November 2017

…this is might be it: Lampkins Crossing, LLC v. Williamson County, No. 3:17-cv-00906 (Nov. 14, 2017), in which the District Court dismissed substantive due process, procedural due process, and equal protection claims for not being ripe under Williamson County‘s “final decision” prong. The Williamson County case decided on Williamson County grounds.

Now, we’re just being cheeky with our title, of course, and this case may not present a good vehicle for addressing the most troubling prong of Williamson County (the “available state remedies” requirement in takings cases), but with the real County being the defendant here (and not the Williamson County Planning Commission), who could resist? Just think of the law review article titles, and the confusion in oral arguments about “Williamson County.”

Short story here is that the plaintiff’s claims against the County were not ripe in the court’s view, because the County still might…

Continue Reading If There Ever Was A Perfect Case To Address Williamson County …

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If case you were thinking you might have missed a big property case that made its way to the Supreme Court, fear not. All of the above issues were raised in the course of yesterday’s arguments in a patent case.

As the transcript in Oil States Energy Services, LLC v. Greene’s Energy Group, LLC, reveals, the issue in that case is whether the Patent and Trademark Office’s Patent Trial and Appeal Board is unconstitutional because it can deprive a patent holder of its rights without the benefit of adjudication in an Article III court. A patent is property (yes, it is a creature of statute, and not a common law right, but it is property), and the owners of patents can’t be deprived of their property except in an Article III court. Or so the Petitioner’s argument goes.

If that issue sounds familiar, it is. In Brott v. United …

Continue Reading Supremes Consider Unconstitutional Conditions, Vested Rights, And Property … In A Patent Case

According to this story (“Scott Walker signs bill inspired by western Wisconsin cabin-owners’ court fight“), Wisconsin’s governor has signed into law a new bill which remedies the problem the Murr family faced after the U.S. Supreme Court ruling in Murr v. Wisconsin, 137 S. Ct. 1933 (2017).

In that case, as you recall, the Court’s majority concluded that the Murrs’ two adjacent parcels had — for the purposes of evaluating their regulatory takings claim — been effectively merged into a single parcel. Thus, both parcels together were the “denominator” against which the regulation’s economic impact was measured. The parcels were not actually or formally merged, and the Court’s ruling only meant that Wisconsin’s regulations which prohibited the Murrs from separately developing their second lot, or selling it to an unrelated party, was not a taking.

The new law would allow the Murrs to sell their undeveloped, “substandard”…

Continue Reading Murrs Offered Succor; Owners In Other 49 States … Not So Much

In Long v. Liquor Control Comm’n, No. 16-069125-CC (Nov. 16, 2017), the Michigan Court of Appeals addressed an issue that we’ve been following — takings claims arising from government issued licenses or regulated industries. We wrote about these claims in sharing economy cases recently. See “Property” and Investment-Backed Expectations in Ridesharing Regulatory Takings Cases, 39 U. Haw. L. Rev. 301 (2017). These type of cases typically arise where the holder of a government license or permit claims that the government’s failure to require competitors similarly situated to obtain the same license or permit, or granting an additional license, is a taking. This case is among the latter.

Long possessed a liquor license entitling him to sell alcohol for off-premises consumption. But the Commission later issued a similar license to a nearby supermarket, and did so without abiding by the quota and distance restrictions which usually apply in these…

Continue Reading Liquor License Isn’t A Right To Be Free From Competition

An interesting read from the South Dakota Supreme Court, on the often fine line between tort liability and inverse condemnation claims.

A big rain, just weeks after the State completed a highway improvement project which included drainage culverts originally installed in 1949, which could not adequately drain an 8-year rain event. Nearby private property flooded. And you know what that means: inverse condemnation, against both the State, and the City of Sioux Falls. The City eventually settled, and the State cross-claimed against the City seeking indemnity if the City was deemed liable to the property owners.

The trial court bifurcated liability and damages, and eventually concluded the State was liable in inverse condemnation for the flooding. The court also dismissed the cross claim against the City, concluding that the City’s permitting nearby development did not contribute to the run-off which flooded the plaintiffs’ land. The jury got the damage issue, and…

Continue Reading The Difference Between Tort And Inverse Condemnation

POTUS 1, George Washington, like a lot of other things, said it about our national day of thanksgiving pretty well:

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“Our fincere and humble Thanks … for the peaceable and rational Manner in which we have been enabled to eftablish Conftitutions of Government for our Safety and Happinefs, and particularly the national one now lately infituted.”

If they could only have added a “s” key to their version of MS Word, it truly would be a more perfect Union.  Continue Reading Happy Thankfgiving To You

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The work on what turned out to be the first phase on Honolulu’s billions-of-dollars rail project from Kapolei to the Ala Moana Shopping Center isn’t even close to being done yet, but the Honolulu Authority for Rapid Transportation looks like it is thinking ahead to Phase 2, and extending the line from the shopping center to the University of Hawaii in Manoa (where the commuting students are), or maybe Waikiki (where the tourists are). 

We say “what turned out to be the first phase,” because you will recall that as originally conceived the rail would run from Kapolei to the UH, but was then scaled back when that plan was too expensive, too ambitious. Now that the election is behind us, and the money sort of is flowing again, maybe not. 

Problem is, there’s a lot of residential and commercial development between the shopping center and the UH and Waikiki…

Continue Reading Project Announcement: Honolulu Rail May Be Coming To A Neighborhood Near You

The latest in the “Map Act” inverse cases out of North Carolina. This is a longer post, but you really will want to read the summary, or just pick up the opinion and read it.

These are the cases in which the N.C. Department of Transportation, under the power of the state’s Map Act, for decades has designated private property for future acquisition for highway corridors, which prevented present use and development, but hasn’t bothered to actually take the properties.

Hundreds of property owners sued in inverse condemnation (the North Carolina Supreme Court denied class action status). More on the issue and the N.C. Supreme Court’s landmark opinion in Kirby v. N.C. DOT, which concluded the properties’ designation was a taking, here. The cases were remanded for trials for what should have been compensation and damages calculations, but the DOT instead sought to reboot the cases, and…

Continue Reading NC App: State Does Not Have Sovereign Immunity From Takings: “sovereign immunity must be juxtaposed with the contrary sovereignty of the individual, whose natural rights preceded government and were enumerated in the federal Bill of Rights”

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Under Colorado law, a property owner has an inverse condemnation claim when “a governmental or public entity with the power of eminent domain takes action that ‘substantially depriv[es] the property owner of the use and enjoyment of the property, but the [entity] has not formally brought condemnation proceedings.'” Kobobel v. Colo. Dep’t of Nat. Res., 249 P.3d 1127, 1133 (Colo. 2011).

In Sos v. Roaring Fork Transportation Authority, No. 16CA1198 (Nov. 16, 2017), the Colorado Court of Appeals concluded the RFTA possesses the power of eminent domain (and thus could be liable for inverse condemnation), and, more interestingly, that the RFTA relying on Mr. Sos’s property for lateral support for RFTA’s retaining wall was a “damaging.” 

Sos has a tire business, and there is a dirt embankment on the portion of his lot adjacent to RFTA’s property, where Sos stored tires and stuff. RFTA built a new bus station…

Continue Reading Colorado App Clarifies State Constitution’s “Damaging” Clause: Forcing A Neighbor To Provide Lateral Support Is Compensable

Here’s the cert petition in a case we’ve been following from the Third Circuit, Knick v. Township of Scott. 

Read more about the case’s background here. The short story is that the court concluded the Township’s ordinance which requires owners of all cemeteries, public or private, to maintain them was “constitutionally suspect,” but also held that the owner had not ripened it under Williamson County.

What’s the big deal, you ask? Well, the problem is that apparently many landowners don’t know they own a cemetery. So the ordinance allows the Township’s code inspectors to enter “any property” to inspect and see if it is in compliance with the ordinance. When zoning inspectors came round and told Ms. Knick to clean up her cemetery, her response was “what cemetery? She sued, claiming among other things a facial takings claim. She did not file a state court inverse condemnation case for…

Continue Reading New Cert Petition: Reconsider Williamson County’s “State Remedies” Prong, Or Just Overrule It