January 2013

How, as an appellant, do you know you are in trouble? When an opinion starts like this, that’s how:

Although a residential subdivision proposed for construction in a bucolic Rhode Island town never saw the light of day, its ghost continues to haunt the parties. But apparitions rarely have substance, and this one is no exception. After careful consideration of the plaintiff’s complaint and the district court’s order of dismissal, we lay the ghost to rest.

The remainder of the opinion in Marek v. Rhode Island, No. 12-1460 (1st Cir. Dec. 27, 2012)  deals with whether a property owner suffered a taking when the State of Rhode Island and other parties granted a permit and approved construction by a neighboring owner of a road that allegedly encroached on the plaintiff’s land.

Among other arguments (as far as we can tell), the plaintiff raised a takings claim in federal court…

Continue Reading First Circuit: Inverse Condemnation Claim In State Court An “Adequate Procedural Pathway” To Compensation

Earlier, we posted the opinion of New York’s Appellate Division in New York Central Lines, LLC v. State of New York, No. 2011-03494 (Dec. 19, 2012), in which the court determined how to value a rail corridor when it is taken by eminent domain.

The court’s opinion was somewhat cryptic, so we thought we would post the briefs to help understand the arguments better. If this is your game, check them out:

These briefs come to us by way of Jonathan Houghton, counsel for the prevailing property owner. Jonathan is the partner of our Owners’ Counsel of America colleague Mike Rikon. Two more kudos: Jonathan recently became a named partner of the firm, which has recently moved back into its permanent offices in Manhattan after being displaced by Hurricane Sandy. Congratulations on all Continue Reading Briefs In NY Rail Corridor Valuation Case

You know how we’re always saying that certain parties have an enviable record of success in the Hawaii Supreme Court? Well, now the statistics are official.

The latest edition of the University of Hawaii Law Review published an article by lawprof David Callies summarzing the decisions of the court during the tenure of now-retired Chief Justice Ronald Moon. The article sets forth the stark numbers (83% win rate, 65% reversal of the intermediate appellate court), and contains a sharp comment about the often-lengthy nature of the court’s opinions:

Second, the Moon Court decided some of thestate’s most important property and related environmental and Native Hawaiianrights cases in favor of the various non-governmental organizations bringingthem (Sierra Club, Earthjustice, Hawaii’s Thousand Friends, and the NativeHawaiian Legal Corporation) approximately eighty-two percent of the time,sixty-five percent of which reversed the Intermediate Court of Appeals (ICA).Third, the court increasingly rendered lengthy opinions, many triple the…

Continue Reading U.H. Lawprof: HAWSCT’s 1993-2010 Record On Private Property Rights “Appalling”

A quick one from colleague Christopher Dillon. In How to buy in China, Christopher provides a primer on how to buy a home in the People’s Republic. Tip: it isn’t cheap. He reminds us:

In China all urban land is owned by the state, while rural land is owned by collectives. Private ownership of land is forbidden, and urban land used for housing is leased from the state for a 70-year term. When you buy a home in China, you purchase the structure and the remainder of the land lease.

Just in case you are thinking of doing a “Depardieu.” You know, the Russian actor.Continue Reading Buying Property In China

Here’s petitioner’s reply brief in Koontz v. St Johns River Water Mgmt Dist., No. 11-1447 (cert. granted Oct. 5, 2012), which responds to the Water Management District’s merits brief.

In that case, the U.S. Supreme Court will address whether the “essential nexus” and “rough proportionality” standards of Nollan and Dolan are applicable only to exactions for land, or whether they are generally-applicable tests for all exactions.

Among other things, the reply addresses the argument made by the District and its amici that Nollan and Dolan aren’t really “takings” cases, but involve due process or equal protection:

Due process and equal protection claims are also inapt. A due process claim questions whether the exaction serves some legitimate purpose, and an equal protection claim asks whether the exaction is applied equally to similarly situated individuals. But neither claim addresses whether a particular individual has been targeted to bear a public…

Continue Reading Reply Brief In Koontz: Money Is Property

…the Supreme Court’s opinion, isssued today, in Los Angeles County Flood Control Dist. v. NRDC, No. 11-460 (Jan. 8, 2013), in which the Court held that “the flow of water from an improved portion of a navigable waterway into an unimproved portion of the very same waterway does not qualify as a discharge of pollutants under the [Clean Water Act]”

We’d summarize the case, but that would take longer than you reading the five-page opinion.

More here from Greenwire’s Lawrence Hurley.Continue Reading Blink And You’ll Miss…

One for you just compensation mavens. In City of Wichita v. Denton, No. 97952 (Kan. Jan. 4, 2013), the Kansas Supreme Court held that the city owed no compensation for the value of a billboard or the advertising income it produced for its owner when the city condemned the land on which the billboard was located. The court concluded that as a matter of law, the billboard was the personal property of its owner, not part of the taken land, and thus not a compensable item, and evidence of its value must be withheld from the jury.

The court started with the “undivided fee” rule (aka the “unit rule”), under which the court values the property taken as if it were owned by a single entity, even though it is not (more on that here).

Because the current case is an appeal from the valuation stage of the…

Continue Reading Kansas: Billboard Is Personal Property, Not Compensable

Update: More here (Ilya Somin at Volokh), and here (Ilya Shapiro at CATO).

A coalition of property rights advocates including the National Federation of Independent Business Small Business Legal Center, the CATO Instiutute, the Owners’ Counsel of America, and lawprofs James Ely, David Callies, Todd Zywicki, Randy Barnett, Eric Claeys, and D. Benjamin Barros — has filed an amicus brief brief supporting the cert petition in Ilagan v. Ungacta, No. 12-723 (cert. petition filed Dec. 7, 2012).

Lawprof Ilya Somin, a noted scholar on public use issues, authored the brief, which argues:

This case presents an opportunityfor this Court to clarify the definition of a “pretextual taking” under thePublic Use Clause of the Fifth Amendment. In Kelo v. City of New London, 545 U.S. 469 (2005), the Court ruledthat “economic development” is a public use justifying the use of eminentdomain. But…

Continue Reading Amicus Brief In Eminent Domain Pretext Case: Time For SCOTUS To Clear Up The “Extreme Confusion”

Join us on Friday, January 11, 2013 at 1:30 p.m. Eastern (12:30 CT, 11:30 a.m. MT, 10:30 a.m. PT, 7:30 a.m. HT) for “Thinking Out Loud – Property Rights After Natural Disasters,” a free teleconference presented by the Condemnation Zoning and Land Use Committee of the ABA’s Litigation Section. There’s no cost to register, and you do not need to be an ABA or Litigation Section member to participate.

Here’s the program description:

Over one-half of the people in the United States live within 50 miles of the coastline. Hurricanes and similar types of natural disasters have caused billions of dollars in damage in recent years, particularly in coastal communities, and some scientists warn that global warming and rising sea levels will increase the frequency or severity of these types of natural disasters. Private property rights in the wake of natural disasters are an important issue not…

Continue Reading Free Teleseminar: Property Rights After Natural Disasters

Here are the briefs in Sierra Club v. Castle & Cooke Homes Hawaii, Inc., No. SCWC-11-0000625 (cert. accepted Jan. 4, 2013). That’s the case text we’ve been following involving the Koa Ridge Makai residential housing project on Oahu. The Intermediate Court of Appeals held the Hawaii Senate’s failure to confirm a sitting Land Use Commissioner for a second term did not disqualify him from office under Haw. Rev. Stat. § 26-34(a), thus validating the LUC’s vote approving the reclassification of land for the project.

The Supreme Court accepted cert to reivew a single Question Presented (as framed by the petitioner Sierra Club):

Whether a member of a government board or commission is “disqualified” under Haw. Rev. Stat. § 26-34 and the Hawai‘i State Constitution once his initial term expires and the Senate expressly rejects his reappointment to a second term after duly considering his background, experience, and performance.

Continue Reading Briefs In HAWSCT Land Use Commisioner Qualification Case