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Carl Ronnie Daricek Living Trust v. Hancock County, No. 2009-IA-01515-SCT (May 13, 2010).
Continue Reading Mississippi Supreme Court: Seawall Condemnation Statute Is Constitutional
Final Briefs In In Hawaii Beach Taking Case: Is “Future” Accretion A Present Property Interest?
Here are the latest filings in Maunalua Bay Beach Ohana 28 v. State of Hawaii, No. 28175 (cert. application filed Apr. 22, 2010). In that case, the property owners are asking the Hawaii Supreme Court to review the decision of the Intermediate Court of Appeals in Maunalua Bay Beach Ohana 28 v. State of Hawaii, 122 Haw. 34, 222 P.3d 441 (Haw. Ct. App. 2009), which held that “Act 73” (codifed here and here) was a taking. [Disclosure: we filed an amicus brief in the ICA supporting the property owners, and recently filed an amicus brief in the Supreme Court – see below].
In Act 73, the legislature declared that title to shoreline land naturally accreted cannot be registered by anyone except the State, and that only the State could quiet title to accreted land. The ICA held that the Act was a taking of accreted land
Briefs And Live Blog Of June 1 New York Court Of Appeals Oral Argument In Kaur v. NY State Urban Dev Corp. (Columbia “Blight” Case)
On June 1, 2010, starting at 2:00 p.m. ET, the New York Court of Appeals will hear oral arguments in Kaur v. New York State Urban Development Corp. In that case, the New York Supreme Court, Appellate Division (First Department) struck down the attempted taking of land north of Columbia University in New York City because of the record reflected overwhelming private benefit and lack of “blight.” We analyzed the Appellate Division’s opinion here.
Here are the briefs in the Court of Appeals:
- Brief amicus curiae of NY State Senator Bill Perkins (Sen. Perkins represents Harlem, the Upper West Side, and Washington Heights)
The Court of Appeals webcasts oral arguments, so we will be able to follow along and live blog the event. Joining me will
Missouri Court Of Appeals: Good Faith Negotiation Statute Requires Appraisal Using “Generally Accepted Appraisal Practices”
After Kelo v. City of New London, 545 U.S. 469 (2005), many state and local governments adopted measures designed to limit exercises of the power of eminent domain. Some jurisdictions went for substantive limits. For example, Nebraska adopted a statute prohibiting takings that are “primarily” for economic development. Other jurisdictions took the procedural route, and adopted procedural limits on the exercise of the eminent domain power.
Missouri is one of the latter jurisdictions. It adopted Missouri Rev. Stat. § 532.256 which requires a condemor to engage in “good faith negotiations” before filing an eminent domain action:
Before a court may enter an order of condemnation, the courtshall find that the condemning authority engaged in good faith negotiations prior to filing the condemnation petition. A condemning authority shall be deemed to have engaged in good faith negotiations if:
(1) It has properly and timely given all notices to owners requiredby
New Ninth Circuit Ripeness And Res Judicata Regulatory Takings Case
This just in: the Ninth Circuit has issued an opinion in Adam Bros. Farming, Inc. v. County of Santa Barbara, No. 09-55315 (May 14, 2010).
Adam Bros. Farming, Inc. and Iceberg Holdings, L.L.C. (collectively “Adam Bros.”) appeal from the district court’s dismissal of their joint complaint. Adam Bros. sued the County of Santa Barbara and several of its employees (collectively “the county”) in federal court, alleging that the county had, through a false wetland delineation, temporarily taken its land without providing just compensation in violation of the Fifth Amendment. The district court granted the county’s motion to dismiss and concluded that Adam Bros.’s claim was not ripe because Adam Bros. failed to demonstrate that it had sought and was denied just compensation under state law. Because we conclude that Adam Bros.’s claim is barred by the application of res judicata, we affirm the district court’s judgment.
More to follow after a chance to digest the opinion.
Continue Reading New Ninth Circuit Ripeness And Res Judicata Regulatory Takings Case
Florida Court Of Appeal: State Must Pay When It Destroys Healthy Orange Trees
When the state purposely destroys healthy citrus trees as part of a program to address citrus canker, it must pay the owners of the trees just compensation.
In Dep’t of Agriculture & Consumer Services v. Borgoff, No. 4D08-4474 (May 12, 2010), the Florida District Court of Appeal (Fourth District) affirmed an $11 million class action jury verdict ordering the Department of Agriculture to pay for the more than 100,000 non-commercial trees it cut down and destroyed in Broward County. The Department’s eradication program destroyed any citrus tree within 1,900 feet of any tree found with citrus canker. The court concluded this was a taking:
Cutting down and destroying healthy noncommercial trees of private citizens could hardly be more definitively a taking. Government has regulatory power for the very purpose of safeguarding the rights of citizens, not for destroying them.
Slip op. at 6 (footnote omitted) (emphasis added). The court
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Petition To Watch: Is A Littoral Owner Trespassing When The Shoreline Erodes?
SCOTUSblog has listed Sharp v. United States, No. 09-820 as a “petition to watch” for the Court’s conference today.
May 17, 2010 Update: cert. denied.
In that case, the property owners are asking the U.S. Supreme Court to review the Ninth Circuit’s decision in United States v. Milner, 583 F.3d 1174 (9th Cir. 2009), which held that a littoral owner was liable for trespass in waters held by the federal government for the benefit of the Lummi Nation, and for violation of the Rivers and Harbors Act formaintaining a “shore defense structure.” The structure was built onprivate fast (dry) land, but the shoreline eventually eroded up to it.
In the opinion, detailed in this post, the Ninth Circuit held that “both the tideland owner and the upland owner have a right to anambulatory boundary, and each has a vested right in the potential
Continue Reading Petition To Watch: Is A Littoral Owner Trespassing When The Shoreline Erodes?
Ely On “Stevens, Kagan and Property Rights”
Vanderbilt lawprof James Ely (if you haven’t read his book The Guardian of Every Other Right: A Constitutional History of Property Rights (1998), you really should) writes on the topic du jour, the nomination of SG Elena Kagan to the Supreme Court in Stevens, Kagan and property rights.
Most of the article focuses on Justice Stevens’ record in property cases:
However, in at least one important area of constitutional law – the rights of property owners – Justice Stevens’ record fell woefully short of protecting the interests of average citizens. In fact, Justice Stevens consistently dismissed property rights claims and voted to strengthen government control over the lives of individuals.
He concludes with this:
Hopefully Elena Kagan, Mr. Obama’s nominee to replace Justice Stevens, holds a more balanced view of the importance of property rights in the American constitutional order. As in many other fields of law, however
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Yale Law Journal: Eminent Domain Due Process
A new article worth reading: Eminent Domain Due Process, 119 Yale L. J. 1280 (2010) by D. Zachary Hudson. Here’s the abstract:
This Note analyzes the apparent disconnect between eminent domain doctrine and due process doctrine. Following Kelo, numerous states have reformed their eminent domain laws in an effort to ensure that the takings power is not abused. Whatever one makes of these legislative reforms, at an absolute minimum, the Due Process Clause should guarantee that landowners receive notice and an opportunity for some sort of judicial determination of the legality of the taking before the land is actually taken. After cataloging existing eminent domain laws, this Note traces the evolution of these laws over time in both the legislatures and the courts. In parallel, this Note analyzes the evolving circumstances driving the judicial perception of eminent domain. Examining these facts, the Note explains why courts have failed
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Cal Ct App: You Knew The Property Was Damaged When You Bought It
In a partially-published* opinion in Ridgewater Associates, LLC v. Dublin San Ramon Services District, No. A124661 (Apr. 11, 2010), the California Court of Appeals (First District) held that a property owner did not muster sufficient proof to support its claim for inverse condemnation against a neighboring sewage treatment facility. Ridgewater claimed that water from the facility intruded on its property.
The appeals court first rejected the trial court’s conclusion that Ridgewater lacked standing because it was seeking relief for damages that occurred prior to its purchase of the property. The court held that by asserting it has been forced to pump intruding water off of its land, Ridgewater was asserting a claim for damages occurring during its ownership, and not for damages incurred before. Slip op. at 6 (“Ridgewater claims that rising water in the loading dock must be pumped to and over the paved surfaces on
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