June 2017

As readers may be aware, I’ll be taking over as Chair of the ABA’s Section of State and Local Government Law in a couple of months. I understand that many of my colleagues do not see the value in ABA participation, and I’ve explained why I do so here. It’s been a wonderful way for me to meet colleagues from around the nation, develop professional skills, learn about areas of law which I should know but do not practice. In short, it’s made me a better lawyer. If you aren’t participating, you really should consider it.  

We sent out a call for leaders this morning via email, and I’m reproducing it here for those of you who may be interested in joining our little enterprise but who didn’t get the email. 

Come, join us. 

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Volunteer! Network with colleagues! Develop professional strengths, add to…

Continue Reading State & Local Govt Law Section Is Looking For Leaders

Here’s the latest case in an issue we’ve been tracking, whether takings plaintiffs who bring major claims for just compensation against the federal government must do so in the Article I Court of Federal Claims, or can bring the claim in an Article III district court. The Sixth Circuit recently held that the feds have sovereign immunity, and have only consented to be sued in the CFC. That court also held that there’s no right to jury trial on a takings claim against the feds. [See 7/24/2017 update, below]

In Sammons v. United States, No. 17-50201 (June 19, 2017), the U.S. Court of Appeals for the Fifth Circuit effectively adopted that same reasoning. In a short opinion, it held that takings claims involve “public rights,” and therefore, Congress may validly assign adjudication of those rights to non-Article III courts. Like the Sixth Circuit, the Fifth Circuit panel rejected the…

Continue Reading Fifth Circuit: “the United States’s sovereign immunity can bar cases against it based on the Takings Clause”

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No sleeping under the bridges of Paris!

In Ada County Highway District v. Brooke View, No. 43452 (May 23, 2017), the Idaho Supreme Court held that construction damage caused by the Highway District to property adjacent to — but not part of — a road project for which it took property, was not covered in the condemnation case as damage caused “by reason of … the construction of the improvement.” During construction of the highway widening project, the county damaged a wall belonging to the condemnee. 

The court held that this type of damage was not part of the valuation case in eminent domain, but was covered by tort law. Thus, the property owner could not claim that the cost to repair the damage was part of just compensation and damage, but had to sue the county in a negligence action. The Idaho statute on which the property owner…

Continue Reading Idaho: You Aren’t Special, Just Because You Had Your Property Taken

Here’s the audio recording of the talk we gave to the ABA Section of State and Local Government Law’s Land Use Committee earlier today. (Some of you may note that in the intro we say the talk was on “June 17,” but since that’s tomorrow, we assume you understand that is just an error.)

The links to the cases and materials we mentioned in the talk are posted here. Continue Reading Recording – “Takings: Emerging Issues” ABA State & Local Government Law Section Talk

Update: the audio recording is posted here.

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Here are the links to the cases we mentioned in today’s ABA State and Local Government Law Section presentation, “Takings: Emerging Issues.”

The “Larger Parcel” In Regulatory Takings (and Eminent Domain)

Emerging Issues

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Continue Reading Links From Today’s ABA Presentation – “Takings: Emerging Issues”

A quick one from the Virginia Supreme Court, on pleading inverse condemnation in flooding cases. Or in any inverse case, actually.

In AGCS Marine Insurance Co. v. Arlington County, No. 1160221 (June 15, 2017), the court held that the insurance company (which paid off the property owner after a county sewer line flooded its store, and exercised its subrogation rights by bringing an inverse claim against the county) initially didn’t plead the claim adequately. But its proposed amended complaint fixed the pleading defects and made out a valid claim.

The case started when a county sewer line backed up, which caused raw sewage to flow into a neighboring grocery store. The insurance company paid the policy limits, and brought suit against the county. Here’s how the plaintiff initially pleaded the inverse claim:

The original complaint stated that the sewer line and the sewage treatment plant for the sewer line “were…

Continue Reading Virginia SCT Clarifies How To Plead A Flooding Inverse Condemnation Claim

Under Missouri law, the owner of land must have owned it at the time of the taking in order to have standing to bring an inverse condemnation claim. In Hull v. Pleasant Valley School District, No. WD79302 (June 6, 2017), the Missouri Court of Appeals (Western District), a case involving inverse condemnation liability for flooding, concluded that the owners of a golf course who recorded title to the land after the first instance of flooding had standing to bring a total taking claims.  

The Hulls purchased the golf course from Mr. Hull’s parents in 2005 but didn’t record the deed until 2009. The first flood occurred in 2007. After the jury awarded the Hulls $3 million for the total taking (after which the court ordered the Hulls to sign over the deed to the district), the district asserted the Hulls lacked standing because the deed wasn’t recorded until…

Continue Reading Golf Course Owners Who Recorded Title After The First Flood Had Inverse Condemnation Standing

A quick one from the Oregon Court of Appeals. In Courter v. City of Portland, No. A158840 (June 7, 2017), the court concluded that the property owners’ inverse condemnation claim — which alleged that the City had not buried its pipes deep enough — was ripe for judicial review.

The case started after the City condemned a utility easement on the property and then didn’t bury the pipes deep enough. Doing so exceeded the scope of the condemned easement and interfered with the owners’ right to develop their property in the future because they’d have to either rezone the property or have the pipes buried deeper in order to develop. The City argued that the case wasn’t ripe because the damages which the owners complained of had not yet occurred. “[B]ecause a court could not adjudicate whether they were harmed by the placement of the pipes until plaintiffs successfully…

Continue Reading Oregon App: Physical Inverse Condemnation Claim Is Ripe From The Moment Of Occupation

ABA State and Local 2017-2017 conferences image

Mark your calendars for this Friday, June 16, 2017, at 2:00 p.m. Eastern Time for a free talk we’ll be giving, “Regulatory Takings: Emerging Issues.” 

Yes, it’s free, but there’s a catch: this talk is sponsored by the ABA Section of State and Local Government Law’s Land Use Committee, and you have to be a Section member (or be willing to join us). One of the benefits of being a member is that you can sign on to these bi-monthly calls and learn about the latest developments in the broad range of topics the Committee covers. Ping me if you want to sign up.  

And what’s the deal with the graphic above? Well, starting in August 2017, I’ll be taking over as Chair of the Section (assuming my ABA colleagues do not come to their senses before then), and the big focus of the Chair is to…

Continue Reading Upcoming Free Takings Talk (Friday, June 16, 2017). But There’s A Catch…

BayPointMap

Here are the Questions Presented in Bay Point Properties, Inc. v. Mississippi Transportation Commission, No. 16-1077 (cert. petition filed Mar. 3, 2017), a case which seeks Supreme Court review of a decision by the Mississippi Supreme Court. We represent the Petitioner. 

The full set of party and amici briefs are posted below. 

An inverse condemnation jury determined the Mississippi Transportation Commission (MTC) ceased using a highway-purpose easement granted to it in 1952 by Petitioner’s predecessor-in-title for a specific bridge, “Toll Project No. 1,” the U.S. Highway 90 crossing of Bay St. Louis. In 2005, Hurricane Katrina destroyed the bridge. MTC removed Toll Project No. 1 and built an entirely new bridge in a different location, and converted the majority of Petitioner’s land into a public recreational park. This discontinued the specific use authorized by the easement, and Petitioner should have immediately recovered unencumbered possession. The jury determined MTC’s…

Continue Reading Bay Point Properties v. Mississippi Transportation Comm’n, No. 16-1077