December 2022

Screenshot 2022-12-29 at 16-48-24 il buono brutto il cattivo poster at DuckDuckGo

Here’s the latest from a case we’ve featured here before.

There’s something for everyone in the Florida District Court of Appeal (Second District)’s opinion in Jamieson v. Town of Fort Myers Beach, No. 2D21-2722 (Dec. 29, 2022).

Let’s start with the outcome: the court reversed the trial court’s summary judgment in a wetlands takings case, sending the matter back for a trial. Sounds good.

But let’s back up a sec. The case started a long time ago, when Jamieson’s seven-acre residentially-zoned property was designated as a wetland, resulting in a use density decline from 40 buildable lots to zero (wetlands density is one residence per 20 acres). For a decade, Jamieson tried to “change and/or correct the wetlands designation[.]” Slip op. at 3. The opinion lists out his efforts. He tried for

an application for boundary clarification regarding the extent of the wetlands, a request to transfer the…

Continue Reading The Good The Bad And The Ugly: There’s Something For Everyone In This Florida Takings Opinion

We’ve had the North Dakota Supreme Court’s opinion in Wilkinson v. Bd. of Univ. & School Lands, No. 20220037 (Nov. 10, 2022), in our queue for a while because it isn’t exactly the clearest opinion we’ve come across. It is relatively short, so that’s not the issue. But it is cryptic and poorly written, and each time we steeled ourselves to understand and digest it, we got distracted by some bright shiny object and put the opinion aside. But we’ve always meant to post it, and now that 2022 is winding down, we figured we better get on with it.

So let’s see if we get this right (we’re still not entirely sure we did, so feel free to comment if your read of the facts and the court’s analysis differs from ours). Here goes.

Wilkinson’s predecessors-in-title owned land in the Missouri River, and conveyed most of their interests…

Continue Reading North Dakota: State May Lease Out Property It Doesn’t Own As Long As It Calls It “Overinclusive Leasing Activity”

Screenshot 2022-12-28 at 08-32-49 Before Property A Prehistory of Property Rights in Land

We can’t claim to fully understand it (it’s full of words and phrases that frighten and confuse us), but we nonetheless commend to you a recent piece by lawprof Amanda Byer (University College Dublin), “Before Property: A Prehistory of Property Rights in Land.”

Here’s the Abstract:

This paper traces the origins of land as property in the common law and is excerpted from a larger work on the legal geography of property. Unlike previous genealogies of property, this research uses a landscape lens to examine property’s roots, predating its origins not in Lockean notions of individual ownership, but in the pre-feudal era. Property diverged from landscape, a term signifying a locally distinct polity or place, in which ‘land’ represented a complex web of diverse non-proprietary relationships and interests. This divergence was facilitated by a legal system that prioritised (placeless) abstract rights in land that could be owned, as…

Continue Reading New Article: “Before Property: A Prehistory of Property Rights in Land”

A classically short opinion from the New York Supreme Court (Appellate Division, Fourth District) in HBC Victor LLC v. Town of Victor, No. 683 (Dec. 23, 2022). (So short that we were tempted to simply post the opinion and let you read it, because it will probably take you just as long to read our summary; but we’re up to the challenge of making our summary even shorter than the opinion, so here goes.)

The town wants to take property “connected to an enclosed regional shopping center known as Eastview Mall[.]” Slip op. at 1. Until Co-19, the property was occupied by a retail department store, but the store closed permanently in February 2021. The owner tried to get a new tenant, but unsurprisingly, that came up short.

Perhaps sensing an opportunity, the Town sought to condemn for redevelopment. But its resolution of taking did not specify what it…

Continue Reading You Can’t Just Say “Redevelopment” – Take Now, Decide Later Isn’t A Public Use

Check this out, a decision upholding a necessity challenge to a taking.

Necessity, you say? What’s this? Aren’t necessity challenges subject to an even more deferential judicial standard of review than the rational basis test applied to declarations of public use? Didn’t the U.S. Supreme Court in Adirondack Ry. Co. v. New York, 176 U.S. 335, 349 (1900) say that “[t]he general rule is that the necessity or expediency of appropriating particular property for public use is not a matter of judicial cognizance but one for the determination of the legislative branch of the government….”? What gives?

In Lafayette City-Parish Consolidated Gov’t v. Bendel, No. 22-0432 (Dec. 23, 2022), the local government brought an expropriation action (that’s eminent domain or condemnation to you non-Louisiana chappies), seeking to take property to construct four detention pods to improve drainage. The owner objected, challenging the public use and necessity of the…

Continue Reading No Necessity: Landowner Met Burden – Condemnor Did Not Consider Other Sites

This week is light for many of you, so instead of the deep and insightful analysis of recent decisions that we’re known for (ha), we instead recommend to you two podcasts to warm the chilly nights.

So fire up the hearth, strap on those earbuds, and listen away.

First up, what is quickly becoming a December tradition: Clint Schumacher’s Holiday Special, in which he asks past guests for their holiday traditions and memories.

Next, the American Planning Association’s talk with Nolan Gray, whose book, “Arbitrary Lines:How Zoning Broke the American City and How to Fix It” is on our Dirt Lawyer Holiday Gift List this year. Find out more by listening in.

Continue Reading Fireside Podcasts: Eminent Domain Podcast’s Holiday Special 2022, And APA’s Talk With Nolan Gray

Here’s another one from the Ninth Circuit, argued on what one advocate called “land use day at the Ninth Circuit” (except, unlike the other two cases argued that day, the decision in this one gets published). 

In Gearing v. City of Half Moon Bay, No. 21-16688 (Dec. 8, 2022), the panel upheld the dismissal of a takings case, holding that federal courts should abstain from considering regulatory takings cases in favor of pending state court eminent domain actions, even when the condemnor instituted the state court action in response to the federal takings claim (and even though, unlike the other two cases argued that day, the federal takings claim is ripe).

This one started in federal court, where the property owner asserted the city’s rejection of its development application worked a taking. In response, the city ran to state court and filed an eminent domain action…

Continue Reading CA9: Land Use Is A “Sensitive Area Of Social Policy” So We’re Gonna Let A Local Govt Bleed The Property Owner Out

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Genuine Pennsylvania coal…
… anthracite, not bituminous

What to get the dirt lawyer in your life for the holidays? Charlie Brown got a bag of rocks for Halloween, so there’s that. Or there are the old reliable origami boulders (see below). But you are better than that and want to be a good gifter.

So here are our 2022 suggestions for stocking stuffers that will make property mavens celebrate the season. Some of these are return visitors to the list, and some are new. Suggest your own in the comments below.

* * * *

A Lump of Genuine Pennsylvania Coal. We start with this, perhaps the most appropriate gift on this, the 100th Anniversary of Mahon. Is there a more appropriate gift for that property law professional on your list than a lump of Pennsylvania coal? (Anthracite of course.) But let’s say you don’t live in…

Continue Reading These Are A Few Of Our Favorite Things: Dirt Lawyer Holiday Gift Giving Guide (2022 Edition)

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This story might be said to have had its roots millions of years ago.

It is about coal, after all. Anthracite coal, to be exact.

But that — and today’s date — should give you a clue that, as we teased in this post a mere 28 days ago (the Supreme Court worked hard and fast in those days), today, Sunday, December 11, 2022, is the 100th birthday of the U.S. Supreme Court’s opinion in Pennsylvania Coal Co. v. Mahon, 260 U.S. 393 (Dec. 11, 1922).

True, what became known as the “regulatory takings” doctrine did not spring from whole cloth on December 11, 1922, but had been bouncing around in the common law for quite a while (see here and here for example).

But if you want to mark and official birthday for regulatory takings, you could not do better than Pennsylvania Coal (aka Mahon).

The …

Continue Reading Happy Birthday, Regulatory Takings – Pennsylvania Coal Co. v. Mahon, 260 U.S. 393 (Dec. 11,1922)

Check out the Ohio Supreme Court’s 6-1 opinion in State ex rel. Ohio History Connection v. Moundbuilders Country Club Co., No. 2020-0191 (Dec. 7, 2022), in which the court held held that the taking of the Country Club’s lease for the property served a public use.

Court News Ohio beat us to the punch is summarizing the case and the dissent, so instead of us repeating, we suggest you go check it out:

The Ohio History Connection can proceed with its efforts to transform the Octagon Earthworks of Newark into a public park by extinguishing the Moundbuilders Country Club lease on the land, the Supreme Court of Ohio ruled today.

A Supreme Court majority affirmed a Fifth District Court of Appeals decision allowing the History Connection to take the land through eminent domain. The state agency wants to convert the Octagon Earthworks into a public park so that it…

Continue Reading Ohio: Property Got Nominated Real Good – Saying You Want To Put Up Site For UNESCO Designation Is Enough To Support Taking