Note: this is the second of our posts on the U.S. Supreme Court’s recent decision in Devillier v. Texas. The first — which tries to put the weird post-opinion controversy over which party “won” at the Supreme Court into its proper perspective — is here.
In this post we’ll cover the case’s
The winner takes it all
The loser’s standing small
Beside the victory
That’s her destiny
Note: this is the first of a short series of posts on the U.S. Supreme Court’s recent decision in Devillier v. Texas.
In Part II, we’ll cover the case, the procedural path that Texas dragged everyone through,
Guess where we stopped for coffee this morning?
(A reminder: this case has nothing to do
with the convenience store.)
Note: this is the first of two posts on the recent Supreme Court opinions in Sheetz v. County of El Dorado, the case in which the unanimous Court held that exactions imposed by
This just in: the U.S. Supreme Court has issued a unanimous opinion in Sheetz v. County of El Dorado, a case we’ve been following (not only because it is one of ours).
The Court, as predicted, held that an exaction (in this case a traffic impact fee) isn’t immune from the Nollan/Dolan nexus
A short one from the California Supreme Court. In Romero v. Shih, No. S275023 (Feb. 1, 2024), the court was presented with the question of whether Property Owner A had an implied easement over the driveway of Property Owner B.
The court held that easements may be created by implication, and “if there is
Here’s our latest, this cert petition, another one asking whether a property owner’s regulatory takings claim is ripe for judicial review.
This is one of ours, so we won’t be commenting in depth other than to say that it doesn’t seem like you should have to seek permission under Futurelaw in order to ripen
Zip. Zilch. Zero. Nil. Nada. Squat. Bupkis.
Here’s the latest in a case we’ve been following for a long, long time (see here and here, for example).
In Maunalua Bay Beach Ohana 28 v. State of Hawaii, No. CAAP-19-0000776 (Mar. 18, 2024), the Hawaii Intermediate Court of Appeals confirmed that a state statute declaring certain accreted littoral land to be public property was a temporary regulatory taking of littoral owners’ rights (the common law says that accreted littoral lands belong to the private owner), but that the just compensation the State owes to these owners is a big fat zero.
This case goes back to a statute the Hawaii Legislature adopted in 2003, which made certain land accreted on littoral private property public land. As the court put it, “[i]t effectively made land accreted to the Beach Lots after May 20, 2003, public land not owned by [the adjacent littoral owners].” Slip op. at 3.
Sounds like a taking, and sure enough a lawsuit followed, claiming that the ipse dixiting of accreted land was a taking because it represented a change in the common law under which the adjacent owners would own the accreted land. Nine years later, the legislature “changed the law by terminating the taking effectuated by [the statute].” Slip op. at 9.
The trial court dismissed the takings claim, but the Court of Appeals held that the statute worked an uncompensated taking of the land accreted before the effective date of the statute. (The court rejected a claim that the statute also confiscated future accreted land, but that is another story.) The appeals court sent the case back for a a ruling on whether these plaintiffs own land that qualified, and if so, the valuation of the accreted land.
After a bench trial, the trial court concluded that there was a temporary (nine year) taking, not a permanent one. The parties stipulated that just compensation was to be measured by the “fair rental value of the accreted land” as of the effective date of the statute, subject to the governmental and private restrictions that burdened the land. Slip op. at 5. The trial court concluded that just compensation is $0.
The court of appeals affirmed, and made short work of the owners’ argument. It based its conclusion entirely on the appellate standard of review:
Beach Lot Owners’ evidence of fair rental value was based on the testimony of Stephany Sofos. The circuit court “did not find Ms. Sofos to be a credible witness” and gave “no weight to her testimony.” “It is well-settled that an appellate court will not pass upon issues dependent upon the credibility of witnesses and the weight of evidence; this is the province of the trier of fact.” Fisher v. Fisher, 111 Hawaii 41, 46, 137 P.3d 355, 360 (2006) (citation omitted).
The circuit court instead credited the testimony of Craig Leong, a licensed real estate appraiser who holds the MAI designation.
Slip op. at 11-12 (footnote omitted).
The State’s appraiser concluded there was no rental value because the size of the accretions were “irregular” and of “narrow widths,” and subject to regulations and restrictions. Slip op. at 12.
The owners couldn’t believe that beachfront property in one of the most desirable residential areas in Honolulu is utterly worthless: “Beach Lot Owners argued that ‘depriving [them] of oceanfront property in Maunalua Bay for 9 years cannot possibly be valued at $0.’” Slip op. at 10. Indeed isn’t it intuitive that ownership of even a small and irregularly-shaped portion of beach — even for a temporary period, and even if open to public access as the plaintiffs stipulated — could be worth something? Especially, as the plaintiffs claimed, as a buffer to the homes built on the adjacent residential lots (what the opinion calls the “Home Lots”).1
Problem is, the plaintiffs making those claims “do not own any Home Lots.” Slip op. at 11. Ouch.
Having noted that the trial court made a determination that the plaintiffs’ appraiser offered incredible testimony (what that testimony was, and what value the appraiser assigned to the accreted lands we don’t know because the opinion does not tell us), and that the government’s appraiser was credible, the court of appeals held the factual conclusion of zero just compensation was not clearly erroneous because there was some evidence in the record to support it. Game, set match.
Also: no nominal damages because the plaintiffs, having scored no just compensation, “did not sustain a ‘technical injury due to a violation of some legal right[.]’” Slip op. at 13. In the court’s view, they were not injured at all.
Finally, the court rejected the argument that the plaintiffs should have been at least awarded attorneys’ fees under the private attorney general doctrine. Read pages 14-20 if you care why (we don’t, sorry).
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1. This intuition comes from the “Inversecondemnation on Valuation” treatise by the way. You won’t find a copy of this august work in your law library, sadly. In the end, the trial court found the in-court testimony of expert valuation witnesses a lot more persuasive than your author’s intuition, which, standing alone, is worth doodly-squat in a court of law (as we know).
Maunalua Bay Beach Ohana 28 v. State of Hawaii, No. CAAP-19-0000776 (Haw. App. Mar. 18, 2024)
You’ll want to check out the U.S. Court of Appeals’ opinion in Gerlach v. Rokita, No. 23-1792 (Mar. 6, 2024), even though it mostly retraces grounds already tread by other courts.
The takings claim was based on the actions of Indiana government officials who didn’t give the interest earned on unclaimed funds to the
When it comes to the longstanding ALI-CLE American Law Institute-CLE Eminent Domain and Land Valuation Litigation Conferences, we’re always ready to go. You know that. But this year’s version — the 41st — was buzzing like no other in recent memory.
Maybe it was the New Orleans venue with its atmo, food, and music for
Yesterday, the other shoe dropped. In this order the U.S. Supreme Court denied review to a case that we’ve long been following, which challenged aspects of New York’s draconian rent control laws as a taking, 74 Pinehurst v. New York.
We say the “other shoe” because ever since the Court denied review months