2014

In 1993, in order to protect seagrasses, the city of Sanibel adopted an ordinance prohibiting the new construction of docks and piers in certain areas of town. Plaintiffs, littoral owners who bought their land after the ordinance was in place, thought that — this being Florida, and an island — it was their right to build docks and the like (because doesn’t everybody in Florida have a boat?). They challenged the ordinance in state court as a violation of due process and did not substantially advance a legitimate state interest, asserting they possessed riparian rights, incluidng “reasonable docking rights.” The city removed the case to federal court, which dismissed the complaint because riparian rights, having their source in state law, are not “fundamental” rights, and thus form no basis for a substantive due process claim. 

In Kentner v. City of Sanibel, No.13-13893 (May 8, 2014), the Eleventh Circuit agreed.

Continue Reading 11th Circuit: Riparian Rights Not “Fundamental,” And Not Subject To Lingle

A few months ago, we commented on the proposed “environmental court,” a bill working its way through the Hawaii legislature. We called it a bad idea, and hoped the Lawgivers would see the light and let this idea fade away.

It looks like we were unjustifiably optimistic, and both houses have now passed the bill (view its current form here (SD632)). See also “Bill would create environmental court” from West Hawaii Today, which correctly notes that the only thing standing between the bill and the rest of us is Governor Abercrombie’s veto pen.  

Rather than redo our earlier comments, we simply repost them below since our thoughts remain unchanged. All we have to add at this point is the above video, a longer piece, but worth your time if interested. Its title is “Price of Paradise,” and it explores why Hawaii housing prices —…

Continue Reading Hawaii’s “Environmental Court” – A Bad Idea Whose Time (Apparently) Is Nigh

Yesterday, we posted one of those only-in-Hawaii kind of cases. Today, by coincidence, is one of those only-in-the-south type of cases: 

The Christmases’ wild-alligator-nuisance claim is a case of first impression in Mississippi.

In Christmas v. Exxon Mobil Corp., No. 2011-CT-01311-SCT (May 15, 2014), the Mississippi Supreme Court held that a wild alligator infestation on a neighboring property is not a private nuisance as a matter of law. Why? Because alligators — particularly wild alligators — even though they can be such a pain, are something that every property owner wants next door? Nope, because wild alligators are a protected species, and the owner of the property which they infest (in this case Exxon), can’t do much of anything to abate said infestation without running afoul of the State of Mississippi’s statute which says you cannot “buy, sell, take, or posess alligator eggs,” you can’t disturb …

Continue Reading Mississippi: Ferae Naturae Alligators Next Door Cannot Be A Private Nuisance

Here’s one from the Hawaii Intermediate Court of Appeals that illustrates the interesting only-in-Hawaii twists that can happen in our property law. 

In Malulani Group, Ltd. v. Kaupo Ranch, Ltd., No. 30509 (May 5, 2014), the issue was whether the owner of a landlocked parcel could assert an easement implied by necessity over a wholly-surrounding neighboring parcel. Back in the day, both parcels had been under common ownership.

Old property hounds will know that “unity of ownership” is one of the key elements in proving an implied easement. Here, the common owner was the government, which triggered the question — answered differently by various courts over time — whether government ownership is sufficient to meet the unity of ownership requirement.

The unique Hawaii twist? The government here was the Kingdom of Hawaii.

The court came down on what it described as the modern trend: that prior ownership…

Continue Reading HAWICA: The “Common Owner” Giving Rise To Implied Easement Can Be The Gov’t

We’re straying outside the usual subjects of this blog (but not that far, since we also do a lot of work related to municipal governments and constitutional law). 

Our “home” in the American Bar Association is the Section of State & Local Government Law (we’re Chair of the Section’s Eminent Domain Law group), has put together a webinar about the U.S. Supreme Court’s recent decision in Town of Greece v. Galloway that may be of interest to. Here’s a description of the program:

“To pray or not to pray?” That was the question in Town of Greece v. Galloway, a case in which a sharply divided U.S. Supreme Court held that town council meetings could open with a prayer without violating the First Amendment’s Establishment Clause. This program, featuring a panel of nationally-recognized expert practitioners and scholars, will take a first look at the various opinions issued by the…

Continue Reading CLE Of Interest: “Legislative Prayer, Tradition, and the Establishment Clause”

As a cost-saving measure, Austin, Texas’s utility department had a “wait until it breaks” power line inspection policy, and one day, the lines broke.

Unfortunately, the broken power lines caused the Steiner Ranch wildfire which destroyed 23 homes. Insurance companies and uninsured homeowners sued the city, alleging tort and inverse condemnation claims. Sound familiar? 

When the trial court refused to dismiss the claims, the city sought review in the Texas Court of Appeals (Third District), which reversed. City of Austin v. Liberty Mutual Ins., No. 03-13-00551-CV (May 16, 2014). The court held that to properly plead an inverse condemnation claim in Texas, the plaintiff “it is not enough merely to allege that the act causing the damage was intentional. Rather, a party must allege that the governmental entity intended the resulting damage, or at least knew that the damage was substanitally certain to occur.” Slip op. at…

Continue Reading Tex App: Wildfire Not A Taking Unless Gov’t Meant To Cause It

Both a jury and the Court of Appeals concluded that the City of Milwaukie, Oregon, was liable in inverse condemnation for $58k because when it cleaned out the city’s sewer lines, it cause you-know-what to back up into Ms. Dunn’s house. The City asserted that it wasn’t liable — it didn’t mean to cause the stuff to invade her home — and took the case to the Oregon Supreme Court, which, in Dunn v. City of Milwaukie, No. SC S059316 (May 8, 2014), agreed.

Apparently, “hydrocleaning” the city’s sewer system (the court’s description of a process which sounds to us non-sanitation engineers as nothing more than a giant municipal enema) in this part of town was supposed to be done on low pressure, but higher pressure (1500-2000 psi) was used, with horrible results. Ms. Dunn “heard a ‘loud roar,’ felt her house shake, and then ‘brown and …

Continue Reading Oregon SCT: City Causing Sewage To Back Up Into Home Was Not A Taking

Mark your calendars for next week Thursday, May 22, 2014. ALI-CLE, the good folks who put on our annual Eminent Domain and Land Valuation Litigation and Eminent Domain 101 conferences, are sponsoring the above-titled teleconference/webinar. Here’s the program description:

The City of Richmond, California rattled the universe of real estate lenders, trustees, owners, bankers, investors, and insurers (particularly those of residential mortgage backed securities (“RMBS”)), when it proposed to use its eminent domain power for debt relief for homeowners with “underwater” mortgages on residential real property.

Richmond’s proposal has prompted other government entities to consider the plan. They claim that using eminent domain power in this way would benefit the public by providing debt relief for homeowners and help for communities with depressed residential real estate prices. The plan, if adopted by cities and allowed by the courts, would have profound effects on the RMBS, real estate, title insurance…

Continue Reading Upcoming CLE Of Note: Using Eminent Domain To Seize Underwater Mortgages – Legal Issue and Current Realities

Update: PLF’s Dave Breemer on the decision “In a New Victory, Court Blasts Rules Barring Court Access for Property Owners,” while Gideon Kanner adds his thoughts in “Be Still, My Heart! Second Circuit Rules for a Property Owner In a Stinging Inverse Condemnation Opinion.” 

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Check this out, just received: In Sherman v. Town of Chester, No. 13-1503-cv (May 16, 2014), the U.S. Court of Appeals for the Second Circuit held that a takings claim was ripe, and that Williamson County does not stand in the way. 

We love the way this opinion starts off, with a literary reference:

Hungry Joe packed up his bags and wrote happy letters home. He had flown the 25 missions required to complete a tour of duty. But thing were not so simple on Catch-22’s Pianosa island. He soon discovered that Colonel Cathcart had just raised the number of…

Continue Reading 2d Cir and Catch-22: Takings Case Ripe, “Seeking a final decision from the Town would be futile”

We’ve been tied up with some filings, and have not been able to get to our promised review of the Ninth Circuit’s recent decision in Horne v. United States. We will do so once we put one more  brief to bed, but until then, our colleagues in the Regulatory Takings Bar have published some thoughts:

  • The Horne Case Down the Tubes Again – Professor Gideon Kanner weighs in: “We are reminded of the insight of Fred Bosselman who once observed that property owners in inverse condemnation cases are denied due process of law, not by getting too little of it, but rather too much.”
  • The Grapes of Wrath Part II – A Return to Horne – Ben Rubin at the California Eminent Domain Report writes: “The Ninth Circuit found that as the Marketing Order operated against personal, rather than real, property, and because the Hornes conceded that they did

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Continue Reading Raisin Hell – Links To Reports On Horne