January 2015

On Maui today to argue an eminent domain case, so haven’t had a chance to post up a new opinion. But in our down time between hearings and flights, we were able to do some reading of our colleagues’ stimulating blog posts. Check ’em out:

…
Continue Reading Blog Posts We’re Reading Today: TransCanada, Admissibility Of Value Statements, HRAP Amendments Proposed

Ralph v. State of Washington Dep’t of Natural Resources, No. 88115-4 (Dec. 31, 2014), is a Washington-specific case because it involves the Washington Supreme Court’s view of a state statute governing where lawsuits “for any injuries to real property” “shall be commenced.” But since one of the claims brought by the plaintiff for flooding he alleged was caused by the State’s poor forestry practices was for inverse condemnation — and many states have similar statutes — we thought we’d give you a heads-up on the decision.

Ralph’s land in Lewis County was flooded when “heavy rains caused the Chehalis River to overflow its banks.” He asserted the DNR’s had “made its land unstable, which allowed landslides to form and debris to flow into the Chehalis River, which in turn displaced river water, flooded the river basin, and caused damage to [his] property.” Slip op. at 3. He filed suit in…

Continue Reading You Really Should File Your Inverse Condemnation Complaint In The County In Which The Land Is, But If You Don’t, That’s OK With The Washington Supreme Court

PICT2385

January 10, 2015: A correction, with edits as noted below.

An astute reader has pointed out that there were actually three cases regarding the Haleakala telescope (two of them remain unresolved), and that we got them mixed up in our post. 

The first, resolved by the Hawaii Supreme Court in this opinion, was whether the BLNR should have held a contested case. The court ruled it should have, and voided the permit with BLNR had issued.

The second was the EIS challenge. The ICA concluded that no EIS was required, and the Supreme Court is considering its ruling in that case, after holding oral arguments in December 2014.

The case about which we wrote below is a challenge to the CDUA that was issued by the BLNR after it held the contested case required by Case #1. The ICA upheld the issuance of the permit in an…

Continue Reading Star Trek (Or Not), Part III? – HAWSCT To Review Haleakala Telescope Case

We recently posted a summary of the TransCanada pipeline issue (currently splashed across the front pages nationally) by our Owners’ Counsel of America colleague William Blake, a partner in the Lincoln office of Nebraska law firm Baylor Evnen. 

Today, in a highly anticipated decision (Thompson v. Heineman, No. S14-158 (Jan. 9, 2015), a majority of the justices of the Nebraska Supreme Court (four) concluded that the legislature’s efforts to get around the Public Service Commission’s authority is unconstitutional.

But in a quirk of Nebraska law, four-out-of-seven isn’t enough. Under the Nebraska Constitution (art. V, § 2), “[n]o legislative act shall be held unconstitutional except by the concurrence of five judges.” Here’s the court’s summary:

The State appeals from the district court’s judgment that determined L.B. 1161, which the Legislature passed in 2012 [which allows “major oil pipeline” carriers to bypass the regulatory procedures of the…

Continue Reading Nebraska Supreme Court Justices Conclude TransCanada Pipeline Bypass Of PUC Is Unconstitutional – Just Not Enough Of Them

Commonwealth v. Allen, No. J-68-2014 (Dec. 29, 2014), the latest from the Pennsylvania Supreme Court, is not an eminent domain or an inverse condemnation case, but we’re posting it here because the dissenting opinions contain some neat language about the importance of property rights. 

The case involved a guy who beat a criminal charge many years earlier, and then sought return of the money that was in his car when it was seized during his arrest. Eight years earlier, to be precise. The time gap between the seizure and his petition for the money’s return was the key to the majority’s ruling that he couldn’t get the property back under Pennsylvania’s rules of criminal procedure, but not because the statute of limitations had expired, as you might expect. The lower appellate court concluded that the rule did not expressly set out a limitations or repose period, but the general…

Continue Reading You Snooze, You Lose: Pennsylvania Rejects Claim For Return Of Property Because Claimant Needs To Move Quickly

Here’s the property owners’ Reply Brief in Ramsey v. Commissioner of Highways, a case currently pending before the Virginia Supreme Court. 

This is the case about Virginia’s statutory requirements in eminent domain cases. As 

a prerequisite to a court exercising jurisdiction over a condemnation complaint, a state condemning agency must as an initial step present a statement of “the amount which [the condemnor] believes to be just compensation,” to the property owner, and must include an appraisal if an appraisal is required. 

The trial court viewed the required “statement” as a settlement offer, and prohibited the property owner from both telling the jury about the statement, and cross-examining the state’s appraiser about it. Even though the state’s initial statement of just compensation was $246,292, and later, its new appraiser at trial testified that just compensation was only $92,127. 

Disclosure: we filed an amicus brief in support of the property…

Continue Reading Final Brief In Virginia Supreme Court Eminent Domain Case: DOT’s Precondemnation Statement Of Value Is Admissible

Congratulations to friend and colleague Thor Hearne for his being named as one the Top 50 Litigation Trailblazers by the National Law Journal. Or should we say Rails-to-Trails-Blazer?

Readers of the blog are familiar with his guest posts (see also this one), our coverage of his work, and his own Federal Takings blog, which covers his focus, recovering compensation for property owners for rails-to-trails takings in the Court of Federal Claims, the Federal Circuit, and the Supreme Court. 

More on the kudos for Thor here.  Here’s the complete write up from NLJ:

Pioneer Spirit: Thor Hearne’s first case on behalf of a landholder was when his client, a little village, had some of its property taken by the federal government under the Trails System Act. “We litigated and got into the U.S. Court of Federal Claims, where few people practice.” From there, his practice…

Continue Reading Property Rights Lawyer Among National Law Journal’s “Litigation Trailblazers”

Mauitemple

Here’s the latest for you RLUIPA mavens, a complaint recently filed in Hawaii federal court by a Maui “integral yoga” temple and its leader against the County for not permitting it to use their site on Maui’s north shore for things like weddings and religious observations. Parking was the proffered reason, it appears.  

Dwight Merriam and Evan Seeman have all the details here, at RLUIPA-Defense blog. 

Complaint, Spirit of Aloha Temple v. County of Maui, No. 1:14-cv-00535-RLP (D. Haw. Nov. 26, 2014)

Related articles
HAWSCT Confirms That Election Contests Are Tough!
Must An Inverse Condemnation Plaintiff Name All Parties With An Interest In The Property?
NY App Div: “Virtually Any Project That May Confer” Public Benefit Is Consistent With The Public Use Clause

Continue Reading New RLUIPA Complaint vs Maui: “‘Integral Yoga’ Group and Swami Hope to Find Their Inner Balance in Federal Court”

We’re going to start off 2015 slightly off-topic, a movie review. But rest assured, there is a small eminent domain connection.

Anyone who was around in the 1960s and 1970s remembers those paintings and prints of sad children with oversize eyes. They were ubiquitous. But they gave our young eyes dissonance. To us, “art” was whatever the adults said it was, and by any measure these paintings must have been art, because they were everywhere, and popularity equated to artistic quality, right? But at the same time, they were kitschy, and in a creepy way (not low-rent fun like our favorite kitsch, Dogs Playing Poker and Velvet Elvis).

The weird-but-true backstory behind the big-eyed paintings has recently hit the big screen, Tim Burton’s “Big Eyes” with Amy Adams as long-time Hawaii resident, painter Margaret Keane, and Christoph Waltz as her Svengali, husband Walter Keane. 

Hawaii…

Continue Reading The “Big Eyes” Have It: Hawaii Courts Again In The Hollywood Spotlight

Here’s that last case in our 2014 opinion queue, from way back in July. It’s also coincidentially the 2,500th post on the blog.

In Sawn Beach  Corolla, LLC v,.County of Currituck, No. COA13-1272 (July 1, 2014), the North Carolina Court of Appeals considered vested rights and takings claims in a fact pattern than streched back decades. 

In 1966, the owners purchased 1400 acres for residential development. In 1969, the owners recorded a subdivision plat, to make both residential and commerical uses. The county had no zoning ordinance in place at that time. The owners spent $425,000 on preliminary work and infrastructure, such as surveying, engineering and grading. Big bucks in 1960’s dollars.

The county adopted a zoning ordinance in 1971, zoning the property for “RO2,” which prohibits most businesses, including those contemplated by the owners. “Nevertheless, plaintiffs continued to believe that they would be allowed to commerically develop their…

Continue Reading Our Final 2014 Opinion Post: Vested Rights In North Carolina