2016

The Supreme Court has declined to review the Second Circuit’s summary order upholding the dismissal of a federal court regulatory takings claim on Williamson County ripeness grounds. 

In this order, the Court denied cert, over the dissent of Justice Thomas (joined by Justice Kennedy). We’ve said here many times why Williamson County is a bad rule, and needs to be tossed aside. We filed an amicus brief in the case in support of the cert petition which covers most of the reasons why. 

The two dissenting Justices argued that the state-litigation requirements “are suspect,” and appear to be “inconsistent with the text and original meaning of the Fifth Amendment’s Takings Clause.” 

Read the entire dissent (it’s not long), but here are the highlights:

  • “In short, both the text of the Takings Clause and historical evidence cast doubt on Williamson County’s treatment of just compensation as a mere remedy,

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Continue Reading Quagmire Unabated: SCOTUS Will Not Revisit Williamson County (Yet)

“Election contests” in Hawaii are pretty narrow cases, and are subject to strict rules regarding subject matter jurisdiction (the Hawaii Supreme Court has original jurisdiction), content, timing,and remedy. For more, see our earlier post “HAWSCT Confirms Election Contests Are Tough!” Thus, even when an election challenge may have merit, the road is an uphill one. 

But when it makes allegations like this, there’s not going to be much doubt about the outcome, is there? — 

…that the Republican Party is attempting to “subvert, remove, and over[]throw the constitutional powers of the office of the [P]resident,” that Presidential candidate Ted Cruz is not qualified to run for President of the United States and, therefore, the Republican Party “is guilty of election fraud [by] knowingly entering an illegal candidate,” that the Office of Elections sponsors racism by serving “whites only,” and that Governor David Ige is “responsible for bigotry and discrimination…

Continue Reading Election Law Detour: Hawaii SCT Dismisses Challenge To Ted Cruz Eligiblity

Kauaipark

A longer post to start the week because it involves an eminent domain case, a somewhat rare occurrence from the Hawaii appellate courts. The issues determined by the Hawaii Intermediate Court of Appeals are important, and because we have an old eminent domain code and don’t have a whole lot of current decisional law applying it — and we think the ICA got some critical things wrong (even though it may not matter for this case) — we’re going hit this one in some detail.    

This one involves three parcels on Kauai — some of which were owned by a fellow who has been a thorn in the County’s side — which were condemned by the County for the expansion of a public beach park.  

In County of Kauai v. Hanalei River Holdings, Ltd., No. CAAP-14-0000828 (Mar. 31, 2016), the ICA addressed three issues:

  • Can a

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Continue Reading Hawaii Court Of Appeals Draws A Bright Line In Eminent Domain: In Larger Parcel Analysis, Unity Of Contiguity Means Parcels Must Touch

Update: Oral argument audio posted above. 

Update: “State’s High Court Hears Arguments In Mountain Water Appeal On Wide-Ranging Issues” 

Update: “Montana Supreme Court Justices quiz lawyers on eminent domain, finances“

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The condemnation of privately owned utilities is a thing these days. Seems like many local governments believe they can do it better than the private owners, and exercise the eminent domain power to force the acquisition. But in these cases, isn’t the property already being put to public use? Indeed, the exact same public use? 

This morning, the Montana Supreme Court is hearing oral arguments in a case we’ve been following that will address the meaning of the phrase “more necessary public use” in Montana Code Annotated § 70-30-111  and and what kind of proof is necessary to support such a claim. The city of Missoula is attempting to condemn Mountain Water Company, a private company which supplies…

Continue Reading Montana Supreme Court Live Streams Arguments In “More Necessary” Public Use Case: Can A Municipality Seize The Local Water Utility?

The Pribeagus asserted the County’s failure to maintain a road caused their home to be flooded repeated. They sued in inverse condemnation, including in their suit a claim for damages both to their real property and their personal property. 

The trial court kept the Pribeagus from introducing evidence of the value of the personal property, believing that such damages are not recoverable in inverse condemnation, and the only thing an owner can recover is damage to real property. 

In Pribegeau v. Gwinnett County, No.A15A2026 (Apr. 13, 2016), the Georgia Court of Appeals disagreed, concluding that the term “property” is the Georgia Constitution “is a very comprehensive one, and is used not only to signify things real and personal owned, but to designate the right of ownership and that which is subject to be owned and enjoyed.” Slip op. at 7 (citation omitted). So yes, personal property is “property” and…

Continue Reading Ga App: Owners Can Recover Personal Property In Inverse Condemnation Action

Continuing with our posting of the amicus briefs in Murr v. Wisconsin, No. 15-214, the “parcel as a whole” case now being considered by the Supreme Court, here is the brief filed in support of the property owner by several western states, principally authored by lawprof Ilya Somin.

Rather than summarize the brief here, we point you instead to Prof Somin’s post at the Volokh blog, “Our amicus brief on behalf of nine states in an important Takings Clause property rights case.” 

More briefs coming. 

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Horne II: “The World’s Most Outdated Law” Crashes Headlong Into Takings
SCOTUS Requests Response To § 1500 Petition
Virginia: Jury Gets To Hear About Appraisal Bait-And-Switch
Cert Denied In Kurtz: Williamson County Lives!

Continue Reading Another Amicus Brief In SCOTUS “Parcel As A Whole” Case: Aggregation Has “No Basis In Text, History, Or Predecent”

The amicus briefs supporting the property owners/petitioners in Murr v. Wisconsin, No. 15-214, the “parcel as a whole” case now being considered by the Supreme Court, are rolling in.

Here’s the first one, the amici brief for the Cato Institute and the Owners’ Counsel of America. [Disclosure: we represent OCA on this filing.]

Regulatory takings are about the impact of a regulation on an owner’s use of property and how it has a similar economic impact on that property as an exercise of the government’s eminent domain power. Thus, most regulatory takings claims will hinge in large part on “the extent of the interference with rights in the parcel as a whole.” Penn Central Trans. Co. v. New York City, 438 U.S. 104, 130-31 (1978). This is also known as the denominator issue, because the size of the property often dictates the severity of the regulation’s impact.

Continue Reading SCOTUS Amici Brief: In Regulatory Takings, No Aggregation Of Separate, Commonly-Owned Parcels

Guam land titles can be seriously messed up. This case, Gov’t of Guam v. 162.40 Square Meters of Land, No. CVA14-011 (Mar. 17, 2016), about which we posted earlier (when it went up to the U.S. Supreme Court and was denied review) is an example. To reconfigure irregular lot lines left over from the World War II Japanese occupation and American liberation and the resulting destruction of records, Guam adopted the “Agana Plan,” which it viewed as a redevelopment plan of sorts. Or at least that’s how it was employed, even though the Plan had until 1981, never been used to take any property.

But 1981 was different. Ilagan owned land in Agana on which he ran an apartment building. Ungacta — who was then the Mayor of Agana — owned a neighboring residentially-zoned lot. In 1981, the Ungacta property did not have access to a road. Ungacta appraised a…

Continue Reading Guam SCT: Eminent Domain Statute Cannot Limit Right To Just Compensation

When we talk amongst ourselves, we dirt lawyers discuss things like larger parcels, regulatory moratoria, servitudes “running with the land,” and other such fascinations. But we understand that what the average guys and gals want to know about when they chat us up at cocktail parties is their neighbor’s trees.

Like who gets the fruit from her trees that are on my side of the fence (as our colleague Mark Murakami wrote about his bananas)? Or, as in this recent opinion from the New Jersey Appellate Division, who pays when my tree’s roots bust up my neighbor’s wall.

Turns out the analysis hinges on whether the tree’s roots are a “natural condition” of the land. [Barista’s note: unless the tree is artificial, like those ubiquitous fake tree cell towers, we’re not sure how a tree really can be considered not “natural,” a question we’ve …

Continue Reading NJ App Gets All Metaphysical About “Natural” Trees

First, the good part of the recent opinion issued by the New York Supreme Court Appellate Division, First Department (dun dun) in American Economy Ins. Co. v. New York, No. 16095 (Apr. 14, 2016):

Plaintiffs also established that the amendment, as applied retroactively, violates the Contract Clause of the US Constitution because it retroactively impairs an existing contractual obligation to provide insurance coverage “[w]here *** the insurer does not have the right to terminate the policy or change the premium rate” (Health Ins. Assn. of Am. v Harnett, 44 NY2d 302, 313 [1978] [internal quotation marks omitted] [asterisks in original]; see US Const, art I, § 10, cl 1). Defendants failed to show that the impairment is “reasonable and necessary to serve” “a significant and legitimate public purpose *** such as the remedying of a broad and general social or economic problem” (19th St.

Continue Reading New York Appellate Division: Applying New Workers Comp Provisions Retroactively Is A Taking