain pre-World War II German bonds. Mr. Abbas alleges that a series of post-World War II treaties between the U.S. and Germany pertaining to the handling of these bonds effected a regulatory taking without compensation of his right to enforce the bonds against Germany in U.S. courts, in violation of the United States Constitutional requirement that “private property [shall not] be taken for public use, without just compensation.” U.S. Const. amend. V.
Abbas v, United States, No.16-1342, slip op. at 2 (Dec. 6, 2016). Read the opinion for the fascinating story behind how WWII itself and post-war laws prevented payment on the bonds, how the bonds ended up on the hands of the plaintiff, and how he sued the United States in 2015 in the Court of Federal Claims, "claiming that the 1953 Treaty caused a taking by the U.S. of Mr. Abbas's property rights" by wiping out his claim against Germany for payment. Slip op. at 6.
Any fact pattern that starts after World War I and is based on a 1953 treaty should set off the statute of limitations alarm bells, and sure enough, the CFC found the claims untimely. The takings claim accrued when the U.S. entered the allegedly confiscatory treaty.
The Federal Circuit agreed, holding that the six year statute of limitations expired long ago. The property interest the plaintiff alleged was taken was his right to sue Germany for payment of the bonds, a right thwarted when the U.S.entered the 1953 treaty. So he had until 1959. The court rejected his argument that the claim didn't accrue until 2010, "when Germany finished paying settling holders of validated bonds." Slip op. at 9. Until then, we suppose, the argument was that Germany might have paid bondholders like the plaintiff. But that argument "erroneously conflates the takings claims against the [U.S.] and default claims against Germans. Slip op. at 9.
End of story for the plaintiff, but what a story the backstory must be.
Registration is now open for the 2017 Hawaii Land Use Conference, presented by the Hawaii State Bar Association and the University of Hawaii Law School, at the downtown Honolulu YWCA's Fuller Hall on January 19-20, 2017. "This 2 day conference is a must attend for any attorney or professional whose practice involves land use and development," as the registration web site says (we agree).
Topics include the latest in Transit-Oriented Development, the Thirty Meter Telescope, GMO (including the recent rulings from the Ninth Circuit), and the topic we'll be presenting, "Takings: Regulatory and Physical."
The final agenda has not yet been released, but if experience is any guide, Planning Chair Professor David Callies will put together two days of timely topics, presented by distinguished faculty.
And the cost can't be beat: $200 for members of the Real Property and Financial Services Section and government lawyers, $300 for other HSBA members, and $325 for everyone else.
Members of the HSBA can register on line, while others need to do so on paper here or below.
We'll post more when the agenda and faculty list is finalized. In the meantime, reserve your space, because this conference is only held once every two years, and as a consequence, the room fills up quickly.
Posted on December 6, 2016 in ▪ Administrative law, ▪ Agriculture, ▪ Eminent Domain | Condemnation, ▪ Environmental law, ▪ Inverse condemnation, ▪ Land use law, ▪ Municipal & Local Govt law, ▪ Rail, ▪ Regulatory takings, ▪ Seminars, ▪ Shoreline | CZMA, ▪ Water rights | Public trust, ▪ Zoning & Planning | Permalink | 0 Comments
We've had bridges on our minds lately. Plus, we've been meaning to post the Nebraska Supreme Court's opinion in Strode v. City of Ashland, No. S-15-956 (Oct. 28, 2016) for a while, and it is coincidentally about a bridge. So the title to this post came to us quickly, and naturally. But writing up the case didn't.
But while we dawdled, Dean Patty Salkin wrote the case up on her blog, Law of the Land. Which has now saved us the effort of writing the case up in its entirety, and we suggest you start by reading her post for the background and the court's ruling.
The case involved two inverse condemnation claims brought by husband and wife property owners, asserting the City's zoning regulations worked a taking of their land in two ways. They first that the regulations prohibited their use of the land for their fencing manufacturing business. They also asserted that a load limit on a nearby bridge -- the main access route to the parcel -- effectively cut off the land because it meant heavy loads couldn't reach them directly.
The court held that they waited too long on the first claim. Nebraska has a ten-year statute of limitations for inverse claims, but even that lengthy time window wasn't met, because they knew way back in 2003 of the limitations the zoning regulations put on their land when the City told them their use was illegal.
As for the bridge claim, the court held they didn't show enough to get around Penn Central's requirement that the property lose substantially all value:
The regulation prevents the Strodes from transporting their goods across the bridge in semitrailer trucks that exceed 14 tons. But the Strodes can use the railroad underpass for semitrailer trucks that exceed the 14-ton weight limit. Randy contends that this is not an adequate alternative, because the height of the railroad underpass is 11 feet 3 inches, and when he transports bulk amounts from his business, the semitrailer trucks usually reach 13 feet 6 inches. Randy testified that when he transports his fencing in smaller loads, he can use smaller trucks. The load limit on the bridge restricts Randy to using either semitrailer trucks that weigh less for access across the bridge or trucks of a limited height for access through the railroad underpass. This may be a “more roundabout way” to perform his business, in which he incurs some damages, but it does not constitute an injury different in kind than the general public, only different in terms of degree.
The Strodes have failed to present any evidence that the weight limit of the bridge decreases the economic value of the property. Randy testified that it cost two to three times more to transport steel in smaller loads rather than in bulk, but he did not conduct any analyses to either substantiate this claim or determine how the property has diminished in value by the weight limits on the bridge.
Slip op. at 65-66.
We don't usually post unpublished opinions, but the Fourth Circuit's recent decision in Clayland Farm Enterprises, LLC v. Talbot County, No. 15-1755 (Dec. 2, 2016), raised some issues worth your time.
The property owner brought its claim in Maryland state court claiming, among other things, that the County's two indefinite moratoria on development and sewer availability -- which prohibited owners from seeking or obtaining County subdivision -- was a facial taking. The lawsuit asserted "the moratorium is facially unconstitutional," although it's not clear from the majority opinion what remedy the complaint sought.
The County removed the case to federal court and moved to dismiss. The district court granted the motion, because "[i]t is beyond the province and competence of this court to make zoning decisions[.]"
The Fourth Circuit reversed. "Count I is a facial challenge to the moratoriums and is thus clearly ripe." Slip op. at 7. Because a facial challenge is one that claims that the very adoption of the law results in a constitutional violation, the takings claim was ripe. "When an ordinance on its face is alleged to have effected a taking, as in Count I, the claim accrues when the ordinance interferes in a clear, concrete fashion with the property's primary use." Slip op. at 7. "Clayland Farm suffered concrete and certain injury as soon as the moratoriums were enacted; the ordinances prohibit Clayland Farm from subdividing more than one additional lot from its property and from developing more than one dwelling unit on the lot, which had previously been allowed." Slip op. at 8.
The court also held that the procedural due process, § 1983, and state law claims were also ripe. In other words, a big win for the property owner.
But it was not without dissent. One judge agreed with all but the takings claim, which he argued was not ripe because the remedy which the complaint seeks is just compensation, and Williamson County require the plaintiff to seek that remedy in state court. The dissent argued that "a facial taking claim seeking just compensation for a valid taking -- as opposed to a facial claim challenging the validity of a taking -- is [not] excused from the exhaustion requirement." Slip op at 13 (Floyd, J., dissenting) (emphasis original). Since the plaintiff here sought just compensation, its claim was not ripe in federal court.
But this argument overlooks the fact that the plaintiff did bring the case in state court, and it was the County which removed the case to federal court and then moved to dismiss for lack of ripeness. See slip op. at 6. See also Sansotta v. Town of Nags Head, 724 F.3d 533, (4th Cir. 2013). Addressing that "waiver" issue, the dissent argued that "[t]he complaint in this case, however, falls outside the scope of Sansotta's waiver reasoning. It alleges no state inverse condemnation claim, and is thus not the type of joint suit authorized by San Remo."
Whereas the plaintiff in Sansotta alleged a state inverse condemnation claim that could have obviated the need for a court (federal or state) to reach its federal just compensation claim, Clayland Farm failed to do so. Thus, Clayland Farm’s federal just compensation claim is just as unripe in federal court as it was in state court, and so Clayland Farm should not be entitled to a waiver defense.
Dissent at 16. Judge Floyd, however, agreed with the majority that Count I would be ripe cast as a public use challenge. Id. at 16 ("I agree with the majority that the alternative claim in Count I -- a public use claim contesting the alleged taking's facial validity -- is ripe."). No amount of state compensation can "cure" the lack of a public use, so property owners can bring their claims in federal court.
This is an unpublished opinion and dissent, so we're not going to spend a lot of time to try and wrap our heads around the dissenting judge's analysis, but suffice it to say this:
If any of you all have other thoughts, send them our way.
- When the government removes the case to federal court, it shouldn't get any traction with an argument based on the notion that the claim should not have been brought in federal court and thus isn't ripe -- the law may be an ass sometimes, but it's not so nuts as to accept an argument that would make Leo Rosten blush.
- We thought in San Remo, the Supreme Court effectively held that the elements of a state and a federal takings claim were the same (hence, issue preclusion prevents "relitigation" of losing state takings claims later in federal court), not that there's some kind of "joint suit" requirement that a takings plaintiff assert both claims in state court.
Here's what we're reading today:
- Raisin redux: "Uncle Sam took this farmer's raisins, and now he wants his money." No, this isn't the third time for the Horne case, but a new case seeking just comp in the Court of Federal Claims. Read the story from McClatchy. We'll post the CFC's opinion in a separate post.
- Oyster redux: remember that case about the San Francisco Bay Area oyster farm in the National Park? Here's the latest, and update after the feds shut the farm down. "Two years after shutdown, California oyster farm remains a community hot-button."
- "City Gets Authority to Condemn Private Kakaako Streets." From Honolulu Civil Beat, about the latest efforts to clean up a problem of ownership of some downtown Honolulu streets. Now, eminent domain?
- "NE Supreme Court Holds Load Limit on Bridge to Property Did Not Constitute a Regulatory Taking." From Dean Patty Salkin's Law of the Land Blog. We'll post this opinion in a separate post also.
- "Should property rights to taken seriously?" A blog post by Pacific Legal Foundation's Jonathan Wood about a libertarian approach to environment and species protection.
After the recent Brigham-Kanner Property Rights Conference in the Netherlands (very appropriate, as it was the home of the Dutch lawyer and property rights guy Hugo Grotius), we had the opportunity to visit one of that country's notable museums, where we came across this odd piece, a somewhat worn and nondescript wooden chest.
Upon closer inspection, it turns out that this might be the box in which Grotius stored his law books while he was in prison for life.
Turns out that it also might be the box in which he escaped from said imprisonment. We say "might be" because there are other boxes which lay claim to being "the" box.
No matter, because even if this box is only one "long thought to be the one from this famous story" and not the actual box, in our view, we're still now only one degree of separation, or at most two, from Mr. Grotius and his famous escape.
The story is that he requested the chest from his jailers to store his law books. He got in the box, was covered up with some books, then carried past the unsuspecting guards. (Although we suspect the guards were not as "unsuspecting" as they let on.)
Who said law books are obsolete? Try doing that on Westlaw.
(Prison Administration 101: if a convict requests a "man-sized chest" for his books ... you may not want to take it at face value.)
Every year, our partners Greg Kugle and Mark M. Murakami update the Hawaii State Bar Associations Real Property Section on the latest decisions and issues in Hawaii and national land use law. The week before last, they did their thing, and the HSBA kindly recorded it for those of you who couldn't be there.
Well worth watching or listening.
Posted on November 30, 2016 in ▪ Administrative law, ▪ Agriculture, ▪ Appellate law, ▪ Eminent Domain | Condemnation, ▪ Environmental law, ▪ Inverse condemnation, ▪ Land use law, ▪ Municipal & Local Govt law, ▪ Regulatory takings, ▪ Seminars, ▪ Shoreline | CZMA, ▪ Vested rights, ▪ Water rights | Public trust, ▪ Zoning & Planning | Permalink | 0 Comments
After a short absence and a change of lead sponsor (from ALI-CLE, to the American Bar Association's Section of State and Local Government Law), the Land Use Institute is back on.
Download the print brochure here, or visit the LUI web site for more. It will be held February 1-2, 2017, in Miami, Florida, at the Brickell City Centre's Akerman Conference Center, in conjunction with the ABA's Midyear Meeting. One of the best aspects of this program is the registration fee, a mere $300, $250 if you are a judge, an academic, young lawyer, or government attorney (perhaps the best deal in CLE). Register on line here. For those who cannot attend in-person, the LUI will be live-streamed. Register here.
Planning Chairs Frank Schnidman and Dean Patrica Salkin have assembled a very good faculty and program. Topics include: "Nuts and Bolts of Land Use Practice: Vested Rights and Regulatory Takings: Where Are We Now?," "Public-Private Partnerships," "Climate Change and Resilient Development," "Client Representation: Developer, Government and Citizen Groups," "Regulating Navigable Airspace: The Drones Are Here," "Housing Supply and Affordability: Planning Alternatives and Legal Consequences," and "Community Benefits Agreements, Environmental Justice and Access to Housing." The Annual Richard Babcock Keynote Address will be by Deborah Rosenthal, "From the Ground Up: Unshared Assumptions in Law and Planning." Complete agenda here.
We'll be speaking on the Vested Rights panel, along with Professor Steven Eagle, Amy Boulris, and Howard Roston.
The faculty list is impressive; all national experts in land use law: Lisa M. Agrimonti, Fredrikson & Byron, P.A., Minneapolis, MN; Cecily T. Barclay, Perkins Coie, LLP, San Francisco, CA; Amy Boulris, Gunster, Miami, FL; Frederick K. Brewington, Hempstead, NY; Mary T. Cagel, Inspector General, Miami-Dade County, Miami, FL; David Callies, Benjamin A. Kudo Professor of Law, University of Hawaii at Manoa, William S. Richardson School of Law, Honolulu, HI; Nadia L. Costa, Miller Starr Regalia, Walnut Creek, CA; Steven J. Eagle, Professor, George Mason University School of Law, Arlington, VA; W. Andrew Gowder, Jr. Austen & Gowder, Charleston, SC; The Honorable Keon Hardemon, Commissioner, District 5, Miami, FL; Neisen Kasdin, Akerman, LLP, Miami, FL; Wendie L. Kellington, Lake Oswego, OR; Victor Marquez, The Marquez Law Group, San Francisco, CA; Dwight Merriam, Robinson + Cole, Hartford, CT; James F. Murley, Chief Resilience Officer, Miami-Dade County, Miami, FL; Ellen F. Rosenblum, Oregon Attorney General, Salem, OR; Deborah Rosenthal, FitzGerald Yap Kreditor, LLP, Irvine, CA; Howard Roston, Fredrikson & Byron, P.A., Minneapolis, MN; Katherine Fernandez Rundle, State Attorney, Miami-Dade County, Miami, FL; Julie A. Tappendorf, Ancel Glink, P.C., Chicago, IL; Benjamin F. Wilson, Beveridge & Diamond, Washington, D.C.; and Steven W. Zelkowitz, Gray/Robinson, Miami, FL. More on the faculty here.
Miami is pretty nice in February, we hear. Come join us.
Remember that decision by the Hawaii Intermediate Court of Appeals that we posted a few months ago, after the Hawaii Supreme Court granted discretionary review? The case involved a question of how appeals are brought and filed in cases challenging a voter's registration. In Hyland v. Gonzales, the ICA held that an appellant who was challenging another voter's registration did not timely "file" his appeal, because he mailed it after the ten day statutory limitations period, and did not ensure it was delivered in that window.
When we posted that case here, we didn't have a dog in the hunt. But later, we were asked by the Hawaii Pro Bono Appellate Project to represent the losing appellant, now that the Supreme Court had agreed to hear the case. We signed on and asked the court for supplemental briefing and oral argument. The court agreed, and today, we filed our Supplemental Brief, which argues:
Petitioner, a resident of the island of Hawaii, timely brought his appeal to the Board of Registration by mailing it on Tuesday, October 14, 2014. This brief supplements Petitioner’s Application for Writ of Certiorari with three arguments:
- Personal service, or registered mail. The statute required the Clerk to serve his decision on Petitioner personally or by registered mail. Haw. Rev. Stat. § 11-26(b) (“Service of the decision shall be made personally or by registered mail[.]”). The Clerk mailed his decision to Petitioner on October 2, 2014, but did not do so by registered mail. Instead, he chose to send it “by the standard United States Postal Service.” ICA Op. at 2 n.2. There is nothing presently in the record to show when Petitioner was personally served. Before dismissing Petitioner’s appeal for missing the statute’s ten day deadline, the Board and the ICA should have required the Clerk to satisfy his burden to introduce evidence of when the ten day period began (the day he “serv[ed] . . . personally” Petitioner with his decision). In the absence of such evidence, the Board and the ICA could not have concluded Petitioner’s appeal was untimely brought or filed.
- Mailed = brought. Even if the Clerk opened the window by serving his decision on October 2, 2014, Petitioner timely brought his appeal because he mailed it to the Office of Elections on Oahu on Tuesday, October 14, 2014, twelve days later. Section 11-26(b), when read in context of the entire statutory scheme of voter registration demonstrates that an appeal is “brought” and the case perfected, when the appellant mails the notice, even if it tales additional days for delivery. Emphasizing that point, the Office of Elections advised Petitioner that his appeal should be mailed to its Oahu address, and did not inform him he must ensure delivery to the Board within the appeal window. If the appeal window began when the Clerk mailed the decision, and not when received by Petitioner it should likewise have ended on the day Petitioner mailed his appeal, not when the Board received it.
- Equal protection and due process. Finally, if the statute is read as requiring delivery within ten days, it could not be applied to Petitioner because doing so would trigger two constitutional problems: (a) there is no rational basis for Oahu challengers to have the full ten days, but their neighbor island counterparts who rely on the mail less time; and (b) the Clerk failed to inform Petitioner that mailing within the ten day limitations period would not perfect his appeal.
The ICA, however—interpreting the term “filed” in the Office of Elections’ regulations (and not the term “brought” in the statute itself)—concluded that mailing within the statute’s time limit wasn’t sufficient, because timeliness is measured from the date of delivery to the Board. The ICA held that Monday, October 13, 2014 was the deadline for receipt. But that rationale deprived Petitioner of the full statutory appeal period, because Monday was Columbus Day and the postal service did not deliver mail. This means the ICA’s actual deadline for receipt was Friday, October 10, 2014. To ensure the Board received his appeal by that date, Petitioner needed to have mailed it by Wednesday, October 8, 2014.
The ICA’s opinion and judgment should be vacated, and this case remanded to the Board for a decision on the merits of Petitioner’s appeal.
 Section 11-26(b) required that an appeal be “brought” within ten days of service, and section 1-29 added two extra days because the tenth day was a Sunday. The following day was Columbus Day, a holiday when post offices were closed and there was no mail delivery.
 ICA Op. at 5-6 (“Thus, in order for Appellants’ appeal to be timely, Appellants were required to deliver their Appeal Letter to the Board within ten days of when the County Clerk properly mailed his adverse decision to them.”) (emphasis added) (footnote omitted).
The court permitted all parties to file supplemental briefs, and if any others do so, we'll post them here. Oral arguments in the case are set for January 19, 2017.
There's been a few decisions recently about entry to private property in anticipation of condemnation, the most prominent being a ruling from the California Supreme Court that entries which exceed relatively minor inconveniences are takings; the court "reformed" the entry statute to import some of the protections of the eminent domain process, but otherwise gave condemnors a lot of leeway. Also, pipline cases around the country have thrust the ability of potential condemnors to come onto property into the public eye.
This opinion from the Supreme Court of Appeals of West Virginia is the latest on that topic. The court held that a precondemnation entry by a pipeline company to do a survey would not be for a public use, and thus the pipeline company did not have the power of eminent domain. Under West Virginia law, a private company may exercise the power only when the taking would be for a public use. The court rejected the pipeline's argument that it didn't need to show the (eventual) taking would be for a public use now, because they were only at the survey stage.
The court tracked the history of public use in West Virginia, and held that because the pipeline would not benefit West Virginia customers, it wasn't for public use:
MVP has been unable to identify even a single West Virginia consumer, or a West Virginia natural gas producer who is not affiliated with MVP, who will derive a benefit from MVP’s pipeline. As noted above, the circuit court expressly found that MVP “is not regulated as a utility by any West Virginia agency.”8 MVP is a private company seeking to survey property for the ultimate purpose of exercising the right of eminent domain.
Slip op. at 22-23.
An opinion well worth reading in its entirety (along with the concurring and dissenting opinons). More here on the decision also.
Here's the follow up to that cert petition we recently posted. In Romanoff v. United States, 815 F.3d 809 (Fed. Cir. 2016), a rails-to-trails case, the Federal Circuit was confronted with a question about how New York property law treated an easement. In that case, the easement was granted for railroad purposes, and after the railroad stopped using it, the City of New York converted it into a public recreational park, the vaunted "Highline."
Of course, no one bothered to pay the owner of the reversionary interest just compensation as the Fifth Amendment requires, so it was forced to bring a claim in the Court of Federal Claims to recover compensation. That court, affirmed by the Federal Circuit, concluded that the reversionary owner owned nothing, because the easement its predecessor had granted wasn't really for railroad purposes, but allowed the grantee to do anything with the property that it desired.
The idea that an easement (a limited interest in property) could be read by a federal court to allow virtually any use, was not only offensive to New York law, but property law pretty much anywhere. So the owner asked the federal courts to certify the question of state law to state courts. The Federal Circuit refused to do so, and in essence took its best guess about what New York law said about these easements.
That's the basis of the cert petition, and the amici brief we filed today in support. The list of amici is pretty impressive: our own Owners' Counsel of America, the NFIB Small Business Legal Center, the Cato Institute, lawprofs Paula Franzese and James Ely, the National Association of Reversionary Property Owners, the Property Rights Foundation of America, and the Citizen Advocacy Center. Like we said, long list.
Here's the Summary of Argument from our brief:
Words have meaning. Especially words in a document conveying an interest in real property. These words must be viewed in light of the intent of the parties as expressed by the terms of the instrument, state law, and the “special need for certainty and predictability where land titles are concerned.” Leo Sheep Co. v. United States, 440 U.S. 668, 687-88 (1979). This rule does not exist for its own sake, but because it forms the foundation of every civil right. The Federal Circuit violated these principles when instead of certifying the question to the New York courts, it discovered in the Romanoff conveyance something never before seen in New York law: a “general easement,” which can be used “for any purpose for which the grantee wishes.” In doing so, it permitted the Romanoff family’s property—conveyed for railroad purposes—to be pressed without compensation into public service as a recreational space. This brief presents four arguments. First, property rights are the basis of a free society, and the foundation on which all other civil rights stand. Second, judicial federalism requires certification of novel state property issues to state courts. Third, by failing to certify the question to the New York Court of Appeals, the Federal Circuit undermined certainty and predictability by concluding that the words in the Romanoff conveyance mean something other than what they say. Fourth, the need for certification is greatest where a court of national jurisdiction considers takings claims based on novel issues of state property law.
More to follow, naturally.
Here's the final brochure for the upcoming ALI-CLE Eminent Domain and Land Valuation Conference, set for January 26-28, 2017, in San Diego.
Early registration gets you a discount (code CY009MK), as does multiple registrations from one office, so now's the time to commit to joining us for our annual gathering (the 34th Annual) of the nation's leading practitioners of eminent domain, condemnation, valuation, and takings law. There are multiple ways to register, including on line.
Like in past years, the first day has three tracks: Practice, Substantive, and Condemnation 101. The latter is a one-day course for those new to the field, or as a refresher course for those with more experience. The second day, the 101 attendees will join the advanced course, and we'll have plenary sessions in the morning, followed by Practice and Substantive tracks in the p.m. As always, attendees are free to move among the tracks, so you can tailor your Conference to your individual needs.
Check out the complete agenda. Together with our co-planning Chairs Joe Waldo, Jack Sperber, and Andrew Brigham, we think we've put together a pretty good program, focused on the biggest issues in our area of law, presented by a top-notch faculty.
And, of course, San Diego in January is a great place to have a conference.
Finally, we want to mention that it won't be all work: one of the big benefits of this Conference is the networking and social opportunities. We have sprinkled each day with the chance to get to know the faculty and other attendees, and each night has scheduled events.
Now's the time to join us for what we think is the best program in our area of law.
A piece from noted eminent domain scholar Professor Ilya Somin, "Beware misguided 'mainstream' legal thought - 'Kelo v. City of New London' in perspective" at the Washington Post.
The thrust of his piece (and a forthcoming law review article) is that Kelo isn't some nutty decision, but was the product of "mainstream legal thought gone off the rails." Comparing it to Plessy, Korematsu, Buck v. Bell, and Dred Scott, Professor Somin writes:
earlier precedents holding that almost anything can be a public use justifying the taking of property – precedents that ended up authorizing the forcible displacement of hundreds of thousands of people (most of them poor and politically weak). For the most part, the justices who voted for these decisions were not rogue extremists, but respected members of the legal establishment relying on mainstream reasoning and habits of thought.
A truly extreme, non-mainstream ruling is less likely to cause harm than a bad decision that comes about because the mainstream itself has gone bad. The former is unlikely to become widely accepted and more likely to quickly be overruled or limited in its impact.
We recommend you read the entire piece and his upcoming article.
Here's the latest in a case we've been following (because we filed an amicus brief in the Federal Circuit in support of the property owners, and will be filing a brief in support of the cert petition).
This is the case about New York City's "Highline," the abandoned elevated rail line which was converted into a public parkway. The problem, however, was that the federal government failed to pay just compensation to the owner of the railway easement, who was supposed to have the easement revert to it when the city stopped using it for a rail line.
The owner brought a rails-to-trails takings case for compensation in the Court of Federal Claims but that court, and the Federal Circuit, concluded that under New York law, the terms of the easement (what the Federal Circuit called a "general easement") meant that the easement was granted not only for railway uses, but for literally any use the grantee desired. Thus, even though the rail uses had been abandoned, the city could continue to use it for a public park, without paying compensation because the reversionary easement owner didn't have "property" that was taken.
The property owner sought en banc review in the Federal Circuit, and that's the stage at which we filed our amici brief, which argued that New York law doesn't recognize a "general easement" which would allow the grantee to do anything it likes with the easement. If the Federal Circuit's guess about New York property law was correct (which it wasn't) then the grant really wasn't for an easement, but rather for the fee simple absolute. If you can do literally anything you like with property someone lets you use, without conditions, then it really isn't an easement.
After the court declined to hear the case en banc, the owner filed this cert petition which argues that there's a lower court split on what a federal court should do when confronted with an unsettled question of state law. The Federal Circuit here just took its best guess about what New York law allowed (a guess that, in our view, and in the view of the others who filed amici briefs is wrong), while other circuits require the court to certify the unsettled question of state law to the appropriate state court.
We think the latter approach is the better one, especially in matters of property law, which for the most part are supremely local, more within the knowledge and expertise of state court judges. The CFC and the Federal Circuit -- nationwide courts -- are even further removed than the district and other federal circuit courts from the nuances of local property law, and the judges of the former courts may have no familiarity whatsoever with the state law they purport to apply.
Here's the Question Presented:
When the Court of Appeals confronts a novel or unsettled question of state law, should the court certify the question to the state’s highest court or should the federal court make an Erie-guess about how the state’s highest court might decide the issue?
The property owners are represented by our colleagues at Federal Takings.
We'll post our amici brief next week after we file it.
Here's what we're reading today.
SCOTUSblog has posted a summary of a recent lecture by Professor James Ely (recently also returned from the Brigham-Kanner Property Rights Conference in the Hague) at the Supreme Court Historical Society, about whether "the Progressive-Era court largely accommodated social and political reforms, diminished protections previously afforded to property owners and opened the door for later New Deal jurisprudence." His conclusion is yes.
Professor Ely's talks are always worthy, and the SCOTUSblog summary is a pretty good substitute since we don't have the full lecture. A sampling:
According to Ely, progressives advocated a strong police power that would enable states to promote public welfare even at the expense of certain liberties – in Ely’s description, making the public welfare into a “talisman” that could override provisions in the Constitution. As former Attorney General George Wickersham said in 1914, the “pressure was great to compel legislation that transcends provisions of the Constitution,” and “any limitation by the courts was received by impatience and attacks on the judges.” However, as the cases Ely cited demonstrate, the court was in fact broadly receptive to reforms and allowed progressives to “devour” the constitutional protections of property and contract. In times of declared “emergency,” the police power was nearly boundless. Repeating what legal scholar Charles Warren observed in 1913, Ely contended that the “supposed tendency” of a reactionary court to rule against economic and social legislation was “exaggerated.”
We suggest you digest the entire summary.
The title to this Think Tech Hawaii video says it all.
Grassroot Institute Hawaii's Dr. Kelii Akina hosts the Goldwater Institute's Timothy and Christina Sandefur for a talk on the status of property rights, and what's being done about it.
[Barista's note:we've been on the road the past week after the Brigham-Kanner Property Rights Conference, and not really able to post. But we'll get back to it soon, with a further report on the Conference as well as some good cases that have come down in the interim.]
Several years ago, William & Mary Law School's Brigham-Kanner Property Rights Conference departed its usual Williamsburg, Virginia venue and held the event in Beijing. Holding the conference there allowed U.S. legal scholars and property law practitioners to share ideas and compare our ways with our PRC counterparts. The event was a great success.
Now, W&M has followed up with another international venue for the Conference: the World Court (Peace Palace), in The Hague, Netherlands.
The Conference kicked off last night with a reception honoring this year's Brigham-Kanner Prize winner, Peruvian economist Hernando de Soto, who opened the Conference this morning with a summary of his work and theories. One of the most intriguing is that the "Arab Spring" was a cry for property and economic rights.Count us as convinced.
The panels began their presentations today. Ours focused on how property rights contribute (or not) to developing nations. My own talk was about how Hawaii's experience in moving from a propertyless system, to one based on fee simple absolute, to one based on regulatory power, may hold lessons for others. (We'll post the audio from the talk, once we have a chance to clean up the recording and remove the background noise.)
The Peace Palace is a mighty impressive venue to hold a conference. The outside is Wayne Manor writ large, while the inside is even more designed to reflect its status as a "temple of the law."
The organizers of the Conference -- William and Mary Law School's Kelsey Rothera, Professor Lynda Butler, and Dean Dave Douglas -- have done another wonderful job with this Conference.
More will follow on the panels and the substance of our discussions in subsequent posts.
As for the "war" part of this post's title, a day before the Conference began, several of us paid a visit to the sites in the eastern Netherlands where in September 1944 Allied paratroopers and tankers liberated that part of the country during Operation Market-Garden, made famous by the book and movie "A Bridge Too Far."
Why? Because we should remember such things, even as they are fading into history as the men who participated in the battle are dwindling.
The Bridge Too Far, in Arnhem, today known as "John Frost Brug" after the commander of the British Paras who desperately tried to hold the north end of the bridge.
The first battalion of the 504th Parachute Infantry Regiment of the U.S. 82nd Airborne Division crossed the Waal here at Njjimegen, paddling with their rifle butts under heavy enemy fire, in broad daylight, in canvas boats. Referred to as "Little Omaha," a British officer remarked that this was the "bravest act of the war." But they accomplished the mission, and opened the road to Arnhem despite absorbing staggering casualties. The photo does not convey the true width of the Waal.
The memorial on the site where LTC Robert Cole, commander of the 3/502 PIR was killed by a German sniper. LTC Cole was awarded the Medal of Honor for leading his company's bayonet charge in Normandy, near Carentan. He was killed during Market-Garden before receiving the Medal. He was exposing himself to the sniper's fire to encourage and motivate his troopers, but paid the price that leaders must sometimes pay. "Gesneuveld voor ons" by the way, means "he died for us." The memorial was erected and is maintained by the local Dutch municipality's school.
"Bridge Number 11 is ours." U.S. paratrooper Captain Thompson, upon his company's seizure of the Grave bridge (now named "Thompsonbrug").
If you ever consider doing a similar tour, you'd do well to contact Nick Kelso first. He's a Brit who lives in the Netherlands, who tailored our day-long tour and accompanied us as we drove around to each site.
The complete agenda, faculty list, and other information (including registration and early and group discounts) for the 2017 ALI-CLE Eminent Domain and Land Valuation Litigation Conference is now up and ready.
The conference will be held January 26-28, 2017, at the Westin San Diego. Please consider joining us for the premier national conference on all things related to eminent domain, takings, and property law. You will learn a lot, meet your colleagues from around the country, earn a ton of CLE credits, and have some fun too.
Recall that in the wake of the overwhelmingly negative reaction to the U.S. Supreme Court's decision in Kelo v. New London, at least one of the Connecticut Supreme Court justices whose previous ruling was upheld, expressed his regrets. Others have made similar remarks.
Well, here may be a chance for the Connecticut Supreme Court to right the ship, so to speak. Later this month, the court will be hearing oral arguments in a case asking whether a state agency's power to take "land, buildings, equipment or facilities" includes bus companies' exclusive state-granted rights to operate bus routes. The bus companies have what amounts to a monopoly under state-granted certificates.
While this case doesn't squarely present the same issue as in Kelo (that may be coming later, in other cases which are making their way up the Connecticut chain), it does represent a chance to see whether the Connecticut Supreme Court has gotten any wiser since its decision in that case, because the apparent reason for the taking was to keep the bus companies in line. As the opening brief notes, "[a]s the Trial Court (Shortall, J.T.R.) recognized, the impetus for the Commissioner's conduct was the opening of the Busway [by the State) between Hartford and New Britain[.]" Br. at 4. The bus companies thought this interfered with their exclusive rights, and made trouble (seeking injunctions and the like); the state agency just decided to end it all with its trump card, eminent domain.
The case also should give some indication of whether the Connecticut court views a statutory grant of eminent domain narrowly, or expansively. Is a bus route a "facility?" Offhand, it seems not to fit the language of the statutory grant, which on its face reads as a power to condemn actual stuff, not incorporeal things like rights and franchises. Here's how the bus companies' brief frames the question:
This case presents the important question of whether the Commissioner of Transportation has the authority under Conn. Gen. Stat. §13b-36(a) to condemn Certificates of Public Convenience and Necessity issued to four private bus companies pursuant to Conn. Gen. Stat. §13b-80? Section 13b-80 provides the statutory scheme for issuing and regulating Plaintiff's Certificates, and identifies whether those Certificates may be suspended or revoked. Section 13b-36(a) permits the Commissioner to condemn only "land, buildings, equipment or facilities." We submit that §13b-36(a) may not be read, either by its express terms or by necessary implication, to permit the Commissioner to condemn intangible property such as there Certificates as "facilities."
Here are the briefs in the case:
Follow along with the court's docket page. Our thanks to ABA State and Local Government Law Section colleague John X. Peloso for cluing us in to the briefs.
Here are two cases about a topic that's been getting a lot of traction lately in legal circles: how to deal with the so-called sharing economy. You know, things like Uber, Lyft, Air BnB, and ... DogVacay. [Sidebar: that last one reminds of us Jack Handey's faux sponsor of SNL's "Unfrozen Caveman Lawyer" series, "Dog Assassin" ("When you can't bear to put him to sleep, maybe it's time to call ... Dog Assassin.")].
This is such a developing area right now that our section of the ABA (State and Local Government Law) has formed a Sharing Economy Committee to try to discover what the rules are and should be. Ping me if you want to be a part of this group -- all are welcome; as far as we know, there's no other entity in the ABA that is formally dealing with these issues right now.
Uber, Air BnB, and DogVacay aren't taxis, or hotels, or dog walking services, they say. But they sure do look a lot like them, no? And because of that, these issues can make for some interesting decisions because they really draw the competing philosophies into focus. The police power hawks believe that these things should -- like just about everything else -- be controlled by regulations; the public needs to be protected! The libertarians applaud the free market forces at play. The property rights folks ... well, they get a mixed bag.
And that's what today's decisions are to us -- a mixed bag. Or at least situations where we can see some merit in both arguments.
In Joe Sanfelippo Cabs, Inc. v. City of Milwaukee, No. 16-1008 (Oct. 7, 2016), and Illinois Transportation Trade Ass'n v. City of Chicago, No. 16-2009 (Oct. 7, 2016), the Seventh Circuit, in opinions authored by Judge Posner (did you really expect anyone else would draw this assignment?), concluded that holdovers from the legacy economy -- the owners of city-issued taxi medallions and permits -- did not have their property taken when the city allowed ridesharing services to operate.
The court acknowledged that the taxicab industry is "tightly regulated" by the municipalities. Indeed, you can't operate a taxicab without one. And ridesharing services, although somewhat regulated, are certainly subject to less government interference in that you don't need major municipal permissions to start chauffeuring people around. And that was the point the plaintiffs objected to: we relied on the controlled market and have property rights in our medallions and permits, they argued, and letting these interlopers do the same thing we do without also having to get a medallion is a taking of our government-sanctioned quasi-monoply.
The court rejected the claim. Although it agreed that the medallions are property, the court held no taking because owning a medallion is a property right to operate a taxicab, and isn't a property right to stop others from driving people around the city for money. "The City has created a property right in taxi medallions; it has not created a property right in all commercial transportation of persons by automobile in Chicago." Joe Sanfelippo Cabs, slip op. at 5. The panel acknowledged that if the cities were to have outright confiscated the taxicab medallions (which would have prohibited the taxicab operators from operating taxicabs), it would be a taking. But allowing Uber and Lyft to operate things that look like taxis (but are not taxis) "is not confiscating any taxi medallions; it is merely exposing the taxicab companies to new competition -- competition from Uber and the other TNP's." Joe Sanfelippo Cabs, slip op. at 4.
The court held that ridesharing services are different animals than taxicabs, and Uber and Lyft are as different from cabs as dogs are from cats: you can't physically hail down an Uber or Lyft vehicle on the street but must use a smartphone application to do it for you, and a taxi's fare structure is determined by the city.
And that, to the court, was the critical difference. Because Uber and Lyft are not taxicabs, allowing them to drive people around the city for money doesn't interfere with the rights of taxicabs to drive people around the city for money. Got it.
We suspect that the taxicab operators have a much different view. Because Uber and Lyft are really, really a heckuva lot like taxis, aren't they? You hail a ride (not with your arm and a whistle, but with your fingers and your phone), you get in, you go, you get where you're going, you pay the driver (again, with the app not by handing him/her money). But come on, is that enough of a difference to say that ridesharing isn't cabbing? On that, we're mostly with the cab operators. Having used Uber and Lyft more than a few times, they sure do seem like taxis with some very minor differences.
But to the court, whether to regulate ridesharing services the same as taxicabs was within the discretion of the city. In the same way that many cities require dogs to have a license, but not cats (we're not kidding: this analogy is right there on page 6 of the opinion). Don't like having to get a license for your pet? Be sure to get a cat. You don't want to get a taxi medallion? Drive an Uber.
And those who already relied on the regulatory system in place to invest in a medallion who thought this was a high barrier to entry into the driving-people-around-for-money market? Chumps.* The court told them figuratively that if they think Uber and Lyft have a competitive edge over traditional taxicab services, then they should get with the program and start competing! (Or start driving for Uber or Lyft.)
As we mentioned earlier, these decisions draw us in opposite directions. We like takings, but we also like free market thinking. We're not big on a lot of regulation, but we also favor a regulatory system, if it must exist, that allows investment without fearing the government will just decide one day to ignore its own regulatory requirements and exempt others similarly situated from regulations which govern you.
That last point is really the panel's main thrust. See Joe Sanfelippo Cabs, slip op. at 9 ("A 'legislature, having created a statutory entitlement, is not precluded from altering or even eliminating the entitlement by later legislation.'"). You shouldn't rely on a regulation, unless the things you are relying on are welfare benefits or employment or other forms of "New Property." (Then you can.) But not here.
Why there's a difference, we can't really say.
*Ever since Chief Justice Roberts made "chumps" a legal term of art, see Arizona State Legislature v. Independent Redistricting Comm'n, No 13-1314 (U.S. June 29, 2015) ("What chumps!") (Roberts, C.J., dissenting), we've committed to employing it every time the opportunity presents itself. You should too.
Here's the amici brief we're filing in a case which we told you about earlier, involving the way attorneys' fees get calculated when a statute allows fee shifting.
This is the afterglow of a rails-to-trails takings case, in which the property owners are entitled under the Uniform Relocation Act to attorneys' fees. We like.
What we didn't like was the way the trial court arbitrarily cut the property owners' fee request, without ever explaining why. The court simply made an across-the-board percentage reduction from the "lodestar" (a reasonable hourly rate times a reasonable time per task). And the Federal Circuit affirmed.
So the property owners sought cert review, and now we've filed a brief in support. Our brief focuses on the first Question Presented: "Whether trial courts have discretion to make across-the-board percentage adjustments to the lodestar fee and, if so, what “specific proof” or “explanation” must the court provide so the adjustment is “objective and reviewable?”
Here's a portion of the Summary of Argument from our brief:
“A lawyer’s time and advice are his stock in trade.”
- Abraham Lincoln, country lawyer.
Mr. Lincoln’s famous dictum remains the core of the practice of law. The Federal Circuit’s ruling undercuts that essential truth by subjecting the lawyer’s most precious resource—his or her services—to a standardless process that gives too much discretion to trial judges to arbitrarily determine that a lawyer’s “stock in trade” is worth less in a particular case than the market.
This brief focuses on the first Question Presented, and argues that the Federal Circuit’s rejection of the lodestar method as the presumptive reasonable fee recovery—time spent by the lawyer multiplied by a reasonable rate, and the “guiding light” of fee calculations—is a recipe for capriciousness. Gisbrecht v. Barnhart, 535 U.S. 789, 801 (2002) (“The ‘lodestar’ figure has, as its name suggests, become the guiding light of our fee-shifting jurisprudence.”). An opaque process not subject to uniform and understandable standards endangers access to justice, not only for property owners seeking just compensation, but for all litigants in cases where the possibility of fee-shifting is present.
This brief makes two points. First, transparent and uniform standards for the recovery of attorneys’ fees and costs in litigation fosters access to justice, particularly in cases where private citizens are forced to bring claims against an opponent unconstrained by litigation budgets. Reducing a plaintiff’s statutory recovery by district court fiat undermines the certainty that all parties rely on. This certainty is especially critical pre-litigation, when the parties and the lawyers evaluating whether to take their cases should know the ground rules to make an informed judgment.
Second, we give some examples of the pattern of Government conduct in rails-to-trails cases, where it has in many instances needlessly increased the cost of litigation by its slash-and-burn approach. The case at bar must be viewed in light of the Government’s failed strategies in these other cases, because needlessly increasing the costs of litigation and then objecting to the efforts which the plaintiff undertook to win brings to mind Leo Rosten’s classic definition of chutzpah. For the district court to exercise unreviewable discretion to reduce the lodestar amount without an explanation of how or why, only adds to the injury.This case presents a good vehicle for this Court to determine that if a district court strays from the presumptive lodestar fee, it should be required to say why, with precision. The Court should grant certiorari.
Damon Key colleagues Chris Leong and Loren Seehase joined us on the brief.
Stay tuned, there may be more. (The Government has waived its right of response.)
We all know that the Supreme Court's 5-4 decision in Kelo is lousy. See "Kelo at 10: Still Stinks, And A Decade Has Not Lessened The Odor."
Or at least most of us know that. But other than crying in our beer, or trying to get the case overruled (efforts continue!), what is there to do, given that the decision remains "good law?"
Well, here's some suggestions from our Owners' Counsel of America and ABA State and Local colleague Dwight Merriam, to soon be published in the Connecticut Law Review, "Time to Make Lemonade from the Lemons of the Kelo Case," 48 Conn. L. Rev. ___ (forthcoming 2016).
Intrigued? Here's the abstract:
The decision in Kelo v. New London only addressed the constitutionality of the eminent domain process used to take Susette Kelo’s home. Given the four corners of the case as presented to the Court, there was no consideration of alternatives to eminent domain and of the equity issues inherent in eminent domain. In responding to the essay by Horton and Levesque the author looks to ways to enable development and redevelopment through means less coercive than eminent domain and more respectful of private property rights and the unique and personal situations of those whose properties are targeted. The author, noting the almost unbridled power of government in eminent domain takings and the relative weakness of condemnees, offers suggestions to improve equity and to allocate the true costs of direct takings. This Essay serves as a roadmap for reform.
We were getting ready to dig into the California Court of Appeal's opinion in 616 Croft Ave., LLC v. City of West Hollywood, No. B266660 (Sep. 23, 2016), when our ABA State and Local Government Law colleague Bryan Wenter wrote up the case on his firm's land use blog, saving us the trouble.
The opinion is, in his words, "the first reported appellate decision to rely upon the broad holding of the California Supreme Court's blockbuster 2015 affordable housing case, California Building Industry Assn. v. City of San Jose, and it boldly highlight the far reaching implications of that ruling." As Bryan writes, "it also underscores the ongoing need for the United States Supreme Court to finally address whether the heightened scrutiny of the Nollan, Dolan, and Koontz Fifth Amendment takings cases applies to legislatively imposed permit conditions."
Go read Bryan's summary and excellent analysis, which concludes:
In addressing the reasonableness inquiry, the Court demonstrated precisely why the U.S. Supreme Court should soon address this issue. Under the authority of California Building Industry Assn. v. City of San Jose, the Court correctly held that combatting the lack of affordable housing by promoting the use of available land for the development of housing that would be available to low- and moderate-income households does not violate the Takings Clause. The Court reasoned, however, that “[t]his is especially true when the regulation, like the one here, broadly applies nondiscretionary fees to a class of owners because the risk of the government extorting benefits as conditions for issuing permits to individuals is unrealized.” That dubious rationale runs headlong into the Justice Clarence Thomas’ logical conclusion, in Parking Assn. of Georgia, Inc. v. Atlanta, 515 U. S. 1116, 1117 (1995) (Thomas, J., dissenting from denial of certiorari), that the existence of a taking should not turn on the type of governmental entity responsible for the taking and that the general applicability of the ordinance should not be relevant in a takings analysis.
Check it out.
Are you like us and cannot type, write, or say "statue" without it coming out "statute?" That's an affliction we've had since law school days, and one we're probably never going to shake.
As lawyers, we've all no doubt seen plenty of crappy statutes in our careers.
But, at the risk of being offensive, here's an actual s**t statue, located in the City of Chicago. Created by an artist tired of dog owners allowing their Fidos to do their business on the artist's front steps, he protested in the only way he knew how: by reproducing the offending items in bronze, larger than life, with water flowing out of the top.
Crass but apparently effective: evidence of actual dog doo was nowhere to be found during our recent visit.
Tomorrow, Thursday, October 6, 2016, at 10:00 a.m. at Aliiolani Hale, the Hawaii Supreme Court will hear oral arguments in a case we've been following (we filed an amicus brief in the case, supporting the property owner on the first Question Presented), County of Kauai v. Hanalei River Holdings, Ltd., No. SCWC-14-0000828.
The case is a taking by the County of several parcels on the north short of Kauai, but the main issue in the case -- do parcels need to physically touch in order for the jury to consider them part of a larger economic parcel -- goes well beyond this one case. The Honolulu rail project, probably the biggest eminent domain project in Hawaii's history, is underway, and the larger parcel issue could arise is more than a few cases there. What we thought was settled doctrine in Hawaii law was thrown into question by the Court of Appeals' decision in this case.
The case involves three parcels on Kauai -- one of which is owned by a fellow who has been a thorn in the County's side -- which were condemned by the County for the expansion of a public beach park. The County was taking Parcels 49, 33, and 34. Sheehan owned 49, and HRH, a corporation, owned 33 and 34. Sheehan asserted his use of Parcel 49 stretched across 33, 34, and Area 51 -- a portion of another Parcel but not a separate record lot. He claimed to use Area 51 pursuant to an easement.
The court of appeals held that Hawaii law requires that two parcels abut before a jury can consider them part of a larger parcel. The property owned by the condemnee was separated from the other parcel he claimed to use, and not physically connected. The condemnee claimed he used the two parcels together as a boat yard, and therefore the taking of his property damaged his use of the other.
The ICA held that the owner "cannot satisfy the physical unity requirement” because the two parcels Petitioners claim to use together are separated by two others. County of Kauai v. Hanalei River Holdings, Ltd., No. CAAP-14-0000828, slip op. at 31; 2016 Haw. App. LEXIS 224, at *10 (2016). The ICA asserted the "must touch" test was established by the Hawaii Supreme Court in City and County of Honolulu v. Bonded Investment Co., Ltd., 54 Haw. 523, 511 P.2d 163 (1973), which, in the ICA's view, required "that all of the pertinent lots abut one another." Slip op. at 20.
Here is the description of the case and the Questions Presented from the Judiciary's web site:
Petitioners/Defendants-Appellants Hanalei River Holdings, Ltd. (HRH) and Michael G. Sheehan (Sheehan) apply for writ of certiorari, challenging the Intermediate Court of Appeals’s (ICA) May 11, 2016 Judgment issued pursuant to its March 31, 2016 Published Opinion. The ICA affirmed the Final Judgment As to All Claims and All Parties of the Circuit Court of the Fifth Circuit (circuit court), filed on April 25, 2014, except with regard to the award of blight of summons damages. The ICA vacated the award of blight of summons damages and remanded to the circuit court for further proceedings.
This case arises from the County of Kauaʻi’s (the County) condemnation of three parcels of property owned by HRH and Sheehan. The County deposited $5.89 million with the circuit court as estimated just compensation, and the circuit court issued an order of possession in favor of the County. In addition to HRH and Sheehan, Patricia Wilcox Sheehan also claimed an interest in the properties. Almost a year later, HRH and Sheehan submitted an application to withdraw the estimated just compensation. The County opposed their application arguing that it still had not been determined that HRH and Sheehan were the owners of the properties and that an updated appraisal showed that the value of the properties on the date that the condemnation action was filed was only $4.86 million. The County also moved to withdraw the $1.03 million excess from its original deposit. Subsequently, Patricia Wilcox Sheehan waived her claims, and HRH and Sheehan entered into an agreement with the County, whereby the County agreed to HRH and Sheehan’s withdrawal of $4.86 million on the condition that Sheehan indemnify the County for any failure of HRH to return excess payments. HRH and Sheehan withdrew $4.86 million, and the circuit court granted the County’s motion to withdraw the remaining $1.03 million.
Prior to trial, HRH and Sheehan claimed that they had a right to severance damages for a piece of property referred to by the parties as Area 51, that was actually a part of a larger parcel owned by Patricia Wilcox Sheehan. The County opposed HRH and Sheehan’s claim and moved for partial summary judgment on the severance issue. The circuit court granted partial summary judgment in favor of the County, holding that there was no unity of title because Area 51 was owned by Patricia Wilcox Sheehan, no unity of use because Sheehan’s permits to operate a boatyard on the condemned parcels and Area 51 had been revoked, and no physical unity because Sheehan’s parcel did not abut Area 51.
At the end of the jury trial, the jury determined the total value of the condemned parcels to be $5.8 million. The circuit court also awarded HRH and Sheehan blight of summons damages on the jury verdict from the date of the summons until the date that the County deposited $5.89 in estimated just compensation and from the date that the County amended its deposit to $4.86 million to final payment on the $940,000 difference between the jury verdict and the amended deposit.
HRH and Sheehan appealed to the ICA, arguing that the trial court erred when it permitted the County to withdraw a portion of the estimated of just compensation, when it granted summary judgment in favor of the County on the issue of severance damages, and in its calculation of blight of summons damages. The ICA affirmed the circuit court on the first two issues. However, the ICA disagreed with the circuit court’s calculation of blight of summons damages and held that the interest should have been tolled from the date that the County made its unconditional deposit of estimated just compensation until the date that Patricia Wilcox Sheehan waived her claims and it became clear that HRH and Sheehan were entitled to receive the compensation.
HRH and Sheehan’s application for writ of certiorari present the following questions to this court:
1. Must two parcels physically abut in order for the jury to consider whether they are part of a larger parcel?
2. Where there are multiple properties being condemned from different owners, does statutory interest on a conditional deposit only accrue after each condemnee establishes an entitlement to its portion of the deposit?
3. Does Hawaiʻi Revised Statutes § 101-19 enable a condemnor to withdraw a portion of its estimate of just compensation after deposit with the Court and after taking possession of the property?
Stay tuned. The court usually posts oral argument recordings shortly after the case is submitted. We'll bring you some post-argument thoughts as warranted.
Here's the latest in a case we've been following, and which earlier resulted in a very good decision from the North Carolina Supreme Court.
In Kirby v. North Carolina Dep't of Transportation, No 56PA14-2 (June 10, 2016), the N.C. Supreme Court held that the "Map Act," a statute by which the DOT designated vast swaths of property for future highway acquisition, was a taking because the act prohibited development of designated properties in the interim. The court concluded that "[t]hese restraints, coupled with their indefinite nature, constitute a taking of plaintiffs’ elemental property rights by eminent domain." The court remanded the case for a parcel-by-parcel determination of just compensation.
Here's the trial court's Order on remand, granting in part the plaintiffs' motion for partial judgment on the pleadings on inverse condemnation liability, and ordering the NCDOT to "file plats, make deposits with the required statutory interest, and, if any plaintiff rejects the NCDOT offer, scheduling Section 108 hearings if either party requests it, in order to comply with the requirements of N.C.G.S. § 136-111." Order at 7.
The court demurred from determining the nature of the property interests taken ("the Court is not prepared at this stage of the proceedings to rule that the takings are in the nature of fee simple valuation; therefore, so the court will deny the Plaintiffs' motions at this time in this regard"). Order at 9-10. The court left that question for the eminent domain phase. The remainder of the Order set out the process and timeline for each party and the court to follow.
More on the court's order here ("Forsyth judge to state: Start paying Winston-Salem beltway landowners").
Designation of private property for future acquisition -- but then not actually taking the property in a timely fashion -- is a burgeoning issue nationwide. In addition to North Carolina's Kirby cases, we've seen decisions on the same or similar issue from appellate courts in California and Nevada. We've devoted two sessions at the upcoming ALI-CLE Eminent Domain and Land Valuation Conference (San Diego, January 26-28, 2017) to the subject:
- Planning Ahead: Future Highway Corridors as Takings - with Matthew Bryant (counsel for the property owners in Kirby), and Andrew Gowder.
- Protecting the Owner From an Unlawful Taking: Leveraging Public Records in a Successful Defense - with Linde Hurst Webb.
Counsel in the California and Nevada cases will also be at the conference.
We've teased some of the details on the 2017 ALI-CLE Eminent Domain and Land Valuation Litigation and Condemnation 101 Conference, to be held at the Westin San Diego, January 26-28, 2017, but here are the details you've been waiting for.
This is the "big one," our annual 3-day festival of all things eminent domain, property, takings, inverse condemnation, and just compensation. Truly national in scope, this is the 34th annual edition, and the one conference you must attend. Our 2016 conference in Austin was one of the best in years, and we're on the way to replicating it in 2017, with a great venue in an exciting city.
Look for the web and printed brochures to show up in your mailboxes, but in the meantime, here are some of the highlights (we'll post more in the next few days):
- Relocation, relocation, relocation: we are featuring two sessions on this important and growing area of law. Our first panel will address the tension between condemnors, property owners, and tenants in securing relocation benefits, and our second will be a case study of an appeal under the Uniform Relocation Act, complete with lessons learned and traps for the unwary. Featuring a slate of experts: David Arnold (Virginia), Janet Handy Bush (Maryland), Kenneth Gindy (Texas), Brian Kunze (Virginia), Jill Gelineau (Oregon), Kelly Walsh (Washington), and Martyn Daniel (Washington).
- Present and Future Highway Projects: we have several panels on issues related to present and planned highways and other transportation projects. We'll focus on the issues that arise when a highway authority plans to take property but doesn't do so immediately -- where are the lines between planning and taking in those cases? Strategies for property owners in obtaining information from the highway department under public records laws, and the role of federal funding in these and similar cases. Featuring Linde Hurst Webb (Ohio), Matthew Bryant (North Carolina), W. Andrew Gowder (South Carolina), Minming Wu (from the Federal Transit Administration (invited)), and Mark Murakami (Hawaii).
- Trial and practice insights: we have several panels devoted to the latest strategies from condemnation jury trial experts: how to use experts (appraisers and others) to make your case; how to employ a jury consultant to maximize your results; winning valuation evidentiary issues before and during trial; admitting or excluding the "lowball" offer; and maximizing the property owner's testimony in the just comp phase. With Jeremy Hopkins (Virginia), Mary Nell Bennett (Louisiana), Christian Torgrimson (Georgia), Darius Dynkowski (Michigan and Ohio), Andrew Brigham (Florida), Scott Jenny (California), Justin Hodge (Texas), and Susan MacPherson (Minnesota)
- Inverse and regulatory takings: It's been 25 years since the Supreme Court blockbuster Lucas -- has the sky fallen? With Dwight Merriam (Connecticut), and Luke Wake (California and DC). Where the line is between an exercise of the police power to protect the public, and a taking is something we've been trying to figure out for nearly a century since Pennsylvania Coal. David Breemer (California) and I (Hawaii) will bring you the latest.
There's a lot more, of course, Reserve your space by registering for the conference here.
Posted on October 4, 2016 in ▪ 42 U.S.C. § 1983 | Civil Rights, ▪ Attorneys Fees & Costs, ▪ Blight, ▪ Court of Federal Claims | Federal Circuit, ▪ Development agreements, ▪ Eminent Domain | Condemnation, ▪ Environmental law, ▪ Inverse condemnation, ▪ Just Compensation | Appraisal, ▪ Land use law, ▪ Municipal & Local Govt law, ▪ Nollan/Dolan | Exactions, ▪ Penn Central, ▪ Property rights, ▪ Public Use | Kelo, ▪ Rails-to-Trails, ▪ Redevelopment, ▪ Regulatory takings, ▪ RLUIPA | religious land use, ▪ Seminars, ▪ UIPA - Public Records Law, ▪ Uniform Relocation Act, ▪ Vested rights, ▪ Williamson County | Ripeness, ▪ Zoning & Planning | Permalink | 0 Comments
There's a lot of pages in the Pennsylvania Supreme Court's opinion (and two concurring opinions) in Robinson Township v. Commonwealth of Pennsylvania, No. J-34A-2016 (Sep. 28, 2016), and the good stuff from the headline starts on page 78. But to understand the case, you need a bit of background.
Pennsylvania has been one of the hotbeds of property owner objections to natural gas (including the related fracking extraction method) and other pipeline projects, and this case was a lawsuit by several townships and municipal officials challenging a state statute which made fracking and eminent domain easier for the gas companies. The townships asserted this went beyond what the state legislature had the power to allow, because it was "special legislation" designed to help a particular industry, and not applicable to all, and allowed an unconstitutional taking of private property for private use. The court held the statute was special legislation and an unconstitutional taking and invalidated it on its face.
We'll let you review the entire opinion if the above seems like it is of interest to you, but eminent domain mavens should not miss the portion where the court deals with the Kelo challenge. The statute authorized the taking of private property for storage of gas, and authorized a "corporation empowered to transport, sell or store natural gas or manufactured gas in this Commonwealth" to do the taking. Defending this delegation to a private entity from a public use challenge, the state argued the statute only applied to PUC-regulated utilities, and therefore the public nature of the takings was guaranteed. The Supreme Court rejected the argument because the statute didn't limit the exercise of the power to PUC-regulated entities, but on its face allowed any corporation that otherwise qualified to take private property:
The Commonwealth Court and Appellees strive mightily to read the language of Section 3241(a) as restricting this taking power to only those corporations which qualify, statutorily, to be public utilities. Ostensibly they do so to establish that the conferral of this power should then be considered beyond constitutional challenge, because public utilities have long been permitted the right to exercise powers of eminent domain conferred on them by the Commonwealth in furtherance of the overall public good. See Appeal of Independence Township School District, 194 A.2d 437, 440 (Pa. 1963) (“The conferring upon a corporation by the state of the power of eminent domain is an official recognition of the fact that the corporation receiving this grant of power is engaged in a business so vital to the public welfare that it is really engaged in the administration of a public trust, and therefore it is entitled to the classification of a quasi public corporation.”). However, the text of Section 3241(a) simply does not allow for such a narrow reading. It allows any corporation “empowered to transport, sell, or store natural gas or manufactured gas in this Commonwealth” to exercise the power of eminent domain over the private lands of another.
Slip op. at 84-85 (emphasis original).
This was a problem, as the statute "confers a broad power on private corporations to take private property of other landowners to store natural gas therein." Slip op. at 86. This was not only a problem under the Pennsylvania Constitution, but also under the Fifth Amendment:
The Commonwealth does not claim, nor can it do so reasonably, that the public is the “primary and paramount” beneficiary when private property is taken in this manner. Instead, it advances the proposition that allowing such takings would somehow advance the development of infrastructure in the Commonwealth. Such a projected benefit is speculative, and, in any event, would be merely an incidental one and not the primary purpose for allowing these type of takings. We therefore conclude that Section 3241(a) is repugnant to both the Fifth Amendment to the United States Constitution and Article I, Section 10 of the Pennsylvania Constitution, and we enjoin it from further application and enforcement.
Slip op. at 86.
More background in this story here ("Pa. Supreme Court blocks pro-industry provision of gas drilling law") from the Pittsburgh Tribune-Review.
To supplement your written materials, here are the decisions and other materials which we spoke about this morning at the CLE International Eminent Domain seminar:
- Entry statutes: the California Supreme Court decision in Property Reserve: the court rewrites the statute in order to save it.
- Virginia federal court rejects facial challenge to Virginia's entry statute.
- North Dakota Supreme Court finds that small entries are "examinations" and not takings.
- Pipeline takings: Pennsylvania appellate court agrees that the polar vortex made them do it.
- North Carolina's Map Act case (Kirby). Land banking to keep the eventual acquisition price low, is a taking.
- California's City of Indio case: temporary "no build" area while city gets around to taking the property is a taking.
- Virginia: an unacceptably low appraisal = "bona fide" offer.
- Colorado Supreme Court reads its eminent domain statute narrowly: when it says Commission must approve taking, DOT can't do it.
- Georgia appellate court: appraisal "before" negotiations means just that.
- Who decides, Part I: California Supreme Court in City of Perris -- judge decides Nollan/Dolan issues (but they may be project influences, so property owners do the happy dance).
- Who decides, Part II: West Virginia Supreme Court concludes that condemnor (not the courts) is sole determiner of sufficiency of quick take deposit.
- Municipal takings of public utilities: Montana Supreme Court writes "more" out of the "more necessary" clause.
- Creative Thinking Prize: Texas Supreme Court sides with property owner who formed conservation district to beat back a taking. Don't tell me no, tell me how.
- Pending issues at SCOTUS: (1) attorneys' fees under the URA; (2) Murr v. Wisconsin - the "larger parcel' in regulatory takings.
- Speaking of attorneys' fees: property owner's claim that trial date (and not date of complaint) was date of valuation was not reasonable.
- Law review articles of note:
- Bill Wade's article on damages and just comp when you are dealing in income-producing properties
- Virginia Law Review article on state constitutional property.
- Mike Berger's lookback on "Property, Democracy & The Constitution."
- Arizona Law Review: do animals have property rights?
Also, here are links to the cases which our Toronto colleague Shane Rayman referred to in his afternoon presentation on lessons for U.S. lawyers from Canada's law of injurious affection:
- Antrim Trucking - the Supreme Court of Canada case (won by Shane) in which the court upheld injurious affection for the business damages resulting from a highway project, even for an owner whose property was not physically expropriated.
- Another of Shane's cases, this one involving rural property and multiple parcels.
- The Texas Court of Appeals case in which a business whose property was not physically taken for a rail project was nonetheless (perhaps) entitled to inverse condemnation damages for business losses.
Posted on September 29, 2016 in ▪ 42 U.S.C. § 1983 | Civil Rights, ▪ Appellate law, ▪ Attorneys Fees & Costs, ▪ Court of Federal Claims | Federal Circuit, ▪ Eminent Domain | Condemnation, ▪ Inverse condemnation, ▪ Just Compensation | Appraisal, ▪ Municipal & Local Govt law, ▪ Nollan/Dolan | Exactions, ▪ Property rights, ▪ Property tax, ▪ Public Use | Kelo, ▪ Regulatory takings, ▪ Seminars | Permalink | 0 Comments
This one is kind of Colorado specific, but there are lessons here for the rest of us.
In Colorado Dep't of Transportation v. Amerco Real Estate Co., No. 16SA75 (Sep. 26, 2016), the Colorado Supreme Court prohibited the DOT from taking Amerco's land (leased to U-Haul) for a highway project because the transportation commission had not first determined via the process required by statute that the taking would serve the public interest.
U-Haul argued these statutes required the commission to adopt a resolution -- based on a report by the chief engineer -- to establish that the taking of this specific property would be in the public interest, and that it wasn't sufficient that these things were done for the project in general. The DOT asserted that an earlier resolution by the transportation commission gave the DOT all the power it needed, because it had delegated the power to acquire land to the DOT, and made a determination that the overall project would serve the public interest. The trial court agreed with the DOT, and put it in possession of the property.
In an original jurisdiction action, the Supreme Court disagreed. The statute in question requires the chief engineer to "make a written report to the commission" which, among other things, describes the land to be taken in some detail. The statute also requires the commission, if it agrees with the engineer's report that the property must be acquired, to adopt a finding of public interest by resolution. The court viewed these requirements plainly, and rejected the commission's argument that a narrow alternative method for taking property also set out in the statute somehow altered the commission's obligations:
The statute places squarely in the hands of this geographically representative and comparatively independent corporate body the responsibility for determining not only which of the enumerated kinds of highway projects should be approved, but also which properties need be taken for that purpose and the amount, or the method of calculating the amount, that may be paid for each of them.
Slip op. at 11.
Under this statute, the commission -- and not the DOT -- determines "the choice of which properties are to be taken, how much the state is willing to tender for a particular parcel of property, and/or whether to acquire that property at whatever cost may be determined by the statutory condemnation process." Slip op. at 12-13. That can't be delegated to the DOT. Slip op. at 13 ("Not only is the statute lacking in any express authorization to do so, but virtually the entire statutory scheme, creating and assigning specific powers and duties separately to the transportation commission, militates against a legislative intent to sanction such a delegation.").
And that earlier resolution on which the DOT relied? Not good enough because it wasn't what the statute required. Because it was a delegation by the commission to the DOT of the commission's duties, it "amounts to an abdication of the commission's statutory duty to decide which parcels it will serve the public interest or convenience to take and whether the public interest or convenience will be served only if those parcels, or any of them, can be acquired for a specific, preapproved amount." Slip op. at 14.
The lessons here for us non-Coloradans is that statutory requirements, especially in eminent domain, are just that, and should be narrowly read, and that subordinate state and municipal agencies shouldn't think they can exercise the power however they like or at all (even if they do that all the time).
The speed of the internet: we were all set to post our thoughts on the opinion of the Court of Appeals of Indiana in Bellwether Properties, LLC v. Duke Energy Indiana, LLC, No. 53A-04-1511-CR-1880 (Sep. 13, 2016), when the Indiana Lawyer beat us to the punch with "COA: Discovery rule applies in inverse condemnation action against Duke Energy."
We can't report on this decision any better than they did, so check it out.
We like property rights. We really do. And here is a new law review article on property rights. But the jury's still out whether this will be useful to us (or you) in the practice of law, because, well, the article is about animals having property rights.
You read that right. Property rights. For animals.
Now we'll admit, our first thought was "is this the quality of legal scholarship that law students are going hundreds of thousands of dollars into debt to learn?"
But really, who are we to judge? We know that cats already think they own everything and everyone, including their putative owners. So what is so outrageous about the rest of the animal kingdom owning things?
Here's the abstract:
What if animals could own property? This Article presents a thought experiment of extending our anthropocentric property regime to animals. This exercise yields new insights into property law, including what appear to be biological underpinnings to what is widely assumed to be the distinctly human system of property. It also reveals that government and private actors alike have created a vast network of functional property rights for animals. The effects of a property rights regime for animals extends beyond property law: it would serve to improve the plight of animals, especially wildlife, by counting historic exclusion of animals from property allocations.
Property law may be a human codification of ingrained biological principles, common among species. Human governance of land, partially reflected by property law and observation of social attitudes to property, may, in fact, better theorized as animal in nature. Scientific findings suggesting that animals engage behavior mirroring that which establishes property ownership among humans. Species ranging from bees to jaguars undertake actions to acquire and protect land, which, when undertaken by people, forms the legal basis of property ownership.
Initial entitlements of American land excluded customary animal users, then afforded subsequent human landowners with the right to develop and exclude, which produced profoundly negative effects on species conservation. In response, a variety of governance strategies have emerged to protect wildlife, most federal statutes weakening property rights. In fact, law has already partially accommodated the idea of animals as property owners. Examining a variety of Constitutional, statutory, and common law doctrines suggests that animals already hold a variety of functional property rights, including ownership of hundreds of millions acres of land.
This Article is the first to analyze a property-rights approach to animal welfare and species conservation. Benefits of this approach, relative to existing efforts to imbue animals with human rights, include its bipartisan nature and foreseeable endpoint. Animal property rights would not require a massive shift in societal norms or uncompensated property redistributions. Indeed, this approach would likely improve animal welfare while also strengthening existing property rights, lessening the need for statutory controls on land uses, and updating law to harmonize with prevailing norms regarding animals’ place in society.
All we're thinking is that is hard enough already to get government and the courts to appreciate the property rights of human beings, never mind adding another class of disappointed property owners to the list. Moreover, these owners cannot assert "their" rights on their own (sorry, Koko), and their main function would be, in our view, to serve as plaintiffs in environmental lawsuits asserting that animals' property rights "including ownership of hundreds of millions acres of land" (as the article posits), mean that "their" land needs to be preserved, all to the detriment of the property rights of their human overlords.
Besides, we understand that the only law animals adhere to is that ape shall not kill ape, right?
Download the article here, and make your own call.
A short one from the Oregon Court of Appeals. The end result in Beaverton School Dist. 48J v. Ward, No. 441 (Sep. 14, 2016) was that the property owners in a condemnation case had their request for attorneys fees cut by more than half by the trial court, a result the Court of Appeals affirmed because the owners' arguments regarding the date of the appraisal were not objectively reasonable. Simple enough, but there are a lot of layers in this one.
In a taking by the school district, the parties had a big disagreement on value. The district was in the neighborhood of $3 million, while the owners sought $9 million. The owners' valued the property on the anticipated date of trial, while the district used the date it had filed the complaint. The court granted the district's motion in limine, prohibiting the owners from introducing valuation of the property on any date other than the date of the complaint.
The owners didn't have any other valuation, so that's probably why they soon accepted an offer of compromise for $600k more than the district's claimed valuation, which the district had earlier made to which the owners had not responded. The case having been settled, the trial court entered judgment, after which the owners sought $270k in attorneys fees and costs, as permitted by Oregon law.
The district agreed they were entitled to fees and costs, but disputed the amount. An Oregon statute sets out a list of factors for trial courts to consider in fee requests, and one of those factors is "[t]he objective reasonableness of the claims and defenses asserted by the parties." The district asserted -- and the trial court agreed -- that the owners' argument to a trial date valuation did not qualify. Moreover, the owners ultimately settled for "the same exact amount that was previously offered and rejected." The court cut their fees down to $107k, and the owners appealed.
The court of appeals affirmed, concluding that the trial court had not abused its discretion when it reduced the amount of fees and costs.
First, the court relied on existing Oregon law, holding that it is very clear that the date of valuation is the date of the complaint, not the date of trial. Slip op. at 83.
Second, the court rejected the owners' argument that the Fifth Amendment required the trial court to allow evidence of the value of the property on the date of trial. "We are unaware, however, of any authority, and the Wards do not point to any, applying the federal procedure in Kirby [v.Forest Industries v. United States, 567 U.S. 1 (1984)] to Oregon's condemnation statutes or Oregon's constitutional law. The statutory process and rules of procedure for a federal taking does not make reasonable defendants' arguments concerning a taking by an Oregon entity." Slip op. at 84.
Today is Constitution Day, even though every day really is Constitution Day, no?
In that vein, here is what is probably our favorite work of modern art, a piece titled "Preamble," which hangs in the Smithsonian American Art Museum in Washington, D.C. Yes, those are real license plates, and when read together spell out the preamble to the Constitution. We like the piece so much, we've got a print hanging in our office.
This one reminds us of a recent decision by the Texas Court of Appeals, because the Mississippi Supreme Court, like the Texas court, concluded that an inverse condemnation plaintiff lacked standing because it didn't own the property at the time of the taking. Russell Real Property Services, LLC v. Mississippi, No. 2015-CA-01306-SCT (Sep. 15, 2016).
But where the Texas court's analysis failed to satisfy, we think the Mississippi court's approach was much more sound.
Russell claimed it owned a half interest in property which the State leased to the City of Pass Christian for use as a harbor and related development, and sued both for inverse condemnation. But Russell had only been quitclaimed its interest from the prior owner after the city and the state had entered into the lease. It claimed the taking occurred when the Secretary of State executed the lease.
But even applying Mississippi's "liberal" standing rules, the court concluded that Russell didn't have standing to assert the takings claim, especially because the quitclaim deed from the owner at the time of the lease (who presumably would possess the takings claim) did not expressly convey the right of action to Russell.
The court also rejected Russell's arguments that the taking continued (was "ongoing"), and that the taking occurred when it received its one-half interest in the property. Russell provided no authority to support this theory, and the court summarily dismissed it.
A new article worth your time by economist William Wade, "Theory and Misuse of Just Compensation for Income-Producing Property in Federal Courts: A View From Above the Forest," 46 Tex. Envtl L. J. 139 (2016).
Bill is familiar to regular readers, as he has been a frequent guest poster, and a prolific author. This article is his latest, and focuses on how compensation should be calculated in regulatory takings cases, and contrasts how lawyers view economic losses, and how economists view the same thing (not necessarily the same way).
We are grateful to the Texas Environmental Law Journal and the Environmental and Natural Resources Section of the Texas State Bar for their permission to post the article.
As we noted here, this year's Brigham-Kanner Property Rights Conference honoring Hernando de Soto will to be held in The Hague, Netherlands, at the International Court of Justice on October 19-21, 2016.
To push out word, the Owners' Counsel of America kindly produced a press release announcing our participation in two of the panel discussions, "Property’s Role in the Fundamental Political Structure of Nations," and "Defining and Protecting Property Rights in Intangible Assets."
We mention it here only to note, as this post's headline states, this may be the only press release (ever?) to mention Hugo Grotius. Left unanswered: how to pronounce "Grotius."
“I am honored to have been invited to speak at the Brigham-Kanner Conference, especially when the Conference is honoring Hernando de Soto, whose work on property rights has had such international influence,” said Thomas. "I’m also glad the Conference will be held at the International Court of Justice, because The Netherlands was the home of Hugo Grotius, whose Reformation-era writings on property rights remain influential to this day," he said.
With that accomplishment crossed off our bucket list, we return you to your regular programming.
Denials of rehearing and motions for en banc review from a state intermediate appellate court generally do not catch our attention. But Ganson v. City of Marathon, No. 3D12-777 (Sep. 14, 2016) is the exception to that rule.
This is a long-running regulatory takings dispute between property owners in the Florida Keys -- who are making a Lucas claim that the City's regulations prohibit economically beneficial use of their island -- and the appropriately-named City of Marathon (see here and here, for example).
The majority ruling is just what you'd expect in a disposition such as this: a one word per curiam "Denied," with 6 judges concurring. The reason we're posting the ruling, however, is the 3-judge dissent, which starts off like this:
This is a significant regulatory takings case, the holding of which is that a local government can regulate private property to an extent that is functionally comparable to the classic physical taking—without paying just compensation—so long as it does so incrementally over a period of time. This cannot be, and indeed is not, the law. I respectfully dissent from the denial of the Beyers’ motion for rehearing en banc, and write to explain my disagreement with this Court’s willingness to dispense with applicable Takings Clause precedent to reach a result that is contrary to the constitutional principle that excessive economic injuries caused by government action be compensated.
Order at 2.
If that isn't enough to grab your interest, the dissent contains a summary of the facts, which start in 1970 with the plaintiffs' purchase of the land, and the government's subsequent efforts (starting in 1986, apparently) to prevent them from development, has a good rundown of regulatory takings law, and some editorializing about the state of federal regulatory takings jurisprudence ("not particularly coherent," "genuinely enigmatic," for example).
But we think you should read the entire dissent, because it peels back the usual judicial curtain and exposes how some takings decisions -- seemingly inexplicable, except as a result designed to save the government fisc -- get rendered. Here, according to the dissent, the owners are being "required to leave their property in its natural state." Dissent at 13. The Special Master concluded, "[o]ther than the Applicant being allowed to enter into the property to camp, there is absolutely no allowable use of the property under the City of Marathon Land Development Regulations." Id. Yet the court earlier "went to great lengths to transform the [owners]' categorical challenge into one controlled by the ad hoc, factual inquiry set forth in Penn Central." Id. at 12 (footnote omitted). "Unfortunately, despite the unmistakable parallels between the economic impact in Lucas and the economic impact on [these owners]' property, [their] challenge was never considered under Lucas's total regulatory takings framework. Id. at 14. There's more, but really, you should just read the dissent.
Will this result in an effort to seek further review by the Florida Supreme Court (or higher)? We wouldn't be surprised at all.
*We know the lyrics to the Buffet song are "wasted away," but we took artistic license with this post's title, since we think "wasting away" more accurately describes the situation here where the property owners have been engaged in a Marathon struggle.
We love quo warranto cases. Not just because "if it ain't Latin, it ain't the law' (as one of our favorite law school profs informed us), but because they are yet another means for citizens to challenge those holding and exercising power.
Here's the latest from the Hawaii appellate courts, Ford v. Leithead-Todd, No. CAAP-15-0000561 (Sep. 8, 2016).
The case involved the requirement in the County of Hawaii Charter that the Director of the Department of Environmental Management possess "an engineering degree or a degree in a related field." The mayor and county council hired a lawyer who did not have an engineering degree -- only a bachelors with a major in English and a minor in Hawaiian studies, plus a JD -- and a citizen brought a quo warranto suit challenging her qualification for office.
The circuit court granted the County's motion for summary judgment, concluding that the quo warranto plaintiff bore the burden of proving that the mayor and council abused their discretion in interpreting the "related field" provision. Agency decisions are entitled to judicial deference, after all.
The Intermediate Court of Appeals disagreed.
First, the court made short work of the burden being placed by the trial court on the petitioner. The ICA correctly noted that in quo warranto proceedings, once the writ is issued by the court ordering the respondent to respond, the burden is on the respondent to prove they are qualified for the office.
Second, the ICA held that neither the mayor nor the council are "agencies," and thus "are not entitled to deference as political bodies or as agencies in their appointment of Leithead-Todd in this quo warranto action. In a quo warranto action, the circuit court is not acting as an appellate court, like it would in an appeal from an agency decision under HRS § 91-14(a) (2012 Repl.), but instead reviews whether a person who claims office has the authority to do so." Slip op. at 8-9.
Finally, the court rejected the County's "cursory" argument that this issue is a nonjusticiable "political question." The question of the Charter definition hasn't been given to the political branches, nor is the term "related field" so beyond a court's competence that it simply cannot make a ruling.
Judgment vacated, case remanded to apply the correct standards.
This case illustrates the problems that can arise when the idealistic desire to raise the level of professionalism of county officials runs into the practical reality of a shallow gene pool. The Big Island population isn't that large, and sometimes you may not have someone who both possesses the prime qualification, and will take the job.
He's also the Chair-Elect of the ABA State & Local Govt Law Section, and former Chair of the Section's Eminent Domain Committee
Twitter - @invcondemnation
Hawaii Member OCA
Information about the 35th Annual Eminent Domain & Land Valuation Litigation Conference, Charleston, SC, January 25-27, 2018 (and the 2017, 2016, and 2015 San Diego, Austin, and San Francisco Conferences)
All upcoming and past seminars, conferences, and events here
At the 2016 Brigham-Kanner Property Rights Conference in the Hague, The Netherlands (October 19-20, 2016, I'm speaking on two panels: "Property's Role in the Fundamental Political Structure of Nations," and "Defining and Protecting Property Rights in Intangible Assets." More information here.
This blog is not sponsored by the author's firm, and the views expressed by the author are just that; they are not the views of his clients, his firm or its clients, or anyone but for the author.
© 2005-2015. All rights reserved.