December 2024

As we bid farewell to another calendar year, our mind wanders back over the last 364 days in an attempt to ascribe meaning, or even a theme — some connecting tissue — to what the scientists tell is is just the rotation of the earth.

There were judicial opinions good, bad, and just plain weird, and other events that caught our attention and remained in our consciousness long after they ended. The year was eventful.

But in the end, the thing that provided us both our low point and our high point for 2024 emanated from the same source: our old friend the Eminent Domain Podcast.

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Continue Reading Adieu To The Highs And Lows Of 2024

Screenshot 2024-12-30 at 10-16-00 Electricity-Caused Wildland Fires Costs Social Fairness and Proposed Solution

For those of you who follow the wildfire/inverse cases (centered in, although not exclusively, California and Hawaii), you might want to check out this article by a fire engineer: Vytenis Babrauskas (aka “Dr. Fire“), “Electricity-Caused Wildland Fires: Costs, Social Fairness, and Proposed Solution.”

As the title suggests, the article is an analysis of the situation, including the legal liability (see Section 5: “Tort Laws, Strict Liability, and Inverse Condemnation”). Dr. Babrauskas argues for abrogation of a lawsuit-based system, and replacement with a compensation scheme akin to worker’s comp.

Here’s the Abstract:

If electric power is distributed by an overhead network of cables, the ignition of wildland fires is unavoidable, although prudent management efforts can reduce the losses. The economic aspects of these fires are driven by tort litigation, which tends to create serious problems of social fairness. The present system does not contain adequate incentives…

Continue Reading New Article: “Electricity-Caused Wildland Fires: Costs, Social Fairness, and Proposed Solution”

A short one from the Ohio Court of Appeals.

In City of North Canton v. Brown, No. 2024-CA00030 (Dec. 16, 2024), the court held the trial court in a just compensation action wrongly excluded the owner’s evidence of the County’s property tax valuation.

Hang on. Doesn’t the owner usually want to exclude evidence of property tax valuation in a just compensation case? Even though an appraisal for just compensation purposes and an appraisal for property tax purposes look at “value,” we know that the goals and methods of each are different, so that’s an apples-to-oranges comparison no?

Not always. Here, the court didn’t conclude that the tax valuation was conclusive, merely “‘some’ proof of value, and is thus relevant evidence.” Slip op. at 7. Moreover, this “is not a case in which a city or governmental entity is arguing the tax assessment should be admissible because the taxpayer or…

Continue Reading Ohio Ct App: Tax Assessment May Be Admissible To Prove Just Compensation

A short one today, but worth reading because the Kentucky Supreme Court’s opinion in Kentucky Transportation Cabinet v. Atkins, No.2023-SC-0173 (Dec. 19, 2024) highlights an important point: when offering evidence of the compensation owed for the taking of income-producing property–and “[d]etermining the value of condemned real property is not a science”– it isn’t “speculative” to consider what a hypothetical purchaser in a market free of project influence would pay for the anticipated income stream.

If that conclusion seems kind of obvious to you, it wasn’t to the Kentucky Transportation Cabinet, which asserted the trial court abused its discretion by allowing the owner’s appraiser to testify that the Cabinet’s taking for a highway project of the fee simple interest of land containing subsurface coal obligated it to pay compensation based on the potential income from coal royalty payments for the coal.

The Supreme Court disagreed, concluding that the trial court…

Continue Reading Kentucky: There’s More Than One Way To Prove Just Comp, Esp For Income-Producing Property

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Screenshot 2024-12-23 at 08-18-04 Brigham-Kanner Property Rights Journal Volume 13 by William & Mary Law School

The latest edition of the Brigham-Kanner Property Rights Journal (William & Mary Law School) is out, with intriguing Dirt Law scholarship from the luminaries in the field.

Check out the Table of Contents above, and then go here to download each piece or the entire issue. We will note, with a small bit of pride, that two of the pieces were authored or co-authored by former students of ours (at W&M Law and the University of Hawaii Law School).

All of the pieces are must-reads.Continue Reading Volume 13 Brigham-Kanner Property Rights Journal Now Available

In what might be the most cliched “New York City” land use situation, check out the Appellate Division’s opinion in Coalition For Fairness v. City of New York, No. 2023-05338 (Dec. 5, 2024).

Want to convert your SoHo-NoHo artist live/work space to unlimited residential use? Be prepared to pony up and pay to the City’s Arts Fund a non-refundable fee of $100 per square foot as a precondition of even filing a building permit. 

When owners challenged this fee as unconstitutional under Nollan/Dolan/Koontz/Sheetz, the trial division said no. But the Appellate Division held otherwise, concluding that the imposition of the fee lacked an essential nexus and was not roughly proportional to whatever impacts “certified artists” (who knew the government was in the business of “certifying” artists?) suffer when an owner converts.

The opinion, in true Appellate Division style is short (3 pages)…

Continue Reading NY App Div: Requiring Art Fee “Donation” To Get Building Permit Lacks Nexus, Proportionality

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Strong letter to follow!

A long-ish read (32 single-spaced pages) from the Federal Circuit in City of Fresno v. United States, No. 22-1994 (Dec. 17, 2024), but worth reading.

Not only will you get a crash course in how water is allocated in California’s vast central valley (as the billboards above, set up along the north-south I-5 corridor demonstrate, not everyone is happy about how that is accomplished), but you will also understand how the Federal Circuit approaches the predicate question in takings case: does the plaintiff own “private property?”

The court concluded no, the plaintiffs do not possess private property rights. Consequently, it affirmed the Court of Federal Claims dismissal of the takings claim.

The central valley, as the opinion explains, “is home to the largest federal water management project in the United States[.]” Slip op. Unsurprisingly named the Central Valley Project, is a series of dams, storage…
Continue Reading CAFED: Feds Allocating California Water Isn’t A Taking Because Cal Says Only The Feds Have Water Rights

Our colleagues at the Institute for Justice–the same firm that represented Susette Kelo in her oh-so-close run at clearing up the Public Use requirement in eminent domain, today filed this cert petition in which they take another run. We will let you savor the wine and find out about the case and the arguments by reading the petition without our filtering.

But the short story is that this case comes from what is perhaps the worst-offender jurisdiction when it comes to public use questions, New York. Here, the County exercised eminent domain to transfer property from A (petitioner Bowers Development was under contract to buy the land with plans to build a medical office building) and give it to B (a different private owner that was planning to build … a medical office building on adjoining property which needed a parking lot). 

The Appellate Division concluded that this satisfied …

Continue Reading New Cert Petition: Do A-to-B Transfers By Eminent Domain Require More Than Aliens-Might-Be-Resposible Judicial Review (And Should Kelo Be Overruled)?

We tend to avoid cases about insurance. Not because they are dull (as you might wrongly imagine). Indeed, there’s more excitement in insurance cases than you’d guess. But insurance law and the insurance regulation field needs a certain level of very niche expertise that we don’t possess. So normally, we would not have given the U.S. Court of Appeals for the Third Circuit’s opinion in Pennsylvania Prof. Liability Joint Underwriting Ass’n v. Gov. of the Commonwealth of Pennsylvania, No. 18-2297 (Dec. 16, 2024) a second glance.

But a case that at first glance seemed about insurance contained lot of “takings” references sprinkled across the many pages of the opinion, so it pinged our radar. And it turns out it was worth a download and review if you keep your expectations in check.

In the end, the court didn’t really tell us much about regulatory takings doctrine, even though the…

Continue Reading CA3: State-Created Association Is A State Actor With No Private Property Rights

Too busy writing those briefs and petitioning for those writs, so haven’t found the time to hit your local store or the interwebs and fulfill your seasonal duties? Or maybe you just have gifter’s block about an appropriate present for the dirt lawyer in your life this holiday season?

You could go the last-minute route: Charlie Brown got a bag of rocks for Halloween, so you might also consider the same for this holiday season. Or there is that old reliable, origami boulders. Or you could show your giftee that you are tuned-in by giving them some origami boulders handcrafted with love from old print-outs of important Supreme Court takings cases. Also good for the procrastinators, since you don’t need an open store to show your recipient how much you care.

Recycle a few pages and rescue them from the blue bin, and you are in business!

No…

Continue Reading Your 2024 Dirt Lawyer Holiday Gift Guide (Including Last-Minute Gifts)