2009

In 1999, without asking the owner’s permission, the federal government constructed a 35,000 square foot “borrow pit” on a parcel in a remote corner of Texas. The owner did not learn about the government’s activities until 2004, when a migrant worker who had crossed the property to access the Rio Grande told him about it. The owner visited the property in late 2004 and for the first time discovered the borrow pit.

In 2006, the owner filed an inverse condemnation claim against the United States in the Court of Federal Claims.  Over the owner’s objection that he was unaware of the taking until the migrant worker told him about it in 2004, the CFC dismissed the claim because it was filed outside the six-year statute of limitations.

The Federal Circuit affirmed. The claim accrued on the date of the taking — April 1999 — but the owner asserted the accrual…

Continue Reading Federal Circuit: 35k SF Government Borrow Pit On Your Property Not “Inherently Unknowable”

“Unlike Bulgo, in this case there is no evidence in the record that any company, other than Superferry, met the definition provided by section 2 when Act 2 was enacted.”

Sierra Club v. Dep’t of Transportation, No. 29035 slip op. at 36 (March 16, 2009) (emphasis added)

If you take away nothing else from the 124 pages of majority and concurring and dissenting opinions in the second “Hawaii Superferry” case, remember that sentence.  It’s the key to the case and understanding the Hawaii Supreme Court’s recent willingness to put teeth into judicial review of legislation. In Superferry II, the court faced an interesting jurisprudential issue: whether Act 2, a statute most everyone who was paying attention just knew was designed to cover a single private entity was nonetheless a “general” law under the provision which requires that legislative power over state and county lands…

Continue Reading Hawaii Superferry II: Rooting Out Pretext In Legislative Actions

Act 2’s Achilles Heel: Short Time Frame

The court also found it significant that Act 2 granted”large capacity ferry vessel companies” benefits for only a limitedamount of time:     

In contrast, the Bulgo court considered anAct that was unlimited in duration. As such, it was possible thatfuture circumstances would require another county to exercise the powerconferred by Act 47. Such a possibility is highly unlikely, if notimpossible, in this case. The rights and privileges conferred to “alarge capacity ferry vessel company” by Act 2 exist for a limitedperiod of time (less than twenty-one months) and the possibility that acompany other than Superferry would be able to exercise those samerights before they are extinguished is beyond remote.

Slip op. at 37.

The briefs in the appeal are posted here, and the archive of our live blog of the December 18, 2008 oral arguments is posted here.

Our Superferry Continue Reading Superferry Part II

The court distinguished the lone case in which itinterpreted the term “general law” in a challenge to a statute passed by the statelegislature to allow Maui County to hold a special election after acouncilmember died between his election and taking office. Bulgo v. County of Maui,430 P.2d 321 (Haw. 1967). The statute in that case was drawn verynarrowly, providing that if someone who was elected to “the office ofchairman of the board of supervisors of a county died before January 2,1967,” a special election would be held, unless the county charterprovided otherwise. Id. at 323. The statute also provided that it applied to each county. The Hawaii Constitution (currently Haw. Const. art. VIII, § 1) required the legislature confer powers upon counties “under general laws.”

TheBulgo court held the statute was a general law even though only Maui County hadone of its councilmembers die before January…

Continue Reading Bulgo

In Hauselt v. County of Butte, No. C054927 (Mar. 23, 2009), the California Court of Appeal held

The property owner asserted the County inversely condemned its property by implementing a drainage plan which resulted in the land being flooded more often than usual, and that the County denied his proposal to develop the property. After bench trial, the trial court determined that the County had not acted unreasonably, that its activites did not increase the water flow on the land, and that the landowner was entitled to $1,034 in just compensation for a temporary taking (the County placed material on the land in 1998 to prevent a storm from flooding a neighboring parcel.Continue Reading aaaaaaaaaaaaaaa

Following up on this story, West Hawaii Today reports “Attorneys argue against Supreme Court ruling on bypass,” about whether a second attempt to condemn property ostensibly for a road ispretextual when the court determined the first attempt was unconstitutional and nothing changed:

Attorneys for the Richards family and theCoupe Trust, in documents filed in 3rd Circuit Court Friday, argue thatthe condemnation action initiated by Hawaii County in 2005 wasessentially the same as one filed in 2000 and later dismissed.

Disclosure: we represent the property owner in this case.

The Hawaii Supreme Court in County of Hawaii v. C&J Coupe Family Ltd. P’ship, 198 P.3d 615 (Haw. Dec. 24, 2008) (posted here) held that courts have an obligation to take allegations of pretext seriously — even when the taking is for a “classic” public use — and remanded the case for consideration of evidence of pretext.

Continue Reading More On Pretext In Eminent Domain

Professor James Ely (who among other things, is the author of The Guardian of Every Other Right: A Constitutional History of Property Rights) writes “A Report Card on Post-Kelo Eminent Domain Reforms” at the Oxford University Press blog.  He notes the “decidedly mixed” legislative reactions to Kelo, and how many apparent reforms have left loopholes. He also notes:

Although the state legislative response to Kelo has been decidedlymixed, several state supreme courts have struck down the exercise ofeminent domain for economic development purposes by private parties.For example, the Ohio and Oklahoma supreme courts have specificallyrejected the reasoning in Kelo and construed their own stateconstitutions to afford greater protection of property owners againsteminent domain.

He concludes that with a reintroduction of property rights to the public debate, that efforts at reform “may ultimately bear more fruit.”Continue Reading James Ely: Report Card On Post-Kelo Eminent Domain Reforms

A cert petition has been filed seeking review of Joy Builders, Inc. v. Town of Clarkstown, 11 N.Y.3d 863 (2008).  That decision was summarized by Professor Patty Salkin on the Law of the Land blog here. The New York Court of Appeals refused to hear the case, ordering “Appeal dismissed without costs, by the Court sua sponte, upon the ground that no substantial constitutional question is directly involved.”

The cert petition was filed on February 27, 2009 and is available here.

The Question Presented:

A government violates the doctrine of unconstitutional conditions when it grants a development permit conditioned upon the compelled dedication of land for municipal purposes if: i) it has not made an “individualized determination” that an exaction is required because of the project’s impacts, and ii) the quantity of land compelled is not roughly proportional to those impacts.1  More and more governments…

Continue Reading New Cert Petition – Dolan Proportionality And Individualized Determination Applies To In-Lieu Fees

The U.S. Supreme Court today issued an order denying review in AmeriSource Corp. v. United States, No. 08-497 (cert. petition filed Oct. 15, 2008), the case which asked “[w]hether it is a taking compensable under the Fifth Amendment for the Government to seize (and not return) an innocent third party’s propertyfor use as evidence in a criminal prosecution, if the property is notitself contraband, is not the fruits of criminal activity, and has notbeen used in criminal activity.” The briefs and a link to the Federal Circuit’s opinion are available here.Continue Reading Cert Denied In Amerisource (Taking Of Property As Evidence)

As reported in this story from West Hawaii Today, a Hawaii trial court is considering whether a second attempt to condemn property ostensibly for a road is pretextual when it determined the first attempt was unconstitutional. Disclosure: we represent the property owner in this case.

“Classic” Uses Not Immune

In County of Hawaii v. C&J Coupe Family Ltd. P’ship, 198 P.3d 615 (Haw. Dec. 24, 2008) (posted here), the Hawaii Supreme Court held that even when a taking appears to be for a public purpose, the government’s assertions “need not be taken at face value where there is evidence that the stated purpose might be pretextual,” Id. at 644. The court held that courts should consider a landowner’s defense of pretext even when a “classic” use such as a road is involved, and “the single fact that a project is a road does not per se make it a…

Continue Reading Determining Eminent Domain Pretext In Serial Takings