2012

Our Cincinnati colleague Matt Fellerhoff has posted his thoughts on an interesting case from the Ohio Supreme Court, Clifton v. Village of Blanchester, No. CA2009-07-009 (Mar. 1, 2012). The case involves whether an owner whose property is located outside village limits can bring a takings case against the village. The Ohio Supreme Court held it could not. Why, you ask? Because the village could not exercise eminent domain to take the property, the property owner cannot bring a regulatory takings case against the village. Matt writes:

Even more problematic is the holding in the syllabus, that since Blanchester did not have the authority to condemn property outside of village limits, the remedy sought, an order from the court that Blanchester file an eminent domain action against Clifton to pay for the damage to his property (the only remedy for inverse condemnation under Ohio law), was insufficient and therefore, the…

Continue Reading Ohio: Owner Whose Property Is Outside Village Limits Can’t Bring A Takings Claim

Last we checked in, the case we’ve been referring to as the “bizarre condemnation” (Klumpp v. Borough of Avalon) was decided by the unanimous New Jersey Supreme Court in favor of the property owners, and remanded to the trial court for a determination of the compensation owed to the property owners, who had their land taken by the Borough in 1965. 

A few days ago, the trial court issued its decision, concluding that the compensation owed to the property owners were owed the fair market value of the property in 1965 ($5,400) plus interest at 8-9%, for a total of $284,802. The property owners claimed the value of what they lost was considerably more, since the Borough offered other property owners whose properties were taken different beachfront parcels in exchange, but never notified the Klumpps of that option. If they had been able to acquire …

Continue Reading The Bizarre Follow Up To New Jersey’s “Bizarre Condemnation”

It may be Good Friday (an official State Holiday in Hawaii), but the federal courts are open, and today, on behalf of six plaintiffs including several veterans, we filed a lawsuit challenging under the Equal Protection Clause the State of Hawaii’s practice of excluding military personnel, their families, and university students who pay nonresident tuition from the population count when reapportioning the state legislature.

The U.S. Census counts everyone who is a “usual resident” of Hawaii in its count of population — including military, their families, and university students — but the Hawaii Constitution requires the Hawaii Reapportionment Commission to only count “permanent residents.” In an opinion issued in January 2012, the Hawaii Supreme Court held this means the Commission must “extract” active duty military, their families, and university students who pay nonresident tuition from the 1.3 million+ persons counted by the Census as usual residents of Hawaii. This…

Continue Reading Federal Court Lawsuit: Hawaii Legislative Reapportionment Cannot Exclude Military, Military Families

Today is Good Friday, an official holiday in the State of Hawaii, so we’re reposting our annual recounting of how it came to be that the State celebrates the date of the crucifixion. Turns out that it doesn’t really, it’s just coincidence that the “spring holiday” occurs on the same day. Or so says the Ninth Circuit. Continue Reading 9th Circuit On The Constitutionality Of Hawaii’s Good Friday Holiday: Go Shopping Or Something

Here’s the final cert stage brief (Petitioner’s Reply) in River Center LLC v. Dormitory Auth. of the State of New York, No. 11-922 (cert. petition filed Jan. 23, 2012), 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. This brief responds to the Dormitory Authority’s Brief in Opposition (posted here).

The Fifth Amendment’s Takings Clause will be eviscerated if the government is able to water down the Just Compensation guarantee to the point of meaninglessness. Property rights require vigilant enforcement of both the Takings and Just Compensation Clauses, and the instant petition provides a perfect vehicle for the reinvigoration of the latter.

Br. at 2. We filed an amicus brief supporting the property owner on behalf of Owners’ Counsel of America, posted here.

New York’s Appellate Division denied…

Continue Reading Petitioner’s Reply Brief In Manhattan Eminent Domain Case: Time To Reinvigorate The Just Compensation Clause

Here’s the latest in a case we’ve been following, a tale from New York that reminds us of the U.S. Supreme Court’s decision in Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419 (1982). Every takings lawyer worth his or her salt knows that Loretto stands for the proposition that a regulation allowing a physical invasion of private property — no matter how de minimus the invasion might be — is a per se regulatory taking. In that case it was the cable TV company that attached a small box to Mrs. Loretto’s building.

In Corsello v. Verizon New York, Inc., No. 51 (Mar. 29, 2012), the New York Court of Appeals held that when the telephone company “attached a box to a building that plaintiffs own, and used the box to transmit telephone communications to and from Verizon’s customers in other buildings,” the property owner could…

Continue Reading Loretto Redux: NY Court Of Appeals Revisits An Old Friend

Fire up your SCOTUS monitors and amicus pens: the Supreme Court has granted cert in Arkansas Game & Fish Comm’n v. United States, No. 11-597 (cert. granted Apr. 2, 2012), a case from the Federal Circuit that we’ve been watching. 

In a 2-1 decision, the Federal Circuit held that flooding caused by the Corps of Engineers was only temporary, and did not result in a compensable taking, and “at most created tort liablity.” 

Here’s the Question Presented:

Petitioner Arkansas Game & Fish Commission, a constitutional entity of the State of Arkansas, sought just compensation from the United States under the Takings Clause of the Fifth Amendment for physically taking its bottomland hardwood timber through six consecutive years of protested flooding during the sensitive growing season. The Court of Federal Claims awarded $5.7 million, finding that the Army Corps of Engineers’ actions foreseeably destroyed and degraded more than…

Continue Reading Supreme Court To Review Another Takings Case: Is Temporary Flooding Causing Permanent Damage A Taking?

Today, the Texas Supreme Court issued opinions in Severance v. Patterson, No. 09-0387, the case before the court on certified questions from the U.S. Court of Appeals for the Fifth Circuit. The Fifth Circuit asked whether Texas recognizes a “rolling” beachfront access easement (a public easement on littoral property that moves with naturally caused changes in the vegetation line without proof of prescription, if Texas does recognize such an easement, what is its source (statute or common law), and would a landowner subject to this easement be able to obtain compensation under Texas procedures?  More on the case background here.

The Texas Supreme Court had issued opinions in 2010 affirming that no such “rolling easement” existed (opinions and briefs available here), only to grant the government’s motion for rehearing, apparently something you can do under Texas appellate procedure. So nearly a year ago, the Supreme Court…

Continue Reading Texas (Again) Affirms Property Rights: No “Rolling Easement” On Beaches

Here’s one for your California readers. You know Proposition 13, the provision in the California Constitution that limits property tax increases, and allows reassessment of value only upon a change of ownership, and you either love it or hate it: to some it insulates property owners from being forced out of their homes by uncontrolled property taxes, to others it is responsible for the downfall of California as the Golden State.

A property owner’s acquisition of replacement property for property taken in “eminent domain proceedings” in which the taken property is acquired by a “public entity,” is not a “change of ownership.” But what about when new property is purchased to replace property sold under threat of condemnation to a private developer who is teamed up with a government redevelopment agency — is that a “change of ownership” such that the property is assessed at current market rates?

In …

Continue Reading Cal App: Sale To Private Redeveloper Under Threat Of Condemnation Is A “Change Of Ownership” Under Prop 13

Here’s the BIO in in River Center LLC v. Dormitory Auth. of the State of New York, No. 11-922 (cert. petition filed Jan. 23, 2012), 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 Laurence Tribe, argues in its cert petition that the …

Continue Reading BIO In SCOTUS Just Compensation Case