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2017 ALI-CLE Eminent Domain Conference Wrap, 2018 Venue Announcement

When we previewed the 2017 ALI-CLE Eminent Domain & Land Valuation Litigation Conference while we were getting buried in the snow a couple of weeks ago, we promised there would be better weather in San Diego than much of the country was then experiencing. As you can see, we delivered.

We -- and by "we" I mean the faculty, the ALI-CLE staff, and the record number of attendees who came to San Diego -- also delivered on a really great conference. See our posts on several of the presentations here, here, here, and here for a flavor.

We also announced that the date and location for the 2018 Conference has been set, and the hotel and site have been booked:

2018 ALI-CLE
Eminent Domain & Land Valuation Litigation Conference
Francis Marion Hotel
Charleston, South Carolina
January 25-27, 2018

Stay tuned for details. Send your ideas for what you'd like to see at the 2018 Conference. Tell your colleagues to come if they missed out this year. The more who attend, the better this gets.

We'll post more once the agenda, faculty, and registration process are ready. See y'all in Charleston. 

Links & Materials From Day 3 Of ALI-CLE Eminent Domain And Land Valuation Litigation Conference, San Diego

Our final day was anchored, as usual, by Pacific Legal Foundation's Jim Burling, and property rights guru and advocate Michael Berger. Jim was his usual riveting self, and Michael supplied the insight to cases which only he can.

In case you are wondering, the above is the view from the dais, and no, I didn't bring a Spam calendar with me, it was a gift from a thoughtful New Jersey colleague who knows that Hawaii people love Spam. I will reserve comment on whether I love Spam, and simply say thank you for the calendar. 

We finished the day strong with the National Forum, where audience members took the mic and shared their cases, issues, and results with the rest of us. 

• Here's the decision on attorneys' fees in an expropriation case awarded to the condemning authority, which our Toronto colleague Shane Rayman spoke about.
• It's not just a Canada thing - here's the Idaho Supreme Court case awarding the condemnor attorneys' fees. 
• John Groen, the lawyer who will be arguing Murr v. Wisconsin on behalf of the Murr Family (should the Court ever decide to schedule oral arguments) spoke about the status of the case and the way the arguments have played out.
• Here's that Florida District Court of Appeals decision discussed, about project announcement and inverse condemnation. 

If you attended the Conference or served on the faculty, and have a web site or blog about issues other Conference participants should know about, send your URL my way, and I will post them up later this week. We should keep the conversation going. 

Related articles

"Eminent Domain Abuse" Turnaround In Idaho: Property Owner Liable For Condemnor's Attorneys Fees For "Extreme And Unlikely" Appeal And Defenses

Links & Materials From Day 2 Of ALI-CLE Eminent Domain And Land Valuation Litigation Conference, San Diego

Today, in addition to listening to sessions on Ethics, jury presentations, and expert witnesses, we presented (along with Dave Breemer of Pacific Legal Foundation) a session on "Takings and the Police Power." Here are the links to the cases and articles I discussed in my portion of the presentation: 

• Machine Gun Taking? Three Times The Pain, And Your Own Self To Blame (feat. Jimi Hendrix)
• South Carolina Convenience Store and SWAT: Damage Caused By Hostage Rescue Isn't A Taking
• Emergency Demolition Of Damaged Building Not A Taking
• Amerisource v. United States (taking of legal drugs) - Wait, I Thought The Police Power and the Public Use Clause Were "Coterminous"
• Lesson 1: Backup Your Hard Drive - Federal Circuit: Taking As A Result Of Police Power Isn't A Taking
• Where The Sidewalk Ends: Arizona Court of Appeals - The Takings Power Is Different Than The Police Power
• Alaska: Police Power Not A Blanket Exception To Takings Liability - State May Be Liable For Backfires
• Police Power (Not Just Regulatory Takings): Wisconsin: Cutting Off Highway Access Is Not Compensable, If The Property Isn't Totally Landlocked
• North Dakota SCT: Gov't Seizure A Function Of Police And Tax Power, Not Eminent Domain
• Pico and Crenshaw, Los Angeles: Hadacheck v. Sebastian
• The Armstrong principle - Armstrong v. United States, 364 U.S. 40 (1960).

The above photo is our annual proof of life photo which demonstrates that yes, we really were in the room at 8:00 a.m. and onwards to get educated on eminent domain. 

Star Trek: 2017 ALI-CLE Eminent Domain And Land Valuation Litigation Conference, San Diego

Yeah, at the ALI-CLE Eminent Domain and Land Valuation Litigation Conference now ongoing in San Diego, we talk severance damages, relocation benefits, highest and best use, pipelines, energy corridors, temporary construction easements, and blah, blah, blah.

But what really matters is when our St. Louis colleague Paul Henry (the bravest man we know) presents "Everything About Eminent Domain I Need To Know I Learned From Star Trek." 

In a Starfleet uniform.

To a room full of the nation's best eminent domain lawyers.

As one of the Planning Chairs, we told Paul that he could present this topic, but only if he did it in uniform. Well played, Captain!

Day 1, 2017 ALI-CLE Eminent Domain And Land Valuation Litigation Conference, San Diego

Here are the links and references to the cases we spoke about today at our opening session on the national trends in eminent domain law at the 2017 ALI-CLE Eminent Domain and Land Valuation Litigation Conference in San Diego. 

We again have a record attendance, and a good number of new attendees. If you aren't here now, we're sorry you didn't make it. But fear not: ALI-CLE has already set the date and location for the 2018 Conference: save the date on your calendars now -- January 25-27, 2018, Charleston, South Carolina, at the Francis Marion Hotel. 

• North Carolina's Map Act case (Kirby). Land banking to keep the eventual acquisition price low, is a taking.
• Nevada: No Regulatory Taking When DOT Announced Future Plans To Condemn.
• California's City of Indio case: temporary "no build" area while city gets around to taking the property is a taking.
• Municipal takings of public utilities: Montana Supreme Court writes "more" out of the "more necessary" clause.
• Pennsylvania Supreme Court: Delegation Of Eminent Domain Power To Pipeline Companies Violates Fifth Amendment's Public Use Clause.
• Through, Not To: A Pipeline With No Kentucky Offramps Isn't For Public Use (for Kentucky).
• Pipeline takings: Pennsylvania appellate court agrees that the polar vortex made them do it.
• Creative Thinking Prize: Texas Supreme Court sides with property owner who formed conservation district to beat back a taking. Don't tell me no, tell me how.
• Georgia appellate court: appraisal "before" negotiations means just that.
• Colorado Supreme Court reads its eminent domain statute narrowly: when it says Commission must approve taking, DOT can't do it.
• Virginia: an unacceptably low appraisal = "bona fide" offer.
• Entry statutes: the California Supreme Court decision in Property Reserve: the court rewrites the statute in order to save it.
• Virginia federal court rejects facial challenge to Virginia's entry statute.
• North Dakota Supreme Court finds that small entries are "examinations" and not takings.
• Who decides, Part II: West Virginia Supreme Court concludes that condemnor (not the courts) is sole determiner of sufficiency of quick take deposit.
• Tex App: Rail Construction Cutting Off Access Can Be Inverse Condemnation - Even When There's Been No Taking.
• Kauai condemnation: Hawaii Supreme Court arguments in "larger parcel" case. 
• SCOTUS and larger parcel in regulatory takings: Murr v. Wisconsin - the "larger parcel' in regulatory takings.
• Who decides? California Supreme Court in City of Perris -- judge decides Nollan/Dolan issues (but they may be project influences, so property owners do the happy dance).

Related articles

Amici Brief: Precondemnation Entry That Goes Beyond "Innocuous" And "Superficial" Is A Taking

NJ Court: There's No Substitute For The Eminent Domain Process, Even On The Shore, Even In An "Emergency"

inversecondemnation.com: Hawaii Supreme Court Oral Argument In Lucas "Economically Beneficial Use" Taking Case

Ode To A Road

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Notes And Links From Today's Hawaii Land Use Conference Session On Reg Takings

To supplement your written materials for the 2017 Hawaii Land Use Conference, here are the decisions and other materials which we spoke about this morning at the 2017 Hawaii Land Use Conference:  

• Leone: Hawaii Supreme Court oral arguments in "economically beneficial use" case. 
• CNMI: Compensation Delayed, Is Justice Denied
• Our colleagues' recent Hawaii State Bar Association talk about developments in Hawaii land use law.
• Kauai condemnation: Hawaii Supreme Court arguments in "larger parcel" case. 
• Guam: Eminent Domain Interest Statute Cannot Limit Constitutional Right to Just Compensation
• Entry statutes: the California Supreme Court decision in Property Reserve: the court rewrites the statute in order to save it.
• Virginia federal court rejects facial challenge to Virginia's entry statute.
• North Dakota Supreme Court finds that small entries are "examinations" and not takings.
• Pipeline takings: Pennsylvania appellate court agrees that the polar vortex made them do it.
• North Carolina's Map Act case (Kirby). Land banking to keep the eventual acquisition price low, is a taking.
• California's City of Indio case: temporary "no build" area while city gets around to taking the property is a taking.
• Virginia: an unacceptably low appraisal = "bona fide" offer.
• Colorado Supreme Court reads its eminent domain statute narrowly: when it says Commission must approve taking, DOT can't do it.
• Georgia appellate court: appraisal "before" negotiations means just that.
• Who decides, Part I: California Supreme Court in City of Perris -- judge decides Nollan/Dolan issues (but they may be project influences, so property owners do the happy dance).
• Who decides, Part II: West Virginia Supreme Court concludes that condemnor (not the courts) is sole determiner of sufficiency of quick take deposit.
• Municipal takings of public utilities: Montana Supreme Court writes "more" out of the "more necessary" clause.
• Creative Thinking Prize: Texas Supreme Court sides with property owner who formed conservation district to beat back a taking. Don't tell me no, tell me how.
• Pending issues at SCOTUS: (1) attorneys' fees under the URA; (2) Murr v. Wisconsin - the "larger parcel' in regulatory takings.
• Speaking of attorneys' fees: property owner's claim that trial date (and not date of complaint) was date of valuation was not reasonable.
• Law review articles of note:
• Bill Wade's article on damages and just comp when you are dealing in income-producing properties
• Virginia Law Review article on state constitutional property.
• Mike Berger's lookback on "Property, Democracy & The Constitution."
• Arizona Law Review: do animals have property rights?

Related articles

Kelo At 10: Still Stinks, And A Decade Has Not Lessened The Odor

Ode To A Road

inversecondemnation.com: Hawaii Supreme Court Oral Argument In Lucas "Economically Beneficial Use" Taking Case

Amici Brief: Precondemnation Entry That Goes Beyond "Innocuous" And "Superficial" Is A Taking

Little Pink House Movie Premiering

"Little Pink House," the movie based on Jeff Benedict's 2009 book, Little Pink House: A True Story of Defiance and Courage, about the backstory to Kelo v. City of New London, 545 U.S. 469 (2005), will soon be in theaters. 

We know about the legal issues the case presented, but the book and the film center more around the human story. About this time last year, we spoke to Ted Balaker, one of the film's producers, who gave us an inside look at the film (which was still being edited). Ever since, we've been eagerly anticipating the feature, which has some familiar faces in key roles. The film stars Catherine Keener (Capote) as Susette Kelo and Jeanne Tripplehorn (The Firm, Basic Instinct) as the head of the New London Redevelopment agency.

The movie will have its world premiere at the upcoming Santa Barbara International Film Festival on February 2, 2017, quickly followed by a screening on the opening night of the Athena Film Festival in New York City on February 9, 2017 (more here on that screening from the Hollywood Reporter). 

Hopefully after the festival circuit, the film will be available in wider release. We'll find a way to see it, and bring you our review. 

 

Related articles

Kelo At 10: Still Stinks, And A Decade Has Not Lessened The Odor

Legal Theory Blog: Berger on the Response to Kelo v. New London

New Law Review Article Worth Reading: "Through a Glass Clearly: Predicting the Future in Land Use Takings Law"

Eminent Domain Abuse, Coming To A Theater Near You

Ode To A Road

A question for those of you who do a lot of straight condemnation work: do you drive roads and highways with a slightly different outlook than the rest of the motoring public, especially on those roads where you represented a property owner defending against eminent domain? While others see signs and intersections and the like, is your focus instead on your owners' (former) property, the construction easements, the appraisals, and the issues you argued in the taking case?

Call us weird, but that's how we drive "our" roads.

Recently, we had that old deja vu because we were in the neighborhood of a road in which we represented two of the condemned. The courthouse in Kona on the Big Island is a stone's throw from a County of Hawaii road project, only recently completed, that was one of our mostly hotly contested eminent domain cases, one that resulted in three published opinions from the Hawaii Supreme Court, one of which was a ruling on how a property owner goes about proving that a taking ostensibly for a public use is instead for private benefit. See also this opinion and this one. And a U.S. Supreme Court cert petition (denied). We also represented other "downstream" property owners in the project who contested the amount of compensation offered by the County. 

Budget Rent-a-Car did not have the Ford Focus we had reserved, and instead provided us this beast:

So after our hearing at the Kona courthouse concluded (a land use case on remand from the Hawaii Supreme Court) -- with Lalo Schifrin's brassy "Shifting Gears" from the Bullitt soundtrack in our heads --  and after meeting up with a long-time correspondent interested in Big Island road projects, we decided to take a drive down the new Mamalahoa Bypass Road on the (former) properties of our (former) clients. 

One of our legal team's internal mantras during the public use challenge case was that "there is no road." As the above video shows, today there definitely is a road. We just see it in a very different way than our fellow motorists.

Not a bad view, either, even though the blue Pacific Ocean is somewhat obscured by vog.  

6th Circuit: City's "War Of Attrition" Meant Regulatory Takings Claim Ripe For Federal Review

The Sixth Circuit's opinion in Lilly Investments v. City of Rochester, No. 15-2289 (Jan. 5, 2017) is not slated for publication, but its worth a read anyhow because it involves Williamson County ripeness, and the "final decision" rule. Here's how the court summarized the case:

This case concerns Louis Leonor’s efforts to open a dental clinic in Rochester, Michigan. The clinic stands nearly complete, but in May 2013 Rochester issued a stop-work order preventing Leonor from finishing and operating the clinic, prompted by an expert’s finding that the clinic does not comply with the conditions of a city permit. That same expert found compliance a few months later after Leonor made corrective changes. Nonetheless, Rochester refused to lift the stop-work order or take an up-down vote on the project unless Leonor waived any legal claims and paid a $40,000 fee. Unwilling to comply with those conditions, Leonor filed a complaint asserting a regulatory taking, which the district court dismissed on ripeness grounds, citing the lack of a “final decision.”

Slip op. at 1. 

The property owner brought suit in state court, after which the city removed the case to federal court and moved to dismiss. The district court concluded the city had not reached a final decision because the property owner "ha[d] not been met by the consistent and persistent pattern of resistance," and thus pursuing more state process wasn't futile.

The Sixth Circuit panel disagreed, holding that "It is true, as the district court recognized, that many cases excusing compliance with the finality requirement involve prolonged delays calculated to defeat the landowner in a 'war of attrition.'" Slip op. at 8. But although the city was willing to consider another site plan, it's review was conditioned on the property owner surrendering its ability to bring claims against the city. The panel agreed that "[t]he Commission’s demands presented Leonor with a Morton’s Fork: the choice between “voluntarily” waiving potential claims and forgoing a necessary ingredient to ripen those claims—a 'final decision.' Leonor maintains that the parties are therefore at an 'impasse,' and that their core dispute—whether the stop-work order amounts to a regulatory taking—is
sufficiently defined to permit judicial review." Slip op. at 8.

The court also shot down the city's argument -- cue Leo Rosten again here -- that the property owner had not exhausted available state compensation remedies. Recall that the owner filed its takings claims in state court, as Williamson County requires, and that it was the city which removed the case to federal court. The Sixth Circuit was having none of that nonsense, and agreed with the Second and Fourth Circuits, which have held that when a defendant removes a state takings claim to federal court, it waives any Williamson County argument that the plaintiff has not exhausted state compensation remedies. Slip op. at 13. 

All in all a well-thought out opinion, and its only shortfall is that we wish it were published. 

Lilly Investments v. City of Rochester, No. 15-2289 (6th Cir. Jan. 5, 2017 ) (unpub.) 

Related articles

Horne v. USDA: Way More Than Silly Raisin Jokes

6th Cir Schadenfreude Alert: Municipality Liable For Fees And Costs For Removing Takings Claim From State Court

inversecondemnation.com: More Briefs In En Banc "Hail Mary" Asking Fed Cir To Abandon Decades Of Rails-To-Trails Rulings

9th Circuit Oral Arguments: Reg Takings, Private Takings, Due Process ... And Williamson County

Been Thinking About Pulling Up Stakes And Practicing Appellate Law In Hawaii? Here's Your Chance

Winter is in full swing, which means that the usual uptick in unsolicited applications for positions with our law firm have increased. Practicing in Hawaii's courts starts to look mighty good when you are buried deep in snow and ice. 

We may not have any space currently, but others do.

The State of Hawaii Attorney General is looking for a Deputy Solicitor General. Technically, there's no "official" position of State SG, but these are the Deputy AG's tasked with representing the State of Hawaii in the state and federal appellate courts. Quite an opportunity to join Hawaii's largest law firm, and the team which represents the State in the Hawaii Supreme Court, Intermediate Court of Appeals, the Ninth Circuit, and the U.S. Supreme Court.

Here is the official announcement, setting out the requirements and most importantly, how to submit your application:

Deputy Attorney General (aka Deputy Solicitor General) Vacancy

The Appellate Division of the Hawaii Department of the Attorney General seeks to fill a vacancy for a Deputy Attorney General.  The position, which is further described in the attached announcement, provides a unique opportunity to specialize in civil and criminal appeals, many involving constitutional issues.  Applicants must be licensed in Hawaii and possess strong analytical, research, and writing skills.  Please send resume, writing sample, and completed Application for Deputy Attorney General (download from http://ag.hawaii.gov/employment/), postmarked by January 26, 2017, to:

Clyde Wadsworth, Solicitor General
Department of the Attorney General
Appellate Division
425 Queen Street
Honolulu, Hawaii  96813
E-mail:  [email protected]

Hawaii calls! 

Departmental Vacancy Announcement, State of Hawaii AG/SG 

Upcoming Election Law Hawaii Supreme Court Argument Preview: When Is A Registration Challenge "Brought?"

Our colleague Rebecca Copeland has posted a preview and the briefs in an election law case we're arguing next week in the Hawaii Supreme Court. See "Writ to Watch: Hyland v. Gonzales." We've written about the case earlier here and here. 

The question for the court's review is whether an appeal in a voter registration challenge case is timely brought -- when mailed by the appellant, or when received by the Board of Registration Appeals? Under the statute, challengers have ten days in which to "bring" an appeal, and the Intermediate Court of Appeals concluded that it must be delivered to the Board within that time, not merely mailed. The court's decision in this case could have an impact beyond the relatively rare election law context, because many administrative procedures and appeals are subject to similarly-phrased deadlines.  

Rebecca writes:

In the underlying case, Hyland challenged the voter registration of another Hawaii county voter. The challenge was filed with the Office of the County Clerk for the County of Hawaii. The Clerk denied the challenge, and Hyland appealed to the Hawaii County Board of Registration. The Board ruled that it lacked jurisdiction over the appeal because it had not been timely filed – according to the Board, an appeal must be received within the 10-day prescribed filing period. Hyland appealed to the ICA, and the court affirmed.

On certiorari, Hyland argues that the Board had jurisdiction to consider his appeal. The essence of the appeal is whether it was timely because, according to Hyland, he mailed it within the ten-day appeal window. Hyland was told that the appeal had to be mailed to Oahu, but he was not told that the delivery of the document to the Oahu was required to be within the ten days.

The Judiciary has also previewed the arguments on its web site: 

No. SCWC-15-0000053, Thursday, January 19, 2017, 8:45 a.m.

LANRIC HYLAND, Petitioner/Petitioner-Appellant, vs. RONALD GONZALES and STEWART MAEDA, in his official capacity as Hawai`i County Clerk, Respondents/Respondents-Appellees.

The above-captioned case has been set for argument on the merits at:

Supreme Court Courtroom
Ali`iolani Hale, 2nd Floor
417 South King Street
Honolulu, HI 96813

Attorneys for Petitioner Lanric Hyland:

Robert H. Thomas and Mark M. Murakami

Attorneys for Respondent Board of Registration:

Patricia Ohara and Valri Lei Kunimoto, Deputy Attorneys General; Ewan C. Rayner, Deputy Solicitor General

Attorneys for Respondent Stewart Maeda:

Christopher P. Schlueter and Laureen L. Martin, Deputy Corporation Counsels

Attorney for Respondent Ronald Gonzales:

Lincoln S.T. Ashida

NOTE: Order accepting Application for Writ of Certiorari, filed 05/11/16.

COURT: MER, CJ; PAN, SSM, RWP, and MDW, JJ.

Brief Description:

The petitioner in this case challenged the voter registration status of a voter by filing a challenge with the Office of the County Clerk of the County of Hawai`i. Following the county clerk’s decision that the challenged voter was properly registered, petitioner appealed the county clerk decision to the local Board of Registration (Board) for the County of Hawai`i. The challenged voter filed objections to the jurisdiction of the Board arguing that the appeal was untimely. The Board agreed, concluding that it was without jurisdiction to consider the appeal because the appeal was untimely as it was not received by the Board within the ten-day filing period.

Petitioner appealed the Board’s decision to the Intermediate Court of Appeals (ICA) contending that petitioner’s appeal was timely. In a memorandum opinion, the ICA affirmed the order dismissing the appeal, concluding that petitioner’s appeal was not timely as it was not filed until the date it was received by the local board in the mail. The ICA in its ruling also determined that the Board erred in concluding that Columbus Day was a holiday that tolled the appeal deadline, although the ICA concluded that the error was harmless because the appeal would have been untimely in any event. Petitioner filed an application for writ of certiorari with this court, which was granted. In his application, petitioner maintains that the Board had jurisdiction over his appeal because his appeal was timely filed with the Board based on the date of the mailing of his notice of appeal.

We'll bring you more down the road. 

Related articles

inversecondemnation.com: New HAWSCT Brief In Election Case: Voter Registration Appeal Is Timely Brought When Mailed

SCOTUS GVR's Anti-Eminent Domain Sign Case

Hawaii Supreme Court Oral Arguments In Lucas "Economically Beneficial Use" Taking Case

After the Hawaii Supreme Court decided GATRI v. Blane, 962 P.2d 367 (Haw. 1998) one big question remained.

In GATRI, the court held that in the coastal zone, a county Community Plan (also known as a "General Plan" in some counties) is a binding land use regulation, and thus has the force and effect of law. (Outside the coastal zone, the CP/GP's don't actually control any land uses, and are general statements of long-term planning goals. The zoning, and the zoning alone, regulates the uses of land.)

But the state legislature in the Coastal Zone Management Act mandated a different result in the coastal zone and there, the planning also controls land use, as the court held in GATRI. Thus, in order to develop property in the coastal zone in accordance with the applicable zoning, the applicable CP/GP must also permit the use. This is know as "plan-zone consistency," and when the zoning and the planning are consistent, all is well. 

The big question, however, is what happens when the zoning and the CP/GP are not consistent? First, we know that as a consequence of the inconsistency, the landowner cannot use her land in accordance with the zoning. Second, what, if any uses can be made of the property under the CP/GP designation? If none, this should set off your takings alarm bells: when a property is deprived by regulation of its economically beneficial uses, what is left but a Lucas wipeout?

As we detailed in our preview post, this is the issue confronting the Hawaii Supreme Court in a case argued last week, Leone v. County of Maui. There, the parcel is zoned "Hotel" (which permits residential use as a matter of right), but is designated on the CP as "park." In other words, its GATRI inconsistent. 

We won't go into the background or the arguments made by each side (for details, see our earlier post, and the amicus brief we filed in support of the property owners in an earlier phase of the case in which the County lost its argument that the case wasn't ripe under Williamson County because the owners hadn't made an attempt to get the hotel zoning and the park CP consistent by seeking an amendment to the CP which would allow for residential use). Instead, we've posted the oral argument recording above for your edification. 

After the Court of Appeals correctly determined that Williamson County doesn't require a takings plaintiff to seek a change in the law in order to ripen her claim, the Lucas wipeout question ended up being presented to a Maui jury, which somehow concluded that despite the plan/zone inconsistency, the Leones' have some economically viable uses remaining.

What those uses are, we can't imagine. We know the Leones can't build a home which the hotel zoning would otherwise permit. And we know the Leones can't make use of it as a park because the lot is too small (the minimum lot size in the park CP is 1 acre, and the Leone parcel is less than 1 acre). That should have been game, set, and match.

But it wasn't, and after the adverse jury decision, the property owners appealed. To explain the verdict, the County made all sorts of arguments that in our view, can't be harmonized in a way that makes any sense under the Fifth Amendment or federal court caselaw. Who knows, maybe the jury bought the County's argument the Leones could hold the property for "investment" purposes (in other words, despite it being frozen out of present uses today, in the future it might have value), despite that argument being foreclosed as a matter of Fifth Amendment law by cases like Lost Tree. Or maybe the Leones really could open a park concession or something and that is an economically beneficial use of the parcel, even though the CP says otherwise. Or maybe they could have somehow convinced the County to let them build a home, even though it is flatly prohibited by their own rules and GATRI, and that it wasn't the inconsistency which caused the County to deny the Leones' application to build. (Other neighboring homeowners eventually secured the County's ok, and even though those parcels were in different situations, the County pointed to them and argued why not the Leones as well?)

SCOA_010517_SCAP_15_599

The oral argument recording (above and at the top of the post) has all of the details, and is a worthy listen for you takings junkies. The issues are all there: Williamson County, Lucas, Nollan/Dolan, nothing omitted. 

Check it out. 

Brief Amicus Curiae of Pacific Legal Foundation, Leone v. County of Maui, No. 29696 (Haw. App. filed. Sep.... 

Takings Pilgrimage, Upper West Side Edition

You take the uptown subway, the 1 train, destination the Bronx -- the IRT for those of you who still refer to New York City's subway lines that way -- and exit at the 103rd Street Station, just before you cross the unofficial border to Harlem. Walking north on Broadway for a couple of blocks, turning on West 105th Street west towards the Hudson, crossing West End Avenue. 

This is the formerly rural part of the city now known as the Upper West Side, then known as Bloomingdale. The Dutch, who originally named it that back when this was all New Amsterdam, didn't spell it that way, of course. They wrote Bloemendael, because it reminded them of a flower growing area in Holland. Not too many flowers to be found here these days, unless you continue on towards Riverside Park. 

A quarter of a block down on your right, you come to a row of, well, row houses. Nice, and not exactly what you might call "affordable," but in the heady world of New York real estate, they might even pass for modest: nothing about them is truly distinctive, and you really could be in quite a few of the city's neighborhoods if you didn't know better. 

You slow down at 303. A five-story, eight unit co-op. Like I said, nothing really distinctive. But "303 West 105th Street, New York City" sticks in your mind. It reminds you of something. 

And then you see it. Haphazardly nailed to the facade, zip tied and covered in decades of paint, snaking up the front of the building like an arteriosclerotic nerve system, it hits you: this is that building. 

Your eyes trace the cable lines up to the roof. 

Yes, the cable TV lines.  

Confirmation: this is the building at issue in the U.S. Supreme Court's regulatory takings case, Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419 (1982).

As Justice Thurgood Marshall wrote for the Court's majority,

Appellant Jean Loretto purchased a five-story apartment building located at 303 West 105th Street, New York City, in 1971. The previous owner had granted appellees Teleprompter Corp. and Teleprompter Manhattan CATV (collectively Teleprompter) permission to install a cable on the building and the exclusive privilege of furnishing cable television (CATV) services to the tenants."

458 U.S. at 421-22 (footnote omitted).

Can you finagle your way up to the roof to see if evidence of the (in)famous cable boxes were still there ("Teleprompter also installed two large silver boxes along the roof cables. The cables are attached by screws or nails penetrating the masonry at approximately two-foot intervals, and other equipment is installed by bolts.")?

Alas no, you can't find the super to check whether a little "donation" to the building's Holiday Fund might ease a door or two open.

That will have to be saved for a future visit, perhaps.

So you do the next best thing, Google Maps. Can you see the boxes? 

This is the property that gave us the case that cemented the Supreme Court's per se physical takings rule that "a minor but permanent physical occupation of an owner's property authorized by government constitutes a 'taking' of property for which just compensation is due under the Fifth and Fourteenth Amendments of the Constitution," as Justice Marshall wrote for the Court. 

Not all agreed. As the now-public conference notes reflect, Justices Blackmun, Brennan, and White had their reasons for not joining the majority. Justice Blackmun even pointed out that the opinion's reference to the "two large silver boxes" was not to be found in the opinion of the lower court, "nor are their dimensions stated anywhere in the record." Details!

Time has turned the Loretto case into an icon, something of a holy grail for property owners' counsel asserting takings claims - get the court to agree there's been a physical occupation, no matter how inconsequential, and the only question left is the remedy for the taking. 

The building, however, has no sign, no plaque, no indication that it was the location of one of the Supreme Court's most consequential property decisions.

Just a weathered street number, and a few cables on the building as mute reminders. 

Conference Notes, Loretto v. Teleprompter Manhattan CATV Corp., No. 81-244 (1982) 

(Video) There's Still Room At The Upcoming ALI-CLE Eminent Domain & Land Valuation Litigation Conference, San Diego, Jan. 26-28, 2017

Complete information, including registration, faculty, and agenda, here. 

Court Of Federal Claims Pop Quiz: Taking Or No Taking?

There have been a lot of takings and takings-related decisions coming out of the Court of Federal Claims lately, and we've held off on posting them individually. So to start off your New Year, here is a pop quiz.

Your task: guess whether the CFC held there was a taking, or no taking (answers below):

Case 1: Sheikh Djibouti 

• Global Freight was a subcontractor providing services to a Navy base in Djibouti. The Navy ordered it to move its vehicles from the Navy base into Djiboutian territory, after which the Djiboutians seized the vehicles. Taking or no taking? 
• Taking. Or at least not "no taking." In Global Freight Systems, Co. v. United States, No. 15-378C (Fed. Cl. Dec. 29, 2016), the CFC denied the government's motion to dismiss for failure to state a claim (which argued that it was the Djiboutians and not the U.S. which took the vehicles), concluding that the plaintiff's claims that the Navy ordered the vehicles off base in order to appease the Djjiboutians, and that discovery might show the plaintiff's claims were correct. If the Navy worked with the Djiboutians or did it to protect its relationship with them, then a taking may have occurred. 

Case 2: Bust a deal, face the wheel?

• The federal government repudiated its obligation to accept prepayment under Fair Housing Act of 1949 loan agreements, pursuant to which the plaintiffs obtained low-interest mortgage loans and in return for which they provided rural low-income housing. Decades later, each of the plaintiffs transferred their interests to third parties. Taking, or no taking?
• No taking. In Saline Assoc. No. 1 v. United States, No. 13-908C (Fed. Cl. Dec. 21, 2016), the CFC concluded that the takings claims were untimely, and missed the 6-year statute of limitations. 

Case 3: Foreign Relations 

• Libyan terrorists blew up a plane, and plaintiffs, the survivors of one of the victims, sued Libya and obtained a $1.3 billion judgment in U.S. District Court. Subsequently, the U.S. government settled all claims with Libya and vacated the judgment. The settlement with Libya referred claims to a settlement commission, which awarded plaintiffs $10 milion. Plaintiffs sued the U.S. for the difference. Taking or no taking? 
• No taking. In Alimanestianu v. United States, No. 14-704C (Fed. Cl. Dec. 29, 2016), the CFC held that there was no Penn Central taking because the plaintiffs had no reasonable expectation for any recovery greater than what they got from the commission. Besides, the character of the government action is that of conducting foreign relations, and we know that in that field, the feds rule.  

Case 4: Rails-to-Trails 

• Rails-to-trails, Judge Firestone. The question was whether, under Arkansas law, the deeds which the plaintiffs' predecessors conveyed to the railroad a fee simple interest or an easement. The deeds conveyed a "right of way" interest. Taking or no taking? 
• Taking. In Carpenter v. United States, No. 15-415L (Fed. Cl. Dec. 12, 2016), the CFC applied the eight factors which the Arkansas Supreme Court established to determine whether a conveyance is for a fee or an easement, and concluded that these documents conveyed easements. The deeds were for "rights of way" (and not "quitclaims"), and were for relatively narrow strips of land.   

Case 5: Critical Habitat 

• The feds designated land for critical habitat for the Mojave desert tortoise. The government claimed the case either wasn't ripe because the plaintiff had not sought an incidental take permit which might allow them to use the property, or was filed too late because the claim accrued more than six years prior. Taking or no taking? 
• No taking. More specifically, the case isn't ripe. In Doyle v. United States, No. 15-572L (Fed. Cl. Nov. 30, 2016), the CFC held that the plaintiff's failure to seek an incidental take permit made its takings claim premature. The court concluded that seeking such a permit was not futile. It might be a long shot, but it wasn't Mission Impossible.   

Case 6: More rails-to-trails

• Under Maine law, the property owners' predecessors conveyed an interest in their lands to rail operators for use to build and maintain railroads. Those interests were converted to recreational trails uses after the railroads stopped operating. Taking or no taking? 
• Taking. In Harley-White v. United States, No. 14-447L (Fed. Cl. Dec. 9, 2016), the CFC applied the correct Preseault framework to conclude that the designation as a trail effected a taking as a matter of law because the plaintiffs' predecessors granted an easement for railroad purposes. The court rejected the argument that the interest conveyed was for a "public highway" purpose. 

Case 7: When is a Raisin Takings Claim Ripe?  

• In 2015, after the the U.S. Supreme Court's Horne decisions, the plaintiff sued for a taking of its reserve raisins for the years 2006-07, -08, and -09. The government asserted these claims were not "ripe" (ha, ha) because it was more than six years after the claims accrued. Too late, or timely?
• Timely. In Lion Farms, LLC. v. United States, No. 15-915 (Fed. Cl. Nov. 29, 2016), the CFC held that until Horne, the plaintiff was prevented as a practical matter from bringing suit for compensation, even if it were "technically" allowed under pre-Horne decisions. Slip op. at 4 ("t was not until the decision in Horne that plaintiff’s claims were legally defensible. It would be unreasonable to expect the plaintiff to file a takings claim that it reasonably believed was barred by Evans precedent."). 

Case 8: Tort or Taking?   

• The plaintiff alleged the feds constructed a water diversion project on Nevada land so poorly that it (1) impacted delivery of water to the plaintiff's land, and (2) resulted in flooding. The government filed a motion to dismiss because this is a tort claim and not a takings claim. Taking or no taking? 
• Taking. In Ministerio Roca Solida v. United States, No. 16-826L (Fed. Cl. Nov. 29, 2016), the CFC held  that the the government's water diversion project was an authorized act, and therefore were takings claims. The government may not have intended to impact the water delivered to the plaintiff, nor flood its land, but those impacts were the "direct, natural, or probable result" of intentional government conduct. 

Extra Credit: Regulatory or Physical Taking?   

• Plaintiffs own the right to use water in the Klamath River Basin. The government (allegedly) took their property when pursuant to the Endangered Species Act, it cut back on the amount of water the plaintiffs could use. Regulatory take or a physical take?
• Physical take. In Klamath Irrigation v. United States, No. 1-591L (Fed. Cl. Dec. 21, 2016), the CFC held that it was bound by the Federal Circuit's ruling in Casitas Mun. Water Dist. v. United States, 543 F.3d 1276 (Fed. Cir. 2008), which concluded that these types of claims are to be analyzed as physical takings. The court rejected the government's attempt to distinguish that case by asserting that there was no physical diversion of water here, only a promulgation of regulations restricting the removal of water. 

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