January 2016

This morning, the U.S. Supreme Court declined to hear what might have been a major property rights case, California Building Industry Ass’n v. City of San Jose, No. 15-330 (cert. petition filed Oct. 16, 2015). 

In that case, the California Supreme Court upheld the city’s “affordable housing” requirement against a challenge which asserted that it was an exaction and thus should have been subject to the heightened scrutiny of the unconstitutional conditions doctrine of Nollan, Dolan, and Koontz. The California court disagreed, holding that because the ordinance did not require a developer to give up land, or money in lieu of land, it was a mere zoning restriction and subject to the “rational basis” test. 

We filed an amici brief in the case in support of the petitioners.

While we believed there was a good change that SCOTUS was going to hear this case (it …

Continue Reading SCOTUS Won’t Review Affordable Housing Exactions And “Inclusionary Zoning” Case

This morning, the Supreme Court agreed to hear another important property rights case, California Building Industry Ass’n v. City of San Jose, No. 15-330 (cert. petition filed Oct. 16, 2015). 

In that case, the California Supreme Court upheld the city’s “affordable housing” requirement against a challenge which asserted that it was an exaction and thus should have been subject to the heightened scrutiny of the unconstitutional conditions doctrine of Nollan, Dolan, and Koontz. The California court disagreed, holding that because the ordinance did not require a developer to give up land, or money in lieu of land, it was a mere zoning restriction and subject to the “rational basis” test. 

We filed an amici brief in the case in support of the petitioners.

SCOTUS on a tear lately, as it recently also agreed to review a case on the “relevant parcel” in regulatory takings. …

Continue Reading SCOTUS Takes Another “Takings” Case – Inclusionary Housing And Affordable Housing Exactions On The Menu

A longer one from the California Court of Appeal, but unfortunately, we don’t have the time to digest it in detail. But you really should read Pacific Shores Property Onwers Ass’n v. Dep’t of Fish and Wildlife, No. C070301 (Jan. 20, 2016), in which the court upheld a ruling that the Department of Fish and Wildlife inversely condemned the plaintiffs’ property by a physical taking, when it allowed their land to be flooded.

The interesting part of this decision is the Department’s purpose in allowing the flooding, environmental protection. Local government had historically provided some flood protection to these properties by “breaching” a sandbar when the water reached a certain level. When the Department took over that function, it decreased the level of protection, and although it required the water to reach a higher level before breaching, it didn’t eliminate it completely. The Department argued that it could not…

Continue Reading Cal App: Intentionally Flooding Land To Protect The Environment Is A Physical Taking

Here’s the amicus brief we filed today in support of the Petitioner/property owner in Resource Investments, Inc. v. United States, No. 16-802. That’s the case in which the property owner is claiming that the delay in issuing Clean Water Act permits was so extraordinary, it was a temporary taking. Ultimately, the Federal Circuit upheld the dismissal of a takings claim by the Court of Federal Claims for lack of jurisdiction under of 28 U.S.C. § 1500.  

That statute, as federal takings mavens know (and as the Supreme Court recently held in United States v. Tohono O’odham Nation, 131 S. Ct. 1723 (2011)), deprives the CFC of subject matter jurisdiction if there’s a claim based on the same operative facts “pending in any other court any suit or process.” In this takings case, the property owner filed its CFC complaint — which alleged that the

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Continue Reading Amicus Brief: Applying Civil War-Era Statute To Toss Federal CFC Takings Claims “Gives Credence To The Belief That ‘The Law Is An Ass.’”

Good news, takings fans. The U.S. Supreme Court today granted cert, and will review Murr v. Wisconsin, the case in which the Wisconsin Court of Appeals held that two separate parcels owned by the same family must be treated as a single unit for purposes of determining whether there has been a taking. 

The Court agreed to review this Question Presented:

In a regulatory taking case, does the “parcel as a whole” concept as described in Penn Central Transportation Company v. City of New York, 438 U.S. 104, 130-31 (1978), establish a rule that two legally distinct, but commonly owned contiguous parcels, must be combined for takings analysis purposes?

Cert petition posted here. Other cert briefs here.

More to come, naturally. 

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Horne

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Continue Reading SCOTUS To Take On Regulatory Takings Parcel As A Whole Doctrine

When we first read the caption in Metropolitan St. Louis Sewer Dist. v. City of Bellefontaine Neighbors, No. SC94831 (Jan. 12, 2016), we admit to a bit of confusion because this is an inverse condemnation case, and it appeared that a public entity was suing one of those activist groups, “The Bellefontaine Neighbors.”

A public entity bringing an inverse claim against some citizens? We’re intrigued.

But then we read the caption more carefully and noticed the “City of” part, which caused us to do what we usually do these days when curiosity strikes: we googled it. And we learned something new: there is a City of Bellefontaine Neighbors in Missouri. In addition to having a very friendly name and an imposing motto (“Strong Traditions … Strong Moral Values”), it also has the distinction of having, “[a]t 22 letters, … the longest name of any incorporated place in the United States.”…

Continue Reading City With Really Long Name Didn’t Take Private Property When It Damaged Publicly-Owned Pipes

After the usual preliminaries — certification of a 253-member class, subclass certifications, discovery, and motions and cross-motions for summary judgment — the parties in a rails-to-trails takings case in the Court of Federal Claims mediated the dispute and ended up agreeing to $110 million plus interest as just comp for the property taken, and slightly more than $2 million in statutory attorney fees and costs under the Uniform Relocation Act. Many of the class consented to this deal.

Class counsel and the government filed a joint motion for court approval, but a day later, class counsel sought additional fees under the “common-fund” doctrine in the neighborhood of $35 million, based on its contingency fee agreement with some members of the class which entitled them to a percentage of the total award. The CFC did some calculating:

As to whether class counsel’s request for thirty percent of the common fund was…

Continue Reading Fed Circuit On Rails-To-Trails Class Action Attorneys Fees, The Uniform Relocation Act, And A Possible Circuit Split

Appellate decisions reversing a grant of summary judgment because there are disputed factual questions are not 100% satisfying. Yes, if you are the plaintiff/appellant, you live to fight another day instead of facing the exit door. But you haven’t won yet either, and the hard part — proving that you should win, and not merely that you shouldn’t lose — is still to come.   

But that’s not the reason why we don’t quite get the Washington Court of Appeals’ opinion in a takings case, TT Properties, LLC v. City of Tacoma, No. 46803-4-II (Jan. 12, 2016). It reversed in part a grant of summary judgment to the city, so we can’t dislike the ruling. Yet at the same time, we can’t understand why the court reached this result.

A project by the regional transit authority on a city-owned right-of-way ended up impacting two separate parcels owned by TT.

Continue Reading In A Takings Case, Jury Decides Whether There’s Been A Substantial Impairment Of Access

A case that we’ve been following with some mild amusement has reached the Hawaii Supreme Court, where it was argued last week.

Our amusement stems from the fact that shoreline and beachfront property in Hawaii — especially when that property is in the fabled “Gold Coast” of Waikiki at the foot of Diamond Head — is usually fought over by those wanting to own it. But this one is different, because in this case, everybody wants the other guy to own it, because it involves a seawall that needs upkeep. And seawall upkeep don’t come cheap.

We posted the trial court’s decision concluding that the State of Hawaii owns it, here. The Intermediate Court of Appeals affirmed, and the State sought, and the Supreme Court granted, certiorari.

You can listen to the oral arguments — the issues are the language of a statute, prescriptive easements, and implied dedication —…

Continue Reading HAWSCT Oral Arguments In Seawall Hot Potato Case

ALI-CLE-2016-masthead

We know we’ve been doing the hard sell lately, with multiple posts on the details of the upcoming 2016 Eminent Domain and Land Valuation Litigation / Condemnation 101 Conference, which runs from January 28-30, 2016, in Austin, Texas. And this will be our last pre-conference post, we promise.

But me and my co-planning chairs, Joe Waldo, Jack Sperber, and Andrew Brigham, think we’re put together a very good program that covers a lot of ground, and we really want you to come. This is also the first time the conference has been to Austin, and we’re in a brand new (as in just opened) hotel, so we’re looking forward to this perhaps more than usual.

The full agenda is posted here, but here are highlights:

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Continue Reading Final Post: More Reasons To Attend The ALI-CLE Eminent Domain Conference