April 2012

The Supreme Court will not be reviewing the case in which a Manhattan property owner and developer was challenging the compensation awarded by New York courts for a taking near Lincoln Center. River Center LLC v. Dormitory Auth. of the State of New York, No. 11-922 (cert. petition filed Jan. 23, 2012). 

New York’s Appellate Division denied the property owner the right to present and have considered evidence about the valuation of the property because 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, argued in its cert petition that the …

Continue Reading Cert Denied In Manhattan Just Compensation Case

How hard is it for the government to obtain a Williamson County dismissal that a federal takings claim is not ripe for federal court reivew? Not too hard, says Justice Souter.

Justice Souter? But wait, didn’t he retire, you ask? Recall that Supreme Court justices who retire from the Court don’t really “retire” in the sense that they may continue to sit and hear cases in the federal courts of appeals. Justice O’Connor has done so, and Justice Souter did so in Efron v. Mora Dev. Corp., No. 11-1347 (Mar. 26, 2012, a case from the First Circuit involving a claim for a regulatory taking in Puerto Rico.

The Puerto Rico highway department condemned Efron’s land, and although he objected, the Commonwealth court transferred ownership and possession to the department. Efron then went to federal court on civil rights claims against the department and Mora Development, alleging that they…

Continue Reading Justice Souter: Dismissal Under Williamson County Is So Easy, A Caveman Could Do It

Today’s post is by our colleague 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, and for his earlier guest posts on these issues. Thor reports on the latest developments in attorneys fee recovery in Tucker Act and Little Tucker Act cases below.

For more on the issue Thor discusses, see DOJ Ordered to Pay $2.24M in Legal Fees in Property Dispute (Blog of Legal Times).

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The Justice Department’s most recent defeat in a series of losses the DOJ has suffered was handed to the DOJ last week by Judge Williams…

Continue Reading Hash v. United States – Attorneys Fees Under The URAA

They say revenge is a dish best served cold.

But in Filarksy v. Delia, No. 10-1018 (Apr. 19, 2012), it apparently came with a side dish of “in your face victory dance.”

Check out this story about Mr. Filarsky’s reaction to his unanimous Supreme Court win in that case.

Disclosure: along with my colleagues at the ABA Section of State and Local Government Law, I filed an amicus brief in the case on behalf of the American Bar Association supporting the lawyer’s claim to immunity. But we had no idea this was coming!Continue Reading Revenge Is A Dish Best Served … With A Side Dish Of “In Your Face!”

Here’s the motion for preliminary injunction we filed yesterday in the federal lawsuit challenging Hawaii’s exclusion of military personnel, their families, and university students who do not pay resident tuition, from the population count when reapportioning the state legislature.

The U.S. Census includes everyone who is a “usual resident” of Hawaii in its count of population — this includes servicemembers, their families, and university students. The Hawaii Constitution requires the Hawaii Reapportionment Commission to only count “permanent residents,” and in an opinion issued in January 2012, the Hawaii Supreme Court held this means the Commission must “extract” active duty military, their families, and university students who do not pay resident tuition from the 1.3 million+ persons counted by the Census as usual residents of Hawaii.

From the motion’s Introduction:

The Supreme Court maintains the touchstone of a state legislative reapportionment plan is population. Reynolds v. Sims, 377 U.S. 533…

Continue Reading Motion For Preliminary Injunction: Hawaii Legislative Reapportionment Must Include All Residents, And Cannot “Extract” Military, Military Families

It’s always a safe bet to predict that the Supreme Court will decline to review a case. Statistics, after all, are on the side of “cert denied” regardless of the substantive merits of a case.

But there are some cases, like Harmon v. Kimmel, No. 11-496 (cert. petition filed Oct. 17, 2011), the case challenging New York City’s residential rent control law as a taking (briefs here), that give you pause because they take a slightly different track: the respondents waived their right to respond, the Court invited them to file a BIOthe conference gets moved to April 20. Things like this make you go “hmmmmm.”

Well, the drama was for naught. Today, the Court issued the order denying cert. On one hand, it’s not surprising since the weight of statistics is never favorable, and from a practical standpoint, the Court might be reluctant to wade…

Continue Reading Cert Denied In NY Rent Control Challenge

In a per curiam unpublished decision, the U.S. Court of Appeals for the 11th Circuit affirmed the district court’s dismissal in Crystal Dunes Owners Ass’n v. City of Destin, No. 2011-14595 (Apr. 17, 2012) (per curiam opinion here, or below).

The plaintiffs own a strip of private beach in Destin, Florida. If the name of that locale sounds familiar, it’s because its the site of the Supreme Court’s recent decision in Stop the Beach Renourishment v. Florida Dep’t of Environmental Protection, in which the Court declined to confirm the existence of a “judicial takings” theory of recovery where the plaintiffs claimed the Florida Supreme Court changed the rules midstream and took their property as a consequence.

The latest case does not involve a claim of judicial takings, but has its genesis in the property owners’ beef with other branches of government, the city and the sheriff’s department.

Continue Reading 11th Cir: Property Owners Should Use Self-Help To Evict Private Beach Trespassers (Because Florida Self-Help Laws Always Work Out So Well)

Here is the Petition for Rehearing En Banc, in Bywaters v. United States, No. 2011-1032 (Fed. Cir. Mar. 1, 2012), an opinion we detailed here. In that case, a split panel of the Federal Circuit held that the property owner’s request for attorneys fees under the Uniform Relocation Assistance and Real Property Acquisition Policies Act was reasonable, but halved it because the amount of compensation sought and awarded was not that large. Here’s how the brief summarizes the issues:

In a 2-1 opinion, the panel majority construed the URA for the first time and set new standard for trial courts to follow when calculating reasonable attorneys’ fees pursuant to the URA, 42 U.S.C. § 4654(c), the fee-shifting statute that applies to reimbursement of attorneys’ fees for both Little Tucker Act and Big Tucker Act cases. Slip op. at 8-9. The panel majority, over a strong dissent by…

Continue Reading Petition For Rehearing En Banc In Fed Cir Attorneys’ Fees Case: Small Property Owners Are Entitled To The Same Fee Awards As Large Property Owners

Your mission, should you choose to accept it: read Henderson v. City of Columbus, No. A-11-060 (Apr. 3, 2012), without creating bad puns about what a “crappy” or “stinky” case it must have been.

Why? Well, in that case, the Nebraska Court of Appeals held that the failure of the city’s sewage “lift station” after a heavy rain storm and the resultant flooding of the Hendersons’ “downstream” property with sewage could result in inverse condemnation. Nasty.

The most interesting part of the opinion begins on page 686, and discusses inverse condemnation in the context of these type of cases. The court rejected the argument that the property owner must prove the city was negligent, only that the city owned the sewer system, and the trial court concluded a city employee’s actions caused the sewage backup.

Long opinion, very detailed. Check it out.

Mission Accomplished. Continue Reading Nebraska App: Raw Sewage Flooding Property Is Inverse Condemnation

The editorial in today’s Honolulu Star-Advertiser writes:

The state Supreme Court’s ruling in January that determined how boundary lines should be drawn for this year’s election in August made scant reference to the agency created primarily for that purpose: the U.S. Census Bureau. That is why a lawsuit in federal court should result in the prompt ordering of the lines to be redrawn to conform with the nationally customary method of including military and out-of-town students in the population count, in time for the upcoming elections.

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The commission noted in its final report last year that the U.S. Supreme Court had ruled in 1962 that a state could not exclude military people from the population base “based solely on the nature of their employment,” but that seems to be what the state’s high court mistakenly has done.

In 48 other states, lines are drawn according to the Census Bureau’s…

Continue Reading Star-Advertiser: “Census should guide election boundaries”