inversecondemnation.com

Farm [Eminent Domain] Lawyer - The Doohickeys

"...When the big man comes a knockin, he is there to represent the humble little farmer with his farm law arguments.

The judges all agree and so does every jury,
they say he's the best farm lawyer in the whole state of Missouri..."

Thanks to our Missouri colleague Paul Henry (himself a darn good farm lawyer) for sending this our (and your) way.

CA4: Being Blocked From Accessing Your Beach House For 45 Days Isn't A Physical Taking (Or Any Kind Of Taking)

You remember, don't you? In the early days of the Co-19 epidemic, government and public health authorities were scrambling to do something ... sometimes anything! ... to respond.

Dare County, North Carolina might have been one of those local governments that went maybe just a bit too far in the precaution vs effectiveness departments: it banned nonresident property owners from entering the county (and apparently didn't ban anyone else from coming and going, only outsiders).

Dare County announced the restrictions on March 16 and implemented them over three phases. Phase one, which took effect immediately, declared a state of emergency and prohibited mass gatherings. Phase two, which took effect one day later, prohibited non-resident visitors from entering the county. Phase three, which took effect four days after the restrictions were announced, prohibited non-resident property owners from entering the county. In effect, Dare County told non-resident property owners: “If you want to quarantine at your beach house, get there by March 20.” This gave non-resident property owners four days to travel to the county.

Seems a bit over-the-top and not really a measure that had much effect, especially in retrospect. 

But no matter, we know that courts are generally very hesitant to seriously entertain challenges to these type of police power actions as arbitrary or capricious, and won't do much if anything to say "hang on, this doesn't seem like an approach that's really going to work, or even do much."

But there are other ways to challenge these, such as state law, Contracts Clause, Equal Protection, or maybe takings, right? As we explained in an article on emergency takings last year, ("Evaluating Emergency Takings: Flattening the Economic Curve," 29 Wm & Mary Bill of Rights J. 1145 (2021)), takings claims are not a sure-fire winner (even where the cost-spreading rationale of takings is accounted for). 

The U.S. Court of Appeals' recent opinion in Blackburn v. Dare County, No. 20-2056 (Jan. 25, 2023), confirms. There, the court held that Dare County's extreme reaction to Co-19, which prohibited the plaintiffs from "reach[ing] their beach house for forty-five days[,]" was not any kind of taking. Slip op. at 3.

The court first rejected the physical takings claim. The stay-out order "did not physically appropriate anything from them." Slip op. at 7. The County didn't authorize government agents or third parties to come onto the plaintiffs' property. The court rejected the argument that the County keeping an owner from accessing his or her own property is a physical appropriation. "This, they say, makes the order a physical appropriation, because the Supreme Court has repeatedly held that an appropriation occurs when the government eliminates a property owner’s right to exclude. But temporarily excluding an owner from their own property differs from eliminating the owner’s right to exclude." Id.

Next, the court made short work of the Lucas wipeout claim:

But Lucas’s per se rule does not apply here. Accepting the allegations in the complaint as true, Dare County’s order did not deprive the Blackburns’ property of all economic value. The restriction was enacted under the County’s State of Emergency declaration and so would only be operative while that state of emergency persisted. And it lasted only forty-five days. This “temporary prohibition” could not have rendered the Blackburns’ property valueless. See Tahoe-Sierra, 535 U.S. at 332. Moreover, the Blackburns could have lived in their house so long as they arrived before the ban took effect. And even during the forty-five days that the ban lasted, they were still able to rent their property to someone within the County or certain adjoining counties. So the order was not a per se taking under the Lucas framework.

Slip op. at 8.

Finally, the court did not address the merits of the Penn Central claim, but affirmed the dismissal of that theory for failure to plead it correctly. The complaint did not allege facts which show a "substantial" diminution of value caused by the restriction. See slip op. at 9. All the complaint alleged was that the plaintiffs "suffered damage" and lost the "fair market rental value and value of use of said property by governmental regulations for 45 days." Id. The court held this is a legal conclusion. We're not sure what the court suggests the plaintiffs could have alleged to make it more clear. The before-and-after? A specific amount of rent allegedly lost? Use the magic word "substantial?" To us, this seems like a too-technical and crabbed reading of the pleading requirements.

On the "expectations" Penn Central factor, the court seemed to be evaluating it on the merits when it concluded that "the non-resident property order did not deny the Blackburns the use of their vacation home. It simply requied them to be at their home by March 20, 2020, if they wanted to use it personally. And the Blackburns remained free to rent the house to those within the county, or to sell it." Slip op. at 10-11.

And finally, "[t]he third Penn Central factor favors Dare County." Slip op. at 11. The court's analysis starts off with this intriguing note: "This factor requires courts to examine 'the character' of the use restriction. Penn Cent., 438 U.S. at 124. Exactly what this factor refers to is, admittedly, a little fuzzy." Id. The court settled on this requiring an inquiry into whether the regulation results in the "functional equivalent" of a classic taking. Slip op. at 12.

Applying this principle suggests that the order is not a taking. Based on the allegations in the Blackburns’ complaint, the order is not “functionally equivalent” to a government appropriation of private property. See Clayland Farms, 987 F.3d at 355. The Blackburns controlled their home during the entire time the order was in effect, and could have personally used it had they arrived in Dare County by March 20, 2020. Cf. Horne, 576 U.S. at 361–62 (holding that a physical appropriation occurred when a regulation physically transferred raisins from farmers to the government).

Nor is the order “functionally equivalent” to an ouster. See Clayland Farms, 978 F.3d at 355. The Blackburns were not dispossessed of their vacation home. And they were never forced to leave Dare County. In fact, just the opposite. Despite promulgating the order on March 16 and implementing the non-resident visitor ban a day later, Dare County delayed implementing this order until March 20 to give homeowners like the Blackburns a chance to travel to the County. This is a far cry from an ouster. See Ouster, Black’s Law Dictionary (11th ed. 2019) (“The wrongful dispossession or exclusion of someone (esp. a cotenant) from property.”).

Slip op. at 12-13.

Dismissal affirmed.

Blackburn v. Dare County, No. 20-2056 (4th Cir. Jan. 25, 2023)

Hey Honolulu, RSVP To Join Us: Nolan Gray, "Are zoning laws the cause of Hawaii's housing crisis?" Feb 15 @5:30, U.H. Law School

Here's your chance to spend some time with the author of one of the hottest land use and public policy books out there, Nolan Gray.

RSVP now (admission free, but space is limited) to join our Land Use class when we welcome Mr. Gray to respond to the question in the title of this post. Details:

Date: Wednesday, February 15, 2023

Time: 5:30pm - 7:00 pm, Hawaii Time

Location: University of Hawaii Law School (2515 Dole Street, Honolulu), Classroom #3.

Cost: Free, courtesy of Grassroot Institute of Hawaii

RSVP: You must register here to reserve your place in the room.

Parking: modest fee, available at the adjacent UH parking structure.

As we noted when we featured his book "Arbitrary Lines: How Zoning Broke the American City and How to Fix It" (Island Press 2022) at the top of our dirt lawyer holiday gift guide recently, his work is an accessible summary of what zoning is and what it isn't and isn't simply a polemic, but a thoughtful laying out of why the author (a former planner for New York City) believes that zoning's time is up. The book also offers solutions for what might replace zoning (Houston, we're looking at you).

From the registration site:

Housing prices in Hawaii are through the roof. Demand outpaces supply, and many local families are saying “Aloha” to Hawaii simply because they cannot afford to live here.

So what can state and county lawmakers do to address this crisis?

Nolan Gray, a former city planner in New York City who now leads a “Yes In My Backyard” advocacy group in California, thinks a good first step would be to abolish zoning laws. In February, he will talk in depth about that provocative proposal at two events sponsored by the Grassroot Institute of Hawaii.

Gray's presentation will be on Wednesday, Feb. 15, at the University of Hawaii at Manoa William S. Richardson School of Law, Classroom 3, from 5:30 to 7 p.m. Admission is free and paid parking is available in the law school lot or the main UH parking structure.

Keli‘i Akina, Grassroot Institute president and CEO, will moderate the event, including a Q&A session.

Gray, who also is a Ph.D. candidate in urban planning at the University of California, Los Angeles, wrote about zoning codes and housing shortages in his new book, “Arbitrary Lines: How Zoning Broke the American City and How to Fix It.”

He said zoning codes go beyond general city planning, and that by micromanaging real estate usage and density have served to limit housing supply and make America’s metropolitan areas unaffordable for most residents. In addition, he said, zoning laws have contributed to greater urban sprawl and pollution.

Seating is limited, so please register early. For more information, contact Sean Mitsui at 808-864-1776 or [email protected].

Come, join us and open your mind to his intriguing proposals.

An Ordinance Isn't A Taking Because It's A Valid Exercise Of Police Power?: What The Heck Is Going On In The Texas Court Of Appeals (First District)?

If your first reaction to the Texas Court of Appeals (First District)'s decision in City of Houston v. The Commons of Lake Houston, Ltd., No. 01-21-00369-DV (Jan. 12, 2023) is scratching your head, then please come join us in bewilderment.

After all, the court held that a takings claim failed because the city is immune from inverse condemnation. Say what? We thought that the self-executing nature of the just compensation requirement of the U.S. Constitution (and the Texas Constitution) means that claims of sovereign immunity don't hold water in inverse cases.

The Commons wants to develop "The Crossing," one of those big master-planned communities. The usual development activities entailed: master plan, subdivision plats, city approvals for infrastructure, and even some actual site work. "By April 2018, The Commons had invested millions of dollars in planning and infrastructure for The Crossing." Slip op. at 2.

But in reaction to Hurricane Harvey, the city adopted an ordinance amending the city's approach to development in floodplains. And "[s]ignificant portions of The Crossing are located within the City's 100-year or 500-year floodplains." Id. The ordinance was based on FEMA maps, which are required to be used as a condition of obtaining flood insurance. The regs changed the way the city was going to regulate development in the predicted 100 and 50 year floodplains. Instead of requiring that residences in the 100-year floodplain build one foot above flood elevation (and having no requirements for the 500-year floodplain), the new ordinance "required that new residential structures
within the 500-year floodplain be built at least two feet above the flood elevation." Slip op. at 6. 

The Commons asserted that applying the new ordinance to its already-underway project "would substantially damage the market value of the property and that the current development plan would be unfeasible." Slip op. at 7. State court inverse condemnation claim (under the Texas Constitution only) followed.

The city responded to the lawsuit by asserting the claims were not ripe because it had not reached a final decision denying the project (the new ordinance contains a variance mechanism), and when the trial court disagreed and held the case ripe, the city appealed and the court of appeals reversed: not ripe.

The Commons then went through the motions it needed to go through to confirm that yes, indeed, the city wasn't going to let The Crossing continue as originally ok'd. There was some of the usual "your application isn't complete" dance, after which The Commons submitted a new plan with a 72% reduction in developable land. "The City granted The Commons' amended plan." Slip op. at 10.

Next up, Round 2 of the lawsuit. Or more accurately, the Second Lawsuit. "The Commons alleged that the City's amended floodplain ordinance 'intentionally and unreasonably restricted The Commons' [] use and enjoyment of its property,'" and took it without compensation (asserting a Lucas-like and a Penn Central-like theory under Texas law). Id. 

The city tried the ripeness gambit again, but its main attack was that the takings claim was "barred by governmental immunity because the 2018 Floodplain Ordinance does not give rise to a takings claim as a matter of law." Slip op. at 11. Jump ahead to page 18 of the slip opinion for the reasons why the Court of Appeals agreed.

The city argued that The Commons could not assert a takings claim because the amended ordinance merely complied with FEMA requirements, and "requiring compliance with local laws consistent with FEMA/NFIP requirements does not constitute a taking." Slip op. at 18. Moreover, the ordinance can't be a taking because it is a police power regulation, "adopted to accomplish legitimate goals, [which] are substantially related to the public's health, safety, or general welfare, and are reasonable." Id.

Hey, we were just "track[ing] the criteria of the NFIP," claimed the city. Id. The court agreed that the U.S. Court of Appeals had already determined that if the government is just following FEMA and NFIP requirements, then, well, it just can't be a taking. See Adolph v. Federal Emergency Management Agency, 854 F.2d 732 (5th
Cir. 1988). But when did compliance with other law constitute some kind of safe harbor from the Just Compensation requirement? The parties argued about the applicability of Adolph and the details (see slip op. at 20-22), but to us, the bigger issue is what does compliance have to do with it at all: either the city's regulations go "too far" and affect The Commons' use of its property, or they don't. Does it matter why the city adopted the new floodplain ordinance?

To us, if the city is required to conform to FEMA requirements that means only that the regulation is likely to pass due process and public use muster, and really has no bearing at all on the impact of the regulation on a property owner's rights.

As if the court concluding that Adolph controlled wasn't enough, starting on page 25 the opinion alternatively held that there could not be a taking because -- get this -- the new floodplain ordinance is a valid exercise of the city's police power.

Yes, healthsafetywelfaremorals. But as we noted above (and have noted here many many times), the validity vel non of a regulation has little to do with whether it works a regulatory taking. You'd think that a valid regulatory purpose was the prerequisite to a takings claim not the stop sign. Some courts get it right.

We ask you: go read pages 25-28 of the Texas court's opinion. Sounds a lot like a due process analysis, doesn't it? All about the purpose of the ordinance. How it is reasonably designed to protect the public. How it survives the rational basis test.

Our response (since this is a case from the South, we feel entitled): bless your heart.

In case we're not being clear: the entire regulatory takings doctrine would make no sense if all the government need do to avoid liability is show that the regulations claimed to effect a taking are valid exercises of the police power. Indeed, the takings doctrine pretty much presumes that the taking is the consequence of an otherwise valid exercise of power. To conclude, as the court did, that the regulation can't be a taking because it is a valid exercise of the power to protect the healthsafetywelfaremorals of the public simply gets you into a self-proving rule.

Come on, Texas! We thought you got this stuff better than that.

City of Houston v. The Commons of Lake Houston, Ltd., No. 01-21-00369-DV (Tex. Ct. App. Jan. 12, 2023)

CA11: Majority's Response To Dissent's Claim That After Butch Cassidy Defaults, FDIC's Receivership Is A Taking: "Oh my goodness"

We're not suggesting you read the entire majority and dissenting opinions from the U.S. Court of Appeals for the Eleventh Circuit in Landcastle Acquisition Corp. v. Renasant Bank, No. 20-13735 (Jan. 12, 2023). After all, together they comprise 126 pages (yikes!). And the case isn't our usual fare, but "arises out of the insolvency of the Crescent Bank and Trust Company ("Crescent") and the conduct of its customer-lawyer Nathan Hardwick[.]" Slip op. at 1.

So what gives, inversecondemnation?  

We're posting it because of the back-and-forth between the majority and the dissenting judge (Pryor, C.J., which begins on page 80 of the slip copy) on a takings question that cropped up.

We say "cropped up" because, as the majority argues, the dissent's takings discussion "strays so far afield from the narrow" issue presented in the case that it proves to be a "false alarm." Slip op. at 51. Thus, the majority dismissed the takings arguments in a footnote, asserting that the appellant "never mentioned it in the district court or in its appellate briefs." Slip op. at 51 n.10. "That's why the dissent resorts to suggesting that 'Landcastle should be free on remand' to raise a Takings Clause claim." Id. 

So what's this takings argument all about? The short story is that the lawyer's law firm went bankrupt with Landcastle as one of its creditors. There's a longer story, of course, but you really don't want to bother with that. What you might want to do is skip forward to how Judge Pryor analogized it, beginning on page 44 of his dissent:

Consider the following hypothetical. Butch Cassidy is the Vice President of Finance at Coca-Cola. He has authority to enter into many kinds of transactions on behalf of Coca-Cola. In fact, he has entered into several high-dollar agreements, taken out loans, and pledged collateral on behalf of Coca-Cola. Cassidy has a family and a house with a white picket fence in the suburbs. Everything appears to be going well, but he has badly mismanaged his finances. A bad turn of luck with a cryptocurrency investment and a nasty gambling habit have left him in dire straits. He is in default on his mortgage with no way to cure it and is days away from fore-closure.

So, Cassidy finds a small Atlanta-area bank named Old Bank that is severely distressed. He borrows enough money to pay off his mortgage and give him a little breathing room. He signs a promissory note, but Old Bank, of course, demands collateral to secure the loan. Cassidy, an agent of Coca-Cola for many purposes, signs an agreement as “Butch Cassidy, Vice President of Coca-Cola.” The agreement assigns all interests in Coca-Cola’s secret formula to Old Bank. Even though he lacks both actual and apparent authority, he falsely represents to Old Bank that, as a benefit to senior officers, Coca-Cola gave him the authority to pledge the secret formula to secure personal debts. Old Bank fails, and the Deposit Corporation takes over as receiver. Our main character, Butch Cassidy, then defaults on the loan because, unsurprisingly, he continues to mismanage his finances.

Under the majority’s new rule, the federal government now owns Coca-Cola’s secret formula free and clear! The Deposit Corporation has legal title to the secret formula, and Coca-Cola is out of luck. And the majority does not even attempt to deny that its rule would require this absurd result.

Dissent at 44-45.

Whoa. The takings problem as Judge Pryor saw it the takings argument not as an affirmative claim for compensation, but more like a rule of construction for the judicial D'Oench doctrine (courts can't interpret or apply the rule in way that will result in a taking). And if anyone wasn't sure what he meant by that, he laid it all out:

Because the majority’s new rule deprives private parties of property rights and gives those rights to the federal government, it creates serious Takings Clause concerns. See Horne v. Dep’t of Agric., 135 S. Ct. 2419, 2426 (2015) (“[A]n appropriation . . . of personal property” “is a per se taking that requires just compensation.”); Webb’s Fabulous Pharmacies, Inc. v. Beckwith, 449 U.S. 155, 164–65 (1980) (applying the Takings Clause to interest earned on a deposit fund); E. Enters. v. Apfel, 524 U.S. 498, 522–23 (1998) (plurality opinion) (applying the Takings Clause to required money payments). To illustrate, at time one, a principal has an indefeasible right to an asset, and a failed bank has no interest in that asset. At time two, the federal government acts and takes over the failed bank. As a result of the federal government’s action, the federal government appropriates the asset, and the principal loses all rights in the asset. Courts ordinarily call that a “taking,” see, e.g., Horne, 135 S. Ct. at 2426; the majority calls it “[e]quit[y],” Maj. Op. 45.

The majority’s new rule gives Landcastle a plausible Takings Clause claim against the Deposit Corporation. In fact, Landcastle should be free on remand to argue that, because the D’Oench doctrine claim is unconstitutional as applied to its lack-of-authority claim, it can state claims for conversion and breach of contract. See City of Monterey v. Del Monte Dunes at Monterey, Ltd., 526 U.S. 687, 717 (1999) (plurality opinion) (explaining that an uncompensated taking is “not only unconstitutional but unlawful and tortious as well”); Knick v. Twp. of Scott, 139 S. Ct. 2162, 2180 (2019) (Thomas, J., concurring) (explaining that “ordinary remedial principles [of] . . . common-law tort claims” are available in response to a taking). But the majority has apparently resolved that question sub silentio because it remands with instructions to enter judgment in favor of Renasant. Maj. Op. 79. Left for another day is whether Landcastle might still be able to bring a separate claim against the Deposit Corporation for an unconstitutional taking. See Knick, 139 S. Ct. at 2170; City of Monterey, 526 U.S. at 717 (plurality opinion).

Before today, the D’Oench doctrine did not implicate the Takings Clause because the Supreme Court limited its application to protect only those interests that the Deposit Corporation already had. See Langley, 484 U.S. at 93–94. But the majority’s extension of the D’Oench doctrine places it on much shakier constitutional ground. Because the majority purports to apply the preexisting D’Oench doctrine, see Maj. Op. 44–45, it fails to engage in the Kimbell Foods analysis. And in that analysis, these Takings Clause problems would preclude creating this rule.

The majority preemptively reacted to the above with its own bit of judicial clapback: "Oh my goodness. '[L]ike most apocalyptic warnings,' the dissent 'proves a false alarm.'" Slip op. at 51 (citation and footnote omitted). 

So there it is.

If the plaintiff takes up Judge Pryor's invitation on remand and the takings issue becomes more than just judicial verbal sparring, we'll let you know, Hoss. 

Landcastle Acquistion Corp. v. Renasant Bank, No. 20-13735 (11th Cir. Jan 12, 2023)

Guest Post - Kady Valois, "Divide (Or Not) and Conquer: Florida's Test For The Regulatory Takings Larger Parcel"

Today's post is by our Pacific Legal Foundation colleague Kady Valois, writing about last week's opinion by the Florida District Court of Appeal (Second District) in Lake Lincoln, LLC v. County of Manatee, No. 2D21-2826 (Jan. 13, 2023),

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Divide and Conquer (Or Not): Florida's Test
For The Regulatory Takings Larger Parcel

by Kady Valois

It is highly likely that anyone who follows this blog, at least as religiously as I do, groaned when the Supreme Court issued its decision in Murr v. Wisconsin, 137 S.Ct. 1933 (2017). After all, what could be more accessible and pro- private property than creating a balancing test within a balancing test and expanding the "parcel as a whole analysis" to encompass not only the regulated property but also any other property owned by the plaintiff (in the case of the Murr family, a parcel abutting the property they asserted was taken without compensation when Wisconsin's regulations effectively prohibited them from developing it). This emitted collective groan (see, e.g., this piece, describing the Murr majority's test as "Penn Central squared") was not only for the increased difficulty of litigating future takings claims, but also the loss of private property rights generally.

Fortunately, though, Murr's muddle had little effect on the property owners in the Lake Lincoln case. There, Florida’s Second District Court of Appeal was faced with substantially the same question SCOTUS addressed in Murr: namely, "what is the ‘relevant parcel’ upon which [the property owner’s] takings claim . . . should be measured.” Thankfully, and somewhat surprisingly, the Second District (employing Florida law principles) reached a different conclusion -- and applied a different analysis -- than the SCOTUS Murr majority.

The case arose out of Manatee County’s refusal to bisect and partially rezone a portion of Lake Lincoln’s ten-acre parcel, located within Tara’s Development of Regional Impact (DRI) – an area over eleven hundred acres - into two separate subplots. This refusal led to two separate regulatory takings claims, one sounding in Florida statutory law – the Bert J. Harris, Jr., Private Property Rights Protection Act – and the other under the Florida Constitution's Takings Clause. See slip op. at 4.

The trial court quickly disposed of both claims, granting the County summary judgment. It held that the entire 1,124-acre DRI parcel was the relevant parcel (aka the "denominator") for analyzing whether a taking occurred.

After a hearing on the motions, the trial court granted summary judgment in favor of the County on June 11, 2021. In its order the trial court concluded, "Considering the relevant factors and the undisputed facts and giving particular weight to the unique interdependence created by the DRI regulatory scheme, the Court finds the appropriate 'relevant parcel' in this case is the entire Tara DRI property."

Id.

Lake Lincoln appealed, arguing only the ten acres it owned should have been examined as the denominator/larger parcel.

The Second District Court of Appeal agreed. In doing so, the court employed an often-under-utilized Florida Supreme Court decision, Dep't of Trans. Div. of Admin. v. Jirik, 498 So.2d 1253 (1986). Jirik set forth a three-part test that eminent domain lawyers recognize: to determine the larger parcel in a regulatory takings case, a court examines a property’s "physical contiguity, unity of ownership, and unity of use."

Yes, the "three unities."

The court noted that unity of use incorporates a number of considerations including: (1) the intent of the owner, (2) the adaptability of the property, (3) the dependence between parcels, (4) the highest and best use of the property, (5) zoning, (6) the appearance of the land, (7) the actual use of the land, and (8) the possibility of tracts being combined in use in the reasonably near future.

The court of appeal concluded these unity of use factors tip in the owner's favor and that there was no overall use of the DRI parcel:

As to unity of use, the trial court stated the subfactors to consider but did not apply them.... The trial court appeared to make a determination on unity of use based in large part on the one subfactor that there was dependence between the parcels due to the development entitlements.

Regarding the subfactors of the intent of the owner and the dependence between parcels, Lake Lincoln intended the 3.32-acre subparcel to be a standalone commercial property. The 10.32-acre parcel is not dependent upon any adjacent DRI properties to appreciate the commercial use Lake Lincoln sought. Although Lake Lincoln sought the 3.32-acre subphase through a larger DRI amendment process and
the application lists the entire DRI as the property, Lake Lincoln was seeking amendments for other parcels in the DRI in addition to the 10.32-acre parcel and seeking transfers of entitlements. The application shows that Lake Lincoln's proposed use and intent was to develop a 3.32-acre commercial subphase independently from other properties within the DRI.

As to zoning, adaptability, and appearance, this standalone commercial property would be consistent with its future land-use classification and the neighboring uses. Commercial use for the 3.32-acre subparcel with the remainder of the 10.32 acres for use as wetland mitigation/ conservation is the property's highest and best use. Further, there is no realistic possibility of the parcel being combined with other tracts in the reasonably near future, given the DRI build-out.

Slip op. at 8-9.

The primary point on unity of use seems to have been that Lake Lincoln didn't own any other property within the DRI, and that using the DRI parcel as the takings denominator was just too expansive: just how was Lake Lincoln supposed to use someone else's property?

The second factor - physical contiguity - also cut in favor of Lake Lincoln. The court of appeal concluded that the mere proximity of the DRI to Lake Lincoln’s property was not enough to confer “relevant parcel” status. Rather, the fact Lake Lincoln owned only its ten acre parcel within the DRI and no other property, ruled the day.

Additionally, Lake Lincoln’s intent to create a standalone commercial property weighed heavily in the Second District Court’s analysis. An analysis which was fully in line with the Federal Circuit’s decision in Lost Tree Village Corp. v. United States, 707 F.3d 1286 (Fed. Cir. 2013).

Having concluded that the relevant parcel is the 10-acre piece, the court of appeal concluded that it shouldn't merely vacate the judgment and send the case back down for more. Instead, it reversed and remanded with an order to enter judgment on the Florida law takings claim in Lake Lincoln's favor:

Considering the undisputed facts, we conclude that the relevant parcel for takings purposes is the 10.32-acre parcel. When considering the proper relevant parcel, the undisputed facts demonstrated that Lake Lincoln could achieve no economic use on its 10.32-acre parcel as a result of the County's restriction to uses for only open spaces and wetlands during the nearly nine-year period.

We conclude that the trial court erred as a matter of law in determining that the entire 1,124 Tara DRI was the relevant parcel for takings purposes. We reverse the final summary judgment and the ruling that the County was entitled to summary judgment on count two for inverse condemnation and that Lake Lincoln was not entitled to partial summary judgment on count two. We remand for further proceedings and direct the trial court to enter partial summary judgment as to liability on count two in favor of Lake Lincoln. To the extent that the trial court granted summary judgment on count one [the Bert Harris Act claim], we affirm.

Slip op. at 10.

The Second Circuit’s reversal in this case and its ultimate decision that the relevant parcel was only Lake Lincoln’s ten acres, represents a marked departure from what seems to be Murr’s ever expanding nature.

And for once, the good guys and their little lot conquered all.

                       - Kady Valois

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Barista's comments: the Florida court here applies what we think is the right approach, as we wrote in our article criticizing the Murr majority, and suggesting that the three unities test under state law may be the way to go until Murr is clarified or overruled. See Restatement (SCOTUS) of Property - What Happened to Use in Murr v. Wisconsin?, 87 UMKC L. Rev. 891 (2019). And, again correctly, the Florida court focused on unity of use as the most critical factor of the three (something we emphasized in this amicus brief in another court).

Lake Lincoln, LLC v. Manatee County, No. 2D21-2826 (Fla. Dist. Ct. App. Jan. 13, 2023)

(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. But there's still space, although we are nearly full. So register now - don't delay any further! 

Here's the brochure with the complete agenda, schedule, and faculty listing. But to tempt you, here are some of the highlights of the program:

• Everything Old is New Again: Why Today’s Practitioners Need to Understand the Original Meaning of the Takings and Just Compensation Clauses
  
• When the SWAT Team Comes (No) Knocking: Police Power Takings

• Private Utility Takeovers – Lessons From a 67 Day Trial

• "Contraband": How Property Rights Helped Pave the Way for Civil Rights

• Valuation Issues When Billboards and Signs are Condemned

• Setting Client Expectations and Identifying Red Flags

• Preparing Your Expert Witness to Shine in Virtual Proceedings: Tools and Tips for Trial Lawyers

• Developing Property Right Issues in Texas - Questions and Answers from the Bench (with Texas Supreme Court Justice Jimmy Blacklock)

• Eminent Domain and Regulatory Takings Updates: Important Decisions You Need to Know

• Ethics: Building Your Practice by Mentoring the Next Generation of Eminent Domain Lawyers

• the Condemnation 101 program (a one-day course for those new to the practice, or for experienced practitioners wanting a refresher)
• ...and much more!

To register, go here.

Looking forward to seeing everyone in Austin for the 40th edition of the Conference.

Program Brochure, 40th ALI-CLE Eminent Domain & Land Valuation Litigation Conference, Austin, Texas, Feb 1-...

Federal Court: Seattle Facilitating Downtown Takeover Takings Claim Is Going To Trial

Saturday in the park...I think it was the Fourth of July

Here's the latest on a case we've been following, about the blocking off of a neighborhood in Seattle and making it a no-go zone for those whom the takeoverers wanted to keep out.

Yes, the CHOP/CHAZ case is still a thing. [And before we go on a disclosure: our law firm is participating as amicus curiae in the case.]

Business owners in the zone sued the City in federal court, alleging that the government actively aided or facilitated the takeover, or at minimum did nothing to end it. Claims asserted include Due Process, Takings, and state and local law claims. The takings claim was based on two theories: first, that the City facilitated a physical invasion by third parties of plaintiffs' properties; second, that the City action or inaction resulted in a loss of access by plaintiffs and their invitees to their properties in the zone.

We posted the federal court complaint and court's earlier denial of the City's motion to dismiss:

• Complaint: City's Abandonment Of CHOP/CHAZ Neighborhood Is A Taking
• Federal Court: If It's True That Seattle Provided Material Support To CHOP/CHAZ, That Could Be A Taking

In this Order, the court granted the City summary judgment on the due process claims and one of the takings claims, but importantly denied summary judgment on the denial-of-access takings claim. 

The court rejected the temporary physical invasion claim, concluding that the City had neither formally invited, nor authorized, the protesters to enter plaintiffs' properties, and "[u]nlike in Cedar Point and Loretto, the City did not adopt a regulation or ordinance granting protesters a 'formal entitlement' to enter Plaintiffs' properties. Order at 24.

But the court didn't see it the same way with the loss-of-access takings claim. First noting that "[a]n owner's right of access to his or her property is recognized in Washington[,]" which cannot be "eliminated or substantially impaired," Order at 24, the court concluded that "the parties do not dispute that some plaintiffs were able to access their properties during CHOP." Order at 25 (footnote omitted). The declarations submitted by plaintiffs in opposition to the City's summary judgment motion alleged "that access to their properties was significantly diminished or impaired during the CHOP period." Order at 26.

This action does not involve the typical exercise of police power to regulate the flow of traffic in the Capitol Hill neighborhood, such as for routine road maintenance or construction. Further, Plaintiffs have presented evidence that the City’s actions actually interfered with or prevented their access to their properties. Drawing all justifiable inferences from the evidence in Plaintiffs’ favor, the Court concludes that genuine disputes of material fact preclude summary judgment on Plaintiffs’ right of access theory of liability. The Court therefore DENIES the City’s motion as it relates to Plaintiffs’ right of access taking claim. Whether Plaintiffs can present sufficient evidence at trial to support the City’s liability for a taking under these circumstances is a factual issue that cannot be resolved on a motion for summary judgment.

Order at 27.

For your next visit to Seattle

So the beat goes on. We'll bring you updates as they occur.

Hunters Capital, LLC v. City of Seattle, No. C-20-0983 (W.D. Wash. Jan 13, 2023)

Lucky Friday The Thirteenth: SCOTUS Grants New Takings And Excessive Fines Case

Here at inversecondemnation.com, we were all set to call it a week and take a break from posting until Monday.

But SCOTUS had other ideas.

In this Order issued today, it agreed to review Tyler v. Hennepin County, No. 22-166, a case and an issue we've been following closely.

The Questions Presented by the petition:

Hennepin County confiscated 93-year-old Geraldine Tyler’s former home as payment for approximately $15,000 in property taxes, penalties, interest, and costs. The County sold the home for $40,000, and, consistent with a Minnesota forfeiture statute, kept all proceeds, including the $25,000 that exceeded Tyler’s debt as a windfall for the public. In all states, municipalities may take real property and sell it to collect payment for property tax debts. Most states allow the government to keep only as much as it is owed; any surplus proceeds after collecting the debt belong to the former owner. But in Minnesota and a dozen other states, local governments take absolute title, extinguishing the owner’s equity in exchange only for cancelling a smaller tax debt, code enforcement fine, or debt to government agencies.

The questions presented are:

1. Whether taking and selling a home to satisfy a debt to the government, and keeping the surplus value as a windfall, violates the Takings Clause?

2. Whether the forfeiture of property worth far more than needed to satisfy a debt plus, interest, penalties, and costs, is a fine within the meaning of the Eighth Amendment?

Disclosure: our law firm, Pacific Legal Foundation, represents the Petitioner property owner, and our law firm colleague Christina Martin is the lead counsel. Consequently, we won't be putting up much analysis here. But of course we shall continue to follow along (or you may follow the Court's docket here). 

This case is the third of our firm's which the Court has granted on property issues this Term (Sackett and Wilkins being the other two).

CA4: Property Owner Isn't "Vested" So No Takings Property

When we first read the U.S. Court of Appeals' opinion in PEM Entities, LLC v. County of Franklin, No. 21-1317 (Jan. 5, 2023), our reaction was one of skepticism. After all, at first blush, the court seemed to have concluded that in order to possess a property right protected by the Takings Clause, the owner needs first to prove it is a "vested" under state law.

That struck us as waaaay wrong. Yes, vesting under state law gets you a separate property interest, but failure to vest under state law does not mean you don't otherwise possess Takings Clause "private property." So what gives, Fourth Circuit?

Well, it turns out that despite us being ready to render a hearty j'accuse at the court, the outcome was a product of the claims made by the property owner (as they often are).

The opinion is short enough that it makes more sense for you to read the facts than for us to summarize them, but the real short story is that the case involves 150 acres of undeveloped land, and the owner asserted it was exempt from a county ordinance that severely regulated and restricted water and sewer connections for new developments. We're vested because we received county approvals back in 2005 in our preliminary subdivision plan, so we're not governed by the ordinance. When the county didn't agree, federal lawsuit followed. The complaint included a takings claim, which asserted the county had taken the vested property right of water and sewer service. The district court dismissed for lack of standing.

The Fourth Circuit agreed with the outcome (dismissal) but for a different reason: failure to state a claim. No property right = no taking. See slip op. at 5 ("We agree with the district court's bottom-line conclusion but get there via a somewhat different route."). When the property is framed as a vested right, then the issue is going to turn on state law; in this case North Carolina's law of vested rights. The Fourth Circuit concluded that under N.C. law, the owner here did not possess a vested right. The money it spent wasn't in reliance on a government permit, and the 2005 subdivision approval was preliminary not final. Interestingly, the opinion did not cite the most prominent recent N.C. decision on vesting.

But no matter. No vesting = no property. No property = no taking.

Just remember this: it's good for your takings claim when you have a vested right; if you have a rock-solid vested right under state law, chances are it is the foundation for a pretty robust takings claim. But lacking a vested right doesn't mean you don't own property. It may not mean you win, but at least you get past the preliminary hurdle that tripped up the owner here.

PEM Entities, LLC v. County of Franklin, No. 21-1317 (4th Cir. Jan. 5, 2023)

Mahon At 100: "A Landmark Centennial From a Land Marked By the Past" (Sam Spiegelman, Yale J. Reg.)

We continue our series on the 100th anniversary of the mother lode of takings case, Pennsylvania Coal Co. v. Mahon, 260 U.S. 393 (Dec. 11, 1922), with this short essay recently published in the "Notice & Comment" feature of the Yale Journal on Regulation.

In "A Landmark Centennial From a Land Marked By the Past," our law firm colleague Sam Spiegelman tells us why the Mahon case - despite some weathering over the past century - still is important:

For property-rights advocates, Pennsylvania Coal has become both a blessing and a curse. Though it subjects governmental abuses and overregulation to constitutional scrutiny, in practice it has proven too easy to manipulate in favor of government overreach. Why is this? Because Holmes’s “too far” formula focused on the extent of the of harm to the aggrieved individual. But without his saying more, the Supreme Court ran in the opposite direction, measuring whether the government had abused its power—a black-and-white approach that does not fit the fact-intensity of takings cases.

Check out Sam's entire piece here.

From The Mahon Property: Your Invitiation To The 40th ALI-CLE Eminent Domain Conference, Austin (Feb 1-4)

Neither snow nor ...

Details, including registration here. Or download the print brochure.

In the recent past, we've sold out, so don't miss out. We recently opened up a new room block, so there's still time.

Come, join your colleagues for 3+ days of the best eminent domain and related programming. And, of course, all the fun Austin has to offer.

Program Brochure, 40th ALI-CLE Eminent Domain & Land Valuation Litigation Conference, Austin, Texas, Feb 1-... b

NY Appellate Division: A Hospital Parking Lot Isn't An Authorized Reason To Take

Unsurprisingly there isn't a lot there in the majority opinion in Bowers Dev. LLC v. Oneida Cnty. Indus, Dev. Agency, No. 2022-00744 (Dec. 23, 2022) (this is from the New York courts after all, which don't seem to write long opinions), but we're posting it so you can compare the majority with the dissent.

Majority: agency's power to take is limited by the terms of the delegation of eminent domain power (for "commercial" facilities), and here, eminent domain is being used to take property for a parking lot for a hospital. That isn't a "commercial" use. Slip op. at 2 ("While OCIDA’s determination and findings indicate that the subject property was to be acquired for use as a surface parking lot, the record establishes that, contrary to respondents’ assertion, the primary purpose of the acquisition was not a commercial purpose. Rather, the property was to be acquired because it was a necessary component of a larger hospital and healthcare facility project.").

Dissent: Not so fast: courts are supposed to defer to an agency's statements about why it is taking property, and we're supposed to defer to an agency's interpretation of what ambiguous statutory terms such as "commercial" mean. See slip op. at 5 (the majority "further concludes, in summary fashion and without any elaboration, that OCIDA’s use of eminent domain here “was not [for] a commercial purpose.” The majority’s conclusion on that latter issue, however, gives no deference to OCIDA’s express determination that it was exercising its lawful eminent domain power in furtherance of its express corporate purpose to 'promote, develop, encourage and assist in the acquiring, constructing, reconstructing, improving, maintaining, equipping and furnishing,' inter alia, 'commercial' facilities, and 'thereby advance the job opportunities, health, general prosperity and economic welfare of the people of the [S]tate of New York'") (Curran, J., dissenting).

Whose vision do you like more?

Bowers Dev. LLC v. Oneida Cnty. Indus. Dev. Agency, No. 22-00744 (N.Y. App. Div. Dec. 23, 2022)

Wyoming: When You Settle An Eminent Domain Fight By Waiving All Future Claims, You Can't Take Advantage Of A Reclaim Statute

Here's one that's holding over from 2022, but we wanted to make sure to post because it's a good reminder that when you settle a case, you settle the case.

Wyoming is one of those jurisdictions that has one of those "I want it back" provisions, where if property is not actually used for X years after it is acquired by the government, the owner may ask for it to be returned. In Wyoming, the term is 10 years:

If a public entity acquires property in fee simple title under this chapter but fails to make substantial use of the property for a period of ten (10) years, there is a presumption that the property is no longer needed for a public purpose and the previous owner or his successor may apply to the court to request that the property be returned to the previous owner or his successor upon repayment of the amount originally received for the property in the condemnation action. A public entity may rebut the presumption created under this subsection by showing good cause for the delay in using the property.

Wyo. Stat. Ann. § 1-26-801(d).

Back in the day, Colton and the Town got into a beef over land apparently needed (or wanted) for the municipal airport. Colton sued for inverse condemnation, and "and sought to prevent the Town from condeming any portion of the property." After a bench trial, the court was ready to lay down the law: it rejected Colton's arguments and concluded that the Town could take 30 acres of property after a determination of compensation.

But before the comp hearing took place, peace prevailed and the parties settled. The Town would pay an agreed-upon amount and would acquire the 30 acres from Colton. And critically, the settlement agreement "contained several terms releasing the Town from all past, present, and future claims related to the disputed 30.17 acres." 

Ten years passed. Apparently, the Town didn't make use of the property and Colton wanted it back. He sued, seeking to reclaim it. The trial court granted the Town summary judgment.

In Colton v. Town of Dubois, No. S-22-0078 (Nov. 3, 2022), the Wyoming Supreme Court agreed, concluding that by executing the settlement agreement, Colton waived his statutory rights, even though yes, the Town acknowledged it had not used the property for the airport. (This is a true waiver situation (and not the more usual forfeiture where someone's inaction is deemed to have surrendered their rights), since Colton knowingly gave up his right to reclaim.)

The court first accepted that the Town acquired Colton's property in a way that triggered the statute because it was acquired under the threat of condemnation. Next, the court concluded the statute was in force at the time of the settlement, and therefore Colton is assumed to have known about it. The court also concluded that Colton intended to relinquish his statutory rights because the agreement unambiguously says so in the "Statement of Purpose" and "Release" provisions. There, the agreement notes the agreement is to resolve all claims, including future claims:

The stated purpose of the settlement agreement is to resolve any claims the parties “may have in the future arising out of or in any way related to the above taking[.]” This purpose is further reflected in the terms of the settlement agreement. In multiple sections Mr. Colton agreed to release the Town from “any and all” claims. The settlement agreement also definitively states “Colton and Dubois hereby do, fully, finally, absolutely and forever settle any and all claims, disputes and differences that now exist, [and] may exist in the future . . . with respect to the taking[.]” The release provisions are broad but nonetheless unequivocal in expressing Mr. Colton’s intent to waive “any and all” future claims, “related in any way” to the condemnation action, which would include any claims he had pursuant to Wyo. Stat. Ann. § 1-26-801(d). See Moayedi v. Interstate 35/Chisam Rd., L.P., 438 S.W.3d 1, 8 (Tex. 2014) (“Just because the waiver is all encompassing does not mean that it is unclear or vague.”). Thus, the settlement agreement undisputedly manifests the intent necessary to satisfy the third element of waiver.

Slip op. at 6.

Finally, the court noted that the waiver is in accordance with public policy (an element of waiver under Wyoming law). We like the freedom to contract, and we like settlements, the court concluded.

So what lessons can we take from this? When you settle, you settle. Done. Pau. Finis. Unless you want to hold on to some rights (in which case you don't agree to language that waives your rights so broadly). But don't be surprised if the other side really insists on that language. And that points to another option: if you want to retain your rights, don't settle. The waiver of future rights is just one of those things that parties have to assess the risk of when they are deciding on fight or flight. 

Colton v. Town of Dubois, No. S-22-0078 (Wyo. Nov. 3, 2022)

Md App: If You Want To Overturn The Amortization Doctrine, Take It Upstairs

You know the "amortization" doctrine: when an existing legal use is declared illegal, the government can avoid a takings claim by slowly phasing out the use, supposedly to allow the owner to recoup investment. The doctrine is established in Maryland by Grant v. Mayor and City Council of Baltimore, 129 A.2d 363 (Md. 1957), where the court held that amortization works if the time and uses allowed are reasonable.

Not all jurisdictions take that approach, however. For example, in Pennsylvania Northwest Distributors, Inc. v. Zoning Hearing Bd., 583 A.2d 1372 (Pa. 1991), the Pennsylvania court held "[a] lawful nonconforming use establishes in the property owner a vested property right which cannot be abrogated or destroyed, unless it is a nuisance, it is abandoned, or it is extinguished by eminent domain."

In In re Mangisteab, No. 2022-93 (Dec. 20, 2022) (unpub.), the Appellate Court of Maryland (fka the Court of Special Appeals, that state's intermediate court of appeals), recognized that the property owners asked to overturn Grant and adopt Pennsylvania's approach, but concluded that this was above the pay grade of lower court judges.

The case involves Baltimore's removal of liquor stores in residential zones as nonconforming uses under the city's zoning ordinance. Liquor stores have been illegal in residential zones since 1971, but have been allowed to continue to operate as long as they didn't cease operation for more than 18 months. But recently, the city said "no more," and gave the liquor stores two (or three) years to wind up. The owners challenged the change as a taking of their vested rights, and expressly asked the courts to abandon the Grant rule. 

Not too surprisingly, the trial court (and now the court of appeals) said no, that's a job for the Maryland Supreme Court:

Owners believe, however, that Grant and its progeny should be overturned. As counsel for appellant acknowledged at oral argument, however, if that were to occur, it must be done by the Supreme Court of Maryland, not this Court. Foster v. State, 247 Md. App. 642, 651 (2020) (“It is not up to this Court . . . to overrule a decision of the [Supreme Court] that is directly on point . . . . The rulings of the [Supreme Court] remain the law of this State . . . unless those decisions are either explained away or overruled by the [Supreme Court] itself.”), cert. denied, 475 Md. 687, 257 A.3d 1156 (2021) (cleaned up). Johns Hopkins Hosp. v. Correia, 174 Md. App. 359, 382 (2007) (“[T]his Court does not have the option of disregarding [Supreme Court] decisions that have not been overruled, no matter how old the precedent may be.”), aff’d, 405 Md. 509 (2008). Accord Livesay v. Baltimore County, 384 Md. 1, 14 (2004) (quoting Payne v. Tennessee, 501 U.S. 808, 827 (1991)) (Stare decisis “is the preferred course because it promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process.”). We will not, therefore, overrule Grant and hold that termination of a nonconforming use after a reasonable amortization is unconstitutional.

Slip op. at 16-17.

So stay tuned, we suspect this isn't over just yet.

In re Mangisteab, No. 2022-93 (Md. App. Ct. Dec. 20, 2022) (unpub.)

Ohio: Necessity Is Judged By The Property Taken, Not The Overall Project

Thanks to a colleague giving us a heads-up, we're starting 2023 with a neat case.

In Ohio Power Co. v. Burns, No. 2021-1168 (Dec. 29, 2022), the Ohio Supreme Court declined to apply a statutory presumption of necessity to the power company's efforts to use eminent domain to expand the scope of several existing utility easements to upgrade electric transmission lines. Although the case turned on the interpretation of the term "appropriation" in the Ohio statute, it has some lessons for those of us not in the Buckeye State.

In the absence of three statutory presumptions that a taking is necessary, the general rule in Ohio is that the condemnor bears the burden of proving necessity by a preponderance of the evidence. Here, "[t]he landowners opposed the easements in general, alleging that the appropriations were overly broad and unnecessary, and they challenged the need for several of the easement terms specifically, including the need for distribution lines." Slip op. at 4.

The trial court considered testimony and other evidence submitted by the power company to show the project was necessary, including evidence that the Ohio Power Board adopted a resolution "recognizing the necessity of acquiring easements in connection with the project." Slip op. at 5. But the evidence showed the Board had not reviewed any specific easement, "and instead, through its resolution, delegated to the officers, engineers, and other agents of the company the authority to acquire individual easements to complete the project." Id. 

Therein lay the issue: the owner argued that the term "appropriation" in the statute is the trigger to the creation of either a rebuttable -- or an irrebuttable -- presumption in favor of necessity, and this means an individualized determination, not a conclusion about whether a project broadly is necessary. In other words, easement-by-easement, and not project-as-a-whole.

The trial court rejected the argument, but the court of appeal reversed. After which, the power company sought -- and the Supreme Court granted -- discretionary review.

The court concluded that "appropriation" was not meant broadly to mean the project or the overall taking, but each condemned easement. After noting that "[t]he property rights of an individual are fundamental rights," slip op. at 10, and that judicial review of takings ensure that "no more [is taken] than that necessary to promote the public use." Id.

Pages 11-14 is where the opinion laid out the reasons why appropriation was meant narrowly, and you can read that part if you are interested.

Those of us not in Ohio will want to pick it back up at page 15, where the court rejected the power company's "doing this individually and seeking necessity determinations from the Power Board for each easement would be too much trouble" argument.

First, the court held that nothing is requiring the company to seek the Board's review. It only needs to do so if it wants to take advantage of the statutory presumptions. Slip op. at 15 ("Ohio Power is not required to have the Siting Board or the Power Board approve the individual appropriations in order to appropriate a property or an interest or right therein. But if it does get such approval, then it obtains the legal presumption of necessity.") (citation omitted). 

Second, inconvenience is no matter: "Simply because it may be inconvenient or tedious for Ohio Power to obtain the required resolutions or approvals for each appropriation to be entitled to a presumption under R.C. 163.09(B)(1)(a) or (c) does not mean that such an interpretation is unreasonable or absurd." Id.

Although the court concluded there was no need for another necessity hearing, it sent the case back down for another review of the evidence by the trial court:

Here, the trial court stated that it reviewed the easement terms and found them all necessary based on Rentschler’s testimony and its belief that Ohio Power knows best. Generally, a trial court’s findings of fact will be upheld when they are supported by some competent and credible evidence. See Seasons Coal Co. v. Cleveland, 10 Ohio St.3d 77, 81, 461 N.E.2d 1273 (1984). While Rentschler did discuss each of the easement terms individually during her testimony, and while we have stated that some deference to the government or the agency may be appropriate in eminent-domain cases, Norwood at ¶ 62, 66, a blanket statement that all the easement terms are necessary, without findings to support that decision beyond the deference given to Ohio Power and Ohio Power’s own agent, Rentschler, makes us question whether the trial court did conduct the appropriate review. Therefore, we remand the cause to the trial court to make the specific findings concerning the challenged easement terms consistent with the presumption set forth in R.C. 163.09(B)(1)(b).

Slip op. at 17.

And that's as good a way to remember this case: necessity isn't always a belief that the "condemnor knows best."

Ohio Power Co. v. Burns, No. 2021-1168 (Ohio Dec. 29, 2022)