2016

Here’s the latest in a case we’ve been following, and which earlier resulted in a very good decision from the North Carolina Supreme Court. 

In Kirby v. North Carolina Dep’t of Transportation, No 56PA14-2 (June 10, 2016), the N.C. Supreme Court held that the “Map Act,” a statute by which the DOT designated vast swaths of property for future highway acquisition, was a taking because the act prohibited development of designated properties in the interim. The court concluded that “[t]hese restraints, coupled with their indefinite nature, constitute a taking of plaintiffs’ elemental property rights by eminent domain.” The court remanded the case for a parcel-by-parcel determination of just compensation.

Here’s the trial court’s Order on remand, granting in part the plaintiffs’ motion for partial judgment on the pleadings on inverse condemnation liability, and ordering the NCDOT to “file plats, make deposits with the required statutory interest, and, if any plaintiff…

Continue Reading NC Map Act: DOT Ordered To Pay For Designating Property For Future Highway Use (But Then Not Taking It)

ALI2017 - Copy
 ALI2017

We’ve teased some of the details on the 2017 ALI-CLE Eminent Domain and Land Valuation Litigation and Condemnation 101 Conference, to be held at the Westin San Diego, January 26-28, 2017, but here are the details you’ve been waiting for.

This is the “big one,” our annual 3-day festival of all things eminent domain, property, takings, inverse condemnation, and just compensation. Truly national in scope, this is the 34th annual edition, and the one conference you must attend. Our 2016 conference in Austin was one of the best in years, and we’re on the way to replicating it in 2017, with a great venue in an exciting city. 

Look for the web and printed brochures to show up in your mailboxes, but in the meantime, here are some of the highlights (we’ll post more in the next few days):

  • Relocation, relocation, relocation: we are featuring two sessions on this

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Continue Reading Details: ALI-CLE Eminent Domain And Land Valuation Conference – San Diego, January 26-28, 2017

There’s a lot of pages in the Pennsylvania Supreme Court’s opinion (and two concurring opinions) in Robinson Township v. Commonwealth of Pennsylvania, No. J-34A-2016 (Sep. 28, 2016), and the good stuff from the headline starts on page 78. But to understand the case, you need a bit of background.

Pennsylvania has been one of the hotbeds of property owner objections to natural gas (including the related fracking extraction method) and other pipeline projects, and this case was a lawsuit by several townships and municipal officials challenging a state statute which made fracking and eminent domain easier for the gas companies. The townships asserted this went beyond what the state legislature had the power to allow, because it was “special legislation” designed to help a particular industry, and not applicable to all, and allowed an unconstitutional taking of private property for private use. The court held the statute was special…

Continue Reading Pennsylvania Supreme Court: Delegation Of Eminent Domain Power To Pipeline Companies Violates Fifth Amendment’s Public Use Clause

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During. Good crowd.

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Before. Note the power strips on the tables.
Well played, Caesar’s, well played.

To supplement your written materials, here are the decisions and other materials which we spoke about this morning at the CLE International Eminent Domain seminar:

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Continue Reading Links And Notes From Today’s Las Vegas Eminent Domain Seminar

This one is kind of Colorado specific, but there are lessons here for the rest of us.

In Colorado Dep’t of Transportation v. Amerco Real Estate Co., No. 16SA75 (Sep. 26, 2016), the Colorado Supreme Court prohibited the DOT from taking Amerco’s land (leased to U-Haul) for a highway project because the transportation commission had not first determined via the process required by statute that the taking would serve the public interest.

U-Haul argued these statutes required the commission to adopt a resolution — based on a report by the chief engineer — to establish that the taking of this specific property would be in the public interest, and that it wasn’t sufficient that these things were done for the project in general. The DOT asserted that an earlier resolution by the transportation commission gave the DOT all the power it needed, because it had delegated the power to acquire…

Continue Reading When Statute Requires Commission Approve Taking, DOT Can’t Do It

The speed of the internet: we were all set to post our thoughts on the opinion of the Court of Appeals of Indiana in Bellwether Properties, LLC v. Duke Energy Indiana, LLC, No. 53A-04-1511-CR-1880 (Sep. 13, 2016), when the Indiana Lawyer beat us to the punch with “COA: Discovery rule applies in inverse condemnation action against Duke Energy.”

We can’t report on this decision any better than they did, so check it out. 

Bellwether Properties, LLC v. Duke Energy Indiana, LLC, No. 53A04-1511-CT-1880 (Ind. App. Sep. 13, 2016)

Related articles
Nevada: In Precondemnation Cases, Interest Runs From Date Of Taking, Not Date Of Eventual Summons
South Dakota: No Property Interest In Highway Access
Mississippi: No Ownership At Time Of The Taking = No Standing
Must An Inverse Condemnation Plaintiff Name All Parties With An Interest In The Property?

Continue Reading Indiana App: Statutes Of Limitation And Inverse Condemnation

We like property rights. We really do. And here is a new law review article on property rights. But the jury’s still out whether this will be useful to us (or you) in the practice of law, because, well, the article is about animals having property rights.

You read that right. Property rights. For animals.

Now we’ll admit, our first thought was “is this the quality of legal scholarship that law students are going hundreds of thousands of dollars into debt to learn?”

But really, who are we to judge? We know that cats already think they own everything and everyone, including their putative owners. So what is so outrageous about the rest of the animal kingdom owning things?   

Here’s the abstract:

What if animals could own property? This Article presents a thought experiment of extending our anthropocentric property regime to animals. This exercise yields new insights into…

Continue Reading New Law Review Article On Property Rights … For Animals.

Preamble

Today is Constitution Day, even though every day really is Constitution Day, no?

In that vein, here is what is probably our favorite work of modern art, a piece titled “Preamble,” which hangs in the Smithsonian American Art Museum in Washington, D.C. Yes, those are real license plates, and when read together spell out the preamble to the Constitution. We like the piece so much, we’ve got a print hanging in our office.Continue Reading Happy Constitution Day 2017

This one reminds us of a recent decision by the Texas Court of Appeals, because the Mississippi Supreme Court, like the Texas court, concluded that an inverse condemnation plaintiff lacked standing because it didn’t own the property at the time of the taking. Russell Real Property Services, LLC v. Mississippi, No. 2015-CA-01306-SCT (Sep. 15, 2016).

But where the Texas court’s analysis failed to satisfy, we think the Mississippi court’s approach was much more sound.

Russell claimed it owned a half interest in property which the State leased to the City of Pass Christian for use as a harbor and related development, and sued both for inverse condemnation. But Russell had only been quitclaimed its interest from the prior owner after the city and the state had entered into the lease. It claimed the taking occurred when the Secretary of State executed the lease. 

But even applying Mississippi’s “liberal” standing rules…

Continue Reading Mississippi: No Ownership At Time Of The Taking = No Standing

A new article worth your time by economist William Wade, “Theory and Misuse of Just Compensation for Income-Producing Property in Federal Courts: A View From Above the Forest,” 46 Tex. Envtl L. J. 139 (2016).

Bill is familiar to regular readers, as he has been a frequent guest poster, and a prolific author. This article is his latest, and focuses on how compensation should be calculated in regulatory takings cases, and contrasts how lawyers view economic losses, and how economists view the same thing (not necessarily the same way). 

We are grateful to the Texas Environmental Law Journal and the Environmental and Natural Resources Section of the Texas State Bar for their permission to post the article. Continue Reading New Article: “Theory and Misuse of Just Compensation for Income-Producing Property in Federal Courts: A View From Above the Forest”