2012

In the op-ed piece “Eminently reasonable,” Brooklyn lawprof David Reiss writes that “using the power of eminent domain to restructure underwater mortgages is constitutional, beneficial and administratively feasible.”

Local governments across the country are considering an innovative use of eminent domain. They propose to condemn underwater mortgages (those that exceed the fair-market value of the home) in their communities and restructure them so that home­owners can afford their payments and so that the new mortgage is for less than the fair market value of the property. If this proposal is implemented, the local government will pay the owner of mortgages of “underwater” homes the fair market value for the mortgages. The local government will then restructure each mortgage by reducing the principal amount owed to be in line with a mortgage that would be appropriate for the fair market value of the home. This will result in lower…

Continue Reading “Eminently Reasonable,” Or Desperate Times Breed Desperate Measures?

Here’s the property owner/petitioner’s Reply Brief in Arkansas Game & Fish Comm’n v. United States, No. 11-597 (cert. granted Apr. 2, 2012), the Supreme Court takings case scheduled to be argued on October 3, 2012.

The Federal Circuit held that flooding caused by the Corps was only temporary that destroyed G&F’s trees did not result in a compensable taking merely because the flooding it eventually stopped, and “at most created tort liablity.” The dissenting judge concluded that temporary flooding was no different in kind than more permanent flooding that occurs in other inverse condemnation cases and regularly results in awards of compensation. The Federal Circuit’s opinion is here.

The Reply Brief responds to the federal government’s brief, and argues: 

The Commission seeks to apply the physical takings analysis, not a regulatory analysis like the Penn Central framework, that this Court established in flooding decisions like Pumpelly and…

Continue Reading Property Owner’s Reply Brief In Arkansas Game & Fish Comm’n: Flooding Causing Destruction Is Physical, Not Regulatory Taking

You’ve seen those shirts, the ones that have “Hollister” emblazoned on the front (“So Cal inspired clothing for Dudes and Bettys”). But here’s a case about the real Hollister (the town in Northern California), and a condemnation action directed at the Hollister Inn, a roadside hostelry near that town.

In Council of San Benity County Govt’s v. Hollister Inn, Inc., No. H036629 (Sep. 19, 2012), the Court of Appeal (6th District) held:

On appeal from the final judgment in condemnation, COG challenges (1) the trial court’s order of conditional dismissal that dismissed the action unless COG cured what the court found to be a gross abuse of discretion in adopting resolutions of necessity and (2) the trial court’s associated order awarding reasonable litigation expenses in the amount of $233,750 to respondent Hollister Inn. Both orders were incorporated into the final judgment, which recognized that COG…

Continue Reading Cal App: Necessity And Attorneys Fees In Eminent Domain

We sure wish we could have attended the Cato Institute’s recent Constitution Day program in Washington, D.C., but here’s the next best thing, a video of the presentations on Property Rights, with a review of the recent Sackett and PPL Montana decisions by the Supreme Court, and an update about the state of property rights.

Speakers include our PLF colleague Damien Schiff, lawprof Jonathan Adler, and lawprof Ilya Somin.

We can’t embed the video, but you can watch it here on CSPAN’s site. Continue Reading From Cato Institute’s Constitution Day: Property Rights And The Supreme Court (Video)

The Legal Information Institute at Cornell Law School has published its preview of Arkansas Game & Fish Comm’n v. United States, No. 11-597 (cert. granted Apr. 2, 2012), the takings case set to be argued on October 3, 2012.

Petitioner, the Arkansas Game and Fish Commission (the “Commission”) sued Respondent, the United States, for a violation of the Takings Clause of the Fifth Amendment, which compels the government to compensate parties when the government physically seizes property. Specifically, the Commission argues that the United States Army Corps of Engineers (the “Corps”) permanently destroyed trees in a bottomland hardwood forest in Arkansas by intermittently flooding the forest for six years. The United States asserts that the actions of the Corps did not constitute a taking because the Corps did not oust the Commission of possession of the forest, and only a continuous invasion qualifies as a physical taking. The Supreme…

Continue Reading A Concise Preview Of The Arguments In Arkansas Game: Flooding & Takings

Check out Evans v. United States, No. 2010-1303 (Fed. Cir. Sep. 17, 2012), a rails-to-trails case in which the Federal Circuit “confess[ed] to some puzzlement over exactly what all this sturm und drang is about.” Slip op. at 9 (footnote omitted). The court resolved a procedural issue in favor of property owners (represented by our colleague Thor Hearne, who is a frequent guest poster on rails-to-trails takings issues, most recently here).

It’s a short opinion so we won’t go into it in detail, but the case details the procedural hurdles that property owners often must go though and the jurisdictional maze they must navigate to get their takings claims against the federal government resolved. Takings lawyers who practice in the Court of Federal Claims refer to the constant jumping back and forth between the District Courts and the CFC as the “Tucker Act Shuffle,” and…

Continue Reading Federal Circuit: What’s All The “Sturm Und Drang” About?

In Moore v. City of Middletown, No 2012-1363 (Aug. 30, 2012), the Ohio Supreme Court held that a property owner did not have standing to bring a regulatory takings claim when a “foreign municipality” (the neighboring city) rezoned an adjacent parcel, because the municipality did not have jurisdiction to exercise eminent domain over his property. However, the court held the property owner could seek a declaratory judgment “to challenge the constitutionality of the ordinances.”

Under Ohio law, a “regulatory takings” action gives the plaintiff a right to bring a mandamus action to compel a municipality to institute condemnation proceedings, and the court held that since Middletown could not have exercised eminent domain authority outside of its jurisdiction, it could not be compelled to do so by the property owner. Our Ohio colleague Matt Fellerhoff discussed this aspect of Ohio law in his analysis of Clifton v. Blanchester, 964…

Continue Reading Ohio: No Such Thing As Extraterritorial Inverse Condemnation

Here’s a few reports worth reading:

  • Lt Gov. Gavin Newsom alleges ‘threats’ against mortgage plan – the LA Times reports on California’s Lieutenant Governor (who just happens to have “some ties to Mortgage Resolution Partners” — the private investment group that promulgated the idea of using eminent domain to seize underwater mortgages), who is calling for an investigation of whether those objecting to the plan are “threatening” local governments. “Newsom’s complaint comes after several groups, including the influential Securities Industry and Financial Markets Assn., objected to the eminent domain plan and warned that mortgages could become more expensive for future homeowners living in regions that adopt the plan. The Federal Housing Finance

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Continue Reading Thursday’s Worth Reading List

They say as you get older, you begin to forget birthdays (I know it’s true for me).

So it should not have been a surprise that August 31 passed without fanfare, and only today did I recall that six years ago I posted the first of my missives on this blog.

In law blog years, that’s quite a while.

Because doing this in a vacuum would not be worthwhile, I’d like to recognize my fellow-travelers — those other law bloggers who, like me, make the time to share thoughts about the legal issues of the day. Although you’re not quite “Real Men [and Women] of Genius,” today we salute you, Mr. Law Blog Blogging Guy (and Gals):

  • Anna Oshiro’s Hawaii Construction Law

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Continue Reading Into Our Seventh Year

The speed of the internet: we were preparing a post on Pacific Bell Tel. Co. v. S. Cal. Edison Co., No. B-230470 (Aug. 30, 2012), when the good folks over at Murphy & Evertz beat us to it. In a post entitled Pacific Bell Telephone Company v. Southern California Edison: Spiderman And Inverse Condemnation, they write:

Pacific Bell held that a privately owned public utility may be strictly liable in an inverse condemnation action for damage to private property. Why? Because privately owned public utilities and publicly owned public utilities both provide a vital governmental service: providing power to the people. And with that power comes great responsibility.

We recommend you read their entire analysis.

Pacific Bell Telephone Co. v. S. California Edison Co., No. B-230470 (Cal. Ct. App. Aug. 30, 2012)Continue Reading Cal App: Private Utility May Be Liable For Inverse Condemnation