November 2007

Update: More on the case here and here.  Professor Gideon Kanner’s take on the case here.

Update 3/2008: The parties have settled.

Check out the Findings of Fact and Conclusions of Law  issued by the US District Court for the Northern District of California in Yamagiwa v. City of Half Moon Bay, No. 05-4149 VRW (Nov. 28, 2007).  No need to digest all 167-pages: the bottom line is that the court awarded a judgment of $36.8 million because the city caused the plaintiff’s property to become wetlands, and rendered it undevelopable. 

The court held that the city was liable for inverse condemnation under both California and federal law, and that the compensation to be awarded to the landowner was difference in the value of the property before the taking, compared to after.  The court also held the city liable for common law nuisance and…

Continue Reading No. Cal. Federal Court Whacks City for $36.8m Inverse Condemnation Award

In UFO Chuting of Hawaii, Inc. v. Smith, No 05-16545 (Nov. 28, 2007), the Ninth Circuit held:

We hold that UFO’s right to operate vessels under its federal maritime coasting licenses does not preempt Hawaii law prohibiting parasailing off the coast of Maui during limited portions of the year to protect mating humpback whales.

Read the entire opinion here.  Oral argument recording here (9mb wma).  Professor Shaun Martin’s comments on his California Appellate Report about the case get right to the point:

Sometimes when you win, you only think you win. Therotund woman needs to finish her aria. And you need to cash the check.Otherwise, that celebratory party you’re having may come to anunexpected — and totally crashing — halt. Especially when you arelitigating against a state.

Why do I say these things?  Well, first, because they’re true.  And, second, because this case definitely brings these lessons home.…

Continue Reading 9th Circuit: Federal License Does Not Preempt Hawaii’s Whale Protection Law

Thanks to both Patty Salkin’s Law of the Land blog and Gideon Kanner’s Gideon’s Trumpet, we’ve been alerted to a regulatory takings case from the Georgia Supreme Court that presents an unusual fact pattern.  In Mann v. Georgia Dep’t of Corrections, No. S07A1043 (Nov. 21, 2007), the court struck down as an illegal taking a Georgia law that prohibited convicted sex offenders from living within 1,000 feet of a school or child care facility. 

Mann, an offender, was living legally in a home he owned, when a child care facility located within 1,000 feet.  The Department of Corrections ordered Mann to leave upon pain of arrest.  Professor Salkin summarizes the case here, and Professor Kanner adds his analysis here.  They both sum up the facts and holding of the case very thoroughly. 

The court noted that the effect of the Georgia statute wasnot simply to interfere…

Continue Reading Law That Requires Sex Offender Move From Home is a Regulatory Taking

The Federalist Society’s section on property rights and environmental law has posted audio (14mb mp3) (with video coming soon) of a recent debate held in Washington, D.C., about the state of Property Rights in the United States.  Two Ninth Circuit judges, Alex Kozinski and Stephen Reinhardt, anchored the debate.  Jim Burling of the Pacific Legal Foundation moderated.  Continue Reading Property Rights in the United States: a Debate (mp3)

The US Court of Federal Claims (CFC) is the court assigned jurisdiction under the Tucker Act to hear inverse condemnation and regulatory takings claims against the federal government where the remedy sought is money damages.  The CFC is an “article I” court meaning its judges do not have life tenure as do judges of article III courts, but aside from that and its limited jurisdiction, it functions very much like the district courts.  Appeal of the CFC is taken to the Court of Appeals for the Federal Circuit.  Here is a rundown of a few of the court’s recent decisions involving takings issues:

Contract is not “property” — Griffin Broadband Communications, Inc. v. United States, No. 06-898C (Nov. 19, 2007).  The court dismissed a takings claim based on a contract between the plaintiff and the Army to provide TV and communication services at Fort Irwin, California.  After 10…

Continue Reading Court of Federal Claims Takings Roundup

As reportedby the ABC affiliate in Cincinnati in September, an Ohio state courthas ordered the City of Norwood to make whole the property owners whowere wrongfully targeted by the City for eminent domain.  The decisionis the fallout from the Ohio Supreme Court’s decision in City of Norwood v. Horney,853 N.W.2d 1115 (Ohio 2006), which struck down the City’s attempt totake private property by eminent domain.  The court held that there wasnot a public use for the taking under the Ohio Constitution, andinvalidated a part of Ohio’s eminent domain statute.  After that decision, the property owners asked the trial court to “be made whole—to be able to return our business to itscondition before Rookwood and the City illegally took it from us.”

On September 25, 2007, the judge held that “[t]he Court finds that, in order to carry out the Supreme Court’s ruling,the [property owners] are entitled to be…

Continue Reading Ohio Court Makes Property Owners Whole After Eminent Domain Struck Down

The Wall Street Journal details impact fee issues in “Rising Use of ‘Impact’ Fees Rankles New-Home Buyers,” with some truly horrific examples, including one couple whom a California city demanded pay a $240,000 fee to get building permits to construct a rural home valued at $500,000, and homeowners who were required to sign away their first amendment rights as a condition of obtaining a permit.  Worth a read.

Exactions are not limited to demands for cash.  For example, the County of Maui imposes a 40% – 50% “affordable” requirement on new housing developments.  See this post for more. Continue Reading Wall St. Journal on Impact Fees and Exactions