On the surface, the Virginia Court of Appeals’ opinion in Town of Iron Gate v. Simpson, No. 1588-23-3 (Sep. 17, 2024) deals with a straightforward issue in a straightforward way: the property owner’s inverse complaint adequately alleged that the Town’s flooding of her property was for a public use, and thus properly survived the
Attorneys Fees & Costs
Blight Slight: No Taking Of Property For “The Proposed Project” When No Project Has Been Proposed
You all have likely seen ’em, those “We Buy Houses Any Condition” billboards letting the world know that no matter what condition it might be in, there’s an outfit that says it is willing to buy your house.
Well, that outfit ran into the one other outfit that is willing to buy your house…
Statutory Fee Recovery In Minnesota Condemnations Not Limited By Contingency Fee Agreement
This is a short one, and the title of this post pretty much sums up the Minnesota Supreme Court’s opinion in State of Minnesota v. Schaffer, No. A23-0036 (June 20, 2024).
The case addressed a frequently-occurring issue in jurisdictions which permit some kind of fee recovery in eminent domain cases. Where a statute permits…
Canadian Court Resolves A Very Un-Canadian Expropriation Beef
Here’s one we’ve been meaning to post for a while, the Ontario (Canada) Land Tribunal’s opinion in 13538 Ontario Inc. v. City of Stratford, No. OLF-22-002455 (Jan. 11, 2024), where the court resolved a dispute between the parties in an expropriation (eminent domain) case over which owed the other costs.
Now that isn’t our…
Hawaii Beachfront Land Is Worth Nothing: The State May Have Taken Accreted Land, But Just Compensation Is Zero
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)
Continue Reading Hawaii Beachfront Land Is Worth Nothing: The State May Have Taken Accreted Land, But Just Compensation Is ZeroCA11’s Eminent Domain Attorneys Fees Ruling Is Controlled By Prior Panel
The Eleventh Circuit’s short opinion (really short – 1.5 pages) in Sabal Trail Transmission, LLC v. 3-921 Acres of Land, No. 22-10435 (July 25, 2023), is straightforward: to resolve whether a Florida property owner subject to a private condemnor taking under the federal Natural Gas Act has a property right in attorneys fees and…
Colorado App: Lessees Are Not “Property Owners” Under Attorney Fees Statute
When a condemnor is told “no” (or voluntarily drops an eminent domain lawsuit), many jurisdictions require it to pay attorney fees to the parties on the target end of the vs.
Colorado is one of those jurisdictions, and as the Colorado Court of Appeals noted in Mulberry Frontage Metro. Dist. v. Sunstate Equip. Co.…
Ice Ice Baby: A Report From The 40th ALI-CLE Eminent Domain & Land Valuation Litigation Conference, Feb 1-4, 2023, Austin
We were eagerly anticipating 40th American Law Institute-CLE Eminent Domain and Land Valuation Litigation Conference. The 2022 Conference in Scottsdale was one of the first meetings where everyone was back in-person (and was a smashing success), but that conference was early in the game so not everyone could or would attend. But in the past…
(Nearly) Last Call: There’s Still Time To Join Us For The 40th ALI-CLE Eminent Domain & Land Valuation Litigation Conference, Feb 1-4, Austin
We really want you there…
One (nearly) last reminder that there’s still time to register for your space at the 40th ALI-CLE Eminent Domain & Land Valuation Litigation Conference, February 1-4, 2023, in Austin. In the past several years, we have sold out due to the conference room capacity and the conference hotel block.
Here’s The Program For The 40th ALI-CLE Eminent Domain & Land Valuation Litigation Conference, Feb 1-4, 2023, Austin
Here it is, the official agenda and program for the 40th ALI-CLE Eminent Domain & Land Valuation Litigation Conference, February 2-4, 2023 (with a special event the evening of Wednesday, February 1, 2023 to entice you to arrive early).
Here’s the brochure with the complete agenda, schedule, and faculty listing. But to tempt you, …


