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ND: "Minimally Invasive" Precondemnation Entries Are Not Unconstitutional

Here's the latest in an issue we've been following.

In SCS Carbon Transport LLC v. Malloy, No. 20230149 (May 30, 2024), the North Dakota Supreme Court held that that's state's statute which allows prospective condemnors to enter land to conduct surveys and the like before instituting eminent domain without liability is not unconstitutional, either on its face or as applied to SCS's entries.

SCS is building a CO² pipeline and decided it needed an interest in Malloy's land. It asked if could enter to take a survey, but Malloy said no. So SCS sued, asserting its power under the statute, asserting it was planning on restoring the property to its "pre-examination" condition, and it was willing to pay compensation for any damage it caused:

In all cases when land is required for public use, the person or corporation, or the person's or corporation's agents, in charge of such use may survey and locate the same, but it must be located in the manner which will be compatible with the greatest public benefit and the least private injury and subject to the provisions of section 32-15-21. Whoever is in charge of such public use may enter upon the land and make examinations, surveys, and maps thereof, and such entry constitutes no claim for relief in favor of the owner of the land except for injuries resulting from negligence, wantonness, or malice.

N.D. Cent. Code § 32-15-06. (North Dakota's statute is fairly typical of these things.)

Malloy counterclaimed, arguing the statute was unconstitutional under both the N.D. and U.S. constitutions, and sought an order prohibiting entry. The trial court granted SCS summary judgment, and the case went directly to the N.D. Supreme Court.

The court first rejected the owner's argument that the trial court's order, which did not set any limits on the "nature, extent, or duration" of SCS's entries resulted in a taking. (A judicial taking.) The court concluded that the statute does not require a court to impose any such limitations or restrictions. By incorporating the terms of the statute, the trial court's judgment did enough. While the Supreme Court recognized that trial courts have discretion to impose restrictions and conditions on entry, they are not required to. "The plain text of the statute does not describe any restrictions or conditions the court may or must consider." Slip op. at 6. Thus, the trial court's order conformed to the statutory requirements.

Next, the court concluded this was not unconstitutional, either on the face of the statute, or as applied here. Yes, Cedar Point did conclude that even relatively unintrusive physical invasions under color of state law are takings requiring compensation, but the Court there also noted that the power of prospective condemnors to enter property for pre-takings surveys and examinations is a longstanding traditional limitation on North Dakota property owner's right to exclude:

Despite the significant textual differences between the state and federal constitutional provisions, in this case the constitutional question under each turns on essentially the same legal-historical question: did the people of North Dakota in 1889 understand the eminent domain power to take private property for public use to encompass a right of entry for pre-condemnation examinations and surveys? If yes, then the original public meaning of the 1889 constitution, continued in effect through today in relevant part, does not conflict with the entry statute. Under the Fifth Amendment, answering the same question in the affirmative would establish a longstanding background principle that property rights under state law do not include the right to bar entry to pre-condemnation surveyors.

Slip op. at 9. 

The court noted that the power to enter property has been a part of N.D.'s statutory scheme for a century-plus, and that "[t]his longstanding statutory authority is consistent with the common law and the law of other states." Slip op. at 9. Even Judge Cooley recognized this limitation. See slip op. at 10. Thus, a potential condemnor's ability to enter property is a "longstanding background restriction" on an owner's unfettered rights.

The court noted that this power is not unlimited, and that the text of the statute requires that entries be undertaken with "the greatest public benefit and the least private injury," and that the statute must be interpreted to allow "limited to the innocuous surveys and examinations consistent with these historical background principles[.]" Slip op. at 11.

In other words, condemnors, don't take this opinion as carte blanche to come in any time for and do stuff that is more than "innocuous" -

A condemnor’s entry or occupation beyond this mission implicates constitutionally protected property rights. If the entry exceeds the duration or scope reasonably necessary to complete any necessary “examinations, surveys, and maps,” a temporary taking of the right to exclude may be implicated and a judicial remedy may be sought.

Id.

By analogy to traffic stops in Fourth Amenment cases, the court concluded that entries must not extend longer than the time required to fulfill the purpose of the entry: "A constitutionally permissible entry may not be longer or more invasive than necessary to complete the examination or survey need to confirm and minimize the scope of the anticipated taking of private property." Id.

While it would be easy to be seduced by what appears to be a logical standard, we have to take pause because we find it hard to see this other than some kind of "please act in good faith, condemnors" standard. First, the entire purpose of precondemnation entries are to determine if the property might be suitable for the purpose of the anticipated taking. It seems like it would be difficult to not interpret that broadly. Can a big project be studied via "innocuous" entries? How are there any judicially-manageable standards to police the limits of this? Hard to see any. Second, unless the potential condemnor is cowboying it and not acting in good faith, won't most entries be somewhat tailored to the scope of what is necessary by the potential condemnor?

We guess we should be thankful that the court left the door open to property owners having a claim in some situations. We're just not certain what those situations might look like. 

Other courts have reached similar results (generally ok with entries, provided they are not "too invasive"). Let's see what develops elsewhere.

SCS Carbon Transport LLC v. Malloy, No. 20230149 (N.D. May 30, 2024)

Texas: If TxDOT Intentionally Cut Down Trees Outside Of Easement Area...You Have An Inverse Claim

The Texas DOT had an easement over a portion of the Self property. The Selfs rebuilt a fence a few feet inboard of the easement (in other words, well into the part of the land not burdened by the easement). On the TxDOT side of the fence -- but still outside the TxDOT easement area -- grew some old trees.

As part of a highway maintenance project, TxDOT worked with a private contractor which it hired to remove brush and trees from the easement. The trees to be removed were supposed to be marked with an "X," but the instructions to the contractor said to "clear everything between the fences." Whoops.

The contractor did as instructed and "cut all trees up to the Selfs' fence line." TxDOT acknowledged that the trees were cut at its direction and that it has not undertaken a survey, but asserted that the trees were on its side of the fence. Hold on, replied the Selfs. Here's a survey showing that 28 oaks and elms were removed from our side of the fence. And 13 of those trees were entirely outside the TxDOT easement (and another 7 partially outside). The cost of those trees that you were not supposed to cut down is $250k. TxDOT: sorry, no.

Lawsuit followed, alleging (1) negligence, and (2) inverse condemnation. Trial court denied TxDOT's plea to jurisdiction, and the court of appeals affirmed in part. The court of appeals concluded that the negligence claim might not be subject to the state's claim of sovereign immunity, but that there was no evidence that TxDOT intentionally destroyed the trees (and thus no claim for inverse condemnation). Cross-petitions followed.

In Texas Dep't of Transportation v. Self, No. 22-0585 (May 17, 2024), the Texas Supreme Court, which concluded that the negligence claim is subject to the State's sovereign immunity defense, but that the inverse claim could proceed because they alleged facts sufficient to raise a dispute about whether TxDOT intentionally destroyed the Selfs' trees. We're going to let you read that part of the opinion devoted to negligence claims if that floats your boat, and focus here on the inverse analysis, which begins on page 18 of the slip opinion.

There's a lot to like in Justice Busby's explication of property rights and inverse doctrine. Most illumination for us was the notion that in Texas, and inverse claim requires some proof that the government acted intentionally. Why is this so? "Although the Constitution does not expressly require an intentional act, we have explained that such a requirement helps ensure that the taking is for 'public use.'"  Slip op. at 20. To show intent, the owner must show the government either intended to damage the property, or knew that its conduct would cause harm (or was substantially certain to do so).

The Selfs argued they met that standard by showing that a TxDOT employee expressly told the contractor to cut down the trees:

Here, the Selfs alleged and the evidence shows that TxDOT intended to damage the property: a TxDOT employee expressly directed TxDOT’s agents to cut down the trees at issue, and it is undisputed at this stage that doing so destroyed the Selfs’ personal property. The Selfs owned the land on which the trees stood—and thus the trees themselves—both within and outside TxDOT’s right-of-way easement. And their survey shows that at least twenty of the felled trees were wholly or partially outside the easement, so TxDOT cannot rely on that easement to show consent. In addition, the record contains ample evidence—including TxDOT’s contract with TFR—that TxDOT directed the trees’ destruction as part of exercising its authority to maintain the highway right-of-way for public use.13 That is all the plain text of Article I, Section 17 and our precedents require to maintain a constitutional claim of compensation for inverse condemnation.

Slip op. at 21-22.

The court held that unlike other cases where the government's intentional conduct merely set a chain of events into action that eventually resulted in the damage to the property, "[h]ere, TxDOT employees intended to physically destroy the trees for a public use and directly ordered TxDOT’s agents to cut them down, which they did. This intentional government conduct was not the cause of an eventual taking—it was the taking." Slip op. at 25.

Finally, the court rejected TxDOT's argument that "intent" requires a showing that it meant to cut down what it knew were trees outside of the easement area. Not so, held the court, it is enough that you intended to cut down the trees. Slip op. at 27 ("The words of our Takings Clause do not remotely suggest that a property owner must prove the government had a particular “impetus” or mindset regarding whether its intentional taking of property for public use was permissible."). 

Overall, an opinion well worth your time to read and savor. A hearty congratulations to our colleagues at Barron Adler for the successful outcome. Especially Andrew York, who argued the case.

Texas Dep't of Transportation v. Self, No. 22-0585 (Tex. May 17, 2024)

Oregon: Statute Of Limitations On Physical Inverse Claim Runs From The Occupation, Even If It Was Permissive

Before we go on, a disclosure: this is one of ours (we filed an amicus brief in support of the property owners).

In Walton v. Newkowin Regional Sanitary Authority, No. S069004 (May 23, 2024), the Oregon Supreme Court held that the six-year state statute of limitations applicable to physical invasion inverse condemnation claims (under both the Oregon and U.S. Constitutions) begins to run at the time of the invasion, and not when subsequent events show that the invasion was adverse to the owner's property rights. 

This case went up the appeals chain after the trial court granted the Authority's motion for summary judgment. The background of the case is that back in the day (1995, although some of us actually remember that far back), the Authority installed two sewer lines on land belonging to the plaintiffs' father. This was done without the owner's permission. Slip op. at 3. 

But three years later, the Authority entered into an agreement with the plaintiffs' father under which the Authority was granted an easement, provided that if the Authority ever required the landowner to connect to the sewer system, the owner could do so for free. "But [the Authority] 'never prepared an easement document' and 'never recorded an easement.'" Id. 

Flash forward to 2014. By now, father was no longer the owner, and the kids had it. The Authority informed them that their septic system had failed and "they needed to connect to the sewer system." Id. No sweat they thought, the Authority agreed with dad that if required, it would be a free hook up. Well you guessed it, after the kids asked the Authority, it said no. Slip op. at 4.

Next stop (2017): an Oregon trial court on state and federal inverse claims (the kids did not assert a breach of contract claim). They alleged that the Authority installed the sewer lines without acquiring an easement by agreement or by eminent domain, and sought just compensation. What about the fact that the physical invasion was in 1995, well beyond any statute of limitations? The kids asserted that a state statute cannot limit the right to seek compensation for a taking. "In other words, plaintiffs asserted that their claim could not be subject to a statute of limitations." Slip op. at 5.

The Authority responded by agreeing that it installed its sewer lines in 1995 without the owner's permission, but denied that it ever agreed with father for a free hook up if later required. And if there was an oral agreement, it wasn't in writing so therefore could not be enforced (statute of frauds). And yeah, the inverse claim was subject to Oregon's six-year statute of limitations for "waste or trespass upon or for interference with or injury to any interest of another in real property," and the SOL long ago ran, with the lawsuit window opening when the Authority installed the sewage lines in 1995. Slip op. at 6. It sought, and the trial court granted, a motion for summary judgment "on the ground that plaintiffs' inverse condemnation claim was untimely." Id. The court of appeals affirmed. 

After some background on inverse condemnation doctrine (both Oregon and federal - see pages 9-17), the court noted this is a physical and not a regulatory takings claim. It reviewed and rejected each of the kids' arguments that the six-year SOL did not stand in the way of the 2017 complaint.

First, the court rejected the argument that just compensation claims generally are beyond the reach of a legislature's ability to place a time limit on them. Yes, it is a constitutional obligation to provide just compensation when property is taken, but the U.S. Supreme Court and other state courts have at least implicitly applied legislative time limits to compensation claims. See slip op. at 18. Statutes of limitations are part of the "processes for obtaining such compensation," and must be complied with. Slip op. at 21.

Second, the court rejected the argument that physical takings claims cannot be subject to time limits. Nope, these are just a subspecies of just comp claims noted above.

Third, the court rejected the argument that the trigger for the statute beginning to run is not the physical occupation, but when the government refuses to provide compensation. The kids argued that merely taking property is not unconstitutional, and as the U.S. Supreme Court has emphasized, the bad act is the failure to provide just compensation. If that's so, the statute didn't begin to run until the Authority denied that it owed anything, which didn't occur until 2014. Not so, held the court. The SOL starts to run when the aggrieved party can sue on it (noting that federal law puts it as when the cause of action is complete and present). Slip op. at 26. And owners can bring inverse claims "when the physical occupation occurs." Id. The court differentiated between Oregon law (which says that it is ok to take and not pay, as long as there's a subsequent process available for the owner to obtain compensation), and federal law says the same thing (but in a different way). 

The court rejected the kids' argument that Knick suggests otherwise, concluding that the U.S. Supreme Court has concluded that owners can't stop takings merely because compensation isn't provided contemporaneously. "Therefore, the Court continued, as long as post-taking compensation is available, prospectively preventing the government from committing the violation in the first place is unwarranted." Slip op. at 30 (citing Knick, 588 U.S. at 202). Compensation is a remedy for a taking, not a condition precedent.

Having rejected each of the owner's arguments, the court had little difficulty holding that the statute started to run when the Authority placed its sewer lines in 1995. That's when "plaintiffs' father could have initiated a takings claim." Slip op. at 34.

But what about that (alleged) oral agreement that father said he entered into with the Authority? Even assuming there was such an agreement, it only mattered if the agreement "somehow tolled the running of the limitations period." Id. But, the court concluded, "the plaintiffs have not made a tolling argument." Id. Moreover, even if there were such an agreement for a free hook up, the occupation by the Authority was permissive, and the remedy for the Authority breaching the agreement is in contract, not takings. Slip op. at 36 ("The [owner's] concern related to the breach of an agreement; it was not a claim that his property had been taken without his consent. Consequently, he needed to bring a contract or quasi-contract claim, not an inverse condemnation claim.").

We'll wrap this post up with this, from our amicus brief:

The Court of Appeals’ categorical rule has resulted in an absurdity: the only timely physical takings claim the Waltons could have asserted must have been filed at a time when they believed the Authority’s sewer line was on their property with their permission. They obviously did not know at that time that, decades later, the Authority would assert that the free hook-up agreement never existed. The Court of Appeals’ rule would require the Waltons to have brought their physical invasion takings claim in the early 2000’s, long before they even sought to connect to the Authority’s sewer line.

As we've noted previously, statutes of limitations cases can be difficult if not impossible to navigate for property owners. First, if an owner doesn't sue early and often, she is subject to government claims that she waited too long. But if the owner sues at what appears to be the first opportunity, she is very frequently met with government's claim that it is too early to sue because the claim isn't fully developed yet (ripeness). In some cases, the government actually argues that the lawsuit is both too early and too late. And courts eager to get rid of these cases are mostly just fine with it. 

Walton v. Neskowin Regional Sanitary Authority, No. S069004 (Or. May 23, 2024)

Must Watch: "Love of the Land" - Romain Tenney's Eminent Domain Protest

Please be sure to check this out: a new animated film, "Love of the Land," which "highlights [the] tragic story of Vermont farmer Romaine Tenney."

You remember Mr. Tenney, who was one of those classic Vermonters. He tragically entered the pages of history more than fifty years ago when, in reaction to the taking of his farm for Interstate 91, he burned his house and farm buildings down, and shot himself. He had nowhere else to go. An informal memorial to Mr. Tenney -- a maple tree (how Vermont) -- stood on the site of his former property near Exit 8, until the tree was too diseased to remain and was removed.

We learned more about Mr. Tenney when we spoke with Howard Mansfield Howard Mansfield about his book "The Habit of Turning the World Upside Down - Our Belief in Property and the Cost of That Belief," which features a chapter on Mr. Tenney. As Mansfield puts it:

Tenney was that farmer by the road tourists used to stop and talk to as they sought out a specific kind of Vermont experience.

“Romaine himself, personally, he never went to town meeting, he didn’t write letters to the editor, he didn’t stand up and protest,” he said. “He was just living his life — and history, or the world, came to his doorstep, which is the way it happens all the time.”

Dave Arnold and Kristen Bennett have also featured Mr. Tenney (and Mr. Mansfield) on their Infrastructure Junkies podcast, in several episodes worth your time to listen. Start with this one.

The animated film was created by Travis Van Alstyne, also a Vermonter, about this local folklore which has now (finally) entered the national discussion. The film gives a better and more immediate sense of Mr. Tenney's plight and his tragic conclusion that he could not live apart from his land and property. Here's an interview with the filmmaker.

We've also embedded an interview with the local fire chief who was an eyewitness first responder to the incident back in 1964. Also worth checking out.

La Cour suprême du Canada: In Constructive Takings, Compensation Calculated Without Reference To "The Scheme"

Readers know that from time-to-time, we like to cover the going's on in the courts of our neighbors to the north. See here and here, for example. Although property rights are not a constitutional principle in Canada (the people did not include property as a fundamental constitutional right when the Constitution was amended last), there's a lot for U.S. lawyers to learn from the way Canada law treats those from whom the government must expropriate property (either directly, or in what they call "de facto" or constructive takings (i.e., regulatory takings and inverse condemnation). In some ways, their system treats property owners slightly better than our constitutional system.

Well, here's the latest in a case we've been following.

In St. John's (City) v. Lynch, 2024 SCC 17 (May 10, 2024), the Supreme Court held that compensation in a de facto taking is calculated by excluding the effects of the challenged regulation. What they call up there the "Pointe Gourde principle" -- the idea in expropriation valuation that the effects of "the scheme" should not influence the calculation of compensation -- what we call "the scope of the project" rule, or even the "before and after" rule. 

Rather than continue to delve into areas well beyond our expertise and understanding, we're going to refer you to a blog post by our Toronto friend and colleague Shane Rayman and his firm colleagues Conner Harris and Leah Cummings. They filed a friend-of-the-court factum on behalf of the Canadian Home Builders Association. The Court adopted much of their reasoning, by the way.

In "Supreme Court of Canada Clarifies Law of Constructive Takings," they write:

The Court confirmed that the Pointe Gourde principle, also known as “screening out the scheme”, applies to constructive takings in the same way as it does to statutory or de jure expropriations. The Pointe Gourde principle is a common law rule invoked as part of the determination of market value when land is expropriated. The principle seeks to remove extrinsic influences associated with the taking, ignoring both increases and decreases in value caused by the expropriation scheme to avoid placing an economic burden on the expropriated owner or granting to them a windfall gain (para 37). The Court clarified the application of the Pointe Gourde principle and confirmed that land-use regulations undertaken “with a view to the expropriation” must be screened out when determining the market value of expropriated land. This is the case regardless of whether the taking is de jure or constructive.

Check both the opinion and their post out.

Many good lessons await for U.S. property lawyers.

St. John's (City) v. Lynch, 2024 SCC 17 (Supreme Court of Canada, May 10, 2024)

CA4: Jury Is Free To Cut-And-Paste Various Just Compensation Evidence To Reach A Verdict "Within the range of credited testimony"

Check out the U.S. Court of Appeals for the Fourth Circuit's opinion in Mountain Valley Pipeline, LLC v. 8.37 Acres of Land, No. 23-1532 (May 14, 2024).

The caption tells you it is a federal eminent domain case, specifically the Mountain Valley Pipeline, a very controversial and much-objected-to natural gas pipeline in the Virginias. The issue was one of the amount of compensation.

One appraiser testified to a certain use and a certain high-low range. Another appraiser testified to different uses and a different high-low range. The jury reached a just compensation verdict that wasn't based on one appraiser's testimony or the other's, but on some amalgamation of the two. 

As we know, a oft-applied rule is that a jury's just comp verdict must be "inside the range of credited testimony." The trial judge concluded the verdict violated this rule because the jury had apparently picked-and-chosen. Slip op. at 10. ("It reasoned that to reach that amount, the jury must have combined Gruelle’s valuation of the property prior to the taking with another expert’s diminution percentage. And because Gruelle valued the land as a wind farm, applying any other expert’s diminution percentage, which were each based on a residential use, was improper."). The District Court entered JNOV (sorry kids, JMOL).

The Fourth Circuit reversed, and held that the verdict was based on the evidence presented at trial, it was not the trial judge's place to second-guess the jury. It might have been "mixed" testimony from two different appraisers based on differing uses,

[b]ut the jury may accept or reject any part of an expert’s testimony and remain within the range of credited testimony even if it does not adopt any one expert’s testimony wholesale. Smoot, 248 F.2d at 829. Moreover, when a jury views a property itself, as it did here, it has “a wide latitude” to apply its own judgment of the property’s value. Id. And, significantly, although Appellee argues that the jury here could not have come up with the award that it did without improperly mixing commercial and residential valuations, Appellants explain that the verdict can, in fact, be calculated without doing so.

Slip op.at 14-15.

For sure, the jury can't just make stuff up. So what might the jury have done to reach its conclusion?

Slip op. at 16 (for a narrative of that calculus, start on page 15).

Essentially, as long as there is some plausible explanation that would support the jury's verdict, the court should enter it, not overrule it. The court should not substitute its sense of methodology. See slip op. at 16 ("We agree with Appellants that the jury clearly could have reached its verdict using residential values alone without the need to venture beyond the credited testimony. And in doing so, the jury could accept or reject any part of each expert’s testimony -- its verdict did not have to conform to the just compensation of any one witness. Because the jury’s verdict can be supported using residential values alone, it is unnecessary for us to decide whether it is improper for a jury to mix commercial and residential valuations in just compensation cases.").

Stick with the jury: a good trend.

Mountain Valley Pipeline, LLC v. 8.37 Acres of Land, No. 23-1532 (4th Cir. May 14, 2024)

Happy Birthday, Nectow v. City of Cambridge!

It was on this day in 1928 when the U.S. Supreme Court issued its second most famous decision about zoning, Nectow v. City of Cambridge., 277 U.S. 183 (1928). 

We say "second" because everyone knows that the first is the Court's decision issued just two years earlier which generally upheld comprehensive use, height, and density regulations as a valid exercise of the government's police power to regulate property uses to further the public health, safety, welfare, or morals. See Village of Euclid v. Ambler Realty Co., 272 U S. 365 (1926). 

Partly because of the hype surrounding Euclid and the broad governmental embrace of exclusionary land use policies that Euclid unleashed, we think that Nectow has not received the attention it is due. After all, it should be seen as the companion case to Euclid: it was authored by same Justice who wrote Euclid (Justice Sutherland), and there's a straight line between all three parts of the Court's 1920's land use trilogy (Mahon, Euclid, and Nectow), two of which are strong reaffirmations of property rights. 

But today, Nectow is often dismissed as a byproduct of an earlier time, Lochnering of the substantive due process rational basis test, or even just too archaic to pay attention to.

But unlike Euclid, which was a facial challenge to zoning generally, Nectow was an as-applied challenge, asserting that placing some of Nectow's land in a residential zone -- and thereby causing a contract for sale of the land for non-residential uses to be cancelled -- was arbitrary and capricious. A master appointed to find facts determined the residential designation was out of sync with the mixed uses in the surrounding area. But the Supreme Judicial Court of Massachusetts took Euclid and Justice Sutherland at their word and concluded "who are we, mere judges, to question what Cambridge's zoning officials say is in the public interest?" (We're paraphrasing of course, but that was the vibe.)

But Justice Sutherland was all "hang on, pay attention to what we said in Euclid; that wasn't us telling courts to be poodles." (Paraphrasing, again):

Nevertheless, if that were all, we should not be warranted in substituting our judgment for that of the zoning authorities primarily charged with the duty and responsibility of determining the question. Zahn v. Board of Public Works, 274 U. S. 325, 328, 47 S. Ct. 594, 71 L. Ed. 1074, and cases cited. But that is not all. The governmental power to interfere by zoning regulations with the general rights of the land owner by restricting the character of his use, is not unlimited, and, other questions aside, such restriction cannot be imposed if it does not bear a substantial relation to the public health, safety, morals, or general welfare. Euclid v. Ambler Co., supra, p. 395 (47 S. Ct. 114). Here, the express finding of the master, already quoted, confirmed by the court below, is that the health, safety, convenience, and general welfare of the inhabitants of the part of the city affected will not be promoted by the disposition made by the ordinance of the locus in question. This finding of the master, after a hearing and an inspection of the entire area affected, supported, as we think it is, by other findings of fact, is determinative of the case. That the invasion of the property of plaintiff in error was serious and highly injurious is clearly established; and, since a necessary basis for the support of that invasion is wanting, the action of the zoning authorities comes within the ban of the Fourteenth Amendment and cannot be sustained.

 

So yes, zoning as a concept is within the police power, but we must keep at the forefront the core principle that property rights are to be respected. Facts, and not some vague incantation of the rational basis test should serve as the standard 

As James Metzenbaum, the lawyer who represented the Village of Euclid later wrote:

It is essential that there be kept in mind the ever-true doctrine that the owner of property doas have some inalienable rights. A corollary of this doctrine is that it is the duty of the lawyer to fight for the preservation of such rights and not to permit overly zealous zoning experts who draft ordinances nor obliging Councils who pass them, to promulgate legislation which is unreasonable or which unlawfully tends toward the divestment of the property owners' constitutional rights.

See James Metzenbaum, The History of Zoning - A Thumbnail Sketch, 9 W. Res. L. Rev. 36, 42 (1957).

So here's how we see it: go ahead and zone, government. But it's gotta make actual sense (Nectow). And even if it does makes sense but nonetheless deprives the property owner of essential rights, you have to pay for the privilege (Mahon). 

Oh no, you say, if we revive Nectow's recognition of restraints on the police power what shall become of zoning? It doesn't mean the end, only a reasonable limits, bounded by property rights. You know what term is in the Constitution? "Private property." And what term isn't? "Police power." Sure, the term, like element domain, is inherent, we suppose. But aren't we more concerned with protecting an individual's freedom to choose how to use her property, unless there's some articulable harm that can be shown, and not presumed?

And rest easy: zoning isn't the be-all-end-all of municipal land use regulation. Especially when properly constrained by the Constitution. Professor Siegan's seminal book explains why. 

So Happy Birthday, Nectow. Ninety-six years young and looking better each day!

New Cert Petition: Newly Decreed Easement Rule That Excludes Owners Is A Judicial Taking

Here's the latest in a case we've been following.

In Romero v. Shih, the California Supreme Court recognized the doctrine of an "implied exclusive easement" (which sounds an awful lot like a fee simple interest, doesn't it?) in a private easement disputed between Owner A and Owner B.

The owner on the losing end of the California decision has now filed a cert petition asking the U.S. Supreme Court to take up the case on judicial takings grounds. 

Here are the Questions Presented:

1. Whether a court order that excludes landowners from their real property and allows other private parties to permanently physically invade and occupy the owners’ land without compensation either effects a taking in violation of the Fifth Amendment to the U.S. Constitution or violates the landowners’ due process rights under the Fourteenth Amendment to the U.S. Constitution?

2. Whether the newly decreed judicial doctrine of “implied exclusive easement,” which excludes Landowners from their real property and appropriates (without compensation) a right to permanently physically invade and occupy Landowners’ property for the enjoyment of third parties either effects a per se taking in violation of the Fifth Amendment to the U.S. Constitution or violates Landowners’ due process rights under the Fourteenth Amendment to the U.S. Constitution?

Follow along on the Court's docket here.

Petition for a Writ of Certiorari, Romero v. Shih, No. 23-1153 (U.S. Apr. 23, 2024)

Lawprof Lee Fennell To Be Awarded 2024 Brigham-Kanner Property Rights Prize

Lawprof Lee Anne Fennell, whose work makes frequent appearances here (see here, here, and here for example), has been selected as this year's recipient of William and Mary Law School's Brigham-Kanner Property Rights Prize. See this announcement for details.

“Lee Fennell is one of the most thoughtful and thought-provoking scholars writing about property law in the United States today,” said James Y. Stern, Professor of Law at William & Mary Law School and Director of William & Mary’s Property Rights Project. “Her work examining property’s conceptual and social boundaries has almost literally helped to reshape thinking about property law, and the Brigham-Kanner Prize is a fitting tribute to her many contributions.”

Save the date: the Prize will be awarded as part of the 21st Brigham-Kanner Property Rights Conference, to be held at the law school in Williamsburg, Virginia, September 12-13, 2024. That's a bit earlier in the calendar than usual, so make your plans to join us now.

As we've said before, the B-K Conference is the best one-day property rights conference, which is designed to bring the practicing property bar together with the legal academy to talk about dirt law.

Join us!

Mass App: You Can Share Custody Of A Dog (Named Teddy Bear)

This one isn't so much a property or property rights opinion, but more "property adjacent" as they say.

Even so, we're not going to comment much about the Massachusetts Appellate Court's opinion in Lyman v. Lanser, No. 23-P-73 (Mar. 7, 2024), and not just because it seems faintly ridiculous.

The entire court vacated a single justice's order vacating a preliminary injunction entered by the trial court which ordered the parties who were apparently locked in deadly combat about a jointly-owned dog named "Teddy Bear Lanser-Lyman." The trial judge had ordered the parties to share custody of Teddy Bear, as if it were a child or something. Well, you clowns named the dog like a child and probably treat it like a child, so why not fight over it as if it were a child? "Pet parenting" gone too far. 

Read the darn thing. Maybe you will laugh, maybe you will cry. There are some tidbits about property law in the opinion.

And then remember there are two fools in Massachusetts who were willing to pay lawyers to do this. And a court willing to write a 20-page published opinion about it.

At least the court isn't being asked to be a super Zoning Board of Appeals.

Lyman v. Lanser, No. 23-P-73 (Mass. App. Ct. Mar. 7, 2024)

A CFC Primer On Rails-to-Trails Takings

If you ever wanted a primer on the sometimes-confusing and seemingly arcane world of Rails-to-Trails takings cases, you would be hard-pressed to find a better example of the substantive law and the procedures in these cases than the Court of Federal Claims opinion in Nicholson v. United States , No. 23-843 (Mar. 13, 2024).

There's nothing particularly outrageous about this case, but that's one of the reasons why we appreciate the time that Judge Tapp put into the opinion (and the effort our colleagues Lindsay Brinton and Meghan Largent put into the case). 

Here's how the opinion starts off:

"There is a pleasure in the pathless woods[.]" Yet for the Hyatt and Nicholson Plaintiffs (collectively referred to as “Plaintiffs”), that pleasure was replaced with the pain of usurped property rights. Tn its pursuit of public amenities, the United States transformed Plaintiffs’ land previously burdened by an unused railway into a different burden—a walking trail. Plaintiffs bring this rails-to-trails case contesting the United States’ action as an uncompensated taking.

The United States moves for summary judgment, primarily arguing that because compensation is not available to Plaintiffs, there can be no taking. (Hyatt Defendant’s Motion for Summary Judgment, ECF No. 18; Nicholson Defendant’s Motion for Summary Judgment, ECF No. 13 (collectively referred to as “Def.’s Mot. for Summ. J.”)). Plaintiffs cross-move for partial summary judgment as to liability, arguing that the United States’ action of changing the nature of an easement on their property effected a taking. (Hyatt Plaintiffs’ Motion for Partial Summary Judgment, ECF No. 19; Nicholson Plaintiffs’ Motion for Partial Summary Judgment, ECF No. 14 (collectively referred to as “Pls.’ Mot. for Part. Summ. J.”)). Plaintiffs further argue that the Court should clarify certain calculations relating to just compensation. (See generally Pls.’ Mot. for Part. Summ. J.). The Court disagrees; conclusions as to those calculations are inappropriate at this stage. Ultimately though, the Court agrees that the United States has taken Plaintiffs’ property for public use. Therefore, Plaintiffs’ Motion is granted-in-part and the United States’ Motion is denied. The quantum of compensation is premature and left for another day.

Slip op. at 1-2 (footnotes omitted).

Check it out.

Nicholson v. United States, No. 23-843 (Fed. Cl. Mar. 13, 2024)

Canadian Court Resolves A Very Un-Canadian Expropriation Beef

Here's one we've been meaning to post for a while, the Ontario (Canada) Land Tribunal's opinion in 13538 Ontario Inc. v. City of Stratford, No. OLF-22-002455 (Jan. 11, 2024), where the court resolved a dispute between the parties in an expropriation (eminent domain) case over which owed the other costs. 

Now that isn't our area of expertise at all, but we were intrigued after our Toronto colleagues Shane Rayman and Conner Harris sent it our way.

The matter before the Tribunal was the penultimate chapter in an interminable legal battle, of nearly Dickensian proportions, relating to the expropriation by the City of Stratford (“City”) of the lands of the historic Grand Trunk Railroad Repair Shops. This tale features a hard fought legal battle over many years, a monstrous narrative with many subplots, the tragic death of the central protagonist whose vision for the Cooper site never came to fruition, a bereft family left with a final compensation award that was far less than what their patriarch had hoped for, and a concluding chapter where, like in the fictional case of Jarndyce and Jarndyce, the last juridical debate is sadly and mostly about the payment of legal fees by or to a corporation with no assets.

Slip op. at 2.

With that introduction, who could resist reading more?

We call it a very "un-Canadian" beef because of our impression (perhaps a misimpression?) that our northerly neighbors pride themselves on decorum and politeness, and this fight seemed anything but decorpus and polite. At least that's the vibe we're getting from the opinion.

1353837 Ontario Inc. v. City of Stratford, No. OLT-22-002455 (Ont. Land Trib. Jan. 11, 2024)

Tex App: A Fight Over Who Owns A Historic Letter Isn't A Takings Problem

Check out Texas State Library and Archives Comm'n v. Westmoreland, No. 03-22-00276 (Mar. 22, 2024), where the Texas Court of Appeals (Third District) rejected a claims of a putative owner of a letter that the State of Texas asserting that it owns the letter would be a taking.

Westmoreland possesses a historic letter, and offered it to the Commission for sale. Instead of negotiating, the Commission claimed that the letter is a "state record" that had at some point in the past been purloined from the State. We're not going to buy from you what is already ours!

The Commission sued. Westmoreland brought counterclaims, including, inter alia, for a taking because "the Commission has clouded his ownership of the Letter by filing the present lawsuit[.]" Slip op. at 5. The commission's lawsuit challenges Westmoreland's ownership, and does not raise takings concerns:

[T]he Commission, through its lawsuit, seeks a judicial determination of the ownership of the Letter. If the trial court determines the Letter is a state record that was removed without authorization by law, then the Letter is property of the State and no unlawful taking has occurred because the Commission has not “taken, damaged, or destroyed” Westmoreland’s property, but is rather seeking the return of State property. See Tex. Const. art. I, § 17(a). Alternatively, if the trial court determines the Letter is not a state record, then the Letter is Westmoreland’s property and the Commission has no right to the Letter under the record recovery statute. See Tex. Gov’t Code § 441.192(c). Although Westmoreland asserts “independent” counterclaims, the sole issue and dispute between the parties is ownership of the Letter (determined through the Commission’s right of recovery), and therefore there is no basis for Westmoreland to assert a constitutional takings claim.

Slip op. at 8-9.

Seems very similar to this recent decision by the California Supreme Court holding that a court determining the winner in an easement beef isn't a judicial taking.

Texas State Library and Archives Comm'n v. Westmoreland, No. 03-22-00276-CV (Tex. App. Mar. 22, 2024)