2017

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”

IMG_20171028_065248

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

Header-logo

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

Check this out: according to this article (“This SC man won a Supreme Court case. He wants to know why he can’t talk about it“), David Lucas, the lawyer-property owner behind the big reg takings case Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1993), was apparently not invited to speak at the (ongoing) event at the University of South Carolina law school marking the 25th anniversary of the decision. The local paper reports:

The University of South Carolina law school is holding a three-day event to mark the 25th anniversary of a S.C. man’s legal victory in the U.S. Supreme Court. But the victor in that case, Davis Lucas, isn’t invited, and he’s upset.

. . . .

Lucas, who sued for the right to build on two lots on the Isle of Palms, is upset neither he nor his attorneys were invited…

Continue Reading Lucas Not Invited To Lucas Conference

20170918_190120
No soup for you!

Update: our colleague Bryan Wenter has his take on one of the cases denied review here (“U.S. Supreme Court Again Declines to Consider Important Property Rights Issue Regarding the Unconstitutional Conditions Doctrine“) (“Because the current composition of the U.S. Supreme Court leans ideologically conservative by any traditional measure and it takes only four of nine Justices to grant certiorari, on the surface it is surprising that the Court has yet to take up a case, such as CBIA or 616 Croft Ave., that would finally resolve this distinction between sweeping legislative takings and particularized administrative takings. The surprise is enhanced to a degree by the fact that the Court considered both cases in conference four times, which suggests a serious interest in the issue.”).

* * * *

To bring you up to speed on cases of interest in the Supreme Court’s cert pipeline…

Continue Reading Cert Denied, Denied, Denied, Denied In Property Cases (But Don’t Give Up The Ship Just Yet)

We’ve been receiving a lot of visits lately from folks looking for information on inverse condemnation liability after the recent Northern California wildfires, and the flooding in Houston. In addition to the news stories (see SF Chronicle wildfire story here, and the Texas Tribune flood story here) which we’ve already posted, here are other links which may be useful:

…
Continue Reading More On Inverse Condemnation Liability For Fires And Floods