February 2015

Have you ever read one of those opinions where each piece seems okay, but as a whole the result just doesn’t sit well? The Idaho Supreme Court’s opinion in State of Idaho, Dep’t of Transportation v. Grathol, No. 40168 (Feb. 11, 2015) is just one of those.

You’ve no doubt heard a lot about “eminent domain abuse” in the past few years, and that’s what seemed to fuel the opinion. Except here, it wasn’t abuse of the property owner by the condemnor, but rather the other way around: the overall vibe of the opinion was that the court wasn’t too pleased with the property owner’s approach. It determined the appeal was “extreme and unlikely” and assessed the property owner the attorneys’ fees and costs the government incurred on appeal.

It also concluded that the property owner may have interposed “extreme and unlikely” defenses in the trial court, even though…

Continue Reading “Eminent Domain Abuse” Turnaround In Idaho: Property Owner Liable For Condemnor’s Attorneys Fees For “Extreme And Unlikely” Appeal And Defenses

Here’s the latest in an issue we’ve been following out of North Carolina.

In Kirby v North Carolina Dep’t of Transportation, No. COA14-184 (Feb. 17, 2015), the N.C. Court of Appeals not only held that the property owners’ claims were ripe, but that the Map Act — which gives the DOT the ability to designate property for future highway use and prevent its development in the meantime — effected a taking. The court reversed the trial court’s dismissal and sent the case back down for a calculation of the compensation owed to each property owner. A big win for the property owners.  

We’ve set out the background here and here, but the short story is that the N.C. legislature adopted a statute which allows the DOT to designate future highway corridors, but doesn’t require it to actually acquire the property. Once the DOT files a map showing…

Continue Reading NC App: “Map Act,” Which Land Banks Property For Future Highways, Is A Taking

Here’s the latest pipeline takings case from Texas.

This one has been to the Texas Supreme Court before (see our post “‘Common Carrier’ Claim Subject To Actual Judicial Review“). That decision required trial courts to make an actual and factual inquiry into a claim that a pipeline company is a common carrier with the power of eminent domain, and not just accept the fact that the company registered as a common carrier as conclusive. The court sent the case back down, but the trial court concluded that the pipeline operator was a common carrier because after the pipeline’s construction, the operator had the intent to move some CO2 belonging to another entity through the pipeline. It granted the pipeline company summary judgment on the common carrier issue. 

In Texas Rice Land Partners, Ltd. v. Holland, No. 09-14-00176 (Feb. 12, 2015), the court of appeals disagreed after applying…

Continue Reading Tex App: Pipeline Isn’t A Common Carrier With Power Of Eminent Domain Just Because Post-Taking It Might Transport Others’ CO2

This is the first of two posts today out of the Tar Heel State (here is the other one). 

North Carolina lawyers no doubt knew this, but we can’t say that we did: the North Carolina Constitution currently does not have a provision that mirrors the Fifth Amendment’s Takings Clause. 

According to these reports (“Eminent Domain bill passes committee” and “NC Lawmakers Look To Restrict Land Seizures With Constitutional Amendment“), the N.C. legislature is considering a measure to add the following text to the state constitution:

Sec. 19.1. Eminent domain.

Private property shall not be taken by eminent domain except for a public use. Just compensation shall be paid, and shall be determined by a jury at the request of any party.”

See the entire bill, and the related proposed amendment to state statutes (which takes out the words “use or benefit” from the…

Continue Reading Who Knew? The North Carolina Constitution Doesn’t Have A “Takings” Clause

Here’s the trial court’s opinion in one of the Jersey Shore “dune replenishment” cases we’ve been following.

These are the cases in which owners of beachfront property (or in one case, a municipality itself) objected to the state and local governments summarily taking easements on private property to be used to armor the shoreline against future hurricane damage. In response to Sandy, the federal government threw $3.461 billion at the shoreline in New Jersey and other states damaged by the hurricane, and as part of the package, the state and local governments were tasked with being “responsible for the rapid acquisition of property” needed.

As we posted earlier, the main issue in the cases is whether the government can take easements on private property by simply declaring that it has done so, without first condemning the easements under New Jersey’s eminent domain statutes. This was an “emergency” …

Continue Reading NJ Court: There’s No Substitute For The Eminent Domain Process, Even On The Shore, Even In An “Emergency”

Yesterday, we were able to attend the Ninth Circuit oral arguments in a case which we posted on last month, Rancho de Calistoga v. City of Calistoga, No. 12-17749.

In that case, the U.S. District Court for the Northern District of California dismissed the complaint filed by the owner of a wine country mobile home park subject to a municipal rent control ordinance which alleged that the city’s hearing officer did not allow a fair return. The court concluded that the complaint did not adequately plead the claims for relief under a regulatory takings, private takings, due process, or equal protection theory.  

We filed an amicus brief in the case on behalf of the Western Manufactured Housing Communities Association. 

Much of the panel’s time was spent questioning the park owner’s counsel about whether the case was even ripe under Williamson County. Counsel responded that it…

Continue Reading 9th Circuit Oral Arguments: Reg Takings, Private Takings, Due Process … And Williamson County

If you are a “public agency staff, an appraiser, or a right-of-way consultant” (or, we presume, a lawyer) in California, check this out: a free half-day seminar on eminent domain issues in Costa Mesa on Thursday, March 5, 2015, presented by the Nossaman law firm, the guys who produce the California Eminent Domain Report blog. 

Topics on the agenda: “Eminent Domain: Another Path to CEQA Challenges,” “Design-Build Project and Right of Way Acquisition,” “Public Projects and Business Losses: Who Gets What and When?,” and “Valuation, Cleanup Costs, and Other Scary Things: Acquiring Contaminated Property.”

Check it out and register here. 

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Continue Reading Californians: Upcoming Eminent Domain Seminar, March 5, 2015 (And It’s Free!)

Owners of taxi medallions in Boston thought that they had some kind of special relationship with the city, perhaps understandably so. After all, taxi medallions are tough to get, are expensive, require the owner to comply with stringent regulations, and are the only commercial vehicles which can pick up passengers on the street (in other words, be “hailed”). 

But apparently, this relationship wasn’t special enough to cover the so-called “sharing economy,” because the city, according to the Boston Taxi Owners Association, wasn’t doing much of anything to crack down on ridesharing services like Uber, Lyft, and Sidecar. While their models differ somewhat, at their core these services allow owners of private vehicles to give rides to passengers that might otherwise be using taxis. And this means trouble for the owners of taxi medallions because it is lower-cost competition which hurts their bottom line.

So they…

Continue Reading Fed Ct: Taxis Not Likely To Win On “Sharing Economy” Takings Claim

Here’s the recently-filed amici brief of the National Federation of Independent Business and the NFIB Small Business Legal Center, which urges the Texas Supreme Court to review the Court of Appeals’ Memorandum Opinion in City of Dallas v. Highway 205 Farms, Ltd., No. 05-13-00951-DV (July 22, 2014). 

This case raises a jurisdictional issue that may be unique to Texas. That state’s statutory eminent domain process has two distinct phases: the “administrative” stage, and the judicial proceeding. Although the condemnation process is instituted by filing a lawsuit in a county court and a lis pendens may be filed, the court’s role is to appoint commissioners whose job is to hold a hearing and render an opinion on valuation. The so-called “judicial” phase only commences if a party is dissatisfied with the commissioners’ opinion.

The commissioners in this case, however, took an extraordinarily long time to schedule a hearing, nearly a …

Continue Reading Amicus Brief: Texas Courts Need Not Sit Idly By While Condemnor Dithers

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Here are the links from our opening sessions this morning:

It seems clear that the city and…

Continue Reading Links From Day Two, ALI-CLE Eminent Domain Conference