2010

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

Orange-fruit-2When 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…

Continue Reading Florida Court Of Appeal: State Must Pay When It Destroys Healthy Orange Trees

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?

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…

Continue Reading Ely On “Stevens, Kagan and Property Rights”

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…

Continue Reading Yale Law Journal: Eminent Domain Due Process

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…

Continue Reading Cal Ct App: You Knew The Property Was Damaged When You Bought It

In County of Cortland v. Miller, No 507725 (Mar. 24, 2010), the New York Appellate Division (Third Department) held that when the county legislature authorized the condemnation of property for a road culvert pursuant to New York’s Eminent Domain Procedure Law, the county highway department must condemn the property pursuant to the EDPL, and not the Highway Law.

Here, the County Legislature’s resolution in August 2008 authorized the acquisition pursuant to the EDPL. Rather than adhering to the method for the taking directed in the resolution (i.e., the EDPL), petitioner instead attempted to use a procedure under a different statute (i.e., Highway Law § 120). This alone is reason enough to dismiss the petition. In addition, Highway Law § 120 is inconsistent with the EDPL in significant aspects relevant in this proceeding, including hearing requirements (see EDPL 201) and who determines compensation (see EDPL 501 [B]). Those aspects of…

Continue Reading New York Appellate Division: Condemnation Must Proceed Under Eminent Domain Statutes, Not Highway Law

“Our decision today recognizes that snow and snowplowing are facts of life in Vermont, and we do not find a cause of action when defendant has done nothing more than protect public safety by plowing the roads that it has an ongoing legal duty to plow.”

Ondovchick Family Ltd. P’ship v. Agency of Transportation, No 2009-182, at ¶ 22 (Apr. 30, 2010).

There you have it: one of those decisions where its really not productive to dig deeper, or to try and reconcile it with other cases. You know the kind of decision we’re talking about, the kind where the opinion begins with “The widow Plaintiff…” and that you don’t need to read much further to know the result the opinion is going to reach, or why.

Oh, we could try and analyze the Vermont Supreme Court’s opinion in Ondovchick more closely. But that might be a…

Continue Reading Vermont Supreme Court: Snow Is A Fact Of Life In Vermont

In Guggenheim v. City of Goleta, 582 F.3d 996 (9th Cir., Sep. 28, 2009), a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit held that the city’s mobile home rent control ordinance (RCO) was a regulatory taking. The court found the case ripe under Williamson County, and addressed the merits of the takings claim under Penn Central Transportation Co. v. New York City, 438 U.S. 104 (1978).

A sharply divided en banc court vacated the panel opinion, and held that the city’s RCO did not work a regulatory taking, because the fact that the Guggenheims purchased their property subject to a rent-control regime was “fatal” to their investment-backed expectations. Our report on the en banc oral arguments is posted here. The video of the arguments is posted here. The en banc opinion is available here.

On March 11, 2011, the…

Continue Reading Rent Control Takings Case (Guggenheim) Resource Page

A couple of links following up on our recent post about City of Milwaukee Post No. 2874 Veterans of Foreign Wars of the United States v. Redevelopment Agency of the City of Milwaukee, No. 09-1204 (cert. petition filed Apr. 2, 2010).

That’s the case in which the Supreme Court is being asked to review a decision by the Wisconsin Supreme Court (768 N.W.2d 749 (Wis. 2009)) applying the “undivided fee” rule to conclude that a valuable long-term $1 per year lease was worthless as a matter of law. The VFW was prohibited by the trial court from introducing any evidence of value since under the undivided fee rule, the jury could only determine the value of the fictional fee simple interest. The sharply divided Wisconsin Supreme Court affirmed. [Disclosure: we filed an amicus brief, noted below.]

The cert petition is here. The amicus brief we filed for National…

Continue Reading More About The “Undivided Fee Rule” Cert Petition