inversecondemnation.com

Registration For The 42d ALI-CLE Eminent Domain & Land Valuation Litigation Conference Is Underway (Don't Miss Out!)

Get ready to join your colleagues and friends in San Diego for the 42d ALI-CLE Eminent Domain & Land Valuation Litigation Conference.

The 41st Conference was in New Orleans. Here's a report of that event, and here are our reports from prior conferences in Austin and Scottsdale.

Here are some of the highlights of the upcoming Conference:

• Property Rights at the Supreme Court: DeVillier and Sheetz and What's Next
• Slow Take: Possession, Rent, Relocation, and Offset
• The Jury's View: How Jurors See Your Case
• From Penn Coal to Penn Central: How to Prove "Too Far"
• Leveraging Expertise in Eminent Domain Litigation: Working with Land Planners, Engineers, and Other Predicate Experts
• Kelo at Twenty: What Changed, What Didn't, and What's on the Horizon
• Viva Las Vegas: How the Nevada Judiciary Upheld Property Rights in 180 Land's Inverse Condemnation Taking
• Ethics: Guiding the Trolley: Perspectives on Professional Ethics in Eminent Domain for Lawyers, Appraisers, and Right of Way Agents
• "I Think I Shall Never See" Just Compensation For a Tree: Strategies to Securing Recovery for Trees, Crops, and Fixtures

And more. Check out the complete agenda here. Registration information here. 

We especially welcome first-time participants, or those returning after an absence. Connect (or reconnect) with your colleagues from across the nation.

Don't miss out: we have had record attendance in recent years, so hold your space now.

Come, join us!

New Cert Petition: Can An Owner Whose Property Has Been Taken Sue A State Directly Under The Fifth Amendment?

Check this out, a recently-filed cert petition asking whether, in order to sue for compensation for a taking, the government must first affirmatively provide a cause of action (an issue recently left unanswered by the U.S. Supreme Court). That's an issue we've been following closely (our outfit recently filed this cert petition also). 

This one is a takings challenge to California's unclaimed property scheme and the State's immunity, vel non, to being sued for just compensation.

Here are the Questions Presented:

The State of California, pursuant to its unclaimed property laws, regularly seizes possession of owners’ unclaimed personal property, holds it in custody and trust for the owners, uses it for the state’s purposes to pay its obligations, without paying the owners of that unclaimed property any compensation for its use of the owners’ property pursuant to California Code of Civil Procedure §§1540(c) and 1562. That is an unconstitutional taking without just compensation in violation of the Fifth Amendment’s Takings Clause made applicable to the states pursuant to the Fourteenth Amendment.

The issues in this case are:

1: May a property owner whose property is taken and used by the state without compensation, sue the state directly for just compensation under the Fifth Amendment’s Takings Clause where the state has not affirmatively provided the property owner with a cause of action and in fact, has affirmatively precluded any cause of action to recover compensation for its taking and use of the owner’s property?

2: Does Eleventh Amendment sovereign immunity bar a property owner’s self-executing Fifth Amendment right to just compensation for the state’s taking of his/ her property?

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

Petition for a Writ of Certiorari, Cole-Kelly v. California, No. 24-158 (U.S. Aug. 12, 2024)

New Cert Petition: Does The Obligation To Provide Just Compensation Waive Sovereign Immunity?

Because the latest takings cert petition is one of ours (our colleagues Dave Breemer and Deb La Fetra are counsel for the petitioner), we won't be commenting all that much on it.

Except to say that this is the latest in a series of cases where the obligation to provide just compensation for takings butts up against a state government's claim that it cannot be sued in federal court unless it agrees to be sued. We wrote up the Seventh Circuit's opinion below here ("Coming And Going: Eleventh Amendment Trumps Fifth Amendment - States Must Consent To Be Sued In Federal Court, Even For Just Compensation")

Here are the Questions Presented:

1. Whether a state’s constitutional obligation to pay just compensation when taking property waives its sovereign immunity from a claim seeking damages for an unconstitutional taking?

2. Whether a property owner may sue state officials in their personal capacity under 42 U.S.C. § 1983 for a violation of the Takings Clause, as the First Circuit holds, or whether such a personal capacity suit is barred, as the Seventh and Sixth Circuits hold?

Dust off your Federal Courts hornbooks and follow along here, or check out the Court's docket.

Petition for Writ of Certiorari, Gerlach v. Rokita, No. 24-21 (U.S July 9, 2024)

Fla App: Govt Agreed To Be Bound By Restrictive Covenant, But So What!

A short one (per curiam is one two-sentence paragraph), with an interesting concurring opinions from the Florida District Court of Appeals (4th District).

In Vazquez v. City of Hallandale Beach, No. 4D2023-0833 (June 12, 2024), the court held that a restrictive covenant that ran with Vazquez' land (and others in his subdivision, including the city, which had agreed to be bound by the covenant in the settlement of a 1969 lawsuit) is not a compensable real property interest that must be compensated when wiped out by what otherwise would be a regulatory taking.

Vazquez sued the city, asserting that its marina and parking lot violated a buffer zone which had been created by the 1969 settlement. The city was a party to that lawsuit and settlement agreement. The city agreed that yes, the buffer zone indeed had that effect. But we're the government and even though we agreed to be bound by the restrictive covenant in that settlement agreement back in the day, we're not bound by it now. These are contract rights not property rights, and thus unenforceable against the government.

Chief Judge Klingensmith "reluctantly" concurred, noting that the precedents support the court's conclusion when the government has not bound itself via agreement to the covenant. However, he found it important that the city was a party to the settlement and had agreed to be bound:

Phrased differently—in contrast to Bay Harbor and Ryan—the City did not simply acquire land with an existing restrictive covenant attached to the land. Rather, the City created the same restrictive covenant that it now seeks to destroy. Thus, the fact that the City did not own the property in question at the time of the 1969 settlement is irrelevant.

The City also argues that even though it was a party to the 1969 agreement which created the restrictive covenant, and despite the City being involved in a 2012 declaratory judgment action to enforce the restrictive covenant, the City itself was not—nor was it ever—bound by that restrictive covenant. Indeed, the City claims it was free to violate the restrictive covenant at will and has no obligation whatsoever pursuant to Bay Harbor and Ryan to use the power of eminent domain to extinguish the restrictive covenant. In my opinion, this is the very definition of an illusory contract. Despite the City’s assertions that the contract is not illusory, the City has wholly failed to explain under these circumstances why it is not. Pan-Am Tobacco Corp. v. Dep’t of Corr., 471 So. 2d 4, 5 (Fla. 1984) (a contract is illusory if it is not mutually enforceable).

Slip op. at 3 (Klingensmith, C.J., specially concurring).

Judge K didn't like this, but felt "constrained" by the Florida Supreme Court's decisions in the Bay Harbor and Ryan cases that restrictive covenants are categorically contract rights not enforceable against the government, and not property rights. In his view, "both private and public parties should be held to the agreements which they freely enter." Slip op. at 3-4 (Klingensmith, C.J., specially concurring).

One other judge also specially concurred, noting that the 1969 settlement agreement did not contain a clear and express waiver of the city's sovereign immunity.

With two judges offering their input, might this not be the end of this one? Stay tuned.

Vazquez v. City of Hallandale Beach, No. 4D2023-0833 (Fla. Dist. Ct. App. June 12, 2024) (per curiam)

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

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

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

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

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

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

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

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

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

Slip op. at 21-22.

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

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

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

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