inversecondemnation.com

New Bound by Oath Episode: Berman, Public Use, And Urban Renewal

This is a must-listen, the latest episode of John Ross's Bound by Oath podcast. This season is covering property rights, and this episode details Berman v. Parker, which may be the first case in what we'll call the "modern era" where the Supreme Court set the judicial hands-off tone for public use challenges.

The guest this episode is our friend and colleague Amy Lavine, who wrote what we think is the seminal article deconstructing Berman (we include it as required reading in our William and Mary Eminent Domain course).

This episode is a great companion piece to BBO's episodes on Euclid (zoning), and Pennsylvania Coal (reg takings).

On this episode: Berman v. Parker, the Supreme Court’s decision in 1954 to abandon previous constitutional limits on the government’s power to take property from Person A to give it to Person B. The decision greenlit the era of urban renewal, which saw over a thousand cities across the country seize and bulldoze entire neighborhoods en masse.

Be sure to listen to this episode (and indeed the entire season).

New Article: 2024 National Eminent Domain Update (Practical Real Estate Lawyer, May 2024)

Thanks to our co-author, the ever-wonderful Amy Boulris, and the good people at ALI-CLE for shepherding us through the process of getting the 2024 National Eminent Domain Update published in The Practical Real Estate Lawyer, and for allowing us to post it here.

This is our summary of what we think were the most interesting -- if not the most important -- eminent domain cases over the past year from state and federal courts.

Amy Brigham Boulris & Robert H. Thomas, 2024 National Eminent Domain Update (ALI-CLE Prac. Real Est. Lawyer...

CA9: "Traditional common law rule" That Utilities Bear The Cost Of Relocating From Public Right-of-Way Isn't A Taking

Here's one about Lucas "background principles" of property law, or maybe the Supreme Court's current focus on "history and tradition" when it comes to defining private property for purposes of the Takings Clause. 

In So. Cal. Edison Co. v. Orange County Transp. Auth., No. 22-55498 (Mar. 13, 2024), the U.S. Court of Appeals for the Ninth Circuit affirmed a grant of summary judgment denying a takings claim by a public utility which sought compensation after the County ordered it to move its equipment off of a public right-of-way for a streetcar line at its own expense.

The utility raised a physical takings claim, but the court didn't get to that issue, instead focusing on whether it owned property. The court noted that state law "generally" defines property but, citing Tyler, held that there are certain "traditional property law principles" and "historical practices" about property that no state may alter without compensation.

With that understanding in mind, we consider whether the Utilities have a property interest in maintaining their facilities at their specific locations in the face of OCTA’s efforts to construct a streetcar line. We first examine that question under California property law and then consider traditional property-law principles, historical practice, and precedent.

Slip op. at 9.

The court concluded that the utility never owned the "stick" of compensation for relocation. The court held that "California law does not give the Utilities the property interest that they assert." Id. The court noted a 1958 California Supreme Court decision which held that when a utility "accepts franchise right in public streets," it is subject to an implied obligation to relocate at its own expense when the government wants to use the right of way.

Skip to page 14 of the slip opinion for what we think is the more interesting part: does the California rule that the property rights of utilities in public-rights-of-way do not include recovering relocation costs if the government requires them to move consistent with historical and traditional property rights? The Ninth Circuit relied primarily on a U.S. Supreme Court opinion, Norfolk Redev. & Hous. Auth. v. Chesapeake & Potomac Tel. Co., 464 U.S. 30 (1983), for the notion that "utilities have been required to bear the entire cost of relocating from a public right-of-way whenever requested to do so by state or local authorities."

The Ninth Circuit also noted that this was not a new rule but goes as far back as 1905, and that "for more than a hundred years, utilities have been required to relocate to make way for a government that seeks to vindicate its right to use the streets and enact 'proper regulations in the interest of the public health, morals, and safety.'" Slip op. at 15.

The court also rejected the utility's reliance on City of Los Angeles v. Los Angeles Gas & Electric Corp., 251 U.S. 32 (1919), which held that it was a taking for the city to remove or relocate telephone poles "when necessary." That argument crashed on the shoals of the rational basis test:

we do not read Los Angeles Gas & Electric to invite us to make our own assessment of whether a streetcar line is or is not necessary for Orange County—the California Legislature, after all, believes that the project serves valuable public purposes, and the Utilities offer no reason for us to second-guess that judgment.

Slip op. at 17. In the LA Gas case, the project "apparently lacked any public-facing rationale, and it therefore lost its status of 'governmental.'" Id. The streetcar project here suffered from no such omission as the County had said aloud the magic words that its project was for a public purpose. Thus, "[i]t is a governmental project that fits comfortably within a long tradition of relocations for which franchisees must foot the bill." Id.

Finally, the Ninth Circuit rejected the utility's argument that a California statute assigns the costs for these type of relocations on the government. Check out pages 18-21 for the reasons why.

So. Cal. Edison Co. v. Orange County Transp. Auth., No. 22-55498 (9th Cir. Mar. 13, 2024)

Pass A Good Time: Our Report From The 41st ALI-CLE Eminent Domain & Land Valuation Litigation Conference, Feb 1-3, 2024, New Orleans

When it comes to the longstanding ALI-CLE American Law Institute-CLE Eminent Domain and Land Valuation Litigation Conferences, we're always ready to go. You know that. But this year's version -- the 41st -- was buzzing like no other in recent memory.

Maybe it was the New Orleans venue with its atmo, food, and music for our after-class activities, or even the timing (the second-to-last week on the Mardi Gras parade season, and our conference hotel was right on the routes). It might have been the nice weather (oh, it rained buckets one evening, but there wasn't an ice storm like we experienced in Austin in 2023). Or maybe it was the capacity crowd, and new topics and speakers on the agenda. Or maybe it was just the prospect of seeing our friends and colleagues again after a year.

Here's a photo essay of some of the Conference highlights.

And if you missed out, the webcast was recorded and is available for viewing. Or, better yet, hold on your calendar January 30 through February 1, 2025 for the 42d Conference, to be held at the Westin Bayside San Diego.

Excitement this way...

The view from the podium.
Say "hello" to our opening plenary session in wide-angle.

Prepping the space.
The finished stage that Conference attendees
see isn't how the room starts off.
It takes a lot of work by the ALI-CLE staff
to get the place camera-ready.

The live webcasting of the sessions also takes a lot of
set-up and a ton of equipment. This is just some of it. 

Here's more. 

The badges were arranged on the table with care...

...in trust that our faculty and registrants would soon be there.

No conference would be complete without swag.
Here is but a sampling.

As always, a huge thank you to our generous sponsors.
Without your support, this Conference would not be as
good as it is, year after year.


The Conference site was right on the routes of several parades.
It was difficult to keep focusing on severance damages and larger parcel
when the music and excitement was just outside.
But we tried.


The opening plenary session -- on the U.S. Supreme Court's
big takings case -- got us off to a solid start.


Thanks to Christina Martin and Steve Silva for speaking
on Tyler v Hennepin County.

The view from the podium as Amy Boulris speaks about the most
significant eminent domain decisions of 2023.

The speakers are a mix of practicing lawyers, judges, other eminent domain
professionals, and legal academics. Here, two property scholars --
Timothy Harris and Jessica Asbridge --
discuss how state property law and state courts
can drive the constitutional issues.

Kinnon Williams, Esq. and Christina Thoreson, SR-WA, MAI, CRE 
present on "Valuation of Wasting Assets."

Lawprof Emilio Longoria and attorney Tony Francois
on "What Condemnation Lawyers Need to Understand
About the Clean Water Act After Sackett"
(hint: it goes to highest and best use).

Matthew Ackerman, Marianna Baggett, and Kenneth Haywood
on "The Pitfalls of Objectively Measured Just Compensation:
When Market Value Isn't Enough."

It was not all work and no play.
Again, a big thanks to our generous sponsors.

Our speakers take questions, of course.
We solicit them the old-fashioned way (thanks, James Masterman).

William and Mary Law School Professor
Emerita Lynda Butler (and her former student, North Carolina's
Jeremy Hopkins" discuss property rights in an age of coastal retreat.

Luis Gallardo-Rivera, Dana Berliner, and (off-camera)
Sophia Holley on "Proving and Defending Pretext,
Public Use, and Necessity."

James Masterman and Martye Kendrick on "Preparing Your Witness
to Overcome Obstacles to Highest and Best Use."

Jeff McCoy, Robert McNamara, and Kristen Renfro on
"Getting to Federal Court and Staying There:
Navigating Procedural Mazes in Federal Takings Claims."

Sean Metherell and Nathan Farris zero in on
"How to Win a Future Highest and Best Use Claim: Proving Reasonable
Probability of Rezoning and Other Issues."

Michael Berger is Watching You:
SCOTUS Property Rights Maven Michael Berger zooms in with his
annual "Regulatory Takings Update."

We always hold a spot for Jim Burling on Saturday.
Why? Because his tours-de-force always are interesting
and put people in seats, even on a Saturday morning.

More Big Michael.
Here, sharing his memories of Professor Gideon Kanner.

See you in San Diego!
January 30 - February 1, 2025
Westin San Diego Bayside

South Carolina's Relocation Act Benefits Are Not "Just Compensation"

A quick one from the South Carolina Supreme Court.

In Applied Building Sciences, Inc. v. South Carolina Dep't of Commerce, No. 28184 (Jan. 17, 2024), the court held that the $50,000 cap on relocation benefits provided to ABS by South Carolina's version of the Relocation Act was enough, and did not deprive ABS of just compensation.   

Applied Building Sciences was a tenant in a building taken by the South Carolina Division of Railways, and was listed as an "Other Condemnee" in the eminent domain action. The taking forced it to relocate its business, which triggered its right to seek relocation benefits. South Carolina offers those displaced up to $50,000 in benefits, even if the taking isn't federally funded (and thus not covered by the federal URA). 

ABS thought the cap was unconstitutional and asked for $560k in expenses, and raised an inverse condemnation claim. The Department said no, and "refused to pay more than $50,000." Slip op. at 2. ABS obtained its share of the lessor's compensation, after which the parties agreed to sever its inverse claim for what it claimed was the shortfall.  

The South Carolina Supreme Court concluded that relocation expenses are not a part of "just compensation" under the U.S. Constitution. Relying on United States v. Petty Motor Co., 327 U.S. 372 (1946), the court held that "removal or relocation of personal property is not to be included in valuing property taken and that businesses displaced as a result of the condemnation do not have a constitutional right to receive expenses related to relocation." Slip op. at 6.

ABS fared no better under South Carolina's just compensation clause. The court noted that "'South Carolina courts have embraced federal takings jurisprudence as providing the rubric under which we analyze whether an interference with someone's property interests amount to a constitutional taking.' ... Therefore, Petty Motor, Westinghouse, and Joslin Mfg. Co. guide our decision today." Id. (citations omitted).

The old rubric of "we're taking the property, not the business."

In short, the relocation benefits in South Carolina's Act are gravy, property owners; the legislature is doing you a solid. The court didn't say exactly that, but it did note that the S.C. legislature adopted the Act to provide something -- although limited -- to owners who incur relocation expenses in takings not covered by the federal URA:

South Carolina codified the relocation requirements of the Federal Relocation Act in sections 28-11-10 to -70, mandating relocation payments to displaced persons and businesses regardless of whether a project uses any federal dollars. See S.C. Code Ann. § 28-11-10 (2007); Brown v. City of N. Charleston, 314 S.C. 298, 299-301, 442 S.E.2d 633, 634-35 (Ct. App. 1994); Act No. 1345, 1972 S.C. Acts 2522 (referring to relocation assistance "when any program or project undertaken involving acquisition of real property will result in displacement of any person or other legal entity"); 18 S.C. Jur. Eminent Domain § 22.1 (West 2023). When the government uses the power of eminent domain to take property which is being leased, the tenants may recover moving costs and rent differential payments. See S.C. Code Ann. § 28-11-10; Brown, 314 S.C. at 299-301, 442 S.E.2d at 634-35; 18 S.C. Jur. Eminent Domain § 22.1.

Slip op. at 4.

Thank you very much.

Applied Building Sciences, Inc. v. South Carolina De'pt of Commerce, No. 28184 (S.C. Jan. 17, 2024)

No FOMO: There's Still Room For You To Join Us In New Orleans Feb 1-3, 2024 For The 41st ALI-CLE Eminent Domain & Land Valuation Litigation Conference

Don't miss out!

We promise: this is the last time we're going to try to entice you to the upcoming ALI-CLE Eminent Domain & Land Valuation Litigation Conference in New Orleans. We are getting close to capacity, but there is still room. 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 last 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.

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 is still open. Sign up now, and don't miss out.

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

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

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

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

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

In Gideon's own words, from the Introduction:

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

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

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

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

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

And that's a good thing.

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

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

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

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

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

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

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

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

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

Check it out.

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

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

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

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

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

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

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

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

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

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)

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.)

(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-...

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!

IRWA's Summary Of Major Eminent Domain Cases & Legislation (Jan-May 2022)

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

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

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

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

Fed Cir: Uniform Relocation Act Doesn't Authorize Fees For Pro Se Lawyering

In Haggart v. United States, No. 21-1660 (June 22, 2022), the U.S. Court of Appeals for the Federal Circuit held that the Uniform Relocation Act is like a lot of other fee-shifting statutes, and does not authorize attorneys fees for work performed by a lawyer if that lawyer is one of the litigants. Slip op. at 8 ("We see no sound reason to read the URA’s fee provision to authorize an attorney pro se litigant to receive attorney’s fees when 42 U.S.C. § 1988 and other fee-shifting statutes do not.").

We're posting this here because the underlying case involves a rails-to-trails takings claim, and because we know you are interested in any decisions interpreting and applying the URA.

Haggart v. United States, No. 21-1660 (Fed. Cir. June 22, 2022)

2022 ALI-CLE Eminent Domain And Land Valuation Litigation Conference, Scottsdale: You Should Have Been There!

After a two-year absence in which we went remote, in the last week of last month (our usual spot on the calendar, between the playoffs and Super Bowl), we once again met in-person for the American Law Institute-CLE Eminent Domain and Land Valuation Litigation Conference.

Approximately 200 lawyers, judges, legal scholars, appraisers, law students, right-of-way agents, relocation experts, property owners, and other related professionals gathered in-person--yes, in-person--at the Scottsdale (Arizona) Resort at McCormick Ranch, to get reacquainted, learn stuff, and renew ties last made in-person in Nashville in 2020. In addition to the live attendance, we also welcomed about 50 remote colleagues, who joined the live webstream.

This was the 39th edition of the Conference, one of the most-established and successful conferences in the ALI-CLE stable of programs.

To those who joined us - 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...

Our 2022 Proof of Life Photo.

Every year, as we open the program, I take to the lectern for what I call my "proof of life" photo. Our Conference ends up in some really fun, exciting places. Nashville. Palm Springs. San Diego. Austin. San Francisco. Charleston. And I want to prove to the folks back in the office that yes, we really are in the room, learning stuff. And not out enjoying all that our venues have to offer (we save that for after-hours).

In this photo, we're in the room, spread out (the Resort put us in its massive ballroom, so we had room to spare).

Thank you to our sponsors. Without your generosity, the Conference would not be as good as it is.

Lawprof Karen Bradshaw presented our keynote address on Friday, "Do Animals Have Property Rights?" with more from her recent book "Wildlife as Property Owners." Her talk was followed by a book signing, too. Interesting stuff for sure.

Our main room was nicely filled for every program. A real testament to the subjects discussed, and the quality of the faculty.

The program includes a mix of practice and substantive topics. Here, Virginia's Steve Clarke in one of the breakout rooms (also nicely filled), presenting on "Federal Court and the Daubert Challenge – How To Prepare."

But it wasn't all eminent domain, property, and CLE credits. Naturally, with the beautiful Arizona winter weather, we found time to get out-of-doors and do things. Like this intra-firm golf tournament.

Which firm prevailed? You'll have to ask them who has the bragging rights.

What was especially nice was that our sponsor tables and the ALI-CLE registration table could be outside of the presentation rooms. Love that AZ weather.

New Jersey's Tony Della Pelle and Connecticut's Dwight Merriam on "COVID-19 Takings."

Our faculty includes not only lawyers and law professors. We also have other industry professionals come and present. Here, Washington's Martyn Daniel, Texas' Kristen Bennett, and (lawyer) Alan Ackerman from Michigan speaking about "Maximizing Relocation Benefits: Understanding the Law and Regulations to Ensure Fairness."

Ah, ethics. A tough subject to cover. Especially at 8am. But Georgia's Ivy Cadle (with the obligatory "go dawgs!"), Michigan's Darius Dynkowski, and (off-screen) Virginia's Kelly Sheeran and Texas' Justin Hodge filled the room with "Ethics Jeopardy! Live."

Yeah, Justin really did go for the end zone for his role as Ethics Jeopardy! host.

We understood the situation. Our faculty, staff, and attendees came to Arizona from around the nation. Some places have opened up, others are still getting there. We minimized any risks. Spread out in a huge room, and everyone was pretty cool with the modest requirements from ALI-CLE. What was especially good was that nearly every event but the actual programming were outside. 

Another featured panel was on the Supreme Court's big decision in Cedar Point Nursery. We brought together three expert perspectives on the case and what it means for the future. "Did the Supreme Court Signal a New Direction for Property Rights in Cedar Point Nursery?" featured California's Joshua Thompson (prevailing counsel in the case), U. Virginia lawprof Julia Mahoney, and (off-camera, since he remoted in) Maryland's Matthew Littleton, who filed a government-side amicus brief in the case.

Also pictured: the moderator, some guy who writes a blog.

Colorado's Katie Gray and Nebraska's Bill Blake on "Project Abandonment: How to Position Your Client for the Fallout When Projects Don't Get Built." Really useful.

Tag swag (aka badge flair) courtesy of our Platinum sponsor.

Our two fave tags.

Outdoors at night - really nice under the lights by the fire, after a long day of CLE programming.

Hawaii's Mark Murakami teamed with Wisconsin's Smitha Chintamaneni for "Why Jurisdictional Offers Must Include an Assessment of Severance Damages."

Even our final programs each day attracted a substantial crowd, often tough to do after long days of sitting in class. A testament to the strength of the faculty and the topics. Here's the audience for "Defending the Appraisal in the Courtroom - The Insider's View."

We put speakers with competing views on these panels, to get the blood pumping and keep everyone's attention.

Saturday morning, after two full days of (great) programming, is still a tough spot for a speaker, because they have to keep us focused, and interested.

That's why we always reserve these spots for two old hands, who will keep us zeroed in. Above is California's Jim Burling, with a tour-de-force solo hour on "What Are the Top 20 Ways to Increase the Cost of Housing? The Answer May Surprise You!"

Below, Michael Berger (looking a bit like Big Brother, admittedly), who remoted in from California with his annual "Regulatory Takings Update."

Feral cats and property rights had us smiling (ask Michael about what this refers to).

Michael Berger is Watching You.

A group photo of the William and Mary Law School contingent at the Conference (minus two other WM Law colleagues who could not be there for the photo). Recent and long-time alumni, current law students, a law prof, and (fourth from left) Jim Burling who later this year will be awarded WM Law's Brigham-Kanner Property Rights Prize at the B-K Conference in September 2022.

A pretty good showing for the alma mater.

There was a whole lot of podcasting going on. Thanks, Infrastructure Junkies and Eminent Domain Podcast. Can't wait for the episodes you recorded.

Again, thank you sponsors!

What about next year? Usually, on the last day of a Conference, we announce the dates and the venue for the following year. This year, due to some slowdowns, ALI-CLE couldn't quite get all the requirements in place to make a formal, official announcement. As soon as we know the venue, we'll go loud here.

As for the date: same date as usual - last week of January or first week of February, depending on the football schedule (which we're trying to avoid).

Stay tuned.

 

Indiana App: Even When Federal Agency Steps Into The Shoes Of A Local Redevelopment Agency, It Has To Follow Local Rules

Like a lot of things in Gary, Indiana, the Housing Authority was "troubled." So troubled, the feds took it over. The Housing Authority received big money from the feds, and was required to agree to an annual contribution agreement, by which the Authority ok'd a HUD takeover in the even of the Authority's substantial default.

Next up, default. The city dissolved the Housing Authority's Board of Commissioners, and HUD appointed one of its employees to be the administrator of the Authority and to serve as the Board of Commissioners. Back in business.

Part of the administrator's ... ahem ... "Authority's" business was redevelopment. The Authority decided to take 624 Broadway's property (which, not surprisingly, included 624 Broadway) to do some mixed-use and affordable housing. The taking was undertaken under Indiana's eminent domain procedures. Attempts to purchase the property were not successful, so the Authority instituted an administrative taking.

The property owner thought that the Authority wasn't adhering to the required process, and filed lawsuit which sought to enjoin the taking. The trial court entered summary judgment in favor of the Authority.

In 624 Broadway, LLC v. Gary Housing Authority, No. 21A-CT-653 (Nov. 10, 2021), the Indiana Court of Appeals agreed, but only in part.

The court first concluded that a HUD employee could step into the shoes of the Authority's Board of Commissioner's. Federal law preempts Indiana's requirement that a Board of Commissioners be comprised on seven people. Seven commissioners isn't one HUD administrator, the property owner argued. Moreover, Indiana law requires Commissioner decisions to be ok'd by the Gary Common Council, and the HUD administrator had not done so before the taking. The court concluded these requirements conflict with federal law, and in this case, Indiana law "must yield the HUD administrator's authority under the United States Code." slip op. at 12 (footnote omitted).

Next, the court also rejected the property owner's argument that the Authority was not authorized by Indiana law to exercise eminent domain for mixed-use development because the statue only authorizes low-income housing. No, the court concluded, a fair reading of the enabling statute's requirement of low-income housing only means that a part of the project be for low-income housing:

The plain language of section 36-7-18-2 does not restrict a housing authority from providing “safe and sanitary dwelling accommodations for persons of low income” in a mixed-use development, or from otherwise acquiring a specific property when that property is within an area of unsanitary or unsafe housing conditions.

Slip op. at 14.

The court also rejected the owner's argument that the HUD-helmed Authority violated the Uniform Relocation Act. But as we all are aware, the URA does not recognize a private cause of action. It's mostly the Pirate's Code.

Things were not looking good for the property owner.

But hold on! On the fourth claim -- that the Authority did not provide the owner with proper notice and a chance to be heard -- the court sided with the owner. Although the owner framed the argument as one of due process, the court treated it as a statutory claim because Indiana's eminent domain statute sets out the requirements for notice and hearing. And if the HUD administrator stepped into the shoes of the Authority, then she also has to live with whatever requirements Indiana law places on the Authority.

Strictly construing the statute (you know, the canon of construction of eminent domain statutes is that they are read strictly "both as to the extent of the power and as to the manner of its exercise," slip op. at 16-17), the court concluded that the statute's requirements for published notice at a certain time, along with service on the property owner, mean what they say, and that the record in the case was clear that the Authority didn't mail notice to the owner, and that it didn't publish notice within the prescribed time.

The court rejected the Authority's argument that this was all harmless (the owner apparently found out and showed up):

Further, while the Gary Housing Authority suggests that its failure to serve written notice of the resolutions on Allen was harmless as he still learned of the two meetings and attended, we cannot agree. 624 Broadway moved to continue the October 17 hearing to obtain its own appraisal of the property, which motion the Gary Housing Authority denied. The Gary Housing Authority’s failure to properly serve 624 Broadway and its failure to hold its damages hearing no fewer than thirty days after the date of last publication contributed to 624 Broadway’s inability to obtain its own appraisal of the property prior to the October 17 hearing and to 624 Broadway’s inability to present competing evidence of its damages at that hearing. We cannot say with confidence that, had the Gary Housing Authority complied with Chapter 2, as it was required to do, it would have assessed the same damage award for the property to 624 Broadway.

Slip op. at 21.

Will the remand for the correct process stop the HUD-led eminent domain train? Has the delay in the taking derailed the project? We shall see.

624 Broadway, LLC v. Gary Housing Authority, No. 21A-CT-653 (Ind. Ct. App. Nov. 10, 2021)

Join Us - Wed, Nov 3, 2021 (8pm ET) - Eminent Domain & Right-of-Way Club

Please plan on joining us next Wednesday, November 3, 2021, at 8pm ET for the next gathering of the Eminent Domain and Right of Way Club, a social media gathering spot "geared toward right of way professionals as well as anyone interested in the acquisition of land rights for infrastructure projects." Register for the (free) Clubhouse App here.

I must say that I'm intrigued by this newfangled "clubhouse" thing, and from what I gather it is a place for those who share interest in a topic to talk a bit of shop in a friendly and informal environment. What's nice about this group is that it isn't necessarily geared only towards condemnation lawyers (who are welcome, but not the center of gravity), but includes all of the other professionals involved in the industry. 

The topic of the day for this meeting is something near and dear to my heart, "What is This Thing We Call 'Property?'" We're going to talk about how both the law and the culture define that term, how ownership is viewed and respected (or not), and -- of course -- how eminent domain law and the right of way acquisition process values property and property rights.

So mark your calendars, download and install the app, and join the conversation. See you soon.

Registration Open Now: ALI-CLE Eminent Domain & Land Valuation Litigation Conference, Jan 26-29, 2022, Scottsdale

All the topics you want to know about, presented by top-notch faculty from across the nation. Sessions include:

• Keynote: Do Animals Have Property Rights?
• Did the Supreme Court Signal a New Direction in Property Rights in Cedar Point Nursery?
• Maximizing Relocation Benefits: Understanding the Law and Regulations to Ensure Fairness
• Challenging Public Use: Lessons From a 67-Day Trial
• COVID Takings
• Property Rights as Civil Rights
• Eminent Domain National Update
• Federal Court and the Daubert Challenge: How to Prepare
• How to Position Your Client for the Fallout When Projects Don't Get Built
• Rural Broadband and the Emerging Constitutional Challenges
• Are Precondemnation Entry Statutes Still Valid After Cedar Point Nursery?
• How Condemnor and Property Owners' Counsel Prepare the Battlefield
• How Will the Trillion Dollar Infrastructure Bill Impact Your Practice?
• Ethics
• ...and more, including a full slate of networking and social events!

We've sold out the last few years, so don't miss out. Room block now taking reservations. Registration and agenda information here.

Join us in Scottsdale in January!

Join Us For The 39th Annual ALI-CLE Eminent Domain & Land Valuation Litigation Conference, Jan 26-29, 2022 (Scottsdale, AZ)

All the topics you want to know about, presented by top-notch faculty from across the nation. Sessions include:

• Property Rights as Civil Rights
• Eminent Domain National Update
• Just Relocation: Understanding the Law and Regulations to Ensure Fairness
• Challenging Public Use: Lessons From a 67-Day Trial
• COVID Takings
• Federal Court and the Daubert Challenge: How to Prepare
• Did the Supreme Court Signal a New Direction in Property Rights in Cedar Point Nursery?
• How to Position Your Client for the Fallout When Projects Don't Get Built
• Rural Broadband and the Emerging Constitutional Challenges
• Are Precondemnation Entry Statutes Still Valid After Cedar Point Nursery?
• How Condemnor and Property Owners' Counsel Prepare the Battlefield
• How Will the Trillion Dollar Infrastructure Bill Impact Your Practice?
• Ethics
• ...and more, including a full slate of networking and social events!

We've sold out the last few years, so don't miss out. Room block now taking reservations. Registration and agenda information here.

Join us in Scottsdale in January!

Still Time To Join Us: ALI-CLE Eminent Domain & Land Valuation Litigation Conference (Online!) This Thursday & Friday. Tuition Deals! #EminentDomain2021

Yes, it starts tomorrow, Thursday, January 28, 2021, but we're "remote" this year, so it is not too late to register to join us for the 38th Annual ALI-CLE Eminent Domain & Land Valuation Litigation Conference. This is the "big one" where the nation's best practitioners, scholars, jurists, and other industry professionals gather to talk shop about the subjects we know and love.

Details here (ALI-CLE's page with faculty, agenda, and times), or here (a recent episode of Clint Schumacher's Eminent Domain Podcast, where we preview the Conference). Here's your chance to be a part of what is the best conference on these topics.

We have set it up to take advantage of the remote format, and tuition has been reduced (thank you to ALI-CLE for recognizing this, and for our sponsors for being so generous). We're seeing a lot of first-time registrations, and this is a great opportunity to give us a test drive if you've always thought about attending, but never wanted to spend 4 days away from the office to do so.

A long-timer coming back? Look for the special deal which includes a discount on the 2022 conference.

We're having programs with intriguing subjects such as "Planning to Win: Practical Strategies for a Successful Inverse Condemnation Case," "How Do I Keep My Firm’s Doors Open When the Courthouse Doors Are Closed? Making Your Practice More Efficient When You Can’t Try Cases," "Where Is the Supreme Court Headed on Takings Cases? Regulatory Takings Update and Cedar Point Preview," "No Show and All Tell: Breaking News in Property Rights and Takings," "More Than the Fifth Amendment: Other Tools for Upholding Property Rights," and "Evaluating Lockdown, Moratorium, and Emergency Claims."

Your 2021 ALI-CLE Eminent Domain & Land Valuation Litigation Conference (Jan 28-29, Remote) BINGO Card

If you "get" this, you should be registered for the 38th Annual Eminent Domain & Land Valuation Litigation Conference, to be held remotely on Thursday and Friday, January 28-29, 2021.

The list is growing rapidly, and you need to join us!

This is the "big one" where the nation's best practitioners, scholars, jurists, and other industry professionals gather to talk shop about the subjects we know and love. We're having programs with intriguing subjects such as "Planning to Win: Practical Strategies for a Successful Inverse Condemnation Case," "How Do I Keep My Firm’s Doors Open When the Courthouse Doors Are Closed? Making Your Practice More Efficient When You Can’t Try Cases," "Where Is the Supreme Court Headed on Takings Cases? Regulatory Takings Update and Cedar Point Preview," "No Show and All Tell: Breaking News in Property Rights and Takings," "More Than the Fifth Amendment: Other Tools for Upholding Property Rights," and "Evaluating Lockdown, Moratorium, and Emergency Claims."

Details here (ALI-CLE's page with faculty, agenda, and times), or here (the latest episode of Clint Schumacher's Eminent Domain Podcast, where we preview the Conference). Here's your chance to be a part of what is the best conference on these topics.

Always wanted to join in, but didn't like the travel? Here's your chance to try us out with reduced tuition. A long-timer coming back? Look for the special deal which includes a discount on the 2022 conference.

After Telling Owner To Beat It, Condemnor Acts Surprised That It Did. Cal Ct App: "Moving" From Property Does Not Mean "Completely Physically Dispossessed"

Go on, read the facts in the California Court of Appeal's (unpublished) opinion in San Joaquin Regional Transit District v. Superior Court, No. C084755 (Dec. 1, 2020). It's worth your time, believe us.

After chasing from California a long-standing manufacturing and service business (to Illinois) by instituting condemnation proceedings on the property on which its Stockton plant was located and then obtaining immediate possession, the District changed its mind and abandoned the taking. The owner sought damages under a statute (Cal. Code of Civ. P. § 1386.620).

The District argued that it was not liable for all damages proximately caused by the proceeding, because the owner had not "moved from the property."

Wait, you say, I thought you just told me that the condemnor obtained possession of the property? Yes, it did, in two phases. First, the District and the owner stipulated to possession of the property subject to the owner's temporary ability to occupy the front portion of the property (with payment of rent to the District) to allow it to wind down its operations and move to Illinois, and get out by June 2012. The owner had to vacate the unimproved rear portion a year earlier, by May 2011.

Sardee characterizes the back of the property as integral to the company’s operations for storage, truck turnaround, and housing dumpsters. According to Sardee, District’s right of possession destroyed any opportunity for the firm to expand its facilities, undertake larger and more complex jobs, and operate its business normally.

. . . .

After being contacted by District, Sardee reviewed its options and determined that quickly finding a build-to-suit site would not work. To complete the build-to-suit option without a transition facility, Sardee would have to shut down operations for five to six months, which would kill its business. Instead, Sardee decided to expand and upgrade Sardee Lisle to allow for the transition of Sardee Stockton’s work and  product lines to Sardee Lisle [in Illinois]. Sardee was aware of its duty to mitigate and aware of the disruption to its manufacturing business at Sardee Stockton the move would cause. Sardee management explored options for a new facility from 2009 through 2011.2 Ultimately, Sardee planned on moving the company to its Lisle facility on an interim basis.

Slip op. at 5.

In response to the owner's claim for damages, the District asserted that "move from the property" language requires that the owner be completely physically dispossessed of the property, and because the owner remained for a time on part of the property, the statute did not mandate payment of damages. The court of appeal rejected that construction:

We note section 1268.620 does not use the term “physically dispossessed,” it only states the party must “move[ ] from” the property. When interpreting a statute, the plain language of the statute governs. We give the words their usual and ordinary meaning. Absent ambiguity in the language, we presume the Legislature meant what they said. (Heidi S. v. David H. (2016) 1 Cal.App.5th 1150, 1173.) The question becomes, did Sardee move from the property, not was Sardee completely physically dispossessed from the property.

District argues Sardee had not moved within the meaning of the statute “because it had exclusive rights to physically occupy the portion of the Property where it operated its Stockton facility, it did occupy the portion of the Property where it operated its Stockton facility, and it continuously operated its business there. As long as Sardee continued to operate its business on the Property, a fact confirmed by Sarovich’s April 20, 2012 email, there’s no basis for finding that it moved from the Property.”

The trial court disagreed, finding: “Sardee was physically dispossessed because [District] had taken physical possession of the northern portion of the parcel, and Sardee was paying rent to [District]. No taxes were being imposed by the County Tax Assessor. Further, Sardee had physically moved almost everything it needed to move from Stockton to Lisle to perform all of Sardee Stockton’s manufacturing operations in Lisle.

Slip op. at 13-14. The court of appeal agreed with the trial court's analysis.

This is an important case (and should be published) for at least a couple of reasons.

First, it rejects what is, in our view, a ridiculous argument for how "move" should be interpreted. After telling the owner that it better get lost (and the owner did so in a very practical way that mitigated damages), the condemnor abandoned the taking and then wanted to also abandon its obligation to make the owner whole for the trouble it caused. Yes, the owner didn't 100% actually move, but only because it agreed to pay rent to the District. Second, what about reliance? When a condemnor institutes eminent domain proceedings and then obtains possession before final judgment, how is a property owner supposed to react except by doing its best to try and comply?

As the court of appeal approvingly quoted the trial court:

“[District] made repeated declarations that it was not abandoning its action. [District] had its Order of Possession, Sardee had spent several years setting up the interim site in Lisle for Sardee Stockton’s manufacturing work, had located a relocation site in Stockton, and had moved equipment and begun carrying out Sardee Stockton’s manufacturing functions in Lisle. [District] had refused Sardee’s request for extra time to September 30, 2012. Sardee had to be out, and it affirmatively altered its position according to [District’s] representations and actions.”

Slip op. at 12.

The court agreed that "move" doesn't mean merely the thwarting of the owner's plans. Id. But it also concluded that when the owner actually moves, the statute means what it says.

San Joaquin Regional Transit District v. Superior Court, No. C084755 (Cal. Ct. App. Dec. 1, 2020) (unpub.)

Utah App: "All bets are off for any actions other than exactness." Close Enough Isn't Good Enough In Condemnation - When The Statute Requires Notice To Property Owners Within 10 Days, It Means 10 Days

When an opinion starts off with "[t]his case offers a feast of legal issues - ranging from procedural to constitutional - but its main course is a cautionary tale to government entities: they must follow the exact statutory requirements for bringing a condemnation action[,]" you just know that you have to read the entire thing.

That's exactly what we recommend with the Utah Court of Appeals' opinion in Salt Lake City Corp. v. Kunz, No. 20190010-CA (Oct. 16, 2020). The court concluded that when a statute requires that a condemnor provide the property owner with at least 10 days written notice and an opportunity to be heard before the condemnor takes a final vote to approve exercising eminent domain, "substantial compliance" isn't sufficient. We make this recommendation that although this sort of statutory requirement is quite common -- as are examples of condemning agencies not strictly adhering to the required procedures -- we find that courts are just as often willing to let it slide, and these requirements are honored more in the breach than in the observance. Thus, we appreciate reading decisions in which courts do what they should and hold the condemnor's feet to the fire the legislature established.

How bad was the city's deviation from the required procedures here? Not that bad, frankly. Instead of conforming to the notice and opportunity requirement, the city did this:

Based on the undisputed facts, the City fully complied with those requirements as to the first meeting by sending notice at least ten business days in advance and allowing Owners to speak at the meeting. However, it only half complied as to the second meeting because it allowed Owners to speak but did not send written notice at least ten business days in advance. And it did not comply with either requirement as to the third meeting because the notice it sent arrived only three business days before the meeting and Owners were not allowed an opportunity to be heard.

Slip op. at 16.

Responding to the owners' objection, the city responded with "ahh, close enough; besides, there's no showing that the owners didn't have actual notice or didn't have an opportunity to be heard." See slip op. at 18. Sorry, held the court, when the statute says a condemnor must do X, it must do X. Strict compliance:

Once the statute is determined to require strict compliance, all bets are off for any actions other than exactness.

Slip op. at 18-19. The whole point of these type of procedural requirements isn't process for the sake of process, but to protect the rights of the property owners:

And the statute in this case does not relate to a mere fax number, recitation of a statute in a disclaimer, or a timeframe like the ones in the cited cases; instead, it goes to the weighty matter of providing procedural fairness and placing a check on a government entity’s immense power to deprive an owner of a substantive private property right. Thus, those cases do not allow a reading of substantial compliance into this statute because the statute’s requirements are mandatory.

Slip op. at 18.

Prejudice to the property owner, vel non, is not even relevant, and the court rejected the city's argument that the owners needed to have shown some prejudice that resulted from the lack of notice and hearing. 

In sum, we view section 78B-6-504(2)(c)’s requirements as strict based on longstanding precedent. Actual notice simply won’t fly. And we conclude that Owners need not show prejudice in this context. Accordingly, we affirm the district court’s interpretation and dismissal under the statute.

Slip op. at 20-21.

One last thing (and this is related to our recent post on litigation fees under the Uniform Relocation Act). The court rejected the owners' claim to attorneys fees under the URA. The court mirrored the rationale of the Ohio Supreme Court, holding that the URA only applies to federal agencies, not Salt Lake City. The court also engaged in a somewhat weird (to us) approach to the URA's language that fees may be awarded if the agency "cannot acquire the real property by condemnation." The court read this language as meaning not that the owner defeats a particular taking, but that a court must conclude the condemnor "cannot" take the property. Slip op. at 23-24. In other words, there has to be some kind of final judgment that the taker can't take at all, not just that its case fails, as here.

We find that rationale to be just ... strange, especially in light of the court's earlier ruling on adhering to the requirements of Utah's procedural statute. Are there any circumstances in which a court will absolutely prohibit a condemnor from ever taking the property? We sure are hard-pressed to imagine any. In short, prosecuting and defending eminent domain actions are always done seriatim, and each case stands or falls on its own. A condemnor may repeatedly try to take property, but if it fails to adhere strictly to the requirements of how to do so, it should be on the hook for "not acquiring" the property. 

But despite this glitch in the court's reasoning, we (naturally) recommend you read the opinion, and incorporate its core holding: close enough is not good enough in eminent domain.

Salt Lake City Corp. v. Kunz, No. 20190010-CA (Utah App. Oct. 16, 2020)

Ohio: Uniform Relocation Act Doesn't Require Fee-Shifting For Inverse Cases (Lower Court Split Alert?)

Check this out, a recent case on the Uniform Relocation Act from the Ohio Supreme Court. Does it conflict with a decision that goes the other way from the West Virginia Supreme Court, or is it consistent with a South Dakota decision (cert. denied in that one, by the way)? Read on and find out.

In State ex rel. New Wen Inc. v. Marchbanks, No. 2017-0813 (Oct. 14, 2020), the property owner prevailed on an inverse condemnation case in the Ohio Supreme Court. (Well, not technically an "inverse condemnation" case because Ohio doesn't recognize such a claim when a government action has de facto taken property; instead, the property owner applies to the Supreme Court to issue a writ of mandamus to compel the government to institute eminent domain.) But no matter - the property owner (a Wendy's restaurant) won its takings case in the Ohio Supreme Court after the Ohio DOT's highway project closed off access to the Wendy's from the highway.

The owner sought attorneys' fees under the URA's provisions that shift the usual rule of each party bears its own fees when an owner is forced to initiate a claim for compensation.

The Ohio Supreme Court held that the URA does not require payment of attorneys' fees to a property owner who prevails in a federally-funded inverse condemnation case for two reasons:

First, the URA only governs actions by federal agencies:

When a federal agency institutes a condemnation proceeding in federal court, the act authorizes the court to award “reasonable costs, disbursements, and expenses” to the real property owner, including reasonable attorney fees, if the federal agency cannot acquire the property by condemnation or abandons the proceeding. 42 U.S.C. 4654(a)(1) and (2). And under 42 U.S.C. 4654(c), a similar award is authorized for a plaintiff who prevails in an inversecondemnation proceeding against the United States for the taking of property by a federal agency or for a plaintiff in such a proceeding that ends in a settlement; see also 49 C.F.R. 24.107. By their terms, however, these provisions apply only to exercises of eminent domain by federal agencies. The federal act does not create a statutory basis for an award of attorney fees in a state mandamus action.

Slip op. at 3. The URA only "imposes an obligation upon federal officials to ensure certain conditions are met before approving contracts. It does not purport to be a statutory authorization for this court to award attorney fees in a mandamus action." Slip op. at 3-4.

Second, the court rejected the owner's argument that Ohio has adopted the URA's requirements. "[T]he Revised Code contains no counterpart to 42 U.S.C. 4654(c) or 49 C.F.R. 24.107 authorizing an award of attorney fees in a mandamus action brought to compel an appropriation proceeding, and New Wen does not rely on any Ohio statute in its application for an award of attorney fees." Slip op. at 4. The court also rejected the argument that by regulation, the Ohio DOT had adopted the URA's requirements. The owner asserted that even though Ohio statutes had not done so, the Ohio regulations plainly mirror 49 C.F.R. 24.107's requirement to pay inverse condemnation attorneys fees.

No deal, held the court, the administrative regulation was ultra vires because it "lacks statutory authorization." Slip op. at 5. If an Ohio statute doesn't authorize URA-like fee shifting, then a regulation alone can't do it.

Finally, in what may be the weirdest quirk in the opinion, the court concluded that the fee-shifting provision in the Civil Rights Act (42 U.S.C. § 1988) does not compel an award of attorneys fees, even though the property owner alleged a section 1983 claim in its complaint. The court concluded that it -- the Ohio Supreme Court -- does not have original jurisdiction to consider 1983 or 1988 claims, and therefore rejected the claim. Now it is true enough that the Ohio Supreme Court does not have original jurisdiction to consider a 1983 claim or the related 1988 claim for fees. An Ohio trial court, however, would have (concurrent) jurisdiction over such claims.

Does it strike you as odd that simply because of a procedural quirk in how an owner raises an inverse condemnation or takings claim in Ohio -- as a mandamus action brought directly in the Supreme Court -- that the owner is deprived of the otherwise-available opportunity to recover fees and costs for a pretty plain violation of its federal constitutional rights? Does this mean that Ohio property owners should skip the Ohio Supreme Court and bring their takings and mandamus claims in a federal court, either under that court's original (Knick) or supplemental jurisdiction?

And what of the differences in analysis between the Ohio court and the West Virginia court on the URA issues? Are we seeing a lower-court split with cert potential?

Stay tuned, as always.

State ex rel. New Wen, Inc. v. Marchbanks, No. 2017-0813 (Ohio. Oct. 14, 2020)

In Which We Return To The Pendulum Land Podcast To Talk "Snakes on a Plane," Eminent Domain Songs, And What Might Be Virginia's First True Regulatory Takings Case

In between talking about eminent domain-y songs, the goofy cult film "Snakes on a Plane" (yes, we really do have a cast-signed poster of that film in our office), and other fun stuff, we returned to the Pendulum Land Podcast for part II of our guest spot, where we also discussed Virginia Uranium, Inc. v. Commonwealth, No. CL15-623 (July 30, 2020), a recent decision from a Virginia trial court about regulatory takings and "damagings." 

[Stream the podcast above, or better yet, subscribe and become a regular listener. The podcast is both entertaining and informative.]

The Virginia Uranium case involves a long-standing -- but "temporary" -- moratorium on uranium mining, and the court's order analyzes Palazollo, the Salt-peter case (Lord Coke alert!), Penn Central, and Lucas.

The court concluded that the inability to mine uranium was a damaging under the Virginia Constitution because it "directly affects Plaintiffs' ability to exercise their right to their ownership and leasehold interest in the mineral estate[.]" Slip op. at 14.

The court also concluded this was not a Lucas taking because the moratorium does no more than duplicate the result that could have been achieved under Virginia nuisance and property law. Slip op. at 16.

Finally, applying the Penn Central ad hoc test, the court held that on balance, the three factors tipped in favor of the property owner: the 38-year moratorium, while temporary, is "extraordinary," "all but extinguished" the owner's rights to use its land, and "the moratorium has also dramatically decreased the value of the estate" (a reduction in value from $427 million to $1). Slip op. at 18. The owner's "distinct" (not "reasonable") investment-backed expectations were solid: it "poured millions of dollars into the development of this mining project, under the guise from the General Assembly that this moratorium is temporary and that they will eventually be able to mine uranium." Slip op. at 10.

A property owner wins a Penn Central claim...rare good news! But here's the not-so-good part: it it was too late for the property owner to bring a claim for compensation for the damaging and the taking because the statute of limitations expired, and the court (reluctantly) declined to declare the moratorium unconstitutional:

Accordingly, this Court cannot legislate against the will of the people as evidenced by the actions of the duly-elected General Assembly and by testimony before this Court. This decision was not made flippantly. On the contrary, this Court approached this important question with the utmost solemnity. After all, the right to property is interdependent with personal liberty. See AGCS, 293 Va. at 476. It is "the highest Right a Man hath or can have to any Thing." G. Jacob, A New Law Dictionary (1st ed. 1729). This Court cannot emphasize this point strongly enough. But, even the highest rights cannot be used in a vacuum; we are not solitary creatures. Our actions impact those around us, and sometimes those actions must be hemmed in so as to protect others.

Plaintiffs ask this Court to declare Code § 45.1-283 unconstitutional, and therefore substitute this Court's judgment for that of the legislature. Clearly, their property rights have been harmed, but the greater harm would be against the people. The common law supports it. Common sense supports it. To find otherwise would be untenable. This Court hereby finds in favor of Defendants.

Slip op. at 28 (footnote omitted).

We think this one is going up the chain, and if so, it could well be the first actual regulatory takings case under the Virginia Constitution. Stay tuned as we follow along.

Virginia Uranium, Inc. v. Commonwealth, No. CL15-623 (Cir. Ct., Wise Cty., July 30, 2020)

There's Still Room: Join Us For The 17th Annual Brigham-Kanner Property Rights Conference (Online, Free!)

Although it is set to launch this Friday, October 2, 2020, there's still more than enough time to register (and room at the inn) for you to join us for the 17th Annual Brigham-Kanner Property Rights Conference at the William and Mary Law School.

Like everything else this season, the Conference is online (register here), and although we would have preferred to gather in-person of course, the online format has some advantages: the number of attendees isn't limited by the classroom size (this year's registrations are at record levels), you don't need to travel to Williamsburg, and the Conference is free if you don't want Virginia CLE credit for attending. What a deal.

In our opinion, this is the best legal academy/practicing bar conference on property law. This year, the Conference honors the Brigham-Kanner Prizewinner, Harvard Law School Professor Henry Smith.

Here are the panel topics (complete program agenda here):

• Where Theory Meets Practice: A Tribute to Professor Henry E. Smith Recipient, 2020 Brigham-Kanner Property Rights Prize
• The Housing Crisis
• Roundtable: Emerging Issues in Takings and Eminent Domain Law
• The Reach of Government’s Confiscatory Powers Over Exigencies and Emergencies
• The Risk of Unjust Compensation

Speakers include Professor Smith and past Prize winners, prominent members of the practicing property bar, and property scholars. The complete list is posted here.

Come, join us without even leaving home (or the office)! Register here. Did we mention the tuition is FREE?

New Property/Eminent Domainey Podcast: Pendulum Land Podcast

Check this out, a new podcast for your dirt lawyer types to follow, Pendulum Podcast. As it describes itself:

An informative and sometimes irreverent podcast for those interested in eminent domain, right of way land acquisition, or infrastructure development. Topics for discussion frequently include condemnation of real property for public use, just compensation, the Uniform Relocation Act, as well as your hosts' hot takes on popular culture.

Uniform Relocation Act? Right of way and eminent domain? Be still our hearts.

Two eps are posted so far, "Eminent Domain: Good or Evil?" (embedded above), and "Right of Way Infrastructure: The Hidden Industry. From the Uniform Relocation Act to Eminent Domain." We've listened to the first one, and will soon do so with the second.

Count us as subscribers. Highly recommended you become one as well.

Unboxing The 2021 (Scottsdale) ALI-CLE Eminent Domain Conference Swag: Get Yours Today!

Missed out on the 2021 ALI-CLE Eminent Domain and Land Valuation Litigation Conference swag?

Well fear not: here's your chance to get your high-class reminder -- a kit of road warrior essentials -- to save the Conference date on your calendar. We're already underway with planning the agenda and faculty, so it's never too soon to block it off (January 28-30, 2021, at the 4-Diamond DoubleTree Resort, Scottsdale, Arizona). 

If you were not able to get your swag in Nashville, send us a note ([email protected]) and we shall gladly drop one or two in the mail to you.

While supplies last!  

Greetings From The 37th Annual ALI-CLE Eminent Domain & Land Valuation Litigation Conference, Nashville

We're in Nashville for the next three days, where we have record attendance (see above for the name-tag matrix), with nearly 300 attendees spread out over three rooms. 

The Big Room, before. 

The Big Room, during. Like we said, record attendance. 

Thanks to the generosity of our sponsors, we have very good social events. Like the lunch, below.

Clint Schumacher brought his Eminent Domain Podcast studio to Nashville to record future episodes.

Record Attendance (But There's Still Time For You Last-Minute Filers) At Nashville ALI-CLE Eminent Domain Conference

Picture 1: how normal people see pie.

Picture 2: how you see pie if you're coming to the
ALI-CLE Eminent Domain Conference. 

If you get the above, you probably are already set to join us next week for the 37th Annual ALI-CLE Eminent Domain and Land Valuation Litigation Conference in Nashville. (If not, shame on you!).

And having just reviewed the latest registration list, I can report that we have an all-time record attendance.  But there's still room for those of you still not committed. Register here. Don't miss out. There will be pie. 

(Nearly) Last Chance To Join Us In Nashville For ALI-CLE's Eminent Domain Conference

You can also fly, drive, or bike to the upcoming 37th Annual ALI-CLE Eminent Domain & Land Valuation Litigation Conference. in Nashville. Limited space still available, so don't delay further and register now. We're on track to record attendance, so you don't want to miss the best nationally-focused three-day program on our area of law.

Takings, Knick, compensation, appraisals ... and a bit of fun thrown in. We have many new attendees, and many new speakers, too.  

If You Want To Claim An Interest In A Condemnation Award, Formalize The Interest

The holding of the Indiana Court of Appeals in City of Kokomo v. Estate of Newton, No. 19A-PL-1321 (Dec. 18, 2019) is deceptively simple: if a party does not own a formal interest in the property being taken, evidence of the damages which it incurred as a result of the condemnation isn't relevant to the calculation of just compensation. 

That's workable as a black-letter rule, we suppose. But what about the very common situation where, due to circumstances, someone with an obvious stake in property being taken had not formalized that interest prior to the condemnation? 

That appears to have been the situation in Newton, where the two condemned properties had been owned by real-party-in-interest (Bradley Newton)'s mother at the time of her death. The properties were used by a company she also owned, Kokomo Glass. When she died, her son Wesley became the owner of the two parcels and the sole shareholder of the glass shop business, responsible for its day-to-day operations. But apparently, Mr. Newton didn't execute a lease for the glass shop's use of the parcels (even though it paid rent), or otherwise formalize the relationship between himself as the landowner, and himself as the shareholder of the corporate business. In our experience, this is somewhat common, especially with family property and businesses which transfer due to death. 

Thus, when the city filed its condemnation lawsuit, it sued only the owner of the land, the estate of Ms. Wesley, and did not include Kokomo Glass, even though the glass shop "which had operated its business on both parcels, was unable to continue operations." Slip op. at 3. The business moved to a different property. 

At trial, the Estate introduced evidence of the glass shop's relocation expenses and loss of profits caused by the taking. (The court had earlier denied the city's motion in limine to keep that evidence from the jury.) The jury's compensation award to the Estate included amounts which Kokomo Glass incurred. 

The court of appeals agreed with the city that evidence of Kokomo Glass's damages was not relevant to the amount of just compensation owed to the Estate as the landowner: "the fundamental purpose of our statutory eminent domain scheme is to ensure landowners are given just compensation when their property is taken." Slip op. at 5. Kokomo Glass was not a "landowner," and thus had no standing to claim compensation. 

The court rejected the Estate's arguments that the trial court properly admitted the glass shop evidence, because "the Newtons" should be considered the landowners. You can see where this argument came from. No doubt the Newton family considered both the land and the business "theirs," despite the lack of legal formalities to confirm that. Mr. Newton was the person rep of the Estate. He inherited fee simple title to both parcels. He also inherited Kokomo Glass, an S corporation, as the sole shareholder. He testified that the glass company paid rent for its use of the parcels to his mother, and after she died to the Estate, and then later to him. As the family lawyer noted, "but the owner of the glass company owns the property. I mean, it's all intertwined." Slip op.at 7.

We're guessing that if the family were drawing a Venn diagram about the relationship between the family, the land, and the glass company, it might look something like this:

The court of appeals, however, didn't buy it. The Estate and the glass shop are separate legal entities, despite the 100% concert of actual interests. Thus, if the city or the court of appeals were making a Venn, it would likely look like this:

The court rejected arguments that Mr. Newton was the real party in interest, the "true owner" of both the land and the business:

The record is clear that the only evidence of damages presented at trial, other than the agreed-upon $100,000 for the Main Street parcel, were damages allegedly incurred by Kokomo Glass. The Estate’s attempt to conflate Kokomo Glass with the Estate or with Bradley is not well taken. They are not “one and the same” as the Estate argued at trial. While Bradley is both the sole shareholder of Kokomo Glass and the personal representative of the Estate, only the Estate is a party to this matter, and it is a separate entity from Kokomo Glass. The Estate did not present any evidence that it had incurred damages related to the Union Street parcel, which was the sole issue before the jury.

Slip op. at 10. 

So the lessons we are taking from this case (assuming the Estate doesn't run it further up the food chain and seek review by the Indiana Supreme Court) are twofold.

First, it is best to formalize these common informal relationships. 

Second, but we also recognize that this often isn't possible (except with 20/20 hindsight) and there may be reasons why someone doesn't want to do them -- sentimentality, lassitude, inertia, or taxes, for example -- especially where death of a loved one is involved. So we're also thinking that Kokomo Glass might have tried to intervene as a party-defendant to assert its interest in the property. The opinion did mention the paying of rent; that indicates there was some kind of lease between the glass business and the landowner, no? We're not sure if intervention would have altered the result, but at least it seems like it would be worth a try. See slip op. at 10 n.6 (the court declined to decide "what damages, if any" the glass company would have been entitled to recover had it been added as a party).  

City of Kokomo v. Estate of Newton, No. 19A-PL-1321 (Ind. App. Dec. 18, 2019) 

Space Still Available For ALI-CLE Eminent Domain Conference, Nashville Jan 23-25, 2020

If you get this, you need to attend the 37th Annual ALI-CLE Eminent Domain & Land Valuation Litigation Conference, January 23-25, 2020, in Nashville.

And if you don't get this, you need to attend more. 

Register here. 

What's At 712 4th Street, S.W., Washington DC? Your Invite To The 2020 ALI-CLE Eminent Domain Conference (Jan 23-25, Nashville)

Don't Miss Out: Join The "Big Guns" And Secure Your Space At ALI-CLE's Upcoming Eminent Domain & Land Valuation Litigation Conference (Jan 23-25, 2020, Nashville)

We were not as creative as our colleague Paul Henry (see below), but our Planning Co-Chair Joe Waldo and I wanted to personally invite you to join the "big guns" in our area of law at the 37th Annual ALI-CLE Eminent Domain and Land Valuation Litigation Conference, January 23-25, 2020, in Nashville, Tennessee.

We've assembled an excellent faculty, and an agenda that covers the hot topics of the day. Go here to view the complete faculty list and agenda. Water rights, Knick, appraisal, ethics, civil rights, and a whole lot more in three days of the longest (and we think best) conference in our area of law. Also, for those new to the field, Andy Brigham and Jack Sperber are again leading their "Eminent Domain 101" program. A great way to learn the topic, or for experienced lawyers to get a quick refresher on the basics. Your registration allows free movement between all sessions and all tracks, so you can choose your menu ala carte.  

Of course, we're doing more than simply "talking shop," and we shall have our usual full slate of networking events, thanks to some very generous sponsors. Our faculty and attendees are well-known for being some of the friendliest and most welcoming in the business. And this is Nashville, and all that entails.

Register now. Spaces are already filling up. We are already at 25% higher registrations than at this point last year for the 2019 Palm Springs conference. The past few years have either sold out or come close, and the hotel block isn't unlimited. We want you with us, so sign up now!

Register Now! ALI-CLE Eminent Domain And Land Valuation Litigation Conference (Nashville, Jan 23-25, 2020)

Registration underway, so come join us! Agenda full of hot topics in takings and appraisal law! The best national faculty! Renew friendships, and make new colleagues! And Nashville! 

Download the brochure and make your plans for January. (Don't wait, we've sold out the past three years.)

ALI-CLE Eminent Domain & Land Valuation Litigation Conference - Jan 23-25, 2020, Nashville

Here's The Agenda And Faculty For The 2020 ALI-CLE Eminent Domain And Land Valuation Litigation Conference, Nashville, Jan 23-25, 2020

You overwhelmingly asked for Nashville, and we're bringing it to you!

Get ready, and hold your place now: here's the list of programs and speakers for the 36th Annual ALI-CLE Eminent Domain and Land Valuation Litigation Conference, to be held at the Downtown Nashville Hilton, January 23,- 25, 2020. Two-and-a-half days with top-notch national faculty (lawyers from both sides, judges, legal scholars, appraisers, relocation experts, and others).  

Early registration and group rates are available now. 

Here are just some of the programs:

• Featured Presentation: Property Rights as Civil Rights: Seeking Justice Though the Fourth and Fifth Amendments. Hon. Jonathan Apgar, Jamila Johnson, Alan Ackerman. Moderator: Leslie Fields.
• Making Sense of the New Rules After Knick v. Township of Scott: Where Do I Go, What Do I Do? David Breemer, Smitha Chintamaneni, Professor Bethany Berger. Moderator: Professor Steven Eagle.
• When A River Runs Thought It: Water Rights and Takings. Nancie Marzulla, Hertha Lund, and Charles McFarland. 
• Passive Takings by Government Inaction. Professor Christopher Serkin.
• Show, Don't Tell: The Dos and Don'ts of Demonstrative Evidence. John Murphy, Jeffrey Hamill.
• Is Close Enough Good Enough? Establishing the Date of Valuation in Direct and Inverse Cases. Neil Olson, Bill Ryan.
• Creative Approaches to Solving Difficult Appraisal Problems, Edward Burg, Bob Grace, MAI, Michael Rikon. Moderator: Joseph Waldo. 
• All You Need is Love: New Frontiers in Alternative Dispute Resolution in Eminent Domain. Cortney Young, Dwight Merriam.
• Road Warriors: Building and Trying an Eminent Domain Case From Your Laptop. Paul Henry, Jody McSpadden.
• Special Benefits: The Givings Clause? Heather Cunningham, Randy Smith.
• How To Try and Settle Pipeline Cases. Thomas Peebles, Melissa Glassman.
• Going Where No Court Has Gone Before: The Tension Between the Courts and Appraisal Methodology. Kevin Walsh, Kannon Conway. 
• Responding to Project Changes: Valuing a Taking When Government Action Changes or is Ongoing. Meghan Largent, W. Andrew Gowder. 
• Responding to the Abuse of Motions in Limine. Anthony Della Pelle, Williams James (invited)

There's also an Ethics program. For that, we are doing something a little different this year, with a special don't-miss presentation, "Surviving the Daily Fistfight: Finding Your Resilience When Every Day is a Battle" with Clint Schumacher, Christian Torgrimson, and Michael Ryan. 

And for those new to the field, or old hands who would like a refresher course, there's the "101" track on Thursday, going through an eminent domain case from A to Z. 

And this isn't the complete list, and there's more on relocation, regulatory takings from both sides of the case, effective strategies to determine unity of lands, fixtures, national updates for eminent domain and regulatory takings, and the "open mike" National Forum (where practitioners from around the nation share their issues and cases).

Look for the complete brochure shortly on the Conference web page on the ALI-CLE site.

And of course, there's Nashville. We're right around the corner from all that the town has to offer. Music City, USA. Hot chicken. The Grand Ole Opry. Country Music Hall of Fame. The Hermitage. 

So make your flight and hotel reservations now. Don't miss out. The attendance at the last several conferences has been record-setting, and the conference block at the hotel has sold out.

Join us - old friends and new colleagues! 

Md On Relocation And Present Participles: Tenant's Departure After City Told It To Get Out Was "Voluntary"

For many years, a tenant had a month-to-month lease from Baltimore for a space in one of the city's public markets. One day, the market sent the tenant an email informing it that it no longer "fit in the [redevelopment] plans," and that it should "pursue other options." The tenant took that as "get out." And instead of digging its heels in, the tenant did what the city instructed and sought "other options." It left.

The tenant then sued, claiming a taking. It also sought relocation benefits under Maryland's version of the Relocation Act, which requires "[w]henever a program or project undertaken by a displacing agency will result in the displacement of any person, the displacing agency shall make a payment to the displaced person" for things like moving expenses and the cost of locating a replacement business.

The question the Maryland Court of Appeals determined in Wireless One, Inc. v. Mayor and City Council of Baltimore, No. 18-71 (Aug. 23, 2019), was whether the tenant was a "displaced person" as defined by the statute. The court held no, even though the statute defines a displaced person as someone who moves from land "[a]s a direct result of a written notice of intent to acquire or the acquisition of such real property" by the agency. Wireless One left on its own, concluded the court, and was not displaced. It "voluntarily terminated its lease and abandoned its stall at the Market before" the city did anything to actually terminate the lease, and before the city did anything to start the redevelopment project. It didn't tell Wireless One that it had to leave by a certain date. All the city did was tell the tenant that it didn't fit with the city's plans and to move on. 

In other words, when the city emailed and told Wireless One to "pursue other options," the tenant should have shrugged its shoulders and done nothing. Isn't sending an email and telling the tenant to, in effect, "get out," an action to terminate the lease, and the first step in the redevelopment process? Guess not. What this means, tenants, is dig your heels in. Don't be a chump and take the city at its word and go quietly in the night. Ignore these notices. Fight. Only then, apparently, will you have a claim for relocation benefits. 

And here's the even better part. The term "displaced person" also does not include someone who enters into a lease after the agency acquires the property. And guess what, the City of Baltimore has owned and operated the public market for more than 150 years, since 1847. Talk about being "after." And there's no question Wireless One had entered into its lease in 2004. Yeah, you've been there 13 years, but the city has owned it a lot longer, even though an outfit called CSM managed the Market for the city: 

Here, it is undisputed that the Market was established by the City in 1847, and that it has been owned and operated by the City since its establishment. It was not until 2004, well after the City took title to the Market, that Wireless One entered into its lease. Put simply, it is undisputed that Wireless One acquired its lease after the City acquired title to the Market. Nothing in the management agreement between Respondents and CSM transferred title to the Market; rather, the management agreement simply authorized CSM to operate, manage, and redevelop the Market. As such, it is readily apparent that Wireless One leased its stall in the Market from the City after the City had taken title to the Market, and, therefore, the plain language of RP § 12-201(e)(2)(iii) applies, and Wireless One is< not a “displaced person.”

Slip op. at 27. In other words, pretty much every tenant of the city's market has no claim. At least not unless a tenant was there before 1847. And because the takings claim was tied to the relocation claim (see slip op. at 47 n.12), there was no taking either. 

Two justices dissented, arguing that "'Plain meaning,' like beauty, may be in the eye of the beholder." That's because the two dissenters didn't see it as obvious this result was what the relocation statute was intended to accomplish. "This case provides an example where a focus on one possible 'plain meaning' of a statute, together with a blind eye to the statute's history, leads to an interpretation that would undoubtedly astonish those who promoted and passed the statute." Dissent at 1. 

The dissent's objection to the "get out" = voluntary rationale was procedural. The court affirmed a motion to dismiss, yet the tenant had submitted testimony that it viewed this as an order to leave now. So summary judgment was not merited, and the case should have gone on to the trier of fact. 

The "city has owned since 1847" argument also didn't fly with the dissenters. They agreed with the State of Maryland's amicus brief, which argued that the Maryland Relocation Act was meant to mirror the benefits which would be available to the tenant had federal funds been involved (and the federal Uniform Relocation Assistance and Real Property Acquisition Policy Act been triggered). And everyone here admitted that if the URA applied, the tenant would get benefits. The dissenters noted that the focus should not be on when the city acquired the market, but  on when it became a "displacing agency."

Under this reading, Baltimore City did not become a “displacing agency” until it commenced the effort to rehabilitate the Market – a time at which Wireless One was already a tenant. In other words, a displaced cellphone business need not have had a market stall in 1847 to even be eligible for relocation assistance.

The Majority Opinion argues that such an interpretation reads words into the statute that do not exist, claiming “nothing in the plain language of RP § 12-201(f) includes a temporal element.” Majority slip op. at 33. This is true only if one ignores the repeated use of the present participle in the sentence (“displacing agency” and “carrying out”). It is theoretically possible, on the face of the statute, that the Majority Opinion’s interpretation could be correct and that an agency that acquired its property decades ago would never be liable for relocation assistance. But this is not unambiguously clear from the text of the statute.

Dissent at 9. 

Wireless One, Inc. v. Mayor and City of Council of Baltimore, No. 18-70 (Md. Ct. App. Aug. 23, 2019)

 

 

Get Ready: The 2020 ALI-CLE Eminent Domain And Land Valuation Litigation Conference Agenda Coming Soon

The final agenda and faculty list will soon be officially published, but we wanted to give you a preview of what is in store at the ALI-CLE Eminent Domain and Land Valuation Litigation Conference, January 23-25, 2020, at the Nashville Hilton (downtown, just a few steps away from everything that Nashville has to offer). 

Don't miss out: in recent years, we've been at-or-near capacity, and the conference hotel has even sold out a couple of times. Visit the ALI-CLE website to register and hold your space. 

Here are some of the things we'll be discussing: 

• Making Sense of the New Rules After Knick v. Township of Scott: Where Do I Go, What Do I Do?
• The Missing Link in Valuing Fixtures
• When a River Runs Through it: Water Rights and Takings
• Responding to Project Changes: Valuation When Government Action is Ongoing
• Property Rights as Civil Rights: Seeking Justice Through The Fifth Amendment
• Special Benefits: The Givings Clause?
• How To Try and Settle Pipeline Cases
• And, of course Ethics. 

Many of our expert faculty are returning, but we're also featuring many new presenters who have never been on our dais before. And a mix of perspectives and backgrounds: property owners' counsel, condemning agency lawyers, public interest, judges, and legal scholars. Plus a chance to meet your colleagues from across the country. Make connections, and see old friends. 

Early bird registration underway here. See you there. 

Capt Henry Orders You To Boldly Go To The 2020 ALI-CLE Eminent Domain And Land Valuation Litigation Conference, Nashville, Jan. 23-25, 2020

Recently, we requested crowdsourcing of this year's "come to the ALI-CLE Eminent Domain Conference video." Instead of doing the video ourselves, we asked folks to "please send a short clip of you and/or your colleagues telling us why you think the Eminent Domain and Land Valuation Litigation Conference is the place to be in January. Humor welcome, but not required."

Our friend and colleague, St. Louis' Paul Henry, has answered the call, admirably. Paul, as you may remember, is famous for his presentation a couple of years ago at the Conference about "Everything About Eminent Domain I Need To Know I Learned From Star Trek." Which he gave in a Starfleet captain's uniform. Brave man. Readers know that we dig Star Trek. But we are not that brave, so bravo, Paul.  

See if you don't agree that Paul has now raised the video bar. 

For the rest of you: the challenge has been thrown down, so its time to step up. Send yours, now. 

Get Ready - ALI-CLE Eminent Domain And Land Valuation Litigation Conference, Nashville Jan. 23-25, 2020

Details soon. In the meantime, get your earlier registration discount.

Cases And Links From Today's Eminent Domain And Pipelines Conference (Houston)

I am grateful that planning chairs Justin Hodge and Jeremy Baker invited me to their conference. A room full of experts. Here are the links to the cases and other items I spoke about:

• Knick v. Township of Scott: initial thoughts on what might be a dawning "golden age" of property cases
• Knick, Entirely in Memes
• Givens v. Mountain Valley Pipeline, LLC (SCOTUS considering whether private pipeline condemnor can use a Rule 65 preliminary injunction to get quick-take by another name)
• Cert Denied In Immediate-Possession-By-Injunction Case (But There's One More In The Pipeline)
• Bump Stocks and Takings
• Is Seizing Prescription Drugs for Use as Evidence a Taking?
• Barboan: Eminent Domain and the Taking of Indian Property
• Colorado (Carousel Farms): A Lot Of Private Benefit Today Does Not Overcome Smattering Of Possible Public Future Benefit
• Protip for Megaproject - How to Not Name Your Project
• All Your Race Are Belong To Us: Baltimore Is Taking The Preakness Stakes (We're Serious)
• Ninth Circuit Denies En Banc Review In Case Upholding "Core" and "Fundamental" Property Rights, But Two Trump Judges Dissent
• Say What? Montana Supreme Court: Gov't Occupying Property Under Claim Of Right Is Only A Tort, Not A Taking; Tort vs "taking" - Montana, California (wildfire liability)
• Frozen: "Necessity" In Eminent Domain Can Mean Mere Convenience (Or Anything Else The Condemnor Says)
• New Cert Petition: Fifth Amendment Requires California To Spread The Cost Of Wildfire Inverse Condemnations To Ratepayers
• How Is "The Public" Defined When It Comes To Special Damages?
• Ninth Circuit: Inverse Condemnation Plaintiff Must "Share The Pain" - City Can Shed Obligation To Pay Just Compensation In Bankruptcy, Which Is "Purely A Monetary Claim"
• How Is "The Public" Defined When It Comes To Special Damages?
• We Are The World: Iowa SCT Finds Dakota Access Pipeline Will Promote The Public Convenience For Iowa, Even If Iowans Don't Get Any Of The Pipeline's Oil
• Are Pipelines For The Public's Benefit? If So, What Public?
• "Doggone stinky" government action, but no property right in use of land
• Ninth Circuit: "fundamental" attributes of property may be immune from state law changes
• Property rights in a "clean and healthy environment" - Hawaii vs. DC Cir (Pennsylvania law)
• PruneYard Undone: California's Union Easement - Which Invites Labor Organizers To Enter Private Property - Isn't A Physical Taking
• Oregon App: Physical Inverse Condemnation Claim Is Ripe From The Moment Of Occupation
• 11th Cir: City Inviting Public To Access Beach Across Private Land Is Inverse Condemnation
• Federal Circuit: Restoration Of Foreign Govt's Sovereign Immunity For Terrorist Acts Isn't A Physical Taking Of Victim's Money Judgment

And finally, this. Our single Powerpoint slide today.  Because there are some days you just feel like the odd person out. 

W Va: Decision To Take "Uneconomic Remnant" Lies Solely With Agency (Not The Owner, Not The Court)

As part of a federally-funded highway project, the WV DOT took a portion of parcels belonging to several property owners. The partial takings ended up landlocking one tract. So the DOT proposed building an access road to that parcel. The owners didn't think this was the best idea, because "maintaining a road in that area would be unreasonably costly" because the area is steep and in a slide area. 

The owners counterclaimed, seeking an order to compel the DOT to take this landlocked track as an "uneconomic remnant" under the Uniform Relocation Act, which defines that term as "a parcel of real property in which the owner is left with an interest after the partial acquisition of the owner’s property and which the head of the Federal agency concerned has determined has little or no value or utility to the owner." 42 U.S.C. § 4651(9).

The trial court concluded the jury should determine whether the remainder tracts were uneconomic remnants, and permitted both the DOT and the owners to present evidence on the subject. But the court could not figure out whether the jury should hear evidence of the DOT's offer to construct an access road, nor could it decide whether the DOT could mitigate in lieu of paying money damages. So it asked the WVa Supreme Court to answer certified questions. 

In West Virginia Dep't of Transportation v. Echols, No. 18-0226 (Apr. 12, 2019), the court answered those certified questions (slightly reformulated to state the issues the court thought relevant), concluding:

• The statutory language quoted above delegates the discretion to make the call about what is or isn't an uneconomic remnant solely to "the head of the Federal agency concerned," who is called upon to determine whether the remnant property "has little or no value or utility to the owner." Slip op. at 16 ("We find no ambiguity in the operative provision of [the statute] that places the duty of determining whether a parcel of real property is an uneconomic remnant, i.e., it has little or no value or utility to the owner, exclusively upon the head of the acquiring agency."). So whether the owner has any use for the property is "is a question to be determined exclusively by the Commissioner of Highways," not the courts. Id. at 17. The Commissioner gets to decide whether you have use for it. Got it.  
• Can the DOT build an access road to mitigate the landlocking, or must it pay money compensation? It can build the road, according to the court. The owners are entitled to monetary compensation for the losses resulting from the severance of their properties, but that does not affect the DOT's ability to "mitigate damages to a residue for which it will be required to provide such compensation." Slip op. at 21. The mitigation is considered a special benefit of the taking, which are under WVa law, offset against the compensation owed. Id. at 22. But it must obligate itself to do so, not merely plan it. Id. at 27 ("The foregoing authorities plainly establish that the DOH may mitigate severance damages by restoring public road access without the agreement of a landowner so long as the DOH is somehow obligated to construct the road. A mere promise to do so is insufficient."). 
• Finally, the court concluded that the DOT could not be compelled to take the remnant tract, a portion it didn't need for the highway project. The DOT had the authority to voluntarily purchase it, but if it decided it didn't want to, the enabling statute doesn't give it the authority to take. Thus, it cannot be forced to take.   

Overall, this case confirms that eminent domain delegates a lot of power to the government, and that courts are very reluctant to step in an decide what must be taken. 

West Virginia Dep't of Transportation v. Echols, No. 18-0226 (W. Va. Apr. 12, 2019)

Materials And Links From Today's Austin Eminent Domain CLE

Great crowd today in Austin for CLE International's Eminent Domain seminar, co-chaired by our colleagues Chris Clough, Sejin Brooks, and Christopher Oddo. We spoke about "National Trends and Developing Issues in Eminent Domain." 

Here are the cases I referred to which are not included in your written materials:

• "Doggone stinky" government action, but no property right in use of land. 
• Ninth Circuit: "fundamental" attributes of property may be immune from state law changes
• Property rights in a "clean and healthy environment" - Hawaii vs. DC Cir (Pennsylvania law)
• Sixth Circuit: "forced pooling" statute isn't a taking
• "Bad faith" as a way to challenge a taking
• Violet Dock Port: for "unique" property, the Louisiana Supreme Court concludes that fair market value isn't the only measure of just compensation. Replacement cost evidence is admissible
• NJ Appellate Division: "take now, decide later" will not support redevelopment necessity. Unless there's "linkage" 
• Does the takings clause require compensation for the taking of use, or of value? 
• Does the takings clause protect investment expectations, or current profitability?
• Donuts and loss of business goodwill in eminent domain
• The Uniform Relocation Act and the Pirate's code
• Kansas relocation: owner who voluntarily sold entitled to benefits if there's evidence of an intent to condemn 
• Why do lower courts continue to dis Palazzolo? see also Indiana
• Tort vs "taking" - Montana, California (wildfire liability), 
• Ninth Circuit (2-1): inverse condemnation judgment which has not been reduced to judgment can be discharged in bankruptcy 
• Antrim Truck Centre - the Supreme Court of Canada on circuitry of access and "injurious affection"

Cal App Finds Goodwill For Donuts: Shop Owner Entitled To Loss Of Goodwill Damages, Even Where It Has Not Mitigated The Entire Loss

Who among us doesn't possess a lot of goodwill for doughnuts? We know we sure do. 

So when we think of "Los Angeles," what comes to mind: sunshine, beaches, Hollywood, and sprawl? No. What comes to mind are chili, hot dogs, and doughnuts. Those items -- more precisely, the roadside architecture which establishments that hawk these foods employ -- just sing "LA" to us. Especially doughnuts.

So the California Court of Appeal's recent opinion in Los Angeles County Metro. Transit Authority v. Yum Yum Donut Shops, Inc., No. B276280 (Feb. 26, 2019) grabbed our attention. And not just for its spelling of "donut," because the case involved a donut shop, and the recovery in eminent domain for the loss of business goodwill, two things we love.   

There, the MTA condemned a doughnut -- donut -- shop in central LA. Store 58 to be precise, a freestanding building which had operated for 30 years and which owned a long-term lease. And here's where it gets interesting. We never paid that much attention to the location of donut shops. Because to us, if you just build a donut shop, they will come, right? I mean, these things sell themselves, don't they?

Well not quite, and it turns out that donut shops have detailed location requirements. Lots of them. Things like "[l]ocated on the morning traffic side of the street," near a freeway, with easy in-and-out, and parking, in a "lower to middle income community." And more. Twelve criteria, in all. Who knew? See the opinion at page 4 for the details.  

But MTA was building a new light rail line, so it took Store 58. It looked for other locations to which to relocate Store 58, but Yum Yum concluded that none of the three candidates met all of the 12 requirements. No relocation, so off to trial the parties went, with the issue being the amount of compensation owed for the loss of Yum Yum's goodwill. 

The MTA's expert testified that the goodwill was worth $620,000, and if it moved to one of the three relocation sites MTA suggested, Yum Yum would "recapture $202,000, $138,000, or $340,000 in goodwill, respectively." Slip op. at 5. He also testified that Yum Yum would have "preserved" some goodwill at any of these sites, but also admitted that the shop would have lost some goodwill if it moved. 

Which teed up the issue the court of appeal considered: was Yum Yum entitled to recover its loss of goodwill under California's goodwill statute even though it did not mitigate its damages by relocating to one of the alternate sites MTA suggested? The MTA argued that it owed nothing because Yum Yum was being too picky, and it unreasonably rejected the three relocation alternatives presented by MTA. Once a property owner is deemed to be unreasonable, it argued, there's no duty at all to pay goodwill. The trial court agreed. 

The court of appeal was not so harsh. It concluded that to recover goodwill damages, the property owner must do so in two steps. First, prove that they are entitled to some recovery of goodwill. Not all of it as MTA was arguing, mind you. Just some of it. Slip op. at 12-13. Thus, in a situation like this, where the evidence all pointed to Yum Yum losing some goodwill even if it had accepted MTA's alternate sites, it was entitled to recover something: 

As MTA argues, the language of section 1263.510 is unambiguous. The statute’s unambiguous plain language provides that a condemnee must show it cannot prevent a loss of goodwill by relocating or otherwise taking reasonable steps to prevent that loss to be entitled to a jury trial on the amount of that unavoidable loss. A fortiori, if the condemnee would lose goodwill—even if it relocated its business or otherwise reasonably mitigated the loss—the condemnee satisfies its threshold burden. Nothing in section 1263.510’s language provides that the condemnee is entitled to no compensation at all for lost goodwill if the condemnee fails to mitigate a portion of that loss.

Slip op. at 10.

The second step would be to have the jury determine how much; generally, the amount which could not be avoided even with mitigation. Because the trial court hadn't reached the second step, the court of appeal sent the case back for a determination of how much goodwill Yum Yum lost from having Store 58 condemned.

Now to go have a donut. 

Los Angeles County Metro. Trans. Auth. v. Yum Yum Donut Shops, Inc., No. B276280 (Cal. App. Feb. 26, 2019)

Kansas: Tenant May Be Entitled To Relocation Benefits In Voluntary Acquisition If There's Evidence That City Intended To Condemn If Deal Fell Through

Our Owners' Counsel colleague John Hamilton deserves kudos for the Kansas Supreme Court's recent decision in Nauheim v. City of Topeka, No. 114271 (Jan. 25, 2019).

The case is about a subject often overlooked, relocation benefits. In this case, the condemning agency's duties under the Kansas statute which dictates their duties towards a "displaced person." The usual case is where the owner or tenant has to move because of condemnation. The twist here was that the property owner negotiated a purchase under the cloud of eminent domain and the City never had to actually exercise its condemnation power. The tenants who were forced to relocate sought -- but were denied -- relocation benefits under the statute, as "displaced persons."

The Kansas statute provides that when "federal funding is not involved" (which it was not here), "and any real property is acquired ... through negotiation in advance of a condemnation act or through a condemnation action ... the condemning authority shall ... [p]rovide the displaced person [as defined by the federal URA] relocation assistance..." 

The City claimed it did not owe assistance because "it never intended to condemn the property had the negotiation failed." Slip op. at 1. The trial court agreed, concluding that the tenants were not displaced persons, and that the negotiated acquisition was not "in advance of a condemnation action" as a matter of law. 

The court of appeals partially disagreed. The tenants qualified as displaced persons. However, the court agreed with the City and the trial court that the tenants had not shown the City intended to condemn, because they did not prove that the City "either threatened or took affirmative action towards condemnation prior to the acquisition." Slip op. at 5. 

On discretionary review, the Kansas Supreme Court reversed, concluding that a displaced person (note that the City did not cross-petition on that issue, and thus the court of appeals' conclusion that the tenants fit the URA's definition remained) need not prove the City actually threatened condemnation or took affirmative action to condemn the property before acquisition. This is a question of fact, and the displaced person need only show by a preponderance of the evidence that the negotiation is in advance of a condemnation action in light of all the actions of the acquiring authority.  

The court held that "the statutory phrase 'negotiation in advance of a condemnation action,' the language is both temporal and contextual." Slip op. at 9. 

To be entitled to relocation benefits, a displaced person must show: (1) a negotiation resulted in the property's acquisition before any eminent domain proceedings commenced; and (2) a condemnation would have followed had that negotiation failed. A plain reading of the statute demonstrates this.

Slip op. at 9-10.

Temporally, "before" means in advance of something. No question that this was met in this case. Slip op. at 10. The contextual aspect needed deeper analysis:

The lower courts erred by requiring a specific evidentiary showing that the condemning authority either threatened or took affirmative action towards a condemnation action. And while that evidence would be relevant, it is surely not the only evidence that could cause a fact-finder to conclude a condemning authority would have resorted to eminent domain after unsuccessful negotiation.

The record in this case highlights our point—without so narrowly requiring a specific threat, affirmative action, or even proof of actual intent. It includes: (1) the City's Ordinance No. 19553, which authorized the project but never mentioned condemnation; (2) an engineering study providing two options to address the Butcher Creek drainage issues, one of which did not require the property acquisition; (3) City staff emails; and (4) City officials' statements, reflected in an affidavit supplied by the landlord.

Slip op. at 11.  

Yes, municipalities can acquire property without condemnation, but when a deputy city attorney told the owner, "I don't want the City to have to exercise its eminent domain power to purchase the leasehold interest," and a real estate officer similarly stated, "I suppose, if we do not close this transaction, that the City will then have to condemn to get these properties," slip op. at 12, well, then, there's a disputed issue of fact about the City's intention, and that issue should not be resolved summarily as the trial court here did.

More here ("Kansas Supreme Court reinstates lawsuit against city of Topeka"). 

Nauheim v. City of Topeka, No. 114271 (Kan. Jan. 25, 2019)

Wish You Were Here: Links From Day 1, 2019 ALI-CLE Eminent Domain And Land Valuation Litigation Conference

Here is our annual "proof of life" photo, taken from the dais during the opening session, to prove that all 250 of us were in the room for the ALI-CLE Eminent Domain Conference, and not out on a Palm Springs golf course (it is 72º and sunny, so a golf course would not be a bad place to be).  

Here are the links from our talk this morning (along with Amy Boulris) about the latest issues to watch in eminent domain:

• NJ Appellate Division: "take now, decide later" will not support redevelopment necessity. Unless there's "linkage." 
• Louisiana Court of Appeals with two points for condemnors: (1) don't name your project the "Megaproject," and (2) don't let your Executive Director testify that but for the Megaproject needing the property, the local government would not have condemned it. If you do, don't be surprised the court views the taking with a jaundiced eye.
• Quick takes by Rule 65 preliminary injunctions: Third Circuit joins the growing circuit split on whether private condemnors under the federal Natural Gas Act can acquire early possession of property, even though Congress in the NDA did not delegate the condemnors the Quick Take power. Our amicus brief which details why we think this is wrong. 
• In these federal takings, does state or federal law provide the rule of decision on compensation (and damages)?
• Violet Dock Port: for "unique" property, the Louisiana Supreme Court concludes that fair market value isn't the only measure of just compensation. Replacement cost evidence is admissible.
• "Property" rights in a clean and pure environment. The Hawaii Supreme Court concludes the state constitution's provision gives right to a due process property right. But the D.C. Circuit concludes that Pennsylvania's similar constitutional provision does not give rise to an enforceable right, because you can't exclude others from a clean environment.
• The Uniform Relocation Act and the Pirate's Code: (the URA is merely "guidelines," and does not give rise to a private right of action by a property owner). 
• Who gets paid: owner at time the court issues order of possession, or the owner at the time the condemnor actually possessed? If you said the former, you'd agree with the Nevada Supreme Court. 

Here are some other cases we didn't have time to cover, but which you may find of interest:

• Ninth Circuit (2-1) concludes that inverse condemnation judgment which has not been reduced to judgment can be discharged in bankruptcy. 
• Virginia Supreme Court: the term "and" really means "or" in Virginia's precondemnation entry statute. 
• Iowa Supreme Court considering whether the PUC's determination of public convenience also determines whether a taking is for public use. 

Below is a "reverse" view of the opening session, taken from the audience's perspective. Great crowd, a record number (again). 

Finally, if you are here attending, please stop me and say hello.