May 2015

The powers-that-be planned on building a major freeway interchange, part of which was going to be on the property owned by Jefferson Street Ventures. Problem was, Jefferson Street also had plans for its property — a shopping center — and when it came time for it to apply to the City of Indio for permits to build, the city said yes, but only if Jefferson Street left open and didn’t build on the 11 acres on which the interchange was envisioned.

We’re going to buy it eventually said the city, but the complex federal and state process for studying, evaluating, and funding the project takes a long time, and if you build on it now, it’s going to cost us more in the future to take the developed property and relocate all of the tenants.

In Jefferson Street Ventures, LLC v. City of Indio, No. G049899 (filed Apr. 21…

Continue Reading Cal App: “Temporary No-Build Area” While City (Maybe) Gets Around To Condemnation Is A Taking

From the Iowa heartland, we offer the headline of the week: “Iowa landowner claims he was offered prostitute by oil pipeline company rep.“

And you’re not going to beat this lede any time soon: “A southeast Iowa landowner claims he was offered the services of a prostitute in exchange for allowing a crude oil pipeline to go through his property.” Oh my. 

He says he has the proof, recordings of the alleged multiple offers. “He said his lawyer recommended he not play the recording for the media because it may be used in possible future litigation. He said he would be willing to give them to state investigators if subpoenaed.”

From the steps of the Iowa Capitol he proclaimed, “‘I don’t care if it’s a highway to heaven paved in gold, I don’t want it on our property,’ Tweedy said. ‘And here we go. They came to…

Continue Reading Just “Compensation” Just Took On A Whole New Meaning In Iowa Pipeline Dispute

In West Virginia, mineral rights can be owned separately from the surface estate. Not that unusual; something we learned in the first year of law school, in Property I. You might assume that condemning agencies’ lawyers in West Virginia and similar jurisdictions understand this, and counsel their clients accordingly.

Or maybe not, once you read the opinion of the West Virginia Supreme Court of Appeals in West Virginia Dep’t of Transportation v. Newton, No. 14-0428 (May 13, 2015). 

Mr. Butler owned the surface, but Ms. Newton owned the mineral rights. The DOT was building a highway, and asked Mr. Butler whether it could enter his land to test it. He said yes. The DOT condemned and paid him for the land it needed for its highway project. But it also mined and took limestone for the road from the land. Did the DOT assume that Mr. Butler also…

Continue Reading West Virginia: DOT Should Not Have Mined Privately Owned Limestone Without Owner’s Permission

A short one from the Kansas Supreme Court. In Neighbor v. Westar Energy, Inc., No. 111972 (May, 8, 2015), the court concluded that Kansas’ “savings statute,” which allows a party in certain circumstances to refile a lawsuit that had been voluntarily dismissed without prejudice within six months, applied to eminent domain cases.  

The details involve peculiarities of Kansas practice and eminent domain law, but the takeaway is that the court concluded that despite the somewhat different procedures applicable to eminent domain cases (the valuation is initially determined by a panel of three appraisers, and if a party is dissatisfied with their conclusion, it may “appeal” to the district court), the eminent domain statute also provides that the appeal is “a new civil action” that “shall be tried as any other civil action.” Thus, Kansas’ “savings statute” applied, and allowed Neighbor to refile his appeal of the panel valuation. The…

Continue Reading Kansas: Eminent Domain Litigation Is A “Civil Action” Subject To Same Rules As Other Cases

Our American Bar Association colleague Ed Thomas (no relation, although we often joke that we’re probably cousins), the President of the Natural Hazard Mitigation Association and a guy who acknowledges that the need to protect against natural disasters must take property rights into account, has compiled some thoughts about the Court of Federal Claims’ recent opinion in a case holding the federal government liable for the taking of property during Hurricane Katrina.

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Major Court Decision with implications for Climate Adaptation, Hazard Mitigation and a Safer and More Just Future.

by Edward A. Thomas Esq., 
President, Natural Hazard Mitigation Association

May 7, 2015

On May 1, 2015, the U.S. Court of Federal Claims issued an enormously important decision concerning flood damage caused by Hurricane Katrina and subsequent hurricanes. That case, Saint Bernard Parish Government v. United States, No. 05-1119L (May 1. 2015), found the United States government liable for…

Continue Reading Guest Post: Katrina Flood Takings Decision Emphasizes Science

Even though it is a trial court decision, the opinion in Township of Readington v. Solberg Aviation Co., No. HNT-L-486-06 (May 4, 2015), is well worth reading, because we think the judge gets the process for how courts evaluate claims of pretext correct. 

We posted about this case a few years ago, after the Appellate Division remanded the case with instructions to the trial court to take an objective view of the Township’s claim that the taking of Solberg’s airport was to preserve open space, and not, as Solberg claimed, to thwart Solberg’s plans to expand its facilities and to allow the Township to take control of the enterprise.

The trial court did so, and after a long bench trial, it concluded:

In fine, an objective scrutiny of the collective testimony of the elected officials involved in the architecture and implementation of the eminent domain ordinance concerning the SHA…

Continue Reading NJ Trial Court Finds Open Space Taking Pretextual: “objective scrutiny of the…testimony of the elected officials…reveals a studied attempt to obscure the true purpose of the condemnors”

A long opinion (73 pages) from the U.S. Court of Federal Claims in St. Bernard Parish Gov’t v. United States, No. 05-1119L (May 1. 2015), and it is worth reading in its entirety (there are even photos and maps embedded). But here’s the short version:

In Arkansas Game & Fish, the United States Supreme Court held that “[f]looding cases, like other takings cases, should be assessed with reference to the ‘particular circumstances of each case,’ and not by resorting to blanket exclusionary rules.” 133 S. Ct. at 521; see also Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 427 (1982) (“[N]o ‘set formula’ exists to determine, in all cases, whether compensation is constitutionally due for a [G]overnment restriction on property. Ordinarily, the Court must engage in ‘essentially ad hoc, factual inquiries.’” (quoting Penn Central, 438 U.S. at 124); Ridge Line, 346 F.3d at 1352 (“A…

Continue Reading CFC: Katrina Flooding Is A Taking

Remember Dunn v. City of Milwaukie? That’s the case in which the Oregon Supreme Court reversed an inverse condemnation judgment in favor of a homeowner who had sewage back up into her house after the city “hydrocleaned” the sewer system, because she had not shown that the government had “acquisitory intent.”

The court, however, felt okay about depriving Ms. Dunn of an inverse condemnation remedy for her house being tainted with municipal crap, because sovereign immunity had been waived, and she could still sue the city in tort.

Turns out, she was s**t out of luck there, also. In Dunn v. City of Milwaukie, No. A139386A (Apr. 22, 2015), the Oregon Court of Appeals concluded that she missed Oregon’s 180-day statute of limitations/repose to bring these type of  claims. She knew, they held, but she waited too long. As we wrote in our report on the earlier decision…

Continue Reading Sue Early, Sue Often If Your Home Flooded With Municipal Waste In Oregon