March 2012

Today, the Texas Supreme Court issued opinions in Severance v. Patterson, No. 09-0387, the case before the court on certified questions from the U.S. Court of Appeals for the Fifth Circuit. The Fifth Circuit asked whether Texas recognizes a “rolling” beachfront access easement (a public easement on littoral property that moves with naturally caused changes in the vegetation line without proof of prescription, if Texas does recognize such an easement, what is its source (statute or common law), and would a landowner subject to this easement be able to obtain compensation under Texas procedures?  More on the case background here.

The Texas Supreme Court had issued opinions in 2010 affirming that no such “rolling easement” existed (opinions and briefs available here), only to grant the government’s motion for rehearing, apparently something you can do under Texas appellate procedure. So nearly a year ago, the Supreme Court…

Continue Reading Texas (Again) Affirms Property Rights: No “Rolling Easement” On Beaches

Here’s one for your California readers. You know Proposition 13, the provision in the California Constitution that limits property tax increases, and allows reassessment of value only upon a change of ownership, and you either love it or hate it: to some it insulates property owners from being forced out of their homes by uncontrolled property taxes, to others it is responsible for the downfall of California as the Golden State.

A property owner’s acquisition of replacement property for property taken in “eminent domain proceedings” in which the taken property is acquired by a “public entity,” is not a “change of ownership.” But what about when new property is purchased to replace property sold under threat of condemnation to a private developer who is teamed up with a government redevelopment agency — is that a “change of ownership” such that the property is assessed at current market rates?

In …

Continue Reading Cal App: Sale To Private Redeveloper Under Threat Of Condemnation Is A “Change Of Ownership” Under Prop 13

Here’s the BIO in in River Center LLC v. Dormitory Auth. of the State of New York, No. 11-922 (cert. petition filed Jan. 23, 2012), the case in which a Manhattan property owner and developer is challenging the compensation awarded by New York courts for a taking near Lincoln Center.

The Appellate Division denied the owner the right to present and have considered evidence about the valuation of the property because the court held that in order to be admissible, the property owner must be able to show the use it claims is the highest and best use is “established as reasonably probable and not a ‘speculative or hypothetical arrangement in the mind of the claimant,'” and that these plans will “come to fruition” in the near future.

The property owner, represented in the Supreme Court by Harvard lawprof Laurence Tribe, argues in its cert petition that the …

Continue Reading BIO In SCOTUS Just Compensation Case

Today is the first 90 minutes of the epic three-day appellate arguments in the “Obamacare” Supreme Court cases. No doubt, coverage of the arguments will suck all the air out of the punditry room, and leave little space for discussion of anything else.

As it should be. Whatever the outcome, these arguments are going to be legendary, the pinnacle of appellate practice: the Super Bowl, the World Series, the World Cup, the Daytona 500, all rolled up into one. Who could not be fascinated.

Rather than compete for your attention with talk of takings, eminent domain, the fallacy of Williamson County, and the usual topics of this blog, we thought we’d take the low road instead.

Exhibit “A” is the complaint in Helmburg v. Alpha Tau Omega Fraternity, Inc., No. 12-C-57 (filed Jan. 23, 2012). It’s a case that reminds us of that bane of first year…

Continue Reading In Other News On Obamacare Monday

ALI-ABAIn case you missed attending in person back in January, the annual eminent domain law conference (ALI-ABA’s Eminent Domain and Land Valuation Litigation) is now available on CD, mp3, and DVD here.

I was on the faculty, and along with Professor David Callies presented a session on The Role of Hawaii’s Unique Property Law in the U.S. Supreme Court’s Takings Cases. In addition to our session, there were presentations on such topics as Redevelopment in California, how to talk to juries about Just Compensation, Landlord and Tenant Issues in Eminent Domain, the latest in Highest and Best Use. And more.

Get your yearly CLE fix, including ethics credits, all for a great price. You can also purchase individual sessions,Continue Reading ALI-ABA Eminent Domain Conference 2012 Now On DVD & CD

Here’s the latest chapter in the Skyland Shopping Center saga that has given us Franco v. National Capital Revitalization Comm’n, 930 A.2d 160 (D.C. 2007) and several other reported opinions (DeSilva v. District of Columbia, No. 10-CV-1069 (Feb. 24, 2011); Rumber v. District of Columbia, 487 F.3d 941 (D.C. Cir. 2007); Franco v. District of Columbia, 3 A.3d 300 (D.C. 2010); Rumber v. District of Columbia, No. 09-7035 (D.C. Cir. Feb. 26, 2010) (per curiam); and Oh v. National Capital Revitalization Corp., 7 A.3d 997 (D.C. 2010)).

The latest opinion from the D.C. Court of Appeals, Franco v. District of Columbia, No. 11-CV-734 (Mar. 15, 2012), is the appeal after remand of the 2007 Franco decision, which recognized that property owners may object to a taking on the grounds that the proffered public use is really a pretext hiding private benefit.

We…

Continue Reading D.C. App Again Weighs In On Kelo And Pretext

Here’s what folks are saying about yesterday’s 9-0 Supreme Court decision in Sackett v. EPA, No. 10-1062 (Mar. 21, 2012):

Continue Reading Sackett Round Up

Today’s commentary is by our colleage Thor Hearne, who regularly represents property owners in the Court of Federal Claims, the Federal Circuit, and the Supreme Court. He recently joined us on the faculty of the ALI-ABA eminent domain program in San Diego, and spoke at the 2011 Brigham-Kanner Property Rights Conference in Beijing. He’s familiar to our readers who have followed his success in “rails to trails” cases in the CFC. Thor reports on the latest developments in those cases below.

Thor recently posted this summary, noting that the U.S. Department of Justice had lost a series of 16 Trails Act cases in a row during the past 12 months, and now updates us with the most recent decision, this time from the Indiana Supreme Court, Howard v. United States, No. 94S00-1106-CQ-333 (Mar. 20, 2012), a case in which the state court answered a question certified…

Continue Reading Guest Post: The DOJ And The Definition Of Insanity

Here is the Reply Brief in Harmon v. Kimmel, No. 11-496 (filed Mar. 20, 2012), the case in which a Manhattan property owner is challenging New York’s rent control law as unconstitutional:

Respondents confuse the issues with their scattershot assertions that rent stabilization concerns merely “landlord tenant relations,” “economic regulation,” “price controls” and “economic liberties,” and is just a matter of political and legislative policy. They disregard controlling precedent of this Court and seemingly concede that the Court of Appeals was mistaken. They also each acknowledge the existence of the “different case” standard set forth in Yee v. City of Escondido, 503 U.S. 519, 528 (1992). However, despite having argued otherwise to this Court and to the Court of Appeals in prior litigation, the State now argues that rent stabilization does not present the elements of the “different case” standard. The conflcts with decisions of this Court and…

Continue Reading Petitioner’s Reply Brief In New York Rent Control Case: “Permanent dispossession is nine-tenths of this law”

Update 2: more commentary here.

Update 1: Two quotes worth noting:

“Scalia joked in summarizing the decision from the bench that the Sacketts were surprised by the EPA decision that their land contained navigable waters of the United States ‘having never seen a ship or other vessel cross their yard.”” Oh Justice Scalia: you complete me. (via the WaPo)

Justice Alito (mirroring his oral argument question): “The position taken in this case by the Federal Government—a position that the Court now squarely rejects—would have put the property rights of ordinary Americans entirely at the mercy of Environmental Protection Agency (EPA) employees. The reach of the Clean Water Act is notoriously unclear. Any piece of land that is wet at least part of the year is in danger of being classified by EPA employees as wetlands covered by the Act, and according to the Federal Government, if…

Continue Reading Unanimous SCOTUS: Property Owners Entitled To Judicial Review Of EPA “Compliance Order”