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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.

La Cour suprême du Canada Considering Effect Of "The Scheme" On Takings And Compensation

"Good morning, Justices"

You know that from time to time -- mostly thanks to our friend and colleague Shane Rayman and his firm -- we cover property goings-on north of the border when a good property rights case comes before the Supreme Court of Canada (see here and here for past examples).

Well, here's another one, this time involving "de facto [or constructive] expropriation" (or, as we call it, "regulatory takings"), where the question before the Court is how compensation is calculated after it was determined that the application of very restrictive zoning to otherwise developable property was is deemed a taking. Must valuation include or exclude the effects of the challenged regulation?

The oral arguments in the case were held last week (click here to watch a recording [English or French, your pick]).

Applying what in Canada is known as the "Pointe Gourde principle" -- the idea in expropriation valuation that the effects of "the scheme" should not influence the calculation of compensation (what we in the U.S. call "project influence" or "scope of the project" rule) -- the advocates had an in-depth discussion with the Justices.

As the Court's website summarizes the case:

In 1991, Newfoundland and Labrador reorganized its northeast Avalon municipalities, expanding St. John’s boundaries and triggering a new planning process for St. John’s. The Lynch property and others were zoned as “watershed” because they fall within the Broad Cove River Watershed, which feeds St. John’s municipal water supply. In 2011, the Lynches asked the City what sort of residential, agricultural, forestry or public utility uses the property could be put to. They were informed verbally that no development would be permitted. They then applied to develop a ten-lot residential subdivision. In a letter dated February 1, 2013, the City Manager rejected their application as being contrary to ss. 104 and 106 of the City of St. John’s Act and the development regulations which established the watershed zoning.

The municipal water supply had been subject to statutory protection through limits on development since before the Crown Grant in 1917. In 1959, the City of St. John’s Act was amended to add the Broad Cove Watershed to the area within St. John’s control, even though it was not within the city itself. As a result, the Lynch property was subject to St. John’s pollution control and its powers of expropriation, and its use and development were restricted. Residential building was not expressly prohibited until 1964, when St. John’s amended the City of St. John’s Act to prohibit the erection of most buildings in the controlled area unless they were associated with existing private family dwellings. In 1978, these restrictions were softened to allow the City Manager to grant permission to build on the land. In 1992, St. John’s boundaries were expanded to include the Lynch property, so St. John’s general land use zoning applied to the property. The watershed zoning came into effect in 1994, and the resulting management plan, which included keeping St. John’s watersheds “as pristine as possible”, was adopted in 1996.

The Newfoundland and Labrador Court of Appeal held that the City Manager’s decision to prevent any development in any manner, set out in the February 1, 2013, letter, constituted constructive expropriation: Lynch v. St. John’s (City), 2016 NLCA 35, at paras. 66-67 (“Expropriation Decision”). The Court of Appeal remitted the issue of compensation to the Board of Commissioners of Public Utilities. In the course of determining compensation, the Board referred the following question to the Supreme Court of Newfoundland and Labrador under the Expropriation Act, R.S.N.L. 1990, c. E-19, s. 26(3), by special case:

Whether the Lynches’ compensation should be assessed based on the uses permitted by the existing zoning, which are agriculture, forestry and public utility uses, or whether the existing zoning should be ignored and the value determined as if residential development were permissible.

The applications judge granted compensation for constructive expropriation of property based on existing watershed zoning. The Court of Appeal allowed the appeal in part, ordering that compensation be determined without reference to watershed zoning.

To us, this doesn't seem like that complex a question. Of course you can't solely focus on the value of the property subject to the regulatory restrictions which are being challenged as a taking. If you did, you'd always end up either with a "no taking" or a "little to no compensation" conclusion. Nor do you focus solely on the valuation of the property free of the regulations. Instead, shouldn't the valuation compare the value and uses of the property before the taking (i.e., the property's uses before the regulation), with the property's uses and value after the regulations are imposed? That way, the owner recovers the loss in value caused by the offending regulation. 

While the "scope of the project" rule -- or, as the advocates and the Court call it "the effects of the scheme" -- makes a lot of sense when valuing property in direct expropriations, it makes a lot less sense when the taking is de facto. Why? Because there is no "scheme" or "project" -- at least how we normally think of these things. The reason we exclude the effects of the scheme in direct expropriation is that project influences are contrary to the idea that valuation is based on arm's length transactions, which, by definition, transactions which are part of a project are not.

Much of the difficulties here might be avoided by the Court recognizing that there isn't a 100% alignment between direct expropriations and de facto takings, and that the Pointe Gourde principle may not match up exactly with de facto takings. Regulation, after all, isn't a scheme or project.

We shall continue to follow along with this fascinating case and bring word of the judgment (and reasons for the judgment aka the opinion(s)) when issued.

"The courts don't need Congress's permission to enforce the self-executing constitutional right to just compensation."

"No need to ask, he's a smooth operator..."

Here's the amicus brief we just filed in a case we've (obviously) been paying close attention to.

This is Devillier v. Texas, the case in which the Supreme Court is considering what does the it mean when it describes the Just Compensation Clause as "self-executing?" Do you need statutory authorization in order to bring a takings or just compensation claim, or can you sue directly under the Constitution? Does it matter that Congress has adopted a statute which authorizes damages suits against local governments ("persons"), but has not expressly done so against states qua states?

We say no and our brief explains why.

Note that there's no Eleventh Amendment issue here, because Devillier filed his federal claims in a Texas court, and it was the State of Texas that removed it to federal court (thus forfeiting any 11A claim, because the State chose the federal forum).

We won't go into a lot of detail here, because you can read it yourself (or you can read our post on the cert grant). Here's the Summary of Argument from our brief:

The courts don’t need Congress’s permission to enforce the self-executing constitutional right to just compensation. A civil right is self-executing “if it supplies a sufficient rule by means of which the right given may be enjoyed and protected, or the duty imposed may be enforced.” Davis v. Burke, 179 U.S. 399, 403 (1900). Compensation for a taking is just such a right. The plain text of the Fifth Amendment itself supplies the rule for how the right is protected, and how it is enforced: takings of private property require compensation. This Court has said so—many times. See, e.g., First English Evangelical Lutheran Church of Glendale v. Los Angeles Cnty., 482 U.S. 304, 316 n.9 (1987) (the Just Compensation Clause “of its own force furnish[es] a basis for a court to award money damages against the government.”); Knick, 139 S.Ct. at 2172 (citing First English as holding that a “property owner acquires an irrevocable right to just compensation immediately upon a taking”).

Congress may enforce the Fourteenth Amendment by creating causes of action and remedies. U.S. Const. amend. XIV, § 5 (“The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.”). Because the Fourteenth Amendment’s plain text applies to the states as states, Congress could create a statutory cause of action for deprivations of life, liberty, or property by a state. U.S. Const. amend. XIV, § 1 (“nor shall any State deprive any person of … property, without due process of law”). But Congress need not have done so for Richard Devillier to seek compensation from Texas for a taking, because the Fifth Amendment itself specifies the remedy, and the absence of legislation does not prohibit courts from enforcing the self-executing constitutional right to just compensation.

Statutory authorization may be necessary for other civil rights claimants to sue, but not Just Compensation claimants, because with one possible exception, no right listed in the Bill of Rights other than the right to Just Compensation is self-executing. That Congress created a general civil cause of action for “persons” claiming deprivations of “rights, privileges, or immunities secured by the Constitution and laws”—Civil Rights Act of 1871, 42 U.S.C. § 1983—is of no moment here. For example, Congress has never legislatively established a cause of action for just compensation against the federal government, and owners whose property is alleged to have been taken seek compensation directly under the Constitution. The Tucker Act does not create a cause of action for compensation or money damages; it only assigns jurisdiction over constitutionally based takings claims to the Court of Federal Claims and the Federal Circuit. See 28 U.S.C. § 1491(a)(1) (“The United States Court of Federal Claims shall have jurisdiction to render judgment upon any claim against the United States founded … upon the Constitution”). In federal takings, the self-executing Just Compensation Clause recognizes the right and provides the remedy. Blanchette v. Conn. Gen. Ins. Corps., 419 U.S. 102, 126 (1974). If the lack of a statutory cause of action does not stand in the way of holding the federal government to the Just Compensation Clause’s requirements, it similarly does not stand in the way of the same claim against a state. Our constitutional order cannot countenance neutering a right and remedy expressly recognized by the text of the Constitution, on the grounds that Congress has not acted.

The Fifth Circuit acknowledged Texas’ obligation to comply with the Fifth and Fourteenth Amendment’s plain requirements. But by divorcing liability from the constitutionally mandated remedy, the court below engaged in a clever, but not compelling, Texas two-step. First, the Fifth Circuit acknowledged that states cannot effect uncompensated takings. Yet the court concluded that Congress must affirmatively provide a statutory remedy before property owners may pursue compensation claims against a state—even in the state’s own courts. Petitioners sued Texas in a Texas court, alleging that the state’s deliberate flooding of their land effected a taking requiring compensation under the Fifth and Fourteenth Amendments. Texas eliminated any possible Eleventh Amendment issues that may have been lurking by removing the case to federal court. Lapides v. Bd. of Regents of Univ. Sys. of Ga., 535 U.S. 613, 622–23 (2002); Embury v. King, 361 F.3d 562, 566 (9th Cir. 2004) (“Allowing a State to waive immunity to remove a case to federal court, then ‘unwaive’ it to assert that the federal court could not act, would create a new definition of chutzpah.”) (citation omitted). By requiring that Congress first recognize a cause of action for just compensation, the Fifth Circuit ensured that Devillier’s federal civil rights cannot be enforced in any court.

This Court should reaffirm that the Just Compensation Clause is self-executing and hold that property owners need not rely on a statutory cause of action where compensation is mandated by the Fifth and Fourteenth Amendments. The Constitution itself provides the cause of action, rendering the need for a statute unnecessary.

Our colleagues at the Institute for Justice (who represent the petitioner) filed the merits brief earlier in the week (well worth your time reading it, by the way, and bravo to them for identifying this case and bringing it to the Court's attention).

Special shout-out to our law firm colleagues (and self-executing Just Compensation mavens) Deb La Fetra and Kady Valois for this brief.

Stay tuned here, or follow along on the Court's docket.

Brief Amicus Curiae of Pacific Legal Foundation, Nat. Fed. of Ind. Bus. Small Bus. Legal Center, Inc., and...

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)

Deb La Fetra Guests On Clint Schumacher's Eminent Domain Podcast On Self-Executing Just Compensation

The topic of the "self-executing" nature of Just Compensation is in the news these days, with the Supreme Court's agreeing to review Devillier v. Texas.

But we've been on that issue for quite a while, and in a recent episode of Clint Schumacher's Eminent Domain Podcast (if you are not already subscribed, why not?), our Pacific Legal Foundation colleague Deborah La Fetra joins Clint to discuss the issue, including a recent case we did together involving the intersection of property rights and the federal government's bankruptcy power.

As the program notes note:

Deborah La Fetra of the Pacific Legal Foundation joins us to talk about the case of Financial Oversight and Management Board for Puerto Rico v. Cooperativa de Ahorro y Credito Abraham Rosa, a unique case where the boundaries of just compensation and governmental restructuring collide. Deborah and PLF served as counsel for several of the unpaid property owners.

Additionally, Professor James Stern of William & Mary Law School joins to talk about the Brigham-Kanner Property Rights Conference scheduled for October 26-27 at the campus of the William & Mary Law School.

Check it out.

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!

CA7: When Pleading A Diversity-of-Citizenship State Takings Claim In Federal Court, It Helps To Allege The Plaintiff's Citizenship

A really quick one from the U.S. Court of Appeals for the Seventh Circuit.

In Willow Way, LLC v. Village of Lyons, No. 22-1775 (Oct. 5, 2023), the panel held that the plaintiff/property owner did not sufficiently plead federal diversity of citizenship jurisdiction over his state law takings claim.

After providing notice, the Village demolished Willow's dilapidated house, which the Village deemed a nuisance. Willow instituted a federal court lawsuit, alleging violation of the U.S. Constitution's Due Process Clause, and an Illinois law inverse condemnation claim. Federal subject matter jurisdiction was based on a federal question (due process) and supplemental (Illinois takings claim). The district court dismissed the due process claim, and declined to continue to exercise supplemental jurisdiction over the state law takings claim.

What about diversity of citizenship jurisdiction?, Willow argued at the Seventh Circuit oral argument. Sure, why not, responded the panel. The court "invited Willow Way to propose an amended complaint with the necessary allegations." Slip op. at 3. You know the necessary allegations are the citizenship of the parties, and an amount in controversy.

Willow Way tried: "[i]t tendered such a complaint[.]" Id. But sadly (for it), the amended complaint "is as deficient as the original." Id. 

The sole jurisdictional allegation in the proposed amended complaint reads: “Jurisdiction rests with this Court pursuant to 28 U.S.C. §§1331, 1332(a), 1343 and 1367.” Not one word about Willow Way’s citizenship (or that of the Village) nor any allegation about the amount in controversy. Elsewhere the complaint avers that Willow Way’s sole member is Stonecrest Realty Management, LLC, whose sole member is Jon O. Freeman, a citizen of California. The Village is a citizen of Illinois, see Moor v. Alameda County, 411 U.S. 693 (1973), though the complaint does not allege this. Paragraph 5 of the proposed amended complaint alleges that Willow Way bought the parcel in July 2016 for $111,350, and ¶52 alleges that it was sold at auction on March 23, 2021, for $25,446.90. The difference between these prices is roughly $86,000, which Willow Way believes meets the $75,000 jurisdictional minimum.

The problem with this submission is that a change in price over five years differs from injury caused by demolition of the house. The structure was razed in February 2020, about four years after Willow Way bought the parcel and about a year before it was sold. The Village is not liable for a change in the market price of real estate or a decline in the value of a house while it was standing empty. Cf. Dura Pharmaceuticals, Inc. v. Broudo, 544 U.S. 336 (2005) (distinguishing transaction causation from loss causation). The question is whether the demolition caused loss exceeding $75,000.

Slip op. at 4.

We even made it clear we wanted you to "pay particular attention to the value of the parcel immediately before and after the demolition," noted the court. Id. But no deal: "[y]et Willow Way's supplemental filing and proposed amended complaint do not pay the slightest attention to the before-and-after valuation. Complaints need not be accompanied by expert reports, but their jurisdictional allegations must at least address the right question." Id. 

You can lead a horse to water Your Honors, but you can't make it plead properly.

Willow Way, LLC v. Village of Lyons, No. 22-1775 (7th Cir. Oct. 5, 2023)

Backing Into Williamson County Again - CA6: We Already Said That State Officials Sued Individually For Compensation Have Qualified Immunity

The Sixth Circuit these days. Lots of property and takings-related stuff being decided in that court. See here, here, here, here, here, and here for some examples.

The latest is O'Connor v. Eubanks, No. 22-1780 (Oct. 6, 2023), in which an unsigned panel opinion (with concurrence of Judge Thapar in the result, but not in the reasoning), held that state officials sued in their individual capacities have qualified immunity from takings claims which seek just compensation. But are not similarly immune from procedural due process claims.

Short story: O'Connor was the payee on two checks that were delivered to his property. Apparently he got neither, so the payors turned the checks over to the State of Michigan, which treated them as unclaimed property.

Michigan's unclaimed property statute moves fast. It requires that the State, after first publishing notice, to sell or liquidate the property within 3 years if there's been no claim by an owner. The monies are deposited into the State's general fund, less admin costs. The owner can't then get the actual property back, but has a claim for the proceeds. The statute accounts for interest, "but only if their property accrued interest before the State took custody of it." Slip op. at 3.

O'Conner filed a claim to obtain the proceeds. The State paid him, but did not include interest. He claimed he is entitled to interest, and for the State to keep the interest is a taking requiring just compensation. O'Connor also claims the State did not provide his proper notice.

The Sixth Circuit summarily affirmed the dismissal of the takings claim because state officials sued in their official capacities have qualified immunity. The panel based its decision on recent circuit precedent (see this post for more on that). Here's the entirety of the opinion on that issue:

The Fifth Amendment’s Takings Clause provides that “private property” shall not “be taken for public use, without just compensation.” U.S. Const. amend. V. In his complaint, O’Connor alleges that the officials violated the Takings Clause. But under circuit precedent, Eubanks and Stanton are entitled to qualified immunity on these claims. See Sterling Hotels, LLC v. McKay, 71 F.4th 463, 468 (6th Cir. 2023). Earlier this year in Sterling Hotels, we held that individual liability for takings claims is not “clearly established.” Id. (“[N]o court in this circuit had yet decided whether an officer could be liable for a taking in his individual capacity . . . and at least one case suggested the contrary.”) (citing Vicory v. Walton, 730 F.2d 466, 467 (6th Cir. 1984)). Thus, we granted qualified immunity to an official sued in his individual capacity. Id. Because Eubanks and Stanton are also being sued in their individual capacities for takings claims, they are entitled to qualified immunity under Sterling Hotels.²

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²  O’Connor attempts to distinguish this case from Sterling Hotels, but the latter sets a clear rule: qualified immunity bars individual liability for takings claims under 42 U.S.C. § 1983^.

Slip op. at 4.

O'Connor also raised a takings claim against the State of Michigan itself, but we know where this one headed: that's right, the Eleventh Amendment has been interpreted as prohibiting a state from being sued for money in federal court, unless the state consents or there is no remedy in state court.

Thus, the panel Williamson County-d it, and held that O'Connor could sue Michigan in Michigan's courts under the unclaimed property statute which recognized a claim for unclaimed funds. Thus, "a remedy is available in state court." Slip op. at 7/

By contrast, the Sixth has not previously decided the same issue in a due process claim, so the panel concluded that interest is "property," and that the complaint alleged that O'Connor was provided "no process" at all (an allegation the defendants did not deny (choosing instead to argue O'Connor has no right to process). Thus, the state officials sued in their individual capacities do not have qualified immunity. Slip op. at 6.

On to Judge Thapar's concurring opinion. We suggest you read the entire opinion, which begins on page 8. It's not long. His bottom line: the defendants here "are off the hook for O'Connor's takings claim [because of circuit precedent as noted above]. But in the future, our circuit can and should permit takings claims against officials." Slip op. at 8 (Thapar, concurring).

The concurring opinion focused on the history:

Thus, in the early decades of our republic, lawsuits against officials were a viable remedy for takings. Indeed, because states enjoyed sovereign immunity, suits against officials were among the only takings remedies for most of the nineteenth century.

Slip op. at 11 (Thapar, concurring).

Judge Thapar also recognized that the Catch-22 that property owners who have federal just compensation claims against a state find themselves in does look awfully familiar:

If that doesn’t give us enough reason to reconsider Vicory, its combined impact with DLX should. When a state official takes someone’s property without compensation, two obvious defendants come to mind: the official who committed the taking, and the state. Yet our precedent forecloses suits against either defendant in federal court. Vicory prevents claims against officials. And DLX bars claims against the state in federal court. Skatemore, Inc. v. Whitmer, 40 F.4th 727, 734 (6th Cir. 2022) (citing DLX, 381 F.3d at 526–28). Thus, unless there’s a municipality to sue, plaintiffs must litigate takings claims in state court.

If this rule sounds familiar, that’s because it’s not new. It’s a version of the “state-litigation” rule. More importantly, it’s a rule the Supreme Court deemed “wrong” and “exceptionally ill” just four years ago. See Knick, 139 S. Ct. at 2178. In Knick, the Court rejected the idea that a plaintiff had no remedy in federal court until a state court denied him compensation. Id. at 2179. To hold otherwise, the Court noted, would “relegate[] the Takings Clause to the status of a poor relation among the provisions of the Bill of Rights.” Id. at 2169. Indeed, the Justices have repeatedly recognized that the state-litigation rule is “at odds with the plain text and original meaning of the Takings Clause.” Arrigoni Enterp. v. Town of Durham, 136 S. Ct. 1409, 1409 (2016) (Thomas, J., dissenting from denial of certiorari). So we should stop enforcing it.

To be sure, our precedent doesn’t impose a state-litigation rule in so many words. But together, DLX and Vicory get us pretty close. Unless a municipality is available as a defendant—and as this case shows, that’s not always the case—plaintiffs are stuck litigating in state court. At best, plaintiffs can sue the state in federal court if remedies aren’t available in state court. See Skatemore, 40 F.4th at 734. But Knick expressly rejected that kind of arrangement: “The availability of any particular compensation remedy . . . under state law, cannot infringe or restrict” an owner’s right to pursue a remedy in federal court. 139 S. Ct. at 2171. The Supreme Court shattered the state-litigation rule in Knick. Our circuit shouldn’t piece it back together with Vicory and DLX.

Slip op. at 11-12 (Thapar, concurring).

Stay tuned.

O'Connor v. Eubanks, No. 22-1780 (6th Cir. Oct. 6, 2023) (per curiam)

Supreme Court Property Rights Round-Up

Here's what we're reading about the Supreme Court's property rights docket -- some good, some disappointing -- this day.

• Niina Farah, "Supreme Court flooding case could ripple across the energy sector" (E & E News / Energywire) - About the Devillier case (which we summarized here), in which we were quoted: "The Supreme Court decision to hear the Devillier case comes after a concerted effort in recent years to convince the court to address procedural maneuvers that have made it challenging for property owners to bring their claims to court, said Robert Thomas, director of property rights litigation at the Pacific Legal Foundation. The nonprofit is among the groups that has asked the court to address takings cases and has lent its support for the property owners in Devillier in a 'friend of the court' brief. 'There’s a lot of gamesmanship going on trying to avoid getting to the actual core question — is compensation owed for the take?' Thomas told E&E News. 'You will see local governments, and often the federal government, interposing these procedural defenses to move the chess pieces around.' This case is an example of how court procedure is being used to stymie damage claims from property owners, he added.
• Bob Egelko, "U.S. Supreme Court agrees to decide legality of fees charged to California homebuilders" (San Francisco Chronicle) - About the Sheetz case (which we summarized here), "Christopher Elmendorf, a UC Davis law professor who has written extensively about housing issues, said a ruling in Sheetz’s favor could also allow challenges to 'inclusionary zoning' rules in San Francisco and other communities, which require new developments to contain a certain percentage of affordable-housing units. That might encourage more housing construction in the short run, he said, but it probably wouldn’t have a major impact on the housing shortage in California.
• Suzannah Cavanaugh & Kathrun Brenzel, "Supreme Court didn't save landlords. now what?" (TheRealDeal) - About the Court's denial of one of the three petitions challenging New York's draconian amendments to its rent control law (there are two other cert petitions, both of which were relisted; see here and here).
• Andria Cheng, "Supreme Court Denies Challenge to New York's Rent Regulation Law" (CoStar News) - More on the rent control petition denial.

Let's hope there's more good property rights news from SCOTUS to report soon.

 

Cert Granted #1 - You Don't Need The Government's Permission To Obtain Just Compensation, Do You?

"I'll take 'Words I Like to See' for $800, Alex."

In this Order, the U.S. Supreme Court agreed to hear two important property rights cases (are there any other kind?). Both are cases we've been following -- and indeed are now playing a part in.

The first is Devillier v. Texas (the second is Sheetz v. El Dorado County which we've posted about here).

After what can only be described as a weird Fifth Circuit panel opinion, followed by an even more unusual post-cert petition en banc denial (complete with concurrals and dissentals), the Supreme Court granted the cert petition.

The Question Presented:

In First English Evangelical Lutheran Church v. County of Los Angeles, this Court recognized that the Fifth Amendment’s Takings Clause was “self-executing” and that “[s]tatutory recognition was not necessary” for claims for just compensation because they “are grounded in the Constitution itself[.]” 482 U.S. 304, 315 (1987). Since First English, several state courts of last resort have held that the self-executing nature of the Takings Clause requires them to entertain claims directly under the Clause without the need for statutory authorization. Two federal Circuits, the Fifth and the Ninth, disagree and have held that claims for just compensation are only available if they are legislatively authorized. The question presented is:

May a person whose property is taken without compensation seek redress under the self-executing Takings Clause even if the legislature has not affirmatively provided them with a cause of action?

In short, you don't need an authorizing or jurisdictional statute such as section 1983, do you?.

As the amicus brief which we filed along with our law firm colleagues Deb LaFetra and Kady Valois noted, we think the answer is pretty plain (no, you don't):

Consequently, because neither Congress nor a state legislature need agree to pay compensation, they do not need to adopt an implementing statute—and no waiver of sovereign immunity is necessary—for a plaintiff to invoke the judiciary’s authority to enforce the Constitution and impose a remedy. That is, if Congress repealed Section 1983 tomorrow, the constitutional mandate for just compensation remains. Or as this Court has put it, the Just Compensation Clause “of its own force” “furnish[es] a basis for a court to award money damages against the government[.]” First English Evangelical Lutheran Church of Glendale v. Los Angeles Cnty., 482 U.S. 304, 316 n.9 (1987) (quotation omitted).

Br. at 3.

This case is another in a long string of cases in which the Supreme Court is presented with the opportunity to rein in governments and stop the procedural game-playing. Whether it is telling property owners that they must chase approvals via a certain process only to later claim the process was not an official procedure so was meaningless. Or whether filing a state court eminent domain action so that it can ask the federal court to abstain from considering a landowner's already-filed regulatory takings lawsuit. Or asserting a statute of limitations is "jurisdictional," and therefore it doesn't matter that the government lulled the property owner into not objecting to his property being invaded by the public.The decisions in Knick and Pakdel were very obvious signals that the Court was exhausted (pun intended) with these type of exhausting games.

But the message apparently has only filtered down to the lower courts in fits and starts.

Take for example, the case now before the bench. The property owner took what might be considered an uncontroversial path: it sued the State of Texas for inverse condemnation, seeking just compensation for an allegedly State-caused flooding of the plaintiff's property. Nothing too wild about that. The plaintiff brought suit in the courts of the State of Texas. Again, nothing earth-shattering there, either.

But the State of Texas removed the case to federal court. That should set off your game-playing radar, since you'd think that Texas might prefer its own courts, and its own procedures, and its own jury pools. So why would Texas remove the case to federal court? It appears the only real reason was to make the following procedural gambit.

Once in federal court, Texas sought dismissal of the lawsuit. On what basis you ask? After all, any Eleventh Amendment immunity Texas might have enjoyed was waived when Texas itself invoked federal jurisdiction. But get this: Texas argued that the only way that the property owner could sue Texas for just compensation in federal court is if there is an enabling statute or some statute or authorization for a plaintiff to seek compensation. You need a vehicle, plaintiff. Well, what about the Just Compensation Clause itself, responded the property owner? Doesn't that say that if you take property government, that you must provide compensation?

Not enough argued Texas (and the district court and the Fifth Circuit agreed). You need more. The usual vehicle by which property owners seek just compensation for non-federal takings is section 1983, and here (Texas argued), that vehicle isn't available because it only applies to "persons," but the State of Texas isn't a person as that term is used in the statute. Only local governments and their officers are section 1983 persons. And lacking any other authorization to sue for just compensation for the alleged flood taking, the federal court could not consider the claim.

So where, under the State of Texas' theory, can a property owner go to raise these claims? Beats us. After all, if the owner goes straight to federal court seeking just compensation from a state, the state need only invoke its Eleventh Amendment immunity to get it dismissed. But if the owner goes the state court as the plaintiff did here, all that the state defendant need do is remove the case to federal court to make it magically disappear also. Wow.

Can you really have a right -- especially a right expressly set out in the Constitution itself -- that has no remedy and thus must rely on the government's consent? Not in our view.

And not just ours. It has been a fundamental principle that a "right" means there's a remedy, both on this side of the Atlantic and the other. As Justice Marshall put it in Marbury: ""The government of the United States has been emphatically termed a government of laws, and not of men. It will certainly cease to deserve this high appellation, if the laws furnish no remedy for the violation of a vested legal right." He didn't make that up. Lord Blackstone also noted, "it is a general and indisputable rule, that where there is a legal right, there is also a legal remedy, by suit or action at law, whenever that right is invaded."

So there you go. There it is. Finally. Follow the case here, or on the Court's docket here.

Brief Amicus Curiae of Pacific Legal Foundation in Support of Petitioners, Devillier v. State of Texas, No....

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.

CA6: In Home Equity Theft Taking, Just Compensation Is The Excess The Government Kept, Not The Value Of The Foreclosed Home

Here's a follow up to the issue resolved by the Supreme Court in Tyler v. Hennepin County. Recall that in that case, the core question was whether state law exclusively defined the "property" which Ms. Tyler claimed - the monies remaining after the foreclosure and sale of her home to satisfy her outstanding property tax obligation. The Supreme Court unanimously held no, that a state's law of property is "one important source," but "cannot be the only source" of what constitutes private property for purposes of the U.S. Constitution.

In Freed v. Thomas, No. 21-1248 (Sep. 6, 2023), the U.S. Court of Appeals followed up on that question. The court addressed the measure of just compensation in these home equity takings. To do so, the court focused on what "property" was taken - was it the home, or was it the excess proceeds after foreclosure and sale?

The (former) homeowner prevailed on his takings claim after the county seized his home and sold it at auction to satisfy a $1,100 property tax debt, and then kept the excess. The owner asserted the fair market value of the home was $98,800, and not the $42,000 the county received when it sold the house at public auction. He argued he was entitled as just compensation to the difference between the fair market value of the home, minus the amounts he owed in back taxes, interest, and penalties. Meaning that if the owner was correct, the county owed him $56,800 more than the $40,900 the county asserted. The district court rejected the owner's argument, concluding that just compensation is "the amount of the difference between the foreclosure sale and [his] debt." Slip op. at 3.

The Sixth Circuit agreed. The main issue was what "property" was "taken," although the opinion does not clearly set this out. Check out page 4 and over onto page 5 for the court's brief analysis. The court noted that the "Freed is entitled to the amount of the sale above his debt and no more." Slip op. at 4-5.

Here, the district court held at the motion for summary judgment stage that Freed’s Fifth Amendment rights were violated, and it held that Freed was owed the difference between the foreclosure sale amount and his debt, plus interest. This holding squares with Tyler. Freed asserts though that he is entitled to an additional $56,800 because the purported fair market value of the property was $98,800 and the property sold for only $42,000. However, neither this court nor the Supreme Court has ever held that a plaintiff whose property is foreclosed and sold at a public auction for failure to pay taxes is entitled to recoup the fair market value of the property.

Slip op. at 4.

That is only correct if the "property" here was not the home itself, but the excess proceeds from the sale. That squares with Tyler, where the homeowner asserted that the unconstitutional action was Hennepin County keeping the excess proceeds (the property), and not forcing a sale and selling the property at auction (an action that Ms. Tyler conceded was ok). 

Similarly here, the property was not Freed's home and the unconstitutional action was not seizing it and selling it to satisfy his tax debt. Rather, the unconstitutional action was the county retaining the excess monies after the (otherwise valid) foreclosure and sale. Thus, the "property" is the money, not the home.

Which goes to show you that how you define the "property" allegedly being taken is critical.

Freed v. Thomas, No. 21-1248 (6th Cir. Sep. 6, 2023)

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!

CA1: Settling A Just Compensation Claim Trades Your Property Rights For Contract Rights - Which, Unlike Just Compensation Claims, Can Be Wiped Out In Bankruptcy

Remember that recent First Circuit case which held that just compensation judgements cannot be subject to a governmental bankruptcy plan (cert denied, by the way)? There, the court concluded that "[t]he Fifth Amendment provides that if the government takes private property, it must pay just compensation. Because the prior [bankruptcy] plan proposed by the Board [the bankruptcy trustee] rejected any obligation by the Commonwealth [of Puerto Rico] to pay just compensation, the Title III [bankruptcy] court properly found that the debtor was prohibited by law from carrying out the plan as proposed."

Well, here's the other shoe dropping. In In re Financial Oversight & Management Board for Puerto Rico v. Cooperativa de Ahorro y Credito Abraham Rosa (Suiza Dairy Corp.), No. 22-109 (Aug. 22, 2023), the same court held that a just compensation judgment may not be subject to reduction or discharge in a subsequent bankruptcy, but that a just compensation settlement is.

Suiza Dairy and other milk producers sued the Commonwealth for, among other things, a taking. It alleged that the Commonwealth's Milk Industry Regulation Administration's (yes, there is such a thing), "regulatory structure, which precluded them from making a reasonable profit in their milk business, constituted a confiscation of property in violation of the Takings Clause." Slip op. at 9. The U.S. District Court concluded that the dairies were likely to prevail on the merits, and entered a preliminary injunction.

Eventually, the parties decided to settle. The settlement included an action component (the Administration "would 'promulgate a new regulatory scheme[,]'" slip op. at 10), and a $171 million monetary component (the Administration would pay some cash, and consumers would pay via a new milk surcharge). The settlement described itself as a "final, absolute, binding and unappealable Judgment." Slip op. at 11.

The district court approved the settlement and incorporated it into a consent decree. It was looking pretty good for the dairies. But it was not to last.

Three-and-a-half years later, the Commonwealth sought the protection of bankruptcy to restructure its debts. Suiza Dairy filed a creditor's proof of claim which it described as "NON-DISCHARGEABLE REGULATORY ACCRUAL CLAIM FOR U.S. CONSTITUTION[AL] VIOLATIONS INVOLVING [THE] TAKINGS CLAUSE." Slip op. at 12.

This was unsecured, naturally. And you know what that means. That's right, the resulting reorganization plan did not affirm the amounts in the settlement agreement, but "treat[ed] Suiza's claim as part of Class 53, a group of 'Dairy Producer' claimants that are entitled to receive, in full consideration of any allowed claim, 50% of the claim." Id. (footnote omitted).

The Title III (District) court rejected Suiza's objections. The claims of other property owners with takings claims against the Commonwealth - but who had not settled but who obtained just compensation judgments - were not subject to the bankruptcy plan. The district court concluded the claims should not be treated the same. The takings claims reduced to just compensation judgments could not be reduced or eliminated in bankruptcy, while the takings claims which settled could.

The First Circuit affirmed. "The Plan properly classifies Suiza's claim as a non-takings claim." Slip op. at 14. "Suiza relinquished any takings claim it might have had when it voluntarily entered a settlement agreement in 2013." Slip op. at 14. In other words, the dairy traded its constitutional just compensation right for a contractual right. The former can't be eliminated or reduced in bankruptcy, while the latter may. Settlement agreements "are voluntary surrenders of the right to have one's day in court." Slip op. at 15 (citation omitted).

That this was a settlement of a just compensation claim doesn't change that. Settling the takings claim "extinguished" it. Slip op. at 16. The court rejected Suiza's invitation to dig a bit deeper. Suiza argued that doing so would have revealed this was a just compensation settlement that that made it "special." 

Specifically, Suiza claims that, because of the "self-executing character" of the Fifth Amendment, the right to just compensation arises immediately after a taking has occurred and cannot be disturbed or nullified in any way by the government's actions post-taking.

Slip op. at 17. The court rejected the notion that "self-executing" cases like First English and Knick mean that a just compensation claim can't be voluntarily surrendered. "These cases say nothing about whether property owners, through agreement with the government, can extinguish their own takings claims by settling." Slip op. at 18. "After the settlement, any takings claim that Suiza might have had against the Commonwealth was replaced by a contractual claim." Id. (footnote omitted). Contract claims, unlike just comp claims, "can properly be impaired or discharged in bankruptcy." Id.

The court also rejected the argument that the Board didn't object to Suiza's claim which characterized its claim as a "takings" claim. Check out pages 19-31 for the details of why the court concludes the error, if any, was harmless (mostly grounded in bankruptcy procedure and law, so we're skipping it here).

Bottom line: as we've noted consistently, settling the case is ending the claim. Courts like to enforce these things, even when it means that you get treated like other unsecured creditors if the condemnor seeks to slough off its obligations in bankruptcy.

In re Fin. Oversight & Mgmt Bd. for Puerto Rico v. Cooperativa de Ahorro y Credito Abraham Rosa, No. 22-109...

Lawprof Shelley Ross Saxer Joins Bloomberg Law Podcast On Maui Wildfires And Inverse Condemnation

Here's our colleague and friend, Pepperdine lawprof Shelley Saxer, an expert on inverse condemnation and its use in mass disaster cases, on the use of inverse condemnation as a theory of recovery for the Maui disaster. Here's the description from Bloomberg Law Podcast:

"Shelley Ross Saxer, a law professor at Pepperdine University, discusses the Lahaina fire victims using a legal shortcut to secure compensation from Hawaiian Electric. June Grasso hosts."

Worth a listen.

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)

"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)

New Scholarship: "Property as Service Streams" (Prof. Lee Anne Fennell)

New noteworthy dirt law scholarship, from U. Chicago's Prof. Lee Anne Fennell, "Property as Service Streams." Here's the Abstract:

Property’s job is to help people derive benefits from resources. But often it cannot do this work well. A core problem is an outmoded model of benefit production that treats the individually owned parcel or “thing” as the relevant unit of analysis. In this paper, I argue for a conceptual shift from a property-as-thing-ownership (PATO) paradigm to a property-as-service-streams (PASS) model. I start with the simple point that resources are only valued for the streams of beneficial services that they can provide. Further, owned items can only stream services to their users when combined with other resources and entitlements, many of which are controlled by other parties. Keeping discrete owned assets at center stage misdirects energy towards allocating and protecting things, when we should be examining how to nurture and sustain streams.

The analysis proceeds in three parts. I start with what the PATO to PASS move entails as a conceptual matter. I then examine the role of complements and substitutes in the PASS reformulation. Finally, I consider what PASS enables us to see and perceive about property, with implications for future innovation. This revised understanding of benefit production changes how we view property—how it works, what it needs to do, and what strategies it should employ.

Download here from SSRN.

Eminent domain lawyers certainly are already very familiar with the concept (think income capitalization, discounted cash flow, and the like).

Kansas: No Private Enforcement Of State Relocation Act (And Relocation Isn't Part Of Just Compensation)

Here's a short one from the Kansas Supreme Court. In Kansas Fire and Safety Equipment v. City of Topeka, No. 123,063 (June 30, 2023), the court concluded that the requirements of the Kansas Relocation Act do not give rise to a private right of action, and that relocation costs are not a component of just compensation. 

We're not going to dwell on the decision too much, since it is limited to Kansas law. But here are your highlights:

• "Kansas Fire and Safety Equipment, Hal G. Richardson d/b/a Bueno Foods Brand and Topeka Vinyl Top, and Minuteman Solar Film (the tenants), were forced to relocate when the City of Topeka (the City) bought the real property the tenants leased for their business operations. The tenants alleged that the property was acquired before a condemnation action. And they sued the City to recover relocation expenses in an action filed directly with the district court under the [Eminent Domain Act]." Slip op. at 4.
• "Ultimately, we hold that the district court lacked subject matter jurisdiction over the tenants' petition. The EDPA neither provides a private right of action to recover relocation benefits nor authorizes judicial review of relocation-benefit determinations in eminent-domain appeals. In contrast, the KRA [Kansas Relocation Act] does provide an administrative remedy to vindicate the statutory right to relocation benefits. And once the administrative appeal is completed, the KRA also authorizes district court review of the hearing examiner's ruling. But the tenants' failure to exhaust this administrative remedy deprived the district court of subject matter jurisdiction under the KRA. Slip op. at 4-5.

Kansas Fire and Safety Equip. v. City of Topeka, No. 123,063 (Kan. June 30, 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...

CAFED: Temporary But Recurring Flooding Is A Categorical Taking, Not Penn-Central-Plus

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

In Ideker Farms, Inc. v. United States, No. 21-1949 (June 16, 2023), the U.S. Court of Appeals for the Federal Circuit held that temporary, but recurring government-caused flooding was correctly treated by the Court of Federal Claims as a categorical per se taking, and not under Arkansas Game & Fish's Penn-Central-plus multifactor test. The court also held that the property owners are entitled to just compensation for their lost crops.

The opinion is pretty dense (39 single-spaced pages) so we're not going to provide a blow-by-blow account of the arguments and the court's reasoning. But we will hit some of the highlights:

• The Missouri River floods annually. In the 1990s, the Corps of Engineer and Fish and Wildlife Service "began discussions concerning proposed changes to the River designed to mitigate the environmental impact" of the federal flood control measures built and installed long ago. Eventually (you know where this is going, don't you?), the federal agencies decided to "restor[e] the Missouri River to a more natural state," and abandoned its former policy of prioritizing flood control (2004 Changes).
• Well guess what? "While the period from 2000-2006 was largely a drought, periodic flooding returned in 2007, 2008, 2010, 2011, 2013, and 2014." Slip op. at 7. Property owners on the short end "alleged the 2004 Change caused frequent and severe flooding on Plaintiffs' farms between 2007 and 2014 that amounted to permanent, physical takings under the Fifth Amendment." Id. 
• Eventually, the CFC concluded the government caused the flooding and after a trial held the government liable for taking a permanent flowage easement. Just compensation awarded to the three representative plaintiffs: $7 million. That compensation did not include anything for the loss of the crops destroyed; the CFC held that loss was a consequential damage and not recoverable. Slip op. at 8. Both sides appealed: the government from the liability judgment, the owners from the denial of crop compensation.
• The Federal Circuit first rejected the government's statute of limitations argument (there always seems to be one of those, doesn't there?). The "stabilization" doctrine, which instructs courts to look when the impact of the government's acts or omissions stabilized when the impacts are spread out over time, applies here. See slip op. at 15 ("When a reasonable plaintiff knew or should have known that his claim stabilized does not need to correspond identically with the physical event giving rise to liability."). Thus, a takings claim need not invariably be triggered by the physical event giving rise to liability occurs. When the harm stabilizes is a fact question, and the CFC was not clearly erroneous when it concluded the damage settled in 2014, not earlier. Slip op. at 16.
• On to the merits of the takings claim. The court rejected the government's argument that the flooding must be analyzed under the Penn-Central-plus factors for temporary flooding outlined by the Supreme Court in Arkansas Game & Fish. True, the flooding here did not cover the plaintiffs' properties permanently with water. "The [CFC] accepted based on the parties' stipulation that the flooding in this case is permanent, not temporary, in nature. In short, the Government has not ceased and does not plan to cease flooding Plaintiffs' lands." Slip op. at 19. If it wasn't clear enough from Arkansas Game & Fish that permanent-yet-intermittent flooding is treated as a categorical taking, then the Supreme Court's more-recent Cedar Point opinion makes that "abundantly clear."

Where the government takes a permanent right of access, akin to an easement in gross, even if used only intermittently, it is unquestionably an appropriation of the owner’s right to exclude. It is undisputed that the Corps has permanently burdened Plaintiffs’ land with a right to access their land with flood waters.

Slip op. at 20.

• Here's the holding: "Accordingly, Arkansas Game & Fish II’s multi-factor test does not apply to permanently recurring flooding. Instead, such flooding that foreseeably or intentionally results from government action is a categorical physical taking." Slip op. at 21-22.
• Some clarification: "To be clear, we do not alter or amend our trespass-versus-takings jurisprudence or question the applicability of Arkansas Game & Fish II to temporary floodings. Cedar Point, 141 S. Ct. at 2078 (“[O]ur holding does nothing to efface the distinction between trespass and takings. Isolated physical invasions, not undertaken pursuant to a granted right of access, are properly assessed as individual torts rather than appropriations of a property right.”). Nor do we establish a hardline rule for establishing what is a permanent or recurring flooding. We simply reinforce the principle that the permanent appropriation of a flowage easement is 'clear enough' to be on the side of a per se taking and not a trespass." Slip op. at 22 (some citations omitted).
• The Federal Circuit also upheld the CFC's causation analysis. Check out pages 22-29. We think the critical part of this analysis is the court's rejection of the government's assertion that this case is like the MR-GO case in which the Federal Circuit held that Katrina-related flooding is a tort not a taking. 
• The crop-damage analysis begins at page 31. The court agreed with the property owners that their crops are "property" for which they are entitled to receive just compensation and the loss of the crops aren't (uncompensated) consequential damages. Those damages are damages that flow from the taking and are collateral. After all, the flooding wiped out the crops, and it wasn't just some side effect. Slip op. at 33.
• "Plaintiffs do not claim compensation consequential to the taking of an easement—rather, they seek compensation for the government’s appropriation
  of two distinct property interests." Slip op. at 34.  

Will the federal government try and take this one further up the chain? We'll see.

Ideker Farms, Inc. v. United States, No. 21-1849 (Fed. Cir. 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!

---------------

* 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.

New Just Comp Cert Petition: Is Due Process Property Just Compensation Property?

A new cert petition to check out. We don't need to explain it much, because the petition does a good job of it.

Here's the Question Presented:

New York State redevelopment agency seized, via eminent domain, a large tract of real estate occupied by an existing building in downtown Brooklyn for redevelopment. The building, partially used for office space, included a useable basement of over 13,000 square feet, which had a government-issued certificate of occupancy. During eminent domain proceedings, the lower court ignored the certificate of occupancy’s determination of a usable basement as a valued property interest.

The question presented is:

1. Are government-issued attributes of private property (e.g., certificates of occupancy, building permits, business permits) entitled to constitutional protection under the Fifth Amendment when they are seized under the government’s eminent domain power, just as they are presently entitled to constitutional due process protection under the Fourteenth Amendment?

Follow along on the Court's docket here.

Petition for Writ of Certiorari, Pacific Carlton Dev. Corp. v. New York State Urban Dev. Corp., No. 22-1149...

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)

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.

This Just In - Florida Appeals Court: TDRs, Beekeeping, And Camping Are Not Economically-Beneficial Uses, So Downzoning Is A Lucas Taking

Shands Key, with the City of Marathon in the background

This just in: in Shands v. City of Marathon, No. 3D21-1987 (May 3, 2023), Florida's Third District Court of Appeals held that the city's downzoning the property (Shands Key, shown above in an exhibit from the Key West trial we participated in in June 2021) from General Use (density: one home per acre) to Conservation Offshore Island (one home per 10 acres; Shands Key is just under 8 acres) effected a Lucas taking.

We're not going to go into too much detail, because this case is one of ours. Our Pacific Legal Foundation colleague Jeremy Talcott was the lead trial and appellate counsel, backed by Kady Valois.

Trial (and appeal) team after closing arguments in Key West:
Valois, inversecondemnation.com, Talcott

But we're not going to let you go without noting a few highlights from the Court of Appeal opinion:

• "This inverse condemnation appeal presents a novel issue regarding the role that transferred development rights (“TDRs”) occupy in adjudicating a per se as-applied regulatory taking claim advanced under the landmark case of Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992)." Slip op. at 1.
• "Finding that an award of TDRs and Building Permit Allocation System (“BPAS”) points, considered in tandem with the residual land value derived from personal recreation and beekeeping, precluded a per se as-applied claim, the trial court denied the motion. The primary issue on appeal is the propriety of that ruling." Slip op. at 1-2.
• "In the aftermath of Penn Central, Lucas, and their progeny, TDRs have emerged as a popular and effective tool for local governments to promote conservation efforts and urban growth management. Such rights typically benefit the landowner by allowing for expanded “development beyond the restricted level on [another] piece of land.” Ralph A. DeMeo, Transfer Development Rights, in II Florida Environmental and Land Use Law ch. 23 (1996)." Slip op. at 10.
• "The significance of TDRs in the regulatory takings matrix has been sharply debated. Some legal experts have opined that TDRs are irrelevant to the takings side of the equation because they do nothing to impact the nature and extent of the property interest taken by the government. Others have espoused the belief that TDRs necessarily mitigate the economic impact of regulation by infusing the property with value; therefore, they should be considered before determining whether the government has effectuated a taking." Slip op. at 10-11 (footnotes omitted).
• "Appellants established that regulation deprived them of any use of the property, other than for beekeeping or personal camping. These do not constitute economically beneficial uses, as 'a State may not evade the duty to compensate on the premise that the landowner is left with a token interest.' Palazzolo v. Rhode Island, 533 U.S. 606, 631 (2001). As Justice Scalia observed in his Suitum concurrence, any income associated with TDRs does not flow from the cultivation or development of the property in the traditional framework of ownership. Instead, the potential revenue is generated from the non-use of the property." Slip op. at 13-14.
• "Consistent with this logic, while “[p]utting TDRs on the taking rather than the just compensation side of the equation . . . is a clever, albeit transparent, device that seeks to take advantage of a peculiarity of our Takings Clause jurisprudence,” doing so allows the government to provide some compensation without the constitutional stricture of just compensation. Suitum, 520 U.S. at 748–49 (Scalia, J., concurring in part and concurring in judgment)." Slip op. at 14.
• "To reason otherwise would render Lucas nugatory." Id.
• "In accord with the foregoing analysis, we conclude that appellants established overly burdensome government regulation deprived them of “all economically beneficial uses” of their property. Lucas, 505 U.S. at 1019. Consequently, they were entitled to an award of partial summary judgment on their per se as-applied Lucas claim. We therefore reverse and remand for the trial court to vacate the final judgment, enter partial summary judgment in favor of appellants, and conduct further proceedings consistent with this opinion." Slip op. at 17.

Here are the briefs of the parties, so you can see the arguments:

• Initial Brief On Merits (property owners)
• Appellee's Answer Brief (City)
• Appellant's Reply Brief (property owners)

Watch the court of appeal oral arguments (YouTube) here.

A hearty well done to our PLF team for this big win.

Shands v. City of Marathon, No. 3D21-1987 (Fla. Dist. Ct. App. May 3, 2023)

Get Ready For SCOTUS Takings Arguments (Wednesday, April 26, 2023)

Take a deep dive into the arguments and amicus briefs

This Wednesday, April 26, 2023, the U.S. Supreme Court will hear oral arguments in Tyler v. Hennepin County, No. 22-166, our law firm's case which argues that Hennepin County's keeping the excess value 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.

Here are links to programs, summaries, and events to help you understand the arguments and issues, as well as registration for post-argument analysis:

• The Supreme Court Takes Up ‘Home-Equity Theft’ - Wall St. Journal. An op-ed by our Pacific Legal Foundation colleague Christina Martin, Counsel of Record for the property owner and arguing counsel.
• Deep Dive and Amicus Review: Tyler v. Hennepin County - the recording of last week's PLF webinar previewing the arguments, and focusing on the myriad amici briefs which have been filed. Click here, or wat. All briefs are posted on the Court's docket page here.
• The same day as the arguments at 2pm Eastern Time, the Federalist Society will hold a "Courthouse Steps" program, at which Ms. Martin will provide her thoughts on the arguments. Register here.
• For those of you in the Beltway, at 4:30pm Eastern Time on the day of argument, PLF will host "Home Equity Theft at the Supreme Court," an in-person program at the Top of the Hill Banquet & Conference Center, in Washington, D.C. Ms. Martin (busy day!) and other experts will answer questions. Register here.

We'll put up more links and materials over the next few days. But again, because this is one of our firm's cases, we won't be commenting that much (other than Go Christina and Geraldine! (Tyler)).

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?

April 27, 2023, 5-7pm, Honolulu: Join Us To Celebrate The Work And Career Of Professor David Callies

Come join us on Thursday, April 27, 2023, from 5-7pm, downtown Honolulu, to celebrate the retirement of Professor David L. Callies from the University of Hawaii Law School.

Join U.H. Law School Dean Camille Nelson, Professor Callies' colleagues, his students (present and former), the Hawaii legal community, and family and friends as we honor 43 years of scholarship, teaching, service, and practice.

Professor Callies is a prolific scholar and author, and has mentored generations of lawyers. Known especially for his work in property, land use, takings, administrative law, and state and local government law, he has also been presented with numerous awards including William and Mary's Brigham-Kanner Property Rights Prize, and the Owner's Counsel of America's Crystal Eagle. 

Invitation and how to RSVP (or click below). Space is limited, so please let us know you are attending as soon as you can.

Details:

Thursday, April 27, 2023
5:00-7:00 p.m.

Second Floor Gallery
Pauahi Tower
1003 Bishop Street
Honolulu, Hawaii 96813

Validated parking: Bishop Square garage (entrance on Alakea Street)

RSVP: [email protected]

See you there!

Professor David Callies - Retirement Celebration Invitation Apr. 27, 2023

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)

Cert Denied In Self-Executing Just Compensation Case

Most of the time these days, we're rooting for cert granted. That comes, naturally, from our work pushing cases and issues up to the Supreme Court, looking to correct lower court errors and in the process make some good law. And that usually entails being on the "petitioner" side of things. Cases like Sackett, Wilkins, and Tyler, for example.

But not always. In Financial Oversight & Management Board for Puerto Rico v. Cooperative de Ahorro y Credito Abraham Rosa, No. 22-367, we were on the "respondent" side of things, advocating for a "cert denied" because there, the First Circuit had reached what we think was the right result for the right reasons. As we noted in this post, the First Circuit correctly held that the "Fifth Amendment precludes the impairment or discharge of prepetition claims for just compensation in Title III bankruptcy."

In short, just compensation judgments are not typical civil judgments which can be treated as unsecured debt (aka blown off) when the government subsequently goes bankrupt. You take, you pay just compensation and not pennies-on-the-dollar. The First Circuit held that the self-executing nature of just compensation for takings means that it cannot be discharged or diminished in insolvency proceedings. Our law firm signed up to represent the property owners to defend what we saw as a correct result and the right analysis.

The cert petition here was not at all insubstantial: the FOMB is repped by high-class lawyers and it appeared the First Circuit expressly disagreed with the Ninth, setting up what looked at first blush like a circuit split. Our BIO, however, noted that the apparent split was not a split at all (just some inconsistent dicta), and emphasized the correctness of the First Circuit opinion. The SG filed a BIO, as did the San Juan lawyer who won the case in the First Circuit.

Today, in this order, the Court denied review.

We understand that this is not a definitive statement from the Court that the First Circuit got it right. Indeed, in another recent case involving a similar issue (what is the obligation of government to actually provide just compensation within a reasonable time after it takes property?), the Court denied our cert petition. So the issue of what happens after a taking and an adjudication of the amount of compensation owed remains open. True, in the First Circuit, the government cannot slough off its Fifth Amendment obligation by seeking bankruptcy protection, but maybe in can in the Ninth and other circuits. And at least in the Fifth Circuit, a local government cannot be compelled by a federal court to, you know, actually pay compensation after it takes property. So the issue remains for SCOTUS resolution.

So cert denied does not resolve the issue. But to us, a win is a win, especially for our clients (even a cert denial).

Cases And Links From Today's Land Use Institute Session: "The Use of Eminent Domain for Redevelopment & Economic Development Projects"

Here are the opinions that we spoke about this afternoon at the Land Use Institute on "The Use of Eminent Domain for Redevelopment & Economic Development Projects."

• Redevelopment: You Can't Just Say "Redevelopment" - Take Now, Decide Later Isn't A Public Use
• Due Process: Before Taking Property, Condemnor Must Provide Notice Reasonably Calculated To Put The Owner On Actual Notice
• Scope of delegation: A Hospital Parking Lot Isn't An Authorized Reason To Take
• Necessity: No Necessity: Landowner Met Burden - Condemnor Did Not Consider Other Sites
  
• After the taking: First Circuit: "[T]he Fifth Amendment precludes the impairment or discharge of prepetition claims for just compensation in Title III bankruptcy."

Thanks for joining in.

Ice Ice Baby: A Report From The 40th ALI-CLE Eminent Domain & Land Valuation Litigation Conference, Feb 1-4, 2023, Austin

We were eagerly anticipating 40th American Law Institute-CLE Eminent Domain and Land Valuation Litigation Conference. The 2022 Conference in Scottsdale was one of the first meetings where everyone was back in-person (and was a smashing success), but that conference was early in the game so not everyone could or would attend. But in the past year most of us got back to some semblance of "normal," and the turnout promised to be good.

We had record registrations: with over 300 attendees, faculty, and staff signed up, things were shaping up.

Plus, we were headed to Austin, Texas. The last time we held the Conference there in 2016, we loved it so much it has been in-demand for a return visit. And this year is the debut Conference for some new planning co-chairs for both the main tracks as well as the "Condemnation 101" tracks, so the buzz for the 2023 Austin Conference was building.

But then the weather reminded us that Mother Nature is often the boss. 

Very Icy Austin on Wednesday (Conference Eve).

On Tuesday, one day before the Conference was to get underway, the 2023 Central Texas Ice Storm blew in and things were gonna get (as they say) "challenging."

Austin Airport effectively shut down with few flights in or out. Planes and cancellations stacked up nationwide. And even for those nearby, slick icy roads, and seemingly everything was closed, from gas stations to hotels to restaurants. Widespread power outages. 

Were we ready with Plan B if people couldn't get on-site? Read on.

Unless you are already here or are driving,
you ain't getting to Austin via AUS any time soon, pard.

Even flying from sunny California was a problem.

Ticket agent: Austin flight cancelled. How about flying to Houston and then driving?

Me: Sure, that'll work. Just get me to Texas and I'll figure it out from there.

Improvise, adapt, overcome: planes, trains, and automobiles (and car rentals, and long-distance rideshares, and four-layovers-from-Boise flights). Jacksonville to Austin via Chicago and Nashville.

Although those of us who made it to Austin were receiving widespread reports of people delayed and rerouted, we had only a handful who said they would not be pressing forward to get here. 

When this is what greets you when you arrive
at your conference site...uh oh.

And yes, Austin was cold and icy. Most things shuttered and widespread loss of power. But the Conference venue was up and running, and throughout the day on Wednesday, faculty, staff, and attendees were showing up. Trickling in, but showing up or on the way.

When this is what you see at the United Airlines
luggage counter, you ask yourself:
Can I make my presentation in a t-shirt and sweats? (Yes!)

We had confidence, and were prepared
for everyone to get to Austin.

So the aforementioned Plan B went into effect. Agenda items shuffled from tomorrow to today because the speaker is here, now. One speaker in the room, one speaker remote. Our audience is full of experts ... say, Billy can you pinch-hit on this panel? Sure. One speaker remoting in from his (unexpected) hotel room in Phoenix and presenting, before he went to the airport in the afternoon to continue on to Austin.

And so forth. Our long-time ALI-CLE Program Attorney, Amy Weinberg (who was delayed out of Philadelphia) was working furiously behind the scenes doing a lot of juggling, updating, texting and calling, and making alternative arrangements. And the tech team from ALI-CLE was preparing for overload if needed.

Plan A: continue to set the room up, assuming everyone is here or on the
way, and we'll have most or all of our people in the room.

Our Planning Chairs were ready, even if not
all of us were actually there (yet).

Plan B: the ALI-CLE technical crew was prepared to livestream
and record the Conference if the weather made travel
to Austin impossible or infeasible.

The tech command center.

Before we go on, a big thank you to our generous sponsors.
Without your support, this Conference would not be as
good as it is, year after year.

We're underway, with a pretty good crowd.

Thursday morning, 9:00 a.m., and we're looking not too bad. A fair number of folks have pressed forward despite the weather and travel disruptions and are in the room. More report they are not tapping out, and are pressing onwards.

We have more viewers remote than we originally anticipated, but the tech is holding up.

Over the next couple of days, our lawyers, judges, legal scholars, appraisers, law students, right-of-way agents, relocation experts, property owners, and other related professionals made their way to Austin.

The fact that folks who were experiencing some rather dramatic travel difficulties and delays (ask Jack about his late night Uber from Houston airport to Austin, or how our west coasters got re-routed all over creation), didn't quit but were determined to get to Austin told us something about why this Conference has been so successful over the decades.

It's more than great programming from the nation's experts. The Conference is also an essential venue to get acquainted with new colleagues and welcome them to the Dirt Law Bar, reconnect with long-time friends, and have a bit of fun together.

Most of the Conference attendees eventually made it, and very few (reasonably) threw in the towel and turned around for home. This was the 40th edition of the Conference, and we really know why it is one of the most-established and successful conferences in the ALI-CLE stable of programs. This year's experience really drove home why we come, and why our attendees and faculty are so dedicated and committed, despite the sacrifices we make to attend or to present. 

Hybrid: Pacific Legal Foundation's John Groen
remoting in while en-route via Phoenix, and
Baylor lawprof Jessica Asbridge on
"Everything Old is New Again: Why Today’s Practitioners
Need to Understand the Original Meaning of the
Takings and Just Compensation Clauses."


The "Condemnation 101" track was wildly popular
both with new members of the Eminent Domain Bar,
as well as old hands. Standing room only throughout the day.

We also had reports from the field that the remote viewing
was going well. Here's how we looked in the
mountains of North Carolina.

Let's not forget the substance of the Conference.
Lots of practical learning. Here's Hawaii's Mark Murakami
and Virginia's Steve Clarke on "Avoiding the Real Jeopardy:  
Structuring Eminent Domain Settlements."
And no, two-time Jeopardy! champion Steve did not
give answers in the form of a question.

Weather throughout Wednesday and Thursday was icy and nasty,
but towards the end of Thursday seemed to be clearing up.

Consequently, the view from the podium looked better and better
with more showing up and more reporting they were nearly there.

The programming at the Conference is traditionally
a mix of practical subjects and the more theoretical.
Here's one of the highlight latter programs,
Alan Ackerman (Michigan), Matthew Ackerman (also Michigan),
and Steve Davis (Missouri) on "What Does the Supreme Court
Mean When it Says Just Compensation is “Self-Executing?"

There's an ethics program, naturally, for those of us in jurisdictions
with mandatory CLE requirements. But we try and not do "typical"
(i.e., boring) ethics programs. Here's Sarah Kellner (Colorado) and
Shane Rayman (Ontario, CN) on "Ethics: Building Your Practice
by Mentoring the Next Generation of Eminent Domain Professionals."

An example of our practice-oriented programming: Tony DellaPelle
(New Jersey), Bernadette Duran-Brown (California), 
and Andrew Lines (Illinois) on "Preparing Your Expert
Witness to Shine in Virtual Proceedings:
Tools and Tips For Trial Lawyers." 

Andrew actually pretended he was far, far away for his "deposition"
when he was in fact one floor up from the Conference room.
Way to go all-in.

Thanks to our generous sponsors, we were able to avoid Austin's
icy roads and have our Mickelthwait barbecue
brought in for lunch. Was it well-received? See for yourself. Line
was through the lobby and nearly out the front door.

Thank you to Texas Supreme Court Justice Jimmy Blacklock
for speaking on "Developing Property Right Issues in Texas,
Questions and Answers with Justice Jimmy Blacklock"
(interviewed by Justin Hodge (Texas)

It was not an echo-chamber either. Here, in a hotly-debated
session, Jeff Redfern (Virginia), Steve Silva (Nevada), and
Lawprof Emilio Longoria (St Mary's Law, Texas)
debate "When the SWAT Team Comes (No) Knocking:
Police Power Takings."

Jeff, Steve, and Prof Longoria's session got everyone's blood pumping.

It wasn't all serious, and we had a bit of fun.
Like this after-hours live edition of the Eminent Domain & Right of Way
Clubhouse with Beth Smith (Wisconsin), Patrick McAllister (Indiana)
and some dude who was having a post-CLE session beer.

Some of our faculty are more formal and like to speak
standing at the lectern. Here, Pacific Legal Foundation's Jon Houghton
(New Jersey) and Ben Stormes (Montana) on
"Avoiding Pitfalls When Trying a Penn Central Case:
Lessons From the Takings Trenches."

Others are less formal, and speak while sitting
(and wildly gesticulating to make sure you are paying attention).
Kristen Renfro (California), and some guy on
"Your Regulatory Takings Case is in Federal Court – Now What?"

By Friday morning, the Austin weather was looking up. Really up.
And we nearly had everyone in the room.
By hook or by crook, most everyone was there.

By Friday were were pretty much back to normal.
Nearly all faculty and all attendees in the room.
And thus we turned it over to our Saturday morning stalwarts,
starting with Jim Burling, here speaking about "The Many Theories of
Property - Do They Matter in Court?" (and Pufendorf)

No one wanted to miss Michael Berger's "Regulatory Takings Update"
on Saturday morning either.

When you can fill this many seats at a CLE conference on a
Saturday morning after two full days of programming,
you know your speakers are the
right ones (thank you Jim and Michael).

After Jim and Michael did their thing, we held our "National Forum,"
a moderated "open-mic" session where Conference attendees
take to the podium and speak about their case or issue,
or crowdsource a question. Here, Pacific Legal
Foundation's Kady Valois, speaking about
our firm's latest takings cert grant.

We were happy to announce that the 41st ALI-CLE Eminent Domain &
Land Valuation Litigation Conference will be held February 1-3, 2024,
at the JW Marriott in New Orleans.
Save the date!

Ivy Cadle (Georgia - Go Dawgs!) is already planning his trip to
#EminentDomain 2024 in New Orleans.
See you there, Ivy.

With the programming wrapped up, it was time for farewells
and thank yous. Here, four of our law students from William and Mary Law,
who took the time out of their schedules to make their way to
Austin for some real-world learning and networking.
Well done, new colleagues!

Even after the proceedings closed, there was more work to be done.
Here, the ALI-CLE Tech Team breaks it down, after successfully
guiding us through the past four days. They are a large part of the
reason why this Conference works so well (plus, they make the
speakers look really good on camera).

To those who joined us - in-person or on-line, thank you. This conference reminded us of why this program is so successful, and why we all return year-after-year.

To those of you who didn't (or couldn't) join us, here's what you missed. You need to remedy that, and come join us next year in New Orleans...

We'll see you in New Orleans for
#EminentDomain2024!
(Want to keep the conversation going in the
interim? Join the ALI-CLE Eminent Domain Conference
page on LinkedIn.)

Farm [Eminent Domain] Lawyer - The Doohickeys

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

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

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

(Nearly) Last Call: There's Still Time To Join Us For The 40th ALI-CLE Eminent Domain & Land Valuation Litigation Conference, Feb 1-4, Austin

We really want you there...

One (nearly) last reminder that there's still time to register for your space at the 40th ALI-CLE Eminent Domain & Land Valuation Litigation Conference, February 1-4, 2023, in Austin. In the past several years, we have sold out due to the conference room capacity and the conference hotel block. But there's still space, although we are nearly full. So register now - don't delay any further! 

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

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

• Private Utility Takeovers – Lessons From a 67 Day Trial

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

• Valuation Issues When Billboards and Signs are Condemned

• Setting Client Expectations and Identifying Red Flags

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

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

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

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

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

To register, go here.

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

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

Here's The Program For The 40th ALI-CLE Eminent Domain & Land Valuation Litigation Conference, Feb 1-4, 2023, Austin

Here it is, the official agenda and program for the 40th ALI-CLE Eminent Domain & Land Valuation Litigation Conference, February 2-4, 2023 (with a special event the evening of Wednesday, February 1, 2023 to entice you to arrive early).

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

• Everything Old is New Again: Why Today’s Practitioners Need to Understand the Original Meaning of the Takings and Just Compensation Clauses

• Private Utility Takeovers – Lessons From a 67 Day Trial

• Valuation Issues When Billboards and Signs are Condemned

• Setting Client Expectations and Identifying Red Flags

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

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

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

• ...and much more!

To register, go here.

Register now and hold your space. In the past several years, we have sold out due to the conference room capacity, and the conference hotel block. So don't delay. 

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

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

New Cert Petition: Just Compensation Claims Can Be "Adjusted" (Eliminated Or Reduced) In Bankruptcy, Right?

Remember that First Circuit opinion from a few months back, which held - contrary to a prior 2-1 Ninth Circuit panel - that just compensation claims are not dischargeable in a governmental bankruptcy?

Well, the government recently filed a cert petition asking the Supreme Court to take the case and hold that there's nothing special about a just compensation judgment or claim, and that the govermnent's obligation to provide compensation for takings is just plain-old debt. And you know what happens to plain-old debt in bankruptcy: the creditor often gets bupkis. 

And before we go further, a disclosure: we represent some of the property owners/Respondents in the case. So we're not going to comment in detail, but shall leave it to you to review the petition, and the Question Presented:

The decision below is the first by a circuit court in history to hold that the Constitution prohibits a category of unsecured claims from being discharged in bankruptcy. Specifically, the First Circuit held that unsecured claims for just compensation that arise under the Fifth Amendment’s Takings Clause before bankruptcy cannot be adjusted in a bankruptcy case, even though claims for money damages arising under other constitutional provisions can. The court believed the Takings Clause mandates a remedy and that unique feature renders the remedy non-dischargeable.

The First Circuit acknowledged it was creating a split with the Ninth Circuit, which, when faced with the identical question, held that pre-bankruptcy unsecured claims for just compensation are dischargeable. The First Circuit’s novel ruling frustrates both pillars of the Constitution’s bankruptcy power—fresh starts for debtors and equitable treatment of unsecured claimholders.

The Question Presented is: Are pre-bankruptcy unsecured claims for just compensation under the Takings Clause uniquely non-dischargeable, unlike every other type of unsecured claim?

Stay tuned. We're thinking there is something different and special about Just Compensation judgments and claims. After all, the Supreme Court has repeatedly told us that the obligation to provide compensation for takings is "self-executing," and we think that means something more than the soverign's solemn constitutional obligation can be wiped out with a wave of the bankruptcy wand. 

Follow along on the Court's docket here.

Petition for a Writ of Certiorari, Financial Oversight & Mgmt Bd for Puerto Rico v. Cooperative de Ahorro y...

Brigham-Kanner Property Rights Conference Wrap-Up

The William and Mary Law School has posted David Morrill's summary of the recent Brigham-Kanner Property Rights Conference.

In addition to a full day of academic and practicing bar speakers on Friday, and the award banquet on Thursday evening, the Conference included two full days of student-oriented programming earlier in the week, where practicing land use and property rights spoke about their practices, the hot topics in the field, and how they ended up in this practice area. Every session was well attended, as the photos from the events show.

Check it out. And please join us at future Conferences!

Congratulations On Reaching The "Century" Milestone, Eminent Domain Podcast!

That's right: Clint Schumacher's Eminent Domain Podcast has reached its 100th episode. Very impressive, Clint!

And for this "very special episode," Clint was kind enough to ask us to return to celebrate. In a wide-ranging hour-plus chat, Clint and I talked property rights and takings of course, but also hit on several more philosophical subjects. If you could have coffee with any historical figure who would you choose? Pharaoh Khufu? Jack the Ripper? Winston Churchill? What person has influenced your life the most? What's on tap for the 2023 ALI-CLE Eminent Domain and Land Valuation Litigation Conference in Austin? If you had to choose a last meal, what would it be (for me, an easy question)? Clint is a generous host (and person), so I really had a good time.

One note: Clint makes it seem seamless, but I know that the behind-the-scenes process of putting together an episode is a heckuva lot of work, especially if you add it up over 100 episodes and several years, week in and week out. He's too modest to claim kudos, but I am not so reticent: we should all say a big thank you to Clint for putting the podcast out there and keeping us tied together. Please pass on your appreciation! 

We wrapped up by Clint promising me that I could be the guest on his 200th episode. I look forward to it, friend.

It's The Vibe! - Eminent Domain In Pop Culture

Be sure to check out Anthony Alderman (MRICS, SR/WA, CRE, Senior Managing Director at Cushman & Wakefield), who guests on Episode 98 of Clint Schumacher's Eminent Domain Podcast, "Eminent Domain in Pop Culture."

You know we are going to really appreciate an episode "about depictions of eminent domain in popular culture – often a juror’s only prior exposure to condemnation law." Whether it's the vibe of contitution, or how eminent domain can show up in novels, Netflix, Russian and Australian movies, memes (and meme briefs), or nerding out on Star Trek metaphors. We love this topic.

But it's not all distractions, because the episode also covers "what makes appraising for eminent domain acquisitions different from other appraisal projects as well as current issues of interest in the appraisal field."

What a fun episode. Don't miss it.

Registration Underway - 19th Annual Brigham-Kanner Property Rights Conference (Sep 29-30, 2022)

There's still space for you to join us -- preferably in-person, but remotely if that is not possible for you -- at the 19th Annual Brigham-Kanner Property Rights Conference, September 29-30, 2022, at the William and Mary Law School in Williamsburg.

The American Law Institute was kind enough to post a notice about the Conference and the ALI members who are on the speaking faculty here.

Registration for the Conference is ongoing, and you can sign up here. Here is the full agenda. (We'll be speaking on Panel #2, "Reshaping the Framework Protecting Property Under the Roberts Court."

In our opinion, the Conference is the best of its kind, and brings together legal scholars and the practicing bar to talk dirt law. So please come join us.

CA11 Oral Arguments In Pipeline Taking: If Florida Law Says The Owner Gets Compensation Plus A Car, Does A Federal Court Have To Recognize That?

Here's the latest in a case we've been following. The U.S. Court of Appeals recently heard oral arguments in a case where a private Natural Gas Act condemnor (the Sabal Trail pipeline) exercised the delegated federal power of eminent domain to take the property of a Florida owner.

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. The District Court held that Florida law, not federal, applied, and Sabal Trail appealed to the Eleventh Circuit.

The arguments are worth listening to. Is this a question of "choice of law?" Or does it go to how the "property interest" is defined in these takings (by state law). Or do the federal standard of "just compensation" govern? In our opinion, the most interesting part of the arguments starts at the 20:48 mark, where one of the judges asks the property owner's lawyer (our colleague Thor Hearne):

Let me give you what I think is a tough hypothetical for you. Maybe you'll be able to distinguish it. Florida decides in its wisdom that when any government decides to take property for eminent domain, whether it's permanent or an easement, or something like that, not only do you get just compensation as that term is commonly understood, you get attorneys fees and costs, and you get a brand new car. So a federal court has a case under the Gas Act and the question is: do you get the car?

(Note: we think the answer is "Yes, you get the car because Florida law defines the property interest being taken, and Florida law has included attorneys fees and costs and a car as part and parcel of an owner's rights when their land is taken.")

More on the arguments here: "11th Circ. Wary Of Axing Atty Fees In Pipeline Easement Cases."

Links From CRE's "Supreme Court Update: Is This Property's Moment?"

Here are the links to the cases and other materials that we mentioned (and some we didn't) earlier today at the Counselors of Real Estate's program on "Supreme Court Update: Is This Property's Moment?" Thank you to our colleagues at CRE for including us in the program.

I.  The evolving ground rules

• Takings cases can go to federal court:
  • Condemnation: PennEast Pipeline Co. v. New Jersey (eminent domain and the 11th Amendment)
  • Inverse and regulatory: Knick v. Township of Scott (opening back up federal courts to takings claims).
• How you define the “property” taken is key:
  • Murr v. Wisconsin (the larger parcel issue, applied in regulatory takings cases).
  • Koontz (money as property ... and exactions).
  • Brandt (easements, vel non)
• The exclusion “stick” is really important:
  • Any distinction between “permanent” and “temporary” takings is a matter of valuation, not liability: Cedar Point Nursery v. Hassid. 
  • Horne v. USDA (II) (California raisins and physical invasions)
  • Arkansas Game (physical invasions, again).
•  Remedies:
  • The remedy for a “taking” isn’t limited to just compensation: Horne v. USDA (I).
  • Winter v. Natural Resources Defense Council, Inc. (preliminary injunctions, diesel-electric submarines, and Pearl Harbor).

 II.  Issues on the horizon

• Compensation and timing:
  • what to do when the condemnor doesn’t promptly pay up?
  • what is the date of valuation?
• Ability of condemnor to define the taken property:
  • Is there an obligation to value severance damages?
  • Fee take vs easement.
  • Temporary vs permanent.
• Does the Constitution protect property’s use, or value? Police power or takings?
• Whither Yee and the future of the physical occupation rule.
• Are eviction moratoria “takings?”
• Can you really get to federal court and stay there?
• The undivided fee rule ... constitutional?

Ye Olde Law 608: Eminent Domain & Property Rights, S5E1 @ William & Mary Law

Is there a more appropriate place at which to study property rights and dirt law than William and Mary Law School? After all, it is a stone's throw from Jamestown, the place where there's a good argument the concept of property law and property rights first took hold in the New World. As noted by author David Price in "Love and Hate in Jamestown - John Smith, Pocahontas, and the Start of a New Nation" -

The introduction of private property for the common citizen had a salubrious effect on the owners' sense of initiative, as John Rolfe would observe. By the end of 1619, he reported, the "ancient" (or longtime) colonists had chosen their allotments, "which giveth all great content, for now knowing their owne lande, they strive and are prepared to build houses and to cleare their grounds ready to plant, which giveth ... greate incouragement, and the greatest hope to make the colony florrish that ever yet happened to them."

Was it a coincidence that at the same time as property rights took hold, that the seeds of representative and republican government were also planted? As Price writes:

The other major liberalization of 1619 sprang from the company's desire for "a forme of government there as may bee to the greatest benifitt and comfort of the people, and wherby all injustice grevance and oppression may be prevented." That form of government would be English America's first representative legislature. Sir Thomas Dale's authoritarian "Lawes Divine, Morall and Martiall" would be superseded by enactments of a locally elected body, to be known as the General Assembly.

And also just down the road from the Law School, coincidentally, is where the "new birth of freedom" took hold, again by way of a property-centric argument. So yes, William and Mary Law is a very appropriate venue for the study of property rights and property law.  

With that background in mind, in just over three weeks, we're about to get underway with the fall semester at the Law School, where we're again teaching two upper-division courses: Eminent Domain and Property Rights (Law 608), and Land Use Controls (Law 425). For a sampling of what we cover, check out some of the final papers our students produced last year - pretty compelling stuff.

The enrollment in the courses has really grown over the five years we've done them, which might be a reflection that the word is getting out. in the Eminent Domain and Property Rights class we cover not only eminent domain and just compensation, but takings, civil forfeiture, property theory, the cultural view of what it means to "own" something, and international approaches to property law and property rights. And, importantly, how to lawyer up these cases (this is a professional school after all). Of course, we take advantage of the opportunity to have some of the nation's best property law scholars "guest lecture" during the Brigham-Kanner Property Rights Conference. Here's the official description of the course:

Property rights and the sovereign's power of eminent domain have been essential components of Anglo-American law for centuries, and the protection of the right of private property ownership is one of the foundations on which the U.S. Constitution, the Bill of Rights, and the post-Civil War Amendments are built. This course will introduce students to the practical lawyering and analysis necessary for eminent domain practice, including the nuts and bolts of takings practice as well as the study of recent (and ongoing) U.S. Supreme Court cases. In addition, this course will focus on the history, policy, and, to some extent, the politics of property rights, eminent domain law, and related legal topics. We will examine how the right of private property was developed in common and constitutional law, the relationship of property rights to other civil rights and the sovereign's power to take land, the role of federal and state courts in protection of property rights, how private property squares with environmental law, and the proper 'place' of property rights in the modern administrative state. Course materials will be cases and selected portions of books and journal articles, and other materials which will be made available. Grading will be based on a take home paper and class participation.

The Land Use Controls class is your class land use regulation class that focuses on things like zoning and planning, the administrative process, vested rights, nonconforming uses, due process, Euclid, private land use controls, nuisance, and other dirt law topics.   

Students: it's not too late to join (add/drop will commence soon after the first day of classes). We can't promise that you will gain instant knowledge of the subjects, but can guarantee a rewarding semester taking a deeper dive, coming out of it in December with a greater appreciation of these areas of law, and a working understanding of what it takes to actually practice. Come, join us!