March 2013

Cle-logoThose of you on the east coast (or, who wouldn’t mind a visit to a very beautiful part of Virginia), mark your calendars: on April 25 and 26, 2013, CLE International is presenting the 7th Annual Virginia Eminent Domain Conference – Local, State, and National Trends at the Tides Inn in Irvington, Virginia.

My Owner’s Counsel of America colleague Joe Waldo, the Planning Chair for the conference, has kindly asked me to deliver the Keynote Presentation to speak about “Virginia’s Place in National Eminent Domain Trends.” The following day, I’ll also be presenting a one-hour session on “Tough Takings Questions: Regulatory Takings, Zoning Issues and Judicial Takings” featuring the latest updates in those areas.

Joe and colleagues have assembled a talented and varied faculty, so please join us for two days worth of great CLE. Download the full brochure or the short version postcard, or, for complete…

Continue Reading 7th Annual Virginia Eminent Domain Conference (April 25-26, 2013)

Our state courts may be closed on this Good Friday, but the courts of most other states’ are not, Texas courts included. So here’s an opinion issued today by the Texas Supreme Court, El Dorado Land Co. v. City of McKinney, No. 11-0834 (Mar. 29, 2013).

[Update: more on the case here from the Supreme Court of Texas Blog, including links to the briefs and the oral arguments.]

El Dorado sold the city some land for use as a park. The conveyance required that the land “shall be used only as a Community Park,” and if not used for that purpose, then El Dorado would have the right to buy the land back.

Ten years later the city built a public library on part of the land, which resulted in El Dorado reminding the city about that “park” use requirement by giving notice that it was…

Continue Reading Texas: A Future Interest Is A Property Interest

Our colleague Mark M. Murakami has published the first in a series of posts on his blog about legal issues surrounding the multi-billion dollar Honolulu rail project, “Honolulu Rail and the Uniform Relocation Act.”

Because the HART rail project will involve federal funds, federal laws and regulations provide property owners (and their tenants) with additional statutory and regulatory protections above what is required by the Fifth Amendment, the Hawaii Constitution or Hawaii Revised Statutes Chapter 101.  This is the first post in a series about Honolulu Rail.

Title 42, Chapter 61 of the U.S. Code is entitled:  “The Uniform Relocation Assistance and Real Property Acquisition Policies for Federal and Federally Asssisted Programs” and provides the statutory authority for the regulations which provide the details of the various benefits of the Uniform Relocation Act program.  

Yes, his blog is Hawaiioceanlaw.com, but maritime and admiralty law is just one…

Continue Reading Honolulu Rail And Federal Relocation Benefits

Before the title of this post causes you to flee, please bear with us.

Oral arguments have just concluded in the Hawaii Intermediate Court of Appeals in a fascinating case involving the nature of “Torrens” title and, in a broader sense, the nature of property rights themselves. Disclosure: we filed an amicus brief in the case in support of the property owner. But more on that below.

Hawaii is one of the few remaining states retaining its Torrens system of title registration (two others are Massachusetts and Minnesota). We call it “Land Court,” a system in which the State guarantees indefeasible title to the rights and interests reflected in the title register.  

In In re Trustees Under the Will of the Estate of James Campbell, No. 30006, the State of Hawaii claims that title to property on Oahu’s north shore which was registered and confirmed to the Campbell Estate…

Continue Reading HAWICA Appeal: Is A Mineral Right An Inherent Servitude, Or Must It Be Reflected In Torrens Title?

If this article — Christie tells beachfront owners to sign easement for dunes or face ridicule — accurately relays the entire context of the situation, then something is seriously off here.

The article quotes New Jersey Governor Chris Christie as declaring that if shoreline property owners do not voluntarily surrender easements and allow the construction of sand dunes on their land (presumably without compensation) very soon, then he’s going to “call them out” and publicly name them:

“We’re going to start calling these folks out in the next few weeks if they haven’t signed the easements to let us build the dunes because they need to be called out and they need to be told that there is something more important than their own self interests,” he said during a town hall-style event in Middlesex Borough.

He followed that up with his reasoning:

“I’m not going to put up with…

Continue Reading Tail Gunner Christie: What’s Next, The Pillory And The Stock?

If that headline calls out to you, congratuations: you are officially a takings nerd.

In Brandt v. United States, No. 12-5050 (Mar. 26, 2013), the Federal Circuit held that a takings claim originally submitted as a compulsory counterclaim to the federal government’s attempt to quiet title in a District Court action — which was then subsequently filed as a separate action in the Court of Federal Claims — was not barred by 28 U.S.C. § 1500. That statute deprives the CFC of subject-matter jurisdiction “of any claim for or in respect to which the plaintiff … has pending in any other court any suit or process against the United States….”

If this case name sounds familiar, here’s why. Last week we posted the cert petition in a companion case (the one that the government alleged was pending at the time that Brandt filed his takings counterclaim). Brandt’s petition…

Continue Reading Federal Circuit: Takings Counterclaim Not Barred By Section 1500 – A Dismissed Claim Is Not “Pending” Even Though It Might Be Appealed

No, the title to this post is not based on a character from a future Harry Potter book, but a wonderful phrase borrowed from German into the world of chess. “Zugzwang,” for those of you who are neither German-speakers nor chess players, describes a situation in which a player is in a good position, but any move will put her in a worse position. And move she must.

That’s what many property owners’ lawyers feel like when that regulatory takings case walks though their doors and they are asked “do we file now or later, and in which court?” You file now, and you may spend years litigating whether the case is ripe because it is alleged that you acted too soon. Wait, and you will be facing an argument that the statute ot limitations has run. Zugzwang. Same goes for which court, state or federal. File…

Continue Reading Zugzwang Thwarted: Florida Property Rights Act Claim Timely Filed

When a court of appeals opinion holding that the federal government has retained a reversionary interest in railroad rights-of-way contains the following language, that sound you hear is the cracking of smiles on appellate lawyers’ faces:

Though we recognize that the Seventh Circuit, the Federal Circuit and the Court of Federal Claims have concluded that the United States did not retain any reversionary interest in these railroad rights-of-way, we are bound by our precedent.

United States v. Brandt, No. 09-8047, slip op. at 5 (10th Cir. Sep. 11, 2012). That, you see, is the court acknowledging the holy grail of Supreme Court review, the vaunted “circuit split,” and the presence of a genuine disagreement in the law among the lower courts is one of the tickets to getting the Justices’ — or at least the cert pool clerk’s — attention.

Thus, the cert petition filed yesterday seeking…

Continue Reading Circuit Split Alert: New Petition Asks – What Is It About “Easement” That You Don’t Understand?

Here’s the Reply Brief in Ilagan v. Ungacta, No. 12-723 (cert. petition filed Dec. 7, 2012), the case in which the Court is considering whether to review the Guam Supreme Court’s opinion applying Kelo v. City of New London, 545 U.S. 469 (2005) to reverse a trial court decision invalidating a taking. 

The reply brief responds to the Brief in Opposition‘s argument that the taking of the Ilagan property did not violate the Public Use Clause because it was accomplished under the auspices of the Agana Plan:

Most notably, the Opposition does not dispute the evidence showing the private character of the transfer of the Petitioners’ (Ilagans) land to their neighbors, the Ungactas. To be precise, the Opposition does not deny: (1) that the taking of the Ilagans’ land was initiated and funded by the Ungactas; (2) that the Unguctas are politically connected, with Respondent Felix Ungacta…

Continue Reading Reply Brief In Eminent Domain Pretext Case: If The Government Won’t Even Defend The Taking … It Might Be A Private Condemnation