July 2017

The Connecticut Appeals Court’s opinion in Stones Trail, LLC v. Town of Weston, No. AC 38078 (July 18, 2017), does not offer a lot in terms of substance — it holds that a property owner’s regulatory takings claim based on the Town’s approval of what the owner thought was a subdivision was not ripe because the owner had not actually filed a subdivision request — but the facts are interesting nonetheless:

The plaintiff had purchased the property with the purpose of dividing it into six buildable lots. Before the closing of the purchase, the plaintiff submitted three maps of the property to the town. The town’s attorney determined that the property depicted on one of the maps was not a subdivision, and that map was stamped accordingly and filed in the town land records. Thereafter, the other two maps, which altered the lot lines of the property to depict…

Continue Reading After A Plaintiff Jury Verdict (And Rejection Of Town’s Four Previous Motions Over Nine Years), Takings Claim Held Not Ripe

Load this one up for your morning drive, or workout: the Federalist Society’s podcast on “Lucas v. South Carolina Coastal Council at 25.” Featuring Professor Eric Claeys, Professor Michael Wolf, and Pacific Legal Foundation’s James Burling. Well worth your time.

Here’s the description:

This spring marks the 25th anniversary of the U.S. Supreme Court’s decision in Lucas v. South Carolina Coastal Council. In Lucas, a 5-4 Court majority held that a state law can effect a “regulatory taking” and trigger inverse condemnation requirements if it deprives an owner of all viable uses of his land. Join our panel to hear a discussion of questions such as: Did Lucas mark a major change in Supreme Court regulatory takings doctrine? Was the decision about right, or did it go too far or not far enough? Is Lucas still relevant to regulatory takings law today, and what are the…

Continue Reading A Quarter-Century Of Lucas: What’s Next?

In Brott v. United States, 959 F.3d 425 (6th Cir. May 31, 2017), a Sixth Circuit panel — after acknowledging the Fifth Amendment right to just compensation is “self-executing” — held that it really wasn’t: the federal government can take private property but the owner can only recover compensation if Congress agrees to allow them to do so. Thus, takings plaintiffs must try their cases in the Article I Court of Federal Claims, and do not merit a jury trial in an Article III court.

The property owners/plaintiffs have now sought en banc review:

After the panel issued its opinion, the Supreme Court granted certiorari in Oil States Energy Services, LLC v. Greene’s Energy Group, LLC, 639 Fed. Appx. 639 (2016), cert. granted, 2017 WL 2507340 (June 12, 2017). In Oil States the Supreme Court will decide “[w]hether inter partes review violates Article III or the Seventh Amendment…

Continue Reading Property Owners (And Amici) To Sixth Circuit: En Banc Review: “Self-Executing” Compensation Clause Means Congress Doesn’t Need To Consent

ALI Murr Title Card

Thank you if you were able to join us earlier today for ALI CLE’s webinar, “The U.S. Supreme Court and Property Rights – Murr v. Wisconsin: The ‘Larger Parcel” Issue and the Future of Regulatory Takings,” our first comprehensive look at the U.S. Supreme Court’s recent decision on the “larger parcel” or denominator in regulatory takings, with Sara Beachy, Michael Berger, Steven Eagle, and John Groen. 

Here are links to some of the materials which our speakers discussed: 

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Continue Reading Links To Cases And Materials From Today’s ALI CLE Webinar On Murr v. Wisconsin

SSRN

 A couple of weeks ago, we noted that the Supreme Court’s recent decision in Murr v. Wisconsin would no doubt be a boon for law review editors. To avoid shirking our duty, we’ve spent the interim doing some writing, adding a drop to the flood. First draft done, posted on SSRN here. 

Emphasis on “draft,” so send your comments. Continue Reading Restatement (SCOTUS) of Property: What Happened to Use in Murr v. Wisconsin?

Here’s a newly-filed cert petition which asks the Supreme Court to review a Sixth Circuit decision in which the county auctioned the Church’s property to satisfy a tax lien, then kept the difference between the owed taxes plus costs, and the proceeds from the sale. The court dismissed the claim under Williamson County because it concluded that the Church could have pursued compensation from the county under state procedures.  

Here are the Questions Presented:

When Wayside Church fell behind on the property taxes for its youth camp, Van Buren County foreclosed and sold the youth camp for $206,000. After satisfying the church’s $16,750 in penalties, taxes, and fees with the proceeds from the sale, the County pocketed the remaining 91% of the property’s value as a windfall required by Michigan’s property tax law. Likewise, the County kept the surplus when it seized and sold Myron Stahl’s land and Henderson…

Continue Reading New Cert Petition: Overrule Williamson County!

ALI Murr Title Card

One last reminder: next Tuesday, July 25, 2017 at 2:00 pm Eastern, is “The U.S. Supreme Court and Property Rights: The ‘Larger Parcel” Issue and the Future of Regulatory Takings,” ALI-CLE’s first look at the U.S. Supreme Court’s recent decision on the “larger parcel” or denominator issue in regulatory takings cases where the plaintiff owns more than a single parcel, Murr v. Wisconsin.

Please come and join Sara Beachy, Michael Berger, Steven Eagle, and John Groen for lively and informative analysis and discussion. I will be introducing and moderating the panel. 

Details, including registration and CLE credit information here. Registration is $199, or, if you have attended one of our in-person Eminent Domain and Land Valuation Conferences in the past (the 2018 Conference in set for Charleston, SC, January 25-27, 2018, at the Francis Marion Hotel, stay tuned here for details shortly)…

Continue Reading ALI-CLE: The Larger Parcel Issue and the Future of Regulatory Takings (July 25, 2017)

Here’s one that every Hawaii civil practitioner, trial and appellate, should read. It’s only a few pages, but it’s very important. 

It is a pillar of the appeals process that in the usual case, the lower court’s judgment must be final — resolving all claims by all parties against all other parties — before the appellate court can consider an appeal. If this wasn’t already understood, more than 20 years ago, the Hawaii Supreme Court published an opinion that said so, which made it clear that not only does there need to be finality in fact, but that fact must be reduced to a piece of paper, a “Judgment.” Jenkins v. Cades Schutte Fleming & Wright, 869 P.2d 1334 (Haw. 1994). And that judgment must recite certain words, and it is these magic words that the appellate court will look at when determining whether it has jurisdiction.

Sounds simple enough. But…

Continue Reading Hawaii Supreme Court Allows A Practical Fix To A Technical Appeal Problem With Non-Final Judgment

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If you “get” this headline and the decision by the Federal Circuit, then congratulations, you are a super takings nerd. King of the Nerds. Off-the-charts nerd. Your takings law geek certificate is in the mail. 

In Petro-Hunt, LLC v. United States, No. 16-1981 (July 13, 2017), the U.S. Court of Appeals for the Federal Circuit considered Tohono, § 1500, takings statutes of limitations, judicial takings, Quiet Title, temporary takings, physical vs regulatory takings, Louisiana law mineral servitudes, and related contract claims. Lots of issues, and we leave it to you to read the whole thing. Well worth it. Bottom line: property owner loses. 

But even in the midst of a loss on all substantive and procedural fronts, this bright point: the Federal Circuit concluded that if the plaintiff had followed the first-to-file process, the court would have upheld the jurisdiction of the Court of Federal Claims against the government’s  § 1500…

Continue Reading Federal Circuit: Property Owners, Continue To File Your CFC Takings Claims Before You File Your District Court Action

An unpublished opinion from the U.S. Court of Appeals for the Fourth Circuit in a pipeline case from Virginia. But even though it is not precedent, we’re covering it anyway because it raises important issues.  

In Columbia Gas Transmission, LLC v. 76 Acres, No. 15-2547 (July 13, 2017), Columbia possessed the delegated power of eminent domain. After obtaining the green light from the Federal Energy Regulatory Commission, Columbia instituted an action in federal court under the Natural Gas Act to take easements from several Virginia landowners for a pipeline. Columbia obtained immediate possession of the property (even though there is no provision in the Natural Gas Act for immediate possession, prior to the payment of compensation). 

At trial, the property owners over Columbia’s objection, presented evidence to the jury that what Columbia did on the ground wasn’t the same as what it had formally condemned: 

Columbia sought to…

Continue Reading More Gas From The Fourth Circuit: Federal Jury Can’t Determine Pipeline Company Actually Took More Property Than It Condemned