September 2010

Here’s a case that reveals exactly what is wrong with the Supreme Court’s ripeness doctrine in Williamson County Regional Planning Comm’n v. Hamilton Bank, 473 U.S. 172 (1985). As we noted in this post, it’s “a seemingly endless procedural game where property owners are forced to keep guessing which shell the pea is under, all the while paying their attorneys to litigate matters having nothing to do with the question of whether a local government’s regulations have gone ‘too far.'”

The Oregon Supreme Court’s opinion in West Linn Corporate Park v. City of West Linn, No. S056322 (Sep. 23, 2010) only confirms our belief that the Court never intended Williamson County to be wielded in this fashion, and in effect deny property owners their day in court.

This case has a tortured procedural history. It started off in state court, as required by Williamson County. The property…

Continue Reading Williamson County Unbound: Takings Case Starts In State Court, Is Removed To Federal Court, Is Certified To State Court, Which Decides The Case On Federal Law

In a case that could write the next chapter in the Kelo saga, the property owner recently filed this cert petition asking the U.S. Supreme Court to review the decision of the New York Court of Appeals in the Columbia “blight” case, Kaur v. New York State Urban Development Corp., No. 125 (June 24, 2010).

This is the case in which the Court of Appeals held that de novo judicial review of the factual record leading to an exercise of the eminent domain power was improper, and whether property can be taken because it allegedly is “substandard or insanitary” is a question for taking agencies, not courts. As we noted in several posts criticizing the decision (see here and here) and in a post lauding the Appellate Division’s decision (which struck down the taking as pretextual), “in other words, ‘blight’ is whatever the agency says it is. Just…

Continue Reading Cert Petition In Columbia “Blight” Case: Are There Any Limits To Eminent Domain In New York?

No, thankfully this post is not about the MTV show, but who owns the new dry sand created when the government “replenishes” beaches. In a case reminiscent of the U.S. Supreme Court’s decision in Stop the Beach Renourishment v. Fla. Dep’t of Envt’l Protection, 130 S. Ct. 2592 (2010), the New Jersey Supreme Court unanimously concluded that a beachfront property owner was not entitled to compensation for the city’s taking of his property — a beach created by the city’s beach replenishment program — because the replenished beach was a common law “avulsion” and therefore belonged to the public.

In City of Long Branch v. Liu, No. A-9-09 (Sep. 21, 2010), as part of a redevelopment project, the city condemned littoral property owned by the Liu family. The parcel was described by metes-and-bounds, with the easternmost boundary being described as the “high water mark of the Atlantic…

Continue Reading Jersey Shore Belongs To The Public, Not Private Owners

Not a landmark case, but one worth noting. In Mathews v. City of Chattanooga, No. E2009-01418-COA-R3-CV (Sep. 15, 2010), the Tennessee Court of Appeals rejected the property owner’s claim that the city exceeded the scope of a utility easement when it installed fiber optic cable. The property owner asserted the easement was limited to electric service.

The trial court entered summary judgment for the city on the basis of the statute of limitations because the plaintiff had waited too long from the time the fiber optic cable was installed to assert his claim. The court of appeals affirmed, but on different grounds. It wasn’t a matter of time, the court held, because the plaintiff had no claim for inverse condemnation at all. The city “had the unquestioned lawful right to install the fiber optic cable within the easement for the transmission of electric service,” slip op. at 3, and…

Continue Reading Tennessee App: No Inverse Condemnation When Utility Used Electricity Easement For Fiber Optic Cable

We’ve been kind of light on the blogging lately (epic road trip combined with brief writing does not a happy blogger make), but we did want to give a heads-up that our Owners’ Counsel of America colleagues Dennis Dunphy and Jill Gelineau have launched a new blog focusing on condemnation and land use issues in the Pacific Northwest. They are partners in Schwabe Williamson & Wyatt (in Seattle and Portland, respectively) and will focus on condemnation issues in the region.

They’ve actually been blogging since early 2010, but have recently picked up steam.

Check out Schwabeblog: Condemnation. Worth following.Continue Reading New Condemnation Law Blog Focuses On Pacific Northwest

Here are the latest briefs in United States v. Tohono O’odham Nation, No. 09-846, (cert. granted Apr. 19, 2010), the case involving the subject matter jurisdiction of the Court of Federal Claims currently awaiting argument in the U.S. Supreme Court. Disclosure: we filed an amicus brief supporting the Tohono O’odham Nation in the case.

Here are the other briefs in the case:

More on the case here. Oral argument is set for November 1, 2010.

    Continue Reading Latest Briefs In Supreme Court Case On CFC Jurisdiction

    The Supreme Court’s multiple opinions in Stop the Beach Renourishment v. Fla. Dep’t of Envt’l Protection, 130 S. Ct. 2592 (2010), although unanimous in concluding that the Florida Supreme Court’s decison was not a judicial taking, were not the last words on the subject. Six justices concluded that in the right circumstances, a decision by a state supreme court would violate the takings or due process clauses, while the remaining two justices concluded that some future case might be the right vehicle to decide whether a court decision could take property.  

    Our suspicions that the case marked the opening of the judicial takings canon and not its closing were quickly confirmed. Last week, we posted this cert petition in another beach case from Hawaii that draws the takings question more precisely than Stop the Beach Renourishment, and earlier we asked “Why Isn’t This A ‘Judicial Taking?’…

    Continue Reading New Cert Petition: More Judicial Takings, This Time From Montana

    The Federalist Society has published an assessment of the Washington Supreme Court’s approach to state constitutional law, and to us the most interesting part is the first section on property rights in the Evergreen State.

    Michael Bindas, David K. DeWolf & Michael J. Reitz, The Washington Supreme Court and the State Constitution: A 2010 Assessment (July 2010 ).

    For the latest from the Washington Supreme Court on property rights, see Proctor v. Huntington, No. 82326-0 (Aug. 19, 2010), in which a 5-4 majority of the court solved an encroachment problem by ordering the encroached-upon landowner to sell his land to his encroaching neighbor. We asked “Why Isn’t This A ‘Judicial Taking?’“Continue Reading Federalist Society On The Washington Supreme Court’s Approach To Property Rights

    My Damon Key colleague Rebecca A. Copeland has launched a new blog focused on appellate issues in Hawaii and elsewhere. Appropriately titled “The Record on Appeal,” Rebecca’s blog starts off with this post, and quickly moves on to substance, analyzing the Hawaii Supreme Court’s recent decision on the legality of state worker furloughs.

    Rebecca should be familar to the readers of this blog, as she recently guest-blogged on Justice Recktenwald’s Intermediate Court of Appeals opinions, and was our person-on-the-scene when we live blogged the Senate Judiciary Committee’s hearings on the appointment of Katherine Leonard as Chief Justice. Rebecca’s background gives her special insight into appellate issues; prior to joining Damon Key, she was a Deputy Solicitor General for the State of Hawaii, where she argued important appeals for the State, and she has argued cases in the Hawaii and Texas appellate courts, as well as the Fifth and Ninth…

    Continue Reading New Law Blog: The Record On Appeal

    Check it out: the William and Mary Property Rights Project and the Institute of the Bill of Rights Law will present the 7th Brigham-Kanner Property Rights Conference on September 30 to October 1, 2010. The recipient of this year’s prize is lawprof Carol M. Rose (U. Arizona).

    More information, including a link to registration information here, from the Owners’ Counsel of America blog.
    Continue Reading Upcoming Conference: 7th Annual Brigham-Kanner Property Rights Conference (9/30)