2013

If you haven’t figured out by now, we like takings claims. We really do. But here’s one where we think the Third Circuit reached the right result when it concluded that there was no compensable taking. National Amusements, Inc. v. Borough of Palmyra, No. 12-1630 (May 9, 2013).

Why? Because when there may be an unexploded artillery shell on the property, and as a result the government seals off the property and temporarily closes the business conducted thereon, we don’t think the Takings Clause requires compensation, that’s why. The property owner thought otherwise, and in response to the Borough’s order to shut down after someone discovered that a flea market site was also former WWII-era muntions magazine and testing area, and that there was still some of that stuff left over, it objected:

The gist of the Complaint is that Palmyra overstated the danger posed by the unexploded munitions…

Continue Reading Third Circuit: Closing A Business To Remove Unexploded Munitions Is Not A Taking

We generally don’t cover unpublished decisions, but since we’re adding this case to our “to watch” list, we’re making an exception. In 62-64 Main Street, LLC v. Mayor and Council of the City of Hackensack, No. A-3257-11T4 (N.J. Super. May 3, 2013), the Appellate Division of the New Jersey Superior Court held that “the trial judge and the City misapplied our Supreme Court’s decision in Gallenthin Realty Development, Inc. v. Borough of Paulsboro, 191 N.J. 344 (2007),” when it concluded that the taking of property for redevelopment was supported by a blight finding. The appellate court concluded that the city had not made a factual showing that the properties it wishes to take are in an actual state of “deterioration or stagnation that negatively affects surrounding areas.”

Under the Gallenthin decision, New Jersey courts — unlike the courts in many other states — are not mere rubber…

Continue Reading NJ App: No Blight Proven In Redevelopment Taking

Here’s the opinion of the California Court of Appeal (1st District) in an appeal we’ve been following, Lockaway Storage v. County of Alameda, No. A30874 (May 9, 2013), affirming that the County of Alameda is liable for a temporary regulatory taking under Penn Central, and awarding the property owners nearly three-quarters of a million in attorney fees.

The entire opinion is worth reviewing, but here’s the short story. Lockaway purchased agriculturally-zoned land in the East Bay area for use as a boat and RV storage facility, an alternate conditional use in ag-zoned land. For over a decade, the property had been used as such pursuant to a series of Conditional Use Permits. In 2000, however, the voters of the county approved an initiative which prohibited the development of storage facilties, unless approved by public vote. The ordinance contained a provision allowing “minimum development” if the prohibition would deprive…

Continue Reading Cal App Affirms Penn Central Temporary Regulatory Taking

A short one from the Texas Court of Appeals (Third District), involving inverse condemnation. In City of Austin v. GHI Investments, LLC, No. 03-12-00198CV (Tex. App. Apr. 30, 2013), the court held that flooding resulting from the city’s approval of drainage designs that were part of a road widening and bike lane project, stated a claim for inverse condemnation. The trial court refused the city’s motion to dismiss and on an interlocutory appeal, the court of appeals affirmed.

Texas municipalities, like many of their parallel entities in other states, enjoy a limited immunity from tort lawsuits, but that immunity has been waived under the Texas Constitution’s takings clause (and its parallels). That, of course, includes inverse condemnation, and “[t]o plead a valid inverse condemnation claim and establish waiver of immunity under the takings clause, a plaintiff must allege that the governmental agency (1) intentionally performed certain acts in the…

Continue Reading Tex App: Low Threshold For “Intent” In Inverse Condemnation Pleading

Here’s the latest decision from the Hawaii Supreme Court applying the “private attorney general” doctrine, which allows a prevailing party to recover fees and costs in certain limited circumstances. In Kaleikini v. Yoshioka, No. SCAP-11-0000611 (May 2, 2013), the court awarded attorneys’ fees and costs incurred on appeal to the plaintiffs who prevailed in the case challenging the archaeological review for the $4+ billion Honolulu rail project. In its earlier opinion, the court held that the review could not be segmented, and that the city should not have started construction on any part of the project until archaeological review for the entire project had been completed.

Highlights:

  • Ask the appellate court only for those fees and costs you incur in that court; if you want fees incurred in the trial court, seek them there.
  • The going rate for highly skilled and experienced attorneys in Honolulu is darned reasonable

…
Continue Reading HAWSCT’s Latest On The “Private Attorney General” Fee-Shifting Doctrine

Here’s the third and final amicus brief supporting the petitioner in Marvin M. Brandt Revocable Trust v. United States, No. 12-1173 (cert. petition filed Mar. 22, 2013). The Pacific Legal Foundation brief argues:

This case raises important questions regarding the common law of property ownership and the certainty of titles in property.

. . . .

As fully set out in the Petition, the Tenth Circuit’s rule directly conflicts with decisions of this Court as well as decisions from the Federal Circuit, the Court of Federal Claims, and the Seventh Circuit. Pet. at 17-34. The split of authority regarding ownership of abandoned railroad rights-of-way has been growing for years, and is well-documented. See, e.g., Pet. Cert. App. at 5-6, 22-24 (discussing split of authority); Hash v. United States, 403 F.3d 1308, 1318 (Fed. Cir. 2005) (same); 11 Powell on Real Property § 78A (referring to the…

Continue Reading One More Amicus Brief In Railbanking Case: Growing And Well-Documented Circuit Split

Here’s the amici brief of the Cato Institute and the National Association of Reversionary Property Owners supporting the petitioners in Marvin M. Brandt Revocable Trust v. United States, No. 12-1173 (cert. petition filed Mar. 22, 2013).

In that case, the Tenth Circuit’s opinion held that the term railroad “right of way” as used in an 1875 federal statute was a grant of land to railroads in fee simple with an “implied reversionary interest” to the United States, and not merely an easement. The difference is that easements may be extinguished, while reversionary interests are not. In this case, the railway abandoned its use, after which the federal government instituted a quiet title action in federal court claiming it and and not Brandt owned the right of way.

The amici brief argues:

This case is important to the Association because the Tenth Circuit’s decision unsettles long-established property interests and clouds…

Continue Reading Amicus Brief In Railbanking Case: Circuit Split May Upset Title To Millions Of Acres

There isn’t a whole lot of eminent domain action in the Ninth Circuit’s opinion in Grand Canyon Skywalk Development, LLC v. Sa Nyu Wa, Inc., No. 12-15634 (Apr. 26, 2013), and the issue the court analyzes is the relative jurisictions of the federal and tribal courts, but it still is an interesting read nonetheless.

The case involves the Hualapai Tribe’s efforts to condemn the rights of the non-Indian developer of that big glass bridge over the Grand Canyon. A dispute arose between the developer and a corporation chartered by the tribe over a revenue-sharing contract, and while the corporation and the developer were arbitrating their disagreement, the tribe instituted an eminent domain action in tribal court to condemn the developer’s “intangible rights in the contract, which practically speaking left [the tribal corporation] in contract with the Hualapai Tribe.” Slip op. at 5. The developer filed suit in…

Continue Reading 9th Circuit: Hard To Complain About Indian Tribe’s Eminent Domain Home Cookin’ When Condemnee Develops Indian Land

Cle-logoFor those of you attending the Virginia Eminent Domain Conference, here’s the expanded papers on “Tough Takings Questions: Regulatory Takings, Zoning Issues and Judicial Takings” and Public Use issues.

Use the password provided at the conference to open the pdf’s. It’s the same p/w for both. If you forgot the password, email me.

For those who did not attend, sorry folks, there are some benefits to coming to a conference! Y’all are going to have to wait for a bit — after a decent interval to allow the attendees to get their money’s worth, we’ll remove the password.

For more about the cases and books we discussed yesterday during my presentation on “Virginia’s Place in National Eminent Domain Trends, check these out:

  • Lingle v. Chevron, U.S.A., Inc., 544 U.S. 528 (2005) (gas station rent control, and the demise of the “substantially advance” test as a takings test).

     
    Continue Reading Materials From Today’s Virginia Eminent Domain Conference

    Here’s the amicus brief we filed today on behalf of our colleagues at Owners’ Counsel of America, urging the U.S. Supreme Court to grant cert in Marvin M. Brandt Revocable Trust v. United States, No. 12-1173 (cert. petition filed Mar. 22, 2013).

    That petition asks the Court to review a Tenth Circuit decision that continued a lower court split about the meaning of the term railroad “right of way” as used in an 1875 federal statute and federal land patents subject to the 1875 Act. The issue is whether the federal government retained an “implied reversionary interest” when it issued these patents, or whether these grants were subject only to a railroad easement. The difference is that easements may be extinguished, while reversionary interests cannot. In this case, the railway abandoned its use, after which the federal government instituted a quiet title action in federal court asserting…

    Continue Reading Amicus Brief In Rails-to-Trails Case: Switching Tracks To Undermine Takings Claims