December 2014

W’re not going to say much about the U.S. Court of Appeals for the Third Circuit’s decision in Columbia Gas Transmission, LLC v. 1.01 Acres, No. 13-4458 (3d Cir. Sep. 26, 2014), since the opinion is not too long, and the court’s conclusion is pretty “straightforward” as it noted:

The issue before us is straightforward: does Columbia Gas Transmission, LLC (“Columbia”), have the right of eminent domain to obtain easements over the land of objecting landowners, outside of the existing right of way, in order to replace deteriorating pipeline? The answer is equally straightforward and clear: yes. 

The regulatory authority given to natural gas companies such as Columbia actually anticipates replacement outside the existing right of way as we discuss below, and contains no adjacency requirement. The issue before us, then, whether Columbia has a right to replace the pipeline outside of the existing right of way, is actually…

Continue Reading 3d Cir: Pipeline Company Has “Right” Of Eminent Domain

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In State of Oregon v. Alderwoods (Oregon), Inc., No. A146317 (Sep. 17, 2014), an en banc equally-divided Oregon Court of Appeals affirmed the trial court’s determination that while the property owner possessed a property right in access to a public highway, that common law right was worth … pretty much nothing. 

Being an affirmance by an equally-divided court, there’s no majority opinion only a per curiam statement that’s exactly 6 words long (“Affirmed by an equally divided court.”). The real back-and-forth takes place in the concurring and dissenting opinions. 

Under Oregon common law, owners of properties abutting a state highway or county road have a right of access to the highway. And while the concurring judges in Alderwoods paid lip service to that right, they concluded that since that right may be regulated, there was no need for the state to pay just compensation when it took that …

Continue Reading Oregon App: Your “Common Law” Right To Access A Street Can Be Regulated Away, So You’re Owed Nothing If It’s Taken

Another one of those we’ve been meaning to post before 2014’s end.

In Tribett v. Shepherd, No. 13 BE 22 (Sep. 29, 2014), the Ohio Court of Appeals held that the 1989 version of the Ohio Dormant Mineral Act did not work a taking.  

The plaintiffs own a 61-acre parcel. Their predecessors in title sold the surface rights and coal interests 50+ years ago, but retained all other mineral interests. These interests ended up at issue in the quiet title action between the Tribetts and the Shepherds. The Tribetts asserted that the Shepherds’ mineral interests were deemed abandoned under the Act. The Shepherds, of course, asserted otherwise, arguing the Act was not applicable, or if it was, it worked a taking of their property rights in the minerals:

The Shepherds, on the other hand, argued that the mineral interests were not abandoned. They contended that the 2006 version…

Continue Reading Ohio App: Dormant Mineral Statute Not A Taking

We all know that in straight condemnation actions, the condemnor must usually name all parties with an interest in the land as defendants. Indiana law is no different, although the Indiana Supreme Court has ruled that nonjoinder is not a jurisdictional defect. In Snyder v. Town of Yorktown, No. 18A02-1405-CT-332 (Oct. 10, 2014), the Indiana Court of Appeals considered an argument that the same holds true in inverse cases.

While upgrading its sewer system, the town needed access to Snyder’s property. She said no to an easement. The town’s contractors entered anyway, excavated a trench, and installed a storm pipe. This resulted in her filing an inverse condemnation action. 

The town asserted that her claim was missing a needed party, a mortgagee. It argued that in an eminent domain action, all those with an interest in the property would need to have been named, and the same holds true…

Continue Reading Must An Inverse Condemnation Plaintiff Name All Parties With An Interest In The Property?

In Admasu v. Port of Seattle, No. 70220-3-1 (Dec. 18, 2014), the Washington Court of Appeals held:

  • No class certification for owners who claimed that overflights and noise from Sea-Tac airport inversely condemned their property. The common questions did not predominate, because inverse condemnation and the extent of the diminution of value is a property-specific exercise. 
  • Some of the properties were burdened by an avigation easement, and the court held those owners had already bargained away any rights regarding overflights. Thus, no property was taken from them.
  • The claims of owners who asserted noise damage were precluded by the federal Aviation Safety Noise Abatement Act of 1979.  
  • But claims for damage from vibration, toxic discharges, and fumes, were not precluded. For these claims, the court of appeals concluded the Port had not adequately supported its summary judgment motion in the trial court, and reversed and sent the case

…
Continue Reading Wash App: No Class Action For Airport Inverse Cases

St. Charles Land Co. II, LLC v. City of New Orleans, No. 14-CA-101 (Dec. 23, 2014), involved the amount of compensation in an inverse case over 8.08 acres of New Orleans land used for the extension of an airport runway. The trial court determined just compensation at $30,740.

Here’s the heart of the opinion:

Upon review of the record in its entirety, we find the trial court committed manifest error in valuing the property at issue as unimproved wetlands and canal bottom outside the levee protection system, or “wet.” The first step in valuing appropriated land is to determine the highest and best use of the property. As discussed above, the current use of the property is presumed to be the highest and best use. However, the landowner may overcome this presumption by proving a different highest and best use based on a potential future use. See Exxon Pipeline…

Continue Reading La App: Wetlands Should Have Been Valued As “High And Dry”

Here’s the Washington Court of Appeals in City of Bellevue v. Pine Forest Properties, Inc., No. 71827-4-1 (Dec. 22, 2014):

Without question, condemnation of the property for construction of the East Link Project and the City’s road improvement project is a public use.

Slip op. at 15. There’s more detailed analysis in the court’s 25 page opinion, of course, but you really didn’t need to read more than the above, did you?

City of Bellevue v. Pine Forest Properties, Inc., No. 71827-4-1 (Wash. App. Dec. 22, 2014)

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Federal Circuit On Williamson County Ripeness And Other Takings … Stuff
Montana: Lis Pendens Not A Taking
Amicus Brief: Eminent Domain Jury Can’t Be Kept In The Dark About The Condemnor’s Initial Valuation

Continue Reading Wash App: Temporary Taking For Rail Project Construction Staging A Public Use

Continuing our year-end opinion rush, here’s Thaw v. Moser, No. 14-40108 (Oct. 9, 2014).

Mr. Thaw sought bankruptcy protection. As part of the process, the trustee was going to sell the house he owned with Mrs. Thaw, who was not bankrupt, and claimed a homestead exemption. 

The Fifth Circuit rejected Mrs. Thaw’s claim that selling her interest in the house was a taking. Before 2005, the bankruptcy code allowed a non-debtor spouse to have a compensable interest in a home jointly-owned with the debtor. But amendments to the code in 2005 capped and eliminated the homestead exemption. And since the Thaws purchased their home after 2005, Mrs. Thaw did not have a vested right that was taken.

The court rejected the argument that in Palazzolo v. Rhode Island, 533 U.S. 606 (2001), the Supreme Court eliminated the “notice” argument:

Palazzolo’s narrow exception has no application here.

Continue Reading Fifth Circuit: Forced Sale Of Home In Bankruptcy Not A Taking Because Bankruptcy Law Preceded Purchase

Back in the day, before the cycling craze really hit the U.S., we were really into the sport. Wool jerseys, toe clips, and other stuff that is now probably considered retro. We also followed the European racing scene, even though the only American to follow was Greg LeMond.

LeMond has long since retired, but he’s apparently still competitive. In LeMond v. Yellowstone Development, LLC , No. DA 13-0383 (Aug. 20, 2014), he sued after a deal to purchase adjacent property fell through:

Blixseth sent an e-mail on behalf of Yellowstone Development on September 21, 2000. The e-mail stated, “The deal is that if Greg brought in 10 people who bought at the club, he would receive the lot.” The e-mail continued, “We did reach agreement that if after 5 years he had brought in less than the 10, he could pay the difference at the rate of $100,000 per…

Continue Reading Montana: Lis Pendens Not A Taking

A short one (as usual) from the New York Supreme Court, Appellate Division.

The court’s opinion in New Creek Bluebelt, Phase 4 v. City of New York, No. D42909 (Nov. 19, 2014) is so brief, you should just read it yourself. But here are the highlights:

  • The city condemned a 19,500 square-foot vacant parcel on Staten Island.
  • The property had been designated “wetlands” before the current owners acquired it.
  • Applying a Penn Central analysis, the trial court determined, and the appellate division affirmed, that it was reasonably probable the wetlands designation was a regulatory taking. 
  • The regulations resulted in an 82% diminution of value.
  • That’s usually not enough, standing alone, but the regulations also were an “effective prohibition on development on any part of the property.”

For more, see this post (“Appellate Division Affirms 75% Increment Applicable to Wetlands Taking“) from our Owners’ Counsel colleagues at Goldstein, …

Continue Reading NY: Reasonable Probability That Wetlands Designation Is A Regulatory Taking Under Penn Central