March 2012

Court-appointed appraisers awarded $7.5 million for the taking of property once used as a  shopping mall, but being used as an office park at the time of the taking. The property owner challenged the award, and at trial sought to exclude tax appeal documents from two years earlier, in which it estimated the value of four of the five buildings taken as $2,650,000. The owner asserted the tax appeal was not relevant because it did not involve the entire property taken, and besides, it only filed the appeal to force the government to abide by its plan which was supposed to freeze property taxes (but it didn’t). The government argued that the appeal was admissible as an admission against interest. The trial court admitted the evidence, and the jury came back with a verdict of $6.95 million.

On appeal, the Kansas Supreme Court affirmed. In Kansas City Mall Assoc., Inc. …

Continue Reading Kansas: Owner’s Claims In Property Tax Appeal Are Admissible In Later Eminent Domain Action

On Thursday, we attended oral arguments in the Hawaii Supreme Court in a case that should be of particular interest to all you appellate procedure wonks.

A few days before expiration of the filing date for the notice of appeal, the parties stipulated to a two week extension of time. The trial court approved and ordered the stipulation. Problem is, the only authorized way for the parties to obtain an extension of time in a civil case before expiration of the notice of appeal deadline is to get a court “upon a showing of good cause” to order the extension. See Haw. R. App. P. 4(a)(4)(A). However, the parties’ stipulation and the court’s order did not contain these magic words.

The Intermediate Court of Appeals dismissed the appeal for lack of jurisdiction because the notice of appeal was not timely filed, because there was a stipulation and not a…

Continue Reading Can Appellants Rely On Trial Court’s Erroneous Order Granting Extra Time To Appeal?

The city takes property for a bike trail. It deposited estimated compensation in court, and sought and obtained immediate possession. The owner disputed whether the city had the power to take his land, but the trial court rejected these arguments. The owner filed an interlocutory appeal on the public use and necessity issues. The city moved to dismiss for lack of appellate jurisdiction: the valuation phase of the trial was not finished, so there was no final judgment and it was too early to appeal. 

The Arkansas Supreme Court agreed. Thomas v. City of Fayetteville, No. 11-930 (Mar. 15, 2012). Because the issue of compensation remained for the trial court to determine, the judgment allowing the taking was not final. Piecemeal appeals are generally not favored, and the court refused to adopt the property owner’s call for an exception because disallowing the appeal would “divest him of a substantial…

Continue Reading Arkansas: Public Use Determinations Not Immediately Appealable

In Miller v. FW Commercial Properties, LLC, No. 105066 (Mar. 9, 2012), the Kansas Supreme Court held that a lawyer who represents a party in a condemnation case is not entitled to recapture his or her legal fees from another party’s condemnation award because the lawyer is not a “party in interest” in the case.

KDOT condemned Armendariz’s land. The petition also listed the Britts as interested parties, because they claimed they owned one of Armendariz’s tracts by virtue of adverse possession, and had filed a quiet title action. Eventual award for this tract: $18,000, which is $11,000 more than KDOT’s original offer.

Amendariz was not represented by a lawyer until after the award (he appealed the valuation, and contests the adverse possession lawsuit). The Britts were represented by a lawyer in the condemnation, and a different lawyer in the quiet title action. The Britts’s condemnation lawyer informed their…

Continue Reading Kansas: Lawyer Not A “Party In Interest” In Condemnation Case

There’s a feature story in today’s Honolulu Star-Advertiser, “Red tape ties up groups’ fishpond restorations,” about a local caretaker group’s frustration with “government rules” they claim are thwarting their efforts to fix up a traditional littoral fishpond.

For those of you not familiar with these centuries-old aquacultural structures designed to catch and raise fish that once dotted the shores of most every Hawaiian island, check out Kaiser Aetna v. United States, 444 U.S. 164 (1979), the U.S. Supreme Court’s decision upholding the private nature of these structures. For a slightly more recent case protecting the private status of a  fishpond on Molokai see Boone v. United States, 944 F.2d 1489 (9th Cir. 1991). Disclosure: we represented the property owners in both cases.

The S-A story is mostly behind a paywall, so for those without subscriptions or access to the hard copy, here’s the short…

Continue Reading Trickle-Down Regulation: Environmental Maze Becomes “Stumbling Block” For The Little Guys

The Penn Central test — reaffirmed in Lingle as the regulatory takings “benchmark” in all but a few cases — is one of those “factor” tests in which the trier of fact is supposed to examine three things: (1) the economic impact of the regulation on the property; (2) the interference with investment-backed expectations, and (3) the character of the government action. None of these factors is supposed to be dispositive.

In Noghrey v. Town of Brookhaven, No. D33861 (Feb. 21, 2012), the Appellate Divison of the New York Supreme Court, however, held otherwise, and overturned a jury’s verdict that the town’s zoning regulations worked a Penn Central taking because the loss of value determined by the jury wasn’t enough:  

The jury was instructed that damages were to be assesed by determinng the value of the properties immediately before and immediately after the rezoning. The difference between those…

Continue Reading NY App: Can’t Have A Penn Central Taking With “Only” A 46% Loss In Value

Here’s the state’s BIO in Harmon v. Kimmel, No. 11-496 (cert. filed Oct. 17, 2011), the case challenging New York City’s rent control ordinance as a due process violation and as a taking. We posted the cert petition and the three amicus briefs in support here.

Both respondents waived their rights to file a BIO, but in December, the Court requested responses. Last week, we posted the City of New York’s BIO here.

Here’s the Court’s docket page for the case.Continue Reading State’s BIO In New York Rent Control Case

Here are the other two amicus briefs in support of the petitioner in River Center LLC v. Dormitory Auth. of the State of New York, No. 11-922 (cert. petition filed Jan. 23, 2012).

That’s the case in which a Manhattan property owner and developer is challenging the compensation awarded by New York courts for a taking near Lincoln Center. The Appellate Division denied the owner the right to present and have considered evidence about the valuation of the property because the court held that in order to be admissible, the property owner must be able to show the use it claims is the highest and best use is “established as reasonably probable and not a ‘speculative or hypothetical arrangement in the mind of the claimant,'” and that these plans will “come to fruition” in the near future.

The property owner, represented in the Supreme Court by Harvard lawprof…

Continue Reading Amicus Briefs In Manhattan Just Compensation Case

Here’s the BIO in Harmon v. Kimmel, No. 11-496 (cert. filed Oct. 17, 2011), the case challenging New York City’s rent control ordinance as a due process violation and as a taking. Although the respondents waived their right to respond, the Court requested they file an opposition.

We posted the cert petition and the three amicus briefs in support here.

The BIO argues that Yee v. City of Escondido, 503 U.S. 519 (1992) forecloses the takings claim (it “removes any basis for petitioners’ argument that the [Rent Stablization Law] effects a physical taking of their property”). It also argues that the RSL is “rational,” and does not violate due process:

The RSL addresses a pressing local problem. “In contrast to the rest of the country, most New Yorkers do not own the homes in which they live.” New York City Rent Guidelines Board, 2011 Housing Supply Report…

Continue Reading BIO In New York Rent Control Case: Market Rents Are “Unjust, Unreasonable, And Oppressive”