June 2018

A metro-area transit district condemned a portion of a residential lot for a light-rail line. The property was owned by a LLC, which in turn was owned by a family trust. The condemnor offered $19k as compensation, but the trust thought it was worth a lot more: $280k.

One of the big issues contributing to the difference was the loss of parking which would result from the taking. The condemnor wanted to introduce evidence that the family trust which owned the LLC, also owned adjacent and nearby parcels. Thus, the argument went, these parcels were in “common ownership,” and the loss of parking caused by the taking “could more easily obtain right to access [an area] that could be used for on-site parking.” 

The trial court kept out that evidence via an in limine ruling. No “unity of use,” and therefore the parcels should not be considered as one. After the…

Continue Reading Oregon Appeals Court Reminds Condemnors: Eminent Domain Valuation Is Focused On What The Market Would Have Paid For The Taken Property

Letter

Some good (Dolan, Lucas), some bad (Kelo, Murr), some … not sure (Lingle).

But now, things get interesting.

Let’s just say that we’re not totally convinced this letter from Justice Kennedy announcing his retirement isn’t “fake news,” since it does not list the four factors he considered in deciding to step down.   Continue Reading Kennedy, J. (ret.)

A short, but published, opinion from the U.S. Court of Appeals for the Fifth Circuit.

In Archbold-Garrett v. New Orleans, No. 17-30692 (June 22, 2018), the court held that the plaintiffs’ Fourth Amendment, Fifth Amendment, and Fourteenth Amendment claims (search and seizure, compensation, and procedural due process) were ripe for federal court, even though the plaintiffs had not sought compensation in a Louisiana court under Louisiana law. 

Quick background: the city demolished a building the plaintiffs owned which they had purchased from the city at a lien sale. The prior owner had racked up a bunch of code enforcement fines, and the city claimed the building was dangerous and should come down. But after the sale to the plaintiffs and days before the demolition, the city cancelled the code enforcement lien. Predictably, the city sent the new owners a bill for the demolition. They sued in federal court, arguing…

Continue Reading Fifth Circuit: Williamson County Doesn’t Require District Court Dismiss Due Process Or Takings Claim

In Adams Outdoor Advertising, LP v. City of Madison, No. 2016AP537 (June 19, 2018), the Wisconsin Supreme Court held that the City’s construction of a bridge next to — but not on — property on which Adams maintained a non-conforming billboard, was not a taking. 

There didn’t seem to be much of a dispute about the economic impact of the bridge on Adams — its appraiser testified the before-and-after delta was $740,000, a more than 50% loss. Adams asserted the bridge blocked drivers’ views of the west side of its billboard, and that as a consequence, no one wanted to rent space. The other side of the billboard wasn’t affected. Adams brought an inverse condemnation lawsuit.

The trial court and the court of appeals agreed with the city that Adams had no claim because it didn’t own “property,” defined here as an interest in certain views of its billboard…

Continue Reading Wisconsin – No Right To Be Seen: View Of Billboard From Public Road Isn’t “Property”

This one is more for our muni law friends, but today’s post also has two eminent domain angles. 

Anyone who has been to a city council meeting knows at least one fellow like this, considered a pain-in-the-butt by officials. A gadfly, who testifies on seemingly every issue. This is Fane Lozman, eminent domain protester (among other things). Familiar to readers as the Houseboat Guy. Or, more accurately, the “Floating Home” Guy who took the City of Riviera Beach, Florida to the U.S. Supreme Court once before, on the arcane issue of whether his floating home was a houseboat subject to admiralty jurisdiction. The Court held it wasn’t, and wasn’t. 

The houseboat affair wasn’t the end of it for Mr. Lozman, who already was “an outspoken critic of the City’s plan to use its eminent domain power to seize homes along the waterfront for private development,” according to the latest …

Continue Reading Arrested Eminent Domain Protester Still Can Sue City For First Amendment Violations

Before you get too excited about the California Supreme Court agreeing to consider an inverse condemnation case (the Court of Appeal’s decision in Weiss v. People ex rel. Dep’t of Transportation, No. G0552735 (Mar. 1, 2018)), remind yourself that it involves a procedural issue, and one that is very California-centric.

As our colleagues at the California Eminent Domain Report reported in “Important New Decision Impacting Legal Issues Motions in California Inverse Condemnation Cases,” Weiss was about whether portions of the California Civil Code applicable to eminent domain actions, under which the parties can ask the court to resolve certain compensation issues pretrial, also applies to inverse condemnation actions.

Weiss disagreed with another Court of Appeal’s decision, setting up review by the Supreme Court.

While that court will resolve the statutory question, we’re hoping that in the process of doing so, it doesn’t hose up inverse condemnation…

Continue Reading Cal Supreme Court To Review Inverse Condemnation Case

Here’s a new cert petition, filed yesterday in a case we’ve been following out of Louisiana that asks the Supreme Court to revisit the Public Use Clause questions left open by Kelo v. City of New London, 545 U.S. 469 (2005). 

In Violet Dock Port, LLC v. St. Bernard Port, Harbor, & Terminal District, 239 So.3d 243 (La. 2018), the Louisiana Supreme Court upheld the taking of a private port facility on the Mississippi River to give it, turnkey, another private operator. The Port took the entire VDP facility, made no change in how the property was used, and eventually turned over operation of the facility to a “hand-picked” and previously identified private operator. The court rejected the owner’s argument that the real purpose was to take over VDP’s valuable Navy contracts and to halt competition. Not so, held the court, the record suggested the real reason for the…

Continue Reading New Cert Petition: How Do You Ferret Out Private Benefit In Eminent Domain?

A quick check of the Supreme Court’s docket in the Knick v. Township of Scott case shows that no less than 18 amici briefs have been filed top side. Not all of them in support of the Petitioner mind you (two, the briefs of the United States and of the American Planning Association, are in support of neither party, or ask the Court to impose a specific remedy), but whoa, that’s still a lot. 

Shows us how much a case about a very technical aspect of takings law can generate huge participation, reflecting how important the issue of whether a property owner can file a federal takings claim in federal court truly is. 

So you don’t have to read each one (although we encourage you to do so), here’s our quick summary of each: 

…
Continue Reading Takings Ripeness Of Apparent Interest: Eighteen—18!—Amicus Briefs In Knick. Here’s Your Rundown.

It’s a go for next Monday, June, 11, 2018, and the exclusive Honolulu screening of “Little Pink House,” the feature film about the Kelo v. City of New London case.

There are still some seats left, so if you are even thinking of attending, buy your ticket here, right now.

We’ve seen the film. It is a compelling piece, and very accurate to the real story (with a few concessions to the art form, of course). If you know eminent domain law, you will like this movie (spoiler alert!). And if you aren’t that familiar with eminent domain, be prepared to be educated and entertained.

Thanks to Honolulu real estate agent (and victim of eminent domain) Choon James, for setting this up. 

More here. 

Also, for those of you on the Big Island, a reader notes that there are multiple screenings of LPH over…

Continue Reading One More Reminder: Seats Still Available For June 11 Honolulu Screening Of “Little Pink House”