2015

Here’s the property owners’ brief in opposition to the DOT’s request for the North Carolina Supreme Court to review the court of appeals’ opinion in Kirby v. N.C. Dep’t of Transportation, No. OA14-184 (Feb. 17, 2015).

The court concluded that the Map Act — which gives the DOT the ability to designate hundreds of parcels for future highway use and prevent their development in the meantime for the avowed purpose of keeping the future acquisition price low — effected a taking. The court remanded the case for a calculation of the compensation owed to each property owner.    

The DOT’s brief argues the Map Act is just a police power regulation, and to force it to actually buy the properties now would make it, you know, just too expensive to build highways. The property owners’ brief responds:

While the NCDOT certainly has police powers to regulate its right of way…

Continue Reading Property Owners’ Brief In NC “Map Act” Takings Case: Depressing Acquisition Price Precondemnation Is An Exercise Of The Eminent Domain Power

Grasping_hand After Berman v. Parker and Hawaii Housing Authority v. Midkiff, observers of the law could not be faulted for opining that “the public use limitation is a dead letter.” See Thomas W. Merrill, The Economics of Public Use, 72 Cornell L. Rev. 61 (1986). Those two decisions, after all, seemed to leave nothing

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Continue Reading Book Review: “The Grasping Hand: Kelo v. City of New London & The Limits Of Eminent Domain” by Ilya Somin

Grasping_hand

To put on your to-buy, to-read list: lawprof Ilya Somin‘s forthcoming book about the Kelo case and the aftermath, available on June 5, 2015. (We’re in the process of organizing some book talk events with Prof Somin in the fall, and if you have suggestions for venues or want to host one, let us know.) 

Pre-order from Amazon here. The reviews are very good:

“Somin’s thorough rebuttal of the constitutional reasoning and philosophical implications of the Supreme Court’s Kelo decision demonstrates why that ruling was a constructive disaster: It was so dreadful it has provoked robust defenses of the role of private property in sustaining Americans’ liberty.”
 

(George F. Will, journalist and Pulitzer Prize winner)

“By dint of his uncommon thoroughness, Ilya Somin has become the leading and most persuasive critic of the Supreme Court’s ill-fated 2005 Kelo decision.  His close examination of the case’s factual backdrop…

Continue Reading New Book Forthcoming: “The Grasping Hand: Kelo v. City of New London & The Limits Of Eminent Domain” by Ilya Somin

Last week, the California Supreme Court heard oral arguments in California Building Industry Assn. v. City of San Jose, No. S212072, the case which challenges San Jose’s “inclusionary housing” requirement.

The Court of Appeal held that under rational basis review (and not heightend scrutiny) San Jose’s affordable housing exaction might survive because it was designed to promote the development of affordable housing, and not to mitigate the impacts of market priced housing. California Building Industry Ass’n v. City of San Jose, 216 Cal.App.4th 137 (6th District June 6, 2013). The California Supreme Court agreed to hear the following issues:

What standard of judicial review applies to a facial constitutional challenge to inclusionary housing ordinances that re quire set asides or in – lieu fees as a condition of approving a development permit? (See San Remo Hotel L.P. v. City & County of San Francisco (2002) 27 Cal.4th 643…

Continue Reading California Supreme Court Considering “Inclusionary Housing” Fee

Here’s one that just rolled in, from the Iowa Supreme Court. In Clarke County Reservoir Comm’n v. Edwin D. & Deloris A. Robins Revocable Trust, No. 14-0774 (Apr. 10, 2015), the court held that the Commission did not have the power of eminent domain because several of its members were private actors. The court also concluded that the post-judgment withdrawal of those members did not moot the property owner’s appeal.

Property owners are entitled to strict compliance with legal requirements when a government entity wields the power of eminent domain. These legal requirements help protect against abuse of the eminent domain power. We strictly construe statutes delegating the power of eminent domain and note the absence of a clear legislative authorization for a joint public-private entity to condemn private property.

For the reasons elaborated below, we hold a 28E commission with members lacking the power of eminent domain cannot…

Continue Reading Iowa: “Liberty Requires Accountability” – Delegation Of Eminent Domain Power Strictly Construed, And Commission With Private Members Could Not Take Property

In AFT Michigan v. State of Michigan, No. 148748 (Apr. 8, 2015), the Michigan Supreme Court upheld a state statute which mandated a 3% reduction in public school employees’ salaries (to fund a failing school employee retiree health care system), and concluded it was not a taking because it was a voluntary giving by the employees. They were not required after all, to provide the 3% contribution, and could avoid the reduction and maintain their present salary levels by opting out of their own publicly-funded retirement health care.

There’s a lot more to the statute and the unanimous opinion of course — including a rejection of a Contracts Clause claim — but the heart of the takings analysis starts on page 21:

Voluntary healthcare contributions do not violate Const 1963, art 10, § 2 and US Const, Ams V and XIV because, as a general proposition, the government does…

Continue Reading Michigan: Voluntary “Giving” By Public School Employees To Fund Failing Retiree Health Benefits Is Not A Taking

Earlier, we posted the cert petition in Hillcrest Property, LLP v. Pasco County, No. 12-846 (cert. petition filed Jan. 15, 2015), which asks the Supreme Court to review the Eleventh Circuit’s decision throwing out Hillcrest’s facial substantive due process challenge to the county’s “Right of Way Preservation Ordinance.” The ordinance allows the county to land bank for future road corridors by means of an exaction that doesn’t come anywhere near to passing muster under Nollan–Dolan–Koontz. 

Although the District Court held the ordinance unconstitutional and is “both coercive and confiscatory in nature and constitutionally offensive in both content and operation,” the Eleventh Circuit concluded that the mere enactment of the ordinance started the four-year statute of limitations clock running on a facial challenge, and that Hillcrest had waited too long to file its complaint. 

Hillcrest’s petition asks whether a facial claim is even subject to the statute…

Continue Reading On Facial Challenges, Exactions, Standing, And Statutes Of Limitations: Final Cert Briefs In SCOTUS Substantive Due Process Case

Williamson County gives everyone grief, and if you needed any more proof, here it is.  

In A Forever Recovery, Inc. v. Township of Pennfield, No. 13-2657 (Apr. 2, 2015), an unpublished opinion from the Sixth Circuit, the court upheld the district court’s award of attorneys’ fees and costs to a property owner who brought a takings claim in Michigan state court, only to see the defendant, the Township of Pennfield, remove the case to federal court and then move to dismiss the claim six days later, asserting it was not ripe under Williamson County. 

The district court rightly remanded the case back to state court, and held the Township liable for fees and costs under the removal statute which shifts fees in cases where the defendant doesn’t have an “objectively reasonable basis for seeking removal.” The court held that the Township removed only to delay the case…

Continue Reading 6th Cir Schadenfreude Alert: Municipality Liable For Fees And Costs For Removing Takings Claim From State Court

What we learned from the Federal Circuit’s opinion in Shinnecock Indian Nation v. United States, No.14-5015 (Apr. 7, 2015):

  • A $1,105,000,000 (that’s $1.1 billion and change) is the Nation’s claim in the U.S. Court of Federal Claims for what the Hamptons are worth. Slip op. at 3. Sounds about right. 
  • The Nation sued the State of New York in U.S. District Court, alleging that in the mid-19th Century, the State “enacted legislation allowing thousands of acres of the Nation’s land to be wrongfully conveyed to the government of the Town of Southampton.” Slip op. at 2.
  • USDC: case dismissed (laches, you know). Appeal to the Second Circuit remains pending.
  • Off to the CFC they went, seeking the abovementioned $1.1 billion, claiming the federal government violated its trust obligations when it failed to provide the Nation with a remedy for the misappropriation of its land (at New York’s hands).

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Continue Reading Fed Cir: Claim That U.S. District Court Judicially Took Property Can’t Be Brought In The Claims Court

Two stories to read, in tandem:

  • In the ultimate dog-bites-man story, yesterday’s Honolulu Star-Advertiser headline reads “Home demand outweighs supply.” Well no kidding. As one fellow quoted in story said,”This is the most overstudied subject in the history of mankind … You don’t need a study to know what the numbers are. It’s time to stop studying housing and start doing housing.” The story is partially behind a paywall, but the lede sums it up: “Hawaii needs up to 66,000 homes if it expects to satisfy demand for housing over the next decade.” Increasing demand coupled with restrictive supply means, guess what – high prices and shortages. What’s responsible for the lack of housing? There’s land on which to build, but it’s infamously difficult to develop. As Professor David Callies wrote recently, Hawaii has an “increasingly well-known penchant for lengthy, often decade-long land use permitting processes” and a

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Continue Reading Guess What: Hawaii Housing Is Expensive!