January 2015

Despite its caption, the opinion of the Texas Supreme Court in Wheeler v. Enbridge Pipelines (East Texas), L.P., No. 13-0234 (Aug. 29, 2014) isn’t another one of those can-they-or-can’t-they pipeline cases.

But it’s a case that takings mavens might find intersting anyway, because the court sets out how a property owner is compensated for the destruction of trees.  

Enbridge wanted to construct its pipeline on Wheeler’s heavily wooded property, used by the family as a retreat. Wheeler agreed to a right of way, “but insisted that Enbridge install the pipeline by boring underground in order to preserve the trees on the property.” Slip op. at 2. Seems reasonable to us. Enbridge specially approved the condition. Despite these precautions, however, Enbridge damaged Wheeler’s trees: 

Soon after the parties executed the agreement, Enbridge hired a construction company to build the pipeline, but failed to inform the contractors about…

Continue Reading How To Value Trees In Texas

There’s one citation notably missing from the opinion of the Texas Court of Appeals in Anderton v. City of Cedar Hill, No. 05-12-00969-CV (Aug. 22, 2014): Williamson County.  

This was case where in response to the city’s petition that the Anderdons’ use of their property was illegal, they counterclaimed that they had nonconforming use rights, that the city’s petition violated their vested rights, and resulted in a taking of their property. The trial court granted the city summary judgment on the counterclaim, holding that the owners did not present evidence of their nonconforming use status, and that their inverse condemnation claim was not ripe because they had not pursued available administrative remedies under the zoning code.

The court of appeals reversed. It concluded that the owners did submit enough evidence to get past a summary judgment motion that their use was nonconforming. Most interestingly for our purposes…

Continue Reading Williamson County Wonderfully MIA In Texas Court’s Ripeness Analysis

In Rutherford Elec. Membership Corp. v. 130 of Chatham, LLC, No. 13 SP 95 (Sep. 2, 2014), the North Carolina Court of Appeals reversed the dismissal of an eminent domain complaint filed by a private company that sought to take property located in two counties.

In cases where a private company seeks to condemn private property, North Carolina law allows the filing of a special proceeding in the county in which the property is located. The trial court dismissed the complaint because the property to be taken was partially located in the county of venue, and partially in another county, and the court concluded it lacked subject matter jurisdiction. The court refused to allow the condemnor to amend its petition to cover only the land located in the proper county

The court of appeals reversed, although it conceded that the process was “in conflict,” and urged the legislature to…

Continue Reading NC App Considers Multi-Jurisdictional Eminent Domain

Under Nebraska eminent domain law, the condemnor is required to make a “good faith” effort to negotiate with the property owner before it files an eminent domain action. See Neb. Rev. Stat. § 76-704.01(6).

In Camden v. Papio-Missouri River Natural Resources District, No. A-13-266 (Aug. 26, 2014), the court concluded that the condemnor had not made these efforts. Here’s what occurred:

  • The NRD contacted the property owners, and made an offer of $67k for the desired easements.
  • The owner said “from now on, talk to my lawyer.”
  • The NRD did so, and sent the owners’ lawyer a revised proposed purchase agreement.
  • The owners, through their lawyer, rejected the offer. They valued the loss at $750k.
  • The owners also proposed an alternative to only monetary compensation.
  • The NRD responded that the counteroffer was unresonable, and thus stafff would not recommend the NRD board accept it, but suggested the

…
Continue Reading Neb App: Condemnor Did Not Make Jurisdictional Good Faith Effort To Negotiate

Clark v. Titus County, No. 06-14-00035 (Sep. 19, 2014) is a somewhat civil procedure oriented opinion, specifically about Texas’ “no-evidence” motion for summary judgment. But it’s a condemnation case, and there’s some good background from the court about the eminent domain process in Texas courts and how appraisers calculate fair market value.

Under Texas civil procedure, a “no-evidence” motion is based on the utter lack of evidence to support an essential element of the other side’s claim. The county filed such a motion, arguing that the property owners did not submit a “scintilla of probative evidence” about the taken property’s fair market value, specifically the value of fencing. Thus, the county asserted, the court was bound to accept the county’s valuation in its appraiser’s testimony, which among other things, was based on his estimate of the cost of fencing.

The court of appeals reversed. Although the owners did not …

Continue Reading Tex App: “No-Evidence” Summary Judgment Wrongly Granted Where Property Owner Undercut Appraiser’s Assumptions

Westerville

In City of Westerville v. Taylor, No. 13AP-806 (Aug. 12, 2014), the Ohio Court of Appeals concluded that it didn’t matter what professed “plans” the city had the property it took from Taylor, only that the city had taken fee simple absolute title.  

As part of a highway project, the city condemned a portion of the land shown above (red arrow), and here:

Southstatestreet

“In this case, the City appropriated two fee simple parcels from Taylor.” Slip op. at 2. Before the taking, Taylor’s property had two driveways. On appeal, the city argued that this didn’t change, because after the taking, “Taylor still had a right of access.” Id. at 4. 

The City argues that because the resolution appropriating the property in fee simple did not specify that it was taking all rights, title and interest in the property, Taylor retained his right of access to and from the property. The…

Continue Reading Ohio App: You Took It, You Bought It – Taking Of “Fee Simple” Means Taking Of All Rights, Regardless Of Intent

Being a short opinion (2 pages), you could read the entirety of the New York Appellate Division’s decision in Eisenhauer v. County of Jefferson, No. 14-00510 (Nov. 14, 2014) more quickly than we could summarize it. 

But yes, the taking of private property for expansion of the runway at a public airport is a public use. 

Eisenhauer v. County of Jefferson, No. 14-00510 (N.Y.A.D. Nov. 14, 2014)

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Continue Reading NY App Div: “Virtually Any Project That May Confer” Public Benefit Is Consistent With The Public Use Clause

The property owner/appellant raised a whole bunch of legal issues in City of Kansas City v. Powell, No. WD 76861 (Oct. 7, 2014), a case decided by the Missouri Court of Appeals, Western District. 

The city slated Ms. Powell’s house for condemnation because it wanted to build a new police station and crime lab. The court took 28 pages to reject each of Powell’s arguments on appeal, but what comes through between the lines is that she didn’t quite behave:

On September 9, 2012, a special process server attempted to serve Powell at 2718 Brooklyn Avenue with a summons for the condemnation hearing. The residence at 2718 Brooklyn belonged to Powell‟s mother, but at the time, the City believed Powell to reside there as well, based upon its perception that 2611 Brooklyn was in a state of rehabilitation and uninhabitable. A woman answered the door at 2718 Brooklyn and…

Continue Reading Should Property Owners Play Nice With Condemnors?

Pennington v. Gwinnett County, No. A14A0999 (Oct. 9, 2014) was review of a grant of summary judgment, so the facts, viewed in light most favorable to the Penningtons, sure make it look like the county engaged in some sharp practices. 

The Penningtons had an agreement with T-Mobile, which gave it the option to lease the Pennington property for a tower. Shortly thereafter, T-Mobile filed its application to build the tower with the county’s planning department. After a series of delays requested by T-Mobile, during which the county amended its policy which prohibited cell towers on county property, the county denied the application. And then T-Mobile and the county entered into an agreement to put the tower on county land.

The Penningtons sued for inverse condemation, asserting “that the county’s interference scuttled their deal with T-Mobile South.” Slip op. at 1.  

The court of appeals concluded that an option contract…

Continue Reading Georgia App: County Busting Your Deal Isn’t A Taking

Under the Montana Constitution, a property owner who prevails in a condemnation matter is entitled to an award of “necessary expenses of litigation.”

In Wohl v City of Missoula, 2014 MT 310 11-25-2014, NO. DA 14-0161 (Nov. 25, 2014), the Montana Supreme Court concluded that property owners who ultimately prevailed after two appeals were entitled in the second appeal to recover the attorneys fees they incurred during the prior appeal. 

The Dissent posits that because we rejected Landowners’ cross-appeal on their alleged civil rights violations and ruled in favor of the City on the calculation of the underlying damage award in Wohl I, this somehow mitigates against Wohls’ entitlement to attorney fees. This argument ignores the fact that Landowners plainly satisfied the requirements of § 70-30-305(2), MCA, as noted above, thus making the award of the expenses of litigation to them mandatory under the statute. The Dissent cites no authority for…

Continue Reading Montana Considers Attorneys Fees In Second Appeal