June 2011

In case you were not paying attention on this fine Thursday, here comes the Federal Circuit’s opinion in Mildenberger v. United States, No. 2010-5084 (June 30, 2011). It’s an interesting opinion because it deals with the mildly metaphysical question of when the six year statute of limitations for inverse condemnation claims against the federal government commences in cases where the taking and damage to the property is gradual, and nearly imperceptible.

In many cases, inverse condemnation claims are not like straight condemnation where the property owner knows when her property is being condemned, because in an inverse claim the owner doesn’t get served with a complaint, but instead must institute the suit after her property is taken or damaged, and it is often not clear when property has been taken or damaged to such an extent that a claim must be brought. The general rule is that a property…

Continue Reading Federal Circuit On The Metaphysics Of Takings Claim Accrual

It’s a well-worn refrain, heard often in the environmental context: “The property owner wouldn’t be in this fix if she just ___________.” Fill in the blank with “commissioned an Environmental Assessment” — or “Environmental Impact Statement,” or “applied for a development permit,” or similar.

At first blush, it’s an appealing argument — “Just follow the law.” But like other facile arguments, it often fails in the details department: doing so can delay a development for years, and it can cost thousands of dollars — or hundreds of thousands — to put together an application for environmental review or for a permit, or even to seek a government determination that a proposal is exempt from review or otherwise outside the regulatory jurisdiction of a permitting agency.  In those situations, not only are the costs unnecessary, the time and money involved can kill the plans, especially for small property owners. “Death by…

Continue Reading SCOTUS Agrees To Hear Wetlands Case: Immediate Judicial Review, Or Death By A Thousand Days?

That’s not the most elegant of headlines, but to those of you interested in the valuation of equipment and machinery in eminent domain cases, you’ll like this post.

[Update: more from our Michigal Owner’s Counsel colleague Alan Ackerman at the National Eminent Domain Blog, and from the Rocky Mountain Appellate Blog.]

Thanks to our Owners Counsel of America colleague Anthony Della Pelle for alerting us to the recent opinion of the Virginia Supreme Court about “fixtures” in Taco Bell of America, Inc. v. Commonwealth Transp. Comm’r, No.10-92465 (June 9, 2011).

In eminent domain cases, “fixtures” are generally considered to be part of the property taken, and thus compensable. The issue in the case was whether the trial court should have allowed the jury to make the determination that a restaurant’s equipment were fixtures, or whether the equipment was personal property and thus noncompensable. The Virginia DOT…

Continue Reading Va Supreme Court Thinks Outside The Bun: Use And Intent Keys To Determination Of “Fixture,” Not Moveability

Yesterday, we reported on the South Carolina Supreme Court’s opinion in Brown v. Howard, No. 26991 (S.C. June 21, 2011), holding that “the Takings Clause of the Fifth Amendment to the United States Constitution is implicated when an attorney is appointed by the court to represent an indigent litigant. In such circumstances, the attorney’s services constitute property entitling the attorney to just compensation.”

The opinion is generating some buzz (see the Legal Profession blog and John Blackman’s blog), so we thought we’d post the South Carolina Bar’s amicus brief since the opinion focused on the Bar’s arguments:

The South Carolina Bar appears Amicus Curiae. The Bar contends that the appointment of attorneys to represent indigent litigants implicates the Takings Clause of the Fifth Amendment to the United States Constitution. See U.S. Const. amend. V (“[N]or shall private property be taken for public use without just compensation.”). We agree…

Continue Reading Amicus Brief In S. Carolina Case: “The State may not require a lawyer to spend office overhead or render his services on an appointed case without providing just compensation.”

We hold today that the Takings Clause of the Fifth Amendment to the United States Constitution is implicated when an attorney is appointed by the court to represent an indigent litigant. In such circumstances, the attorney’s services constitute property entitling the attorney to just compensation.

Brown v. Howard, No. 26991 (S.C. June 21, 2011).*

Brown was appointed as defense counsel in a case in which Howard was charged with serious felonies “including first degree criminal sexual conduct, two counts of kidnapping, two courts of armed robbery, and possession of a weapon during the commission of a crime.” South Carolina law limits attorneys fees in indigent criminal defense matters to $3,500, S.C. Code Ann. §17-3-50(A), and Brown asked the court to withdraw, “stating that his obligations to an appointed capital case were taking up substantial amounts of time.”

The court declined Brown’s repeated “belligerent” requests. When Brown refused to…

Continue Reading South Carolina: “Court-Appointed Attorneys’ Service Is Property For Purposes Of The Takings Clause”

We predicted the Supreme Court wasn’t finished with judicial takings or judicial takings-like issues after its decision (or, more accurately, non-decision) in Stop the Beach Renourishment v. Fla. Dep’t of Envt’l Protection, 130 S. Ct. 2592 (2010). It looks like we might have more grist for the mill, because today, the Court agreed to review the Montana Supreme Court’s ruling in PPL Montana, LLC v. State of Montana, 229 P.3d 421 (Mont. 2010), a case we previewed here.

The issue in the case is who owns the land under certain Montana rivers. For more than 100 years, there wasn’t any doubt: the riverbeds were private property, or were federal property. The Montana Supreme Court concluded otherwise, and held that the state owns that property, and that PPL Montana, a power company, owed $50 million in rent. The (now former) property owner filed a cert petition, asking…

Continue Reading State Court’s Land Grab To Be Reviewed – Cert Granted In Montana Navigability Case

“Hard cases make bad law” goes the cliché.* But in the case of the Williamson County ripeness requirement in federal takings cases, the bad law is an entirely self-inflicted wound and cannot be blamed on lousy facts or hard cases. Others have done a much better job of deconstructing Williamson County‘s faulty history and rationale and the “bad law” the opinion has wrought (see here and here for examples), but we’ve taken our share of shots too.

But for an example of Williamson County unfairness, look no further than the case behind this order entered by the U.S. District Court for the Eastern District of Michgan in Oakland 40, LLC v. City of South Lyon, No. 10-14456 (May 18, 2011).

The case started out as a rather typical land use dispute, with a property owner who wanted to use its industrial zoned land for homes, and who…

Continue Reading Williamson County: An Absurdity Wrapped In A Fallacy Inside A Contradiction

If you hear that property owners should not worry too much when their homes, land, or businesses are targeted for eminent domain because the government has their best interest in mind and will treat them fairly, pay attention to this case. 

Most understand government’s power to take property by eminent domain. (Note: we don’t like the term “right” when speaking of eminent domain, since governments don’t possess “rights” only those powers delegated to them by the people. So while we often use the convenient shorthand “right to take,” it is a misnomer.) But when can the government stop taking property? How about after it settles a case? After it stipulates to judgment?

In Village of Bellwood v. American National Bank & Trust Co., No. 1-09-3115 (June 7, 2011), the Illinois Court of Appeals held that an Illinois statute that prohibits a condemnor from unilaterally abandoning a taking after…

Continue Reading Illinois Ct App: Condemnor Can Abandon Eminent Domain Action, Even After Settling Case

The technical legal question before the Court in Nevada Comm’n on Ethics v. Carrigan, No. 10-568 (June 13, 2011) was whether legislative voting by an elected official was “speech” and if so, whether the First Amendment allowed him to vote for a casino development proposal in which his campaign manager and personal friend was the developer’s paid “consultant.”

The Court’s opinion, however, revealed that what was at stake in the case was much more than metaphysical First Amendment questions and “good government” laws, because the heart of the opinion reaffirmed the core principle of representative government: when casting votes, elected and appointed officials are not speaking for themselves, but are exercising power “that belongs to the people.”

Justice Scalia, writing for CJ Roberts, and Justices Kennedy, Thomas, Ginsburg, Breyer, Sotomayor, and Kagan, concluded that a legislator’s vote is not speech because a city council member is not “saying”…

Continue Reading Legislators’ Voting Is An Exercise Of “Power,” Not “Speech”

A new case worth watching has been filed in Hawaii state court (Third Circuit, the Big Island) that involves allegations of vested rights and estoppel, Nollan/Dolan exactions, state and federal due process and takings, inverse condemnation, and equal protection.The

See below, the Complaint in Bridge Aina Le’a v. State of Hawaii Land Use Comm’n, No 11-1-1145-06 (KKS), filed last week, in which the plaintiff asserts that the Land Use Commission changed the land use boundaries from “urban use to agricultural use while affordable housing was being constructed on the property.”

More here, from West Hawaii Today.

Complaint, Bridge Aina Le’a v. State of Hawaii Land Use Comm’n, No. 11-1-1145-06 (KKS) (filed 6-7-2011)Continue Reading New Lawsuit To Watch: Land Use Commission, Vested Rights, Civil Rights