March 2012

Here’s today’s second decision about attorneys fees and costs, this time in an inverse condemnation claim out of the Federal Circuit, Bywaters v. United States, No. 2011-1032 (Mar. 1, 2012).

In a class action rails-to-trails takings case under the Little Tucker Act (less than $10,000 per claim, district court venue), the trial court awarded the property owners attorneys fees and costs under the Uniform Relocation Assistance and Real Property Acquisition Policies Act. The government had stipulated to liability and the parties worked together to determine compensation for class members. Eventually, the district court approved a settlement for the entire class of approximately $1.25 million, interest included. The property owners then filed a claim seeking $832,000 in fees for 2,000+ hours of work. The market rate they sought was for attorneys in the District of Columbia (where their office is located), and not the Eastern District of Texas (the…

Continue Reading Federal Circuit Talks Attorneys Fees Under The Uniform Relocation Act

Here’s the first of two cases about the recovery of attorneys fees in takings cases.

The first is People ex rel. Dep’t of Transportation v. Superior Court, No. C069391 (Mar. 1, 2012), from the California Court of Appeal, about recovery of fees in eminent domain proceedings.

After a stipulated judgment days before the trial was to commence, the trial court awarded the property owners their litigation expenses under the California statute allowing the court to include those expenses as part of the costs if the condemnor’s offer was unreasonable, and the property owner’s demand was reasonable. Here’s the relevant provision:

If the court, on motion of the defendant made within 30 days after entry of judgment, finds that the offer of the plaintiff was unreasonable and that the demand of the defendant was reasonable viewed in the light of the evidence admitted and the compensation awarded in the proceeding…

Continue Reading Cal Ct App: Property Owners Only Entitled To Attorneys Fees In Condemnation Cases After A Trial

The Stanford Law Review has been doing a good job lately of talking takings. Last week, it published a note about judicial takings and the Stop the Beach Renourishment case. Now comes the Law Review’s online edition with a new essay by Professor Richard Epstein, “Physical and Regulatory Takings: One Distinction Too Many,” about the New York City rent control case up before the Supreme Court on a cert petition. (We posted the cert petition and the amicus briefs in support in the Harmon case here.) Professor Epstein writes:

Unfortunately, modern takings law is in vast disarray because the Supreme Court deals incorrectly with divided interests under the Takings Clause of the Fifth Amendment … The Supreme Court’s regnant distinction in this area is between physical and regulatory takings. …

Thus, under current takings law, a physical occupation with trivial economic consequences gets full compensation. In contrast…

Continue Reading Epstein On Physical And Regulatory Takings (Stanford L. Rev.)

Descendants-kauai After the New York Court of Appeals’ decisions in the Goldstein (Atlantic Yards) and Kaur (Columbia) cases, we opined that there were not many limits remaining on the government’s exercise of eminent domain in that state.

But even after those cases, there’s got to be some limits, no?

Our Owners’ Counsel of America colleague Michael Rikon is currently testing that hypothesis in a case arising from Willets Point, a Queens neighborhood adjacent to Citi Field (new home of the Mets). Mike represents property owners (mostly small businesses) in the case, their public use challenge to the City of New York’s attempt to take their Willets Point properties for “redevelopment.” For more, see Willets Point United, and this video.

The problem is, the city doesn’t have a redevelopment plan, or any plan regarding what it intends to do with the land beyond making it a “lively, mixed-use, sustainable…

Continue Reading Amicus Brief In Willets Point Case: Condemnation For Redevelopment Needs A Plan