March 2018

In North Carolina Dep’t of Transportation v. Mission Battleground Park, No. 361PA16 (Mar. 2, 2018), the North Carolina Supreme Court confirmed that real estate brokers — and not only appraisers — can testify about the fair market value of condemned property. 

The background is fairly routine — the DOT condemned a portion of a tract of land for a highway project, made a $276,000 deposit which the landowner considered insufficient, and they went to trial. The owners asked a licensed real estate broker to testify about fair market value. He prepared a report which relied on the before-and-after method, and concluded that just compensation was $3.734 million.

The DOT sought to preclude him from testifying, arguing that brokers are limited by statute to preparing a report on probable selling price, and therefore could not testify as an expert regarding fair market value. The trial court agreed. The owners offered…

Continue Reading NC: Real Estate Broker Is Qualified To Testify About Fair Market Value

Is climate change responsible for the severity of California’s recent spate of devastating wildfires? Several big utility companies are being sued or threatened with inverse condemnation for their roles, if any, in the damage. A story today in Climate Liability News (“California Utilities, Climate Change and Wildfires: A Liability Quagmire“) details the response by the utilities, which includes pointing the finger at climate change, petitioning the California PUC for rate hikes, and asking the California legislature for changes to the state’s inverse condemnation law:

The bill is a reaction to a debate over whether San Diego Gas & Electric could pass on the $379 million from the 2007 fires that it couldn’t cover through insurance. The commission denied the utility’s request last November because it said the company caused the fire with improper maintenance of power lines. The commission also said it wouldn’t automatically deny rate increases…

Continue Reading California Wildfires, Inverse Condemnation, And Climate Change

Here’s the latest case on our (second) favorite subject, recovery of attorneys’ fees.

First, let’s be frank: in our experience, many courts don’t really care all that much for requests for fees and costs, for whatever reason. Maybe it’s because the merits have already been decided and these requests are collateral “tails.” Maybe it’s because they don’t think that the applying parties deserve to be reimbursed. Maybe it’s because many judges do not come from a private practice background and therefore are not fully appreciative of the cost of private representation. Maybe it’s because the evidentiary details required to support these requests can be … unexciting. Who can say.

And, as we’ve mentioned previously here, assembling a request for attorneys fees can be a slog. Does anyone really like going through their time entries and bills, redacting stuff, tracking down costs, gathering testimony that fees are “reasonable,” and the like?

Continue Reading Nebraska: Eminent Domain Fee Statute Only Requires Reimbursement Of Fees “Actually Incurred” (So Unsupported Claim Is Right Out)

For those of you who have not recently attended the ALI-CLE Eminent Domain and Land Valuation Litigation Conference (just wrapped in Charleston, planning Palm Springs 2019), here’s a small sampling of the kind of thing we do.

It’s U. Virginia lawprof Molly Brady talking about the U.S. Supreme Court’s regulatory takings decision in Murr v. Wisconsin, in the session she shared with John Groen (the Murrs’ Supreme Court counsel). A really informative session, and these clips only give a small taste. More here, from ALI-CLE, including links to the on-demand video sessions we recorded in Charleston.  

And it’s not too early to mark your calendars for Palm Springs, January 24-26, 2019. Stay tuned here for further details as they become available. 

Continue Reading Professor Molly Brady On Murr – Video Clips From The ALI-CLE Eminent Domain Conference

We’re not going to be filing an amicus brief in support of the petition for cert in the case involving Martin’s Beach on the Northern California coast. Masters of the Universe like Paul Clement and his team hardly need help from the kids in the back row.*

The case has been getting a lot of press, first in Northern California where it is a bit of a cause célèbre, and now nationally, with pieces like this article from the Los Angeles Times (“With Supreme Court challenge, tech billionaire could dismantle beach access rights — and a landmark coastal law“). Besides, the poor signal-to-noise ratio in beach cases (as we’ve written before) often makes hoping for a rational result futile. But the way the LA Times article framed the case (uber rich guy is trying to blow up your beach access!) made…

Continue Reading Our Unfiled* Amicus Brief In The California Beach Access Case

Missingmoney

A very interesting (pun intended) read today from the Minnesota Supreme Court.

In Hall v. Minnesota, No. A16-0874 (Mar. 7, 2018), the court held that Minnesota’s Unclaimed Property Act, under which unclaimed property is presumed abandoned and then held by the State, works a taking when the State takes possession of an interest-bearing bank account, but does not pay interest to the owner when the property is eventually reclaimed. 

That conclusion should not be all that surprising, and what makes the opinion well worth your time to read is the contrast between abandoned accounts which were interest-bearing, and those which were not. The State took possession of money and accounts of several of the plaintiffs, ranging from an unclaimed final paycheck under $100, to an interest-bearing bank account of more than $100,000. 

The Act sets out the process for reclaiming abandoned property, and the plaintiffs did so. But when…

Continue Reading Minnesota’s Unclaimed Property Act Is A Taking If State Holds Interest-Bearing Account, But Doesn’t Pay Interest

Here’s the Reply Brief in a case we’ve been following, Brott v. United States, No. 17-712, in which the U.S. Supreme Court is being asked to consider whether property owners who sue the federal government for a taking are entitled to both an Article III forum, and to have the issues determined by a jury. We filed an amicus brief in support of the petition.

The Reply responds to the federal government’s brief in opposition which acknowledged the Just Compensation Clause is “self-executing” and that you have a right to “recover just compensation,” but before you can actually recover compensation, Congress must deign to recognize your Constitutional right by agreeing to be sued. And if Congress can withhold its consent to pay compensation, it surely (in the Government’s view) can dictate the terms on which an owner can recover compensation.And if that means the Court of Federal Claims and …

Continue Reading SCOTUS Reply: Determining Compensation For Taking A Private Right Is A Judicial Function

If the headline of this post throws you off a bit, not to worry: it was designed to. Because the situation in the North Carolina Supreme Court’s recent opinion in Wilkie v. City of Boiling Spring Lakes, No. 44PA17 (Mar. 2, 2018), turned the usual arguments on their heads.

In condemnation cases, if the owner objects on the grounds that is being accomplished for a private — and not public — use or benefit, the remedy they seek is to stop the taking or unwind it. We can’t recall a case in which an owner sought compensation for what was claimed to be private taking. The question in the Wilkie case was whether that same approach applies in inverse condemnation cases — those in which the owner alleges that some government act other than an affirmative exercise of the eminent domain power has taken private property.

In that case…

Continue Reading When Is A Taking For Private Benefit Compensable? When It’s A Statutory Inverse Condemnation In North Carolina

The last time the U.S. Supreme Court faced Williamson County in a merits case, the property owners made the mistake of not challenging that case’s “state procedures” requirement directly. An exchange with Justice O’Connor went like this; from the transcript:

Justice O’Connor: And you haven’t asked us to revisit that Williamson County case, have you?

Mr. Utrecht: We have not asked that this Court reconsider the decision in Williamson County.

Justice O’Connor: Maybe you should have.

Ouch.

But fool me once, shame on you; fool me twice…we won’t get fooled again!

This time, therefore, no mistake: the owners raised a challenge to Williamson County squarely, and as a result, there may now be a light at the end of the very bizarre ripeness tunnel that has mostly kept federal courts from reviewing claims that the U.S. Constitution has been violated.

This morning, the Court agreed to hear a case…

Continue Reading New Cert Grant: Overrule Williamson County’s Exhaustion Of State Procedures Requirement?

ZPLR front page

Here’s an article (“Murr v. Wisconsin: The Supreme Court Rewrites Property Rules in Multiple-Parcel Regulatory Takings Cases“), which we authored along with a colleague, published in February 2018’s Zoning and Planning Law Report, about the U.S. Supreme Court’s decision in Murr v. Wisconsin, the case about the “larger parcel” in regulatory takings.

As you might predict, we concluded that the Murr majority’s analysis was vague, unsatisfying, and generally not helpful. Strong letter to follow!

Here’s a passage from the Introduction:

The U.S. Supreme Court’s 5-3 long-anticipated ruling in Murr v. Wisconsin, expected to resolve the “larger parcel” or “denominator” issue in regulatory takings cases, has instead created a test that neither property owners, lawyers, nor government officials can understand or rely on.

The majority opinion, authored by Justice Anthony Kennedy, addressed a long-standing question in regulatory takings law: when a claimant who owns more…

Continue Reading New Article: Murr And Other “Blurred Lines”