April 2009

A state law providing that airport boards may exercise the powers of the municipalities which appoint them, but which also requires a condemnation action by an airport board “be instituted in the names of the municipalities jointly,” prohibits an airport board from instituting an eminent domain suit in its own name. In Spokane Airports v. RMA, Inc., No. 26538-2-III (Apr. 28, 2009), the Washington Court of Appeals held that any condemnation suit filed by the airport board that is not in the names of the municipalities lacks subject matter jurisdiction.

The City of Spokane and Spokane County jointly operate the Spokane International Airport, and formed the Spokane Airport Board to operate it. The airport needed to remove some buildings, including several which were leased to RMA, so the city and the county passed a resolution of taking condemning the leases. The Airport Board, purporting to act pursuant to…

Continue Reading WA Court Of Appeals: Delegations Of Eminent Domain Power To Municipalities Strictly Construed

The Washington Examiner has published an op-ed about McClung v. City of Sumner, 548 F.3d 1219 (9th Cir. 2008), petition for cert. filed May 2, 2009, “When the Government Takes Your Money, It Takes Your Property,” by Cato Institute’s Ilya Shapiro and Pacific Legal Foundation’s Lauren Wiggins (who filed an amicus brief urging the Court to review the case).

McClung involves an exaction of money, and not land, as a condition of a development permit. The Ninth Circuit held that legislative exactions are not subject to Nollan/Dolan:

Courts are deeply divided over whether the Fifth Amendment applies tothe taking of property by means of fees such as the ones the McClungswere assessed.  They are also split as to whether legislatively imposedconditions allow a local government to avoid making individualizeddeterminations of a development’s impact.  Courts like the NinthCircuit rely on the fact that the Supreme…

Continue Reading Op-Ed: Money Is Property – Monetary Exactions And Nollan/Dolan

As we noted in this post, the recent U.S. Court of Appeals for the Fifth Circuit decision in Severance v. Patterson, No. 07-20409 (Apr. 23, 2009) is garnering a lot of commentary for the dissenting judge’s opening ad hominem and the majority’s terse response.  Earlier, we summarized the substantive issues in the case, which involve the Fourth Amendment’s seizure requirements in a takings-esque fact pattern — which are, ultimately, more interesting that this distraction — but wanted to comment briefly.

The case involves a Texas property owner — but (quelle horreur!) a resident of California — who seeks to prevent Texas officials from enforcing a Texas statute regulating beachfront ownership because it would either take her property without just compensation, or is an unconstitutional seizure (or both).  The Fifth Circuit affirmed the dismissal of her takings claim as unripe for federal review under Williamson County…

Continue Reading The Nerve Of Those Californians, Vindicating Federal Constitutional Rights In Texas Federal Courts!

A very interesting decision from the U.S. Court of Appeals for the Fifth Circuit in Severance v. Patterson, No. 07-20409 (Apr. 23, 2009). 

While much of the commentary about the case (see, e.g., here, here, and here) has focused on the dissenting opinion’s ad hominem on the plaintiff’s and her attorneys’ motivations and the majority opinion’s slap-down of the dissent (see footnote 1), for now we will stick to what the opinion held on the merits which is as interesting, if not more so. (We will add our thoughts about what the weird dissent said about public interest legal cases in a separate post.)

The case involved constitutional challenges to a Texas statute known as the Open Beaches Act, which imposes an easement for public access over certain beachfront land. After Ms. Severance purchased two beachfront parcels in Galveston, in 2005 Hurricane Rita…

Continue Reading Fifth Circuit: Fourth Amendment Seizure Of Beachfront Land Claim Not Subject To Williamson County Ripeness

The Big Island’s West Hawaii Today reports “Both sides claim win in latest ruling” about the Hawaii Supreme Court’s recent opinion in the cases involving the County of Hawaii’s attempt to take the property of a Kona family to meet the County’s obligations under a development agreement with the developer of the Hokulia project.  Disclosure: we represent the property owner in these cases.

In County of Hawaii v. C&J Coupe Family Ltd. P’ship, No. 28822 (Apr. 21, 2009) (posted here), the court confirmed that a property owner is entitled to be made economically whole pursuant to Haw. Rev. Stat. § 101-27,including the reasonable attorneys fees and costs it incurs on appeal when its property is not “finally taken” forpublic use. The trial court struck down an attempted taking for a road for lack ofpublic use,

The road, partof a development agreement between the county and…

Continue Reading West Hawaii Today On Latest HAWSCT Opinion In Eminent Domain Abuse Cases

In the latest reported decision arising out of the County of Hawaii’s attempt to take property, the Hawaii Supreme Court held that a condemnee who appeals the denial of damages for a failed taking is entitled to damages it sustains on appeal. 

In County of Hawaii v. C&J Coupe Family Ltd. P’ship, No. 28822 (Apr. 21, 2009), the court held that a property owner is entitled to be made economically whole pursuant to Haw. Rev. Stat. § 101-27, including the reasonable attorneys fees and costs it incurs on appeal.  Section 101-27 requires the condemnor to pay “damages” including attorneys fees and costs when property is not “finally taken” for public use.  In these consolidated cases, the trial court struck down an attempted taking for a road for lack of public use, but in a separate case prosecuted concurrently, the court held the property could be taken.

The…

Continue Reading HAWSCT: Property Owners Entitled To Attorneys Fees & Costs On Condemnation Appeal

Economist Bill Wade offers his thoughts on the recent (and latest) Rose Acre decision by the Federal Circuit, a case we summarized here.
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Of shoes and ships, eggs and farms; Or, Penn Central through the Looking Glass

by William W. Wade, Ph.D.

Fans of arcane takings decisions will not find a more economically confused record and decision than Rose Acre Farms VI.  (Rose Acre Farms, Inc., v. United States, United States Court of Appeals for the Federal Circuit , 2007-5169, March 12, 2009.)  Whether the case was about eggs or farms, gross revenues or net profits, lost income or lost value, marginal costs or average costs apparently eluded the judges, the instant parties and experts.  In 15 years of writing about the economic underpinnings of regulatory takings case decisions, I have to award both the expert testimony and judicial interpretations in this case some sort…

Continue Reading Guest Post: Of Shoes and Ships, Eggs and Farms; Or, Penn Central Through the Looking Glass

In City of Jordan v. Church of St. John the Baptist of Jordan, No. CV-07-24976 (Apr. 14, 2009), the Minnesota Court of Appeals held that a state law requiring the consent of a church’s governing board before its land can be taken for road or street purposes requires consent before a city can take property for sidewalks and traffic signals.

Minn. Stat. § 315.42 (2008) provides in relevant part:

No roads or streets shall be laid through the property without the consent of the corporation’s governing board.

The city intended to place a new sidewalk and traffic signal lights on the church’s property and could not negotiate a purchase. The issue was whether the sidewalk and signal constituted “roads and streets” under the statute.  The appellate court noted that the statute had never been interpreted since its enactment in 1881, but that the Minnesota Supreme Court in a case…

Continue Reading Minn Court Of Appeals: No Taking Of Church Property For Sidewalk Without Consent

In “Spotlight Finds Eminent Domain Crusader,” the New York Times profiles Susette Kelo, the name behind the infamous eminent domain decision Kelo v. City of New London, 545 U.S. 469 (2005), and the subject of a recent book about the case, Little Pink House – A True Story of Defiance and Courage, by Jeff Benedict (Grand Central Publishing 2009) (available from Amazon here).

The journey from courtroom to bookstore was not instant, however. Amazingly, although the case, a classic David and Goliath story, was widely discussed, no authors followed up in a timely fashion with a book proposal. Mr. Benedict himself had been busy with other projects. (He has written several books and had a brief fling at politics, losing the Democratic nomination in a run for the House of Representatives from Connecticut’s Second District.)

When he knocked on Susette Kelo’s door without an appointment…

Continue Reading New York Times Profiles Kelo, The “Eminent Domain Crusader”