2012

Water is aprecious resource said to be held in the “public trust.”  The Hawaii Constitution provides that “theState has an obligation to protect, control and regulate the use of Hawaii’swater resources for the benefit of its people.”   To this end, the State evaluates andregulates the use of these resources through its Commission of Water ResourceManagement.  Often landowners and usershave competing needs to the same water source, particularly when the lands arebeing used for agriculture.  The Commissionmust balance these needs with those of the environment and ecosystem and, attimes, with the needs of those entitled to traditional and customary practicesinvolving or using the water resource.

The HawaiiSupreme Court recently took issue with a decision by the Commission on how tomarshal certain water resources, in that case a system of streams.  The case illustrates the difficulties indevising plans to account for these competing interests and what must be consideredin making that plan. …

Continue Reading Guest Post: Hawaii Supreme Court’s Latest Water Law Ruling

Here’s a short one from the Ohio Supreme Court. In City of Girard v. Youngstown Belt Railway Co., No. 2012 Ohio 5370 (Nov. 21, 2012), the court held:

In this case, we are called upon to determine the extent to which the Interstate Commerce Commission Termination Act (“ICCTA”), 49 U.S.C. 10101 et seq., preempts a state’s eminent-domain action over a parcel of property owned by a railway company. Based on our interpretation of the legislation at issue and its application to the unique facts of this case, we find no preemption, and we therefore reverse the judgment of the court of appeals.

Slip op. at 1-2. Not really an eminent domain heavy issue, and if federal preemption is your thing, check it out. More here from the local newspaper.

City of Girard v. Youngstown Belt Railway Co., No 2012 Ohio 5370 (Nov. 21, 2012)Continue Reading Ohio: Federal Law Does Not Preempt City’s Condemnation

Our colleague Mark M. Murakami was able to attend a lecture on regulatory takings at the University of Hawaii law school last week. Mark usually blogs at hawaiioceanlaw, but we convinced him to write up a guest post on his observations about the presentation.

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Last week, I attended the 2012 Distinguished GiffordLectureship in Real Property presentation by Professor Barton H. Thompson, Jr.of the Stanford Law School, entitled “In All Fairness and Justice.”

Professor Thompsondiscussed his thoughts on “allocative fairness” and different ways courts useto analyze regulatory takings. Hissource for this test is the oft quoted language from Armstrong v. United States, 364 U.S. 40 , 49 (1960) (“The Fifth Amendment’s guarantee ”that private property shall not be taken for a public use without just compensation was designed to bar Government from forcing some people alone to bear public burdens which, in all fairness and justice…

Continue Reading Guest Post:

Check out this story, Excelaron filed $6.24 billion lawsuit against SLO county, and the filing below.

$6.24 billion? According to the story, “[c]ounty Supervisor Adam Hill said the amount being sought makes this one of the largest, if not the largest lawsuit in San Luis Obispo County’s history.” 

We’d certainly hope so.

ead more here: http://www.sanluisobispo.com/2012/11/21/2303534/excelaron-lawsuit-huasna-valley.html#storylink=cpy

Petition for Writ of Mandate; Complaint, Excelaron, LLC v. County of San Luis Obispo, No. CV 120675 (Nov. 19, 2012)Continue Reading Wow, That’s A Lot Of Just Compensation

nailhouseThis photo of a “nail house” in Wenling, People’s Republic of China is making the rounds on the internet. The reports (see also here for higher res photos) say that the homeowners refused to take the offers to sell, so the developer built the road around their house. “They are called “nail houses” because the homeowners refuse to be hammered down.”

We’ve covered similar circumstances before (here, the “calvacade of homeowner holdouts,” and famous nail houses for example). Indeed, this is not a recent  phenomenon. See Seattle’s Denny regrade, for example. More photos from the Seattle Post-Intelligencer.

dennyregrade

Homeowners who didn’t go along with the Denny regrade project had the hill dug out around them. Photo: Seattlepi.com File / Seattle Post-Intelligencer

Reminds us of the Warner Bros. classic “Homeless Hare,” where Bugs Bunny objects to a developer’s efforts to evict him from his…

Continue Reading When All You Have Is A Hammer, Everything Looks Like A Nail House

Here’s the property owner’s merits brief in Koontz v. St Johns River Water Mgmt Dist., No. 11-1447 (cert. granted Oct. 5, 2012). 

This case presents two questions:

  • Whether the government violates the Takings Clause when it refuses to issue a land-use permit on the sole basis that the permit applicant did not accede to a permit condition that, if applied, would violate the essential nexus and rough proportionality tests set out in Nollan and Dolan?
  • Whether the nexus and proportionality tests set out in Nollan and Dolan apply to a land-use exaction that takes the form of a government demand that a permit applicant dedicate money, services, labor, or any other type of personal property to a public use.

The amicus briefs in support of the property owner are due next week. We’ll post those when available.

Petitioner’s Brief on the Merits, Koontz v. St. Johns River Water Mgmt …

Continue Reading Petitioner’s Brief In Koontz: No Bargaining Around The Takings Clause

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Download LA COA Monteleone

case that originated with a taking in 1987 by the DOT.  In State of Louisiana, et al v. Monteleone, et al, the Court of Appeals affirmed an award of $1,631,000.50 ($214,534.14 as just compensation for the taking + $1,416,466.40 in severance damages) + $1,584,442.54 in interest + $173,030.00 and legal interest in costs +  $900,000.00 and legal interest in attorneys fees and remanded for further determination of attorneys fees due to the landowner for the appeal.  Including all interest calculations, the award totals approximately $6 Million and represents an increase 129 times greater than the initial deposit of $46,558.00

Congratulations to OCA colleague Randy Smith for this win.

Louisiana v. Monteleone, No. 11-CA-1013 (Nov. 13, 2012)Continue Reading La App:

As you know, yesterday the Supreme Court granted cert in Horne v. U.S.D.A., No. 12-123 (cert. granted Nov. 20, 2012), the third takings claim this season. As this article asked, what, if anything, is going on? Is it just “serendipity” or a “return to the norm” as two lawprofs quoted in the article suggested, or might it be something else?

Of course, no one knows but the justices themselves (and maybe the cert pool clerks). But that won’t prevent us from engaging in a little lighthearted speculation. One theory that might explain why the Court seems to be particularly interested in property cases this term is the recent election.

It takes only four of the justices to agree to review a case, and we can safely count Justices Scalia, Thomas, and Alito as very property friendly, and Justice Kennedy and Chief Justice Roberts are moderately property friendly. If…

Continue Reading Three Takings Cases This Term – What’s The Deal?

It looks like our crystal balls are working.

Wait, that didn’t come out the way we quite intended, so let’s rephrase. Recently, we and others suggested paying attention to the property rights cases on the Supreme Court’s cert docket, paying particular attention to a case out of the Ninth Circuit, Horne v. United States Dep’t of Agriculture, 673 F.3d 1071 (9th Cir. 2011).

In Horne, the Ninth Circuit concluded that the defensive takings claim raised by raisin farmers who qualified as “raisin handlers” under federal regulations and thus were required to “reserve” (donate) 47% of their crop to the government, was not ripe because the farmers could seek just compensation in a Tucker Act claim in the Court of Federal Claims. The court dismissed the case for lack of jurisdiction. That opinion replaced an earlier opinion holding that the reserve requirement was not a taking because the…

Continue Reading SCOTUS Grants Cert In California Raisins Takings Case