2015

Our friend and colleague Alan Ackerman posted a note on his blog about a recent District Court ruling from the Western District of Virginia which upheld the power of a potential condemnor to enter property for the purposes of survey, without formally taking the property. See “Virginia Federal Judge Follows What May Be the Majority Rule for Surveys.” But Alan didn’t post the court’s written ruling. So here you go, all 35 pages of it.

The issue was whether a Virginia statute, which “authorizes a natural gas company to enter private property without the landowner’s written permission and perform a survey for a proposed natural gas pipeline,” is a facial violation of the U.S. and Virginia Constitutions, and “is thus void and unenforceable.” Slip op. at 1. The court granted the gas company’s motion to dismiss. It concluded that the facial challenge failed because the property…

Continue Reading Federal Court: Virginia’s Entry Statute Not Facially Unconstitutional

A short one from the Federal Circuit, Rasmuson v. United States, No. 14-5089 (Oct. 5, 2015), that comes out of a rails-to-trails case, but has wider applicability. 

The case involved the usual: plaintiffs owned lands over which the railroad had rights of way, and when the railroad ceased operating and the Surface Transportation Board issued a Notice of Interim Trail Use, the owners’ takings claim ripened because but for the issuance of the NITU, under Iowa law the land otherwise would have reverted back to the owners. So far, so good. 

In the valuation trial, the Court of Federal Claims applied the “before and after” method, and concluded that the “before” condition of the land was as it existed before the trails easements, but that the appraisers should “ignore any physical remnants of the railway’s use, which would have remained if the railway easement had been permitted to lapse. …

Continue Reading Federal Circuit: “Before” Condition Must Account For Railroad Junk That Would Have Been Left Behind

Followers of the blog understand that in addition to our usual fare of eminent domain, land use, regulatory takings and the like, we also cover another area, election law and voting rights. That’s a weird feature of our practice, so we post about it. Call it “editor’s prerogative” or something. 

But there are actually some areas of crossover, or at least a few places where those who practice in one can learn from the other. Continue Reading “One-Person, One-Vote,” Regulatory Takings, And Why You Can’t Rely On The Supreme Court’s Words Alone

Earlier today, I moderated a panel of expert speakers on the topic of “Civil Forfeiture of Property” at the 12th Annual Brigham-Kanner Property Rights Conference at William and Mary Law School in Williamsburg, Virginia. 

Sara Sun Beale of Duke Law, Scott Bullock of the Institute for Justice, and Sandra Guerra Thompson of the University of Houston Law School were our speakers. Here are my introductory remarks:

Is the right of private property a “poor relation” to other civil rights, as the Supreme Court once warned? Or is the Takings Clause like the Pirate Code in Pirates of the Caribbean — more like what you’d call ‘guidelines’ than actual rules? 

If you were to look only at civil forfeiture laws — what one of our speakers has eloquently referred to as “policing for profit” — you might think so.

These laws allow government to seize private property without first convicting or even charging…

Continue Reading Introduction To The Civil Forfeiture Panel At The 2015 Brigham-Kanner Property Rights Conference

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Greetings from the William and Mary Law School in (rainy) Williamsburg, Virginia, where we’re speaking at the 12th Annual Brigham-Kanner Property Rights Conference. 

This year’s B-K Prize winner is Harvard Law’s Joseph Singer, who we wrote is “an interesting choice, given his theory that a ‘robust regulatory structure’ goes hand-in-hand with property rights, liberty, and the free market. Robust regulation isn’t exactly what you might think of when you think property rights, is it?” As another lawprof noted about Professor Singer, he “is such a believer in private property that he thinks everyone should have some.”

If that quote doesn’t quite compute for you — it’s a nice thought, for sure, but how do you get from here to there is what we want to know — you are not alone. Last year’s B-K Prize winner, Michael Berger spoke during the first morning session, and submitted this piece…

Continue Reading “Joe is such a believer in private property that he thinks everyone should have some” – The 2015 Brigham-Kanner Property Rights Conference

We don’t often post trial court decisions, but this recent ruling from an Idaho trial court awarding a property owner approximately $400,000 in fees and costs was a good read, and we’d like to share it with you all.

This is a ruling issued after a trial to determine just compensation for the partial taking of property for road improvements. The jury awarded approximately $146,000 to the property owner. There’s a lot of detail in the order, and we suggest you read the entire thing. But what grabbed us was the way the judge treated property rights, starting on page 11 of the order. 

Noting that “the Court’s analysis is rooted in the Constitution and this country’s long history of jealously protecting individual property rights,” (now there’s something you don’t hear from courts, much less trial courts, these days), the order concluded that the property owner was the “prevailing party,” …

Continue Reading A Trial Judge Who “Gets” Eminent Domain

Check this out, a story in the September 28, 2015 edition of the New York Times, “Owner of Grand Central Sues Developer and City for $1.1 Billion Over Air Rights.”

Reminds us of this obscure Supreme Court case we heard about…

The Times reports that the current owner of Grand Central Terminal is, with the counsel of uberlawyers, suing New York City in federal court, alleging a taking and related. So what’s this all about (we thought this was “old, unhappy, far-off things, And battles long ago”)?

Apparently, the city granted a Grand Central neighbor permission to build a massive 1500 feet high office tower, and in doing so, took Grand Central’s property (its air rights) without compensation:

On Monday, Mr. Penson filed a $1.1 billion lawsuit in United States District Court in Manhattan that argued that the administration of Mayor Bill de Blasio, a Democrat…

Continue Reading Penn Central, Part Deux? A New Complaint Alleges A Taking Of Grand Central Air Rights

We don’t want to take too much time away from our usual land use, takings, and eminent domain fare, but we just couldn’t let this one go by without comment.

Last Friday, we posted our amici brief in Evenwel v. Abbott, No. 14-940, the reapportionment case which the U.S. Supreme Court is considering. The issue in the case is whether Texas’ use of total population when it reapportions its state legislature is consistent with the Equal Protection Clause, or whether districts must be apportioned to consider voting power. After all, the phrase is “one person, one vote,” not “one person, one … constituent.” Our brief argues that both voting equality and representational equality are valid Equal Protection principles, but the representational equality principle is the more important. Thus, it is never a violation for a state to count its entire Census-counted population, which includes those who cannot vote (aliens, minors…

Continue Reading Chutzpah, Exhibit “A”

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Look what arrived in the mail, a copy of the ABA Section of State and Local Government Law’s recently-published Municipal Law Deskbook, edited by our friend and colleague, Oregon’s Bill Scheiderich. 

We received a gratis copy because we authored the chapter on Regulatory Takings. The book is designed as a quick reference guide for you muni law types who don’t keep the entire set of McQuillin Municipal Corporations in your library, or for you non-muni law lawyers who want a handy reference guide when these issues come your way:

[The] Municipal Law Deskbook offer[s] legal guidance to municipal attorneys, private practitioners, city administrators, and educators. The book covers a full range of those issues that commonly arise in day-to-day local government administration and the content is intended for attorneys and nonlawyers alike. The chapters cover such topics as when and how federal laws and regulations preempt local legislation…

Continue Reading New Book: Municipal Law Deskbook