What owners of rent-controlled mobile home parks say to courts: “Unfair! Due Process! Rate-of-Return! Takings! Equal Protection!”
What courts hear: “blah blah DENIED blah blah blah DISMISSED blah blah blah AFFIRMED blah blah blah blah…”
Latest example: Besaro Mobile Home Park, LLC v. City of Fremont, No. A130753 (Mar. 1, 2012).Continue Reading What We Say To Courts
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
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
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
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.)
