2017

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

You should be following along with Clint Schumacher’s Eminent Domain Podcast on your own, but in case you missed this one in your feed, be sure to check out the latest episode, which features U. Virginia Law School prof Molly Brady talking about “damage clauses” in state constitutions.

The podcast and links to the materials and cases discussed are posted here. 

There’s also a short segment on Brott v. United States, currently at the cert stage in SCOTUS. That’s the one about Article III judges, and juries in inverse cases against the federal government (which under the Tucker Act, you don’t get in the Article I Court of Federal Claims). This case presents the issue we’ve focused on for a while: whether the self-executing nature of the just compensation requirement is subject to the power of Congress, and needs a waiver of sovereign immunity in order…

Continue Reading Eminent Domain Podcast, Episode XI – State Damaging Clauses, Jury Trials In Federal Inverse Cases?

We’re in court today (so blogging about lawyering must yield to the actual practice of lawyering) so we’re going to just post this here, and let you consider it. And maybe wait for our New York City colleagues (who just happen to represent the property owner), to weigh in via their eminent domain blog. 

The New York Appellate Division’s opinion in City of New York v. Baycrest Manor, Inc., No. D59668 (Nov. 15, 2017) is an eminent domain case which involves the valuation of wetlands on Staten Island, and Palazzolo‘s holding that long-existing restrictive regulations are not baked into a parcel’s value.

The City claimed that the condemned property was not worth a whole lot because the wetlands regulations predated the condemnee’s purchase. The owner, by contrast, argued that it had a pretty good shot at prevailing on a regulatory takings claim, because the Supreme Court in …

Continue Reading Staten Island Wetlands Regulations Are A Penn Central Taking. A Penn Central Taking!

The title of West Virginia Lottery v. A-1 Amusement, Inc., No. 16-1047 (Nov. 13, 2017) alone may not give you an indication that this is a takings case, but yes, it’s a takings case. 

As the title might indicate, it’s a case involving the state-run lottery and video lottery machines. If we’re reading the details right, the lottery issued permits to the plaintiffs, after which they were instructed to use a different software program, and informed that using any other software would render their machines illegal. The amusement companies were not prepared to retool (they’d have to buy new machines, they alleged), and brought regulatory takings, due process, and civil conspiracy claims. 

The trial court refused to dismiss the complaint, concluding that damages for the takings and due process claims could not be limited to the lottery’s insurance policy limits, and that the lottery had waived its sovereign…

Continue Reading West Virginia: Takings Clause Protects More Than Just Land – Owners Of Personal Property Can Bring Inverse Condemnation Claims