May 2018

In Hunter Landing, LLC v. City of Council Bluffs, No. 16-2138 (May 16, 2018), the Iowa Court of Appeals held that the jury was entitled to be instructed about all takings theories, and not just limited to a Lucas and physical invasion instruction. 

After several of Hunter’s nonconforming buildings were damaged in a flood and the City concluded all but one of them were more than 50% damaged, the City demolished them. Hunter sued, asserting the City “inversely condemned its property by limiting the right of direct access to the property, restricting the highest and best use of the property, removing buildings, removing electrical power to operate a water well system, removing drainage tubes, and removing septic systems.”

The court gave the jury this instruction:

Land-use regulation does not constitute inverse condemnation requiring compensation if it substantially advances a legitimate state interest. There are two exceptions. When the regulation…

Continue Reading Iowa App: Regulatory Takings Jury Should Be Instructed About Per Se Takings, And Penn Central Test

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Here’s some of the things we’re reading or reviewing today, focused on the legal scholars and takings (with the last one being of general interest):

  • Michael Pollack, Taking Data, 86 U. Chi. L. Rev. ___ (2018) (“This Article proposes a new approach to regulating government investigations of data that has been shared with ISPs — one that is inspired by a legal tool that is designed to achieve the very balance between public benefits and private burdens that has thus far proven elusive. This tool is the Takings Clause.”). 
  • Meron Werkneh, Retaking Mecca: Healing Harlem through Restorative Just Compensation, 51 Colum. J. L. & Soc. Probs, 225 (2018) (just compensation does not account for “the loss of the community as a unit, or the dignitary harm suffered due to forcible displacements in the name of ‘revitalization.'”). 
  • Katrina M. Wyman, Limiting the National Right to Exclude, 72 U.

…
Continue Reading Thursday Reading, Law Review Edition

Here’s one, just issued by the U.S. Court of Appeals for the Eleventh Circuit.

We’ll let you read the opinion in Chmielewski v. City of St. Pete Beach, No. 16-16402 (May 16, 2018), for the full story, but to get you started, here’s the summary: the court affirmed a jury verdict in favor of a property owner who asserted that the City’s invitation to the public to permanently and continually access the adjacent beach via a private parcel, was a physical taking.

The short story is that the Chmielewskis owned a beach parcel in a subdivision, and earlier had sought to quiet title against the City which owned several other parcels within the subdivision. As part of the settlement of that action, the City agreed “that its [the City’s] ownership of five lots in the Subdivision did not give the general public the right to use Block M, including…

Continue Reading 11th Cir: City Inviting Public To Access Beach Across Private Land Is Inverse Condemnation

After the Supreme Court’s decision in Lingle v. Chevron U.S.A., Inc., 544 U.S. 528 (2005), whether a government action “substantially advances a legitimate state interest” — for a long time assumed to be a takings question under Agins — found a new home in the the Due Process Clause.  

Here’s the recently-filed cert petition, asking the Court to review a ruling by the Washington Court of Appeals

Questions Presented:

A Jefferson County, Washington, ordinance requires that all shoreline property owners dedicate, as a condition on any new development permit, a 150-foot conservation buffer purported to protect the marine environment from impacts like storm water runoff. The legislative record, however, contains findings that the government could not determine the need for, or the effectiveness of, a buffer without first considering site-specific factors and the specific development proposal.

The questions presented are:

1. Whether property rights are fundamental rights, such…

Continue Reading “New” vs “Old” Property – New Cert Petition Asks, Is Right To Use Property “Fundamental?”

You might not think that the conclusion which the U.S. Court of Appeals for the Tenth Circuit reached in M.A.K. Investment Group, LLC v. City of Glendale, No. 16-1492 (May 14, 2018) would be all that controversial: when private property is declared by a municipality to be “blighted” and subject to redevelopment (and eminent domain), the municipality needs to tell the owner about it, even if the taking may occur somewhere down the road. But apparently it was not obvious, for it took years of litigation to figure it out.

Colorado’s urban renewal statute permits local governments to designate private property as blighted (by looking at eleven factors), take it any time within the next seven years, and transfer the land to a new private owner. An owner has a very short time window — 30 days — to challenge the blight determination by filing a lawsuit in a Colorado…

Continue Reading 10th Cir: When City Declares Property Blighted And Subject To Condemnation, It Must Tell The Property Owner

The Virginia Supreme Court once famously noted that some things were so obvious, you didn’t need to cite any authority for the proposition. See Goldstein v. Old Dominion Peanut Corp., 177 Va. 716, 722, 15 S.E.2d 103, 105 (Va. 1941) (“We have so often said this that no citation for its verity is needed,” referring to the rule that facts determined by a jury are generally accepted as true by a reviewing court).

Well, it looks like the court thinks pretty much the same thing when it comes to appraisal testimony in eminent domain. An appraiser can testify to the value of property he did not actually value, but about which he made assumptions based on his “experience.” Res ipsa loquitur.

Get ready for a longer post, with some detail — we think this is an important case, mostly because the court got some of the eminent domain…

Continue Reading Of Ipse Dixits And Bootstrapping: Virginia Supreme Court Adopts “I Know Because I Know” Theory Of Admissibility Of Appraisal Opinion Testimony

If you understand this post’s headline, congratulations: you are the nerdiest of law nerds, checking no less than two boxes in the obscure law category, takings and patent law.

But if you have been paying attention here, you know that recently, the Supreme Court, in Oil States Energy Services, LLC v. Greene’s Energy Group, LLC, No. 16-713 (Apr. 24, 2018) (which we wrote about in “Property Lawyers, Read The Supreme Court’s Latest Patent Case“), held that “inter partes” review of previously-issued patents (a form of property), does not run afoul of the Constitution. 

Yes, these patents could be reconsidered in inter partes review. But the Court expressly left open the question of whether revoking a previously-recognized patent would be a taking:

Finally, our decision should not be misconstrued as suggesting that patents are not property for purposes of the Due Process Clause or the Takings Clause. See, …

Continue Reading The (First?) Post-Oil States Shoe Drops In Patent Takings By Inter Partes Review

Yesterday, the U.S. Court of Appeals heard arguments about the Mountain Valley Pipeline (which will run from northern West Virginia to southern Virginia), a situation receiving a lot of attention, and which has generated a number of lawsuits (go here for a list of the cases and a summary).

The question in Berkley v. Mountain Valley Pipeline, LLC, No. 18-1042, is whether the Federal Energy Regulatory Commission properly delegated eminent domain authority to Mountain Valley. The District Court dismissed the lawsuit for lack of jurisdiction, concluding that the plaintiff property owners could only challenge the takings in FERC under the Natural Gas Act. 

Here are the issues presented (from the property owners’ Opening Brief):

1. Whether the district court erred in its application of the Thunder Basin framework and finding that Congress implicitly divested the district court of subject matter jurisdiction over the Landowners’ claims.

2. Whether…

Continue Reading 4th Cir Oral Arguments In Pipeline Takings Case: “Meaningful” Judicial Review, Or FERC Procedures?

Little Pink House, the feature film about the Kelo v. City of New London case is in general release, and is now scheduled for a special screening in Honolulu in June.

Mark two dates on your calendar:

  • June 4, 2018: This is the deadline to buy your ticket. The way this works is that if a critical mass of tickets are presold, the screening is a go. If for some reason not enough tickets are sold by June 4, you get a refund. No lose. So buy your ticket here, right now.
  • June 11, 2018: The date of the screening. It will start at 6:30pm, at the Consolidated Theatres Kahala 8 (convenient, plus plenty of parking). Easy. 

We’ve seen the film (full review coming soon). It is a compelling piece, and very accurate to the real story (with a few concessions to the art form, of course).

If…

Continue Reading Coming Attraction: Little Pink House (Honolulu, June 11, 2018, 6:30pm)

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Two cases which we’ve been following are up for consideration on the Supreme Court’s conference schedule today. Indeed, by the time we post this, the conference will likely be over, although we won’t know the results until next week. Check these out, and hold your breath:

  • Petro-Hunt, LLC v. United States, No. 17-1090. As we wrote here, the question in this case is “whether the Takings Clause applies to the decisions of federal courts.” Well, if you have been following our threads on judicial takings, that’s a pretty tall order. Download the cert petition, the USG’s BIO, and the Reply brief here. 
  • Stanford v. United States, No. 17-809. The question here is when a federal court takes possession of an innocent spouse’s property for her husband’s securities fraud, is this a judicial taking? Check out the briefs here. 

Sidebar: one of things that that has…

Continue Reading Judicial Takings On The Supreme Court Conference Calendar Today