2014

Ah, Williamson County. We’ve ranted about it before, so we won’t do so here (again). But takings mavens know that a property owner must meet two tests before she can raise a takings claim against a state or local government in federal court: the state or local government must have reached a final decision on the uses to which her property may be put, and she must seek (and be denied) just compensation via state procedures.

We’ve always viewed both parts of the test as very “takings-specific” and not really applicable to other areas. The rationale supporting the final decision requirement is that a court really can’t tell whether property has been “taken” until it understands what uses may be allowed by the state or local government. Absent such a decision, the government may allow some economically beneficial use. Similarly, the state procedures test rationale is that a…

Continue Reading 2d Cir Extends Williamson County Ripeness “Final Decision” Requirement To ADA Claims

You mght read the headline of this post and naturally say to yourself, “well, that’s obvious.” But to the Eleventh Circuit in Kentner v. City of Sanibel, 750 F.3d 1274 (11th Cir. 2014), it wasn’t.

In that case, the court concluded that riparian rights are not “fundamental rights” protected by the Due Process Clause from arbitrary and capricious government action, in this case, a ban on the construction of docks and piers (except, apparently, city-owned docks and piers). The court concluded that riparian rights are not “fundamental” rights because they are merely “state-created” rights.

After we read it, the court’s rationale was so inexplicable we asked aloud, “[i]f you can figure out the court’s logic about why riparian rights are not fundamental, and what is a ‘state-created’ right (in contrast to a state-created right created by legislative act, or why the legislature’s hand triggers greater scrutiny than mere…

Continue Reading New Cert Petition: Isn’t Property A Fundamental Right?

We’ve mentioned Gerald O’Hara’s talk to Scarlett about the importance of land before, and on the occasion of the film’s 75th anniversary had an opportunity to see the entire movie again, fully remastered, and in its original aspect ratio. 

There’s still one more chance, if you’re interested. It’s playing in 650 theaters nationwide for one day only, tomorrow, Wednesday, October 1. Check the list here. If you like this film — and yes, many aspects of it are, shall we say, “dated” and reflect times past when things were different — now’s probably your last chance in a long time to view it on the big screen, pretty much in the form it was origninally seen. Highly recommended. 

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‘Gone With the Wind’

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Continue Reading One More Chance At “Gone With the Wind”

Here’s a very important case from the Pennsylvania Supreme Court (Middle District). The question before the court in Reading Area Water Auth. v. Schuylkill River Greenway Ass’n , No. J-13-2014 (Sep. 24, 2014) was this:

The primary question raised is whether a municipal authority may exercise its eminent domain powers to condemn an easement over privately-owned land, where the sole purpose of the easement is to supply a private developer with land to install sewer drainage facilities needed for a proposed private residential subdivision.

Slip op. at 1. 

Short answer: no.

The Schuylkill River Greenway Association, true to its name, intends to build a public walking and recreational trail on land it owns along the bank of the river in conjunction with Bern Township. Unfortunately (for the Association), the property next to their is slated for development into an “adult residential subdivision,” and it needed access to the river’s water. We…

Continue Reading Pennsylvania: No Public Use To Condemn, When “Sole Purpose” Of Taking Benefits Private Developer

We get to post the California Raisins again!

Last term, in Horne v. U.S. Dep’t of Agriculture, No. 12-123 (June 10, 2013), the U.S. Supreme Court unanimously held that a property owner could raise a takings claim as a defense to the government’s attempt to impose a fine pursuant to a complex federal regulatory scheme affecting raisin farmers, which requires those in the industry to set aside a percentage of their yearly crop and “donate” it to the public. The Court held that District Courts have jurisdiction to hear a property owner’s claim that this works a taking, and held that the Court of Federal Claims does not have exclusive jurisdiction over this type of claim.

Having resolved the jurisdictional issue in favor of the property owners, the Court remanded the case to the Ninth Circuit for a determination of the merits of their takings defense. Predictably (given the…

Continue Reading New Cert Petition: Raisin Takings Case, Round II

We like the Texas Supreme Court, because (among other things) it livestreams oral arguments, and once completed, archives them for those who can’t be there in person, or watch live. So even though we couldn’t make it to Austin for the arguments earlier this month in Texas v. Clear Channel Outdoor, Inc. (a case which we posted about here), we were able to follow along with the archived video. 

The case presents two questions: first, whether a billboard owner is entitled to just compensation when the land on which it sits is taken by eminent domain because it may be possible to relocate the billboard, and second, what method of valuation can be used to measure compensation, if so. We filed an amicus brief in the case arguing that “[b]illboards are not designed to be moved. And the most valuable part of a billboard is not steel…

Continue Reading Oral Argument Video In Texas Supreme Court Condemnation Case: Is A Billboard Moveable Property?

Here’s one to definitely add to your blogroll: Federal Takings, by the rails-to-trails litigation practice at Arent Fox, including our frequent guest blogger, Thor Hearne. 

The focus is on rails-to-trails cases, but also by necessity covers takings cases in the Court of Federal Claims and the Federal Circuit. Recent posts include, “Arent Fox Files ‘Rails to Trails’ Cert Petition with US Supreme Court for High Line Park Landowners,” and  a summary of an ongoing R-T-T case from Michigan. 

Highly recommended. 

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Continue Reading New Blog Worth Following: Federal Takings

Here’s one to add to the “unusual takings cases” category, at which we looked at last week. 

In  Young v. Larimer County Sheriff’s Office, No. 13CA1338 (Sep. 11, 2014), the sheriff raided Mr. Young’s (medical) marijuana grow and seized as evidence “forty-two mariijuana plants by cutting them off just above the roots.”

Now, we don’t know much of anything about the botany of the cannabis plant, medical or otherwise. And the court might not have any specialized knowledge either. But it doesn’t take Cheech and Chong to know that “[t]his action killed the plants.” Slip op. at 2. Bummer, man. 

The jury was more kind to Mr. Young than was the sheriff. It bought Young’s claim that his weed was not evidence, but medicine under the Colorado medical marijuana statute. The “jury acquitted him of all charges based on the affirmative defense of medical use of marijuana by …

Continue Reading No Taking When Sheriff Took His (Medical) Weed

On the day we celebrate Constitution Day (or should we say Khaaaaan-stitution Day?) we have to admit that pretty much nothing beats One Named Kirk’s reading of the Preamble. 

He might be from Iowa, but that guy who plays him is from north of the border, so our kudos to a Canadian for the best dramatic rendition of our founding document.

And in that spirit, we explain the plural parenthetical in this post’s title, which we picked up from a talk last evening by Hawaii Supreme Court Justice Simeon Acoba and U. Hawaii Law School Dean Avi Soifer at the Judiciary History Center, “Who Trumps Whom: Exploring Federalism in Hawaii.” The talk focused on the ways that state constitutional protections can extend beyond what the U.S. Constitution requires (the “floor vs ceiling” theory), and Justice Acoba suggested that today really should be called “Constitutions Day”…

Continue Reading Happy Constitution(s) Day

We’re tied up in court today, so don’t have time to post up the latest cases which have crossed our desk in the past few days.

We will get to them soon, but in the meantime, check out this story (“The Stubborn ‘Nail Houses’ That Refuse to Get Demolished“) from Gizmodo (a blog about tech gear) about eminent domain holdouts, including one particularly endearing woman who refused to go gentle into that good night.  

We”ll return to our regularly scheduled programming shortly. Continue Reading “Nail Houses” And Eminent Domain