November 2017

You should be following along with Clint Schumacher’s Eminent Domain Podcast on your own, but in case you missed this one in your feed, be sure to check out the latest episode, which features U. Virginia Law School prof Molly Brady talking about “damage clauses” in state constitutions.

The podcast and links to the materials and cases discussed are posted here. 

There’s also a short segment on Brott v. United States, currently at the cert stage in SCOTUS. That’s the one about Article III judges, and juries in inverse cases against the federal government (which under the Tucker Act, you don’t get in the Article I Court of Federal Claims). This case presents the issue we’ve focused on for a while: whether the self-executing nature of the just compensation requirement is subject to the power of Congress, and needs a waiver of sovereign immunity in order…

Continue Reading Eminent Domain Podcast, Episode XI – State Damaging Clauses, Jury Trials In Federal Inverse Cases?

We’re in court today (so blogging about lawyering must yield to the actual practice of lawyering) so we’re going to just post this here, and let you consider it. And maybe wait for our New York City colleagues (who just happen to represent the property owner), to weigh in via their eminent domain blog. 

The New York Appellate Division’s opinion in City of New York v. Baycrest Manor, Inc., No. D59668 (Nov. 15, 2017) is an eminent domain case which involves the valuation of wetlands on Staten Island, and Palazzolo‘s holding that long-existing restrictive regulations are not baked into a parcel’s value.

The City claimed that the condemned property was not worth a whole lot because the wetlands regulations predated the condemnee’s purchase. The owner, by contrast, argued that it had a pretty good shot at prevailing on a regulatory takings claim, because the Supreme Court in …

Continue Reading Staten Island Wetlands Regulations Are A Penn Central Taking. A Penn Central Taking!

The title of West Virginia Lottery v. A-1 Amusement, Inc., No. 16-1047 (Nov. 13, 2017) alone may not give you an indication that this is a takings case, but yes, it’s a takings case. 

As the title might indicate, it’s a case involving the state-run lottery and video lottery machines. If we’re reading the details right, the lottery issued permits to the plaintiffs, after which they were instructed to use a different software program, and informed that using any other software would render their machines illegal. The amusement companies were not prepared to retool (they’d have to buy new machines, they alleged), and brought regulatory takings, due process, and civil conspiracy claims. 

The trial court refused to dismiss the complaint, concluding that damages for the takings and due process claims could not be limited to the lottery’s insurance policy limits, and that the lottery had waived its sovereign…

Continue Reading West Virginia: Takings Clause Protects More Than Just Land – Owners Of Personal Property Can Bring Inverse Condemnation Claims

The Georgia Supreme Court’s analysis in Diversified Holdings, LLP v. City of Suwanee, No. S17A1140 (Nov. 2, 2017) reminded us of that old trope from logic, “no true Scotsman.” 

According to a completely reliable source (Wikipedia):

No true Scotsman is a kind of informal fallacy in which one attempts to protect a universal generalization from counterexamples by changing the definition in an ad hoc fashion to exclude the counterexample. Rather than denying the counterexample or rejecting the original claim, this fallacy modifies the subject of the assertion to exclude the specific case or others like it by rhetoric, without reference to any specific objective rule (“no true Scotsman would do such a thing”; i.e., those who perform that action are not part of our group and thus criticism of that action is not criticism of the group).

(And, in case you were wondering, “For the practice of…

Continue Reading Georgia: No True Taking – Challenge To City’s Refusal To Rezone Isn’t Really Inverse Condemnation

Border walls, pipelines, and state takings law. All topics we dig. So for today’s reading, we recommend “When the Government Grabs — the Border Wall, Pipelines and New Challenges to Eminent Domain,” an interview with U. Va. lawprof Molly Brady on these topics. Check it out. 

PS – Professor Brady will be speaking on another one of her areas of expertise (land use and regulatory takings) at our upcoming ALI-CLE Eminent Domain and Land Valuation Litigation Conference in Charleston, SC, January 25-27, 2018. Her session, “Overlap of Condemnation and Regulatory Takings: Murr and Other Blurred Lines” is one of our featured presentations on the first day of the Conference. Sign up now (space is filling quickly). Continue Reading Monday Reading: “When the Government Grabs — the Border Wall, Pipelines and New Challenges to Eminent Domain”

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Tomorrow, Saturday, November 11, 2017, is the 100th anniversary of the death of Hawaii’s last monarch, Liliuokalani. The Honolulu Star-Advertiser has a story about the commemoration events. 

But here’s a historical tidbit about her which our readers might find interesting: did you know that after she was deposed, and after Hawaii became a U.S. territory, the former queen sued the United States in what was then the U.S. Claims Court (now the U.S. Court of Federal Claims)? 

Her complaint wasn’t quite a “takings” case (sorry for the clickbaity headline),** but a claim that the federal government owed her in the neighborhood of $450,000 (what today would be about $11 million) for what looks like an accounting and constructive trust for the rents for the “crown lands,” land formerly owned in fee simple by the monarch personally, but which at the time of the overthrow had become…

Continue Reading Queen: Feds Took** Our Crown Lands!

We all know that if you are challenging a federal government action as either beyond the agency’s authority (or is unconstitutional), and as a taking, you’ve got to split your claim between a U.S. district court, and the Court of Federal Claims. The district court considers challenges to the validity of the government action, while the CFC hears claims that a valid government act has taken property and thus compensation is owed. 

But what about when you are challenging state actors in state court? The Connecticut Supreme Court’s opinion in Wellswood Columbia, LLC v. Town of Hebron, No. SC 19693 (Nov. 7, 2017) is an example of the dangers of not bringing your compensation and damage claims together with your challenge to the government act when you are in non-federal forums. 

The facts of the case are pretty straightforward: the plaintiff was considering purchasing land on which it wanted…

Continue Reading Connecticut Creates Lower Court Split? Split Your Takings Claim At Your Own Res Judicata Risk

We’re looking forward to a good crowd at the upcoming ALI-CLE Eminent Domain and Land Valuation Litigation Conference, when we shall converge on Charleston, SC, January 25-27, 2018. We’ve received word that our main conference hotel, the Francis Marion, has sold out.

But if you haven’t reserved your space yet, don’t despair. The conference organizers have made arrangements at a hotel that is very nearby, the Marriott Courtyard, for a special conference rate. That hotel is just across the park from the Francis Marion. ALI is also making arrangements for conference room blocks in two other nearby hotels. Details on all of these alternatives are posted here.  

One more thing that we didn’t mention in our preview: there will also be a special sneak preview of the movie about Kelo v. City of New London, Little Pink House. If you joined us in Austin in…

Continue Reading ALI-CLE Eminent Domain Conference Hotel Block Selling Out – Overflow Available

Here’s the cert petition which has just been filed in a case we’ve been following since it was instituted in the District Court, Brott v. United States.

The case presents the deceptively simple question of whether property owners who sue the federal government for a taking are entitled to both an Article III forum, and to have the issues determined by a jury.

This is a rails-to-trails case, and as followers of this blog know, these claims, when they exceed $10,000, must be raised in the Article I Court of Federal Claims, where you get the case tried by a judge, and not a jury. The jurisdiction of the CFC was conferred by Congress in the Tucker Act.

Brott is challenging that scheme (complaint here), arguing that the self-executing nature of the Fifth Amendment’s Just Compensation Clause requires both an Article III court, and a jury. …

Continue Reading New Cert Petition: Property Owners Entitled To Jury & Article III Judge In Federal Inverse Cases

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This just in: friend and colleague, Norfolk, Virginia’s Joe Waldo (already known to many of you, and the long-time planning chair of ALI-CLE’s Eminent Domain and Land Valuation Litigation Conference) has been elected to the American Law Institute as one of its 35 new members.

Congratulations, Joe, on this significant honor! 

This is a critical time for the ALI, as it is in the process of preparing the Restatement (Fourth) of Property, and thus a very good time for property law experts like Joe to be a part of that effort. 

Our congratulations also to Hawaii colleague Sharon Lovejoy, who was also elected as an ALI member. Continue Reading Joe Waldo Elected To American Law Institute