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Professor Kanner's Final Article: "Eminent Domain Projects That Didn't Work Out," 12 Brigham-Kanner Prop. Rts. J. 171 (2023)

Here it is -- Professor Gideon Kanner's final law journal article, published shortly before his passing:

Gideon Kanner, Eminent Domain Projects That Didn't Work Out, 12 Brigham-Kanner Prop. Rts. J. 171 (2023).

Appropriately, we think, published in William and Mary Law School's Brigham-Kanner Property Rights Journal, named in part in Gideon's honor.

This isn't a typical law journal article, but an essay collecting Professor Kanner's thoughts, comments, and (best of all) opinions on, well, eminent domain (and redevelopment) projects that didn't work out.

In Gideon's own words, from the Introduction:

But whether you favor widespread use of eminent domain or not, and whether the projects created by its use are sound or not, it is deplorable that the power of eminent domain has been often deployed to the detriment of racial and politically powerless minorities. Typically, redevelopment projects tend to displace middle class and poor people from their homes and businesses but provides parsimonious compensation that falls short of indemnity. The displaced people are limited by the courts to recovery of “fair market value” of their real property, which fails to include compensation for a variety of economic losses inevitably inflicted when people are involuntarily displaced. To add insult to injury, while talking glibly about indemnity, courts do not provide it and have not explained the reasons for this state of affairs. Too often they rely on factually unsupported lamentations—“fearful guesstimates” as one commentator put it—that full, realistic  compensation would be too expensive or even cause an “embargo” on public works, as the California Supreme Court once asserted.

What follows is a sampling of cases that failed to live up to their planners’ projections, including but not limited to redevelopment projects. The latter are particularly egregious because the linchpin of their success is a process of generating private gains for the private parties chosen to participate in those projects, while undercompensating the displaced populations of the areas targeted for redevelopment. Thus, the benefits, if any, of such projects are attained, if at all, on the back of condemnees, in violation of the principle that such costs should be fairly spread on members of the society that benefits from them and disproportionally imposed on people in the path of those projects.

Thank you to the editors of the Brigham-Kanner Property Rights Journal for publishing it, in its unfiltered form.

Disclosure: I helped edit the piece, and Gideon even asked if it was worthy of publication (as if!). He described it as his "last" article collecting his collective thoughts. Yes, I responded, let's work on this and get it out for everyone to read (although I was secretly hoping that was not his final work). One of our University of Hawaii Law School Land Use students, Pono Arias, even volunteered his time and efforts as Gideon's Research Assistant and tracked down citations, made helpful edits and suggestions, and got the piece ready to go. We're grateful for Pono's work on this, as was Professor Kanner.

So here it is, Professor Kanner's last publication. When you read it, I am sure that - like me - you will hear it in your head in Gideon's voice.

And that's a good thing.

Gideon Kanner, Eminent Domain Projects That Didn't Work Out, 12 Brigham-Kanner Property Rts. J. 171 (2023)...

Farewell To A Giant - Gideon Kanner (1930-2023)

Aloha, Gideon

This is one of those posts I wish I didn't have to write.

I'm sad to report that our teacher, mentor, and friend Professor Gideon Kanner passed away on Wednesday, November 22, 2023, in his 93d year.

Appellate advocacy, eminent domain, and land use legend. Holocaust survivor. Prolific author and speaker. Argued Agins v. Tiburon at the Supreme Court. Educated generations of dirt lawyers at Loyola LA Law School. And even more through various professional legal education programs at Practicing Law Institute, American Law Institute-American Bar Association (ALI-ABA), and ALI-CLE, among others. One of the two lawyers for whom the Brigham-Kanner Property Rights Project at William and Mary Law School is named.

A person with sharp moral and intellectual clarity. Someone who never, ever -- ever -- gave up or gave in. We could go on and on, but we shall keep it short, because his legacy is secure. 

Many people knew or learned from Gideon, but not everyone understood where he came from. Here's some of that from the LA Daily Journal note about his passing, recently published:

Kanner was born in Poland in 1930, just as the Nazis were coming to power next door in Germany. Kanner's father and uncle were business partners when Hitler invaded Poland in 1939, and the brothers took different approaches to the occupation that led to a tragic outcome.

"His father's family fled, and his uncle's family was killed in the camps. Gideon's family spent much of the war hidden behind a false wall in a peasant's cottage. His older brother Joseph eventually left that sanctuary and essentially walked to Palestine, where he joined the British army," [Michael] Berger said. "After the war, the entire family made its way to New Jersey, where they were reunited and delighted to learn they had all survived."

A high school debate coach taught Gideon Kanner to speak perfect English so he could be understood. An engineering class at Cooper Union School for the Advancement of Science and Art in New York sparked an interest in rocketry. Kanner had a career in the industry that included a stint at Rocketdyne, where he worked on designs that were used to take astronauts to the moon.

While working as an engineer, Kanner began taking night classes at the Detroit College of Law. Then, he moved to Los Angeles and enrolled in the law school at the University of Southern California, from which he graduated in 1961.

After he got his bar card, he and a friend started a real property litigation practice under the shingle Fadem and Kanner.

And all that before he began his teaching career.

Although I did not attend Loyola and was never privileged to sit in his classroom, I owe my career to Gideon. In one of life's weird twists, the very first case I worked on as a young lawyer in a private law firm was a land use and regulatory takings case. But my law school education did not include formal training in property law beyond the first year required Real Property course, and I had no clue at all about land use law, or especially about the then-developing concept of regulatory takings. So I went down to the law library and copied every article on eminent domain, takings, and land use by this apparently well-known professor, Gideon Kanner. On the bus ride home each evening, I would pore over those articles. Thus, in one view, I am "self-taught." But in reality, I had Gideon whispering (maybe yelling would be more appropriate?) in my ear, showing me the way.

One of the proudest days of my professional life is when he wrote me, years later, and asked my thoughts about some issue. Gideon Kanner asking me? Wow.

An adopted son of Hawaii, Gideon was, with his family, a frequent visitor. I loved it when instead of saying "thank you" to me for something, he'd write "mahalo." A real local touch. 

Rather than write more, I'll take the liberty of reprinting some of the thoughts that have been circulating about Gideon this past week. Here's a sampling:

"...an inspiration..."

"One of a kind."

"...a man and lawyer whose life and career fills volumes..."

"...a giant who would never hesitate to help you..."

"The appellate world has lost a legend. A founder and the first president of the California Academy of Appellate Lawyers, he led an amazing life: Holocaust survivor, actual rocket scientist, law professor, eminent domain guru, persistent advocate, fierce advocate, appellate maven, colorful writer ...(and here), blogger, inspiration, raconteur, gadfly, curmudgeon. Those are just a few ways to describe this remarkable mensch."

"Gideon will live on in so many ways."

"...my gratitude for the great work of a great man.."

"The Dean of eminent domain."

"Gideon’s trumpet may be silenced, but the voice of our friend Gideon Kanner will echo for many generations."

"Gideon ... was academically brilliant but also carried the deeply heartfelt conviction to defend liberty in the trenches of the courts as though it could be lost if even one generation took it for granted. That sense of urgency was never absent from his lectures and writing..."

"If there is such a thing in our eminent domain world, Gideon Kanner was a celebrity....He ... had a humorous, caustic cynicism and irreverence for government action and was a terrific, patient teacher....Thank you, Gideon. May your memory be for a blessing."

"His oratory skills are legendary, with many regarding him as one of the finest appellate advocates to come before the California Supreme Court and U.S. Supreme Court....As one would imagine, Gideon’s achievements have been honored by countless awards and acknowledgments. On the international scene, Gideon consulted with the Japanese Construction Ministry to reform Japan’s expropriation laws, co-organized the International Colloquium on Comparative Expropriation Law at Oxford University, England, and was a visiting professor at the University of Aberdeen, Scotland."

"...a great human being..."

"Gideon felt the pain of those who were abused and was quick to call out the abusers."

"Gideon not only thought outside of the box before that phrase even existed, he laughed at the box and delighted in tearing it down."

"In California it is hard to write a brief without citing a case that was Gideon's."

"I can truly say that I became a better lawyer after meeting and interacting with Gideon."

I don't think there is a better professional legacy than the love of your colleagues. I am better for having known him.

Aloha, Professor.

Update: be sure to read Professor Kanner's final article, "Eminent Domain Projects That Didn't Work Out," just published.

We (Re)Join Clint Schumacher's Eminent Domain Podcast: Three Impactful Issues, And The 41st ALI-CLE Conference (New Orleans, Feb 1-3, 2024)

A big thank you to Clint Schumacher and his Eminent Domain Podcast for having us on the program (this is the sixth time, not that we're counting). We joined Clint to chat about three breaking issues in eminent domain (highlighted by the intriguing cases we discuss), as well as to preview the upcoming 41st ALI-CLE Eminent Domain Conference, February 1-3, 2024, in New Orleans.

As Clint describes it:

Robert Thomas of Pacific Legal Foundation joins us for a review of three impactful cases that eminent domain practitioners should watch as they work their way through the courts. We also get a preview of the 2024 ALI-CLE Eminent Domain and Land Valuation Litigation Conference that will be held in New Orleans this coming February.

Click here for information and registration for the ALI-CLE conference.

Please share your thoughts on the show or this episode with me. I’m on X @J_Clint. If you have thoughts about future show guests or ideas for episodes, please let me know.

Stream it above or at your favorite service, or directly from the Eminent Domain Podcast's home.

One note before we leave you to your business: Clint has been producing and hosting this podcast for a while now (127 episodes is nothing to sneeze at in the broadcast world), and week-in and week-out, his audience can count on a new episode with fascinating and relevant content, often featuring the biggest players in the field. It may all seem seamless, but as someone who produces content I can say from experience that it can be a grind: selecting and inviting guests, scheduling, editing, post-production, monitoring and the like -- and then on to the next episode. It's work. All in addition to Clint's work for his clients and his community service (not to mention family). He has some help -- many of you know Claire McGehee who assists him) -- but his team isn't some huge production company. It's just them.

So when you next see or chat with Clint, be sure to let him know how much you (and we listeners) appreciate what he and Claire do.

New Podcast: The Cedar Point Takings Case (From The Guy Who Argued Cedar Point)

Check this out, our law firm colleague Joshua Thompson talks about regulatory takings, and his big Supreme Court victory in Cedar Point Nursery.

If you are reading this blog, you already know what that means. Regulatory takings. Bundle of sticks. Penn Central (bleh), and right to exclude. Here's the description of the program:

In this thought-provoking episode, Bob Stetson and Joshua Thompson, Director of Equality and Opportunity Litigation at the Pacific Legal Foundation, discuss the landmark case of Cedar Point Nursery vs. Hassid and explore the intricate balance between private property rights and public interests. What constitutes a 'taking' and how far government regulations can go in the name of the public good?

Stream it above, or listen on Spotify here.

(Our own thoughts on the Cedar Point case here.)

Program Recording: "Erasing the Black Spot" - Virginia's Use Of Eminent Domain To Take Minority Property

"Erasing the Black Spot" from WHRO on Vimeo.

As we first noted here, Hampton University and WHRO recently produced a live program on "Erasing the Black Spot - How Virginia Universities Have Disrupted Black Neighborhoods." We couldn't make it in person, but watched the live-stream.

Now, as we hoped, the recorded program has been published. Stream it above, or watch here on Vimeo. Here's the description:

Virginia’s public universities have a long history of expanding campuses in the name of progress and economic growth. But often, these expansions used eminent domain and property seizures to disrupt and diminish thriving Black communities across the state.

An investigative series by The Virginia Center for Investigative Journalism at WHRO and ProPublica uncovers the damaging social and economic impacts on Black communities of college expansions at Christopher Newport University, Old Dominion, and the flagship University of Virginia.

In the second half of the 20th century, the rapid growth of public universities across Virginia uprooted hundreds of Black families, hindering them from accumulating wealth in the most American way — homeownership.

In a new panel discussion, VCIJ at WHRO journalists share their findings and stories from the residents who were displaced.

Well worth your time.

Some Precondemnation Entries Are Takings Requiring An Up-Front Condemnation And Compensation

We don't often post trial court orders -- especially state trial court orders -- but read on and you will understand why we made an exception here. Our thanks to an Oregon colleague for sending it our way.

Today's case involves a pretty typical situation -- a condemnor (or, "condemner" -- for it is in Oregon that our scene lies) is contemplating taking property from someone, and wants and needs to figure out whether the property it is contemplating is suitable. It needs to get on site and check it out. Do things like surveys, examinations, tests, and sample-taking. Often, the owner of the property doesn't mind: pay me a bit for my trouble, indemnify me in the event someone gets injured, and you can have limited access to do your business and then go on your way, condemner. 

But sometimes, an owner -- as is her right -- says no. In those cases, Oregon (as many states do) has a statute. In our case, Or. Rev. Stat. § 35.220, which paraphrased says, that a condemner may enter private property to conduct tests, take samples and the like, as long as the owner is provided notice. If an owner objects, the condemner may seek a court order "providing for entry upon the property and allowing such examination, survey, testing or sampling as may be requested by the condemner."

Importantly, the statute also says that the owner is entitled to reasonable compensation for "[a]ny physical damage" resulting from the entry, and "[a]ny substantial interference with the property's possession or use" that is caused by the survey, entry, &c. 

Now that we've laid the foundation, here's how it played out in Idaho Power Co. v. Bean.

Idaho Power wants to run part of a transmission line over Bean's property in rural Oregon. It will need an easement. But it also needs to conduct studies. As the court notes:

Petitioner must ensure that the project's path complies with permitting and siting requirements, including that it does not conflict with any protected resources. To ensure compliance, Petitioner must conduct surveys. tests, and samples on Respondents' property. These include three-toed woodpecker and northern goshawk surveys, rare plant inspection, gray owl and flammulated owl surveys, wetlands inspection, terrestrial visual encounter surveys, noxious weeds surveys, cultural resource surveys, enhanced archeological surveys, and historic properties management plan surveys, geotechnical drilling, land surveys, and an appraisal field visit.

...

Although Petitioner cannot say with certainty how many entries will be required for it to accomplish these various surveys, tests and samplings (Tr. 136-160), all totaled, it appears they may amount to as many as thirty-two visits onto the property. Exhibit 2. The visits will primarily involve driving pick-up trucks and sometimes a trailer onto the property with crews of anywhere from one to five persons. Id. Four of the entries will involve some ground disturbance. Id. Two to five entries would be with "pickup trucks and trailer" Tr. 147. The geotechnical drilling will involve a "small track vehicle," Id. The "small track vehicle" is "probably larger than a F-350, but it's not quite as big as a large excavator." ld. The geotechnical drilling involves a "drilling crew" drilling "boreholes" approximately 6 to 8 inches in diameter. Exhibit 2, p. 4. The holes will be backfilled. Id. Petitioner acknowledges each entry will cause some interruption to the landowner.

Slip op. at 3-4.

The property owner said no. Next stop, a trial court in Union County, where the power company sought an order to show cause why it should not be allowed entry under section 35.220.

The owner made two arguments in opposition. First, it asserted it was entitled to compensation before the entries, and not after. Second, it argued the entries are takings under both the Oregon and U.S. Constitutions.

In this order, the court agreed that the statute permits the power company to enter the property against the will of the owner, as long as it provided notice (check). The owner is entitled to "reasonable compensation" for physical damage or substantial interference with possession or use. There's no statutory definition of those terms, but the court used the ordinary meaning, and concluded that the entry "must cause actual harm to the land, crops or structures" on the property," or cause a "hampering of their quiet enjoyment of their property and/or their ability to produce an income from their property." Slip op. at 6.The entries seem to qualify.

So what about that compensation? The owners asserted they are entitled to up front compensation "in advance of Petitioner's entry." Slip op. at 7. Here, the court was presented with a problem: it concluded the statute only allows for post-hoc compensation because of the mechanics. Compensation is based on evidence of physical damage or substantial interference, and such evidence doesn't exist until the condemner makes its entries. "That is a high bar. With the pre-condemnation entries contemplated here it would be very difficult to prove before the entry how the property would be physically damaged." Id.

But the conclusion that the owners cannot get reasonable pre-entry compensation "does not end the inquiry, however." Slip op. at 8. This takes us to the second argument, that the entries permitted by the statute are takings under the constitution(s), and thus require just compensation.

We won't go into the details, but suggest you read the order starting at page 8. Not a lot there that's terribly surprising, and takings mavens will recognize the key citations to the right to exclude being essential such as Cedar Point, and the notion that it doesn't take much of an interference to be deemed a taking of that "essential" property stick.

Oregon courts have long held that "any destruction, restriction or interruption of the common and necessary use and enjoyment of the property of a person for public purpose constitutes a 'taking' thereof." Morrision v. Clackamas County, 141 Or 564, 568 (1933). To the extent that ORS 35.220 allows a condemner to enter onto one's property to conduct examinations, surveys, tests, and samples of t he property without the consent of the owner and without just compensation, it is unconstitutional Such action a mounts to a taking, under Article I, section 18 of the Oregon Constitution. This is because it deprives the property owner of that most essential  property right: the right to exclude others from one's property. In order to comply with the Oregon Constitution, the condemner must pay "just compensation" before the pre-condemnation entry onto private property.

Slip op. at 9.

Yes, the statute says an owner is entitled to reasonable compensation for these invasions if it causes physical damage or substantial interference. "However, the Oregon Constitution does not set such a high bar before the property owner may receive 'just compensation.'" Id.

But not all entries are takings. As Cedar Point noted, some government-authorized invasions are not takings "because they are consistent with longstanding background restrictions of property rights." Slip op. at 10. Even the property owner here agreed that some of the entries were not takings. Thus, some of the desired entries here qualify (while some do not). Land surveys are ok, as well as "an appraisal field visit." Id.

But for those entries that go beyond that, compensation is due. Just compensation, that is, for appropriating "a right of access to the Respondents' property."

By doing so the statute allows the condemner (Petitioner) to enter Respondents' property, without Respondents' consent, to examine, survey, test, and sample Respondents' property. The statute appropriates a right to physically invade the Respondents' property to conduct the various examinations, surveys, tests, and samples. Under Supreme Court precedent, this is a per se physical taking, which under the Fifth Amendment requires "just compensation." Cedar Point Nursery, 141 S,Ct. at 2074. In conclusion, Petitioner may not enter Respondents' property to conduct the surveys, tests and samples without paying "just compensation."

Slip op. at 12.

That left the question of how much compensation? Try work it out, parties held the court. If that doesn't work then the power company must institute eminent domain proceedings.

Worth your time to read the entire order.

If you wanted to see how the California Supreme Court addressed similar precondemnation entries (which it acknowledged as takings) check out this post ("California Supreme Court Rewrites Eminent Domain Entry Statutes To Give Government A Free Pass").

Opinion re Pre-Condemnation, Idaho Power Co. v. Bean, No. 23CV12213 (Or. Cir., Union Cnty, Sep. 6, 2023)

Here's The Program For The 41st ALI-CLE Eminent Domain And Land Valuation Litigation Conference, Feb 1-3, 2024, New Orleans

Here's the brochure and the full agenda and registration information for the upcoming ALI-CLE Eminent Domain and Land Valuation Litigation Conference at the JW Marriott in New Orleans, February 1-3, 2024.

This is the long-running nationally-focused conference on all things eminent domain, takings, valuation, and related. We have three tracks, from which you can choose a la carte - Practice, Substantive, and Condemnation 101:

For over 40 years, we’ve been bringing eminent domain practitioners together to examine the latest issues, engage in healthy debate, and get the information they need to stay current in their practice. This year – our 41st – is THE perfect time to reunite with your eminent domain colleagues. There will be plentiful opportunities to meet and mingle with the faculty and other registrants – throughout the conference and at evening social events. Attendees come back year after year to make new friendships and renew longstanding ones – in a welcoming environment and amongst others who share the same passion for this area of the law.

Please check it out. Over the next couple of weeks we shall bring you details of the various programs.

If you have joined us in the past, you know what a worthwhile conference this is. If this will be your first time, welcome; we hope that you will become a long-term colleague.

Register now, and reserve your spot. In the past few years, we've sold out the hotel block and the Conference seats. So don't miss out!

2024 ALI-CLE Eminent Domain and Land Valuation Litigation Conference Brochure, Feb. 1-3, 2024, New Orleans,...

Midnight Quick Take: NC Supreme Court To Consider Remedies For Failed Takings - What Happens When A Taking Lacks A Public Use, But They've Already Seized The Property?

Here's the latest on a kind of strange case we've been following.

Our case starts off as a somewhat typical public use challenge. After a developer failed to negotiate purchase from Rubin an easement for a sewer line to serve a nearby housing project, the developer enlisted the Town of Apex to lend a hand.

Next, whaddaya know, the Town is taking the easement for the developer's sewer line from Rubin by eminent domain, with the developer paying the compensation and the costs of the lawsuit. If this sets off your private benefit radar, you'd be right. The North Carolina courts sure thought so. No public use. 

You might think that this would signal the end of the matter. We know what would happen if the Town had affirmatively abandoned the taking. In that case, it wouldn't be off the hook if it walked away, and although it would not be able to execute its desired permanent taking, the Town could be liable for compensation for any temporary taking while it prosecuted the (failed) condemnation.

But this situation is different, because here, the Town wants to take the property, but the court said no. Now what? You might think that the Town would have another go, this time with all the "private benefit" stuff scrubbed out. We've been down that path before, and a second court may well say 'yes there is smoke, but I don't see fire" and let the second condemnation go ahead.

But no. Not deterred, the Town decided "who needs public use or even a second (cleaned up) taking; let's just take it anyway" (we're paraphrasing of course, but you get the drift). While the court was considering the case but before it imposed any remedy for the pretextual take, the Town simply installed the sewer line using its quick take power.

Ah the old "midnight building permit" recast as "Midnight Eminent Domain."

Now what ... again?

The trial court rejected Rubin's request for a mandatory injunction ordering the Town to get the sewer line off her property. The court concluded that the remedy for the Town's trespassing with a sewer line on Rubin's land was for her to sue for inverse for compensation for compensation, which she had not done. Lacking an inverse claim, the trial court concluded that the Town's "just take it" approach was ok. 

In Town of Apex v. Rubin, the Court of Appeals affirmed the trial court's conclusion the taking lacked a public use. But it also expressed shock and dismay that the Town would try to get around that by a purported exercise of its quick take power, and make the lack of public use fait accompli. As the court held, "[t]his not the law, nor can it be consistent with our Federal and State Constitutions." Slip op. at 2. But the court of appeals didn't order the Town to remove the sewer line. Instead, it held that the proper claim is government trespass, and the proper remedy is ejectment. 

No party was satisfied with the court of appeals' ruling, and the Town sought discretionary review (and Rubin conditionally cross-petitioned).

In this Order, the North Carolina Supreme Court agreed to take up the case (and in this Order, also granted Rubin's cross-petition).

Read more on the case from the Carolina Journal, "State Supreme Court will take up legal battle over disputed Apex sewer pipe."

Stay tuned, we're going to keep following along.

Order, Town of Apex v. Rubin, No. 20-305 (N.C. Oct. 18, 2023)

Links And Materials From "Inverse Condemnation & Paying for Disasters"

Yesterday, during the Annual Meeting of the Hawaii State Bar Association, we participated in a program sponsored by the Real Property and Financial Services Section, "Inverse Condemnation & Paying for Disasters."

As you can see above, we joined lawprofs Shelley Saxer and David Callies to share thoughts about inverse claims, and the difference between these property arguments and tort negligence claims.

Here are some of the key cases and materials which we mentioned (or should have):

• Lights Out In The Land Of No: The Practical Effects Of California's Wildfire Inverse Condemnation Doctrine
• Cal Supreme Court: Stop Saying Inverse Condemnation Is "Strict Liability"
• MR-GO, Katrina Flooding: Inverse Condemnation And Schlimmbesserung At The Federal Circuit
• Evaluating Emergency Takings: Flattening the Economic Curve, 29 Wm. & Mary Bill of Rights J. 1145 (2021)
• First Lawsuit Filed (Incl. Inverse Condemnation) For Maui Wildfire: Is California-Style Inverse Condemnation Coming?
• Our Drive-Time Conversation About Hawaii Inverse Condemnation And Wildfires
• Shelley Saxer, Paying for Disasters, 68 Kan. L. Rev. 413 (2020)
• Inverse Condemnation And Wildfires

To those of you who were able to join us -- mahalo!

CA4 (unpub): We're Not Going To Adopt Justice Gorsuch's Dissent In PennEast And Prohibit A State From Having Its Property Taken In Federal Court

We don't regularly cover unpublished opinions, but the U.S. Court of Appeals for the Fourth Circuit's Columbia Gas Transmission, LLC v. 0.12 Acres of Land, No. 23-1069 (Oct. 11, 2023) got our attention because it involves a slight twist on the the Supreme Court's ruling a couple of years ago in PennEast Pipeline Co. v. New Jersey, 131 S.Ct. 2244 (2021).

There, the Court held that a private actor exercising the delegated federal power of eminent domain may take property from a state in a federal court action, notwithstanding the state's usual Eleventh Amendment immunity. Employing a historical analysis, the Court held that when the states entered the Union they consented to the federal government's eminent domain power. And the later-adopted Eleventh Amendment didn't change that.

The caption of the latest case should tell you a couple of things. First, this is also a federal taking (plaintiff vs. the property), and second, it is also a taking by a delegee of the federal eminent domain power under the Natural Gas Act. What the caption doesn't tell you is that like in PennEast, the property is owned by a state (in this case, Maryland). 

Yet after the district court held the Eleventh Amendment does not afford the state immunity from suit, Maryland appealed. So what gives? Doesn't PennEast resolve the issue?  

Not to Maryland:

On remand, Maryland again moved to dismiss, maintaining that, notwithstanding the states’ consent in the plan of the Convention to the exercise of the federal eminent domain power, the later-enacted Eleventh Amendment independently stripped the district court of jurisdiction over the action. That was so, Maryland posited, because Columbia Gas was a citizen of another state such that its federal action against Maryland triggered the Eleventh Amendment’s textual, and nonwaivable, jurisdictional bar. See U.S. Const. amend. XI (stating that “[t]he Judicial power of the United States shall not be construed to extend to any suit . . . against one of the United States by Citizens of another State”).

According to Maryland, PennEast did not resolve this separate Eleventh Amendment issue, so it was proper for the district court to address it in the first instance on remand.

Slip op. at 5.

Recall that in PennEast, Justice Gorsuch (joined by Justice Thomas) dissented, arguing that the citizenship of the parties in that case made a difference. There, PennEast (Delaware) sued New Jersey in a New Jersey federal court. Justice Gorsuch noted that this situation lined up squarely with the text of the Eleventh Amendment ("The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.") (emphasis added). 

Here, the citizenship lineup is a bit different, and Columbia Gas is a citizen of Maryland suing Maryland in a Maryland federal court. Not a "Citizen of another state." Thus, Maryland argued, the situation presented here is a question left open after PennEast.

The Fourth Circuit disagreed:

At bottom, Maryland’s arguments mirror Justice Gorsuch’s dissent in PennEast. But Justice Gorsuch’s dissent is just that—a dissent. It did not reflect the view of a majority of the justices (indeed, it reflected the view of just two), and so it does not constitute binding authority on this Court.

The PennEast majority opinion, on the other hand, does constitute such binding authority. And its holding on this issue was clear: ... When a State waives its immunity and consents to suit in federal court, the Eleventh Amendment does not bar the action. Such consent may, as here, be inherent in the constitutional plan.

...

Thus, far from leaving "unresolved" the Eleventh Amendment-immunity issue that Maryland now raises, the PennEast majority addressed that issue head-on and explicitly rejected it, as the district court here correctly found. In our view, that is the end of the matter.

Slip op. at 7-8 (citations omitted).

The opinion ended with an invitation to Maryland to take its SCOTUS shot: "Maryland is, of course, free to petition the Supreme Court to revisit and even overturn its Eleventh Amendment precedents—indeed, the State appears keen to do just that. But unless and until the Supreme Court affirmatively scraps those precedents, we are constrained to apply them, a fact that even Maryland acknowledges." Slip op. at 9.

Stay tuned.

Columbia Gas Transmission, LLC v. 0.12 Acres of Land, No. 23-1069 (4th Cir. Oct. 11, 2023) (unpub.)

Wed Oct 19 6pm ET - "'Erasing the Black Spot' - How Virginia Universities Have Disrupted Black Neighborhoods" (Hampton University)

If you happen to be in the Hampton Roads neighborhood later this week, you may want to consider paying a visit to Hampton University for what looks like an intriguing program:

Exclusive Event: 'Erasing the Black Spot' - Oct. 19

 

The Virginia Center for Investigative Journalism at WHRO and ProPublica Present “Erasing the Black Spot” - How Virginia Universities have Disrupted Black Neighborhoods

October 19, 6 p.m.
Robert P. Scripps Auditorium
Scripps Howard School of Journalism and Communications, Hampton University
200 William R. Harvey Way
Hampton, VA 23669
Register to attend

Virginia’s public universities have a long history of expanding campuses in the name of progress and economic growth. But often, these expansions used eminent domain and property seizures to disrupt and diminish thriving Black communities across the state.

An investigative series by The Virginia Center for Investigative Journalism at WHRO and ProPublica uncovers the damaging social and economic impacts on Black communities of college expansions at Christopher Newport University, Old Dominion, and the flagship University of Virginia.

In the second half of the 20th century, the rapid growth of public universities across Virginia uprooted hundreds of Black families, hindering them from accumulating wealth in the most American way — homeownership.

In a new panel discussion, VCIJ at WHRO journalists share their findings and stories from the residents who were displaced.

Our friend and colleague Joshua Baker (Waldo & Lyle, Norfolk, Virginia) is among the speakers.

More details here. We hope you can check it out. 

Illinois: In Straight Takings, Title Transfers Only After Compensation Is Paid, So Property Owner Is Responsible For Property Taxes During The Litigation

In MB Financial Bank N.A. v. Brophy, No. 128252 (Sep. 21, 2023), the Illinois Supreme Court clarified that in non-quick take actions (aka straight takings), the date on which title transfers -- which is the date on which the owner actually is deprived of the property -- is when the owner is relieved of the obligation to pay property taxes. Until then, the owner is on the hook, even though the owner is under the cloud of condemnation. .

In 2005, the City of Joliet filed a condemnation action to take an apartment building owned by MB Financial Bank. This was not a quick take action, but rather a straight taking. Which meant that neither title nor possession transferred from the owner to the condemnor. These would have to wait until ascertainment of the amount of compensation, the agreement of the City that it wanted to pay that amount, and the actual payment of the adjudicated compensation. Only then would title transfer from MB to the City. Even though that took 12 years.

During the pendency of the litigation -- during which the apartment building continued to operate under MB's management -- MB continued to pay property taxes.

It was 2017 before the City acquired title to the property.

After the transfer, MB sought a refund of the taxes it paid after the condemnation complaint was filed. The rule in Illinois was that although title may pass in straight takings at some later date, the date of the transfer of title "relates back" to the date of the complaint. That rule was based on City of Chircago v. McCausland, 379 Ill. 602, 41 N.E.2d 745 (1942), which held that a condemnor becomes the owner of property retroactive to the date of the complaint. Accordingly, the court of appeals held that MB was entitled to a refund.

The Illinois Supreme Court reversed, concluding that the McCausland rule has been "repealed" by subsequent decisions, including the U.S. Supreme Court's opinion in Kirby Forest Indus., Inc. v. United States, 467 U.S. 1 (1984), and the rule was not one of retroactivity, but "that a taking in Illinois occurs on the date the government deposits the compensation award to the property owner and acquires the title and right to possess the property." Slip op. at 7. The value of the property isn't fixed at the date the complaint is filed:

McCausland also based its holding on the premise that the value of the condemned property was fixed as of the date the condemnation action was filed. See id. at 604. This point was important because it meant that the property owner was not entitled to any increase in value after the date the condemnation action was filed. And, having been divested of that aspect of ownership, it followed that the owner should not have to pay taxes during that time. However, in light of Kirby and First National Bank of Franklin Park, this reasoning also is no longer accurate. Property owners now have a constitutional right to have their property valued at the time compensation is paid. Further, the General Assembly has provided a statutory mechanism for determining the value of the property in compliance with Kirby. See 735 ILCS 30/10-5-60 (West 2018).

Slip op. at 8.

The court rejected the property owner's argument that McCausland remains good law, and concluded:

[O]verruling precedent is appropriate “when the intervening development of the law has ‘removed or weakened the conceptual underpinnings from the prior decision, or where the later law has rendered the decision irreconcilable with competing legal doctrines or policies.’ ” Neal v. United States, 516 U.S. 284, 295 (1996) (quoting Patterson v. McLean Credit Union, 491 U.S. 164, 173 (1989)); People v. Castleberry, 2015 IL 116916. That is the case here. The legal premises on which McCausland rested—that a taking occurs at the time a condemnation action is filed and that the valuation of the property is fixed at that point—no longer exist. Accordingly, McCausland is overruled.

Slip op. at 10.

Finally, the court also rejected the argument that the filing of the complaint cast a cloud over the property, and the cloud lasted 12 years. Thus, it would be unfair to require the owner to pay property taxes when operating under the gun of eminent domain. The court held this argument was "unpersuasive," because the mere filing of an eminent domain complaint is not a taking. Slip op. at 10-11. In straight takings, the condemnee remains the owner until the adjudicated compensation is paid.

Thus even though living under the eminent domain cloud, the owner continued to use the property, "retaining the right to any profits generated by the apartment complex and the right to receive the same governmental services provided to all property owners in the City." Slip op. at 11.

Barista's note: don't forget that in straight takings, until the condemnor actually pays the adjudicated compensation, it remains free to walk away. If it does so, it may be on the hook for damages and just compensation for the (temporary) cloud. But that is a different issue than the one resolved here.

MB Financial Bank, N.A. v. Brophy, No. 128252 (Ill. Sep. 21, 2023)

Just Published - IRWA's "Summary of Major Eminent Domain Cases & Legislation: Jan 1, 2023 - June 30, 2023"

Thanks to our co-authors for the latest issue of this recurring update.

The International Right of Way Association's Real Estate Law Committee produces twice-a-year reports "which contain summaries of eminent domain decisions and legislation within the United States." (This is the "international" right of way association, so that last qualifier is important.)

And what is really nice is that they make the report available.

The laboring oars on this are really Brad Kuhn and Jullian Friess Leivas (both from the Nossaman firm), but they were kind enough to include us. Brad and Jillian wrote up more at the California Eminent Domain Report:

We recently had the pleasure of collaborating with Robert Thomas and Ajay Gajaria once again for the International Right of Way Association’s (IRWA) biannual report covering numerous eminent domain cases at local, state and federal levels from January through the end of June 2023. This report is an important resource and reference point for professionals in the right-of-way industry.

In the report, we also take a brief look at pending, adopted and failed legislation across the U.S., while also providing updates on federal funding and projects associated with the recent Infrastructure Bill. The report also includes summaries of a few notable cases in Canada.

The report is short, and doesn't have a lot of fluff. Just what you wanted.

Check it out.

ALI-CLE's Eminent Domain & Land Valuation Litigation Conference (Feb 1-3, 2024, New Orleans): Why Attend? Here's Why.

Why is it, you ask, that the ALI-CLE Eminent Domain & Land Valuation Litigation Conference (scheduled next February 1-3, 2024, in New Orleans) is an event that seems to be growing in popularity and attendance. In recent years, we have standing room only in the Conference halls, and have sold out the hotel block. After all, this is a pretty niche area of law. So what gives?

When we were in Austin earlier this year, we thought it might be nice to try and answer that question. We asked Conference participants why they come, year-after-year (and in Austin, despite massive travel disruptions). Yes, it is the various venues (Nashville, Austin, Scottsdale, Palm Springs, to name a few recent locations), and yes, it is the excellent and useful programming.

But as we suspected it is more than that. As the above video notes, the consistent response from our participants about why the attend is the participants. The faculty and other attendees, the vendors. The collegiality, the chance to renew long-standing friendships, and especially the chance to make new friends and colleagues who share our passion for this area of law. The welcoming environment, and our desire to have lawyers and other professionals new to this area of law or new to the Bar feel at home and welcomed.

I can personally attest to that one, having been welcomed to a Conference long ago by Toby Brigham, who although he was one of the Chairs of the event, made it a point to notice that I was a new attendee, and to introduce me around to the "old hands."

We have also made a big effort in the last few years to include a range of professionals from various perspectives, including lawyers, legal academics, jurists, appraisers and MAIs, planners, right of way and relocation experts, and jury and trial consultants. Family members also welcome (there are a lot of "adjacent" social and networking events, and families are welcome as long as they don't mind a lot of "shop talk"). Our program is a mix of practical and substantive sessions.

We also have a special track on the first day of the Conference designed as a crash course in Eminent Domain law ("Condemnation 101"), which is a good place for an overview and introduction to the practice, or as a refresher course for those with more time under your belt.

In short, we try and make the Conference not just a place to learn the latest in eminent domain and related topics, but somewhere you can return to each year, and feel welcome.

So if you have not attended before, give us a try! We'd love to see you in New Orleans in just a few months. Registration and hotel reservation now open. Sign up now, and don't miss out.

Register Now For The 20th Brigham-Kanner Property Rights Conference, Oct. 26-27, 2023

Heads-up: the registration page for the 20th Brigham-Kanner Property Rights Conference, October 26-27, 2023, at the William and Mary Law School in Williamsburg, Virginia, is now up.

Early registration is a good thing because space is limited, especially at the Wren Building banquet on the 26th, at which the 2023 B-K Property Rights Prize will be presented to Prof. Gregory Alexander.

So please don't miss out.

The Property Rights Hall of Fame (second plaque)

If you are not already familiar with the Conference, it is (in our opinion) the best one-day event on property and property rights theory and practice. Expressly designed to bring together the legal academy and the practicing dirt law bar, the conference is where we discuss the burning property and property rights issues of the day. Here's the 2023 Program:

• Property and Propriety (or a Well-Ordered Society): A Tribute to Gregory S. Alexander
• Equity’s Role in Defining Property Rights
• Roundtable: Emerging Issues
• The Restatement’s Impact on Property Rights
• The Scalability of Property Rights (or the extent to which interests in property are or should be constitutionally protected)

Details here.

For more on the Conference, see our report from the 2022 Conference (more here as well).

Come, join us!

Our Drive-Time Conversation About Hawaii Inverse Condemnation And Wildfires

On this morning's drive-time program, we joined KHVH's Rick Hamada about whether Hawaii might adopt California's version of inverse condemnation liability in wildfire cases. We also tried to clear up a few misconceptions (gad, I used "disinformation," a term I try to eschew).

Here's the program description:

Inverse Condemnation and Maui Wildfires: A Conversation with Robert Thomas

Tune in to a thought-provoking episode where we engage in a conversation with legal expert Robert Thomas on the topic of inverse condemnation in relation to the recent Maui wildfires. As the community grapples with the aftermath of the devastating fires, we delve into the legal aspects of property rights, government accountability, and compensation for affected individuals. Join us as we explore the implications of inverse condemnation, a legal doctrine that holds governments accountable for taking private property without just compensation. Gain insights into the challenges faced by property owners in the wake of natural disasters and the legal avenues available to seek redress. Don't miss this informative discussion shedding light on the intersection of property rights, wildfires, and legal recourse.

Thanks to Rick for having me on.

Owners' Counsel Toby Prince Brigham Scholarship - Applications Being Accepted

Two years ago, Owners' Counsel of America endowed a scholarship in the name of its founder, property rights advocate and trial lawyer Toby Prince Brigham (1934-2021). The scholarship is for a second- or third- year law student to attend the annual three-day ALI-CLE Eminent Domain and Land Valuation Litigation Conference (the upcoming Conference will be in New Orleans, Louisiana, February 1-3, 2024).

The Conference affords the Scholar an all-expenses-covered opportunity to meet and network with leading property rights and eminent domain lawyers from across the country, while also learning about property law and practice. 

Here's the official description from OCA:  

In honor of Toby’s legacy of professionalism and achievement, in 2021 OCA established the Toby Prince Brigham OCA Scholarship to pay for all expenses of a second or third year law student to attend the ALI-CLE Eminent Domain conference and associated OCA events held annually in January. This unique scholarship affords the student the opportunity to learn about the substantive law of eminent domain and property rights, while also meeting and networking with the leading lawyers in these practice areas from across the country. This is what the very first Toby Prince Brigham OCA scholar, Nina Sawaya, had to say about her experience:

“Thank you Owners’ Counsel of America for the opportunity to meet and learn from the nation’s leading eminent domain and property rights lawyers. While I gained significant knowledge of the substantive law, I also learned about the importance of character as a practitioner. The OCA members taught me that you can be a strong attorney for your client, while still maintaining respect for your opponent. Learning about Mr. Brigham’s commitment to inclusion inspired me to remain true to my core values, while achieving my professional goals. The entire experience was one I will never forget!”

If you are a law student with an interest in applying for this scholarship or know of someone who may be, please contact Leslie Fields, Executive Director of OCA at o[email protected] or 303-806-5155. Applications are due by October 3, 2023. 

More here, from OCA.

Toby Prince Brigham OCA Scholarship Brochure (2023)

Recognizing A Property Rights Icon: "Mentors, A Path to Fairness, and the Joy of Taking"

We recently attended the American Bar Association's Annual Meeting in Denver to speak at the Section of State and Local Government Law's program, "The 100th Anniversary of Pennsylvania Coal v. Mahon: How the Takings Clause Became the Primary Check on Government Power When SCOTUS Abandoned Review Under the Due Process and Contracts Clauses During the New Deal."

But the real highlight of the Meeting was the Jefferson Fordham Awards which, as we noted earlier, were presented to property rights icon Michael Berger, who the Section recognized with the Daniel J. Curtin, Jr. Lifetime Achievement Award.

Also noteworthy: the presentation of the Anita P. Miller Advocacy Award to land use law giant, Professor John R. Nolon, and the Up and Comer Award to a former William and Mary student (and now colleague) of ours, Makenna X. Johnson. 

Professor Frank Schnidman introduced Michael Berger and we thought it important to share his remarks with all of you, because he highlights Berger's commitment to fairness and the rule of law, and the importance of mentorship.

Frank graciously consented to us reprinting his remarks here.

******

Chance Glance: Mentors, A Path to Fairness and the Joy of Taking

Professor Schnidman introducing Michael Berger

American Bar Association, State and Local Government Law Section

Jefferson B. Fordham Awards Luncheon, August 4, 2023

Introduction of Michael Berger, Senior Counsel, Manatt Phelps & Phillips, LLP

by Frank Schnidman, John M. DeGrove Eminent Scholar at Florida Atlantic University, School of Urban and Regional Planning

Good afternoon.

First, I want to thank the ABA State and Local Government Law Section for giving me the opportunity to introduce my friend and colleague Michael Berger.

I was introduced to Michael Berger more than 50 years ago, and for over more than 30 years I have personally had the opportunity to watch Michael carefully and patiently educate 1,000s of attorneys, public officials, academics and students about “Fairness.”

In 1975 Michael wrote a law review article, To Regulate or Not to Regulate - Is That the Question? Reflections on the Supposed Dilemma Between Environmental Protection and Private Property Rights, 8 Loy. L.A. L. Rev. 253 (1975). Yes, 1975!

As so many others have recognized, Michael spent the next 48 years working on cases that would provide a path to an understanding that the only valid understanding of constitutional property rights must recognize the concept of fairness.

Michael stated those many years ago that:

“What is urged is that 'the public' take a long, hard look at what its needs are, assess all the costs involved, and proceed accordingly.

“If ‘the public’ wants land uses (or non-uses) which benefit ‘the public’ generally, then ‘the public’ should buy the property, or an appropriate interest in the property, rather that attempt to force individual property owners to devote their property to public use without compensation.”

Michael will discuss his path to “fairness,” and his “Joy of Taking” in a moment.

He will share with you that he has argued 4 significant cases before the United States Supreme Court, and that for me, for many years, he made an annual pilgrimage to the University of Miami School of Law where I ran the LL.M. Program in Real Property Development to teach a one week one-credit, 15-hour course on regulatory takings. Ultimately, a few hundred real estate attorneys going back to practice were better able to represent their clients.

There is such great detail to mention in describing why Michael is here before us today, and Professor Patty Salkin distilled it so well in her Nomination Package, a document that highlights the litigation and scholarship. That nomination is attached at the end of my Introduction.

“Chance Glance” is the title of my introduction. That actually is how it all began.

A chance glance at a bulletin board at Washington University School of Law and the notice that Professor Dan Mandelker was looking for a research assistant started Mike on his career path. Michael worked for Dan for two years, and unhappy with the difficulty of finding a law firm job in St. Louis, Dan introduced him to Professor George Lefcoe, who provided an opportunity to pursue an LL.M. at the University of Southern California School of Law – and allowed him to devote full time to research the evolving law as it related to airports and their neighbors. The USC Law Review published an edited version of his thesis as “Nobody Loves an Airport,” 43 So. Calif. L. Rev. 631 (1970).

Beginning in 1972, Michael argued all but one of the airport noise cases that came before the California Supreme Court.

Michael Berger, remarking on a remarkable career
Best applause line: "I'm not done yet!"

In the 1949-published Proceedings of the Annual National Planning Conference of the American Society of Planning Officials held in Cleveland, Ohio October 10-12, 1949, George N. Wallace, Executive Director of the Montgomery County (Ohio) Planning Commission reported on the then-current issues with airport expansion:

“The airport people are vitally concerned with our proposed zoning pattern. They have told me that they must keep their operations somewhat flexible if they are to serve future demands and meet changing developments. However, we must make precise decisions as to the probable expansion of our airports and accessory airport uses; we have to recognize the importance of the airport in its service to the community, and, at all times, give full consideration to the rights of adjacent landowners.”

It is regarding the “give full consideration to the rights of adjacent landowners” comment that Michael Berger held municipal planners and local elected officials “feet to the fire” to follow a path to fairness!

I am limited in time in what I can say in my introduction about Michael’s life journey. I therefore ask you to read two of his law review articles and an article from Planning magazine:

• The Joy of Takings, 53 Journal of Law & Policy 189-200 (2017).
• Strong and Informed Advocacy Can Shape the Law: A Personal Journey” 4 Brigham-Kanner Property Rights Conference Journal 1-20 (2015).
• What is Fairness, Anyway, Planning, October 2006, p. 12-18.

In conclusion, let me end with another quote from Mike’s 1975 law review article:

“There is room for regulation. More than that, there is a need for regulation. But if it is truly to serve our best interests, as a people, it must be balanced regulation: a type which is fair to all.”

That, my friends, has been Michael Berger’s life work, and that is why today we come together to honor him and to award him the 2023 Jefferson B. Fordham Lifetime Achievement Award.

Makenna Johnson (Up & Comer Award) with
Michael Berger (Lifetime Achievement Award)

26th Annual Jefferson Fordham Society Luncheon (Denver, Aug. 4, 2023)

CA11's Eminent Domain Attorneys Fees Ruling Is Controlled By Prior Panel

The Eleventh Circuit's short opinion (really short - 1.5 pages) in Sabal Trail Transmission, LLC v. 3-921 Acres of Land, No. 22-10435 (July 25, 2023), is straightforward: to resolve whether a Florida property owner subject to a private condemnor taking under the federal Natural Gas Act has a property right in attorneys fees and costs, the court applied a recently-decided circuit panel opinion that held yes:

The Natural Gas Act authorizes private entities who have received a certificate of public convenience and necessity to acquire property “by the exercise of the right of eminent domain.” 15 U.S.C. § 717f(h). Sabal Trail Transmission, LLC, invoked this power of eminent domain to acquire easements to build a pipeline on land owned by Sunderman Groves, Inc. In the condemnation proceeding, the district court determined that the Act incorporates state eminent domain law, and it consequently applied Florida law to grant attorneys’ fees, costs, and prejudgment interest to Sunderman Groves. Sabal Trail appeals these awards, arguing that the district court should have applied federal law instead.

After this panel heard oral argument, a different panel of our Court decided a nearly identical case that arose out of Sabal Trail’s use of the eminent domain power to build this same pipeline. See Sabal Trail Transmission, LLC v. 18.27 Acres of Land, 59 F.4th 1158, 1160–62 (11th Cir. 2023). That panel determined that proceedings under § 717f(h) must look to state law to determine the measure of compensation. Id. at 1175.

It is “firmly established” that “each succeeding panel is bound by the holding of the first panel to address an issue of law, unless and until that holding is overruled en banc, or by the Supreme Court.” United States v. Hogan, 986 F.2d 1364, 1369 (11th Cir. 1993). This Court’s prior construction of the Natural Gas Act is now the law in this Circuit, and it conclusively resolves this appeal. We therefore AFFIRM the district court.

Slip op. at 2-3.

As we reported here, the issue is whether federal or state law applies in these cases. The big reason why the question of whose law applies is that under the Fifth Amendment, "just compensation" does not include attorneys' and other fees, while under the Florida Constitution's "full compensation" provision (which we noted here), a property owner may recover fees and costs.

But don't stop with the per curiam opinion, and please read on, because the interesting part of the decision is the concurring opinion of Judge Grant, which argues that the earlier panel got it wrong, and the federal "just compensation" standard should apply, not Florida's definition of property:

Like at least one member of that panel, I think Georgia Power was wrongly decided. See 59 F.4th at 1175 (Jordan, J., concurring). But unlike the panel, I do not think that our prior-panel precedent rule required us to extend Georgia Power’s incorrect reasoning about the Federal Power Act to the Natural Gas Act. See id. at 1168–69. I write to emphasize that, when facing similar interpretive questions about other statutes, we should not overread or further extend these two precedents—the compensation standards of the Fifth Amendment apply to private delegations of the federal eminent domain power unless Congress says otherwise.

Concurring opn. at 1-2.

Sabal Trail Transmission, LLC v. 3.921 Acres of Land in Lake County, Florida, No. 22-10435 (11th Cir. July...

Ohio S Ct Rejects Attempt To Import Regulatory Takings Ripeness Into Physical Takings

A short (but interesting) one from the Ohio Supreme Court. In State ex rel. Balunek v. Marchbanks, No. 2021-1469 (July 25, 2023), the court held that a physical takings claim alleging the DOT cut off access to property was ripe, even though the owner might have applied for permit to gain access.

As part of a road construction project, ODOT removed and didn't replace two driveways to the property, landlocking it. ODOT admitted it did so, but didn't include the lost access in the compensation by arguing "that access could be [re]established if Balunek obtains a 'street opening permit' from Cleveland. Slip op. at 3.

The owner sued, seeking a writ to compel ODOT to formally condemn the access. Remember that Ohio does not recognize the usual inverse condemnation remedy, but in situations where an owner asserts its property has been taken and the government has not paid compensation, the owner seeks an order to compel the government to formally take.

The court had no problem concluding that ODOT wiping out the property's access and landlocking it was a taking:

{¶ 12} Balunek has clearly and convincingly established that ODOT took property beyond that for which it has already commenced appropriation proceedings. Prior to ODOT’s construction project, the property had access to abutting roads through driveways and an easement. ODOT, however, destroyed the property’s driveways that connected it to East 93rd Street and did not replace those driveways or provide alternative curb-cut access. The project also eliminated the property’s easement access to Woodland Avenue. The property is thus currently inaccessible to lawful vehicular traffic; to obtain access, Balunek would need to apply for and be granted a street-opening permit from Cleveland and then rebuild the driveways himself. ODOT’s construction project has deprived the property of all access to an abutting roadway and thus constitutes a taking.

Slip op. at 4-5.

The court next dealt with ODOT's "sole argument that Balunek is not entitled to a writ of mandamus," slip op. at 5,which asserted it hadn't taken the property because the owner might obtain a street opening permit from the city. This was not described as a "ripeness" argument, but anyone familiar with regulatory takings litigation recognizes it as such (the government asserting that a court can't tell whether the defendant has taken the owner's uses of property, because there hasn't been a decision on what uses are allowed, if any). Here, ODOT asserted there could not be a taking of access, because the owner might get access, if only it asked: "ODOT argues that requiring a property owner to obtain a permit to use his property does not constitute a taking." Slip op. at 6.

ODOT relied upon a case in which the court held that the denial of a mining permit was not a taking. Requiring you to get a permit before you can use your land isn't necessarily a taking, because -- as the old saw goes -- the existence of a permit system implies that a permit might be granted. This is the same thing, right?

No, the court held, this is much different. The requirement that you seek a permit before you can allege a taking (aka ripeness) only works for those cases where the denial of a permit is alleged to be a taking. So the argument might work in a case where the city denied the owner permits to build driveways. Here by contrast, ODOT eliminated existing access to the property, and the owner is alleging that is a taking:

In contrast, here, the taking has already occurred—ODOT eliminated the property’s access to abutting streets by removing its driveways. ODOT argues that an obligation to compensate for a taking is somehow extinguished if the landowner can, at his own cost, potentially obtain a permit to access his property from a roadway; ODOT has cited no authority for such a proposition.

Slip op. at 6-7.

Seems about right to us.

State ex rel. Balunek v. Marchbanks, No. 2021-1469 (Ohio July 25, 2023) (per curiam)

Ohio S Ct In Power-To-Take Case: Too Soon!

The latest in a case we've been following doesn't get to the substantive issue: is a local park district authorized to take private property for a bike path when the statute authorizes takings for "conservation of natural resources?"

Instead, the Ohio Supreme Court dismissed the appeal for a familiar reason: lack of a final judgment. In Mill Creek Metro. Park District v. Less, No. 2022-0628 (July 11, 2023), the court did not consider the issue, but instead concluded the trial court proceedings were not yet final.

Here's how the case set up procedurally. The district instituted state court eminent domain actions to take Less's land for the bike path. Less objected, asserting that the district lacked the power to take land for a bike path. Less sought summary judgment on that issue, which the trial court denied. Normally, in the absence of some kind of interlocutory appeal, denials of summary judgment are not final, appealable orders. But the court of appeals ruled on the merits of the appeal, after concluding that the denial of Less's motion for summary judgment had the same effect as an entry of summary judgment in favor of the district. 

Not so fast, held the Ohio Supreme Court:

{¶ 12} An order denying summary judgment is not the type of order contemplated by R.C. 163.09(B)(3), because the denial of summary judgment is not a ruling “in favor of the agency in any of the matters the owner denied in the answer”; to the contrary, it is a ruling that demonstrates that there are genuine issues of material fact and therefore the moving party is not entitled to judgment as a matter of law, see Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105, 671 N.E.2d 241 (1996). In other words, the denial of summary judgment merely leads to further proceedings in the trial court. See Balson v. Dodds, 62 Ohio St.2d 287, 405 N.E.2d 293 (1980), paragraph one of the syllabus (“A trial court’s denial of a motion for summary judgment is reviewable on appeal by the movant from a subsequent adverse final judgment”).

...

If the trial court rules in favor of the agency at the hearing, the case may then proceed to a jury trial to determine compensation unless the landowner exercises his or her right under R.C. 163.09(B)(3) to immediately appeal the trial court’s decision. R.C. 163.09 does not, however, give the landowner the right to an immediate appeal from the trial court’s order denying his or her summary-judgment motion. That order is not final and appealable.

Slip op. at 7.

No final order, no appellate jurisdiction. 

The court of appeals held that taking of a bike path is beyond the district's statutory authority to take because a bike path isn't a forest reserve, nor is it the conservation of natural resources, even though under a very generous and deferential reading of the statute, a bike path kinda, sorta, could be the conservation of a natural resource. To hold otherwise, the court concluded, means nearly anything could be the conservation of natural resources.

More on the case here: "Ohio Supreme Court Decision Explains Eminent Domain Procedures" (Morning Ag Clips)

So now we shall have to wait a bit more for the final answer from the Ohio Supreme Court (if any).

Mill Creek Metro. Park District v. Less, No. 2022-0628 (Ohio July 11, 2023)

Colorado App: Lessees Are Not "Property Owners" Under Attorney Fees Statute

When a condemnor is told "no" (or voluntarily drops an eminent domain lawsuit), many jurisdictions require it to pay attorney fees to the parties on the target end of the vs.

Colorado is one of those jurisdictions, and as the Colorado Court of Appeals noted in Mulberry Frontage Metro. Dist. v. Sunstate Equip. Co., No. 22CA0680 (July 13, 2023), the "[t]he General Assembly has provided that when a court rejects a condemnation petition on the grounds that the petitioner isn't authorized to acquire the subject property, 'the property owner who participated in the proceedings' is entitled to recover their reasonable attorney fees and costs." Slip op. at 2. Sounds good, Colorado.

Clear enough when the "property owner" claiming fees is the title (fee) owner. And here, the trial court concluded that Mulberry did not have the power to take. The fee owner plainly had the right to recover fees under the statute. But what about lessees?

Nope, not covered held the court. Yes, a lease is property. And yes, lessees are defendants in eminent domain cases (here, the condemnation petition didn't name the lessee, but it successfully sought joinder as a defendant, asserting its interests were at stake). Kind of sounds like a property interest, with the lessee being the owner of that interest.

So what gives? After all, the Colorado statute provides:

If the court finds that a petitioner is not authorized by law to acquire real property or interests therein sought in a condemnation proceeding, it shall award reasonable attorney fees, in addition to any other costs assessed, to the property owner who participated in the proceedings.

But the statute "doesn't define an 'owner' of property," so the court applied the "common useage[.]" Slip op. at 11. An "owner" owns something. Check out pages 12-13 of the slip opinion for more. The key stuff is on pages 13 and 14:

The lessee’s reliance on general property law principles is misplaced. It is true that a leasehold is a property interest. See Better Baked, LLC v. GJG Prop., LLC, 2020 COA 51, ¶ 24 (A “lease create[s] interests in real property for [the] tenant.”); Kunz v. Cycles W., Inc., 969 P.2d 781, 783 (Colo. App. 1998) (“A commercial lease is both a conveyance of an interest in real property and a contract.”). But that doesn’t make a lessee a property owner. A lessee’s interest is in the possession — not the ownership — of property. See Wilson v. Marchiondo, 124 P.3d 837, 840 (Colo. App. 2005) (recognizing a lessee’s possessory interest in leased property); Rare Air Ltd., LLC v. Prop. Tax Adm’r, 2019 COA 134, ¶ 25 (noting that “[a] possessory interest is ‘[t]he present right to control property, including the right to exclude others, by a person who is not necessarily the owner’” (quoting Black’s Law Dictionary 1353 (10th ed. 2014))); see also Cantina Grill, JV v. City & Cnty. of Denver Bd. of Equalization, 2012 COA 154, ¶ 7 (recognizing a distinction between possessory interests and ownership interests), aff’d on other grounds, 2015 CO 15; People v. Barefield, 804 P.2d 1342, 1345 (Colo. App. 1990) (same); Restatement (First) of Prop. § 7 (describing possessory interests in land).

Slip op. at 13-14.

And the court acknowledged that "lessees are generally entitled to receive compensation for any taking of their property interest in condemnation proceedings." Slip op. at 14.

But this, the court concluded "merely signifies that a lessee's possessory interest in property must be compensated if it's taken through condemnation, unless a lessor and lessee have provided in their lease. It doesn't signify that the lessee is an owner of property." Slip op. at 15 (citation omitted).

The legislature only said "owner," and not, for example, "holders of other property interests[.]" Slip op. at 20. So if you want this statute to include lessees, lessee, then take it up with the General Assembly. Slip op. at 21 ("Those arguments present a policy choice that is for the General Assembly -- not this court -- to make.").

But all was not lost: the court remanded the case for consideration of whether the lessee might be entitled to recover fees under a separate statute, which gives the courts discretion to award attorney fees in any civil action. 

So what do you think about this? Does one "own" a lease, or merely "possess" it? And is there any real difference?

Mulberry Frontage Metro. Dist. v. Sunstate Equip. Co., No. 22CA0680 (Colo. App. July 13, 2023)

New Article: "UFOs and Eminent Domain"

A big thanks to friend and colleague Paul Henry for bringing to our attention this article by Andrew Stuttaford, UFOs and Eminent Domain.

No, it (unfortunately) is not the latest tenure-making scholarly law journal article (but we can dream, can't we?), but a piece in National Review.

It details a proposal to release federal documents relating to UFOs. Nice. But buried in the measure is this (according to Reuters):

Under the measure, records must be publicly disclosed in full no later than 25 years after they were created unless the U.S. president certifies that continued postponement is necessary because of a direct harm to national security.

It also establishes that the federal government would have "eminent domain" over any recovered technologies of unknown origin and any biological evidence of "non-human intelligence" that may be controlled by private individuals or entities.

Who among us is going to be the first in line to scoop an alien client/property owner? There's precedent for that, after all.

We're in.

"Peerless" Eminent Domain Settlement Agreements: No Mutual Mistake In "Damages" Term

Every law school graduate surely remembers that 1L Contracts case about the two ships named "Peerless" and the doctrine of mutual mistake.

In Marchbanks v. Ice House Ventures, LLC, No. 2022-0047 (June 8, 2023), the Ohio Supreme Court rejected the DOT's claim that a previously-agreed-upon agreement to settle an eminent domain action did not reflect a meeting of the minds, because it was the product of a mutual mistake.

Here's the story. ODOT instituted an eminent domain case to take the property of Ice House Ventures for a freeway improvement project. A few days before the jury trial on valuation was to get underway, the parties settled. ODOT agreed to two things: (1) pay $900k compensation, and (2) transfer to IHV a separate small parcel of land owned by the City of Columbus, to be used by IHV for a 12-car parking lot. ODOT believed the city would be willing to make the transfer, and ODOT promised it would provide IHV with "marketable fee simple title." 

You know where this is going, don't you? That's right, "[t]here is no dispute that ODOT was unable to transfer the Parking Mitigation Property to IHV." Slip op. at 3.

The parties had anticipated this scenario, and the settlement agreement provided that if ODOT was not able to convey marketable title within a year, the trial court would award "damages" to IHV (the term "damages" was not defined). So IHV moved to enforce the judgment. The trial court agreed that ODOT hadn't delivered, and entered a damage award to IHV for the value of the 12 parking spaces, rejecting ODOT's argument that "damages" meant damage to the residue.

ODOT appealed, and the court of appeals agreed that "damages" was a disputed term, and that ODOT asserted that it meant severance damages, while IHV thought it meant breach-of-contract damages (what the nonbreaching party could expect to have gained by the bargain). Thus, the court concluded, the parties had not agreed on a material term and thus no meeting of the minds (and thus no settlement agreement). The court remanded for the trial court to hold a trial on severance damages.

The Ohio Supreme Court granted discretionary review.

The court concluded that "ODOT and IHV clearly intended to enter into, and in fact entered into, a binding settlement agreement." Slip op. at 8. And the term "damages" was not an essential term (because "breach of contract is not an inevitability"). Id. 

The court also rejected ODOT's argument that this is the Peerless case:

But unlike in Raffles, the purported "mistake" here does not concern the basis of the parties' agreement. Specifically, the parties' performances under the agreement—ODOT’s compensation to IHV for the appropriation of IHV’s land and IHV’s release of claims for further compensation relating to the appropriation—did not depend on a particular calculation or amount of damages. And the parties did not contract for a particular type or amount of damages, despite being sophisticated parties negotiating in good faith with the advice of legal counsel. For example, the parties could have included a liquidated-damages clause or some specific description of the type of damages to be awarded if that were appropriate under and material to the agreement. However, the agreement is clear that the parties left the question of damages to the trial court, if the question arose. The agreed judgment entry on the settlement plainly states: "[T]he Court shall retain jurisdiction to determine the damages due to IHV for the failure of ODOT to deliver this portion of the consideration[, i.e., the Parking Mitigation Property,] for ODOT’s appropriation of IHV’s property."

Slip op. at 10.

The settlement contract "is enforceable." Slip op. at 11.

Yet another lesson that when a case is resolved by settlement, the courts generally speaking like those agreements enforced, as this case (and this other recent decision) reminds us.

Marchbanks v. Ice House Ventures, LLC, No 2022-0047 (Ohio June 8, 2023)

Kentucky SCT To Review Prior Public Use Case Where City Purchased Property To Thwart School Board's Acquisition

Update: someone blinked - between the time we drafted this post and the time is actually posted, we understand that this case settled. But the "spite takings" issue remains of interest, so we're leaving this post up.

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You already know about the prior public use issue, often arising in government-to-government takings. The Fifth Amendment requires a public use and compensation for the taking of "private property," so does it apply where the condemnor is seeking to take property owned not by a private owner, but by the public or by the government?

The Kentucky Supreme Court has agreed to review a case with an interesting twist on that scenario. In City of Cold Spring v. Campbell County Bd. of Education, No. 2021-CA-001470 (Dec. 16, 2022), a county board of education sought to exercise eminent domain to take property owned by a city. The twist is that the city apparently purchased the land in question in order to prevent the board from purchasing the property itself. 

Here's the story. The board says it needs a new school. It was negotiating with the Disabled American Veterans to buy its property, when "DAV informed the Board of Education that it would not sell the property to the Board." Slip op. at 2. The Board thought that DAV wanted to sell to a private developer, and was "convinced that the City intended to buy the disputed property in order to thwart its [the Board's] condemnation of the property and that the City would transfer it to Neyer for private development." Id.

It turned out that DAV and the private developer (Neyer) "had already executed a purchase agreement[.]" Id. Soon thereafter, the board approved the taking of the property by eminent domain. But not long after that, Neyer assigned its purchase agreement to the city. The consideration for the assignment was that the city agreed to grant Neyer the exclusive right to develop the property and to "own the private investment made to that end" (meaning that the city agreed that Neyer would control development and use of the property in its "sole and absolute discretion." Slip op. at 4.

The same day as the assignment, the board commenced an eminent domain lawsuit against DAV, which remained the record owner of the property. But the city intervened, asserting an equitable interest in the property. The DAV and the city closed on the city's purchase, and "the City immediately filed a motion to dismiss, arguing that the Board of Education could not condemn public property." Slip op. at 6.

The trial court concluded that the city was not using the property for a public purpose, and it was therefore subject to taking by the board.

The Court of Appeals reversed, agreeing with the city that the board's authority delegated by the State is limited to taking only private property, and this is public property: 

The provisions of KRS 162.030 do not expressly, or by necessary implication, expand the boundaries of the power of eminent domain delegated to the Board of Education to encompass the taking of public property.

Slip op. at 13.

The court rejected the board's argument that the city's ownership is "a ruse," but the court dismissed that as "peripheral or speculative." Slip op. at 14. All that matters is that the city undisputedly held an equitable interest on the date of the taking. "Public property is not converted to private property - even where the municipality owns it in a proprietary capacity. The nature of the ownership of the disputed property - not its use - controls this case." Id. 

Next stop, the Kentucky Supreme Court. Stay tuned.

City of Cold Spring v. Campbell County Bd. of Education, No. 2021-CA-001470 (Ky. Ct. App. Dec. 16, 2022)

Courts Don't Like Trying To Unwind Settlement Agreements (Esp. Condemnation Settlements)

As we've noted before, we think courts generally don't like it when they are asked to revisit a dispute that was settled by agreement. Yes, settlement agreements are contracts, and just like every other contract they are subject to enforcement, breach actions, and the like.

But our experience is that courts are not keen on revisiting, because when you settle, you settle. Write up that settlement agreement well, counsel, because if everyone isn't going in with eyes wide open about what they are agreeing to, what they aren't agreeing to, and what are the potential risks down the road, you probably won't get a second judicial bite to complain. 

The Colorado Court of Appeals' opinion in Denver v. Monaghan Farms, No. 22CA0956-PD (June 29, 2023) just might reflect that sense (or maybe the party arguing that the settlement agreement didn't do what the other party said just didn't have winning arguments). But either way, the court rejected every argument by the former property owner/condemnee, and held in favor of the current property owner/condemnor.

Back in 1988 Denver was going to take Monaghan's property for what would become DIA (the airport). Just comp determined to be in the range of $27 million and while the case was pending before the Colorado Supreme Court, the parties settled. $30 million compensation (that represented an agreed-upon amount, not necessarily just compensation), the parties executed a mutual release, and the trial court entered a follow up order transferring title to Denver "free and clear of all liens and encumbrances." Slip op. at 4. 

Flash forward a few decades, to 2017 to be precise. "[A]fter learning that Denver planned to lease part of the condemned property for private commercial use instead of for DIA, [the former owner] sent a letter to Denver requesting good faith negotiations under the settlement agreement, contending that it retained a 'right to reversion' if the parcels were no longer used by DIA. Id. There was also a claim that the use DIA intended to make of the parcel wasn't a public use.

Denver instituted a quiet title action: we own the property and can do with it what we want. The trial court held in favor of Denver. The use DIA intended to make was a public airport use, and there's no reversionary interest anyway because the transfer to Denver agreed to in the the settlement agreement had no strings attached (fee simple absolute).

The court of appeal agreed. When an agreement contains the language "free and clear of all encumbrances," that describes a fee simple interest, free of a right of reverter. Slip op. at 14. The court also rejected Monaghan's argument that the condemnation wasn't expressly to take a fee simple interest, thus the settlement agreement didn't (and couldn't) convey more. The court held that there's no requirement for a condemnation to be for "fee simple absolute" in order to take a fee simple absolute interest. The interest taken is the interest taken and "[t]he lack of certain 'magic words' doesn't change the nature of the estate that Denver obtained." Slip op. at 13.

You can read the rest of the opinion for the reasons why the court also rejected the balance of the (former) owner's argument.

But we're filing this one under the "when you settle, you settle" label. It's going to be a tough road to get a court to look at it differently. 

Denver v. Monaghan Farms, No. 22CA0956-PD (Colo. Ct. App. June 29, 2023)

NY App Div: OK To Condemn Blighted Property To Sell To Private Developer

The New York Appellate Division's opinion in Huntley Power, LLC v. Town of Tonawanda, No. 22-011460 (June 9, 2023), is typically short (6 pages, including a dissent).

The town instituted eminent domain proceedings to take Huntley's riverfront property, including an electric plant decommissioned in 2016, and water intake structures. The asserted public use is "revitalizing and redeveloping the former industrial property, which was a blight on the Town, and maintaining the critical raw water supply to significant industrial employers in the Town[.]" Slip op. at 2.

That was enough for the court to "reject reject petitioner’s contention that the condemnation will not serve a public use, benefit, or purpose[.]" Id. Rational basis, and so forth.

Nor was the condemnation "excessive," because it allegedly took more than it needed." There's no obvious abuse -- or at least any abuse that would qualify as an abuse of discretion. Slip op. at 3. The court also rejected the argument that the Town's "stated purpose for acquiring the property manifests and intent to engage in constitutionally-prohibited private enterprise because the Town intends to sell the property to a private developer." Id. No big deal here, because the "taking of substandard real estate by a municipality for redevelopment by private corporations has long been recognized as a species of public use." Id. (citation omitted).

One Justice dissented from a part of the court's conclusions. The dissenter would have analyzed the takings separately, the first being the taking of the decommissioned electric plant is located. That taking is ok, and serves a public use and purpose for the reasons noted above. But the second taking -- of the intake structures along the river -- is another matter:

The majority finds that second taking to be lawful, but I do not.

Prior to the closure of its power plant, petitioner used theintake system to withdraw millions of gallons of untreated water to provide cooling for its generating units. Since closure of the plant, petitioner has allowed local businesses—specifically, Evonik LLC, Sumitomo Rubber Corporation, USA, LLC, and 3M Company—to obtain water for industrial uses from the river through its intake bays and screening facilities. Petitioner has granted easements and licenses to Evonik and Sumitomo to maintain pump houses and water lines on its property to facilitate the withdrawal and distribution of raw water, which is far less expensive than the treated water that the businesses would otherwise have to purchase for their manufacturing processes. The Town proposes to take petitioner’s water intake structures for the purpose of ensuring that local manufacturers have access to inexpensive raw water. Without that access, the Town asserts, there is a danger that the businesses will relocate out of the area, resulting in a loss of local jobs and tax revenue. But the Town’s proposed use of the water intake structures is no different than the existing use by petitioner, and there is no indication in the record that petitioner will refuse to continue providing water access to local businesses. Indeed, the money paid by the local manufacturers for the licenses and easements is the only revenue petitioner realizes from the property.

Slip op. at 5 (Lindley, J., dissenting in part).

The dissenting Justice concluded, "[i]n my view, the takings clauses of the Federal and State Constitutions do not permit the government to take land through eminent domain and use it for the exact same purpose for which the landowner is already using it." Id.

More on the decision here  from the Buffalo News ("Court upholds Tonawanda's right to take over long-shuttered Huntley power plant").

Huntley Power, LLC v. Town of Tonawanda, No. 22-01460 (N.Y. App. Div. June 9, 2023)

New Article: 2023 National Eminent Domain Update

Thanks to the editors at ALI-CLE's The Practical Real Estate Lawyer for publishing my friend and colleague Amy Boulris and my summary of what we think were the most interesting -- if not the most important -- eminent domain cases over the past year.

And more thanks for allowing us to post it here, ALI-CLE. Full citation: Amy Brigham Boulris & Robert H. Thomas, "2023 National Eminent Domain Update" July 2023 ALI-CLE Prac. Real. Estate Lawyer.

Amy Brigham Boulris & Robert H. Thomas, 2023 National Eminent Domain Update, July 2023 ALI-CLE Prac. Real E...

Oklahoma: Private Necessity Takings Are OK, And Don't Require A Public Use Or Purpose

Before you get too excited by the headline and think this is a Kelo issue, a word of caution: this short one from the Oklahoma Supreme Court is on a really niche topic: private condemnations that permit the private owner of property to institute a private-benefit taking to force a neighbor to sell an interest in its property if doing so is necessary. 

Childers v. Arrowood, No. 119815 (June 20, 2023), involved whether it is proper under Oklahoma's private taking statute for the owner of property that isn't landlocked and can physically access the outside world but has no utility service, to condemn an easement over an adjacent parcel to obtain such service.

Until 2008, Childers' property was landlocked. But their predecessor-in-title secured an express access easement from the owner of the neighboring property, solving that problem. But then new owners bought the dominant parcel, and want to live there. Yes, they can physically access the property, but the utility company told them that it can't make a utility connection unless the owners also possess an easement for utility access.

The owners filed a statutory private eminent domain lawsuit against the owners of the servient parcel to secure utility access. Those owners objected: the statute is reserved for "private ways of necessity" and since you already have physical access and your parcel isn't landlocked, you can't use the statute to forcibly take a utility easement. Trial court approved the taking and the private condemnees appealed. 

The Oklahoma Supreme Court OK'd the taking. The purpose of these private ways of necessity takings is to prevent properties from being landlocked and to prevent those properties from being rendered useless: "What the common law easement by necessity and the statutory way of necessity share in common is their underlying purpose -- to prevent property from being land-locked and rendered useless." Slip op. at 5 (footnote omitted).

That being said, do the common law cause of action and the statutory way of necessity have the same elements of proof? Nope, "the Childers were not required to show the elements of a common law easement by necessity to acquire the easement." Slip op. at 6. The servient owners/condemnees countered: even these private takings require a public purpose. Slip op. at 6-7 (there's your Kelo goodness).

The court rejected the argument. The Oklahoma Constitution expressly exempts private ways of necessity takings from the public use requirement. Slip op. at 7. But the court doesn't address the property owners' other argument: that the Fifth and Fourteenth Amendments require all takings to have a public use. The court notes the argument was made. But then, silence from the court. We're not sure why.

After all, this seems like a worthy argument. At least one court has though so. See "Pa. Supreme Court: If It Walks Like A Private Taking And Quacks Like A Private Taking, It Might Be A Private Taking."

The remainder of the opinion is devoted to the court explaining why the private condemnor could take a neighbor's property to secure utility access. The statute is designed to help owners make use of their property, not simply to gain physical access. And if that means taking a utility easement from your neighbors, the statute allows it.

Childers v. Arrowood, No. 119815 (OK June 20, 2023)

Iowa Supreme Court Can't Decide Much Of Anything In Power To Take Challenge

At first, the Iowa Supreme Court's opinion in Juckette v. Iowa Utilities Board, No. 21-1788 (June 16, 2023) looks like a promising read. The issue -- is a utility expanding its use of an express road easement to install electric lines a taking? -- is one that we've been following.

But by the time you get to the end of the short opinion (10 pages), you realize the court didn't decide much, other than yeah, the utility has the statutory authority to use the easement this way. The court can't reach a decision on whether that's a taking for public use. Not because there's some problem with the case or the way it was presented, but because one of the Justices on the seven-member court sat it out and the remaining six couldn't agree. Affirmed by an equally divided court, 3-3. 

This apparently is not that unusual in Iowa, as the national media noted recently. This story ("Iowa Supreme Court split 3-3 on abortion ruling - How rare is a deadlock?") notes it is rare, "with only 18 cases ending in a non-decision deadlock in the last 15 years." To us, more than one a year seems like a lot, not rare.

Well, at least the six who showed up agreed on one issue: the utility met the statutory requirements of building utilities in a public road easement.

Here's the short story. Juckette's-predecessor-in-title granted the county an easement for a "road right-of-way." That road is now a county highway. Flash forward a few decades and the electric utility wants to build new lines to "satisfy the demands created by Microsoft's new data center." Slip op. at 8. On some properties it exercised the delegated power of eminent domain. But on Juckette's land, it didn't because it thought it could just use the road easement. As the court noted, based on a decision of the Iowa Supreme Court, Keokuk Junction Railway v. EIS Indus., 618 N.W.2d 352 (Iowa 2000), "the utility "would have been obligated to pay Juckette compensation to build electric transmission lines in the road right-of-way." But in 2004, the Iowa Legislature adopted a statute that authorized utilities to go ahead and build in a public road right-of-way.

The utility petitioned the Iowa Utilities Board to let it do just that. The Board agreed that the utility met the statute's requirements and that the electric project is in the public interest. The legislature had essentially overruled the Iowa Supreme Court's Keokuk decision. But wasn't Keokuk a constitutional ruling, meaning that the statute could not supersede the obligation to pay compensation? The Board (correctly) concluded that as an agency, it lacked the jurisdiction to determine constitutional matters, and declined to address the argument.

Next stop, the courts. The trial court affirmed the Board's application of the statute, and rejected the owner's claim that this is nonetheless a taking and compensation is required. Next stop, the Iowa Supreme Court to resolve all questions.

Or so the parties thought. That court affirmed the statute-allows-this ruling. It also agreed that the Board's determination of public use and necessity under the statute (a certificate of public convenience for you PUC mavens) resolved the question of whether this is a public use of the property for takings purposes.

The owners asserted this was a taking to benefit Microsoft, not the public. The court noted, "it does seem that the most immediate need for the project is to satisfy the demands created by Microsoft's new data center. But record evidence shows that MidAmerican's planned improvements will also benefit current and future customers other than just Microsoft." Slip op. at 8-9. But we don't have to resolve which side is right, because the Board already did so: the public use inquiry required by the constitution is undertaken and determined by the Board.

On the other issue -- is expanding the scope of a granted easement to include additional uses a taking -- the court split 3-3.

The only question is whether that construction could result in a taking that requires compensation under the Fifth Amendment to the United States Constitution and article I, section 18 of the Iowa Constitution. As to this question, we are evenly divided. Christensen, C.J., and McDermott and May, JJ., would find that that construction could result in a taking; Waterman, McDonald, and Oxley, JJ., disagree. As a result, the district court is affirmed by operation of law. Iowa Code § 602.4107 (2023); Effler, 769 N.W.2d at 884.

Slip op. at 9-10.

Too bad.

Juckette v. Iowa Utilities Board, No. 21-1788 (Iowa June 16, 2023)

Happy 808th (The) Magna Carta (Charta) Day!

808 years ago today* on a grassy plain down by the river, the barons convinced bad King John to affix his seal to Magna Carta. Or the Magna Carta. Or Magna Charta. However you want to grammarize it. (And no, he didn't "sign" it, they didn't do things like that back then.)

And boy was that guy bad even by the standards of medieval royals: when you type "bad king..." in your search engine, the first suggested search is "bad king ... John."

There's a lot of good stuff in Magna Carta -- and a lot of stuff that has been rendered irrelevant or quaint by the passage of time, and even some stuff that we'd consider cringe-worthy today (see art. 10, for example).

But we takings geeks all know and continue to appreciate article 28:

Nullus enarius aries, vel alius ballivus noster, capiat enar vel alia catalla allcujus, nisi statim inde reddat enarius, aut respectum inde habere possit de voluntate venditoris.

Magna Carta art. XXVIII (1215).

If, like us, you don't know Latin, here's the English version:

No constable, or any of our bailiffs, shall take anyone’s corn [grain] or any other chattels, unless he immediately [statim] pays for them in cash, or else he can agree with the seller to postpone payment.

Magna Carta art. XXVIII (1215). Just Compensation...stat!

Sounds familiar, no? If you ever wondered where James Madison got the backwards, somewhat weird syntax of the Takings Clause, we don't think you have to look much further than article 28. If it ain't Latin, it ain't the law (as a lawprof of ours once counseled).

And does that part about the duty to provide compensation for takings "statim" (immediate, without delay) have continuing relevance today? We sure think so. As does the MC itself, which continues to get a lot of love in Supreme Court opinions.

For a non-technical and highly-readable (and enjoyable, even for non-history buffs), you can't do better than Dan Jones's "Magna Carta - The Birth of Liberty."

The book starts off by giving the reader the background that led to Runnymede, the details of why King John came to the negotiating table, how well he honored Magna Carta (one guess - he didn't - they didn't call him "Softsword" for nothing), and how the document only grew in relevance in the intervening centuries. Even half a world away.

The front door of the U.S. Supreme Court:
No "the," and it is spelled "Charta"

Long live the Magna Carta!

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* Yes, we know of the Gregorian calendar reform so when we say "today," we're not being 100% correct. But come on man, work with us here.

Tuesday Round-Up: Sackett, Tyler, Defending Zoning, Canada Property Rights ... And More

Here's what we're reading this Tuesday:

• Tiffany Lashmet's Ag Law in the Field podcast: "Episode #155: Jesse Richardson and Anthony Schutz (Sackett v. EPA)"
• Lawprof Ilya Somin, Brennan Center for Justice: "Supreme Court Strengthens Federal Protection for Property Rights"
• Also from Prof Somin, Volokh Conspiracy: "A Flawed Attempt at a Libertarian Defense of Exclusionary Zoning"
• Here's the piece Prof Somin is responding to - Robert Poole, "A Brief History of Single-Family Zoning"
• Professor Malcolm Lavoie, SSRN, "Property Rights, Takings, and the Rule of Law: Assessing Annapolis Group v. Halifax Regional Municipality" (assessing the Supreme Court of Canada's latest ruling on property rights)
• Note, "The Contract Clause: Reawakened in the Age of COVID-19," 136 Harv. L. Rev. 2130 (2023)
• Lawprof Ilan Wurman, "Reconstructing Reconstruction-Era Rights," 109 Va. L. Rev. 885 (2023)

Worth checking out.

ICYMI: "Property Rights Hat-Trick: Breaking Down PLF's Supreme Court Victories" (vid)

Missed our law firm colleagues Jeff McCoy, Damien Schiff, and Christina Martin when they were live, talking about their SCOTUS wins in Wilkins v. United States (is the statute of limitations in federal Quiet Title Act cases a jurisdictional bar?), Sackett v. E.P.A. (scope of Clean Water Act wetlands jurisdiction), and Tyler v. Hennepin County (government’s keeping the excess value when seizing and selling a home to satisfy a property tax debt is a taking)?

We recorded it, so you can watch and listen at your leisure.

This is more than just a victory lap, the advocates offer their thoughts on the implications of the wins, and what might be next.

Bon appétit.

Has Not Aged Well - SCOTUS, June 11, 1923: "The necessity for appropriating private property for public use is not a judicial question."

Continuing in our line of posts noting milestones in dirt law, we bring you Rindge Co. v. County of Los Angeles, 262 U.S. 700 (1923), decided 100 years ago today.

For any of you who have driven the Pacific Coast Highway through Malibu, you will know the site of this eminent domain case. As described by the Supreme Court in its opinion:

The plaintiffs in error are the owners of a large tract of land lying on the shore of the Pacific Ocean, known as the Malibu Ranch, extending in an easterly and westerly direction about twenty-two miles and varying in width from one-half mile to one and one-half miles. It lies at the base of a high and rugged mountain range which parallels the shore at a distance of from three to four miles, its northern line extending along the slope and foothills of this mountain range, and is traversed by many ridges and intervening canyons leading from the mountains toward the shore. It lies about ten miles west of Santa Monica, one of the principal cities of Los Angeles County, situated on the coast to the southwest of the City of Los Angeles, and is mainly in Los Angeles County, but extends about a mile and a half into Ventura County, the adjoining county on the west. It is traversed lengthwise by a private road of the ranch owners which was formerly used by farmers and settlers living north of the ranch on the slope of the mountains and west of the ranch in Ventura County, but which has been for several years closed by the ranch owners to the public.

Id. at 702-703.

LA County wanted to turn that private road into a public thoroughfare to be known informally as the "main road" and officially as "Roosevelt Highway," so adopted resolutions declaring it to be in the public interest and necessity to take the property by eminent domain to build a public highway. Based on those resolutions the County instituted condemnation proceedings. The owners "vigorously resisted," raising two primary issues: lack of a public use, and lack of necessity.

The public use objection fared as well as you might predict. "That a taking of property for a highway is a taking for public use has been universally recognized from time immemorial. The California Code specifically declares 'highways' to be 'public uses' for which the right of eminent domain may be exercised. Here, the Board of Supervisors, familiar with local conditions, has declared these highways to be for public uses, and the local and appellate state courts have likewise held them to be for public uses authorized by law. Id. at 706.

But this isn't a "genuine highway" argued the property owners. The road is a "sham[] under the name of public improvements, which cannot, in fact furnish ways of convenience or necessity to the traveling public." Id. The "main road" doesn't go through and connect with other public roads, but end on the owner's property.

Sorry, the Court concluded, the roads will be open to the public, and if drivers want to go into areas with "no adequate outlet" that is their business. And other owners who now need to use the private road to get out to LA, can use the "main road" to exit. That's good enough. Id. at 706-707. A road taken by eminent domain doesn't need to connect to a public road in order for the taking to be for public use. Id. at 707. ("otherwise, great embarrassment and difficulty would be experienced in establishing highways across state lines").

The Court rejected the owner's necessity challenge even more emphatically. While public use questions are for judicial resolution (even with the thumb firmly on the scale on the condemnor's side), the question of necessity doesn't even get that:

The necessity for appropriating private property for public use is not a judicial question. This power resides in the legislature, and may either be exercised by the legislature or delegated by it to public officers.

Id. at 709.The necessity question is "purely political, [and] does not require a [predeprivation] hearing, and is not the subject of judicial inquiry." Id.

In other words, the County's resolutions that the taking was necessary "were conclusive evidence as to the necessity for the taking of these public highways[.]" Id.

Roosevelt Highway eventually gets renamed PCH and designated California Highway 1. And Malibuans have been trying to keep outsiders out ever since.

Interested in the briefing? Here you go:

• Opening Brief of Plaintiff in Error
• Brief of Defendant in Error
• Reply Brief of Plaintiffs in Error

More on the case:

• Martha Groves, "One ranch owner nearly stopped PCH from running through Malibu," Los Angeles Times (July 13, 2015) ("If Malibu ranch owner May Rindge had prevailed against public sentiment and the U.S. Supreme Court a century or so ago, Pacific Coast Highway might never have been built through the coastal enclave of Malibu. She fought with a fury in the early 1900s to maintain Malibu’s peaceful qualities and keep the state from seizing her ranchland for the road through eminent domain.").

• Hadley Meares, "How Malibu Grew," Curbed Los Angeles (Nov. 21, 2018) ("By 1918, the feud had gotten out of hand. Her chauffeur and a ranch hand were even involved in a gunfight with squatters, and there were attempts to capture May herself. But all of May’s lawsuits, injunctions, and walls could not stop the coming of the age of the freeway. In 1923, the U.S. Supreme Court agreed that the government had the right to build a highway through the Rindge property. May had lost tens of thousands of dollars, all for naught.").

Think about that next time you take the drive.

Rindge Co. v. County of Los Angeles, 262 U.S. 700 (June 11, 1923)

Upcoming Event: "The History [That Doesn't Suck] of Eminent Domain" (Wed, June 7, 5pm ET - Free!)

Mark your calendars to join us on Wednesday, June 7, 2023 at 5pm Eastern Time, as the Eminent & Right of Way Club welcomes Professor Greg Jackson, host of the History That Doesn't Suck Podcast.

We're going to have a discussion about the history of eminent domain, what zoning looked like in the 19th Century, and if the Founders planned for the infrastructure we have today.

RSVP for this Lounge Event on the App (register for the (free) Clubhouse App here).

What's this "Clubhouse" thing, you ask? More here on that. Come, join us!

New Takings Cert Petition (Ours): Can Govt Thwart Federal Court Regulatory Takings Claims By Seeking Abstention In Favor Of State Courts?

Here's the latest in a case we've been following since before it became one of ours.

In Gearing v. City of Half Moon Bay, No. 21-16688 (Dec. 8, 2022), the Ninth Circuit upheld the district court's dismissal of a regulatory takings case, holding that federal courts should abstain from considering regulatory takings cases in favor of pending state court eminent domain actions, even when the condemnor instituted the state court action after the federal takings lawsuit was filed.

In the time since the Ninth Circuit issued the opinion, our law firm has joined up with our colleague Kristen Renfro who represented the owner in the court of appeals. That's why we won't be commenting further, and instead suggest you read the cert petition we filed today, chiefly authored by Counsel of Record Deborah LaFetra (lately of the Tyler v. Hennepin County takings case). 

Here is the Question Presented:

Thomas and Daniel Gearing are categorically prohibited from building on residentially zoned vacant land that the City of Half Moon Bay prefers as an open space public park. They exercised their choice of forum by filing a lawsuit in federal court under 42 U.S.C. § 1983, alleging a regulatory taking in violation of the Fifth Amendment, and seeking just compensation, costs, and attorneys’ fees. The City responded by filing an eminent domain lawsuit in state court that significantly limits the issues and the Gearings’ remedies. The City then convinced the federal court to abstain from deciding the Gearings’ first-filed federal lawsuit under Railroad Commission of Texas v. Pullman Co., 312 U.S. 496 (1941). As a result of the forthcoming state court decision to which federal courts are bound to give full faith and credit, 28 U.S.C. § 1738, the Gearings will be deprived of full just compensation as well as other recovery authorized by the Civil Rights Act.

The question presented is:

Whether federal courts may deprive takings claimants of their chosen forum by invoking the prudential Pullman abstention doctrine to require them to first litigate their claims in state court.

Stay tuned, as always.

Petition for Writ of Certiorari, Gearing v. City of Half Moon Bay, No. ___ (June 1, 2023)

Tyler Takings Round-Up

Here are what others are saying about Supreme Court's recent ruling in Tyler v. Hennepin County, No. 22-166 (U.S. May 25, 2023), the case in which the Court unanimously held that the county's keeping the excess equity in Ms. Tyler's home over what she owed in property taxes and fees is an uncompensated taking of private property.

• As usual, lawprof Ilya Somin was first out of the gate with "Major Unanimous Supreme Court Victory for Property Rights in Tyler v. Hennepin County" ("While the Supreme Court decision left some notable issues unresolved, it nonetheless sets a significant precedent. Most obviously, the jurisdictions that currently authorize home equity theft—some twelve states and the District of Columbia—will no longer be allowed to do so. In addition, the holding that states cannot just redefine property rights at will has important implications for other property rights issues. It makes it harder for states to avoid takings liability.")
• Amanda Karras has this casenote at the International Municipal Lawyers Association's blog, "Supreme Court Rules Against County in Important Takings Case" ("States and local governments may also look to Nelson as guidance and provide a mechanism for the return of the surplus equity after the sale of the property.  That said, while Nelson remains good law, the question of overruling Nelson was not on the table, and it may be that such a scheme (which would allow a local government to keep surplus equity after the sale of the property if there is a mechanism for the return of the equity to the homeowner) may not be viewed favorably by the current Court and may also conflict with subsequent precedents from the Court.")
• Amy Howe, SCOTUSblog "Justices rule Minnesota county violated takings clause" ("The county pointed to a 1935 state law that strips an owner who falls behind on her property taxes of her interest in the property. Therefore, the county argued, there was no property for the government to take. The court disagreed, stressing that 'property rights cannot be so easily manipulated.' Indeed, Roberts observed, even Minnesota itself 'recognizes that in other contexts a property owner is entitled to the surplus in excess of her debt.' Although the county can sell Tyler’s condo to recover the $15,000 that she owes it, Roberts wrote, it cannot 'use the toehold of the tax debt to confiscate more property than was due.' By keeping the $25,000, Roberts concluded, the county 'effected a ‘classic taking in which the government directly appropriates private property for its own use.''
• Federalist Society webinar with Tony Francois, "Courthouse Steps Decision: Tyler v. Hennepin County, Minnesota" ("Join us as Tony Francois provides a detailed analysis of the decision and discusses the potential implications from this landmark ruling.").

We'll update as merited.

Unanimous SCOTUS: "state law cannot be the only source" Of Property Rights, And "traditional property law principles" As Enforced By The Takings Clause Play A Role

We'll be rendering to unto Caesar, but first we must
decide: classic or creamy?

That was quick: it seems like it was only yesterday -- or maybe more accurately, less than a month ago -- that we were listening in live to the Supreme Court as it heard arguments in Tyler v. Hennepin County, No. 22-166, our law firm's case which argues that Hennepin County's keeping the excess equity in Ms. Tyler's home over what she owed in property taxes and fees is an uncompensated taking of private property and also violates the Excessive Fines Clause.

This morning, the Court issued this unanimous opinion authored by Chief Justice Roberts (again proving he's the Court's "property guy"), in which the Court held that the County's seizing Ms. Tyler's condo to satisfy her tax debt and then "keeping the change" is a taking. It's a relatively short opinion with no dissents and a very short two-Justice concurring opinion laying out some thoughts on the Excessive Fines theory (which the majority avoided, see slip op. at 14 ("Because we find that Tyler has plausibly alleged a taking under the Fifth Amendment, and she agrees that relief under “the Takings Clause would fully remedy [her] harm,” we need not decide whether she has also alleged an excessive fine under the Eighth Amendment.")). 

We're not going to comment too much on this decision, because this is one of our firm's cases. But before we post what others are saying about it, we do have a few highlights to point out.

• As noted in this post's title, perhaps the most significant and interesting part of the opinion is the passage of page 4 and 5, where the Court finally gets to a question that we've been asking for a while: is state law the exclusive source of property law and property rights? True, state law can recognize more interests as property, but it cannot recognize less. Here's what the unanimous Court has to say about the issue:

The Takings Clause does not itself define property. Phillips v. Washington Legal Foundation, 524 U. S. 156, 164  (1998). For that, the Court draws on “existing rules or understandings” about property rights. Ibid. (internal quotation marks omitted). State law is one important source. Ibid.; see also Stop the Beach Renourishment, Inc. v. Florida Dept. of Environmental Protection, 560 U. S. 702, 707 (2010). But state law cannot be the only source. Otherwise, a State could “sidestep the Takings Clause by disavowing traditional property interests” in assets it wishes to appropriate. Phillips, 524 U. S., at 167; see also Webb’s Fabulous Pharmacies, Inc. v. Beckwith, 449 U. S. 155, 164 (1980); Hall v. Meisner, 51 F. 4th 185, 190 (CA6 2022) (Kethledge, J., for the Court) (“[T]he Takings Clause would be a dead letter if a state could simply exclude from its definition of property any interest that the state wished to take.”). So we also look to “traditional property law principles,” plus historical practice and this Court’s precedents. Phillips, 524 U. S., at 165–168; see, e.g., United States v. Causby, 328 U. S. 256, 260–267 (1946); Ruckelshaus v. Monsanto Co., 467 U. S. 986, 1001–1004 (1984).

• Thus, although Minnesota law has statutorily ipse dixited its own property law to define the excess equity as not property, the courts are not bound by the state's view of what constitutes compensable (i.e., Fifth Amendment "private") property, if "[h]istory and precedent say otherwise." Slip op. at 5. The government may have the the power to require you to pay property taxes, and the power to sell your home to exact those taxes if you fail to voluntary pony up, "[b]ut it could not use the toehold of the tax debt to confiscate more property than was due." Slip op. at 6
• OK, Chief, we get that before you ascended to the bench, as an advocate you argued Tahoe Sierra, and that you prevailed in that case. And we dig that you cite it for some good language. See, e.g., slip op. at 6 ("By doing so, it effected a “classic taking in which the government directly appropriates private property for its own use.” Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency, 535 U. S. 302, 324 (2002) (internal quotation marks and alteration omitted). Tyler has stated a claim under the Takings Clause and is entitled to just compensation."). But come on man, you repped the government in that case! Retconning your own work only goes so far and let's just say that Tahoe Sierra isn't the best authority when you need to cite cases for property rights propositions. (But as long as you keep writing good property owner opinions as a judge, we're not going to complain too much.)
• After establishing the principle that state law cannot exclusively define the term "private property" as used in the Fifth Amendment and that history and tradition and what Justice Thurgood Marshall called "core" or "normative" property principles are part of it, the Court took a dive into history "at least as far back as Runnymeade in 1215" and the Magna Carta. Check out pages 6-9, where the opinion concludes that there is a "consensus that a government could not take more property than it was owed[.]"
• Court next rejected the County's argument that the issue was settled in Nelson v. City of New York, 352 U. S. 103 (1956), where the Court rejected a "belated" argument that the city keeping the excess equity was a taking (the owner had, until arguments in the Supreme Court, limited its arguments to due process and equal protection claims). There, unlike the County's procedure here, the taxpayer could have availed himself of a procedure to recover the surplus. But the County has no similar process, and there's "no opportunity for the taxpayer to recover the excess value; once absolute title has transferred to the State, any excess value always remains with the State." Slip op. at 11.
• The Court also rejected the County's "constructive abandonment" argument, which went like this: Ms. Tyler impliedly abandoned her property when she failed to timely pay her property taxes. The Court held no, an owner must do more than neglect to pay her taxes. This isn't akin to situations in which the Court has found abandonment, such as where owners fail to make any use of their property. Here, the "keep the change" statute "gives no weight to the taxpayer's use of the property. Indeed, the delinquent taxpayer can continue to live in her house for years after falling behind in taxes, up until the government sells it." Slip op. at 14.
• Armstrong Batsignal:

The Takings Clause “was designed to bar Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole.” Armstrong, 364 U. S., at 49. A taxpayer who loses her $40,000 house to the State to fulfill a $15,000 tax debt has made a far greater contribution to the public fisc than she owed. The taxpayer must render unto Caesar what is Caesar’s, but no more.

• The Court also made short work of the County's argument that Ms. Tyler lacked standing because "she did not affirmatively 'disclaim the existence of other debts or encumbrances' on her home worth more than the $25,000 surplus." Slip op. at 3. The Court concluded that (a) none of these assertions were in the record, but even if there are such encumbrances, she still plausibly alleges a financial harm because even if the tax sale extinguishes other liens on the property, Ms. Tyler remained personally liable to the other lienor. And "[h]ad Tyler received the surplus from the tax sale, she could have at the very least used it to reduce any such liability." Slip op. at 4.
• We were really wishing for a citation to Barron v. Baltimore, 32 U.S. 243 (1833) as a way of signaling more on the "where does property come from" issue, but were sadly disappointed. Not too much, mind you. Just a bit.

More to come as the analysis and commentary rolls in.

Tyler v. Hennepin County, No. 22-166 (U.S. May 25, 2023)

Mass SJC: Big Dig Can't Squeeze New Easement Into An Old One: Easements Taken By Eminent Domain Are Interpreted Like Every Other Easement

Check out this one from the Massachusetts Supreme Judicial Court, Smiley First, LLC v. Dep't of Transportation, No. SJC-13300 (May 23, 2023). [But first, a disclosure: our law firm filed this amicus brief in support of the property owner.]

Now that that is out of the way, here's the case.

Back in 1991, MassDOT's predecessor-in-interest took an easement by eminent domain for the relocation of Conrail facilities displaced by the infamous Big Dig project. The 1991 takings order described the easement taken:

"In connection with the laying out of the State highway hereinbefore described, it is necessary to relocate portions of railroad rights of way and land is hereby acquired for said relocation as follows:

"Easements are hereby taken in parcels 60-E-RR-1, 60-E-RR-5, and 60-E-RR-6, shown on the plan hereinafter referred to, for the relocation of facilities of the Consolidated Rail Corporation, including all trees and structures located thereon . . . .

Said easements (i) shall be used for railroad purposes only, (ii) shall not be used for the storage of any hazardous materials, hazardous wastes or hazardous substances other than in connection with the extension of Interstate Route 90 or the reconstruction of Interstate Route 93, and (iii) shall be subject to the rights of the owner of the underlying fee as hereinafter provided. . . .

Slip op. at 5.

Flash forward a few decades and MassDOT wants to use that same easement for "construct[ing] a test track and a 6,000 square foot building for newly purchased subway cars." Slip op. at 2. That, in MassDOT's view, is a "railway purpose," and within the scope of the taken easement. But to the property owner (by now, Smiley), this was a new use of the old easement. So, MassDOT, time to think about buying it, or if we're not willing to sell, then another taking along with just compensation provided. But MassDOT didn't go in that direction, it asserted that the new use was included in the existing 1991 easement, so decided you get nothing. See slip op. at 3 ("Based on its contention that the 2018 taking merely confirmed rights that it already held under the 1991 taking, MassDOT refused to pay Smiley any compensation for the 2018 taking, and this litigation ensued.").

The trial court concluded "that easements taken by eminent domain are not to be construed in favor of the freedom of the land" as in the usual case (where the owner of the servient estate retains all uses not inconsistent with the easement), and consequently entered summary judgment for MassDOT, concluding that a test track is within the scope of the easement for "railroad purposes." Slip op. at 9-10. The trial court held that the usual rule, where the intent of the grantor and grantee control, doesn't work for eminent domain, which is not a voluntary transaction and you can't really drill down and figure out the condemnor's intent. Thus, any rules of construction designed to give effect to the intent of the parties are not helpful.

The SJC reversed, and entered summary judgment for the owner. Yes, intent is not relevant, but the other rules of construction still apply. Slip op. at 11. And the big rule in construing easements is that any doubts about whether a use is included in the easement should be resolved in favor of freedom of land from the servitude. In other words, a narrow construction in favor of the owner of the servient estate (Smiley).

With that rule (re)established, the court concluded that the purpose of the 1991 easement wasn't for general railroad purposes, but for "the laying out of the State highway[,]" and more specifically for relocating Conrail. Slip op. at 12. But what about that "railroad purposes" language? That doesn't help because it is too general, and the specific purpose controls over the general; any railroad use had to be within the scope of laying out the highway and relocating Conrail. 

The more recent easement, by contrast, "exceeds the scope of the 1991 taking" because MassDOT can use the land for testing of rail vehicles and related uses. Slip op. at 16-17. Here's how the court phrased it:

Here, whereas the purpose of the 1991 taking was to relocate railroad rights of way and Conrail's facilities, the 2018 taking provides, "[f]or the avoidance of doubt," that it encompasses the 1991 purpose, but that it also includes "all lawful railroad purposes within the Commonwealth." Specifically, the 2018 taking states that it encompasses, "without limitation," testing, calibration, and storage of any type of railroad vehicle, and the associated uses such as parking that are necessary to those primary uses.

The Red Line test track project, which falls within this language, is a new and different project from the original relocation of Conrail's railroad track and facilities. It involves an additional 6,000 square foot building, a different type of railroad car, and a considerably larger portion of the burdened land than did the single track originally constructed by Conrail pursuant to the 1991 easement.

Slip op. at 17-18.

The SJC rejected each of MassDOT's counterarguments, concluding that "[b]ecause the scope of the 2018 easement exceeded the scope of the 1991 easement, it represented an additional taking. Accordingly, Smiley's claim for damages under G.L. c. 79 should not have been dismissed, and, on remand, Smiley is entitled to pursue its claim for damages." Slip op. at 24.

Smiley First, LLC v. Dep't of Transportation, No. SJC-13300 (Mass. May 23, 2023)

Iowa Trial Court: Pipeline Precondemnation Entry Statute Is Facially Unconstitutional

When a court's opinion (even a trial court's opinion) starts out with the epigram, "'Freedom and property rights are inseparable, you cannot have one without the other.'- George Washington," you know you are in for a ride.

So begins the opinion of the Clay County, Iowa District Court in Navigator Heartland, LLC v. Koenig, No. EQCV034863 (May 3, 2023). The issue was the validity under the Iowa Constitution of Iowa's precondemnation entry statute, which allows pipeline condemnors to enter property for land surveys:

After the informational meeting or after the filing of a petition if no informational meeting is required, a pipeline company may enter upon private land for the purpose of surveying and examining the land to determine direction or depth of pipelines by giving ten days’ written notice by restricted certified mail to the landowner as defined in section 479B.4 and to any person residing on or in possession of the land. The entry for land surveys shall not be deemed a trespass and may be aided by injunction. The pipeline company shall pay the actual damages caused by the entry, survey, and examination.

Navigator wanted to enter Koenig's land to conduct surveys in anticipation of condemnation. Koenig objected, and the court held a trial at which it heard testimony about the scope of the proposed entries. One witness:

identified the four types of surveys typically performed on each affected property; these include a civil survey, a biological/environmental survey, a cultural survey, and a geotechnical survey. Each of the four surveys are completed at separate times, thus at a minimum, surveyors would expect to enter onto the private land on at least four separate occasions. She additionally testified that Navigator typically hires third parties to perform each of the surveys. She conceded that her lay understanding of the Iowa Code §479B.15 does not limit the duration or number of times surveys may occur so long as they are confined to surveying purpose for the proposed pipeline path.

Opn. at 3.

The property owner argued that the statute effects a facial taking by requiring owners to open their properties to third parties without compensation: "Koenig asserts that Iowa Code §479B.15 strips landowners of their right to exclude by statutorily allowing pipeline companies to come onto private land to perform certain surveying operations, which amounts to a per se taking. Additionally, Koenig argues that the statute does not provide for just compensation in accordance with Article I section 18 of the Iowa Constitution." Opn. at 6-7.

The court noted that until recently, Penn Central "had been the leading approach to determine whether a regulatory use restriction amounts to a taking." Opn. at 8. But Cedar Point changed that, according to the court: if there's a physical invasion, that's a taking, after which the question becomes whether the government has provided compensation. 

But, the court also noted, "Cedar Point did not open the door for all government-authorized physical invasions to amount to takings[,]" if those invasions are "consistent with longstanding background restrictions on property rights." Opn. at 9.

Thus, the critical question is: are these private pipeline precondemnation invasions consistent with those background principles? The court held no, they are not. "The Court observes important similarities between the facts of this case and Cedar Point."

Like the private labor organizations in Cedar Point, Navigator presently seeks to repeatedly enter onto privately owned land despite a lack of consent from the landowner. While true the California statute in Cedar Point allowed labor organizations to enter on the property for up to 120 days per year three hours per day whereas Navigator is seeking to enter for no more than four days (ranging from thirty minutes to eight hours at a time); the Court is leery to enter into too much detailed comparison of the intrusive nature of the invasion because, as Cedar Point makes clear, the frequency and duration of the invasion is no longer relevant. Id. at 2074 (“the fact that a right to take access is exercised only from time to time does not make it any less a physical taking” and “the duration of an appropriation—just like the size of an appropriation—bears only on the amount of compensation.”)

Opn. at 10.

The court concluded that although survey access may be a "traditional privilege," the Supreme Court's lack of reference to such access or utility easements "leads to a conclusion." Opn. at 11. And that conclusion? Survey access is more like the union easement in Cedar Point than the background access exceptions also noted in the opinion.

In looking to the language in Iowa Code §479B.15, the Court concludes that the standards established in Cedar Point are applicable. The statute is not a use restriction which can be analyzed under the Penn Central “Takings Test”. Rather, because the statute grants pipeline companies right to physically enter and occupy privately owned land, the statute appropriates a right to invade the landowner’s property. When such appropriation occurs, the Court follows the traditional rule “Because the government appropriated a right to invade, compensation is due.” Cedar Point, 141 S. Ct. at 2076.

The Court finds that Iowa Code section 479B.15 appropriates Koenig’s right to exclude others from his privately owned land. Without Iowa Code §479B.15, Koenig would have had the right under Iowa law to exclude the pipeline company and any third-party surveyors from hi property. Because the statute amounts to a government authorized physical invasion, and additionally appropriates Koenig’s right to exclude, the Court is convinced Iowa Code §479B.15 effects a per se taking for which just compensation is required. 

Opn. at 12.

The court also concluded that the statute does not provide just compensation. Yes, the statute requires the pipeline company entering private property to pay "actual damages" caused by the invasion or occupation, but does not, on its face, require just compensation for the invasion if there's no physical damage resulting:

However, if no physical damage is done to the private property, does Iowa Code §479B.15 still require compensation to the landowner for the government-authorized taking? §479B.15 says no and any other interpretation of such is unreasonable. At the end of trial Navigator argued that the distinction between “actual damages” and per se damage is a distinction without a difference. Navigator’s counsel argued that Koenig’s “actual damage” is any damage that he may claim. The Court does not find such interpretation to be reasonable because the damage has to be “actual” and cannot be subjective. It has to be reasonably ascertainable. The statute requires such.

Opn. at 16 (footnote omitted).

A property owner may not be able to easily ascertain the extent of the economic damages caused by a precondemnation survey entry. The damages caused may be pretty subjective, and similar to pain and suffering in tort law. "Therefore, a clear and common sense reading of Iowa Code §479B.15 is that, if by going onto private property to survey, a pipeline company causes actual damage to the property, compensation is required to cover the damages. However, because non actual damages resulting from the government authorized taking are subjective and not readily ascertainable, the Court cannot interpret the meaning of 'actual damages' within the statute to cover a per se taking in and of itself. To find otherwise would deprive 'actual damages' of all its ordinary meaning." Opn. at 17.

Finally, the court concluded that the usual presumption of constitutionality does not save the statute, because there's no reasonable alternative construction the court might give it.

All we can say is wow.

Trial Ruling on Defendant's Counterclaim re: Constitutionality of Iowa Code § 479B.15, Navigator Heartland...

Condemnation 101: Preparing & Presenting an Eminent Domain Case Webcast (May 18, 2023)

Missed out on the 2023 ALI-CLE Eminent Domain and Land Valuation Litigation Conference back in February in Austin, and the legendary "Condemnation 101" track?

Well, here's your chance to get the knowledge. On May 18, 2023, ALI-CLE is going live with a rebroadcast of that program, including real-time Q & A with the program Planning Co-Chairs.

As we've noted before, the Condemnation 101 program is a great "basic training" program for lawyers new to the eminent domain and takings practice. But it is also a fantastic refresher course for those experienced dirt lawyers looking to brush up on the fundamentals.

CLE credits are available, of course. And unlike the in-person program back in February, there's no danger of ice storm delays!

More about the program here, including registration information, fees, the agenda, and the faculty. And, just because you are a reader of this blog, you can get an additional $50 off the registration -- just enter COND50 in the box during checkout. Or, alternatively, bring a friend and get the group discount an even better deal.

We missed out on most of the Condemnation 101 program back in February because we had our own chairing duties in the room next door. So we may be in the audience along side of you on May 18 for this very popular and useful program.

See you there.

SCOTUS GVR's Pipeline Cert Petition On Delegation Of Eminent Domain To Private Parties

In this Order, the Supreme Court granted this cert petition which presents these questions:

Whether a facial challenge to Congress’s delegation of eminent domain power to private parties is properly filed in district court, as this Court held in PennEast Pipeline Co. v. New Jersey, 141 S. Ct. 2244 (2021), or with FERC, which has admitted it has no jurisdiction to adjudicate the constitutionality of this delegation.

Whether a facial challenge to Congress’s overly broad delegation of legislative power to FERC is properly filed in district court or with FERC, which has admitted it has no jurisdiction to adjudicate the constitutionality of this delegation.

Whether a facial challenge to Congress’s delegation of eminent domain power to FERC is properly filed in district court or with FERC, which has admitted it has no jurisdiction to adjudicate the constitutionality of this delegation.

As the Order notes:

Petition GRANTED. Judgment VACATED and case REMANDED for further consideration in light of Axon Enterprise, Inc. v. FTC, 598 U. S. ___ (2023).

So what is this Axon case the Court refers to? You might want to read some of the amicus briefs filed in the case to find out. All of them are posted on the case's docket here. Or read this summary from the Federalist Society, "Supreme Court Holds That Federal District Courts Have Jurisdiction To Hear Structural Challenges To FTC And SEC."

Or better yet, we refer you to our colleague Michael Realbuto's post on the McKirdy Riskin Olson DellaPelle Condemnation Blog, "SCOTUS Sends Pipeline Eminent Domain Case Back to the District Court." Our read of Axon is that you don't have to ask an agency to pass on the constitutionality of its own actions or the scope of its authority. As Michael writes:

On April 14, 2023, the Court released a unanimous 9-0 decision in Axon holding the district court retains § 1331 jurisdiction over structural separation-of powers challenges because that type of separation-of-powers injury cannot be remedied by the agency itself or the court of appeals. The Court’s April 2023 summary decision in the MVP matter was clearly guided by the holding in Axon and proves to be a victory for the landowners who will now have their day in Court. Notwithstanding the District Court’s ability to hear the MVP case, there are some cases on the books that the landowners must overcome. For example, in Penneast Pipeline Co. v. New Jersey, 141 S. Ct. 2244 (2021), the Supreme Court expressly held that the Federal Government can constitutionally confer on pipeline companies the authority to condemn necessary rights-of-way in which a State has an interest. While it’s going to be an uphill battle, we are tuned in to see how this fight shapes out.

What do you think will happen on remand? We think we know.

Petition for Writ of Certiorari, Bohon v. Fed. Energy Reg. Comm'n, No. 22-256 (U.S. Sep. 15, 2022)

Tyler SCOTUS Takings Argument Round-Up

Our Pacific Legal Foundation Property Rights Litigation Tyler team,
and Counsel of Record Christina Martin (second from right)

Here are your links to the buzz about Tyler v. Hennepin County, No. 22-166, our law firm's case which argues that Hennepin County's seizure of Ms. Tyler's condo and then keeping the excess equity over what she owed in property taxes and fees, is an uncompensated taking of private property, and also violates the Excessive Fines Clause.

• Transcript and audio recording of the oral arguments.
• Kelsey Reichmann, Grandma who lost her house to debt finds high court sympathy (Courthouse News Service)
• Lawprof Ilya Somin, Unusual Cross-Ideological Agreement in Tyler v. Hennepin County (Volokh Conspiracy)
• Steve Osunsami, Laura Romero, Dr. Mark Abdelmalek, Doug Vollmayer, Supreme Court takes on what critics call predatory tax foreclosure practice (Good Morning America)
• Amy Howe, Justices appear likely to side with homeowner in foreclosure dispute (SCOTUSblog)
• Mark Sherman, Supreme Court seems to favor woman who got $0 in condo sale (Associated Press)

More on the way. Stay tuned.

Today's Takings SCOTUS Oral Argument Transcript And Recording: Tyler v. Hennepin County

Coffee is for closers.
(Yes, we were up and at the desk at 4 a.m. local time
to listen live. We just needed a direct injection of coffee.)

Here is the transcript, and the audio recording of today's U.S. Supreme Court arguments in Tyler v. Hennepin County, No. 22-166, our law firm's case which argues that Hennepin County's keeping the excess equity in Ms. Tyler's home over what she owed in property taxes and fees, is an uncompensated taking of private property, and also violates the Excessive Fines Clause.

We will bring you the analysis of the arguments and the pundits' predictions in a subsequent posts. But for the time being here these are in case you missed out listening live. Stay tuned.

Transcript, Tyler v. Hennepin County, No. 22-166 (U.S. Apr. 26, 2023)

Hawaii Supreme Court To Hear Major Severance Damages Appeal In Rail Takings Cases

Update: the court has rescheduled the arguments to June 22, 2023, at 10 a.m.

The Hawaii Supreme Court has scheduled oral arguments in an important eminent domain case about severance damages for the Honolulu Rail Authority's condemnation of land in Honolulu for one of its stations (assuming, of course, that the under-construction rail line actually gets past downtown, or simply stops where its historic predecessor, the Oahu Railway terminated more than a century ago).

Here's the details and the court's description of the issues (scroll to the bottom), from the Hawaii Judiciary's web site.

[Barista's note: we won't be commenting on this one in detail, because this was our case when we were in private practice.]

Thursday May 18, 2023 – 10 a.m.

NOS.

SCAP-22-0000335 (Consolidated with Nos. SCAP-22-0000336,
SCAP-22-0000337, SCAP-22-0000338, SCAP-22-0000340,
SCAP-22-0000341, SCAP-22-0000343 SCAP-22-0000344,
SCAP-22-0000345, AND SCAP-22-0000352)

SCAP-22-0000335, SCAP-22-0000336, SCAP-22-0000337,
SCAP-22-0000340, SCAP-22-0000341, SCAP-22-0000343,
SCAP-22-0000344, AND SCAP-22-0000345

CITY AND COUNTY OF HONOLULU, acting by and through the HONOLULU AUTHORITY FOR RAPID TRANSPORTATION, Plaintiff/
Counterclaim Defendant-Appellee/Cross-Appellant, vs. VICTORIA WARD, LIMITED, a Delaware Corporation; et al., Defendants/Counterclaim Plaintiffs-Appellants/Cross-Appellees, and 1240 ALA MOANA, LLC, a Delaware limited liability company; et al., Defendants-Appellants/ Cross-Appellees, and WELLS FARGO BANK, NATIONAL ASSOCIATION, a national banking association; et al., Defendants-Appellees/Cross-Appellees.

SCAP-22-0000338 CITY AND COUNTY OF HONOLULU, acting by and through the HONOLULU AUTHORITY FOR RAPID TRANSPORTATION, Plaintiff/Counterclaim Defendant-Appellee/Cross-Appellant, vs. VICTORIA WARD, LIMITED, a Delaware Corporation; et al., Defendants/Counterclaim Plaintiffs-Appellants/Cross-Appellees, and 1240 ALA MOANA, LLC, a Delaware limited liability company; et al., Defendants-Appellants/ Cross-Appellees, and WELLS FARGO BANK, NATIONAL ASSOCIATION, a national banking association; et al., Defendants-Appellees/Cross-Appellees.

SCAP-22-0000352 CITY AND COUNTY OF HONOLULU, acting by and through the HONOLULU AUTHORITY FOR RAPID TRANSPORTATION, Plaintiff/Counterclaim Defendant-Appellant, vs. VICTORIA WARD, LIMITED, a Delaware Corporation; et al., Defendants/ Counterclaim Plaintiffs-Appellees, and 1240 ALA MOANA, LLC, a Delaware limited liability company; et al., Defendants-Appellees, and WELLS FARGO BANK, NATIONAL ASSOCIATION, a national banking association; et al., Defendants-Appellees.

The above-captioned cases have been set for argument on the merits at:

Supreme Court Courtroom
Aliʻiōlani Hale, 2nd Floor
417 South King Street
Honolulu, HI 96813

The oral argument will also be livestreamed for public viewing via the Judiciary’s YouTube channel at YouTube.com/hawaiicourts.

Attorneys for City and County of Honolulu, acting by and through the Honolulu Authority for Rapid Transportation:

Terence J. O’Toole, Sharon V. Lovejoy, and Lindsay E. Orman, of Starn O’Toole Marcus & Fisher; Paul S. Aoki, and Rozelle A. Agag, Deputies Corporation Counsel

Attorneys for Victoria Ward, Limited, et al.:

Mark M. Murakami, Gregory W. Kugle, Nicholas K. Ernst, and Clinton K. Hamada of Damon Key Leong Kupchak Hastert

NOTE: Order Granting Application for Transfer, filed 10/13/22.

NOTE: Certificate of Recusal, by Associate Justice Paula A. Nakayama, filed 4/19/23.

NOTE: Order assigning Chief Judge of the Circuit Court of the First Circuit, R. Mark Browning due to recusal and Circuit Court of the First Circuit, Judge James S. Kawashima due to a vacancy, filed 4/19/23.

COURT: Recktenwald, C.J., McKenna, and Eddins, JJ., and Chief Circuit Judge Browning, in place of Nakayama, J., recused, and Circuit Judge Kawashima assigned by reason of vacancy

Brief Description:

These interlocutory appeals arise out of a condemnation action filed in 2018 by HART against Victoria Ward to take several acres of Victoria Ward’s mixed-use development community located in the Kakaʻako neighborhood of Honolulu (Ward Village). The purpose of HART’s taking was to construct a segment of railway and the Kakaʻako Station within Ward Village.

A number of the appeals at issue concern Victoria Ward’s claims for severance damages. The Hawaiʻi Community Development Authority (HCDA) issued Victoria Ward a Master Plan Permit in 2009. The Master Plan Permit states, in part: “a more detailed transit route and station location shall be addressed and incorporated.” The parties disagree as to whether this language in the Master Plan Permit, together with Victoria Ward’s conduct, preclude Victoria Ward from recovering severance damages for impacts to non-taken property.

The circuit court issued a number of summary judgment orders precluding Victoria Ward from seeking severance damages. The circuit court also ruled on several related matters, specifying that “blight of summons” interest accrual would be paused during the pendency of the interlocutory appeals, and that Victoria Ward may not recover for loss of a luxury tower that allegedly could have been built on the site of the Kakaʻako station, for relocation of units from that tower to less valuable locations, for severance damages to property stipulated to be distinct from those where condemnations took place, or for replacing lost parking if replacement costs exceed loss in value. HART appeals from other circuit court rulings, including those specifying that some of Victoria Ward’s damages may not be offset by certain alleged “special benefits” flowing from the rail project.

We granted transfer and consolidated HART and Victoria Ward’s appeals for all purposes including oral argument and disposition.

The arguments will be live-streamed if you cannot make it in person to the court.

Condemnation 101 (2023), Redux

Missed out on the 2023 ALI-CLE Eminent Domain and Land Valuation Litigation Conference back in February in Austin, and the legendary "Condemnation 101" track?

Well, here's your chance to get the knowledge. On May 18, 2023, ALI-CLE is going live with a rebroadcast of that program, including real-time Q & A with the program Planning Co-Chairs.

As we've noted before, the Condemnation 101 program is a great "basic training" program for lawyers new to the eminent domain and takings practice. But it is also a fantastic refresher course for those experienced dirt lawyers looking to brush up on the fundamentals.

CLE credits are available, of course. And unlike the in-person program back in February, there's no danger of ice storm delays!

More about the program here, including registration information, fees, the agenda, and the faculty. And, just because you are a reader of this blog, you can get an additional $50 off the registration -- just enter COND50 in the box during checkout. Or, alternatively, bring a friend and get the group discount an even better deal.

We missed out on most of the Condemnation 101 program back in February because we had our own Chairing duties in the room next door. So we may be in the audience along side of you on May 18 for this very popular and useful program.

See you there.

Links And Materials From The 22d Annual Texas Eminent Domain Conference

Good crowd.

Here are the cases and other materials we spoke about on Friday at the 22d Annual Texas Eminent Domain Conference, in Austin. A big thank you to the Planning Chairs and to our friends at CLE International for the speaking invite.

• Sackett v. EPA (SCOTUS and WOTUS)
• Wilkins v. United States (Federal Quiet Title statute of limitations)
• Tyler v. Hennepin County (Takings, Excessive Fines - Home Equity Theft)
• Eychaner - the near-miss on revisiting Kelo
• Louisiana's successful (!) necessity challenge
• Self-executing Just Compensation: First Circuit (it is self-executing) vs Ninth Circuit (it isn't); see also Devillier v. Texas (pending)
• Property in the non-takings context: K-9 putting his paws on car is a "search" because...trespass to chattels

The other cases discussed are in your materials!

The nearby Caldwell County Courthouse. A classic.

Why did no one tell me that Jabba's Palace is in Austin?

Join Us At The 22d Annual Texas Eminent Domain Conference, April 13-14, Austin

If you are in the Austin area (or anywhere in Texas for that matter), please consider joining us April 13 and 14, 2023 for the 22d Annual Texas Eminent Domain Conference.

Two days of great programming and talking shop, plus a chance to connect and re-connect with friends and colleagues. And, of course, all the things Austin has to offer. Yes were were there not that long ago, but come on...Austin is a great conference venue, right?

We're speaking about "National Eminent Domain and Takings Trends," and the balance of the program is pretty darn good also (see here or below for the full agenda).

Registration ongoing, but space is filling up fast so don't miss out.

See you there.

Agenda & Program, 22d Annual Texas Eminent Domain Conference (CLE Int'l), Austin, Apr. 13-14, 2023)

Indiana App: This House Is "Residential Property" Qualifying It For The Statutory 150% FMV Enhancement

As part of the nationwide reaction to Kelo v. New London, Indiana adopted a statute that in some cases requires the condemnor to compensate property owners at not just fair market value, but at 150% of FMV.

As far as we can tell, the Indiana Court of Appeals' opinion in Guzzo v. Town of St. John, No. 21A-PL-2213 (Jan. 19, 2023) is the first appellate case applying that statute, or any similar law. Read on.

The statute at issue, Ind. Code § 32-24-4.5-8, sets compensation for the taking of "residential property" at 1.5x the fair market value:

Sec. 8. (a) Notwithstanding IC 32-24-1, a condemnor that acquires a parcel of real property through the exercise of eminent domain under this chapter shall compensate the owner of the parcel as follows:

....

(2) Subject to subsection (b), for residential property:

(A) payment to the owner equal to one hundred fifty percent (150%) of the fair market value of the parcel as determined under IC 32-24-1;

(The limitation noted in subsection (b) deals with the effective date of the statute after the legislature altered the text of the original statute which required the owner to have occupied the taken property.)

The court noted the issue was whether "the Guzzos' property met the definition of residential property." Slip op. at 18. The statute defines "residential property" as "real property that consists of: (1) a single[-]family dwelling that is not owned for the purpose of resale, rental, or leasing in the ordinary course of the owner’s business; and (2) the land on which the dwelling is located.” Id. The trial court concluded no, relying on a statement in the Fiscal Impact Statement that the owners had not used the house for personal use. The Court of Appeals saw the issue much more simply:

We agree with the Guzzos that the trial court erred by determining that INDIANA CODE § 32-24-4.5-6.2 was ambiguous, by relying on the Fiscal Impact Statement, and by denying the Guzzos’ request for the Town to compensate the Guzzos at the statutory rate of 150% of the fair market value of the Property as residential property. When entering its order, the trial court ignored the plain language of INDIANA CODE § 32-24-4.5-6.2, which specifically provides that residential property means “real property that consists” of “a single[-]family dwelling that is not owned for purposes of resale, rental, or leasing” and “the land on which the dwelling is located.” When interpreting this statute, we must be “mindful of both what it does say and what it does not say.” City of Lawrence, 68 N.E.3d at 585. The statute does not define residential property by stating that the property must be owned for personal use or that the owner must occupy the property as a residence. Here, the Property contained a single-family dwelling. Indeed, as the trial court determined, the Property contained a structure that had been “the family’s home.” (App. Vol. 2 at 49). Moreover, it is undisputed that it was not owned for purposes of resale, rental, or leasing. However, instead of applying the plain language of the statute, the trial court improperly relied on the Fiscal Impact Statement and injected a personal use requirement into the definition of residential property.

Slip op. at 21.

The court rejected the argument that use of the word "dwelling" implies some kind of habitability, because in a zoning case, the Indiana Supreme Court determined that, absent further definition by the legislature, the common meaning of "dwelling" means a place where people can live, and does not include any requirement of that building being actually habitable. A single-family home like the Guzzo property, is a "dwelling."

Because the Guzzos’ real property consisted of property containing a single-family dwelling that was not owned for purposes of resale, rental, or leasing, we conclude that the trial court erred by denying the Guzzos’ request for the Town to compensate the Guzzos at the statutory rate of 150% of the fair market value of the Property as residential property under INDIANA CODE § 32-24-4.5-8(a)(2).

Slip op. at 22.

One dissent, so this one may be going further.

And yes, this case involves a statutory right, not baseline constitutional principles. But still, a nice win.

Read more from the lawyers who rep the property owner here.

Guzzo v. Town of St John, No. 21A-PL-2213 (Ind. Ct. App. Jan. 19, 2023)

IRWA's Summary Of Major Eminent Domain Cases & Legislation (June-Dec 2022)

The International Right of Way Association's Real Estate Law Committee produces twice-a-year reports "which contain summaries of eminent domain decisions and legislation within the United States."

And what is really nice is that they make the report available.

Here's the latest.

We're posting it here because we're one of the co-authors. Hat tip to our co-authors Brad Kuhn, Jillian Friess Leivas, and Ajay Gajaria.

The report is short, and doesn't contain a lot of fluff. Just what you wanted.